Truly, few emails have made me more happy than this one, letting me know that I have a seat in the U.S. Supreme Court’s press section “for the oral argument on Monday, April 19 at 10 a.m. and Wednesday, April 28 at 10 a.m.”

The building that houses the Supreme Court of the United States, located at One First Street, N.E., in Washington, D.C.

The cases are Christian Legal Society v. Martinez and Doe #1 v. Reed. This, to me, is about as exciting an opportunity as I could have imagined when moving back to D.C. nearly six months ago. In that time, I’ve had the opportunity to write for The Atlantic Politics Channel and Metro Weekly, which has led to a job at MW as the senior political writer. In that role, I’ve covered Congress, the White House, the Pentagon and, now, will be covering the Supreme Court.

The first argument has particular meaning for me, as this debate, about whether a student organization that refuses to abide by a school’s nondiscrimination policy — here, CLS — can be denied university funds, is one in which I was heavily engaged during my time as a law student at OSU. The question in the case comes down to whether personal religious views can be imposed on a public institution and trump generally applicable public funding decisions, a question the court has answered in the negative on repeated occasions.

The case raises a lot of interesting questions, depending on the angle from which you come at the case — CLS and its lawyers argue that this is a religious freedom and associational freedom case. I’m going to be reading the many amicus briefs submitted in the case over the coming days, so I’ll have more on the specifics of all that soon. What already is clear, though, is that it will be intriguing to watch how the justices address the case.

The second argument, I think, has a growing meaning in the evolving dialogue on LGBT equality — or at least the opposition to it. As with the CLS case, those opposed to LGBT equality are increasingly painting themselves as themselves being the group that is subject to animus. They, not the LGBT people, are the “victim” in this framing. The Washington case involves the disclosure of the names and identifying information of those people who signed the petition to overturn Washington state’s domestic partnership law that became Referendum 71.

The case asks whether the Court will hold that disclosure requirements — can the public see who signed a petition to put a referendum on the ballot? — should be curtailed because of fear that those who signed such a petition will be subject to retaliation or other intimidation. The broad issue — the intimidation question — already has arisen twice in recent months at the Court, when the Court rejected the attempt to allow a live-streaming of the Proposition 8 trial to other courtrooms and in Justice Thomas’s opinion in Citizens United.

Incidentally, that second argument will fall, to the day, six months after my first D.C. coverage, the signing of the hate crimes law a couples days after I moved back.

Of personal interest and excitement to me, these two arguments, looking at the intersection of LGBT equality and various First Amendment freedoms, fall into that same general area of the law as the first Supreme Court oral argument that I attended, Boy Scouts of America v. Dale, argued 10 years ago this month, on April 26, 2000.

Yes, this Law Dork is incredibly excited and proud to be covering the Supreme Court for Metro Weekly.

Justice Thomas

In Citizens United v. Federal Election Commission, today’s campaign finance decision (full coverage at SCOTUSblog), Justice Clarence Thomas — in an opinion, characteristically, joined by no one — found the Supreme Court’s broad decision not to be broad enough.  He dissented from the part of Justice Anthony Kennedy’s majority opinion upholding  the “disclosure, disclaimer, and reporting requirements” in the Bipartisan Campaign Reform Act of 2002.

Why?

Thomas wrote, at length about the issues present in this past week’s Supreme Court decision prohibiting the broadcast of the Perry v. Schwarzenegger trial.  I’m not going to go into it at this time, but I wanted to get this out there and make sure that people see this.

From Justice Thomas:

Amici’s examples relate principally to Proposition 8, a state ballot proposition that California voters narrowly passed in the 2008 general election. Proposition 8 amended California’s constitution to provide that “[o]nly marriage between a man and a woman is valid or recog­nized in California.” Cal. Const., Art. I, §7.5.  Any donor who gave more than $100 to any committee supporting or opposing Proposition 8 was required to disclose his full name, street address, occupation, employer’s name (or business name, if self-employed), and the total amount of his contributions.1  See Cal. Govt. Code Ann. §84211(f) (West 2005). The California Secretary of State was then required to post this information on the Internet.  See §§84600–84601; §§84602–84602.1 (West Supp. 2010); §§84602.5–84604 (West 2005); §85605 (West Supp. 2010); §§84606–84609 (West 2005).

Some opponents of Proposition 8 compiled this informa­tion and created Web sites with maps showing the loca­tions of homes or businesses of Proposition 8 supporters. Many supporters (or their customers) suffered propertydamage, or threats of physical violence or death, as a result. They cited these incidents in a complaint they filed after the 2008 election, seeking to invalidate California’s mandatory disclosure laws.  Supporters recounted being told: “Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other sup­porter,” or, “we have plans for you and your friends.” Complaint in ProtectMarriage.com—Yes on 8 v. Bowen, Case No. 2:09–cv–00058–MCE–DAD (ED Cal.), ¶31. Proposition 8 opponents also allegedly harassed the meas­ure’s supporters by defacing or damaging their property. Id., ¶32.  Two religious organizations supporting Proposi­tion 8 reportedly received through the mail envelopes containing a white powdery substance.  Id., ¶33.

