Eugene Volokh's Blog, page 2652
December 13, 2011
Yet Another Court Rejects' Occupiers First Amendment Challenge to No-Overnight-Camping-in-the-Park Rules
This one is Freeman v. Morris (D. Me. Dec. 7, 2011), which dealt with the Occupy Augusta encampment. As with the other cases, the court held that the Supreme Court's Clark v. CCNV (1984) decision is dispositive. Clark also involved people claiming a right to demonstrate in a park by putting up a tent city that they'd occupy for an extended time; the Court rejected the claim, holding that a Park Service rule banning camping in such parks was a constitutionally permissible content-neutral restriction on conduct. That's pretty closely on point, as courts have rightly concluded.
What Makes an Expectation of Privacy "Reasonable"? A Response to Chief Justice Roberts
During the oral argument a few weeks ago in United States v. Jones, Chief Justice Roberts had some very interesting questions about the Fourth Amendment's "reasonable expectation of privacy" test. I fear that the Chief Justice's questions may reflect a common misunderstanding of the test. In this post, I wanted to explain the Chief's possible error, and explain how I think the reasonable expectation of privacy test is supposed to work.
I. The Possible Misunderstanding
The questions that grabbed my attention seemed to assume that the "reasonable expectation of privacy" test asks an empirical question — that a Fourth Amendment expectation of privacy is "reasonable" when reasonable people expect privacy. Just before the relevant exchange, Deputy SG Michael Dreeben had argued that using a GPS device on the suspect's car could not have infringed the suspect's reasonable expectation of privacy because it only revealed the suspect's location in public. The Chief Justice responded:
CHIEF JUSTICE ROBERTS: I give you that, that it's in public. Does the reasonable expectation of privacy trump that fact? In other words, if we ask people, do you think it's — it violates your right to privacy to have this kind of information acquired, and everybody says yes, is it a response that, no, that takes place in public, or it simply the reasonable expectation of privacy regardless of the fact that it takes place in public?
MR. DREEBEN: Well, something that takes place in public isn't inherently off limits to a reasonable expectation of privacy. That's essentially the holding of Katz. You go into a phone booth, you're in a public; making your calls within the phone booth is subject to a reasonable expectation of privacy. But this Court, with full awareness of that holding, in Knotts and in Karo recognized that surveillance of a vehicle traveling on the public roadways doesn't fit that description.
CHIEF JUSTICE ROBERTS: You can see, though, can't you, that 30 years ago if you asked people does it violate your privacy to be followed by a beeper, the police following you, you might get one answer, while today if you ask people does it violate your right to privacy to know that the police can have a record of every movement you made in the past month, they might see that differently?
A similar point came up later in the same argument when counsel for Jones argued that "society does not expect" monitoring like GPS monitoring and therefore it violates a reasonable expectation of privacy. Chief Justice Roberts responded by asking how we know what people think is a violation of privacy:
CHIEF JUSTICE ROBERTS: How do we tell? I mean, I don't know what society expects. I suppose if you ask people do you think it's a violation of privacy for the police to do this for no reason for a month, maybe they would come out one way. If you asked the people do you think the police have to have probable cause before they monitor for 5 minutes the movements of somebody they think is going to set off a huge bomb, maybe you get a different answer.
Interestingly, Chief Justice Roberts had a similar line of questioning during the April 2010 oral argument in City of Ontario v. Quon, which raised a question (that the Court ultimately did not answer) of whether people have a reasonable expectation of privacy in text messages. Quon was a police officer who had been given a text pager by the city; he had been told that he could use the pager for personal messages but that the city would audit the messages and that he had to pay for any overage charges caused by his personal messaging. The city ultimately did audit the messages, read them, and use them to embarrass Quon, and Quon claimed that this violated his Fourth Amendment rights. Chief Justice Roberts' questioning again went to what privacy a reasonable person might expect:
CHIEF JUSTICE ROBERTS: Well, we are dealing with Mr. Quon's reasonable expectations, right?
MR. RICHLAND: Yes, yes.
CHIEF JUSTICE ROBERTS: And even with the written policy, he has the instructions — everybody agrees — you can use this pager for private communications.
MR. RICHLAND: That's correct.
CHIEF JUSTICE ROBERTS: We're not going to audit them. Right? That's what he said. He has to pay for them. Right? Now, most things, if you're paying for them, they're yours. And this — it particularly covered messages off-duty. Now, can't you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business?
