Gender and the Law Blog

CFP, Queer Constitutional History, Journal of American Constitutional History

Call for Papers

Journal of American Constitutional History

"Queer Constitutional History" 

Professors Felicia Kornbluh and Marie-Amélie George, guest editors

 We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz.  We plan to publish the symposium issue in 2025 to coincide with 10^th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition.

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence.  We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields.

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues.

Abstracts are due February 1, 2025. Please submit them by email to Felicia Kornbluh ([email protected]) and Marie-Amélie George ([email protected]). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately proceed the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate

Millennial Women Lawyers Demand Work-Life Balance

Anna Stolley Persky, Millennials Demand Work-Life Balance More Than Their Predecessors, But Challenges Remain, ABA J. (Dec. 1, 2024)

 

Giugi Carminati, 41, had the first of her four children when she was 24 and attending the University of Houston Law Center. As Carminati began practicing law in Houston, she and her husband thought they could have it all. Carminati figured she would put her children in day care and continue working her way up to partner.

 

But child care costs for four children were “crippling,” Carminati says. She estimates that the cost of an au pair, who had a limited work schedule, along with things like after-school care, summer-care costs and overnight-sitter fees when Carminati traveled, worked out to $45,000 annually. Her husband, a physician, had little flexibility in his schedule.

 

“It was unlivable to be expected to operate as an attorney with long and unpredictable hours and travel,” says Carminati, who is part of the millennial generation born between *38 1981 and 1996. She eventually left private practice and started working in-house in 2022. Her schedule allows her to work remotely--including on a sailboat in the summer.

 

Millennials tend to emphasize a healthy work-life balance when choosing employers, according to the Deloitte Global 2024 Gen Z and Millennial Survey. That includes members of the generation like Carminati, who are lawyers with young children. Also, various reports say the profession, known for long work hours and high-pressure environments, is still difficult for many women with parenting responsibilities: Like generations before them, they often cobble together child care with a mix of nannies, babysitters, day care settings and assistance from relatives.

 

According to the 2023 ABA study Legal Careers of Parents and Child Caregivers: Results and Best Practices from a National Study of the Profession, 61% of the mothers surveyed said they experienced demeaning comments about being a working parent, compared with 26% of fathers. The study, sponsored by the ABA Commission on Women in the Profession, also found that 65% of the mothers interviewed were responsible for arranging child care, versus 7% of the fathers.

 

But a growing number of young lawyers are pushing back, according to attorneys and legal recruiters interviewed by the ABA Journal.

 

Money matters

 

“The millennial generation is less tolerant of the kind of sexism that many women for many generations just put up with as they tried to assimilate into the workforce,” says Tracy A. Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law.

 

And law firms have responded accordingly. Law firms of all sizes increasingly are offering hybrid work schedules, for example. In addition, there is less need for extensive travel due to online depositions and hearings, says Thomas, 59.

 

Millennials, she adds, are also more willing than prior generations to switch jobs to achieve a work environment that fits their needs. However, they can “run up against a wall” with billable hours.

 

Many law firms ask associates to bill 2,000 hours or more annually, but lowering that requirement to 1,800 could help attorneys have more work-life balance, Law.com reported in 2023. But the lower number could also reduce law firm profits up to 20%, according to the article.

 

“There's still a generational disconnect and friction between younger lawyers and leaders in law firms and the industry,” says Thomas, who studies gender and the law. “So long as the ideal worker is the person who works the most billable hours and firms still reward those lawyers with promotions, the choices set up for the younger generation, and particularly working mothers, are limited.”

 

In some ways, millennials also have options that weren't available to older generations, thanks to a changing work environment and the shift to remote work during the coronavirus pandemic. Sabrina Sacks Mann, 55, a Philadelphia legal recruiter, has noticed that the millennial generation will push for legal careers that fit their needs, with an emphasis on time with family.

 

“They are more likely to question the status quo,” says Mann, who has helped arrange the lateral placement of attorneys in law firms and corporations since 2002.

 

But Joanna Grossman, 56, a professor at Southern Methodist University Dedman School of Law in Dallas, says the legal profession is still resistant to real structural change.

 

“Millennials have a healthier view of work-life balance, and it would be better for the legal industry if people in law firms worked fewer hours, but in the end, profit is king,” says Grossman, the inaugural Ellen K. Solender Endowed Chair in Women and the Law. “The typical law firm model is not compatible for people who have substantial child care or nonwork responsibilities.”

