Tag: amicus briefs

Virginia Is for Gay Lovers Too!

In an attempt to prove that Virginia is indeed for lovers, two couples have recently gone to federal court to get their marriages recognized in their home state. One of the couples has been together for more than 20 years and the other got married in California and have a teenage daughter together, yet the Commonwealth of Virginia will not recognize their marriages because the couples are—you guessed it—same-sex.

These couples don’t see why their sexual orientation should keep them from enjoying the equal right to marry a partner of their choice, so they filed suit in federal district court to challenge the Virginia’s anti-gay-marriage state constitutional amendment. They argued that the provision violates both equal protection and the fundamental right to marriage, as protected by the Fourteenth Amendment. This February, the district court agreed with them, and now they’re defending that ruling before the U.S. Court of Appeals for the Fourth Circuit.

Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down the part of the Defense of Marriage Act that denied federal benefits to lawfully married same-sex couples—this case adds Virginia to the list of states (which now includes Utah, Oklahoma, Texas, Kentucky, Michigan, and Ohio, and seems to grow with each passing week) that have the constitutionality of their marriage laws before a federal appeals court. 

Reprising our collaboration in Perry v. Hollingsworth—the California Prop 8 case in which the Supreme Court avoided ruling on the merits—and the Tenth Circuit gay marriage cases Kitchen v. Herbert and Bishop v. Smith, Cato and the Constitutional Accountability Center have filed a brief supporting the plaintiffs’ fight for equality under the law in the Old Dominion. We argue that the Fourteenth Amendment’s Equal Protection Clause protects against the arbitrary and invidious singling-out that the Virginia gay marriage ban effects, that the clause’s original meaning confirms that its protections are to be interpreted broadly, and that the clause provides every person the equal right to marry a person of his or her choice.

We believe that the Virginia constitutional amendment conflicts with the equal rights of those same-sex couples whose unions are treated differently than those of opposite-sex couples. To the extent that states recognize marriage, every person has the right to choose whom to marry and to have that decision respected equally by the state in which they live.

Especially in the wake of Windsor, it is becoming clearer that laws that force same-sex unions into second-class status have no place in a free society. After the Fourth Circuit hears argument in Bostic v. Rainey later this spring, it should affirm the district court’s decision.

TV Broadcasters Should Have Same Rights As Everyone Else

Remember broadcast television? Amid the avalanche of new streaming services, DVRs, and Rokus, not to mention cable TV, some people may have forgotten—or, if they’re under 25, never known—that there are TV shows in the air that can be captured with an antenna. The Supreme Court certainly hasn’t forgotten, given that it maintains an outdated rule that broadcast TV gets less First Amendment protection than cable, video-on-demand, or almost anything else–a rule dating to the 1969 case of Red Lion Broadcasting Co. v. FCC.

That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.

Hence the case of Minority Television Project v. FCC. Minority Television Project is an independent, noncommercial license-holding TV station in San Francisco. Unlike most noncommercial license holders, Minority TV receives no PBS money. Because it’s an over-the-air broadcaster, however, it must comply with the restrictions placed on the licenses by Congress and the FCC, including prohibitions on paid commercials and political ads. Minority TV challenged these restrictions as violating the First Amendment.

Applying Red Lion’s lower First Amendment standard, the district court, a panel of the U.S. Court of Appeals for the Ninth Circuit, and even the en banc Ninth Circuit (11 judges rather than the usual 3) all ruled against Minority TV. On petition for certiorari to the Supreme Court, Minority TV argues that Red Lion’s rationale for reducing broadcasters’ rights is outdated and should be overruled.

Cato has filed an amicus brief in support of Minority TV, agreeing that it’s time to give broadcast TV full First Amendment protection. Just as we argued in 2011’s FCC v. Fox Television Stations—where the Court chose to evade the question—it’s time to update our law to fit current realities. The way that people consume information and entertainment has changed dramatically since 1969. Rather than three broadcast networks, we have hundreds of channels of various kinds, and increasingly people are forgoing traditional TV altogether. The FCC can still license broadcasters—that system isn’t going away anytime soon regardless of the next mind-boggling innovation—but the conditions it places on those licenses have to satisfy strict First Amendment scrutiny, especially when they pertain to political speech.

The Supreme Court should take this case in order to update its treatment of broadcasters’ speech rights, including a requirement that the government offer a truly compelling justification any time it wants to restrict them. 

While You Fill Out Your Bracket, Chris Christie Busts the NCAA’s Racket

After considerable debate, the Founding Fathers elected to give the new federal government the power of regulating commerce among the several states. We’ve all seen what’s become of that power, but in the beginning, giving the federal government the ability to regulate—literally, to “make regular”—interstate commerce made good sense as a way to avoid the otherwise inevitable collective-action problems, like trade wars and anti-competitive jockeying for monopolies. The goal was to ensure that federal law would not permit or bestow any unfair competitive advantage to any one state or group of states over the others.

