Tuesday, March 30, 2004
Law: Supreme Court Roundup - Week Seven: Elk Grove Unified Sch. Dist. v. Newdow
This is the seventh in a series of occasional posts discussing cases currently pending before the Supreme Court. For more on the series, visit the first post here.
CASE SUMMARY:
This case arises as a challenge to Petitioner School District, which implemented California Education Code § 52720 (requiring appropriate patriotic exercises to be conducted in every public elementary school at the beginning of the school day) by enacting a policy that teachers lead elementary students in the Pledge of Allegiance on a daily basis. Respondent Michael Newdow, an avowed atheist, challenged the policy for the clause "under God," claiming that it amounted to state sponsorship of religion in violation of the Establishment Clause and that it created a coercive environment for his daughter, who attends elementary school in the Elk Grove School District. Respondent is the noncustodial parent, as a California Family Court awarded sole legal custody to the mother of Respondent's daughter. Neither Respondent's daughter nor her mother object to Petitioner's policy, nor do they share Petitioner's atheist views or join in his contention that Petitioner's policy is coercive or that reciting the Pledge of Allegiance is unconstitutional.
Respondent's complaint was dismissed by the District Court. On June 26, 2002, a split panel of the Ninth Circuit Court of Appeals reversed the District Court, holding that the 1954 amendment to the Pledge adding the words "under God" was unconstitutional and that Petitioner's practice of teacher led recitation of the Pledge with the phrase "under God" violated the Establishment Clause. Newdow v. U.S. Congress, 292 F.3d 597, 612 (2002) (Newdow I). On February 28, 2003, the Ninth Circuit denied Petitioner's Petition for Rehearing and Suggestion for Rehearing en banc. The panel majority issued an amended opinion, holding that Petitioner's Pledge recitation policy violates the Establishment Clause and not addressing the constitutionality of the 1954 Amendment. Newdow v. U.S. Congress, 328 F.3d 466 (2003) (Newdow II).
Petitioner first claims that Respondent lacks legal standing to bring the suit, as he has not suffered an injury to a legally protected interest that was caused by Petitioner's Pledge policy and that even if such an injury did exist, it is not redressable by a favorable decision. This argument is grounded on Respondent's status as the noncustodial parent, as the custodial parent alone has authority to make educational and religious decisions for the child. Newdow argues that he has joint custody, but the most recent state court custody order states that the mother, Ms. Banning, has authority to make all decisions where she and Respondent cannot agree. Petitioner, and the Government as amicus, argue that Ms. Banning has complete legal authority to send her daughter to the school of her choice, be it a public school that recites the Pledge, one that does not, or even a pervasively religious private school. As such, Newdow cannot claim injury to a parental interest, nor may he claim taxpayer standing, as he did not pay taxes to the Elk Grove School District. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 613-14 (1989) (holding that plaintiffs asserting standing as taxpayer to challenge conduct of a municipality, plaintiff must pay taxes to that municipality). The Government brief notes that Newdow's claim that the Pledge results in the "inculcation of Monotheism," without more, amounts to a generalized grievance that cannot establish standing. See Warth v. Seldin, 422 U.S. 490, 500 (1975).
On the merits, Petitioner claims that the Pledge policy does not violate the Establishment Clause, as it has a secular legislative purpose and its primary effect neither advances nor inhibits religion. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222-23. Nor, Petitioner claims, does its Pledge policy foster excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Most significant, however, is Petitioner's claim that the phrase "under God" in the Pledge is not a religious act. This argument is supported by the Court's definition of prayer as "a solemn avowal of faith and supplication for the blessing of the almighty," Engel v. Vitale, 370 U.S. 421, 424 (1962), and the common definition that prayer is "a humble communication in thought or speech to God or to an object of worship expressing supplication, thanksgiving, praise, confession, etc." THE NEW WEBSTER'S DICTIONARY 315 (1990). Petitioner contends that under these definitions, the status of the Pledge as a patriotic, rather than religious, act is established. As such, it satisfies the coercion test established in Lee v. Weisman, 505 U.S. 577, 586-87 (1992).
The Government's brief extends this argument, citing West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), as authority for the proposition that "the routine classroom dynamic is transformed into unconstitutional coercion only when school officials compel students 'to confess by word or act' their adherence to a governmentally prescribed 'orthodox[y] in politics, nationalism, religion, or other matters of opinion.'" Reply Brief for the United States as Respondent Supporting Petitioners, at 14. Furthermore, the Government argues, Barnette, which allows students with religious or other objections to refrain from reciting the Pledge, struck a constitutional balance between the individual student's right of conscience and the school's interests in national unity, preparing students for citizenship, and teaching "the shared values of a civilized social order." Id. at 15. Petitioner and the Government argue that this compromise was unaffected by Lee, as the Pledge inherently lacks the religious characteristics of the prayer at issue in Lee.
Petitioner argues that the Lemon test is fulfilled, as the District had the legitimate secular purpose of encouraging patriotic activities in accordance with California law (which states that the Pledge is among the activities satisfying the statute's requirements). Petitioner argues that the second Lemon prong is satisfied because a reasonable person would not view the practice as conveying a message of endorsement or disapproval of religion. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 757, 777 (1995). Significantly, the reasonable person endorsement inquiry is not "about the perceptions of particular individuals or saving isolated nonadherents from the discomfort of [being exposed to] a faith to which they do not subscribe." Id. at 779 (O'Connor, J., concurring). The School District contends that the excessive entanglement prong is avoided because the Pledge is not a religious act.
Petitioner also cites to dicta in numerous Supreme Court Establishment Clause decisions using the Pledge as an illustrative example of references to God or religion that are permissible in public schools. See Engel, 370 U.S. at 435 n.21 ("Such patriotic or ceremonial occasions (reciting historical documents . . . which contain references to the Deity) bare no true resemblance to . . . unquestioned religious exercise . . . ."); Schemp, 374 U.S. at 280 (Brennan, J., concurring) ("It has not been shown that . . . the Pledge of Allegiance . . . may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government."); Lynch v. Donnelly, 465 U.S. 670, 671 (1984) (noting that references to God such as those contained in the national motto and the Pledge are consistent with U.S. history and do not violate the Establishment Clause); id. at 692-93 (O'Connor, J., concurring) ("[G]overnmental acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society."); id. at 716-17 (Brennan, J., dissenting) ("[R]eferences to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form of 'ceremonial deism' protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.") (internal citations omitted); Wallace v. Jaffree, 472 U.S. 40, 78 n.5 (1985) (O'Connor, J., concurring) (The phrase "under God" in the Pledge "serve[s] as an acknowledgment of religion with the 'legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.'"); County of Allegheny v. ACLU of Greater Pittsburgh, 492 U.S. 578, 602-03 (1989) ("Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.").
Newdow emphasized the legislative history of the 1954 Amendment, adding the words "under God" to the Pledge, as indication that the phrase was inserted at the behest of religious groups seeking to draw a contrast with the officially atheistic Soviet Union and, as such, constitutes the establishment of monotheism and disapproval of atheism. See H. Rep. No. 1693, 83d Cong., 2d Sess. 2 (1954) (associating atheism with "subservience of the individual" and "spiritual bankruptcy"). Newdow argues that the insertion of "under God" obliterated the patriotic and unifying purpose that the Pledge had since 1892 by impermissibly identifying religion, rather than religious freedom, as a distinguishing characteristic. This endorsement of religion, Newdow argues, fails the first prong of Lemon.
Respondent also argues that under Lee, subjecting students to participation in a religious exercise coerces participation through peer pressure. Respondent argues that this is amplified, as Petitioner's policy affects elementary school children on a daily basis, whereas the conduct prohibited in Lee occurred only twice and the students affected were about to graduate from high school.
-summary by Matt
MATT'S VIEW:
I voted to reverse the decision of the Ninth Circuit.
Standing:
First, I do not believe that Newdow has standing to bring this claim, as he lacks any right to control the educational or religious upbringing of his daughter (he and Ms. Banning were never married, she has the final say on all parenting decisions). Although it is somewhat unusual to conclude that a parent has no cognizable legal interest in his child's upbringing, this was the decision of the California Family Court, likely because of Respondent's attempts to evade legal responsibility for his daughter. See In re Banning v. Newdow, at 2a (appendix to United States' Reply Brief) (concluding that "it is disingenuous for Father to hold the conclusion that Mother somehow raped Father. . . . Once Father decided to have sex, he accepted all the responsibilities for the minor child including raising and caring for her . . . . Father needs to quit blaming Mother for giving birth to the minor child.).
This did create a problem for me, as I wanted to get to the merits of the case. Fortunately, the academic nature of the exercise and the fact that I lost the standing vote 8-6 prevented me from choosing between refraining from an opinion on the merits and issuing an advisory opinion in violation of Article III.
Merits:
I believe past Supreme Court precedents establish that the Pledge of Allegiance is not a religious exercise, but that the phrase "under God" is instead an incidental acknowledgment of the United States' religious freedom as part of a larger, patriotic exercise. As an incidental acknowledgment, the Pledge lacks the inherently religious characteristics of prayer, which was found to be coercive in Lee.
The Pledge is an affirmation of many of the most important historical characteristics of American national life. At the elementary school level, the Pledge, in addition to serving as an indicator to children at the beginning of the school day that the serious business of education is underway, teaches principles of citizenship and shared civic responsibility that are the framework of national life. Additionally, the individual phrases contained within the Pledge serve important pedagogical lessons, notably republican government, the U.S. Constitution, the Civil War, the importance of the bedrock principles of liberty, justice, and equality, and--yes--the significance of religion and religious liberty to those who first settled the country and its enduring significance as an animating force to those bedrock principles identified by the Pledge. Examples of this role include the abolitionist movement, the movement to grant suffrage to women, opposition to fascism and communism, and the civil rights movement; to name only a few.
Furthermore, the Supreme Court's decision in Barnette protects against government coercion of those with religious objections to the Pledge. Although Barnette preceded the insertion of "under God" into the Pledge, the Jehovah's Witnesses in that case had the same basis of objection as Newdow: their religious beliefs precluded them from reciting the Pledge. In the former case, the appropriate remedy was to allow conscientious objectors to refrain from reciting the Pledge. That option is available to Newdow's daughter, should she someday adopt his beliefs. (God forbid!)
Finally, it would be derelict of me not to mention the original intent of the drafters of the First Amendment. As the Supreme Court noted in Marsh v. Chambers, 463 U.S. 783, 788 (1983), Congress authorized the appointment of paid chaplains for each house three days after approving the final language of the Bill of Rights. This action, as well as other significant evidence, indicates that Newdow's argument flies in the face of the framers' intent. Indeed, the entire class believed that the Establishment Clause was not intended to erect so high a wall of separation of church and state as to forbid the benign inclusion of "under God" in the Pledge of Allegiance. While I believe that Lee was incorrectly decided, there is no need to overrule it in this case, nor is there a need to analyze whether the founders intended an expansive Establishment Clause to preclude church-state entanglement or an Establishment Clause strictly limited to its text to foreclose only congressional establishment of a "Church of the United States" (I am inclined to believe the latter, but I will settle for neutrality in Establishment Clause jurisprudence).
I predicted that the Supreme Court will reverse. For the reasons expressed in the second paragraph of this section, I ventured out on a limb to predict that the decision would be unanimous.
SCOTT'S VIEW:
In a rare turn of events, I agree substantially with Matt and also voted to reverse.
Standing:
While Newdow's argument that he should be allowed to shield his child from being inculcated with beliefs contrary to those he shares may tug at one's heartstrings, it unfortunately does not pass the test for conferring standing on a plaintiff in federal court. In addition to what Matt said above, it is of the utmost importance to note that the California state custody ruling gave Ms. Banning the exclusive control over all "final decisions as to the minor's health, education, and welfare" if there is any disagreement and, if required, she may "exercise legal control of the minor." Gov. Reply Br. at 12a. As the Government points out, "The right to select a school with pedagogical practices that are consonant with [the mother's] views, even if they conflict with Newdow's, is precisely the right afforded the mother by the state court custody order. Id. at 3.
I am likewise not entirely convinced that Newdow's claims are redressable. Even if the Court were to rule in Newdow's favor, Ms. Banning could simply move the daughter to a private school where the Pledge is said every day (or -- the horror! -- the school day begins with a prayer).
Merits:
Matt did a good job of explaining why the Pledge of Allegiance does not violate the Establishment Clause, so I will only add a few brief points.
First, I agree with Matt that Supreme Court precedent shows that the Establishment Clause does not prohibit religious references in our pubic laws, rituals and ceremonies; I simply do not see a distinction between the Pledge and the invocation of God before Court sessions and legislative debates, the nod to God on our currency, or the prayer-like qualities of such patriotic staples as "God Bless America" and "My Country 'Tis of Thee."
Second, I agree with the Government that recital of the pledge is a patriotic exercise, not a religious one. Just because "under God" is contained in the pledge does not alter the inherent patriotism of the event. Students are affirming their belief in the values and ideals of our country, and vowing to honor the symbols that reflect those beliefs. If they disagree with the notion that belief in a supreme being heavily influenced the founding of our Nation, they can simply not recite those two words in the Pledge, or not recite it at all. But I do not buy that these two options amount to an unconstitutional coercion. Yes, peer pressure sucks, but there must be more than a stare, giggle, or finger-pointing to violate the First Amendment.
Finally, I want to mention the fact that I am an adherent to the concept of "ceremonial deism." I believe that there are some religious words, phrases and practices that, although appearing religious on their faces, and perhaps orginally started as a purely religious matter, after continuous repetition throughout history in a secular manner become non-religious in nature. This concept is embodied in the Court's church-state jurisprudence as practices that have become part of the "fabric of our society" so as to not violate the Establishment Clause. Examples of this can be seen in Marsh, 463 U.S. at 792 (opening legislative sessions with prayer), and Schempp, 374 U.S. at 280 (Brennan, J., concurring) (contemplating the Pledge and other patriotic exercises). Reciting the Pledge is part of being an American, not part of being a monotheist, just as standing at the beginning of a Court session is part of being a respectful visitor. Neither of the two practices "establish" monotheism as our official religion.
I want to say one final thing that hopefully Matt will respond to in either the comments or a separate post. Matt has repeatedly mentioned his agreement with the assertion that the First Amendment requires neutrality in regards to religions (see above, and his opinion in the Locke v. Davey case). In an amicus brief, a group of religious scholars argue that the Pledge violates neutrality by favoring monotheism over any other -theism (be it atheism, polytheism, whatever). In support they cite Everson v. Ewing Township, 330 U.S. 1 (1947) ("[The First Amendment] requires the state to be a neutral in its relations with groups of religious believers and non-believers[.]"). Br. for Scholars at 13. I think they make a decent point -- in the Pledge, as well as in other official government practices, the State seems to favor monotheism, and that might indeed violate neutrality. The answer, of course, would be to just eliminate all references to religion from public statements, practices and documents. While I think this is a bit nonsensical, I can see why an atheist would disagree. I want to know what Matt thinks.
CLASS RESULT:
The class concluded that Newdow has standing by an 8-6 vote and split 7-7 on the merits. The class unanimously believed that the actual Supreme Court would reverse.
FURTHER READING:
Because of the importance of this case, the Internet is filled with commentary, opinion and reaction to the case, prohibiting me from making any kind of comprehensive review. Do a Google search if you're interested. I will, however, link to a few resources:
Briefs and Stuff from Findlaw
Reports on the oral arguments from SCOTUSblog
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
United States v. Flores-Montano
Ashcroft v. ACLU
NEXT WEEK:
Thornton v. United States - another search and seizure case (zzzzzzzz).
CASE SUMMARY:
I Pledge Allegiance to the flag of the United States of America4 U.S.C. § 4 (1998).
and to the Republic for which it stands, one Nation under God,
indivisible, with liberty and justice for all.
This case arises as a challenge to Petitioner School District, which implemented California Education Code § 52720 (requiring appropriate patriotic exercises to be conducted in every public elementary school at the beginning of the school day) by enacting a policy that teachers lead elementary students in the Pledge of Allegiance on a daily basis. Respondent Michael Newdow, an avowed atheist, challenged the policy for the clause "under God," claiming that it amounted to state sponsorship of religion in violation of the Establishment Clause and that it created a coercive environment for his daughter, who attends elementary school in the Elk Grove School District. Respondent is the noncustodial parent, as a California Family Court awarded sole legal custody to the mother of Respondent's daughter. Neither Respondent's daughter nor her mother object to Petitioner's policy, nor do they share Petitioner's atheist views or join in his contention that Petitioner's policy is coercive or that reciting the Pledge of Allegiance is unconstitutional.
Respondent's complaint was dismissed by the District Court. On June 26, 2002, a split panel of the Ninth Circuit Court of Appeals reversed the District Court, holding that the 1954 amendment to the Pledge adding the words "under God" was unconstitutional and that Petitioner's practice of teacher led recitation of the Pledge with the phrase "under God" violated the Establishment Clause. Newdow v. U.S. Congress, 292 F.3d 597, 612 (2002) (Newdow I). On February 28, 2003, the Ninth Circuit denied Petitioner's Petition for Rehearing and Suggestion for Rehearing en banc. The panel majority issued an amended opinion, holding that Petitioner's Pledge recitation policy violates the Establishment Clause and not addressing the constitutionality of the 1954 Amendment. Newdow v. U.S. Congress, 328 F.3d 466 (2003) (Newdow II).
Petitioner first claims that Respondent lacks legal standing to bring the suit, as he has not suffered an injury to a legally protected interest that was caused by Petitioner's Pledge policy and that even if such an injury did exist, it is not redressable by a favorable decision. This argument is grounded on Respondent's status as the noncustodial parent, as the custodial parent alone has authority to make educational and religious decisions for the child. Newdow argues that he has joint custody, but the most recent state court custody order states that the mother, Ms. Banning, has authority to make all decisions where she and Respondent cannot agree. Petitioner, and the Government as amicus, argue that Ms. Banning has complete legal authority to send her daughter to the school of her choice, be it a public school that recites the Pledge, one that does not, or even a pervasively religious private school. As such, Newdow cannot claim injury to a parental interest, nor may he claim taxpayer standing, as he did not pay taxes to the Elk Grove School District. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 613-14 (1989) (holding that plaintiffs asserting standing as taxpayer to challenge conduct of a municipality, plaintiff must pay taxes to that municipality). The Government brief notes that Newdow's claim that the Pledge results in the "inculcation of Monotheism," without more, amounts to a generalized grievance that cannot establish standing. See Warth v. Seldin, 422 U.S. 490, 500 (1975).
On the merits, Petitioner claims that the Pledge policy does not violate the Establishment Clause, as it has a secular legislative purpose and its primary effect neither advances nor inhibits religion. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 222-23. Nor, Petitioner claims, does its Pledge policy foster excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
Most significant, however, is Petitioner's claim that the phrase "under God" in the Pledge is not a religious act. This argument is supported by the Court's definition of prayer as "a solemn avowal of faith and supplication for the blessing of the almighty," Engel v. Vitale, 370 U.S. 421, 424 (1962), and the common definition that prayer is "a humble communication in thought or speech to God or to an object of worship expressing supplication, thanksgiving, praise, confession, etc." THE NEW WEBSTER'S DICTIONARY 315 (1990). Petitioner contends that under these definitions, the status of the Pledge as a patriotic, rather than religious, act is established. As such, it satisfies the coercion test established in Lee v. Weisman, 505 U.S. 577, 586-87 (1992).
The Government's brief extends this argument, citing West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943), as authority for the proposition that "the routine classroom dynamic is transformed into unconstitutional coercion only when school officials compel students 'to confess by word or act' their adherence to a governmentally prescribed 'orthodox[y] in politics, nationalism, religion, or other matters of opinion.'" Reply Brief for the United States as Respondent Supporting Petitioners, at 14. Furthermore, the Government argues, Barnette, which allows students with religious or other objections to refrain from reciting the Pledge, struck a constitutional balance between the individual student's right of conscience and the school's interests in national unity, preparing students for citizenship, and teaching "the shared values of a civilized social order." Id. at 15. Petitioner and the Government argue that this compromise was unaffected by Lee, as the Pledge inherently lacks the religious characteristics of the prayer at issue in Lee.