It's important not to make too much of questions at oral argument, of course. Sometimes oral argument questions are designed to play devil's advocate, or to point out problems to other Justices. But my sense from both arguments is that Chief Justice Roberts may understand the "reasonable expectation of privacy" test to pose an empirical question: The Court determines when an expectation of privacy is "reasonable" by asking whether a reasonable person would expect a privacy right in those circumstances.
I think this understanding is incorrect, although I come across it often: Indeed, I have encountered it sufficiently often that I have responded to it here before. But given that the issue keeps coming up, I wanted to explain a bit more why I don't think it's correct.
II. What Makes an Expectation of Privacy Reasonable?
The trick to understanding this problem is that the phrase "reasonable expectation of privacy" is a legal term of art that shouldn't be applied literally. As the Court explained in United States v. Jacobsen, "[t]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." Put another way ‚a reasonable expectation of privacy is not the same as the expectation of privacy of a reasonable person. This point is clearer and less counterintuitive if we use the alternative articulation of the Katz test. The Court uses "reasonable expectation of privacy" and "legitimate expectation of privacy" interchangeably, but I think the latter term is less confusing and more revealing about what the test is and how it should be applied.
So if an expectation of privacy isn't reasonable (or "legitimate") when a reasonable person would have that expectation, when is it reasonable (or "legitimate")? I think the most helpful explanation in the caselaw was authored by then-Justice Rehnquist in Rakas v. Illinois:
Obviously, however, a "legitimate" expectation of privacy. by definition. means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as "legitimate." His presence, in the words of Jones, 362 U.S. at 362 U. S. 267, is "wrongful"; his expectation is not "one that society is prepared to recognize as reasonable.'" Katz v. United States, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will, in all likelihood, have a legitimate expectation of privacy by virtue of this right to exclude.
Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But, by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U. S. 165 (1969), where the Court held that an individual's property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra at 389 U. S. 351; Lewis v. United States, 385 U. S. 206, 385 U. S. 210 (1966); United States v. Lee, 274 U. S. 559, 274 U. S. 563 (1927); Hester v. United States, 265 U. S. 57, 265 U. S. 58–59 (1924).
Rehnquist sharpens the analysis significantly in this passage, I think. He points out that the test isn't about empirical expectations; that it's not just a circular question; that it has to be rooted in some outside source; and that no one outside source is dispositive. Further, Rehnquist starts off the list of possible outside sources that can make an expectation of privacy reasonable: property is one, and "understandings that are recognized and permitted by society," whatever that may mean, is another.
Back in 2006-07, I wrote an article that went through all of the Court's "expectation of privacy" cases and developed a comprehensive list for what sources the Court has relied on: I called the article "Four Models of Fourth Amendment Protection," as I found four different kinds of arguments (what I called "models") that the Court has used to justify expectations of privacy. More broadly, that article tried to explain why the Court has used the different explanations, and why no one explanation suffices: The test for what is a search has to distinguish less invasive types of law enforcement steps from more invasive types of steps, all in a world in which the facts of investigations are constantly changing and new facts are arising, and no one test seems to do that in a way that can be readily administered in a complex court system.
Of course, that doesn't mean that reliance on the four models is ideal, although as I explain in the article, I do think it has a lot of unrecognized benefits. And as I have explained more recently, it does facilitate the needed equilibrium-adjustment in cases that involve new technologies. But at a minimum, I think this does explain why the Court does not and should not apply the "reasonable expectation of privacy" test simply by asking when a reasonable person would expect privacy.
Some Questions and Some Answers about Marital Choice of Law
Here are a few follow-up questions to my first post this morning.
"Burt Likko" says: Prop. 8 is worded: "...only marriage between a man and a woman is valid or recognized in California." I have a hard time getting past the plain meaning rule to reach a result that an Iowan or Canadian same-sex marriage license would be "valid or recognized" in California.
Answer: Maybe. But note that in Strauss v. Horton, (starting on p. 128) the California Supreme Court has already made an exception to the text of that provision, holding that same-sex-marriages that preceded the enactment of Prop 8 are indeed valid and recognized in California. The court relied on background principles of anti-retroactivity, as well as respect for vested rights (and the state's due process provision). And Maryland recognizes out-of-state same-sex marriages despite a law that provides that "only a marriage between a man and a woman is valid in this State."
Would a marriage validly celebrated in another state — especially by a resident of that other state, though that is not the only scenario — be treated as a "vested right" that Prop 8 left intact? I do not know, but I am not as sure as the commenter is that the answer is obvious.
