Constitutional Law Prof Blog

The Constitutionality of Sex-Segregated Education Challenged in Lawsuit Against Middle School

A complaint filed by the ACLU in Doe v. Wood County Board of Education argues that the mandated sex-segregated education practices of Van Devender Middle School in Parkersburg, West Virginia violate the Fourteenth Amendment's Equal Protection Clause as well as Title IX. 

The complaint alleges not only that the school separates children by gender, but that the educational practices in the sex-segregated classrooms are different.  This is based on teacher-training that posits the differences between children based upon sex.  Girls do not like stress; boys do.  Girls like warmer rooms; boys cooler.  Girls like to be face-to-face; boys learn better in rows.  Girls learn better when their movement is minimized and their rooms are darker; boys "need" to move and have light.

But despite the school's motto - - - "where gender matters" - - - the complaint makes allegations that gender should not be the only thing that matters.  For example:

Anne Doe is legally blind and has difficulty reading in the girls’ classroom, which is kept dimmer than the boys’ classroom. Anne would benefit from brighter lights to enable her to read more easily during class, but she has not been permitted that option. When Anne asked her teachers to brighten the lights to accommodate her vision problems, her teachers refused and told her to move closer to the window.

The complaint alleges that "Sex is an imprecise proxy for psychological, learning, emotional and developmental differences in adolescents." The complaint also stresses that sex-segregation and sex-differntial teaching "harm children who do not conform to the gender stereotypes advanced in these classes, such as boys who would happily engage in a conversation about literary characters’ emotions or girls who need to move around," and thus harm children.

Although the complaint followed the usual practice and did not cite any cases, including United States v. Virginia (VMI), the complaint's allegations fit squarely within the VMI rubric.  While VMI is often recalled as involving the exclusion of women from the Virginia Military Academy, Virginia had instituted sex-segregated education.  In VMI, Virginia's argument was that the Virginia Women's Institute for Leadership (VWIL), at Mary Baldwin College, satisfied equal protection concerns by offering women a "cooperative method" that would be better suited to women and reinforce their self-esteem rather than VMI's "adversative method," suited for male citizen-soldiers.  Justice Ginsburg, writing for the Court, rejected this sort of stereotyping and generalizations about "the way women are."

Indeed, if the allegations of the complaint prove true, it will be difficult for the school to argue that it is not engaging in the type of stereotyping and generalizations about "the way" girls - - - and boys - - - are that was rejected by the Court in VMI.

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[image: "Trouble in the classroom" by August Heyn, circa 1920]

Senior Federal District Judge Rejects Challenge to Hawai'i Opposite-Sex Only Marriage Statute

In in an opinion exceeding 100 pages, Judge Alan Kay, Senior District Judge for the District of Hawai'i, upheld the Hawai'i marriage scheme in Jackson v. Abercrombie.  The plaintiffs had argued that Hawai'i Constitution Article 1, Section 23 stating that “[t]he legislature shall have the power to reserve marriage to opposite- sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violated the Due Process and Equal Protection Clauses of the United States Constitution.  Governor Abercrombie's Answer agreed with the plaintiffs' constitutional arguments.  However, Defendant Fuddy, Hawai'i Director of Health, and Intervenor Hawai'i Family Forum, opposed the plaintiffs, and the Judge resolved the case on Summary Judgment.

Those conversant with same-sex marriage jurisprudence in the United States will recall that Hawai'i is a landmark in the second-generation litigation: In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawai'i Supreme Court found the limitation of marriage to opposite-sex couples violated the state constitution.  This decision prompted the state constitutional amendment, Article I, Section 3, referenced above (and interestingly in terms of judicial review, not prohibiting same-sex marriage but allocating that power only to the legislature and not to the courts).  It also prompted Congress to pass DOMA - - - the Defense of Marriage Act - - - constitutionally suspect at present.

Judge Kay rehearses these histories at length.  However, he rests his rejection of the plaintiffs' constitutional challenges on a "decision" of the first-generation of same-sex marriage litigation:  The United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.).  For Judge Kay: "Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court."  (Opinion at 46).

Most courts considering the issue have rejected the 1972 summary dismissal in Baker v. Nelson as binding precedent.  Thus, Judge Kay also provides an "alternative analysis"  under the Equal Protection and Due Process Clauses.  He applies rational basis review, concluding that "marriage" can be reserved to opposite-sex couples because the legislature can rationally choose to encourage the stability of relationships that have the ability to "procreate naturally" and choose to promote the raising of children by "a mother and a father."  Judge Kay also credits the legislature's rational choice to "proceed with caution" in an area of social change: 

Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.

