The Speaker News Journal

 

In the 2013 trial, Elane Photography, LLC, v. Vanessa Willock, Willock sued Elane Photography for refusing to photograph Willock’s “commitment ceremony” i.e. wedding. The New Mexico Supreme Court unanimously found that Elane–despite religious convictions against gay marriage and despite her willingness to serve gays in services Elane already provided–violated the New Mexico Human Rights Act (NMHRA) that provides for protected groups to be specially shielded from discrimination. The court found that Elane had discriminated based on sexual orientation and was not protected by Constitutional guarantees of free speech or the free exercise of religion. Elane was forced to pay damages to Willock for declining to photograph her wedding.

In 2006, Willock e-mailed Elane Photography, LLC (operated by a couple, the Huguenins), proposing Elane photograph Willock’s “commitment ceremony,” which Willock also referred to as a “wedding.” Willock phrased the proposition as asking Elane Photography if it would be “open to helping celebrate” her “commitment ceremony.” Elaine Huguenin, the photographer, politely declined, stating that she photographed only “traditional weddings.” Willock e-mailed Elane Photography again two months later, asking whether Elane offered its “services to same sex couples,” to which Huguenin responded that the company did “not photograph same-sex weddings,” and thanked Willock for her interest.

Willock filed a discrimination complaint with the New Mexico Human Rights Commission (NMHRC) on the basis that Elane Photography discriminated against her because of her sexual orientation. The NMHRC concluded that Elane Photography had so discriminated. It awarded Willock attorney fees (later waved by Willock).

Elane appealed for a trial de novo, seeking a reversal of the award and a declaratory judgement that it had not discriminated, as well as a ruling that its rights had been violated. The district court found for Willock. Elane appealed, and the Court of Appeals affirmed. The New Mexico Supreme Court granted certiorari.

Elane offered three arguments. First, that it had not discriminated. Second, that the NMHRA violated Elane’s First Amendment rights, under the Amendment’s compelled speech protection and freedom of religion guarantee. Third, that the NMHRA violated the New Mexico Religious Freedom Restoration act (which protects free exercise of religion from government restrictions).

Although Huguenin would have served homosexuals in any of the services Elane Photography already provided (portraits, straight marriage) and would not have served heterosexuals with photography that depicted homosexual content (holding hands or showing affection), the opinion of the court was that “[t]hose situations are not at issue here,” and that “Elane Photography intended to discriminate against Willock based on her same-sex orientation.” The court framed Elane’s claims as “[seeing] no basis for distinguishing between discrimination based on sexual orientation and discrimination based on someone’s conduct.” The NMHRA prohibited “any person in any public accomodation to make a distiction, directly or indirectly, in refusing to offer services.” Although Elane Photography was willing to serve homosexual couples, the court found that Elane Photography had “[refused] to serve a client based on sexual orientation, and Elaine Photography violated the law by refusing to photograph Willock’s same-sex commitment ceremony.” The court, therefore, held that Elane Photography had discriminated in violation of the NMHRA.

As for the reasons for Elane’s refusal to photograph the gay marriage, Elane explained that it “did not want to convey through [Huguenin’s] pictures the story of an event celebrating an understanding of marriage that conflicts with [the owner’s] beliefs.” Elane Photography held that it did not wish to endorse Willock’s wedding.

Elane’s argument that the NMHRA violated First Amendment guarantees had several components. Under the Free Speech Clause (in this case, compelled speech), Elane argued that the NMHRA compelled Elane to speak, compelled Elane to speak the government’s message, compelled Elane to accommodate the message of another, compelled Elaine to allocate its work time not as Elane would wish, and compelled Elane’s creative, expressive capacity. Also under the First Amendment, Elane argued that its guarantee to free exercise of religion was violated by the NMHRA.

Elane argued that, because photographing a same-sex wedding was against the owners’ personal beliefs, the NMHRA’s compelled Elane to speak in violation of its First Amendment rights (which includes the right to refrain from speaking). Elane argued that the HMHRA unconstitutionally compelled it to “create and engage in expression” that sends a positive message about same-sex marriage not shared by the owner. The court looked at the guarantee that the government “may not require an individual to ‘speak the government’s message,'” and may not require a private actor “to host or accommodate another speaker’s message” or “require an individual to participate in the dissemination of an ideological message by displaying it on his [or her] private property in a manner and for the express purpose that it be observed and read by the public.” The court ruled that “the NMHRA does not require Elane Photography to recite or display any message. It does not even require Elane Photography to take photographs. The NMHRA only mandates that if Elane Photography operates a business as a public accomodation, it cannot discriminate against potential clients based on their sexual orientation.” The court looked to Barnette (Jehovah’s witnesses protesting saluting the flag at school because of Bible prohibitions against saluting any image), but found that Barnette “[did] not bring [the Jehovah’s witness children] into collision with rights asserted by any other individual,” but Elane’s asserted right did conflict directly with Willock’s rights under the NMHRA. The court stated that “[a]nti-discrimination laws have the important purposes that go beyond expressing government values: they ensure that services are freely available in the market, and they protect individuals from humiliation and dignity harm.” To the argument that by requiring Elane Photography to accept a client who is having a same-sex wedding the NMHRA compelled Elane to facilitate the messages inherent in that event, the court ruled that,

