Monday, March 11, 2013

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

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The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.

RR

March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Daily Read: Obama Signs VAWA

Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below. 

 

 

As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.

And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.

RR
[video via]

March 8, 2013 in Congressional Authority, Family, Fourteenth Amendment, Gender, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional

In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.

Agrippine_de_Claude_MellanRecall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional.  McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.

However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation."  The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding.  Further, the judge noted that pregnancy is "capable of repetition yet evading review."

Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.

On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.

Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care.  The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.

Additionally, the judge found unconstitutional the Idaho provisions  banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act.  He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point. 

Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.

RR
[image via]

March 7, 2013 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

Daily Read: Former Justice O'Connor on the Rachel Maddow Show

Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show.   It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important." 

  It starts at 5.35 below:

 

Visit NBCNews.com for breaking news, world news, and news about the economy

 

 

Update: more O'Connor here. And here.

RR

March 5, 2013 in Gender, History, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 4, 2013

Daily Read: Toobin on Justice Ginsberg in New Yorker

Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).

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Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."

Worth a read - - - especially for those who like celebrity legal profiles.

RR

March 4, 2013 in Courts and Judging, Current Affairs, Gender, History, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

The Struggle for Women's Inclusion on UK's Highest Court

Three new Justices have been appointed as Justices of the Supreme Court of the United Kingdom - - - and all of them are men.

Architecture_thebuilding
As the British Prime Minister's Office has announced, "The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom." 

As The Guardian reports, there was some speculation that these appointments were delayed by requests that the selection panel reconsider its choices to address the lack of gender diversity.  At present,  Lady Hale is the only woman Justice on the 12 person Court, a situation she has discussed.

RR

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

February 26, 2013 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Daily Read: Deirdre Bowen on DOMA and Empiricism

Does the Defense of Marriage Act (DOMA) accomplish the purpose of defending opposite-sex marriage?  This question, or at least some version of it, is at the heart of the Supreme Court's consideration of United States v. Windsor, as well as of Hollingsworth v. Perry to the extent that Prop 8 is considered a state DOMA.

DbowenIn a new article, I Wanna Marry You: An Empirical Analysis of the Irrelevance and Distraction of DOMAs, available in draft on ssrn, LawProf Deirdre Bowen (pictured) argues that the numbers simply don't add up to providing support for the proposition. 

As her central task, Bowen takes as her comparators states with DOMAs, including constitutional amendments and statutes,  and states without DOMAs  and examines their marriage and divorce rates from 1999-2010 to discover whether DOMA correlates with marital stability and strength.   Her analysis "suggests that DOMA states do not fare any better than non-DOMA states in terms of the strengthening  marriage" and in fact, "DOMA states tend to have lower marriage rates, larger declines in the trend towards marriage, and greater divorce rates."

Her empirical query answered, Bowen the contends that not only is DOMA irrelevant, it serves as a distraction from the real threats that certain economic and social policies pose to family stability, especially with regards to children.  Whatever the Court decides, she implies, will not be sufficient to solve the problem of family volatility.

RR

February 21, 2013 in Equal Protection, Family, Federalism, Gender, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2013

Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")

Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony. 

220px-EFatima_in_UAE_with_niqabThe Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary.  A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.

Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist.  Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence.  She focuses on the Court's analogy between wearing the niqab and publication ban precedent.  Importantly,  she also raises a central question raised by the particular facts in N.S.:

Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal? 

Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.  Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.  NS is a sexual assault complainant.  Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.  Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

Finally, Stephanie Voudouris at The Court  attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence.  Voudouris' discussion is lengthy and provides a solid and objective overview of the case.  But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the

skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.

The majority opinion seemingly leaves wide discretion to the trial judge.  It will be illuminating to learn what the judge in N.S. - - -  and in other cases - - - ultimately decides. 

 RR
[image via]

January 28, 2013 in Cases and Case Materials, Comparative Constitutionalism, First Amendment, Gender, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 23, 2013

Ban on Women in Combat to be Lifted

Reputable news sources are reporting the Department of Defense will abandon the ban on women serving in combat; CNN has one of the fullest reports.

The official announcement from the Pentagon should be forthcoming on Thursday.

In November, a complaint in Hegar v. Panetta was filed in the Northern District Court of California, arguing that the policy offended the equal protection component of the Fifth Amendment.  More about the case is available from the ACLU.

800px-Flickr_-_The_U.S._Army_-_Female_flag_officers_honor_first_woman_four-star
ConLawProfs (and students) often encounter the gendered combat exclusion in discussions of Rotsker v. Goldberg (1981) in which the Justice Rehnquist's Court upheld male-only registration for the draft finding women were not "similarly situated" to men because women were not eligible for combat.

