Tuesday, July 22, 2014
In a recently filed lawsuit, the Mexican American Legal Defense and Educational Fund (MALDEF) claimes Bellflower, CA's at-large election system effectively disenfranchises black and Latino residents.
Bellflower is roughly 30-non-traffic-minutes south of Los Angeles.
Two former Buffalo Wild Wings employees claim the restaurant violated their rights protected under Title VII of the Civil Rights Act.
Specifically, they allege that the assistant manager at the restaurant at which they worked had created a hostile work environment by repeatedly telling a particularly incomprehensible racist joke (to my mind, its truly not understandable, but its
nevertheless available for your disgust in the complaint). He apparently wasn't punished after the plaintiffs complained about this behavior to BW3's human resources department. To the contrary, he was promoted.
And his promotion allegedly didn't assuage the abuse. He continued to make racist comments and give white employees preferential treatment. According to the complaint, he "allowed a white shift leader to strike and African American female employee with a plate without reprimand," and he even threw a plate of food at an African American cook.
This mistreatment apparently wasn't enough for him. He also wanted "to clean up the front of the house image," apparently meaning he wanted all the black people to move to the back of the house. The local CBS affiliate reports:
[The plaintiff's] claim that what happened to them was a systematic plan to have less interaction between African American employees and customers. FOX19 Investigates staff saw a number of African American workers serving customers at the Forest Park location.
However, FOX19 Investigates found a promotional video on the Buffalo Wild Wings corporate website that tells a different story. The video, aimed at prospective employees, is introduced by the company CEO.
It shows employees working at the chain's "most engaged" restaurant team of the year at a location in Memphis, Tenn. The video shows satisfied customers being served by happy workers, who participate in team huddles and high fives with co-workers and managers. But FOX19 Investigates noticed that in the nearly two-minute video, only non-African American workers were interacting with customers. African American workers are seen briefly only in the back of the restaurant or in the kitchen.
Finally, this BW3 manager also fired one of the plaintiff's even though she exceeded the metric used to determine whether employees fulfill their customer service obligations.
The complaint is here.
"'The Dignity and Justice that Is Due to Us by Right of Our Birth': Violence and Rights in the 1971 Attica Riot"
The response to the Attica riot has tended to focus on the spectacle of violence — the acts of the rioters and the state’s response to those acts. This paper distinguishes the violent events of the summer of 1971 from the grievances that inmates wished to express and their claims about rights and justice. This paper examines how the range of possibilities for theorizing and responding to prison violence and inhumane conditions that existed in the early 1970s was narrowed to a framework that recognized specific civil rights named by the state, obscuring deeper claims.
Monday, July 21, 2014
Of course, Kansas Sec. of State Kris Kobach says transgender citizens need not worry because poll workers can account for changes to physical appearance when determining whether to accept someone's ID - a claim that deserves a punch-line. As The Topeka-Capital Journal's Andy Marso reports:
But that reassurance didn’t match the on-the-ground experience of Stephanie Mott, a Topekan who leads the Kansas Statewide Transgender Education Project.
Mott said the first time she voted under the new ID requirements, she was still registered as Steven Mott, and her ID still listed her as Steven Mott, so she gave that name, knowing that all the poll worker was instructed to match was name and appearance.
“The poll worker said ‘Name?’ and I said ‘Mott,’ “ Mott said. “She said ‘First name?’ and I said ‘Steven.’ Then she said ‘You’re not Steven,’ out loud to everybody within earshot. Then I had to explain to her I was transgender. Then I had to explain to her what that was.”
Twenty-six years ago, Kevin Martin accepted a plea sending him to prison for 35 years to life for the rape and murder of 19-year-old in D.C. Although Martin claimed no knowledge of the young woman's death, the prosecutor told him that an FBI forensic unit had found his pubic hair on one of the victim's shoes. And the forensic expert's testimony alone would be damning.
New DNA evidence tells another story, however, and today he's an exonerated man. As WaPo reports:
U.S. attorney Ronald C. Machen Jr. joined defense calls to vacate Martin’s conviction and declare him innocent of the rape and murder of Ursula C. Brown. Machen cited DNA evidence that contradicts a previous finding by forensic experts linking Martin to a hair collected at the scene.
Martin, who had long professed innocence in the killing, left the D.C. courthouse with his name cleared.