“Elane Photography has misunderstood this issue. It believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. If Elane Photography took photographs on its own time and sold them at a gallery, or if it was hired by certain clients but did not offer its services to the general public, the law would not apply to Elane Photography’s choice of whom to photograph or not. The difference in the present case is that the photographs that are allegedly compelled by the NMHRA are photographs that Elane Photography produces for hire in the ordinary course of its business as a public accommodation.”

Although Elane argued that it did not with to convey a message either that same-sex marriages exists or that such occasions deserve celebration or approval, the court ruled that “Elane Photography sells its expressive services to the public. It may be that Elane Photography expresses its clients’ messages in its photographs, but only because it is hired to do so,” and therefore, the court ruled, the NMHRA required Elane to perform the same services for same-sex couples as for opposite-sex couples (equating the service of providing photography for opposite-sex weddings with the service of photographing same-sex weddings).

Elane argued that the NMHRA involved “direct government interference with the speaker’s own message, as opposed to a message-for-hire.” The court looked to cases where the government required a publisher to distribute an opposing point of view (Miami Herald Publishing Co. v. Tornillo), upholding the publisher’s rights, but ruled that Elane was different because “[the] government had not interfered with Elane Photography’s editorial judgement; the only choice regulated is Elane Photography’s choice of clients.”

Elane also argued that the NMHRA had a chilling effect on speech. The court ruled that “[i]f a commercial photography business believes that the NMHRA stifles its creativity, it can remain in business, but it can cease to
offer its services to the public at large. Elane Photography’s choice to offer its services to the public is a business decision, not a decision about its freedom of speech.”

The court also looked to Hurley (where the court upheld the private organizers of the Boston St. Patrick’s Day parade’s denial of the application of a LGBT group [GLIB] to march in the parade), but found that, although the Supreme Court had held that the parade did not discriminate against gay participants; rather, the issue was “the admission of GLIB as its own parade unit carrying its own banner,” which had unquestionable expressive content, Elane differed because, whereas “parades by their nature express a message to the public,” and that requiring the parade organizers to include GLIB would “directly alter the expressive content of the parade,” the case did not apply to Elane because the NMHRA “applies not to Elane Photography’s photographs but to its business operation, and in particular, its business decision not to offer its services to protected classes of people.” The court ruled that “[w]hatever message Elane Photography’s photographs may express, they express that message only to the clients and their loved ones, not to the public,” but at the same time noted that “when Elane Photography displays its photographs publicly and on its own behalf, rather than for a client, such as in advertising, its choices of which photographs to display are entirely its own.”

The court also stated that Elane’s concern of “perceived endorsement” was wrong. “Obeservers are unlikely to believe that Elane Photography’s photographs reflect the views of either its owners or its employees,” ruled the court, finding Elane different again from Hurley, where the Court “observed that admitting GLIB or any other organization into a parade would likely be perceived as a message from the parade organizers ‘that [GLIB’s] message was worthy of presentation and quite possibly of support as well.'”

The court saw Elane’s First Amendment right to expression of religeon as being retained despite NMHRA limitations in this way:

“Elane Photography and its owners likewise retain their First Amendment rights to express their religious and political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that “they oppose same-sex marriage but that they comply with applicable antidiscrimination laws.”

The Court considered Elane’s argument that they had less time to spend doing their preferred work if they have to take and edit photographs of same-sex weddings (thereby creating a situation of compelled speech), but found that the claim was not valid, because “Elane Photography does not produce a publication whose limited space has been taken over by the government.” The court found that Elane’s claim that the NMHRA interferes with its speech because it ties up its time doing what it does not wish to do was invalid “because the allocation of work time is a matter of personal preference, not compelled speech, and it is not constitutionally protected.”

The Court explained that the NMHRA forces businesses to act a certain way:

“This is the purpose of antidiscrimination laws: they force businesses to treat customers alike, regardless of their race, religion, or other protected status. These laws are necessary precisely because some businesses would otherwise refuse to work with certain customers whom the laws protect.”

The court noted that the NMHRA does not prohibit law firms (even law firms that are public accommodations) “from turning away clients with whose views the firm disagrees or with whom it simply does not wish to work.” However, the court ruled, Elane (and law firms) cannot turn away clients because they “find the client offensive on the basis of a protected classification.”

