Sunday, September 25, 2016

The Transformation of Michelle Alexander: A Woman of Spirit

Image1Earlier this year, Michelle Alexander spoke at Union Theological Seminary as a Woman of Spirit.   Now the newly resigned Ohio State law professor and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness is surrendering her legal gown for a theological one as she returns to Union Theological as a visiting professor and student.  Prof. Alexander has been drawn to the study of the divine for some time.  In 2013, she spoke at Yale Divinity School addressing mass incarceration but incorporating values of forgiveness and redemption.  At that talk Prof. Alexander referenced the "spirit whispering in my ear".

Finding law insufficient to the task of creating a culture where each and every human being is valued, Prof. Alexander said "Without a moral or spiritual awakening, we will forever remain trapped in political games fueled by fear, greed and the hunger for power." 

"This is not simply a legal problem, or a political problem, or a policy problem.  At its core, America's journey from slavery to Jim Crow to mass incarceration raises profound moral and spiritual questions about who we are, individually and collectively, who we aim to become and what we are able to do now. "

Ms. Alexander joins the call of other spiritual leaders who recognize America's crisis as a spiritual one.     All indications are that we can look forward to Ms. Alexander's transformation to a spiritual scholar to be as profound as her legal  commentary.  She shared her vision of a new world. "I would like to imagine that a wide range of people of faith and conscience who sing songs from different keys may be able to join in a common chorus that shakes the foundations of our unjust political, legal and economic systems, and ushers in a new America." 

To read more, see the Union Theological press release and Paul Caron's report on Tax Prof Blog.


September 25, 2016 in Margaret Drew, Race, social justice | Permalink | Comments (0)

Thursday, September 22, 2016

No Suspicion When African American Man Tries to Avoid Police Encounter, Mass SCJ Rules

On Tuesday, the Massachusetts Supreme Judicial Court issued a unanimous ruling granting a motion to suppress and throwing out the conviction of Jimmy Warren, an African-American male.  According to the court, the underlying investigatory stop was not based on reasonable suspicion.  

The court's ruling reviews the facts of the investigatory stop in painstaking detail, showing that the police in question quickly jumped to assumptions about the likely criminal activity of the accused.  But the opinion also rests in part on the unremarkable conclusion that there is nothing unusual or suspicious about a black man running the other way when the police attempt to initiate a consensual field investigation.   The court cites a recent Boston police department study showing that black men are targeted for a disproportionate number of stop and frisks, with many having repeated encounters with the police despite no evidence of criminal activity.  No wonder, the court concluded, black men would try to avoid such engagement by simply getting away from the police.  And when police are initiating a field investigation, there is nothing illegal about simply avoiding their inquiries.  

That the SJC's opinion rests on common sense and an appreciation of the experiences of black men in Boston surely is due in significant part to Justice Geraldine Hines, who joined the court in 2014 and wrote the SJC's opinion in Commonwealth v. Jimmy Warren.  A career civil rights advocate working on human rights in the US and abroad before she took the bench, Justice Hines is the first African American woman to serve on the Massachusetts high court.  The decision in the Warren case was unanimous, but there is no mistaking contributions that Justice Hines' experience and perspective made to the decision.  

September 22, 2016 | Permalink | Comments (0)

Wednesday, September 21, 2016

Lecture Series on Human Rights Continues at Columbia Law

Nearly one year ago , Columbia Law School resumed a lecture series that engages members of the federal judiciary in discussion of human rights and humanitarian law.  The series is sponsored by Columbia's Human Rights Institute and NYU Law's Bernstein Institute for Human Rights. 

The series revives a program from the 1980's established by Prof. Alice Henkin  of the National Economic and Social Rights Initiative. Prof. Henkin's late husband, Louis Henkin, also of Columbia University School of Law, is credited with founding the study of human rights law.  Prof. Sarah Cleveland carries on Henkin's work and was the first speaker in the series.  And earlier this year Prof. Cleveland spoke on Human Rights Connectivity and the Future of the Human Rights System.  To follow upcoming Human Rights events at the Institute, you may check out the Institute's website as well as its Facebook page.

