Thursday, July 30, 2020
Congressman John Lewis' funeral was held on July 30th. The Congressman left a powerful letter to the nation to be published by the New York Times. While many eulogized Mr. Lewis at his funeral, Mr. Lewis himself remains the most eloquent about his life and his goals.
Mr. Lewis was an extraordinary man by all measure. And in his letter he left us instructions for carrying on. In part, Mr. Lewis' instructs us: "Though I am gone, I urge you to answer the highest calling of your heart, and stand up for what you truly believe." We urge you to read the entire letter.
Though I am gone, I urge you to
answer the highest calling of your heart and stand up for what you truly believe.
Though I am gone, I urge you to
answer the highest calling of your heart and stand up for what you truly believe.
Wednesday, July 29, 2020
Comments to the draft report of the State Department's controversial Commission on Unalienable Rights (CUR) are due on July 31. According to the Commission: "The Commission welcomes all submissions. Please route them to email@example.com and/or Designated Federal Officer Duncan Walker, who may be reached at firstname.lastname@example.org."
Still honing your thoughts on the report? On July 30, Harvard's Carr Center on Human Rights Policy will host an expert discussion on the CUR draft. More information about how to participate is here.
Meanwhile, several human rights organizations are pursing a challenge to the Commission's procedures -- including bias and lack of transparency -- in a federal lawsuit pending in the Southern District of New York. Issues include failure to timely post meeting minutes, lack of remote access to the CUR's final meeting held in Philadelphia, and inadequate time for comments. Given CUR's track record, it's an open question whether the Commission will even consider and respond to comments at all, particularly given evidence that Pompeo has already illicitly directed the State Department to begin conforming its activities to the contents of the draft report. In fact, no further meetings of the CUR are scheduled post-comment period.
The CUR's report asserts that there's a hierarchy of human rights in the U.S., with civil and political rights at the top, yet the Commission's failure to follow basic rules of government transparency suggests that the CUR is prepared to disregard even those rights when it's convenient. Still, it's important for concerned groups and individuals to create a record, so don't forget to submit comments.
Tuesday, July 28, 2020
In a recent ranking the United States came in 34th as the country best for raising a family. Iceland ranked first, having received A+ rankings for safety, cost, and health. Norway, Sweden, Finland, and Luxembourg received A+ rankings.
The United States was ranked 34 out of 3v5 counties. Not surprisingly, the US received an "F" in safety. Other categories in which the US received failing grades were cost and time. No grade was higher than a C+ and those were received in the happiness and education categories. A D- in health rounds out the scoring.
If you are not one of the 1% category, you already know why the ranking is low - and appropriate. Millions in the country have inadequate or no health insurance. Most public schools are under-resourced, particularly those in communities of color. The cost of living is excessive with those in minimum wage positions unable to escape the consequences of poverty. The divide between the wealthy and those barely able to sustain themselves has not been this wide since the so-called "Golden Age". Not only is safety not secure in the US, those sworn to serve and protect can be causing the most harm depending upon your skin color. The C+ the US received in "happiness" was generous grading indeed.
Monday, July 27, 2020
By Co-Editor Prof. Justine Dunlap, UMass Law School
Do you hear it? Strain, pause, listen, and rejoice. It’s obscured by much noise and tumult but the arc of the moral universe bent a little more towards justice last week. The U.S. Senate voted 86 to 14 on July 23rd to change the names of U.S. military bases that were named after confederate officers. The House of Representatives had already and predictably passed its equivalent, although the Senate bill gives the military three years to do this, juxtaposed to the House’s one year. The details will be worked out, but it’s a veto-proof vote.
This vote comes shortly after the Secretary of Defense banned the display of the confederate flag on military bases, albeit in a round-about manner. And on June 30th, the Republican Governor of Mississippi decommissioned its state flag, which incorporated the Confederate Flag within its design. Citizens of the state will vote on a new flag design in November.
Yes, it’s telling, demoralizing, and unjust that it has taken so long. And the arc’s movement is the result of those who are and have been drum majors for justice; those who have persevered and remained steadfast and optimistic (thank you Congressman John Lewis). And yet it remains a surprising delight that 86 members of today’s polarized Senate voted in favor. A miracle, perhaps. Or just the arc bending a little bit towards justice.
Sunday, July 26, 2020
During the impeachment of President Trump, Lt. Col. Alexander Vindman famously reassured his father that he would not suffer negative repercussions for testifying under subpoena. "Here, right matters," Vindman explained. It was just a few short weeks later when Vindman was unceremoniously relieved of his White House position. A Trump administration effort to deny him a recommended promotion soon followed. Ultimately, Vindman resigned from the Army this past June. "Here, right matters" has become a rallying cry for those concerned about government corruption and abuse. Yet we can't help but wonder whether right really does matter, at least in Washington, D.C. -- and whether there's anyone in the administration who is prepared to stand up for what's right.
The multiple signs are that human rights don't matter anymore either.
On Friday, the UN Human Rights Office decried the violations of the International Covenant on Civil and Political Rights taking place in Portland, Oregon, at the hands of federal security officers. Said the UN spokesperson, "Peaceful demonstrations that have been taking place in cities in the US, such as Portland, really must be able to continue without those participating in them - and also, the people reporting on them, the journalists - risking arbitrary arrest or detention, being subject to unnecessary, disproportionate or discriminatory use of force, or suffering other violations of their rights.”
Spurred by these events in the US and elsewhere in the world, the UN Human Rights Committee will issue a general comment, or guidance, on 29 July, covering issues that include both physical and online protests, public order, and the work of the media.
