Tuesday, June 23, 2015
On Monday, the Fifth Circuit—one of the most conservative appeals courts in the country—rejected a challenge to the Affordable Care Act's contraceptive mandate in an opinion written by Judge Jerry E. Smith—one of the most conservative federal judges on the bench. The challenge, brought by nonprofit religious groups, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA) by forcing these groups to sign a form that would eventually allow their employees to access contraception. In a concise, emphatic opinion, the court ruled that the mandate complies with RFRA. ***
The religious groups currently suing the government claim that the act of submitting this form constitutes a substantial burden on their religious exericse, in violation of RFRA. Signing the form, they argue, will set into motion a chain of events that ultimately allows their employees to gain access to contraception. The Third, Sixth, Seventh, and D.C. Circuits have already rejected this argument; the Fifth Circuit now joins their ranks. At the heart of the court's opinion is this remarkable passage:
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.
Monday, June 22, 2015
The Supreme Court will soon announce its decision in Obergefell v. Hodges, the gay marriage case.
SCOTUS Blog has covered some aspects of the case.
And reflections from the New Yorker:
"What does it feel like to have changed the world?” As the Supreme Court ruling on same-sex marriage approaches, many long-time gay-rights advocates tell me that they are being asked this question. It speaks to more than Obergefell v. Hodges, the case before the Court, or even gay marriage, but to the dramatic increase in acceptance that L.G.B.T. people are experiencing. Take, for example, Ireland’s vote for marriage equality and Caitlyn Jenner’s warmly received coming out. Last month, a Gallup poll showed that sixty per cent of Americans agree that marriage between same-sex couples should be recognized as valid. That number is the highest it’s been in the nineteen years that Gallup has been asking the question."
And (I am responsible for the text in bold relief):
Other polling shows that almost two-thirds of Americans expect the Supreme Court to legalize same-sex marriage nationwide with its Obergefell ruling. (It is already legal in thirty-seven states.) Most Supreme Court experts agree, and even conservative strategists don’t really want the legal chaos and social backlash that a ruling that rolls back gay marriage could bring. Having the gay-marriage battle continue “isn’t necessarily helpful for Republican candidates who are trying to appeal to a wider section of voters than just social conservatives,” Ron Bonjean, once an aide to former Senator Majority Leader Trent Lott, of Mississippi,” told Bloomberg Politics last week.
To be sure, there has been an effort by some conservatives to oppose the Court's recognition of gay marriage, but the effort is couched in language that is conspicuously removed from the rhetoric of morality, a seeming concession, in its own way, to the validity of gay rights in the abstract.
Saturday, June 20, 2015
My colleague, Will Huhn, analyzes the Supreme Court's recent decision in Kerry v. Din. In Kerry, the Court, in numerous divided decisions, denied that a woman's constitutional right to marry was infringed by a refusal to grant her husband a visa. Scalia in a plurality of 3 took the occasion to challenge the existence of all liberty interests in privacy rights of the family.
Huhn reveals Justice Scalia's reliance on coverture, yes, coverture, and the historical denial of citizenship to women who married foreign nationals.
Huhn writes: Utilizing this “tradition” standard Justice Scalia rejected any possibility that Din had a constitutional right to live with her husband in the United States. Justice Scalia pointed out that traditionally American women who married foreign nationals were considered to have assumed the nationality of their husbands and were stripped of their American citizenship. While Justice Scalia admits that such discriminatory laws would be unconstitutional today, he nevertheless asserts that this history proves that Din does not have a constitutional right to live with her husband in the United States. Here is Justice Scalia’s analysis that is predicated on the concept of “coverture”:
Most strikingly, perhaps, the Expatriation Act of 1907 provided that “any American woman who marries a foreigner shall take the nationality of her husband.” Thus, a woman in Din’s position not only lacked a liberty interest that might be affected by the Government’s disposition of her husband’s visa application, she lost her own rights as a citizen upon marriage. When Congress began to impose quotas on immigration by country of origin less than 15 years later, with the Immigration Act of 1921, it omitted fiances [that is, a woman’s fiancé] and husbands from the family relations eligible for preferred status in the allocation of quota spots. Such relations were similarly excluded from the relations eligible for nonquota status, when that status was expanded three years later. Immigration Act of 1924.
