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Wednesday, May 7, 2014
Daily Read: Michele Gilman on the "Court for the One Percent"
If the defining issue of the United States is inequality, how is the nation's highest Court addressing that issue?
According to Michele Gilman's new article, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, forthcoming in the Utah Law Review and available on ssrn, the Court is decidely part of the problem rather than part of the solution.
Gilman's article is valuable because it traverses several different doctrinal areas. Obviously, she discusses Citizens United. But - - - refreshingly - - - she argues that "Citizens United is just one piece of a larger problem." She contends that this problem did not begin with the Roberts' Court, as her discussions of Harris v. McCrae, San Antonio Independent School District v. Rodriguez, and Dandridge v. Williams illustrate. Ultimately, she suggests that the Court stands in the way of addressing inequality because the legislative and policy suggestions that have worked in other "affluent democracies" will be deemed unconstitutional in the United States:
We currently have a Court majority that is not only unsympathetic to inequality arguments, but also seemingly oblivious to (or skeptical of) the connection between government policies and market outcomes. The Court has ruled that it is up to the legislative branch, rather than the Courts, to remedy economic inequality. Yet, the Court has doomed legislative enactments that would ameliorate inequality, such as desegregation plans, campaign finance reforms, and consumer protection laws. Conversely, when legislatures enact policies that tend to worsen economic inequality or magnify its effects, the Court defers, such as school financing laws and voter identification requirements. In short, the Court's rulings consistently sustain policies that create or maintain economic inequality.
Gilman has some explanations for this state of affairs, but, more importantly, she proposes a proactive five point plan of change. This important article is worth a read.
May 7, 2014 in Equal Protection, Fourteenth Amendment, Race, Recent Cases, Reproductive Rights, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, May 5, 2014
Divided Supreme Court Finds Town Board Prayer Does Not Violate Establishment Clause
In a sharply divided opinion today in Town of Greece v. Galloway, the United States Supreme Court has decided that religious prayers at the beginning of a town board meeting do not violate the Establishment Clause.
Recall that the Second Circuit had concluded that the Town of Greece's practice of prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity." At oral argument, the discussion centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer, and the question of whether the "town board" a "hybrid" body making adjudicative findings as well as engaging in legislative acts. Recall also that the Obama administration filed an amicus brief in support of the Town of Greece.
Writing for the majority - - - except for Part II-B in which Justices Scalia and Thomas did not join - - - Justice Kennedy concluded that there was no Establishment Clause violation based upon Marsh v. Chambers. First, the majority opinion held that Marsh v. Chambers does not require nonsectarian or ecumenical prayer. Instead, it is acceptable that while a
number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a "spirit of cooperation" among town leaders.
Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissi ble government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer.
In the plurality section, Justice Kennedy rejected the relevance of the "intimate setting of a town board meeting" to a finding that the prayer "coerces participation by nondaherents." Rather, the principle audience for the prayers "is not, indeed, the public but lawmakers themselves." The analysis, Kennedy writes, "would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity."
Justices Thomas and Scalia did not join Part II-B; they essentially reject the coercion test ("peer pressure, unpleasant as it may be, is not coercion"). Justice Thomas also (as he has done in the past) rejects the incorporation of the Establishment Clause to the states, and certainly to a municipality.
In the major dissent authored by Justice Kagan - - - joined by Justices Ginsburg, Breyer (who also authored a separate dissent) and Sotomayor - - -the emphasis is on the factual record. Kagan distinguishes Marsh v. Chambers and argues the situation in the Town of Greece is outside its "protective ambit."
the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing— the 10 or so members of the public, perhaps including children. And he typically addresses those people, as even the majority observes, as though he is "directing [his] congregation." He almost always begins with some version of "Let us all pray to gether." Often, he calls on everyone to stand and bow their heads, and he may ask them to recite a common prayer with him. He refers, constantly, to a collective "we"—to "our" savior, for example, to the presence of the Holy Spirit in "our" lives, or to "our brother the Lord Jesus Christ." In essence, the chaplain leads, as the first part of a town meeting, a highly intimate (albeit relatively brief) prayer service, with the public serving as his congregation.
[citations omitted].
Further, Justice Kagan writes, "no one can fairly read the prayers from Greece's Town meetings as anything other than explicitly Christian—constantly and exclusively so." Because of these practices, she concludes, the Town of Greece has "betrayed" the "promise" of the First Amendment: "full and equal membership in the polity for members of every religious group."
The Supreme Court's divided opinion illustrates that religion in the town square - - - or the town board meeting - - - remains divisive.
May 5, 2014 in Establishment Clause, First Amendment, Fourteenth Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, April 1, 2014
Ninth Circuit on the Equal Protection Rights of Immigrants in Hawai'i's Health Program
In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge. The court reversed the preliminary injunction entered by the district judge.
There are several layers of complexity in the case. There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.
Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages. As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option. The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association ("COFA") with the United States, may enter the United States and establish residence as a "nonimmigrant. The "COFA aliens" are in the third category of state option. At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded. It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent. As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review." In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." What standard should apply to a "hybrid case" such as Basic Health Hawai'i, in which a state is following a federal direction? Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai'i is merely following the federal direction set forth by Congress under the Welfare Reform Act."
Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.
Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice.
I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai'i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don't think Congress had the power to give. Hawai'i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai'i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai'i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai'i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai'i, that should be deemed responsible.
While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.
April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)
Thursday, March 27, 2014
Fifth Circuit Upholds HB2, Texas Restrictive Abortion Statute
A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott.
Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. The district judge's decision had enjoined the "admitting provisions of HB 2 as unconstitutional:
A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services
The Fifth Circuit quickly stayed the injunction. In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."
As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:
Viewed from the proper perspective, the State's articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients' health.
As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,
counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.
The narrow exception of the Fifth Circuit's reversal if that the admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."
March 27, 2014 in Abortion, Due Process (Substantive), Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)
Saturday, March 15, 2014
Tennessee Federal Judge Issues a Narrow Injunction Regarding Prohibition of Same-Sex Marriage Recognition
In her opinion in Tanco v. Haslom, federal district judge in the Middle District of Tennessee, Aleta A. Trauger, decided that what she called the state's "Anti-Recognition Laws" are most likely unconstitutional as violative of equal protection, even under rational basis review. She therefore enjoined the state from refusing to recognize the otherwise valid out-of-state marriages of the six plaintiffs in the case.
Judge Trauger's opinion is relatively brief. She highlights the United States Supreme Court's decision in United States v. Windsor , and while she does not mention Justice Scalia's Windsor dissent, she does echo the cases that have, and notes the "rising tide" of cases that have relied on Windsor to find their state same-sex marriage prohibitions unconstitutional. She states that she
finds Judge Heyburn's equal protection analysis in Bourke [v. Beshear], which involved an analogous Kentucky anti-recognition law, to be especially persuasive with respect to the plaintiffs' likelihood of success on the merits of their Equal Protection Clause.
While emphasizing the narrowness of her opinion and that the United States Supreme Court will ultimately rule on the matter, she concludes with a prediction:
At this point, all signs indicate that, in the eyes of the United States Constitution, the plaintiffs' marriages will be placed on an equal footing with those of heterosexual couples and that proscriptions against same-sex marriage will soon become a footnote in the annals of American history.
[image: 1827 map of Tennessee via]
March 15, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, March 3, 2014
Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases
There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment:
De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky;
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.
Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.
In "Justice Scalia's Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.
March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, February 27, 2014
Pro Publica on Voting Changes Since Shelby County
Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County. The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.
Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority. Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace. Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.
In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling. Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.
February 27, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 26, 2014
Federal Judge Declares Texas Same-Sex Marriage Ban Unconstitutional
Judge Orlando Garcia's opinion in DeLeon v. Perry issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.
Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.
Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin. As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.
On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned.
Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review." He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review. First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing. As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage. Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served. Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments. Here Judge Garcia finds that the interest is not legitmate.
In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right. Judge Garcia marshalls the Supreme Court precedent thusly:
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").
He thus applies strict scrutiny and the same-sex marriage ban fails.
Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:
Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).
Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.
[image: map of Texas circa 1866 via]
February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Thursday, February 20, 2014
Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional
Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.
One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate." But, the Third Circuit stated, that is not a "constitutional flaw."
The challenged statutory provisions included ones that:
(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a "preparation room";
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.
The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.
In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:
The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL's proscription at Central Hudson's third step: by allowing funeral homes to operate under predecessors' names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names. A funeral director operating a home that has been established in the community, and known under his or her predecessor's name, does not rely on his or her own personal reputation to attract business; rather, the predecessor's name and reputation is determinative. Nor does a funeral home operating under a former owner's name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State's regulation seeks to further.
[citation omitted]
ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case. It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.
February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Friday, February 14, 2014
Federal District Judge Declares Virginia's Same-Sex Marriage Ban Unconstitutional
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia's Marriage Laws betrays that interest.
Judge Allen's equal protection analysis is substantially shorter and makes the articulates the application of rational basis scrutiny even more explicit:
Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia's citizens, to perpetuate a generally-recognized deference to the state's will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia's gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Thursday, February 13, 2014
Kentucky Federal Judge Rules State's Nonrecognition of Same-Sex Marriages Violates Equal Protection
United States District Judge John G. Heyburn's opinion in Bourke v. Beshear finds that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.
The judge's 23 page opinion is crafted for both a nonlegal and legal audience.
For popular consumption, Judge Heyburn's opinion has passages written in direct prose answering questions he himself has posed and unburdened with extensive citations. For example, he writes:
For many others, this decision could raise basic questions about our Constitution. For instance, are courts creating new rights? Are judges changing the meaning of the Fourteenth Amendment or our Constitution? Why is all this happening so suddenly?
The answer is that the right to equal protection of the laws is not new. History has already shown us that, while the Constitution itself does not change, our understanding of the meaning of its protections and structure evolves. If this were not so, many practices that we now abhor would still exist.
He discusses religiosity in similar terms, beginning by noting that many Kentuckians believe "what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society's benefit" and later opining that
The beauty of our Constitution is that it accommodates our individual faith's definition of marriage while preventing the government from unlawfully treating us differently. This is hardly surprising since it was written by people who came to America to find both freedom of religion and freedom from it.
For its legal audience, Judge Heyburn's opinion contains a rigorous analysis of equal protection doctrine, of the Supreme Court's decision last June in United States v. Windsor, and of the courts applying Windsor.
Engaging with the Court's opinion in Windsor, authored by Justice Kennedy, Judge Heyburn expresses some frustration with the lack of clear equal protection doctrine, observing that the Court "never clearly explained the applicable standard of review." Nevertheless, Judge Heyburn used two "principles" of Windsor: that the actual purpose of the law must be considered in light of animus and that the laws must not demean one group by depriving them of the rights provided for others. Ultimately, Judge Heyburn applies rational basis review and finds that the government interests proferred by Kentucky - - - as well as those advanced in an amicus brief submitted by the Family Trust Foundation of Kentucky - - - are not legitimate interests.
