Thursday, January 18, 2018
A federal appeals court has sided against the Erotic Service Providers Legal, Education, and Research Project (ESPLERP) in a case challenging the constitutionality of California's law criminalizing prostitution.
During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position, which relied on similar arguments to those used in Lawrence v. Texas, the case that destroyed the country's laws against gay sex.
But in an opinion released today, a three-judge panel wound up affirming the district court's decision to dismiss the lawsuit. The panel rejected the idea that Lawrence v. Texas "created a liberty interest that prohibits a state from criminalizing prostitution," ruling that "a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment."
The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment."
Read the whole disappointing decision here.
The U.S. Supreme Court’s 2003 ruling that declared a constitutional right to “intimate conduct” such as gay sex didn’t apply to sex for sale, a federal appeals court ruled Wednesday in upholding California’s 146-year-old ban on prostitution.
Three former prostitutes, a would-be client and the Erotic Service Providers Legal, Educational and Research Project had argued that the high court, in striking down state laws against gay or lesbian sexual activity, recognized an adult’s right to engage in consensual sex without state interference. They maintained that the ruling extended to adults who consent to sex for a price.
A panel of the Ninth U.S. Circuit Court of Appeals in San Francisco seemed receptive to that argument at a hearing in October, suggesting that the 1872 state ban might need closer scrutiny.
One panel member said prostitution had been historically subjected to the same sort of moral disapproval that had once condemned gay sex, and might be more acceptable under the Supreme Court’s current view of individual rights. Another asked why it should be “illegal to sell something that it’s legal to give away.”
Tuesday, January 16, 2018
Holly J. McCammon & Lee Ann Banaszak, eds., 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Oxford 2018)
The year 2020 will mark the 100th anniversary of the Nineteenth Amendment giving many women in the United States the right to vote. ***
Looking forward to the 100-year anniversary of the passage of the Nineteenth Amendment, this collection of original essays takes a long view of the past century of women's political engagement to gauge how much women have achieved in the political arena. The volume looks back at the decades since women won the right to vote to analyze the changes, developments, and even continuities in women's roles in the broad political sphere. Ultimately, the book asks two important questions about the last 100 years of women's suffrage: 1) How did the Nineteenth Amendment alter the American political system? and 2) How has women's engagement in politics changed over the last 100 years?
As the chapters reveal, while women have made substantial strides in the political realm--voting at higher rates than men and gaining prominent leadership roles--barriers to gender equality remain. Women continue to be underrepresented in political office and to confront gender bias in a myriad of political settings. The contributors also remind us of the important understanding to be gained from an intersectional perspective to women's political engagement. In particular, several chapters discuss the failure of the Nineteenth Amendment to provide full political rights and representation to African American, Latina, and poorer women. The work also considers women's extra-institutional activism in a wide variety of settings, including in the feminist, civil rights, environmental, and far-right movements. As the volume traces women's forceful presence and limitations in politics over the past century, it also helps us look forward to consider the next 100 years: what additional victories might be won and what new defeats will need women's response?
Including my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step
Monday, November 27, 2017
Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge
Symposium in the recent issue of the Columbia Law Review.
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley
Judge Denny Chin & Kathy Hirata Chin, Constance Baker Motley, James Meredith, and the University of Mississippi
Judge George B. Daniels* & Rachel Pereira, Equal Protection as a Vehicle for Equal Access and Opportunity: Constance Baker Motley and the Fourteenth Amendment in Education Cases
Judge Raymond J. Lohier, Jr., On Judge Motley and the Second Circuit
Monday, November 13, 2017
Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra
The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."
For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech
See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case
The Ninth Circuit's decision below upholding the law and disclosures is here.