Martin's exoneration came as part of a larger effort by the D.C. Public Defender Service to have FBI hair samplings re-examined after a DOJ report revealed concerns about the methods of analysis employed by an FBI investigator.
In December 2009, D.C. Superior Court Judge Fred B. Ugast exonerated and ordered the release of another man, Donald E. Gates, then 60, after DNA results cleared him of a rape-murder for which he had spent 28 years in prison.
Gates’s counsel, the D.C. Public Defender Service, also discovered that for 12 years prosecutors failed to disclose that the Justice Department’s inspector general in 1997 had criticized the FBI agent who had linked Gates’s hair to the crime, and that flaws were later found in that evidence.
Ugast ordered Machen’s office to review all cases handled by the agent, Michael P. Malone. In 2012, facing continued demands by PDS, Machen ordered a review of all convictions that relied on FBI hair analysis.
This review has taken awhile - now more than two years running - and has resulted in a "nationwide review of more than 2,100 convictions in the 1980s and 1990s."
Four other men already have been exonerated since the review commenced in 2009.
Federal judge holds warrant for individual emails permits law enforcement to seize entire email account
The New York Law Journal reports that a federal judge has found that the Fourth Amendment does not prohibit law enforcement officials from seizing and reviewing an email account after the execution of the initial search. The article states:
"In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search," [U.S. District Magistrate for the Southern District of New York Gabrial Gorenstein] said.
So courts have developed a more flexible approach compared to on-site searches and "routinely" allow the seizure of entire hard drives, he said, and that's why the Federal Rules of Criminal Procedure were amended in 2009 [Rule 41(e)(2)(A)] to allow a warrant that "authorizes a later review of the media or information." Under the amended rule, the time for executing the warrant "refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review."
Gorenstein also said in June the U.S. Court of Appeals for the Second Circuit held in United States v. Ganias, 2014 WL 2722618, that "the creation of mirror images for off-site review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be."
Gorenstein said he could "perceive no constitutionally significant difference between searches of hard drives and email accounts.
And the White House is complicit in its continued neglect of our civil liberities. Writing last week in WaPo, former State Department employee John Napier Tye explained that neither metadata nor the content of private communications by U.S. citizens is protected from NSA peeping. Indeed, as a result of Executive Order 12333, many private communications remain exposed without even minimal Congressional oversight (such that it is, right Sen. Feinstein?). Here's the breakdown:
Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.
Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court...
Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.
Perhaps you don't give two hoots about the NSA's activities abroad. You live in 'Merica, and your communications stay here. Well tighten your belt... As Tye explains:
A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.
So, forget privacy.
For her part, Sen. Feinstein cares enough about the unchecked surveillance of US citizens to pretend to care. But only time will tell whether or not her concerns bear fruit, for the story-told creates considerable doubt as to her seriousness.
Saturday, July 19, 2014
President Obama to amend 1965 executive order to prohibit contractors from discriminating against gay workers
[T]he rule will apply to all employees except for ministerial positions, the senior official said.
Already, religious organizations are allowed to make employment decisions for ministerial positionssuch as clergyas they see fit. Mr. Obama’s order won’t change that. This means a religious organization could refuse to hire someone for a clergy position simply because he is gay without jeopardizing his contract.
Additionally, under a modification put in place by President George W. Bush, religious organizations are allowed to consider the religion of a person when making hiring decisions for any position. The Obama order doesn’t change that, either.
So, under the new rules, a Catholic organization could decline to hire someone for a nonreligious post because she wasn’t Catholic, but not because she was a lesbian.
The Hartford Courant reported Thursday that UConn settled the civil rights suit filed against it by five women alleging that the university failed to adequately respond to their claims of rape and sexual assault.
...an advisor to Europe's highest court ruled," according to the Courthouse News Service. Here are the basics:
Karsten Kaltloft claimed he was fired Nov. 22, 2010, after working for the Municipality of Billund in Denmark as a "child-minder" for 15 years because he weighed 352 pounds.
Throughout his employment, Katloft was fat, with a body-mass index of 54, and is therefore considered obese by the World Health Organization.
Arguing that his morbid obesity is a "chronic and durable illness," Katloft pointed out that obesity is considered a disability under American law.
The municipality claimed that it fired him because of a reduction in workload, but Katloft claimed that he was fired because of his weight.