Judge Heyburn also discusses the three federal district judges who have reached similar conclusions in "well-reasoned opinions," citing the opinions in Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
To be clear, the effect of the opinion is not to mandate clerks in Kentucky begin offering marriage licenses to same-sex couples. But it is to require Kentucky to recognize same-sex marriages valid in another state as valid in Kentucky on the same terms as other marriages.
[image: 1921 map of Kentucky via]
February 13, 2014 in Courts and Judging, Family, Fourteenth Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 22, 2014
Bipartisan Bills Introduced to Amend Voting Rights Act
Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance. The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3).
Our Shelby County coverage is here and here (with links to most of our other posts on the case).
The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years. (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.) This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia.
The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA. Ari Berman over at The Nation has a nice summary.
The new provisions will undoubtedly be challenged when and if they're enacted. On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage. But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.
January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)
Tuesday, January 21, 2014
Ninth Circuit Extends Batson's Equal Protection Doctrine Regarding Juror Exclusion to Sexual Orientation and Applies "Heightened" Scrutiny
In its opinion today in SmithKline Beecham Corporation (GSK) v. Abbott Laboratories, a unanimous panel of the Ninth Circuit extended the equal protection rule and analysis of Batson v. Kentucky (1986) regarding juror exclusions to those based on sexual orientation.
The underlying dispute between the pharmaceutical companies involved HIV medications and during jury selection the attorneys for Abbott Laboratories "used its first peremptory strike against the only self-identified gay member of the venire." The attorneys for GSK sought to initiate a Batson inquiry on the basis of sexual orientation. The Batson analysis first requires a "prima facie" case of intentional discrimination, after which the striking party must offer a neutral reason for the strike, and then, third and last, the court makes a determination whether there has been an equal protection violation.
The district judge allowed the preemptory strike although said she would "reconsider her ruling if Abbott struck other gay men." While the judge advised Abbott's attorney that "it might be the better part of valor" to reveal the basis for his strike, counsel "replied that he would rely on the grounds given by the judge and further explained, 'I don't think any of the challenge applies. I have no idea whether he is gay or not.'" Apparently he later "added that he could not have engaged in intentional discrimination because this was only his first strike." After a four week trial, the jury returned a "mixed verdict."
In the opinion authored by Judge Reinhardt, the Ninth Circuit held that there was a "prima facie" sufficient to have triggered the Batson inquiry, and using the record before it, then engaged in the second prong of the Batson analysis, finding that Abbott's counsel did not provide a sufficient explanation.
As to the third prong, the Ninth Circuit panel noted that generally attorneys may "exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to 'rational basis' review." It then stated: "Thus, if sexual orientation is subject to rational basis review, Abbott's strike does not require reversal."
Judge Reinhardt's opinion for the panel concluded that sexual orientation receives "heightened scrutiny" under equal protection. The opinion turned to "the Supreme Court's most recent case on the relationship between equal protection and classifications based on sexual orientation": United States v. Windsor (2013), holding that Windsor was "dispositive of the question of the appropriate level of scrutiny in this case," even as the Court's majority opinion in Windsor "did not expressly announce the level of scrutiny it applied to the equal protection claim at issue." Judge Reinhardt correctly noted that the Court in Windsor did not apply a presumption of constitutionality or supply reasons for Congressional action in DOMA.
Windsor scrutiny "requires something more than traditional rational basis review." Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny.
Thus, the Ninth Circuit's previous precedent applying rational basis to sexual orientation classifications was no longer valid. Applying this heightened scrutiny, the Ninth Circuit found that the peremptory challenge was unconstitutional:
permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.
In sum, the Ninth Circuit's extended Batson to sexual orientation classifications and used the term "heightened scrutiny" to comply with the doctrine that Batson did not apply to classifications that merited rational basis scrutiny.
However, one might be reading too much into the opinion to conclude that the Ninth Circuit has ruled that sexual orientation classifications now merit heightened scrutiny akin to "intermediate scrutiny." Indeed, the Ninth Circuit relies upon the United States Supreme Court's opinion in Windsor which it admits is less than clear about the level of scrutiny - - - and certainly much less clear than the Second Circuit's opinion in Windsor which determined and applied the intermediate level of equal protection scrutiny used in gender/sex classifications.
Instead, it seems that the Ninth Circuit read the "rational basis" exclusion from Batson to be the "mere" rationality test - - - often called the "anything goes" rational basis of Railway Express Agency v. New York (1949) (which the Ninth Circuit panel opinion did not cite) or Fed. Commc'n Comm'n v. Beach Commc'n, Inc. (1993) (which the Ninth Circuit did cite and quote). The "heightened scrutiny" that the Ninth Circuit finds - - - derived from Windsor - - - is akin to the "heightened rational basis" or "rational basis with bite" or "rational basis with teeth" that has become a common feature of equal protection doctrine for sexual orientation classifications. While the Ninth Circuit opinion does not stress "animus," it does discuss Department of Agriculture v. Moreno (1973), including stating that the Ninth Circuit previously "acknowledged that Moreno applied "'heightened' scrutiny."
Certainly, this is an important opinion: it extends Batson to sexual orientation classifications. And it is also important to the litigation between two giant pharmaceutical corporations given that the case was remanded for a new trial. However, it is not a landmark opinion that substantively changes (rather than clarifies or renames) the level of scrutiny for sexual orientation classifications in all equal protection cases.