Tuesday, November 7, 2017
C.D. Christensen, The "True Man" and His Gun: On the Masculine Mystique of Second Amendment Jurisprudence, 23 William & Mary J. Women & Law (2017)
The Supreme Court’s recent Second Amendment jurisprudence raises serious normative questions for the use of self-defense with a firearm. This jurisprudence also implicates our prevailing social norms with respect to socially constructed and structurally pervasive gender roles. I argue that a peculiarly American conception of masculinity underpins the judicial construction of the Second Amendment’s core purpose as guaranteeing the right to armed defense of one’s self and one’s home. The Court’s recent Second Amendment rulings create an individual protection for gun ownership and incorporate the same against the States. But the Court’s reasoning entangles this protection with an implicit valuation of manhood that reifies the notion that “true men” do not retreat in the face of danger. In so entangling, the Court establishes a right to gun ownership that is politically free but legally male. This Article explores the socio-legal structures that underpin the Court’s reasoning to explain (a) how the right to keep and bear arms arises from a dubious ideal of the American “man,” and thus how (b) the purposes for which one may keep and bear arms galvanizes a particular masculine type within our Second Amendment jurisprudence. That type establishes a problematic cultural narrative of and ethos for manhood in America; consequently, this jurisprudence establishes a dominant masculinity predicated upon firearm ownership. That masculinity complicates, and may even impede, the social evolution of subordinated masculinities and shifts the social hierarchy of masculinities to empower and privilege gun-owning males.
Tuesday, October 31, 2017
JoAnne Sweeney, Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine, 17 Nev. L.J. 651 (2017)
In the wake of the 2016 presidential election, public intimidation of women, particularly women of color, seems to be on the rise. Even before the election, however, a woman's presence on a public street or public website has routinely made her a target for unwanted and often threatening male attention, also known as street harassment or cyber-harassment. Scholars and journalists have called for laws that would penalize street and cyber-harassment. However, this type of legislative effort will be met with several difficulties, including logistical problems due to the high prevalence and anonymity of street and cyberharassment, as well as cultural opposition to what is perceived by many to be a nonexistent or minor issue with little actual consequences. Another major argument against regulation of street and cyber-harassment is that any laws prohibiting such speech would violate the First Amendment. In response to the latter argument, this Article argues that laws regulating street or cyber-harassment should be protected from First Amendment scrutiny under the captive audience doctrine. As this Article demonstrates, by using the captive audience doctrine, 652 legislators can attack the problem of street and cyber-harassment without running afoul of the First Amendment.
Tuesday, October 24, 2017
The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court.
Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)
Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).
Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.
Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).
The en banc majority has badly erred in this case.
The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.
Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.
Judge Karen Henderson also dissent in a separate opinion.
Monday, October 16, 2017
Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)
P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole.
Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.
“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”
Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).
The trial court's concerns are well founded.
Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.
Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.
Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.
Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70; see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.
The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.
Tuesday, October 3, 2017
An Originalist Defense of the Privileges or Immunities Clause for Gender Nondiscrimination in Bradwell v. Illinois
M. Frances Rooney, Note, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination, Geo. J. Law & Public Policy (forthcoming).
The Privileges or Immunities Clause of the Fourteenth Amendment provides a constitutional right not to be discriminated against on the basis of gender. Original public meaning originalism provides the structure to find that the clause includes a right to practice a lawful profession that extends to all citizens, irrespective of gender. The clause is a guarantee of rights to every “citizen of the United States,” not every male citizen; because of that, the clause is a positive grant of rights to all citizens in the United States.
The central thesis of this Note is that women who are citizens of the United States have rights guaranteed by the Privileges or Immunities Clause, specifically the right to practice a profession. This right cannot be denied on the basis of gender, because adult women have the same capacity as men to practice law. Had this been recognized in 1873, the time The Slaughter-House Cases and Bradwell v. Illinois were decided, and had the erroneous interpretation of the clause in Slaughter-House not prevailed, Bradwell would have recognized this right. Given the contemporary knowledge of the capacities of women and an originalist approach to constitutional interpretation and construction, the decision in Bradwell should be overruled. Taking this step would lead to the development of an originalist gender equality jurisprudence.
Feminist pioneer Elizabeth Cady Stanton made a similar argument against Bradwell (and Minor v. Happersett) at the time using the P&I Clause. Although her arguments were more textualist than originalist per se. I discuss these early equality interpretations of the Privileges or Immunities Clause in my recent book Elizabeth Cady Stanton & the Feminist Foundations of Family Law. A blog post summarizing the relevant part, chapter 2, is here, at What do You Women Want?: The 19th Century Demand for Reform of Marital Property.