Petitioner argues that the Lemon test is fulfilled, as the District had the legitimate secular purpose of encouraging patriotic activities in accordance with California law (which states that the Pledge is among the activities satisfying the statute's requirements). Petitioner argues that the second Lemon prong is satisfied because a reasonable person would not view the practice as conveying a message of endorsement or disapproval of religion. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 757, 777 (1995). Significantly, the reasonable person endorsement inquiry is not "about the perceptions of particular individuals or saving isolated nonadherents from the discomfort of [being exposed to] a faith to which they do not subscribe." Id. at 779 (O'Connor, J., concurring). The School District contends that the excessive entanglement prong is avoided because the Pledge is not a religious act.
Petitioner also cites to dicta in numerous Supreme Court Establishment Clause decisions using the Pledge as an illustrative example of references to God or religion that are permissible in public schools. See Engel, 370 U.S. at 435 n.21 ("Such patriotic or ceremonial occasions (reciting historical documents . . . which contain references to the Deity) bare no true resemblance to . . . unquestioned religious exercise . . . ."); Schemp, 374 U.S. at 280 (Brennan, J., concurring) ("It has not been shown that . . . the Pledge of Allegiance . . . may not adequately serve the solely secular purposes of the devotional activities without jeopardizing either the religious liberties of any members of the community or the proper degree of separation between the spheres of religion and government."); Lynch v. Donnelly, 465 U.S. 670, 671 (1984) (noting that references to God such as those contained in the national motto and the Pledge are consistent with U.S. history and do not violate the Establishment Clause); id. at 692-93 (O'Connor, J., concurring) ("[G]overnmental acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society."); id. at 716-17 (Brennan, J., dissenting) ("[R]eferences to God contained in the Pledge of Allegiance to the flag can best be understood . . . as a form of 'ceremonial deism' protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content.") (internal citations omitted); Wallace v. Jaffree, 472 U.S. 40, 78 n.5 (1985) (O'Connor, J., concurring) (The phrase "under God" in the Pledge "serve[s] as an acknowledgment of religion with the 'legitimate secular purposes of solemnizing public occasions, [and] expressing confidence in the future.'"); County of Allegheny v. ACLU of Greater Pittsburgh, 492 U.S. 578, 602-03 (1989) ("Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.").
Newdow emphasized the legislative history of the 1954 Amendment, adding the words "under God" to the Pledge, as indication that the phrase was inserted at the behest of religious groups seeking to draw a contrast with the officially atheistic Soviet Union and, as such, constitutes the establishment of monotheism and disapproval of atheism. See H. Rep. No. 1693, 83d Cong., 2d Sess. 2 (1954) (associating atheism with "subservience of the individual" and "spiritual bankruptcy"). Newdow argues that the insertion of "under God" obliterated the patriotic and unifying purpose that the Pledge had since 1892 by impermissibly identifying religion, rather than religious freedom, as a distinguishing characteristic. This endorsement of religion, Newdow argues, fails the first prong of Lemon.
Respondent also argues that under Lee, subjecting students to participation in a religious exercise coerces participation through peer pressure. Respondent argues that this is amplified, as Petitioner's policy affects elementary school children on a daily basis, whereas the conduct prohibited in Lee occurred only twice and the students affected were about to graduate from high school.
-summary by Matt
MATT'S VIEW:
I voted to reverse the decision of the Ninth Circuit.
Standing:
First, I do not believe that Newdow has standing to bring this claim, as he lacks any right to control the educational or religious upbringing of his daughter (he and Ms. Banning were never married, she has the final say on all parenting decisions). Although it is somewhat unusual to conclude that a parent has no cognizable legal interest in his child's upbringing, this was the decision of the California Family Court, likely because of Respondent's attempts to evade legal responsibility for his daughter. See In re Banning v. Newdow, at 2a (appendix to United States' Reply Brief) (concluding that "it is disingenuous for Father to hold the conclusion that Mother somehow raped Father. . . . Once Father decided to have sex, he accepted all the responsibilities for the minor child including raising and caring for her . . . . Father needs to quit blaming Mother for giving birth to the minor child.).
This did create a problem for me, as I wanted to get to the merits of the case. Fortunately, the academic nature of the exercise and the fact that I lost the standing vote 8-6 prevented me from choosing between refraining from an opinion on the merits and issuing an advisory opinion in violation of Article III.
Merits:
I believe past Supreme Court precedents establish that the Pledge of Allegiance is not a religious exercise, but that the phrase "under God" is instead an incidental acknowledgment of the United States' religious freedom as part of a larger, patriotic exercise. As an incidental acknowledgment, the Pledge lacks the inherently religious characteristics of prayer, which was found to be coercive in Lee.
The Pledge is an affirmation of many of the most important historical characteristics of American national life. At the elementary school level, the Pledge, in addition to serving as an indicator to children at the beginning of the school day that the serious business of education is underway, teaches principles of citizenship and shared civic responsibility that are the framework of national life. Additionally, the individual phrases contained within the Pledge serve important pedagogical lessons, notably republican government, the U.S. Constitution, the Civil War, the importance of the bedrock principles of liberty, justice, and equality, and--yes--the significance of religion and religious liberty to those who first settled the country and its enduring significance as an animating force to those bedrock principles identified by the Pledge. Examples of this role include the abolitionist movement, the movement to grant suffrage to women, opposition to fascism and communism, and the civil rights movement; to name only a few.
Furthermore, the Supreme Court's decision in Barnette protects against government coercion of those with religious objections to the Pledge. Although Barnette preceded the insertion of "under God" into the Pledge, the Jehovah's Witnesses in that case had the same basis of objection as Newdow: their religious beliefs precluded them from reciting the Pledge. In the former case, the appropriate remedy was to allow conscientious objectors to refrain from reciting the Pledge. That option is available to Newdow's daughter, should she someday adopt his beliefs. (God forbid!)
Finally, it would be derelict of me not to mention the original intent of the drafters of the First Amendment. As the Supreme Court noted in Marsh v. Chambers, 463 U.S. 783, 788 (1983), Congress authorized the appointment of paid chaplains for each house three days after approving the final language of the Bill of Rights. This action, as well as other significant evidence, indicates that Newdow's argument flies in the face of the framers' intent. Indeed, the entire class believed that the Establishment Clause was not intended to erect so high a wall of separation of church and state as to forbid the benign inclusion of "under God" in the Pledge of Allegiance. While I believe that Lee was incorrectly decided, there is no need to overrule it in this case, nor is there a need to analyze whether the founders intended an expansive Establishment Clause to preclude church-state entanglement or an Establishment Clause strictly limited to its text to foreclose only congressional establishment of a "Church of the United States" (I am inclined to believe the latter, but I will settle for neutrality in Establishment Clause jurisprudence).
I predicted that the Supreme Court will reverse. For the reasons expressed in the second paragraph of this section, I ventured out on a limb to predict that the decision would be unanimous.
SCOTT'S VIEW:
In a rare turn of events, I agree substantially with Matt and also voted to reverse.
Standing:
While Newdow's argument that he should be allowed to shield his child from being inculcated with beliefs contrary to those he shares may tug at one's heartstrings, it unfortunately does not pass the test for conferring standing on a plaintiff in federal court. In addition to what Matt said above, it is of the utmost importance to note that the California state custody ruling gave Ms. Banning the exclusive control over all "final decisions as to the minor's health, education, and welfare" if there is any disagreement and, if required, she may "exercise legal control of the minor." Gov. Reply Br. at 12a. As the Government points out, "The right to select a school with pedagogical practices that are consonant with [the mother's] views, even if they conflict with Newdow's, is precisely the right afforded the mother by the state court custody order. Id. at 3.
I am likewise not entirely convinced that Newdow's claims are redressable. Even if the Court were to rule in Newdow's favor, Ms. Banning could simply move the daughter to a private school where the Pledge is said every day (or -- the horror! -- the school day begins with a prayer).
Merits:
Matt did a good job of explaining why the Pledge of Allegiance does not violate the Establishment Clause, so I will only add a few brief points.
First, I agree with Matt that Supreme Court precedent shows that the Establishment Clause does not prohibit religious references in our pubic laws, rituals and ceremonies; I simply do not see a distinction between the Pledge and the invocation of God before Court sessions and legislative debates, the nod to God on our currency, or the prayer-like qualities of such patriotic staples as "God Bless America" and "My Country 'Tis of Thee."
Second, I agree with the Government that recital of the pledge is a patriotic exercise, not a religious one. Just because "under God" is contained in the pledge does not alter the inherent patriotism of the event. Students are affirming their belief in the values and ideals of our country, and vowing to honor the symbols that reflect those beliefs. If they disagree with the notion that belief in a supreme being heavily influenced the founding of our Nation, they can simply not recite those two words in the Pledge, or not recite it at all. But I do not buy that these two options amount to an unconstitutional coercion. Yes, peer pressure sucks, but there must be more than a stare, giggle, or finger-pointing to violate the First Amendment.
Finally, I want to mention the fact that I am an adherent to the concept of "ceremonial deism." I believe that there are some religious words, phrases and practices that, although appearing religious on their faces, and perhaps orginally started as a purely religious matter, after continuous repetition throughout history in a secular manner become non-religious in nature. This concept is embodied in the Court's church-state jurisprudence as practices that have become part of the "fabric of our society" so as to not violate the Establishment Clause. Examples of this can be seen in Marsh, 463 U.S. at 792 (opening legislative sessions with prayer), and Schempp, 374 U.S. at 280 (Brennan, J., concurring) (contemplating the Pledge and other patriotic exercises). Reciting the Pledge is part of being an American, not part of being a monotheist, just as standing at the beginning of a Court session is part of being a respectful visitor. Neither of the two practices "establish" monotheism as our official religion.
I want to say one final thing that hopefully Matt will respond to in either the comments or a separate post. Matt has repeatedly mentioned his agreement with the assertion that the First Amendment requires neutrality in regards to religions (see above, and his opinion in the Locke v. Davey case). In an amicus brief, a group of religious scholars argue that the Pledge violates neutrality by favoring monotheism over any other -theism (be it atheism, polytheism, whatever). In support they cite Everson v. Ewing Township, 330 U.S. 1 (1947) ("[The First Amendment] requires the state to be a neutral in its relations with groups of religious believers and non-believers[.]"). Br. for Scholars at 13. I think they make a decent point -- in the Pledge, as well as in other official government practices, the State seems to favor monotheism, and that might indeed violate neutrality. The answer, of course, would be to just eliminate all references to religion from public statements, practices and documents. While I think this is a bit nonsensical, I can see why an atheist would disagree. I want to know what Matt thinks.
CLASS RESULT:
The class concluded that Newdow has standing by an 8-6 vote and split 7-7 on the merits. The class unanimously believed that the actual Supreme Court would reverse.
FURTHER READING:
Because of the importance of this case, the Internet is filled with commentary, opinion and reaction to the case, prohibiting me from making any kind of comprehensive review. Do a Google search if you're interested. I will, however, link to a few resources:
Briefs and Stuff from Findlaw
Reports on the oral arguments from SCOTUSblog
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
United States v. Flores-Montano
Ashcroft v. ACLU
NEXT WEEK:
Thornton v. United States - another search and seizure case (zzzzzzzz).
Monday, March 15, 2004
Law: Supreme Court Roundup - Week Six: Ashcroft v. ACLU
This is the sixth in a series of weekly posts discussing cases currently pending before the Supreme Court. For more on the series, visit the first post here.
CASE SUMMARY:
This case is about internet porn. And it's the third time in the last eight years that the Court has had to deal with how, if at all, Congress can regulate it. The first time was in 1997, when the Court examined the Communications Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997) ("Reno I"). The CDA prohibited the posting on the internet of indecent or obscene material that would be available to persons under the age of 18. The Court held that, although the government has a compelling interest in shielding minors from indecent material, the CDA was not narrowly tailored, and thus failed the strict scrutiny analysis applied to restrictions on speech.
Congress tried again a year later, enacting the Child Online Protection Act (COPA). COPA attempts to address the problems of the CDA, as expressed by the Court in Reno I. COPA provides for civil and criminal penalties for anyone who:
"Commercial purposes" describes a person who is "engaged in the business of making such communications," or more specifically, someone who "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities." 47 U.S.C. § 231(e)(2)(B).
"Harmful to minors" means any communication (image, article, etc.) that is either obscene or satisfies a three-part test:
COPA also provides for an affirmative defense to violations of the statute. If a person, "in good faith, has restricted access by minors to material that is harmful to minors" by either requiring a credit card or adult access code, accepting a digital certificate verifying age, or using any other reasonable, technologically feasible measures, then the person will not be held liable. 47 U.S.C. § 231(c)(1).
The ACLU, representing various website owners who felt that their non-pornographic content would be covered by the Act, immediately sought an injunction against COPA's enforcement, asserting that the law was unconstitutional. The United States District Court for the Eastern District of Pennsylvania entered a preliminary injunction, stating that COPA would likely be found unconstitutional on its face. ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999) ("Reno II"). The district court held that despite Congress' best efforts to remedy the problems of the CDA, COPA was still not narrowly tailored enough to serve the government's interest. Specifically, the district court found that adults may be deterred from accessing material that is harmful to minors but acceptable to adults, thus website operators would suffer economic harm. The district court also found that there are less restrictive means available, such as voluntary use of blocking software, that would achieve the same goals of protecting children.
The Third Circuit affirmed, but on different grounds. ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000) ("Reno III"). The court held that COPA was overbroad because of its reliance on "community standards" in the definition of what material is "harmful to minors." Because the internet knows no geographical boundaries, website operators would have to comply with the community decency standards of the least tolerant area of the country.
The Supreme Court vacated and remanded. Ashcroft v. ACLU, 535 U.S. 564 (2002) ("Ashcroft I"). In a heavily fractured opinion, the Court held that "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment." Id. at 585. Essentially, the Court told the Third Circuit that they needed to find something more in order to rule COPA unconstitutional.
And the Third Circuit did. The court held COPA unconstitutional again, this time for four different reasons. First, the court found that the definition of "material harmful to minors" was not narrowly tailored. The definiton refers to "any communication" taken "as a whole." The court reasoned that, from a statutory construction standpoint, that meant that images are to be evaluated in isolation from the rest of a website, i.e. without the surrounding material to give the communication any context. This is problematic because a single image may appeal to a minor's prurient interest, but in the context of the greater web page, it may have some artistic value. The court also had a problem with the term "minor," in that it did not clarify whether it applied to an infant, a five-year old, or a person just shy of 17. What is harmful to the first is much different from what would be harmful to the last. Second, the court found that "community standards" was overbroad. The Third Circuit reasoned that COPA would cover a website whose purpose was completely unrelated to harmful material, but that nonetheless contained a single indecent communication, if the website generated any type of revenue (from advertising, for example). Third, the court found that the affirmative defenses burdened otherwise protected adult speech, thus failing strict scrutiny. The court noted that requiring a credit card would force adults to sacrifice their anonimity, which would deter them from visiting websites that had such security measures. The digital certificate of "other feasible measures" defenses were either nonexistant or ineffective, according to the Third Circuit. Finally, the court found that there were several less restrictive means for accomplishing the goals of COPA, such as blocking and filtering.
The government appealed, and before the Supreme Court it presents several arguments. The government claims that "as a whole" actually means the entire website, not the isolated communication. It also argues that COPA is modelled after state harmful-to-minor laws and that those laws are construed to mean material that is harmful to the oldest group of protected minors, not infants or adolescents. The goverment asserts that the "commercial purposes" definition in COPA is the only way that Congress could have worded it without creating loopholes for pornographers who are creative with how they raise revenue. It also notes that proof of age is standard for accessing adult material, such as entrance to a stip club or movie theater, thus the affirmative defenses are legitimate. Finally, the government argues that filtering would not be enough, because it is voluntary, and because it blocks some unharmful sites while allowing other sites that are harmful (filtering is imperfect).
The ACLU presents many examples of websites that would be covered and burdened by COPA, including health information sites and sexuality message boards. The ACLU also advances the argument that COPA is not necessarily needed, since there are already existing obscenity laws that, if properly enforced, would protect children from harmful material. As to the affirmative defenses, the ACLU notes that they are identical to the defenses struck down by the Court in Reno I, and the ACLU repeats the fact that many adults would be deterred from accessing sites that require proof of identity.
- summary by Scott
SCOTT'S VIEW:
I voted to affirm the decision of the Third Circuit, essentially for all of the reasons articulated in their well-reasoned and thorough opinion. I agree with everyone that protecting minors from indecent and obscene material is a compelling governmental interest; however, I do not feel that COPA is narrowly tailored to serve that interest. The internet is a unique medium, and one that does not lend itself to traditional modes of regulation (if it is to be regulated at all -- I'll save that for another day). Regulating material on the internet is not as easy as making a man show his driver's license in order to get into a strip club, or as easy as placing a black bag around a porno mag in order to sell it at a newsstand. Any attempted regulation of the internet will undoubtably result in some innocent material being restricted, and some obscene material slipping through. I am of the view that, unfortunately, there may be some cases where there is a compelling governmental interest, but there simply is no tailoring narrow enough to satisfy strict scrutiny.
I am also convinced by the community standards argument of the Third Circuit in Reno III. I took a class at Penn State on Internet Law back in the late nineties, and we came to a consensus that the biggest problem with attempts to regulate speech on the internet would be the community standards doctrine. The web can be accessed from anywhere, which means that even though a website operator may be operating in or targeting the most liberal of communities, she could be hailed into court (assuming jurisdiction) in the most puritanical of towns and made to answer to their standards. This is simply too burdensome on speech to be constitutional.
Further, I am not persuaded by the government's argument re: the definition of "minor" from state law. The statute is unclear on its face whether we are to evaluate the material from a 5-year-old's point of view or from a teenager's. The ambiguity and broadness of such a definition fail to pass constitutional muster to me.
Finally, I think there are plenty of other options available to fight this problem. I don't know much about existing obscenity law, but it probably needs to be enforced more. And we can continue to encourage, through tax breaks or whatever, ISPs to provide parental controls and filtering/blocking software. I have absolutely no problem saying that child access to indecent material on the internet is something that should be dealt with by that child's parents. The government need not always be the babysitter.
MATT'S VIEW:
I voted to reverse the decision of the Third Circuit panel. For me, the critical issues in this case are whether there is a compelling governmental interest in restricting minors access to pornographic materials and whether, and to what extent, it is desirable (or even possible) to regulate the Internet, as the answer to this second question ultimately informs the narrowly tailored issue.
If the government's interest truly is compelling (as the parties and all of the students in our class agreed), then some regulation is inherently permissible, i.e., capable of satisfying the narrowly tailored requirement. The principle problem with COPA, as Scott noted, is its failure to delineate a specific stage of minority as a standard for identifying harmful material. I believe that this argument rebuts the government's claim that striking down COPA would mean that Congress could not develop a more narrowly tailored statute. However, I believe that the "harmful to minors" standard indicates that the statute is designed to regulate access to hardcore pornography, not material that has arguable "literary, artistic, political, or scientific value," but that might not be age appropriate "for minors" generally or for any particular subset of that classification. I would therefore construe the COPA as applying to 16-year old minors, thus bringing the least amount of material within the statute's purview.
Although it is argued that the Internet is unique as a medium and therefore particularly susceptible to burdensome regulation, I do not believe that it is so foreign as to be beyond the scope of legal standards that exist in other areas. As Scott mentions, age verification is common in a plethora of forms, particularly as a means to keep adult materials out of the hands of minors. Several companies sell on-line adult ids, the digital equivalent of a driver's license, that would permit adults to freely peruse these sites without having to register their name and credit card with each individual pornographic site that they visit. Additionally, the government's ability to create incentive programs, whether in the form of tax breaks or laws requiring ISPs to provide information about blocking software, does not mean that direct regulation is impermissible, as the compelling interest standard clearly conveys the authority for the government to create burdens in addition to its lesser power to provide incentives to private actors. For these reasons, I voted to reverse.