There are some places in the world where leaders will take this guidance to heart. But in recent years, the U.S. has withdrawn from the UN Human Rights Council, has withdrawn from the Paris Climate Accord, has cancelled its membership in the World Health Organization, has refused to allow official visits by UN Special Rapporteurs, has failed to submit monitoring reports to the CERD Committee . . .
Here, do human rights matter?
Thursday, July 23, 2020
by Deena Hurwitz, Human Rights Attorney and Educator; Founding Director, International Human Rights Clinic, Univ. of Virginia Law School
In July 2019, hundreds of U.S. experts on foreign policy, human rights, civil liberties, and social justice, sent a letter expressing deep concern with the State Department’s Commission on Unalienable Rights. It conveyed serious objection to the Commission’s stated purpose, which the signatories find harmful to the global effort to protect the rights of all people and a waste of resources; the Commission’s make-up, which lacks ideological diversity; and the process by which the Commission came into being and is being administered, which has sidelined human rights experts in the State Department’s own Bureau of Democracy, Human Rights, and Labor.
In March 2020, Democracy Forward filed a lawsuit against the State Department in the Southern District of New York on behalf of the Robert F. Kennedy Center for Human Rights, the Center for Health and Gender Equity, the Council for Global Equality and the Global Justice Center. The lawsuit argues that the creation of the Commission on Unalienable Rights violates federal law requiring a balance of views in an advisory committee’s membership and transparency in its work – neither of which is evident with the commission.
Social scientists label the process of deciding what evidence to accept based on the conclusion one prefers motivated reasoning. It functions to avoid cognitive dissonance rather than re-examine it. The draft Report of the Commission on “Unalienable” Rights (“CUR”), released July 16, is a case in point.
Secretary of State Michael Pompeo sought “an informed review of the role of human rights in a foreign policy that serves American interests, reflects American ideals, and meets the international obligations that the U.S. has assumed.” To that end, the CUR’s universe of information is the Constitution and the 1948 Universal Declaration of Human Rights -- convenient since (a) the U.S. was central in drafting the UDHR, and (b) it is non-binding. This suits a solipsistic objective, and avoids international developments over three quarters of a century that contradict Pompeo’s version of American interests.
The disconnect between the Commission’s work product and the nation in this historic moment is striking. The Report does mention the “social convulsions” that “testify[…] to the nation’s unfinished work in overcoming the evil effects of its long history of racial injustice” and it concedes U.S. credibility abroad depends on “assuring that all its citizens enjoy fundamental human rights.” But apart from identifying racial injustice as an historical blight, the Report underscores the fundamental delusion – that the U.S. is “an example of a rights-respecting society where citizens live together under law amid the nation’s great religious, ethnic, and cultural heterogeneity.”
The Commission avoids the present, preferring to give a history lesson that reads like a chapter from a mid-century social studies textbook. (The back cover looks like an early ‘60s stock photo from Life Magazine.) It begs the question: who is the Report’s audience?
For all its homage to the nation’s founding evils of slavery and “forcible displacement” of Native Americans (no reference to genocide), there is no mention of the disproportionate impact of the pandemic on communities of color and other vulnerable populations. Social determinants of health -- race, income level, gender identity, physical environments -- expose structural racism. And, structural racism exposes just how deeply unfinished is the work towards equal enjoyment of fundamental human rights in this country. As of July 22, 25% of COVID deaths were black, although blacks are only 13% of the population. Native Americans are also disproportionately affected by pre-existing conditions that pose additional risk factors for COVID, including economic inequality and health problems. As of May 27, the Navajo Nation had the highest infection rate per capita in the U.S.
Without naming George Floyd (or any others), the Report pays brief lip service to the law enforcement crisis in black and brown communities. It then sanctimoniously notes that appreciating the work that remains “is itself a crucial element of America’s distinctive rights tradition”.
The problem with human rights, according to the CUR, is that there are too many; and numerous “new rights” are not part of the American founding fathers’ ideals, interests or assumed obligations. Rather than examining why that might be, the CUR invokes three “traditions” that shaped the American “spirit”: Protestant Christianity; the “civil republican ideal”; and classical liberalism (legitimate government derives from the consent of the governed). These traditions underlie the “core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons by virtue of being human.” Unalienable rights, explains the CUR, are “pre-political” – not created by persons or society.
According to the CUR, “foremost among the unalienable rights that government is established to secure … are property rights and religious liberty.” The Report states that abolitionists thought owning property was a necessary element of emancipation: “only by becoming property owning citizens could former slaves exercise economic independence and so fully enjoy their unalienable rights.” Invoking John Locke, the CUR states that “the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.”
The notion that property rights are inherent to our humanity is preposterous, if not a cruel joke. There is currently a 30-percentage-point gap between black and white home ownership -- larger today than before the Fair Housing Act (1968), when housing discrimination was legal. Legacies of redlining and community segregation, disproportionate eviction rates, victimization by predatory lenders, foreclosures – these examples of structural racism deny people of color their “unalienable right” to property. New data suggests COVID-19 is only widening the housing disparities by race and income.
A fundamental aspect of human rights is that accountability for violations lies with the state. The CUR affirms that as government systematically denies “the very idea of unalienable rights,” citizens are “justified in establishing a new form of government to secure their rights.” Certainly not a new form of rights to secure their government.
Wednesday, July 22, 2020
It would be difficult indeed to deny systemic racism in our public institutions, particularly our legal ones. This realization for some seems overwhelming, making it difficult for them know where to begin.
Envisioning our legal systems as huge and unmovable machines incapable of stopping reinforces helplessness. What is denied in that assessment is that our legal system is populated by individuals and supported by individual citizens who passively accept the policies of racism embedded in our culture.
