Sunday, October 15, 2017
The UN Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston, received 35 submissions to date in response to his call for input pending his visit to the United States from December 4 - 15, 2017. The submissions are posted on the UN website here. From large and small organizations, from individuals, think tanks and law school clinics, the topics span a wide range of issues: the right to affordable water and sanitation, the treatment of the elderly, the plight of Puerto Rico after the hurricanes, the right to counsel in civil cases, voting rights and the marginalization of low wage workers. Specific regions and localities addressed include rural New Mexico, Alabama and California as well as urban centers like Philadelphia and Baltimore.
The Special Rapporteur has set up a twitter account from which he will be reporting on developments regarding his upcoming US visit, among other things. While he has not yet identified the specific locations that he will visit in the U.S., he has indicated that he will hold a press conference in Washington, D.C. at the close of his visit on December 15, to summarize his findings at the conclusion of the visit. Stay tuned!
Thursday, October 12, 2017
Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege. One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife. The judge found also that the wife had been inhospitable to her mother-in-law. The latter finding was justification for the judge to ignore the abuse in fashioning remedies. Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children. This is not an isolated case. In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes. In these cases, false equivalency is used to protect white male privilege. The faulty premise can also be used as a sword.
The same discriminatory technique plays out in race cases, as well. A particularly shocking example happened this week in Virginia. A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a "Unite the Right" rally. Mr. Harris suffered spinal injuries and a head wound requiring ten stitches. Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony. In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete. As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim. An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences. Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help.
My sense is that this is the goal of the white supremacist. While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury. Confusion and reluctance to convict will result.
This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.
Wednesday, October 11, 2017
by Jena Martin, Professor, West Virginia University College of Law, guest contributor
On Wednesday October 11th, the Supreme Court heard oral arguments in the case of Jesner v. Arab Bank, a case that will decide whether plaintiffs have the right to sue corporations for human rights violations under the Alien Tort Statute (ATS). The Court heard arguments from the Petitioner, the Respondent and the Solicitor General as a friend of the court.
During the Petitioners’ argument, very little time was actually used discussing the heart of the Court’s purpose for granting cert: namely whether a corporation, simply by dint of its corporate status, was outside the scope of ATS. Perhaps this lack of focus was because, as Justice Ginsburg brought up during Petitioner’s time (and which was echoed and expanded upon again by Justice Kagan during her questioning of the Respondent) there seems to be little logical difference between an individual or a corporation for the purposes of tort liability. As Justice Ginsburg put it succinctly, “what I don’t comprehend is why you would split individual and corporation [in ATS litigation]?”
However, if the Solicitor General’s argument is any indication, even if that question gets decided in favor of the Petitioner, the human rights advocates may not be rejoicing.
Acting as a friend of the court – Assistant Solicitor General Fletcher unequivocally sided with the Petitioners by arguing that there is no distinction between corporations and individuals under the ATS. However, Fletcher also stated that, while “for present purposes, all we’re asking the Court to do … is say there is no categorical bar on corporate liability,” in the future they would “urge the Court to indicate [on remand] that the Second Circuit ought to address [the] very serious extraterritoriality issue.” According to Fletcher, further limiting the reach of the ATS as, he argued, “this court had begun to do in Kiobel” would limit the international friction that he claimed often accompanies these types of cases.
Of course, the Solicitor General’s suggestion – remanding to the Second Circuit with instructions – would be one way that the Court could further limit the use of the ATS. However, another way could be to order re-arguments in the case, asking the parties to once again address the issue of extraterritoriality.
Although that would be an unusual step to take, the Court did precisely that the last time the ATS was before it in Kiobel v. Royal Dutch Petroleum (2013). Ironically, the original question before the Court in that case was whether corporations could be sued under the ATS in the same way that individuals can (the precise issue now before it in Jesner). However, a week after the original arguments in Kiobel, the Court ordered additional arguments on whether the ATS could be used when the violations happened on foreign soil. As a result of the second round of arguments, the Court subsequently held that so called foreign cubed cases – namely ATS claims that arise on foreign soil and where both the defendant and the plaintiff are foreigners – are outside the ambit of the statute.
It would seem that the Solicitor General would now have the Court again reopen arguments to further limit the scope of the ATS. Moreover, if the questioning today from the conservative portion of the bench is any indication (Roberts, Alito, and Gorsuch all had questions that either involved: (1) the scope of extraterritoriality; (2) the prospect of foreign entanglement or; (3) the foreign nationality of the defendant) – the Solicitor General’s office may just get its wish. If that happens, then the ATS will most likely be made moribund for future victims of human rights abuses – whether the defendant is a corporation or not.