September 21, 2016 | Permalink | Comments (0)

Tuesday, September 20, 2016

Human Right to Transportation

Last year, the UMass Law faculty approved the creation of a Human Rights at Home Clinic.  The clinic will open this coming spring semester.

Over the course of the past 18  months, myself and two colleagues (one from the Nursing School at UMass Dartmouth and one from the law school) have interviewed individuals from our community who are living with HIV.  Our interviews are open ended.  We want to know which of the individuals' needs are not being met.  

While the study has not closed and our results have not been analyzed, anecdotally I  am struck by how often lack of adequate 
transportation has been mentioned as an impediment to good health and independence.  Inadequate transportation impedes Image1those dependent upon public transportation from developing to their potential.  Transportation that does not run frequently or on schedule limits the ability to obtain and retain work.  In addition, adequate health care can be interrupted if appointments cannot be kept due to inability to keep appointments.  

As a social determinant of health, transportation is the link that can result in adequate treatment or lead to deteriorating  conditions if access to treatment is denied due to the individuals inability to access care easily. 

Transportation as a human right has been a concern over the past five years as more and more cities limit the hours that transportation operates as a budget saving measure.  "Transportation equity is a civil and human rights priority. Access to affordable and reliable transportation widens opportunity and is essential to addressing poverty, unemployment, and other equal opportunity goals such as access to good schools and health care services." 

This spring the UMass students will conduct a study of the transportation systems in local communities.  I would like to hear from any others who have been involved in similar studies or who are contemplating conducting studies of their own.  


September 20, 2016 in Margaret Drew, Poor | Permalink | Comments (0)

Monday, September 19, 2016

Inter-American Commission Update

The financial crisis facing the Inter-American Commission on Human Rights continues, but a detailed press release issued on September 8, 2016, lays out a path for resuming full operations during the Commission's "second semester."   If countries fulfill their formal pledges of support by September 30, the Commission will be able to reinstate hearings scheduled for late November and December 2016, which are currently suspended.   The press release also notes that the current IACHR budget of less than $5 million per year is simply too small to carry out the Commission's operations.  The Commission urges the OAS General Assembly, meeting in October, to increase the Commission budget going forward in order to avert a recurring crisis.  

September 19, 2016 | Permalink | Comments (0)

Sunday, September 18, 2016

Mainstream Media Might Elect President Trump

I do not recall a presidential campaign where news coverage of the candidates was so lopsided.   Donald Trump would be trailing Hillary Clinton by quite a bit except for the publicity he has been provided at the expense of a campaign that actually focuses on issues.  Thanks to reality tv and exploitative, rather than balanced, journalism, the "soundbite" method of reporting has been an advantage to Mr. Trump.  Bullies are ready producers of soundbites.  More respectful folks are not.  The nation now believes that Mr. Trump has just about an equal chance of being elected president, largely a media creation. The media kept Donald Trump in the spotlight for years with his false "birther" claims.  The media knew these claims were ridiculous but supported the offensive and racist theory by providing coverage any time that Mr. Trump yelled "birther".  If anyone else had made such a claim, it is doubtful the Times  would have printed the story.  But because a rich bully said it, media printed the defamatory allegations over and over, thus providing another distraction from President's Obama's number one task of governing.

The lopsided coverage continues.

Take for example, today's poll as reported by the NYT. The reporting soundbites give more credibility to the Trump campaign than is deserved.  The lead reads "Our poll shows a nearly even split among voters nationally, with Donald Trump seen as riskier but more potentially transformative and Hillary Clinton seen as safer and more temperamentally suited for the job."  The transformation question was designed in a way that gives Mr. Trump a more positive bounce than he otherwise would have.  No information was given to the type of transformation we could expect from a Trump presidency.  Media can not stand behind faux neutrality to defend coverage that pretends Mr. Trump's brand of transformation is anything but dangerous to millions of voters and others living within our borders. 