Local elections of district attorneys and in many jurisdictions, judges, are under the control of individual citizens. We determine leadership of the courts and in prosecutions. In deciding through elections who that leadership will be, we decide what the policies and institutional culture will be. Philadelphia's citizens took control and elected District Attorney Larry Krasner. Mr. Krasner examined racist policies and took measures toward eliminating systemic bias. This included holding biased and violent police officers accountable. Mr. Krasner announced today that he intends to arrest any federal agents sent to Philadelphia by the President who behave as they did in Portland- kidnapping protesters.
For those who do not have direct experience with our legal systems, apathy might be the response to local elections of judges, court clerks and prosecuting attorneys. As we have heard as part of BLM, silence is violence. Scrutiny of candidates' policy agenda is critical. No election is too local to fail to scrutinize the bias of candidates and their willingness to "go along" with the status quo. Voting apathy is not acceptable. We must be mindful that each elected official reflects our individual and community values. Bias in all forms can be addressed.
Tuesday, July 21, 2020
It's hard to get your mind around international travel at the moment, but applications for a Fulbright in 2021-2022 are due soon, so imagine a post-pandemic future and consider applying! Here are some of the possibilities:
The Fulbright program has over 450 awards available across the globe open to either specific, multiple or all disciplines. The complete list of opportunities is located in the Catalog of Awards, but please note these awards are open to U.S. citizens only. Opportunities range from 2 to 12 months in length and some awards include flexible options for multiple short visits. The application deadline is September 15, 2020. Interested applicants can join My Fulbright and check out webinars for insight on the application process.
The Fulbright International Education Administrator (IEA) Seminars provide funding both for U.S. senior higher education officials and international education professionals to create empowering connections with the societal, cultural and higher education systems of other countries.
If you fall into this category, think about applying! The U.S.-France IEA in particular is looking for senior leaders such as deans, directors, vice presidents, provosts and presidents. Grants generally include economy round-trip airfare, travel within the host country, lodging, and a lump sum supplement for incidentals. For more information, please visit the Fulbright website or email IEA@iie.org.
Ph.D. Students and Postdocs
Fulbright provides funding opportunities for Ph.D. students and postdocs. Students in all disciplines can apply for open study/research awards through the Fulbright U.S. Student Program. Graduating Ph.D. students and early career scholars are suitable to apply for awards through the Fulbright U.S. Scholar Program. The complete list of opportunities, is available in the Fulbright Catalog of Awards.
Monday, July 20, 2020
As the U.S. Department of Justice begins to carry out federal death penalties after a 17-year hiatus, the European Union has stepped up its condemnation of the practice and its efforts to end U.S. executions though diplomatic pressure. In July 2020, the E.U. condemned he resumption of federal executions and urged against the reversal of a trend toward abolishing the death penalty, both in the U.S. and universally.
Just a month earlier, the European Union issued its annual report on human rights and democracy worldwide, which includes an update of developments in the U.S. In that report, covering the year 2019, the E.U. stated that "the United States served as a good example of the continuous progress towards abolition:
• New Hampshire became the 21st abolitionist state in law in the US;
• Governor Newsom declared a moratorium on executions in California, the state with the most death row inmates in the US;
• Indiana reached 10 years without executions, bringing the number of US states without executions for ten or more years to
32 out of a total of 50.
The European Union 's report also found positive news in the failed attempt to re-start federal executions in 2019 -- a fleeting reprieve that has now been superseded, with three executions in four days last week.
Sunday, July 19, 2020
Editors’ Note: The following is a statement from a NYC collaboration working to end violence, This collaborative statement was brought to our attention by Prof. Julie Goldsheid.
Confluence, a group of anti-violence advocates, lawyers, survivors, and scholars, supports
the proposal to truly defund the NYPD budget by $1 billion and invest those funds in
community initiatives that give survivors and their communities much needed resources and
We avow and affirm unequivocally that Black Lives Matter. As anti-violence advocates who
work to uplift and center the experiences and leadership of traditionally marginalized
communities who have survived intimate partner and all forms of gender-based violence, we
stand in solidarity and grieve with the families of Ahmaud Aubery, Rayshard Brooks, George
Floyd, Sandra Bland, Tony McDade, Breonna Taylor, Eric Garner, Elijah McClain, Sean Bell,
Amadou Diallo, Atatiana Jefferson, Rekia Boyd, and every victim of anti-Black violence. We
know that just like these Black lives lost to racist policing, many more Black, indigenous,
immigrant, undocumented, LGBTQ and people of color who are survivors of gender-based
violence have also lost their lives or been subjected to state violence.
We call for a re-imagination of gender-based violence response, grounded in the work of
Black survivors and survivors from other marginalized communities who have been leading
this call and proposing non-carceral alternatives for decades. In the face of responses that
disparage, isolate, and erase the leadership of these survivors and advocates, we stand in
solidarity with Mariame Kaba , current and former City workers, survivor and allies , Survived
and Punished , and the Women & Justice Project and many others who have and continue to
lead this charge and demand change. We call for responses that, by design, do not rely on
oppressive systems and institutions rooted in white supremacy. Policing in our city is
unquestionably intertwined with the racist past of the “War on drugs”, “Broken Windows”, the
Zone Assessment/Demographics Unit, and other policies and initiatives that over time have
directly contributed to the criminalization of Black and brown survivors. For these and other
reasons, many survivors do not feel safe engaging with systems, and will not seek them out
regardless of reforms.
As New York City responds to the COVID-19 pandemic and its multiple ramifications, we call
on the City to prioritize the needs of survivors, particularly Black survivors and survivors from
other marginalized communities. Our work has been used as justification for the
criminalization of Black and brown communities, when the safety of survivors is at even
greater risk due to racist policing.
