Wednesday, February 21, 2024

SCOTUS Denies Cert in Case About Whether Jurors Can Be Excluded for Religious Beliefs Against Lesbian Plaintiff

Lawrence Hurley, NBC News, Supreme Court Declines to Weigh Whether Jurors Can Be Excluded for Religious Beliefs in Case Involving Lesbian Plaintiff

The Supreme Court on Tuesday declined to consider whether potential jurors in an employment dispute involving a lesbian worker could be excluded because of their religious views on homosexuality.

The court rejected an appeal brought by Missouri Attorney General Andrew Bailey, a Republican, in a case involving allegations of employment discrimination against the state’s Department of Corrections.

Conservative Justice Samuel Alito wrote a statement saying he agreed with the decision not to take up the case for technical legal reasons, but said that it raises important issues.

Jean Finney, an employee, sued the department, saying she was retaliated against by a colleague after she began a same-sex relationship with his former spouse.

During the jury selection process, Finney's lawyer asked potential jurors if they had traditional religious beliefs or had been brought up to believe that "people that are homosexuals shouldn't have the same rights as everyone else."

Based on previous Supreme Court decisions, lawyers are allowed to exclude potential jurors without stating a reason but are barred from doing so on the basis of race and gender.

The case largely focuses on two jurors who said they believed that homosexual activity was a sin. But, the state argues, the jurors also said they believed that homosexuals should have the same rights as everyone else. The judge ultimately excluded three jurors who said they had conservative Christian beliefs.

February 21, 2024 in Constitutional, Gender, LGBT, Religion, SCOTUS | Permalink | Comments (0)

Thursday, January 11, 2024

The Future of Constitutional Sex Equality Rights after Dobbs

Marc Spindelman, Dobbs' Sex Equality Troubles, 32 William & Mary Bill of Rgst J. 117 (2023)

This article takes up what Dobbs v. Jackson Women's Health Org. may mean for sex equality rights beyond the abortion setting. It details how Dobbs lays the foundation for rolling back and even eliminating Fourteenth Amendment sex equality protections. The work scales these possibilities against a different dimension of the ruling that’s yet to receive the attention that it merits. An important footnote in Dobbs, Footnote 22, sketches a new history-and-tradition-based approach to unenumerated rights under the Fourteenth Amendment’s Privileges or Immunities Clause. The jurisprudence that this Footnote capacitates could transform the constitutional landscape via new economic and social rights that set the Court on a collision course with the Slaughter-House Cases. Dangers on the economic rights front include reviving Lochner and its political economic principles in new constitutional garb. Dangers on the social rights front, by contrast, include new constitutional family law rules written from the social-conservative right, overriding constitutional and positive law developments that, since the 1960s, have broadly managed family law from and toward the liberal to progressive left. In both these areas, the Court’s decisions would be capable of catching various sex equality protections in their snares. The future in relation to all these prospects may be set by Justice Brett Kavanaugh, the swing-vote justice in Dobbs. So, this article attends to the determinants of Kavanaugh’s Dobbs concurrence, and thus Dobbs’ meaning. While matters could obviously get much worse for sex equality rights after Dobbs, Kavanaugh’s concurrence also offers some reason to hope that they won’t. Struggles for sex equality rights may be intensifying and entering distinctively perilous times. Their future, however, has yet to be determined, including by the Supreme Court

January 11, 2024 in Abortion, Constitutional, Gender, SCOTUS | Permalink | Comments (0)

Tuesday, January 9, 2024

SCOTUS Grants Cert in Case of Idaho Abortion Ban and Federal Requirement of Emergency Room Procedures

Wash Post, Supreme Court to Decide if U.S. law Requires Some Emergency Room Abortions

The Supreme Court said Friday it will review a case challenging Idaho’s strict abortion ban, which the Biden administration says conflicts with a federal law requiring emergency room doctors to perform the procedure in some circumstances.

Idaho’s attorney general asked the justices to intervene after a lower-court judge blocked a section of Idaho’s abortion statute targeting doctors. The judge said the provision violates a federal law that requires hospitals receiving Medicare funding to guarantee emergency care. In its brief order Friday, the justices allowed the Idaho law to take full effect for now and said they would review the matter on an expedited basis in April.