Perhaps coverage on the misogyny that is substituting for the racism of the last two elections would acknowledge the undercurrent of hatred that drives Mr. Trump's campaign and many of his supporters.  Recently Mr. Trump suggested that his opponent's government provided protection should stand down so that we could "see what happens to her." Earlier Mr. Trump encouraged supporters to rebel against Mrs. Clinton should she be elected.  Perhaps the headlines should have read that Mr. Trump is planting the seeds of violence and treason, whose growth will be seen post election.  Mr. Trump provided the perfect opening for an article on the dangers portended by his rise.  Reporting on the dangers Mr. Trump creates might have been a better service to readers than providing shocking but dangerous soundbites originating with the  Republican nominee.  For anyone who doubts the role of misogyny in this campaign, watch this disturbing interview with the Trump supporter whose t-shirt reads "Trump that Bitch".  

More credible reporting would characterize Mr. Trumps remarks as what they are:  divisive and dangerous.    Our mainstream media has fallen for the bully's tactics through its coverage.  You cannot stop bullies from speaking the outrageous.  But you can encourage  their escalation through reporting the sensational soundbite slogans while avoiding discussion of the consequences.

September 18, 2016 in Discimination, Gender Oppression, Margaret Drew | Permalink | Comments (0)

Thursday, September 15, 2016

Your New Best Friends: Human Rights Research Guides

Now that the school year is underway, are you facing a thorny human rights law research project?  Or if you're a professor, have you assigned a thorny research project to your students?

Skilled librarians at many of the major law schools offer easy-to-use human rights research guides to set you, or your student, on the way to a successful research result.  Here's a rundown of a few of them, which could be included in syllabi or shared with students who are working with this material and need a hand to get started.

Not surprisingly, law schools with the most focus on human rights and international law typically offer the most extensive research guides.  Check out, for example, Columbia Law School, NYU School of Law and Harvard Law School.

For particular research angles, however, other law schools's resources may be more useful.  For example, Georgetown Law School offers a human rights research guide that emphasizes the rights of women, reflecting Georgetown's longstanding women's human rights clinic.   With a general focus on public interest law, Northeastern Law School's guide provides an overview and links to country reports and NGOs working in the UN system. Arizona State School of Law has a research guide focused on human trafficking.

In short, there's no need to rely on the blunt instruments of google searches and Wikipedia sites.  Knowledgeable professionals across the country have already done the legwork to get you started with your human rights research, whether you're engaged in general research or addressing a targeted topic.

September 15, 2016 | Permalink | Comments (0)

Wednesday, September 14, 2016

Human Rights Reads for Summer's End

Yes, we're a little behind in getting this up in mid-September, but Autumn does not officially start until next week!  Here, then, from the excellent British blog and website Rights Info, are some suggestions for human rights reads to close out the last bit of summer.  Use the comment tab to let us know if you have more recommendations to share!

September 14, 2016 | Permalink | Comments (0)

Tuesday, September 13, 2016

Native People Continue to Lead The Country in Preserving the Earth

Native Americans continue to be the consistent and persistent voices against the destruction of the earth and native lands.  The most recent protest results from the government's construction of an oil pipeline intended to run from North Dakota to Illinois.  The pipeline is intended to carry the oil resulting from fracking, a process that results in extensive pollution and contributes to land instability.  Recent reports link recent Oklahoma earthquakes to fracking. 

The most recent pipeline protests, led by the Standing Rock Sioux, attempt to protect some of the sacred lands being disrupted by pipeline construction.  The pipeline construction route as presently designed would cause the disruption of sacred lands and burial grounds.  In addition, a leak in the pipeline would cause the pollution of the surrounding lands.

One protester, Jeanne Weahkee, said "It's about our rights as native people to this land.  It's about our rights to worship.  It's about our rights to be able to call a place home, and it's our rights to water."