Elane’s argument for freedom of religious expression was found invalid because “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),” and the NMHRA was a neutral law of general applicability, as stated in its text.

The U.S. Supreme Court, however, left open the possibility that neutral laws of general applicability could still be unconstitutional if they infringed both free exercise rights and an independent constitutional protection (hybrid-rights claim), but because Elane Photography had not sufficiently briefed the Court on this issue, the court would not consider it.

Elane Photography’s final line of argument was that the NMHRA violated the New Mexico Religious Freedom Restoration Act (NMRFRA), but the court ruled that the NMRFRA was not applicable in disputes where a government agency is not a party.

The court concluded that Elane Photography refused to serve Willock based on Willock’s sexual orientation, and so was in violation of the NMHRA. The court found that enforcing the NMHRA did not violate the First Amendment or the NMRFRA.

In the concurring opinion, justices wrote that although the Huguenins were now “compelled by law to compromise the very religious beliefs that inspire their lives,” “all of us must compromise, if only a little,” which is what this case “taught,” and that although the Constitution protects the Huguenins in their freedom “to think, to say, to believe, as they wish,” “there is a price.” “[T]he Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different…. it is the price of citizenship.”

By Day Blakely Donaldson

Sources:

Justia
Justia
State Court Docket Watch
Federalist Society

 

Two cases mark the recent change in the legal status of homosexual marriage: Baehr v. Lewin (1993) and Goodridge v. Department of Public Health (2003). In Baehr, the finding of a constitutional right based on the guarantees of equal protection was not enough to change laws prohibiting gay marriage, but in Goodridge, where the same equal-rights guarantee was found, the state interest claims did not convince the majority of justices that homosexual marriage should remain prohibited. The constitutionally protected right of homosexuals to engage in sex was secured in a case which concluded months before Goodridge—Lawrence v. Texas (2003).

The right of gays to marry was based on the U.S. and state constitutions, which guarantee equal rights.

Three couples, who met all other marriage requirements, were denied licences in 1990, after which they filed a lawsuit in 1991 against the Hawaii Attorney General, John C. Lewin, seeking to have the exclusion of gays from marriage certification declared unconstitutional. Lewin was replaced by the State Director of Health, Lawrence H. Miike in later stages of the trial proceedings. In 1993 the Court found that denying homosexuals marriage licences was unequal treatment and therefore unconstitutional, and ordered the state to provide evidence of justification for abridging Constitutional rights. Judge Chang ruled in 1996 that none of the state’s claims to compelling interest in restricting marriage rights were valid by the strict scrutiny test, and even if the state had proven such interests, the state had failed to prove that the statute was narrowly tailored to avoid unnecessary abridgment of constitutional rights. Chang ordered the state not to refuse marriage licences to any qualified applicants, including same-sex couples, but stayed the ruling because of the position newly married couples would be in if the Supreme Court later reversed Chang’s decision. In 1998 Hawaiian voters approved an amendment to the Hawaii constitution limiting marriage to opposite-sex couples and in 1999 the Supreme Court did overturn Chang’s judgement.

The first U.S. Supreme court trial to find that same-sex couples had the right to marry was Goodridge v. Dept. of Public Health (2003). Gay and Lesbian Advocates and Defenders (GLAD), on behalf of several same-sex couples who had been denied marriage licences in 2001, sued the Massachusetts Department of Health. The Superior Court found for the defendants, believing that altering the Commonwealth’s centuries-old tradition of restricting marriage to opposite-sex couples was a matter for the legislature, who had, the Court noted, recently defended same-sex marriage limitations.  The trial was appealed to the Supreme Court.

After looking at the state constitution’s guarantee of equal protection and due process, a small majority (5-4) found the prohibition of one class of citizen’s licence to marry was unconstitutional, and found that no rational reason existed to override this constitutional right. The large minority found several of the state’s interest claims convincing, such as the importance of marriage as an institution based on the raising of children and the state’s reluctance to assign equal benefits, obligations, and responsibilities to homosexual couples through marriage. Another reason for dissent was the belief that the power to regulate marriage lies not with the judiciary, but with the Legislature, and therefore, even if the ruling in favor of gay marriage was a step forward socially, it was a misstep legally and constitutionally.

By Day  Blakely Donaldson

Sources:

Justia
Justia

 

In the 80s and 90s, laws against homosexual activity were first upheld as not in violation of Constitutional rights and later reversed as being in violation–Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).

