Category Archives: SCOTUS

When do Alabamians become rightful persons? The Personhood Initiative

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama has recently joined the ranks of states to consider a Personhood bill. The Personhood Initiative, a group devoted to defining personhood as beginning at “the moment of initial formation,” asserts that “abortion has an Achilles heel, and that is where we must direct our attack.”[1] The group believes that this Achilles heel exists in the Roe v. Wade decision, and cites dicta from the majority opinion, penned by Justice Blackmun, which states that “if [the] suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed by the 14th Amendment.”[2] The Court in Roe v. Wade went on to note that “no case could be cited [holding] that a fetus is a person within the meaning of the Fourteenth Amendment.”[3]

The Alabama Senate is currently considering an attempt at exploiting this loophole in the form of SB5, which proposes a statutory change to the Alabama Code to define the term ‘persons’ as including “any human being from the moment of fertilization and implantation into the womb.”[4] Additionally, in the House of Representatives, John Merrill has sponsored HB 405 and 409, a Personhood Statute and Amendment, respectively.  Representative Merrill intends “this bill [to] clearly affirm that, under law, an individual becomes a person upon fertilization.”[5]

Interestingly, the language of SB5 represents a compromise intended to avoid some of the problems raised by recent Mississippi legislation, which failed to gain majority support last year, but may also muddy the waters concerning when a fetus becomes a person. As critics have pointed out, the moment of fertilization and the moment of implantation are not the same moment. To be clearer, as medically defined, “implantation refers to the attachment of the fertilized egg to the uterine lining, which occurs approximately 6 or 7 days after conception (fertilization).”[6]

While the Alabama legislature may be attempting to exploit loopholes rather than challenging the Supreme Court head on, the Alabama Supreme Court feels no such hesitation in denouncing Roe v. Wade as obsolete. In a recent decision authored by Justice Parker, the court wrote that “[m]edical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development . . . the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun’s words, ‘reluctant . . . to accord legal rights to the unborn.’ For these reasons, Roe’s viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court.” [7]

In that same opinion, and in no uncertain terms, the court affirmed language from a 1973 decision, stating, “from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.” [8]

A look at the initiative introduced in Mississippi last year reveals that it failed in part due to a number of concerns raised by citizens which lawmakers ultimately failed to address to voters’ satisfaction. For one, supporters of the Mississippi bill made clear that the purpose of the legislation was explicitly to provoke a lawsuit which would lead the Supreme Court to overturn the Roe v. Wade decision.[9] Proponents wasted no time beating around the bush or attempting to find legal loopholes. Such a brazen approach may have concerned fiscally conscious voters aware that defending unconstitutional legislation is costly to the state and its taxpayers.

Many voters also worried about the vagueness of the proposed amendment and the possible consequences. Governor Haley Barbour, traditionally an opponent of abortion, voted for the amendment, but expressed concerns. He worried about “the ambiguity and about the actual consequences—whether there [were] unforeseen, unintended consequences.”[10]

Indeed, the language of the proposed amendment was sweeping. It would have defined a person “to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.” This language reached a number of issues in addition to abortion, including the use of the morning after pill and intrauterine devices to prevent pregnancy. Sterile parents also worried that the amendment would cause physicians to cease performing in vitro fertilization due to fears of criminal prosecution.

Ben DuPré, an attorney at Foundation for Moral Law, attempts to address some of these same concerns regarding the proposed Alabama legislation. With regard to in vitro fertilization, DuPré says that “IVF would absolutely still be legal; the only change is that it would be illegal to purposely kill embryo children created via IVF-a practice to which many fertility clinics already adhere, and nearly every mom undergoing IVF would agree with. Embryos formed but not implanted by IVF may be adopted as ‘snowflake children’ by other parents, but they may not be destroyed.”[11] Likewise, DuPré argues that recognizing personhood will not affect contraceptives because true “contraception” only prevents fertilization.

Accepting these assumptions as true, citizens are still left to wonder about the possible effects of the vague wording of SB5. When, exactly, does personhood attach? Is it at day one, at the very moment of conception? Or is it at day six or seven, at the moment of implantation? If these questions go unanswered, Alabama’s Personhood bill supporters may follow in the footsteps of those in Mississippi, waving goodbye to well-intentioned-but-rejected legislation.

