Tuesday, June 30, 2015
A federal district court today dismissed a lawsuit filed by the American Civil Liberties Union and the ACLU of Michigan on behalf of a pregnant woman who was denied appropriate medical treatment because of the hospital’s religious directives.
In terminating the lawsuit brought by Muskegon resident Tamesha Means against the U.S. Conference of Catholic Bishops, the U.S. District Court for the Western District of Michigan said it was doing so, in part, because resolution of the case would involve reviewing religious doctrine. ***
In 2010, Ms. Means rushed to Mercy Health Partners when her water broke after only 18 weeks of pregnancy. The hospital, which was the only one in Muskegon County, sent her home twice even though she was in excruciating pain. Because of its Catholic affiliation and binding directives, the hospital told Ms. Means that there was nothing it could do, and it did not tell Ms. Means that terminating her pregnancy was an option and the safest course for her condition.
When Ms. Means returned to the hospital in extreme distress and with an infection, the hospital prepared to send her home for a third time. While staff prepared her discharge paperwork, she began to deliver. Only then did the hospital begin tending to Ms. Means’ miscarriage.
Sunday, June 28, 2015
The graph below was lifted from an Atlantic essay that shortly predated the Supreme Court's announcement regarding gay marriage.
White evangelical Protestants and Mormons are the only two groups in which majorities of younger members do not support same-sex marriage. But even among these most conservative groups, the generation gaps are yawning. And it is striking that among young white evangelical Protestants, opposition falls short of a majority.
Whether or not the Supreme Court deals the final blow to the culture war over same-sex marriage next week, public opinion trends indicate—and the public overall perceives—that the days of the decades-long debate over this issue are numbered. In light of that reality, both supporters and opponents of gay rights are already asking, “Then what?”
It looks as though the GOP has settled into two camps regarding gay marriage. One--the more conservative--represented by Carla Fiorina, and the other--less conservative--represented by Jeb Bush:
"Throughout the millennia and in every religion in the world, marriage has a very specific meaning. Marriage is an institution, grounded in spirituality. It is the union of a man and a woman, and from that union comes life, and life is a gift from God," Fiorina said at the Western Conservative Summit. "Now that this decision has come down, I think we need to focus all of our energies on ensuring that we protect the religious liberties and the freedom of conscience of those who profoundly disagree with this decision."
In Nevada, Jeb Bush told reporters he didn't think that a legislative push by Republicans for constitutional amendment on same-sex marriage was realistic.
"I don't think it's going to happen. I think we ought to focus just as I said on trying to forge consensus so we can move forward," Bush said. "The courts have decided traditional marriage still is a hugely important element of a just, loving society and we should respect people that have long-term loving relationships and allow people to act on their conscience."
In Obergefell v. Hodges, Justice Kennedy's rhetoric is elegant, and as a cultural document, his judicial opinion has been celebrated by many Americans--and many more will celebrate in the future. But as a teacher of constitutional law, I wish he hadn't combined the equal protection and due process arguments to strike down the ban against gay marriage.
Here's what Kennedy wrote:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.
The straightforward argument from equal protection would have been easier to make, in my view; the due process argument--the argument that gay marriage per se is constitutional--would appear more difficult to make.
Homosexuality would seem to satisfy all the conventional requirements to be deemed a "suspect classification" that triggers strict scrutiny under the equal protection clause. Gays are a discrete and insular minority; suffer stigma; have endured a history of discrimination; and their sexual orientation--like that of heterosexuals--is probably immutable.
There could have also been some political dividends to be gained from making the argument that gays are a vulnerable group who have been wrongly denied equal rights by a prejudiced majority.
But Kennedy's approach mushes things, and it will be harder for con law teachers to explain to their students what precisely he meant in terms of either due process or equal protection.
Saturday, June 27, 2015
What does the Same-Sex Marriage Case and its "Right to Individual Autonomy" Mean for Abortion Rights?
The Court's decision in Obergefell v. Hodges contains some interesting language about personal choice that arguably could be relevant in abortion cases. Kennedy very carefully describes the fundamental right as one of personal choice and autonomy.
- "In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs." Obergefell, 10.
- "A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. Obergefell, 12.
- "There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”). Obergefell, 13.
