Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, July 20, 2020

Giving Gender Discrimination a Meaningful Remedy: Rewriting Justice Ginsburg's Opinion in Morales-Santana

I have just published: Tracy Thomas, Rewriting Sessions v. Morales-Santana, in Feminist Judgments: Family Law Opinions Rewritten (Rachel Rebouche ed., July 2020)

In Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017), the Supreme Court in an opinion by Justice Ginsburg struck down a citizenship law that discriminated against children born abroad to US citizens based on whether the citizen was their father or their mother.  The opinion was widely held to be a model of equal protection analysis, documenting the legal history of the Court's gender equal protection law and recognizing the masculinity side of gender discrimination against men.  

However, the opinion was problematic for its refusal to order a meaningful remedy for the petitioner.  The Court did not grant the discrimination victim relief, but instead ordered the government to adopt formally equal rules going forward, and that those rules should be the more stringent rule for fathers. The Court was focused on restraining the government rather than redressing the individual's harm.

I have written about the remedial problem of so-called leveling down unequal treatment to deny the benefit.  Tracy Thomas, Leveling Down Gender Equality,  Harvard J. Law & Gender (2019).

In this book chapter, I apply these criticisms to rewrite the Court's opinion to properly award a meaningful remedy as required by due process.  This book is part of the US Feminist Judgments Project rewriting key court decisions as if they had been informed by feminist theory. 

 

 

 

July 20, 2020 in Books, Constitutional, Family, Masculinities, SCOTUS | Permalink | Comments (0)

Wednesday, July 8, 2020

SCOTUS Holds that Employer's Religious Liberty Trumps Women's Right to Healthcare and Birth Control

The U.S. Supreme Court decided Little Sisters of the Poor v. Pennsylvania (July 8, 2020), in a split opinion, with the majority written by Justice Thomas.  Justices Kagan and Breyer concurred in the judgment.

Justice Ginsburg strongly dissented,. recognizing the threat to not just women's healthcare, but women's equality.

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs. Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree. *** Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets. The Constitution’s Free Exercise Clause, all agree, does not call for that imbalanced result. Nor does the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., condone harm to third parties occasioned by entire disregard of their needs. I therefore dissent from the Court’s judgment, under which, as the Government estimates, between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services. 

July 8, 2020 in Healthcare, Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, July 7, 2020

June Medical Returns SCOTUS Precedent to Less Demanding Standard of Casey

Caroline Mala Corbin, June Medical is the New Casey

The atmosphere awaiting the Supreme Court’s decision in Planned Parenthood v. Casey felt similar to the one awaiting today’s decision in June Medical Services v. Russo.  At stake was whether the U.S. Constitution would continue to protect a woman’s right to abortion. Casey reaffirmed that right but lowered the level of protection. June Medical does the same. In fact, Casey is likely to be the controlling Supreme Court precedent on abortion once again.

 

To understand what this means, let me provide a brief background on abortion and the Supreme Court.  As most people realize, the Supreme Court declared that the right to abortion was a fundamental right in Roe v. WadeRoe also required strict scrutiny of any abortion regulation, where regulations of first trimester abortion (when the vast majority of abortions occur) were presumptively unconstitutional.

 

What many do not realize is that the Supreme Court subsequently dialed back the level of protection in Planned Parenthood v. Casey (1992). In a 5-4 decision, the Supreme Court reaffirmed that abortion was still a constitutional right. However, the Court replaced the strict scrutiny test with the undue burden test, making abortion much easier to regulate.  According to the Casey Court, as long as a law did not impose an “undue burden” on women seeking an abortion, it was fine.  An undue burden occurs when the state places a substantial obstacle in the path of a woman hoping to end her pregnancy. Unfortunately, the Supreme Court in Casey and subsequent cases made clear their view that very few regulations impose an undue burden. Waiting periods? No undue burden.  Outlawing a safer procedure? No undue burden.  Under the Casey regime, states were able to severely restrict access to abortion by passing laws ostensibly to protect women’s health, but in reality undermined it by making abortion more expensive, time-consuming, and difficult to obtain due to clinic closures.

