Saturday, June 2, 2012

The Defense of Marriage Act Smackdown

As you probably know by now, this week, the First Circuit Court of Appeals found the Defense of Marriage Act ("DOMA") unconstitutional. If you have the time and inclination to read the whole opinion (written by Judge Boudin, who is a smart fellow), I recommend it. Also, in case you're curious, all of DOMA is included at the end of the opinion. It's very short.

Now, LGBT rights are my pet issue, so I could probably write something longer than the opinion itself discussing this decision. But I'll restrain myself and pare it down to some of the most important points. 

1. The court struck down the part of DOMA that defines marriage as between one man and one woman, not the part that says one state doesn't have to recognize same-sex marriages licensed in other states.

There are two relevant parts of DOMA: Section 2, which says that states don't have to recognize same-sex marriages from other states, and Section 3, which says:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.

Nobody was challenging Section 2 in this case, so the court didn't decide whether that was constitutional or not. It found Section 3 unconstitutional. 

2.  The court used "rational basis" review here - the easiest way for a law to survive an Equal Protection challenge - but still looked at the law very carefully because it is bad for a "historically disadvantaged or unpopular group" and because states are supposed to define marriage, not the federal government. 

2a. If that's confusing, then here's a quick primer on Equal Protection law. If you already know that stuff (or don't feel like reading that), then feel free to skip to 2b.

* * *

When someone challenges a law on Equal Protection grounds, what they're saying is, this law treats two groups of people differently, who are exactly the same except for X characteristic (e.g., race, gender, age). How tough it is for the law to survive that challenge depends on the characteristic in question. 

If it's "suspect" - that's race and religion - then the court will apply a "strict scrutiny" test, which means that the law has to be related to a "compelling state interest," and it has to be "narrowly tailored" to that goal. The bottom line is, if the law actually does discriminate on the basis of a suspect classification, it's dead in the water. Almost nothing has ever survived this test, and when it has, we've later found out that the government lied to the court to convince it (that's the WWII internment camps case, in case you're wondering. Unspeakably horrible.). 

Discrimination on the basis of sex/gender gets "intermediate scrutiny." That means it has to be related to an "important government interest" and must be "reasonably" tailored towards that goal. It's still very tough to show this, but it's not impossible because, well, male and female humans actually aren't exactly the same. So it's not beyond the bounds of the imagination to think of ways in which we could be treated differently. It's only usually BS. 

Any other kind of classification - like age, or income level, or whatever - gets what's called "rational basis" review. In theory, that means that if the government has a rational reason for making this law (even if they could've done it better), it'll survive. Most laws pass this test. 

* * *

2b.  The Justice Department (as you may remember) decided not to defend DOMA because, it said, discrimination based on sexual orientation is like discrimination based on gender - when you discriminate based on it, you better have a better than average reason (in other words, it should get intermediate scrutiny). They felt that they couldn't make a good argument supporting DOMA that reached that bar. The court disagreed, mostly because it believed the Supreme Court has said otherwise. (I don't think so, but then, I once wrote a giant diatribe on a constitutional law exam about how sexual orientation should be treated as a suspect classification, like race. So, take my opinion with a grain of salt.) Instead, it applied "rational basis" review, meaning that the law would be upheld if there was a rational reason for it to exist. 

But, here's the really interesting part: the court said that not all "rational basis" cases are the same. Sometimes, it said, even where there's no classification calling for intermediate or strict scrutiny, there are still reasons to give it a closer look than, say, your average tax case. In this case, the court found two reasons to review DOMA with what Justice O'Connor called "rational basis with bite." 

First, the law discriminates against a "historically disadvantaged or unpopular" group. The Supreme Court has looked at other sexual orientation cases this way (in Romer v. Evans), and has also taken a closer look at laws discriminating against people with an extremely low income and people with mental or physical disabilities. Even if these aren't heightened scrutiny groups, you have to be extra careful about upholding a law that treats them poorly, even when you're only looking for a rational basis. And second, there are serious states' rights issues going on here. States, not the federal government, typically define marriage and its boundaries. When the federal government tries to meddle in that, the court said, you have to take a closer look to make sure there's actually a rational reason for it. (In case you're curious, some other areas of "traditional state regulation" are education, adoption, and criminal law.) 

So, with that stuff in mind, the court looked at the reasons for the law to see if they were "rational" enough. And they said...

