October 10, 2009
The Constitutional "Gay Agenda": Robson's Saturday Evening Review
The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda." Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.
Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement. Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war," "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run."
In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here, Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices." In the context of the application of Loving to same-sex marriage arguments, Adler writes:
Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times. For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict. A formal equality agenda can eclipse or even undermine other potentially worthy goals. . . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality. While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.
Instead, Adler posits several law reform agendas. As a central example, she uses homeless adolescents. By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.
This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.
October 10, 2009 in Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Profiles in Con Law Teaching, Scholarship, Sexual Orientation, Sexuality, Teaching Tips | Permalink | Comments (0) | TrackBack
Matthew Shepard Act Passes House of Representatives
The Act, named for Matthew Shepard (pictured below),
would authorize federal assistance to states and localities in prosecuting hate crimes and would itself criminalize acts of violence "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person" under these circumstances:
`(i) the conduct occurs during the course of, or as the result of, the travel of the defendant or the victim--
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct;
`(iii) in connection with the conduct, the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or
`(iv) the conduct --
`(I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or
(II) otherwise affects interstate or foreign commerce.
The Congressional power at issue is obviously the Commerce Clause with the following supporting findings:
(6) Such violence substantially affects interstate commerce in many ways, including the following:
(A) The movement of members of targeted groups is impeded, and members of such groups are forced to move across State lines to escape the incidence or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and services, obtaining or sustaining employment, or participating in other commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate commerce.
Yet the Congressional findings also include references to the 13th, 14th, and 15th Amendments in relation to "race, color, or ancestry."
A defendant convicted under this federal act would most likely attack the constitutionality of the statute as lacking Congressional power as in the Violence Against Women Act in United States v. Morrison, 529 US 598 (2000) and the Gun Free Schools Act in United States v. Lopez, 514 US 549 (1995).
Meanwhile, the Matthew Shepard Act might provide an excellent in-class exercise reviewing Congressional power under Commerce Clause and Section 5 [of the the Fourteenth Amendment].
October 9, 2009
Hot Off the Presses
This was intended to be a bi-weekly feature, but the ravages of the illness have caused a delay in publication. However, the feature (and its author) are now healthy and ready to go. So, without further adieu, here is this week's installment.
1. New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause by William Araiza, Brooklyn Law School.
What it's about:
This article considers the congruence and proportionality test set forth by the Court in City of Boerne v. Flores. Araiza contends that "the Court has seriously misapplied the congruence and proportionality test by treating its own equal protection jurisprudence as a baseline for performing the congruence and proportionality analysis." Professor Araiza offers three current and proposed statutes as an example. The statutes concern topics - such as sexual orientation - that usually merit only rational basis review under the Court's current equal protection jurisprudence. For example, Araiza notes that a section 5 challenge to the proposed Employment Non-Discrmination Act would be problematic as the equal protection jurisprudence in this area "is hardly straightforward and still evolving. The Court has never held that gays and lesbians are a suspect class, but nor has it ever concluded that they are not. . . . It is anything but clear how such a jurisprudence could guide the Court’s analysis of whether ENDA is congruent and proportional to the Court’s own view of the constitutional problem presented by sexual orientation discrimination." Araiza contrasts this confusion with the settled jurisprudence regarding age discrimination that the Court considered in Kimel. Araiza then proposes a new approach under which a court would "first determine the extent to which the relevant judicial doctrine reflects true constitutional meaning with regard to the subject area covered by the statute. That meaning would then provide the baseline against which the statute could be tested for congruence and proportionality." He then applies the new standard to the prior examples to illustrate its advantages over the current system.Why you should read it:
We just finished learning the Eleventh Amendment in my Con Law class. Of course, cases such as City of Boerne are cirtical to that analysis, as section five is the only power Congress can use to abrograte Eleventh Amendment immunity after Seminole Tribe. For professors and experts, it's a good refresher and an interesting look at what - in my opinion - Araiza has correctly identified as a jurisprudential hole in the Court's post-Boerne cases. Students will enjoy the article's overview of the issues as well.
Where you can find it:
2. Judicial Independence and Retention Elections, by Brandice Canes-Wrone (Princeton), Tom S. Clark (Emory), and Jee-Kwang Park (Princeton).
