Wednesday, June 27, 2018
On May 30, Illinois became the 37th state to pass the Equal Right Amendment (ERA), which says, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Next, advocates aim to secure the final state needed to ratify the amendment. They will probably target Virginia, North Carolina or Georgia.
True, the deadline to ratify the ERA came and went in 1982. But that may not be a dealbreaker. Some legal strategists argue that since other amendments had no time limit for ratification, the ERA should not have had one, either. Others argue that Congress simply needs to extend the deadline.
Suddenly, almost a century after it was first proposed, the ERA might be within reach.
The law is overdue, culturally and legally. Many Americans assume that the United States already has gender-equality rules. After all, the Civil Rights Act, Title IX and the Equal Pay Act all offer protections against discrimination. But these are pieces of legislation. New laws and Supreme Court rulings can diminish their power.
For more on the legal and social history of the ERA as well as the current movement, see my book chapter with historian TJ Boiseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018)
Gerald Magliocca, Buried Alive: The Reboot of the Equal Rights Amendment
This Article addresses the recent effort to revive the proposed Equal Rights Amendment (ERA) to the Constitution. Following ratifications by Nevada (2017) and Illinois (2018), the ERA stands close to the three-fourths vote in the states required for ratification under Article Five. But these recent ratifications are of uncertain validity, as Congress imposed a deadline for the ERA's ratification that expired in 1982.
The paper argues that Congress can waive the expired ratification deadline but should not do so until should not do so until there is no doubt that 38 states have voted for ratification.There is room for doubt on that score because five states rescinded their ratification votes in the 1970s. Congress is free to disregard these rescissions on the ground that a state may not repeal its ratification of a proposed constitutional amendment. Ignoring these state rescissions in addition to waiving the ratification deadline, though, would raise substantial concerns about the ERA’s legitimacy and may lead a future Congress to attempt the reversal of that recognition.
Thus, the wise course is for Congress to refrain from taking action on the ERA until 38 states can be counted as yes votes without the five rescinding states. If Congress decides to include these five states as part of the ratification total, then at least two-thirds of the Senate and the House of Representatives should be required to support that decision—in accord with a precedent established by Fourteenth Amendment--to quiet the doubts about the validity of the ERA’s ratification.
In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.
The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra. Concurrence by Justice Kennedy. Dissent written by Justice Breyer.
Commentary on the decision:
Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy
On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.
For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****
But the court’s decision to treat crisis pregnancy centers as religious institutions has created two contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different.
Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement
These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”
Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions
Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)
One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.
On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.
Tuesday, June 12, 2018
Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, in Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel eds., forthcoming 2019)
We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.
We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.
Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected.
This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey.
The account of Roe’s history the chapter offers can inform both normative and predictive debate about Roe’s future.
Monday, June 11, 2018
Illinois state lawmakers voted Wednesday to ratify the Equal Rights Amendment — decades after Congress’s deadline to ratify the measure expired.
The Illinois House passed the measure 72-45, the Chicago Tribune reported. The state Senate had voted in favor of ratification last month, and it does not require the support of Gov. Bruce Rauner (R).
The passage sets the stage for a possible legal battle over the amendment, since Congress’s deadline for states to ratify the amendment expired in 1982.
But supporters argue that because a 1789 amendment was ratified more than two centuries later, in 1992, the Equal Rights Amendment could still be added to the Constitution, the Tribune noted.
Congress approved the amendment in 1972. But only 35 states ratified it ahead of the deadline, three short of the number required to add it to the Constitution.
Nevada similarly ratified the Equal Rights Amendment last year after the deadline.
Some critics have also questioned the necessity of such an amendment, saying federal laws have already been passed to extend equal rights to women. Stone said ratification of the amendment “would make some difference in marginal cases where the law allows discrimination today” and “lock in” many of the federal protections women have gained over the decades.
“The main reason for adopting the Equal Rights Amendment today if one could legally, constitutionally do it would be the symbolic importance of it,” Stone said. “The rejection of it is in some ways insulting. So, the symbolic importance of it is to who we are as a nation — what our aspirations are, what our values are. That in itself is an important affirmation of who we are.”
