Wednesday, January 22, 2020
History of ERA Passage
The Equal Rights Amendment (ERA) was passed by Congress in 1972. The original Amendment contained a 7-year deadline in the preamble to the resolution reaching to 1979. Congress extended the deadline to 1982. President Carter signed the extension as a symbolic gesture, as the Constitution gives the President no formal role in amending the Constitution. The Office of Legal Counsel at the time opined that Congress had the power to grant the extension as a procedural move by majority vote. See Memorandum for Robert J. Lipshutz, Counsel to the President, from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Extending the Time Period for Ratification of the Proposed Equal Rights Amendment (Oct. 31, 1977).
Only 32 states ratified the ERA by 1982—3 states shy of the 38 required by the Constitution of ¾ of the states. Momentum from the Women’s Marches, #MeToo movement, and the 2016 Presidential election triggered renewed interest in an equal rights amendment. Nevada then ratified the ERA in 2017, Illinois in 2018, and Virginia in 2020, thus now reaching the 38 states. Five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) attempted to rescind their ratification in the late 1970s.
Current Challenges to ERA Ratification
In December 2019, three Attorney Generals, two from states that never ratified the ERA (Alabama and Louisiana), and one that attempt to rescind (South Dakota) sued in federal court in the Northern District of Alabama to prevent the National Archivist from recording the ERA, arguing that the deadline had expired and that the rescinded votes could not be counted. Alabama v. Ferriero (N.D. Ala., filed Dec. 16, 2019). They also argued that the ERA would hurt women, undermine state sovereignty, and threaten anti-abortion laws, expand to LGBT rights, and invalidate gender segregation in schools, prisons, sports, and domestic violence shelters.
The National Archivist sought an opinion from the Office of Legal Counsel as to the status of the ERA. Office of Legal Counsel, Memorandum, Ratification of the Equal Rights Amendment (Jan. 2020) The OLC opinion issued in January 2020 advised that Congress did not have the authority to modify the original deadline, disagreed with the prior 1977 OLC opinion supporting extension, and declined to issue an opinion on rescission.
Arguments in Support of Ratification Today
So what do proponents of ERA say? There are good arguments that the ERA remains open for ratification now, despite the past deadlines, and does not require a complete restart of the amendment and ratification process.
1. The original deadline is not mandatory.
a. Deadlines are not required for constitutional amendments. The first 17 amendments did not have a deadline.
b. The deadline is contained in the preamble to the resolution, and not the text of the amendment itself, and therefore is not binding as part of the ratification.
c. The Supreme Court’s decision in Dillon v. Gloss, 256 U.S. 368 (1921) upholding Congress’s power to attach deadlines to constitutional amendments, is incorrect. In Dillon, the Court addressed a challenge to the deadline added for the first time for the Eighteenth Amendment for prohibition.
i. The textual basis for the Court’s holding stemming from Article V of the Constitution is incorrect. Congress’s power to determine the “mode of resolution” means only that Congress can decide whether to amend the Constitution by Congressional proposal or state legislative convention.
ii. Dillon’s conclusion that amendments implicitly require “contemporaneity” was disproven by the 27th Amendment which passed in 1992 after pending for over 200 years. The 27th Amendment prohibits Congress from voting itself pay raises, requiring an intervening election before such raises take effect. It was originally proposed in 1789 as the Second Amendment. While the 27th Amendment did not include an express deadline, its long open ratification period contradicts the Supreme Court’s holding that all amendments must be passed in relatively short time period.
2. Congress has the power to modify the deadline
a. The deadline is merely a procedural adjunct to the amendment, which Congress can modify, extend, or nullify. As a procedural matter, only a majority of the congressional houses is required.
b. The 1977 OLC decision concluded that Congress has the power to extend and thus alter initial deadlines.
c. The Supreme Court held in Coleman v. Miller, 307 U.S. 433 (1939), that in the absence of a deadline, Congress may determine after receiving 38 ratifications whether too much time has passed. In Coleman, the Child Labor Amendment was pending for thirteen years. It did not include a deadline. The Supreme Court held that Congress had the authority to determine matters of time and expiration, after ratification by 38 states.
d. Coleman also held, in fractured opinions, that the question of a reasonable time for ratification is a non-justiciable political question, left to Congress and not the courts.
If the deadline does not apply, then the question is whether states can rescind their past ratification. The precedent of the Fourteenth Amendment suggests no. Several states which had ratified the 14th Amendment attempted to rescind their vote. The National Archivist and Congress refused to accept the rescissions, essentially finding them to be irrevocable.
In the context of the ERA, a federal district court in Idaho concluded that states could rescind their votes. Idaho v. Freeman, 529 F. Supp. 1107 (D. Idaho 1981); but see John Carol Constitutional Amendment: Idaho v. Freeman, 16 Akron Law Rev. 151 (1983) (arguing Freeman was wrongly decided). The decision was appealed, and granted cert by the Supreme Court, but was dismissed as moot after expiration of the 1982 deadline.
Monday, December 9, 2019
Wednesday, November 20, 2019
The US Supreme Court on Friday accepted a Justice Department appeal to review the cases of three men in the Air Force whose rape convictions were overturned last year -- including one whose confession the Air Force recorded -- when the top military appeals court found a five-year statute of limitations existed for military sexual assault before 2006.The Supreme Court arguments will be scheduled for next spring and a ruling is likely by the end of June.This will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.***At the heart of the dispute is a ruling made last year by the Court of Appeals for the Armed Forces, the military's top appeals court, in a separate alleged rape case called US v. Mangahas.The Mangahas decision prohibited prosecutors from bringing charges for rape that happened before 2006 unless the offense had been reported and charged within five years.The Supreme Court will now interpret whether a five-year statute of limitations or no time limit should exist for the prosecution of military sexual assault for cases between 1986 and 2006.
The U.S. Supreme Court has agreed to hear the federal government’s case against a military court ruling that reversed several military rape convictions for crimes committed more than a decade or two ago.
The controversial decision by the U.S. Court of Appeals for the Armed Forces, based on previous court decisions, placed a 5-year time limit on prosecuting crimes of rape that occurred between 1986 and 2006.
