Today in Supreme Court History: June 11, 1993

6/11/1993: Church of the Lukumi Babalu Aye v. City of Hialeah decided.

Comments

[Dan Schiavetta]

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (decided June 11, 1993): ordinance prohibiting killing of animal in ceremony not for use as food (Santería) struck down as violating church’s First Amendment rights (ordinance was passed “in direct response to the opening of the church” -- but what if the church had been there for years?)

Husted v. A. Philip Randolph Institute, 584 U.S. 756 (decided June 11, 2018): Ohio’s presumption that voters who don’t return card and don’t vote for four years have moved (and are therefore struck from the rolls) upheld as consistent with National Voter Registration Act of 1993 (hardly seems like a fair rule)

Sveen v. Melin, 584 U.S. 811 (decided June 11, 2018): applying Minnesota’s statute automatically revoking claim on life insurance upon divorce to pre-statute policies did not violate Contracts Clause, art. I, §10, cl. 1; did not change the expectations of the policyholder or of ex-wife (questionable decision; there are various kinds of divorce)

Kyllo v. United States, 533 U.S. 27 (decided June 11, 2001): police needed warrant to utilize thermal-imaging device to detect high-intensity lamps (utilized to grow marijuana in a house; I had a friend who used to do that, circa 1982) because device not in general public use and revealed information otherwise unobtainable without physical intrusion

United States v. Eichman, 496 U.S. 310 (decided June 11, 1990): struck down another flag desecration law (like Texas v. Johnson) on First Amendment grounds; unlike in Johnson, this one did not require that flag desecration be associated with a political message (Doonesbury had a good comic strip on this while the case was pending: the first panel had an American flag and Mike Doonesbury dared readers to throw the newspaper out, unavoidably desecrating the flag and breaking that law)

Great American Federal Savings & Loan v. Novotny, 442 U.S. 366 (decided June 11, 1979): male fired after complaining of discrimination against female employees might have Title VII claim but can’t sue directly under 42 U.S.C. §1985(3) (conspiracy to deprive of civil rights); must go through EEOC first

Bluefield Water Works v. Public Service Comm’n, 262 U.S. 679 (decided June 11, 1923): order setting public utility’s rates so low that it wouldn’t earn a return was a “taking” without just compensation

China Agritech Inc. v. Resh, 584 U.S. 732 (decided June 11, 2018): failure-to-get-class-certification tolling of statute of limitations available to putative class members to sue on their own (American Pipe v. Utah, 1974) does not apply to future attempts at class action

Nix v. United States, 467 U.S. 431 (decided June 11, 1984): evidence is not excluded which would have been discovered anyway despite police misconduct (body would have been found anyway even though location told to police while being denied right to counsel) (“independent source rule” and “inevitable discovery rule”)

Paine Lumber Co. v. Neal, 244 U.S. 459 (decided June 11, 1917): Sherman Act does not provide for private parties going to court to stop alleged restraint on trade (here, windowmaking companies trying to stop a union boycott)

[David Nieporent]

Husted v. A. Philip Randolph Institute, 584 U.S. 756 (decided June 11, 2018): Ohio’s presumption that voters who don’t return card and don’t vote for four years have moved (and are therefore struck from the rolls) upheld as consistent with National Voter Registration Act of 1993 (hardly seems like a fair rule)

It was essentially required by the text of the NVRA and HAVA; I still don't understand the dissent.

Note that the return card wasn't sent to everyone; it was only sent to people who already hadn't voted in a couple of years. So it was six years of neither voting nor returning a postage prepaid card.

Cleaning up the voter rolls is an important prophylactic to prevent fraud; it's impossible to get away with voting in lieu of real voters on any scale because some of those real voters will say, "What do you mean I already voted? No, I didn't." But voters who have moved away (or died) will not similarly complain.

I had been registered to vote in Maryland. When I moved to NJ after college, I re-registered to vote in NJ. But there was no coordination, nobody took my name off the Maryland voter rolls,¹ and whenever I came home to visit my family and picked up the pile of (mostly junk) mail that I had received, there would be sample ballots and such in there. I could've voted in Maryland. (I did not.) What's worse is that when my parents moved to a new house one town over, the election people dutifully updated my address as well as my parents', so I was now registered to vote at a place I never even lived.
​
​
¹In contrast, with drivers' licenses, the states do coordinate. When you get your DL in your new state, it will let the other state know to cancel your previous license.

