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Wednesday, May 14, 2014

Proponents of marriage equality celebrate Arkansas, Idaho decisions while awaiting ruling on Utah, Oklahoma same-sex marriage bans

The success of same-sex marriage proponents continued yesterday as U.S. District Magistrate Judge Candy Dale ruled that Idaho's same-sex marriage ban violated the constitutional rights of same-sex couples. According to the AP:


Supreme-court-protest"The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries," Dale wrote, saying same-sex couples in Idaho have been denied the economic, emotional and spiritual benefits of marriage.

 

"Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love," she wrote.

Of course, Idaho governor C.L. "Butch" Otter plans to appeal the decision, although the futility of such efforts appears evident. Judge Dale's decision is just the latest in a series of successful challenges to state laws banning same-sex marriage since the Supreme Court's decision in United States v. Windsor last summer. In Windsor, the Court held the federal government's definition of marriage under the Defense of Marriage Act (DOMA) as between a man and a woman denied equal protection of the laws to same-sex couples. After Arkansas's top court struck down its ban last Friday, 18 states and D.C. now legally recognize same-sex marriages. This number might soon increase, too. The Tenth Circuit is expected to issue its decision on the constitutionality of Utah's and Oklahoma's bans any day now, although uncertainty clouds expectations for the Fourth Circuit's pending decision as to Virginia's ban.

Meanwhile, advocates continue to raise challenges to laws against same-sex marriages. As The Salt Lake City Tribune's Marissa Lang recently reported:

As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage...

 

Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.

Even Alaska no longer can distinguish itself as the only state whose same-sex marriage ban remains unchallenged. Five same-sex couples filed suit yesterday to overturn the state's ban as a violation of the fundamental right to marry. 

CRL&P related posts:

May 14, 2014 in Equal Protection Clause, Same-sex marriage | Permalink | Comments (0)

Saturday, March 1, 2014

Arizona, Ohio "religious freedoms" bills not to be

On Wednesday, Arizona Governor Jan Brewer (R) vetoed the "religious freedoms" bill that many claimed would lead to discrimination against LGBT persons; and, in Ohio, the sponsors of bipartisan legislation similar to that in Arizona said they will withdraw it after similar criticisms arose, according to The Cleveland Plain Dealer's Robert Higgs. He wrote:

Opponents in Arizona, and here in Ohio, said the broad language of the pieces of legislation would give business owners a license to discriminate against people who do not match their religious beliefs, especially for people who are gay, lesbian, bisexual and transgender. That group has not been recognized yet as a protected class by U.S. courts.

 

The breadth of the legislation made it ripe for unintended uses, said Susan Becker, a law professor at Cleveland’s Marshall College of Law.

 

The bill would have allowed Ohioans to challenge state or local laws, ordinances and other policies on the grounds their "practice or observance of religion" was burdened. The government would then have to prove, using a standard of strict scrutiny, that the challenged law is necessary or crucial, for the law to be applied.

 

It also would have allowed those sued for discriminatory behavior to cite the law as a defense. Businesses denying services to gay customers could cite their religious beliefs that oppose same sex relationships as a defense, said Becker.

Opposition to such legislation appears quite strong, but The Atlantic's Peter Beinart thinks internal political pressure could be the important factor here. He claims Gov. Brewer vetoed Arizona's "religious freedoms" bill because the Republican power structure is becoming more vertical, writing:

Brewer faced pressure to sign the bill from below: from the local legislators and activists who passed it. But she ultimately succumbed to pressure from above: from national Republican leaders and their corporate allies, who fear looking complicit with homophobia at a time when homophobia is rapidly becoming a political and economic loser.

 

There’s been a lot of this kind of vertical wrangling in recent months. In Congress, House Majority Leader John Boehner has tried to push rank-and-file Republican members of congress to unconditionally raise the debt ceiling and support a path to legalization for illegal immigrants. Republican bigwigs have tried to prevent local Tea Partiers from mounting primary challenges that undermine the GOP’s chances of taking the senate. The Republican National Committee has published an “autopsy” of the 2012 presidential race that proposes giving the national party more control of the 2016 primary calendar and debate schedule so as to avoid another lengthy, nasty nomination fight that leaves the eventual nominee drained of cash and far out on an ideological limb.

Regardless, it will be interesting to see what forms future efforts to "protect religious freedoms" take.

Read Higg's full report here:

CRL&P related posts:

March 1, 2014 in Equal Protection Clause | Permalink | Comments (0)

Wednesday, December 11, 2013

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.