3. The Court held that none of the justifications for DOMA were good enough, including traditional values and morality.

This, in my opinion, is the big deal. There were three basic reasons given for the federal marriage definition, and the court rejected them all. Briefly, they were:

(A) Saving Money. The government said that it had to limit what counts as marriage for purposes of federal benefits because it has to limit who gets tax breaks, etc. somehow. The court said that was usually a good reason, but it wasn't good enough where the people who lose out in that line-drawing exercise are historically disadvantaged. Save money all you want, but you can't do it at the expense of people who've been screwed over a lot already. 

(B) Supporting heterosexual marriage and a stable household for child-rearing. The court rejected this reason because:

DOMA does not increase benefits to opposite-sex couples--whose marriages may in any event be childless, unstable or both--or explain how denying benefits to same-sex couples will reinforce heterosexual marriage. Certainly, the denial will not affect the gender choices of those seeking marriage.

Well put.

(D) Because state marriage law was changing so fast, the federal government wanted a "time out" so it could keep its benefits the same until the dust settled. The court effectively said, that's BS, because the law isn't temporary.

But most importantly,

(C) MORALITY! The main reason for DOMA, as we all know, is a moral judgment. Ever since Lawrence v. Texas (that's the case that stuck down anti-sodomy laws, in case you were wondering), lawyers have been asking themselves, "Is morality alone enough to justify a law?" In this case, the court said no. Historically, it said, this might've been enough, but no longer. This, ladies and gentlemen, is a big deal.

So that's the (very) long and the short of it: morality isn't a good enough reason for the federal government to interfere in state matters and discriminate against a group that has hard time prevailing politically. In conclusion, I'd like to leave you with this delightful quote:

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute. This judicial deference has a distinguished lineage, including such figures as Justice Holmes, the second Justice Harlan, and Judges Learned Hand and Henry Friendly. But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

Sunday, May 27, 2012

The Injunction On The NDAA

This is an example of the system working.

I'm a bit late to the party on this one, but there's been much freaking out about the National Defense Authorization Act (that's the "NDAA") - specifically what's being called the "indefinite detention" section(s). For those of you who haven't been keeping up with this (and it's been in the news surprisingly little), that's a combination of a few different provisions in the bill. It's super long, so I'll summarize.

Section 1021(c)(1) permits "detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force." That authorization applies to "covered persons," which this law defines under Section 1021(b) as a person directly involved in the 9/11 attacks or “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” 

This section also specifies that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” There has been a lot of debate about this, mostly revolving around grammatical interpretation. I have argued that this means the indefinite detention provision doesn't apply to (1) U.S. citizens; (2) permanent residents; or (3) anyone else captured in the United States. Other people argued that it means the provision doesn't apply to citizens, permanent residents, or anyone else - but only if any of those people are captured in the US. So it still applies to anyone, citizen or otherwise, if captured outside the US. (Of course, as I'm reminded often by friends, it's bad that anyone can be indefinitely detained at all - but that's beside the point.)

So, moving on, the other relevant provision is Section 1022, which makes indefinite detention is not only allowed, but mandatory, for “a member of, or part of, al-Qaeda or an associated force” who “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners" (according to the president).  This mandatory detention provision expressly doesn't apply to US. citizens (under Section 1022(b)(1)). Permanent residents and anyone else captured on US soil are not exempted.

Finally, the president issued a signing statement saying a lot of stuff, but most relevantly, indicating that the administration doesn't read the indefinite detention provision as applying to citizens or permanent residents (like I said). 

Now, down to business. Recently, seven different people sued the administration over this law, arguing that it violates their right to free speech (First Amendment) and due process of law (Fifth Amendment).  Glenn Greenwald (with whom I often disagree, but whom I also respect greatly for always providing his sources and generally being an extremely smart guy) wrote a terrific article about it, and I'm liberally cribbing from that for my facts here. If you're a law nerd like me or you just want more detail, I recommend that you check it out. Anyway, in an unexpected and bold move, a federal judge issued a preliminary injunction against the indefinite detention provision.

Let's back up for a minute, in case you don't know what that means. An injunction is just a court order forbidding something. In this case, it means, the government can't enforce the law that's enjoined. To get a preliminary injunction, you have to show that you're in danger of imminent harm that can't be undone, and that you're likely to win. So, getting a preliminary injunction doesn't mean you win the case, but it means you probably will. 