- The opinion relies on the birth control cases of Eisenstadt, Griswold, and Poe, and the maternity rights of LaFleur.
- And Justice Roberts in dissent rejects "this freewheeling notion of individual autonomy."
This is the question that all law professors, lawyers, and journalists seem fixated on after the Supreme Court's same-sex marriage decision in Obergefell. The emerging conclusion seems to be that Kennedy relied on dubious reasoning in analyzing the due process and equal protection claims.
To me, Kennedy answers the scrutiny question by the precedents he cites. In short, Zablocki. Zablocki was a case where groups were treated differently -- unmarried fathers behind on child support with children on welfare v. everyone else. So a classification problem that equal protection would address. But the classification basis was not just deadbeat Dads, but one group with a fundamental right and the other without. There was an interrelationship, what Kennedy calls "synergy" between the equal protection problem and the due process problem. In that case, the Court applied strict scrutiny. Although admittedly it went through a detailed analysis of the asserted state interests and their connection to the manner of regulation.
Kennedy concludes twice simply that the gay marriage bans were "unjustified." He addresses the asserted interests of deference to the democratic process, harm to straight marriage, and religion. He discounts these interests finding no harm to either marriage or religion, and religion still protected by the First Amendment. He also denies that deference to legislative processes has not been done, noting that there has in fact been significant caution and deference to the democratic process of 12+ years. He also seems to balances that interest against the harms to plaintiffs from delay. The Court engaged in a similar conclusory analysis in Loving, summarily rejecting the state's interest in white supremacy as not important or even rational.
Kennedy did circle round the question of judicial scrutiny, but he was answering a different question that advocates wanted him to answer. To Kennedy this was a marriage case, not a gay rights case. He carefully went through all of the Court's marriage precedents like a Family Law exam-- Maynard, Loving, Turner, Zablocki, even Williams -- to construct his analysis of marriage and the denial of what he described as a sacred right. He does twice mention sexual orientation as "immutable" thus providing dicta to support the next case seeking heightened scrutiny for sexual orientation discrimination.
By now you’ve heard that the Supreme Court decided Obergefell v. Hodges holding that there is a fundamental right to marry for same-sex partners.
I'm guessing that Ginsburg influenced or wrote the sections analogizing to coverture. The majority opinion uses coverture as an example of legal evolution in the structure of marriage. It cites some of attorney-Ginsburg’s equal protection cases as well.
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time. For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9–17 (2000); S. Coontz, Marriage, A History 15–16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16–19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000). Obergefell, 6-7.
Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970’s and 1980’s. Notwithstanding the gradual erosion of the doctrine of cover- Cite as: 576 U. S. ____ (2015) 21 Opinion of the Court ture, see supra, at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reed v. Reed, O. T. 1971, No. 70–4, pp. 69–88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that “the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.” Ga. Code Ann. §53–501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchberg v. Feenstra, 450 U. S. 455 (1981); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 (1980); Califano v. Westcott, 443 U. S. 76 (1979); Orr v. Orr, 440 U. S. 268 (1979); Califano v. Goldfarb, 430 U. S. 199 (1977) (plurality opinion); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); Frontiero v. Richardson, 411 U. S. 677 (1973). Like Loving and Zablocki, these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution. Obergefell, 20-21.
Justice Roberts in dissent also refers to coverture, denying that legal reforms worked a transformation in the structure of marriage.
As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. 8 OBERGEFELL v. HODGES ROBERTS, C. J., dissenting Loving, 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante, at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante, at 6
I bet if you asked a woman on the street, she would have understood marriage as coverture.
Friday, June 26, 2015
Instructors of legal writing may wish to take note of Justice Scalia's memorable prose in his dissenting opinion in the gay marriage cases (I have placed in bold especially colorful language):
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court....
Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.
The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.
Justice Kennedy said gay and lesbian couples have a fundamental right to marry.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”
And SCOTUS Blog commentary:
Are you a man or a woman? Have you always felt like one of the two? Do other people generally tend to agree with you on this point and, if so, was this always the case? If the answer is yes to all three of these questions, congratulations, you’re cisgender. Lucky you. Not that I’m saying your life has been a bed of roses or anything, but unless you were “born in the wrong body” – to indulge in a hideous cliche – and have had to convince your friends, family and colleagues that you are who you say you are in the man and woman stakes, you are as cisgender as I am transgender.