 

Quite unexpectedly, in Whole Woman’s Health v. Hellerstedt (2016), the Supreme Court strengthened the undue burden test, providing heightened protection for abortion rights. The analysis of whether a law imposed an undue burden now had two questions instead of one. As before, courts must consider whether a law created a substantial obstacle in the path of a women seeking an abortion.  But in addition, the Court would consider the actual benefit of the law. If the stated goal was to improve women’s health, states must provide evidence to that effect. This is critical because, as mentioned above, states regularly passed laws which they claimed were to make abortion safer for women but were really designed to just make it harder.***

 

However, also similar to CaseyJune Medical signals less protection for abortion rights going forward. Although Justice Breyer’s plurality opinion relied on the highly protective undue burden test as formulated by the Whole Woman’s Health majority, which requires examination of both the actual benefit of the law, as well as the burden imposed by the law, Chief Justice Roberts did not.  Chief Justice Roberts, who provides the crucial fifth vote to reaffirm that abortion was a constitutionally protected right, repudiates the Whole Woman’s Health test. Instead, he wrote that “the only question for a court is whether a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” In other words, the test for whether an abortion regulation violates the constitution is the Casey test with one question, not two. Thus, like CaseyJune Medical reaffirms abortion is a constitutional right while cutting back protection for abortion.

July 7, 2020 in Abortion, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Women are Being Written Out of Abortion Jurisprudence

Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence

It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russothe major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.

 

In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***

 

There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roeand  Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and processThe regard for a woman’s right to choose itself? That doesn’t even register as material.

July 7, 2020 in Abortion, Constitutional, Judges, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Monday, June 29, 2020

SCOTUS Upholds Right to Abortion, Strikes Down Physician Admitting Privileges Law

Today the US Supreme Court decided June Medical Services v. Russo striking down Louisiana's anti-abortion admitting privileges law.

The majority opinion by Justice Breyer reaffirms the legal standard of Whole Women's Health.  It is a process-heavy decision about third-party standing and a painfully detailed discussion of the district court findings.

Chief Justice Roberts joins the liberal justices in the majority on grounds of stare decisis.  This was essentially the same case as Whole Women's Health v. Hellerstadt (2016).  He also rejects the cost-benefit balancing test of Whole Women's Health, leaving only a plurality of the Court endorsing that standard and returning to the core undue burden standard of Casey.

There are multiple dissenting opinions by the remaining four justices.  Much of the debate devolves into a tangential discussion about deference to district court findings and as applied challenges. 

No woman justice wrote any opinion.  Every male justice wrote an opinion expressing his views.

June 29, 2020 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, May 20, 2020

The Causation Problem of "Because of Sex" in the Trio of Supreme Court Cases on Title VII, Gender Identity and Sexual Orientation, and a Proposed Solution

Shirley Lin, Aimee Stephens and Preserving Our Broader Understandings of Sex, JURIST

Just last week, we were saddened by the loss of Aimee Stephens at age 59. Ms. Stephens was a Detroit funeral director who, in 2013, announced a gender transition that exposed her employer’s deep intolerance toward transgender people. For seven years, she challenged the harsh dismissal and loss of livelihood that followed the announcement. Although she will not hear the Supreme Court’s decision in her case, Ms. Stephens’ unwavering commitment to workplace dignity made history in 2018 in her landmark victory before the Sixth Circuit Court of Appeals, in one of the most nuanced examinations of sex discrimination ever issued.

 

The decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. is best understood as a doctrinal correction to the current ideological drift in causation theory in discrimination law. Since 1989, a segment of the Court has pursued approaches that needlessly narrow the effectiveness of Title VII through causation analysis and anti-classification.

 

The law’s plain language prohibits discrimination against any individual “because of such individual’s…sex.” An employer generally cannot use an employee’s protected trait — here, her sex — to harm or otherwise disadvantage her. Under a different provision, the causation element of proving discrimination against an employee is a factual question due to other reasons employers may point to as the genuine, non-discriminatory reason for its action against the employee. In other words, it is a separate element from the trait element. Thus, “because of…sex” has been interpreted to encompass not only claims regarding women being passed over for men because they are women, but also contextual subordination that relies upon our sex trait, including gender stereotyping, sexual assault, quid pro quo sexual harassment, and hostile work environment. No less than race or religion, sex is a protected trait from which we infer meaning, and experience harm, based upon variable circumstances of time and place.