The US has a long history of taking from the Native Peoples from breaking treaties to relocating tribal members when their lands have commercial value.  Yet it is the Native Peoples who carry on the protests to our country's destruction of the earth.  Few others are as committed to protecting the earth as other Americans rarely develop a sacred connection to the land.

President Obama recently said that the reports on consequences of global warming are terrifying.  But relatively few Americans are taking strategic action to prevent further destruction of the earth and her resources.  The Native People recognize our obligations to be stewards of the earth, with financial gain being irrelevant.

 Temporary success came in the recent protests when the Obama administration halted construction in order to revisit the pipeline route. 

September 13, 2016 in Margaret Drew, Native American | Permalink | Comments (0)

Monday, September 12, 2016

Biodiversity and Human Rights: A Call for Input

The UN Special Rapporteur on Human Rights and the Environment is seeking input for a thematic report on biodiversity and human rights.  More information and a questionnaire prepared by the Special Rapporteur is available here.  The deadline for questionnaire submissions is September 30, 2016.

Here is the call issued by the Special Rapporteur:

In response to increasing threats to biodiversity and ecosystems in the past decades, the global community has taken a number of important actions. Examples include the Convention on Biological Diversity, which entered into force in 1993 and is now one of the most widely ratified treaties in the world. Conservation of biological diversity was the subject of Chapter 15 of Agenda 21, which was adopted at the United Nations Conference on Environment and Development in 1992 in Rio de Janeiro, and at the Rio+20 Conference in 2012, Member States recognized “the severity of global biodiversity loss and degradation of ecosystems” and emphasized the adverse impact that this situation has on “food security and nutrition, provision of and access to water, health of the rural poor and of people worldwide, including present and future generations.” Goal 15 of the 2030 Agenda for Sustainable Development Goals (SDGs) is devoted to “protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss”.

The loss of biodiversity may interfere with the enjoyment of a wide range of human rights, including the rights to life, health, food, livelihood, water, housing, culture. The rights of indigenous peoples and others particularly reliant on healthy ecosystems are especially subject to threat. Biodiversity and human rights are closely linked and interdependent. The full enjoyment of many human rights depends on healthy ecosystems; at the same time, effective biodiversity policies depend on the exercise of human rights, including rights to information and participation, and require taking into account the rights of those who live in protected areas or who are otherwise directly affected by the policies.
Despite the close linkages, the two areas have often developed in parallel and in isolation from each other. Their relationship is not well-understood or clearly defined. There is a gap in assessing biodiversity/ecosystems policies from a human rights perspective. Furthermore, there is a need to clarify States’ human rights obligations pertaining to policies on biodiversity/ecosystems.

Against this backdrop, the Special Rapporteur seeks to clarify human rights obligations relating to biodiversity by exploring the relationship of the two and by assessing the effects of biodiversity on the enjoyment of human rights. He is interested in examining the legal framework, identifying gaps and analysing how human rights obligations in biodiversity policies and programmes are implemented at various levels (e.g., at the national, local and municipal levels) and by different government bodies (e.g., ministries of environment, development, agriculture, mining, etc.) in practice. He is also interested in clarifying heightened obligations of States in protecting individuals and groups who are in a vulnerable situation.

September 12, 2016 | Permalink | Comments (0)

Ferguson to Geneva: A St. Louis Gathering Takes Stock of Equality before the Law

On September 28 and 29, Webster University in St. Louis will be holding a special conference titled "Equality Before the Law," taking Universal Declaration of Human Rights as the baseline for understanding equality.  Plenary speakers will address a range of issues, from trans rights to use of technology by grassroots groups.  A highlight on September 28 will be a book signing and talk by Washington University Professor Kim Norwood, author of Ferguson's Fault Lines: The Race Quake that Rocked a Nation.  The conference keynote, titled Ferguson to Geneva: A Human Rights Framework for the Movement, will be delivered on September 29 by St. Louis University Professor Justin Hansford.  Professor Hansford is co-author of the Ferguson to Geneva shadow report submitted to UN Committee Against Torture in 2014.

