Wednesday, July 5, 2017
Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)
Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.
Wednesday, June 28, 2017
Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen. Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922). So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her. Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point.
As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges. I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away. My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role.
Tuesday, May 30, 2017
1. Do nude pictures of parents help judges decide who should get custody?
2. A silly question?
3. Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?
4. And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
5. If the objective was to humiliate the mother, undoubtedly the father succeeded
6. But how does humiliation help in family court?
7. How does irrelevant and scandalous information help a judge determine the best interests of the child?
8. More importantly -- from the child’s perspective -- what is the long-term impact of this needlessly hurtful approach to litigation?
12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:
Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
Intimidating and threatening behaviour often becomes self-evident in texts.
A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.
13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.
14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.
15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.
29g. The Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother.
32d. All of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past.
[h/t Sonia Lawrence]
Tuesday, May 2, 2017
Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)
The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.
Thursday, April 27, 2017
Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).
Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.
I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.
I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.
When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.
Friday, March 24, 2017
A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.
Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.
Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.
There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.
In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”
A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.
In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.
For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016).
Tuesday, March 21, 2017
Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)
Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***
Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.
California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.”
In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.
Tuesday, February 21, 2017
Judge Nancy Gertner, Keynote Speaker, Univ. of Baltimore 9th Feminist Legal Theory Conference (Mar. 2016)
I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge.
Monday, February 13, 2017
Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments
Abstract:Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.
This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.
Tuesday, January 17, 2017
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Friday, January 6, 2017
The West Virginia Supreme Court will have a female majority for the first time when Beth Walker takes the bench next week.
Walker will join Justices Margaret Workman and Robin Davis in making West Virginia one of 11 top courts that will have a majority of justices who are women in 2017.
Other states with a female majority are Arkansas, California, Maryland, Massachusetts, Minnesota, New Mexico, New York, Tennessee, Washington and Wisconsin.
Thursday, July 7, 2016
Josephine Dawuni & Alice Kang, Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa, 62 Africa Today 45 (2015)
In recent years, women have been selected as leaders of African judiciaries. This article identifies where and when women have become chief justices and presidents of constitutional courts from 1990 to 2014. We profile women from three civil-law and three common-law countries and find that the women selected meet or exceed the requirements for holding the highest position in the judiciary. We then explore why some African countries, but not others, have had female judicial leaders. We initially find that the selection method may be less important than the type of legal system, the commitment of gatekeepers, the end of major armed conflict, and regional diffusion in explaining why some countries have seen women rise to leadership positions in the judiciary.
Thursday, March 17, 2016
Time will tell, but his moderate record and service under Justice Brennan speak volumes about his ability to think objectively, which will almost certainly help in the way of making strides forward for women.
The ninth Supreme Court justice could determine the fate of reproductive rights for millions of American women -- but Merrick Garland, President Barack Obama's nominee to fill the vacancy on the court, has not specified where he stands on abortion or whether he would uphold the decision made in the landmark abortion rights case Roe v. Wade.
Garland, a relatively moderate federal appeals judge in Washington, D.C., has never decided a case that has clarified his views on the subject. As USA Today pointed out on Wednesday, "During 19 years at the D.C. Circuit, Garland has managed to keep a low profile. The court's largely administrative docket has left him without known positions on issues such as abortion or the death penalty."
Yet nobody seems to know what Judge Garland thinks about abortion. He won’t have a say in the current abortion case, but his position could be important for future abortion rulings.
Demographically, it seems likely that Garland is probably pro-choice: he’s not super-conservative, he’s Jewish, and he’s the father of two daughters (and Judges with daughters are more likely to rule in favor of women’s rights). But nobody knows for sure.
“Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.
“When, however, Judge Garland participated in a divided ruling, it was generally in favor of the plaintiff.
A search of Westlaw shows that most commentary by and on Judge Garland in the legal literature is on administrative law, as would be expected given the DC Circuit's caseload, and antitrust law (from his practice days).
Monday, February 15, 2016
What can be said about Scalia’s legacy to women and the law? Well, he has generally voted against cases implicating women’s rights for the last twenty-five years.
Scalia (in)famously said in an in an interview in 2011: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
Against class actions for sex discrimination Wal-mart v. Dukes, 564 U.S. ___ (2011) (Scalia, J., majority opinion)
Family Medical Leave Act Nevada v. Hibbs, 538 U.S. 721 (2003) (Rehnquist, J., majority opinion)
Against state worker remedies for FMLA self health-care provision Coleman v. Court of Appeals of Maryland, 566 U.S. ___ (2012) (Scalia, J., concurring)
Against pregnancy accommodations Young v. UPS, 575 U.S. ___ (2015)
Against retaliation claims Title IX Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005)
Education United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting)
Much of the Court's opinion is devoted to deprecating the closed mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed minded they were--as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all men's military academy--so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States--the old one--takes no sides in this educational debate, I dissent.