Assuming however, that assurances such as those offered by DuPré assuage the fears of Alabama voters and the state successfully passes some version of Personhood legislation, what’s the next step legally? As no other state has yet passed substantially similar legislation, the law will almost certainly invite constitutional challenge. The question then is, what does Roe v. Wade dictate? There are two plausible lines of thought. Either Roe v. Wade stands for the proposition that states may only protect life that is at or past the stage of viability or, as proponents of the Alabama legislation suggest, Roe v. Wade left open to the states the ability to define personhood as the representatives of each state’s citizens (in the case of a bill), or the majority of a state’s citizens themselves (in the case of a state constitutional amendment), see fit. Even if Alabama doesn’t win the race to the courthouse steps, some other state is sure to get the question before the Supreme Court in the near future.

An analysis of the Court’s plurality decision in Planned Parenthood v. Casey [12] may also shed some light on the plausibility of Alabama’s proposed ‘loophole’ exploitation. The plurality opinion  in Casey overturned the strict trimester formula put forth in Roe v. Wade in favor of a balancing test which weighs a woman’s interest in obtaining an abortion against the State’s interest in protecting a fetus. Based on continuing advances in medical technology, by the time Casey was decided, a fetus could be considered viable at 22 or 23 weeks, as opposed to the 28 weeks common at the time of the Roe decision. The plurality clung to viability as the appropriate point at which the state’s interest in the fetus outweighs a woman’s rights such that abortion can be banned entirely, except in cases where the life or health of the mother is at issue.

The plurality did however alter the standard of scrutiny for abortion regulations. Under Roe v. Wade the standard was heightened scrutiny. The Casey plurality replaced this with a lesser “undue burden” standard. Undue burden was defined as having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Although the plurality staunchly affirmed the central holding of Roe v. Wade, there may be, as supporters of the Alabama Personhood legislation contend, some wiggle room. The Court indicated in Roe v. Wade that if a fetus were legally classified as a living being, the Fourteenth Amendment would protect that life, even in the face of a mother’s conflicting right to privacy grounded in the Due Process Clause. Although the Court has framed that right to privacy in strong language, i.e., “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,”[13] it must give way before a squarely conflicting right to life.

Right or wrong, the Personhood movement is a rising tide. In California, Florida, Georgia, Iowa, Montana, Nevada, Oklahoma, Oregon, and Texas, advocates are in various stages of attempts to get measures on the agenda for the 2012 legislative sessions. Indeed, the North Dakota House passed “The Defense of Human Life Act” last year, which defined a human being as “an individual member of the species homo sapiens at every stage of development.”[14] The Ohio House took a slightly different tack, passing Heartbeat legislation, which would ban abortion once a fetal heartbeat can be detected, which can be as early as six weeks into the developmental process. As for Alabama, this state has proven time and again that it lives up to its motto: “audemus jura nostra defendere,” translated, “we dare defend our rights,” and often in the face of conflicting Supreme Court precedent. The question of the day is, when do Alabamians become rightful persons?

[2] Roe v. Wade, 410 U.S. 113, 156-157 (1973).

[3] Id.

[7] Hamilton v. Scott, 2012 WL 517459 (Ala. 2012).

[8] Wolfe v. Isabell, 291 Ala. 327, 330-31 (1973).

[12] 505 U.S. 833 (1992).

[13] Eisenstadt v. Baird, 405 U.S. 438 (1972).

Misplaced Outrage: Defending the Supreme Court’s Decision On Inmate Strip Searches

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Justice Kennedy and the Strip Searchers,”[i]Embarrass the Future?,”[ii]Strip Searches: The Supreme Court’s Disturbing Decision.”[iii]

This sampling of titles from blogs run on major news sources, along with an endless number of articles with less catchy titles, exhibits what seems to be a united sense of public outrage regarding the Supreme Court’s recent decision in Florence v. Board of Chosen Freeholders of County of Burlington.[iv] The decision confirmed the legality of strip-searching of all individuals taken into custody upon intake into jails, even in the absence of reasonable suspicion. While the decision permits results that are certainly troubling, such as the searching of arrested individuals who may not even be charged with misdemeanors, the outrage of opponents is misplaced towards a correct decision rather than at the underlying problem that placed these individuals in custody in the first place.

The concern is that this decision subjects individuals who have committed nothing more than a misdemeanor to a degrading and unnecessary process.  Indeed, the underlying offense leading to Mr. Florence’s arrest was a failure to pay a fine.  This offense creates absolutely no legitimate concern for officers to suspect him to be concealing weapons or drug contraband. Mr. Florence claimed that an invasive search of inmates, such as himself, without reasonable suspicion constituted an unreasonable search forbidden by the Fourth Amendment.

