Florida Supreme Court -- What Is "Sexual Intercourse"?

A Florida defendant has just filed the initial merits brief in Debaun v. State, Case No. SC13-2336. The case promises to be a fascinating one, as the issue is whether the Florida Legislature's use of the term "sexual intercourse"--in a statute designed to prevent the transmission of STDs like HIV--encompasses anal sex. Debaun argues that it is limited to penile/vaginal penetration.

For those interested, you can find the Initial Brief here. The docket and other public documents are also available online. And here is the Third District's opinion upholding Debaun's conviction. I will post the State's reply when it is filed.

Equilibrium Adjustment And Actual Cost Of Police Surveillance

Yale Law Journal Online has a great new paper entitled "Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jones." The authors attempt to explain the motivations of the concurring Justices in Jones (all 5 of whom would support a broader rule protecting citizens from GPS monitoring). 

The authors' approach is empirical: They calculate the actual-dollar-cost of various forms of police surveillance, ranging from manual surveillance (when police tail a vehicle in order to learn where a person goes), to beeper surveillance (devices that send out a signal that police must then manually follow), to modern GPS surveillance. They conclude that the advent of GPS surveillance has reduced police surveillance costs by about ten-fold over the old beeper method. 

The authors then tie this observation to Orin Kerr's theory of equilibrium adjustment. That theory explains the Court's Fourth Amendment jurisprudence on the basis that the Court seeks to maintain a balance of privacy over time; whenever there are major changes in police technology that reduce individual privacy--or, conversely, when there are changes that enable individuals to remain more secure than before--the Court adjusts its rules to maintain the status quo of privacy. (If you are interested in Fourth Amendment theory, you should read Kerr's paper on equilibrium adjustment. It's all the rage right now). 

The authors conclude that the ten-fold reduction in police surveillance costs is what triggered the equilibrium adjustment that 5 Justices proposed in the Jones concurrences: Police surveillance has simply become too cheap to continue applying the old beeper rules to modern GPS surveillance. The Court hadn't previously felt the need to make an adjustment when beeper surveillance came along, because that technology only reduced police costs by about half.

Down With RFRA (Is It An Unconstitutional Entrenchment Provision?)

A friend from law school recently suggested to me that RFRA might be an unconstitutional "entrenchment provision." (This isn't really an original idea, as scholars have been kicking it around for a while). At least in theory, this could matter in Hobby Lobby since the plaintiffs' challenge is built on RFRA's requirement that subsequent acts of Congress satisfy strict scrutiny when they substantially burden the free exercise of religion. If that RFRA requirement is unconstitutional, the whole challenge would fail. Let's discuss.

First, an entrenchment provision is any congressional action that prohibits a future act of Congress or restricts Congress' ability to act freely. For example, a law that purports to be unrepealable without a supermajority vote of a future Congress. A law that requires future congresses to pass only balanced budgets would also be an entrenchment provision. You can read more about entrenchment provisions here.

Second, RFRA is a form of entrenchment provision. In part, it claims that "Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter." 42 U.S.C. 2000bb-3(b). RFRA goes on to require that any substantial burden on religion pass strict scrutiny, as mentioned above. In effect, RFRA says that future congresses can only pass certain laws that bear on religion. RFRA was famously passed as a congressional response to the Employment Division v. Smith decision, which many saw as a blow to religious freedoms. The RFRA Congress figured that it could reinstate the Court's pre-Smith Free Exercise jurisprudence by requiring all future substantial burdens to pass strict scrutiny. Sounds like legislative entrenchment to me.

Third, I believe that legislative entrenchment is unconstitutional as a violation of Article I, Section 1 legislative vesting. The Vesting Clause says that "All legislative Powers herein granted shall be vested in a Congress of the United States." There's been a lot of debate about whether the Vesting Clause in fact forbids entrenchment provisions. Proponents of legislative entrenchment (like Eric Posner and Adrian Vermeule) argue that the Vesting Clause says nothing about how past, present, and future congresses must share the legislative power amongst themselves; therefore one congress can restrict a future congress. But the single best argument I can think of is this hypothetical: Imagine Congress passes a law preventing future congresses from taking any action whatsoever. That's a fairly absurd idea, and yet one that Posner's theory would have to embrace as valid. Best guess: The Vesting Clause wants present congresses to be able to exercise the full legislative power.

That is Justice Scalia's view. Here's a quote from his concurrence in Lockhart, 546 U.S. 142  (2005):

“[O]ne legislature,” Chief Justice Marshall wrote, “cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 6 Cranch 87, 135 (1810). “The correctness of this principle, so far as respects general legislation,” he asserted, “can never be controverted.” Ibid.