I believe the Supreme Court will affirm, however, most likely on the grounds that Congress must be more specific when defining to what age level material must be deemed harmful. Maybe the third time will be the charm.
One other thing that bothered me in this case was the inclusion of numerous public statements by John Ashcroft from his days as a U.S. Senator regarding sex and sexual orientation in Respondent's brief. I think that it is improper for a party before the Supreme Court to make dispersions on the personal views of an opposing litigant that are tangential to the case and thus seem designed to leave the impression in a Justice's mind that "that narrow-minded Ashcroft is for this" so I should vote against it (I don't think any Justice would fall for it). It would be the equivalent of the government dropping a footnote mentioning all the cases where the ACLU argued against regulations seeking to restrict access to porn, designed solely to provide the impression that in the ACLU's dream world, kindergarteners would sing "Bah, Bah, Blacksheep," and then watch bestiality films (which is of course not true). To me both seem ridiculous caricatures that don't advance the argument of either side.
CLASS RESULT:
The class voted 11-4 to affirm the decision of the Third Circuit, and also felt that the actual Supreme Court will affirm the decision (vote was also 11-4).
FURTHER READING:
Briefs and stuff from Findlaw
A summary from CNN
A preview from the Christian Science Monitor.
Knight Ridder's report on the oral arguments.
Charles Lane from the Post's report.
An essay from Salon.
The ACLU site.
The Electronic Privacy Information Center (EPIC) site.
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
United States v. Flores-Montano
NEXT WEEK:
Elk Grove Unified Sch. Dist. v. Newdow - The Pledge of Allegiance Case.
CASE SUMMARY:
This case is about internet porn. And it's the third time in the last eight years that the Court has had to deal with how, if at all, Congress can regulate it. The first time was in 1997, when the Court examined the Communications Decency Act (CDA) in Reno v. ACLU, 521 U.S. 844 (1997) ("Reno I"). The CDA prohibited the posting on the internet of indecent or obscene material that would be available to persons under the age of 18. The Court held that, although the government has a compelling interest in shielding minors from indecent material, the CDA was not narrowly tailored, and thus failed the strict scrutiny analysis applied to restrictions on speech.
Congress tried again a year later, enacting the Child Online Protection Act (COPA). COPA attempts to address the problems of the CDA, as expressed by the Court in Reno I. COPA provides for civil and criminal penalties for anyone who:
knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.47 U.S.C. § 231(a)(1). The two important phrases in the above quoted portion are "commercial purposes" and "harmful to minors."
"Commercial purposes" describes a person who is "engaged in the business of making such communications," or more specifically, someone who "devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities." 47 U.S.C. § 231(e)(2)(B).
"Harmful to minors" means any communication (image, article, etc.) that is either obscene or satisfies a three-part test:
(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;47 U.S.C. § 231(e)(6). Those familiar with the Supreme Court's First Amendment jurisprudence will immediately recognize these factors as closely approximating the three-part test articulated in Miller v. California, 413 U.S. 15 (1973).
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
COPA also provides for an affirmative defense to violations of the statute. If a person, "in good faith, has restricted access by minors to material that is harmful to minors" by either requiring a credit card or adult access code, accepting a digital certificate verifying age, or using any other reasonable, technologically feasible measures, then the person will not be held liable. 47 U.S.C. § 231(c)(1).
The ACLU, representing various website owners who felt that their non-pornographic content would be covered by the Act, immediately sought an injunction against COPA's enforcement, asserting that the law was unconstitutional. The United States District Court for the Eastern District of Pennsylvania entered a preliminary injunction, stating that COPA would likely be found unconstitutional on its face. ACLU v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999) ("Reno II"). The district court held that despite Congress' best efforts to remedy the problems of the CDA, COPA was still not narrowly tailored enough to serve the government's interest. Specifically, the district court found that adults may be deterred from accessing material that is harmful to minors but acceptable to adults, thus website operators would suffer economic harm. The district court also found that there are less restrictive means available, such as voluntary use of blocking software, that would achieve the same goals of protecting children.
The Third Circuit affirmed, but on different grounds. ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000) ("Reno III"). The court held that COPA was overbroad because of its reliance on "community standards" in the definition of what material is "harmful to minors." Because the internet knows no geographical boundaries, website operators would have to comply with the community decency standards of the least tolerant area of the country.
The Supreme Court vacated and remanded. Ashcroft v. ACLU, 535 U.S. 564 (2002) ("Ashcroft I"). In a heavily fractured opinion, the Court held that "COPA's reliance on community standards to identify 'material that is harmful to minors' does not by itself render the statute substantially overbroad for purposes of the First Amendment." Id. at 585. Essentially, the Court told the Third Circuit that they needed to find something more in order to rule COPA unconstitutional.
And the Third Circuit did. The court held COPA unconstitutional again, this time for four different reasons. First, the court found that the definition of "material harmful to minors" was not narrowly tailored. The definiton refers to "any communication" taken "as a whole." The court reasoned that, from a statutory construction standpoint, that meant that images are to be evaluated in isolation from the rest of a website, i.e. without the surrounding material to give the communication any context. This is problematic because a single image may appeal to a minor's prurient interest, but in the context of the greater web page, it may have some artistic value. The court also had a problem with the term "minor," in that it did not clarify whether it applied to an infant, a five-year old, or a person just shy of 17. What is harmful to the first is much different from what would be harmful to the last. Second, the court found that "community standards" was overbroad. The Third Circuit reasoned that COPA would cover a website whose purpose was completely unrelated to harmful material, but that nonetheless contained a single indecent communication, if the website generated any type of revenue (from advertising, for example). Third, the court found that the affirmative defenses burdened otherwise protected adult speech, thus failing strict scrutiny. The court noted that requiring a credit card would force adults to sacrifice their anonimity, which would deter them from visiting websites that had such security measures. The digital certificate of "other feasible measures" defenses were either nonexistant or ineffective, according to the Third Circuit. Finally, the court found that there were several less restrictive means for accomplishing the goals of COPA, such as blocking and filtering.
The government appealed, and before the Supreme Court it presents several arguments. The government claims that "as a whole" actually means the entire website, not the isolated communication. It also argues that COPA is modelled after state harmful-to-minor laws and that those laws are construed to mean material that is harmful to the oldest group of protected minors, not infants or adolescents. The goverment asserts that the "commercial purposes" definition in COPA is the only way that Congress could have worded it without creating loopholes for pornographers who are creative with how they raise revenue. It also notes that proof of age is standard for accessing adult material, such as entrance to a stip club or movie theater, thus the affirmative defenses are legitimate. Finally, the government argues that filtering would not be enough, because it is voluntary, and because it blocks some unharmful sites while allowing other sites that are harmful (filtering is imperfect).
The ACLU presents many examples of websites that would be covered and burdened by COPA, including health information sites and sexuality message boards. The ACLU also advances the argument that COPA is not necessarily needed, since there are already existing obscenity laws that, if properly enforced, would protect children from harmful material. As to the affirmative defenses, the ACLU notes that they are identical to the defenses struck down by the Court in Reno I, and the ACLU repeats the fact that many adults would be deterred from accessing sites that require proof of identity.
- summary by Scott
SCOTT'S VIEW:
I voted to affirm the decision of the Third Circuit, essentially for all of the reasons articulated in their well-reasoned and thorough opinion. I agree with everyone that protecting minors from indecent and obscene material is a compelling governmental interest; however, I do not feel that COPA is narrowly tailored to serve that interest. The internet is a unique medium, and one that does not lend itself to traditional modes of regulation (if it is to be regulated at all -- I'll save that for another day). Regulating material on the internet is not as easy as making a man show his driver's license in order to get into a strip club, or as easy as placing a black bag around a porno mag in order to sell it at a newsstand. Any attempted regulation of the internet will undoubtably result in some innocent material being restricted, and some obscene material slipping through. I am of the view that, unfortunately, there may be some cases where there is a compelling governmental interest, but there simply is no tailoring narrow enough to satisfy strict scrutiny.
I am also convinced by the community standards argument of the Third Circuit in Reno III. I took a class at Penn State on Internet Law back in the late nineties, and we came to a consensus that the biggest problem with attempts to regulate speech on the internet would be the community standards doctrine. The web can be accessed from anywhere, which means that even though a website operator may be operating in or targeting the most liberal of communities, she could be hailed into court (assuming jurisdiction) in the most puritanical of towns and made to answer to their standards. This is simply too burdensome on speech to be constitutional.
Further, I am not persuaded by the government's argument re: the definition of "minor" from state law. The statute is unclear on its face whether we are to evaluate the material from a 5-year-old's point of view or from a teenager's. The ambiguity and broadness of such a definition fail to pass constitutional muster to me.
Finally, I think there are plenty of other options available to fight this problem. I don't know much about existing obscenity law, but it probably needs to be enforced more. And we can continue to encourage, through tax breaks or whatever, ISPs to provide parental controls and filtering/blocking software. I have absolutely no problem saying that child access to indecent material on the internet is something that should be dealt with by that child's parents. The government need not always be the babysitter.
MATT'S VIEW:
I voted to reverse the decision of the Third Circuit panel. For me, the critical issues in this case are whether there is a compelling governmental interest in restricting minors access to pornographic materials and whether, and to what extent, it is desirable (or even possible) to regulate the Internet, as the answer to this second question ultimately informs the narrowly tailored issue.
If the government's interest truly is compelling (as the parties and all of the students in our class agreed), then some regulation is inherently permissible, i.e., capable of satisfying the narrowly tailored requirement. The principle problem with COPA, as Scott noted, is its failure to delineate a specific stage of minority as a standard for identifying harmful material. I believe that this argument rebuts the government's claim that striking down COPA would mean that Congress could not develop a more narrowly tailored statute. However, I believe that the "harmful to minors" standard indicates that the statute is designed to regulate access to hardcore pornography, not material that has arguable "literary, artistic, political, or scientific value," but that might not be age appropriate "for minors" generally or for any particular subset of that classification. I would therefore construe the COPA as applying to 16-year old minors, thus bringing the least amount of material within the statute's purview.
Although it is argued that the Internet is unique as a medium and therefore particularly susceptible to burdensome regulation, I do not believe that it is so foreign as to be beyond the scope of legal standards that exist in other areas. As Scott mentions, age verification is common in a plethora of forms, particularly as a means to keep adult materials out of the hands of minors. Several companies sell on-line adult ids, the digital equivalent of a driver's license, that would permit adults to freely peruse these sites without having to register their name and credit card with each individual pornographic site that they visit. Additionally, the government's ability to create incentive programs, whether in the form of tax breaks or laws requiring ISPs to provide information about blocking software, does not mean that direct regulation is impermissible, as the compelling interest standard clearly conveys the authority for the government to create burdens in addition to its lesser power to provide incentives to private actors. For these reasons, I voted to reverse.
I believe the Supreme Court will affirm, however, most likely on the grounds that Congress must be more specific when defining to what age level material must be deemed harmful. Maybe the third time will be the charm.
One other thing that bothered me in this case was the inclusion of numerous public statements by John Ashcroft from his days as a U.S. Senator regarding sex and sexual orientation in Respondent's brief. I think that it is improper for a party before the Supreme Court to make dispersions on the personal views of an opposing litigant that are tangential to the case and thus seem designed to leave the impression in a Justice's mind that "that narrow-minded Ashcroft is for this" so I should vote against it (I don't think any Justice would fall for it). It would be the equivalent of the government dropping a footnote mentioning all the cases where the ACLU argued against regulations seeking to restrict access to porn, designed solely to provide the impression that in the ACLU's dream world, kindergarteners would sing "Bah, Bah, Blacksheep," and then watch bestiality films (which is of course not true). To me both seem ridiculous caricatures that don't advance the argument of either side.
CLASS RESULT:
The class voted 11-4 to affirm the decision of the Third Circuit, and also felt that the actual Supreme Court will affirm the decision (vote was also 11-4).
FURTHER READING:
Briefs and stuff from Findlaw
A summary from CNN
A preview from the Christian Science Monitor.
Knight Ridder's report on the oral arguments.
Charles Lane from the Post's report.
An essay from Salon.
The ACLU site.
The Electronic Privacy Information Center (EPIC) site.
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
United States v. Flores-Montano
NEXT WEEK:
Elk Grove Unified Sch. Dist. v. Newdow - The Pledge of Allegiance Case.
Tuesday, February 24, 2004
Supreme Court Roundup - Week Five: United States v. Flores-Montano
This is the fifth in a series of weekly posts discussing cases currently pending before the Supreme Court. For more on the series, visit the first post here.
CASE SUMMARY:
The question in this case is whether customs officers at the international border must have reasonable suspicion to remove, disassemble, and search a vehicle's fuel tank for contraband. On February 12, 2002, Respondent Manuel Flores-Montano, a resident alien, reentered the United States near San Diego. According to the U.S. Customs Inspector, Flores-Montano appeared nervous. The inspector then tapped the gas tank of the car, a 1987 Ford Taurus, with a screwdiver and noticed that the tank sounded solid. He then pulled Flores-Montano from the car and conducted a secondary inspection, during which a drug-sniffing dog alerted to the gas tank and further tapping at the gas tank revealed more "solid" sounds. A mechanic was summoned and arrived within 20-30 minutes. The car was raised on a hydraulic lift and the gas tank was removed from the car in a process that took 10-15 minutes. After the tank was removed, the inspector noticed the presence of a putty-like sealant at the top of the gas tank, which he hammered off during a 5-10 minute period. The inspector then opened an access plate and found 37 kilograms of marijuana bricks.
Respondent successfully moved to have the marijuana suppressed by the District Court, citing United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002), a case where a divided Ninth Circuit panel held that removal of the gas tank is a nonroutine border search that requires reasonable suspicion under United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (holding that the detention of a traveler at the border "beyond the scope of a routine customs search and inspection" must be supported by reasonable suspicion). At the suppression hearing, the government did not argue that it possessed reasonable suspicion to search Respondent's car (that the government had reasonable suspicion seems beyond dispute, as Respondent was demonstrably nervous, the gas tank was tapped twice, and a drug dog alerted to the gas tank), but rather that Molina-Tarazon was incorrectly decided and that customs officers had broad power to conduct suspicionless searches at the border. It is unclear whether the government merely forgot to argue reasonable suspicion or whether there was a decision within the U.S. Attorney's Office or the Justice Department to use this case to try to overrule Molina-Tarazon. Regardless of the government's motives, it waived the opportunity to argue reasonable suspicion on appeal. The Ninth Circuit affirmed the District Court in a summary opinion.
Before the Supreme Court, the government argues that Montoya de Hernandez failed to establish a standard for when a search became nonroutine. 473 U.S. at 541 n.4; see also United States v. Ramos-Saenz, 36 F.3d 59, 61 n.3 ("[A] border search goes beyond the routine only when it reaches the degree of intrusiveness present in a strip search or a body cavity search."). The government proceeds to argue that the extreme level of intrusiveness is lacking in this search (contending it is only a "minimal intrusion"), and, even if it were present, that the government's compelling interest in border security justifies it in inspecting all vehicular compartments for contraband.
Most of the United States' brief is devoted to the latter argument, which proceeds from the government's assertion that past Supreme Court decisions support broad governmental power to search arriving international travelers as an incident to sovereign authority. See Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979) (inherent authority to search the baggage of arriving international travelers); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) ("It is . . . without doubt that [the power to exclude aliens] can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders."). The government argues that its strong interest in conducting suspicionless searches of vehicles and containers therein at the border has particular application to the search of gas tanks, as 25% of drug seizures at the Southern California border over the last 5 1/2 years arose from attempts to smuggle drugs in a vehicle's gas tank. The United States asserts that gas tanks can also be used to smuggle aliens and other contraband into the country and that a reasonable suspicion requirement could permit terrorists to smuggle explosives or other dangerous substances into the country.
Finally, the United States challenges the Ninth Circuit's conclusion in Molina-Tarazon that gas tank searches are nonroutine because they require the use of force to remove and disassemble the fuel tank, that the procedure involves some risk of harm, and that an individual subjected to such a search would likely feel a diminished sense of security. 279 F.3d at 713. The government argues that the use of force is merely non-destructive removal and disassembly, that there was no basis for the conclusion that a gas tank search poses a subsequent danger following reassembly, and the process was not psychologically intrusive.
Respondent argues that there is a palpable distinction between routine and nonroutine searches and that if the search is nonroutine, as it asserts fuel tank disassembly to be, there must be reasonable suspicion in order to "effect[] a needed balance between private and public interests." Id. at 712 n.2. Respondent relies on cases from the First, Fifth, and Tenth circuits involving drilling into objects to support its argument that intrusive searches of personal property are not routine and that searches and seizures of inanimate objects must be supported by reasonable suspicion. Implicit in this argument is that destructive searches are inherently nonroutine and that disassembly can be equated with destruction. See Brief for Resp. at 13-14. Respondent asserts that the wait for the mechanic, the use of force, the possible danger from a fire or explosion to the car's occupants, and the resultant fear caused by the disassembly indicate that the search here was nonroutine. Respondent also makes a lengthy historical argument arguing that the colonists were outraged by intrusive customs searches and that the disassembly of property in the course of a search lacks common law pedigree. Finally, Respondent concludes that the government's ability to "question border crossers, observe their behavior, tap on gas tanks and other compartments, make observations of the vehicle, . . . employ narcotics detector dogs, 'density busters,' fiber optic scopes, and x-ray machines," id. at 40, indicates that there are less intrusive means to effect the government's asserted interests in border security.
- summary by Matt
MATT'S VIEW:
I think this is a somewhat silly case on a non-issue, as customs officials will likely never disassemble a gas tank without reasonable suspicion deriving from the less intrusive means mentioned by Respondent. That being said, however, I voted to reverse the decision of the Ninth Circuit.
The distinction between routine and nonroutine searches is a function of frequency and intrusiveness. As the use of x-rays demonstrates, some searches can become routine over time (listed as nonroutine in 1985 by the Montoya de Hernandez Court and as routine in Respondent's brief). Disassembly of a vehicle's gas tank has also reached routine status, as 25% of all drug seizures in the area were for smuggling drugs in gas tanks. In the past 5 1/2 years, officials in Southern California have searched approximately 5000 gas tanks for drugs, finding drugs in 92.5% of vehicles searched. While this statistic demonstrates that government agents will not disassemble a gas tank without reasonable suspicion, it also demonstrates that smuggling banned substances in vehicle gas tanks is an increasing phenomenon and that law enforcement has responded to this challenge by searching vehicular fuel compartments with vastly increased frequency.
Similarly, the search performed on Respondent's vehicle was not terribly intrusive. A trained mechanic arrived on the scene in less than half an hour and removed the fuel compartment within fifteen minutes. Had no drugs been found, the mechanic would have quickly reassembled the tank and Respondent would have been on his way. Disassembly of a car's gas tank is fundamentally different from the Circuit Court cases cited by Respondent, as each of those cases involved law enforcement officials drilling into private property: an action that forever alters the characteristics of that property, essentially destroying it. Respondent's contention that a driver would be apprehensive to continue driving following reassembly (citing Molina Tarazon, 279 F.3d at 716) is untenable, as millions of drivers around the country entrust mechanics to make repairs necessary to their vehicle's safe operation from changing the oil to brake work. Furthermore, Respondent fails to cite to a single instance of depreciated value or catastrophic fire to one of the vehicles involved in the 7.5% of gas tank searches that do not yield illegal substances.