Yet Judge Kay's ultimate rejection goes further.  He writes that  "to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii."   (Opinion at 118).  Certainly, the judicial restraint arguments are familiar by now, but to write in 2012 that the plaintiffs seek to  "suddenly constitutionalize the issue of same-sex marriage"  is odd.  Indeed, it is undermined by Judge Kay's own opinion with its careful history of second-generation litigation since 1990 and his reliance on a summary dismissal in 1972.

The plaintiffs are doubtless preparing their appeal to the Ninth Circuit.

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[image via]

Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures

In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).

Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician.  The court conflated the undue burden (due process) claim and the physician First Amendment claim:  "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”

Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation.  Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field."  The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."  

The majority rejected the relevancy of  Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component.  Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide.  But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."

 In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates"  that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy."   The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk[]" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added).  This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.

Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed.  However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.

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[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]

In Memoriam: Ann Scales

ConLawProf Ann Scales, University of Denver Strum College of Law, was best known for her constitutional law work on feminist legal theory, equality, and military matters.  She died June 24, at the age of 60.

 

 

More on Feminist Law Prof here.

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[image of Ann Scales via]

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

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Eleventh Circuit: Pregnancy Discrimination Suit Against Religious School To Proceed

In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school. 

As Judge Carnes describes the facts in the first paragraph of his opinion:

"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal." 

The next paragraphs, one would assume, would be devoted to discussing the ministerial exception.  And they are.  Except the discussion is devoted to the procedural status of the ministerial exception in this litigation.  While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her.  On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ”  The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n.  But that, the Eleventh Circuit held, was not sufficient. 

The court then found there remained material issues of disputed fact as to the reason the teacher was fired.  The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.

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[image: Woodcut from The Scarlet Letter, 1878, via]

 

Update Redux: Fifth Circuit Panel Vacates Stay in Texas Planned Parenthood Case

A panel of the Fifth Circuit has vacated Judge Smith's emergency stay of District Judge Lee Yeakel's preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

As the panel in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs stated:

Language in that affidavit reasonably calls into question the State’s declaration of an emergency need for a stay, because it states that any injunction will have the effect of requiring the State to cease operating the program at issue “upon termination of federal funding.” Evidence in the record indicates that such funding is continuing until November 2012.

This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.

Thus, there is no "emergency" and the district judge's injunction stands, as presumably does the district judge's hearing for May 18.

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Texas Federal Judge Enjoins Rule Prohibiting Planned Parenthood Funding

In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.  Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.

The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument.  He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights.  Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition.  The argument that state funding "frees up" other money to provide abortions "extends too far." 

The judge also found the equal protection argument had merit.  By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification.  The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny.  In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.

Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.

UPDATE here

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[image: from PLanned Parenthood Ass'n of Hidalgo County via]

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.

RR

Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?

Questions worth asking, certainly. 

    But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself."  And increasingly, it is not a strategy confined to the United States.

    Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.

    Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.

RR

 

Greenhouse on Ginsburg on Gender on Coleman v. Maryland: Worth Reading

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.

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[image: WWII government poster via]

Ontario Court of Appeal on the Constitutionality of Criminalizing Prostitution

 In a much anticipated decision, the Court of Appeal for Ontario has just rendered its opinion in Canada (Attorney General) v. Bedford, 2012 ONCA 186 regarding constitutional challenges to commercial sex.

Note that to a large extent - - - or at least much larger than in most of the U.S. - - - Canada has decriminalized commercial sex.  At issue in Bedford is the constitutionality of three provisions of the Criminal Code which "form the core of Parliament's response to prostitution:" 

1. Section 210, which prohibits the operation of common bawdy- houses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;

2. Section 212(1)(j), which prohibits living on the avails of prostitution. This prevents anyone, including but not limited to pimps, from profiting from another's prostitution; and

3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

The constitutional challenges were based on the Canadian Charter of Rights and Freedoms.  Specifically, §7 provides:

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 §2(b) provides:

Everyone has the following fundamental freedoms:     ...
                    (b) freedom of ... expression

Section 1 of the Charter is the limiting (or balancing) provision providing that the Charter

guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.....

In a closely reasoned, well-organized, and lengthy opinion, the Court of Appeal for Ontario reached disparate conclusions.

The provincial high court held Section 210 regarding the operation of bawdy houses unconstitutional, but suspended the declaration of invalidity to allow Parliament to redraft the provision. 

The court held that Section 212(1)(j) should be interpreted to save its constitutionality, by including words of limitation so that it applies "only to those who live on the avails of prostitution in circumstances of exploitation."

Over two dissents in an otherwise unanimous opinion, the court upheld the constitutionality of criminalizing "communicating for the purpose of prostitution in public." 