For the legal history of the ERA from beginning to end, see my chapter with TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women's Political Activism (Holly J. McCammon & Lee Ann Banaszak, eds.) (Oxford Press 2018)
The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term), as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).
Friday, May 11, 2018
Developing Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions
Jim Newberry & William E. Thro, After the Dear Colleague Letter: Developing the Enhanced Due Process Protections for Title IX Sexual Assault Cases at Public Institutions, Journal of College & University Law (forthcoming).
Since the formation of the American Republic, Americans have maintained a fundamental mistrust of government power. In the Title IX realm, the Obama Administration exacerbated those concerns. In its efforts to enforce Title IX and to reduce sexual misconduct on campuses, the Obama Administration issued a “Dear Colleague Letter” in April 2011 and a follow up Question and Answer document in April 2014, both of which set out OCR’s view of the obligations of institutions receiving federal financial assistance under Title IX and its implementing regulations. This 2011 Dear Colleague Letter “explains the requirements of Title IX pertaining to sexual-harassment also cover sexual violence, and lays out the specific Title IX requirements applicable to sexual violence.”
As Fifth Circuit Judge Edith Jones observed, this 2011 Dear Colleague Letter, “was not adopted according to notice-and-comment rulemaking procedures; its extremely broad definition of ’sexual harassment’ has no counterpart in federal civil rights case law; and the procedures prescribed for adjudication of sexual misconduct are heavily weighted in favor of finding guilt.” Specifically, the Dear Colleague Letter and the 2014 OCR Q & A document: (1) suggest institutions handle sexual assault cases with a single person serving as detective, prosecutor, judge, and jury; (2) maintain hearings are not required; (3) imply “the school should not start the proceedings with a presumption of innocence, or even a stance of neutrality . . . [but with an assumption] any complaint is valid and the accused is guilty as charged;” (4) forbid the consideration of the complainant’s sexual history with anyone other than the accused student; (5) discourage cross-examination; (6) allow an appeal of not guilty verdicts; and (7) mandate a preponderance of the evidence—rather than clear and convincing evidence or beyond a reasonable doubt—as the standard for determining guilt. Although the 2011 Dear Colleague Letter and the 2014 Q & A result in an increased focus on the problems of sexual assault on campus, some scholars have suggested these documents undermine due process.
On September 22, 2017, the Secretary of Education released new guidance that revoked both the 2011 Dear Colleague Letter and the 2014 Q & A document. Instead, OCR established Revised Sexual Harassment Guidance as the guiding light for future assessments of institutional compliance. Further, the Secretary announced her plans to initiate a “rulemaking process that responds to public comment.” The proposed rulemaking process will undoubtedly address multiple stakeholder concerns with the approach to sexual misconduct, but one anticipates that due process concerns for public institutions will be near the top of the list of concerns addressed in rulemaking effort.
The purpose of this Essay is to set out a vision for what due process in the Title IX sexual assault context should look like. In accomplishing this purpose, the authors—drawing on existing case law, policy arguments, and their own experiences as higher education lawyers—propose a set of due process protections which will equitably balance the interests of (a) Complaining Witness seeking redress for multiple forms of sexual misconduct, (b) Respondents seeking protection against lifelong stigmas arising from unfair campus proceedings, and (c) institutions of higher education seeking to eliminate all forms of educational program discrimination based on sex.
Thursday, May 10, 2018
The American Civil Liberties Union stepped in this week to defend the choice of students at a Florida high school to go bra-free, saying the school’s threat to impose a mandatory bra policy for girls amount to sex discrimination.
The ACLU says Braden River High School in Bradenton violated a 17-year-old student’s rights last month after it required her to cover her nipples with adhesive bandages, saying her undergarment-free look had become a distraction to fellow students, including boys who laughed or stared at her.
Lizzy Martinez was pulled from class, given an extra shirt and, when that wasn’t deemed enough, given the bandages. She was then sent back to her classroom after what she called a humiliating experience.