In Bowers v. Hardwick, two Georgia men were arrested for sodomy when a police officer tasked with serving a warrant for public drinking found the men engaged in sex at Hardwick’s home. After the local district attorney decided not to proceed with the case, Hardwick brought suit against the Attorney General of Georgia, Michael Bowers, seeking a declaration that the state’s laws against homosexual sex were invalid. The ACLU wanted to try the case. The district court found for the Attorney General, the appeals court reversed this, and the case proceeded to the Supreme Court.

The result was that the Supreme Court found against Bowers in a 5-4 decision. The court found no constitutionally protected right to engage homosexual sex and upheld the Georgia statute as valid. Justice White wrote the majority opinion, which cited historical precedents condemning homosexual sex.

The dissenting opinion was written by Justice Blackmun (although Blackmun has since revealed that it was in fact his clerk who primarily authored the dissent), who disagreed with the majority’s focus on homosexual activity, writing that the case was no more about a right to engage in sodomy than Stanley (1969) was about a right to watch obscene movies or Katz (1967) was about a right to place interstate bets from a telephone booth; these cases, Blackmun contended, were about “the most comprehensive of rights and the right most valued by civilized men,” namely, “the right to be let alone,” quoting Justice Brandeis in Olmstead (1928). Blackmun continued, “Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens,” and stated that his finding was that the Georgia law under which Bowers was being tried was broad enough to also reach heterosexual couples engaging in anal or oral sex.

“(A) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . .”

“(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . .” (Georgia Code Ann. § 16-6-2 [1981])

Blackmun wrote:

“Only the most willful blindness could obscure the fact that sexual intimacy is ‘a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,’ Paris Adult Theatre I v. Slaton (1973); Carey v. Population Services International (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many ‘right’ ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds.”

Blackmun pointed not to a specific right to engage in homosexual activity, but to broad principles that have informed the treatment of privacy in specific cases. Blackmun held that the same protections that defended liberty and privacy interests in those other cases should apply in Bowers.

Blackmun again referred to Brandeis in Olmstead:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”

At the time of Lawrence v. Texas (2003), it was illegal in 13 states to engage in consensual homosexual sex–this number was down from 25 at the time of Bowers, although it has been noted that a certain pattern of nonenforcement with respect to consenting adults acting in private had existed. That number was in turn down from 50 before 1961.

Lawrence and a man visiting his house were arrested on the night of September 17, 1998 outside Houston, Texas, when a jealous rival called in a false police report about “a black male going crazy with a gun” in Lawrence’s apartment. After contradicting accounts of homosexual activity by the arresting officers, the two men were charged and pled no contest to “homosexual conduct.” The jealous lover pled no contest to filing a false police report and was sentenced to 30 days in jail.

Lawrence et al. opted neither to plea their innocence nor to accept a minor fine and criminal charge, but to take on the law that outlawed, in effect, homosexuality.

By pleading no contest, Lawrence at al. waved their right to a fair trial, but asked the court to dismiss the charges on the basis of the unconstitutionality of the anti-sodomy laws. Lawrence claimed that because the law prohibited sodomy between homosexual couples, but did not prohibit sodomy between heterosexual couples, the law was unconstitutional under Fourteenth Amendment equal protection grounds:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

After being denied the Fourteenth Amendment defense motion in their first trial, Lawrence appealed, and the Texas Fourteenth Court found that the Texas law violated the 1972 Equal Rights Amendment of the Texas Constitution (sec. 3):

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative”. (Added Nov. 7, 1972.)

The Appeals court found the law unconstitutional, but a year and a half later reviewed the case en blanc and reversed the decision, finding the law constitutional.  Lawrence petitioned the Supreme Court, asking the Court to consider:

1. Whether the petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws?

2. Whether the petitioners’ criminal convictions for adult consensual sexual intimacy in their home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick should be overruled?

The Supreme Court, which examined the case in terms of “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct,” found that consenting adult homosexuals had a right to sex in their homes. The Texas law, which outlawed “any contact between any part of the genitals of one person and the mouth or anus of another person; or… the penetration of the genitals or the anus of another person with an object” (§21.01[1]), was unconstitutional, violating the Fourteenth Amendment Due Process Clause, the Court found.

Justice Kennedy wrote the majority opinion, in which he criticized the judgement of Bowers and placed Lawrence in a tradition of Constitutional interpretation with Griswold, Eisenstad, Roe, Planned Parenthood, Bowers and Romer, framing a narrative of progressive application of Amendment guarantees to privacy protections regarding human rights.  The majority viewed Bowers this way:

“[T]he Court’s failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do no more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons.”

The court looked to determine “whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.”  The majority found that they were.  The court sought to find if any valid state claims existed that would pass the strict liability test. According to the majority opinion:

“The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”

A 6-3 decision stuck down the Texas law.  The court overturned Bowers v. Hardwick.

