The Faculty Lounge

Loving v. Virginia's Mildred Loving: 1940-2008

By DIONNE WALKER for the AP:

RICHMOND, Va. - Mildred Loving, a black woman whose challenge to Virginia's ban on interracial marriage led to a landmark Supreme Court ruling striking down such laws nationwide, has died, her daughter said Monday.   

Peggy Fortune said Loving, 68, died Friday at her home in rural Milford. She did not disclose the cause of death.

Loving and her white husband, Richard, changed history in 1967 when the U.S. Supreme Court upheld their right to marry. The ruling struck down laws banning racially mixed marriages in at least 17 states.

They had married in Washington in 1958, when she was 18. Returning to their Virginia hometown, they were arrested within weeks and convicted on charges of "cohabiting as man and wife, against the peace and dignity of the Commonwealth," according to their indictments.

The couple avoided a year in jail by agreeing to a sentence mandating that they immediately leave Virginia. They moved to Washington and launched a legal challenge a few years later.

After the Supreme Court ruled, the couple returned to Virginia, where they lived with their children Donald, Peggy and Sidney.

Richard Loving died in 1975 in a car accident that also injured his wife.

In a rare interview with The Associated Press last June, Loving said she wasn't trying to change history ? she was just a girl who once fell in love with a boy.

"It wasn't my doing," Loving said. "It was God's work."

A sad passing. 

One note on the report.  Loving is usually described as an "inter-racial" marriage case, but it even goes beyond that.  The statute in Virginia didn't ban "racially mixed marriages " as the article describes, but only some racially mixed marriages.  It made it a felony for "any white person [to] intermarry with a colored person, or any colored person [to] intermarry with a white person."  In other words, Blacks, Native Americans, Asians, or any other persons of color could marry with each other, but could not marry someone who was White.  The state's need to defend "racial integrity" as Virginia claimed fell flat because the statute was designed to preserve White racial purity exclusively.  Its one of the quintessential White supremacy cases of the era.          

-Kathleen A. Bergin

SCT Upholds Indiana Voter ID Law

In a 6-3 decision released this morning the Supreme Court upheld an Indiana law that requires voters to produce a photo id in order to cast a ballot.  Its not an easy decision to digest.  Justice Stevens authored the lead opinion, joined by CJ Roberts and Justice Kennedy.  Justices Thomas and Alito joined Scalia's concurrence.  Souter, Ginsburg and Breyer were in dissent. 

Couple points to note, however.  Civil rights groups had lined up with Democrats to oppose the Republican inspired measure on the ground that the burdens imposed will discourage poor, elderly and minority voters from participating in the political process - all without delivering any counterbalancing benefits to the state.  One of the primary motivations behind the law is the asserted need to deter in-person voter misidentification.  The problem is, as pointed out by Justice Souter, not a single instance of this type of voter fraud has been recorded in the history of Indiana elections.  Ever.  But real problems, such as absentee-voter fraud, duplicate registrations, and the like, go unremedied.   

The decision leaves room for future "as applied" challenges - an increasingly favorite strategy for disposing of controversial cases - but those challenges are difficult to win, and certainly don't leave much promise for the tens of thousands of Indiana voters who are now disenfranchised, just in time for the state's May 6 primary.   

Access Crawford v. Marion County Election Board here.  More from Rick Hasen, (Loyola Los Angeles) who authored an amicus brief in support of the challengers, at Election Law Blog.

-Kathleen A. Bergin

Lemons Into Lemonade: Anti-Gay T-Shirt Spurs Great Free Speech Opinion

Kudos to Judge Ilana Rovner on the Seventh Circuit for her concurring opinion in Nuxoll v. Indian Prairie School District. 

A student in a suburban Chicago high school wanted to wear a "Be Happy, Not Gay" t-shirt on a Day of Silence - a date identified both nationally (and by the school's gay/straight alliance) as a time to draw attention to harrassment of gay people.  The school sought to bar the boy from wearing this shirt through the halls of Neuqua Valley High School, in Naperville, Illinois.  He sought a preliminary injunction against the school's action (which was denied) and he appealed to the Seventh Circuit. 

In a tepid opinion,  Judge Posner reversed the trial court.  Judge Rovner roared in concurrence.  She strongly backed the Supreme Court's decision protecting student speech in Tinker v. Des Moines Indpendent Community School District - and particularly worried that majority had improperly recast it as a case about viewpoint discrimination.  She also made powerful claims for the role of youth in shaping society and initiating political change.  She did not treat the t-shirt as deep political claimsmaking, but she accorded the issues of sexual orientation and identity deep respect by demanding that students be allowed to engage the issue in the high school.  One can easily make the case that the very act of suppressing Nuxoll's viewpoint, in this context, diminishes the seriousness of the issue in contention.

I particularly liked this passage:

I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civilrights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. They have initiated a dialogue inwhich Nuxoll wishes to participate. The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, is contrary to the values of the First Amendment.