“Stop sexualizing my body,” she said, taking to Twitter to ding her school.
She attempted to lead a boycott, urging fellow students to come to school without bras or speak out about her treatment, but the school warned that this too could be deemed a distraction.
. . . .
Elizabeth M. Schneider, a professor at Brooklyn Law School, said schools need to be wary of citing distractions as the basis for their rules. She said educational institutions, like law schools, used to exclude women on the basis that their presence would distract male students and thus inhibit learning.
“The high school is playing into a very old and illegal concept in using the theme of distraction as a ground for differential treatment,” Ms. Schneider said.
She also said it would be unconstitutional to make it mandatory for female students to wear bras.
“Unless you are going to do a body check of every woman student who comes through the door, which would be even far more illegal, it’s impossible to check,” Ms. Schneider said.
Tracy A. Thomas, a professor at the University of Akron School of Law, said Lizzy’s situation is representative of the #MeToo movement with women coming forward sharing experiences of sexual harassment.
“Girls are surprised and hurt when they learn that their fellow male students and the administrators view them through this sexualized lens,” she said.
She suggested school policies punish boys for inappropriate comments, rather than shame female students.
A related earlier blog post is here.
Tuesday, May 1, 2018
The ACLU is intervening after [Lizzy] Martinez, a 17-year-old junior at Braden River, was disciplined for not wearing a bra under her shirt to school due to a painful sunburn. School administration removed her from class, told her she was distracting other students, and required her to put Band-Aids over her nipples for the rest of the day. The school maintained that it was doing this in Martinez’s best interest — but then proceeded to block her on Twitter when she complained that she felt sexualized, and it discouraged students from participating in a student protest against the stigmatization of female bodies.
The ACLU letter to the school district is here and it is well worth the read.
As described above, the justification proffered for the enforcement of the dress code against Ms. Martinez was rooted in sex stereotypes that male students were “distracted” by her nipples and a paternalistic desire to “protect” Ms. Martinez from the laughter and stares of her male classmates. The justification reflects overly broad and archaic generalizations about boys’ inability to control their sexual impulses and girls’ inability to make their own decisions about the clothing that makes them feel safe and comfortable. These stereotypes reinforce a culture of victim blaming in which schools convey the message to female students that they are at fault for experiencing sexual harassment if they make certain clothing choices. The Supreme Court has long struck down policies based on “‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.”
The biased enforcement of the dress code against Ms. Martinez and other female students jeopardizes their equal access to education by forcing them to miss important class time. As described above, Ms. Martinez missed multiple days of school, including three tests. It also prioritizes male students’ freedom from “distraction” over female students’ physical comfort.
Wednesday, April 18, 2018
The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.
The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.
However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...
In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.
“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.
She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”
However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.
“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.
The First Circuit Court of Appeals case is here, March v. Mills (2017)
Tuesday, April 10, 2018
My latest article thinking about gender and remedies.
Tracy A. Thomas, Leveling Down Gender Equality
The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute. The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers. It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case.
This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of. It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants. In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools. In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men. And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.
Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality. This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors. When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off. But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.
The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination. This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision. It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end. Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy. It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional. The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.
This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality. But this is where the Court went wrong. The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection. Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board. Equality itself, as a constitutional right, dictates more than just empty formalism. And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised. For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court. Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.
This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers. Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course. It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy. Given these constitutional norms, the Article then argues that the remedial calculus should be changed. Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut. Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself. Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.
Friday, April 6, 2018
Kayla Louis, Pornography and Gender Inequality: Using Copyright Law as a Step Forward, 24 William & Mary J. L. 267 (2018)
The pornography industry generates billions of dollars of revenue annually. The industry relies heavily on protection from copyright law in order to distribute its materials without them being freely taken by others. In other words, copyright law currently operates as an economic incentive to pornographers. Unfortunately, this lucrative industry has negative effects on gender equality. Pornography promotes harmful gender roles for both women and men. Women are portrayed as merely sexual objects who enjoy any type of penetration imaginable, even if it is rape. They are objectified and dehumanized. Men are shown as animalistic, performance-based, and without morals. As a whole, pornography can lead to behavioral, psychological, and social problems. Beyond the social harms to both men and women, the performers themselves suffer physical harms. As a form of prostitution, filmed pornography contributes to the demand for trafficking, and many women are coerced into the industry.