The Biden administration turned to the Medicare law as a narrow way to challenge state-level abortion bans in federal court after the Supreme Court’s conservative majority overturned the fundamental right to an abortion established decades earlier in Roe v. Wade. The effort was seen as one of the few paths the administration could pursue to preserve access to abortion, which remains a galvanizing and divisive issue across the country in the lead-up to the 2024 presidential election.

January 9, 2024 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, November 21, 2023

Reviewing Clarke's Sex Discrimination Formalism

Leah Litman, Toggle Boggle, JOTWELL, reviewing Jessica A. Clarke, Sex Discrimination Formalism, __ Va. L. Rev. __ (forthcoming 2023), available on SSRN (Aug. 13, 2023).

What is sex discrimination? Or, more generally, what is discrimination?

This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.

In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).

Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.

These differences are not just academic. They help clarify some of what is happening in recent decisions

November 21, 2023 in Constitutional, Gender, LGBT, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, November 14, 2023

How the Supreme Court's History and Tradition Test Threatens Women's Rights and Safety

Melissa Murray & Kate Shaw, The Conservative Supreme Court Vision That Means Inequality for Women

But even if the court upholds the challenged law, it seems unlikely that it will address the broader issue at the heart of this case: whether and how a long-distant past constrains present-day policymakers, and particularly the impact of such an interpretive approach on women.

The court made clear its commitment to a history-and-tradition-bound method of constitutional interpretation in June 2022 when it announced its decisions in the gun-regulation case New York State Rifle and Pistol Association v. Bruen as well as in the case that overruled Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.***

The requirement that present-day gun laws resemble gun laws of the distant past prioritizes history and tradition in much the same way the Dobbs court looked to the historic regulation of abortion, pregnancy and birth to support the view that the Constitution did not protect a right to abortion.

In this regard, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Solicitor General Elizabeth Prelogar noted in her stirring defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as the safety of police officers who respond to domestic violence calls and the broader public. The court may seem poised to uphold the law, but the conservative justices did not appear interested in revisiting the history-and-tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson appeared openly skeptical of the test. In one remarkable back-and-forth with attorneys for both sides, Justice Jackson, who was not a member of the court when Bruen and Dobbs were decided, said that she was “trying to understand if there’s a flaw in the history-and-traditions kind of framework to the extent that when we’re looking at history and tradition, we’re not considering the history and tradition of all of the people but only some of the people.”

November 14, 2023 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, October 31, 2023

The Implications of Dobbs to the Fundamental Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne U. L. Rev. (2023)  

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

October 31, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

Wednesday, October 25, 2023

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

ConLaw_10-13-23

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas GenetinMike GentithesDr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

October 25, 2023 in Abortion, Conferences, Constitutional, Family, Gender, Healthcare, Law schools, LGBT, Pregnancy, Race, Reproductive Rights, Science, SCOTUS, Sports | Permalink | Comments (0)

Friday, October 6, 2023

Sex Discrimination Formalism

Jessica Clarke, Sex Discrimination Formalism, Virginia L. Rev. (forthcoming 2023)

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary, to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment, to enforce sex-specific dress codes, to exclude transgender people from restrooms consistent with their gender identities, to ban gender-affirming health care, or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

October 6, 2023 in LGBT, SCOTUS, Theory | Permalink | Comments (0)

Tuesday, September 26, 2023

Reconciling Domestic Violence Protections and the Second Amendment

Natalie Nanasi, Reconciling Domestic Violence Protections and the Second Amendment, Wake Forest L. Rev. (forthcoming)  

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

September 26, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

Friday, September 22, 2023

Personal Responsibility Laws after Covid and Dobbs, Doubling Down on Privacy

Susan Frelich Appleton & Laura Rosenbury, Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy, 72 WASH. U. J.L. & POL’Y 129 (2023)