We recognize that gender-based violence has its roots in the racist history of our society and
that current legal responses do not always work to truly advance safety or to meet survivors’
needs. Often, survivors have had their acts of survival used as cause for criminalization,
punishment, additional trauma, and dehumanization by a racist system that only compounds
the harms they have already experienced at the hands of a partner, acquaintance, or family
member. We recognize the survivors of violence who will not turn to law enforcement for
safety due to fear that doing so will lead to devastating immigration consequences for them or
their family members. We recognize the survivors of violence who will not turn to law
enforcement for safety due to harmful past interactions with the system. We recognize the
survivors of violence who will not call law enforcement for fear that they will be separated from
their children. We recognize the survivors of violence who will not turn to law enforcement
because they are the spouses, partners or acquaintances of the same. We call on the City to
invest in comprehensive, responsive resources and community-based services for survivors
who refuse, are unable, or choose not to engage in legal services and prosecution avenues.
We call on the City to invest in comprehensive, responsive resources and community-based
services for survivors who choose to stay with abusive partners.
We call on the City to prioritize investment in local, community-driven and culturally-responsive
resources that will truly advance safety for survivors and empower their communities.
Survivors need options for plans and strategies that respond to their unique needs as these
survivors manage their responses to violence. Some seek shelter services. Some seek legal
remedies, whether in the form of an order of protection, or even criminal charges. For
countless others, though, safety from gender-based violence requires access to economic
security, sustainable housing, education, meaningful jobs and investment in leadership
development, childcare, and health care. A meaningful path to safety and autonomy requires
that all of these options are equally accessible to survivors. Counseling and social services
from community-based organizations, peer support from other survivors, and connections with
advocates working for systemic change to underlying conditions of inequity offer far more
promise to advance safety than do incarceration and punishment. The City should invest in
community-based and led violence prevention, reduction and intervention programs outside of
the carceral system, and programs that seek to restore or heal instead of exact retribution.
Alternative solutions have been fiscally starved for decades, as public policy has prioritized
policing over people, community-based supports, and services. As COVID-19 increases the
incidence of intimate partner and gender-based violence, as well as the complexity of serving
survivors, it is all the more critical to fund the services survivors need. This moment presents an
opportunity to shift priorities to building an infrastructure that re-imagines safety and centers the
lives of Black, indigenous, LGBTQ, immigrant, youth, and other survivors of color as we respond
to gender-based violence.
Thursday, July 16, 2020
In an opinion issued July 8, the Inter-American Commission on Human Rights ruled that the claims of four victims of torture and rendition at the hands of the U.S. government can proceed. As described in the opinion, "[t]he petition alleges that each alleged victim was confronted by masked U.S. agents who beat them; forcibly stripped them by cutting off their clothes; photographed them while naked; dressed them in diapers; shackled them; aggressively forced them onto an aircraft; and immobilized them in painful positions for the duration of flight to various 'black sites.' In addition, some alleged victims report being forcibly drugged via an anal suppository. In all cases, each alleged victim was forbidden to speak or move, and attempts to do so resulted in more physical abuse. The petitioners allege that the severe torture and abuse inflicted on the alleged victims by the U.S. was part of a wide-reaching and systemic state-sponsored, anti-terrorism program."
The opinion on July 8 determined that the petitioners had exhausted their domestic remedies (a fact conceded by the US government), and that their allegations raised colorable claims of rights violations, if proved. The matter will now proceed to an analysis of the merits.
Notably, the petition was filed with the Inter-American Commission in 2011, following lengthy domestic proceedings, but based on facts that occurred as early as 2002. While the litigants are rightly characterizing this as a victory for their clients, and a step toward accountability of the US government, the nine-year period from complaint to opinion is a reminder that very often, justice delayed is justice denied.
Wednesday, July 15, 2020
The Commission is an independent U.S. government agency created by Congress in 1975 to monitor and encourage compliance with U.S. commitments to the Organization for Security and Co-operation in Europe (OSCE). Membership in the Commission consists of 9 members of the U.S. House of Representatives, 9 U.S. Senators, and one representative from each of the U.S. Departments of State, Commerce, and Defense. It appears that the current Administration has left these Department positions vacant. Further, while the Commission's membership is bi-partisan, no members of the Republican delegation attended the hearing.
Commissioner Rep. Emanuel Cleaver (MO-05), chaired the hearing. In his opening remarks, he observed, “The United States has long been a champion of human rights and democracy in our foreign policy. Many of the OSCE’s groundbreaking commitments were actually spearheaded by the United States, including those relating to anti-Semitism, freedom of religion, free elections, and the rule of law, to name only a few…Today, we look inward as we examine the Black Lives Matter protests and related domestic compliance issues in the context of our OSCE human dimensions commitments and implications for U.S. foreign policy.”
Witnesses included Nkechi Taifa, Founding Principal & CEO of The Taifa Group, LLC, Convener of the Justice Roundtable, and Senior Fellow, Center for Justice, Columbia University; the Honorable Malcolm Momodou Jallow, Member of Parliament (Sweden) and General Rapporteur on Combating Racism and Intolerance, Parliamentary Assembly of the Council of Europe (PACE); and Ambassador (ret.) Ian Kelly, former U.S. Permanent Representative to the OSCE.
During the hearing, Commission members noted that the world was watching U.S. responses to the human rights violations within its borders. The video of the murder of George Floyd and the ensuing protests received wall-to-wall coverage throughout most of the OSCE participating States. Further, George Floyd’s death in police custody prompted demonstrations in nearly all western OSCE participating States, including more than 25 of the 30 NATO member states, supporting the Black Lives Matter (BLM) movement and protesting systemic racism.