The process subjected Mr. Florence to shower with delousing soap. While he was undressed, officers checked for scars, marks, gang tattoos, and contraband. He was asked to open his mouth, lift his tongue, hold his arms out, and lift his genitals turn around and cough in a squatting position. All of this is done without touching by jail officials.

This is no doubt a humiliating and embarrassing process.  However, the appropriate standard for reviewing policies comes from the Supreme Court decision Turner v. Safly that says infringing on inmate’s constitutional rights is that it must be upheld “if it is reasonably related to legitimate penological interests.”[v] In other words, jail officials have broad discretion related to the creation of effective prison management and security. The primary concern of the process is maintaining safe and sanitary conditions for inmates. The intake of inmates is a prime source of risks with relation to these concerns. Incoming inmates into general population must be screened for contagious diseases, wounds needing medical attention, and contraband which any one of which would compromise the safety and sanitation of the jail’s general population.

With respect to individuals brought in on minor offenses, there are still concerns of contagious disease, lice and gang-affiliated tattoos that require a full inspection. With respect to inspection for contraband, the only reason to excuse individuals brought in for minor offenses would be if one’s offense is truly a proper indicator of their likelihood to carry contraband.

Particularly with respect to gang-members, it is not far-fetched for a low-ranking member who, for the purpose of this example has no gang tattoos or history of violence, to create reasonable suspicion for inspection, to drive around town at 100 miles per hour until he is arrested and then use smuggled weapons to kill a member of a rival or sneak drugs in for a fellow member serving longer time. Outside of gang-related examples, as Justice Kennedy comments, the seriousness of an offense can be a poor predictor of who has contraband or a tendency for violence. Despite Mr. Florence’s request that officers only inspect an individual who poses a reasonable suspicion, the task of drawing this line is difficult, if not impossible, and the consequences of drawing it incorrectly can be severe.

The difficulty of the task is exhibited by administrative costs, lack of information and fears of racial profiling.  With respect to information, officers often know little about an individual upon taking him into custody.  He may be carrying a fake ID or lie about his identity thus making it difficult to immediately access criminal history.  Additionally, if inspections are not routinely made, then it is difficult to justify any inspections in the absence of an arrest for a drug or violent offense. Outside of inspections upon these motivations, there would likely be claims of officers inspecting based upon an inmate’s race, or, in the alternative, there could be a hesitancy on the part of officers to inspect a reasonably suspicious individual due fear of such claims.

In light of the infeasibility of drawing an appropriate line, the considerable consequences of failing to inspect an individual who poses a threat to the health and safety of the prison population, and the generally broad discretion afforded correctional facilities in forming policies to solve problems, the Supreme Court’s decision is legally correct.

Somehow, the fact that the decision was based upon correct constitutional analysis does little to remove the absurdity of a situation such as a 90-year old grandmother being strip-searched for failing to wear a seat belt or having an expired car registration.  However, the problem lies with the underlying system in which this otherwise law-abiding old lady is put into custody in the first place.

In Atwater v. Lago,[vi] a case cited by the majority, the court allowed for a situation in which individuals arrested for minor offenses might be detained in jails. In an offense even lesser than Mr. Florence’s, Ms. Atwater was arrested for not wearing her seat belt. Despite the fact that this offense could not include jail time, the court found that officers may arrest her upon probable cause that she “committed a criminal offense in their presence.” In the name of investigating the crime, the police could bring her in for a minor crime just easily as for a major one.

According to Justice Kennedy’s opinion, jails alone, not including prisons, admit roughly 13 million inmates a year. Considering this number, it is beneficial for correctional officers to have standard procedures for inspecting inmates. Indeed, it is infeasible and ill-advised to adopt a different approach. The much more reasonable and feasible solution to preventing stories of strip-searching for failure to wear a seat belt is for policy makers to address what are offenses truly merit jail time.

As long as individuals are being brought to jail on minor charges, it is appropriately within the jail’s authority to have flexibility in providing for the inmate’s safety, the safety of the jail population and the correctional officers. While certainly an inmate has a concern of being strip-searched, on the other-hand there is a concern of being thrown into a jail, where other inmates have not been strip-searched.  As Justice Scalia explains it, “the same people who are suing [jails] for the strip search would be suing them for being stabbed by someone with a shiv.”[vii]

Florence v Board of Chosen Freeholders of County of Burlington.