In Larry Solum's words, get it while it's hot!

H/T to How Appealing.

File Under: Articles I need to read

Working on some stuff related to the Civil Rights Act of 1964 tonight.  And so I call up this twenty-year old but still vivid memory, from first year constitutional law.  Then-Professor (now Judge) Lynch was talking about Katzenbach v. McClung and he mentioned a student brought him a jar of Ollie's barbecue sauce.

I think Dreamland has the best ribs ("ain't nothing like 'em, nowhere")--but I know feelings run high on this one and I also believe that reasonable people can differ on this.  So I need to give the Ollie's sauce a try.  (Of course I'm partial to things with Dreamland in the name--Dreamland Theater in Tulsa, Dreamland Ribs in Tuscaloosa and Birmingham.)  And now that I'm doing some looking in Ollie's, I realize that its location as of the Katzenbach case was close to where Dreamland Ribs is now in Birmingham.  My, how the times have changed.

Also, I need to read Mark Wiener's The Semiotics of Civil Rights in Consumer Society: Race, Law, and Food--here's his abstract:

Cooking and constitutionalism. Food and racial equity. I intend the juxtaposition to be jarring, even humorous. I would like to view it as a subtle indication of a historical trend in which central aspects of legal memory have been repressed from contemporary civic practice and important intellectual questions, concerning semiotics in consumer society, have been neglected in mainstream legal scholarship. As I will explain, the story of Ollie''s barbecue suggests not only that cooking and constitutionalism are intricately linked, but also that the expansion of postwar economic life formed a material basis for this hidden bond. Considering the history of Ollie''s thus can both illuminate the deep historical meaning of the Civil Rights Act, and also point the way toward a more general field of research, the development of what might be called a legal semiotics of consumption. 

We're Not in Kansas Anymore . . .

The Tennessee Chapter of the Church of the Flying Spaghetti Monster received permission to erect a statue of "His Noodly Appendage" on the grounds of a local courthouse.  Not familiar with the Church of the Flying Spaghetti Monster?  Check out the website here. 

Its actually a great teaching tool for those who teach First Amendment - and its good for a few laughs!

More on the statue from C-Net News.

-Kathleen A. Bergin

cross-post First Amendment Law Prof Blog

He Who Does Protest Too Much: Scalia and Washington Grange

Justice Scalia is fond of excoriating his more centrist colleagues for blurring the line between politics and judicial decision-making. The decision to strike down a Colorado measure that discriminated against gay, lesbian and bisexual individuals was "an act, not of judicial judgment, but of political will," he wrote in his dissent to Romer v. Evans.  Seven years later, again in dissent, he called the decision to strike down Texas’s anti-sodomy law in Lawrence v. Texas "the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

There are those of us who think Scalia does protest too much, that his rulings are at least as transparently right-leaning as those he rejects are, in his view, transparently left.  After all, if the majority in Lawrence took sides in the culture war over gay rights, as the accusation stands, then Scalia did too.  He just came out on the other side.

Last week the Court decided Washington Grange v. Republican Party, and once again Scalia found himself in dissent. Having read and re-read the decision nearly a dozen times, I can’t help but conclude, once again, that it is Scalia himself who stands guilty of blurring the lines between politics and law. Its not so much that I disagree with his rationale, or his conclusion. Much to my surprise, I agree with Scalia on the merits of the case. That said, I can’t find a way to reconcile his dissent in Washington Grange with what he’s written in other First Amendment cases.

Let me explain.

Can Children Adopted From Abroad Be President?

Calvin Massey,  Eugene Volokh, and Jim Lindgren among others,  have been blogging about whether McCain is a natural born citizen for the purposes of Presidential eligibility under Article II, Section 1 of the Constitution.  The general view seems pretty consistent: he is good to go.  But between 1971 and 2001, over 265,000 children were adopted from abroad - and that number continues to rise.  What about these kids, born to non-citizens and adopted by citizens.  Can they become President?  The general view seems to be that naturalized citizens like Arnold Schwarzenegger, naturalized as adults, are ineligible.  And the LA Times thinks that rule extends to children adopted from abroad.  I know that there isn't a definitive answer, but is there a good case to be made for allowing these citizens to serve?  It seems to me that the policy concerns - if any exist - don't apply to children who have grown up from a tender age as children of citizens.  We know that children born abroad to US citizens are typically treated as citizens at birth.  8 USC 1401  And I'm not convinced that the answer is as simple as for the typical adult, or even teen, who becomes a naturalized citizen. 

In some respects, this is precisely the type of Constitutional interpretation best left to voters.  Let the other Presidential candidate(s) run on the "she's not Constitutionally competent" platform and see how the electorate interprets the document.

