ACSBlog

  • March 29, 2015
    Guest Post

    by Steve Sanders. Professor Sanders teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.

    Technically, there was little if anything in what Gov. Mike Pence said about Indiana’s Religious Freedom Restoration Act in his ABC News interview Sunday morning that was factually false.  But much of what he said was materially misleading, due to his desperation to stay on message and to obfuscate.  To understand this crisis for the Pence administration and Indiana, it’s necessary to separate the law of the RIFRA from its politics. 

    Governor Pence (pictured) was correct that there has been a lot of misinformation about the RIFRA.  The blame lies with both its opponents and its proponents, as well as the media.  Contrary to what many progressive opponents have asserted, explicitly or implicitly, the bill does not create an immediate license to freely discriminate against gays and lesbians.  Nothing in the bill expressly refers to gays or civil rights laws.  And so some opponents of the law have done a disservice to reasoned and accurate public discourse.

    How does the law actually work?  Keep in mind that given the toxic politics that now surround the measure, no large, PR-sensitive business enterprise in its right mind would use it to turn away gay customers or employees.  But imagine a small business owner does so, claiming that associating with gay people violates his religious beliefs. 

    First, the affected victim of discrimination would need to file a civil rights complaint – assuming that he or she lives in one of the dozen or so Indiana cities, such as Indianapolis, where civil rights ordinances actually protect sexual orientation.  (In the rest of the state, such discrimination is perfectly legal right now, and Pence wants to do nothing to change that.)

    As the next step, the business owner would go to court, invoking the RIFRA and seeking an exemption from compliance with the civil rights ordinance.  This is the RIFRA’s central purpose: to force the government to convince a court that a challenged law – any challenged law – is “narrowly tailored” to serve a “compelling” government interest (as opposed to the First Amendment baseline of a rational relationship to a legitimate government interest) when the law is alleged to infringe someone’s exercise of religion.  My colleague Daniel Conkle, an expert on RIFRAs, believes it is likely that a gay non-discrimination ordinance would pass this test, and I respect his judgment.  And so in the end, the religious business owner might not actually get a pass from complying with the civil rights ordinance. 

    So why all the fuss?  Setting aside the problem that some religious business owners will now think they have a green light to discriminate, the real problem with Indiana’s RIFRA has been less about its substance than its politics – specifically, the motivations of some of its most ardent proponents. 

  • March 27, 2015
    Guest Post

    by Emily J.Martin, National Women’s Law Center

    On Wednesday, the Supreme Court delivered an important victory for pregnant workers, when in a 6-3 ruling it revived Peggy Young’s pregnancy discrimination case against UPS and sent it back to the lower courts for further proceedings.  In so ruling, the Supreme Court declined UPS’s invitation to read a key piece of the Pregnancy Discrimination Act completely out of the statute books.  This decision should put employers on notice that when they exclude pregnant workers with medical needs from accommodations that they make for workers with disabilities or injuries, they do so at their legal peril.  Nevertheless, the Court’s decision also requires a somewhat unpredictable and fact-intensive analysis of these sorts of pregnancy discrimination claims.  As a result, individual pregnant women may still face real uncertainty as to their workplace rights, and individual employers may choose to take their chances in litigation rather than promptly providing accommodations to women who need them.  Congress should act now to affirm and strengthen this decision, to ensure that no pregnant woman is forced to choose between her job and the health of her pregnancy.

    Peggy Young’s case arose more than seven years ago, when she became pregnant while working as a UPS driver.  Her doctor recommended that she avoid lifting more than 20 pounds during her pregnancy.  When UPS learned of this restriction, it refused to let her continue to do her job, even though in fact she only rarely did any heavy lifting.  UPS also refused to give her a light duty assignment, even though it provided such accommodations to drivers with on-the-job injuries, drivers with disabilities as defined in the Americans with Disabilities Act, and drivers who had lost their commercial driver’s licenses for health reasons or other reasons—including DUI convictions.  As a result, Peggy Young was forced onto unpaid leave for the duration of her pregnancy, and lost her UPS-provided health insurance.  She sued, arguing that UPS had violated the Pregnancy Discrimination Act (PDA) when it refused to provide her the same sorts of accommodations it provided to others.  But despite the clear language of the PDA requiring employers to treat pregnant workers the same as those “similar in ability or inability to work,” she lost in the lower courts, which held that UPS’s accommodation rules were “pregnancy blind” and thus did not violate the law.