This essay uses lenses of gender, race, marriage, and work to trace understandings of “personal responsibility” in laws, policies, and conversations about public support in the United States over three time periods: (I) the pre-COVID era, from the beginning of the American “welfare state” through the start of the Trump administration; (II) the pandemic years; and (III) the present post-pandemic period. We sought to explore the possibility that COVID and the assistance programs it inspired might have reshaped the notion of personal responsibility and unsettled assumptions about privacy and dependency. In fact, a mixed picture emerges. On the one hand, the Supreme Court has rejected longstanding constitutional protection for abortion, and campaigns for “parental rights” have gained traction in several states. On the other hand, innovative forms of public support for families have appeared at state and local levels. In developing these conclusions, we highlight familiar challenges to the public/private divide while also exposing new cracks in doctrine that purports to distinguish intentional discrimination from disparate impact and to protect negative but not positive rights.

September 22, 2023 in Constitutional, Family, SCOTUS | Permalink | Comments (0)

Tuesday, September 12, 2023

The Supreme Court's Rhetoric of Motherhood

Lucy Williams, Making a Mother: The Supreme Court and the Constitutive Rhetoric of Motherhood, 102 N.C. L. Rev. (forthcoming 2024)  

Many scholars study Supreme Court decisions, but few are attentive to the rhetoric the Court uses to articulate its holdings. This omission is perplexing: The Court’s rhetoric literally becomes law, but scholars typically fixate on the substance, rather than the rhetoric, of its communications. In this paper, I argue that legal scholars should take more seriously the Court’s role as a rhetorical actor. To illustrate this, I analyze the rhetorical effects of the language the Court uses to describe women and mothers in three contexts: gender discrimination, immigration, and abortion. I begin describing the “inherited language” of motherhood—that is, the narratives, themes, and connotations that are traditionally associated with the idea of motherhood. I then use close readings and discourse analysis of landmark decisions in each substantive area to consider whether and how the Supreme Court engages with that inherited language.

My analysis reveals that the Court’s relationship with the inherited language of motherhood varies across contexts. In cases dealing with gender discrimination, the Court anxiously distances itself from traditional narratives about motherhood. In immigration cases, it both embraces and rejects the inherited language. And in abortion cases, its approach has shifted: Initially, the Court strongly disavowed inherited narratives, but in its most recent abortion case, Dobbs v. Jackson Women’s Health Organization, it says very little about mothers at all. My analysis also reveals that the Court’s attitude toward the inherited language of motherhood is often correlated with the substantive legal outcome in a case: In decisions that are more protective of women and their rights, the Court generally rejects the inherited language, but in decisions that are less protective of women’s legal rights, it relies on inherited narratives more frequently.

These findings illustrate why legal scholars should be more attentive to the Supreme Court’s rhetoric. The correlation between the Court’s language and substantive outcomes suggests that in some cases, the Court’s rhetorical decisions might influence or even determine its legal analysis. If that is true, then scholars who are interested in case outcomes should study the Court’s language. But the Court’s rhetoric does not just shape case outcomes; it also alters the way we understand, engage with, and view one another. When the Court uncritically invokes traditional narratives and about women and mothers, it may—for better or for worse—perpetuate and reconstitute a world where those outdated assumptions govern. When it actively distances itself from traditional narratives, as it does in gender discrimination cases and early abortion cases, it creates legal and rhetorical space for women to enact various modes of motherhood and womanhood. And when the Court ignores the inherited language of motherhood, it frames legal debates as if women’s interests are not at stake and conceal and, in doing so, obscures women’s perspectives, needs, and lived experiences. Scholars interested in the ways law shapes relationships and facilitates identity formation should pay attention to these constitutive effects.

September 12, 2023 in Abortion, Family, Gender, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, September 5, 2023

Dobbs Impact on the Constitutional Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne L. Rev. (2023) 

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

September 5, 2023 in Abortion, Constitutional, Family, SCOTUS | Permalink | Comments (0)

Wednesday, August 23, 2023

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

SCOTUS Viewpoint Distinctions in Favor of Anti-LGBTQ Speech

Carlos Ball, First Amendment Exemptions for Some, 137 Harvard L. Rev. Forum (forthcoming 2023)  