 

Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.

 

Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here

Some helpful law review articles:

CRL&P related reads:

December 11, 2013 in Equal Protection Clause, Right to Vote, Theories of Punishment | Permalink | Comments (0)

Friday, December 6, 2013

CRL&P Daily Reads: Dec. 6, 2013

Thursday, December 5, 2013

Democracy and renewed distrust: Equal protection and the evolving judicial conception of politics

The title of this post come from this article arguing that the Court has become less deferential towards legislative efforts to protect the equal protection rights of minorities. According to the author, this change is the result of both shifting views about the political power of minorities and an acceptance of public choice theory. Here's the abstract:

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

If this argument is correct, this shift towards a less deferemtial standard conflicts with its decision in Crawford v. Marion Co. Election Bd., in which the Court demonstrated incredible deference towards a state legislature's authority to enact election laws. 553 U.S. 181 (2008). In Crawford, even though it acknowledged that the state had not shown the existence of voter fraud, the Court accepted the state's explanation that the voter ID law was needed in order to prevent such fraud (even though opponents had argued that the law would negatively impact minorities). ("The only kind of voter fraud that [the law] addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indian at any time in its history."). Indeed, writing for the Court, Justice Stevens claimed that the justifications offered in support of the law were "valid" and "sufficiently strong" to uphold its constitutionality. 

CRL&P related posts:

December 5, 2013 in 14th Amendment, Election Law, Equal Protection Clause, Right to Vote, Voter ID | Permalink | Comments (0)

Monday, November 25, 2013

CRL&P Daily Reads: Nov. 25, 2013

Sunday, November 24, 2013

CRL&P Daily Reads: Nov. 24, 2013

Friday, November 22, 2013

Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty

The title of this post comes from this intriguing article challenging the current lack of safeguards against discrimination in death penalty proceedings. Here's the abstract:

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional. 

Death is different as a punishment. But does discrimination change from context to context? That is the message courts send when discrimination is judged differently based on the context, despite the United States Supreme Court’s “insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” No equivalent safeguards exist in criminal law outside of jury venire to protect against discrimination as there are in civil law. Congress and state legislatures have tried to pass legislation often called “Racial Justice Acts” to provide additional safeguards with little to no success. With the legislature’s lack of success in addressing the problem, the only opportunity to address discrimination claims may be judicially.

 

November 22, 2013 in 14th Amendment, Equal Protection Clause, Theories of Punishment | Permalink | Comments (0)

Friday, November 15, 2013

CRL&P Daily Reads: Nov. 15, 2013

Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.

NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*

Disabled man sues city under ADA for right to keep his service dog--a pit bull.

California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.

Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.

Victims call for legislation criminalizing revenge porn.

Jimmy Carter says the U.S. should abolish the death penalty.

* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:

Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.

 

November 15, 2013 in 14th Amendment, Civil Rights Litigation, Equal Protection Clause, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (3)

Wednesday, October 30, 2013

Should elderly judges be forced to retire?

In a few days, New Yorkers will vote on a referendum to amend the state constitution to raise the mandatory retirement age for some state judges. As The New York Times reports, "[I]t would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70."

Proponents argue that the mandatory retirement age was adopted at a time when life expectancy was lower, and they note that other state officials are not forced into retirement. Chief Judge Judith Kaye calls the age restriction "bad public policy" because it forces "experienced judges [to] leave the bench when they are at the top of their game." She also says that raising the retirement age will keep skilled judges on the bench, and that these judges can be used to alleviate the pressure on lower courts with considerable backups.

Opponents, however, claim that the measure is flawed because lower court judges are not subject to the increase, and lower courts are under the most stress. "It leaves out lower-court judges," reports The Times, and they "make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs."

Gov. Cuomo shares their concern, and his position has put him at odds with much of the state's legal establishment. But, the payoff might be worth it. As The Times observes:

If the amendment fails and he wins re-election next year, Mr. Cuomo will have a chance to replace four Republican judges in his second term, all appointed by Gov. George E. Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. The amendment would extend the terms of Judge Pigott and Judge Smith.

The governor would also be able to name a new chief judge to replace Judge Lippman, who turns 70 in May 2015 and has butted heads with Mr. Cuomo over the judiciary budget. Passage of the would allow Judge Lippman to serve until 2023. Judge Lippman denied he wanted to extend his own time in office.

The bill he first proposed to the legislature did not include the Court of Appeals for that reason, he said. It was the Senate Republicans, led by Senator Dean G. Skelos, who added the high court to the mix, legislative aides said.