New Book on the History of Abortion Pills

Carrie N. Baker has a new book forthcoming in December 2024 on the history of abortion pills in the United States. The book summary is here:  

This is the first book to offer a comprehensive history of abortion pills in the United States. Public intellectual and lawyer Carrie N. Baker shows how courageous activists waged a decades-long campaign to establish, expand, and maintain access to abortion pills. Weaving their voices throughout her book, Baker recounts both dramatic and everyday acts of their resistance. These activists battled anti-abortion forces, overly cautious policymakers, medical gatekeepers, and fearful allies in their four-decade-long fight to free abortion pills. In post-Roe America, abortion pills are currently playing a critically important role in providing safe abortion access to tens of thousands of people living in states that now ban and restrict abortion. Understanding this struggle will help to ensure continued access into the future.

Peleg on "Conversion Therapy and Children's Rights"

Noam Peleg has published Conversion Therapy and Children's Rights on SSRN. The abstract is excerpted below:

Conversion therapy is an umbrella term used to describe a range of practices that have one goal: making LGBTQ + children straight and/or cis-gendered. When it comes to children, conversion therapy is offered by adults to other adults, primarily parents, with the promise to transform children' s sexual orientation, gender identity or gender expressions. As the recipients of these practices, children are usually, but not always, coerced to attend these so-called therapeutic sessions by their parents. Conversion therapy has been subject to extensive debates in law and policy over the last couple of years, with some countries banning all, or some forms, of these practices, while others have stopped short of regulating it. Most, if not all, of the discussions about the legality of these practices centre on adults, their rights and interests, whether it is human or civil rights frameworks, such as discussing parents or providers right to religious freedom or to free speech, or their legal positionalities under other bodies of the law such as tort law, to name one example. But while children are victimized by  conversion therapy, their rights and interests are oft en overlooked and forgotten, let alone being front and centre of the discussion about the legality of these practices. This chapter seeks to centre children in the discussions about the legality of  conversion therapy  by taking a child-centred approach to analyze conversion therapy from a children's rights.

Hernández-Truyol on "Who's Afraid of Being WOKE?"

Berta Esparanza Hernández-Truyol has published Who's Afraid of Being WOKE? – Critical Theory as Awakening to Erascism and Other Injustices in 1 J. Critical Race and Ethnic Studies 19. The abstract of this essay is excerpted below:  

This Essay critically analyzes the “anti-woke” message deployed by the Conservative Political Action Conference’s (CPAC) 2023 annual meeting’s poster—the suggestion that awake is good and its synonym woke is bad—with the goal of establishing the importance of CRT in general and in education more specifically. This work shows how critical theories are key to deconstructing disingenuous messaging about the meaning of words, theoretical constructs, and historical realities.

The Work first elucidates that the meaning of awake, as utilized in myriad fields, addresses the concept of consciousness—awareness of injustices in society. Second, the Essay historicizes the origins and uses of the word woke to emphasize that it, indeed, is synonymous with awake. Following, it traces the development of critical thinking in law to establish the value and importance of critical approaches in analyzing language as well as in scrutinizing social (the family, educational and religious) institutions. The Work also shows how invaluable critical thinking is to unearthing legal structures’ often-skewed foundational values and thereby promoting a deeper understanding of constitutional values such as equality. Next, the work exposes critical analysis as a necessary precondition to the attainment of justice by utilizing the tools of CRT to unveil the intentional distortion of the meaning of woke as part of the strategy to entrench, maintain, and reify the status quo and marginalize, if not erase, difference—particularly racial, ethnic, and sexual hierarchies.

The Essay concludes that the attack on woke effectively is an erascist assault on African American language, values, and history. As such it is a symbol of the quest to perpetuate the status quo; an attempt to expunge the difficult truth of the country’s history on race unearthed by theoretical movements such as CRT’s unveiling of the racialized foundations of social institutions including law and the legal system. Erascism erasing uncomfortable racial and other social truths—appears to be the goal of the anti-wokeness fervor.

Indigent Defense and Gender

Andrew Davies & Evangeline Bulick, Indigent Defense and Gender, The Sage Encyclopedia of Crime and Gender (Janet P. Stamatel ed., Forthcoming)

In the United States, any defendant facing the possibility of incarceration has the right to be represented by an appointed lawyer if they can’t afford to hire one privately (Argersinger v. Hamlin, 1972; Gideon v. Wainwright, 1963). “Indigent defense” is the name given to this mandate and the systems that provide such lawyers. “Public defenders” and “appointed counsel” are terms for lawyers engaged in that work.