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Kennedy offered an opinion on privacy in general and the court’s opinion on homosexual sex regarding Lawrence particularly:

“Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

“The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

*     *     *     *     *

The differing interpretations of Amendment guarantees and reliance on other informative sources such as caselaw, moral codes, and traditional attitude towards various groups of people or activities in Bowers and Lawrence show a lack in the U.S. Constitution to provide expected human rights protections for homosexuals.

In Bowers, the dissenting opinion of the Court followed, expanded and extended interpretations of Amendment guarantees found in Griswold (1972) and Eisenstadt (1972) to sexual privacy rights for homosexuals. The majority disagreed, however: it found that there was no Constitutional protection for homosexual sex. But this opinion based its decision on a tradition of condemning homosexuality.

This decision was overturned in Lawrence, but the Constitutional basis was questionable. In Lawrence‘s 6-3 decision, five justices believed the statute violated Fourteenth Amendment Due Process Clause and one–who had been in the Bowers majority–believed it violated rather the same Amendment’s equal protection guarantees.

The majority opinion explained that “the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution,” and sought to find what the Due Process Clause protected. Kennedy’s opinion listed a progression of Court interpretations of Amendment guarantees in a sort of narrative scheme of liberating rulings, starting with Griswold and proceeding through Eisenstadt and Roe to Planned Parenthood to Bowers and Romer.

Griswold recognized the right of privacy in the home of married people and Eisenstadt extended the protection to unmarried couples for any procreative (or not) sexual activity. Eisenstadt had based this right on the Equal Protection Clause. Although the Lawrence Court favored the Due Process Clause as a basis for protection, Justice Kennedy quoted Brennan in Eisenstadt for an extension of privacy protections to homosexuals:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship …. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The basis of this protection in the Due Process Clause was argued as false by many dissenters. Justice Scalia wrote:

“Though there is discussion of ‘fundamental proposition[s],’ and ‘fundamental decisions,’ nowhere does the Court’s opinion declare that homosexual sodomy is a ‘fundamental right’ under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a ‘fundamental right.’ Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: ‘[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.’ Instead the Court simply describes petitioners’ conduct as ‘an exercise of their liberty’-which it undoubtedly is-and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case.”

An oral argument at Lawrence‘s Supreme Court trial questioned the propriety of protecting any consensual adult sexual activity in the privacy of a home, stating,

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose…. And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything…. It all comes from, I would argue, this right to privacy that doesn’t exist in my opinion in the United States Constitution, this right that was created…in Griswold… .”

By Day Blakely Donaldson

Sources:

Justicia
Justicia
L&SJ (American Bill of Rights)

 

A trial over a charge for marijuana possession took place in Alaska in 2003, where the defendant argued that he had a constitutional right to possess marijuana despite laws in place–Noy v. State.

David Noy was arrested for smoking marijuana at a barbecue at his North Pole home after police smelled marijuana and investigated. Noy’s home was found to contain several ounces of marijuana as well as 5 immature plants, but no scales or other evidence of commercial conduct. Noy was prosecuted and convicted of marijuana possession under a 1990 statute criminalizing any amount of marijuana.

Noy appealed the decision, and in Noy v. State (2003) Noy’s counsel argued that Noy’s actions were protected by the privacy provision of the Alaskan constitution. The court agreed: according to the state constitution, Alaskan citizens have a right to possess less than four ounces of marijuana in their home for personal use.

The court found that statue AS 11.71.060(a)(1), which made illegal using, displaying, or possessing any amount of marijuana, criminalized conduct that the Alaska Supreme Court had declared protected under article I, section 22 of the Alaska constitution. This finding was based in main upon an amendment to the state constitution made in 1972.

The amendment states, “The right of the people to privacy is recognized and shall not be infringed.   The legislature shall implement this section.” (Article I, section 22).

In Ravin v. State (1975), the constitution was found to protect possession and ingestion of marijuana for personal use in one’s home in a purely personal, non-commercial context. In Ravin, the privacy protection extended to marijuana could only be overturned if the state could show that the intrusion into people’s privacy bore “a close and substantial relationship to a legitimate government interest,” i.e. public health or welfare would suffer without prohibition of private possession of marijuana. The court found that in Ravin such an interest had been demonstrated in the case of drivers, youth, buyers and sellers, and use in public places, but not for adults in general.

In 1982, the Alaskan legislature changed the law dealing with marijuana from Title 17 to Title 11 and dropped the civil fine for possession for personal use in a non-public place, alligning the law with Ravin. In 1990, however, Alaskan voters approved a ballot (citing variously as 51 and 55% majority) that amended AS 11.71 subsections and made possession illegal. Noy was charged under this 1990 law.

To decide Noy, the court sought to answer if the law under which Noy was charged was unconstitutional, in which case it would be void.