Those accounts are consistent with media reports de­scribing Proposition 8-related retaliation.  The director of the nonprofit California Musical Theater gave $1,000 to support the initiative; he was forced to resign after artists complained to his employer. Lott & Smith, Donor Disclo­sure Has Its Downsides, Wall Street Journal, Dec. 26, 2008, p. A13.  The director of the Los Angeles Film Festi­val was forced to resign after giving $1,500 because oppo­nents threatened to boycott and picket the next festival. Ibid.  And a woman who had managed her popular, fam­ily-owned restaurant for 26 years was forced to resign after she gave $100, because “throngs of [angry] protest­ers” repeatedly arrived at the restaurant and “shout[ed] ‘shame on you’ at customers.”  Lopez, Prop. 8 Stance Up­ends Her Life, Los Angeles Times, Dec. 14, 2008, p. B1. The police even had to “arriv[e] in riot gear one night to quell the angry mob” at the restaurant.  Ibid.  Some sup­porters of Proposition 8 engaged in similar tactics; one real estate businessman in San Diego who had donated to a group opposing Proposition 8 “received a letter from the Prop. 8 Executive Committee threatening to publish his company’s name if he didn’t also donate to the ‘Yes on 8’ campaign.” Donor Disclosure, supra, at A13.

Citizens United, Slip Opinion of Thomas, J., at 2-3.

Referencing the Court’s earlier action this week in prohibiting broadcast of the Proposition 8 Perry v. Schwarzenegger trial, SCOTUSblog’s Lyle Denniston writes, “The Court’s vote to hear the case . . . marked the second time this week that the Court opted to act on controversies involving opponents of gay rights’ claims that publicity about their political activity has led to threats and even some violence against them.”

Election Law Blog’s always excellent Rick Hasen predicted this in a post on Thursday:

Doe v. Reed has made the “Petitions to Watch” list at SCOTUSblog and for good reason. The Court already got involved in this case at an earlier stage, imposing a stay pending a decision on the cert request. That already suggests the Court is taking the question seriously.

But here’s another compelling reason: the case, like Citizens United and the Prop. 8 trial case, fits into the meme of conservatives facing harassment for their views (sometimes even if their views represent the views of a (slim) majority of the population!).

On the issue presented, from SCOTUSblog:

Title: John Doe #1 v. Reed
Issues: (1) Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.

I have made available the Ninth Circuit opinion being appealed here (pdf).

The Volokh Conspiracy’s Eugene Volokh has written extensively about this case.

More to come …

Dean Martinez

Over the past five years or so, the Alliance Defense Fund, in conjunction with the Christian Legal Society, has been poking around, picking fights, hoping to reach Monday’s Supreme Court cert grant in Christian Legal Society v. Martinez (08-1371).  Over the coming weeks, I’ll be exploring this story, this case and the principles behind it.  It’s an issue near to me, as — while I was a student there — Ohio State University was one of the institutions at which the CLS/ADF team poked.

The issue can appear to be very complex, as it involves claims of overlapping and conflicting interests and rights, from the government to individuals, and from LGBT equality to religious freedom, and from public funding to expressive association.

Despite that, at its most basic elements, my view of the case is relatively simple:

• The University of California Hastings College of Law has a nondiscrimination policy that includes sexual orientation.
• UC-Hastings requires student organizations that wish to receive the financial benefits of official recognition to adhere to that nondiscrimination policy.
  
• The Christian Legal Society wants to be allowed to discriminate based on sexual orientation.
  
• Student groups that discriminate shouldn’t be allowed get the funding that comes with formal recognition.
• If the Christian Legal Society wishes to discriminate, it can do so, but it may not do so and receive the financial benefits of being a recognized student organization.
  

When UC-Hastings was sued by CLS, it affirmed its adherence to its nondiscrimination policy and succeeded in the trial court and on appeal before the Ninth Circuit.  (Ohio State, on the other hand, caved when sued, creating a religious exemption to its student organization nondiscrimination policy.)

The district court opinion, which had the caption of Christian Legal Society v. Kane, can be found here (pdf), and the appellate affirmance can be found here (pdf).  Truth v Kent School District is a 2008 Ninth Circuit opinion that controlled the CLS affirmance, and the opinion can be found here (pdf).

Now, however, the CLS case will be heard by the Roberts Court.

For a quick take through the basic principles of this case, from someone with whom I more or less agree here, please see Eugene Volokh’s excellent disentanglement of the issues earlier today.

There is a lot of info out there right now about the hate crimes bill, known as the Matthew Shepard Act.  I didn’t want to just pile on and post the same thing as everyone else, but what I thought could be helpful is an unpacking of, as Doug Berman would say, all the “there” that’s there.  There are five main issues being discussed with the hate crimes bill:

1. The House hate crimes bill and the conference committee.
2. The F-22 funding in the Defense Department reauthorization bill.
3. The death penalty amendment, as well as the other Sessions amendments, added to the Senate’s Matthew Shepard Act amendment.
4. The ACLU’s speech/association concerns with the Senate language.
5. The Thune gun amendment possibility to the DOD reauthorization.