Against civil remedy of the federal Violence Against Women Act United States v. Morrison, 529 U.S. 598 (2000)
Against suit to enforce police enforcement of protection orders Castle Rock v. Gonzales, 545 U.S. 748 (2005) (Scalia, J., majority)
Against abortion protest buffer zones McCullen v. Coakley, 573 U.S. ___ (2014); Hill v. Colorado, 530 U.S. 703 (2000) (Scalia, J., dissenting); Madsen v. Women's Health Center, 512 US 753 (1994) (Rehnquist, J., majority)
For reasonable search of pregnant patients by hospital drug test for criminal prosecution Ferguson v. Charleston, 532 U.S. 67 (2001) (Scalia, J., dissenting)
Against the healthcare contraceptive mandate Burwell v. Hobby Lobby, 573 U.S. ___ (2014)
The few cases in which Scalia voted in support of the decision for women’s rights were unanimous decisions or otherwise earlier in his SCOTUS career, statutory, and often accompanied by his own concurring reservations.
Title IX private cause of action and remedies Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992) (“too late in the day” to hold otherwise) (Scalia, J., concurring)
Harris v. Forklift Systems, 510 U.S. 17 (1993) (Scalia, J., concurring) (“I know of no alternative to the course the Court today has taken.”
Front-pay hostile environment claims Pollard v. E.I. Dupont, 532 US 843 (2001) (unanimous decision)
Constructive Discharge PA State Police v. Suders, 542 U.S. 129 (2004)
Retaliatory discrimination Burlington v. White, 548 U.S. 53 (2006) (unanimous)
Pregnancy Discrimination Act prohibits workplace fetal protection laws UAW v. Johnson Controls, 499 U.S. 187 (1991) (Scalia, J., concurring)
Punitive damages employment discrimination Kolstad v. American Dental Assoc., 527 U.S. 526 (1999)
Direct evidence in mixed-motive case not necessary Desert Palace v. Costa, 539 U.S. 90 (2003) (unanimous decision)
Davis v. Washington, 547 U.S. 813 (2006) (Scalia, J., majority opinion) upholding a 911 call in a domestic violence case against Sixth Amendment challenge (unanimous decision)
Wednesday, January 27, 2016
Judge Admonished for Sexist Treatment of Women in his Courtroom, Including Asking Female DA to Get Coffee
A California judge has been admonished for his treatment of women in his courtroom, including an incident in which he asked a female prosecutor to get him a cup of coffee.
Judge Joseph Bergeron of San Mateo County was admonished (PDF) on Jan. 25, according to a press release. The coffee incident was one of three incidents cited by the California Commission on Judicial Performance. The Recorder (sub. req.) has a story.
The coffee incident occurred in December 2014, according to the commission. As a female deputy district attorney was leaving the courtroom, Bergeron asked if her office was across the hall and whether coffee was available. He conveyed that he would like the prosecutor to bring him coffee, though “the facts about how he inquired, including the point at which he handed her his empty coffee mug, are in dispute,” the commission said.
The prosecutor responded “in a sarcastic manner intended to convey the impropriety of his request what kind of coffee he would like and whether he would like cream and sugar,” the commission said. Bergeron responded he would make it easy and would take his coffee black. As she was leaving, Bergeron said that if he had cash, he would give the prosecutor a tip.
When the prosecutor returned with the coffee, she said, “Is there anything else I can do for you, Your Honor? Can I iron your shirts?”
The first incident happened on Aug. 28, 2014, when a clerk not regularly assigned to Bergeron’s courtroom was working.
As he was presiding over two criminal matters, the clerk went to retrieve a file from the judge. Bergeron asked her if she plays baseball, and then hit her in the chest with a crumpled calendar. He did the same thing later in the day.
Judicial Profile, Judge Joesph Bergeron. Noted "Expectations" for his courtroom. "Please be on time and always be polite."
Thursday, October 22, 2015
More on the forthcoming book from the U.S. Feminist Judgments Project
FYI - the Conference on the project Rewriting the Law. Writing the Future. is next year, October 20 & 21, 2016 at the Center for Constitutional Law following the release of the book.
"Feminist Judgments" puts a new spin on famous Supreme Court cases.
In 2012, Justice Ruth Bader Ginsburg made headlines by saying she hoped to see an all-female Supreme Court one day. "When I'm sometimes asked when there will be enough [women justices] and I say, 'When there are nine,' people are shocked," she explained during a legal conference in Colorado. Nobody "ever raised a question" when nine men dominated the court, added the now-82-year-old, one of three women on the bench today.
If Ginsburg got her wish, what might that mean for America? And what if women had taken a majority of seats on the highest court a long time ago? That's a question raised by dozens of feminist law scholars and lawyers across the United States who are putting together a new book, Feminist Judgments, in which they re-examine 24 of the most significant Supreme Court cases related to gender—dating from the 1800s to the present day—and rewrite the court's final decisions as if they had been the judges.