RR
[image via]

January 23, 2013 in Equal Protection, Fifth Amendment, Gender, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, January 10, 2013

Daily Read: Leslie Griffin on Free Exercise and the ACA

Faculty_LeslieGriffin_web110x150In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause. 

Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause.  Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.

The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.

Worth a read!

RR

January 10, 2013 in First Amendment, Gender, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Tnr-cover_1231121Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

NYC Bar Event on 40th Anniversary of Roe v. Wade

NycbarlogoThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm

2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.

Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School

Speakers:
LOUISE MELLING
, Director, ACLU Center for Liberty
RUTHANN ROBSON
, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS
, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights

Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair

More information here.

January 4, 2013 in Abortion, Conferences, Due Process (Substantive), Family, Fundamental Rights, Gender, Medical Decisions, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 26, 2012

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Hobby-Lobby-Logo

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

NiqabAt issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

Cj4096_Balfour-250The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Abella250Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

December 20, 2012 in Comparative Constitutionalism, Criminal Procedure, Free Exercise Clause, Gender, Opinion Analysis, Religion, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA

Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue.  Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered.  Joslin (pictured)  argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."

Courtney-joslinJoslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor  have applied, or rational basis as the First Circuit applied

Instead, Joslin interrogates whether this interest is factually true:  "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?"   She demonstrates that the interest is, at the very least, not a consistent one.  She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."

She concludes:

From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.

Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."  Joslin's article should be required reading for anyone analyzing DOMA. 

RR

December 3, 2012 in Current Affairs, Family, Gender, History, Interpretation, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, November 30, 2012

Nevada District Judge Rejects Challenge to Same-Sex Marriage Exclusion

In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage. 

450px-Little_White_ChapelThe judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples.  While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."

The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.

In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA.  Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy.  For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy."   Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."

Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).

On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden.  The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest.  This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.

As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations. 

RR
[image "Little white chapel" in Las Vegas, Nevada, via]

November 30, 2012 in Equal Protection, Federalism, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 21, 2012

Daily Read: Karen Tani on New Deal Women Lawyers

With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular,"  Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon. 

FacultyPhoto2Tani (pictured) argues that the New Deal "offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers."  Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein.  In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.

Tani concludes:

According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal legislation. They did not become legislators, judges, or famous academics. Yet, their stories have much to offer us. White, the fiery suffragist who died too young, encourages us to consider the difference that gender made to the high‐stakes interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that  her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most intriguing case study, since in pedigree and placement she was the female equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her male counterparts, who used the New Deal as a launching pad for celebrated careers in academia, private practice, and politics, Bernstein remained an administrative lawyer for decades. We need more information about the costs and benefits of this career trajectory, both for the individual and for society.

Together, the lives of all three women provoke one final question. In the area of social welfare and elsewhere, much law‐making happens neither at the top, with Congress and the appellate courts, nor at the bottom, with the people. It happens somewhere in between, with ground‐level decision‐makers and mid‐level bureaucrats. Who occupied that level of decision‐making in 1935? Who occupies it now? Much of the content of today’s law is their doing.

Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.

RR

November 21, 2012 in Current Affairs, Gender, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance

404px-Hobbies_Magazine_J._E._Standley_coverThe contraception provision requirement of the ACA continues to foment litigation.  However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after"  or "Plan B" contraceptive pill.

In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust.  Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.  

Denying the preliminary injunction, Judge Heaton concluded:

Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.

The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton.  His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.

RR
[image via]

November 20, 2012 in Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Daily Read: Sotomayor on Gender Equality

Today's daily "read" is a view: Justice Sonia Sotomayor with "Abby," the Sesame Street character, discussing careers for women:

 

 

RR
[video via] 

November 12, 2012 in Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

Daily Read: Take a Look at Glamour Magazine

While Glamour magazine might not be a usual ConLawProf read, the Women of the Year issue features none other than Supreme Court Justice . . . Ruth Bader Ginsburg pictured "wearing her signature white lace collar, at the Supreme Court in Washington, D.C."

Within the seemingly strict word limit, Dahlia Lithwick's profile manages to include quotes not only from Ginsburg, but also President Clinton, Justice Scalia, and Rachel Maddow. 

Women of the year

Unfortunately, Justice Ginsburg did not land the cover of Glamour, but this is a fun read and might prove inspiring for its targeted demographic of young women.

RR
[image via]

November 5, 2012 in Current Affairs, Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)