The Supreme Court addressed the constitutionality of mandatory retirement laws in Gregory v. Ashcroft, 501 U.S. 452 (1991), in which it ruled inter alia that state judges are exempted from the Age Discrimination in Employment Act (ADEA). The question was whether state judges fall under the definition of "employee," which the ADEA says "shall not include...an appointee at the policy making level." Justice O'Connor authored the majority opinion, and she concluded:

We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does. Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state officials, "appointee on the policy making level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.

Justice Blackmun, joined by Justice Marshall, dissented by claiming that 1) the "structure and legislative history of the policymaker exclusion" inform the view that Congress did not intend for judges to be excluded; and, 2) that deference should be given to the EEOC's "reasonable construction" of the law.

The Court's decision was particularly interesting for its application of the Tenth Amendment and federalism concerns to invoke the plain statement rule, under which a federal law will be applied to state government activities only if Congress expressed a clear intent that the law have that effect. The Court concluded that Congress did not intend for the ADEA to apply to judges. Thus, states retained the authority to determine the qualifications for state judges.

Today, thirty-two states place mandatory-retirement restrictions upon at least some judges. Next week, New Yorkers will determine whether to amend the current restriction, but they appear unready to take that step. According to one poll from the Siena College Research Institute, New Yorkers oppose the amendment by a wide margin--71 to 27 percent.

While political realities render opposition understandable, New York's age restriction on some judges seems rather outdated. C.J. Kaye's claim that "the age limit has deprived the New York courts of great legal minds in their prime" might go too far, but judges over 70 likely have some good years left. If the amendment were to pass, the former restriction would be forgotten to history as fearful projections are usually mistaken ones.

While we wait for a decision, CRL&P knows of at least one state judge who ought to consider retirement.

October 30, 2013 in 14th Amendment, Equal Protection Clause | Permalink | Comments (0)

Friday, October 25, 2013

CRL&P Daily Reads: Oct. 25, 2013

Gun-rights advocates are planning to start collecting signatures in an attempt to recall California lawmakers who supported proposed gun regulations.

Greensborough police captain's civil rights lawsuit alleging discrimination by PD moved to federal court.

American Prospect argues that the Surpreme Court's reliance on two post-Reconstruction decisions have limited available remedies to victims of sexual assualt.

ACLU files amicus brief on behalf of secure email service provider facing contempt charges for failure to cooperate with U.S. government.

N.C. Attorney General and potential gubernatorial candidate speaks out on new voter ID law.

Homelessness among American K-12 students is growing.

 

October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Civil Rights Litigation, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Right to Vote | Permalink | Comments (0)

Upcoming article draws attention to largely overlooked Supreme Court civil rights decision

In his upcoming article Snubbed Landmar: How United States v. Cruickshank Truncated the Reconsturction Amendments and Racialized Class Politics in America, Professor James Gray Pope argues that traditional narratives about the development of civil rights jurisprudence have failed to account for the precedential case that started it all: United States v. Cruikshank, 92 U.S. 546 (1876). According to Pope, the legal academy has created a "tale of progress" largely by ignoring Cruikshank's restriction on the Fourteenth Amendment's mandate to federal actions; its tailoring of the privileges and immunities clause; and, its limitation o the available protection of the Fourteenth and Fifteenth Amendments to racial minorities. "The results," argues Pope, "have been obfuscation and distortion." In fact, Cruikshank stymied "cross-racial movements" that might have led to a more promising futures. In the end, he urges: "It is long past time for this jurisprudentially inventive, politically pivotal, and socially schismatic case to take its proper place at the heart of the American constitutional narrative and pedagogical canon."

For those interested Supreme Court and civil rights history, this article provides valuable and intruiging insights that are well worth the time.

CRL&P related posts:

October 25, 2013 in 14th Amendment, Civil Rights Act, Civil Rights History, Election Law, Equal Protection Clause, Right to Vote | Permalink | Comments (1)

CRL&P Morning Reads: Oct. 25, 2013

Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.

NRO's Reihan Salam says political reformers should focus on increasing party power.

Time raises questions about online reporting of sexual abuse.

Ohio Secretary of State says there's a need to cut down early voting hours.

Ohioans could be turning to Michigan abortion clinics as local ones close.

Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.

And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.

 

October 25, 2013 in 14th Amendment, Abortion, Election Law, Equal Protection Clause, Fourth Amendment, Gun Policy, Reasonableness, Schools, Web/Tech | Permalink | Comments (0)