Sure to elicit much commentary (initial reports here, here & here) and perhaps appeal to the Supreme Court of Canada, this opinion is of obvious import to Canadian constitutional scholars, but also merits a great deal of attention from ConLawProfs south of the border.

RR
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

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[image of Elizabeth Cady Stanton circa 1880 via]

Supreme Court in Coleman: The 11th Amendment Bars Suit Against State for FMLA Violation

The Supreme Court's divided opinion in Coleman v. Court of Appeals of Maryland, issued today, resuscitates the convoluted doctrine that resides at the intersection of the Eleventh Amendment and the Fourteenth Amendment.  As Justice Scalia, concurring, phrased it:

The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense.

The facts of the case are simple: Coleman was employed by the Court of Appeals of the State of Maryland and requested sick leave;  he was informed he would be terminated if he did not resign. Coleman then sued in federal court, arguing that his employer violated the "self care" provision of the Family Medical Leave Act (FMLA). 

The "family leave" provision of the FMLA was held applicable against the states in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), authored by CJ Rehnquist.  But here the plurality distinguished the sex-role stereotyping that Congress found states had perpetrated regarding family leave.  Instead, the self-care provision had a lack of  "a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations."

The Eleventh Amendment, passed to overule Chisholm v. Georgia, has produced a tortured - --  and many argue essentially incorrect - - - doctrine allowing states to interpose sovereign immunity against civil rights suits by their own citizens.

This is complicated by Congressional power to abrogate a state’s 11th Amendment immunity pursuant to its §5 14th Amendment  enforcement power in some circumstances.  The Congressional intent to abrogate must be unmistakenly clear and the Congressional act must be a valid exercise of power under section 5 of 14th Amendment, meaning that there is congruence and proportionality in light of Supreme Court precedent and there must be a finding that states qua states need to be remedied.  

In Coleman, Kennedy - - - writing for a plurality - - - held that the self-care provision was not a valid aborgation of the state's sovereign immunity.  Note that the specific provision, not entire FMLA, is being subject to this requirement.  Kennedy wrote that the  "evidence did not suggest States had facially discriminatory self-care leave policies or that they administered neutralself-care leave policies in a discriminatory way. And there is scant evidence in the legislative history of a purported stereotype harbored by employers that women take selfcare leave more often than men." 

Justice Ginsburg, joined by three other Justices, dissented and argued that even accepting the Court's view of the scope of Congress’ power under §5 of the 14th Amendment, the self-care provision "validly enforces the right to be free from gender discrimination in the workplace."   Further, she argued that the plurality  "gets it wrong in concluding that “[o]nly supposition and conjecture support the contentionthat the self-care provision is necessary to make the family- care provisions effective.”"  Instead, self-care leave "is a key part of Congress’ endeavor to make it feasible for women to work and have families."

Ginsburg's argument did not prevail and thus states escape another provision of federal anti-discrimination law given the Court's interpretation of the Eleventh Amendment.

On the heels of Hosana-Tabor Evangelical Lutheran Church and School v. EEOC decided earlier this term, the Court has rendered another unfavorable opinion for employees dealing with health problems.

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[image:Friedrich Friedländer, Der Doktor, circa 1870 via]

Pink as Punishment: The Ninth Circuit of Jail (Un)Dress in Maricopa County

As the Supreme Court continues to contemplate Florence v. Board of Chosen Freeholders (Burlington), argued in October on the constitutionality of arrestee strip-searches on admission to jail without reasonable suspicion, the Ninth Circuit has remanded a case involving the policies of the controversial sheriff Joe Arpaio in its opinion in Wagner v. County of Maricopa.

Underlying the case is the color pink.

At issue in the case is the County of Maricopa's practice of dressing-out pretrial detainees in prison garb that includes pink underwear.  The now-deceased prisoner, Eric Vogel, was mentally disturbed and apparently reacted quite negatively to the pink underwear.   A divided panel reversed on the evidentiary issues, including hearsay and expert testimony regarding the prisoner's reactions to the pink underwear.

However the Ninth Circuit also commented on the constitutional contours of the case.  It stated that while certain procedures, including a strip search, may be necessary to "secure the safety on an institution" even though it may impinge upon the dignity of innocent inmates, the procedures "should reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.”"   Quoting Bell v. Wolfish, 441 U.S. 520, 539 (1979), the panel continued that "if a restriction or condition is not reasonably related to a legitimate goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees."

Thus, the Ninth Circuit stated:

Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification.

 It added that it appeared that this question was

still open for exploration at trial on remand. Alternatively, the plaintiff may prevail on the narrower proposition that to apply this procedure automatically to a man known by his jailors to be in need of psychiatric treatment was itself a violation of due process. Because of the evidentiary rulings of the trial court neither issue was presented to the jury.    

