Friday, June 15, 2012
The Supreme Court of British Columbia today issued its lengthy opinion in Carter v. Canada (Attorney General), authored by Justice Lynn Smith, a former dean at the Faculty of Law of the University of British Columbia. Smith's opinion concluded that the assisted suicide prohibition in the Canadian Criminal Code infringes sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
Section 7 - - - " Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15(1) - - - "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" are often be analogized to due process and equal protection by those trained in the US constitutional system.
However, Judge Smith made little use of US constitutional precedent and did not give much credence to the Canadian government's reliance on Washington v. Glucksberg, in which the US Supreme Court rejected a constitutional challenge to an assisted suicide ban. [¶ 1118 of Opinion]. Instead, Judge Smith extensively canvassed the state of assisted suicide laws in US states and other nations, producing a scholarly survey and discussion of the issues. Insisting that "context is vital," Judge Smith's decision is nuanced and careful.
to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who:
(a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and
(b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.
[¶ 1393]. For some, this type of decision is reminiscient of legislation, but the declarations are suspended for one year allowing Parliament time to correct the constitutional problems. Yet defering the opinion's effective date for a year has obvious costs given the court's own discussion. For plaintiff Gloria Taylor the plaintiffs had sought an "immediate constitutional exemption that would allow her to avail herself of a physician-assisted death at such time and subject to such terms and conditions that the Court allows or requires." Judge Smith's opinion grants such an exemption and sets out its terms.
Saturday, April 28, 2012
Saturday Evening Review: The Missing Dissenting Opinion in Hosanna-Tabor by Professor Leslie Griffin
As a rule, there is something unsatisfying about a constitutional law opinion from the United States Supreme Court without a well-reasoned and scholarly dissent.
The Court's opinion earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is no exception to that rule, despite a short concurring opinion by Justice Thomas and the much longer concurring opinion by Justice Alito in which Justice Kagan joined. The Court in Hosanna-Tabor recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws, including the ADA.
Professor Leslie Griffin supplies the necessary countervailing arguments in her forthcoming article The Sins of Hosanna-Tabor, available on ssrn. Professor Griffin (pictured left) who co-authored the Brief of Amici Curiae Law and Religion Professors in Support of Respondents and who appeared at the AALS Conference panel discussing the case was well-situated to provide a quick and thorough analysis, with excellent research that is mostly absent from the Court's opinions.
Griffin's critique of the case is insightful and pointed, discussing the factual context and reorienting it as a retaliation case, providing some useful historical perspectives, and seeking to reconcile the 1990 case of Employment Division v. Smith. As Griffin argues, after Hosanna-Tabor, "Individual religious believers are subject to the rule of Smith, while institutions are not. Institutional religious freedom allows the firing of ministerial employees for any reasons, even non-religious ones." This does seem incoherent, although as Griffin notes, the "rule always favors employers."
The broad insulation of religious employers from anti-discrimination laws for anyone who is deemed a minister is the import of Hosanna-Tabor. While the Court declined to decide exactly who is a minister, the implication seems to be that this determination must rest on the sincere belief of the employer, lest there be Establishment Clause issues. The Court also declined to express a view "on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Griffin uses her in depth knowledge of the area to explore the implications of this opening.
Griffin's article is worth reading for anyone teaching or writing about Hosanna-Tabor and should certainly be excerpted in Casebooks. It's an important dissenting opinion.
Thursday, April 19, 2012
The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court. Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.
Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003). As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising. Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing “the pervasive sex-role stereotype that caring for family members is women’s work.”
Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA. She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).
And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."
One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor. O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.
But one might also recall that before Justice Alito, there was nominee Harriet Miers. One wonders how she might have voted.
[image: WWII government poster via]
April 19, 2012 in Courts and Judging, Current Affairs, Disability, Eleventh Amendment, Family, Federalism, Fourth Amendment, Gender, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 1, 2012
Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse" violates the Fifth Amendment's equal protection component. Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.
This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.
(h/t Jen Hogg)
Thursday, December 15, 2011
White House Proposes Rules on Domestic Workers to "Overrule" Long Island Health Care at Home v. Coke
Today, President Obama announced proposed rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act "to more clearly define the tasks that may be performed by an exempt companion" and " to limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household."
This latter provision regarding home health care workers employed by contractors would change the result of Long Island Care at Home v. Coke, decided by the Court in 2007. As the President's announcement notes, the issue of FLSA coverage
gained national attention when, in 2007, the Supreme Court ruled that Evelyn Coke, a home care worker who worked as much as 70 hours a week, was not entitled to overtime pay under existing regulations. Thus, any change to these rules requires action by Congress or the Department of Labor. There have been bills introduced in numerous Congresses to address this issue (including legislation that then-Senator Obama co-sponsored in the 110th Congress) but these bills have not moved forward. The Department of Labor is therefore now proposing regulations to change these rules and ensure that home care workers like Evelyn Coke will have basic wage protections.
Interestingly, Coke was a unanimous opinion that provoked little controversy when it was rendered.
I've elsewhere discussed Evelyn Coke in the context of legal theory regarding "servants." At the oral argument in Coke, which Evelyn Coke attended in a wheelchair, Justice Scalia joked regarding the meaning of "footmen" and Justice Brennan expressed concern for the families who needed home health care workers, but not for the workers themselves. Evelyn Coke died in 2009.
