Virtual Flaneurism

Considering we've had one big legal surprise this morning, let me share some information about other legal issues regarding equal protection that State governments will be dealing with this month. Feel free to comment with any disagreement/corrections to my legal analysis.

1. Towleroad has a helpful article in which a bar-accredited lawyer (unlike yours truly) answers questions about the meaning and ramifications of the Defense of Marriage Act press release issued by the Attorney General this morning.

2. Missoula's LGBT Anti-Discrimination Ordinance Attacked by Montana State Senate

City lawmakers in Missoula, MT passed an anti-discrimination ordinance this past year prohibiting discrimination against city residents based on their sexual orientation. The Montana State Legislature, which is majorly Republican, balked and has presented legislation that would prohibit local governments from enacting any anti-discrimination measure covering a class not considered a "protected class" under state law; you will likely be unsurprised to learn that Montana state law does not include sexual orientation as a protected class. This proposed legislation passed the Montana House Judiciary Committee on Monday.

On its face, this ordinance seems a violation of Romer v. Evans, a Supreme Court case considering the constitutionality of a Colorado State Statute restricting any state entity, from local governments to the state itself, from extending anti-discrimination protections to individuals based upon sexual orientation. However, the proposed Montana statute and the one in Romer differ in two possibly meaningful ways:

• The Montana statute applies only to local government, whereas Colorado's to the state as a whole. Where LGBT Coloradans could only gain protections from discrimination by amending the state constitution and then passing a law (a path that could take years), Montana citizens are still able to pursue legal protection at the state level. The Court could view this as a meaningful difference: where Amendment 2 left gay Coloradans lacking any meaningful legal recourse, HB 165 stills gives gay Montanans some access to seek protection.
  
• Colorado's Amendment 2 expressly prohibited protections based upon, "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” The Montana statute, on the other hand, creates a negative implication -- all groups not considered "protected classes" under state law are restricted from seeking protection through their local governments. Though Montana law-makers were clearly inspired by the LGBT statute in Missoula to propose this legislation, their chosen wording is not as focused or invidious on its face as the Colorado Amendment. Since Montana is not specifically targeting LGB individuals as a class, but all classes already protected by the state, this particular legislation could pass review by the court system, especially if they employ a lower form of scrutiny in their analysis.
  
  While Romer will certainly be a large part of any challenge to this legislation (if it passes), there are distinct differences between the two pieces of legislation that could lead the court away from a simple application of precedent to declare this law unconstitutional.
  
  3. Arizona State Senator Attempts to "Out" Illegal Immigrants by Demanding Schools Request Residency Papework, Deny Access to Education for Child-Aged Undocumented Immigrants
  
  Arizona State Republicans have proposed legislation that would prohibit state public schools from enrolling illegal immigrants children and require all students to provide paperwork proving their citizenship or legal resident status to the school district. The law would also prohibit Arizona institutions of higher education from offering admission to illegal immigrants, and require students to supply similar proof of citizenship or legal residence. Effectively, this law would turn administrators in the public education system into immigration agents responsible for uncovering and reporting illegal immigrants in their school system.
  
  First and foremost, the Supreme Court's holding in Plyler v. Doe likely prevents Arizona from prohibiting any K-12 aged students from access to public education. In Plyler, the Court stated, “[Education] is [not] merely some governmental ‘benefit’ indistinguishable from other . . . forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction.” To limit undocumented students’ access to education “poses an affront to one of the goals of the Equal Protection Clause [of the Fourteenth Amendment]: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.” That the petitioners in Plyler were undocumented immigrant children did not matter - the importance of access to educational opportunity trumped the state's interest in extending education benefits to bona fide residents. It is important to note that the Plyler court, while espousing the extreme importance of education, did not describe access to education as a fundamental right; such wording would've required them to review laws restricting access to education under strict scrutiny. They instead avoided the issue of judicial review standards entirely.
  
  The Court could find constitutional the law's second requirement, that students provide proof of legal residence. Laws regarding ndocumented immigrants as are subject to rational basis judicial review (unlike laws effecting legal residents, with receive strict scrutiny). Rational basis requires only that a given law is rationally related to a legitimate state interest. I'm not going to delve into further caselaw, but it is likely that the court could find a rational basis for Arizona's requirement proof of legal residence - especially since this form of judicial review requires the court not to consider the actual rationale for the law, but any conceivable and reasonable rationale that the judges or justices can conjure up.
  
  Either way, Arizona is having quite the year in regards to the rights of undocumented immigrants.
  
  4. Watch Wisconsin Governor Scott Walker, sworn enemy of collective bargaining, stick his foot in his mouth blathering about his plans with wealthy conservative David Koch. Regarding Walker's refusal to even discuss his controversial measure with concerned protesters and Democratic state senators, the YouTube comments sum it up nicely: "Well, at least we know that Scott Walker will open his mouth big when there's a Koch in front of it."