Thursday, October 11, 2012
Professor Rebecca Lee (pictured) notes that "in this age of “diversity talk,” it may seem that the issue of workplace discrimination is somewhat passé, or at least not as much of the problem it was in the past." That was certainly some of the sentiment in yesterday's oral argument in Fisher v. UT. But Lee offers a more sophisticated interpretation, arguing that
Most employers implement models of diversity that promote only what I call “surface diversity” and “marginal diversity,” both of which focus on diversifying the organization’s ranks but which stop short of valuing diversity in full form, thus inhibiting substantive equity. The surface and marginal diversity paradigms neglect to treat the malady of embedded discrimination because they emphasize demographic diversity rather than diversity in a substantive sense. A focus on numerical parity alone, however, will not bring about racial and gender equity. Although women and people of color have been entering various workplaces in increasing numbers, the way in which work gets done has not changed much. This is because simply adding more members of previously excluded groups to the organization may not change dominant organizational practices that remain biased against such groups.
Instead in her 2010 article entitled Core Diversity, available on ssrn, Lee argues that much deeper and more structural change is necessary. This is definitely worth a read.
Lee's follow-up article, Implementing Grutter's Diversity Rationale: Diversity and Empathy in Leadership, available on ssrn, is also essential reading. In this article, Professor Lee makes more explicit the links between educational diversity and employment diversity.
Thursday, September 20, 2012
From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:
The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor. While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality. Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.
Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions. This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden. However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.
The full post is here.
Friday, September 14, 2012
Are the First Amendment's Religion Clauses good for women?
ConLawProf Marie Ashe suggests not, at least as the constitutional provisions have been interpreted by the Supreme Court since 1879.
The article, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163, is available on ssrn.
It's a must-read for anyone teaching First Amendment or doing scholarly work on the history or current construction of the Religion Clauses.
[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]
Tuesday, September 11, 2012
In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes. The district judge granted a preliminary injunction against the statutes' enforcement.
At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute. The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.
The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey. The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:
If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).
The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."
The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.
For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.
[image: The Prisoner, artist unknown, circa 1907, via]
Wednesday, August 29, 2012
In a relatively brief opinion today, Judge Joseph Goodwin issued a preliminary injunction in the controversial sex-segregated Middle School program in West Virginia. Recall that the school mandated a practice of sex-segregated classrooms 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.
The judge's opinion rests on the Title IX claim: "The court again emphasizes that its decision today rests on the requirement of the Department of Education regulations that single-sex programs be “completely voluntary.” 34 C.F.R. § 106.34(b)(1)(iii)."
Indeed, the judge held that sex-segregated education could be constitutional, citing United States v. Virginia (VMI) if the "school meets the heightened scrutiny standard." Thus, the judge was not willing to "go so far" as to enjoin any sex-segregated education.
Nevertheless, the judge did explicitly note
that the science behind single-sex education appears to be, at best, inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any scientific basis may very well be harmful to students. Even Professor Salomone, the expert witness called by the defense, agreed with the ACLU on the issue of brain research—that it’s based on the rationale of pseudoscience—and suggested that many schools were “led astray” by the teachings of Dr. Leonard Sax. Professor Salomone served as an expert witness for the defense not because she agreed with the gender-based teaching techniques, but because she felt that the individual teachers at VDMS were, in fact, not teaching students based on gender stereotype, despite the training given by Dr. Sax and David Chadwell.
Given the testimony of the school's own expert, it seems this constitutional controversy will be best resolved by settlement.
[image: Jeunes Filles regardant un album by Pierre August Renoir via]
Tuesday, August 21, 2012
Fifth Circuit on Texas Planned Parenthood Regulation: No First Amendment Unconstitutional Conditions Problem
In its brief opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit has reversed the preliminary injunction issued by Judge Lee Yeakel 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. Recall that last April Fifth Circuit Judge Jerry Smith quickly issued an emergency stay of that preliminary injunction, and a panel of the Fifth Circuit vacated that emergency stay almost as quickly.
Today, however, a different panel reversed and remanded Judge Yeakel's decision. The panel disagreed with Judge Yeakel's conclusions regarding unconstitutional conditions doctrine, noting that "Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine’s contours remain unclear despite its long history." Yet the panel's opinion adds to this lack of clarity. The panel opinion correctly notes that the unconstitutional conditions doctrine includes a "clear threshold premise;" A "funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” Thus, "if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine."
Yet the panel then adds that although the Texas "restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program," and is "therefore constitutional under the reasoning of Rust v. Sullivan." Rust v. Sullivan, of course, is an unconstitutional conditions case involving Title X funding, and the "state programs" to which the panel refers are in fact state-funded programs with arguably unconstitutional conditions. Instead, the panel concludes that "Texas’s restriction on promoting elective abortions directly regulates the content of the WHP [Women’s Health Program] as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech" (emphasis added). The court held that "Texas may deny WHP funds from organizations that promote elective abortions" because it is "a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine."
On the expansion to all affiliated organizations, the panel decided that the "Planned Parenthood mark" was "associated with the pro-abortion point of view." "Using a pro-abortion mark is, after all, a way of promoting abortion." Therefore, "Texas’s choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations." Again, the panel decided this was a "direct regulation of the content of a state program" and there was "no reason to examine it within the framework of the unconstitutional conditions doctrine" despite the fact that it involved funding.
The panel remanded the case, however, including for analysis of the equal protection claim, which Judge Yeakel found resolved by the First Amendment claim.
Despite its odd doctrinal analysis, the Fifth Circuit's panel conclusion is clear: Texas can constitutionally target Planned Parenthood for defunding under the Women's Health Program subsidies.
Thursday, August 16, 2012
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.
[image: "Trouble in the classroom" by August Heyn, circa 1920]
Sunday, August 12, 2012
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.
August 12, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Gender, Opinion Analysis, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)
Tuesday, July 24, 2012
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.
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]
Wednesday, June 27, 2012
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.
[image of Ann Scales via]
Thursday, May 31, 2012
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.
Wednesday, May 16, 2012
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.
"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.
[image: Woodcut from The Scarlet Letter, 1878, via]
Saturday, May 5, 2012
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.
Monday, April 30, 2012
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.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
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.
Wednesday, April 25, 2012
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?
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.
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)
Monday, March 26, 2012
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.
[image: ceiling in Osgoode Hall, Court of Appeal for Ontario, via]
Saturday, March 24, 2012
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.
[image of Elizabeth Cady Stanton circa 1880 via]
Tuesday, March 20, 2012
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.
[image:Friedrich Friedländer, Der Doktor, circa 1870 via]