The conference is free and open to the public.  More information on this event is available here


September 12, 2016 | Permalink | Comments (0)

Sunday, September 11, 2016

Straight-Ticket Voting - The Latest Voting Rights Challenge

Straight-ticket voting is the latest voting practice to come before the US Supreme Court.  When a voter uses the straight ticket, one check mark  results in a vote for all of the candidates for that party on the ballot .  Many states have eliminated this practice and Michigan sought to do the same, despite the fact that the practice has been in place for over 100 years.   The Michigan legislature voted  to eliminate the practice but a federal district court refused to invalidate it.Image1

The State argued race neutrality as the type of voting applies to all voters.  The opposition claims that 65-76% of African American Michigan voters use straight-ticket voting.  The opposition also said, that unlike other states, Michigan does not offer early voting and absentee voting is permitted only when certain criteria are met.  The opposition concluded that  elimination of straight-ticket voting would result in long lines if eliminated so close to the election.  SCOTUS declined to hear the case.  Michigan had asked for a quick decision so that it could begin printing absentee ballots.  More information regarding this petition may be found at SCOTUS Blog.


September 11, 2016 in Margaret Drew, Voting | Permalink | Comments (0)

Thursday, September 8, 2016

Effective Prevention of Homelessness Despite No Right to Counsel

In the face of overwhelming evidence that having a lawyer when a tenant is facing eviction evens the playing field for tenants, Mayor DeBlasio is not ready to endorse a human right to counsel in these circumstances.

In January, the Mayor announced a program to supply lawyers to those being evicted.  At the time, Mayor DeBlasio said:   "Providing legal assistance through the Office of Civil Justice is not just effective and efficient, it's the right thing to do to ensure equal justice for all New Yorkers."  Several boroughs' community boards have supported the right to counsel in eviction proceedings but the Mayor is not ready to take that leap, despite the overwhelming success of his program to provide counsel.  The tenant representation rate is now 27% compared with 1% in 2013.  The Mayor acknowledged huge savings by city in not having to provide shelter to the homeless families who can avoid eviction through the help of legal counsel.

Hope is in the air, however,  One headline reported that "More New Yorkers Facing Eviction Have Lawyers, But No Right To Counsel Yet."  The "yet" is hopeful.  Whether or not the right to counsel is formally endorsed, NYC is stepping forward to provide counsel in housing court evictions.  Given widespread support for the program, the right to counsel might quietly be endorsed without fanfare.  Time will take care of the formal acknowledgement of the right. 










September 8, 2016 in Civil Right to Counsel, Homelessness, Margaret Drew, Right to Counsel | Permalink | Comments (0)

Wednesday, September 7, 2016

Human Rights Law at the US Supreme Court: Two New Resources

With the start of the Supreme Court term now on the horizon, and the prospect of at least one new Justice very soon, it's a good time to highlight two new resources on the Supreme Court's approach to human rights and international law.  One, a new book, highlights the divide on the Court in approaching human rights law.  The second, an analysis of the Obergefell case, suggests that the divide is not as dramatic as the justices' rhetoric might imply. 

The new book is by Stephen Simon, published this past summer, and titled The U.S. Supreme Court and the Domestic Force of International Human Rights Law.  Here is the publisher's blurb:

The U.S. Supreme Court and the Domestic Force of International Human Rights Law, By Stephen A. Simon, 9781498534703 | Rowman & Littlefield

"The core idea underlying human rights is that everyone is inherently and equally worthy of respect as a person. The emergence of that idea has been one of the most significant international developments since the Second World War. But it is one thing to embrace something as an aspirational ideal and quite another to recognize it as enforceable law. The continued development of the international human rights regime brings a pressing question to the fore: What role should international human rights have as law within the American legal system?