What this all means is that a federal judge decided that (1) the NDAA detention provisions (section 1021) will probably harm these plaintiffs; and (2) the plaintiffs will probably be able to show that the law violates their constitutional rights. Specifically, the judge found that the plaintiffs - journalists, and the like - have a "realistic fear" that the law will "interfere with their expressive and associational activities" (by treating them as supporting terrorism by interacting with terrorists to write about them or publishing stuff that could seem favorable to them, I guess) and that the law is too vague to be fair under the due process clause (because you can't tell in advance whether you'd be violating the law or not). 

In reaching this decision, the judge threw out several technical procedural challenges - law nerds, that's standing and lack of imminent enforcement necessary for a preliminary injunction - that usually get stuff like this knocked out of court before the issues are even reached. This happened in part because the government refused to promise that the law wouldn't apply to the journalistic stuff these folks do. So the court said that in that case, yes, the journalists are currently being injured because they are afraid to act, given that the law could apply to them. The government couldn't actually give a definition of "direct" or "substantial" support, either, which makes it impossible to know what that actually means, and whether or not legitimate journalistic activity would fall within that definition. So, there's your First Amendment problem and your Fifth Amendment problem. The court also said that the president's signing statement didn't help, because it didn't clear up any of these problems.

This is, if it isn't obvious, a big deal. Courts often duck these issues with technicalities, or wave their hands and say that security is really important, and who are they to interfere? In my opinion, that's a big problem. Our system of checks and balances is supposed to ensure that when a law is passed, if it's unconstitutional, the courts fix it (either by saying, "you can only enforce this law if it's read narrowly to mean '_____,' which is constitutional" or "we have to strike down this law because there's no way to read it constitutionally").  That's their job. So when a law like this comes out, and I say, "It doesn't mean you can detain journalists indefinitely for being journalists, or if it does, the courts will strike it down," I'm really being pretty optimistic.

In this case, I wasn't. This is how it's supposed to work. And the more often a court does something like this, the more it sends a signal to other courts that it's ok - they won't lose their legitimacy by interfering. Rulings like this say, "This is the role of the court. We'll only do it if we have to, but at this point, we have to."  Like, you know, replacing your transmission. You wish you didn't have to do it, but if it's broken, it has to be fixed, no matter how costly. 

Now, that's not to say that this ruling is perfect and wonderful and without problems. An argument can be made that this is a political decision; that the law can't really be read this way, and that these folks haven't been injured at all because they wouldn't be affected by the law. This is a broad interpretation of the rules, and it may not stand up on appeal, given the Supreme Court's stingy views on who can and can't show "injury in fact" to bring a lawsuit like this. But, at the moment, what I'm seeing is an example of the system working. 

Saturday, April 28, 2012

SNOPA - Finally, A Step In The Right Direction


The text of the bill can now be found here. More details/summary are below.

I was going to write a post a while back about why I don't think employers and schools can, constitutionally speaking, require you to give them your facebook (or other social networking or email or whatever) password before they'll hire or promote you. Unfortunately, I was distracted by that pesky work thing. But now, maybe - just maybe - that question could become irrelevant. House Representative Eliot Engel of New York has introduced a bill called the Social Networking Online Protection Act ("SNOPA" - the play on "SOPA" isn't lost on anybody, I hope) that would forbid employers and schools from demanding those passwords. Unfortunately, I can't give you the text of the bill because it's not up on the Library of Congress site, but I'll update as soon as I can. In the meantime, I'll do my best to summarize.

According to Congressman Engel's site, the law would:

  • Prohibit current or potential employers from requiring a username, password or other access to online content.  It does not permit employers to demand such access to discipline, discriminate or deny employment to individuals, nor punish them for refusing to volunteer the information.
  • Apply the same restrictions to colleges and universities, and K-12 schools as well.
So, far so good, I think you'll agree. 

The flip side of the coin, which is not being reported quite as thoroughly, is that the bill would shield employers from liability for failing to monitor password-protected content.  I don't know about you, but my hackles raise a bit whenever I hear (or read) "shield employers from liability." But, in this case, I have to make an exception, for a few reasons. 