To be sure [Justice Scalia stated], these early regulations were premised on the derivative citizenship of women, a legacy of the law of coverture that was already in decline at the time. [citing] C. Bredbenner, A Nationality of Her Own 5 (1998). Modern equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order. Nevertheless, this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.” [citing] Glucksberg.
Legal History Blog, Woloch's "Class By Herself"
A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws—such as maximum hour laws, minimum wage laws, and night work laws—from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s
Friday, June 19, 2015
Nearly a century after gaining national suffrage rights, American women represent a majority of voters, yet women represent less than a quarter of state legislators, a fifth of members of Congress, and an eighth of governors.
A careful examination of the trends at the local and state level reveals that unequal representation is even worse than it looks. My group Representation 2020 seeks parity for women in elected office—meaning that at any given moment a woman would be just as likely as a man to hold elected office—in our lifetimes. Yet, as to be reported in our State of Women’s Representation 2015-2016 report, women in fact are not on the road to achieving that goal.
A report by the Institute for Women’s Policy Research suggested achieving parity would take several generations. But it’s too simplistic to map out trends from the past 20 years in anticipation of steady growth to parity. In the real world, representation of women typically stalls or regresses once it surpasses about a third of seats in a state. Unless both major parties show equal readiness to move to parity—and at this point, the Republican Party shows no such trend—the bottom line is stark: Absent new intervention by our political parties and our lawmakers, we simply won’t achieve gender parity nationally nor in most states. Not in our lifetime. Not in our children’s lifetime. Not ever.
Seoul, the capital of South Korea, is known for, among other things, technological innovation, the world's most efficient subway system, universities brimming with resourceful and creative minds, and, to some extent,.....its hatred against the LGBT community, a reminder of Korea's gothic remnants.
Seoul's mayor Park Won-soon is an LGBT ally, but in 2014 he caved to pressure from conservative Christians and decided to scrap his once plan to install a city-wide human rights charter that would protect LGBT folk.
|(Left photo) Participants attend the opening ceremony of the Korea Queer Festival 2015 at Seoul Plaza in downtown Seoul on June 9, holding up cards that say “We become stronger as we connect.” Protesters, meanwhile, hold a rally opposing the event in front of Deoksugung Palace near the plaza earlier in the day. (Yonhap)|
Recently, Seoul 's police department refused to permit an LGBT parade in the city. Conservative pastors were elated. But the city's administrative court declared the police decision unlawful, as no threat of imminent harm appeared to be presented by the parade. Moreover, the court noted that prejudice could not serve as a motivation to block the parade.
Thursday, June 18, 2015
Ronald Collins, Concurring Opinions, More on the Roberts Court & the First Amendment--the Women Justices
How is First Amendment freedom of expression law being shaped by the current Court? One way to answer that question is to focus on the Justices themselves and on their assignments, voting records, and voting alignments. Mindful of such concerns, I plan to do a series of posts on the Roberts Court. When complete, I hope to prepare a summary and analysis of the Roberts Court and its record in this area of the law.
In this second installment, and following my profile of Chief Justice John Roberts, I continue by way of some facts and figures about the contributions of Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Here are a few for starters:
- Though the Roberts Court has handed down 39 First Amendment free expression opinions, it has rendered only 17 during the tenure of all three of the Court’s female Justices.
- Justice Sotomayor took her seat in August of 2009, and the first First Amendment free expression case she voted on was Citizens United v. FEC (2010) (5-4, joined dissent). Since her time on the Court the Justices have rendered 23 First Amendment free expression opinions.
- Justice Kagan took her seat in August of 2010, and the first First Amendment free expression case she voted on was Snyder v. Phelps (2011) (8-1, joined majority). Since her time on the Court the Justices have rendered 17 First Amendment free expression opinions (she did not participate in 2 of those cases).