Tuesday, September 26, 2017
Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman's Private Choice, 95 Tex. L. Rev. 1189 (2017)
The uncertainty about abortion rights makes it especially important to provide a strong constitutional foundation and the best possible constitutional defense for their protection. That is our purpose in this Article, because abortion rights in the United States are in serious jeopardy. Despite the fact that a legal abortion is medically safer than carrying a pregnancy to term in the United States, that right may soon be more illusory than real. If Roe v. Wade is overturned, lessons from the era preceding that landmark decision underscore the broad harms women will encounter, particularly because 49% of pregnancies in the United States are unintended. In traditionally conservative states, the rates of unintended pregnancies are even higher: 54% in Texas, 55% in Alabama and Arkansas, 60% in Louisiana, and 62% in Mississippi, among others. Yet these states also have some of the highest rates of maternal mortality in the developing world: Texas ranks worst in the developing world on maternal mortality.
The Article proceeds in three parts. First, it explains the flawed foundation for the protection of reproductive rights under the Constitution, noting that the problem began in Griswold v. Connecticut, the first case to protect reproductive freedom. Second, it seeks to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework, including taking serious account of women’s lived lives. Finally, in Part III we discuss what it would mean for abortion to be regarded as a private choice. In this Part, we identify three implications: a) restoring strict scrutiny to examining laws regulating abortions, which would mean that the government must be neutral between childbirth and abortion; b) preventing the government from denying funding for abortions when it pays for childbirth; and c) invalidating the countless types of restrictions on abortion — often referred to as “targeted restrictions of abortion providers” — that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. We especially focus on “informed consent” and waiting period laws and show that they are inconsistent with regarding abortion as a private choice for each woman.
and the response:
Aziza Ahmed, Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin, 95 Tex. L. Rev. See Also 198 (2017)
In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion.
Thursday, September 7, 2017
Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue
This Article adds a critical yet previously unaddressed dimension to the growing debate about the merits of sex segregation in sports by approaching sex segregation in sports as a public health issue. Participation in sports has consequences for women’s health, ranging from physical fitness to disease prevention to self-esteem to mental wellness to eating disorders. Critically, sex segregation in sports both reduces women’s participation in sports and changes the nature of the sports in which women participate, both of which have implications for the myriad health issues we discuss. The Article argues that analysis under the Equal Protection clause of governmentally-imposed sex-segregation must incorporate these consequences. Even where the government has plausible reasons for segregating sports by sex, those reasons may not be sufficient to survive intermediate scrutiny when the health issues are taken into account. The Article does not argue that sports should never be segregated by sex. Rather, it argues that the correct analysis must take into account all the relevant considerations, including those affecting health.
See also a prior post The Case Against Segregated Women's Sports
Friday, September 1, 2017
Meghan Boone, The Autonomy Hierarchy, 22 Tex. J. Civ. Liberties & Civ. Rgts 1 (2016)
The Supreme Court decided two cases in Spring 2015 – Young v. United Parcel Service, Inc. and EEOC v. Abercrombie & Fitch Stores, Inc. – under Title VII. The plaintiffs in both cases believed that they had been discriminated against by their employers because they were members of a protected class – pregnant women in the former and religious believers in the latter. Both plaintiffs were seeking minor modifications to workplace policies as an accommodation. And in both opinions, handed down within a few months of each other, the Court used the language of favoritism to discuss whether the plaintiffs should prevail and what analysis should be employed. The manner in which the Court used the language of favoritism, however, could not have been more different. In the case of pregnancy, the Court soundly rejected that pregnant employees were entitled to any favored treatment, bending over backwards to avoid a ruling that pregnant employees were part of a “most favored” class. In the case of religion, the Court took the exact opposite approach, declaring that religious plaintiffs enjoyed “favored treatment.” This is despite the fact that Title VII provides no explicit textual support for such a distinction. In the absence of such a statutory explanation, what is really behind this difference in approach? This paper explores one potential answer to this question – that these decisions reflect the Court’s underlying belief in the paramount importance of the right to spiritual autonomy over and above the importance of a right to physical autonomy. Further, it explores how allowing such a hierarchy between a right to spiritual autonomy on the one hand and a right to physical autonomy on the other, to animate judicial decisions is both inherently gendered and has the effect of disproportionately harming women. It concludes by analyzing whether such a hierarchy of rights is reflective of lived experience and discussing possible alternative frameworks for analyzing such claims.
Tuesday, August 29, 2017
The fifth episode of The Washington Post's "Constitutional" podcast explores the challenging path toward gender equality in America, highlighting figures from the Revolutionary period through today who have shaped the country's evolution on such rights.