"Henry Clay" asks: I've been looking forward to this post because I've been wondering what examples there are of states not recognizing marriages from other states apart from the obvious examples of SSM and Jim Crow. Are you really going to just wave your hand at that ("sometimes they don't") or is there another post on the way?
Answer: If you really want to dig into the historical examples here, you'll have to leave the blogs. The short answer is that most of the examples are indeed from same-sex marriage and the interracial marriage context. Basically, most states claim a right to refuse to recognize a marriage only in extreme circumstances, known as the "public policy exception," and this exception doesn't get invoked that often.
For further reading about the rarity (outside of same-sex marriage) of the "public policy exception," see Steve Sanders's very engaging paper, The Constitutional Right to (Keep Your) Same-sex Marriage." For further reading about the interracial marriage precedents (and others), see Andrew Koppelman's excellent book, Same Sex, Different States (the only e-book I've ever purchased!). To see what other complications I'm trimming out for blogging purposes, see my paper.
"Rocket Scientist" says: I take some small issue with the claim that same-sex marriages would be recognized in New Mexico. The opinion is an attorney general opinion not really a court ruling, so there may still have to be litigation in order to resolve the question.
Answer: A good point! While I'm not aware of a court in any of the states I mentioned that has bucked the ruling of the state Attorney General, those issues are still up for grabs in litigation, so the state of affairs is even more uncertain and confusing than I made it sound.
This brings me to my ultimate point — which is that this is a mess. (There is a saying you only need to know two things about conflict-of-laws: that there is no area where 20th-century academics have had a greater impact on the law, and that there is no area of the law that is more screwed up.) And we haven't even gotten to the worst part of the conflicts problem yet, which will come when we bring in the federal government. So stay tuned; it gets worse before it gets better.
Bill of Rights Institute Video on The Rule of Law
The Bill of Rights Institute has just produced a nifty new video on The Rule of Law and why it matters. You can take a look here. I was delighted to be invited to contribute to the video and you'll see I pop up a couple of times.
The Bill of Rights Institute, for those of you who are unfamiliar, is a nonprofit group that educates high school students about the Bill of Rights. It describes its mission as follows: "The mission of the Bill of Rights Institute is to educate young people about the words and ideas of America's Founders, the liberties guaranteed in our Founding documents, and how our Founding principles continue to affect and shape a free society. It is the goal of the Institute to help the next generation understand the freedom and opportunity the Constitution offers."
I've been the group's Academic Advisor since its founding and I now also serve on the Board of Directors. If you are interested in knowing more about BRI for yourself or your kids, check it out here. And remember that December 15 is Bill of Rights day!
Interpreting the Durban Climate Change Conference Outcome
So how should the outcome of the Durban conference, the UN's latest climate change confab, be interpreted? Looking at it strategically, adopting by assumption the standpoint of wanting to see maximum binding international legal enforcement, how did things fare? I see three general interpretations on the table: optimists, pessimists, and mitigators. And add a fourth, skeptics — skeptical in this instance on both the negotiations and the underlying issue, so not fitting into the starting assumption.
Optimists: Daniel Bodansky (a preeminent international environmental law scholar who is a leading theorist of ways in which international climate change negotiations can overcome what might otherwise be seen as daunting collective action problems) offers the optimist position at the international law blog Opinio Juris. He wrote a series of posts from Durban for OJ, which are well worth reading, and his latest post sums up the glass-half-full optimist view:
As compared to the expectations going in, the outcome was more than I think most people thought possible. In a pre-Durban paper entitled "W[h]ither the Kyoto Protocol," I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a "political" (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies. Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic. But the Durban outcome is in fact closest to (3):
It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
It agreed to extend the Kyoto Protocol by another 5–8 years. Although the emissions targets for Kyoto's second commitment period still need to be worked out, and the formal amendment won't be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
It agreed to launch a new negotiating process to develop a "protocol, another legal instrument, or agreed outcome with legal force," addressing the post-2020 period and "applicable to all Parties."The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions. Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations. And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol. What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015) and language that the outcome of the new negotiations will have "legal force." Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form. In the end game of Durban, India was unwilling to accept a mandate to negotiate a "protocol or another legal instrument," and preferred the formulation "legal outcome." The United States suggested "outcome with legal force," India added "agreed," and the EU said ok. Thus the deal was done.