Preemption and San Francisco's Employer Mandated Health Care Ordinance

     Tuesday was preemption day at the US Supreme Court , with the Court handing down a string of preemption decisions, each involving different federal statutes.  In Riegel v. Medtronic the Court found that the Medical Device Amendments of 1975 preempted state tort law with respect to federally approved medical devices that cause personal injury.  In Rowe v. New Hampshire Motor Transport Ass'n the Court found that a 1994 law deregulating trucking preempted a Maine state law requiring shippers of tobacco to use a delivery method that verified the recipient was of legal age.  In Preston v. Ferrer the Court ruled that the Federal Arbitration Act preempted state laws placing jurisdiction of disputes in which the parties had agreed to arbitration in some other forum.  Finally, in an important federalism decision that does not involve statutory preemption, Danforth v. Minnesota, the Court ruled that states are free to apply "new rules" of constitutional law retroactively even though, under Teague v. Lane, there is no requirement of retroactive application. 

     What might these cases portend for San Francisco's ordinance that requires employers to pay mandated sums for employee health care and to maintain San Francisco-specific records relating to their health care expenditures?  These "fair share" or "pay or play" statutes have been adopted elsewhere (Maryland and Suffolk County, New York) and have been determined to be preempted by ERISA (Retail Industry Leaders' Ass'n v. Fielder, 475 F. 3d 180 (4th Cir. 2007) and Retail Industry Leaders' Ass'n v. Suffolk County, 497 F. Supp. 2d 403 (E.D.N.Y. 2007)).  A federal district court reached the same conclusion in the SF case, but its order was stayed pending appeal to the Ninth Circuit.  Whatever the outcome of a pending application for an order vacting the stay the likelihood would seem to be strong that  the SF ordinance will be held to be preempted, under the obstacle branch of implied conflict preemption.  Tuesday's preemption cases were not even close; most were 8-1 or 7-2.  Danforth is the exception, but that case should be treated as an extension of the principle that state courts are free to give their state constitutional rights broader scope than the analogous federal right.  Danforth simply says that Teague creates a retroactivity rule for the federal courts, but state courts are free to devise their own remedies for violations of federal rights, and may create broader remedies than the federal courts might be permitted to do.   But when it comes to reading congressional intent in statutory preemption cases, the Court seems to be shifting toward a stronger version of preemption.  So much for San Francisco's ordinance.   

Are Pitbulls the Black People of Dogs?

The internet is a-chatter with criticisms and support of Breed Specific Legislation (BSL).  A simple Google search for “pit bull” brings up countless articles, blogs, videos, and posts of reports of pitbulls mauling children, pitbulls jumping fences, pitbulls with muzzles, and pitbulls locking jaws.  Enthusiasts from the other side recall pitbulls joyfully licking feet, pitbulls snuggling with infants, and pitbulls seeking belly rubs.  The diversity of experiences and interactions with this breed demonstrates the wide variety of animal personalities, while suggesting that the aggressive reputation of pitbulls has little to do with innate and immutable characteristics.  Rather, as many owners and activists argue, it is the aggressive treatment of the animal that unleashes the bad and dangerous behavior.  Under this logic, a quorum of Alpha Pomeranians with incidents of biting, mauling, and lunging could generate similar ire and fear, transforming the reputation of the dog from Toy Breed to Fighting Breed.   

Liberty and Establishment of Religion

         Today's mailbag brought a copy of an article by Richard Duncan (Nebraska) which asks why there are different doctrinal answers to three hypothetical challenges to required daily recitation of the Pledge of Allegiance in state-run public schools. 

        Case One: A sues School claiming that the requirement infringes his right not to speak.  A wins; the court cites Barnette for authority; but students who want to recite the Pledge may do so.

        Case Two: A sues School claiming that the requirement infirnges her free exercise rights because her religious beliefs forbid such a pledge.  A probably loses (Employment Division v. Smith), but even if she wins she only gets excused; willing students continue to recite the Pledge.

        Case Three:  A sues School claiming that the requirement is a forbidden establishement of religion becuase the Pledge asserts that the US is "one Nation under God."    A may or may not win (the Court hasn't yet told us the answer, having ducked the merits in Newdow) but if A does win her victory will bar everyone from reciting the Pledge, including those pupils who are enthusiastic believers in this proposition. 

        Each of these cases involve incorporation of a Bill of Rights guarantee against the states.  Why is it that the first two liberties are redeemable only on an individual basis but the last one imposes a collective barrier?  A stock answer is that the last case involves governmental endorsement of religion, and the establishment clause is intended to disable governments from using its institutional authoirty to advance or retard religious views.   Duncan advances Justice Thomas's suggestion that the establishment clause was not so intended (at least with respect to the states), and in any case when it is incorporated into the Fourteenth Amendment's due process clause it should operate to advance individual liberty.  The conventional reading of the incorporated establishment clause fails to do this, says Duncan.   As applied to states, the establishment clause should not be a structural limit on government but a guarantor of freedom from coerced belief.   The clerisy will disagree with Duncan.  The University of Nebraska Law School's home page has a link to the article, 20 Regent L. Rev. 37 (2007). 

Calvin Massey