Rebecca Gill, Michael Kagan, & Fatma Marouf (UNLV), Chivalry, Masculinity, and the Importance of Maleness to Judicial Decision Making.
Abstract:Social science research on gender in the legal system has largely focused on the woman as the "other." This research has looked for ways in which women judge or are judged differently from the norm. The results of this line of research have been mixed. Male-centered theories of masculinity and chivalry provide promising tools to help researchers understand the contribution that maleness has on outcomes in the legal system. Immigration appeals provide an ideal test of these theories, which predict that male judges will be harder on male immigrants and easier on female litigants than will female judges. In this paper, we implement a research design that takes seriously both female-centric and male-centric explanations of decision outcomes. Using an original database of immigration appeals in the U.S. Courts of Appeal, we find evidence to support the research of maleness on its own terms. We find that elements of chivalry and masculinity theory both operate to frame the decisions made by male judges. The introduction of women on the panel of judges is associated with significant changes in the relative success of male and female petitioners, but not in a way that is consistent with theories of women judges as representatives. In addition to providing support for masculinity theory to explain the behavior of male judges, our data raise new questions about how females temper the reaction of mixed-gender panels toward male and female parties in court.
Wednesday, June 17, 2015
Interesting piece from the Boston Globe:
If we accept that gender is fluid — a reflection of some inexplicable spiritual thing inside of us — why not race? Why do we police the boundaries of blackness more rigorously than we police womanhood?
The general consensus seems to be that as much as we want to do away with racial differences and as deeply as we believe in race as a social construct, we can’t accept Dolezal as a black woman trapped in a spray-tanned blonde’s body.
“Rachel Dolezal . . . may be connected to black communities and feel an affinity with the styles and cultural innovations of black people,” Alicia Walters, a black woman from Spokane wrote in The Guardian. “But the black identity cannot be put on like a pair of shoes.”
But wait a minute. I thought we just agreed that the female identity can be put on like a red mini-dress by Donna Karan. What gives? How can blackness — with all its shades and incredible diversity — be more immutable than manhood itself?
In a cozy cottage decorated with butterflies to symbolize transformation, Katherine Boone was recovering in April from the operation that had changed her, in the most intimate part of her body, from a biological male into a female.
It was not easy. She retched for days afterward. She could hardly eat. She did not seem empowered; she seemed regressed.
“I just want to hold Emma,” she said in her darkened room at the bed-and-breakfast in New Hope, Pa., run by the doctor who performed the operation in a hospital nearby. Emma is her black and white cat, at her home outside Syracuse in central New York State, 250 miles away.
Tuesday, June 16, 2015
The Chronicle, Ten Tips for Tweeting at Conferences
It’s no surprise that we here at ProfHacker like Twitter. We’ve covered how to start tweeting (and why you might want to) and practical advice for teaching with Twitter. I’ve found Twitter to be a tremendous boon to developing my professional networks and helping me stay on top of what’s happening in my fields of scholarship. But there’s one place where where Twitter perhaps ends up being more valuable for me than other place: at conferences.
Tweeting at conferences is a great way to share what you’re learning in a session with your followers and the wider world. It’s also a great way to be in two places at once, as you can read tweets from other sessions that you weren’t able to attend. You can read those tweets as they come in or—if you’d rather not fracture your attention—read them after the fact using a Twitter search. I personally find tweeting during conference sessions to be a great way for me to take notes; it helps me pay closer attention to what someone is saying than if I were simply working with pen and paper. It can even turn into something of a competition.
Not too long ago, the term “marital rape” was considered an oxymoron. In some U.S. states, it might as well still be one.
Lawmakers in Ohio are trying to remove archaic forms of “marital privilege” in state laws pertaining to rape, The Columbus Dispatch reports. Although marital rape is illegal in Ohio as well as nationwide, the notion of marital privilege or exemption dates from an era when a man could only be charged with rape if the alleged victim was not his wife—an era that only ended in the United States on July 5, 1993 when North Carolina criminalized marital rape, becoming the final state to do so.
But although marital rape is illegal in the United States, Ohio is one of several states in which marital rape continues to be handled in a substantially different way than rape outside of marriage, whether it is charged under a different section of criminal code, restricted to a shorter reporting period, held to a different standard of coercion and force, or given a different punishment.