“Justice Kennedy and the Strip Searchers.”  The New Yorker.

“Embarrass the Future?”  New York Times

“Strip Searches: The Supreme Court’s Disturbing Decision” Time

“Siding with Security Needs over Privacy Right” MSNBC

Atwater v. Lago Vista, 532 U.S. 318.

“Scalia Defends Strip Search Decision in USM Talk.”  Clarion Leadger   


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Before the Court: The Constitutionality of Life Without Parole Sentencing for Juvenile Murderers

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

That is the question that is before the U.S. Supreme Court in cases being heard concurrently, Miller v. Alabama and Jackson v. Hobbs. The Supreme Court heard oral arguments on these cases on March 20, 2012. This issue has worked its way into the Supreme Court docket as a response to questions arising from a somewhat recent thread of cases including Roper v. Simmons and Graham v. Florida.

In Roper, the court looked at the constitutionality of the death penalty as a sentence for juveniles who were under the age of 18 when their crimes were committed[1]. The Court ultimately concluded in its 2005 decision that the death penalty for teenagers under the age of 18, was indeed, unconstitutional under the Eighth and Fourteenth Amendment.[2] The court relied on “the evolving standards of decency that mark the progress of a maturing society” in order to make a judgment in regards to which punishments reach the level of “cruel and unusual.”[3] The Court also looked to the fact that a majority of the states disallowed the death penalty for juveniles as indicia (evidence) of general societal views that juveniles are “categorically less culpable than the average criminal.”[4] As an illustration of this, in Justice Kennedy’s opinion, he indicated that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[5]

Furthermore, the Court took this holding a step further in Graham. The Court, in that case, held that life sentences without parole are cruel and unusual under the Eighth Amendment in cases involving juvenile non-homicide offenders. The Supreme Court left unanswered the question of whether sentencing juveniles who committed murder to life without parole is permissible.

            The Court’s stance on this latest question could potentially affect over 2,000 prisoners who committed murder when they were under eighteen and are currently sentenced to life without parole.[6] However, 79 of these prisoners are imprisoned for crimes they committed when they were fourteen years of age or under, the ages of the defendants in Miller and Jackson.[7] Therefore, the repercussions of the Court’s decision could be felt by many more individuals if they broaden their holding to include those under eighteen years of age, or lessen its impact if the Court narrows its holding to preclude this sentence for those fourteen and younger.

            The Court will be facing a potentially difficult task in reaching a conclusion in this instance, as the Miller and Jackson cases present quite varied situations. The facts of the Miller case can be considered rather shocking. Evan Miller took part in (and arguably orchestrated) the killing of his middle-aged neighbor Cole Cannon in Alabama. Miller, fourteen at the time of the murder, and Colby Smith, his sixteen year old co-defendant, brutally beat Cannon in his trailer after attempting to rob him of approximately $300. The boys had already stolen a number of baseball cards from Cannon’s home earlier in the evening. The boys returned to Cannon’s trailer a short time after they left him to die, in order “to cover up the evidence” by setting the trailer on fire.[8] Cannon eventually died due to smoke inhalation from the fire.[9]

            On the other end of the spectrum, the Jackson case involves an arguably more sympathetic defendant. Kuntrell Jackson, also fourteen years old at the time, was charged with felony murder in the state of Arkansas.[10] Jackson did not shoot the victim, rather Jackson was with a group of boys when they robbed and shot a video store clerk with a sawed off shot-gun.[11]

            These two cases illustrate the wide variance of potential scenarios that could lead to a sentence of life without parole for a juvenile who is convicted of murder. It also raises questions about the mandatory nature of some of the states sentencing schemes. Currently, thirty-nine states allow sentences of life without parole for juveniles who commit murder.[12] Both Alabama and Arkansas, the states at issue in these cases, have mandatory requirements of sentences of life without parole for juveniles who are convicted of murder. In fact, around some 2/3 of states which permit life sentences without parole for juveniles require mandatory sentencing.[13]

            There is a good argument that mandatory sentences may also prevent the telling of the whole story involved with a case. If a person is automatically given the sentence of life without parole, it prevents the jury or the judge (whoever is carrying out sentencing) from considering relevant mitigating factors. For instance, just from reading the facts given above in the Miller case, a potential member of the jury may say to themselves it is justified that the young man was given a life sentence without the chance of parole. However, would they feel this same way if they learned that Evan Miller grew up subject to a childhood of abuse? That he was beaten by his alcoholic father? That his mother was a drug addict?[14]  That he turned to drug use and alcohol to cope with his situation at the age of eight?[15]  Even if these facts would change a jury’s mind, they do not play a significant role under the current mandatory sentence guidelines.