By designating him as a MacArthur "genius," the MacArthur Foundation has recognized the visionary US human rights advocacy of Greg Asbed, co-founder of the Coalition of Immokalee Workers and principal architect of the Fair Food Program. For more information on Greg's work, click here. Kudos to the MacArthur Foundation for raising up this work and highlighting the importance of human rights activism in the U.S.
Tuesday, October 10, 2017
Earlier, Prof. JoAnn Kamuf Ward reported on efforts to convince Ben and Jerry's to sign onto a Workers Human Rights Program.
We are happy to report that an agreement was reached with Ben and Jerry's who became the first in the dairy industry to agree to pay a premium to struggling dairy farm owners, and also to ensure that workers are treated with respect. The Milk with Dignity Agreement is legally binding. The agreement establishes humane labor conditions and creates enforcement processes that encourage workers to report violations.
The spokesperson for Migrant Justice said:
“This is an historic moment for dairy workers. We have worked tirelessly to get here, and now we move forward towards a new day for the industry. We appreciate Ben & Jerry’s leadership role and look forward to working together to implement a program that ensures dignified housing and fair working conditions on dairy farms across the region. And though this is the first, it won’t be the last agreement of its kind.”
Monday, October 9, 2017
“It’s only a piece of paper.” This phrase can used to minimize the value of something. It has been leveled against court orders which can be, it is true, just a piece of paper unless they are enforced. However, it is the piece of paper that grants the right of enforcement, which is very significant indeed.
It would be easy to set forth a list of single pieces of paper that confer important rights. One such piece that would likely make that list is a birth certificate. And it is this particular paper that was the focus of a rather under-the-radar U. S. Supreme Court decision issued on the last day of the 2016-2017 term.
In Smith v. Pavan, the Court, in a Per Curium opinion, reversed the Arkansas Supreme Court in a case that involved whether Arkansas could refuse to list a non-biological same-sex parent on a birth certificate. The state Supreme Court had held that the 2015 U.S. Supreme Court decision in Obergefell v. Hodges did not mandate that the State of Arkansas place both same-sex parents on their child’s birth certificate. Specifically, the Court said that although the Obergefell decision mentioned birth certificates once, the reference was “related only to its observation that states conferred benefits on married couples.”
The U.S. Supreme Court, in reversing, seized on language in Obergefell’s next paragraph which declared that by not being permitted to marry, “same-sex couples have been denied the constellation of benefits that the states have linked to marriage.” Citing the same language that the Arkansas Supreme Court had referenced, then dismissed—the mention of birth certificates as one of the “governmental rights, benefits, and responsibilities” that are conferred on married people-- the U.S. Supreme Court in Pavan wrote that the mention of birth certificates in Obergefell was “no accident” as several of the Obergefell plaintiffs had challenged a state’s refusal to list a same-sex parent on a birth certificate.
The Pavan per curiam opinion explained that its Obergefell case required that now-married same-sex couples could not be denied that “constellation of rights” attendant to marital status, thus refusing to countenance the Arkansas Supreme Court’s narrower view.
This case was issued on the last day of a fairly quotidian term, a term without many cases of import, intentionally planned for fear of a four-four split. Interestingly, by the time of this decision, the Court was again at its full nine-justice strength.
This “opinion of the court” included a dissent authored by Neil Gorsuch, the Court’s newest member. And as Supreme Court watchers began their tradition of assessing the upcoming term in late September and early October, the Pavan case has received a bit more attention for exactly that reason. Since one of the cases identified as a major case of the term, the colloquially named gay wedding cake case, is set to be argued on December 5th, people are looking to this dissent as one way of assessing Justice Gorsuch’s Supreme Court persona.
Regardless of what Pavan says about Justice Gorsuch, is important for what it tells us about what the Court meant in Obergefell. Pieces of paper are important; they confer rights, and obligation, and status.