  • March 27, 2015
    Guest Post

    by Nkechi Taifa, Senior Policy Analyst at Open Society Foundations

    I have spent over 25 years working on criminal justice reform issues and the recent Bipartisan Summit on Criminal Justice Reform, co-hosted by an unlikely alliance of Van Jones, Newt Gingrich, Donna Brazile and Pat Nolan, was absolutely colossal. Who would have imagined that a huge hotel ballroom would be packed as early as 8:00 a.m. with federal and local legislators, high administration officials, policy experts, criminologists, researchers, faith leaders, academicians, formerly incarcerated people and millennials – all from both sides of the aisle? The event was an ambitious undertaking – a full day jam-packed with featured presentations, panel workshops, video presentations, and luncheon keynote conversations, with U.S. Attorney General Eric Holder, Secretary of Labor Tom Perez, and Georgia Governor Nathan Deal all sharing their words of wisdom on criminal justice reform. Democratic Members of Congress spoke at the Summit in person, and Republican Members, along with President Barak Obama, made remarks via video. 

    As I sat in the audience, I reflected that criminal justice was no longer the lightening rod it was two decades ago, thanks to a more recent, huge paradigm shift.  Twenty years ago, Republicans and Democrats alike were horrible on criminal justice issues.  Candidate Bill Clinton left the campaign trail to oversee the execution of a mentally challenged man in Arkansas. Every year or so during the early 90s we fought against unwieldy omnibus crime bills, culminating in the “granddaddy” of all the crime bills – the Violent Crime Control and Safe Streets Act of 1994.  This bill expanded the federal death penalty to a level unprecedented in modern times, gutted habeas corpus reform, eviscerated the exclusionary rule, allowed for the prosecutions of 13-year olds as adults, and refused to address the crack/powder sentencing disparity, while implementing a slew of additional mandatory minimum sentences and offering monetary incentives to states to lock up more and more people for longer periods of time in exchange for loads of money to build more prisons. 

  • March 27, 2015

    by Caroline Cox

    On Thursday, the White House announced two new United States District Court judge nominations. John Michael Vazquez is a nominee for the United States District Court for the District of New Jersey and Paula Xinis is a nominee for the United States District Court for the District of Maryland.

    The Judicial Crisis Network may not be well known, but their money works to help elect the judicial, legal officers, and senators who will approve future nominees. The Daily Beast profiles the organization and how it is using dark money and advertising to impact the U.S. courts system.

    As the Senate takes its time with judicial nominations, Senators continue to debate the future of the filibuster. Support for the filibuster has steadily eroded, and it looks likely that it will be “eliminated or seriously curtailed in the near future” according to Vox.

    Senate delays on President Obama’s nominees are setting new records, reports The Washington Post. Loretta Lynch’s nomination is set to break records, and delays on judicial nominations are following a similar trajectory.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 16 pending nominees. For more information see judicialnominations.org.

  • March 27, 2015

    by Caroline Cox

    In the Huffington Post, Geoffrey Stone takes a look at the Texas license plate case and the intriguing First Amendment question it poses.

    The Editorial Board of the Los Angeles Times argues that the Supreme Court must protect the EPA’s authority to set new limits on pollutants.

    Sam Stein of the Huffington Post discusses how those challenging the Affordable Care Act at the Supreme Court lack any significant paper-trail to support their claims.

    In USA Today, Richard Wolf argues that the Supreme Court has increased its power significantly over the last three years.

     

    Greg Stohr of Bloomberg News reports that the recent Supreme Court ruling on Alabama redistricting is a partial victory for Democrats and black lawmakers.