Some, including Miller’s defense attorney Bryan Stevenson, argue that sentences of life without parole should be done away with altogether for children under eighteen. In part, this argument hinges on the fact that America has one of the most severe systems of punishment for juveniles when compared to other countries.[16] In addition, Stevenson argues that the Court’s holding in Graham should not be limited to non-homicide cases because “[a]ll children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.”[17]

 On the other hand, a number of legal experts would argue that a constitutional ban on these sorts of sentences for juvenile offenders would not be the most effective means of achieving a just result. As a victim right’s advocate Kent Scheindegger put it, “[A]ge is something to take into consideration in sentencing, but that one factor should not trump everything else.”[18]

At the end of the day the fact that this sentence is permitted by such a majority of the states may weigh heavily on the Court’s analysis in accordance with “the evolving standards of decency” under the Eighth Amendment. As Justice Scalia indicated during oral arguments, “[T]he American people have decided that that’s the rule. They allow it. And the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?”[19]

[3] Roper, 545 at 551.

[4] Roper,

[5] Roper, 545 at 553.

[17] Oral Arguments, Miller v. Alabama, No. 10-9646,  pg 3. March 20, 2012.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Ninth Circuit says NO to H8 Under Proposition 8

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

On February 7, 2012, a federal appeals panel in the Ninth Circuit ruled that California’s Proposition 8, which banned same-sex couples from marrying, was unconstitutional. This split decision is the most recent in a four-year long legal battle that began in November 2008 when 52% of California residents voted “yes” on the proposition, abruptly ending the rights of same-sex couples to marry in California.

This decision impacted the estimated 109,000 gay couples in the state and grassroots movements related to the ban were widespread. The campaigns for and against Proposition 8 raised a whopping $39.9 million and $43.3 million, respectively. Numerous lawsuits were filed in the California Supreme Court by same-sex couples and governmental entities challenging the validity of Proposition 8 and questioning its implications on previously administered same-sex marriages. Ultimately, the Supreme Court of California upheld Proposition 8 as a valid initiative, but allowed prior same-sex marriages to be grandfathered in.

On August 4, 2010, the ban was lifted when District Court Judge Walker overturned Proposition 8 in Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the Constitution. There was said be no compelling state interest justifying denying same-sex couples the fundamental right to marry and no rational basis for limiting the designation of ‘marriage’ to opposite sex couples. Controversy swarmed when proponents of Proposition 8 accused Walker of bias and claimed he should have disclosed his long-term relationship with another man. Some went as far as to say that Walker should have recused himself due to a conflict of interest. They argued that the conflict was not Walker’s sexual orientation, but the fact that his serious relationship could conceivably lead to marriage.

The June 14, 2011, decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by Judge Walker in place. In his opinion, Ware wrote that it was not “reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.” This ruling falls in line with similar precedence as no court has ever upheld the removal of a judge from a civil rights case because of his or her race, religion or gender.

The Ninth Circuit agreed with Judge Ware in saying that Walker was under no obligation to recuse himself for substantially the reasons set forth in the district court’s opinion. After moving past the initial roadblock of deciding that Judge Walker’s decision should not have been vacated, the panel moved on to assessing the constitutionality of Proposition 8.

Although it reached the same conclusion, the Ninth Circuit framed its decision in a narrower fashion than the District Court. Instead of pointing to an outright violation of the Equal Protection and Due Process clauses of the Constitution, the Ninth Circuit focused on another argument: Proposition 8 singled out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a violation of the Equal Protection Clause. The court found this argument the most appealing because it was the narrowest ground for adjudicating the constitutional questions, as compared to more general equal protection and due process arguments with broader applications.

The court sympathized with opponents of Proposition 8 in saying that “a rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not….It is the designation of ‘marriage’ itself that expressed validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit found that eliminating the right of same-sex couples to marry in California was unacceptable. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place….The action of changing something suggests a more deliberate purpose than does the action of leaving it as it is.”