Episode guests include Smeal and Julie Miller, a historian in the manuscripts division of the Library of Congress.
Monday, August 28, 2017
The Center for Constitutional Law at the University of Akron School of Law will host Professor Julie Suk as the featured Constitution Day speaker on September 18, 2017.
Professor Suk's talk is entitled "The Constitution of Mothers: Gender Equality and Social Reproduction in the United States and the World."
One of the largest mobilizations in recent American history was the Women’s March of 2017, with millions of participants in U.S. cities and in concurrent events throughout the world. Despite diverse backgrounds and agendas, the marchers unified around the general theme of equality for women. It was a constitutional moment: The unity principles included a call for a new Equal Rights Amendment to the U.S. Constitution, and in March 2017, Nevada became the first state to ratify the ERA 35 years after the 1982 deadline had lapsed. Nevada’s ratification raises questions about the legitimacy of post-deadline ratification of a Congressionally adopted constitutional amendment, as well as deeper normative questions about the desirability and meaning of constitutionalizing equal rights for women in the 21st century. If Nevada’s ratification is valid or can be made valid by Congressional action, two additional states’ ratifications will put the ERA in the U.S. Constitution. Would such an amendment change what the law does, or would it be merely symbolic?
This lecture will argue that an ERA is needed in the twenty-first century, but for reasons different from those that motivated the 1972 adopters. Meanwhile, most constitutions around the world explicitly guarantee sex equality, and many of these constitutions also guarantee special protections for mothers. Drawing on global constitutionalism, this lecture argues that constitutional equality for women must go beyond prohibiting sex distinctions in the law, and reach the disadvantages faced by largely by women due to the burdens of raising the next generation of citizens. The challenge of making the constitution regulate social reproduction, however, is illustrated by the history of women’s participation in advocating for the Prohibition Amendment and its repeal, both of which engaged the politics of the home and child-rearing. The legacy of women’s past struggles to change the Constitution, in light of contrasting narratives outside the United States, should inform our present gender equality efforts.
Full details here: Download ConLawSpeakerSukF2017
Julie Suk is a Professor of Law at the Cardozo School of Law – Yeshiva University in New York, where she has taught since 2005. She is a leading scholar of comparative equality law. Her research brings a transnational perspective to equality and antidiscrimination law in the United States, drawing on primary legal materials in multiple languages from multiple jurisdictions. Professor Suk's articles compare European and American approaches to a broad range of issues in law and public policy, such as the enforcement of antidiscrimination norms in various legal systems around the world, holocaust denial, maternity leave, and women’s equal representation in political and corporate leadership positions. Professor Suk’s current research projects focus on women, work, and family in comparative constitutional law, as well as education rights in the context of socioeconomic inequality. Representative publications include: An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (Yale Journal of Law and Feminism), Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict (Columbia Law Review), Discrimination at Will: Job Security Protections and Equal Employment Opportunity in Conflict (Stanford Law Review), Gender Parity and State Legitimacy: From Public Office to Corporate Boards (International Journal of Constitutional Law).
Wednesday, June 28, 2017
Douglas NeJaime, The Nature of Parenthood, 12 Yale L.J. 2260 (2017)
In the wake of Obergefell v. Hodges, courts and legislatures claim in principle to have repudiated the privileging of different-sex over same-sex couples and men over women in the legal regulation of the family. But as struggles over assisted reproductive technologies (ART) demonstrate, in the law of parental recognition such privileging remains. Those who break from traditional norms of gender and sexuality — women who separate motherhood from biological ties (for instance, through surrogacy), and women and men who form families with a same-sex partner — often find their parent-child relationships discounted.
This Article explores what it means to fully vindicate gender and sexual-orientation equality in the law of parental recognition. It does so by situating the treatment of families formed through ART within a longer history of parentage. Inequalities that persist in contemporary law are traceable to earlier eras. In initially defining parentage through marriage, the common law embedded parenthood within a gender-hierarchical, heterosexual order. Eventually, courts and legislatures repudiated the common-law regime and protected biological parent-child relationships formed outside marriage. While this effort to derive parental recognition from biological connection was animated by egalitarian impulses, it too operated within a gender-differentiated, heterosexual paradigm.***
To protect the parental interests of women and of gays and lesbians, this Article urges greater emphasis on parenthood’s social dimensions. Of course, as our common law origins demonstrate, the law has long recognized parental relationships on social and not simply biological grounds. But today, commitments to equality require reorienting family law in ways that ground parental recognition more fully and evenhandedly in social contributions. While this Article focuses primarily on reform of family law at the state level, it also contemplates eventual constitutional oversight.