Important to the courts decision was the process by which Statute 11.71 was enacted: the ballot. The court sought to answer whether Alaskans can enact legislation by ballot. The court found that Alaskans could, according to Article XII sec. 11 of the Alaska constitution, which reads that through the ballot Alaskans may exercise “the law-making powers assigned to the legislature” (subject to the limitations in Article XI), but, just like legislative action, the initiative process must not violate the constitution. Statute 11.71 did violate the constitution in part, and so, the court found, the statute must be limited to preserve its constitutionality. The statute was to return to its pre-1990 version in order to conform to the constitution.

Therefore, the court found that marijuana possession by adults in their home for personal use (as in Ravin) remained constitutional, entitling Noy to a new trial. The original conviction was reversed and Noy was granted a new trial, wherein he could possibly be re-convicted if he was found to possess more than four ounces of marijuana (the amount not protected by the constitution).

By Day Blakely Donaldson

Sources:

Findlaw

 

A trial over a lawyer’s marijuana possession took place in Alaska in 1975–Ravin v. State.

Irwin Ravin moved to Fairbanks in 1967 where he passed the bar and began practicing law. Ravin and another Alaskan, Robert Wagstaff, the Alaskan representative of the National Organization for the Reform of Marijuana Laws (NORML), both of whom enjoyed smoking marijuana, decided to take on the state’s marijuana laws. Ravin set himself up to be arrested in Anchorage during a routine traffic stop for a broken taillight. Ravin refused to sign the citation and was arrested with marijuana in his pocket. Ravin became the subject of a trial whereby he and Wagstaff would overturn Alaskan marijuana laws. NORML payed for expert witnesses to serve at the trial.

This trial was heard by the same judge as Breese v. Smith, Justice Rabinowitz, who referred to Breese for the test by which the court would measure Ravin’s claim that state action had unfairly encroached upon Ravin’s constitutional rights.

Rabinowitz cited this test:

“Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgement in question was justified by a compelling governmental interest.”

Babinowitz further wrote that this standard was familiar with federal law as well.

“As stated by the United States Supreme Court: Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.
The law must be shown ‘necessary, and not merely rationally related, to the accomplishment of a permissible state policy.’

Rabinowitz contrasted this test with the “rational basis” test–a less stringent test–which is to be applied when government action interferes with an individual’s freedom but not in an area characterized as fundamental. Under the “rational basis” test the government only needs to show that there is a rational basis that what they are doing would probably serve the public interest.

Ravin’s claim was to privacy rights violations–violations of a fundamental right. The court sought to find out whether any of Ravin’s rights had been infringed and, if so, find whether the infringements were justified.

The court looked to several precedent cases to inform its opinion: Griswold v. Connecticut, Stanley v. Georgia, Paris Adult Theatre I v. Slaton, and Gray v. State. In Gray v. State, Gray had asserted (correctly, Rabinowitz found) that where a law impinges upon the constitutionally guaranteed right of privacy, the statute may be upheld only if it is necassary to further a compelling state interest. Gray also referred to Breese and to a 1972 amendment to Alaska’s constitution expressly providing that, “The right of the people to privacy is recognized and shall not be infringed.” The court found that this amendment “clearly… shields the ingestion of food, beverages or other substances.” In Gray, however, this right was tempered by a provision whereby the government could subordinate fundamental rights by showing a compelling state interest, such as promoting and protecting public health and providing for the general welfare.

Rabinowitz opined that there was no fundamental right either to possess or ingest marijuana in either the Alaska or U.S. Constitution, because, Rabinowitz reasoned, “few would believe they have been deprived of something of critical importance if deprived of marijuana, though they would if stripped of control over their personal appearance.”  Rabinowitz proceeded from an express right to possess or ingest marijuana to a privacy right that would protect possession and ingestion.

In Rabinowitz’s opinion, he referred to several important special areas of constitutional protection: the home, marriage, procreation, motherhood, child rearing, and education, and found within the “zones of protection” created by various Constitutional Amendments protection also for possessing and ingesting marijuana.  Such protected possession and ingestion, however, had important limitations, for which the court referred to Stanley: a strictly limited guarantee to possession for purely private, noncommercial use at home was protected, but not where possession interferes with the health, safety, rights and privileges of others or with the public welfare. Rabinowitz wrote,

No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.

So, Alaskans’ right to ingest could be infringed if the state demonstrates that the ingestion interferes with the achievement of a legitimate state interest.  The court concluded,

…Citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

The court reviewed the scientific research and testimony of experts heard on marijuana in order to find if there was evidence of a legitimate state interest to prohibit ingestion of the drug. The court found that marijuana does not constitute a public health problem of any significant dimensions and found that marijuana was more innocuous than alcohol or tobacco.

