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Column: A Tumultuous Year Ahead for Civil Rights and Civil Liberties (New York Law Journal)

By Christopher Dunn

Envision an incident where a man walks into an Iowa bar and comes upon two women celebrating their wedding anniversary. Incensed over same-sex marriage in his state and spurred on by an extremist’s blog postings calling for the death of lesbians, the man pulls out a gun and fires at the women, killing one and injuring the other.

He is prosecuted for illegal possession of a firearm. The surviving woman is denied her spouse’s federal social security benefits and is fined for not having purchased government-mandated health insurance. And the blogger is charged with a crime for his threatening posts.

This scenario captures four major civil rights and civil liberties issues that I foresee the federal courts grappling with in 2011. And as is often true with hotly contested legal disputes involving civil rights, every one of these issues is enmeshed in a heated political controversy.

Same-Sex Marriage

Equal protection for gays and lesbians is the civil rights issue of our day. On the flashpoint topic of same-sex marriage, the significant litigation has been in state courts, as exemplified by the 2006 New York Court of Appeals ruling rejecting a state constitutional right to same-sex marriage in New York.

With trepidation from an advocacy community wary of the Supreme Court, the fight over same-sex marriage has now shifted to federal court. Two disputes heading towards the high court squarely present the issue that for decades to come may define the legal landscape for gays and lesbians: whether the Constitution’s equal protection provisions bar states and the federal government from denying marriage and marital benefits to same-sex couples.

The case that has garnered the most attention is the challenge to California’s so-called Prop 8, the voter initiative amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid in California.” The odd couple of David Boies and Ted Olsen, who famously squared off against each other in the Bush v. Gore litigation, charged into federal court and, after a widely publicized trial, won a ruling that Prop 8 violated the equal protection clause.

The state defendants did not defend Prop 8 in the district court and refused to appeal, leaving both to Prop 8 supporters who had intervened in the case. That raises a serious question about whether they have standing to defend Prop 8 in the place of state officials, and last month the Ninth Circuit slowed the progress of the case by sending it to the California Supreme Court to resolve that issue.

Meanwhile, a second and more important federal equal protection challenge has opened in the form of an attack on the Defense of Marriage Act (DOMA), which denies those in same-sex marriages the whole range of federal benefits (like social security and tax benefits) otherwise accorded to married couples. Last July a Massachusetts federal district court issued a landmark ruling declaring that the law violated the equal protection clause. Taking a doctrinally conservative approach, the court required only that the statute meet the rational basis test, the least exacting form of equal protection scrutiny. Nonetheless, it found that conditioning marital benefits on the sexual orientation of the spouses served no rational purpose, including an interest in “responsible procreation” or, as the government primarily asserted, an interest in maintaining the status quo pending political resolution of the national controversy over same-sex marriage.

The First Circuit will likely hear arguments in this case this spring, and the Second Circuit may soon be facing the same issue, as DOMA challenges were filed last year in New York and Connecticut. In conjunction with the Prop 8 case pending in the Ninth Circuit, 2011 is the year we will see major federal Court of Appeals rulings on the federal right to same-sex marriage.

Hovering over all of this is the prospect of Supreme Court review. Conservative as a majority of the Court is, there is reason for optimism. In its last two major gay rights cases the Court struck down discriminatory provisions. In Romer v. Evans, decided in 1996, the Court declared that a Colorado constitutional amendment barring the granting of legal protections to gays and lesbians (such as anti-discrimination rights) violated the federal equal protection clause because it was not rationally related to a legitimate government purpose. And in Lawrence v. Texas, decided in 2003, the Court held that a state statute criminalizing sodomy between people of the same sex violated the federal due process clause because it violated the right of consenting adults to engage in intimate sexual activity. Most importantly, Justice Kennedy wrote Lawrence and Romer, and he remains the fifth vote on same-sex marriage.

Health Care

Consistent with the vitriolic public debate surrounding it, the health-care bill signed into law last year by President Obama has prompted litigation across the country, which now is percolating up to the appeals level. It has a civil liberties component in that opponents challenge the constitutionality of the law’s requirement that every person obtain insurance coverage. This is not a Bill or Rights dispute, however. Rather, the central argument opponents press is that the law violates their rights because — get out the NoDoz — it exceeds congressional authority under the commerce clause. Were this argument accepted, it could mark a significant new line of attack on government action.

There of course was a time long ago when the Supreme Court viewed the commerce clause, which empowers Congress “To regulate Commerce… among the several States,” as erecting substantial barriers to congressional action, but that came to an end with the fight over the New Deal legislation of the 1930s. Since then, the Court has embraced an extremely expansive view of interstate commerce, effectively removing the commerce clause from constitutional adjudication.

Nonetheless, in two cases since 1995 the Court has struck down congressional legislation on commerce clause grounds, holding that the legislation targeted activity (carrying guns in school zones in one case and violence against women in the other) that was not sufficiently economic in nature. Those challenging the health care law argue that a decision not to have health insurance likewise is not a form of economic activity but instead is merely a decision not to engage in economic activity, even if such a decision by a large number of people could have enormous consequences for interstate commerce.