Sunday, October 8, 2017
In anticipation of the United Nations Special Rapporteur on extreme poverty and human rights’ country visit to the U.S. in December, the International Corporate Accountability Roundtable sent a submission addressing the Poverty Impact of Corporate Influenced Trade Policy in the United States. ICAR argues that “[g]iven the relationship between trade, poverty, and the enjoyment of human rights, it is critically important to examine how trade policy is developed in the United States, who is sitting at the negotiating table, and what impacts these policies are having on the realization of human rights” The submission focused on communities ravaged by trade policies, including the loss of millions of jobs and its deleterious impact on struggling families, many of whom live below the federal poverty line. Those communities are further harmed by depleted local coffers that result in decreased public spending, which in turn impedes access to public infrastructure and welfare systems. Through their focus on the benefits to corporations, ICAR argues, U.S. trade policies ignore the damaging impact on human rights, including the right to an adequate standard of living and the right to health. ICAR recommends several policy shifts aimed at prioritizing the consideration of human rights in trade policy, including increasing transparency and participation by affected communities, the development of mechanisms to conduct human rights impact assessments, the development and implementation of laws and policies that address the prominence of corporate influence in trade policymaking, and undertaking an analysis of and efforts to redress shortcomings in the Trade Adjustment Assistance (TAA) program.
On another front, last month a group of NGOs including ICAR, EarthRights International, Greenpeace, the AFL-CIO and the Institute for Policy Studies wrote to the US the Trade Representative Robert Lighthizer, who is in the process of renegotiating NAFTA. The organizations ask him to safeguard the goals of addressing the Agreement’s harms and that revisions benefit “the economies and populations of the United States and of our trading partners.” They letter cites the Ambassador’s previous statement that central to that objective is ensuring that “dispute settlement provisions [be] designed to respect our national sovereignty and our democratic processes.” The organizations “support this negotiating objective and therefore urge the United States to reject and remove the investor-state dispute settlement system (ISDS) under Chapter 11 of NAFTA that empowers multinational corporations to undermine U.S. sovereignty and the United States government’s efforts to enact policies to protect the public interest, human rights and the environment.” In closing, the letter exhorts the Ambassador to honor the “growing international consensus that in order for trade and investment to be fully beneficial to all, international investment agreements must not undermine human rights and environmental protections.”
Thursday, October 5, 2017
The US voted against a UN resolution condemning the use of the death penalty for same sex couples engaging in consensual sex. Twenty seven nations voted in favor of the resolution, thirteen voted against it with seven abstaining. The US has taken an inflexible stand, signaling that it will not take any action that might suggest that the death penalty is inappropriate. There are eight countries that use the death penalty as punishment for same sex relations in the entire country or part of the country: Iran, Saudi Arabia, Sudan, Yemen, Nigeria, Somalia, Syria and Iraq. The same resolution condemns the use of the death penalty for adultery because of its disparate impact on women. The resolution was proposed by Belgium, Costa Rica, France, Mexico, Moldova, Mongolia and Switzerland.
Join others around the world on October 10, taking action to end the death penalty. For more information, click here.
Wednesday, October 4, 2017
Saturday was Yom Kippur. I am not an observant Jew – grandchild of Russian Jewish immigrants, yes, but raised in a highly assimilated and non-religious New York family. But this time of year coinciding as it does with the turning of leaves and the shortening of days always grounds me in the spiritual underpinnings of the work of Resistance.
My favorite Resistance Rabbi – Michael Adam Latz – described the Day of Atonement this year as a day of “Open broken hearted souls joining together in song and prayer, in tears and in repentance, in the work of forgiveness and the work of breathing a new world into being.” He prayed that the day of reflection “take you soaring to new spiritual heights, your engagement with t'shuvah [repentance] turn your lives in a more holy direction, your forgiveness flow like a mighty stream, your commitment to justice and human dignity consume your waking hours.” https://www.facebook.com/michaeladamlatz.
I first started my blog as a way to keep breathing in the early months of the Trump administration. It helped, as I joined other anxious white women like Rebecca Solnit and Amy Siskind and Jennifer Hofmann who are determined that this not become a normal, if slightly worse, bad Republican administration. We keep track, we monitor, we call out, we center, all in the name of #Resistance – to Trump and all he has ushered in.
But as the months wore on and it looked like we were not going to get a do-over or early impeachment, as the republican leadership seemed determined to stand by their man, I realized I needed to pace myself. And to remind myself of the real work of #Resistance. This isn’t a tennis game, or a brilliant, if not quite believable, spy novel. This is the country that I live in, a country that has been riven by strife and cruelty and selfishness since its founding. Rabbi Latz is not the only spiritual leader to remind us why we do this work. No. It is, after all, “the real work of Christmas”:
“to find the lost,
to heal the broken,
to feed the hungry,
to release the prisoner,
to rebuild the nations,
to bring peace among the people,
to make music in the heart.”