Pessimists: Michael Levi, a Council on Foreign Relations senior fellow, offers a different and far more pessimistic assessment. He is particularly concerned to counter the fairly upbeat stories in the Western press on what had been accomplished, and goes to the nitty-gritty of the actual language of the Durban agreement — which is to say, what was actually agreed and not simply skepticism that whatever was agreed, down the road parties would nullify it through defection.
The Durban climate talks are over, and many are celebrating. After repeatedly reaching the brink of collapse, the summit produced agreements on several counts. The Associated Press reported that it approved a "landmark deal" that was "meant to set a new course for the global fight against climate change for the coming decades". Christina Figueres, head of the system that oversees the talks, heralded the arrival of a "remarkable new phase in [the] climate regime".
Nonsense.
Most of the agreed texts fleshed out matters left unfinished last year in Cancun: rules for a new climate fund, the structure of an international network of technology centers, a scheme for avoiding deforestation, and parameters for a system meant to increase the transparency of countries' emissions-cutting actions. It is this part that will have the greatest substantive impact and is worthy of celebration. A climate fund with good rules, for example, is more likely to attract money and to use it well, while a sound system for auditing countries' climate efforts will make it easier to create a virtuous cycle of action.
But it was not debate on these matters that took the talks to the edge, and it was not resolution of them that inspired the most applause. Instead, it was an agreement to initiate "a process to develop a protocol, another legal instrument or an outcome with legal force under the Convention applicable to all Parties" that has led commentators to conclude that there will be a new treaty that will legally bind all countries to reduce emissions. Alas, that conclusion is not warranted.
I myself have substantial doubts, given the state of public finances in the developed West, that the climate fund will work out as planned or as Levi hopes (Levi is no fool, so I don't mean to suggest that he thinks it will actually work as advertised). I myself view it as a sort of "stranded capital" or legacy of an earlier period in which, to use the melancholy phrase in Spain, "we used to be rich" - cuando eramos ricos. This is not just a problem of broke countries who promise but don't actually pay up when confronted with the problem of paying public pensions at home or facing riots. (Or, not to put too fine a point on it, Western countries borrowing money in Asian markets at substantial interest to contribute to global funds.) It is, more broadly and over the long-term, the problem of conjoining three things:
Climate change advocates and their tendency to treat their issue as though, from the standpoint of either the UN or the international development industry, it were the only thing now or ever in the history of the world.
The UN and its history of identifying serial "It-Girls" that allow the UN to engage in massive calls for transfers from rich world to poor world, run through the UN rent-seekers.
The international development industry and its desire to find new ways to justify big chunks of aid money.
Seen from the standpoint of the institutional UN and the international aid industry, in other words, rather than from a "this issue is unique" climate advocacy view, the central point of all these things is the climate fund and any other mechanism by which rich countries can be pressured, legally, morally, or politically, to transfer funds, through the rent-seeking conduits. Which is to say, from the standpoint of the UN and the aid industry, there is nothing "unique" about this issue at all. From a development standpoint, it was preceded by the Millennium Development Goals, by the demands for .7% GDP development assistance from rich countries, and more stretching back many decades practically to the founding of the UN.
These serial initiatives are not unique, because they all feature a compelling narrative that justifies substantial fiscal transfers via rent-seeking international actors and often new mechanisms of global governance to administer the fiscal transfer. They also have another particular feature — when they don't work or run out of moral imperative, then the UN leaves the initiative stranded and looks for something else. The new "It-Girl."
But, note to climate advocates: the UN never actually stops doing something or ends it, because one never knows how much residual value it might still accumulate and because there is always some bureaucrat to staff it. But it becomes stranded capital; Cf. Jeffrey Sachs' Millennium Development Goals. Will the MDGs ever truly go away? Does anyone care anymore, really? Now ask yourself what makes climate change any different; maybe this one is really different, but as someone who studies not climate but the institutional UN, it doesn't look that way to me.
Point of this digression being that although I share Levi's close and skeptical analysis of the Durban text that follows next in his post, I am also highly skeptical of the fate of the climate change fund. But note this sample of Levi's analysis of the celebrated terms of the Durban language:
The first problem is with the word "treaty", which appears nowhere in the agreement. Indeed some will insist that a mere set of formal decisions by the parties – like, say, the Cancun Agreements of last year – ought to qualify as an "outcome with legal force"; they may not have as much legal force as some would like, but surely one can argue that they have some. Perhaps this traps countries like China and India a bit: they can argue out of seeking a new instrument only by asserting that COP decisions have some legal weight. But one thing is clear: there is no commitment to seek a new treaty or protocol.