To that end, Judge Reinhardt found that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Although the ban on same-sex marriage has now been lifted, a stay imposed on Judge Walker’s original decision will remain in place for at least two weeks after the decision. Opponents of Proposition 8 will likely seek to have the stay lifted, while supporters of Proposition 8 claim they will oppose this move.

Those against same-sex marriage are now faced with the decision to appeal the Ninth Circuit’s decision to the Supreme Court of the United States, or to ask a larger panel of the Ninth Circuit to review the decision. But, legal analysts question whether the Supreme Court will agree to take this appeal because the narrow Ninth Circuit ruling only applies to California law. The Supreme Court may wait to take a case regarding same-sex marriages until it is presented with a broader question that pushes for a final decision applicable nationwide.

Whatever one’s moral opinion on same-sex marriage may be, many have raised positive economic implications that stem from allowing same-sex marriage. The Sacramento Community College Players highlighted these positives in the comical “Prop 8-The Musical.” If you have not yet seen this short, admittedly liberal, star-studded play, you are in for a treat. It echoes what one circuit court judge recently told me: “Let them get married, it will be more business for divorce lawyers.” Sad, but almost certainly true.

Only time will tell what position our nation ultimately takes in this debate, but we can be sure of one thing: the next round in this fight is just over the horizon.

General Sources

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Every Move You Make May NOT Be Protected

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Can the government put a GPS tracking device on your car and monitor your movements for a month without violating your Fourth Amendment rights? The Supreme Court is currently deliberating this question.

On November 8th, the Court heard oral arguments in U.S. v. Jones. Antoine Jones was suspected by the FBI of trafficking drugs. To confirm these suspicions, agents secretly attached a GPS tracking device to his car without first obtaining a warrant. Well, more correctly, agents had a warrant, but they let it expire before they managed to get the device on the vehicle. The warrant said ten days, they took eleven. As a result, we have a potentially momentous Supreme Court case. The GPS device that was attached to Mr. Jones’ car was advanced. Whenever the car was in motion, the device sent detailed location information every ten seconds via remote satellite to agents. These agents were then able to track the vehicle by logging into a remote computer system. The major issue before the Court is whether the use of this device implicates Fourth Amendment protections.

A search without a warrant is per se unreasonable under the Fourth Amendment. However, Mr. Jones must establish that a search actually occurred by meeting the two-part test outlined in Katz v. U.S. Mr. Jones must show: (1) first, that he exhibited an actual subjective expectation of privacy, and (2) second, that his subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” If he proves both prongs of this test, then he is entitled to Fourth Amendment protection.

Furthermore, the Court must also determine whether U.S. v. Knotts is applicable, and if so, to what extent. In Knotts, the Court held that the installation and use of a beeper device to track a drug suspect across state lines was not a search in violation of the Fourth Amendment. In particular, the Court held that a person has no reasonable expectation of privacy in his movements from one place to another. The Court noted in Knotts that a “car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”

The issue in U.S. v. Jones is whether Mr. Jones can demonstrate a reasonable expectation of privacy concerning his travel over public roads. More accurately, does society reasonably expect that every time an individual climbs into his car, his movements may be monitored by the police or other enforcement agencies? If the Court rules that Mr. Jones had no expectation of privacy, and thus, there was no need to obtain a warrant to attach and use the GPS device, then that decision potentially opens the door for twenty-four/seven surveillance of people traveling in their vehicles.

At oral argument, the government relied heavily on Knotts. Michael Dreeben, Deputy Solicitor General of the United States, focused on the fact that in Knotts, the device allowed the police to relocate the suspect after he ditched the officers’ car that was tailing him. Chief Justice Roberts jumped at this chance to distinguish the case, noting that Knotts was “much more like traditional surveillance,” where the beeper just helped the cops follow the car from “a slightly greater distance.” This GPS technology, he said allows police to “just sit back in the station and . . . push a button whenever they want to find out where the car is.”

Chief Justice Roberts also elicited snickers from the rest of the panel when he asked Mr. Dreeben whether there would be a search if the police put a GPS device on each of the Supreme Court Justices’ cars for a month. Justice Breyer echoed this concern in even more sweeping language, stating “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He went on, focusing on the practical distinctions between the limited surveillance techniques that used to be available to police and the broad surveillance that is now possible through the use of advanced technology. “No one,” Justice Breyer stated, “at least very rarely, sends human beings to follow people 24 hours a day . . . but with the machines, you can.” A ruling in favor of the government would require no reasonable suspicion, no probable cause, in fact, no proof of any kind, for the police to attach a device to a person’s vehicle and find out where he or she goes each day.