Commenting on the impact of events in the U.S., Ambassador Kelly testified that security among states depends on respect for human rights within states. According to Kelly, actions clearing peaceful protesters, at the expense of their basic rights, cost the United States moral authority to call other countries to account.
Tuesday, July 14, 2020
Wednesday, July 15, brings Housing Not Handcuffs: Hope for Change at the Federal Level, hosted by the National Law Center on Homelessness and Poverty. Details and registration are here.
According to the Federal Register, on Thursday, July 16, from 2-3 p.m., the Commission on Unalienable Rights will hold a live meeting at the National Constitution Center in Philadelphia. Doors will open at 1:30 p.m. Note that the Commission's website seems to provide incorrect information concerning the timing of this meeting! The U.S. Secretary of State will attend and it is expected that the Commission will issue its report. According to the Federal Register announcement:
"The conclusion of the meeting will start a two-week public comment period on the Report ending July 30 at midnight. An electronic facsimile of the report will be posted on the Commission's web page: www.state.gov/commission-on-unalienable-rights on July 16. The final Report, following a consideration of the comments received, will be posted to the Commission's website after the conclusion of the public comment period."
Earlier in the day (8 a.m. Eastern!) on Thursday, July 16, tune in for an event titled Fulfilling SDG 11 and the NUA [New Urban Agenda] through the Right to the City. According to the organizers, "COVID-19 has hit cities particularly hard, exposing key challenges faced by them. Through a discussion with civil society organizations, academics and local governments we aim to identify paths provided by the Right to the City for implementing SDG11 and the NUA beyond COVID-19."
On Friday, July 17, the U.S. Civil Rights Commission will hold a virtual briefing, open to the public, titled COVID-19 in Indian Country: The Impact of Broken Promises on Native Americans.
Monday, July 13, 2020
Editors' Note: Congratulations to Professor Ho. Last month Prof. Ho was awarded the Manning Prize for Teaching. This award is a university wide honor with honorees designated by the Office of the President of the University of Massachusetts system.
My recent post here on the Supreme Court’s Title VII decision in Bostock noted how Justice Gorsuch continued to uphold religious freedom despite affording LGBTQ individuals anti-discrimination protection at the workplace. At the end of his majority opinion in Bostock, Justice Gorsuch quoted Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and alluded to exceptions under First Amendment that might interfere with Bostock’s protective reach against employment discrimination for LGBTQ employees. Here is the quote:
"We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society But worries about how Title VII may intersect with religious liberties are nothing new; they even predate [Title VII’s] passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)."
After Bostock last month, the Court then released three decisions upholding religious freedom. In Espinoza v. Montana Department of Justice, the Court ruled that Montana could not exclude religious schools from state funding. Then in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court sided with employers with “sincerely held religious or moral objection[s]” who declined to provide employer-covered contraception. And lastly, in Our Lady of Guadalupe School v. Morrissey-Berru, the Court used the ministerial exception to permit church-run schools with religious instruction to terminate teachers without violating federal employment discrimination laws. The last two cases—and in particular, Our Lady of Guadalupe School—seems to align with Justice Gorsuch’s specific reference to religious freedom in Bostock. If read together with Bostock, Our Lady of Guadalupe School would likely exempt acts of employment discrimination against LGBTQ individuals by religious employers.
Although one might easily believe that these religion cases and others this Term were reached purely through the politically conservative block of justices at the Court, the truth is actually more complicated. Espinoza was a 5-4 decision with the known conservative justices tipping the votes to favor religion. However, Little Sisters and Our Lady of Guadalupe School were both 7-2 decisions, showing the divisions were not necessarily on political lines. In 2018, Masterpiece Cakeshop, was also a 7-2 decision that favored the Christian baker over the same-sex couple who tried to buy a cake for their wedding party.
Some observers do think firmly that President Trump’s Supreme Court appointments have made the difference in strengthening religious freedom. Hugh Hewitt from The Washington Post makes that point clear in his op-ed last Thursday . However, Michael McConnell from Stanford Law offered a more nuanced take in his op-ed in The New York Times on the same day, noting that the outcomes of this term’s religion cases, determined not always along conservative progressive lines shows the court’s attempts to “protect pluralism.” Professor McConnell reached this perspective by examining together many of the cases this term that involved “culture war” issues per se—i.e. immigration, sexual orientation, and religion—and noting that in the aggregate not all cases were determined with conservative views prevailing.
Pluralism may be one aspect, but I’m also concerned with the way religion can be a cover for marginalization. As I’ve argued here and elsewhere, religious freedom tends to be a way to reify establishment norms regarding race, gender, and sexuality, particularly when the religion that is challenged in these cases (or making the challenge) is within the Judeo-Christian tradition. Although there is a line of scholarship that has pointed out that the Court engages in anti-balkanization practices when it wants to avoid cases that would trigger social upheaval—and perhaps Professor McConnell’s view on pluralism protection has resemblances to that observation—my concern is toward the Court’s refusal in these religious cases to skew against anti-subordination or skew against a clearer separation between church and state. Especially as we will likely encounter more challenges ahead that will involve “culture war” entanglements with religion, it is very apparent that the Court seems to side with the religious perspectives more often than other perspectives. I question whether that is effectuating pluralism, and even if so, whether the inequality that persists is the just end we seek.
Sunday, July 12, 2020
A new series released on Netflix explores the impact of having no home, no identity, and no country. The series was co-created and directed by Cate Blanchett who is a UNHCR goodwill ambassador and awardee. The series follows a 20-year-old Rohingya refugee and her one-year-old son as they seek safety in a refugee settlement. The six-part series is set in one of Australia's detention camps.
