Full faith and credit clause and sex offender registry

City of New York , later stayed - - - and thereafter clarified - - - by the Second Circuit, followed by the City's new administration agreeing with the decision and abandoning the appeals.


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One of the complaint's pendent state law claims is a violation of the city's own prohibition of bias-based profiling, NYC Admin. Loitering statutes in general, and more specifically loitering and even soliciting for "criminal sex" statutes, whether that sex is criminalized because it is commercial, public, or "unnatural" as in previous sodomy prohibitions , have always been constitutionally problematic.

It will be interesting to see whether or not the City defends the action, and if it does, how vigorously. In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB , prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts SOCE on minors under the age of 18, the Ninth Circuit's opinion today in Welch v.

Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.

Lozier v. Mississippi

The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:. Plaintiffs first argue that, under the Establishment Clause, SB excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB For example, Plaintiffs assert that Dr. With such a small revision, it would seem there was little contention about the case. Recall that Welch itself is a sequel to Pickup v.

Brown, in which the Ninth Circuit declined en banc review albeit more divisively , to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Brown rather slim, especially for an eight Justice Court. In its opinion in Doe v. Doe , upholding Alaska's SORA, the test is "quite fixed": "an ostensibly civil and regulatory law, such as SORA, does not violate the Ex Post Facto clause unless the plaintiff can show 'by the clearest proof' that 'what has been denominated a civil remedy' is, in fact, 'a criminal penalty. Judge Alice Batchelder, writing for the unanimous panel, applied the Smith v.

Doe test for determining whether a statute that does not have a punitive intent nevertheless has actual punitive effects, including five factors:. In considering the history factor, the court relied on an amicus brief from law professors and discussed the relationship of SORA to ancient punishments of banishment. To this end, the court reproduced a map for Grand Rapids Michigan, illustrating in blue where persons under SORA were now prohibited from living, working, or traveling. The map also figured into the court's conclusions regarding the other factors, including the rational relationship.

Indeed, the court found that SORA may actually increase recidivism rates and that "Tellingly, nothing the parties have pointed to in the record suggests that the residential restrictions have any beneficial effect on recidivism rates. Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core counter- majoritarian principle embodied in the Ex Post Facto clause.

As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice. Thus, while the court acknowledged that the Smith v. Doe test was a difficult one to meet, "difficult is not the same as impossible" and Smith v. Doe should not "be understood to write a blank check to states to do whatever they please in this arena. In its opinion in Planned Parenthood of the Great Northwest v. Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision.

The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests. The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests.

As to the parental responsibility interest:. Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being. One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis.

Instead, the concurring opinion argued that the statute was unconstitutional under the state constitution's privacy provision. One of the five Justices of the Alaska Supreme Court dissented, arguing that the Parental Notification law violated neither equal protection nor privacy and was thus constitutional.

State Lawmakers Approve Changes To Sex Offender Registry

As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions. A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit's opinion in G.

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The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit. Robbins , because the relevant regulation was ambiguous - - - perhaps not in the plain meaning, but in its application:. Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.

For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual?

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What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Fourth Circuit panel rejected G. The Fourth Circuit panel, in an unpublished opinion on July 12, denied the school board's motion for a stay pending appeal, again with one dissent. The stay application in the United States Supreme Court pending a petition for writ of certiorari argues that the Fourth Circuit's opinion in an "extreme example" of judicial deference to an administrative agency and is the "perfect vehicle" for the Court's reconsideration of Auer v.

Robbins The motion notes that several Justices have signaled such a reconsideration might be warranted, notably the late Justice Scalia, as well as Alito and Thomas, and Chief Justice Roberts. Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter:. And employers that refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII.

These new mandates, putting the federal government in the unprecedented position of policing public school property and facilities, inter alia, run roughshod over clear lines of authority, local policies, and unambiguous federal law. In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves pictured below found Mississippi HB , set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.

Judge Reeves characterized HB as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB and its texts, Judge Reeves also noted that the challenges to HB were also predictable, providing his rationale for consolidating the four cases. Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits. Evans, and found that the legislative history established animus in intent:.

The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB fails. On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens.

Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:.

Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture. Recall that the law, entitled "An Act to provide for single-sex multiple occupancy bathroom and changing facilities in schools and public agencies and to create statewide consistency in regulation of employment and public accommodations," was challenged in late March, a week after it was enacted, on various grounds, including the Equal Protection Clause.

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional.

The statute, Utah Code Ann. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis. 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.


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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. On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office UCAO policy which stated that "the UCAO will prosecute only those who 1 induce a partner to marry through misrepresentation or 2 are suspected of committing a collateral crime such as fraud or abuse.

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.

The court stated:. The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge. In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.

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The Nevada move is discussed in the video below featuring some of the children involved. First, it mandates that school boards and state agencies, including the university and community college systems, "shall require every multiple occupancy bathroom or changing facility to be designated for and only used by persons based on their biological sex. Second, in Part III of the bill, it will "supersede and preempt" any "ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to the regulation of discriminatory practices in employment.

News and Notes

As the complaint alleges, the city of Charlotte had passed a non-discrimination ordinance on the basis of sexual orientation and gender identity, prompting the legislative action. Interestingly, Part II of the bill supersedes and preempts local ordinances relating to wage and hour provisions. It argues that HB2 violates the equality rights of transgendered persons and sexual orientation minorities and that such classifications should be evaluated under heightened scrutiny.

It also contends that the North Carolina act was based on animus. Recall that in Romer v. Evans the United States Supreme Court held that Colorado's Amendment 2, which similarly banned all local laws that prohibited discrimination on the basis of sexual orientation, violated the Equal Protection Clause, reasoning that the animus of the law was not a legitimate government purpose.

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