The Supreme Court has long recognized that the government's interest is at its apex at the border. All travelers entering the United States are subject to suspicionless searches, whether they arrive by air, land, or sea. The government's ability to conduct these searches extends beyond the person of the individual to their baggage and, if arriving over land, to the compartments of their vehicle such as their trunk, glove compartment, and any luggage contained therein. Given these circumstances, I am unable to conclude that an individual crossing the international border can claim a reasonable expectation of privacy in the contents of the vehicle's gas tank: a piece of machinery whose contents will usually be either regular or unleaded. The government's overwhelming interest in stopping drug trafficking and preventing other dangerous substances from being smuggled into the country by potential terrorists justifies the minimally intrusive search at issue in this case. Respondent's slippery-slope argument that the government could disassemble a car down to a box of parts and not reassemble it is inapplicable, as the disassembly here is limited to a large internal compartment and the government's stated policy is to reassemble the tank if no controlled substances are found. If personal property is destroyed incident to an unsuccessful search, the aggrieved individual would have a colorable due process takings claim against the government for restitution.
SCOTT'S VIEW:
I voted to affirm in part, reverse in part, and remand back to the district court in order for the court to determine if the government did in fact have a reasonable suspicion. (note: I'm not entirely sure that this would be possible -- if anyone has a good answer, please leave a comment). I feel that a search of this type, involving the physical disassembly of a piece of personal property, requires reasonable suspicion, which is why I would affirm the decision. However, since there was never a hearing on whether reasonable suspicion was present, and because I don't think the Supreme Court should be acting as a fact-finder, I would remand to the lower court for a determination.
Although I think reasonable suspicion should be required, I'm not a huge fan of the routine/non-routine distinction. The inherent problem with that test is its circularity: If a particular search is considered non-routine because it occurs with low frequency, then the government will just obtain reasonable suspicion in order to perform the search more often. Once they start to do it more and more, all of a sudden the same search becomes routine. This is exactly why Matt bases his argument (in part) on the fact that these gas tank searches are becoming increasingly common at the borders. I would like to find a clearer line to draw, perhaps based on mechanical manipulation, as was advanced by some members of the class.
I found the government's argument for why reasonable suspicion should not be required unpersuasive. The government mentioned that if they were not allowed to perform suspicionless searches of gas tanks the deterrent effect would be lost, and more and more aliens, drug smugglers and terrorists would take advantage of the gas tank loophole. The also argue that border officials will be less likely to search gas tanks because of fear of potential litigation or supression of evidence if they don't actually have a reasonable suspicion. Both of these arguments are bunk. First (aside from my general annoyance with the government's continual reliance on "terror" as a justification for everything), I see no reason why the current level of gas tank smuggling incidents will increase as a result of this case. For one, how many drug lords read Supreme Court cases, and for two, how many honestly believe they will be safe from the drug-sniffing dogs, x-ray machines, and other various methods for obtaining the ridiculously low standard of "reasonable suspicion"? The latter point is also why the border officer hesitancy is also nonsense: it does not take much to establish reasonable suspicion -- there's no reason why if an officer thinks there are drugs in the tank he won't be able to gain enough evidence to take it apart.
Two final reasons for my vote this way: (1) my general disdain for case-by-case balancing tests like the one advanced by the government in lieu of the non-routine/reasonable suspicion test; and (2) my general fear of the government suddenly randomly taking apart cars at the border. Despite Matt's best efforts to convince me otherwise, this is not a simple, quick procedure; it is in fact a big mess, and there will always be some damage to the car (and his takings argument doesn't sway me much -- what a friggin hassle that would be -- to have to sue the government for the dent they put in your gas tank). Just trot out your dog and your x-ray machine, then maybe I'll be comfortable with you ripping apart my undercarriage.
CLASS RESULT:
The class voted 11-4 to affirm the decision of the Ninth Circuit, but thought (10-5) that the actual Supreme Court will reverse the decision. Apparently, many people in the class think that the Supreme Court granted cert in this case in order to provide the government with greater ability to fight terrorism by conducting suspicionless searches at the border. The majority of the class would not give the government such broad power; however, there was a lot of disagreement expressed with the routine/non-routine dichotomy giving rise to the requirement of reasonable suspicion. Several students stated that, for searches not involving the body, they would endorse a test that focused on whether the item being searched had to be taken apart or tampered with -- something like a "mechanical manipulation" test. We'll see if the Court decides to get creative like we wish they would.
SPECIAL NOTE:
Oral argument in this case is scheduled for this Wednesday morning. If you are free, go check it out. And if you go and write a summary of your opinion of the arguments, email us and we'll post your thoughts here.
FURTHER READING:
Briefs and stuff from Findlaw
A summary from CNN
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
NEXT WEEK:
Ashcroft v. ACLU - a case challenging the constitutionality of the Child Online Protection Act
CASE SUMMARY:
The question in this case is whether customs officers at the international border must have reasonable suspicion to remove, disassemble, and search a vehicle's fuel tank for contraband. On February 12, 2002, Respondent Manuel Flores-Montano, a resident alien, reentered the United States near San Diego. According to the U.S. Customs Inspector, Flores-Montano appeared nervous. The inspector then tapped the gas tank of the car, a 1987 Ford Taurus, with a screwdiver and noticed that the tank sounded solid. He then pulled Flores-Montano from the car and conducted a secondary inspection, during which a drug-sniffing dog alerted to the gas tank and further tapping at the gas tank revealed more "solid" sounds. A mechanic was summoned and arrived within 20-30 minutes. The car was raised on a hydraulic lift and the gas tank was removed from the car in a process that took 10-15 minutes. After the tank was removed, the inspector noticed the presence of a putty-like sealant at the top of the gas tank, which he hammered off during a 5-10 minute period. The inspector then opened an access plate and found 37 kilograms of marijuana bricks.
Respondent successfully moved to have the marijuana suppressed by the District Court, citing United States v. Molina-Tarazon, 279 F.3d 709 (9th Cir. 2002), a case where a divided Ninth Circuit panel held that removal of the gas tank is a nonroutine border search that requires reasonable suspicion under United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (holding that the detention of a traveler at the border "beyond the scope of a routine customs search and inspection" must be supported by reasonable suspicion). At the suppression hearing, the government did not argue that it possessed reasonable suspicion to search Respondent's car (that the government had reasonable suspicion seems beyond dispute, as Respondent was demonstrably nervous, the gas tank was tapped twice, and a drug dog alerted to the gas tank), but rather that Molina-Tarazon was incorrectly decided and that customs officers had broad power to conduct suspicionless searches at the border. It is unclear whether the government merely forgot to argue reasonable suspicion or whether there was a decision within the U.S. Attorney's Office or the Justice Department to use this case to try to overrule Molina-Tarazon. Regardless of the government's motives, it waived the opportunity to argue reasonable suspicion on appeal. The Ninth Circuit affirmed the District Court in a summary opinion.
Before the Supreme Court, the government argues that Montoya de Hernandez failed to establish a standard for when a search became nonroutine. 473 U.S. at 541 n.4; see also United States v. Ramos-Saenz, 36 F.3d 59, 61 n.3 ("[A] border search goes beyond the routine only when it reaches the degree of intrusiveness present in a strip search or a body cavity search."). The government proceeds to argue that the extreme level of intrusiveness is lacking in this search (contending it is only a "minimal intrusion"), and, even if it were present, that the government's compelling interest in border security justifies it in inspecting all vehicular compartments for contraband.
Most of the United States' brief is devoted to the latter argument, which proceeds from the government's assertion that past Supreme Court decisions support broad governmental power to search arriving international travelers as an incident to sovereign authority. See Torres v. Puerto Rico, 442 U.S. 465, 472-73 (1979) (inherent authority to search the baggage of arriving international travelers); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) ("It is . . . without doubt that [the power to exclude aliens] can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders."). The government argues that its strong interest in conducting suspicionless searches of vehicles and containers therein at the border has particular application to the search of gas tanks, as 25% of drug seizures at the Southern California border over the last 5 1/2 years arose from attempts to smuggle drugs in a vehicle's gas tank. The United States asserts that gas tanks can also be used to smuggle aliens and other contraband into the country and that a reasonable suspicion requirement could permit terrorists to smuggle explosives or other dangerous substances into the country.
Finally, the United States challenges the Ninth Circuit's conclusion in Molina-Tarazon that gas tank searches are nonroutine because they require the use of force to remove and disassemble the fuel tank, that the procedure involves some risk of harm, and that an individual subjected to such a search would likely feel a diminished sense of security. 279 F.3d at 713. The government argues that the use of force is merely non-destructive removal and disassembly, that there was no basis for the conclusion that a gas tank search poses a subsequent danger following reassembly, and the process was not psychologically intrusive.
Respondent argues that there is a palpable distinction between routine and nonroutine searches and that if the search is nonroutine, as it asserts fuel tank disassembly to be, there must be reasonable suspicion in order to "effect[] a needed balance between private and public interests." Id. at 712 n.2. Respondent relies on cases from the First, Fifth, and Tenth circuits involving drilling into objects to support its argument that intrusive searches of personal property are not routine and that searches and seizures of inanimate objects must be supported by reasonable suspicion. Implicit in this argument is that destructive searches are inherently nonroutine and that disassembly can be equated with destruction. See Brief for Resp. at 13-14. Respondent asserts that the wait for the mechanic, the use of force, the possible danger from a fire or explosion to the car's occupants, and the resultant fear caused by the disassembly indicate that the search here was nonroutine. Respondent also makes a lengthy historical argument arguing that the colonists were outraged by intrusive customs searches and that the disassembly of property in the course of a search lacks common law pedigree. Finally, Respondent concludes that the government's ability to "question border crossers, observe their behavior, tap on gas tanks and other compartments, make observations of the vehicle, . . . employ narcotics detector dogs, 'density busters,' fiber optic scopes, and x-ray machines," id. at 40, indicates that there are less intrusive means to effect the government's asserted interests in border security.
- summary by Matt
MATT'S VIEW:
I think this is a somewhat silly case on a non-issue, as customs officials will likely never disassemble a gas tank without reasonable suspicion deriving from the less intrusive means mentioned by Respondent. That being said, however, I voted to reverse the decision of the Ninth Circuit.
The distinction between routine and nonroutine searches is a function of frequency and intrusiveness. As the use of x-rays demonstrates, some searches can become routine over time (listed as nonroutine in 1985 by the Montoya de Hernandez Court and as routine in Respondent's brief). Disassembly of a vehicle's gas tank has also reached routine status, as 25% of all drug seizures in the area were for smuggling drugs in gas tanks. In the past 5 1/2 years, officials in Southern California have searched approximately 5000 gas tanks for drugs, finding drugs in 92.5% of vehicles searched. While this statistic demonstrates that government agents will not disassemble a gas tank without reasonable suspicion, it also demonstrates that smuggling banned substances in vehicle gas tanks is an increasing phenomenon and that law enforcement has responded to this challenge by searching vehicular fuel compartments with vastly increased frequency.
Similarly, the search performed on Respondent's vehicle was not terribly intrusive. A trained mechanic arrived on the scene in less than half an hour and removed the fuel compartment within fifteen minutes. Had no drugs been found, the mechanic would have quickly reassembled the tank and Respondent would have been on his way. Disassembly of a car's gas tank is fundamentally different from the Circuit Court cases cited by Respondent, as each of those cases involved law enforcement officials drilling into private property: an action that forever alters the characteristics of that property, essentially destroying it. Respondent's contention that a driver would be apprehensive to continue driving following reassembly (citing Molina Tarazon, 279 F.3d at 716) is untenable, as millions of drivers around the country entrust mechanics to make repairs necessary to their vehicle's safe operation from changing the oil to brake work. Furthermore, Respondent fails to cite to a single instance of depreciated value or catastrophic fire to one of the vehicles involved in the 7.5% of gas tank searches that do not yield illegal substances.
The Supreme Court has long recognized that the government's interest is at its apex at the border. All travelers entering the United States are subject to suspicionless searches, whether they arrive by air, land, or sea. The government's ability to conduct these searches extends beyond the person of the individual to their baggage and, if arriving over land, to the compartments of their vehicle such as their trunk, glove compartment, and any luggage contained therein. Given these circumstances, I am unable to conclude that an individual crossing the international border can claim a reasonable expectation of privacy in the contents of the vehicle's gas tank: a piece of machinery whose contents will usually be either regular or unleaded. The government's overwhelming interest in stopping drug trafficking and preventing other dangerous substances from being smuggled into the country by potential terrorists justifies the minimally intrusive search at issue in this case. Respondent's slippery-slope argument that the government could disassemble a car down to a box of parts and not reassemble it is inapplicable, as the disassembly here is limited to a large internal compartment and the government's stated policy is to reassemble the tank if no controlled substances are found. If personal property is destroyed incident to an unsuccessful search, the aggrieved individual would have a colorable due process takings claim against the government for restitution.
SCOTT'S VIEW:
I voted to affirm in part, reverse in part, and remand back to the district court in order for the court to determine if the government did in fact have a reasonable suspicion. (note: I'm not entirely sure that this would be possible -- if anyone has a good answer, please leave a comment). I feel that a search of this type, involving the physical disassembly of a piece of personal property, requires reasonable suspicion, which is why I would affirm the decision. However, since there was never a hearing on whether reasonable suspicion was present, and because I don't think the Supreme Court should be acting as a fact-finder, I would remand to the lower court for a determination.
Although I think reasonable suspicion should be required, I'm not a huge fan of the routine/non-routine distinction. The inherent problem with that test is its circularity: If a particular search is considered non-routine because it occurs with low frequency, then the government will just obtain reasonable suspicion in order to perform the search more often. Once they start to do it more and more, all of a sudden the same search becomes routine. This is exactly why Matt bases his argument (in part) on the fact that these gas tank searches are becoming increasingly common at the borders. I would like to find a clearer line to draw, perhaps based on mechanical manipulation, as was advanced by some members of the class.
I found the government's argument for why reasonable suspicion should not be required unpersuasive. The government mentioned that if they were not allowed to perform suspicionless searches of gas tanks the deterrent effect would be lost, and more and more aliens, drug smugglers and terrorists would take advantage of the gas tank loophole. The also argue that border officials will be less likely to search gas tanks because of fear of potential litigation or supression of evidence if they don't actually have a reasonable suspicion. Both of these arguments are bunk. First (aside from my general annoyance with the government's continual reliance on "terror" as a justification for everything), I see no reason why the current level of gas tank smuggling incidents will increase as a result of this case. For one, how many drug lords read Supreme Court cases, and for two, how many honestly believe they will be safe from the drug-sniffing dogs, x-ray machines, and other various methods for obtaining the ridiculously low standard of "reasonable suspicion"? The latter point is also why the border officer hesitancy is also nonsense: it does not take much to establish reasonable suspicion -- there's no reason why if an officer thinks there are drugs in the tank he won't be able to gain enough evidence to take it apart.
Two final reasons for my vote this way: (1) my general disdain for case-by-case balancing tests like the one advanced by the government in lieu of the non-routine/reasonable suspicion test; and (2) my general fear of the government suddenly randomly taking apart cars at the border. Despite Matt's best efforts to convince me otherwise, this is not a simple, quick procedure; it is in fact a big mess, and there will always be some damage to the car (and his takings argument doesn't sway me much -- what a friggin hassle that would be -- to have to sue the government for the dent they put in your gas tank). Just trot out your dog and your x-ray machine, then maybe I'll be comfortable with you ripping apart my undercarriage.
CLASS RESULT:
The class voted 11-4 to affirm the decision of the Ninth Circuit, but thought (10-5) that the actual Supreme Court will reverse the decision. Apparently, many people in the class think that the Supreme Court granted cert in this case in order to provide the government with greater ability to fight terrorism by conducting suspicionless searches at the border. The majority of the class would not give the government such broad power; however, there was a lot of disagreement expressed with the routine/non-routine dichotomy giving rise to the requirement of reasonable suspicion. Several students stated that, for searches not involving the body, they would endorse a test that focused on whether the item being searched had to be taken apart or tampered with -- something like a "mechanical manipulation" test. We'll see if the Court decides to get creative like we wish they would.
SPECIAL NOTE:
Oral argument in this case is scheduled for this Wednesday morning. If you are free, go check it out. And if you go and write a summary of your opinion of the arguments, email us and we'll post your thoughts here.
FURTHER READING:
Briefs and stuff from Findlaw
A summary from CNN
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
NEXT WEEK:
Ashcroft v. ACLU - a case challenging the constitutionality of the Child Online Protection Act
Friday, February 20, 2004
Supreme Court Roundup - Week Four: Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist.
This is the fourth in a series of weekly posts discussing cases currently pending before the Supreme Court. For more on the series, visit the first post here.
CASE SUMMARY:
This case requires an unusually large amount of background info. I'll try to keep it short and simple, but please bear with us...
This case involves the interpretation of Title II of the Clean Air Act ("CAA"). The CAA was enacted by Congress to regulate the emission of pollutants to respond to the growing dangers of air pollution. Title II specifically governs motor vehicles as mobile sources of pollution. The way the CAA operates is by directing the Environmental Protection Agency ("EPA") to regulate emissions by establishing and enforcing national ambient air quality standards ("NAAQS"). These NAAQS are baseline standards that must be met by all of the states in order to ensure national uniformity in emissions. While this effectively (and expressly) preempts state regulation of emissions, each state is permitted to develop its own method for achieving the NAAQS. These compliance plans, known as state implementation plans ("SIPs"), must be submitted to the EPA for approval. While states are free to decide how they wish to comply with the national air quality standards, they are not free to establish their own emissions standards for manufacturers, so as to ensure that manufacturers do not have to produce different vehicles for sale in every different state. See CAA § 209(a).
California is treated differently than the other 49 states for purposes of the CAA for two reasons. First, California's air pollution problems are the most severe in the country, caused in large part by motor vehicle emissions. Second, California has always been a leader in fighting to control air pollution, having enacted emissions regulations in 1957, eight years before the passage of the CAA. For these reasons, Congress permits California to apply to the EPA for a waiver, allowing it to enact its own standards for motor vehicle emissions. California's standards must be consistent with federal standards, and must generally protect the health and welfare as much as the federal standards. See CAA § 209(b). Other states can choose to follow California's standards instead of federal standards, but they must be identical to CA's standards, so as to not create a third set of standards, forcing manufacturers to produce a "third vehicle" (manufacturers essentially have to produce two types of vehicles: one that complies with CA emissions standards, and one that complies with non-CA (federal) standards). See CAA § 177.
California has exercised its prerogative under § 209(b) by adopting a 5-tiered program of emissions standards, known as its Low-Emission Vehicle ("LEV") program. Each category of vehicle, from transitional low emission vehicles to zero emission vehicles, must meet progressively stringent numerical emission levels for certain pollutants. Manufacturers must certify that each vehicle they produce falls within one of the five categories. Also, while manufacturers can choose how many vehicles from each category they wish to produce, they must ensure that the average emissions from their entire line of vehicles does not exceed a yearly "fleet average" standard set by the state. In addition to the LEV program, California also enacted a special Urban Bus program, which established increasingly stringent emission standards for urban bus manufacturers, and imposes a ceiling on the average emission level of a public transit bus fleet.
At issue here is a smaller subset of rules promulgated not by the state (which acts through the California Air Resources Board ("CARB")), but rather through a small political subdivision, the South Coast Air Quality Management District ("District"). The District is responsible for controlling air pollution in the South Coast region of California, an area that encompasses four counties and 15 million people, including Los Angeles. The region is the most unique and severe area of pollution in the country; indeed, it is the only region designated by the U.S. as being in "extreme nonattainment" of national air quality standards. To respond to its unique pollution problem, the District adopted six "fleet rules" to reduce toxic emissions. The fleet rules apply to several different public and commercial entities, from taxi cabs and buses to trash trucks and street sweepers. Essentially, the rules require fleet owners to purchase certain low-emission or alternative-fuel vehicles instead of high-emission, diesel vehicles, unless the required types of vehicles are unavailable. All of the required vehicles belong to one of the certified categories under CARB's LEV program. Importantly, the fleet rules only impose requirements on the fleet owners who purchase vehicles - they pose no new requirements on vehicle manufacturers or sellers.