Ms. Blanchett recommends a list of movies to watch during COVID-19 that will inform the viewer of refugee barriers and conditions. The list is:
- Capernaum, directed by Nadine Labaki
- Shoplifters, directed by Hirokazu Koreeda
- News from Home, directed by Chantal Akerman
- The Other Side of Hope, directed by Aki Kaurismaki
- Babel, directed by Alejandro G. Iñárritu
- The Joy Luck Club, directed by Wayne Wang
Friday, July 10, 2020
Court Rules Government Can Restrict Women’s Statutory Right to Contraception Based on Employer Opposition
By Priscilla Smith, Clinical Lecturer of Law, Yale Law School, guest contributor
I suppose we are meant to be grateful for the Court’s opinion recognizing that employment discrimination against LGBT people is illegal under Title X’s prohibition on sex discrimination. And also for the Court’s opinion in June Medical that preserves, for now, the right to abortion. But the decision in Little Sisters of the Poor v. Pennsylvania is a real kicker, and not just because it upholds a regulation that undermines the “contraception coverage” provision of the Affordable Care Act.
This contraceptive coverage requirement became part of the ACA by virtue of the “Women’s Health Amendment.” It was designed to address discrimination against women in health care, disparities in the provision of care, and thus to contribute to increased equality for women. It requires employer based insurance plans to include coverage at no cost for all medically-approved forms of contraception. Importantly, this coverage is required to include the most expensive and most effective form of contraception—the IUD. The new regulation upheld by the Court exempts from this requirement any employer that has a religious or moral objection to contraception, to providing insurance that includes coverage for contraception, or to providing a statement indicating these objections. The word “moral” seems designed to signal religion but of course it is a limitless term. It would be more honest just to say religious or “ideological” objection to contraception.
The case is mostly being framed by the Court and reporters alike as a referendum on government imposition on religious exercise. In this frame, the free exercise of religion wins. But the important question here is the opposite of that. This case is instead a referendum on government actions that restrict the rights and interests of some to accommodate the beliefs (religious, moral, ideological) of others. How far can the Government go to accommodate opposition to contraception (religious, moral, ideological) when doing so tramples on women’s rights to no-cost employer based contraceptive coverage, and their interests in their ability to, as Justice Ginsburg puts it, “chart their own life’s course.” See Little Sisters v. Pennsylvania, No. 19-431 at *5 (Ginsburg, J., dissenting) (July 8, 2020). The answer from this Court is very far.
Seen in this (correct) frame, the headline changes. The focus is on the women who lose their statutory right to the coverage, not the Religious Objectors – who are not necessarily religious at all. This is of course a bad decision for women, for their access to contraception, for their ability to avoid pregnancy, for their ability to decide whether and when to have children, what job to have, all the things that are included in one’s ability to chart a life’s course. It is also of course a bad decision for men whose partners seek contraception. But it has much broader implications, implications we should not miss, for the ability of government to create mechanisms
to impose religious, moral, and ideological beliefs it chooses in ways that undermine the rights of others—statutory or constitutional rights. As the dissent points out, accommodations like these have never before “allow[ed] the religious beliefs of some to overwhelm the rights and interest of others who do not share those beliefs.” See Little Sisters v. Pennsylvania, No. 19-431 at *1 (Ginsburg, J., dissenting) (July 8, 2020) (citing Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); United States v. Lee, 455 U.S. 252, 258-260 (1982)).
Some will argue that this is a one-off because it is about contraception (by which they mean it is about abortion), and so it won’t concern them. Others could argue that this is a one-off because it is about women and motherhood (by which they mean it is mostly about abortion but also about the “bonds of love between a woman and her child”), and maybe that will concern them only slightly more. It is certainly true that people in this country become insane when debating the role of women, questions of motherhood.
But even if you don’t really care about women and their “issues,” that doesn’t mean this decision doesn’t have legs that can travel. This decision gives carte blanche to governments to trample on the rights of some to accommodate the beliefs of a chosen group of others, whether those beliefs are rooted in religion or not. Who gets accommodated and who gets trampled is just a question of who is in power that day.
Thursday, July 9, 2020
On the last day of its 2019-2020 term, the U.S. Supreme Court issued what many consider to be an astonishing ruling: the eastern half of Oklahoma, including city of Tulsa, remains a reservation of the Creek Nation fully 180 years after it was established at the end of the "trail of tears."
Why astonishing? Because it is a rare instance of the U.S. legal system upholding the rights of Native Americans to a measure of sovereignty, and holding the U.S. government to its own treaty language.
The case arose when Jimcy McGirt, a member of the Seminole tribe, was charged and convicted in state court of a heinous child rape. On appeal, McGirt argued that the state court had no jurisdiction because he was a Native American committing a major crime on Native land, and that his crime was subject to exclusive federal jurisdiction per federal statute. The dispute that made its way to the Supreme Court did not concern the particulars of McGirt's crime, but whether the land on which it was committed was truly "indian country," as required by the statute. Justice Gorsuch, the only sitting justice who hails from West of the Mississippi, wrote the opinion, holding the federal government to the terms of its long ago agreement with the Creek Nation.
