Thursday, November 20, 2014

Daily Read: Weatherby on First Amendment Rights of Trans* Youth

November 20, as President Obama acknowledged again this year,  is "Transgender Day of Remembrance."   While the commemoration often focuses on violence against trans* people, it also provokes consideration of legal remedies to end discrimination. 

In her article posted on ssrn, From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse, Professor Danielle Weatherby (pictured) takes up the issue of differential treatment in schools.  Weatherby argues that the First Amendment has an important role to play in protecting gender expression:

DweathWith the majority of states and municipalities having enacted strong anti-bullying and anti-discrimination laws, and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.

Some litigants have advanced the innovative “gender expression as protected speech” argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear female apparel and accessories; an employer’s refusal to allow a female employee, who was required to wear a pants uniform at work, wear a skirt; and even an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery. Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving of protection under the First Amendment.

[manuscript at 50; footnotes omitted]. 

She argues:

An individual’s conduct in using a restroom designated as either “male” or “female” or “man” or “women” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.

[manuscript at 55].

Weatherby cautions that schools should not yield to the "heckler's veto" and should protect the First Amendment rights of trans* students to expression.  Ultimately, her argument is that such protection will eradicate the resort to violence.

Tdor

 

November 20, 2014 in First Amendment, Gender, Scholarship, Sexuality, Speech, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Twenty Years of South African Constitutionalism: Conference

November 14- 16, 2014 at New York Law School.

The full program is here.

 

ZA Conference

November 7, 2014 in Comparative Constitutionalism, Conferences, Courts and Judging, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

ConLaw Programs at AALS

The AALS Annual Meeting will be held January 2-5, 2015, and will feature a number of programs of interest to ConLawProfs, including:

Aals

October 24, 2014 in Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2014

CAC Examines Roberts at 10

The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.

Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:

[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.

October 23, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

CFP: The New Color Lines

The 19th Mid-Atlantic People of Color Conference (MAPOC)
 
Call for Panel and Paper Proposals

deadline: October 15, 2014
 
The New Color Lines: What Will It Mean to Be an American?
 
Hosted by West Virginia University College of Law
January 29-31, 2015

 

 

The call is after the jump:

 

Continue reading

October 9, 2014 in Conferences, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

Penny Pether Conference at Villanova

Villanova Law Review  Symposium to Honor Professor Penelope J. Pether

October 24, 2014

PetherSpeakers include:

  • Christopher Tomlins, Professor of Law, University of California-Berkeley School of Law: "A Fierce and Critical Faith: A Remembrance of Penny Pether"
  • Marianne Constable, Professor, University of California-Berkeley: "Be True to What You Said on Paper: Pether on U.S. Publication Practices, Precedent, and the Positivism of Law and Language"
  • Nan Seuffert, Professor of Law, Wollongong University School of Law: "A Seat at the National Table: Pether's Culinary Jurisprudence"
  • Joseph Pugliese, Professor, Macquarie University: "The Open in the Case: Guantanamo's Regime of Indefinite Detention and the Disintegration of Adnan Latif's Corporeal Hexis Through Administrative Practices of Torture"
  • Kunal Parker, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law: "Representing Interdisciplinarity"
  • Mark Sanders, Professor of Comparative Literature, New York University: "Consequences of Reform: Penny Pether on Rape Law in Illinois and Australia"

Keynote Address

  • Peter Goodrich, Professor of Law, Cardozo School of Law: "On Foreign Ground: Friendship and the Force of Law"

More information here

October 8, 2014 in Foreign Affairs, International, Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sirico on Constitutional Counter-Factual Futures

Prof. Lou Sirico (Villanova) turns the counterfactual historical method on its head in his recently posted The Constitutional Convention: Drafting to Charter Future History. The result, argues Sirico: The Founders wrote and ratified the Constitution with an eye toward managing counterfactual futures.

Sirico looks at five areas--the debates surrounding the Ex Post Facto Clause, the authority to define international law, slavery, territorial expansion, and the decision not to include the word "national" in the text--to argue that the drafters sought to achieve, or avoid, certain futures.