Scholars have examined indigent defense practice through the lens of gender in both historical and contemporary contexts. In this article, we first review work describing the role of women reformers in the visioning and creation of the earliest indigent defense systems in the late nineteenth century. Second, we describe statistical evidence on lawyers’ gender in the contemporary indigent defense profession. Third, we review scholarship on gender in the practice of indigent defense. We give special emphasis to feminist scholarship on women indigent defense lawyers appointed to represent people accused of sex offenses. Though sparse, we highlight evidence on intersectional and non-binary gender identities where it is available.

Feminist Philosophies of Copyright and Gender and the Politics of Proof

Carys J. Craig, Copyright and Gender: Feminist Philosophies and the Politics of Proof, forthcoming in Jessica Lai & Kathy Bowrey, A Research Agenda for Intellectual Property and Gender (Edward Elgar, 2025)

This chapter considers copyright and gender through a critical feminist frame. Part 1 surveys some feminist philosophical insights into copyright law's subject matter (original, fixed expression) and its protagonist (the independent rights-bearing author). It explains that core elements of the copyright system thereby encode a masculinist understanding of both creativity and selfhood. Part 2 turns to the matter of proof, pointing to a growing body of evidence that seeks to demonstrate the gendered nature and implications of copyright law. While acknowledging its political and persuasive potential, this chapter problematises the empirical turn in copyright and gender research and policymaking. It cautions that a focus on measuring inequality and quantifying gender disparities could undermine the more fundamental and transformational project of unsettling the copyright status quo. Ultimately, it concludes that the feminist copyright agenda should remain centred around the radical critique of a system that produces inequality and exclusion by design.

Women's Legal History Podcast, Key Legal Events During the Interwar Years

Legal History Podcast: Not For Want of Trying

A legal history podcast that uncovers key events in women's legal history in the UK during the interwar years.

Three States Pass Ballot Measures to Protect Marriage Equality

Three States Pass Ballot Measures to Further Protect LGBTQ+ Marriage

Voters in three progressive states have voted to codify marriage equality. California, Colorado and Hawaii all had ballot measures to protect the right of people of all genders to marry under state law. The moves will provide comfort to some who see incoming President Donald Trump as hostile to LGBTQ+ rights.

The Supreme Court granted same-sex couples the right to marry nationwide in its historic Obergefell v. Hodges decision in 2015. But many LGBTQ+ rights advocates have worried about the vulnerability of marriage equality: Some Supreme Court justices have expressed an interest in overturning the landmark ruling in legal opinions, and the court overturned its own precedent on abortion with the 2022 case Dobbs v. Jackson Women’s Health Organization. 

Most states (35 total) still have a constitutional ban or a statute outlawing same-sex marriage. While the 2015 Obergefell decision currently supersedes those bans, they would come back into play if the Supreme Court ever revisited its 2015 decision (three, including Hawaii, are technically unenforceable). 

Seventh Circuit Upholds IN Ban on Gender Affirming Care

Split 7th Circuit OKs Indiana Law Banning Youth Transgender Treatment

A split three-judge panel in the Seventh Circuit Wednesday greenlit Indiana's ban on gender-affirming care for minors.

The measure prohibits youth hormone therapy, puberty blockers and gender reassignment surgery. Indiana's Republican Governor Eric Holcomb signed it into law in April 2023, but before it could take effect that July, U.S. District Judge James Patrick Hanlon, a Donald Trump appointee, issued a preliminary injunction against most of its components.

Hanlon, ruling in a suit brought by a class of transgender youth represented by attorneys from the Indiana ACLU, suspended the moratorium on most gender-affirming medical procedures, though he allowed the ban on gender reassignment surgery to stand. He also blocked a provision of the law which would allow the state to prosecute medical practitioners who help trans youth access those procedures elsewhere.

The decision prompted an appeal to the Seventh Circuit, which heard arguments in February. Eleven days later, in a precursor to Wednesday's ruling, the appeals court lifted Hanlon’s injunction.

In its final ruling, the Seventh Circuit panel said that the lower court erred in finding that plaintiffs affected by the ban faced irreparable harm.