This Essay argues that the Supreme Court’s assessment of what it understood to be the sincerity and reasonableness of the business owner’s beliefs in 303 Creative LLC v. Elenis played a crucial role in its decision to grant her a First Amendment exemption from the application of a law prohibiting public accommodations from discriminating on the basis of sexual orientation. The Essay explains how 303 Creative is only the latest instance in which conservative justices have contended that opponents of marriage rights for same-sex couples are “decent” and “fairminded people” who are not prejudiced against lesbians, gay men, and bisexuals. By leaving earlier Court precedents rejecting the notion that the First Amendment grants anti-discrimination exemptions to racist and other bigoted business owners firmly in place, 303 Creative makes clear that the sincerity and reasonableness of the claimant’s views matter. This means that the impact of 303 Creative on the enforcement of civil rights laws may be more limited than some fear. But it also means that the ruling is grounded in precisely the type of governmental distinction on the basis of speakers’ viewpoints that the Free Speech Clause prohibits.

August 23, 2023 in Constitutional, LGBT, SCOTUS | Permalink | Comments (0)

Tuesday, July 25, 2023

The Roberts Court's Jurisprudence of Masculinity

Melissa Murray, Children of Men: The Roberts Court's Jurisprudence of Masculinity, 60 Hous. L. Rev. 799 (2023).

Focusing on DobbsNew York State Rifle & Pistol Ass’n, Inc. v. Bruen, and Kennedy v. Bremerton School District, three landmark cases, this Address sketches the contours of the jurisprudence of masculinity. As it argues, the jurisprudence of masculinity evinces a striking solicitude for constitutional rights that are associated with men and masculinity while exhibiting disdain for and disinterest in rights that traditionally have been associated with women. On this account, rights to free exercise of religion, speech, and guns are preferred and prioritized, while other fundamental rights, including the right of privacy and the right to abortion, are discredited or discarded entirely.

Critically, the jurisprudence of masculinity goes beyond prioritizing the rights of men. The jurisprudence of masculinity recasts the legal landscape to ensure maximum solicitude for the protection of men and the exercise of men’s rights. Specifically, it reorganizes the traditional public–private divide to insulate men’s bodies from the imposition of state regulation, it recasts women’s bodies in terms that make them particularly susceptible and well-suited to public regulation, and it recharacterizes the relationship between the state, rights, and regulation.

The Roberts Court’s commitment to cultivating a jurisprudence of masculinity is inextricably intertwined with its selective commitment to originalism. By its own terms, originalism focuses constitutional interpretation and meaning on certain key historical moments. But tellingly, those constitutional moments on which the Roberts Court frequently relies are moments in which women and people of color were expressly excluded from political participation and deliberation

July 25, 2023 in Constitutional, Masculinities, SCOTUS, Theory | Permalink | Comments (0)

Wednesday, July 12, 2023

SCOTUS to Hear Major Guns Case Involving Domestic Violence

Adam Liptak & Glenn Thrush, NYT, Supreme Court to Hear Major Guns Case Involving Domestic Violence

The Supreme Court agreed on Friday to consider whether the government may forbid people subject to domestic violence orders from having guns, setting up a major test of its ruling last year vastly expanding people’s right to arm themselves in public.

The case will turn on the scope of a new legal standard established in that decision, one whose reliance on historical practices has sown confusion as courts have struggled to apply it, with some judges sweeping aside gun controls that have been on the books for decades.***

In March, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, said that new standard required it to strike down a federal law prohibiting people subject to domestic violence orders from possessing firearms because there was no historical support for it.

The case, United States v. Rahimi, No. 22-915, concerns Mr. Rahimi, a drug dealer in Texas with a history of armed violence, according to court records. In 2019, Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading her to obtain a restraining order. The order suspended Mr. Rahimi’s handgun license and prohibited him from possessing firearms.***

But the appeals court reversed course after the Bruen decision last June.

The Fifth Circuit rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.