 

Thus, the Sixth Circuit unanimously held that “it is analytically impossible to fire an employee based upon that employee’s status” as a transgender person or lesbian employee “without being motivated, at least in part, by the employee’s sex.” But the panel took the farther step of affirming the non-binary sex spectrum. ***

 

However, buried in the Second Circuit’s en banc opinion in Zarda v. Altitude Express (also pending within the Title VII trio of cases the Court heard with Ms. Stephens’s case) was an outlier within the groundswell of courts seeking to course-correct causation analysis. There, a plurality ventured that a gay man’s status was the “but-for cause” of his dismissal, because if he had been a heterosexual woman married to a man, rather than a gay man, his status was determinative of the outcome. This theory, raised on appeal among other theories, conflates the social trait and causation elements of disparate treatment claims and thus competes with the approach of examining the social context of the sex trait. If misapplied to future sex and other trait discrimination cases, but-for causation could flatten existing sex discrimination analysis at a time when society has made significant strides toward recognizing intersexnon-binary, and gender-fluid people.

Shirley Lin, Dehumanization "Because of Sex": The Multiaxial Approach to the Title VII of Sexual Minorities, Lewis & Clark L. Rev. (forthcoming)

Although Title VII prohibits discrimination against any individual “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, however, many courts have read “sex” in Title VII as a socially defined trait and evaluate social construction of a protected trait before identifying causation when a court detects subordination. This Article builds on this judicial consensus by introducing “multiaxial analysis,” a framework with which judges and stakeholders identify the role of Title VII’s protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state. This context-sensitive approach to subordination gives fuller effect to Title VII’s provisions and purposes as compared to sex stereotyping theory or the “but-for causation” method recently raised with the Supreme Court in the Title VII suits brought by gay and transgender plaintiffs. Uncoupling causation from the sex trait analysis will realize the statute’s civil rights protections as localities increasingly recognize the scope of sex beyond a fixed binary.

May 20, 2020 in Equal Employment, Gender, LGBT, SCOTUS | Permalink | Comments (0)

Monday, May 11, 2020

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

The Women of the Supreme Court are Sick of These Nonsense Objections to Birth Control

Conservatives have been trying to unwind the birth control benefit in the Affordable Care Act (ACA) for nearly a decade now, and the women justices on the U.S Supreme Court are over it.

 

That much was apparent during oral arguments Wednesday in Trump v. Pennsylvania and its companion case, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.

 

It’s the third time the Court has heard a challenge to the birth control benefit, which guarantees access to FDA-approved contraception methods at no additional cost or co-pay in most employer-sponsored health plans. But this case is the most absurd and dangerous challenge yet

 

Justice Ruth Bader Ginsburg drove that point home from the hospital, where she was recovering from a gallbladder procedure while defending the rights of hundreds of thousands of employees the Trump administration is trying to “toss to the winds entirely,” to use her words. Justice Sonia Sotomayor reminded Solicitor General Noel Francisco that should the Court side with the Trump administration, the benefits of around a hundred thousand employees (by even the most conservative estimate) would be in jeopardy. And Justice Elena Kagan appeared to be searching for a compromise she could get the chief justice to sign onto.

 

At its core is the same central question: Can your boss deny you health insurance coverage for contraception based on a religious objection? But these cases take that question and, like everything in the Trump years, extend it to absurd lengths by asking if your boss can deny you those same benefits based on a moral objection as well.

 

The moral exemption to the birth control benefit is a toxic addition inserted by the Trump administration three years ago after conservative efforts to upend the benefit in court fell flat. Trump announced the exemption in a Rose Garden ceremony flanked by the Little Sisters of the Poor, the nuns who would continue on as the face of the administration’s efforts to undermine the benefit. It was the kind of reality-TV spectacle that has come to define this administration—full of pomp, empty on substance, but with the potential to unleash an unfathomable amount of chaos in its wake.

 

And that’s precisely why the administration brought the nuns along. Someone has to sell this pile of garbage to the Roberts Court, and the nuns have proven more than willing to play along.