This ruling, which directly affects only Native Americans defendants, certainly does not signal a free-for-all in eastern Oklahoma, but elevates the tribes as sovereign partners of the state. The Cherokee Nation Principal Chief Chuck Hoskin, Jr., issued this statement: "I agree with Justice Gorsuch’s opinion today that the United States government should be held to its treaty obligations, and its word. The Cherokee Nation is glad the U.S. Supreme Court has finally resolved this case and rendered a decision which recognizes that the reservation of the Creek Nation, and by extension the reservations of the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Seminole Nation, were never diminished and that our respective governments were never dissolved. This ruling does not mean that those who commit crimes on reservation lands will not face justice, no tribe would ever welcome that, and now we will continue to work with the state of Oklahoma and our federal and tribal partners on legal parameters under the decision today.”
The Five Tribes also issued a joint statement, pledging that "The Nations and the State [Oklahoma] are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.”
Native American individuals and groups have long been active before the United Nations and other international forums, challenging U.S. government actions that impinge on sacred lands, government refusals to honor tribal property claims, and other violations. Native Americans have often turned to these international forums because they so seldom received a fair hearing and satisfaction in domestic courts or other centers of domestic power. However, the McGirt ruling vindicates indigenous peoples' human rights in the face of longstanding land-grabbing by the states. And it opens the door to greater possibilities for domestic enforcement of those rights.
Check out this upcoming webinar, set for July 15, sponsored by the National Law Center on Homelessness & Poverty:
Since 2016, the Housing Not Handcuffs Campaign has been supporting efforts at the federal, state, and local levels to #DefundThePolice and invest resources into the human right to housing. Now, it is more important than ever to understand what efforts are being made at the federal level through funding and legislation that can help housing, homelessness, and social and racial justice advocates achieve a world where housing, not handcuffs, is the norm. Rep. Pramila Jayapal will highlight her recently introduced Housing Is A Human Right Act as well as other efforts to lay the basis for a dramatic shift in resource allocation from law enforcement to housing and social services. The webinar will also share how the CARES Act can be used to help get people off the streets and into housing, rather than jail cells, as well as other forthcoming legislation people need to be aware of to help push the efforts for housing and racial justice further.
Wednesday, July 8, 2020
By Co-Editor Prof. Jeremiah Ho
It’s amusing to note that the recent collection of major Supreme Court decisions regarding the rights of LGBTQ people has often dropped upon us during Pride Month. Whether or not it’s a positive decision in the Lawrence, Windsor, or Obergefell camps, or a negative one, such as Masterpiece Cakeshop, the month of June always feels especially weighted in a year when a LGBTQ case is up for resolution at the Court. With Bostock this June, it was good to see the Court handing down a decision to protect LGBTQ employees under Title VII, shoring up once and for all the debate whether “because of . . . sex” affords sexual orientation and gender identity protections in the employment context.
Being a fairly optimistic person (though tested recently in these COVID-19 times), I don’t question the potential of Bostock v. Clayton County, and its far-reaching protections for LGBTQ employees under Title VII. Writing for the majority, Justice Gorsuch seems to have given us a textualist interpretation of “because of sex” that is definite and broad in determining the scope of SOGI protections under Title VII. My colleagues John Rice and Shirley Lin have written terrific posts analyzing the implications of Bostock, especially for the previously unsettled case law surrounding LGBTQ litigants in the federal circuits. However, after dwelling on Bostock for a few weeks now, there are implications from the decision that appear less hopeful in my mind.
Although the textualist interpretation is likely one of the most direct approaches toward including sexual orientation and gender identity as categories protected by “sex” in Title VII, and has been one that lower courts have used, this approach had to contend with the assumption that “sex” is a stable concept. As Justice Gorsuch writes on p. 5 of the slip-op, “we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to the biological distinctions between male and female.” This statement is the first and foremost observation I have about Bostock that gives me pause because this view of “sex” might continue to perpetuate rigid binaries, cis-genderism, and anti-classificationist perspectives on equality. If one were to approach Bostock with a queering analysis or from a queer theory angle, Justice Gorsuch’s denotation of “sex” might not be the best reflection of a modern reality, where the concept of “sex” can bear more instability than the narrow dictionary meanings that he used.
Rather, the more empowering and animating term that Gorsuch’s textualist approach examines in Bostock is the phrase “because of.” Through Gorsuch’s interpretation, “because of” conjures the “but-for” causation test that allows for the comparator approach to showing how the firing of Gerald Bostock, Don Zarda, and Aimee Stephens all encompassed “because of sex” discrimination under Title VII. Under textualism, the broad reaches of “because of” permits the connection between the sexual orientation and/or gender identities of a person to be linked to the biological male-female binary for the purposes of finding a Title VII violation here.
In its functionalist way, Justice Gorsuch’s approach gets us to the desired result of protecting LGBTQ individuals from workplace discrimination. However, pragmatism here also decreased the ability in Bostock to explicitly reinforce the counter- or anti-stereotyping policies of Title VII that could have applied to restricting homophobia and transphobia, and bolstered the positive recognition of LGBTQ people even more. The actual legislative history behind including “sex” in Title VII is sparse (and often anecdotal) and lacking any indication to protect LGBTQ individuals in 1964. However, as William Eskridge, Cary Franklin, and others have expressed in writing about Title VII, since the 1960s, the developed interpretation and importance of Title VII protections reflect anti-stereotyping principles and policies against workplace discrimination based on biases toward one’s sex. Bostock’s interpretation of “sex” as a stable concept renders mixed results. First, to presume and declare that “sex” is a stable concept rather than one that is fluid or ambiguous was indeed an important judicial interpretative gesture for Justice Gorsuch because. This declaration foreclosed any real need for him to look at legislative history or intent behind Title VII—and in fact, it allowed him to avoid even raising the kind of exegetical discussions regarding legislative intent that Justices Alito and Kavanaugh used to support their dissenting opinions. That got us to a good doctrinal result for Title VII SOGI protections in Bostock. It even allowed Justice Gorsuch to call out the employers’ justifications for the discriminatory firings of Bostock, Zarda, and Stephens based on adherence to legislative intent as “naked policy appeals.” But the ability to not have to examine one side’s legislative history or intent arguments also allowed him to gloss over mentioning the anti-stereotyping disposition that prior Title VII cases have carved out for “because of sex” discrimination over the years—an anti-stereotyping disposition that could have bode well for the image of LGBTQ people in the workplace and beyond. Here, Justice Gorsuch was able to resist the opportunities to discuss why sexual orientation and gender identity are categories that need to be protected from discrimination in general; instead, such protections are merely a consequence in the textualist link to the category of “sex” in Title VII. That’s a squandered opportunity for publicly elevating LGBTQ individuals.