The case, United States v. Briggs, is a consolidation of filings named for Air Force Lt. Col. Michael Briggs who, in 2014, was convicted of raping a staff sergeant in 2005. The case came to light after Briggs called the victim in 2013 to confess — a conversation the victim recorded.
“I will always be sorry for raping you,” he told her, according to court documents.
The recording was key to bringing Briggs to trial and he was prosecuted under the assumption that there was no statute of limitations for pursuing rape cases in the military. He was found guilty, sentenced to five months confinement and dismissed from the service.
Years before the Briggs case, the Uniformed Code of Military Justice held that rape was a crime punishable by death and therefore had no time limit for prosecuting the crime. But in 1998, the U.S. Court of Appeals for the Armed Forces, or CAAF, ruled that some rape charges were not punishable by death, and the standard five-year limit for prosecuting most crimes was instated.
In 2006, however, Congress amended Uniformed Code of Military Justice to ensure that the time limit for rape cases was abolished. Briggs’s conviction, as well as others, came after the law was changed.
But in February 2018, the military appeals court affirmed the statute of limitations for cases that occurred in a gray area under the law, from 1986 to 2006.
Monday, November 18, 2019
Pleased to see that my recent article, Leveling Down Gender Equality, in the Harvard Journal of Law & Gender (2019), was reviewed favorably today in JOTWELL Chao-Ju Chen, Equality for Whom: The Curious Case of RBG's Equality and Morales-Santana's Nationality.
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.”1 Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.***
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.***
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.***
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.)
Wednesday, October 23, 2019
Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.***
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.***
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”***
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.
Tuesday, October 8, 2019
Even as the legal profession pledges to bolster diversity in its workforce, the number of female lawyers who argue before the U.S. Supreme Court is still bafflingly low.
At a recent Women’s Bar Association of the District of Columbia panel discussion titled “Supreme Court Advocacy: Where are the Women?” Williams & Connolly partner Sarah Harris reported that in the last Supreme Court term, 31 of the 184 appearances were women. That amounts to 17%, lower than some other recent terms, as tallied by SCOTUSBlog.
The numbers are even worse for female lawyers in private practice, Harris noted. Only seven of the 90 appearances by private practitioners were by women, “which is not very great,” she said. And among the 31 lawyers who argued on behalf of corporations, only three were women. Harris clerked for Justice Clarence Thomas in 2015 and 2016.
The number of female advocates of color is also dismal, though that data point is more difficult to tally, said Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe and a former clerk to Justice Ruth Bader Ginsburg. “When I talk to my friends who are women of color about their clerkships, they can’t point to a single person who looks like them who has done this before. I think we’re losing talent before the court.”
Numerous reasons but few solutions for the low numbers were advanced during the discussion. At the end of the event, moderator Amy Howe, a reporter for SCOTUSblog, said, “I wish we could stop having to have these discussions.”
One reason discussed for the dearth of women is the client’s preference for experienced Supreme Court advocates, which often, in self-fulfilling fashion, can rule out women. “Clients aren’t, especially in the big corporations, that keen to take a chance on a more junior advocate,” said Loren AliKhan, solicitor general for the District of Columbia and formerly a lawyer at O’Melveny & Myers.
Friday, October 4, 2019
Getting up to Speed on the Issues in June Medical Services, the Abortion Case Just Granted Cert by the Supreme Court
The US Supreme Court granted cert on Oct. 4, 2019, in June Medical Services v. Gee, https://www.supremecourt.gov/orders/courtorders/100419zr_onkq.pdf
The issue is " Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt."
The case page from SCOTUSblog is here, including the docket and prior commentary.
Justice Kavanaugh's opinion dissenting from the grant of a stay in the case in Feb. 2019 is here.
[T]he status quo will be effectively preserved for all parties during the State’s 45-day regulatory transition period. I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.
Louisiana’s new law requires doctors who perform abortions to have admitting privileges at a nearby hospital. The question presented to us at this time is whether the law imposes an undue burden under our decision in Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016). All parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application. I therefore will analyze the stay application under that precedent. Louisiana has three clinics that currently provide abortions. As relevant here, four doctors perform abortions at those three clinics. One of those four doctors has admitting privileges at a nearby hospital, as required by the new law. The question is whether the other three doctors—Doe 2, Doe 5, and Doe 6—can obtain the necessary admitting privileges. If they can, then the three clinics could continue providing abortions. And if so, then the new law would not impose an undue burden for purposes of Whole Woman’s Health. By contrast, if the three doctors cannot obtain admitting privileges, then one or
two of the three clinics would not be able to continue providing abortions. If so, then even the State acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.
The law has not yet taken effect, so the case comes to us in the context of a pre-enforcement facial challenge. That means that the parties have offered, in essence, competing predictions about whether those three doctors can obtain admitting privileges.
My prior blog post on the Kavanaugh dissent in the grant of the stay, and his inversion of the usual standard of the status quo for preliminary injunctions, is here at Understanding More About Justice Kavanaugh's Dissent.
An excellent symposium and deep dive on the implications of the case is at the Take Care blog, here.
June Medical Services v. Gee is the Supreme Court’s next opportunity to weigh in on women’s constitutional right to decide to end their pregnancies
Alicia Bannon & Jennifer Weiss-Wolf, June Medical Services’ Double Threat to the Rule of Law
In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.
Ideological lower court judges have challenged the Supreme Court by defying its precedent. There is one way for the Court to keep from being put in this position time and again. It should summarily reverse, making clear that only the Court will decide when its own precedent is no longer good law.
Mary Ziegler, The Anti-Abortion Movement's Unworkability Strategy
Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.
What is clear in June Medical Services v. Gee, as with the other antiabortion measures making their way through the courts, is that these targeted regulations of abortion providers have nothing to do with protecting women or their health
Mary Bonatuo & Shannon Minter,Pavan and June Medical Services
Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.
Leah Litman, June Medical And The End of Reproductive Justice
While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence
Wednesday, October 2, 2019
Providing an excellent macro-level account of how the 19th Amendment is relevant to constitutional interpretation today, in reading the 19th Amendment and its history into a jurisprudence of equality.