 

There is no world in which the nuns would have to provide contraception coverage for their employees. None. Not a single one. They are covered by exemptions, court orders, and a provision of employee benefits law that guarantees the federal government mostly stay out of their business. So when Paul Clement, the attorney representing the Little Sisters, suggested that the nuns would stop providing care to the elderly and poor should they have to simply fill out a form noting their objection to the benefit, I was glad to be covering the arguments from home. Had I been at the Court, I definitely would have been ejected for the spontaneous, “OH COME THE FUCK ON, PAUL” that response requires.

 

Turns out, I’m as fed up with these cases as the women justices of the Court.

May 11, 2020 in Constitutional, Religion, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, May 5, 2020

Historic First SCOTUS Phone Arguments Involve Two Women Attorneys, Bringing Brief Gender Equality to the Judicial Forum

Called to Order: Supreme Court Holds 1st Arguments by Phone

And with that, the Supreme Court made history Monday, hearing arguments by telephone and allowing the world to listen in live, both for the first time.

 

The arguments were essentially a high-profile phone discussion with the nine justices and two arguing lawyers. The session went remarkably smoothly, notable for a high court that prizes tradition and only reluctantly changes the way it operates.***

 

The court chose a somewhat obscure case about whether the travel website Booking.com can trademark its name for its first foray into remote arguments. The more high-profile arguments come next week.***

 

 Roberts asked the first questions of government attorney Erica Ross, who was arguing that Booking.com should not be allowed to trademark its name because it is a generic term followed by “.com.” The justices then asked questions in order of seniority instead of the usual free-for-all, rapid-fire style that questions are asked in the courtroom. That meant Justice Brett Kavanaugh, who joined the court in 2018, went last.

 

One mild surprise came early in the arguments when Roberts passed the questioning to Justice Clarence Thomas, who once went 10 years between questions and has said he thinks his colleagues pepper lawyers with too many. But in this format, Thomas spoke up, asking questions of both lawyers. It was the first time in more than a year that he had asked a question.*** 

 

Several justices said “good morning” to the lawyers, a telephone nicety not often heard in the courtroom. And Roberts occasionally interjected to keep things moving, saying, “Thank you, counsel,” when he wanted Ross or Booking.com’s lawyer Lisa Blatt to stop talking so he could move to the next justice.

 

“It is a fundamental principle of trademark law that no party can obtain a trademark for a generic term like ‘wine,’ ‘cotton,’ or ‘grain,’” Ross told the justices, pointing them to an 1888 Supreme Court case in which the justices ruled that adding a word like ”Company” or “Inc.” to a generic term doesn’t make it eligible to be trademarked.

 

Some of the exchanges were playful, as happens from time to time in the courtroom. Breyer used pizza.com and cookies.com as examples of websites and discussed with Blatt searching on the internet for toilet paper.

See also For a Rare Moment at the Supreme Court, the Genders Were on Equal Footing (Oct. 2016)

The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: g ender equality.

 

Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.

May 5, 2020 in Courts, SCOTUS, Women lawyers | Permalink | Comments (0)

Tuesday, April 7, 2020

What Taylor Swift and Beyonce Teach Us About But-For Causation in Sex Discrimination Cases

Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, U. Penn. L. Rev. (forthcoming)

In the consolidated cases Altitude Express v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court will decide whether or not Title VII prohibits discrimination on the basis of sexual orientation or gender identity. Although the parties disagree as to the appropriate formulation of a but-for test to determine whether or not there was a discriminatory outcome, all parties do agree to the use of such a test, which asks “whether the evidence shows ‘treatment of a person in a manner which but for that person’s sex would be different.’” City of Los Angeles, Dep’t. of Water and Power v. Manhart, 435 U.S. 702, 711 (1978). However, but-for tests confuse more than they clarify the inquiry; a discriminatory outcome cannot be explained by appeal to just a discrete characteristic of a particular person. Individuals are not discriminated against because of these characteristics per se. Rather, they are discriminated against because of the social meanings and expectations that attach to these characteristics. Beyoncé and Taylor Swift illustrate the difference between individual-level causation and social explanation in two separate songs, “If I Were a Boy” and “The Man.” The explanation for why the counterfactual ‘male’ Beyoncé and Swift are evaluated differently than their current ‘female’ versions does not lie in individual-level features considered apart from the social world, but in social-level roles and expectations associated with those features. For this reason, a social explanation test—one that asks whether the social meanings of sex characteristics, rather than the characteristics per se, explain the outcome in question—is more suitable for determining whether or not Title VII has been violated. 