It's also worth noting that, contrary to most media reports, the text's requirement for "legal force" is broad, and does not necessarily need to apply to emissions cuts. It could, for example, be read to require that transparency provisions, rather than emissions cuts, have legal force. I would not be surprised to see the United States push such an approach.
Similarly, just because the text says that the new agreement must apply "to all Parties", it needn't have the same effect on all of them. The Kyoto Protocol, after all, also applied to all parties, just in very different ways. To be certain, this is a legalistic interpretation, and any country that tries to press it will probably suffer in the court of public opinion. In particular, the United States and Europe will point to the lack of any language on "common but differentiated responsibilities", "equity", or anything explicitly distinguishing developed and developing countries in the text, in order to claim that all must be bound similarly. But arguing for differentiation remains an option nonetheless, and it is one that developing countries will almost certainly avail themselves of. Indeed, after Copenhagen, the United States and Europe also claimed that the distinction between developed and developing countries had been abolished. That does not seem to have stuck.
Mitigators: Bjorn Lomborg sits somewhere in-between all of this. Writing in the Wall Street Journal (behind the pay wall, but this link might work):
The Durban pit-stop in the endless array of climate summits has just ended, and predictably it reaffirmed the United Nations' strong belief that the most important response to global warming is to secure a strong deal to cut carbon emissions. What is almost universally ignored, however, is that if we want to help real people overcome real problems we need to focus first on adaptation.
The Durban agreement is being hailed as a diplomatic victory. Yet it essentially concedes defeat, leaving any hard decisions to the far end of the decade when other politicians will have to deal with it. For nearly 20 years, the international community has tried to negotiate commitments to carbon cuts, with almost nothing to show for it. Even most rich countries don't want to cut fossil fuels, because the alternatives are considerably more expensive. China, India and other emerging economies certainly do not want to, because putting the brakes on growth means consigning millions to poverty.
But even if such intractable issues could be magically resolved, any deal would have a negligible impact on climate. Even if we were to cut emissions by 50% below 1990-levels by 2050—an extremely unrealistic scenario—the difference in temperature would be less than 0.2 degrees Fahrenheit in 2050.
Let me freely reconstruct his premises a bit; they seem to me four-fold:
First, the Durban outcome was essentially failure on any collective legal action on which one could reasonably rely, save perhaps something in the climate fund.
Second, it would be imprudent to think that even legally binding outcomes would be adhered to as written, as a basis for conducting future policy; the collective action problems are too daunting and defection too tempting.
Third, even the kinds of cuts contemplated in the best case scenario would have little impact on the climate change effects that are most likely to occur soonest; trying to prevent the most important effects on actual human beings by curtailing carbon at the front end is not just a political and economic non-starter, it is inefficient if the goal is to address the actual human harms.
Fourth, therefore, the best approach is to seek ways of mitigating the actual damage likely to be caused, essentially at the back end, and seek better technological solutions over the long run.
On this view, the climate change fund could play an important "mitigation" role. But that is only so long as it is aimed at particular, actual damage in the real world — rather than being how it seems to have been contemplated by the UN and poor countries, just another in the long series of arguments for large scale transfers from rich to poor, justified by reference to climate arguments, but really merely the latest in a long series of never ending reasons for the rich world to send more money.
Skeptics: Skeptical for these purposes means someone who is skeptical about the political-legal outcomes but also about the underlying issue. So it is worth reading Reason's Ronald Bailey, who was also at Durban; here is his latest short blog post. Most interesting was the comment about the climate change fund:
The climate negotiators also agreed to launch the Green Climate Fund which will redistribute aid from rich country taxpayers to poor country governments with the goal of helping poor countries cope with climate change. At the Copenhagen and Cancun climate conferences, rich countries promised to suppy $100 billion in climate aid annually by 2020. However, how much of the $100 billion would flow through the Green Climate Fund is still not decided and how the Fund will be financed is also not decided.
The idea that rich countries will be ponying up $100 billion annually by 2020 seems to me the triumph of hope over experience, even if one assumes it were a good idea. Which is to say (again, reading this as not about climate but about international organization rent-seeking and international development income transfers) recall that the Millennium Development Goals, when proclaimed back in 2000, were supposed to be funded to [IIRC; am not looking it up but this is ballpark] around $120 billion annually. Substitution effects? Does this sound quite so much like "climate change" anymore, or instead another grandiose UN development income transfer scheme?