What it's about:
This paper by political scientists examines a question of great import to constitutional scholars - do judicial elections affect the independence of the judiciary? The authors note that the previous literature on the topic seems to suggest that retention elections may "increase judicial accountability." The authors examined judges' votes in abortion cases in jurisdictions where judges are subject to retention votes. The votes were then cross-referenced with public opinion polls on abortion. Their conclusion - "Retention elections encourages judges to be responsive to public opinion on hot button issues." The conlcusion seemed to be particularly true in jurisdictions with non-partisan election systems. The authors suggest that with no party labels to guide the voters, judges look to public opinion as a way to guage their retention prospects.
Why you should read it:
Read it because the issue is very timely and presents new information. Justice O'Connor recently stated her belief that judicial elections do great damage to judicial independence. (We have previously discussed her views here.) However, Justice O'Connor's view of reform would apparently include some type of retention election. I'm sure the view wof Justice O'Connor and others favoring that approach was based on older data that showed less influence in retention elections. However, with this new information, perhaps new solutions should be generated.
Where you can find it:(H/T to the Legal Theory Blog.)
That's it for this installment. Also, if you know of any articles that you think might merit a feature here, by all means, please send them along!
Supreme Court on C-Span
C-Span this week is posting a series of TV programs on the Supreme Court on its web-site. Blog readers may be particularly interested in Thursday's program on Attorneys Who Have Argued Before the Court, including interviews with Drew Days III, President Clinton's SG from 1993-1996, and former Supreme Court clerk and appellate attorney Maureen Mahoney. Readers will also be interested in interviews with the Justices, to be posted this weekend.
Other programs include The Supreme Court: Home to America's Highest Court; Journalists on the Workings of the Supreme Court; Clerk of the Supreme Court William Suter; and Historians on the Supreme Court Building.
October 8, 2009
Oklahoma Abortion statute - and state con law challenge
A new Oklahoma statute regulating abortion, formerly OK HB 1595, goes into effect November 1
The law requires publication of an "Annual Abortion Report" and forces doctors to give details about their patients under threat of criminal sanctions and loss of their medical license. The details include:
Date of abortion
County in which abortion performed
Age of mother
Marital status of mother (married, divorced, separated, widowed, or never married)
Race of mother
Years of education of mother (specify highest year completed)
State or foreign country of residence of mother
Total number of previous pregnancies of the mother - - - Live Births; Miscarriages; Induced Abortions.
The law also changed several statutory definitions and banned abortions sought "solely on account of the sex of the unborn child."
The gender of judging implicates constitutional as well as "rule of law" concerns. A new article, Judging Women, posted on ssrn has been garnering attention. The study comparing male and female judges provides an empirical perspective:
"Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts."
Yet judicial "output" and quantitative measure aren't the only approach. There is also so-called anecdotal evidence of differences between male and female judges. This snippet, reported yesterday, from an en banc oral argument in the Eleventh Circuit on the issue of whether the frequent but non-severe harassment was sufficiently pervasive to survive summary judgment in a sexual harassment case, is illustrative:
When Judge Edward E. Carnes asked a lawyer about a hypothetical workplace where derogatory, sex-specific terms for men were used in equal measure with derogatory terms for women, Judge Rosemary Barkett raised a problem.
"I can't think of many words that are derogatory toward men," she said. Barkett suggested "bastard" and "prick," saying, "that's the only two I can come up with."
The en banc court is reviewing the panel opinion, Reeves v. C.H. Robinson Worldwide, Inc. 525 F.3d 1139 (11th Cir. 2008), in which the court found that the evidence was sufficient to survive a summary judgment motion in a Title VII claim.
Rosemary Barkett (pictured right) is one of the two women judges of the eleven active judges on the Eleventh Circuit. According to a National Women's Law Center report earlier this year,
Forty-seven of the 164 active judges currently sitting on the thirteen federal courts of appeal are female (almost 29%). When broken down by circuit, women’s representation on several of these individual courts is significantly lower than on the courts of appeals overall:
The Eighth Circuit has only one female judge among its eleven members, who is the only woman ever to have been appointed to that court. Women are also vastly underrepresented on the Tenth Circuit (where they make up about 17 percent of judges), First Circuit (20 percent), and the Federal Circuit (25 percent).
Around 25 percent of United States district (or trial) court judges were women in 2008.
Given that the federal courts decide the vast majority of constitutional law cases (with the United States Supreme Court's certiorari rate at 4% for both federal and state courts in 2008), it does seem that there might be gender imbalance in constitutional law adjudication.