This year marks the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, a radically pro-democratic amendment that empowered roughly ten million women to vote in a general election for the first time. Given the practical and expressive significance of the Amendment, it is appropriate that the United States is honoring the occasion. But Americans might do more than honor their shared past. They might be encouraged to think about why the story of the Nineteenth Amendment matters to Americans living today. That story includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits the story of the Nineteenth Amendment—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why that story relates to the lives of contemporary Americans. Its overarching objective is to suggest that the full story of the Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay makes four points in four parts. The first two explain when and how voting rights for all women slowly became a reality, and the final two identify some implications of that history for American constitutional law and contemporary constitutional politics.
Part I considers which women were enfranchised when and why it matters. Part II considers some of the groups (men) and structures (federalism) that both impeded and facilitated woman suffrage. Part III explains the link between restrictions on woman suffrage and the social subordination of women to men, showing how the anti-subordination rationale of the Nineteenth Amendment bears on both its own interpretation and the interpretation of the Equal Protection Clause by the courts. Part IV turns to the contemporary implications of the story of the Nineteenth Amendment for American constitutional politics, including debates over the Equal Rights Amendment, unequal pay for equal work, paid family and self-care leave, and restrictions on access to contraception and abortion.
Monday, September 30, 2019
SCOTUS to Consider Question of whether Sexual Orientation and Gender Identity are Protected by Title VII
Lots of writing and thinking about the upcoming Supreme Court cases to be heard on Oct. 8 on whether Title VII's "because of sex" extends to sexual orientation and/or gender identity. The consolidated cases are, from SCOTUSblog:
Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019]
R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019]
|Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019]
Issue(s): Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
Some of the analysis includes:
Andrew Koppelman, LGBT Discrimination and the Subtractive Moves
The Supreme Court will shortly consider whether Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The lower courts are split on whether such protection is granted by the plain language of the statute. The judges who reject the discrimination claim argue that the statute does not prohibit activity that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy. Their subtractive strategy, an innovation in statutory interpretation, comprises a number of different argumentative moves, with a common aim: to draw upon the cultural context at the time of enactment to avoid an unwelcome implication of a statute’s plain language. This strategy however maximizes judicial discretion and betrays the promise of textualism.
In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.
The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases. Those briefs frame the issue in a particular, familiar way: They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike. Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation. In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too. Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce: such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).
The U.S. Equal Employment Opportunity Commission sued R.G. & G.R. Harris Funeral Homes on behalf of Stephens, arguing her former employer fired her because she is transgender, violating federal civil rights laws. The funeral home and its owner Thomas Rost, however have since argued that “maintaining a professional dress code that is not distracting to grieving families is an essential industry requirement that furthers their healing process.”
This dispute will play out before the U.S. Supreme Court on Oct. 8, where the justices will grapple with a broader question of whether gender identity should be protected under Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees on the basis of sex, race, national origin, and religion. The divisive issue has been drawn into the national spotlight, and pits two federal agencies against each other.
The funeral home’s dress code argument, backed by the Justice Department, reveals a practical clash in the workplace that could be resolved when the high court issues its opinion. Whether these policies are permitted under Title VII already falls in a legal gray area, and has prompted challenges for decades and inspired some state action recently, specifically over hair or grooming policies.
Thursday, September 26, 2019
Throughout the year, the justices meet periodically to decide if they want to add more cases to the short list of lawsuits that are argued before the Court. Monday is the Court’s “long conference,” the annual meeting where the justices consider the backlog of petitions that were filed while the Court was on its summer break, each of which ask the Court to hear a particular case.
One of those petitions concerns June Medical Services v. Gee, a case involving a Louisiana abortion restriction that will be very familiar to anyone who’s followed the last several years of abortion litigation.
To recap: Three years ago, in Whole Woman’s Health v. Hellerstedt, the Supreme Court considered a Texas law that imposed burdensome restrictions on abortion clinics that, at least on the surface, appeared to be ordinary health regulations. One provision required any physician performing an abortion in Texas to have admitting privileges at a nearby hospital (a credential that is especially difficult for abortion providers to obtain). Another required abortion clinics to maintain expensive facilities, such as “a full surgical suite with an operating room.”
Whole Woman’s Health was a challenge to what abortion-rights advocates often refer to as “targeted restrictions on abortion providers” or “TRAP” laws — laws that masquerade as efforts to make abortions safer but whose real purpose is to drive up the cost of operating abortion clinics until they shut down.
Many abortion clinics, for example, only offer medication abortions — a non-surgical abortion induced by pills. As Whole Woman’s Health explained, “the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication” because “complications would almost always arise only after the patient has left the facility.” Simply put, it makes no sense to require facilities that perform no surgeries to have a full surgical suite.***
Which brings us back to Gee, the case the Court will discuss next week. The Louisiana law at issue in that case is nearly identical to the admitting privileges law struck down in Whole Woman’s Health. Nevertheless, a panel of the conservative United States Court of Appeals for the Fifth Circuit upheld this extraordinarily similar law, largely resting its decision on a contested factual claim that it may be easier for doctors to obtain admitting privileges in Louisiana than it is in Texas.
That prompted a strongly worded dissent from Judge Patrick Higginbotham, a Reagan appointee. The Fifth Circuit majority, Higginbotham wrote, ignored the Supreme Court’s command that “‘unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden’ on the exercise of that right.”
Wednesday, June 5, 2019
Leser v. Garnett, 258 U.S. 130 (1922) - challenging the validity of the 19th Amendment and seeking to strike women voters, cursorily dismissed
Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923) - interpreting the 19th Amendment broadly as a structural guarantee of gender equality in society
For more on these cases, see Tracy Thomas, More Than the Vote: The 19th Amendment as Proxy for Gender Equality, Stanford J. Civil Rights & Civil Liberties (forthcoming) and Reva Siegel, She the People: The Nineteenth Amendment: Sex Equality, and Federalism, 115 Harv. L. Rev. 947 (2002).
Tuesday, June 4, 2019
The Supreme Court decided Box v. Planned Parenthood without full briefing or oral argument and issuing a per curiam opinion. It upheld Indiana's fetal remains law, but denied cert on the second question regarding the law prohibiting abortion for fetal diagnosis or disability. Justice Sotomayor would have denied cert on both questions. Justice Ginsburg dissented, and would have applied a higher standard of scrutiny because the case implicated “the right of [a] woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Justice Thomas dissented from the denial of cert on the second question. Ginsburg criticized Thomas' opinion, saying it "displays more heat than light."