[Dan Schiavetta]

The NVRA doesn't create a national database. It would not have prevented you voting in two states (or three or four). It only requires states to "clean up" (I'm putting that in quotes) their own databases.

It seems unfair to disabled or older folks who may not keep up with the mail. Due process prohibits taking away rights by mail, exactly for this reason. For example, if you're sued, sending the summons just by mail is inadequate. You have to be notified in a more secure way (such as personal service). Unfortunately there is no "right to vote" in the Constitution (just provisions on not taking away that right) so I don't think a due process analysis has ever been applied.

[Bob from Ohio]

"For example, if you’re sued, sending the summons just by mail is inadequate. You have to be notified in a more secure way (such as personal service). "

That's not true. If one cannot get service otherwise, both ordinary mail service and publication service are permitted.

[Dan Schiavetta]

Only if it can't be done personally.

In New York it's called "nail and mail" -- mailing, plus affixing it to the front door.

[Bob from Ohio]

"Only if it can’t be done personally."

Yes, as I said.

You flat out asserted that it could not be by mail.

[Dan Schiavetta]

It can’t. Not just by itself (as the NVRA allows).

[JoeFromtheBronx]

The "right to vote" has been labeled a fundamental right (Yick Wo in the late 19th Century argued it was the right necessary to protect all rights). Fundamental rights are protected under due process and equal protection by strict scrutiny.

I think a 'right to vote' -- aside from this general principle -- is implied by multiple provisions of the Constitution. At the very least, once it is provided, it has to be applied equally & denial must follow due process. I'm fine with Rick Hasen's proposed constitutional amendment (he wrote a book about it) too.

[ReaderY]

I think the counterargument to that is that there have been no fewer than 5 distinct amendments regarding the right to vote, the 14th (giving states the option of either letting black males vote for Congress or retaining all-white voting and having reduced representation in the House of Representatives), the 15th (universal male suffrage with age up to states), the 19th (woman voting), the 24th (prohibiting poll taxes in federal elections only), and the 26th (setting a national voting age of 18 in federal elections only).

But if voting is a fundamental right in the 5th and 14th amendments, why in the world are all those amendments and all that text there? The obvious implication of the history of specific narrow expansions of the franchise is that voting is not in fact a general fundamental right. Only the multiple specifically enumerated voting rights are fundamental.

[jdgalt1]

Those disabled and older people are exactly the ones who need to be taken off the rolls, because generating fake ballots in their names is such an easy way to cheat. They won't have any idea that someone else is voting as them, because they don't leave their nursing homes.

[David Nieporent]

The NVRA doesn’t create a national database. It would not have prevented you voting in two states (or three or four).

I realize that, though perhaps my writing wasn't entirely clear. My point is that the NVRA/HAVA combo partially address the "voting in two states" issue by helping to clean up the voter rolls so that fewer people are registered in two (or more) states.

[Mr. Bumble]

Re: voter rolls:
https://thefederalist.com/2024/06/11/william-sitton-doesnt-live-here-tracking-nevadas-dirty-voter-rolls/

[David Nieporent]

It seems unfair to disabled or older folks who may not keep up with the mail.

First, I honestly have no idea what this means. What does "keep up with the mail" mean, and why do you think elderly people don't do it? Retrieve one's mail from one's mailbox and look at it? That's something elderly people are more likely to do. And if they didn’t, they'd probably end up evicted and homeless — in which case voting would seem to be the least of their worries — because how are they receiving and paying their bills?

Second, that's irrelevant anyway because they had to return the postcard or vote. (If they're not going to vote, then it really doesn't matter whether they're deleted from the voter rolls!)

Due process prohibits taking away rights by mail, exactly for this reason. For example, if you’re sued, sending the summons just by mail is inadequate.

Due process does not in fact forbid any such thing. There are many rights one can forfeit by failure to respond to the mail. With respect to lawsuits, I'm not aware of any state that makes service by mail the first choice, but it's a potential option when other ones prove unavailable. Hell, you can be 'served' by publication if other ones don't work, and that's an absurd fiction, since nobody in history has ever read the legal notices published in the paper.

[Bob from Ohio]

"absurd fiction"

No joke.

Lots of places have a legal newspaper with a couple of articles and pages of notices that qualify as a "paper of general circulation". So its not even the local paper but one that 99.9% of people don't even know exists.