[image via]
January 21, 2014 in Courts and Judging, Equal Protection, Fourteenth Amendment, Opinion Analysis, Sexual Orientation | Permalink | Comments (1) | TrackBack (0)
Monday, January 20, 2014
Daily Listen: Newly Discovered Audio of MLK Speech
The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation. The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."
The audio and other materials area available at the Musuem's website here.
A preview and explanation is in the video below:
January 20, 2014 in Current Affairs, Equal Protection, Fourteenth Amendment, History, News, Race, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, January 13, 2014
Daily Read: Understanding Zablocki v. Redhail and "Marriage Equality"
The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor.
The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that
our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.
The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.
Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.
In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect. Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16. Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.
There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.
The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.
January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, January 2, 2014
Scholarship Matters: Steve Sanders, The Right to "Stay Married," and Obergefell Opinion
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment's Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional "right to marry."
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one's already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders's learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the "[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities."
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Friday, December 20, 2013
Utah Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional
In his opinion in Kitchen v. Herbert, federal district judge Robert Shelby held
that Utah's prohibition on same- sex marriage conflicts with the United States Constitution's [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State's current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.
Notably, Utah has both a state statute and state constitutional amendment defining marriage as limited to "a man and a woman."
The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:
The Constitution's protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court's ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion . . . is that DOMA is motivated by "bare . . . desire to harm" couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.
133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.
Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny. He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."
Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative. Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review. This rejection includes the arguments centering on animus as a non-legitimate state interest. Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah's prohibition of same-sex marriage. These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing," "proceeding with caution," and "preserving the traditional definition of marriage."
He ends with an extended analogy to Loving v. Virginia, or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional. And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.
December 20, 2013 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Saturday, December 14, 2013
Federal District Judge Finds Portions of Utah's Criminalization of Polygamy Unconstitutional
In a 91 page opinion in Brown v. Buhman, federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional.
The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor Jonathan Turley, who blogs about the case here.
The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court's 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."
Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah).
In the due process analysis, the judge specifically found
there is no "fundamental right" to polygamy under Glucksberg. To phrase it with a "careful description" of the asserted right [citations omitted], no "fundamental right" exists to have official State recognition or legitimation of individuals' "purported" polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed."
The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence.
However, the judge did find that "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability. The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.
As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.
Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds." However, the court explicitly narrowed the constructions of "marry" and "purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].
Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.
[video via]
December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 4, 2013
Magliocca Talks John Bingham
Gerard Magliocca (Indiana) appeared recently on Your Weekly Constitutional, a pod-cast and radio show affiliated with James Madison's Montpelier, to discuss his new book American Founding Son: John Bingham and the Invention of the Fourteenth Amendment. Magliocca talks about John Bingham and the creation of the Fourteenth Amendment in this terrific hour-long segment with YWC host Stewart Harris.
December 4, 2013 in Books, Fourteenth Amendment, History, News | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 12, 2013
Daily Read: "Interest Creep" by Dov Fox
What is the government interest?
This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts. Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.
In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases. His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising. His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment. His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.
Ultimately, he argues that
Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens "to debate and to criticize the true reasons for [judicial] decisions."
Especially worth a read for anyone teaching or writing in the areas of reproductive rights.
November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)


text:
BoSox explode past AstrosTHE ASSOCIATED PRESS | August 15,2014BOSTON A seven-run seventh inning carried the Boston Red Sox to an 9-4 victory over the Houston Astros at Fenway Park Thursday night.
Boston rallied from a 4-1 deficit in the decisive frame.
Dustin Pedroia had a pair of RBI and was one of seven Red Sox to drive in runs. David Ortiz had his team-leading 85th RBI of the season.
Allen Webster had a rocky start but earned the win with six innings of work.
Tigers 5, Pirates 2
DETROIT Max Scherzer struck out 14 batters in eight shutout innings, leading the Detroit Tigers to a 5-2 victory over the Pittsburgh Pirates on Thursday.
Scherzer (14-4), last years AL Cy Young Award winner, held Pittsburgh to three hits and two walks. Since June 22, he is 6-1 in 10 starts with a 1.78 ERA and 85 strikeouts.
Scherzers performance and a homer from J.D. Martinez gave the Tigers a much-needed sweep of the two-game set and a split of the four games in the home-and-home series that started Monday in Pittsburgh.
Royals 7, Athletics 3
KANSAS CITY, Mo. Nori Aoki and Billy Butler each drove in two runs during a five-run seventh inning that rallied surging Kansas City past Oakland.
The Royals (66-54) have won 18 of 22 to move 12 games above .500 for the first time since July 20, 2003. Kansas City took the season series, winning five of seven against the Athletics.MORE IN Wire SportsMIAMI At BYU, theyre looking to restore tradition. Full StoryTALLAHASSEE, Fla. Full StoryDETROIT Jarome Iginla scored in the ninth shootout round to lift the Colorado Avalanche to a 2-... Full Story
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- RICHARD'S POOR ALMANACK: In 1972, Christmas bombing of North Vietnam ordered by President Richard Nixon, most lethal strikes of the war; in 1989, U.S. invades Panama to depose, arrest and charge Gen. Manuel Noriega with drug trafficking, racketeering.
- TOMORROW'S HEADLINES TODAY: Gov. Peter Shumlin announces demise of his single-payer health insurance initiative; convicted first-degree murderer Alan Prue sentenced to 50 years for killing teacher Melissa Jenkins; veterans chafed about park naming snub.
- RICHARD'S POOR ALMANACK: In 497 BC, first Saturnalia festival celebrated in Rome, Scandinavians retain 'Yule Goat' as symbol of season, Krampus, evil side of holiday cheer, terrorizes children into better behavior, more advice from Christopher Hitchens.
