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Today in the Community

Today in the Community, we discuss a case argued last week, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The issue before the Court is whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

Disclaimer: Goldstein & Russell, P.C. – whose lawyers work for and/or contribute to the blog – filed an amicus brief in the case in support of respondent Cheryl Perich.

The discussion is going on here. We encourage you to share your views on the case. Please read Tom’s guide to participation for more information on how to get involved.  Tomorrow’s topic is the Stolen Valor Act, a federal law at issue in a cert. petition that the Justices will consider at their October 14 Conference.

Five of our favorite comments from yesterday are:

Brooks Holland

Albert Florence’s claim that he should not have been strip-searched at two county jails absent reasonable suspicion presents the kind of security-privacy debate we expect from a Fourth Amendment case. Yet, I was struck with how many times Florence’s briefs assert not only privacy, but “dignity,” as a personal interest that must be weighed against the State’s interests. Florence’s opening brief refers to dignity approximately a dozen times, and his reply brief a half-dozen times. In one example, Florence argues that a strip search constitutes “an extraordinary, almost unparalleled, intrusion into personal privacy and dignity.” Florence Reply Brief, 2011 WL 4500813 at *1.
The Supreme Court has invoked “dignity” in various constitutional decisions, including Fourth Amendment decisions, but the Court has not confirmed dignity as a doctrinal measure of the Fourth Amendment. In Schmerber v. California, the Court held that “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” But the Court failed to analyze how dignity may differ from privacy, and was consistent with the blood sample extraction upheld in Schmerber. Similar dignity references, and lack of dignity analysis, can be found in a handful of other Fourth Amendment cases, such as Skinner v. Railway Labor Executives, Ass’n (1989), Wyoming v. Houghton (1999), and City of Ontario v. Quon (2010).
Perhaps Florence emphasizes a dignity interest against strip searches because he worries the Supreme Court will recognize only minimal traditional privacy interests in jails. The Supreme Court did observe in a recent Eighth Amendment case that “[p]risoners retain the essence of human dignity inherent in all persons.” Brown v. Plata (2011). Some scholars have called for more robust dignity doctrine under the Fourth Amendment. See e.g., John Castiglione, Human Dignity under the Fourth Amendment, 2008 Wis. L. Rev. 655. Strip searches could fit this bill, and Florence and some of his amici describe what harm to dignity may resemble—humiliation, degradation, and psychological trauma. I wonder whether Florence will clarify the role, if any, of dignity interests under the Fourth Amendment?


Eve Brensike Primus–

The expected focus of Florence is on how the Court will perform the reasonableness balancing test that is now at the heart of administrative search doctrine. How strong is the government’s interest in preventing contraband and weapons from entering a detention facility? How much does a general strip-search policy serve that government interest? How invasive are these strip searches? And how does this balancing of interests differ from the balancing of interests that the Court addressed in Bell v. Wolfish when it upheld as constitutionally reasonable strip searches of pre-trial detainees after contact visits?

What is missing from this analysis is critical discussion of whether such a balancing test is appropriate for analyzing the kind of administrative search that is at issue in Florence. The Florence search is a general dragnet: every person arrested is strip-searched on entry into the detention facility, without exception. Once upon a time, dragnet administrative searches could only be justified on general reasonableness balancing grounds if it were clear that the relevant governmental interest could not be satisfied with a regime of searches based on individualized suspicion: only where individualized suspicion regimes were unworkable could the government impose dragnets at all. There is no good reason why administrative search doctrine has abandoned that requirement; it should be restored. And given that eighteen states use individualized suspicion regimes to decide whom to strip-search on entry to detention facilities, it is hard to argue that individualized suspicion is an unworkable way to satisfy the government’s admittedly important interest in promoting a safe corrections environment.


David Steinberg 

What does the Fourth Amendment tell us about strip searches at prisons and police stations? In my opinion – nothing. As I have argued in the past, the framers intended that the Fourth Amendment only would prohibit unlawful physical trespasses into homes, pursuant to a general warrant, or no warrant at all. See, e.g., David E. Steinberg, Restoring the Fourth Amendment: The Original Understanding Revisited, 33 Hastings Const. L. Q. 47, 81 (2005). The Fourth Amendment never was intended to apply to other problems – such as the strip search policy in Florence.

Of course, strip searches at prisons raise important privacy interests, and important state interests in protecting safety and security. But these competing interests should be weighed by local elected legislators as a matter of policy, and not by appointed federal judges purporting to make constitutional law.

Think about it. Do the current Supreme Court Justices have any experience running a prison?


David Moran 

The Fourth Amendment protects us from “unreasonable” searches and seizures. Ten years ago, in Atwater v. City of Lago Vista, the Court held, 5-4, that it’s not unreasonable for the police to custodially arrest, that is, handcuff, stuff into the back of a police car, and take to jail, people for the most petty crimes, even traffic offenses that carry no possibility of jail, such as the seat belt violation in Atwater. If Mr. Florence loses his case, it means that the police can, without violating the Fourth Amendment, take any of us into custody for the completely trivial offenses that most of us commit every day (speeding, jaywalking, etc.) and then subject us to a strip search.

For some 30 years, the federal circuits had unanimously held that people cannot be subjected to strip searches when briefly jailed for minor offenses, absent some indication that they’re carrying contraband or weapons. But three circuits in recent years broke with that precedent and authorized blanket strip searches. In his intriguing concurring opinion in the 9th Circuit case overruling its prior precedent limiting such searches, Alex Kozinski argued that the prior decisions amounted to judges drawing lines designed to prevent the authorities from strip searching people who look like those judges, i.e., soccer moms like Gail Atwater. Judge Kozinski’s point is a good one, as far as it goes; the test for an unreasonable search shouldn’t turn on whether intrusive governmental action could happen to people like us. But it still begs the question: isn’t it unreasonable to strip anyone naked and closely inspect that person’s anus and genitals when that person has been taken into custody for a petty offense with no indication of violence or contraband? It’s hard for me to see how any reasonable person can answer that question in the negative. The fact that this Court may well do so illustrates just how far our Fourth Amendment jurisprudence has strayed from the common understanding of “unreasonable.”


James Mets 

The United States Supreme Court’s decision in Florence v. County of Burlington will have a profound effect on the safety and security of correctional facilities and the correctional officers who work in them. As the Court held in Bell v. Wolfish, “[a] detention facility is a unique place fraught with serious security dangers.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Affirming the Third Circuit’s decision will make these facilities safer. Visual inspection of an inmate prior to their incarceration in the general population can uncover secreted contraband, reveal gang affiliations and aid in the identification of inmate’s with certain diseases. Preventing contraband from entering the general population is essential to the safety of the prison environment. In addition, identifying ill individuals will allow for appropriate treatment, while at the same time keeping corrections officers, staff, and other inmates from being exposed to deadly diseases like MRSA. Keeping prisoners in rival gangs separated further bolsters the safety of a correctional facility.

The Court has historically focused on the security of the correctional facility. “Central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.” Bell, 441 U.S. at 546-47, (citing Pell v. Procunier, 417 U.S. 817, 823 (1974)). Affirming the Third Circuit’s decision in this matter will foster that goal. Accordingly, the Court must affirm the Circuit Court’s decision.



Recommended Citation: Kali Borkoski, Today in the Community, SCOTUSblog (Oct. 12, 2011, 9:52 AM),