2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.
In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”
In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”
2021—In an extraordinary order (in United States v. Carrillo-Lopez), federal district judge Miranda Du rules that a core provision of federal immigration law is unconstitutional. Judge Du concludes that section 1326 of Title 8, which imposes criminal penalties on aliens who have been removed and who thereafter re-enter the United States, “violates the equal protection guarantee of the Fifth Amendment.” Specifically, she contends that section 1326 “was enacted with a discriminatory purpose” and “has a disparate impact on Latinx persons” (she uses the term Latinx 21 times) and that the government “fail[ed] to show that Section 1326 would have been enacted absent racial animus.”
Du acknowledges that section 1326 was amended five times in the 1980s and 1990s, and she does not contend that those actions reflected racial animus. But in her view those amendments by later Congresses weren’t “substantive” but instead merely “served to increase financial and carceral penalties” and thus can’t cure section 1326 of its tainted origins in enactments in 1929 and 1952. How strange to think that Congress could increase the penalties for unlawful conduct without ratifying that the conduct is unlawful.
Du also rejects the government’s position that geography explains the “disparate impact” that section 1326 has had on “Latinx persons.” But her contention that the border with Mexico is “over-polic[ed]” compared to the border with Canada makes no effort to address the vast differences in numbers of illegal re-entries across the two borders.