The Supreme Court on Tuesday agreed to a compromise on Indiana’s contested abortion law, an outcome that revealed its openness to state restrictions on the procedure but also apparently favored a cautious and incremental path in confronting one of the nation’s enduring controversies.
On one hand, the court upheld a part of Indiana’s 2016 law that places new restrictions on the disposal of fetal remains after an abortion. It reversed a decision by a lower court without the customary briefing and oral arguments.
But the court said it would not revive another part of the law, which would have prohibited abortions if the woman chose the procedure because of a diagnosis or “potential diagnosis” of Down syndrome or “any other disability,” or because of the fetus’s gender or race.
The Indiana case was closely watched because it was the first time the conservative court, reinforced by the addition of President Trump’s two nominees, had the opportunity to take a case with consequences for the constitutional protections found in Roe v. Wade and Planned Parenthood v. Casey.
Tuesday’s decision in Box v. Planned Parenthood of Indiana and Kentuckyheld no consequences for either Roe or Casey. But it appeared to be a commencement of the new court’s consideration of abortion rights, and many cases are waiting in the wings.***
The unsigned opinion of the court, just three pages long, was matter-of-fact and devoid of broad holdings. Only Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have let the lower court’s rejections stay in place; fellow liberals Stephen G. Breyer and Elena Kagan were silent.
But there were signs of tension. Justice Clarence Thomas wrote a 20-page statement linking abortion to the eugenics policies popular in the 19th and early 20th centuries. He added in a footnote that Ginsburg’s objection to the fetal-remains portion of the law “makes little sense.”
She responded by correcting his use of the word “mother” throughout his opinion. “A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother,’ ” she wrote.
The portion of the Indiana law the court allowed to go into effect mandates that the “remains” of an abortion or miscarriage be buried or cremated, as required of other human remains.
See Mary Ziegler, What Clarence Thomas Gets Wrong About Abortion and Eugenics
This is a dark history, but it is not the tidy, simple one that Thomas describes. Many population controllers actually opposed legal abortion or viewed it as irrelevant. They shared the worries of their eugenicist forbears that giving women a choice would not do enough to reduce demographic growth.
More important, many in the population control movement had no interest in eugenics. Cold warriors hoped that curbing demographic growth would prevent developing countries from turning to communism. Environmentalists believed that population control could conserve scarce environmental resources. And feminists believed that population control could facilitate the liberation of women.
The converse was also true: Unlike the synergy of belief conveyed by Thomas, some abortion rights supporters had no use for population rhetoric, viewing it as unethical and counterproductive, regardless of the political benefits. Contrary to what Thomas suggests, these voices grew louder after Roe, when feminists took on more influential roles in major abortion rights organizations. These groups understood that population arguments could smack of coercion — antithetical to their beliefs about choice and freedom — and alienate people of color both in the United States and in developing countries. And feminists increasingly argued that women had a right to abortion regardless of its policy consequences.
Thursday, May 16, 2019
Marcia Coyle, The Justices Had 5 Votes to Overturn Roe in 1992. Why That Didn't Happen, Natl L. J.
In 1992, anti-abortion groups thought they had a winning case in defense of a restrictive Pennsylvania state law. There appeared to be five votes on the U.S. Supreme Court to overrule the landmark decision Roe v. Wade, but that did not happen. As Alabama and Missouri lawmakers adopt strict anti-abortion laws, and predict successful outcomes at the high court, history provides some lessons: Never bet on what occurs behind the high court’s closed conference doors.
After oral arguments in Planned Parenthood of S.E. Pennsylvania v. Casey, Justices Harry Blackmun and John Paul Stevens believed the 1973 ruling in Roe was doomed.
Stevens, writing in his newly published book, “The Making of a Justice,” said the justices, except for him and Blackmun, agreed the U.S. Court of Appeals for the Third Circuit correctly upheld all of the challenged abortion restrictions—save for one, which required a married woman to certify she had notified her husband of her intent to have an abortion.
The Casey case, which affirmed Roe’s central holding, is getting renewed attention today for the standard the decision set for determining whether a state law posed an “undue burden” on a woman’s right to get an abortion. The justices are weighing several abortion-related challenges, and separately, new laws passed by Alabama and other Republican-led states could tee up direct challenges to Roe in the coming months.
Several new books, including the one from Stevens, offer a glimpse behind the scenes at how the Pennsylvania case was resolved and why caution is warranted in predicting the outcome in the most contentious cases.
“Harry and I both assumed that the result [in Casey] would be explained in an opinion overruling Roe v. Wade,” Stevens wrote in his autobiography, published this week.
In fact, at the justices’ private conference, Chief Justice William Rehnquist counted five votes to reverse Roe, and he assigned the court’s opinion to himself, according to journalist Evan Thomas in his new book, “First,” a biography of Sandra Day O’Connor.
States Quickly Passing Restrictive Abortion Bans to Challenge Supreme Court Precedent Recognizing Women's Right of Bodily Autonomy
Alabama Gov. Kay Ivey signed a controversial bill that bans nearly all abortions into law Wednesday evening.
It's considered the most restrictive abortion law in the United States. The law makes it a crime for doctors to perform abortions at any stage of a pregnancy, unless a woman's life is threatened or there is a lethal fetal anomaly.
Under the new law, doctors in the state face felony jail time up to 99 years if convicted. But a woman would not be held criminally liable for having an abortion.
The law does not take effect for several months.
Late Tuesday night, Alabama legislators passed a bill that would outlaw abortion at any stage in a woman’s pregnancy. They’re in good company: Earlier in May, Georgia Governor Brian Kemp signed a law making abortion illegal after a fetal heartbeat can be detected, or roughly six weeks after conception. Ohio, Mississippi, and Kentucky have all passed similar bills this year.
The state legislators who are passing these bills know they will be challenged in court. They also know they will probably lose. But their sights appear to be set higher than their state jurisdictions: With a solidly conservative majority on the Supreme Court, anti-abortion advocates are eager to seed the challenge that could one day take down Roe v. Wade, the 1973 opinion that legalized abortion up to the point of fetal viability. At the very least, they hope the Supreme Court will undercut Roe and subsequent decisions that reaffirmed abortion rights, the idea being that each legal challenge makes it a little harder to obtain an abortion in the United States.