And it is the work of my Buddhist chaplain sister, Kim Moore, as she brings her practice to men and women in the cells of San Quentin and Soledad prisons. Over 500 prisoners have participated in an intensive year-long training in mindfulness, emotional intelligence and understanding violence, its roots, and its victim impact. In response to the work Kim and her colleagues are doing, one of the prisoners said, “You are speaking to us as if we were human beings again. No one has come in here and addressed us like that before.”
I will write more about last week’s class on gender and Philando Castile and how as critical lawyers and resisters we have to keep keeping track, monitoring, calling out and centering, in the name of #Resistance. For today, though, it seemed important to remember why we choose every day to put our race, gender, class, privilege goggles on and force ourselves to look through them at the jagged shards of misery all around us. For me, while I am inspired by the words of the Bible and the teachings of Buddhism, I find the comfort and strength to keep at it from the actions and words of our living prophets – of all faiths and traditions. My fellow resisters, I count you among those prophets and thank you for walking this path with me.
From Dean Michael P. Scharf at Case Western Reserve:
On Wednesday, October 11, the U.S. Supreme Court will hear oral arguments in Jesner v. Arab Bank, a case that will determine if corporations can be sued for human rights abuses committed abroad.
At 9:00 p.m. on Thursday, October 5, "Talking Foreign Policy" radio program, produced by WCPN 90.3 ideastream (Cleveland's NPR station), will preview this landmark case. Expert guests include CWRU Law Professors Avidan Cover and Tim Webster, Cleveland Marshall Associate Dean Milena Sterio, and Leiden University Professor Carsten Stahn, as well as Thomas Buergenthal, one of the world's foremost authorities in human rights law. Buergenthal served for ten years as a judge on the International Court of Justice and twelve years as a judge on the Inter-American Court of Human Rights.
The program will be broadcast in Cleveland on 90.3 FM, and streamed worldwide at 9:00-10:00 PM on October 5 from the WCPN website at: http://wcpn.ideastream.org/live/wcpn
If you miss Thursday's broadcast, you can view the video of this or any of the past Talking Foreign Policy broadcasts at law.case.edu/TalkingForeignPolicy.
Tuesday, October 3, 2017
It is Civics 101 that governments have an obligation to protect their citizens. Some call it the "first duty of government."
In the days after dozens were killed and hundreds more injured in Las Vegas by senseless gun violence, compounding tragedies in Orlando, Sandy Hook, Columbine, and many others, it is increasingly clear that our government is not meeting its obligations. This government inaction in the face of gratuitous violence violates human rights. And we are all affected. Today, who can go to a rally, a party, a concert, even a school without some level of fear?
The international community has spoken clearly on the US government's failure to meet its human rights obligations. In 2016, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein urged the leadership in the United States of America to live up to its obligations to protect its citizens from the “horrifyingly commonplace but preventable violent attacks that are the direct result of insufficient gun control.” The UN's 2016 report on Human Rights and the Regulation of Civilian Acquisition, Possession and Use of Firearms is available here.
Other human rights experts have also weighed in. Adam Fletcher of the Castan Centre for Human Rights Law in Australia writes that under the International Covenant on Civil and Political Rights, "[h]uman rights are essentially the opposite of guns." The University of Iowa Center for Human Rights created this revealing human rights index, noting that the US and Yemen stand alone in their protection of virtually unregulated civilian firearm possession. Amnesty International has called gun violence in the US a human rights crisis.
In the past, Congress has valued unfettered gun possession over human lives. But while Congress defaults on its "first duty," the death toll is rising. It is tempting to wring our hands over Congressional inaction; "nothing will be done," is the chorus from pundits. But with lives at stake, US human rights advocates must be bold in bringing to bear every strategy, including international pressure, to begin the process of reining in rampant gun violence.
Monday, October 2, 2017
NYU's Just Security is hosting a series on the upcoming Supreme Court Case of Jesner v. Arab Bank. Jesner raises the issue of whether corporations can be sued for human rights under the Alien Tort Act. This was the question left unanswered in Kiobel v. Royal Dutch Petroleum Co.
As Just Security notes, the questions raised include:
Sunday, October 1, 2017
Cities for CEDAW was launched in 2013 at a meeting of the UN Commission on the Status of Women (CSW), with three founding partners: NGO/CSW NY; The Women’s Intercultural Network (WIN); and The San Francisco Department on the Status of Women. In 2015, The Leadership Conference on Civil and Human Rights joined the campaign to help build capacity and provide educational resources to inform and mobilize individuals to take action in their local areas to promote adoption of CEDAW principles.