July 12, 2023 in Constitutional, Legal History, SCOTUS, Violence Against Women | Permalink | Comments (0)

SCOTUS is Really Considering Whether Domestic Abusers Should Have Guns

SCOTUS is Really Considering Whether Domestic Abusers Should have Guns, Slate

So let’s be clear: the U.S. Supreme Court decision last week to consider the case of United States v. Rahimi, determining whether someone with a history of domestic violence may own a gun, is about far more than domestic abuse and its victims. It’s about America’s national security. Our national security.***

Then last February, the U.S. 5th Circuit reversed the decision, based on new Supreme Court rulings that expanded rights to gun ownership to those “consistent with the Nation’s historical tradition of firearm regulation.” Since the Founding Fathers hadn’t specifically mentioned domestic violence, they argued, alleged domestic abusers should be free to own the weapons of their choice.

In response, the Biden administration objected, noting that historically, government has refused arms to people who pose a public danger.

So now it is up to the Supreme Court . . . to decide. It is also the same Supreme Court that has loosened gun restrictions already, and that so mercilessly overturned Roe v. Wade, putting the lives of countless American women at risk.

But the point is not the women, or that two-thirds of women killed by a partner are murdered by gun—nearly two every day in America, or that, according to the Educational Fund to Stop Gun Violence, “a woman is five times more likely to be murdered when her abuser has access to guns.”

July 12, 2023 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

Tuesday, July 11, 2023

SCOTUS Ruling on Online Harassment Outrages Advocates

I have to say, I agree with Justice Amy Coney Barrett's dissent on this one. Threats are not protected speech. Period.

Wash Post, Supreme Court Harassment Ruling on Online Harassment Outrages Victims, Advocates

On Wednesday, victims of that harassment and their advocates reacted with dismay at the court’s 7-2 ruling, written by Justice Elena Kagan, that found that while true threats of violence aren’t protected by the First Amendment, other harassing online speech is, unless prosecutors prove a defendant acted recklessly and “disregarded a substantial risk that his communications would be viewed as threatening violence.”

“The majority of the court simply can’t even imagine what stalking is like,” said Mary Anne Franks, a professor of law at the University of Miami, who filed an amicus brief on behalf of the victim in the Supreme Court case. “They have no idea about the terror these victims are living in.”

 

July 11, 2023 in Constitutional, SCOTUS, Violence Against Women | Permalink | Comments (0)

The Supreme Court Just Legalized Stalking

Mary Anne Franks, The Supreme Court Just Legalized Stalking, Slate

The Supreme Court majority describes its holding last week in Counterman v. Colorado as a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid[ing] essential breathing room for public debate.” ***

To be clear, the “freedom of speech” protected by the Counterman majority and valorized by civil libertarian organizations is the freedom to engage in objectively terrifying conduct that leads victims to withdraw from their professions, censor their communications, and restrict their movements. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’s speech at the expense of women’s speech; men’s delusions at the expense of women’s lives.

July 11, 2023 in Constitutional, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)

In Counterman v Colorado SCOTUS Justices Show Dismissal of Victims' Harms from Stalking

Mary Anne Franks, Chief Justice Roberts' Mocker of Stalking Victims Points to a Deeper Problem, Slate

Stalking is so closely correlated with lethal violence that experts refer to it as “slow motion homicide”: More than half of all female homicide victims in the U.S. were stalked before they were killed. Despite the terrifying and dangerous consequences, many victims of stalking do not report the abuse to law enforcement for fear they will not be taken seriously.

The reasonableness of that fear was vividly illustrated by the Supreme Court oral arguments in Counterman v. Colorado on Wednesday morning, as members of the highest court of the land joked about messages sent by a stalker to his victim, bemoaned the increasing “hypersensitivity” of society, and brushed aside consideration of the actual harm of stalking to focus on the potential harm of stalking laws.***

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.***

The court’s discussion was so disconnected from the reality of stalking, so contemptuous of the victims targeted by it, and so awkwardly punctuated with culture-war buzzwords with no obvious bearing to the topic at hand, that it was sometimes hard to believe it was taking place within the Supreme Court and not a Fox News talk show. Perhaps nothing else could be expected from a far-right dominated court that has made its hostility to women and racial minorities abundantly clear. But the progressive justices did little to push back against the chief justice’s snickering tone, or to critique these efforts to turn an oral argument about stalking into a referendum on the supposed crisis of “hypersensitivity.”

July 11, 2023 in Constitutional, Judges, Media, SCOTUS, Violence Against Women | Permalink | Comments (0)