The plaintiff, Engine Manufacturers Association, is a non-profit trade organization representing...well, engine manufacturers. Plaintiff sued the District, seeking an injunction against enforcement of the fleet rules, asserting that the rules were preempted by § 209(a) of the CAA. A trade group representing petroleum interests joined the suit as a co-plaintiff, and a number of environmental groups intervened as co-defendants. The parties cross-moved for summary judgment, and the district court granted summary judgment for the defendants. The court concluded that the fleet rules were simply purchase requirements, not emissions standards, as was suggested by plaintiffs. The court recognized that the fleet rules may lead to decreased demand for some vehicles, and increased demand for others (namely, low-emissions vehicles), but because the required vehicles all fell under certified California standards, the fleet rules do not require the manufacturers to build or sell any particular model that they wouldn't otherwise have to produce. The Ninth Circuit affirmed "for the reasons stated in [the district court's] well-reasoned opinion...."
Plaintiffs (here, Petitioners) appealed to the Supreme Court. On appeal, they once again argue that the fleet rules violate § 209(a) because they are "standard[s] relating to the control of emissions from new motor vehicles or new motor vehicle engines," something that localities are prohibited from enacting. They argue that "standard" should be read broadly to include the purchasing restrictions imposed on fleet owners by the rules. They argue that the plain meaning and usage elsewhere in the CAA support their broad definition of the word "standard." Petitioners further argue that the fleet rules constitute a limitation on "the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California standards," which is prohibited by § 177 as creating the dreaded "third vehicle." They assert that because the District requires the purchase of certain LEVs, they essentially require manufacturers to produce them and sell them, instead of other, CARB-approved vehicles.
Defendants (here, Respondents) counter that "standards" are only technical, numerical, production mandates that apply to manufacturers, and that the term cannot be construed to include purchase requirements such as the fleet rules at issue here. Petitioners argue that the fleet rules do not impose any requirements on manufacturers - they can continue "to produce any mix of vehicles they choose-the rules merely provide a ready market for cleaner vehicles, and thus, an incentive for individual manufacturers to produce them." They further argue that the CAA's savings clause (§ 116, which says nothing in the Act denies the right of a locality to adopt "any requirement respecting control or abatement of air pollution") and a general presumption against preemption, see, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), weigh against a finding that the fleet rules are preempted by the CAA. Finally, Respondents argue that § 177 is inapplicable, because it only applies to other states choosing to adopt CA standards, not political subdivisions of CA and, at any rate, § 177 does not preempt the fleet rules, because the rules do not limit the manufacture or sale of vehicles, they simply impose stricter procedural requirements on fleet owners.
- summary by Scott
SCOTT'S VIEW*:
I found this to be a relatively easy case, and did not hesitate in voting to affirm the decision of the Ninth Circuit (essentially for the reasons stated in the district court opinion). I agree with the Respondents that the word "standards" as used in the Act refers to numerical emissions values, and applies only to manufacturers. I do not buy that the fleet rules, and their purchase requirements, impose any sort of emissions standard on engine manufacturers. Manufacturers of non-LEVs (which I called "dirty vehicles" in conference) are free to sell whatever mix of cars they wish, as long as they continue to comply with CARB's state-wide regulations. Moreover, if the Court were to adopt Petitioner's broad reading, "standard" would encompass many state incentive programs, such as tax breaks for purchasing low-emissions vehicles, which is something I would definitely find problematic.
Secondly, I think that the legislative purpose behind the Clean Air Act was, and is, to produce clean air by encouraging a market for cleaner vehicles. Here, California and the District have created a program that does just that. I was much more comfortable voting to incentivize clean vehicles than I was voting for preemption of state regulations. Which brings me to my final point, which is to say that I believe that states, and their respective localities, should be allowed to experiment with creative ways to respond to severe air pollution, especially since environmental concerns have historically been committed to state control under their general police powers.
* In real life, I would've recused myself, since I am employed by counsel for the petitioners, much like how Justice Souter often recuses himself from cases originating from New Hampshire, where he was counsel for the state for many years
MATT'S VIEW:
I, alone among my colleagues, voted to reverse the decision of the Ninth Circuit. I looked to the text of § 209(a), the structure and purposes of § 209, and to the national consequences of permitting California subdivisions to exceed State emission requirements.
First, I read § 209(a) as a relatively broad preemption clause prohibiting the imposition of "any standard relating to the control of emissions." If this language was the extent of the text, there would be a uniform national emissions standard, which reflects recognition that the "cornerstone of Title II is Congress' continued express preemption of state regulation of automobile emissions." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York State Department of Environmental Conservation, 17 F.3d 521, 526 (1994). However, for the reasons Scott mentioned in the summary above, Congress saw fit to provide an exclusion to this general preemption provision in § 209(b). This exception waives application of § 209(a) for "any State which has adopted standards" prior to March 30, 1966, so long as the state meets three criteria, the most important being that the state standard is "at least as protective of public health and welfare as applicable Federal standards." Only California qualifies for exemption under this subsection.
These two provisions indicate Congess' intention to create a national emission standard, while providing an exception for California to enable it to continue its more stringent policies. Significantly, the preemption provision in § 209(a) begins "no State or any political subdivision thereof," whereas the exception, § 209(b), waives application only "to any State which has adopted standards." (emphasis mine) Thus, the structure of the section clearly indicates a general rule of preemption operating against States and localities, while the exception to this provision applies only to States, of which only California qualifies. This interpretation furthers the asserted legislative purposes of these subsections, namely Congress' belief that preemption was "necessary in order to prevent a chaotic situation from developing in interstate commerce in new motor vehicles," H.R. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967), while at the same time recognizing California's "unique problems" and "pioneering efforts" to combat air pollution. S. Rep. No. 403, 90th Cong., 1st Sess. (1967).
Many students in the class rejected this structuralist approach to the statute based on what I perceive as a misapplication of Jonathan Macey's argument for effectuating the public purpose of statutes when filling gaps in statutory provisions. See Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Columbia L. Rev. 223 (1986). Rather than consider the context and structure of the subsections to § 209 as evidence of Congress' reasoned intention to implement a specific regulatory regime, they instinctively declared that the Clean Air Act was the result of an interest group bargain and therefore illegitimate. They then proceeded to "fill the gap" with assertions that the legislative intent of the Act was to "produce clean air." In so doing, they embraced Congess' stated end and discarded its chosen means. Such an approach amounts to little more than an automatic judicial override of Congress' result based on a perceived interest group deal: a result that Macey argued was an illegitimate usurpation of Congress' legislative prerogative by the judiciary. If the Courts are to replace all analysis of a complex statute's structure and context with platitudes about its overarching purpose, next time Congress might as well save itself the effort and limit future statutes to a general purpose and a remedies section.
Because § 209 operates as a general rule of federal preemption with a narrowly tailored exception not available to political subdivisions of a State, the sole question is whether the District's fleet rules are the type of regulation falling within § 209(a). Respondent claims that the rules affect only specified purchasers, not "the initial retail sale" specified in the statute. This claim would be colorable if the fleet requirements applied only to public entities, as political subdivisions have a right to refrain from purchasing certain vehicles. However, application of the fleet rules against a multitude of private actors constitutes the very imposition of an emissions-based condition precedent to retail sales that the statute forbids, as it forecloses significant markets to vehicles otherwise compliant with CARB regulations.
Finally, permitting the District to supercede California's requirements would create problems with application of § 177, which permits other States to "opt-in" to California's standards, so long as those standards are "identical" to California?s. Besides inability to look to a single applicable California standard, political subdivisions in other states could arguably seek to impose requirements that differed from those of California or the District. This possibility may be illustrated through manufacturers' production of vehicles A-Z meeting federal standards. If California permits vehicles A-M, the District is now seeking to permit only vehicles A-F with regard to certain fleets. Through application of § 177, States that to this time have been limited California's requirement of A-M could immediately see their statewide standard abrogated by political subdivisions seeking to limit sales to certain purchasers to any combination of vehicles between A-M (the CARB standard, which California localities would be authorized to supercede). While such an approach may have beneficial aspects for air quality, it would lead to the balkanization of emissions regulation and the negative economic consequences that Congress expressly sought to avoid by implementing the preemption provision in 1967.
CLASS RESULT:
Despite Professor Turley's best efforts to convince us that this case required serious, thoughtful discussion about the role of the Court in statutory interpretation, the class quickly coalesced around a result. We voted 13-1 to affirm the decision of the Ninth Circuit, with Matt as the sole dissenter. The class also thought the actual Supreme Court would affirm, by a vote of 9-5. The most interesting discussion surrounded the question of why the Court actually decided to hear the case. Several students thought the Court granted cert only to reverse the Ninth Circuit (one of their favorite pastimes) and make it clear that the Court was taking preemption seriously. On the flipside, several students thought perhaps the Court actually took the case to affirm and send a message that it was embracing the principles behind the Clean Air Act. Professor Turley thinks that the environment-loving liberals pressed for it, knowing that Justice Scalia would not be able to resist a plain meaning textualism case. We will never know for sure, but it's still fun.
FURTHER READING:
Briefs and stuff from Findlaw
Press Release from EMA.
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
NEXT WEEK:
United States v. Flores-Montano - a case involving whether the dismantling of a gas tank as part of a border search is unreasonable under the Fourth Amendment
CASE SUMMARY:
This case requires an unusually large amount of background info. I'll try to keep it short and simple, but please bear with us...
This case involves the interpretation of Title II of the Clean Air Act ("CAA"). The CAA was enacted by Congress to regulate the emission of pollutants to respond to the growing dangers of air pollution. Title II specifically governs motor vehicles as mobile sources of pollution. The way the CAA operates is by directing the Environmental Protection Agency ("EPA") to regulate emissions by establishing and enforcing national ambient air quality standards ("NAAQS"). These NAAQS are baseline standards that must be met by all of the states in order to ensure national uniformity in emissions. While this effectively (and expressly) preempts state regulation of emissions, each state is permitted to develop its own method for achieving the NAAQS. These compliance plans, known as state implementation plans ("SIPs"), must be submitted to the EPA for approval. While states are free to decide how they wish to comply with the national air quality standards, they are not free to establish their own emissions standards for manufacturers, so as to ensure that manufacturers do not have to produce different vehicles for sale in every different state. See CAA § 209(a).
California is treated differently than the other 49 states for purposes of the CAA for two reasons. First, California's air pollution problems are the most severe in the country, caused in large part by motor vehicle emissions. Second, California has always been a leader in fighting to control air pollution, having enacted emissions regulations in 1957, eight years before the passage of the CAA. For these reasons, Congress permits California to apply to the EPA for a waiver, allowing it to enact its own standards for motor vehicle emissions. California's standards must be consistent with federal standards, and must generally protect the health and welfare as much as the federal standards. See CAA § 209(b). Other states can choose to follow California's standards instead of federal standards, but they must be identical to CA's standards, so as to not create a third set of standards, forcing manufacturers to produce a "third vehicle" (manufacturers essentially have to produce two types of vehicles: one that complies with CA emissions standards, and one that complies with non-CA (federal) standards). See CAA § 177.
California has exercised its prerogative under § 209(b) by adopting a 5-tiered program of emissions standards, known as its Low-Emission Vehicle ("LEV") program. Each category of vehicle, from transitional low emission vehicles to zero emission vehicles, must meet progressively stringent numerical emission levels for certain pollutants. Manufacturers must certify that each vehicle they produce falls within one of the five categories. Also, while manufacturers can choose how many vehicles from each category they wish to produce, they must ensure that the average emissions from their entire line of vehicles does not exceed a yearly "fleet average" standard set by the state. In addition to the LEV program, California also enacted a special Urban Bus program, which established increasingly stringent emission standards for urban bus manufacturers, and imposes a ceiling on the average emission level of a public transit bus fleet.
At issue here is a smaller subset of rules promulgated not by the state (which acts through the California Air Resources Board ("CARB")), but rather through a small political subdivision, the South Coast Air Quality Management District ("District"). The District is responsible for controlling air pollution in the South Coast region of California, an area that encompasses four counties and 15 million people, including Los Angeles. The region is the most unique and severe area of pollution in the country; indeed, it is the only region designated by the U.S. as being in "extreme nonattainment" of national air quality standards. To respond to its unique pollution problem, the District adopted six "fleet rules" to reduce toxic emissions. The fleet rules apply to several different public and commercial entities, from taxi cabs and buses to trash trucks and street sweepers. Essentially, the rules require fleet owners to purchase certain low-emission or alternative-fuel vehicles instead of high-emission, diesel vehicles, unless the required types of vehicles are unavailable. All of the required vehicles belong to one of the certified categories under CARB's LEV program. Importantly, the fleet rules only impose requirements on the fleet owners who purchase vehicles - they pose no new requirements on vehicle manufacturers or sellers.
The plaintiff, Engine Manufacturers Association, is a non-profit trade organization representing...well, engine manufacturers. Plaintiff sued the District, seeking an injunction against enforcement of the fleet rules, asserting that the rules were preempted by § 209(a) of the CAA. A trade group representing petroleum interests joined the suit as a co-plaintiff, and a number of environmental groups intervened as co-defendants. The parties cross-moved for summary judgment, and the district court granted summary judgment for the defendants. The court concluded that the fleet rules were simply purchase requirements, not emissions standards, as was suggested by plaintiffs. The court recognized that the fleet rules may lead to decreased demand for some vehicles, and increased demand for others (namely, low-emissions vehicles), but because the required vehicles all fell under certified California standards, the fleet rules do not require the manufacturers to build or sell any particular model that they wouldn't otherwise have to produce. The Ninth Circuit affirmed "for the reasons stated in [the district court's] well-reasoned opinion...."
Plaintiffs (here, Petitioners) appealed to the Supreme Court. On appeal, they once again argue that the fleet rules violate § 209(a) because they are "standard[s] relating to the control of emissions from new motor vehicles or new motor vehicle engines," something that localities are prohibited from enacting. They argue that "standard" should be read broadly to include the purchasing restrictions imposed on fleet owners by the rules. They argue that the plain meaning and usage elsewhere in the CAA support their broad definition of the word "standard." Petitioners further argue that the fleet rules constitute a limitation on "the manufacture or sale of a new motor vehicle or motor vehicle engine that is certified in California as meeting California standards," which is prohibited by § 177 as creating the dreaded "third vehicle." They assert that because the District requires the purchase of certain LEVs, they essentially require manufacturers to produce them and sell them, instead of other, CARB-approved vehicles.
Defendants (here, Respondents) counter that "standards" are only technical, numerical, production mandates that apply to manufacturers, and that the term cannot be construed to include purchase requirements such as the fleet rules at issue here. Petitioners argue that the fleet rules do not impose any requirements on manufacturers - they can continue "to produce any mix of vehicles they choose-the rules merely provide a ready market for cleaner vehicles, and thus, an incentive for individual manufacturers to produce them." They further argue that the CAA's savings clause (§ 116, which says nothing in the Act denies the right of a locality to adopt "any requirement respecting control or abatement of air pollution") and a general presumption against preemption, see, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), weigh against a finding that the fleet rules are preempted by the CAA. Finally, Respondents argue that § 177 is inapplicable, because it only applies to other states choosing to adopt CA standards, not political subdivisions of CA and, at any rate, § 177 does not preempt the fleet rules, because the rules do not limit the manufacture or sale of vehicles, they simply impose stricter procedural requirements on fleet owners.
- summary by Scott
SCOTT'S VIEW*:
I found this to be a relatively easy case, and did not hesitate in voting to affirm the decision of the Ninth Circuit (essentially for the reasons stated in the district court opinion). I agree with the Respondents that the word "standards" as used in the Act refers to numerical emissions values, and applies only to manufacturers. I do not buy that the fleet rules, and their purchase requirements, impose any sort of emissions standard on engine manufacturers. Manufacturers of non-LEVs (which I called "dirty vehicles" in conference) are free to sell whatever mix of cars they wish, as long as they continue to comply with CARB's state-wide regulations. Moreover, if the Court were to adopt Petitioner's broad reading, "standard" would encompass many state incentive programs, such as tax breaks for purchasing low-emissions vehicles, which is something I would definitely find problematic.
Secondly, I think that the legislative purpose behind the Clean Air Act was, and is, to produce clean air by encouraging a market for cleaner vehicles. Here, California and the District have created a program that does just that. I was much more comfortable voting to incentivize clean vehicles than I was voting for preemption of state regulations. Which brings me to my final point, which is to say that I believe that states, and their respective localities, should be allowed to experiment with creative ways to respond to severe air pollution, especially since environmental concerns have historically been committed to state control under their general police powers.
* In real life, I would've recused myself, since I am employed by counsel for the petitioners, much like how Justice Souter often recuses himself from cases originating from New Hampshire, where he was counsel for the state for many years
MATT'S VIEW:
I, alone among my colleagues, voted to reverse the decision of the Ninth Circuit. I looked to the text of § 209(a), the structure and purposes of § 209, and to the national consequences of permitting California subdivisions to exceed State emission requirements.
First, I read § 209(a) as a relatively broad preemption clause prohibiting the imposition of "any standard relating to the control of emissions." If this language was the extent of the text, there would be a uniform national emissions standard, which reflects recognition that the "cornerstone of Title II is Congress' continued express preemption of state regulation of automobile emissions." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York State Department of Environmental Conservation, 17 F.3d 521, 526 (1994). However, for the reasons Scott mentioned in the summary above, Congress saw fit to provide an exclusion to this general preemption provision in § 209(b). This exception waives application of § 209(a) for "any State which has adopted standards" prior to March 30, 1966, so long as the state meets three criteria, the most important being that the state standard is "at least as protective of public health and welfare as applicable Federal standards." Only California qualifies for exemption under this subsection.
These two provisions indicate Congess' intention to create a national emission standard, while providing an exception for California to enable it to continue its more stringent policies. Significantly, the preemption provision in § 209(a) begins "no State or any political subdivision thereof," whereas the exception, § 209(b), waives application only "to any State which has adopted standards." (emphasis mine) Thus, the structure of the section clearly indicates a general rule of preemption operating against States and localities, while the exception to this provision applies only to States, of which only California qualifies. This interpretation furthers the asserted legislative purposes of these subsections, namely Congress' belief that preemption was "necessary in order to prevent a chaotic situation from developing in interstate commerce in new motor vehicles," H.R. Rep. No. 728, 90th Cong., 1st Sess. 21 (1967), while at the same time recognizing California's "unique problems" and "pioneering efforts" to combat air pollution. S. Rep. No. 403, 90th Cong., 1st Sess. (1967).
Many students in the class rejected this structuralist approach to the statute based on what I perceive as a misapplication of Jonathan Macey's argument for effectuating the public purpose of statutes when filling gaps in statutory provisions. See Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Columbia L. Rev. 223 (1986). Rather than consider the context and structure of the subsections to § 209 as evidence of Congress' reasoned intention to implement a specific regulatory regime, they instinctively declared that the Clean Air Act was the result of an interest group bargain and therefore illegitimate. They then proceeded to "fill the gap" with assertions that the legislative intent of the Act was to "produce clean air." In so doing, they embraced Congess' stated end and discarded its chosen means. Such an approach amounts to little more than an automatic judicial override of Congress' result based on a perceived interest group deal: a result that Macey argued was an illegitimate usurpation of Congress' legislative prerogative by the judiciary. If the Courts are to replace all analysis of a complex statute's structure and context with platitudes about its overarching purpose, next time Congress might as well save itself the effort and limit future statutes to a general purpose and a remedies section.
Because § 209 operates as a general rule of federal preemption with a narrowly tailored exception not available to political subdivisions of a State, the sole question is whether the District's fleet rules are the type of regulation falling within § 209(a). Respondent claims that the rules affect only specified purchasers, not "the initial retail sale" specified in the statute. This claim would be colorable if the fleet requirements applied only to public entities, as political subdivisions have a right to refrain from purchasing certain vehicles. However, application of the fleet rules against a multitude of private actors constitutes the very imposition of an emissions-based condition precedent to retail sales that the statute forbids, as it forecloses significant markets to vehicles otherwise compliant with CARB regulations.