The decision is here: KC v. Individual Members of the Medical Licensing Board of Indiana

Everett and Taylor on "Abortion and Women’s Future Socioeconomic Attainment"

Bethany Everett and Catherine Taylor have published Abortion and Women’s Future Socioeconomic Attainment in the American Sociological Review. Its key conclusions are excerpted below. 

 

Using two different approaches, one that focuses on restrictive abortion environments and a second that focuses on having an abortion, we found that both living in a relatively less abortion-restricted environment and having an abortion during adolescence are associated with better socioeconomic outcomes for women up to 24 years later. We found that women who lived, as teenagers, in locations where abortion was less restricted were more likely, when they were 34 to 43 years old, to have graduated from college and to score lower on multiple indicators of poverty and economic insecurity than those living in states and counties with higher abortion restriction. This means that women with difficulty accessing abortion are more likely to experience trouble paying their bills, be in debt, and face eviction from their homes.

 

We also found that—among women who self-reported pregnancies under age 20—those who reported the pregnancy ended in abortion were more likely to have graduated from college and have higher incomes, and were less likely to experience economic challenges, including having their utilities (e.g., phone, electricity, and gas) turned off, eviction, and food insecurity, than were those who reported the pregnancy resulted in a live birth. Finally, we found that the relationships between our measures of abortion—in Studies 1 and 2—were less consistently associated with employment outcomes compared to other measures of economic security, implying that women who do not have access to abortion may not be less likely to be employed, but are perhaps more likely to be employed in low-wage jobs. Our results, combined with previous research, make several important contributions to sociological literature by documenting how abortion is a mechanism of socioeconomic stratification in the United States.

A Published Interview with Loretta Ross

The online periodical, Feminist Approaches in Culture and Politics, has published On Global Reproductive Justice: An Interview with Loretta J. Ross. The interview was conducted by Seda Saluk. Two powerful passages of Ross's remarks are excerpted below: 

When we talk about a global scale, I invite people to take a meta-view. The people who oppose human rights only have two things to their advantage: lies and violence. On our side are truth, evidence, history, and, most of all, time. I don’t believe that as powerful as these authoritarians see themselves, they don’t have the power to roll back time, deny the truth, bury all the evidence, or make people forget their history. They are trying their best to negate those existential forces that they cannot control.

* * *

 

One thing we say in the civil rights movement is that don’t imagine that you are the entire chain of freedom. The chain of freedom stretches backward toward all of your ancestors and forward toward all of your descendants. Your only job at this moment is to make sure the chain of freedom doesn’t break at your link. Don’t give up. Don’t lose hope. Don’t fail to step up to the challenge of keeping the chain of freedom intact, even though you may not be alive to see the outcome. 

Eliot Tracz on "Bisexuality and Binaries as Legal Shibboleths"

Eliot T. Tracz has posted a forthcoming article on SSRN titled Bisexuality and Binaries as Legal Shibboleths. The article is forthcoming in the Journal of Gender, Race & Justice. The abstract is excerpted here: 

This article argues that there is much that the law can learn, both from bisexuality and from over individuals who live outside of the binaries. Section II discusses bisexuality on a conceptual level. It begins be exploring how to define bisexuality and the related challenges. After settling on a definition, it then provides demographics to provide a clearer picture of the bisexual population. Finally, it describes how bisexual identity is often shared with other identities and the role of intersectionality in bisexual jurisprudence. Section III explores the relationship between binaries and bisexual erasure. It begins by defining bisexual erasure (bi-erasure) and offering some examples of how bi-erasure happens. In then takes a look at how our society classifies queer individuals through a number of bipolar categories including sexual orientation, relationship status, and gender identity. This is followed by discussion of how bisexuality fits within a world of binaries. Finally, it discusses internal queer politics, and the erasure of bisexual individuals within the queer community. Section IV builds on the previous section by shifting the discussion from bi-erasure generally into the narrower realm of the law. It begins by discussing bi-erasure in the opinions of the courts either through omission or an uninformed judiciary. [It] then discusses bi-erasure by lawyers advocating on behalf of queer rights. It closes by discussing bisexual erasure in legislation. Section V argues that bisexuality has the ability to be a subversive force in the law. First it argues that bisexuality’s inherent rejection of binaries demonstrates the hollowness of immutability as a legal concept. It does so in two ways: first it challenges the question of whether someone can be immutably queer, and second, it raises the question of whether or not immutability as a concept is still relevant. Finally, it argues that bisexuality is yet another instance in which the law is improved by rejecting reliance on simple binary ideas.