He sued in a Danish District Court, and the Retten I Kolding Court in Denmark asked the Court of Justice last year to clarify whether the antidiscrimination books in the EU cover obesity.
Jaaskinen suggested Thursday that obesity should be included as a protected class.
"I am ... of the opinion that, in cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the [United Nations] Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability," he wrote.
It doesn't matter if the person's obesity is because of excessive "energy intake," Jaaskinen added, stating that it is "irrelevant" if a person's obesity is "self-inflicted" because a person eats too many calories but exercises too little, if it's a psychological or medical problem, or if it's a side-effect from certain medications.
"Otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from 'disability'" under the law, he wrote.
Thursday, July 17, 2014
This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early- twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the United States, contrary to continental systems where rules limiting a malicious or unreasonable use of one's right coalesced into a unitary category of "abuse of rights," these rules remained largely nonintegrated. Rationalization of these nonintegrated reasonableness tests and malice rules, I argue, was achieved by means of a novel, unitary style of reasoning, hardly fitting the traditional portrait of nineteenth-century "Classical" orthodoxy, rather than by means of conceptual integration. Further, the Article suggests that abuse of rights' potential as a tool for social reform was consistently defused. In the United States, rarely and timidly did courts deploy malice rules to effect progressive distributive outcomes. And even when they did, they invariably resorted to the individualistic language of modern private law.
Professor Doug Berman has the links at Sentencing Law and Policy.
Here are a couple additions:
- Hit & Run's Scott Shackford, California’s Death Penalty Struck Down as Unconstitutional for Not Actually Killing People.
- WSJ Law Blog's Ashby Jones, Federal Judge Deems California’s Death Penalty Unconstitutional.
These are the words of Pennsylvania District Judge Wayne Maura who cited a man for contempt of court and issued him $50 fine because he wore his pants too low. This apparently is a thing with Maura, who reportedly has a sign on his chamber door that says "Pull your pants up!" Unfortunately for him, the common pleas judge dismissed the charges and the fine.
Adam Dennis...won a dismissal of the state district court case, as well as $50 fine, represented for free by a private practitioner, the Morning Call reports.
Although sympathetic to District Judge Wayne Maura's efforts to maintain decorum in the Allentown courtroom at issue, Lehigh Court of Common Pleas Judge William E. Ford sided with defense attorney Gavin Holihan. He argued that legal requirements of an intentional and substantial disruption of judicial proceedings weren't satisfied by Dennis' in-court attire on May 7. Dennis was in district court that day to attend a hearing involving a relative.
"Financial Costs for Youth and Their Families in the Alameda County Juvenile Justice System: A Guide for Advocates"
This manual was prepared by law school clinic students for lay advocates assisting youth and their families in Alameda County's juvenile justice system. In addition to court-ordered restitution (to repay victims for economic loss) and restitution fines (which go to the California State Restitution Fund), youth and their families are assessed fees for things like juvenile hall, probation supervision, drug testing, GPS monitoring and public defenders. The manual describes theses costs and how to mitigate their impact on low-income youth and families already struggling with the burdens of court involvement and poverty.
Tuesday, July 15, 2014
Many new democracies exhibit a disturbing lack of electoral competition. All too often, the first party to hold office creates a network of power and patronage that chokes off meaningful political challenge. These strong party democracies, with power often being held by the inheritors of the political mantle of those that led the opposition to prior authoritarian rule, exhibit a tendency toward the three “C’s” of associated with the lack of accountability: clientelism, cronyism, and corruption. Such strong-party regimes and their associated pathologies present relatively new constitutional courts with a distinct set of controversies that necessarily bring the judiciary into conflict with consolidating political power.
This article explores the form that judicial responses to the excesses of political dominance might take. Three courts are selected as exemplars of such responses. In the first instance, the Colombian Constitutional Court repudiated the attempt of President Uribe to amend the constitution to permit a third term in office, despite the lack of reasoning to support the rejection of a largely procedurally proper constitutional amendment. In the second, the South African Constitutional Court has scrupulously avoided any frontal confrontation with the current African National Congress government, instead casting its repeated rejection of government efforts to insulate itself from accountability in narrow procedural rulings or in rulings based on other, non-politically charged sources of law. Finally, there is the Thai Constitutional Court which, while providing the strongest jurisprudential defense of its intervention, appears an active ally of one partisan camp as the country hovers on the brink of civil war.