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The constitutionality of the anti-prostitution pledge: compelled speech or government funding?

The Second Circuit's opinion earlier this month refused to grant en banc review to a panel decision that the so-called prostitution pledge for government AIDS/HIV funding is unconstitutional, Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction v.   United States Agency for International Development.  

The denial of en banc review prompted a dissent authored by Judge Cabranes, and joined by Judges Raggi and Livingston, while Judge Rosemary Pooler wrote an opinion concurring in the denial of rehearing en banc.

At issue is a provision of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq., providing:

 No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.

22 U.S.C. §7631(f).  Note that the exceptions were added in the 2004 amendments to the Act, meaning that the act's provision falls most heavily on smaller NGOs.

The crux of the disagreement is whether or not the compelled speech aspect of the required statement makes it distinguishable from Rust v. Sullivan.   The Second Circuit panel found this was a vital distinction - - - and indeed, it is a matter that the Court in Rust emphasized.  The dissenters, as well as the Sixth Circuit, found that any such distinction is erased by the unconstitutional conditions doctrine which allows the organization to choose whether or not to apply for funds in the first instance.

As Judge Rosemary Pooler noted in her concurring opinion from denial of rehearing en banc, the doctrine is in a complex state of disarray.  For those who teach, study, or litigate in this area, reconciling Rust v. Sullivan with Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), can be challenging - - - unless one resorts to easy and cynical canards about the differences between doctors and lawyers, or the Court's solipsistic concern for its own role when conditions are imposed.   The "anti-prostitution" pledge cases could be a great vehicle for exploring the complexities, either as a scholarly project or as a class exercise.

The Second Circuit and the Sixth Circuit opinions also provide a circuit conflict, perhaps teeing up the Second Circuit case for Supreme Court review. 

RR

DOMA Held Unconstitutional - - - Yet Again

This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management.   Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities.  The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Representatives.

Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment.  Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:

• the history of invidious discrimination against the class burdened by the legislation;
• whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
• whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
• the political power of the subject class

After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority." 

In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources.  For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."

The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:

• Congressional caution in defining a legislative term and maintaining the status quo
• Congressional caution in area of social divisiveness
• Consistency
• Any other possible basis

With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.

Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:

    The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
J., concurring).
    This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
Nominee).
    In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.

Apart from the substance, Judge White's opinion is a model of organizational clarity.  For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.

RR

Opinion Analysis: Ninth Circuit in Perry v. Brown, the Prop 8 case

As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.

The panel was unanimous on two points:

First, the proponents had standing.  The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8.  The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,

we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.

While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances."  Thus, the California Supreme Court's decision is outcome determinative.

Second, Walker's sexuality was not a reason to vacate his opinion.  More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality. 

The panel divided on the central issue: the constitutionality of Prop 8 itself.  The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional.  Reinhardt begins the panel majority opinion with an important framing of the issue:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."  Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties."  Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships."  Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:

Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .

Thus, for the panel majority, Prop 8 "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."  The panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing  Romer v. Evans, 517 U.S. 620, 633 (1996).

Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis.   Like Amendment 2, Prop 8 eliminated a pre-existing right:  "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.

Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.

The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."

The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari.  Doubtless, they will do one or the other.  And the complex Prop 8 saga will continue.

RR

 

Prop 8 Opinion: Ninth Circuit Rules Prohibiting Same-Sex Marriage Unconstitutional

The Ninth Circuit panel has rendered its opinion in Perry v. Brown,  on the constitutionality of California's Proposition 8 that prohibited same-sex marriage, affirming 2-1 Judge Vaugn Walker's extensive opinion based on the trial (our recap here) the videotapes of which will not be released as the Ninth Circuit ruled recently.

The Ninth Circuit Judges on panel, Stephen Reinhardt (middle), NR (Randy) Smith (right, and Michael Hawkins (left) disagreed on the major constitutional issue.

 

 The panel was unanimous that the proponents had standing and that Judge Walker's opinion should not be vacated on the basis of his sexuality.  The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional.  Judge Smith, dissented as to the constitutionality of Proposition 8, arguing that it was rationally related to a legitimate government interest.

MORE ANALYSIS HERE.

RR
(image via)

CFP: Social Justice Feminism

For scholars working on constitutional issues relating to social justice and gender, a terrific-looking conference, Social Justice Feminism, will be held at University of Cincinnati College of Law on October 26-27, 2012.

The deadline is April 1, 2012; submissions of abstracts for individual papers, as well as complete panels, are invited.

More info here.

RR
[pictured: from the Race, Gender and Social Justice at U Cincinnati College of Law, via]