[Ridgeway]

The analogy to lawsuits is inapt.

If you default in a lawsuit, it can be difficult if not impossible to rectify.

If you get taken off the voter rolls, you can always re-register. In many states you can do it same day, or file a provisional ballot.

[Mr. Bumble]

If we want to restore faith in elections the first step needs to be to follow the law and clean up voter registration rolls as required by the law. Given the advent of computerized rolls this should not be a difficult task.

[Bob from Ohio]

captcrisis doesn't want that, he wants big city democrats to continue to have dead people vote.

[apedad]

Sorry BfO, it's Pubs who have pled guilty in voting for dead people - in Ohio no less.

Edward Snodgrass, 57, a Porter Township trustee and a registered Republican, admitted to casting a ballot for his newly deceased father after forging his signature on an absentee ballot, Delaware County officials have said.

https://www.dispatch.com/story/news/local/2021/06/24/township-trustee-delaware-county-plead-guilty-vote-falsification/5333362001/

[Bob from Ohio]

We enforce the law here, yes.

You guys just don't bring the cases.

[apedad]

Apparently, you break the laws too.

[Mr. Bumble]

Apparently so do others:
https://www.washingtonexaminer.com/news/crime/3037715/democratic-leaders-arrested-charges-election-fraud-connecticut/

[Dilan Esper]

Nix is the continuation of Brewer v. Williams, the infamous "Christian Burial Speech" case.

[Noscitur a sociis]

The literal continuation, to be clear—it's the same guy, who was retried, convicted, and filed for habeas relief. (The title of the case, however, is Nix v. Williams, not Nix v. United States. In fact, the United States supported Nix, the warden, in arguing that the circuit court should be reversed and the conviction upheld.)

[apedad]

In Nix (7 - 2), Justice Brennan in dissent (with Justice Marshall), highlighted the difference between independent source rule and inevitable discovery rule.

In its zealous efforts to emasculate the exclusionary rule, however, the Court loses sight of the crucial difference between the "inevitable discovery" doctrine and the "independent source" exception from which it is derived. When properly applied, the "independent source" exception allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. It therefore does no violence to the constitutional protections that the exclusionary rule is meant to enforce. The "inevitable discovery" exception is likewise compatible with the Constitution, though it differs in one key respect from its next of kin: specifically, the evidence sought to be introduced at trial has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.

In my view, this distinction should require that the government satisfy a heightened burden of proof before it is allowed to use such evidence. The inevitable discovery exception necessarily implicates a hypothetical finding that differs in kind from the factual finding that precedes application of the independent source rule. To ensure that this hypothetical finding is narrowly confined to circumstances that are functionally equivalent to an independent source, and to protect fully the fundamental rights served by the exclusionary rule, I would require clear and convincing evidence before concluding that the government had met its burden of proof on this issue. See Wade, supra, at 388 U. S. 240. Increasing the burden of proof serves to impress the factfinder with the importance of the decision, and thereby reduces the risk that illegally obtained evidence will be admitted.