Gender, Constitutional Design, and Women's Leadership in Executive Positions

Bringing to your attention prior work that is particularly relevant now.

Paula Monopoli, Gender and Constitutional Design, 115 Yale Law J. 2643 (2006).

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical research that links voter perceptions about competence to the gender of candidates. It explores the stagnating progress of women in American politics in a post-September 11th environment and concludes that the choice of a more communal executive model, rather than an exclusively agentic one, may help reverse that trend and may actually result in a more effective executive.

Professor Monopoli is the founding director of the Women, Leadership & Equality Program at the University of Maryland School of Law.

Why America Still Doesn't Have a Female President

The Atlantic, Why America Still Doesn't Have a Female President. Every Woman is the Wrong Woman.

According to interviews I conducted with six researchers who study gender and politics, sexism was a small but significant factor that worked against Harris. And it’s going to be a problem for any woman who runs for president. “American voters tend to believe in the abstract that they support the idea of a woman candidate, but when they get the real women in front of them, they find some other reason not to like the candidate,” Karrin Vasby Anderson, a communications professor at Colorado State University, told me. In 2017, she wrote an article about the long odds faced by women running for president. The title? “Every Woman Is the Wrong Woman.”

Kentucky Supreme Court Has First Black Woman Justice

Pamela Goodwine Makes History Again as First Black Woman on Kentucky Supreme Court

Judge Pamela Goodwine is no stranger to firsts — she was the first Black woman in Lexington to be district judge and, later, the first to be circuit judge.

She became the first Black woman to serve on the Kentucky Court of Appeals after being elected in 2018.

Now, she’s made history again.***

“Being elected to the Kentucky Supreme Court tonight gives me the honor of being the first woman and only the fifth person in history to serve at every level (of the judiciary),” Goodwine said in a short speech just before 9 p.m. “Our campaign stood firmly on experience, honesty and a commitment to impartiality and the rule of law to protect and serve every citizen.”***

Goodwine has overcome challenge after challenge to achieve career successes, according to archived newspaper reporting from the last 30 years.

In foster care as an infant and later adopted by her foster parents, the Youngstown, Ohio, native and high school valedictorian gave up a college scholarship to support her adoptive father who was dying of lung cancer, the Lexington Herald-Leader reported in 2023. 

About 6 months after her father was diagnosed, he died. After his death, according to the Herald-Leader, his brother killed her mother.  

Goodwine, a young adult, had then lost both parents in tragic circumstances. And, she “had to deal with the judicial system” because of her mother’s murder, she told The Winchester Sun in 2018. 

At 24, she was diagnosed with Crohn’s disease, an incurable bowel inflammation condition that can be painful and disruptive to life. 

After diagnosis, according to 1995 Herald-Leader reporting, she spent two months hospitalized and had to re-learn how to eat and walk. 

She began working in the courts  as a legal secretary and court stenographer. She earned undergraduate and law degrees from the University of Kentucky and in 1994 entered private practice with the firm Wyatt, Tarrant & Combs until her appointment to the district court bench in 1999.

During this fall’s campaign for Supreme Court justice, she lost her granddaughter and great-granddaughter in what her campaign described as a “tragic car accident” in October. 

Abortion Rights Win in 7 States, But Lose in 3

Abortion Rights Advocates Win in 7 States But Lose in 3

Voters in Missouri cleared the way to undo one of the nation’s most restrictive abortion bans in one of seven victories for abortion rights advocates, while Florida, Nebraska and South Dakota defeated similar constitutional amendments, leaving bans in place.

Abortion rights amendments also passed in Arizona, Colorado, Maryland and Montana. Nevada voters also approved an amendment, but they’ll need to pass it again it 2026 for it to take effect. Another that bans discrimination on the basis of “pregnancy outcomes” prevailed in New York.***

Florida, Nebraska and South Dakota became the first states since Roe was overturned where abortion opponents prevailed on a ballot measure. Most voters supported the Florida measure, but it fell short of the required 60% to pass constitutional amendments in the state. Most states require a simple majority.