Finally, permitting the District to supercede California's requirements would create problems with application of § 177, which permits other States to "opt-in" to California's standards, so long as those standards are "identical" to California?s. Besides inability to look to a single applicable California standard, political subdivisions in other states could arguably seek to impose requirements that differed from those of California or the District. This possibility may be illustrated through manufacturers' production of vehicles A-Z meeting federal standards. If California permits vehicles A-M, the District is now seeking to permit only vehicles A-F with regard to certain fleets. Through application of § 177, States that to this time have been limited California's requirement of A-M could immediately see their statewide standard abrogated by political subdivisions seeking to limit sales to certain purchasers to any combination of vehicles between A-M (the CARB standard, which California localities would be authorized to supercede). While such an approach may have beneficial aspects for air quality, it would lead to the balkanization of emissions regulation and the negative economic consequences that Congress expressly sought to avoid by implementing the preemption provision in 1967.
CLASS RESULT:
Despite Professor Turley's best efforts to convince us that this case required serious, thoughtful discussion about the role of the Court in statutory interpretation, the class quickly coalesced around a result. We voted 13-1 to affirm the decision of the Ninth Circuit, with Matt as the sole dissenter. The class also thought the actual Supreme Court would affirm, by a vote of 9-5. The most interesting discussion surrounded the question of why the Court actually decided to hear the case. Several students thought the Court granted cert only to reverse the Ninth Circuit (one of their favorite pastimes) and make it clear that the Court was taking preemption seriously. On the flipside, several students thought perhaps the Court actually took the case to affirm and send a message that it was embracing the principles behind the Clean Air Act. Professor Turley thinks that the environment-loving liberals pressed for it, knowing that Justice Scalia would not be able to resist a plain meaning textualism case. We will never know for sure, but it's still fun.
FURTHER READING:
Briefs and stuff from Findlaw
Press Release from EMA.
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
Locke v. Davey
NEXT WEEK:
United States v. Flores-Montano - a case involving whether the dismantling of a gas tank as part of a border search is unreasonable under the Fourth Amendment
Tuesday, February 17, 2004
Law: Supreme Court Roundup - Week Three: Locke v. Davey
This is the third in a series of weekly posts discussing cases currently pending before the Supreme Court. For more on the series, visit the first post here.
CASE SUMMARY:
Locke v. Davey is a case brought by a college student who lost the opportunity to receive a "Washington Promise Scholarship" that he was otherwise eligible for after he declared a theology major from a church-affiliated college whose theology program was taught from a religious perspective.
Washington's Promise Scholarship program provides a two-year scholarship to any accredited college or university within the State for all students who satisfy academic, income, and enrollment criteria. Recipients must satisfy one of three academic criteria: graduation in the top 15% of his or her graduating class, a score of 1200 or higher on the SAT I, or a score of 27 or higher on the ACT. Under the income requirement, the recipient's family income must be less than 135% of the state's median income. Finally, there are three enrollment requirements: students must enroll in an eligible post-secondary institution located in Washington, defined as public institutions authorized by the legislature and private institutions with national accreditation; the student must be enrolled at least half-time; and the student may not use the scholarship to pursue a theology degree.
Davey satisfied each criterion for the scholarship and enrolled at Northwest College, an accredited institution affiliated with the Assemblies of God, whose mission is to provide "in a distinctly evangelical Christian environment, quality education to prepare students for service and leadership." Davey engaged in a course of study to prepare him for a career as a minister, declaring a double major in "Pastoral Ministries" (theology) and business administration. In October 1999, he met with Northwest's financial aid officer, who informed him that he would lose his eligibility for the scholarship if he pursued a degree in Pastoral Ministries. Davey considered changing his major to undeclared until his scholarship funds were exhausted, but instead decided that his religious beliefs required him to be truthful and declined to change his major. As a result of his decision, Davey was unable to receive the scholarship, which was worth $1,125 in his freshman year and $1,542 his sophomore year. Davey worked during the school year to make up for the lost scholarship funds.
Davey sued, claiming the scholarship program was unconstitutional both facially and as applied, as de jure discrimination in violation of the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment (as incorporated in the Fourteenth Amendment), and the Equal Protection Clause of the Fourteenth Amendment. He sought declaratory and injunctive relief, as well as damages for these alleged violations. The District Court granted summary judgment to the State and the Ninth Circuit, in a 2-1 panel decision, 299 F.3d 748 (2002), reversed, holding that Davey's free exercise rights were infringed. The majority opinion reasoned that because Davey was qualified for the scholarship under purely objective criteria, denial because of his decision to pursue a degree in theology violated the First Amendment's guarantee of religious neutrality in the extension of governmental benefits. Judge McKeown dissented, writing that the case presented neither a free exercise nor a free speech issue, as Washington was under no constitutional requirement to subsidize the exercise of constitutional rights (citing the abortion funding line of cases).
On appeal to the Supreme Court, Washington argues that its decision not to fund Davey's pursuit of a theology degree did not infringe on his free exercise rights because its policy did not affect his right to seek the degree. More tenuously, Washington argues that it did not condition the receipt of the Promise Scholarship on the relinquishment of a constitutional right, as Davey was ostensibly free to pursue a theology degree outside the Promise Scholarship program by enrolling at two universities and using the scholarship funds for the pursuit of his business degree. This argument is in part premised on a statute that states: "No aid shall be awarded to any person who ever plans to become a minister." Wash. Rev. Code § 28B.10.814. In support of this contention, Washington cites cases finding no constitutional violation for the denial of government funds in the areas of abortion, see Rust v. Sullivan, 500 U.S. 173 (1991); Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977), and the denial of tax exempt status to nonprofit corporations engaged in lobbying, Regan v. Taxation With Representation, 461 U.S. 540 (1983).
Washington further argues that Davey's claim does not properly fall within the interests protected by the Free Exercise Clause and that because the law is neutral and of general applicability, it is not subject to strict scrutiny unless there is "proof of an intent to discriminate against particular religious beliefs or against religion in general," regardless of incidental impact (as it characterizes Davey's alleged injury). Bowen v. Roy, 476 U.S. 693, 707 (1986) (plurality opinion). Rather, Washington argues that a challenged requirement for governmental benefits is a reasonable means of promoting a legitimate public interest if the challenged provision is neutral and uniform in its application. See id. at 708. Washington argues that its constitutional prohibition on government funding of religious activities, Wash. Const. art. I, § 11 ("No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." (Blaine Amendment)), constitutes a legitimate public interest as "it seeks to avoid compelling support for the advancement of religious doctrines, the establishment of an official religion, and entanglement that accompanies the flow of public funds." Brief for Petitioner at 35 (citing Norwood v. Harrison, 413 U.S. 455 (1973)). The State claims these interests justify it in making a "perfectly permissible distinction between secular and religious instruction" in its distinguished treatment of theology programs taught from a religious perspective from those taught in a comparative manner. Id. at 39-40.
Washington also rebuts Davey's Free Speech challenge, arguing that the Promise Scholarship does not create a public forum that must be administered on a viewpoint neutral basis. The State cites the program's legislative history as evidence that the legislature sought to "strengthen the link between post-secondary education and K-12 education," by providing a means for low and middle income students to finance post-secondary education rather than to encourage a diversity of views from private speakers. Accordingly, Washington reasons that its Constitution does not drive private views from a public forum in violation of the First Amendment's Free Speech Clause.
Davey's primary argument is that the disqualification of theology majors violates the Free Exercise Clause of the First Amendment, as government may not "impose special disabilities on the basis of religious views or religious status." Employment Division v. Smith, 494 U.S. 872, 877 (1990). In its amicus brief supporting Respondent, the United States notes that the Establishment, Free Exercise, and Free Speech clauses of the First Amendment, along with the Equal Protection Clause of the Fourteenth Amendment, "overlap and reinforce one another in requiring the State to maintain a position of neutrality with respect to religion and forbidding discrimination on account of religious beliefs or practices." Brief of the United States as Amicus Curiae at 6. Davey claims that Washington's exclusion of only those students majoring in theology that is taught from a religious perspective operates as a "par excellence . . . 'religious gerrymander'" and is discriminatory on its face, thus violating the constitutional requirement with neutrality with respect to religion. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).
Davey argues, as the Ninth Circuit panel majority found, that Washington's policy is subject to strict scrutiny because of the imposition it places on religious practice. Id. at 579 ("[W]hen a law discriminates against religion as such . . . it automatically will fail strict scrutiny[.]") (Blackmun, J., joined by O'Connor, J., concurring in judgment). Despite this categorical language, Davey's argument proceeds through strict scrutiny analysis, asserting that compliance with the state constitution and protection of taxpayers' conscience are not compelling state interests, relying on the Supremacy Clause and past decisions. See, e.g., Board of Educ. v. Mergens, 496 U.S. 226, 248 (1990) (plurality opinion) (A policy that is nondiscriminatory "would in face avoid entanglement with religion" by removing religion as a factor in the state's administrative calculus.). Davey proceeds to argue that Washington fails to satisfy the second prong of the strict scrutiny analysis because it is not narrowly tailored to the asserted state interests. This argument focuses Davey's ability to use the scholarship funds to attend the same class for the same purpose, so long as he had not declared a theology major and his comparative inability to use the scholarship funds for any secular purpose, such as books, clothing, housing, or his business courses.
Davey's other arguments, which receive much less attention in his brief, assert that the scholarship program's restriction constitutes a viewpoint-based restriction on private religious speech (here speech is defined as pursuing the course of study of his choice), that the Establishment Clause's neutrality requirement is violated by official state hostility toward religion, and that the program would likewise fail strict scrutiny analysis under the Equal Protection Clause, which recognizes religion as an "inherently suspect distinction." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
- summary by Matt
MATT'S VIEW: (try to keep it shorter next time -Ed.)
I voted to affirm the Ninth Circuit's decision. I found two past Supreme Court decisions, McDaniel v. Paty, 435 U.S. 618, 632 (1978) (striking down a Tennessee law prohibiting clergypersons from sitting as delegates at the State constitutional convention as "impos[ing] a unique disability upon those who exhibit a defined level of intensity of involvement in protected religious activity") (Brennan, J., concurring) and Widmar v. Vincent*, 454 U.S. 263 (1981) (rejecting Missouri's claim that its constitution prohibited granting benefits to religious organizations on the same terms as secular entities, reasoning that imposition of a religion-based category of exclusion "would risk greater entanglement") particularly instructive. Although Washington's argument that the Free Exercise Clause is limited to actual religious practice makes a good deal of sense, these decisions, particularly McDaniel, indicate that constitutional protection extends beyond specific religious practice to prohibit the denial of civic rights based solely on participation in non-secular entities.
The Washington Promise Scholarship program operates as an entitlement program to those students who satisfy objective educational and income criteria. Davey was denied funds he was otherwise entitled to solely because he chose to major in theology taught from a particular religious perspective in preparation for a career of ministry. I agree with the Ninth Circuit that denial of a benefit solely on the basis of religious considerations is highly suspect and therefore subject to strict scrutiny under both the Free Exercise and Equal Protection Clauses.
I believe that Washington lacks a compelling governmental interest in denying the benefits of its Promise Scholarship program solely to those declaring a major in theology taught from a religious perspective because the provision is easily avoidable by those with less scruples than Davey. Here state aid was going to numerous students at Northwest College, who were receiving an evangelically oriented education in every respect, but had not declared a major in Pastoral Studies. Similarly, those intending to major in Pastoral Studies could receive scholarship funds merely by not declaring the major until after their sophomore year, even if they took courses identical to Davey's during that time. Undergraduate students at other institutions, private and public, intending to become ministers could embark on coursework in preparation for that goal, so long as their declared major did not overtly advocate one particular religious viewpoint. Finally, Washington denied Davey the opportunity to trace his funds to secular educational purposes, such as housing, books, board, or classes outside his Pastoral Studies major, but absurdly claimed that he would be eligible to receive the funds by enrolling at two institutions. These considerations also demonstrate that Washington's provision is not narrowly tailored to serve its purported interest. The widespread availability of public scholarship funds for religious instruction outside private institutions demonstrates that Washington's purported interest in the protection of taxpayer conscience fails to qualify as compelling.
I am tempted to strike down Washington's Blaine Amendment on the ground that the U.S. Constitution requires at a minimum strict neutrality, if not benevolent neutrality, toward religion to resolve the internal tension between the Establishment and Free Exercise Clauses. As such, attempts by States to strengthen their respective versions of the Establishment Clause through amendments to their state constitutions operate to alter this fundamental calculus imposed by the First Amendment, violating the Supremacy Clause. This argument is also supported by the Supreme Court's decision in Romer v. Evans, 517 U.S. 620 (1996), which held that a state constitutional provisions imposing a burden on a classification of individuals identified as a discreet and insular minority as a result of animus violates the Equal Protection Clause. The odious nature of these Amendments and the bigoted, nativist sentiments of the Congress' that imposed them on the States, in Washington's case as a requirement for admission to the Union, certainly bears a striking resemblance to the factors identified as critical in Romer. See Kyle Duncan, Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003) (Part II is particularly instructive of the history of these Amendments). Ultimately, however, I believe such a decision would extend too far beyond the facts in controversy in this case. Davey does not challenge the facial validity of Article I, section 11 of the Washington Constitution and questions its legitimacy only in passing. A critical analysis of these provisions will have to wait for another day, likely within the context of another school voucher case. See Ira C. Lupu & Robert W. Tuttle, Zelman?s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917 (2003).
*Widmar was litigated at the Supreme Court by the father of one of my best friends, who worked in the Counsel?s office at the University of Missouri at the time. He lost, but has managed to move on.
SCOTT'S VIEW:
I also voted to affirm; however, I disagree with pretty much everything Matt said above. Davey has no fundamental right to a college scholarship, therefore the government is not infringing anything. They're not even taking anything away -- just not giving him a benefit. True, they're not giving him a benefit because he wants to use it to become a minister, but that's not a fundamental right either. Put simply, there is nothing stopping Davey from studying theology and becoming a minister; he just can't use Washington taxpayers' money to do so. He can still exercise his religion to whatever extent possible. The problem here is that Washington shouldn't have to affirmatively fund his exercising -- that would be an establishment problem. Moreover, the Supreme Court's line of abortion cases makes it clear that it is constitutionally permissible for a state to refuse to fund something that they disagree with as long as they don't burden the ability to engage in the unfunded practice (there, getting an abortion - a constitutional right; here, pursuing a degree in theology, which isn't a fundamental right as I just discussed).
All of that makes it sound like I should vote to reverse, for all of the reasons stated in Judge McKeown's well-scribed dissent from the Ninth Circuit's opinion. And I would've, except that I think the statute at issue here sucks and should be struck down and re-written. The problem is that it is underinclusive. The state defines "eligible student" as someone who:
The reason for the theology exclusion is ostensibly to not run afoul of the Washington State constitution's prohibition on the use of public money for "religious worship, exercise or instruction, or the support of any religious establishment." Because students can still receive "religious instruction" under the current wording of the law, I think it is incompatible with this clause. The state should have to rewrite it so that no scholarship recipient could get instruction in religion.
Granted, this presents a larger problem, i.e. the state has created a program that facially discriminates on the basis of religion. Such programs would face strict scrutiny under any analysis, but I'm thinking specifically in an equal protection context. The compelling government interest here would be ensuring compatibility with their own state constitution, which is perfectly legitimate. All of that rests on an assumption that the "Blaine Amendment," imposing a greater wall between church and state than the U.S. Constitution, is constitutional -- an assumption that Matt wholeheartedly disagrees with (and he may be right). Until these state provisions start falling, however, Washington should still be able to refuse to affirmatively fund religious education; they just have to make sure they don't let anybody slip through.
CLASS RESULT:
The class voted 8-6 to reverse the ruling of the Ninth Circuit, but was deadlocked on what the actual Supreme Court would do, splitting 7-7 on the eventual outcome.
FURTHER READING:
Briefs and stuff from Findlaw
Charles Lane's article from the Post
More resources from the Pew Forum
Check out the discussions going on at BTQ here and here
Professor Volokh's take
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
NEXT WEEK:
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist. - a case dealing with whether a locality in California violates the Clean Air Act by requiring fleet owners to purchase cleaner vehicles
CASE SUMMARY:
Locke v. Davey is a case brought by a college student who lost the opportunity to receive a "Washington Promise Scholarship" that he was otherwise eligible for after he declared a theology major from a church-affiliated college whose theology program was taught from a religious perspective.
Washington's Promise Scholarship program provides a two-year scholarship to any accredited college or university within the State for all students who satisfy academic, income, and enrollment criteria. Recipients must satisfy one of three academic criteria: graduation in the top 15% of his or her graduating class, a score of 1200 or higher on the SAT I, or a score of 27 or higher on the ACT. Under the income requirement, the recipient's family income must be less than 135% of the state's median income. Finally, there are three enrollment requirements: students must enroll in an eligible post-secondary institution located in Washington, defined as public institutions authorized by the legislature and private institutions with national accreditation; the student must be enrolled at least half-time; and the student may not use the scholarship to pursue a theology degree.
Davey satisfied each criterion for the scholarship and enrolled at Northwest College, an accredited institution affiliated with the Assemblies of God, whose mission is to provide "in a distinctly evangelical Christian environment, quality education to prepare students for service and leadership." Davey engaged in a course of study to prepare him for a career as a minister, declaring a double major in "Pastoral Ministries" (theology) and business administration. In October 1999, he met with Northwest's financial aid officer, who informed him that he would lose his eligibility for the scholarship if he pursued a degree in Pastoral Ministries. Davey considered changing his major to undeclared until his scholarship funds were exhausted, but instead decided that his religious beliefs required him to be truthful and declined to change his major. As a result of his decision, Davey was unable to receive the scholarship, which was worth $1,125 in his freshman year and $1,542 his sophomore year. Davey worked during the school year to make up for the lost scholarship funds.
Davey sued, claiming the scholarship program was unconstitutional both facially and as applied, as de jure discrimination in violation of the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment (as incorporated in the Fourteenth Amendment), and the Equal Protection Clause of the Fourteenth Amendment. He sought declaratory and injunctive relief, as well as damages for these alleged violations. The District Court granted summary judgment to the State and the Ninth Circuit, in a 2-1 panel decision, 299 F.3d 748 (2002), reversed, holding that Davey's free exercise rights were infringed. The majority opinion reasoned that because Davey was qualified for the scholarship under purely objective criteria, denial because of his decision to pursue a degree in theology violated the First Amendment's guarantee of religious neutrality in the extension of governmental benefits. Judge McKeown dissented, writing that the case presented neither a free exercise nor a free speech issue, as Washington was under no constitutional requirement to subsidize the exercise of constitutional rights (citing the abortion funding line of cases).
On appeal to the Supreme Court, Washington argues that its decision not to fund Davey's pursuit of a theology degree did not infringe on his free exercise rights because its policy did not affect his right to seek the degree. More tenuously, Washington argues that it did not condition the receipt of the Promise Scholarship on the relinquishment of a constitutional right, as Davey was ostensibly free to pursue a theology degree outside the Promise Scholarship program by enrolling at two universities and using the scholarship funds for the pursuit of his business degree. This argument is in part premised on a statute that states: "No aid shall be awarded to any person who ever plans to become a minister." Wash. Rev. Code § 28B.10.814. In support of this contention, Washington cites cases finding no constitutional violation for the denial of government funds in the areas of abortion, see Rust v. Sullivan, 500 U.S. 173 (1991); Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977), and the denial of tax exempt status to nonprofit corporations engaged in lobbying, Regan v. Taxation With Representation, 461 U.S. 540 (1983).