- RICHARD'S POOR ALMANACK: In 533 AD, Byzantine Emperor Justinian I gets the old empire back together again routing the Vandals from Carthage; in 1890, Lakota Chief Sitting Bull is killed at his home in South Dakota; in 1970, Soviets land probe on Venus.
- DUANE CARLETON: Rutland Herald Events Editor George Nostrand interviews musician Duane Carleton, whose new CD 'A GIRL LIKE THAT' drops Thursday, Dec. 18, 2014, and will be celebrated that evening with a show at 9:30 p.m. at Killington's Pickle Barrel.

subset: commoncrawl


text:
I am a 5'2", 120 lbs, long natural redhead, with green eyes. I am part Cherokee and part Irish. I've been a widow for over 10 years and my daughter ask me to look again for a male companion. What you see is what you get. Here it is 2-5-2013 and I've started looking. My children don't live with me, thank goodness, but love them dearly, for they have family of their own. Anyway, it's not nice to be a meddling mom/grandmother. There to listen 99% of the time, or watch movies with them. They are great cuddlers.
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What I'm doing with my life
Don't overthink this one; tell us what you're doing day-to-day.
I volunteer by making preemie burial gowns to help people after their loss of their little(s). I'm in the process of trying to help with the programming of our Native show that's local, Volunteer for Red Lodge Transitional Services, at this present time in my life...I'm trying to get settled in my new living amode.
I'm really good at
Go on, brag a little (or a lot). We won't judge.
I'm really good at camping, fishing, hiking, bikes, playing pool, dancing, gardening -organic only, volunteering, listening, and most of all, enjoying people.
The first things people usually notice about me
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The first thing never ever notice about me is I'm part Native American. My other part is Irish. Most people notice I'm outgoing and enjoy talking to people.
Favorite books, movies, shows, music, and food
Help your potential matches find common interests.
My favorite food is great airy frybread, Indian tacos, fried cucumbers, fried zucchini....just pass the honey please for my frybread. My favorite music is oldies from the 60-70's. I like the blues. I can listen to most anything except rap please. My fav books are Native learnings, at present it is Medicine Gardens. Planning on one this year to grow. Shows on tv are Malibu Country (I like Reba and Lily Tomlin together for laughs) and Nashville. Movies, get votes for action, dramas, mysteries, and finally love stories.
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Think outside the box. Sometimes the little things can say a lot.
I couldn't do without my spirituality: for it's my strength, guidance, and it always answers my requests. I can't do without learning, directions, the elements, this gorgeous land that Mother Earth has loaned us to live upon and humanity needs to preserve better for coming generations, and most of all, I can't do without is my spirit guide. As you can see my spirituality is a big part of who I am, but I can not do without my family (children and grandchildren are so precious). Can't do without friends, for they are extended family to me. Music is a must along with education (learning on a daily basis) and don't forget positiveness. Now these are the six thibgs I can't do without.
I spend a lot of time thinking about
Global warming, lunch, or your next vacation… it's all fair game.
My thinking time, hmmm, I do loads of thinking about how do I go about helping the young ones to preserve our Native tongue so it doesn't get lost for non use. Culture and heritage also need to be preserved for the future generations. My thoughts are ever growing for this goal.
On a typical Friday night I am
Netflix and takeout, or getting your party on — how do you let loose?
I am usually relaxing at home because I'm new to this and my dance card hasn't been signed yet. I will see what the future holds for me and especially leave fridays open.
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I don't share with anyone who I've been with. If I'm with you it stays between us. I'm a very private person.
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You should message me if my profile interests you and you want to get to know me, please be local...long distance isn't good for me...sorry. I'm looking for a friend, companion to spend quality time with and to learn from them. It might lead to long term dating, one never knows what the future holds. But friendship is highly important to me for any kind of relationship. Up to you now, so I hope to hear from someone soon.
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text:
Doylestown, Pennsylvania
For population 25 years and over in Doylestown:
For population 15 years and over in Doylestown borough:
391 residents are foreign born (2.8% Europe, 0.5% Asia).
Median real estate property taxes paid for housing units with mortgages in 2012: $3,680 (0.9%)
Nearest city with pop. 50,000+: Levittown, PA (18.4 miles , pop. 53,966).
Nearest city with pop. 200,000+: Philadelphia, PA (21.8 miles , pop. 1,517,550).
Nearest cities: New Britain borough, PA (1.7 miles ), Chalfont borough, PA (2.1 miles ), Plumsteadville, PA (2.3 miles ), Brittany Farms-Highlands, PA (2.3 miles ), Dublin borough, PA (2.4 miles ), Montgomeryville, PA (2.7 miles ), Ivyland borough, PA (2.8 miles ), Silverdale borough, PA (2.8 miles ).
Latitude: 40.31 N, Longitude: 75.13 W
Daytime population change due to commuting: +6,852 (+81.8%)
Area codes: 215, 267
City-data.com crime rate counts serious crimes more heavily. It adjusts for the number of visitors and daily workers commuting into cities.
(click on a table row to update graph)
Crime rate in Doylestown detailed stats: murders, rapes, robberies, assaults, burglaries, thefts, arson
Full-time law enforcement employees in 2012, including police officers: 20 (15 officers).
This borough's Wikipedia profile
Doylestown tourist attractions:
Doylestown, Pennsylvania accommodation, waste management, arts - Economy and Business DataUnemployment in July 2013:
Unemployment by year (%)
Historical population
Historical housing units
Population change in the 1990s: -482 (-5.5%).