The Oxford English Dictionary has added “cisgender” to its compendium of recognised words. Cisgender is officially a thing. As is “hot mess”, and twerking, which also gets a nod from the academics that decide such things at Oxford University Press – people I’d pay good money to see twerking, by the way.
The summer is available online:
|Feminism in Yellowface
|The Future of Polyamorous Marriage: Lessons From the Marriage Equality Struggle
Hadar Aviram & Gwendolyn M. Leachman
|A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers
Karen Oehme, Nat Stern & Annelise Mennicke
|The Long American Plan: The U.S. Government’s Campaign Against Venereal Disease and its Carriers
Scott Wasserman Stern
|Why Originalism Needs Critical Theory: Democracy, Language, and Social Power
Annaleigh E. Curtis
Thursday, June 25, 2015
The U.S. Park Police, in agreeing this week to pay $300,000 to a former detective who sued after she got pregnant and was assigned to clerical work, also threw out a longstanding policy that critics derided as out of touch with the times.
Pregnant officers were required to notify their supervisors as soon as they knew they were pregnant — and provide a doctor’s note authorizing them to keep working. “When the officer’s medical physician determines that she can no longer work, the officer shall be placed on maternity leave,” Sec. F of General Order 33.00 said.
The Park Police tweaked the policy after Renee Abt sued to say that women could notify their bosses in their first trimester of pregnancy. But the department had to throw that one out too.
Meryl Streep is in good company promoting renewed efforts to pass an ERA, as John posted about yesterday. Justice Ginsburg has repeatedly and recently called for the ERA. Even Catharine MacKinnon, who once opposed the ERA as a weak, formalistic and ineffective approach to sex inequality, now believes it offers a basis for addressing systemic discrimination and issues of economic inequality and violence against women. Toward a Renewed Equal Rights Amendment: Now More Than Ever, 37 Harv. J. Gender & Law 569(2014).
I happen to be in the middle of writing a book chapter about the history of the ERA for a forthcoming book on the 100th Anniversary of Ratification of the 19th Amendment. First proposed by the Feminist Alliance in 1914 and advanced by Alice Paul's National Woman's Party, the ERA was intended to be a simple way of providing a clean-sweep of achieving gender equality across the board. Rather than dabbling in each area in each state on issues of equal pay, child custody, marital property rights, etc. From the beginning, social feminists and unionists opposed the ERA because its equality mandate would prohibit protective labor legislation protecting women in maximum hours and minimum wage laws. That opposition eventually faded as protective labor laws were extended by courts and Congress to both men and women. The ERA was supported in the 50s and 60s by both parties, featured in Republican platforms and by numerous platforms.
Until Roe v. Wade. Once the ERA passed Congress in 1972, it was quickly ratified by many states, some within days and hours of its activation. Roe halted that progress, associating feminist demands for equality with abortion. Other issues emerged - opposition to women in combat and gay marriage and "homosexuality rights." All of which, we have today. The ERA fell 3 states shy of ratification, even after an extension on the ratification deadline.
Today, the arguments are that we need a guarantee of principle and cultural norm of sex equality permanently (or as permanently as possible) fixed in the Constitution. That equal protection jurisprudence is limited in its reach, as is the specific laws of Title VII, equal pay, and pregnancy discrimination.
Wednesday, June 24, 2015
ConLawNOW is an online legal journal published by the Center for Constitutional Law at the University of Akron School of Law. It offers a venue for legal analysis of current issues of constitutional law happening now.
The new short essay format allows for timely debate and analysis of legal issues in the headlines including pending Supreme Court cases, and events as they happen. ConLawNOW offers a quick turn-around time for publication designed to get authors’ insights into the public discourse where they can influence the debate.
For submissions, the journal welcomes essays of 5-10 pages from academics, practitioners, and commentators in all types of scholarship including traditional legal analysis, history, debate, commentary, book reviews, or responses. Send your submissions to firstname.lastname@example.org.
For more information, go to www.akronconlawjournal.com.
Recently, Meryl Streep mailed each member of Congress a letter reminding them that we still an Equal Rights Amendment for women.