Last week, the Fourth Circuit announced it was expediting the appeal of a December ruling by a Virginia District Court that accepted this argument and declared the mandatory insurance requirement unconstitutional as exceeding Congress’ commerce clause authority, the first such ruling. (A Florida district court earlier this week became the second to declare the insurance requirements unconstitutional on Commerce Clause grounds.) The Fourth Circuit plans to hear argument in May, which means this case and the possible resurrection of the commerce clause may be before the Supreme Court before the year is out.

Guns, Guns, Guns

In 2008 the Supreme Court held in District of Columbia v. Heller that the Second Amendment conferred a right of individual gun ownership on residents of the District of Columbia via the Fifth Amendment. The other shoe dropped last year when the Court ruled in McDonald v. City of Chicago, Ill. that the Second Amendment applies to the states through the Fourteenth Amendment, thus subjecting all state and local gun regulation to Second Amendment scrutiny.

These cases have prompted a widespread assault on gun-control laws, including a wave of legal challenges around the country. What is significant about this litigation and what is likely to come to a boil in the coming year is tension around the doctrinal standards to be applied in Second Amendment challenges. The danger is that concern about unregulated gun ownership will fuel an effort to dilute Second Amendment rights in a way that imperils the standards that apply to critically important individual rights, such as those under the First and Fourteenth Amendments.

Notably, the Court in Heller disavowed any intention of laying out fully the standards that would govern Second Amendment analysis, and it invalidated the ban at issue there “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” But it also rejected the notion that Second Amendment rights could be analyzed separately and apart from those governing other constitutional guarantees. For instance, in rejecting an argument by Justice Breyer that Second Amendment rights should be subject to a unique and forgiving “interest balancing” approach, the Court tied Second Amendment analysis directly to the First Amendment: “The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.”

Because the federal appeals courts soon will start deciding post-Heller and McDonald challenges, the coming year is likely to be pivotal in resolving the tension around the doctrinal standards governing Second Amendment challenges. For many, there will be no happy outcomes.

Internet Threats

With the explosive growth of the Internet, courts have faced a host of thorny issues about the constitutional limits on the government’s ability to regulate and punish virtual speech. Internet threats presents one of the most difficult of these issues, particularly when they involve government officials.

The Second Circuit is now squarely faced with the issue, which tellingly arises out of the passion of the Second Amendment litigation. Last August, conservative radio host Hal Turner was convicted in Brooklyn federal court of violating a federal statute criminalizing threats of government officials. In response to the ruling by three Seventh Circuit judges upholding the gun-control ordinances subsequently struck down by the Supreme Court in McDonald, Turner wrote in an Internet blog, “Let me be the first to say this plainly: These judges deserve to die.” He added, “Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.” He also said “an example” should be made of the three to send a message to the rest of the federal judiciary: “Obey the Constitution or die.” Finally, he supplied the judges’s photographs, phone numbers, work addresses, and courtroom numbers.

In rejecting a pre-trial motion to dismiss the charges on First Amendment grounds, the District Court invoked a series of violent incidents — none of which the Turner had anything to do with — and its perusal of the Internet:

In an era when physicians have been murdered in their places of worship; families of Judges have been slain; a Judge of the Eleventh Circuit Court of Appeals and State Court Judges have been blown up or shot; a Federal Courthouse ripped apart by homemade explosives, all in the name of political dissent or religious fanaticism, it cannot be said that Defendant’s statements are unlikely to incite imminent lawless action.

This Court cannot ignore the audience to whom the alleged threats were communicated… A casual search of the Internet reveals a plethora of blogs and web pages overflowing with hate filled speech, often praising the Defendant for his alleged statements and calling for further action by like-minded individuals.

An earlier column discussed two pre-Internet cases in which the Supreme Court accorded broad First Amendment protection to arguably threatening speech directed at government officials. I also discussed a Ninth Circuit case in which a bitterly divided court upheld an injunction barring abortion activists’ use of “Deadly Dozen” posters that identified abortion providers, accused them of crimes against humanity, and provided home addresses and enjoining use of a related “Nuremberg Files” website that listed approximately 200 people as “ABORTIONISTS: the shooters” and bore the following legend: “Black font (working); Greyed-out Name (wounded); Strikethrough (fatality).” In the two years before the release of the posters and the web posting, three abortion doctors had been murdered after similar posters were released identifying them, and all three were listed on the website with their names crossed out.

The key question in these cases is the extent to which Internet postings can incite violence so as to pose a true threat not protected by the First Amendment. And difficult as the issue was even a month ago, the January 8 shooting that gravely wounded Representative Gabrielle Giffords and killed the chief federal judge in Arizona makes it all the harder. Regardless of the motives of and influences on the man charged in the shooting, the public debate the shooting spawned about vitriolic Internet postings — centered on the Sarah Palin map featuring rifle targets on various congressional districts, including Ms. Giffords’ — may alter judicial sensibilities about Internet threats. Given the central role of the Internet in public discourse now, the Second Circuit’s treatment of this issue will bear close scrutiny.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.