Georgia, Kentucky, Mississippi and Ohio stopped short of outright bans, instead passing so-called heartbeat bills that effectively prohibit abortions after six weeks of pregnancy, when doctors can usually start detecting a fetal heartbeat. Utah and Arkansas voted to limit the procedure to the middle of the second trimester.
Most other states follow the standard set by the Supreme Court’s Roe decision in 1973, which says abortion is legal until the fetus reaches viability, usually at 24 to 28 weeks.
The latest bans are not yet in effect (Kentucky’s was blocked by a judge), and all are expected to face lengthy court battles — indeed, their proponents are hoping they will reach the Supreme Court.
A new law in Alabama bans abortion from conception, except when necessary to prevent a serious health risk to the mother. and even then, access to the procedure would be hard to come by.
The legislation joins a string of measures in pro-life states that are clearly unconstitutional under Roe v. Wade. But the bills' backers are betting the U.S. Supreme Court's new five-justice conservative majority is ready to reverse the 46-year-old precedent.
Under Supreme Court precedent, states can't unduly burden—let alone ban—abortion before fetal viability (generally at 23 or 24 weeks of pregnancy.)
In Ohio, the ACLU and Planned Parenthood have filed suit to block that state's six-week abortion ban, which is set to go into effect in July.
But with Georgia's governor signing into law another six-week ban last week, abortion opponents are confident they have the high court on their side.
The court last affirmed abortion rights in 2016. But Justice Brett Kavanaugh, a conservative, replaced swing Justice Anthony Kennedy, which changed the calculus, according to Professor Caroline Mala Corbin of the University of Miami School of Law.
"The newly configured Supreme Court has given hope to many abortion opponents that they will finally have their way and the right to abortion will be eliminated as a constitutional right," Corbin told FOX 5 NY.
Friday, May 3, 2019
Deborah Widiss, Young v. United Parcel Services, Inc., Rewritten, in Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds., Cambridge Univ. Press, 2019, forthcoming).
Young v. United Parcel Services, 135 S. Ct. 1338 (2015), is appropriately considered a win for women because it expanded opportunities for pregnant employees to receive workplace accommodations. However, the case could have been far more transformative, both in how it interpreted the law and in how it explained why it matters for working women. This “rewritten” version, forthcoming in an edited volume, imagines what Young might have said if it were written from a feminist perspective.
The Supreme Court’s actual decision instructs lower courts to assess whether an employer’s refusal to provide an accommodation is infected by discriminatory bias. The rewritten decision, by contrast, argues the plain language of the Pregnancy Discrimination Act makes intent irrelevant, so long as a pregnant employee can show that other workers with similar limitations receive more favorable treatment. This interpretation is better supported by the text of the statute, as well as its history and purpose. The Equal Employment Opportunity Commission also endorsed this interpretation, and the rewritten opinion shows why deference was warranted.
Finally, the rewritten opinion rejects the contention, articulated by the Court in the actual Young decision, that this interpretation affords pregnant women a “most favored nation” status. This allegation suggests accommodating male workers is an ordinary cost of business, but costs relating to pregnancy are special costs that employers should not have to bear. The PDA’s comparative structure was intended to counteract such assumptions and the still-pervasive belief that pregnant women are less capable or less committed than other employees.
Readers may also be interested in my more traditional academic scholarship on this subject: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013) (https://ssrn.com/abstract=2221332) and The Interaction of the Pregnancy Discrimination Act and the Americans with Disabilities Act After Young v. UPS, 50 U.C. Davis L. Rev. 1423 (2017) (https://ssrn.com/abstract=2948666).
Monday, April 22, 2019
Supreme Court Grants Cert to Resolve Circuit Split on Whether LGBTQ Bias is "Sex" Discrimination under Title VII
The US Supreme Court granted cert today in Altitude Express v. Zarda, RG & GR Harris Funeral Homes v. EEOC, and Bostock v. Clayton County on the question of "Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)."
The Supreme Court on Monday added what could be landmark issues to its docket for the next term: whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.
The court accepted three cases for the term that begins in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.
The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.
At least nine federal circuit courts ruled in decisions prior to 2007 that sexual orientation wasn’t covered by Title VII of the 1964 Civil Rights Act, which prohibits bias against workers and job applicants based on their “sex.” The tide began to shift in 2015, when the Equal Employment Opportunity Commission decided in a federal sector case that Title VII does apply to sexual orientation.
In a groundbreaking decision in 2017, the U.S. Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII covers sexual orientation when it said a lesbian job applicant could sue an Indiana community college for discrimination. While the Eleventh Circuit decided earlier that year that the law doesn’t apply to sexual orientation, the Second Circuit deepened the split in the courts with its 2018 ruling that it does.
The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.***
The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).
Thursday, February 21, 2019
Discussions of due process often focus on individualizing trials in order to provide persons an opportunity to be heard. In keeping with this traditional understanding, Justice Antonin Scalia’s majority opinion denying class certification in Wal-Mart v. Dukes describes class actions as “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” This Comment grapples with the normative implications of the American legal focus on individualized (rather than collective) adjudication. It argues that the “usual rule” of individualized adjudication makes it much more difficult for the American legal system to adequately evaluate claims of widespread discrimination. When such claims arise from the behavior of numerous bad actors operating within an institutional context, the adjudicative focus on individuality tends to obscure how oppressive institutional dynamics have made the discrimination possible. These dynamics often only become evident when individual experiences are considered in the aggregate, in two key ways. First, as the #MeToo movement shows, aggregation of claims results in believability: one woman accusing a powerful man of sexual misconduct can be easily dismissed, but hundreds of accusers are more difficult to ignore. Second, aggregating claims can often demonstrate the institutional dimension of discrimination, proving that discriminatory behavior is not due to a single bad actor, but rather has been enabled by institutional structures that must be changed to prevent the behavior from recurring.
Monday, January 28, 2019
On the horizon is the possible 38th state ratification of the ERA. Legislative action pending in Virginia, North Carolina, and Minnesota makes this likely. The question is whether this will matter given the expired deadline.