Because the lower courts did not impose such a requirement, I would remand this case for application of this heightened burden of proof by the lower courts in the first instance. I am therefore unable to join either the Court's opinion or its judgment.
~~~

I can see - on a case-by-case basis - why it would be important for law enforcement to adequately show how they would have inevitably discovered evidence and not just rely on them just saying they would have found it anyway.

[Dan Schiavetta]

Thanks, and yes I think you’re right.

[Zarniwoop]

I clerked for the D.Ct. judge who wrote the habeas opinion that was first reversed by the 8th Cir, then affirmed by the S.Ct. I recall him discussing this case - reasonably enough, since very few of a district court judge's decisions make it all the way to the S.Ct., and it stuck in my memory. I'm a biased observer here, but I was thoroughly convinced at the time by his description of the concerted, organized search effort, and the conclusion that the evidence was sufficient to show "inevitability", not just "probability".

[Dan Schiavetta]

Wow! An actually informed observer! I’m out of my league here!

Seriously, thanks

[Noscitur a sociis]

I can see – on a case-by-case basis – why it would be important for law enforcement to adequately show how they would have inevitably discovered evidence and not just rely on them just saying they would have found it anyway.

No one is disputing that. The question is whether they have to show it's more likely than not that they would have, or whether they have to show by clear and convincing evidence.

[SRG2]

Husted loses 5-4. Predictably, once you know the vote you can guess that conservative justices approve of the removal, liberal justices don't.

[JoeFromtheBronx]

Lukumi suggests the possibility of "general laws" being religiously discriminatory. Justice Blackmun's concurrence added:

"A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law."

This reference was suggested by his law clerk, who later became a professor & advocate for animal rights, Sherry Colb. (RIP)

Michael Dorf of Dorf on Law was her husband.

[Drewski]

"Michael Dorf of Dorf on Law was her husband."

He is her widower, I think you'll find, although I assume you misspoke.

[Commenter_XY]

Hunter Biden, convicted of all charges. Rough day for POTUS Biden.

[jdgalt1]

Why, is he going to sprain his hand writing that pardon, after Hunter signs an NDA?

[David Nieporent]

What do you think "NDA" means and how do you think it would apply in this context?

Also, he's not going to pardon Hunter. (Well, I can't rule out his doing it on his way out the door in January 2025 or January 2029. But he's not doing it before then.)

[Mr. Bumble]

Quite a conundrum here. The tax case that's pending has the greater chance of resulting in jail time if Hunter is found guilty. Will that conclude before the end of Biden's current term? If not a pardon would require Biden's re-election which is not a sure thing.
As for the current case, sentencing is scheduled in 120 days Is that normal?) and I doubt he will receive jail time. At worst a suspended sentence and probation, at best probation (contrite, first offender).
Will he risk the possibility of a pardon by appealing?

[Noscitur a sociis]

If not a pardon would require Biden’s re-election

Why?

[Bob from Ohio]

"Will that conclude before the end of Biden’s current term? "

Does not matter. Pardons can come before conviction. Before indictment or trial even, for example Ford pardon of Nixon.

Its happening this November or December, win or lose.

[Noscitur a sociis]

on his way out the door in January 2025 or January 2029

Or 2033!

[Kazinski]

Because NDA's are felonies.

[Commenter_XY]

It would be hard for any father to watch his son be convicted. There is nothing to celebrate here. Besides, there are more tax charges waiting for trial in CA.

POTUS Biden has stated he will not pardon his son.

[Bob from Ohio]

"POTUS Biden has stated he will not pardon his son."

He states a lot of things. Sometime even true things!

This is just a lie, unless he dies before he signs it.

[David Nieporent]

He states a lot of things. Sometime even true things!

Well, that puts him ahead of DJT, who never says true things.

[Mr. Bumble]

That's a little harsh especially since it is not true.

[Kazinski]

He didn't say he wouldn't commute his sentence.

So maybe an immediate commutation, then a pardon on his way out.

[Rev. Arthur L. Kirkland]

How do you know what someone else will do? Does Talladega Nights Jesus whisper the future in your ear, you bigoted, superstitious, downscale right-wing loser?

You seem especially cranky lately. Is it the first of Trump’s convictions, or the last of Mr. Volokh disgusting inflictions of vile racial slurs on classrooms of unfortunate law students?

[apedad]

"You guys just don’t bring the cases."

Bob from Ohio looking like a dumbass again.

[Bob from Ohio]

He was convicted of illegal voting! Big if true.

[Syd Henderson]

He was convicted on illegal possession of a firearm.

[Dan Schiavetta]

At no point did either Hunter or Biden rant about the trial being “rigged”. And of course at no point did Biden interfere with the prosecution. And he has said he won’t issue a pardon.

Hunter had agreed to a plea deal which was rejected by a vindictive Trump appointed judge. And let’s not forget what happened. Hunter, at the time in the depths of addiction, likely bought the gun with a view to suicide. His wife, realizing this, threw it in the trash. It was in his possession for 11 days.

This is not a situation for gloating

[Bob from Ohio]

"And he has said he won’t issue a pardon."