For example, in forbidding ex post facto laws, the deputies were forbidding laws that the international community would have deemed illegitimate. Arguably, they attempted to prevent future Congresses from enacting laws that would have marked the new nation as lawless.

Sirico says that the counterfactual-future method suggests certain lessons on how we understand--and interpret and use--the document. Check it out.

October 8, 2014 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

CFP: Ferguson Conference at University of Missouri School of Law

A call that should be of interest to many ConLawProfs:

Policing, Protesting, and Perceptions:

A Critical Examination of the Events in Ferguson

at the University of Missouri

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image via

 

Here are some details on the call for works-in-progress:

 The University of Missouri Law Review is issuing a call for proposals for an upcoming Works-in-Progress conference, which will be held on Thursday, February 26, 2015 in conjunction with the Missouri Law Review’s Symposium, which will take place the following day Friday, February 27, 2015. The symposium, "Policing, Protesting, and Perceptions: A Critical Examination of the Events in Ferguson," focuses on a number of issues that arose from the events in Ferguson, Missouri this past August following the shooting of Michael Brown, and will include a number of invited panelists. Marc Mauer, the Executive Director of The Sentencing Project, will deliver the keynote address. On Thursday, February 26, 2015, the Missouri Law Review will host several works-in-progress panels related to the subject matter of the symposium.

If you interested, we would ask that you submit a presentation proposal. Presentation proposals should be no more than one page in length. The topic of the presentation can include analyses that are practical, theoretical or interdisciplinary in nature relating to what transpired in Ferguson, MO. Proposals from scholars outside the United States are also welcome, although prospective attendees should note that there is no funding available to assist participants with their travel expenses. Proposals for the works-in-progress will be accepted until November 15, 2014. Those interested may submit proposals and direct questions to Professor S. David Mitchell (MitchellSD AT missouri.edu). Decisions regarding accepted proposals will be made by December 1, 2014. 

September 22, 2014 in Conferences, Elections and Voting, Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, Race, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 17, 2014

Mary Bonauto and Sarah Deer Named MacArthur Fellows

This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.

Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."

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Here's the beginning of the announcement:

Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.

More description as well as a video on the MacArthur site here.

LawProf Sarah Deer (pictured below) is another of the 21 recepients.

Deer_2014_hi-res-download_3

Here's the beginning of the announcement:

Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.

More description as well as a video on the MacArthur site here.

Additionally, John Henneberger of Texas Low Income Housing Information Service and Jonathan Rapping of Gideon's Promise were named as fewllos.

 

such as securing fair and affordable housing (John Henneberger), protecting civil rights (Mary L. Bonauto), and ensuring equal access to justice for both the victims of crime (Sarah Deer) and the accused (Jonathan Rapping); - See more at: http://www.macfound.org/press/press-releases/21-extraordinarily-creative-people-who-inspire-us-all-meet-2014-macarthur-fellows/#sthash.qdsCJsvk.dpuf

September 17, 2014 in Current Affairs, Gender, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

CFP: Richmond Journal Law and the Public Interest

From the editors of Richmond Journal Law and the Public Interest:

The Richmond Journal of Law & the Public Interest is seeking submissions for the Spring Issue of our 2014-2015 volume.  We welcome high quality and well cited submissions from academics, judges, and established practitioners who would like to take part in the conversation of the evolution of law and its impact on citizens.

We currently have four total openings for articles for our Spring Issue.  As a Journal that centers in large part on the Public Interest, we are seeking at least one article that touches upon current Constitutional Issue(s) and the effects that the issue(s) may have on the National Public Interest.  For a sense of what we are seeking for our general issues, feel free to visit here.

If you would like to submit an article for review and possibly publication, or if you have any questions at all, please do not hesitate to contact our Lead Articles Editors, Rich Forzani and Hillary Wallace, at rich.forzaniATrichmond.edu and hillary.wallaceATrichmond.edu.