The original ERA passed by Congress in 1972 had a 7 year deadline. Congress, with the assent of the president, then extended that deadline in 1979, prior to its expiration, by 3 years to 1982.
There are several arguments now as to why the 1982 deadline does not apply:
1. The original ERA deadline was constitutionally invalid because (a) Article V says nothing about permitting time restriction on amendment (but see Dillion v. Glass); or (b) the ratification of the 27th Amendment after a 203 gap overrules Dillion v. Glass and the judicially-created mandate that ratification be sufficiently contemporaneous; or (c) it was contained in the introductory preamble to the amendment rather than the substantive text of the amendment itself which distinguishes the holding in Dillion that Congress may impose amendment deadlines in determining the mode of amendment. Without a deadline, the amendment, per Article V "shall be valid for all Intents and Purposes" upon ratification by the 38th state.
2. Congress retains the power to alter its original ERA deadline by waiver, repeal, and/or extension because the deadline is not contained in the substantive text of the amendment and because it has already passed one such extension.
3. Congress has the power to conduct a post-ratification acceptance of the amendment (so-called Coleman analysis).
4. The modern precedent of the 27th Amendment regarding salary increases for members of Congress and its 203 year gap in ratification provides strong precedent for a gap in ratification and calls into doubt the the limited judicial acceptance of amendment deadlines.
The basic arguments are made here, Allison L. Held, Sheryl L. Herndon, Danielle M. Stager, Note, The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States, 3 William & Mary J. Women & Law 113 (1997);
Then-Professor Ruth Bader Ginsburg addressed some of these issues when considering the propriety of the extension of the ERA deadline in 1979. Ratification of the Equal Rights Amendment: A Question of Time, 57 Texas L. Rev. 919 (1979) [Westlaw Link]; see also Jean Witter, Extending Ratification Time for the Equal Rights Amendment Constitutionality of Time Limitations in the Federal Amending Process, 4 Women's Rights L. Rep. 209 (1978).
Limitation periods have accompanied only the more recent constitutional amendments. Congress specified no time frame for ratification of the first seventeen amendments. When the eighteenth amendment (Prohibition) was before Congress, legislators expressed concern about proposed amendments “floating around in a cloudy, nebulous, hazy way.” That was unseemly, Senator Ashurst said: “10, 12, 14, 16, 18, or even 20 years,” he ventured, might be a reasonable period for ratification, but Congress should provide a check against handing down to posterity proposals submitted to the states many decades earlier.Without extensive discussion of the time span suitable generally or in the particular context, Congress specified seven years for ratification of the Prohibition amendment. The same seven year period was specified, without fresh debate, for amendments twenty through twenty-six. But significantly, Congress sent the nineteenth amendment (Woman's Suffrage) to the states without a ratification time frame. The suffragists, who had struggled for the better part of a century to win the vote for women through state-by-state campaigns, resisted a deadline for the federal amendment.Suffragists still with us in 1970 argued against a time limit for the ERA. They wanted to keep the pattern consistent with the nineteenth amendment. But principal congressional proponents of the ERA accepted addition of a seven year specification to the proposing clause that preceded the text of the amendment. They thought the stipulation innocuous, a “customary” statute of limitations, not a matter of substance worth opposing. The nineteenth amendment, after all, was proposed in 1919 and ratified in 1920. No amendment now part of the Constitution had taken even four years to be ratified. [But since then, the 27th Amendment had 203 years]. ***Few participants in the extension debate questioned the authority of Congress to specify initially a decade or more for ratification of the ERA, or to say nothing at the outset regarding a time frame. The issue was whether Congress, having said seven years, was locked into that specification, essentially, whether Congress could establish in two steps a time frame it might have set in one. Relevant to resolution of this threshold issue was the placement of the time limitation.Congress fixed the time for ratification in the text of the eighteenth, twentieth, twenty-first, and twenty-second amendments. That placement appeared to make the time provision an inseparable part of the proposed addition to the Constitution submitted to the states for approval. Amendments later proposed, including the ERA, contained no time limitation in the “Article of Amendment.” Instead, the limitation was separated from the text of the amendment and placed in the proposing clause.The change from text to proposing clause was effected largely to avoid “cluttering up” the Constitution with vestigial provisions serving no function once an amendment was ratified. But the very judgment that the limitation should be transferred from text to preamble may reflect an underlying recognition that setting a time for ratification entails a determination qualitatively different from agreement on the substantive content of an amendment.Apart from the acknowledged purpose of the time limitation—to inter proposed amendments grown stale through the passage of time—and the “placement” argument—that a time provision placed in the proposing clause forms no part of the amendment text submitted to the states for ratification— what support did Congress draw upon in making the judgment to extend the time for state consideration of the ERA? Article V, the terse amendment provision of the Constitution, is silent on the period for ratification. But the Supreme Court has drawn two base lines.In 1921 the Court ruled in Dillon v. Gloss25 that article V implicitly requires occurrence of ratification within a reasonable time. Dillon sustained the power of Congress to set a time for ratification in the text of the Prohibition amendment.What time span is reasonable? The Court addressed that issue in 1939 in Coleman v. Miller, it held that determination of the limitation period calls for an eminently legislative judgment, one for Congress to make. Coleman involved, inter alia, a claim that by 1937 the Child Labor amendment, proposed by Congress in 1924 without a ratification time limit, was dead—no longer open for ratification. Congress is uniquely equipped to decide the timeliness question, Chief Justice Hughes wrote, because of its “full knowledge and appreciation ... of the political, social and economic conditions which have prevailed during the period since the submission of the amendment.”When the ERA was proposed, Congress had no fine crystal ball to forecast the political, social, and economic conditions prevailing in the ensuing years. At best, Congress could make only an estimate in 1972. Was Congress disabled in 1978 from deciding that it estimated incorrectly when it specified for the ERA the time frame used for amendments more readily comprehended and less vulnerable to distortion—the vote for eighteen-year-olds, the order of succession to the Presidency, prohibition of a poll tax—to take the most recent examples?Some extension opponents urged that Congress exhausts its authority once it proposes an amendment and designates the mode of ratification. At that point, so the argument goes, the process is entrusted entirely to the states. Just as Congress, after submitting an amendment to the states, may not change the wording of the text or the mode of ratification, so it may not alter the time frame.But the view that “the only Congress that has power over any particular amendment is the Congress that proposed it,” and even that Congress, only up to the moment of proposal, seems shortsighted. Unquestionably, when a limitation period is not fixed in advance, the “reasonable time” appraisal must be made by Congress after submitting the amendment to the states. Coleman v. Miller also appears to indicate that even when a time period is set by the proposing Congress, it is within the province of a later Congress to decide that a reasonable time had elapsed prior to the deadline day, because conditions had so changed that the amendment was “no longer responsive to the conception which inspired it.” Other questions too may arise post submission, for example, the efficacy of a purported rescission, or the validity of a state-imposed rule requiring for ratification a three-fifths vote of the legislature. Is Congress disarmed, is it barred from addressing such questions if it does not anticipate and resolve them before submitting a proposed amendment to the states?Most constitutional law teachers consulted by Congress while the extension measure was pending, whether they supported or opposed the measure, agreed on the threshold question—Congress has authority to extend a ratification time limit. Dillon and Coleman had bracketed the issue. Dillon held Congress could deal with timeliness at the outset, Coleman confirmed Congress could “wait and see,” deferring the question until “the time arrives for the promulgation of the adoption of the amendment.” Extension indicated a middle course: a time frame intended to ensure the proposed amendment would not roam around state legislatures indefinitely was enlarged upon a congressional determination that “the public interests and changing conditions” so warranted. Absent this continuing evaluation and control by Congress, a time limit in a proposing clause could be cut loose from its function. The limitation could inter a proposed amendment that remained vibrant, as the Supreme Court put it in Coleman, fully “responsive to the conception which inspired it.”