Work and jobs in Doylestown: detailed stats about occupations, industries, unemployment, workers, commute
Average climate in Doylestown, Pennsylvania
Based on data reported by over 4,000 weather stations
Tornado activity:
Doylestown-area historical tornado activity is above Pennsylvania state average. It is 46% greater than the overall U.S. average.
On 7/27/1994, a category F3 (max. wind speeds 158-206 mph) tornado 21.4 miles away from the Doylestown borough center killed 3 people and injured 25 people and caused between $5,000,000 and $50,000,000 in damages.
On 10/18/1990, a category F3 tornado 22.2 miles away from the borough center injured 8 people and caused between $500,000 and $5,000,000 in damages.
Earthquake activity:Doylestown-area historical earthquake activity is above Pennsylvania state average. It is 79% smaller than the overall U.S. average.
On 1/16/1994 at 01:49:16, a magnitude 4.6 (4.6 MB, 4.6 LG, Depth: 3.1 mi, Class: Light, Intensity: IV - V) earthquake occurred 47.9 miles away from the city center
On 1/16/1994 at 00:42:43, a magnitude 4.2 (4.2 MB, 4.0 LG, Depth: 3.1 mi) earthquake occurred 46.3 miles away from Doylestown center
On 8/26/2003 at 18:24:18, a magnitude 3.8 (3.8 LG, 3.5 ML, Depth: 1.9 mi, Class: Light, Intensity: II - III) earthquake occurred 20.3 miles away from the city center
On 10/23/1990 at 01:34:48, a magnitude 3.2 (2.9 LG, 3.2 MD, Depth: 6.2 mi) earthquake occurred 58.9 miles away from the city center
On 1/9/1992 at 08:50:45, a magnitude 3.1 (3.0 LG, 3.1 MD, Depth: 4.9 mi) earthquake occurred 41.7 miles away from Doylestown center
On 11/14/1997 at 03:44:11, a magnitude 3.0 (3.0 LG, Depth: 3.1 mi) earthquake occurred 60.4 miles away from the city center
Magnitude types: regional Lg-wave magnitude (LG), body-wave magnitude (MB), duration magnitude (MD), local magnitude (ML)
Natural disasters:The number of natural disasters in Bucks County (15) is greater than the US average (12).
Major Disasters (Presidential) Declared: 13
Emergencies Declared: 2
Causes of natural disasters: Floods: 3, Floods: 3, Storms: 3, Hurricanes: 2, Tropical Storms: 2, Winter Storms: 2, Mudslide: 1, Snowfall: 1, Storm: 1, Blizzard: 1, Tropical Depression: 1, Water Shortage: 1 (Note: Some incidents may be assigned to more than one category).
Birthplace of: James A. Michener - Novelist, Pink (singer) - Singer, Scott Green (American football official) - Football official, Henry Chapman Mercer - Non-fiction writer, Michael Smerconish - Columnist, Mike Flynn - 2005 NFL player (Baltimore Ravens, born: Jun 15, 1974), Erin Torpey - Actress, Joe Conti - Politician, Mary Michael Shelley - Women artist, Amos W. Barber - Politician.
Medal of Honor Recipient born in Doylestown: Charles Robert Francis.
Main business address for: QUIGLEY CORP (PHARMACEUTICAL PREPARATIONS), DISCOVERY LABORATORIES INC /DE/ (BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES)).
Hospitals/medical centers in Doylestown:
Political contributions by individuals in Doylestown, PA
Airports and heliports located in Doylestown:
See details about airports and heliports located in Doylestown, PA
Local government website: www.doylestownborough.net/DoylestownBorough.net/index_html
College/University in Doylestown:
Colleges/universities with over 2000 students nearest to Doylestown:
Biggest public high schools in Doylestown:
Private high school in Doylestown:
See full list of schools located in Doylestown, School District: CENTRAL BUCKS SCHOOL DISTRICT
Private elementary/middle schools in Doylestown:
(lower is better)
Air Quality Index (AQI)
Carbon Monoxide (CO) [ppm] level in 2010 was 0.311. This is about average. Closest monitor was 16.8 miles away from the city center.
Sulfur Dioxide (SO2) [ppb] level in 2010 was 4.10. This is significantly worse than average. Closest monitor was 16.8 miles away from the city center.
Lead (Pb) [µ/m3] level in 2007 was 0.00857. This is significantly better than average. Closest monitor was 11.4 miles away from the city center.
Nitrogen Dioxide (NO2) [ppb] level in 2010 was 12.2. This is worse than average. Closest monitor was 16.8 miles away from the city center.
Ozone [ppb] level in 2010 was 24.2. This is about average. Closest monitor was 16.8 miles away from the city center.
Particulate Matter (PM10) [µ/m3] level in 2010 was 17.2. This is better than average. Closest monitor was 16.8 miles away from the city center.
Particulate Matter (PM2.5) [µ/m3] level in 2010 was 10.1. This is about average. Closest monitor was 14.5 miles away from the city center.