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September 16, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 10, 2014

Fellowships at the United States Supreme Court and at Princeton

Two fellowships worth considering.

640px-Jan_van_Eyck_059First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014.  There are four positions, one of which is at the Supreme Court.  More information is here.  Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.

Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance."  The deadline is November 3, 2014 and more information is here.

[image via]

September 10, 2014 in Books, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Seventh Circuit Declares Same-Sex Marriage Prohibitions of Two States Unconstitutional

The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker were just last week.  Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional. 

The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.

Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion. 

441px-Richard_Posner_at_Harvard_UniversityPosner begins by implying the state laws before the court are outliers:

Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.

The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment.  Here's Judge Posner introducing the concept that

comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach"  - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it.  For Posner:

Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

9780674802803Judge Posner doesn't cite his own 1992 book, Sex and Reason, but he could have.  And the rhetorical style and much of the reasoning in this opinion echoes the book, which was widely debated.

Judges Williams and Hamilton apparently agreed.

If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.

 

 

September 4, 2014 in Courts and Judging, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

UDC Law Review Covers Civil Gideon

The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil GideonThe full list of articles and links to the full texts are here.  John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.

August 20, 2014 in Courts and Judging, Fundamental Rights, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Daily Read: Kende on Thomas and Korematsu

In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.

 

Thomas
Caricature of Justice Thomas by Donkey Hotey via

 Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.

 Worth a read as we consider executive power and questions of nationality and race in the news.

August 13, 2014 in Courts and Judging, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Daily Read: Behre on Empiricism, Equality, and Fathers Rights

Kelly A. Behre's forthcoming article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J.  Women & L. (forthcoming 2014), available at SSRN, is the topic of my piece for JOTWELL: Things We Like Lots in the Equality section.  I think that

Behre-kellyBehre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.

If nothing else, Behre's careful tracing of incorrect citations and descriptions will make one want to double-check those sources in one's latest writing.

 

August 12, 2014 in Equal Protection, Family, Gender, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

CFP: Feminist Judgments

Inspired by the successful - - - and fun! - - - Feminist Judgments in the UK, the American version of Feminist Judgments is seeking contributors.  [update: And be sure to check out the terrific Canadian version here, which was the inspiration for the UK version].

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Here's the call:

The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court.  This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues.  Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process.

The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.

The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of FeministJudgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received.

Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had afeminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.

Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:


Applicants may indicate their preferences among the list of cases.  Applicants also may suggest other cases for rewriting.  The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.

August 11, 2014 in Gender, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

CFP: The Snowden Effect

497px-Edward_SnowdenThe Law Review at Lincoln Memorial University in Knoxville, Tennessee is soliciting papers for its January Symposium "The Snowden Effect."

Here's the call for what looks like an important conference:

 

Call for Papers

The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee. 

The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.

The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.

To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.

For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.

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August 11, 2014 in Conferences, First Amendment, Foreign Affairs, Scholarship, State Secrets | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

Obama (& Bush) on Executive Orders Regarding LGBT Discrimination and Religion

Today President Obama signed an Executive Order:  "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity." 

Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.

Here's the video put out by the White House:

 

 And here are some more specific details:

The Executive Order  broadens the terms of prohibited discrimination in federal employment in Executive Order 11478  by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."

It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."

As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

But what about Bush's Executive Order?  Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial. 

GilmanThis might be a good time to reread Michele Gilman's terrific article from 2007,  If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007).  Gilman argues that Bush has exceeded his constitutional powers.  Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.

And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.

While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo.   It allows religious entities to discriminate on the basis of religion, but not on any other basis.  The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."   It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.

July 21, 2014 in Equal Protection, Executive Authority, Gender, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, July 4, 2014

Equality at the Core of the Declaration

Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.

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Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text.  More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics). 

[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .

The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination.  In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .

The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community.  Political equality is equal political empowerment.

Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA.  That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer.  That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness." 

You can hear Allen on the Diane Rehm show yesterday.  Here's WaPo's book review.

July 4, 2014 in History, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)