The U.S. Supreme Court and the Domestic Force of International Human Rights Law examines this question through the prism of the U.S. Supreme Court’s handling of controversies bearing most closely on it. It shows that the specific disputes the Court has addressed can be best understood by recognizing how each interconnects with an overarching debate over the proper role to be accorded international human rights law within American institutions. By approaching the subject from the justices’ standpoint, this book reveals a divide in the Court between two fundamentally different orientations toward the domestic impact of the international human rights regime."
The addition of a new Justice will likely affect the divide that Simon identifies, since Justice Scalia was a particularly outspoken opponent of foreign law citations.  But an essay by Zachary Kaufman in the Yale Journal of International Law Online, observes that the divide may have already been closing in 2015.  Kaufman's essay, "From the Aztecs to the Kalahari Bushmen: Conservative Justices' Citation of Foreign Sources: Consistency, Inconsistency, or Evolution?," reviews the dissenting opinions in Obergefell v, Hodges and notes that every one of them, including Justice Scalia's, incorporates an appeal to foreign law of some stripe.
Kaufman recognizes that this may not reflect a complete change of heart by the Justices who previously rejected the relevance of foreign law (and with it, human rights law).   Perhaps it should be chalked up to inconsistency.  Still, the willingness of every Justice to reach out to foreign law and practice that supports their position does suggest a mellowing of the debate, and that we will not likely see more Scalia-style foreign and international law "take-downs" in the coming terms. 


September 7, 2016 | Permalink | Comments (0)

Tuesday, September 6, 2016

Banning Women's Autonomy

By now the notorious actions of armed French police officers demanding that a Muslim woman remove a shirt she wore as part of her swimwear are well known.  The action was humiliating and not isolated.  The officers also appear to be writing a ticket.  The woman was considered in violation of a local (Nice) regulation banning swimwear designed to accommodate the dress needs of Muslim women.  In the offensive reference of the outfits as "Burkinis", the absurd justification for the swimwear ban iso that the dress "overtly manifests adherence to a religion at a time when France and places of worship are the target of terrorist attacks."

Other French resorts and towns have implemented similar bans.  A French tribunal recently overturned Nice's ban and presumably other bans will fall.  Like the angry rhetoric of Donald Trump, however, the bans have done their damage by igniting bigots into discriminatory and hateful action.  One woman bather was fined after being subjected to taunts of "Go Back Home" from other bathers as the woman's young daughter cried.

Some defend France's bans on clothing worn by Muslim women protectin women from religious beliefs that oppress them.  But the tickets issued fine the bathers for not "wearing an outfit that respecting good morals and secularism".  To date no nuns in traditional garb have been fined.

Controlling women's swimwear has a history.  In 1957 an Italian woman was fined for wearing and "immodest" bikini. 

The bans and the seeming entitlement to control women's clothing is nothing less than denying women's autonomy.  The US does the same in more subtle ways.  Women's voices are minimized when all women, including a presidential candidate, is subjected to critiques by individuals, journalists and pundits. U.S methods are less direct, but are part of a what is an ongoing global effort to control women by removing their  autonomy over personal choices, even those as fundamental as religious ones.








September 6, 2016 in Gender Oppression, Margaret Drew | Permalink | Comments (0)

Monday, September 5, 2016

Taxing Equality: IRS Catches Up on Same Sex Regulations

Since 2013, the Internal Revenue Service has issued guidelines for same-sex married couples seeking guidance on tax treatment of their income tax returns.   Essentially, the publications explained the law that has been applicable to different sex spouses for many decades.  Of interest, the definition of a legal marriage looks to both domestic and foreign law and gives a broad definition on how and which marriages will be recognized for federal tax purposes.  That definition was important for couples who married in one state but lived in a state that did not recognize same sex marriages.   The Service had made it clear that it would look to the state of the marriage and not the state of domicile in  determining the couple's marital status.

Now the IRS has issued regulations (as opposed to prior guidance) addressing same sex marriage issues.  The updated regulations are a direct result of the Windsor decision which resulted from an estate tax dispute.  The regulations issued on Friday clarify the interpretation of the words marriage and spouses.  The interpretations are awkward in that they expand the definitions of "husband" and "wife" to include any two individuals married to each other. Perhaps at some point a more cooperative congress will amend the actual language of the Internal Revenue Code to remove the archaic and restrictive language. 