First, and most cynically, this provision will probably reduce employer resistance to the bill, because they'll be getting something out of it too. There are quite a few reasons that employers want to monitor your password-protected online stuff - one of which, of course, is that they don't want you to embarrass them. One of the reasons they want to do it, though, is that they can be sued for "negligent hiring" if they hire an employee without checking enough first to make sure he or she isn't a bad guy. Now, if they weren't aware that their employee was a thief/violent dude/alcoholic/whatever because they didn't look at his or her password-protected facebook page, it's not their fault. Similarly, schools wouldn't be liable for stuff that happens on facebook (or any other site) if it's password-protected.  

What I like about this, beyond the obvious, is that it begins to re-draw the line between public and private life that's been increasingly blurred. Yes, it will prevent people from recovering as much in lawsuits against employers and schools (OK, I'm sure some people think that's a good thing, even if I'm not one of them), but it's worth it. This is the kind of legislation that lays the groundwork for preventing schools from expelling kids for stuff they do on their own time, and for preventing employers from asking prying questions they have no right to know. It allows for robust anti-bullying laws like the Arizona law I talked about in an earlier post, which aggressively addresses bullying in school, but specifically draws the line at activities unconnected to school hours and school equipment. It helps make sure that employers can't fire you for what you say on your own time - without your having to invoke the National Labor Relations Act.  

This bill doesn't accomplish all of that, of course. But it's a big step in the right direction.

**Updated information:

1. The bill provides for a fine of up to $10,000 for employers and an injunction by the Department of Labor.
2. The bill has - and this is particularly nice - an anti-retaliation provision. So not only could employers or schools not do this stuff, but they also couldn't punish anyone who complained about it.
3. The definition of "social networking website" is appropriately broad:

      (2) the term `social networking website' means any Internet service, platform, or website that provides a user with a distinct account--
      (A) whereby the user can access such account by way of a distinct user name, password, or other means distinct for that user; and
      (B) that is primarily intended for the user to upload, store, and manage user-generated personal content on the service, platform, or website.
Here's hoping it goes somewhere!

Saturday, April 21, 2012

The Latest Online Privacy (Or Lack Thereof) Bill - CISPA

There hasn't been nearly as much to-do about the Cyber Intelligence Sharing and Protection Act of 2011 (CISPA) as there was about the Stop Online Piracy Act (SOPA, of course), but concern about the bill is growing. I think that's a good thing - I have some serious concerns about it myself - but, as usual, there are a lot of people out there who have some pretty wild (and unsupported) ideas about what it would mean. Since this bill is going to the House for a vote on April 23rd, now is a good time to separate truth from fiction. I can't claim to give you a comprehensive explanation of everything the bill would do - the Center for Democracy and Technology gives a great overview - but here are some highlights.

CISPA would let the government share classified information with private companies, and it would let private companies share information with the government. BUT, it would not force companies to give the government information.

Basically, under this bill, the "intelligence community" would be allowed to share classified "cyber threat intelligence" or "cyber threat information" with "certified" private entities, but only those who have the required security clearance (and it would allow for an expedited process for giving out those clearances). Those private entities could then share "cyber threat intelligence" with the government or any other certified entity, and you couldn't sue them for it, so long as they do it "in good faith" (whatever that means). And, they couldn't be charged with a crime, either.

But, they also couldn't be sued or charged with a crime for not giving the government any of this information, which is interesting. The bill also makes it very clear that the government couldn't require companies to give up information in exchange for receiving classified info. This part of the bill, called the "anti-tasking" provision, would ensure that the government couldn't use companies as de facto government agents, searching warrantlessly to their hearts' content. At least, not officially. It's not much comfort, I admit.

The bill defines "cyber threat intelligence" and "cyber threat information" in ridiculously broad terms.

Predictably, the definitions are as vague as you'd imagine:
      (2) CYBER THREAT INFORMATION- The term `cyber threat information' means information directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from--
      (A) efforts to degrade, disrupt, or destroy such system or network; or
      (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.
      (3) CYBER THREAT INTELLIGENCE- The term `cyber threat intelligence' means information in the possession of an element of the intelligence community directly pertaining to a vulnerability of, or threat to, a system or network of a government or private entity, including information pertaining to the protection of a system or network from--
      (A) efforts to degrade, disrupt, or destroy such system or network; or
      (B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.

As a side note, I find the inclusion of  "intellectual property" in this definition to be ridiculous. What does that have to do with national security, again? Also, this law would preempt any state law on the subject, and it would supersede all other privacy laws (folks at home, that means if a privacy law would otherwise limit this kind of information-sharing, it wouldn't when this law applied).