You might think that RFRA is not entrenchment--or at least not impermissible entrenchment--because it allows future congresses to opt out of RFRA. See 42 U.S.C. 2000bb-3(b). Why that would matter though, I don't know. A future congress that doesn't wish to be bound and that also doesn't care to invoke the RFRA opt-out clause should simply be able to impliedly repeal RFRA. 

As a result, RFRA should be dust in the wind as soon as a future congress--or the ACA Congress--passes a substantial burden that doesn't pass strict scrutiny.

Fourth, none of this has been argued in Hobby Lobby. It's easy to see why the federal government hasn't argued it; after all, the Solicitor General doesn't want to abandon RFRA just to save a portion of ACA. (One amicus has argued that RFRA is unconstitutional, albeit on other grounds). So what would happen if five Justices cared to take up the no-entrenchment-torch? 

An Unusually Important SCOTUS Term

The Supreme Court's OT 2013 is shaping up to be easily the most historic term we've seen in a long time. Here's a reminder of the Term's major cases:

Already decided:

• Town of Greece v. Galloway (Establishment Clause) (upholding town council prayers)

• McCutcheon v. F.E.C. (Free Speech) (striking down aggregate limits on campaign contributions)

• Schuette v. Coalition to Defend Affirmative Action (Affirmative Action) (upholding Michigan constitutional amendment forbidding use of affirmative action in state universities)

Pending decision:

• Bond v. United States (Treaty power) (whether implementing treaty legislation violates structural constitutional guarantees; or whether the legislation can be narrowly read)

• NLRB v. Noel Canning (Recess Appointments Clause) (first ever examination of the scope of the President's recess appointments power)

• McCullen v. Coakley (Free Speech) (whether Massachusetts law impedes free speech rights of abortion protesters outside of abortion clinics)

• Haliburton Co. v. Erica P. John Fund, Inc. (Securities class actions) (whether the Court should overrule the Basic presumption)

• Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius (Religious Freedom Restoration Act) (whether private corporation's religious objections exempt it from the ObamaCare contraceptive mandate)

• ABC, Inc. v. Aereo, Inc. (Copyright Act) (whether Aereo is a "public performer" and therefore must pay royalties for its retransmission of television programming)

• Riley v. California and United States v. Wurie (Fourth Amendment) (whether and to what extent police can search through a cellphone incident to a lawful arrest)

That is 10 sets of significant cases. Half that number would be a fairly major term. Granted, a couple of them might be duds: Bond might get decided on the statutory question and Haliburton probably won't overturn the Basic presumption. Still, the Term offers a number of novel constitutional questions and other cases of national importance. 

Compare this term with some other recent ones. Take 2012, where the major cases included: United States v. Windsor; Hollingsworth v. Perry; Shelby County v. Holder; Florida v. Jardines; and Maryland v. King. Or in 2011, where the Court decided Arizona v. United States; NFIB v. Sebelius; HHS v. Florida; Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC; United States v. Jones; FCC v. Fox, Inc.; United States v. Alvarez.

Big Praise, Little Reason For Justice Kagan's Town of Greece Dissent

A lot has already been said about Justice Kagan's dissent in Town of Greece v. Galloway. Much of that talk has been outright glowing. UCLA Dean Erwin Chemerinsky, writing for SCOTUSBlog, called the dissent "powerful." So did Professor Geoffrey Stone. Professor Sandy Levinson, over at Balkinization, described the dissent as "a great opinion" and "a truly great dissent" that is "worthy of inclusion in the canon that includes Justice Jackson's magnificent opinion in Barnett." 

Is that praise due? I came to Town of Greece with a relatively open mind. (Cue skepticism). As an originalist/textualist, my intellectual leanings were in the direction of Justice Thomas' dissent. But as a secular humanist, my sympathies were with the plaintiffs and everybody else who is distrustful of any connection between government and religion. As a policy mattter, I think it's abhorrent that legislative prayer exists; yet I'm not sure the Constitution forbids it. After reading the briefs and listening to the argument, I thought that the Town would win and that the Town should win. 

At any rate, I was on the fence enough that I thought the dissenters might be able to persuade me.

Justice Kagan's dissent did not persuade me. In fact, I can't imagine that the dissent would persuade anyone; the only people who will agree with it or find it "persuasive" are the initiate. And they hardly need persuasion.