Additionally, Gorsuch’s sole textualist focus in Bostock to reach favorable results for LGBTQ workers, but overlooked any attempt for discussing the dignitary harms that the litigants in the consolidated cases suffered for being fired because of how aspects of their identities were perceived with animus by their former employers and not because of any on-the-job incompetence. We didn’t get to read about the various ways in which Bostock, Zarda, and Stephens were mistreated by their former employers, what kind of hateful ways in which their employment were terminated, and what harms they suffered as a result of losing their livelihoods all on account of targeted aspects of their identities that had nothing to do with their job competence but much to do with their personal dignity. Queering the textuality of Justice Gorsuch’s written opinion in this way, we note that much of those facts remained closeted. This missed opportunity shortens the decision’s potential to raise the significance of Title VII’s anti-stereotyping disposition for showing exactly why discriminating against one’s sexual orientation or gender identity in the workplace is nothing but an act of homophobia or transphobia—an animus that has no rational status in society. Comparing Bostock to Justice Kennedy’s pro-LGBTQ decisions, which did assert litigant facts in ways that helped the mainstream see LGBTQ individuals in a more humanized light (albeit in problematic ways sometime), we might see that again Justice Gorsuch’s opinion missed the opportunity for recognizing LGBTQ individuals similarly—for actually addressing the weight of discrimination that Justice Kennedy’s LGBTQ rights opinions often dwelled upon. Unlike Obergefell, the individual facts about each litigant, Bostock, Zarda, and Stephens, were sparse compared to Justice Kennedy’s notable renditions of representative litigant facts in the marriage equality decision. Bostock was going to accomplish LGBTQ protections by textualism and textualism alone.
Lastly, Justice Gorsuch’s reliance on textualism in Bostock also helps him evade discussing another anti-stereotyping potential as the decision drops any intertextual play with the prior pro-LGBTQ decisions. Given that these cases in Bostock were Title VII employment cases and not marriage or privacy cases, the boundaries were necessarily drawn by context. However, this decision could have celebrated more of the humanity of LGBTQ employees, and thus grasped onto the anti-stereotyping potential of Title VII by alluding to previous pro-LGBTQ cases at the Court. Instead, the one allusion toward a prior LGBTQ case that Gorsuch makes in Bostock is to the Masterpiece Cakeshop decision—not in name or citation, but by raising religious exemptions at the end of Bostock:
We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society But worries about how Title VII may intersect with religious liberties are nothing new; they even predate [Title VII’s] passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (quoting Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)
In effect, this passage in Bostock is reminiscent of Justice Gorsuch’s concurrence in Masterpiece Cakeshop: “[W]hen the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored.” In both passages from these LGBTQ cases, he carves out areas in the law that tolerates religious freedom over discriminatory practices. Incidentally, Justice Gorsuch’s concurrence in Masterpiece was replete with facts about the Christian baker that allowed him to not only draw favorable inferences to justify the baker’s discriminatory acts against the same-sex couple in Masterpiece but also imply that the treatment the baker received from the Colorado Civil Rights Commission was not respectful toward the baker’s religious beliefs—in essence, violating the baker’s personal dignity. Thus, here in Bostock, despite its textualist approach, religion is still potentially prioritized.
Still, the Bostock decision is a watershed moment for the LGBTQ community. To find that Title VII protects LGBTQ individuals is a terrific development. But as a brief queer analysis of Bostock can show, Justice Gorsuch missed several opportunities to elevate LGBTQ individuals further by underscoring the anti-stereotyping disposition of Title VII and/or the anti-stereotyping themes in prior pro-LGBTQ rights cases at the Court. That task will just have to be taken up by LGBTQ litigants and their smart advocates in future cases.
Last week, the incoming UN Special Rapporteur on Extreme Poverty, Olivier de Schutter, presented the final report of his predecessor, Philip Alston, to the UN Human Rights Council. As is his practice, Alston's report did not mince words, stating that:
"The world is at an existential crossroads involving a pandemic, a deep economic recession, devastating climate change, extreme inequality, and an uprising against racist policies. Running through all of these challenges is the longstanding neglect of extreme poverty by many governments, economists, and human rights advocates."
Alston decried the World Bank's reliance on barely minimal numeric measures to assess poverty, and criticized others in the international community for claiming progress on poverty eradication based on those measures.
"Poverty is a political choice," he concluded, "and its elimination requires: (i) reconceiving the relationship between growth and poverty elimination; (ii) tackling inequality and embracing redistribution; (iii) promoting tax justice; (iv) implementing universal social protection; (v) centering the role of government; (vi) embracing participatory governance; and (vii) adapting international poverty measurement."
In the colloquy with the Human Rights Council that followed, Professor de Schutter indicated his support of Alston's call for a multi-dimensional view of poverty.
It remains to be seen whether the new Special Rapporteur can find ways to shift the political will toward achieving true progress on poverty eradication.