October 7, 2009
Do White House Czars Violate the Appointments Clause?
The Senate Judiciary Committee Subcommittee on the Constitution yesterday held its hearing on the constitutionality of White House "czars"--an issue that has gained increased popular attention since Glenn Beck published his "List of Obama's Czars" in August. (The White House responded here.) Senator Cornyn (R-TX) may have stated the objections to czars most clearly:
First, it seems that some of President Obama's czars may wield a measure of authority usually reserved to principal officers of the United States. In particular, some appear to exercise significant authority and have broad terms of duty, jurisdiction, and tenure. See Morrison v. Olson. If these czars are principal officers, they must be subject to Senate confirmation as required by the Constitution.
Second, even if none of the czars are principal officers, their ability to exercise decision-making authority absent congressional oversight is troubling.
Cornyn quoted Senator Byrd's (D-WV) February 2009 letter to President Obama cautioning that a proliferation of presidential assistants and advisers can lead (and has led) to accountability and oversight problems:
The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials. They have even limited access to the president by his own cabinet members. As presidential assistants and advisers, these White House staffers are not accountable for their actions to the Congress, to cabinet officials, and to virtually anyone but the president.
It's easy to see how badly designed czarships or rogue czars might blur lines of authority, create oversight challenges for Congress, and even present management problems for an administration. But do Obama's czars violate the Appointments Clause? Almost certainly not.
The Appointments Clause, Art. II, Sec. 2, cl. 2, states that the President
shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone . . .
The Office of Legal Counsel opined, "consistent with and expand[ing] on Buckley [v. Valeo]," in 2007 (during the Bush administration) that a position is an office for Appointments Clause purposes if "(1) it is invested by legal authority with a portion of the sovereign powers of the federal Government, and (2) it is 'continuing.'"
Obama's czars do not meet this standard. They by and large appear to be presidential advisers--and not "invested by legal authority with a portion of the sovereign powers of the federal Government." (This is the White House position, as articulated by Greg Craig in his recent letter to Senator Feingold (D-WI).)
But even if they are "inferior Officers," see Edmond v. United States, their appointment under 5 U.S.C. Sec. 105 appears to satisfy the Appointments Clause. That section authorizes presidential employment of employees in the White House "without regard to any other provision of law regulating the employment or compensation of persons in the Government service."
(Nobody appears to be seriously arguing that any czars are principal officers, e.g., cabinet secretaries, that are also not subject to Senate confirmation. See Feingold's statement for a helpful roadmap on czar types.)
If there's a serious, principled objection to White House czars, it's not based on the Appointments Clause.
October 6, 2009
The Civil Right to Counsel in Foreclosures, Termination of Parental Rights
The Brennan Center for Justice (NYU) today issued an outstanding report on the lack of legal representation for those facing foreclosures. (I previously posted on this issue here.) The report, titled Foreclosures: A Crisis in Legal Representation, offers a sobering look at this critical problem:
In Connecticut, over 60 percent of defendants facing property foreclosure in 2007-08 did not have counsel.
In New York, 84 percent of defendants in proceedings in Queens County involving foreclosures on "subprime," "high cost" or "non-traditional" mortgages (which are mortgages disproportionately targeted to low-income and minority homeowners) proceeded without full legal representation. In Richmond County (Staten Island), 91 percent of such defendants were unrepresented, and in Nassau County, 92 percent were unrepresented.
In Stark County, Ohio, heavily impacted by foreclosures, data suggests that 86 percent of defendants facing property foreclosures did not have counsel in 2008.
The report argues that "[u]nless and until the foreclosure process and laws are simplified to the point where legal counsel is not necessary, each homeowner facing foreclosure should be provided with an opportunity to consult with a trained counselor and then to receive fuller representation by a lawyer where necessary to ensure just and fair proceedings."
Such a civil right to counsel may not be far off. The Supreme Court yesterday took the exceedingly unusual step of asking the Texas Solicitor General for his views on a civil right to counsel case coming out of that state. The case, Rhine v. Deaton, involves a biological mother's private custody dispute with temporary foster parents. The Texas courts denied appointed counsel to the mother, and she filed for Supreme Court review. The parties have filed their cert. briefs, and the Court invited the Texas SG to provide his views.