Here are just a few reasons the dissent doesn't live up to its billing:

1. It's too long. The dissent is long. Like, longer than the majority opinion. A long dissent is fine when it's warranted. But the first 8 pages of the dissent could easily have been cut, and probably shouldn't have survived to the second draft. A good part of those 8 pages is devoted to setting out Kagan's hypotheticals. As Justice Alito points out in his concurrence, those hypos give the impression that the Court was sanctioning government prayer at the polling booth. But that simply can't be the case, given that the majority based its holding on Marsh--a case that deals strictly with legislative prayer. 

2. It overargues. Justice Kagan overargues from the get-go. On page 2, she speaks of the "First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government." I was honestly unaware that the First Amendment made any such promise. The First Amendment doesn't talk about "equal shares." Kagan has apparently assumed that the First Amendment governs the day-to-day relationship between citizens and their government. That's not a terribly obvious proposition. And, even if the First Amendment means that we each own an equal share, it certainly doesn't promise an equal share; generally, a written document doesn't "promise" something that it doesn't speak about.  

3. Its citations don't actually lend support. At one point, Justice Kagan cites to a written correspondence between George Washington and Moses Seixas, an early Jewish American. Seixas lauded the new American government for being “a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine." At 24. Washington appeared to agree. In the first instance, I don't know what this private correspondence is supposed to tell us about the First Amendment. Neither Seixas nor Washington mention it. 

In the second instance, Kagan then attributes a meaning to Seixas' words that clearly is not there. Note that Seixas doesn't mention religion. Somewhat to the contrary, he singles out "Nation, tongue, or language." You'd think that if he meant to include religion, he would added "faith" or "religion." Yet Kagan isn't deterred by the fact that Seixas didn't say what she wanted him to say; she goes ahead and interprets that he meant to say "Christian and the Jew alike." At 24. Her citation to the Seixas/Washington correspondence doesn't stand for the proposition she claims it does. That's generally a sign of bad lawyering.

4. Its language is flowery, but not forceful. On page 1, Justice Kagan calls "religious equality" a "breathtakingly generous constitutional idea." She talks about a "glaring problem" in the majority's reasoning.  She describes irrelevant facts about Marsh as though she's a novelist: "It is morning in Nebraska, and senators are beginning to gather in the State’s legislative chamber: It is the beginning of the official workday, although senators may not yet need to be on the floor." She relies on conclusory statements: "That is not the country we are, because that is not what our Constitution permits."

If I had to sum it up, I'd say that the dissent reads more like a Slate author's description of Town of Greece than like a piece of actual legal writing. It also frequently reminded me of the immortal words of Sarah Palin--"hopey-changey stuff."

Same-Sex "Bigamy" Loophole In Florida

The Oliver v. Stufflebeam case got me thinking about this little absurdity in Florida law: A spouse in an out-of-state same-sex marriage can legally marry a different person in Florida, so long as that different person is of the opposite sex. Why? Here are the steps to get us there: 

1. The Florida bigamy statute requires that the defendant have a "husband or wife living." Section 826.01. So a person can't commit bigamy unless they presently have a husband or wife. So far so good.

2. Elsewhere, Florida law states that "Marriages between persons of the same sex entered into in any jurisdiction ... are not recognized for any purpose in this state." Section 741.212(1). Basically, Florida will pretend that your same-sex marriage doesn't exist.

3. If Florida won't recognize a same-sex marriage, it shouldn't recognize a same-sex "husband or wife" either. How, after all, could a person have a husband or wife if the person isn't married?

4. Thus, circling back to Step 1, the "husband or wife" element of the bigamy offense would be lacking in this circumstance. 

Moral of the story: If you're a homosexual woman who's married to a woman in Iowa, you can legally marry a man in Florida. (Just don't leave Florida though; Iowa might try to prosecute you if you set foot there again). I might add that this also avoids the traditional "rational basis" underlying bigamy: That bigamy perpetuates patriarchies, which are bad for women and families. 

Sadly, this issue isn't likely to get litigated. Either way, it does shed some light on the wrongness of Florida's position on same-sex marriage. And this comes on the heels of some high-up bigamy allegations in Florida.

Counsel's Odd Oral Argument Concession In U.S. v. Wurie

During the oral argument in United States v. Wurie earlier this week, counsel for the defendant made a pretty odd concession. The issue in the case is whether police can search through the data on a cellphone under the search incident to arrest doctrine. This colloquy ensued:

CHIEF JUSTICE ROBERTS: The number's in plain view. I mean, is answering the phone -- can you do it or not? You know what number is calling. Is it like someone -- you're conducting a search on the house and somebody knocks on the door? You can open the door, right?

MS. MIZNER: Yes. And they perhaps could have answered the phone in this case, but they didn't.