The new regulations make clear that domestic partnerships and other state sanctioned arrangements do not qualify as "marriages" under the new regulations. With the national availability of civil marriage to same sex couples, there is no need for the government to consider arguments relative to the qualification of other forms of union.  The new regulations clarify that the expanded definitions apply to income, estate and gift tax statutes and regulations. 

September 5, 2016 in Margaret Drew, Marriage Equality | Permalink | Comments (0)

Sunday, September 4, 2016

The Election Countdown: Update on SCOTUS and Voting Restriction Cases

Earlier this blog reported that several federal courts had struck down voting law provisions that attempted to restrict voting.  Two of the states involved were North Carolina and Ohio.  This week the US Supreme Court refused to hear an appeal by North Carolina that would permit that state to enforce its provision that would require voters to have a government issued id in order to exercise voting rights. 

Ohio Democrats filed an emergency appeal seeking the court's order that Ohio's "Golden Week" be reinstated. As summarized by SCOTUS Blog's Amy Howe: SCOTUSblog

"The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself."

Golden week was instituted following the the 2004 election when voters had to wait in lines often up to 12 hours to vote.  The delays had a disparate impact on African Americans, who constitute a large percentage of the population of the bell-weather Hamilton County. 

Last Friday, Justice Kagan asked the State of Ohio to respond to the Democrats' emergency appeal by this Thursday, September 8. 



September 4, 2016 in Margaret Drew, Race, Voting | Permalink | Comments (0)

Thursday, September 1, 2016

Can Only Straight Women Be Infertile in New Jersey?

 By Jeremiah Ho Jeremiah Ho's faculty portrait.

 A new lawsuit has been filed just within the last few weeks in federal district court in New Jersey by one unmarried and two married lesbian couples against the state’s insurance commissioner.  Essentially the lawsuit is challenging the definition of the word “infertile” under the New Jersey’s insurance mandate for covering medical expenses associated with the treatment of infertility.  The case, Krupa v. Badolato, is an interesting one as the plaintiffs, who wish to conceive but are biologically infertile, are claiming that the current definition of “infertility” excludes them from coverage under the insurance mandate because of the definition’s reliance on “unprotected sexual intercourse” in determining who could be infertile. 

The plaintiffs claim that for qualifying as “infertile” for infertility treatment coverage the phrase “unprotected sexual intercourse” requires them to show that they had heterosexual intercourse for the requisite period but then failed to conceive.  They assert that such showing is problematical because it requires them to prove a failure to conceive after having unprotected sexual activity with male partners, which, as lesbians in committed relationships, was an impossibility to them.  As a result, each couple claims they were denied coverage for infertility treatments that ended up costing tens of thousands of out-of-pocket dollars.     

But beyond the monetary harms asserted in this lawsuit, it is the dignitary spin on sexual orientation and reproductive rights that catches one’s attention.  The plaintiffs here are suiing under 14th Amendment equal protection and due process theories.  First, the equal protection theory articulates that “because infertile women in same-sex relationships do not engage in sexual intercourse with men, they are left with no way to qualify as ‘infertile’ under the statute and its implementing regulations in order to trigger the mandate.”  Therefore, they situate themselves as a class discriminated based on their sexual orientation.”  The plaintiffs’ due process theory relies on a violation of their reproductive rights.

On either theory, the implications of furthering constitutional litigation over sexual orientation seem eminent.  From reading the complaint, the plaintiffs are plainly seeking leverage on the equal protection claim from Obergefell v. Hodges, but bringing the issue of protections for sexual orientation further by claiming suspect or quasi-suspect classification.  The case seems to raise questions about orientation that are ripe for a revisit after Obergefell.  First, the sexual conduct of these lesbian couples—or their lack of a type of sexual conduct—in regards to showing heterosexual unprotected sex conjures that old distinction of conduct that was permissible and conduct both expressive of sexual identity and simultaneously punishable by the law (remember Bowers v. Hardwick or its reversal in Lawrence v. Texas?).  Here, it seems possibly that the couples were punished for not having heterosexual sex in order to prove infertility.  Additionally, as it appears in the complaint, it seems as though they were punished for wanting to exercise their abilities to treat their infertility in order to improve their chances for having children (remember Griswold, Casey, and Wade?).  The connection from the plaintiffs’ scenarios and to burdens on reproductive rights could lead to an expansion of existing constitutional caselaw. 