Steadily since 2013, cities and counties have been joining the campaign and endorsing CEDAW as a guiding principle for local policy.
As of September 11, 2017, the latest "Community for CEDAW" is Durham County, North Carolina -- the first city or county in North Carolina to become a CEDAW community.
The CEDAW framework is already poised to make a difference for Durham County residents. According to the press information released by the NC Coalition for CEDAW, "[f]or the past year, research conducted by university students and led by WomenNC and the North Carolina Coalition for CEDAW member organizations focused on women's health, economic disparities, childcare, violence against women, employment, education, and leadership in Durham County. These research reports emphasized the lives of African-American and immigrant women. Examination of these research reports by the Durham County Women's Commission led to the development and presentation of an annual plan to the Durham County Commissioners with recommendations on policy changes and allocation of the budget for women-related programs."
The NC Coalition for CEDAW plans to continue efforts to adoption of CEDAW to other communities in the state.
Thursday, September 28, 2017
The actions of African American football players kneeling during the national anthem had been noticed, but not so controversial, prior to Number 45's tweet. But post-tweet, "taking a knee" has become just another tool to divide the country along racial lines. Like it has for others who avoid examination and exploration of truth,use of diversionary tactics has been wildly successful for 45. But in this instance,
backlash has been swift. Football owners and players have "taken the knee" after the President angrily demanded that any football player who kneels should be fired.
Georgetown Law Center students and faculty joined the kneeling protests. Last week, Attorney General Sessions traveled down the road to Georgetown Law Center to extol the virtues of free speech and condemn its "attack" on campuses. Session remarked: “There are many ways these players, and all the assets that they have, can express their political views other than in effect denigrating the symbols of our nation, the nation that’s provided our freedom to speak and act,” Sessions said. Those resisting equality claim that free speech is supported by our constitution and it is just this form of protest that is inappropriate, or - the protest is unwarranted or premature (choose your descriptor). During the Obama campaign, and again during Hillary Clinton's, we heard "the country isn't "ready" for an African American, a woman (choose your noun). It is always the timing or tactic that is wrong. But that reasoning is hollow.
I was a Viet Nam war protester. At the time, I was uncomfortable with flag burning. I am not sure how I would respond today. I knew that the flag (and draft card) burning kept the anti-war issues in the public dialogue and the resulting court cases reaffirmed first amendment rights. And sometimes it is a violent act that wakes up resisters. But I saw, also, how flag burning created the diversion pro-war people relished. For those less willing to hear the protesters' reasons for their demonstrations, focusing on flag burning provided an effective rationale for not addressing the flawed underpinnings of the war.
Taking a knee is respectful protest. Kneeling is effective, as demonstrated by the response of teammates and owners. Kneeling incorporates the spiritual into the protest, giving it a level of credibility not seen in other forms of protest. Kneeling induces silence, making the protest more powerful.
Focusing on claimed disrespect to the flag is the diversion that will prevent many whites from considering the underlying reason for protest. The president couldn't care less about kneeling football players. He cares that the nation remains divided. Therein lies his power. And his demagoguery.
Wednesday, September 27, 2017
After you attend the Childress Conference in St. Louis, as posted yesterday, travel on to the University of Cincinnati Law School where the Urban Morgan Institute will host the Sir Nigel Rodney Human Rights Conference on October 28-29th. Information on the school website indicates that the conference is in honor of the late Sir Nigel Rodley and is hosted by the Urban Morgan Institute, and co-sponsored by by Paul Hoffman and Professor Bert Lockwood, director of the institute. The conference will focus on the contributions of Sir Nigel to human rights and the challenges currently face by the international human rights community.
For registration information click here.
Information regarding the conference is posted on Int Law Grrls, as well.
Tuesday, September 26, 2017
The St. Louis University School of Law will hold its 2017 Richard J. Childress Lecture and accompanying Symposium on Friday, October 13, 2017, titled Human Rights in the American Criminal Justice System. More information is available here.
The keynote address for the Symposium, The Death Penalty, Public Opinion, and Politics in the United States, will be presented by Samuel R. Gross, Professor of Law at the University of Michigan. Several contributors to this blog -- Margaret Drew, Lauren Bartlett and Martha Davis, will speak on a panel about integrating human rights into domestic legal practice.