Drinking water stations with addresses in Doylestown and their reported violations in the past:DOYLESTOWN BORO WATER DEPT (Population served: 8700, Groundwater):
Past health violations:DOYLESTOWN TWP MUN AUTHORITY (Population served: 5254, Purch_surface_water):
Past monitoring violations:DELAWARE VALLEY COLLEGE (Population served: 1200, Groundwater):
Past health violations:DOYLESTOWN HOSP T/A PINE RUN (Population served: 700, Groundwater):
Past monitoring violations:DOYLESTOWN TWP-CEDAR CREST FAR (Population served: 291, Purch_surface_water):
Past monitoring violations:GROSS GOURMET FOODS (Population served: 100, Groundwater):
Past monitoring violations:KINDER WORKS OF DOYLESTOWN (Population served: 80, Groundwater):
Past monitoring violations:GARDENVILLE GENERAL STORE (Population served: 50, Groundwater):
Past monitoring violations:
Percentage of residents living in poverty in 2012: 6.1%
(5.9% for White Non-Hispanic residents, 32.7% for Black residents, 0.0% for Hispanic or Latino residents, 0.0% for American Indian residents, 0.0% for other race residents, 16.2% for two or more races residents)
Average household size:
Percentage of family households:
Percentage of households with unmarried partners:
Likely homosexual households (counted as self-reported same-sex unmarried-partner households)
Detailed information about poverty and poor residents in Doylestown, PA533 people in nursing facilities/skilled-nursing facilities in 2010
24 people in group homes intended for adults in 2010
People in group quarters in Doylestown in 2000:
Doylestown compared to Pennsylvania state average:
Banks with most branches in Doylestown (2011 data):
Fire-safe hotels and motels in Doylestown, Pennsylvania:
Educational Attainment (%) in 2012
School Enrollment by Level of School (%) in 2012
Most commonly used house heating fuel:
Presidential Elections Results
1996 2000 2004 2008 2012
1996 Presidential Elections Results
2000 Presidential Elections Results
2004 Presidential Elections Results
2008 Presidential Elections Results
2012 Presidential Elections Results
Graphs represent county-level data. Detailed 2008 Election Results
Religion statistics for Doylestown borough (based on Bucks County data)Percentage of population affiliated with a religious congregations: 66.04%
Breakdown of population affiliated with a religious congregations
Tables represent county-level data.
Food Environment Statistics:
Number of grocery stores: 98
Number of supercenters and club stores: 3
Number of convenience stores (no gas): 74
Number of convenience stores (with gas): 105
Number of full-service restaurants: 453
Adult diabetes rate:
Adult obesity rate:
Low-income preschool obesity rate:
Doylestown government finances - Expenditure in 2002 (per resident):
Doylestown government finances - Revenue in 2002 (per resident):
Doylestown government finances - Debt in 2002 (per resident):
Doylestown government finances - Cash and Securities in 2002 (per resident):
5.41% of this county's 2006 resident taxpayers lived in other counties in 2005 ($64,837 average adjusted gross income)
0.05% of residents moved from foreign countries ($387 average AGI)
Top counties from which taxpayers relocated into this county between 2005 and 2006:
5.71% of this county's 2005 resident taxpayers moved to other counties in 2006 ($59,081 average adjusted gross income)
0.05% of residents moved to foreign countries ($384 average AGI)
Top counties to which taxpayers relocated from this county between 2005 and 2006:
Strongest AM radio stations in Doylestown:
Strongest FM radio stations in Doylestown:
TV broadcast stations around Doylestown:
Fatal road traffic accident statistics for 1975 - 2011 (per 100,000 population)
Doylestown, Pennsylvania:
See more detailed statistics of Doylestown fatal car crashes and road traffic accidents for 1975 - 2011 here
National Bridge Inventory (NBI) Statistics
Number of bridges: 22
Total length: 140 meters (459ft)
Total average daily traffic: 226,384
Total average daily truck traffic: 14,142
New bridges - Historical Statistics
FCC Registered Antenna Towers: 29 (See the full list of FCC Registered Antenna Towers in Doylestown)
FCC Registered Commercial Land Mobile Towers: 3 (See the full list of FCC Registered Commercial Land Mobile Towers in Doylestown, PA)
FCC Registered Private Land Mobile Towers: 11 (See the full list of FCC Registered Private Land Mobile Towers)
FCC Registered Broadcast Land Mobile Towers: 1 (See the full list of FCC Registered Broadcast Land Mobile Towers)
FCC Registered Microwave Towers: 17 (See the full list of FCC Registered Microwave Towers in this town)
FCC Registered Paging Towers: 5 (See the full list of FCC Registered Paging Towers)
FCC Registered Maritime Coast & Aviation Ground Towers: 3 (See the full list of FCC Registered Maritime Coast & Aviation Ground Towers)
FCC Registered Amateur Radio Licenses: 128 (See the full list of FCC Registered Amateur Radio Licenses in Doylestown)
FAA Registered Aircraft Manufacturers and Dealers: 2 (See the full list of FAA Registered Manufacturers and Dealers in Doylestown)
FAA Registered Aircraft: 77 (See the full list of FAA Registered Aircraft)
Detailed HMDA statistics for the following Tracts: 1047.01 , 1047.02, 1047.03
Detailed PMIC statistics for the following Tracts: 1047.01 , 1047.02, 1047.03
Conventional Home Purchase Loans
Conventional Home Purchase Loans - Value
2006 National Fire Incident Reporting System Incidents:
Incident types - Doylestown
See full 2006 National Fire Incident Reporting System statistics for Doylestown, PA
Doylestown on our top lists:
Total of 998 patent applications in 2008-2014.
Back to Doylestown, PA housing info, Bucks County, Pennsylvania, PA smaller cities, PA small cities, All Cities.


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Showing 1 review for Pioneer TS-W310D4
|Customer Review Summary for Pioneer TS-W310D4
|March 12, 2013
1 of 1 people found the following review helpful:
Review by
Matthew from Kansas
I recently received this subwoofer and it is incredible! I have it aired to an alpine mrp-m500 class d amp pushing 500 watts at 2 ohms in a sealed box. It is better than anything I have ever heard. Even my friend says it sounds great and he is very picky about car audio. In a sealed box this subwoofer will hit lows cleanly and clearly, the best part is they those lows are still very loud you can feel them vibrating the back of your seat. Even in the front seat. I would strongly recommend this subwoofer to anyone that wants a flawless sounding setup for years.