I posted an analysis of the case this summer, suggesting that the mother faces a major hurdle in Lassiter v. Department of Social Services, a 1981 case denying a right to counsel for a poor mother in similar circumstances. The Court in that case used the three-factor procedural due process balancing test in Mathews v. Eldridge and weighed the balance against a newly discovered presumption against appointed counsel in cases where physical liberty is not at stake. (A claimed right to counsel in foreclosure cases would face the same burden under Fourteenth Amendment Due Process. Some litigants have seen success, however, using state constitutional provisions. Rhine's case comes up under the Fourteenth Amendment.)
M.L.B. v. S.L.J., a 1996 case involving a poor mother's ability to appeal an order terminating her parental rights, may have partially eroded Lassiter's foundations--or at least it may have given plaintiffs a new set of constitutional tools to work with. The Court in that case held that the mother had a right under Equal Protection and Due Process to appeal the order, even though she couldn't pay the appellate fees. Unlike Lassiter, M.L.B. thus wasn't tethered only to procedural due process. It gives litigants much more to work with. (As I argue here and here, it gives litigants very much more.)
The Court's consideration of Rhine suggests that it may be willing to reconsider the Lassiter analysis and its groundless presumption in light of M.L.B. It's not clear what the Court seeks from the Texas SG, but it may be seeking more information on the procedural complexities in Texas termination-of-parental rights proceedings--information that goes directly to one of the Mathews factors and would be relevant to an M.L.B.-type analysis.
This is one to watch.
Judicial Nominations for the Federal Courts
From a White House Press Release:
Today, President Obama nominated Judge Denny Chin for a seat on the United States Court of Appeals for the Second Circuit and Judge O. Rogeriee Thompson for a seat on the United States Court of Appeals for the First Circuit. Judge Chin currently serves as a U.S. District Court Judge for the Southern District of New York. Judge Thompson currently serves as an Associate Justice on the Rhode Island Superior Court.
but there is some belief that Obama needs to "pick up the pace." As the Alliance for Justice reports in its factsheet, "As of September 15th, 2009, President Obama has nominated judges for 8 of 21 vacant circuit courts of appeal seats," and "nominated judges for 9 of 72 vacant district court seats." This is compared with George W. Bush on September 15, 2001: 23 nominations for 34 vacant circuit court seats, and 30 of 81 vacant district court seats. As Alliance for Justice calculates: On the Circuit Court level, the discrepancy in nomination rates between President Bush and President Obama is 23 to 8, or a difference of 68% to 38%; and on the district court level, the discrepancy in nomination rates between President Bush and President Obama is 30 to 9, or a difference of 37% to 13%.
Don't Ask, Don't Tell - Updates
Last week's Saturday Night Live skit noting that Obama has failed to deliver repealing "don't ask, don't tell," DADT (as well as other initiatives) has been getting some press, such as in WaPo here and Alex Koppleman on Salon here.
Yesterday, New York's junior Senator Kirsten Gillibrand argued in Politico here that the "right time" is "now" to repeal DADT. She stated that Senate hearings will soon be held on DADT, the first hearings in sixteen years.
The House of Representatives Bill, HR 1283, is entitled the "Military Readiness Enhancement Act of 2009." Introduced last March, it would "amend title 10, United States Code, to enhance the readiness of the Armed Forces by replacing the current policy concerning homosexuality in the Armed Forces, referred to as `Don't Ask, Don't Tell', with a policy of nondiscrimination on the basis of sexual orientation."
A stimulating 90 minute panel discussion on the policy and bill is available as video and MP3 on the ACS website here. Virtually missing from the panel presentation (and panelists), however, was the gendered perspective, see here.
October 5, 2009
Happy First Monday!
Today marks the first Monday of the new Supreme Court term. In recognition of this day, here is a list of stories focusing on the Supreme Court.
This term marks the first term for the Court's newest member, Justice Sonia Sotomayor. Last week, Washington Post experts discussed the potential changes the new justice might bring. Those that predicted Justice Sotomayor to be active were proven right as reports of her first day indicate she will be an active participant in Court proceedings.
Of course, Justice Sotomayor's tenure is historic as she is the first Latina and only the third woman to serve on the Court. This lead to further reconsideration of a question posed during Justice Sotomayor's confirmation hearings - Do women make better judges than men? Law Professors Stephen Choi, Mitu Gulati and Eric Posner and doctoral candidate Mirya Holman discussed their recent work on this subject on Slate.com. Their conclusion? Desipte the fact that female jurists tend to come from a "shallower" applicant pool, male and female judges had similar quality rankings. (The Slate article also links to their full article.)