Throughout much of our nation’s history, the federal government has, for the most part, succeeded at this particular goal. Thanks to the Professional and Amateur Sports Protection Act of 1992 (PASPA), however, Congress’s power to keep states from obtaining unfair advantages is being used to grant some states (most notably Nevada, but also Oregon, Montana, and Delaware) an unfair advantage: a special right to license gambling, which PASPA prohibits to other states.

In 2012, New Jersey Governor Chris Christie signed a sports-gambling bill into law, and as a result was sued by the NCAA, NFL, MLB, NHL, and NBA, who believed that additional sports betting would result in corruption and game-fixing. Christie defended his actions by arguing that PASPA violates the 10th Amendment by restricting New Jersey’s right to govern itself, and also that it violates the equal-sovereignty doctrine by giving an unfair advantage on certain states.

The federal district court and the U.S. Court of Appeals for the Third Circuit failed to recognize these constitutional flaws, so New Jersey has now asked the Supreme Court to hear its case. Cato has joined the Pacific Legal Foundation on a brief supporting New Jersey’s petition.

We explain that the principle of equal sovereignty was central to the creation of Congress’s power to regulate interstate commerce, and that conferring state-specific advantages is precisely opposite to the federal power that the Framers created. We think it important that the Supreme Court hear this case because it offers an excellent opportunity to explain the equal-sovereignty doctrine and how it furthers federalism, and to provide guidance as to the scenarios in which the doctrine applies. Congress shouldn’t be able to pick winners and losers among the states.

The Supreme Court will likely decide whether to take the case of Christie v. NCAA before recessing for the summer at the end of June.

This blogpost was co-authored by Cato legal associate Julio Colomba.

SCOTUS Deferred to Executive Agencies. What Happened Next Will Infuriate You!

In the 1996 case Auer v. Robbins, the Supreme Court ruled that where there is any ambiguity or disagreement over what a federal regulation means, courts should defer to the interpretation favored by the agency that issued the regulation. The practical consequence of this decision has been that government agencies have had the power not just to create and enforce their own rules but also to definitively interpret them. Given the mind-boggling number of federal regulations that exist—and the exceptional breadth of behavior that they govern—the importance of this “Auer deference” can’t be overstated.

While handing the powers of all three branches of government to the bureaucracy is problematic in and of itself, a recent decision by the U.S. Court of Appeals for the Ninth Circuit further extended the deference courts show to agency rulemakers by declaring that an agency’s interpretation of its own rule is authoritative even if the agency has altered its interpretation dramatically since the regulation came into effect. Under that logic, an agency could spend decades saying that its regulation governing footwear only applied to shoes—and then, without warning or consultation, unilaterally decide to extend the rule to sandals and slippers (despite explicitly saying for years that they were not covered by the regulation).

Such a power to rewrite regulations through after-the-fact “reinterpretation” is incredibly tempting, freeing agencies to change the rules of the game without further legislation or congressional oversight, or even the formalized rulemaking process required by the Administrative Procedure Act.

Peri & Sons, a family-run farm in Nevada (one of America’s largest onion producers), is caught in just such an Kafkaesque morass. In its case, the Ninth Circuit ruled that even though the Department of Labor for over five years interpreted regulations issued under the Fair Labor Standards Act to mean that employers aren’t required to pay employees for the costs of moving for a job (including passport and visa applications), DOL is free to change its interpretation to now require employers to cover those costs.

Cato, along with the Center for Constitutional Jurisprudence and the National Federation of Independent Business, filed a brief urging the Supreme Court to hear this case. We argue not just against the Ninth Circuit’s extension of Auer to cases where the agency has reversed its position, but also that Auer itself was incorrectly decided. Granting agencies post-hoc control over their regulations’ textual meaning is an abdication by the courts of their constitutional duty to zealously guard against executive encroachment on the judiciary’s role as interpreters of the law. And we’re not alone in questioning the wisdom of Auer; as recently as 2011, Justice Scalia criticized the ruling as being “contrary to [the] fundamental principles of separation of powers.”

The Supreme Court will be deciding this spring whether to hear Peri & Sons Farms v. Rivera.We urge the Court to take the case and restore a modicum of the Constitution’s separation and balance of powers.

Supporting Marriage Equality in Utah and Oklahoma

Utah Constitutional Amendment 3, passed by referendum in 2004, states that no union other than one between a man and a woman may be recognized as a marriage. Derek Kitchen and five co-plaintiffs took issue with this definition and filed a lawsuit in federal district court last year to challenge the gay marriage ban. In a surprising and widely publicized December 2013 ruling, the court invalidated the amendment, finding that such a restriction was an affront to equal protection and the fundamental right to marry.

Meanwhile, Mary Bishop and Sharon Baldwin also filed a federal suit to challenge a similar provision that was added to Oklahoma’s constitution by referendum in 2004. Like Utah’s district court, the Oklahoma district court found the amendment unconstitutional. Following on the heels of last term’s Supreme Court ruling in United States v. Windsor—which struck down part of the Defense of Marriage Act—these ground-breaking red-state cases are now both before the U.S. Court of Appeals for the Tenth Circuit, which will consider the constitutionality of a state’s decision to exclude same-sex unions from the definition of marriage.