There are limits on what companies could give the government -  sort of.

According to the bill, private entities couldn't share the information to gain a competitive advantage, and information:

     . . . shall only be shared in accordance with any restrictions placed on the sharing of such information by the [company] authorizing such sharing, including appropriate anonymization or minimization of such information.

I read this to say, the company wouldn't be allowed to violated your user agreement terms. But what I have to ask is, sure, the company weren't supposed to violate your agreement, but if it did anyway, could you sue them for it? Under this bill - and after the way I've seen the Supreme Court treat privacy lately - I have to wonder.

There are very few limits on what the government can do with this information.

The bill says that the government couldn't use this information for a "regulatory purpose" (whatever that means), and it could only use the information if "at least one significant purpose of the use of such information" is a cyber security or national security purpose. We all know what a great limiting principle that is, of course. Also, the government couldn't "affirmatively search" this information for any non-security purpose. I'm not sure how that's supposed to make me feel better.

CISPA would not allow government surveillance of private communications, so it would probably not be a Fourth Amendment violation.

The big concern here is a Fourth Amendment one - that's unreasonable government search and seizure - but this bill wouldn't let the government search anything it couldn't search before. I hate to break it to you, but private companies could always give your information to the government. Now, you just can't sue them for it, and it's definitely not a crime. It's not a new idea: the government can't look in your house without a warrant of probable cause, but they can sure take an anonymous tip about what you've got in there.

But the news isn't all bad...

CISPA is very different from SOPA: It says nothing about shutting down or blocking access to websites whatsoever.

Let's not go too far in freaking out about this. As this US News article points out, this bill doesn't raise the kind of First Amendment problem SOPA would've caused. I think the Electronic Frontier Foundation's claim that "[a]n ISP could even interpret this bill as allowing them to block accounts believed to be infringing, block access to websites like The Pirate Bay believed to carry infringing content, or take other measures provided they claimed it was motivated by cybersecurity concerns" is unfounded. This particular bill is about sharing information, not information restriction, period. 

So, to sum up, yes, this bill creates very serious privacy concerns, especially if companies could get away with violating user agreements (and maybe they couldn't - it's hard to say). But it wouldn't give the government broad, insane enforcement powers like SOPA would've. So go ahead and worry, but, as always, don't panic yet.

Sunday, April 15, 2012

The Controversy Over Cameras in the Courts

The ongoing controversy about whether Supreme Court arguments should be televised has reared its head again.  In February, a bill was introduced that would require the Court to "permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court."  

The media had a lot to say about this, of course, particularly when the Affordable Care Act arguments were coming up: the Supreme Court absolutely must allow cameras: a need for transparency, the integrity of the Court, the public interest, and democracy itself are at stake in this debate, they said. In March, the Court predictably refused to allow the Affordable Care Act arguments to be televised. 

Somehow, though, I can't bring myself to be outraged.

Supreme Court arguments are already posted in audio format at the end of each week. The Affordable Care Act argument audio was posted two hours after arguments ended, due to public demand.  If that's not fast enough for you, transcripts of arguments are posted on the same day. That will also help you out if you want to know which Justice said what, so you can rabidly speculate about what the opinion is going to say. It takes months for an opinion to come out anyway, so a maximum five-day wait for the audio recording will still leave you with plenty of time to guess what answer the Court's magic 8 ball is going to give us, based on the wild hypothetical questions they pose to the advocates. 

So, what exactly are we missing here? What's being hidden from us? The Justices' facial expressions? Their body language? The commentators above basically say that audio and transcripts "aren't good enough," but other than comparing the arguments to reality TV and describing how entertaining the viewing would be (note: to most people, believe me,it would not), they don't give me much to go on. 

Now, don't get me wrong: I'm not really a fan of most of the arguments for keeping cameras out of the Court either. Slate's Dahlia Lithwick says the "standard argument" for keeping cameras out of the Court is that "mere mortals can't be exposed to all that weighty gravitas and live to tell about it," but that's an obvious straw-man. Personally, I've never heard that argument before, and I don't honestly believe that's anyone's position at all.

In contrast, this Washington Post Article makes a better (and more frequently advanced) argument that unlike Congress, whose every move the electorate can (and perhaps should) be watching, the Court is not a political branch, and cameras in the Court would have a subtle but insidious political influence that we don't want. That might be true, but I think it's pretty hard to say with a straight face that the Court isn't already massively influenced by politics. I feel confident that the Court doesn't split 5-4 in every case that's in the news because their philosophies about reading the Constitution are completely irreconcilable...but only in politically controversial cases. No, I don't think cameras would violate the independence of the Court. 