Thursday, June 22, 2017
Linda Greenhouse, Justice Ginsburg and the Price of Equality, NYT, discussing Ginsburg's opinion in the recent case Sessions v. Morales-Santana finding a citizenship rule that treated unwed fathers differently than mothers to violate equal protection, but denying the remedy of extending the beneficial mother's rule to fathers.
And what about Justice Ginsburg? Can we assume she’s happy with the outcome of the case, or do we suppose she wrote the remedial section with gritted teeth? Twenty-four years ago, in July 1993, she was President Bill Clinton’s first Supreme Court nominee, and I covered her Senate confirmation hearing. I had met Judge Ginsburg several times, but didn’t know her well. I found her Judiciary Committee testimony enlightening, and I wrote an analysis that appeared under the headline “A Sense of Judicial Limits.” I described her as “something of a rare creature in the modern judicial lexicon: a judicial restraint liberal.” By that I meant that while her own commitments were to liberal outcomes, she displayed an equally strong commitment to letting Congress take the lead. “In her view, equality — or any other goal — is best achieved if all branches of government have a stake in achieving it.”
So I’m ready to assume that if the remedial portion of her opinion last week was a compromise, it was one she offered willingly. Her “over to you, Congress” handoff may seem naïve in the present political climate, but it conforms with her deepest beliefs about the appropriate judicial role.
And it’s worth remembering that from her earliest years as a nervous young lawyer standing before the nine men of the Supreme Court, Ruth Ginsburg has always played a long game, with the ultimate goal, equality of the sexes, constantly in view. As this case turned out, the price for equality was high. But I don’t doubt that for Justice Ginsburg, it was a price worth paying for being able to strike a blow against still another law based on a generalization about the way “men and women are.”
I have previously blogged about my thoughts on Ginsburg's decision leveling down the remedy for equal protection. See SCOTUS Denial of Equal Protection Remedy Jeopardizes Equality Law: What was Justice Ginsburg Thinking?
Monday, June 19, 2017
I invite you to participate in the Constitutional Remedies virtual symposium in November at the Center for Constitutional Law at Akron. As a “virtual” symposium, there’s no need for travel – you can join from the comfort of your own computer via video conferencing. Papers are short (10 pages max), designed to trigger discussion and inform debate. The topic is broad, embracing issues of remedies and the Constitution appearing daily in the news. Topics submitted thus far include leveling down remedies for equal protection, enforcement of religious liberty, Eleventh Amendment concerns with contempt for the government, and TROs in the immigration cases.
We’ve extended the deadline until August 15. Full details below.
Call for Proposals
VIRTUAL SYMPOSIUM: CONSTITUTIONAL REMEDIES
The Center for Constitutional Law at Akron
Friday, November 10, 2017
Constitutional Remedies. The focus of this symposium is on the Constitution and Remedies, broadly defined. Topics for discussion might include issues of remedies for constitutional harms, constitutional concerns with remedies, or comparative constitutional remedies across countries. Such issues dominate the headlines—from immigration travel bans to religious liberty concerns to police force injunctions and national injunctions on executive power. The symposium is designed to be an interactive roundtable, allowing for deeper discussion and questioning beyond mere presentation.
Virtual Symposium. This symposium will be conducted virtually, that is by video web conferencing. The idea is to make it easier for scholars to participate and share ideas, without the barriers of travel such as limited university travel budgets, family obligations, or the demands of teaching and administration. Participants will just need a computer with a webcam and microphone to participate.
Symposium Papers. Proposals for the symposium should be related to the topic of constitutional remedies and intended to produce a short final essay of about 10 published pages. Proposals should be submitted to Professor Tracy Thomas at email@example.com by August 15, 2017. Drafts of accepted papers for the symposium should then be completed by November 1 in time for circulation to and review by participants in advance of the symposium. Finalized essays will then be published in a dedicated symposium issue in the Center for Constitutional Law’s online journal, ConLawNOW an open access journal available to interdisciplinary scholars, journalists, as well as legal scholars (also available on Westlaw).