JUSTICE KENNEDY: No, but what is your position? What is the rule you want us to adopt in response to the Chief Justice's question?

MS. MIZNER: I would say that they could answer the phone.

Tr. at 30 (my emphasis).

Wait, what? I think that conceding this was a significant mistake, for two reasons. First, if we assume that police could take the significant step of answering the phone, it's a very small step to saying that police can look through the phone. See Tr. at 31 (the Chief Justice called answering the pone a "big, different step"). There are good reasons to think that answering an incoming call is a more intrusive invasion of a person's privacy than looking through the phone. When police look through the phone, they can only learn facts that are already contained on the phone. For that reason, a person can control what a police officer can learn by choosing not to put certain info on the phone. But when police answer a call, the person has lost the ability to control what the officer learns. 

Worse still, an officer who answers a call transforms the phone--which still belongs to the person, of course--into a device for investigating that person. A great example of this was the Lopez-Cruz case. 730 F.3d 803 (9th Cir. 2013). In Lopez-Cruz, a border patrol agent asked for the defendant's consent to "look in" and "search" the defendant's phone. The defendant consented. As the agent was looking through the phone's data, the phone rang. The agent answered the call and in a series of later calls, obtained evidence incriminating the defendant. It's possible that, without answering the phone, the agent would have learned incriminating evidence from merely searching the phone. But by actually answering a call, he was able to create evidence that previously did not exist. 

Answering a person's phone is also no different from the trespass that occurred in Jones. There, the police transformed the defendant's car into a device for tracking the defendant wherever he went. This is what we find intuitively wrong about this type of police behavior: It co-opts our own possessions and turns them against us. We don't like to believe that our own things are being used to spy on us.

Second, there was no good reason to make the concession. Defense counsel could have said "No, they can't answer the phone" and her arguments would have remained logically consistent. Supreme Court precedent didn't require that answer. To be fair, the courts of appeals have held that police can answer a home phone when they are searching the home pursuant to a warrant, but that is quite clearly a far cry from the concession here. Some courts have even said that police can answer a phone so long as they are lawfully present in the same area as the phone; but those decisions are (A) wrong; and (B) irrelevant in a Supreme Court oral argument. 

Nor did defense counsel gain any credibility by making the concession, as far as I can tell. That was clear when defense counsel attempted to explain the doctrinal basis for her broad approach:

JUSTICE SOTOMAYOR: Under what theory? I don't disagree with you. I just want to know what would be your theory, and what's the limitation?

MS. MIZNER: Well, in the sense it's -- it's plain hearing. It is a -- an analogue of plain view. There is nothing particularly private about the ringing. And if you -- the policeman can answer the phone. It doesn't mean that the person on the other end has to respond. It's --

JUSTICE SOTOMAYOR: I was thinking in terms of reasonable expectation of privacy. Most people don't pick up other people's phones to answer them unless the phone is lost. And then you pray the person who found it answers it.

(Laughter.)

MS. MIZNER: And perhaps this would be analogous to -- to that. So the --

CHIEF JUSTICE ROBERTS: So do you think -- it's got nothing to do with plain hearing. I'm not saying they can't -- obviously they can hear the ring. I'm just -- it's a big, different step to answer it.

MS. MIZNER: If the police have seized the phone and they can secure it, pending application for a warrant to engage in a search of its contents, then answering the phone could be viewed as part of -- of securing.

Tr. at 30-31.

If defense counsel had spent more than a second thinking about her "plain hearing" answer, she would have realized that the plain view doctrine doesn't get her to the result she espoused. Sure, police can hear the phone ringing; but they can't hear the person on the other end of the line until they take an additional step. That is, they have to answer the phone first, which requires manipulating it (i.e., pressing a button). That is precisely what the plain view doctrine doesn't allow -- unless the evidence the police want to manipulate already gives rise to probable cause of a crime, they can't manipulate it. See United States v. Paneto, 661 F.3d 709, 713-14 (1st Cir. 2011) (quoting Arizona v. Hicks, 480 U.S. 321, 326 (1987)). So here, unless the mere ringing of the phone gave rise to probable cause, they couldn't manipulate the phone by answering it. 

The concession also implicates broader advocacy concerns. Defense counsel--who is a federal assistant public defender--is and should be chiefly concerned with representing the present interests of her client. But that doesn't mean that she shouldn't also look out for the interests of defendants on the whole. Who knows if her concession might result in a harmful bit of dicta (or a line in dissent) on whether police can answer a phone in this circumstance. That could negatively impact the law nationwide, all for zero upside.