Nor am I convinced by the argument that TV coverage would allow the media to create catchy clips mischaracterizing the arguments. With the audio out there, the media can already edit and entertain to it's heart's content; I bet plenty of you have heard the clip from the Affordable Care Act arguments about whether or not Congress can require us all to eat broccoli. The point is, cameras aren't going to distort the public's impression of what's going on in the Court any further. 

The main reason to keep cameras out, as far as I can tell, is that they would be disruptive. Anyone who's ever been to a wedding, graduation, or piano recital knows that people running around with cameras can go a long way towards ruining the experience, and those events don't require the kind of concentration that oral arguments do. I've argued in court a few times now myself, and I can say that having the press there would drive me absolutely nuts. However - and this is a big "however" - that isn't, by itself, a good enough reason to keep cameras out of courts. 

So, to sum up, I don't think that the Court will be making a huge mistake if it wants to allow cameras in some day - I  don't think there's any reason to believe it would be anything more than a gigantic annoyance. But, I don't think Congress has any legitimate reason to force the Court to allow cameras either. Public access to what goes on in the Court is vital to our system of government, and if the Court tried to hide what it was doing, that would be an outrage. But that's just not what's happening here. Thanks to the internet, anyone and everyone can find out exactly what's going on within a matter of days or even hours, so I don't think we're missing anything we need to know.

Supreme Court reality TV is just not necessary, and this latest bill is just tilting at windmills.


Monday, April 2, 2012

The Strip Search Case

Well, folks, this blog is supposed to involve me telling you why the law's not as crazy as it seems - unless it is. This is one of those "unless it is" situations. Today, the Supreme Court actually did decide that anyone being detained in the general population of a jail may be strip searched, without reasonable suspicion.

The case is Florence v. Board of Chosen Freeholders of Country Burlington et. al, and it's one of the scariest I've seen in a long time. When I saw this New York Times article about it, I laughed at the headline, "Supreme Court Ruling Allows Strip-Searches For Any Offense."  I assumed this was an alarmist overstatement. Unfortunately, it's really not...probably.

Essentially, it went like this: Justice Kennedy, writing for the majority (along with Scalia, Roberts and Alito, and Thomas - except he dissented from one part), basically explains that cops can't know who might or might not have contraband, lice, diseases, and gang tattoos (really?) before they're put into the general population, and so they'll never be able to separate the dangerous from the non-dangerous. That means they can't be forced to restrict their searches to situations where they have "reasonable suspicion" (which is the usual test for, say, pulling someone over while driving) that the arrestee is hiding something.  The Court, he thinks, can't get too involved with the nuances of how the state runs its jails, or it'll risk tying cops' hands too much. The officers of the law know more than the Court about how this stuff works, so they shouldn't interfere with decisions like this. The opinion also points out that there are a lot of previous cases saying things like this. Here's a characteristic quote:

The officials in charge of the jails in this case urge the Court to reject any complicated constitutional     scheme requiring them to conduct less thorough inspections of some detainees based on their behavior,suspected offense, criminal history, and other factors. They offer significant reasons why the Constitution must not prevent them from conducting the same search on any suspected offender who will be admitted to the general population in their facilities. The restrictions suggested by petitioner would limit the intrusion on the privacy of some detainees but at the risk of increased danger to everyone in the facility, including the less serious offenders themselves.

The dissent, written by Justice Breyer (and unsurprisingly joined by Ginsburg, Kagan, and Sotomayor) sees things very differently (and very much more the way I do, which I'm sure you can tell from my tone here). Effectively, it says, WTF? Have you not heard of the Fourth Amendment, guys? It goes on to describe how invasive strip searches can be (hint: very) and gives statistics from the many amicus briefs about how many strip searches are performed over time - tens of thousands over the course of about five years- versus how many times contraband, etc. is actually found - about two or three. It reminds the majority that prisoners have constitutional rights too, and "reasonable suspicion" is the limitation we've drawn on the authority of the police to search folks. Here's a good quote from this one:

Even when carried out in a respectful manner, and even absent any physical touching . . . such searches are inherently harmful, humiliating, and degrading. And the harm to privacy interests would seem particularly acute where the person searched may well have no expectation of being subject to such a search, say, because she had simply received a traffic ticket for failing to buckle a seatbelt, because he had not previously paid a civil fine, or because she had been arrested for a minor trespass . . . . I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strong reasons to believe they are not justified.