Thursday, June 15, 2017
Katie Eyer, Protected Class Rational Basis Review, 95 N.C. Law Rev. (2017)
It is commonplace today to associate rational basis review exclusively with groups that are not formally afforded heightened scrutiny under the Supreme Court’s equal protection precedents: groups like gays and lesbians, people with disabilities, and undocumented immigrants. Thus, discussions of the benefits of nurturing a jurisprudence of meaningful rational basis review typically focus exclusively on such “unprotected” groups. In contrast, rational basis review is rarely thought of as providing important protections for groups such as racial minorities and women, who have secured “protected class” status and therefore are subject to regular heightened review of group-burdening classifications.
Drawing on extensive original archival research, this Article challenges this common conception. Race and sex discrimination litigators have often historically relied on rational basis arguments as a complement to heightened scrutiny. And during eras when robust rational basis review was prevalent—such as the 1970s—these claims have often succeeded. Today, as a result of, inter alia, the LGBT rights cases (which have expanded judicial conceptions of the scope of rational basis review), we stand at a moment of increased possibility for meaningful rational basis review. Rational basis arguments thus ought to form a part of how we conceptualize the contemporary possibilities for race and gender justice claims.
Such an approach has the potential to revitalize what has long been a stalled constitutional jurisprudence around sex and race discrimination. As many scholars have acknowledged, it is extraordinarily rare for courts today to find that a government actor engaged in intentional discrimination against women or racial minorities—the contemporary standard for triggering heightened scrutiny. But as the history unearthed herein demonstrates, courts (especially lower courts) have, at times, been willing to find that racially and gender-impactful laws violate rational basis review. Moreover, such review has often had the capacity to undermine widely shared assumptions regarding the rationality of entrenched structures of race and gender oppression. As such, protected class rational basis review may present one of the few realistic alternatives for reviving a meaningful project of race- and gender-based constitutional change today.
A summary from SCOTUSblog:
At Dorf on Law, Michael Dorf focuses on “the Court’s remedy” in Morales-Santana – “leveling down” so that no one gets the previously unequally distributed benefit rather than “leveling up” so everyone does – “and how Justices Thomas and Alito approached the case”; he maintains that “[b]y mischaracterizing the Court’s holding they evade responsibility for judging the case on the merits.” At the Gender and the Law Prof Blog, Tracy Thomas also looks at the remedy, criticizing the decision as a “literal roadmap for future courts to deny the ‘extension’ remedy and instead order the ‘withdrawal’ of benefit in cases of sex discrimination” and calling it “one giant step backwards.” In a two-part post on the Human Rights at Home blog, here and here, Deborah Brake explains that “[a]lthough the remedial issue in Morales-Santana is admittedly a thorny one, the Court’s analysis, limited to a determination of what the legislature would have wanted, fails to do justice to the full scope of equality rights and what is required to remedy violations of such rights”; she argues that the court “short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights.”
Here's more from Debbie Brake, Remedial Grief:
The remedy that the Court ordered – nullification rather extension of the more favored treatment – is a classic example of leveling down in response to a violation of equality rights. The problem of leveling down – that everyone can be made worse off from the successful invocation of equality rights – is endemic to equality law, whether its source is constitutional or statutory. One of the most famous examples of leveling down occurred when Jackson, Mississippi, after losing a case challenging the city’s operation of racially segregated swimming pools, decided to close the pools rather than integrate them. The disappointed African American residents of Jackson sued, challenging the pool closure as a violation of the equal protection clause. The Court disagreed, finding the city’s response, closing the pools for everyone, was racially neutral and ended differential treatment.