April 7, 2020 in Equal Employment, Gender, LGBT, SCOTUS | Permalink | Comments (0)

Friday, February 28, 2020

New Book: Abortion and the Law in America--Roe v. Wade to the Present

Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge Univ. Press 2020)

With the Supreme Court likely to reverse Roe v. Wade, the landmark abortion decision, American debate appears fixated on clashing rights. The first comprehensive legal history of a vital period, Abortion and the Law in America illuminates an entirely different and unexpected shift in the terms of debate. Rather than simply championing rights, those on opposing sides battled about the policy costs and benefits of abortion and laws restricting it. This mostly unknown turn deepened polarization in ways many have missed. Never abandoning their constitutional demands, pro-choice and pro-life advocates increasingly disagreed about the basic facts. Drawing on unexplored records and interviews with key participants, Ziegler complicates the view that the Supreme Court is responsible for the escalation of the conflict. A gripping account of social-movement divides and crucial legal strategies, this book delivers a definitive recent history of an issue that transforms American law and politics to this day.

February 28, 2020 in Abortion, Books, Constitutional, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Wednesday, January 22, 2020

The Arguments as to Why the ERA Can Still be Ratified Now–After the Deadline

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.

Rescinded Ratifications

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.

January 22, 2020 in Constitutional, Gender, Legal History, Legislation, SCOTUS | Permalink | Comments (0)

Monday, December 9, 2019

Holiday Card Features SCOTUS Women Justices

SCOTUS Ladies Holiday Card  (Really?  Ladies?!?)

 

December 9, 2019 in Pop Culture, SCOTUS, Women lawyers | Permalink | Comments (0)

Wednesday, November 20, 2019

SCOTUS Grants Cert in Military Rape Case Regarding the Statute of Limitations

CNN, Supreme Court to Take Up Military Rape Case

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.

 
 

November 20, 2019 in Legislation, SCOTUS, Violence Against Women | Permalink | Comments (0)

Monday, November 18, 2019

Leveling Down Gender Equality by Denying Remedies for Equal Protection Violations

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.) 

November 18, 2019 in Constitutional, Family, Gender, Scholarship, SCOTUS | Permalink | Comments (0)

Wednesday, October 23, 2019

Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical Context

Joanna Grossman, The Pregnant Pause: Placing Elizabeth Warren's Experience of Pregnancy Discrimination in Historical ContextVerdict

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.

 

October 23, 2019 in Constitutional, Education, Equal Employment, Family, Legal History, Pregnancy, SCOTUS | Permalink | Comments (0)

Tuesday, October 8, 2019

Only 17% of US Supreme Court Advocates Were Women

At the Supreme Court, Where are the Women Advocates?

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. 

October 8, 2019 in SCOTUS, Women lawyers | Permalink | Comments (0)

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.

Leah Litman, June Medical Services v. Gee and the Future of Abortion Rights

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.

 

David Strauss, SCOTUS Needs to Rein in Lower Courts Willing to Force Its Hand by Defying Its Precedent

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.

 

Michele Goodwin, A Duplicitous Playbook: June Medical Services v. Gee and the New Jane Crow

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

 

October 4, 2019 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Wednesday, October 2, 2019

Reading the 19th Amendment into Constitutional Jurisprudence

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution

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.

Abstract:

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.

October 2, 2019 in Constitutional, Family, Legal History, SCOTUS | Permalink | Comments (0)

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, GeorgiaNo. 17-1618 [Arg: 10.8.2019]
Issue(s): Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity CommissionNo. 18-107 [Arg: 10.8.2019]
Issue(s): Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Altitude Express Inc. v. ZardaNo. 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.

Marty Lederman, Thoughts on the SG’s “Lesbian Comparator” Argument in the Pending Title VII Sexual-Orientation Cases

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).

 

Dress Codes Central in Supreme Court Gender identity Bias Debate

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.

September 30, 2019 in Equal Employment, LGBT, Manliness, SCOTUS | Permalink | Comments (0)

Thursday, September 26, 2019

Supreme Court to Consider Abortion Next Week in Procedural Move

The Fight to End Roe v. Wade Enters its Endgame Next Week, Vox

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.”

September 26, 2019 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)