Thus we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.

The court reserved three areas of marijuana-related activity that would remain criminal: adolescents could not partake because they may not be mature enough “to handle the experience prudently;” driving while under the influence because marijuana was found to impair psycho-motor control; and possession of amounts indicative of intent to sell would remain illegal because buying and selling had no protection under the Alaskan constitution. Rabinowitz noted that the court did not condone the use of marijuana and, in fact, unanimously opposed the use of any psychoactive drugs, but left the decision to use marijuana to individual Alaskan adults.

The court ruled that the matter be remanded to the district court, who must consider the opinion of the court and Ravin’s motion to dismiss after investigating the particular circumstances of Ravin’s arrest and possession of marijuana. The court left unanswered the question of how far Alaskans’ privacy rights extend outside the home, which, in the words of concurring judge Justice Connor, remained to be defined as later cases were brought forth. Conner noted, however, that the right to privacy “does not vanish when one leaves the home,” though the claim to privacy diminishes “in proportion to the extent one’s person and one’s activities impinge upon other persons.”

Ravin, which was referred to in many drug-related cases, was cited famously in Noy v. State (1990).  Noy occurred after Alaskan voters approved a ballot initiative to re-criminalize marijuana. In this trial the court found that the ballot was unconstitutional, just as a legistlative enactment to the same affect would be unconstitutional.

*     *     *     *    *

Ravin v. State points out an area of constitutional protection missing in the U.S. Constitution: protection of privacy.

Justice Boochever felt it necassary to file a concurrence in order to point out that even though the court based its findings in large part upon U.S. Supreme Court precedent, the U.S. Constitution had no provision corresponding to the Alaskan constitution’s protection of privacy, and Boochever did not want the Alaskan constitution construed. Boochever asserted that Alaskans should proceed on the basis of their own, separate state Constitution and agreed with the majority’s departure from the U.S. Supreme Court’s established standards in areas where Alaskans had discretion to do so:

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Constitution, it can only be concluded that that right is broader in scope than that of the Federal Constitution. As such, it includes not only activities within the home and values associated with the home, but also the right to be left alone and to do as one pleases as long as the activity does not infringe on the rights of others. Thus, the decision whether to ingest food, beverages or other substances comes within the purview of that right to privacy.

What Boochever was referring to when he wrote of the court’s reference to U.S. Supreme Court precedents was Rabinwitz’s reference to the special importance of the home as given protection by the U.S. Consitution under various Amendments. Rabinowitz described penumbras created by these explicit rights and the existence of “zones of privacy” that had been located within these penumbra. For example, the First Amendment protects “privacy and freedom of association in the home,” the Third Amendment guarantees against the quartering of troops in private houses in peacetime, the Fourth against unreasonable searches and seizures, the Fifth provides protection against all government invasions “of the sanctity of a man’s home and the privacies of life.” These rights together form a penumbra of limited home-related rights understood by the U.S. Supreme Court, which in the area of privacy, Rabinowitz noted, arises only in connection with other fundamental rights (such as rights dealing with the home) and exists only when the private activity will not endanger or harm the general public.

By Day Blakely Donaldson

Sources:

UMKC Law
Justia

 

A trial over a the long hair of a middle school student took place in Alaska in 1972–Breese v. Smith.

Michael and his father Russell Breese stood up against Elmer C. Smith, the principal of Main Junior High School, after Michael was threatened with suspension if Michael did not comply with an unwritten regulation against long hair promulgated three years earlier by the principal. Male students’ hair could “not be down over the ears, over the eyes,… [or] over the collar,” according to the regulation. The trial also involved George E. Taylor, superintendant of Fairbanks North Star Borough School District, who Smith turned to for authority to expell Michael Breese. On Sept. 21 Michael was expelled. Sept. 22 a superior court injunction forced an Oct 7. School Board hearing on the merits of the expulsion (evidence informing about the relation between hair lenth and undesirable characteristics/behavior in school students). An Oct 15. superior court hearing found the regulation reasonable (it did not unconstitutionally interfere in a citizens rights) and dissolved the temporary restraining order.

The ruling was appealed by the Breeses. When the case went to its final trial at the Supreme Court, the finding was that Michael’s rights to privacy guaranteed by the Alaska state constitution had been violated. Long hair was protected by law. The court did not find relevant language to deal with the matter in the U.S. Constitution, and previous cases dealing with the matter of hair styles lacked consensus (several theories based on several Constitutional amendments had been argued). Since the court lacked U.S. Constitutional resources to use as a basis, it turned to the state constitution, which states (basically, an incorporation of the affirmations of the Declaration of Independence),

“…All persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.”