Although all of the Justices expressed concern about whether the Fourth Amendment continues to protect citizens from the relentless advancement of technology which erodes individual privacy, Justice Scalia was the only one to truly show his hand. He came right out and denounced the Katz test, saying that it had shrunk the reach of the Fourth Amendment entirely too much. He emphasized his concern that the installation of the device itself was impermissible. He relied on the logic of technical trespass, rather than the more nuanced ‘privacy interest’ determination. He was profoundly disinterested in the entire discussion surrounding the monitoring of the device, suggesting that such concerns were the province of the legislature, not Fourth Amendment jurisprudence.

Jones’ attorney, Stephen Leckar, may have been right on target to capture Justice Scalia’s fancy, arguing for a narrow rule which holds that the installation of the device itself is a search or seizure requiring a warrant. However, he likely did not gain much support from the rest of the panel with this proposed rule, as the majority of the Justices seem to be seeking a broader standard. Justices Sotomayor and Ginsburg made repeated references to an Orwellian outcome and to Big Brother surveillance. Justices Alito and Kagan indicated that they are concerned with the long-term implications of advancing technology. Both Alito and Kagan criticized an approach centered on technical trespass, noting that new surveillance tools can always be developed to obtain the same information without committing a trespass. Justice Breyer was certainly not on board with the “installation only” approach, as he sought a standard to determine when GPS monitoring was reasonable and desirable. Unfortunately, Mr. Leckar seemed unable to offer a constitutional line in the sand that was satisfactory to the Justices. Upon his proffering one such proposal, Justice Sotomayor exclaimed, “What an unworkable rule tethered to no principle!”

After analyzing the progression of the oral arguments, it seems safe to say the Court is also not buying the mosaic or pattern theory advanced by the D.C. Circuit. This theory rests on the idea that there is a greater privacy interest in aggregated data gathered over a long period of time because all of the tiny pieces together create a larger, more complete picture of an individual’s life. Stealing a page straight from the playbook of Justice Sentelle’s dissent in the opinion below, Justice Scalia neatly countered this argument, saying “but zero times one hundred is still zero.” Counsel for Mr. Jones wisely abandoned the mosaic theory, and returned to his narrow approach—that the installation of a GPS device itself is a search or seizure requiring a warrant.

In summary, the Court seems quite uncomfortable with the idea of taking this type of broad digital surveillance completely out from under the Fourth Amendment’s umbrella. Although the government argues that state legislatures can act to prevent the much feared “1984 world,” the Justices seem skeptical about leaving the issue in the hands of the often-late-to-the-party legislative branch. On the other hand, the Court seems unable to come up with a workable principle on which to hang this case, without creating a landslide of Fourth Amendment precedent to come tumbling down around their ears. Placing the Fourth Amendment to the side, the issue is quite simple: is it really that hard to get a warrant, officers? Unfortunately, the Court is caught in the web of their own precedent. Those of us concerned with the ever-extending reach of the ‘long arm of the law’ must fervently hope they are able to disentangle themselves. We will know soon, as the Court is expected to issue a ruling at the end of June 2012.


Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).

United States v. Knotts, 460 U.S. 276 (1983).

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Prison Time for Acquitted Conduct Remains a Reality in America

Will Turner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

After delivering Alabama’s Albritton lecture on November 16,[1] former U.S. Supreme Court Justice John Paul Stevens was asked by an audience member to recall an opinion he had written of which he remained especially proud. Without hesitation, Justice Stevens referred to his dissent in United States v. Watts, where he had disagreed with the majority’s holding that federal courts may consider acquitted conduct when determining prison sentences under the Federal Sentencing Guidelines. Although the Guidelines have since been made advisory, they remain the rubric by which virtually all federal sentences are determined, and federal district judges continue to enhance sentences based on conduct never proven beyond a reasonable doubt.

This past summer, I had the opportunity to intern at the Federal Defender’s office in Montgomery, where I witnessed Sentencing Hearings for the first time. Families of defendants were often stunned at the degree to which Sentencing Hearings “looked like trials,” and how prison time could be enhanced based merely on whether the sentencing judge found that some alleged (often uncharged) conduct had probably occurred.