This tried and true tactic is not merely a remnant of segregation. Leveling down surfaces periodically as a response to equality claims. In Title IX litigation challenging unequal opportunities for girls and women in sports, schools often threaten that such claims will only result in their taking opportunities from male athletes, ending the discrimination with no benefit to female athletes, and leaving them holding the blame for making male athletes worse off. In an example from another case, a pregnant girl who was kicked out of the school’s National Honor’s Society for becoming pregnant successfully sued her school for sex discrimination. Instead of responding by letting the girl participate, the school ended its participation in the National Honor Society altogether – it leveled down. Left unchecked, leveling down can be an effective strategy for de-railing equality claims altogether. Worse yet, in some cases (though not all), the leveling down can exacerbate the stereotypes and injuries from the original discrimination. ***
Leveling down is a thorny and under-analyzed response to discrimination, and one that courts often fail to give sufficient attention. The Morales-Santana decision is no exception. Justice Ginsburg’s opinion for the Court discerns two principles for deciding between nullification and extension. One the one hand, the Court identifies a general preference for extension. On the other hand, the Court confidently asserts that the choice between nullification and extension turns on legislative intent, and how the legislature, had it known that the offending provision would be found unconstitutional, would cure the violation. The Court’s invocation of these two principles is somewhat mystifying. The Court does not identify any source from which a preference for extension derives, other than to cite its own cases blithely asserting that such a preference exists (again, without identifying its source). Nor does the Court attempt to square the preference for extension with the decisive role it gives to legislative intent. If legislatures are more likely to favor extension over nullification in their intent, there is no attempt to prove this as an empirical matter. In the end, the preference for extension seems to drop out of the picture in the face of the Court’s discernment of a legislative intent to nullify rather than extend the favored treatment.
By retreating to congressional intent and abandoning the general preference for extension, the Court does a disservice to the development of equality law, leaving no discernible check on leveling down where the entity that discriminated (in this case, the Congress) desires to remedy the violation by removing the benefit from all rather than extending it to the disfavored group. Because the Court viewed Congressional intent as dispositive, the Court treated the remedy as a closed issue, having discerned a congressional preference for nullification.
And Brake, Remedial Grief, Part 2:
The analysis advocated here often eludes easy answers and this case is no exception. My disagreement with the Court is not necessarily that it reached the wrong result, but that it short-circuited the analysis, leaving leveling down remedies unchecked and with the potential to undermine equality rights. The touchstone should not be the remedial preference of the discriminator, but an analysis of whether nullification fully remedies the injury of the discrimination and whether it functions to punish the assertion of equality rights. The Court should have considered whether reverting to the stricter residency requirements for all parents fully eradicates the underlying gender stereotypes about the strength of maternal bonds and the low expectations for paternal influence on children’s values. Given that Congress was willing to ease up on the residency requirements for citizen mothers, does its abandonment of the more lenient rule if it had to include fathers reflect a deep-seated resistance to viewing unwed fathers as legitimate parents, regarding them as insufficiently bonded to their children to deserve citizenship-conferral rights? Or would it reflect a judgment, free from gender stereotypes, that the longer residency is appropriate for all parents in order to ensure the transmission of American values? The relationship between the constitutional injury and the remedy may be difficult to parse, but it is not determined merely by asking the question of what the legislature would have wanted.
Wednesday, June 14, 2017
I blogged yesterday about the Supreme Court's decision in Sessions v. Morales-Santana and its remedying of sex discrimination by leveling down, or withdrawing a benefit from one sex, rather than leveling up and extending the benefit to both.
Here is more on the leveling down remedy.
Michael Dorf, Equal Protection and Leveling Down as Schadenfreude
My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers.
As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.
Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.
To see why, we need a brief recap of Heckler v. Mathews. The Social Security Act contained a provision that conferred certain benefits on women but not men. In what Congress no doubt thought was a fiendishly clever poison pill, the statute also provided that in the event that the courts struck down the sex-based preference, no one would get the benefit, i.e., the fallback was leveling down. Then, when a man challenged the law as sex discrimination, the government argued that he lacked standing, invoking the poison pill: Even if the male challenger prevailed on his equal protection claim, the government said, he wouldn't get any benefit; thus his injury was not redressable by a favorable ruling.
The SCOTUS disagreed. Although validating Congress's right to level down via a fallback provision, the Court said that the plaintiff's injury was nonetheless redressable by a favorable ruling. Sure, he wouldn't receive the financial benefit but he would get something else of value, namely, equal treatment. ***
Leveling down as a remedy for an equal protection violation has an element of schadenfreude about it. But it nonetheless comports with our notions of what equality is about.
Perhaps that is what formal equality is about. But feminists talk about equity as a concept broader than pure parallelism and providing equal opportunity for all. Thus, I would argue, formalism and leveling down is not an adequately meaningful remedy for a constitutional violation.