The Alaska constitution also guarantees (article VII, section 1) a right to public education to all Alaskan children. The court set out to decide whether the hair length regulation was valid on the basis of whether Breese had a constitutional right to his hairstyle. The earlier (trial) court had found no express constitutional guarantee of the right to wear long hair at school and also found that such a right could not be grounded in any “right to privacy.” The opinion of Justice Rabinowitz was that,

“Given this backdrop of constitutional interpretation we begin with the established premise that children are possessed of fundamental rights under the Alaska constitution. Moreover, we have previously stated that children’s constitutional rights will not be denied in deference to governmental benevolence or popular social theories… .

“We hold that under article I, section 1 of the Alaska constitution’s affirmative grant to all persons of the natural right to ‘liberty,’ students attending public educational institutions in Alaska possess a constitutional right to wear their hair in accordance with their personal tastes… .

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone’… .”

In his notes on the opinion, Justice Rabinowitz cited Justice Douglas’ interpretation of “liberty” in Olff v. East Side Union High School Dist., who stated, “the word “liberty” is not defined in the Constitution. But … it includes at least the fundamental rights “retained by the people”… . One’s hair style, like one’s taste for food, or one’s liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme a scheme designed to keep government off the backs of people.” Rabinowitz continued,

“We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the ‘liberty’ assurance of the Due Process Clause, requiring a ‘compelling’ showing by the state before it may be impaired. Yet ‘liberty’ seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty…

“We are in accord with the observation made by the court in Bishop v. Colaw that ‘personal freedoms are not absolute; they must yield when they intrude upon the freedom of others.’

“Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling” … .

“We think the compelling interest standard has merit and should be adopted in cases where a person’s individual liberty, as guaranteed by the Alaska constitution, allegedly has been encroached upon… Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgment in question was justified by a compelling governmental interest.

The ruling found that in disagreements of this kind, the onus should be not on the complainant, but rather on the government, so as to afford “protection against attempted infringement” of constitutional rights–not just rely on the “subjective elements of motivation and good faith of school administrators.” This decision about where the onus should be placed was disagreed with by concurring Justice Irwin, who believed that the burden of showing the unreasonableness of a rule to the purpose for which it was promulgated should rest with the student.

The court therefore found that Breese did have a constitutional right to wear his hair long. In looking at whether the state had a compelling interest in keeping hair short in schools, the courtheld off from expressing exaclty what evidence would be necassary to establish such an interest, but only concluded that the burden of showing such a justification had not been met in this case.The court, therefore, found no justification for the denial of Breese’s rights.

The court reversed and remanded the superior courts judgement.

*     *     *     *     *

The hair length issue in Breese v. Smith points out an area of civil liberties lacking protection under the U.S. Constitution: protection of individuals rights to decide their own appearance.

When argueing a person’s right to their appearance, proponents have tried a vareity of federal constitutional theories as the source of such rights. There is no consensus about what rationale is appropriate. Here are some examples of rationales that have been forwarded and have been used in various trials to successfully protect rights from infringement: The First amendment rationale has been called the right to freedom of expression, but it does not offer language that encompasses the issue of personal appearance or property.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The ninth Amendment rationale is the Section 1 “Equal Protection Clause,” which deals with property and liberty, but only as it is affected using “due process of law.”

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Fourteenth amendment’s Section 1 “due process clause” similarly deals with liberty and property–as well as privileges and immunities–but only where legislation infringes upon them and again dealing with them as affected by “due process of law.” It was used in Brown v. Board of Education (1954) (racial desegregation in schools) and other discrimination cases. The Fourteenth Amendment was also used in Griswold v. Connecticut (stuck down the banning of contraceptives) and Roe v. Wade (established a woman’s right to abortion). In Griswold, Justice Blackmun located within the “Due Process Clause” a “right to privacy,” although this decision was very controversial.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In Richards v. Thurston–already cited by Rabinowitz–the First Circuit court said this of the Constitutional grounds for upholding students rights to determine their personal appearance:

“We think the Founding Fathers understood themselves to have limited the government’s power to intrude into this sphere of personal liberty, by reserving some powers to the people. The debate concerning the First Amendment is illuminating. The specification of the right of assembly was deemed mere surplusage by some, on the grounds that the government had no more power to restrict assembly than it did to tell a man to wear a hat or when to get up in the morning. The response by Page of Virginia pointed out that even those “trivial” rights had been known to have been impaired to the Colonists’ consternation but that the right of assembly ought to be specified since it was so basic to other rights. The Founding Fathers wrote an amendment for speech and assembly; even they did not deem it necessary to write an amendment for personal appearance. We conclude that within the commodious concept of liberty, embracing freedoms great and small, is the right to wear one’s hair as he wishes.”

By Day Blakely Donaldson

Sources:

Justia
Alaskan Government