Rather than offer any off-the-rack solution for the difficult realm of constitutional courts as democracy falters, this Article examines the relation between the issues presented to such courts and the fundamental absence of electoral challenge and accountability. To the extent these courts navigate this difficult terrain, the Article concludes, the decisive feature will likely be the ability to contribute to the establishment of a competitive electoral system able to constrain single-party dominance.
“At least 80 percent of fiber-optic cables globally go via the US. This is no accident and allows the US to view all communication coming in. At least 80 percent of all audio calls, not just metadata, are recorded and stored in the US. The NSA lies about what it stores.” Former NSA technical director William Binney
The article notes that Mr. Binney cannot prove these allegations because he didn't heist any documents. But, of course, he praises Edward Snowden and cites the documents released by Snowden as evidence that the NSA's surveillance efforts far exceed those previously claimed by the agency.
...a transgender rights advocate tells Politico's Sarah Wheaton for this extensive piece discussing the availability of insurance coverage for sex reassignment surgery. Quite obviously, the debate centers on the distinction medically necessary and elective surgeries. Wheaton writes:
Insurance companies say they are committed to nondiscrimination and ready to offer plans covering surgery when payers request it or regulators require it. Even when a policy includes coverage, however, issues arise over what’s elective versus essential.
In their coverage descriptions, major insurers like Aetna and UnitedHealthcare will pay for changes to private body parts, like vaginoplasty and testicular prosthesis. Mastectomies for female-to-male patients and breast implants for male-to-female patients are usually covered, too. Procedures such as facial feminization or voice modification surgery are generally excluded as cosmetic.
Monday, July 14, 2014
Recording interrogations of criminal suspects by law enforcement is good thing, but it's not consequence-free. Professor Jennifer L. Mnookin laid out the issues well yesterday in her op-ed in the NYTimes, writing:
Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form.
Given this chorus of support, what’s not to like?
The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.
She later adds:
We know that false confessions really do occur, even in very serious crimes, and probably more frequently than most people expect. But why? We know something about certain interrogation techniques, as well as defendant vulnerabilities like youth or mental disability, that may create heightened risks for false confessions. But we don’t yet know enough about the psychology of false confessions to be able to accurately “diagnose” the reliability of a given confession just by watching it.
The problem is that many of the red flags that frequently occur in false confessions — like unusually long interrogations, the inclusion of inaccurate details, or the police “feeding” some crime-related information to the suspect — can also occur in the confessions of the guilty. This means there’s no surefire way to tell false confessions and true confessions apart by viewing a recording, except in extreme cases.
The Superior Court of Pennsylvania says the police may not search your cellphone without a warrant. Citing SCOTUS's recent decision in the consolidated cases of Riley v. California and U.S. v. Wurie, the court upheld the lower court's "suppression of photographs containing alleged child pornography that were obtained from defendant Adam Edward Stem’s phone during a warrantless search following his arrest for an unrelated incident."
As you may recall, Chief Justice John Roberts wrote these cheeky lines for the majority in Riley and Wurie:
The fact that technology now allows an individual to carry [private] information in his hands does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant.
My wife and I moved to Los Angeles a little more than a month ago. We drove from Cleveland, carrying what little we could in the rear of our car. The rest, including most of our books, we left at my father-in-law's home.
I'm going to reclaim our stuff in two weeks time. I'm particularly excited to dig into our box of books for our favorite - 'My Sons's Story' by Nadine Gordimer. It's truly a treasure. In his book review for the NYTimes, Robert Coles writes of this spectacular novel set in South Africa during Apartheid:
A novelist's brilliant decision works wonders, ever so slowly yet decisively. A boy stumbles into his august father's secret life, is stunned by the casual, relaxed manner in which the father is living that life, is confused at the seeming expectation that he, too, an adolescent belonging to a once tight-knit family, will take in stride such circumstances. His perplexity and frustration give way to a sustained, withering scorn - a sardonic voice that keeps at the reader, reminds us that this is a novel meant to look closely and with nuanced force at moral complexity, moral ambiguity, but most pointedly at moral hypocrisy, which is in no short supply among many of us, no matter our nation, our race, our class and, not least, our educational attainment. One more leader, a larger-than-life figure, is found to have clay feet - by his son, who has occasions aplenty to witness the human consequences of such a disparity between a public and a private person.