Our final Court story has practical significance as well. The ABA Journal has reported that after the last five justices were seated, the number of cases heard by the Court has dropped precipitously. In fact, the Court's docket has dropped nearly fifty percent in the last two decades. Today's New York Times carried a story confirming this conclusion. The NYT reported that just this term, the Court declined to hear 2,000 cases. The court's shinking docket raises several questions. What happens when the Court does not step into the void? Are some issues best served by allowing the Courts of Appeals or state courts to serve as the final arbiters? Or, does the Court's refusal to hear cases on certain issues - including the 'Choose Life' license plates, a perrenial cert denial favorite - create legal confusion. Are litigants adversely impacted if the Supreme Court does not hear their claims? All these questions and more should be considered by scholars and the public alike, particularly if current trends persist.
As always, we will continue to bring you the latest information on constitional law from the Supreme Court and elsewhere throughout the 2009-10 term. We hope you will continue to enjoy our coverage.
White House Sends Mixed Signals on Government Transparency
The Obama administration today launched a new version of the Federal Register designed to "give the public unprecedented access to the federal decision-making process, a major goal set out by President Obama in his Open Government initiative." The new format for the Fed Reg, available at the GPO web-site, allows easier browsing, organizing, and searching. Check it out; it's quite an improvement.
At the same time, the New York Times today editorialized that the White House is proposing revisions to legislation that would "weaken protections against forcing reporters to reveal their sources." The NYT:
As president, Mr. Obama has been progressively more protective of executive powers in such sensitive areas as state secrets and detainee policy. It's time for him to recall that in winning the White House, he spoke vigorously in favor of a shield law that trusts the judiciary to settle disclosure conflicts. The latest hedging from the White House does not deliver on his promise for a new era of openness.
Souter's Classic Traits, Sotomayor's Classic Traits
Paul Baier, the George M. Armstrong, Jr., Professor of Law at Louisia State University, wrote a thoughtful essay in August 14 New Hampshire Bar News surveying some of Justice Sotomayor's Second Circuit cases and comparing her judicial traits to those of Justice Souter (and to those of Souter's predecessor on the New Hampshire Supreme Court, Justice Duncan). Here's a taste:
Of Duncan, David Souter said, "He was a great judge because he saw beyond records and articulated premises, to litigants and to the sources of a court's strength to do right by litigants, whatever the right might be. He took the long view, even when the litigants were not the most sympathetic and even when a majority in his own court were, in his judgment, wrong." So too, Sotomayor.
This essay is a valuable contribution to the sometimes overgeneralized comparisons between Souter and Sotomayor as merely two moderate liberals. Take a look.
October 4, 2009
Obama's Challenges at Guantanamo Bay
The New York Times today ran an excellent story by Scott Shane reviewing the challenges that the Obama administration faces in closing Guantanamo Bay and transferring or otherwise dealing with the remaining detainees, especially the Yemenis.
The story highlights the case of Alla Ali Bin Ali Ahmed, a Yemeni detainee ordered released earlier this year, on May 11, in his habeas case by Judge Gladys Kessler (D.D.C.). After exploring options, the government finally complied with Judge Kessler's order and transferred Mr. Ahmed back to Yemen just last weekend.
The problem with the Yemenis is by now is familiar--it's very similar to the problem the government faced with the Uighurs (who were eventually transferred out). The government doesn't want to transfer them back to Yemen, for fear that they would fall in with Al Qaeda. (The government didn't want to transfer the Uighurs back to China, for fear that they would be persecuted or killed.) But the government can't easily find a third country to take them; and transfer to, or trial in, the U.S. is a political non-starter. Trial in the U.S. is also a legal non-starter, as evidence is often thin or obtained by techniques that would make it inadmissible in court. Just like the Uighurs, some of the Yemenis are considered dangerous by the government only because of their treatment during detention (and not because of their alleged terrorist activities or association with terrorists).
Judge Kessler's frustration with the government's delays in the Ahmed case is nothing new, either. We've seen even greater frustration by Judge Huvelle (D.D.C.) with the government's shenanigans in the Jawad case. Like Ahmed, the government eventually transferred Jawad back home.
The Obama administration might have had an easier time with detainees if they received proper treatment and appropriate opportunities to challenge their detention at Guantanamo, or Article III trials in the U.S., from the beginning.