More than 100 people applied to help write the book, which will be published sometime next spring, according to Kathryn Stanchi, a law professor at Temple University and one of three editors overseeing the project. All selected applicants agreed to follow an important rule: They could only base their revision on the legal precedent that bound the Supreme Court back when the case was first decided.
Saturday, September 5, 2015
Sotomayor spoke candidly about her position, giving students an intimate look at the inner workings of the highest court in the country.
"We agree almost unanimously, but this year I think we agreed less," Sotomayor said, referring to this year's exceptionally monumental caseload.
But Sotomayor also told her audience that she didn't feel like she like she "fit in" on the bench.
"I'm very different from my colleagues," said Sotomayor, who explained that she's more public and outspoken than the other justices.
As the first Hispanic justice and the third woman on the court, Sotomayor fielded several questions about her background and how it shapes her opinions and decisions.
"I don't think I'm really given permission, based on just being a Latina just being a woman, to make judgments," she said. "I have to take into account not only my life experiences but those of my colleagues who are explaining their positions to me."
Tuesday, August 11, 2015
My colleague Will Huhn explains the decision "Follow the Law": Ohio Judges Must Perform Same-Sex Marriages
On Friday, August 7, the Ohio Supreme Court's Board of Professional Conduct issued an opinion entitled "Judicial Performance of Civil Marriages of Same-Sex Couples." The Board ruled:
A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.
The Board's opinion is available at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2015/Op_15-001.pdf.
The Board of Professional Conduct is a 28-member body appointed by the Supreme Court of Ohio. It consists of 17 lawyers, seven judges, and four non-lawyers. One of the Board's duties is to issue advisory opinions on matters of attorney and judicial ethics. The Board does not issue a lot of opinions. In each of 2013 and 2014 it issued only four advisory opinions; in 2012 it issued three. The Board's recent opinion regarding a judge's duty to perform same-sex marriages was its first advisory opinion of 2015.
This opinion was triggered by the action of Toledo Municipal Judge C. Allen McConnell, who announced on July 6 that in light of his religious opposition to same-sex marriage he would refuse to perform those marriages, and that he had asked to be relieved of the duty to perform any marriages. See Toledo Judge Declined to Marry Couple Over Christian Beliefs: Same-Sex Couple's Marriage Delayed, Toledo Blade (July 8, 2015).
The Ohio Board of Professional Conduct does not have the power to interpret the law. It only has the authority to construe the various rules and ethical codes that govern the conduct of judges. However, those ethical rules require judges to perform their duties under the law impartially. The Board noted that the United States Supreme Court ruled in Obergefell v. Hodges that under the Constitution same-sex couples have the same right to marry as opposite-sex couples, and that this is therefore the law of the land. If a judge were to refuse to perform same-sex marriages it would be evidence of bias and prejudice that could disqualify a judge from deciding any case involving same-sex couples or sexual orientation. The Board said that the same would be true if a judge refused to perform any marriages at all after Obergefell; this too would be evidence of bias and prejudice.
Tuesday, July 28, 2015
The day is still etched in the Afghan judge’s mind more than a decade later — when she was in Washington, when she met with Supreme Court justices Sandra Day O’Connor and Ruth Bader Ginsburg. She recalls feeling awed and barely present, her thoughts instead flittering back to her country.
“I was asking myself whether we would ever have a similar situation in Afghanistan,“ said Anisa Rasooli, “where a woman judge would become a member of the Supreme Court.”
Last month, Rasooli came close — only to be let down by other women.
Afghanistan’s U.S.-educated president, Ashraf Ghani, had nominated Rasooli to become the country’s first female Supreme Court justice, carrying out an election promise. It was a landmark choice in a country where only 14 years ago, the Taliban Islamist regime bannedwomen from work, education and other parts of public life. They were forbidden from even leaving their homeswithout a male relative and a head-to-toe burqa.
Activists here and abroad were ecstatic. A woman on the bench of the country’s highest court could be an antidote to a growing concern: the erosion of gains in women’s rights as the Western military and aid footprint shrinks.
But then Afghanistan’s conservative establishment asserted itself. Influential Islamic clerics, as well as some male lawmakers, declared that a woman was not fit to try serious criminal cases. Their protests illustrated a continuing struggle pitting age-old traditions and customs against efforts to shape Afghanistan into a modern society.
Still, there were 69 female members in the Afghan parliament, which had to ratify Rasooli’s appointment, providing good odds for her to make history. But when the body met to vote this month, 23 female lawmakers were absent. Of 184 lawmakers present, 88 voted for her in the secret ballot — nine too few.
Friday, June 26, 2015
Instructors of legal writing may wish to take note of Justice Scalia's memorable prose in his dissenting opinion in the gay marriage cases (I have placed in bold especially colorful language):
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court....