If the regulations are adopted, they would essentially "overrule" the Court's opinion, based as it was on regulatory and statutory construction. Thus, the issue is of general interest regarding separation of powers. The development is also of interest to ConLawProfs working on social change and poverty issues.
[image Library of Congress via]
Sunday, December 4, 2011
Judge Wilken wrote that the proposed notices regarding the reductions "raise serious questions of violations of the federal Due Process Clause," as well as violations of several federal statutory schemes by " by placing IHSS recipients at imminent risk of unnecessary and unwanted out-of-home placement, including in institutions such as nursing homes, board and care facilities, and psychiatric hospitals; by discriminating on the basis of type of disability; and by using methods of administration that will exclude individuals with disabilities from IHSS."
Judge Wilken concluded that the "balance of equities strongly favors Plaintiffs because Defendants’ only interest is fiscal, whereas the plaintiff class faces life or death consequences." She set a briefing schedule, with a hearing most likely to be held on December 15.
An excellent discussion contextualizing the TRO by Marty Omoto of the California Disability Community Action Network is available here.
[image: Disabled professional surfer Christiaan "Otter" Bailey of Santa Cruz, Ca. via]
Wednesday, June 15, 2011
"Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System," is the just published "jot" by Dean Kim Brooks (pictured right) of Dalhousie University in Canada.
And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship." However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months." Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship."
With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected. It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots). Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School. They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship. The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.
Monday, April 4, 2011
On the anniversary of the 1968 assassination of Martin Luther King, footnote 24 of Justice Thurgood Marshall’s concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) is appropriate. Marshall's footnote is condensation of equal protection theory and an argument for judicial consideration of history and experience. It is also an illumination of footnote 4 of Carolene Products. Marshall (pictured) wrote:
No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante, at 442-443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U.S. 144, 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)
Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 472-473 (1985) (Marshall, J. concurring and dissenting in part).
Marshall's discussion of the social integration of minors and the lack of prejudice against the young might be worth further discussion.
(Suggested by Ed Campanelli)
Wednesday, August 18, 2010
Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.
The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]." The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.
Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).
Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition). Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary. (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.") As a conditional spending requirement, there is no Tenth Amendment problem. See South Dakota v. Dole (stating the requirements for federal conditional spending programs).
But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority. The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.
August 18, 2010 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Reconstruction Era Amendments, Spending Clause | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 7, 2010
Georgia District Judge Finds Georgia Legislature Violated Equal Protection Clause by Terminating a Transgendered Employee
In an extensive opinion, United States District Judge Richard Story of the Northern District of Georgia has granted summary judgment in favor of a former employee of the Georgia General Assembly on the basis of the Equal Protection Clause of the Fourteenth Amendment.
The plaintiff, Vandiver Elizabeth Glenn, formerly known as Glenn Morrison, was an editor at the Georgia General Assembly's Office of Legislative Counsel, but was terminated when she conveyed her intent to transition from a man to a woman.
The District Judge applied intermediate scrutiny, holding that "while transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex," and citing, after extensive analysis, to the Title VII case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Opinion at 30-31). The Judge therefore held that intermediate scrutiny applied:
Defendant must “demonstrate an ‘exceedingly persuasive justification’” for her
termination. Defendant may only satisfy the burden of intermediate scrutiny by “showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’”
Opinion at 36 (citations omitted). However, the Judge noted that the Defendant did not argue that his actions survived intermediate scrutiny, but based its entire argument on its contention that a sex-based classification analysis was not appropriate.
The Judge nevertheless analyzed the Defendant's arguments made, including its asserted interest that terminating the employee was "legitimate" to prevent future litigation, especially regarding restrooms. The Judge found this was not an exceedingly persuasive justification. The Judge also considered the Defendant's cursory claim that the Georgia OLC needed to have the confidence of the state legislators of Georgia, concluding:
To the extent that the record contains any evidence that legislators would lose “confidence” in the OLC, it is in the form of [ a ] statement that some legislators would believe that Glenn’s gender transition was immoral, unnatural, and “ultraliberal.” Even if this were the case, avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest.
Opinion at 42.
The importance of intermediate scrutiny - - - and the Defendant's failure to adequately argue the issue - - - is highlighted by the Judge's finding that the Plaintiff's "Gender Identity Disorder" claim merited only rational basis scrutiny and survived the constitutional challenge.
ConLawProfs looking for an example - - - or counter-example - - - of argument methodology in equal protection doctrine should find this Opinion especially interesting.
Friday, April 16, 2010
The Presidential Memorandum on Hospital Visitation seeks to insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected. Obama noted that these problems have "uniquely affected" "gay and lesbian Americans."The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding.
Establishing conditions for receiving federal funds is nothing new, of course.
Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions.
Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools. The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.
April 16, 2010 in Current Affairs, Disability, Executive Authority, Family, Federalism, Medical Decisions, Reproductive Rights, Sexual Orientation, Sexuality, Spending Clause | Permalink | Comments (0) | TrackBack (0)
Saturday, September 26, 2009
A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five.
This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law.
Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect." She contends that some state actions
limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state.
Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse." (at 1094). She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological." She continues:
Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment. Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.
Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws. She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108). (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly). She suggests that a better model is domestic violence. Id. (Although it might be argued that violence against women policies have not always accorded women full constitutional status).
September 26, 2009 in Disability, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Privacy, Scholarship, Sexuality | Permalink | Comments (0) | TrackBack (0)