The idol must not fall - consequently, a public deception persists, and with it a kind of public blindness. It is left to playwrights and novelists, our Shakespeares and Tolstoys and their descendants today (they who have no claim upon factuality or realpolitik) to render the many and often disparate truths of human experience, the inconsistencies and contradictions, the troubling paradoxes. The heart and soul of this brilliantly suggestive and knowing novel is its courageous exploration of such matters, of the conceits and deceits that inform the lives not only of ordinary people but those whom the rest of us invest with such majesty and awe.
Nadine Gordimer died yesterday. She was 90 years old. She will be missed.
The New Republic has collected this series of interviews for your viewing pleasure.
Sunday, July 13, 2014
The First Amendment Center brings us this and other sad findings regarding Americans' (mis)understanding of First Amendment protections.
(h/t Josh Blackman)
A professional photographer was placed in a terrorism investigation database after attempting to photograph Dorchester, MA's gas storage tank, which looks like this:
In any case, there seems to be little justification for subjecting citizens to surveillance for activities as routine as photographing artwork. What's next? Does the government intend to monitor anybody caught photographing the Golden Gate Bridge? The Capitol?
Charlotte Observer editorial calls on federal judge to enjoin enforcement of North Carolina's new election laws
In the wake of SCOTUS's decision last summer in Shelby County, the North Carolina legislature rushed to pass a series of changes to the state's election laws. In addition to the controversial voter ID provision, the changes would limit early voting and eliminate same-day voter registration and the availability of out-of-precinct provisional ballots. These changes prompted challenges by civil and voting rights groups as well as the DOJ, who claim the laws disproportionately affect African Americans, the eldely and college students.
Last week, a federal judge heard arguments on whether to enjoin the state from enforcing the changes pending litigation scheduled for July 2015.
The Charlotte Observer strongly supports such an injunction. Indeed, in yesterday's editorial, it claims "the judge should block [the changes] until the courts resolve the matter next summer." It states:
The judge should suspend implementation of these new laws. They are ill-advised and unnecessary. Some have already caused confusion and wasted taxpayer dollars.
We noted that last week that lawmakers’ decision to end preregistration of teens to vote was nonsensical. It caused so much confusion about when 17 year olds who would turn 18 could register that state elections supervisor Kim Strach decreed the state will begin offering voter registration services to all 17-year-olds regardless of when they turned 18.
Suspension of the voting changes would reinstate teen preregistration, as well as same-day voter registration, out-of-precinct provisional voting, and early voting over 17 days as opposed to the 10 days set in the 2013 law. County boards of election also would still be allowed to keep polls open an extra hour. It would also forestall the preparations elections officials are making for the implementation of a state-approved voter ID. That law doesn’t go into effect until 2016, but poll workers are already asking about IDs which has confused some voters.
Thursday, July 10, 2014
The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.
The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas power reaches state custody.
We now know that the common-law habeas writ did not evolve primarily as a security for individual liberty, but in service of judicial power. In Boumediene v. Bush, the Supreme Court blessed this revised writ history. This Article is the second entry in a series exploring the legal implications of those revisions. In the first article, A Constitutional Theory of Habeas Power, 99 VA. L. REV. 743 (2013), I argued that Article III judicial power secured for federal prisoners the habeas privilege identified in the Suspension Clause. The question that I reserved there — and that I answer here — was whether anything about Reconstruction changed the operation of the habeas guarantee embedded in the original Articles of Constitution.
The answer, in short, is yes. The Fourteenth Amendment PI Clause — not the Due Process Clause — expanded the constitutionally protected scope of the federal habeas privilege. The PI Clause yokes the habeas privilege to national citizenship, the rights of which neither the federal government nor states may abridge. And if, as I have argued, a federally protected habeas privilege requires a corresponding federal habeas power, then the PI Clause entitles state prisoners to a federal habeas forum.
The first-order question I answer here — whether the Constitution guarantees a state-prisoner privilege — is logically antecedent to second- and third-order questions about the privilege’s scope. Because the Constitution entitles state prisoners to a federal habeas forum, the legal community ought to hit reset on basic assumptions about Congressional power to restrict the habeas remedy, particularly in postconviction cases.
