DOMA in the Supreme Court – Behind the Decision


United States v. Windsor

The Supreme Court struck down the Defense of Marriage Act this Term by declaring it unconstitutional. This historic decision has many important implications for the future. Get the facts on where same-sex marriage now stands from Chicago-Kent Professor Katharine Baker, who submitted an amicus brief on behalf of family law professors to the case.

Affirmative Action in Fisher – Behind the Decision


Fisher v. University of Texas

The Supreme Court’s decision in Fisher v. University of Texas didn’t make any sweeping declarations on affirmative action. In a 7-1 decision (with Justice Kagan recusing herself), the Court sent the case back to the lower courts. Distinguished Professor Sheldon H. Nahmod, who has argued on civil rights in the Supreme Court, explains what the decision means.

After The Decision: The Voting Rights Act


Shelby County v. Holder

Last month in Shelby County v. Holder, the Supreme Court struck down a key provision of the Voting Rights Act of 1965, a law created to counter discriminatory voting laws. At the time, Congress was concerned that it would be easy for jurisdictions to pass new laws or regulations that were facially neutral but that had a discriminatory effect. As a result, Congress included Section 5 of the VRA, which required certain jurisdictions, mostly in the South, to “preclear” any voting changes with either the U.S. Department of Justice or with a special court in Washington, D.C. When originally passed, this provision was set to expire in five years, but it has been repeatedly renewed, most recently in 2006 for an additional 25 years. Section 4 of the Act sets forth the “coverage formula” for Section 5. The coverage formula has not been updated since the 1970s.

In this Term’s big voting rights case, Shelby County of Alabama challenged these provisions. In a 5-4 decision, the Supreme Court overturned Section 4 on the grounds that the Section 4 formula is unconstitutional. The Court’s opinion leaves it up to Congress to write a new formula.

With a highly polarized Congress unable to come to an agreement on even much less controversial matters, many believe that the Voting Rights Act’s preclearance requirement is unlikely to be revived. In addition, any new coverage formula would almost certainly be challenged as not meeting the Court’s objections in Shelby County. Nonetheless, many congressional leaders have expressed great concern for minority voters and have pledged to amend the Act. In the first official piece of business on the matter, the Senate Judiciary Committee set a hearing date for July 17 to consider a legislative response. The House Judiciary Committee set a hearing for July 18.

In the meantime, this area of law will not languish for lack of attention. Several of the states that were previously covered have begun moving ahead with voter ID laws, some of which had already been rejected under the Act. Texas enacted an immediate and strict voter ID law (that was rejected by a court in 2012) within a few hours of the decision. Other mechanisms exist for challenges to such laws, including Section 2 of the Act, which simply outlaws discriminatory voting practices.

Moreover, until a new formula is drafted and enacted, there are still ways for voters to challenge potentially discriminatory measures before they are enacted. Section 3 of the Act lets courts decide that a state or county needs preclearance for future laws based on recent events. So if a court finds that a jurisdiction’s new voting laws will disenfranchise minority voters, they can bring that jurisdiction back under federal review to prevent future potentially damaging measures from ever becoming law. Plaintiffs in Texas have already asked for this remedy.

Section 3 does require a high standard of proof, though. With the Section 4 formula, challengers only needed to prove that election law changes would have an adverse effect on minority voters. Challenging a law under Section 3 requires confirming that officials intended to discriminate – a much harder thing to prove.

The future of the Voting Rights Act remains uncertain. Stay tuned to ISCOTUSnow to keep up with its course.

The Agency for International Development Case: A New Supreme Court Decision on Free Speech and Government Funding (Guest Blogger Sheldon Nahmod)


Agency for International Development v. Alliance for Open Society International

The following post, which originally appeared in Nahmod Law, has been cross-posted with permission of the author, Professor Sheldon Nahmod.

The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).

In order to understand it, I’d like to provide the First Amendment background.

First Amendment Background

It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.

It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).

Government Funding and Unconstitutional Conditions

What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.

Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.

1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.

According to the Supreme Court in Rust v. Sullivan, 500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.

2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.

Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.

According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.

The Agency for International Development Case

Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.

However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.

Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.

In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.

As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”

In context, then, this was not a difficult First Amendment case, but it was an important one.