[T]here's a big question as to whether or not the ERA would just automatically become the 28th amendment. The deadline is a problem. For about a decade after the deadline passed in 1982, it was assumed that the ERA was dead. But something very interesting happened in our constitution, which was that in 1992, the 27th Amendment became part of the constitution. That amendment prohibits laws varying the compensation of members of Congress until an election cycle, and it was adopted by Congress and sent to the states for ratification under Article Five in 1789 along with the original Bill of Rights. But unlike the other rights in the Bill of Rights, only seven states ratified it within the 18th century, and an eighth state ratified in 1873. But a revival movement took shape in the 1980s, in part due to the mobilization of an undergrad who wrote a paper about it and received a C, but then started a letter-writing campaign to various state legislators, saying we can ratify this. There was no deadline. And then 38 states did ratify by 1992, and interestingly, additional states have continued to ratify even after 1992, even after we got to 38 and added it to the U.S. Constitution. So the 27th Amendment became part of the U.S. Constitution 202 years after it was sent to the states for ratification. So this makes it at least possible to imagine the ERA now becoming part of the constitution, if only we could do something about that deadline.
The ERA deadline was not part of the text of the amendment itself. Note that in the Prohibition Amendment, the ratification deadline was part of the text. But because the deadline wasn't part of the text of the ERA, now it's argued that Congress can just accept the ratifications and decide to repeal the deadline or just change the deadline, with bills introduced to that effect. Then, those post-deadline ratifications would be valid, and the ERA would come into effect.
These were the circumstances in the light of which Congress in proposing the Eighteenth Amendment fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both houses was that some limitation was intended and that seven years was a reasonable period.That the Constitution contains no express provision on the subject is not in itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied is as much a part of it as what is expressed.An examination of article 5 discloses that it is intended to invest Congress with a wide range of power in proposing amendments. Passing a provision long since expired, it subjects this power to only two restrictions: one that the proposal shall have the approval of two-thirds of both houses, and the other excluding any amendment which will deprive any state, without its consent, of its equal suffrage in the Senate. A further mode of proposal-as yet never invoked-is provided, which is, that on the application of two-thirds of the states Congress shall call a convention for the purpose. When proposed in either mode amendments to be effective must be ratified by the Legislatures, or by conventions, in three-fourths of the states, ‘as the one or the other mode of ratification may be proposed by the Congress.’ Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three-fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three-fourths of the states shall be taken as a decisive expression of the people's will and be binding on all.We do not find anything in the article which suggests that an amendment once proposed is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three-fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the article lead to the conclusion expressed by Judge Jameson ‘that an alteration of the Constitution proposed to-day has relation to the sentiment and the felt needs of to-day, and that, if not ratified early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress.’ That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810 and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively supplemented in enough more states to make three-fourths by representatives of the present or some future generation. To that view few would be able to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal.Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests**513 and changing conditions may require; and article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.