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make your hips hop! whop whop.. sorry, I've got no clue.. google?
Best Answer
kid cudi and BOB... aka bobby ray
Best Answer
It doesn't mean anything to me.
Best Answer
its the music of pure truth. there is no other form of music that straight forward
Best Answer
annoying loud alarm clocks.
Best Answer
Related Questions
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He is nothing like a rapper.ImGoodImGucci 18-21, M 3 Answers 0 Dec 1, 2013 in WTK
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I was waiting at the pizza shop for a deep dish, when some wannabe "gangsta" with a tattoo on his neck and pants around his knees came in and bought a "hot 'n' ready." On the way...UFOsR4real 41-45, M 6 Answers 1 Aug 27, 2011
this new hip hop nowadays is just garbage. it has no substance whatsoever .i mean they just put out anything.
Well most music genres sound the same like heavy Metal uses double bass drum? How much is music creativity have to do with dexterity?spiritinamachine 22-25, M 6 Answers 0 Apr 24 in Movies & TV


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Over 300 lives are lost on the Death Road in Bolivia every year. However, three teams of truckers decide to take that route. Catch their journey on "IRT Deadliest Roads"
The camera zooms in on a mangled truck lying in a valley. Near the coiled skeleton of steel is a human skull. Next comes a flurry of images capturing patches of green earth that are crowned with crosses — these are spots where vehicles and drivers have fallen and disappeared. It's difficult not to get macabre while trying to capture the essence of the 61-km-long "El Camino de La Muerte" — which means "Death Road" — that has been carved out of high mountains in the Amazonian rainforest region of Bolivia. The hearts of drivers — mostly truckers transporting cargo from La Paz to towns and cities on the other end of the road — skip a million beats as they tackle this narrow strip of a road, which has natural rocky walls on the one side and steep drop-offs, up to 1,800 feet, on the other.
The camera then introduces three two-member teams of truckers that take on the Death Road — in season two of "IRT Deadliest Roads" on History TV18, premiering on February 8 at 10 p.m. These truckers are aware of the chilling statistics — around 300 travellers falling to their deaths every year — and one team, consisting of Hugh Rowland and Rick Yemm, appears to revel in the built-in dangers of its mission to transport 40,000 pounds of concrete posts in a huge truck to the Amazonian town of Rurrenabaque.
These tattoo-ridden veteran truckers pump their fists and say, "Death Road!" As they begin to go down the snaking path, they keep laughing almost all the time as if this is a walk in the park. But, at some point, they will be tested by loose stones and other unforeseen factors along the way.
The other two teams are headed for the same town, and are transporting consignments of cement and barbed wire, both weighing the same as the first one. Trucker Lisa Kelly, who teams up with Dave Redmon, is scared of driving a truck at forbidding heights, and is out to face her fears. Dave has come to garner glory. If he manages the dangerous drive, he will have something to look back on with pride.
The third team — the least experienced in such drives — is one of contrasts. Tim Zickuhr swears like a sailor and speaks words of bravado, and his team mate Tino Rodriguez is a quiet, deeply religious man, who admits to doing this for his children. Tim accompanies Tino who goes to offer a prayer at a place of worship. For Tim, it is just a ritual — and later Tino comes down on him for belittling the role of an all-powerful supernatural being in human lives. On the Death Road, Tim swears less, and fear is more evident on his face. In one tight situation, he comes close to believing that he should not have directed barbs at Tino's faith.
Elsewhere on the road, Kelly is scared to death. Pale-faced, she admits she can't drive anymore. Her partner takes over, but the team ultimately gives up. Later, Kelly says: "I lost count of the number of times we died!"
In stark contrast, nothing seems to stop Hugh and Rick, as they reach the end of the road and get ready for the final challenge — driving their humungous trunk on to a raft that would take them across a river.
("The Death Road" experiences of the three teams constitute the first two episodes of season two of "IRT Deadliest Road". The following episodes present adventures undertaken at other forbidding parts of South America).
Lisa Kelly, who yields to her fears on the Death Road (officially known as North Yungas Road), returns in Episode 4 of "IRT Deadliest Roads" as a more confident and seasoned trucker. In this segment, Kelly drives with G.W. Boles on the 64-km South Yungas Road, another source of connectivity between the Amazonian rainforest region of Bolivia and the administrative capital of La Paz.
"Known as the 'Death Road', North Yungas Road gets the lion's share of attention. When you factor in the blind corners and oncoming traffic, even the South Yungas Road can be as deadly as the North Yungas Road," says Boles over the phone, admitting to having developed cold feet when the going got tough. In contrast, Kelly displayed an ability to take charge of difficult situations.
Kelly and Boles come across as a cohesive unit in the episode. It took some effort to forge unity and create trust. "In the beginning, she appeared to be scared of me. The fact that I put on a brave front by speaking highly of myself did not help matters. In the past, she wanted male truckers to treat her as an equal. As a result, they were indiscrete in their conversations when she was around — Kelly was not comfortable with this. She thought I would talk the same way," says Boles.
Along the way, Lisa was delighted to find out that Boles believed that a woman can be as good a trucker as any man, and that a woman trucker deserved to be treated like a lady.
Keywords: Bolivia, Adventure travelling, Deadliest Roads, TV show