First, let’s remove almost all the specifics and talk about process.  Assuming that the Senate approves a Defense reauthorization bill, which it eventually will, the House and Senate will appoint conferees to join a conference committee that will hash out differences of the bill.

As such, the House’s stand-alone version of hate crimes, voted on in April, will not, technically speaking, be on the table.  As a source familiar with the process said, the fact that the House passed the stand-alone bill will be great leverage to include the hate crimes measure in the conference committee’s version of the bill.  But the House version is not the starting point for hate crimes measure in the conference committee; the Senate version is the only hate crimes measure that officially is included in the conference committee’s competing bills.  Of course, conferees are free to do a lot to the legislation during the process of reconciling the House and Senate versions of the Defense reauthorization, so a lot can happen.

Now, as to the specifics.

One of the biggest hurdles faced by the hate crimes bill — the F-22 funding — was cut on a 58-40 vote from the Senate version of the bill today.  As Kerry Eleveld points out, though, we’re not yet completely out of the weeds on this point, because there is a Statement of Administration Policy (SAP) that recommends a veto if even the lesser amount — $369 million of funding for the F-22 program — included in the House version makes it into the final bill.  In today’s briefing, Kerry updates the world that any such funding in the final bill will result in a presidential veto.  As such, it’s all gotta go in conference, or Obama’s spokesman says he’ll veto it.

Next is the death penalty provision.  The LGBT organizations, as I noted last night, appear to believe that there is a good chance the conference committee will remove the death penalty language and other Sessions amendments from the bill.  The fact that the committee that heard the bill in the House specifically voted down such a death penalty amendment is sure to help in getting at least that proposal removed.  The overwhelming Democratic majority of the conference committee also bodes well for the removal of these “poison pill” amendments.

The ACLU and HRC are having a bit of sparring over the association/speech protections in the Senate version of the bill.  The Senate version simply states that the bill does not impact First Amendment protections.  As the ACLU pointed out, though, the House version contains a specific provision preventing evidence solely relating to exercise of speech and associational rights.  Chris Anders, the ACLU’s senior legislative counsel, said in a release:

Unless amended to block evidence of speech and association not specifically related to a crime, the Senate hate crimes amendment could chill constitutionally protected speech and association. . . . We urge Congress to instead adopt the House version of the hate crimes bill, which protects both civil rights and free speech and association.

David Smith, HRC’s vice president of programs, said, “The Senate bill contains an explicit provision stating that the bill does not limit constitutionally protected speech, expressive conduct, or activities” and that each version of the bill protects free speech but in different ways.  This distinction, between an evidentiary exclusionary rule, as in the House version, or the restatement of First Amendment protections, as in the Senate version, will likely be dependent on the specifics of which members are chosen for the conference committee.  If I had it to choose, I would choose the House version for the simple reason that my general aim is to provide for compromises that increase legislative support whenever they do not diminish the value of the legislation in any significant way.

The final hurdle is the gun amendment being offered by Sen. Thune, which “would allow gun owners to supersede state and local laws restricting their transportation.”  Democrats in the Senate are fighting the amendment, but it’s not quite clear whether they even have the support of Senate Majority Leader Harry Reid.  As in the case of the Sessions amendments, it appears that the aim, should it be passed, is for this amendment to be removed in conference committee.

The bottom line is, of course, that legislation is one hell of a sausage-making process.  Although the hate crimes bill is not out of the woods, it is likely to make it through.  There will be a Defense reauthorization bill, passed by both houses and signed by the President — even should it, though it seems unlikely, go through a veto.  The strong Senate vote to include hate crimes in that bill, when coupled with the House’s stand-alone vote in favor, strongly counsel in favor of the hate crimes measure making it through as a part of that bill, regardless of whatever sausage-making difficulties remain.

All that said, be on the lookout for announcement of conferees and action steps, from groups and bloggers all around, to be taken in that regard.

. . . allow[] penalties against all government officials who violate the Sunshine Law, regardless of whether they do so knowingly.

A bill pending in a House committee would repeal Missouri’s current requirement for a judge to determine a public official or entity “knowingly” violated the Sunshine Law before a fine can be issued. Instead, it would allow up to a $500 fine for any violation, with higher fines for purposeful violations.

Unfortunately, I can’t find any reference to the $500 language in the only listed bill — found here — that fits the description and has the same sponsor, Republican Rep. Tim Jones, as listed in the blog post.  Maybe the legislation has changed since last updated on the Web site.

Regardless, the reason I raised the issue is that I think the requirement to determine the mental state of a public body is interesting.  Here’s a line from the penalty provision of the Missouri Sunshine law: “Upon a finding by a preponderance of the evidence that a public governmental body or a member of a public governmental body has knowingly violated sections 610.010 to 610.026, the public governmental body or the member shall be subject to a civil penalty in an amount up to one thousand dollars.” Missouri Code 610.027.3.

Missouri Code 610.027.4 increases the maximum penalty for a purposeful violation to $5,000.  I would assume that the bill adds a provision allowing a $500 penalty for any violation — regardless of the mental state of the body.