"Judge Dismisses Case He Planned to Use Islamic Law in"
The Tampa Bay Times reports:
Circuit Judge Richard Nielsen ruled last week that the Constitution barred the court from getting involved in a dispute between the mosque — the Islamic Education Center of Tampa — and several ousted trustees.
The order is something of an about-face for Nielsen, whose earlier ruling that he would use "ecclesiastical Islamic law" to decide an issue in the case triggered national publicity and criticism from some commentators.
In a brief two-page order, Nielsen cited an earlier, precedent-setting ruling by another court in a different case that found "the trial court could not intervene in an internal church governance dispute."
Quoting that decision, Nielsen wrote that the Constitution "permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and governance, and to create tribunals for adjudicating disputes over these matters."
Nielsen concluded, "Once such matters are decided by an ecclesiastical tribunal, the civil courts are to accept the decision as binding on them." ...
For more on the earlier decision, see this post. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
NDAA Detention — Conference Markup
Last week I commented on and linked to posts at Lawfare by University of Texas' Robert Chesney analyzing the Senate version of the National Defense Authorization Act and its detention provisions, including US citizen detention. This is very much a moving target, with the House and Senate versions of the bill having moved to conference for reconciliation. Chesney, Wittes, and others at Lawfare are continuing a close read of the successive versions, and if you want to stay abreast of things, go to Lawfare. At this point, Chesney observes with respect to US citizen detention (you need to read Chesney's linked series of posts to really understand the background):
[T]he [conference] language is the same as in the final Senate bill:
Section 1021(e) AUTHORITIES.—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.
That is, the NDAA should not be read to express views on such questions one way or the other, but rather the matter if litigated should be decided under the original AUMF just as it would have been absent the NDAA. But note that the language is not sufficiently clear whether this rule of construction is meant to encompass citizens and LPRs captured anywhere, or just when captured in the United States itself. That is, should the "captured or arrested in the United States" clause at the end be read as modifying only the language "or any other persons," or instead as modifying all three categories listed in that sentence?
Chesney goes on in a separate Lawfare post to observe that the "mandatory military detention" is not actually very mandatory:
Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that's not at all the necessary result, for three reasons.
Read the Lawfare post to find out his three reasons. Or, as Glenn Reynolds might put it, read the whole thing. But in this case, the target is moving such that you have to read backwards and forwards.
Economists Look Back at 2011 through Graphs
This link from the BBC has been making the rounds via Twitter and FB, but I thought I'd link it for readers. The focus is on sovereign debt and the eurozone, and it is a fascinating collection of graphs from a mixture of economists looking at 2011 through graphs of various economic and market indicators.
Marital Choice-of-Law 101
So we've established that in a world without DOMA, state law is the natural place to look to figure out whether a same-sex couple is married. Here is where we meet our first conflict-of-laws problem.
You surely know that some states allow same-sex couples to marry, and others do not. So what happens when a couple lives in a no-same-sex-marriage state, but gets married out of state? Or lives and marries in a same-sex-marriage state, but then moves to a no-same-sex-marriage state? Well, it depends.
In Maryland (or Rhode Island, or New Mexico), the couple will still be treated as married, even though they couldn't have gotten married in that state. In many other states, they won't be. Texas is an extreme example: a same-sex couple moved there from Massachusetts and wasn't even given access to divorce court, because Texas figured they were never married in the first place.
And in other states, the answer is still up in the air. Remember the controversy about District Judge Vaughn Walker's same-sex relationship, and possible marriage plans? Steven Gillers suggested that if Walker had any interest in getting married, he could just travel to Iowa or another same-sex-marriage state. Ed Whelan's response was that such a marriage should not be recognized in California. But the strange thing is that California law isn't really clear on this point, so even after looking into it, I don't know for sure how the California courts would apply Prop 8 to an out-of-state same-sex marriage.
Now, in a sense, this is not a new problem for the states. People have been getting married and moving around for a very long time. But there's never been widespread agreement about the solution to that problem. Most of the time states defer to the state where the marriage was "celebrated," but sometimes they don't.
So when you ask whether a same-sex couple is married under state law, the answer depends on which state you ask.
December 12, 2011
Restyled Federal Rules of Evidence (Effective Dec. 1, 2011), with Hyperlinks
The Restyled Federal Rules of Evidence are now online, thanks to FederalEvidence.com, and with hyperlinks from rule to rule, as well as to the statutory history of each rule. (For more on the restyling project, see the Memorandum to the Bench, Bar, and Public Regarding the Proposed Style Amendments to the Federal Rules of Evidence.
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