The Associated Press reports that Streep has mailed letters to every member of Congress reminding them that the U.S. Constitution still does not include an Equal Rights Amendment. Written in 1920 and finally passed by Congress in 1972, the ERA — which states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” — has been stalled since 1982. Currently, only 35 states have ratified it — three short of the 38 states needed to add it to the Constitution.
“A whole new generation of women and girls are talking about equality — equal pay, equal protection from sexual assault, equal rights,” Streep wrote. “I am writing to ask you to stand up for equality — for your mother, your daughter, your sister, your wife, or yourself — by actively supporting the Equal Rights Amendment.” Each package also included a copy of Equal Means Equal, written by ERA Coalition president Jessica Neuwirth.
This emphasis on equality, while potentially good, is explicitly political in trying to bring about results which it regards as just. As such, Ms. Streep's principle of equality runs against to some extent the contemporary trend toward autonomy, the idea that people should simply be left alone to realize who they want to be, an idea that is less rooted in fair political results than in the principle of tolerance.
In a first, the NALSAR Law University in Hyderabad has issued a gender-neutral graduation certificate to a student who did not wish to be identified with honorific Mr or Ms but with "Mx".
Anindita Mukherjee, who graduated this year from the Law school, had requested the authorities to address her as "Mx" in her certificates and the university, which has probably become the first Indian educational institution to do so, accepted the "fact".
Mukherjee also prefers to be addressed as "they" rather than "he" or "she".
Note the "Mx." designation:
BabyCenter.com noticed thisemerging trend in its midyear report. Though gendered names like Noah and Emma remain super common, gender-neutral names like Amari, Karter, Phoenix, Quinn and Reese are rising in popularity too.
“As usual, baby names are reflecting a larger cultural shift,”says BabyCenter’s Global Editor in Chief Linda Murray. “Millennials are an open-minded and accepting group, and they don’t want their children to feel pressured to conform to stereotypes that might be restrictive.”
Tuesday, June 23, 2015
On Saturday, June 13, Supreme Court Justice Ruth Bader Ginsburg discussed her career, celebrity status, and time on the Supreme Court with her former clerk and current California Associate Justice Goodwin Liu.
We have been tracking the number of new women law deans. Our current count is 11 of 25 new appointments (44%).
The National Law Journal provides more analysis in Female Deans Taking Charge
Since 1989, women who run law schools have dined together during an annual American Bar Association workshop for leaders in legal education. Tradition dictates that each attendee talk about her greatest success and failure during the year. They share support and ideas.
When Katherine Broderick assumed the deanship of the University of the District of Columbia David A. Clarke School of Law in 1998, the 14 female law deans could fit at a relatively small table. Today, 59 women run American Bar Association-accredited law schools, comprising 30 percent of all law deans. That's up from under 21 percent in 2008, according to a survey of law faculty by the Association of American Law Schools (AALS).
Clearly, they need a bigger table.
"Because we are so many, the stories of triumph and disaster are much shorter," said Broderick, now the longest-serving woman dean.
The numbers are set to rise even higher. Eleven — fully 40 percent — of the 28 deans slated to take over this summer are women — a spike that has not gone unnoticed. Incoming deans who attended a two-day ABA conference in Chicago this month buzzed about the number of women in the room.
"It felt to me like there were a striking number of new female deans," said Jennifer Mnookin, who will take the top spot at the University of California at Los Angeles School of Law on July 1. "At one point, I was talking with a group of six soon-to-be deans, and five of them were women. I don't think that would have been possible a decade ago."
On Monday, the Fifth Circuit—one of the most conservative appeals courts in the country—rejected a challenge to the Affordable Care Act's contraceptive mandate in an opinion written by Judge Jerry E. Smith—one of the most conservative federal judges on the bench. The challenge, brought by nonprofit religious groups, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA) by forcing these groups to sign a form that would eventually allow their employees to access contraception. In a concise, emphatic opinion, the court ruled that the mandate complies with RFRA. ***
The religious groups currently suing the government claim that the act of submitting this form constitutes a substantial burden on their religious exericse, in violation of RFRA. Signing the form, they argue, will set into motion a chain of events that ultimately allows their employees to gain access to contraception. The Third, Sixth, Seventh, and D.C. Circuits have already rejected this argument; the Fifth Circuit now joins their ranks. At the heart of the court's opinion is this remarkable passage:
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.