Reprising our collaboration in Hollingsworth v. Perry—the Prop 8 case in which the Supreme Court avoided ruling on the merits—Cato and the Constitutional Accountability Center have filed a brief supporting the Utah and Oklahoma plaintiffs’ fight for equality under the law in their respective challenges. We argue that the Equal Protection Clause of the Fourteenth Amendment was intended to protect from this same type of arbitrary and invidious singling-out that the Utah and Oklahoma marriage restrictions effect; that the original meaning of the Equal Protection Clause confirms that its protections are to be interpreted broadly; and that the clause provides every person the equal right to marry a person of his or her choice. We believe that the Utah and Oklahoma constitutional amendments conflict with the equal protection rights of those same-sex couples whose unions are treated differently than those of opposite-sex couples.

Every person has the right to choose whom to marry, and to have that decision respected equally by the state in which they live. Especially in the wake of Windsor, it is becoming clearer that laws like these that force same-sex unions into second-class status have no place in a free society. The Tenth Circuit should affirm the district courts’ decisions.

With briefing in Kitchen v. Herbert and Bishop v. Smith now complete, the Tenth Circuit will be hearing argument shortly, with a decision expected in late spring or summer.

This blogpost was co-authored by Cato legal associate Julio Colomba.

 

In Defense of Truthiness

If you only read one Cato brief this Supreme Court term, it should be this one.

Believe it or not, it’s illegal in Ohio to lie about politicians, for politicians to lie about other politicians, or for politicians to lie about themselves. That is, it violates an election law—this isn’t anything related to slander or libel, which has higher standards of proof for public figures—to make “false statements” in campaign-related contexts.

During the 2010 House Elections, a pro-life advocacy group called the Susan B. Anthony List (SBA List), published ads in Ohio claiming that then-Rep. Steven Driehaus, who was running for re-election, had voted to fund abortions with federal money (because he had voted for Obamacare). Rather than contesting the truth of these claims in the court of public opinion, Driehaus filed a complaint with the Ohio Election Commission (OEC) under a state law that makes it a crime to “disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false.”

While the complaint was ultimately dropped, the SBA List took Driehaus and the OEC to federal court, seeking to have this law declared unconstitutional and thus enable advocacy groups to have more freedom going forward. The case has now reached the Supreme Court.

Joined by legendary satirist (and Cato’s H.L. Mencken Research Fellow) P.J. O’Rourke, our brief supports the SBA List and reminds the Court of the important role that “truthiness”—facts you feel you in heart, not in your head—plays in American politics, and the importance of satire and spin more broadly. We ask the Court a simple yet profound question: Doesn’t the First Amendment’s guarantee of free speech protect one man’s truth even if it happens to be another man’s lie? And who’s to judge—and on what scale—when a statement slides “too far” into the realm of falsehood?

However well intentioned Ohio legislators may have been, laws that criminalize “false” speech don’t replace truthiness and snark with high-minded ideas and “just the facts.” Instead, they chill speech, replacing the sort of vigorous political dialogue that’s at the core of the democratic process with silence. The Supreme Court of all institutions should understand that just because a statement isn’t fully true, that doesn’t mean it doesn’t have its place in public discourse. Moreover, pundits and satirists are much-better placed to evaluate and send-up half-truths than government agencies.

The Supreme Court will hear argument in Susan B. Anthony List v. Driehaus on April 22.

Time for the Supreme Court to Explain the Scope of the Second Amendment

From the 1939 case of United States v. Miller until 2008’s District of Columbia v. Heller, the Supreme Court left unclear what right the Second Amendment protects. For nearly 70 years, the lower courts were forced to make do with Miller’s vague guidance, which in many jurisdictions resulted in a cramped and limited right to keep and bear arms, erroneously restricted to militia service. While Heller did eventually clarify that the Second Amendment secures an individual right to keep and bear arms for self-defense, the ruling left many questions about the scope of that right unanswered (and 2010’s McDonald v. City of Chicago merely extended the right to people living in the states, without further defining it).

Since then, several courts have made clear that they plan to take only as much from Heller as they explicitly have to. One of these is the U.S. Court of Appeals for the Third Circuit, which last year in Drake v. Filko upheld New Jersey’s “may-issue” handgun law, which says that an individual may be granted a carry license—read: may be permitted to exercise her Second Amendment rights—only if she proves an urgent need to do so to the satisfaction of a law enforcement officer. In order to show this need, one must prove, with documentation, that there are specific, immediate threats to one’s safety that cannot be avoided in any way other than through possession of a handgun. If an individual can actually persuade the local official—who has total discretion to accept or deny the claim—then she gets a license for two years, at which time the gun owner must repeat the entire discretionary process (proving an imminent threat, etc.) to renew the permit.