Unfortunately, the perception is accurate. After a defendant has been convicted of a crime in federal court, the sentencing judge may take into account a myriad of alleged acts unrelated to the charge on which the conviction was applied. The standard for finding guilt for sentencing purposes is preponderance of the evidence, and after taking evidence and arguments from the prosecution and defense, a single district judge issues a final decision as to guilt, as well as the conditions and length of the sentence imposed. The hearings usually concern conduct for which the U.S. Attorney could not acquire enough evidence to convict beyond a reasonable doubt, and in my limited experience, the evidence presented mostly included “he said, she said” testimony, with judges, more often than not, believing the person not wearing shackles. In Watts, Justice Stevens fought a losing battle, arguing that the proof beyond a reasonable doubt standard was the traditional norm enshrined in the Court’s constitutional jurisprudence, and as such, should be read into the sentencing guidelines.

Regardless of the constitutionality of modern sentencing standards, enhancing prison time for conduct not proven beyond a reasonable doubt is bad policy. While it is relatively easy to make philosophical or moral arguments against such a policy, perhaps the most obvious argument against it is considerably simpler. Money.

The official estimated cost of housing one federal prisoner for one month is just under $2,000.[2] That estimate, however, is from 2001, and current levels are almost certainly higher. In 2006, over $68 billion was spent on corrections in the United States, and the overall prison population is now close to 2.3 million.[3] That population continues to grow exponentially and represents the highest per capita prison population in the world.[4] More than one of every hundred American adults is incarcerated.

Perhaps even more strikingly, only 7.9 % of federal prisoners are sentenced on convictions of violent crimes.[5] This particular statistic is confirmed anecdotally by my own experience. Last summer, virtually every probation report that I looked at noted that there were “no identifiable victims” of the crime at issue. The convictions in the reports I saw often involved unlawful possession of narcotics or firearms; less often did they involve material harm to a human being.

A major cause of the extraordinarily high rate of incarceration in the United States has been traced to the length of prison sentences, and sentence length comes directly from the Federal Sentencing Guidelines. Aside from the fact that sentences in the United States tend to exceed sentences in other nations for the same or similar offenses, enhancements based on acquitted or unprosecuted conduct add even more time to already to severe sentences.

Adding to the already burdensome inclusivity of the Federal Sentencing Guidelines is the Armed Career Criminal Act (ACCA), by which federal prisoners convicted of three past “violent felonies” or “serious drug crimes” are automatically sentenced to a minimum of fifteen years. Speaking at Alabama in 2010, Chief Justice John Roberts openly criticized mandatory minimum sentences such as the ACCA as being bad policy.

Yet despite recognition of the problems inherent to the system, it remains largely intact. At least one source of the problem is the broad appeal that “tough-on-crime” political platforms convey, and legislators at the state and federal level continue to be successful running on such a message. It would be unheard of to run a “soft-on-crime” campaign, even knowing the financial benefits that a softer on sentencing policy would entail.

Although politicization of the issue may make the prospect for reform weak, at least some precedent exists to allow for change outside of legislative action. In 2005, the Supreme Court held in United States v. Booker that judges would no longer be required to sentence within the sentencing guidelines. Now, judges may make either upward or downward “variances” outside of the guidelines. This has opened the door to allow judges to consider character evidence, the overall impact that lengthy sentences have, and to make a downward departure from the guidelines without having to have a codified reason for doing so.

Booker also held that the original calculation of the maximum possible sentence must be based on facts either found by a jury beyond a reasonable doubt or admitted by the defendant. Effectively, this aspect of the holding caps the effect that acquitted conduct can have on a sentence by requiring that the maximum possible sentence corresponds to the convicted conduct.

Also, since the passage of the ACCA, the Supreme Court has had to clarify on several occasions whether particular state offenses qualified as “violent felonies” or “serious drug crimes,” and on many occasions the Court has held that crimes held by lower federal courts to meet those standards were not, in fact, “violent” or “serious.”

These holdings by the Court have had piecemeal impact on sentencing practice, but broader reform is still needed. Most Americans can quote the “reasonable doubt” standard from an early age, and many probably assume that people don’t go to prison except when that standard has been met. The Federal Sentencing Guidelines, however, make that assumption incomplete because federal inmates often stay in jail much longer because of alleged conduct never proven beyond a reasonable doubt. A heightened public awareness of the impact and expense of the guidelines would go a long way towards a much needed overhaul of U.S. practice.

General Sources:

United States v. Watts, 519 U.S. 148 (1997)

United States v. Booker, 543 U.S. 220 (2005)

[1] (41:30).


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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