But also, the plaintiffs seem to want a declaratory relief directly over sexual orientation, which they are possibly couching as something beyond conduct—rather “a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible, which it is not) as a condition of equal treatment.”  Other than immutability (as articulated above), the plaintiffs preliminary balance the other three Frontiero factors as well in favor of determining sexual orientation as a protectable trait under the Equal Protection Clause. 

Already the case is garnering attention from news outlets.  This will be a lawsuit to watch.


September 1, 2016 in Equality, Jeremiah Ho, Reproductive Rights | Permalink | Comments (0)

Wednesday, August 31, 2016

Children’s Right to Counsel


Jonathan Todres   Image1

At every stage in the legal process, from initial interactions with police to arrest, then prosecution, and trial, children face unique challenges navigating the legal system, due is significant part to the developmental nature of childhood.  The idea that children are developmentally different and should not be held to adult standards has been affirmed by the U.S. Supreme Court in opinions abolishing the death penalty in juvenile cases (Roper v Simmons) and limiting the application of juvenile life without parole sentences (Graham v. Florida). Despite this emerging recognition of children’s developing capacities and their needs, many youth still confront having to make critical decisions without adequate access to counsel.  

On September 12, 2016, the House of Representatives will host a briefing on children’s right to counsel. Sponsored by Rep. Karen Bass and co-hosted by the American Bar Association, the Children's Advocacy Institute  , First Focus, and the National Association of Counsel for Children , the briefing will include testimony from experts from child welfare, immigration and juvenile justice about the critical nature of legal representation for children.  Click here for more information and to register to attend the briefing.

For an important and informative human rights perspective on the issue, see Bernadine Dohrn’s recent article which urges the United States to recognize children’s need to have access to counsel prior to being questioned

August 31, 2016 | Permalink | Comments (0)

Tuesday, August 30, 2016

City by City, Local Domestic Violence Resolutions Bring Human Rights Home

In 2011, the Inter-American Commission on Human Rights issued a favorable decision for the petitioner in Lenahan v. United States.  The Commission found that the United States violated Jessica Lenahan's human rights when it endorsed the failure of Castle Rock, Colorado to enforce Lenahan's order of protection against her estranged husband -- a failure that led to the tragic deaths of Lenahan's three daughters.

Yet that decision would have remained just words on a page were it not for the determination of Lenahan, her litigation team, and advocates around the country, particularly law school clinics and students, to use this decision to make a real difference on the ground.  Advocates mounted a novel strategy to implement the IACHR decision at the local level, resolution-by-resolution, in U.S. cities.  Five years after the favorable IACHR decision, there are now 28 local resolutions or proclamations adopted across the country.   The most recent resolutions, from such disparate cities as Dallas, Texas (2015), and Iowa City, Iowa (2016), are available with the rest on the tracking  webpage developed by the Cornell Gender Justice Clinic, the Columbia Law School Human Rights Institute, and the Miami Law Human Rights Clinic.   

In addition to promoting the resolutions, advocates are also working on next steps in their implementation.  For example, the Cornell clinic recently released a Model Domestic Violence and the Workplace policy and toolkit for public and private employers, an idea that grew out of discussions with legislators during the resolution process.

Kudos to the many advocates, law professors, law students and Jessica Lenahan herself, who for the past five years have continued to expand the impact of the IACHR's decision through their dogged commitment to protect women's human rights to be free from violence.


August 30, 2016 | Permalink | Comments (0)