Washington further argues that Davey's claim does not properly fall within the interests protected by the Free Exercise Clause and that because the law is neutral and of general applicability, it is not subject to strict scrutiny unless there is "proof of an intent to discriminate against particular religious beliefs or against religion in general," regardless of incidental impact (as it characterizes Davey's alleged injury). Bowen v. Roy, 476 U.S. 693, 707 (1986) (plurality opinion). Rather, Washington argues that a challenged requirement for governmental benefits is a reasonable means of promoting a legitimate public interest if the challenged provision is neutral and uniform in its application. See id. at 708. Washington argues that its constitutional prohibition on government funding of religious activities, Wash. Const. art. I, § 11 ("No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." (Blaine Amendment)), constitutes a legitimate public interest as "it seeks to avoid compelling support for the advancement of religious doctrines, the establishment of an official religion, and entanglement that accompanies the flow of public funds." Brief for Petitioner at 35 (citing Norwood v. Harrison, 413 U.S. 455 (1973)). The State claims these interests justify it in making a "perfectly permissible distinction between secular and religious instruction" in its distinguished treatment of theology programs taught from a religious perspective from those taught in a comparative manner. Id. at 39-40.
Washington also rebuts Davey's Free Speech challenge, arguing that the Promise Scholarship does not create a public forum that must be administered on a viewpoint neutral basis. The State cites the program's legislative history as evidence that the legislature sought to "strengthen the link between post-secondary education and K-12 education," by providing a means for low and middle income students to finance post-secondary education rather than to encourage a diversity of views from private speakers. Accordingly, Washington reasons that its Constitution does not drive private views from a public forum in violation of the First Amendment's Free Speech Clause.
Davey's primary argument is that the disqualification of theology majors violates the Free Exercise Clause of the First Amendment, as government may not "impose special disabilities on the basis of religious views or religious status." Employment Division v. Smith, 494 U.S. 872, 877 (1990). In its amicus brief supporting Respondent, the United States notes that the Establishment, Free Exercise, and Free Speech clauses of the First Amendment, along with the Equal Protection Clause of the Fourteenth Amendment, "overlap and reinforce one another in requiring the State to maintain a position of neutrality with respect to religion and forbidding discrimination on account of religious beliefs or practices." Brief of the United States as Amicus Curiae at 6. Davey claims that Washington's exclusion of only those students majoring in theology that is taught from a religious perspective operates as a "par excellence . . . 'religious gerrymander'" and is discriminatory on its face, thus violating the constitutional requirement with neutrality with respect to religion. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993).
Davey argues, as the Ninth Circuit panel majority found, that Washington's policy is subject to strict scrutiny because of the imposition it places on religious practice. Id. at 579 ("[W]hen a law discriminates against religion as such . . . it automatically will fail strict scrutiny[.]") (Blackmun, J., joined by O'Connor, J., concurring in judgment). Despite this categorical language, Davey's argument proceeds through strict scrutiny analysis, asserting that compliance with the state constitution and protection of taxpayers' conscience are not compelling state interests, relying on the Supremacy Clause and past decisions. See, e.g., Board of Educ. v. Mergens, 496 U.S. 226, 248 (1990) (plurality opinion) (A policy that is nondiscriminatory "would in face avoid entanglement with religion" by removing religion as a factor in the state's administrative calculus.). Davey proceeds to argue that Washington fails to satisfy the second prong of the strict scrutiny analysis because it is not narrowly tailored to the asserted state interests. This argument focuses Davey's ability to use the scholarship funds to attend the same class for the same purpose, so long as he had not declared a theology major and his comparative inability to use the scholarship funds for any secular purpose, such as books, clothing, housing, or his business courses.
Davey's other arguments, which receive much less attention in his brief, assert that the scholarship program's restriction constitutes a viewpoint-based restriction on private religious speech (here speech is defined as pursuing the course of study of his choice), that the Establishment Clause's neutrality requirement is violated by official state hostility toward religion, and that the program would likewise fail strict scrutiny analysis under the Equal Protection Clause, which recognizes religion as an "inherently suspect distinction." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
- summary by Matt
MATT'S VIEW: (try to keep it shorter next time -Ed.)
I voted to affirm the Ninth Circuit's decision. I found two past Supreme Court decisions, McDaniel v. Paty, 435 U.S. 618, 632 (1978) (striking down a Tennessee law prohibiting clergypersons from sitting as delegates at the State constitutional convention as "impos[ing] a unique disability upon those who exhibit a defined level of intensity of involvement in protected religious activity") (Brennan, J., concurring) and Widmar v. Vincent*, 454 U.S. 263 (1981) (rejecting Missouri's claim that its constitution prohibited granting benefits to religious organizations on the same terms as secular entities, reasoning that imposition of a religion-based category of exclusion "would risk greater entanglement") particularly instructive. Although Washington's argument that the Free Exercise Clause is limited to actual religious practice makes a good deal of sense, these decisions, particularly McDaniel, indicate that constitutional protection extends beyond specific religious practice to prohibit the denial of civic rights based solely on participation in non-secular entities.
The Washington Promise Scholarship program operates as an entitlement program to those students who satisfy objective educational and income criteria. Davey was denied funds he was otherwise entitled to solely because he chose to major in theology taught from a particular religious perspective in preparation for a career of ministry. I agree with the Ninth Circuit that denial of a benefit solely on the basis of religious considerations is highly suspect and therefore subject to strict scrutiny under both the Free Exercise and Equal Protection Clauses.
I believe that Washington lacks a compelling governmental interest in denying the benefits of its Promise Scholarship program solely to those declaring a major in theology taught from a religious perspective because the provision is easily avoidable by those with less scruples than Davey. Here state aid was going to numerous students at Northwest College, who were receiving an evangelically oriented education in every respect, but had not declared a major in Pastoral Studies. Similarly, those intending to major in Pastoral Studies could receive scholarship funds merely by not declaring the major until after their sophomore year, even if they took courses identical to Davey's during that time. Undergraduate students at other institutions, private and public, intending to become ministers could embark on coursework in preparation for that goal, so long as their declared major did not overtly advocate one particular religious viewpoint. Finally, Washington denied Davey the opportunity to trace his funds to secular educational purposes, such as housing, books, board, or classes outside his Pastoral Studies major, but absurdly claimed that he would be eligible to receive the funds by enrolling at two institutions. These considerations also demonstrate that Washington's provision is not narrowly tailored to serve its purported interest. The widespread availability of public scholarship funds for religious instruction outside private institutions demonstrates that Washington's purported interest in the protection of taxpayer conscience fails to qualify as compelling.
I am tempted to strike down Washington's Blaine Amendment on the ground that the U.S. Constitution requires at a minimum strict neutrality, if not benevolent neutrality, toward religion to resolve the internal tension between the Establishment and Free Exercise Clauses. As such, attempts by States to strengthen their respective versions of the Establishment Clause through amendments to their state constitutions operate to alter this fundamental calculus imposed by the First Amendment, violating the Supremacy Clause. This argument is also supported by the Supreme Court's decision in Romer v. Evans, 517 U.S. 620 (1996), which held that a state constitutional provisions imposing a burden on a classification of individuals identified as a discreet and insular minority as a result of animus violates the Equal Protection Clause. The odious nature of these Amendments and the bigoted, nativist sentiments of the Congress' that imposed them on the States, in Washington's case as a requirement for admission to the Union, certainly bears a striking resemblance to the factors identified as critical in Romer. See Kyle Duncan, Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003) (Part II is particularly instructive of the history of these Amendments). Ultimately, however, I believe such a decision would extend too far beyond the facts in controversy in this case. Davey does not challenge the facial validity of Article I, section 11 of the Washington Constitution and questions its legitimacy only in passing. A critical analysis of these provisions will have to wait for another day, likely within the context of another school voucher case. See Ira C. Lupu & Robert W. Tuttle, Zelman?s Future: Vouchers, Sectarian Providers, and the Next Round of Constitutional Battles, 78 Notre Dame L. Rev. 917 (2003).
*Widmar was litigated at the Supreme Court by the father of one of my best friends, who worked in the Counsel?s office at the University of Missouri at the time. He lost, but has managed to move on.
SCOTT'S VIEW:
I also voted to affirm; however, I disagree with pretty much everything Matt said above. Davey has no fundamental right to a college scholarship, therefore the government is not infringing anything. They're not even taking anything away -- just not giving him a benefit. True, they're not giving him a benefit because he wants to use it to become a minister, but that's not a fundamental right either. Put simply, there is nothing stopping Davey from studying theology and becoming a minister; he just can't use Washington taxpayers' money to do so. He can still exercise his religion to whatever extent possible. The problem here is that Washington shouldn't have to affirmatively fund his exercising -- that would be an establishment problem. Moreover, the Supreme Court's line of abortion cases makes it clear that it is constitutionally permissible for a state to refuse to fund something that they disagree with as long as they don't burden the ability to engage in the unfunded practice (there, getting an abortion - a constitutional right; here, pursuing a degree in theology, which isn't a fundamental right as I just discussed).
All of that makes it sound like I should vote to reverse, for all of the reasons stated in Judge McKeown's well-scribed dissent from the Ninth Circuit's opinion. And I would've, except that I think the statute at issue here sucks and should be struck down and re-written. The problem is that it is underinclusive. The state defines "eligible student" as someone who:
[meets the academic and income requirements and]The result is that a student can pursue a degree in Religious Studies or any other similar religious major that isn't "theology" and still receive a scholarship. More troubling, a student could theoretically take every single class required to complete a "theology" degree while majoring in something else, and still receive a scholarship, even at Northwest.
...
(f) Is not pursuing a degree in theology.
The reason for the theology exclusion is ostensibly to not run afoul of the Washington State constitution's prohibition on the use of public money for "religious worship, exercise or instruction, or the support of any religious establishment." Because students can still receive "religious instruction" under the current wording of the law, I think it is incompatible with this clause. The state should have to rewrite it so that no scholarship recipient could get instruction in religion.
Granted, this presents a larger problem, i.e. the state has created a program that facially discriminates on the basis of religion. Such programs would face strict scrutiny under any analysis, but I'm thinking specifically in an equal protection context. The compelling government interest here would be ensuring compatibility with their own state constitution, which is perfectly legitimate. All of that rests on an assumption that the "Blaine Amendment," imposing a greater wall between church and state than the U.S. Constitution, is constitutional -- an assumption that Matt wholeheartedly disagrees with (and he may be right). Until these state provisions start falling, however, Washington should still be able to refuse to affirmatively fund religious education; they just have to make sure they don't let anybody slip through.
CLASS RESULT:
The class voted 8-6 to reverse the ruling of the Ninth Circuit, but was deadlocked on what the actual Supreme Court would do, splitting 7-7 on the eventual outcome.
FURTHER READING:
Briefs and stuff from Findlaw
Charles Lane's article from the Post
More resources from the Pew Forum
Check out the discussions going on at BTQ here and here
Professor Volokh's take
PREVIOUS CASES:
Tennessee v. Lane
Missouri v. Seibert
NEXT WEEK:
Engine Manufacturers Assoc. v. South Coast Air Quality Mgmt. Dist. - a case dealing with whether a locality in California violates the Clean Air Act by requiring fleet owners to purchase cleaner vehicles
Wednesday, February 04, 2004
Law: Supreme Court Roundup – Week Two: Missouri v. Seibert
This is the second in a series of weekly posts discussing cases the Supreme Court will be deciding during the current term. For more about the series, and to read last week’s case review (Tennessee v. Lane), click here.
CASE SUMMARY:
Missouri v. Seibert is one of four cases the Court agreed to hear this term dealing with Miranda v. Arizona and police interrogation. The question presented in this case is whether a confession, obtained after the proper administration of Miranda warnings, should nonetheless be excluded from evidence because the confession was based on a previous, unwarned confession, acquired after the police deliberately withheld Miranda warnings.
Patrice Seibert’s 12-year-old son Jonathan died in his sleep on February 12, 1997. He was afflicted with cerebral palsy. Patrice, fearing that she would be accused of neglect (Jonathan had sores on his body), developed a plan to burn down her trailer home to cover up his death. It was decided that Donald Rector, a mentally challenged 17-year-old who lived with the Seiberts, should also be left in the trailer so that it would not appear that Jonathan was left alone. Darian Seibert, the oldest of Patrice’s sons, and his friend Derrick, hit Donald in the head and set the fire that burned down the trailer. Darian was severely burned in the process.
The police apprehended Patrice from Darian’s hospital room at 3:00 in the morning on February 17. After placing Patrice in an interview room for 15-20 minutes, Officer Hanrahan, following a police method he had learned from a national training institute, began to question her about the events without issuing Miranda warnings. After getting Patrice to admit that she knew Donald was supposed to die in the fire, Hanrahan called for a 20-minute break. When he returned, he turned on a tape recorder, read Patrice the proper warnings, and got her to sign a waiver form. After reminding Patrice of what she had said during the previous conversation, Hanrahan obtained a second admission, same in substance to the first. The jury at her trial heard the tape recording of the second confession and convicted Patrice Seibert of second-degree murder.
The Supreme Court of Missouri reversed her conviction and remanded the case for a new trial. The court reviewed the purposes of the Miranda rule and concluded that in cases such as this, both confessions should be excluded from use at trial. The court stated that “[a]n intentional violation of Miranda shifts the focus from the goal of gainingtrustworthy evidence…to the goal of deterring improper police conduct.” The Missouri court focused on the differences between an unintentional, accidental failure to provide Miranda warnings and a deliberate, methodical plan to not provide them. The former case had already been squarely decided by the Supreme Court in Oregon v. Elstad, 470 U.S. 298 (1985), in which the Court held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” The Missouri court determined that the intentional nature of Hanrahan’s failure to warn was enough to bring this case outside of Elstad. Hanrahan “intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights.” This, the court believed, was an improper tactic that needed to be curtailed: “Were police able to use this ‘end run’ around Miranda to secure the all-important ‘breakthrough’ admission, the requirement of a warning would be meaningless.”
The State of Missouri appealed the case to the United States Supreme Court. The Petitioner argues that Elstad is still applicable, and that there is no practical difference between an intentional failure to provide Miranda warnings and an accidental failure to do so. Inquiring into the subjective intent of the police questioner, Petitioner asserts, would create an unworkable test. Moreover, according to Missouri, the Fifth Amendment is an evidentiary rule that deals only with the admissibility of evidence at trial; its purpose is not to micro-manage the conduct of police. Even if that was the purpose of the amendment – and of Miranda – exclusion of the original, unwarned confession is enough of a deterrent. Petitioner believes that the standard is, and should continue to be, that unless the second statement is the result of “deliberately coercive or improper tactics,” it should be admissible.
Seibert disagrees, asserting that even under that standard, deliberately circumventing the safeguards of Miranda is itself an improper tactic. Respondent argues that Miranda warnings are constitutionally required (citing the recent Supreme Court opinion in Dickerson), not discretionary tools for law enforcement. Respondent states that exclusion of a statement resulting from such a violation is the only way to ensure that police officers to do not ignore the constitutional command. Seibert argues that a “totality of the circumstances” test should be used to determine whether the circumstances of the interrogation warrant exclusion of the second, unwarned statement. Borrowing from 4th Amendment jurisprudence, Seibert asks the Court to adopt the “attenuation” test, which basically states that the second confession should only be allowed into evidence if it is sufficiently attenuated from the first so as to show that the initial unwarned statement was not exploited to obtain the second.
- summary by Scott
SCOTT’S VIEW:
I voted to reverse the Missouri Supreme Court. Although this was another tough case for me, I believe that Elstad, which is still good law, is controlling in this case. I simply could not see any difference between intentional and inadvertent failure to provide Miranda warnings, and thus I agreed with Petitioner that looking at intent would create an unreasonable burden on reviewing courts. Moreover, I see no reason to apply the so-called “fruit of the poisonous tree” analysis here. That doctrine (mainly in the 4th amendment context, e.g., warrantless searches) essentially says that the government should not be allowed to benefit by using evidence obtained as a result of a constitutional violation. Here, there is no constitutional violation: the 5th amendment protection against self-incrimination only attaches at trial; failing to provide Miranda warnings does not constitute a violation of one’s rights. See Chavez v. Martinez, 123 S. Ct. 1994 (2003) (plurality opinion holding that § 1983 damages claims – for violations of constitutional rights by government actors – are not available for failure to administer Miranda warnings). Put simply, as Petitioner points out, “when there is no underlying violation of a constitutional right, there is no ‘poisonous tree.’”
I predict the actual Supreme Court will also reverse.
MATT’S VIEW:
I also voted to reverse the decision of the Missouri Supreme Court. Although I believe the constitutional basis for Miranda is shaky at best, the Supreme Court’s recent statement in Dickerson that Miranda is a constitutional rule raises questions as to the continuing validity of numerous exceptions the Court carved in Miranda, notably Elstad, on the premise that Miranda was a prophylactic device protecting 5th Amendment rights rather than a constitutional rule. Working within that context, I interpreted Dickerson as affirming the “essential holding” of Miranda, incorporating all subsequent exceptions, in a similar, albeit illogical, manner that the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed Roe v. Wade. I reached this decision as a mechanism for acknowledging the newfound constitutional basis of Miranda while at the same time salvaging the numerous exceptions that are necessary to make Miranda workable.
Proceeding from the viewpoint that Elstad is still good law, I concluded that Respondent’s argument for distinguishing intentional and unintentional police conduct was untenable. I would use the Edwards v. Arizona line of cases (relating to an suspect’s invocation of the Miranda right to counsel) as a means to determine whether the initial, un-Mirandized, confession was voluntary. Here, although Respondent infers that the circumstances of Mrs. Seibert’s arrest and initial interrogation were not voluntary and that the first confession was coerced, there is little evidence in the record of improper police procedures or tactics.
Petitioner’s Reply Brief, which first characterized the factual circumstances of the evening, indicates that Respondent’s counsel was playing fast and loose with the facts. Police arrested the Defendant apparently as soon as possible. She was taken from the hospital of her injured son because of fear that she might make an attempt on his life, a fear that is legitimized by the fact that he was the primary witness against her. She was placed in the interrogation room by herself for approximately 20 minutes and then gently questioned for 30-40 minutes before confessing. These circumstances do not indicate coercion on the part of police sufficient to exclude the second confession.
I also think the Supreme Court will reverse.
CLASS RESULT:
The class voted 9-6 to affirm the ruling of the Missouri Supreme Court, many student having been swayed by the evidence of widespread police practice of questioning “outside Miranda” – an improper tactic they felt needed to be curtailed, at least if Miranda was to have any continuing value.
The class believed (by a vote of 12-3), however, that the actual Supreme Court would reverse. It was not clear whether this was based on any particular doctrinal reason, or if the class simply thinks there are too many conservative law and order types on the Court.
NEXT WEEK:
Locke v. Davey – the church-state case dealing with a state’s refusal to provide scholarship money to a student wishing to study theology
CASE SUMMARY:
Missouri v. Seibert is one of four cases the Court agreed to hear this term dealing with Miranda v. Arizona and police interrogation. The question presented in this case is whether a confession, obtained after the proper administration of Miranda warnings, should nonetheless be excluded from evidence because the confession was based on a previous, unwarned confession, acquired after the police deliberately withheld Miranda warnings.
Patrice Seibert’s 12-year-old son Jonathan died in his sleep on February 12, 1997. He was afflicted with cerebral palsy. Patrice, fearing that she would be accused of neglect (Jonathan had sores on his body), developed a plan to burn down her trailer home to cover up his death. It was decided that Donald Rector, a mentally challenged 17-year-old who lived with the Seiberts, should also be left in the trailer so that it would not appear that Jonathan was left alone. Darian Seibert, the oldest of Patrice’s sons, and his friend Derrick, hit Donald in the head and set the fire that burned down the trailer. Darian was severely burned in the process.
The police apprehended Patrice from Darian’s hospital room at 3:00 in the morning on February 17. After placing Patrice in an interview room for 15-20 minutes, Officer Hanrahan, following a police method he had learned from a national training institute, began to question her about the events without issuing Miranda warnings. After getting Patrice to admit that she knew Donald was supposed to die in the fire, Hanrahan called for a 20-minute break. When he returned, he turned on a tape recorder, read Patrice the proper warnings, and got her to sign a waiver form. After reminding Patrice of what she had said during the previous conversation, Hanrahan obtained a second admission, same in substance to the first. The jury at her trial heard the tape recording of the second confession and convicted Patrice Seibert of second-degree murder.