The classic historiography of marital rape laws is Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 California Law Rev. 1373 (2000).
Yesterday, the Supreme Court denied cert in Walker-McGill v. Stuart thus upholding the 4th Circuit's decision that the mandatory abortion ultrasound law violates the provider's First Amendment rights.
On the 4th Cir. decision: Natl L. J, NC Abortion Ultrasound Rule Violates First Amendment, Court Says
Caroline Corbin's (Miami) article Compelled Disclosures, 65 Alabama L.Rev. 1277 (2014) concluding that mandatory ultrasound disclosures violate the provider's free speech rights.
There is now a circuit split, with the 5th and 8th Circuits upholding the ultrasound laws, and the 4th striking it down.
Monday, June 15, 2015
From the New Republic:
"Here I am, this little kid, I can't even see over the steering wheel, and I'm parking Cadillacs," Henry Hill (Ray Liotta) says early on in Martin Scorsese's Goodfellas. That's a good thumbnail description of Henry's obsessions, and of the film's as well. Henry wants to be a man—or more, he wants to be the man. He wants to do grown-up stuff, like park Cadillacs, tip big, have Bobby Vinton send his girl champagne, and pistol whip any guy who insults her. He wants to have the biggest balls of them all.
Kyle Smith at the New York Post argued this week that "Women are not capable of understanding GoodFellas" because it's "a story of ball-busting etiquette" where "[t]he rule is: be a man, be tough, and always keep the party going."
But the whole point of Goodfellas is that being a man, as Henry defines it—in terms of power and ball-busting—is poisonous, violent, degrading, and stupid.
Frankly, for me, the uber-violence isn't the problem with Martin Scorsese's movie. It is rather that Goodfellas, unlike the superb "Sopranos," reeks with a loud and tiresome phoniness about what being a man really is. The guys in the movie are always, and without any rest, "on." We never see them when they are unmasculine, when they break down, when they're lost. And all gangsters--like all men--can become like that. That's sort of why the gangsters in Goodfellas--low life criminals with expensive tastes--became the thugs they did: they had nothing else going for them and they knew they never would.
Compare Scorsese's cartoonish caricatures to the gangsters in the "Sopranos": It shows Tony being idiotic, being afraid--hell, being terrified--getting old, getting weak, and being, ultimately, so very, very lonely, as all fake men secretly are.
When it comes to gender equity, the technology ecosystem, which prides itself on being a meritocracy in so many other respects, is failing badly.
How else can we explain that women held 34% of software and computing jobs in 1990, but only 27% in 2011? Or that, according to the “Women Entrepreneurs 2014” report from Babson College, the “total number of women partners in venture capital firms declined significantly since 1999 from 10% to 6%.” Or that, as the Babson report also observed, in the three years from 2011 to 2013, “companies with no women on the executive team received almost 90% of the total investments in semiconductors, computers and peripherals/electronics and instrumentation, and media and entertainment.”
So, what is to be done? Five proposals, with the first one being:
- Push companies to publish data about gender diversity
Pushing companies to collect and publicize data on the proportion of women in tech and leadership capacities adds an element of public accountability, and provides an important frame of reference to assess progress. Understanding the state of gender (and other forms of) diversity on a company-specific basis can catalyze greater awareness of diversity in hiring and promotions. And, year-over-year comparisons provide a way to measure progress both within a single company and more broadly.
Who knew Ireland would the most progressive nation on earth with regard to LGBT issues?
This month Ireland may go from not legally recognizing transgender people to having one of the best trans identity laws in the world.
Two weeks ago, the nation made history when it became thefirst country in the world to approve gay marriage by a popular vote.
Ireland may once again make history by allowing transgender people over the age of 18 to self-declare their gender on legal documents solely based on their self-determination, and without any medical intervention. The legislation is scheduled to go to committee stage on June 17.