As described by the organizers, "[t]his symposium will examine the role, rhetoric, and practices of the United States’ criminal justice system using international human rights norms as perspective. The symposium will bring together practitioners and academics focused both domestically and internationally. Our panelists will speak about how the modern criminal justice system in the United States – whether it is pretrial detention, treatment of gender violence or juvenile populations, or the continued use of the death penalty - conform to or violate international human rights standards, and what can be done to change that. We want our students to connect with members of the wider legal community advocating for the use of human rights standards, and look forward to the conversation."
The free event will take place from 9 a.m. to 4 p.m. Friday, Oct. 13, in the Pruellage Courtroom of Scott Hall at the St. Louis University School of Law.
Monday, September 25, 2017
Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act
Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights. In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”). The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages. To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings. That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000. In addition, Minnesota legislatively recognized same-sex marriages in 2013. Hence, their challenge arose.
Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised. But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.
The challenges under the First Amendment were untenable. For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny. The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine. Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible. For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous. The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability. Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored.
Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments.
Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.” No doubt, this lawsuit is likely to be appealed. The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall. That case involved a professional wedding cake provider’s refusal of business to same-sex couples.
Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well. I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies. At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values. Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights. Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.
Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights. Minnesota was where one of the earliest episodes of the struggle for marriage equality took place. In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis. After their application was denied, they sued. Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”
Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.
You may read the judgment here.
Sunday, September 24, 2017
The consolidated cases challenging the Trump Administration's Executive Order imposing a "travel ban" -- Trump v. Hawaii, and Trump v. International Refugee Committee -- were set for oral argument in the Supreme Court on October 10. [Eds Note: The argument has now been taken off of the calendar for further briefing on whether the case is moot in light of the revised travel ban.]
Many of the many amicus briefs cite international human rights law in passing, since the Executive Order restricts entry of refugees along with other immigrants and US refugee law incorporates the standards of the UN Refugee Convention. However, two of the briefs go into greater detail regarding applicable human rights norms and international agreements and expectations.
First, the brief of Human Rights First, et al., hones in on the refugee issue, identifying the practical, negative, impacts of the travel ban on the international expectations regarding refugee reception. According to the brief, the travel ban is "needless" because of the extensive vetting and screening already applied to these groups. And "the ban jeopardizes the stability of U.S. allies, erodes essential good will by reneging on promises made to certain refugee groups, makes it more difficult for the United States to recruit heart-and-minds support abroad, otherwise undermines the ability of the United States to pursue military operations, and endangers U.S. military personnel." Further, to the extent the ban is viewed abroad as a "Muslim ban," it "feeds into the propaganda narrative of terrorists seeking to harm U.S. interests."
Second, the brief on behalf of International Law Scholars and Non-Governmental Organizations invokes the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination to argue that the ban's religious and national origin discrimination violate international obligations. According to the brief, "[s]uch distinctions violate international human rights law binding on the United States whenever they have either the purpose or effect of disadvantaging a group on the prohibited grounds." Arguing that the relevant treaties have domestic effect even if they are non-self-executing, the amici cite the Charming Betsy doctrine to assert that the Supreme Court "should continue to construe the relevant provisions of the U.S. Constitution and applicable statutes in a manner that does not put the United States in violation of obligations under international human rights law and, as such, consider U.S. obligations under international law, which forms part
of U.S. law, in evaluating the legality of the EO."
Thursday, September 21, 2017
Prof. Anne Hornsby of the University of Alabama School of Law introduces us to a You Tube video designed to inform non-immigration lawyers to representation of young people struggling with DACA status. As Anne explains:
Wednesday, September 20, 2017
Jena Martin of West Virginia College of Law has posted a fascinating new article titled Hiding in the Light: The Misuse of Disclosure to Advance the Business and Human Rights Agenda. Here's the abstract:
"The aim of this article is to analyze whether the business and human rights agenda (as embodied by the Three Pillar Framework and UN Guiding Principles) is well served with national laws that focus on disclosure. The article will focus primarily on rules being implemented in the United States at both the subnational and national level, however, it will also discuss approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection from business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the UN Guiding Principles. As such, it seems appropriate to undertake an analysis regarding whether these laws are in fact effective at implementing the Guiding Principles.
For decades now, disclosure has been held out as the ultimate curative for every corporate woe. The expansion of disclosure initiatives from mere investment related issues to increasingly social policy issues would indicate that this trend will continue. Yet as this article demonstrates, disclosure right now is, at best a temporary stop gap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light."