Win

AZ: Arizona Voters Approve Abortion Rights Amendment, NY Times

CO: Coloradans Approve Measure to Repeal Ban on Public Funding for Abortions

MD: Abortion Will Be Protected in the Maryland Constitution

MO: Missouri Voters Approve Constitutional Amendment Enshrining Abortion Rights

MT: Montana Voters Approve Abortion Ballot Measure

NY: New Yorkers Pass Equal Rights Amendment Tied to Abortion Access

NV: Nevadans Approve Measure to Codify Abortion Rights

Lose

FL: Florida's Abortion Amendment Fails, Leaving Six-Week Ban in Place (required supermajority of 60% to pass)

NB: Nebraska Voters Pass Measure Limiting Abortions

SD: Abortion-Rights Measure Loses in South Dakota

Court Extends Vullo to Hold First Amendment Bars Florida from Threatening Media for Abortion Related Speech

The Volokh Conspiracy, Court Holds the First Amendment Bars Florida from Threatening Media with Criminal Punishment for Spreading Supposed Health-Related Disinformation

From Chief Judge Mark Walker's opinion today in Floridians Protecting Freedom, Inc. v. Ladapo:

Floridians will vote on six proposed amendments to their state constitution this election cycle, including Amendment 4, titled "Amendment to Limit Government Interference with Abortion." Voting has already begun.

The State of Florida opposes Amendment 4 and has launched a taxpayer-funded campaign against it. Floridians Protecting Freedom, Inc., the Plaintiff in this case, has launched its own campaign in favor of Amendment 4.

Plaintiff does not challenge the State's right to spend millions of taxpayer dollars opposing Amendment 4. The rub, says Plaintiff, is that the State has crossed the line from advocating against Amendment 4 to censoring speech by demanding television stations remove Plaintiff's political advertisements supporting Amendment 4 or face criminal prosecution.

Plaintiff's argument is correct. While Defendant Ladapo refuses to even agree with this simple fact, Plaintiff's political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is "false." "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." "In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us." To keep it simple for the State of Florida: it's the First Amendment, stupid….

The court concluded that this violated the First Amendment.

 

See also my post from last week on this case.

Note that NRA v. Vullo, the 2024 Supreme Court precedent on which the court relied, was argued by David Cole of the ACLU (representing the NRA); the petition was filed by the Brewer Law Firm and by me. I think the visible ACLU-NRA/left-right alliance helped the NRA prevail, but also, as this case illustrates, helped ACLU in its broader agenda. The underlying principle—that the First Amendment limits the government's power to deter speech by threatening intermediaries (banks or insurance companies in NRA v. Vullo, TV stations here)—protects all speech, whether the NRA's pro-gun-rights speech or pro-abortion-rights speech such as that of the plaintiffs here.

What's Next Now that Ohio's Six-Week Abortion Ban Has Been Ruled Unconstitutional

What's Next Now that Ohio's Six-Week Abortion Ban Has Been Ruled Unconstitutional

Ohio’s six-week abortion ban is unconstitutional, after voters approved an amendment guaranteeing abortion access and reproductive rights last year. In that ruling, Hamilton County Judge Christian Jenkins said the ban can't be enforced. But the group that brought that suit against the state in the first place is signaling the battle over the ban may not be over.

ACLU of Ohio Legal Director Freda Levenson says the court has ruled the part of the law that bans abortion when fetal cardiac activity is detected - which is as early as six weeks into pregnancy - cannot stand under the new reproductive rights amendment passed in 2023.***

But Levenson said under the Hamilton County Common Pleas Court ruling, there are ancillary issues in that law that the state might be able to appeal.

"There were other provisions in that same statute - some related to the requirement that physicians check for cardiac activity when a patient comes in for an abortion," Levenson said. "Another provision was one that required physicians to provide certain state-mandated information to a patient. Another was a state requirement that a physician provide a written record of the abortion stating that there was no fetal activity or there is fetal activity."

Levenson said those issues could go back through the court system and may end up in the Ohio Supreme Court at some point. And for those concerned about abortion, that makes the three races for Ohio Supreme Court justices on this fall's ballot important.

In a written statement, Attorney General Dave Yost's office said it is reviewing the court's order.***

Levenson said there's also the possibility that state lawmakers could just take provisions of SB 23 that were turned down and put them into law at some point in the future.

At this point, there doesn't appear to be an effort to put provisions of SB 23 into new legislation. But that could change at the end of this year when this legislature wraps up its work in a lame duck session.

New Book, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition

Marie-Amélie George, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge 2024)

    From the Publisher:

In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change