The question of whether it is a proper exercise of congressional authority under article V to alter a previously proposed time limitation for ratification, and if so by what majority, presents for the Court a question of constitutional interpretation of congressional authority, and an inquiry into the procedural aspects of exercising that power. Thus, the Court's inquiry is two-fold: First, does Congress under its power to “propose” the “Mode of Ratification” have the power to change its proposal once it has been made and sent to the states; second, if the initial proposal can be subsequently changed, may Congress act by less than a two-thirds majority. One related question that has been raised that should be dealt with at this time is whether or not a state's ratification resolution specifically acknowledging the ratification period set by Congress is impaired if the original time period is extended or whether it is a “conditional” ratification arguably prohibited by the amendment process.To begin with, the actions of Congress in relation to a proposed amendment must be properly characterized in order to approach the questions presented. First, it must be recognized that Congress' power to participate in the amendment process stems solely from article V. As Justice Stevens noted, “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution ....” Dyer v. Blair, 390 F.Supp. 1291, 1303 (N.D.Ill.1975) (emphasis added). Thus Congress, outside of the authority granted by article V, has no power to act with regard to an amendment, i.e., it does not retain any of its traditional authority vested in it by article I. The power of Congress to set a time period in which ratification must be completed is derived from their function of setting the mode of ratification. See Dillon v. Gloss, 256 U.S. 368, 376, 41 S.Ct. 510, 513, 65 L.Ed. 994 (1921). The defendant in this action attempts to create a substance/procedure dichotomy by contending that since the time restriction in this instance is part of the proposing resolution it is proper for reconsideration where if the time period were part of the amendment itself it would not be. The argument follows that a change of a substantive aspect of an amendment is clearly improper once it has been submitted to the states, but a change in the proposing resolution, on the other hand, does not change the essential nature of the amendment and thus is a matter of detail which Congress can change at will. The Supreme Court in Dillon v. Gloss, supra, had an opportunity to address this substance/procedure dichotomy when the eighteenth amendment was challenged on the grounds that the seven-year ratification period called for in Section 3 of that amendment was unconstitutional. While the Dillon court indicated that “(a)n examination of article V discloses that it is intended to invest Congress with a wide range of power in proposing amendments”, Id. at 373, 41 S.Ct. at 512, the court did not recognize the setting of the time limitation as being a function of Congress' power to propose amendments but instead indicated that(w)hether a definite period for ratification should be fixed so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification.Id. at 376, 41 S.Ct. at 513 (emphasis added).The court did not recognize a substance/procedure dichotomy and thus any authority to limit the time period for consideration must flow from the Congress' power to set the mode of ratification. Accordingly, the Court's attention is drawn to a consideration of Congress' power to set and change the time period for ratification under its power to set the mode of ratification.The United States Supreme Court in United States v. Sprague, 282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) recognized that Congress has absolute discretion within its power to propose the mode of ratification to establish which of the two local entities will act as the spokesman for the people. The Supreme Court in the Dillon and Coleman cases found that as a “subsidiary matter of detail” to this congressional prerogative, Congress must also determine whether or not the local expressions of consent are “sufficiently contemporaneous in that number of States to reflect the will of the people in all sections at relatively the same period ....” Dillon 256 U.S. at 375, 41 S.Ct. at 512. In making its determination that the requisite consensus has been reached in a sufficiently contemporaneous period, the Supreme Court in Coleman, supra, indicated that if no time restriction is set initially, Congress retains its authority *1152 to decide that issue when the requisite number of states have acted.Our decision that the Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment proceeds upon the assumption that the question, what is a reasonable time, lies within the congressional province. If it be deemed that such a question is an open one when the limit has not been fixed in advance, we think that it should also be regarded as an open one for the consideration of the Congress when, in the presence of certified ratifications by three-fourths of the States, the time arrives for the promulgation of the adoption of the amendment. The decision by the Congress, in its control of the action of the Secretary of State, of the question whether the amendment had been adopted within a reasonable time would not be subject to review by the courts.Id. 307 U.S. at 454, 59 S.Ct. at 982. The court in Dillon further clarified the scope of Congress' power by indicating that while Congress is not compelled to make a determination of a reasonable time period in advance of the actions of the requisite number of states, it is not precluded from doing so. The Dillon court held that Congress may fix a reasonable time in advance “so that all may know what it is and speculation ... be avoided.” Id. 256 U.S. at 376, 41 S.Ct. at 513. It should be noted that the Dillon court did not intimate that the setting of a definite time period was a projection or preliminary assessment of a reasonable time period which would be re-evaluated as time passed. Rather, the Court indicated that the exercise of Congress' power to set a time period for ratification is one which is intended to infuse certainty into an area which is inherently vague. Thus the inference that can be drawn from Dillon and Coleman is that within Congress' role of determining a reasonably contemporaneous consensus, or in other words, determining whether the socio/political, economic forces giving rise to the amendment remain alive and unchanged during the period in which the states act in giving their assent to the proposal, Congress may exercise its function in one of two ways: first, it can leave the question of a reasonable time open until the requisite number of states have acted and thus continually monitor the viability of the amendment; second, where it appears to Congress that the socio/political, economic factors giving rise to the amendment are such that they are unlikely to change for an indefinite period of time, and rather than have the proposed amendment pending perpetually, Congress can set an arbitrary yet reasonable time period in order to establish a termination point for consideration and thus promote prompt action on the amendment by the states.It, therefore, appears compelling that in order to fulfill the purposes for fixing a time limitation for ratification as outlined in Dillon-“so all may know and speculation ... be avoided”-the congressional determination of a reasonable period once made and proposed to the states cannot be altered. If Congress determines that a particular amendment requires ongoing assessment as to its viability or monitoring of the time period, it can do so, not by defeating the certainty implied by the Dillon case, but by not setting a time period at the outset and reserving the question until three-fourths of the states have acted.
Tuesday, January 22, 2019
Supreme Court Stays Injunctions, Allowing Transgender Military Ban to Go into Effect Temporarily while Lawsuit Continues
The Supreme Court on Tuesday allowed President Trump’s broad restrictions on transgender people serving in the military to go into effect while the legal battle continues in lower courts.
The justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.
It reversed an Obama-administration rule that would have opened the military to transgender men and women, and instead barred those who identify with a gender different from the one assigned at birth and who are seeking to transition.
The court’s five conservatives--Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh--allowed the restrictions to go into effect while the court decides to whether to consider the merits of the case.
The liberal justices--Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan--would have kept the injunctions in place.
Trump surprised even his own military advisers in July 2017 when he announced a sweeping ban on transgender people’s military service via Twitter. He cited what he viewed as the “tremendous medical costs and disruption.” The administration’s order reversed President Barack Obama’s policy of allowing transgender men and women to serve openly and receive funding for sex-reassignment surgery.
Attorneys for active-duty service members went to court to block the policy shift, which could subject current transgender service members to discharge and deny them certain medical care.
Thursday, January 17, 2019
The Ginsburg Tapes is a podcast about Ruth Bader Ginsburg’s oral arguments in the Supreme Court—before she became #NotoriousRBG.
Specifically, from 1972-1978, Ginsburg argued six cases in the Supreme Court. In each case, she and the ACLU Women’s Rights Project brought constitutional challenges to laws treating men and women differently. Ginsburg’s goal was to show the ways in which laws which seemed on their face to benefit women actually perpetuated stereotypes and held women back from full participation in American life.
For all six cases, Lauren breaks down the real recordings of the oral arguments. The tapes allow listeners to be a fly on the wall, to teleport to that moment in history. Listeners can hear Ginsburg make her case, and listen to reactions from the all-male Supreme Court. You’ll hear from liberal icons like Justice Thurgood Marshall and Justice William Brennan, and conservative icons like Chief Justice Warren Burger and then-Justice William Rehnquist, as they grapple out loud with what the Constitution means. In each episode, Lauren talks about history, effective advocacy, constitutional change, the power of the Supreme Court, and gender equality.