Some people will believe anything.

"This is not a situation for gloating"

Only because we all know he is never going to spend a day in prison.

[Dan Schiavetta]

There’s not an ounce of grace in you. Muted.

[Mr. Bumble]

Really? Muted? You are pathetic at times.

[Bob from Ohio]

Biden cult is strong. And pathetic.

[Syd Henderson]

But this is Bob from Ohio shooting his mouth (okay keyboard) off.

[Noscitur a sociis]

Hunter, at the time in the depths of addiction,

Literally the opposite of his trial defense.

likely bought the gun with a view to suicide.

Is there something beyond your speculation to support this?

I would agree that gloating at a criminal defendant being held accountable isn't very gracious (not that people had any real compunctions following a different proceeding recently), but there's nothing sympathetic about Biden here either.

[Dan Schiavetta]

As someone who was a crisis counselor for ten years, dealing with both substance abuse and suicide attempts, I can say yes, buying a gun out of the blue is a big red waving flag.

[Mr. Bumble]

Apparently you didn't see the other laptop pictures where he was holding a semi-automatic pistol (while naked).

Think maybe he wanted the Colt for protection from the people he was dealing with to supply drugs.

[Kazinski]

Wasn’t quite out of the blue. The testimony at the trial showed Hunter was meeting drug dealers almost daily, he probably and rightly had fears for his safety. He’d be seen as an easy mark.

And as Bumble pointed out it wasn't his first gun, he probably didn't want to bring the gun he had in California back to Delaware, and it may have been borrowed in California.

[Dan Schiavetta]

Yeah, right.

Do you think someone seriously concerned with being shot at would pose naked with a gun next to his laptop? That episode, also, was likely a suicidal moment.

[Noscitur a sociis]

Criminals do, in fact, take a lot pictures of themselves doing dangerous things with their guns, even though they have no intention of shooting themselves.

People buying a gun to shoot themselves, by contrast, generally don’t buy speedloaders at the same time.

I don’t know why you’re so emotionally invested in the redemption of Hunter Biden, but I think it’s made you lose the plot a bit.

[SMP0328]

And he has said he won’t issue a pardon.

He didn't say he wouldn't grant clemency (reduction of punishment, as opposed to voiding the conviction by pardon).

[Kazinski]

The judge didn't reject the plea deal. The Judge asked some questions about the plea deal that it turns out were warranted. She asked if the plea deal covered any potential FARA violations. DOJ said no, they could still be charged. Hunter's lawyers said no deal.

Its also not clear that she would have approved the deal as structured where she as the judge would be involved in making decisions on whether Hunter was in compliance with the terms of the plea deal. It was structured so a future GOP DOJ wouldn't be able to make that determination.

[Kazinski]

Hunters attorneys did say the prosecution was rigged and and should be thrown out because of prosecutorial bias.

[Armchair]

"Hunter had agreed to a plea deal which was rejected by a vindictive Trump appointed judge. "

Umm, the judge didn't reject it.

The judge merely asked for a clarification. Hunter apparently thought the deal immunized him other possible federal crimes he may have committed during that time. The Federal prosecutors said...well...no.

So, Hunter's lawyers said "screw this" and ended the deal. The Prosecutors offered the same deal as before, just without the generalized immunity. Hunter's lawyer said "No". I suppose they always have daddy to give Hunter a pardon, if he gets jail time.

[Dan Schiavetta]

Hunter faced his trial like an adult. Trump was, and continues to be, a child.

[Armchair]

The fact remains that Hunter was offered a very generous plea deal that took multiple felony gun and tax evasion charges and knocked them down to pretrial diversion and a couple of misdemeanors. A near guarantee of no jail time (and no felony convictions).

This is a deal that, given the evidence, 99% of people would be advised to take.

But 99% of people don't have the POTUS and his pardon power in their proverbial back picket ready with a pardon

[David Nieporent]

Just because Trump corruptly handed out pardons like candy does not mean that Biden will.

[Kazinski]

I'm not surprised by Hunters conviction but it should not have been brought because it is constitutionally suspect, especially with the Rahmi decision pending at the Supreme Court.

Am I Hunter's only defender?

All the other "defenses" of Hunter wrongly concede his conduct in the gun case was criminal.

[Syd Henderson]

I think it's somewhat bogus, but it does look like there might be some other charges that may stick. It puts the President in an awkward position, but it does happen, as when Jimmy Carter's brother put him in an awkward position, as did W's daughters at the beginning of his administration.

I note that once they turned 21, I didn't care and they've both turned out to be pretty good people.

[Armchair]

"I’m not surprised by Hunters conviction but it should not have been brought because it is constitutionally suspect"

Unfortunately, many others have been convicted on similar crimes. While the law may be "constitutionally suspect", it's still the law until overturned.

It would be unjust not to convict Hunter, have the statute of limitations pass, then suddenly have the law ruled constitutional. But Hunter gets off scot free (Just like he did with his millions in tax evasion for 2014 and 2015.)