The Supreme Court of Missouri reversed her conviction and remanded the case for a new trial. The court reviewed the purposes of the Miranda rule and concluded that in cases such as this, both confessions should be excluded from use at trial. The court stated that “[a]n intentional violation of Miranda shifts the focus from the goal of gainingtrustworthy evidence…to the goal of deterring improper police conduct.” The Missouri court focused on the differences between an unintentional, accidental failure to provide Miranda warnings and a deliberate, methodical plan to not provide them. The former case had already been squarely decided by the Supreme Court in Oregon v. Elstad, 470 U.S. 298 (1985), in which the Court held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” The Missouri court determined that the intentional nature of Hanrahan’s failure to warn was enough to bring this case outside of Elstad. Hanrahan “intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights.” This, the court believed, was an improper tactic that needed to be curtailed: “Were police able to use this ‘end run’ around Miranda to secure the all-important ‘breakthrough’ admission, the requirement of a warning would be meaningless.”
The State of Missouri appealed the case to the United States Supreme Court. The Petitioner argues that Elstad is still applicable, and that there is no practical difference between an intentional failure to provide Miranda warnings and an accidental failure to do so. Inquiring into the subjective intent of the police questioner, Petitioner asserts, would create an unworkable test. Moreover, according to Missouri, the Fifth Amendment is an evidentiary rule that deals only with the admissibility of evidence at trial; its purpose is not to micro-manage the conduct of police. Even if that was the purpose of the amendment – and of Miranda – exclusion of the original, unwarned confession is enough of a deterrent. Petitioner believes that the standard is, and should continue to be, that unless the second statement is the result of “deliberately coercive or improper tactics,” it should be admissible.
Seibert disagrees, asserting that even under that standard, deliberately circumventing the safeguards of Miranda is itself an improper tactic. Respondent argues that Miranda warnings are constitutionally required (citing the recent Supreme Court opinion in Dickerson), not discretionary tools for law enforcement. Respondent states that exclusion of a statement resulting from such a violation is the only way to ensure that police officers to do not ignore the constitutional command. Seibert argues that a “totality of the circumstances” test should be used to determine whether the circumstances of the interrogation warrant exclusion of the second, unwarned statement. Borrowing from 4th Amendment jurisprudence, Seibert asks the Court to adopt the “attenuation” test, which basically states that the second confession should only be allowed into evidence if it is sufficiently attenuated from the first so as to show that the initial unwarned statement was not exploited to obtain the second.
- summary by Scott
SCOTT’S VIEW:
I voted to reverse the Missouri Supreme Court. Although this was another tough case for me, I believe that Elstad, which is still good law, is controlling in this case. I simply could not see any difference between intentional and inadvertent failure to provide Miranda warnings, and thus I agreed with Petitioner that looking at intent would create an unreasonable burden on reviewing courts. Moreover, I see no reason to apply the so-called “fruit of the poisonous tree” analysis here. That doctrine (mainly in the 4th amendment context, e.g., warrantless searches) essentially says that the government should not be allowed to benefit by using evidence obtained as a result of a constitutional violation. Here, there is no constitutional violation: the 5th amendment protection against self-incrimination only attaches at trial; failing to provide Miranda warnings does not constitute a violation of one’s rights. See Chavez v. Martinez, 123 S. Ct. 1994 (2003) (plurality opinion holding that § 1983 damages claims – for violations of constitutional rights by government actors – are not available for failure to administer Miranda warnings). Put simply, as Petitioner points out, “when there is no underlying violation of a constitutional right, there is no ‘poisonous tree.’”
I predict the actual Supreme Court will also reverse.
MATT’S VIEW:
I also voted to reverse the decision of the Missouri Supreme Court. Although I believe the constitutional basis for Miranda is shaky at best, the Supreme Court’s recent statement in Dickerson that Miranda is a constitutional rule raises questions as to the continuing validity of numerous exceptions the Court carved in Miranda, notably Elstad, on the premise that Miranda was a prophylactic device protecting 5th Amendment rights rather than a constitutional rule. Working within that context, I interpreted Dickerson as affirming the “essential holding” of Miranda, incorporating all subsequent exceptions, in a similar, albeit illogical, manner that the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey affirmed Roe v. Wade. I reached this decision as a mechanism for acknowledging the newfound constitutional basis of Miranda while at the same time salvaging the numerous exceptions that are necessary to make Miranda workable.
Proceeding from the viewpoint that Elstad is still good law, I concluded that Respondent’s argument for distinguishing intentional and unintentional police conduct was untenable. I would use the Edwards v. Arizona line of cases (relating to an suspect’s invocation of the Miranda right to counsel) as a means to determine whether the initial, un-Mirandized, confession was voluntary. Here, although Respondent infers that the circumstances of Mrs. Seibert’s arrest and initial interrogation were not voluntary and that the first confession was coerced, there is little evidence in the record of improper police procedures or tactics.
Petitioner’s Reply Brief, which first characterized the factual circumstances of the evening, indicates that Respondent’s counsel was playing fast and loose with the facts. Police arrested the Defendant apparently as soon as possible. She was taken from the hospital of her injured son because of fear that she might make an attempt on his life, a fear that is legitimized by the fact that he was the primary witness against her. She was placed in the interrogation room by herself for approximately 20 minutes and then gently questioned for 30-40 minutes before confessing. These circumstances do not indicate coercion on the part of police sufficient to exclude the second confession.
I also think the Supreme Court will reverse.
CLASS RESULT:
The class voted 9-6 to affirm the ruling of the Missouri Supreme Court, many student having been swayed by the evidence of widespread police practice of questioning “outside Miranda” – an improper tactic they felt needed to be curtailed, at least if Miranda was to have any continuing value.
The class believed (by a vote of 12-3), however, that the actual Supreme Court would reverse. It was not clear whether this was based on any particular doctrinal reason, or if the class simply thinks there are too many conservative law and order types on the Court.
NEXT WEEK:
Locke v. Davey – the church-state case dealing with a state’s refusal to provide scholarship money to a student wishing to study theology
Monday, January 26, 2004
Law: Supreme Court Roundup - Tennessee v. Lane
This post marks the beginning of what I believe will be an interesting and exciting addition to L-Cubed. Matt and I are both taking a class taught by Professor Jonathan Turley called "Constitutional Law and the Supreme Court." Each week the small class (14 students plus Turley) reads the briefs for a case pending before the Court this term and debates the merits. The class then votes how they would decide the case, and how they think the actual Supreme Court will vote. At the end of the semster, we will each have to draft an opinion for one of the cases we discussed. Matt and I decided that it would be fun and informative to share our experiences with you as we move along in the semester. Every Monday morning we will post a brief summary of the case and offer you our opinions. This week Matt wrote the summary for the Lane case, which appears below.
Case Summary:
Tennessee v. Lane is a case that arises under Title II of the Americans with Disabilities Act of 1990, 43 U.S.C. § 12132, which provides in relevant part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
Six named plaintiffs sued the State of Tennessee claiming that they were denied the opportunity to effectively participate in court proceedings because some of the State's courthouses were not physically accessible to individuals with disabilities. Lane, one of two plaintiffs named in the original complaint, was forced to crawl up a flight of stairs to attend a criminal proceeding where he was the defendant. At a second hearing, he refused to again crawl up the stairs and was arrested for not appearing after he refused to permit court employees to carry him up the stairs in his wheelchair. In later proceedings, his attorney ran between the second floor courtroom and his client, who was on the first floor, and another hearing was held in the first floor library. The second original plaintiff, Jones, claimed that she was unable to work as a court reporter in four Tennessee counties because the courthouses did not have an elevator to accommodate her paraplegia. The District Court rejected Tennessee's motion claiming that the State was immune from suit for money damages under the 11th Amendment. The Sixth Circuit affirmed an interlocutory appeal, holding that plaintiffs were seeking to vindicate their due process right of access to the courts in Tennessee and that, in this respect, Congress was permitted to abrogate state sovereign immunity under section 5 of the 14th Amendment, which permits Congress to implement legislation to enforce the substantive provisions of the 14th Amendment (here, the Due Process Clause). Tennessee then appealed to the Supreme Court.
For Congress to abrogate state sovereign immunity, Congress must "unequivocally express[] its intent to abrogate immunity" and it must have acted "pursuant to a valid exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). The issue before the Supreme Court is whether Congress had the power under section 5 of the 14th Amendment to abrogate Tennessee's 11th Amendment immunity. In order to be valid, legislation under section 5 must demonstrate a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
Plaintiffs claim that the ADA was proper legislation to enforce the Due Process Clause, as disabled individuals were being denied their fundamental right to participate in the judicial process as litigants, witnesses, jurors, and to observe proceedings as interested members of the public. They support their claim with reports commissioned by Congress before enactment of the ADA from the National Council on the Handicapped, which compiled a significant amount of anecdotal evidence of discrimination against the disabled.
Tennessee claims that there is no evidence of Congressional findings that discrimination against the disabled was state imposed, citing statements in the legislative history that the States were at the vanguard of protecting the rights of the disabled, in stark contrast to the rights of other minorities protected by federal civil rights laws. Similarly, Tennessee argues that there is nothing in the legislative record to suggest that Congress was acting to protect due process rights and that there is only scant evidence that the States were engaged in a pattern of violation of the fundamental rights of the disabled. Tennessee alternatively relies on the argument that Title II lacks the proportionality required by City of Boerne because its provisions in large part operate to prohibit constitutional conduct to the extent that it accomplishes a "substantive redefinition" of the States' obligations under the Fourteenth Amendment, as prohibited by Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 73 (2000).
- summary by Matt
Matt's View:
This was a tough decision for me, but I ultimately voted to reverse the decision of the Sixth Circuit, concluding that there is insufficient clarity in the legislative record to conclude that Congress implemented the ADA to enforce the Due Process Clause. Although the congressionally commissioned reports demonstrated a great amount of anecdotal evidence of discrimination against the disabled, there was scant evidence in the reports of state discrimination, which comports with statements in the record commending the states' leadership in safeguarding the rights of the disabled. From this muddled history, I was unable to conclude that there was congruence between the injury and the congressional remedy: abrogation of state immunity permitting suits against the state for monetary damages.
I concluded that there was no Due Process violation, as Tennessee would likely prevail upon the merits given the steps it took to remedy the situation (including installing an elevator in the courthouse Lane was in). Regarding Jones, the Constitution does not include a fundamental right to work in a particular profession, here as a court reporter. I was also concerned that permitting a suit for monetary damages against the States would result in an inappropriate transfer of scarce public resources to private plaintiffs when they could be much better spent making improvements to public buildings to ensure access to the disabled--particularly when injunctive relief to ADA plaintiffs is available under the doctrine emanating from Ex Parte Young.
I predicted that the Supreme Court would also reverse, by the same one vote margin that has frequently occurred in its recent federalism decisions.
Scott's View:
I voted to affirm. I was persuaded that access to the courts is a fundamental right that the states have infringed by continually refusing to accomodate disabled persons. Unlike Matt, I do not agree that the states are leaders in safeguarding rights. To the contrary, I think it's pretty clear that the states had dropped the ball with their own inadequate laws, making passage of the ADA necessary in the first place. Even though I don't place a lot of emphasis on congressional "findings," I think there was a wealth of evidence of due process violations compiled by hearing testimony and the various studies commissioned and relied upon by Congress.
It's clear that Congress unequivocally expressed their intent to abrogate the states' sovereign immunity. (I also found it telling that no state ever expressed their discontent with the ADA -- in fact, the ADA was endorsed at the time by the National Association of Attorneys General, and several states filed an amicus brief urging the Court to uphold the law.) What's left under the Seminole Tribe test is whether Congress had the power to do so. Here, I think Congress effected a proportional and congruent response to a serious due process (and equal protection) problem. The states don't have to do anything drastic; this is not a costly statute. Only "reasonable modifications" are necessary, and only for those who are "substantially impaired." Congress has the power to make damages a possibility, and it's a good thing that they did, since it's clear that DOJ enforcement actions and injunctions aren't enough to force states to comply. Moreover, the Court generally defers to Congress on how to craft reasonable prophylactic responses to difficulties.
The sovereign immunity of the several states is something that should not be pierced lightly. But here, where a significant portion of the citizenry has its fundamental rights infringed on a daily basis, the federal government has the right -- dare I say the duty -- to step in and protect the liberties it was created to protect.
I predicted that the Court would also affirm, by a 5-4 margin. I added that there was also a possibility that the Court may issue a narrow opinion, perhaps saying that damage suits are allowed, but only in extreme cases such as instances of intentional discrimination or animus.
Class Result:
The Class voted to reverse the Sixth Circuit's decision by an 8-7 vote, but concluded that the Supreme Court would likely affirm, also by an 8-7 vote. I was pleased to find that the class was pretty evenly divided ideologically (not that that should matter when deciding cases). There were some who were so far left they wanted to rule that damage suits should also be available for equal protection claims (see, e.g., Judge Moore's concurrence in Popovich v. Cuyahoga County, 276 F.3d 808 (6th Cir. 2002)). And there were some ultra-conservatives who asked to be placed in a special category called "Big Damn Reverse." I am looking forward to seeing how the rest of the semester plays out.
More Stuff:
Briefs.
A good, longer summary of the case.
A report on the oral arguments and protests from the Court.
Also, check out this interesting discussion going on over at En Banc.
Next Week: Missouri v. Seibert
Case Summary:
Tennessee v. Lane is a case that arises under Title II of the Americans with Disabilities Act of 1990, 43 U.S.C. § 12132, which provides in relevant part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
Six named plaintiffs sued the State of Tennessee claiming that they were denied the opportunity to effectively participate in court proceedings because some of the State's courthouses were not physically accessible to individuals with disabilities. Lane, one of two plaintiffs named in the original complaint, was forced to crawl up a flight of stairs to attend a criminal proceeding where he was the defendant. At a second hearing, he refused to again crawl up the stairs and was arrested for not appearing after he refused to permit court employees to carry him up the stairs in his wheelchair. In later proceedings, his attorney ran between the second floor courtroom and his client, who was on the first floor, and another hearing was held in the first floor library. The second original plaintiff, Jones, claimed that she was unable to work as a court reporter in four Tennessee counties because the courthouses did not have an elevator to accommodate her paraplegia. The District Court rejected Tennessee's motion claiming that the State was immune from suit for money damages under the 11th Amendment. The Sixth Circuit affirmed an interlocutory appeal, holding that plaintiffs were seeking to vindicate their due process right of access to the courts in Tennessee and that, in this respect, Congress was permitted to abrogate state sovereign immunity under section 5 of the 14th Amendment, which permits Congress to implement legislation to enforce the substantive provisions of the 14th Amendment (here, the Due Process Clause). Tennessee then appealed to the Supreme Court.
For Congress to abrogate state sovereign immunity, Congress must "unequivocally express[] its intent to abrogate immunity" and it must have acted "pursuant to a valid exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996). The issue before the Supreme Court is whether Congress had the power under section 5 of the 14th Amendment to abrogate Tennessee's 11th Amendment immunity. In order to be valid, legislation under section 5 must demonstrate a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
Plaintiffs claim that the ADA was proper legislation to enforce the Due Process Clause, as disabled individuals were being denied their fundamental right to participate in the judicial process as litigants, witnesses, jurors, and to observe proceedings as interested members of the public. They support their claim with reports commissioned by Congress before enactment of the ADA from the National Council on the Handicapped, which compiled a significant amount of anecdotal evidence of discrimination against the disabled.
Tennessee claims that there is no evidence of Congressional findings that discrimination against the disabled was state imposed, citing statements in the legislative history that the States were at the vanguard of protecting the rights of the disabled, in stark contrast to the rights of other minorities protected by federal civil rights laws. Similarly, Tennessee argues that there is nothing in the legislative record to suggest that Congress was acting to protect due process rights and that there is only scant evidence that the States were engaged in a pattern of violation of the fundamental rights of the disabled. Tennessee alternatively relies on the argument that Title II lacks the proportionality required by City of Boerne because its provisions in large part operate to prohibit constitutional conduct to the extent that it accomplishes a "substantive redefinition" of the States' obligations under the Fourteenth Amendment, as prohibited by Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 73 (2000).
- summary by Matt
Matt's View:
This was a tough decision for me, but I ultimately voted to reverse the decision of the Sixth Circuit, concluding that there is insufficient clarity in the legislative record to conclude that Congress implemented the ADA to enforce the Due Process Clause. Although the congressionally commissioned reports demonstrated a great amount of anecdotal evidence of discrimination against the disabled, there was scant evidence in the reports of state discrimination, which comports with statements in the record commending the states' leadership in safeguarding the rights of the disabled. From this muddled history, I was unable to conclude that there was congruence between the injury and the congressional remedy: abrogation of state immunity permitting suits against the state for monetary damages.
I concluded that there was no Due Process violation, as Tennessee would likely prevail upon the merits given the steps it took to remedy the situation (including installing an elevator in the courthouse Lane was in). Regarding Jones, the Constitution does not include a fundamental right to work in a particular profession, here as a court reporter. I was also concerned that permitting a suit for monetary damages against the States would result in an inappropriate transfer of scarce public resources to private plaintiffs when they could be much better spent making improvements to public buildings to ensure access to the disabled--particularly when injunctive relief to ADA plaintiffs is available under the doctrine emanating from Ex Parte Young.
I predicted that the Supreme Court would also reverse, by the same one vote margin that has frequently occurred in its recent federalism decisions.
Scott's View:
I voted to affirm. I was persuaded that access to the courts is a fundamental right that the states have infringed by continually refusing to accomodate disabled persons. Unlike Matt, I do not agree that the states are leaders in safeguarding rights. To the contrary, I think it's pretty clear that the states had dropped the ball with their own inadequate laws, making passage of the ADA necessary in the first place. Even though I don't place a lot of emphasis on congressional "findings," I think there was a wealth of evidence of due process violations compiled by hearing testimony and the various studies commissioned and relied upon by Congress.
It's clear that Congress unequivocally expressed their intent to abrogate the states' sovereign immunity. (I also found it telling that no state ever expressed their discontent with the ADA -- in fact, the ADA was endorsed at the time by the National Association of Attorneys General, and several states filed an amicus brief urging the Court to uphold the law.) What's left under the Seminole Tribe test is whether Congress had the power to do so. Here, I think Congress effected a proportional and congruent response to a serious due process (and equal protection) problem. The states don't have to do anything drastic; this is not a costly statute. Only "reasonable modifications" are necessary, and only for those who are "substantially impaired." Congress has the power to make damages a possibility, and it's a good thing that they did, since it's clear that DOJ enforcement actions and injunctions aren't enough to force states to comply. Moreover, the Court generally defers to Congress on how to craft reasonable prophylactic responses to difficulties.
The sovereign immunity of the several states is something that should not be pierced lightly. But here, where a significant portion of the citizenry has its fundamental rights infringed on a daily basis, the federal government has the right -- dare I say the duty -- to step in and protect the liberties it was created to protect.
I predicted that the Court would also affirm, by a 5-4 margin. I added that there was also a possibility that the Court may issue a narrow opinion, perhaps saying that damage suits are allowed, but only in extreme cases such as instances of intentional discrimination or animus.
Class Result:
The Class voted to reverse the Sixth Circuit's decision by an 8-7 vote, but concluded that the Supreme Court would likely affirm, also by an 8-7 vote. I was pleased to find that the class was pretty evenly divided ideologically (not that that should matter when deciding cases). There were some who were so far left they wanted to rule that damage suits should also be available for equal protection claims (see, e.g., Judge Moore's concurrence in Popovich v. Cuyahoga County, 276 F.3d 808 (6th Cir. 2002)). And there were some ultra-conservatives who asked to be placed in a special category called "Big Damn Reverse." I am looking forward to seeing how the rest of the semester plays out.
More Stuff:
Briefs.
A good, longer summary of the case.
A report on the oral arguments and protests from the Court.
Also, check out this interesting discussion going on over at En Banc.
Next Week: Missouri v. Seibert