Wednesday, July 9, 2014
The LATimes released this notable editorial today, which states:
Last month President Obama announced that he was drafting an executive order prohibiting federal contractors — which employ about 20% of the American workforce — from discriminating on the basis of sexual orientation or gender identity. But now the president is being beseeched to exempt religious employers from the order. He should decline the invitation.
The planned executive order is a response to the failure of the House to follow the Senate's lead in approving the Employment Non-Discrimination Act, or ENDA, which bars discrimination against gay, lesbian and transgender people by public and private employers alike. Obama is following a well-established tradition of presidents who used federal contracting authority to compensate (to a limited extent) for Congress' inaction on civil rights.
But in a letter to the president, several religious leaders — including mega-church pastor Rick Warren, who delivered the invocation at Obama's first inauguration — have warned that an order that didn't contain a religious exemption would threaten "the common good, national unity and religious freedom." That is unholy hyperbole.
It's doubtful that a large number of agreements with religious organizations would be affected by Obama's order, because most federal transactions with such groups take the form of grants. Still, if a religious organization does choose to enter into a contract to provide services for the federal government, it shouldn't be allowed to discriminate in hiring on the basis of sexual orientation or gender identity, any more than it should be allowed to engage in racial or gender discrimination.
The signers of the letter to Obama suggest that an exemption in the executive order be modeled on language in the Senate's ENDA bill. That provision says ENDA wouldn't apply to religious organizations that are free under the 1964 Civil Rights Act to discriminate in favor of employees of their own faith. But, as we noted in a previous editorial, the provision concedes too much. There is a huge difference between a church preferring to hire members of its own denomination and refusing to hire gay or transgender people.
Nor does the 1st Amendment support an exemption of the kind Warren and the others are seeking. A church that believes homosexual conduct is a sin has a constitutional right to insist that its clergy and religious teachers share that view and live by it. That doesn't give the church a right to refuse to hire a gardener or cafeteria worker because he or she is gay.
That sort of discrimination is unjustified in any circumstance, but it's exponentially more objectionable when it is subsidized by the taxpayers. Obama should say no to the request for a religious exemption.
'The Hitchhiker's Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers Under the Heightened Factual Nexus Approach to Exclusion'
Over thirty years ago, the Supreme Court, in Rakas v. Illinois, made it abundantly clear that “mere passengers” do not have “standing” to contest the searches of the cars in which they are riding. However, the Court offered a glimmer of hope to passengers in California v. Brendlin, by holding that passengers, like drivers, are seized when the police effectuate a traffic stop. Theoretically, then, unlawfully seized passengers can seek suppression of the evidence found in the stopped vehicles as fruit, not of the search of the vehicle, but of their unlawful detentions. Three circuits, however, have expressly adopted a heightened factual nexus test in determining whether passengers can successfully move to suppress evidence discovered in cars that are initially stopped lawfully, but whose occupants are then unlawfully detained, for example, when the duration of the stop exceeds the stop’s lawful scope. The Sixth, Ninth, and Tenth Circuits utilize a counterfactual hypothetical, typically to reach a finding that because the passenger is unable to demonstrate that the evidence would not have been found but-for her and only her detention, the passenger fails to establish the causal relationship between the constitutional violation and the discovery of evidence necessary to trigger the exclusionary rule. These courts force the passenger defendant to prove the following unlikely scenario: that had she asked the police for permission to leave, the police would have permitted her not only to leave, but to take the car (not belonging to her) as well. This Article surveys the relevant case law in the circuits that have considered and either adopted or rejected this approach and argues that the heightened factual nexus approach is inconsistent with the Court’s holdings in Brendlin and its other decisions defining seizures, particularly with respect to automobile passengers. Further, this Article posits that the heightened factual nexus approach creates a no-win situation for passenger defendants, where the very fact of their unlawful detention, necessary for standing to seek suppression, seems to preclude their success in doing so. Further, this Article argues that the subjective motivations of officers who prolong a seizure beyond its lawful scope should be taken into account when making exclusionary rule determinations, and that the Court’s decision in Whren v. United States, holding that when a traffic stop is predicated on objective probable cause, the subjective motivations of the officer are irrelevant in determining the reasonableness of the stop, does not preclude such scrutiny of officer motives in this context. Finally, the Article seeks to illustrate the danger to FourthAmendment rights and values engendered in the heightened factual nexus approach by examining data on traffic stops and motions to suppress arising from such stops.