The government’s denial of copyright protection to speech based on content would potentially violate the First Amendment. However, the Supreme Court has made clear that not all content deserves free speech protections. Rather, “obscene” materials, as described in Miller v. California, are not protected under the First Amendment.
This Article argues that pornography is an actual problem that warrants denial of copyright protection as a method to disincentivize pornographers.
Wednesday, March 21, 2018
Cary Franklin, Biological Warfare: Constitutional Conflict Over 'Inherent Differences' Between the Sexes, Supreme Court Review (forthcoming)
Equal protection law no longer recognizes so-called “inherent differences” among the races as a justification for discrimination. The law takes a different view of sex. It continues to recognize “inherent differences” as a legitimate ground for treating men and women differently — as long as the differential treatment does not perpetuate women’s subordination or reinforce traditional sex stereotypes. This doctrine raises a host of difficult questions, most notably, what counts as an “inherent difference”?
The Court confronted that question twice in its 2016 Term. In Pavan v. Smith, the Court had to decide whether Arkansas could treat same-sex couples differently from different-sex couples with respect to their children’s birth certificates. In Sessions v. Morales-Santana, the question was whether the federal government, for purposes of assigning citizenship, could treat non-marital children born abroad to mixed-nationality couples differently depending on the sex of their U.S. citizen parent. In both cases, the Court rejected the government’s ostensibly biological justification for the differential treatment. But the new and important ways in which it reasoned about biology in these cases has not received much notice. Commentators treated Pavan as an obvious and relatively unimportant extension of the Court’s famous 2015 same-sex marriage decision. Meanwhile, so much was happening in the context of immigration when Morales-Santana came down that it did not attract much attention — and what attention it did attract tended to focus on the unusual remedy the Court adopted, not its reasoning about biology.
This Article argues that Pavan and Morales-Santana, especially when read together, are surprisingly transformative and consequential decisions. In the past, the Court has declined to apply heightened scrutiny to biologically-justified sex classifications in contexts involving gay people and unmarried fathers. As a result, these contexts have become repositories of specious biological justifications for discrimination; pregnancy, in particular, has been understood to justify all manner of differential treatment in these areas. In Pavan and Morales-Santana, the Court broke with this tradition by genuinely scrutinizing the state’s pregnancy-based justifications for discriminating and finding them constitutionally inadequate. In so doing, it struck a serious blow against the most formidable barrier to equal protection where gay people, unmarried parents — and pregnant women — are concerned.
Friday, March 16, 2018
An Ohio federal district court judge blocked legislation that would have banned abortion in cases where a fetus is diagnosed with Down syndrome.Republican Gov. John Kasich signed the legislation into law in December of last year, and it was scheduled to go into effect March 23. The legislation is now blocked until a final ruling is made in the lawsuit.In a court order granting a preliminary injunction Wednesday, Southern District of Ohio Judge Timothy Black said that federal abortion law is "crystal clear" that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."...The law prohibits abortions after prenatal tests reveal Down syndrome in a fetus, or if there's "any other reason to believe" the fetus has the genetic condition.A person performing an abortion in such a case could face a fourth-degree felony charge, and physicians could lose their licenses. The woman seeking the abortion would not be held accountable, according to the legislation.The ACLU filed a complaint in mid-February calling the legislation unconstitutional.....Similar laws have passed in North Dakota and Indiana, though a federal judge blocked the Indiana law. The North Dakota law went into effect in 2013.
FYI, Judge Black was also the trial judge in the Obergefell case on same-sex marriage.
The decision in Pre-Term Cleveland, et al v. Himes is here: Order Granting Preliminary Injunction (March 14, 2018)
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.