Sunday, June 14, 2015
The beleaguered British biologist Sir Tim Hunt has revealed that he was forced to resign from his post at University College London (UCL) without being given a chance to explain his controversial remarks about women in science. “I have been hung out to dry,” he told the Observer in an exclusive interview. “I have been stripped of all the things I was doing in science. I have no further influence.”
Hunt, who won the Nobel prize in 2001 for his work on cell biology, was the focus of widespread controversy last week after suggesting at a conference in Seoul that women in science were disruptive and prone to crying. He has since apologised for his remarks, which were supposed to be ironic and jocular, he said.
However, as a result of the furore, Hunt was told by UCL that he would have to resign his honorary post at the college. “At no point did they ask me for an explanation for what I said or to put it in context,” he told the Observer. “They just said I had to go. There has been an enormous rush to judgment in dealing with me.”
And for the discussion at the NYT, see here.
Thursday, June 11, 2015
To some people, the idea for an iPhone app designed to let students record video statements of agreement before engaging in sexual activity sounds like a bad joke. Or perhaps just a well-intended overuse of technology.
But Michael Lissack has come up with a set of such apps, and he defends them as a way to reset the conversation around sex on the campus. His creation, called We-Consent, is actually three apps — one that lets students document mutual consent to a sexual encounter by video-recording a conversation about it with the cellphone’s camera, and two "no" apps that record an individual watching a message on the phone that clearly states "no," so there is a record of that individual having received the message.
Mr. Lissack, who is executive director of the Institute for the Study of Coherence and Emergence, said the videos are encrypted and unhackable; they don’t save onto a user’s phone, but they are stored in an offline database. The only time the videos can be viewed is when there is a legal reason to disclose them, such as a court proceeding or university adjudication. Right now, the two "no" apps are available through the App Store on Apple's iTunes, but the yes app is accessible only on the apps’ website. Mr. Lissack said that Apple considered the yes app "icky."
Wednesday, June 10, 2015
Badly educated men in rich countries have not adapted well to trade, technology or feminism.
KIMBERLEY, a receptionist in Tallulah, thinks the local men are lazy. “They don’t do nothin’,” she complains. This is not strictly true. Until recently, some of them organised dog fights in a disused school building.
Tallulah, in the Mississippi Delta, is picturesque but not prosperous. Many of the jobs it used to have are gone. Two prisons and a county jail provide work for a few guards but the men behind bars, obviously, do not have jobs. Nor do many of the young men who hang around on street corners, shooting dice and shooting the breeze. In Madison Parish, the local county, only 47% of men of prime working age (25-54) are working.
The men in Tallulah are typically not well educated: the local high school’s results are poor even by Louisiana’s standards. That would have mattered less, in the old days. A man without much book-learning could find steady work at the mill or in the fields. But the lumber mill has closed, and on nearby farms “jobs that used to take 100 men now take ten,” observes Jason McGuffie, a pastor. A strong pair of hands is no longer enough.
Tallulah may be an extreme example, but it is part of a story playing out across America and much of the rest of the rich world. In almost all societies a lot of men enjoy unwarranted advantages simply because of their sex. Much has been done over the past 50 years to put this injustice right; quite a bit still remains to be done.
The dead hand of male domination is a problem for women, for society as a whole—and for men like those of Tallulah. Their ideas of the world and their place in it are shaped by old assumptions about the special role and status due to men in the workplace and in the family, but they live in circumstances where those assumptions no longer apply. And they lack the resources of training, of imagination and of opportunity to adapt to the new demands. As a result, they miss out on a lot, both in economic terms and in personal ones.
Manliness is generally a term connoting virtue, as in, "the police officer displayed great manliness when he rescued the child." Of late, we have stories of masculinity out of control.
There is the story of officer Eric Casebolt, whose angry and terrified demeanor found expression through assaults against teeangers in McKinney, Texas.
Then there is the heartbreaking story of Kalief Browder, a young black teenager who committed suicide this week after having been brutalized in Rikers Island Prison. He had spent three years there--without ever being convicted of a crime. While at Rikers, Kalief was assaulted by guards, kept in solitary confinement, and beaten by gangs. After being released from Rikers, he could no longer endure the traumatic memories.