There might be a silver lining though - or at least a sparkly grey lining, anyway. That can be found in the concurrences by Justices Roberts and Alito. For those of you out there who aren't law nerds (but who are, for some reason, still reading), separate opinions aren't (usually) just so that a given Justice can prove he or she is a way better writer than whoever wrote the majority opinion. More often, these opinions explain how the Justice is interpreting the opinion, and often what he or she thinks it doesn't mean. They can give you an idea of how the next case on the issue will go.

In this case, the concurrences written by Alito and Roberts express a lot of concern about the reach of the opinion, indicating that they think the strip-searches-for-everyone rule isn't as broad as you might think. Justice Roberts says,  

. . . it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces . . .[t]hose circumstances include the facts that Florence was detained not for a minor traffic offense but instead pursuant to a warrant for his arrest, and that there was apparently no alternative, if Florence were to be detained, to holding him in the general jail population.

In other words, Roberts thinks the rule makes sense here, because the defendant was arrested for an actual crime, and because he absolutely had to be thrown in the clink with the riff raff. Which means, if someone were just arrested in traffic, it might not be ok to do a strip search. Justice Alito says this even more clearly:

It is important to note, however, that the Court does not hold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time of their initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

It's this kind of behavior that makes me like Alito more than most other bleeding heart liberals do. I may disagree strongly with the majority opinion here, but I think that this concurrence sets a limit on how much damage the rule can do.

At least it gives me hope that even if the Court refused to draw the line where I think it ought to be drawn, there is a line somewhere.

P.S. Justice Thomas doesn't explain why he dissents from Part IV of the opinion, which declines to create a specific exception for specific situations involving minor offenses, like the ones the concurrences talk about.  He didn't write his own opinion or join a concurrence or even part of the dissent. But no one should be surprised when Thomas decides to remain silent.

Sunday, March 25, 2012

The Arizona Birth Control Bill (With A Splash of Title VII)

There's a lot to be said about the Arizona bill allowing employers to opt out of covering contraception. Many have argued that the bill would allow employers to fire women if they use birth control for its intended purpose. Is that true? Or, as I've thought to myself, would that be discrimination on the basis of sex (in violation of Title VII, the big federal law outlawing employment discrimination on the basis of race, sex, religion, national origin, and, most relevantly here, sex)?

Christine Clarke does a terrific job  explaining why firing women for using contraception would probably not be considered a Title VII violation - that is, why courts probably wouldn't find this type of firing to be employment discrimination against women. Clarke explains the theory behind the potential sex discrimination claim, which is pretty straightforward: if only women take prescription birth control, and you can fire them for taking it, isn't that the same as firing them because of their sex? She then goes on to remind us that unfortunately, courts probably wouldn't see it that way. Their track record makes that pretty clear. For instance, they didn't think discrimination on the basis of pregnancy  was sex discrimination (until a specific law was passed to change that). More recently, a Texas court found that firing someone for breast-feeding was not sex discrimination  (or a"pregnancy-related health condition" either - go figure!), even though everyone knows that only women breast-feed (for now, anyway). So, it seems like this logic - an activity is done only by women, so firing someone for that activity = firing her for being a woman - is not going to fly in court.

Clarke explains all of this very clearly, but I'm left with a lingering question that's specific to the Arizona bill. The bill allows employers to opt out of covering contraception if it's being used "in whole or in part" for contraceptive purposes. That raises a question, though. Even if a woman presents the employer with evidence that she's using contraception for a non-contraceptive purpose, how can the employer be sure she's not using it in part for contraception as well?

It seems to me that the only way is to ask, "are you sexually active and not using a backup contraceptive method?" If she says "yes," the employer doesn't have to cover her meds, and is free to fire her. But this law doesn't allow employers to ask men the question, "are you having unprotected sex?" and thus, to fire them if their answer is "yes."  In other words, an employer is empowered to seek out and terminate sexually active women, but not men.

That sounds like discrimination on the basis of sex to me. But, I guess we can't trust the courts to see it the same way. Oh well - I guess there's always the possibility that  the Health Insurance Privacy Protection Act wouldn't allow any of this.