ACSBlog

  • May 6, 2015
    Guest Post

    by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal

    As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

    A victory in Obergefell would be transformative. Our 

    struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

    However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

    As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).

  • May 6, 2015

    by Caroline Cox

    In The AtlanticDavid A. Graham considers whether Marilyn Mosby, the Baltimore City state's attorney, can win the case against the six officers accused of killing Freddie Gray

    At SalonJenny Kutner ​writes that the Texas Senate recently approved a bill that would provide abortion coverage only for "medical emergencies" and does not include any exceptions for rape or incest. 

    Jess Bravin reports in The Wall Street Journal that three senators along with retired Supreme Court Justice John Paul Stevens are urging President Obama to release more Guantanamo prisoners.  

    At The Washingotn BladeChris Johnson considers what will happen if the Supreme Court rules against marriage equality and quotes Sarah Warbelow, legal director for the Human Rights Campaign, from the ACS panel discussion on the same-sex marriage cases. 

    The Editorial Board of The Nation argue that "accountability and justice should mean an end to both abusive policing and the secret drone program, which only create more terror."  

    At the New Republic​Spencer Woodman ​discusses how attempts to register minority voters in Georgia resulted in criminal investigations and threats of jail time. 

     
  • May 5, 2015
    Guest Post

    by Burt Neuborne, Norman Dorsen Professor of Civil Liberties at NYU School of Law.  His most recent book, “Madison’s Music: On Reading the First Amendment” (The New Press 2015), argues that effective campaign finance regulation is fully consistent with the First Amendment.

    Florida’s ban on personal solicitation of campaign funds by candidates for judicial office recently survived a free speech challenge because, in Chief Justice Roberts’ words, “judges are not politicians.”  I fear, however, that the chief justice’s bright-line distinction between “judges” and “politicians” understates the need for independent judgment by “politicians” and overstates the “political” neutrality of judges.

    Judges, especially elected judges, exercise “political” power. Does anyone doubt, for example, that the Supreme Court is exercising “political” power in the gay marriage cases? The chief justice is surely right, though, in recognizing that continued faith in our politically powerful judiciary turns on public confidence that elected judges are not merely engaged in advancing the narrow interests of powerful constituents or financial supporters.  That’s why the Williams-Yulee decision is correct. But the same may be said about faith in democracy itself. Legislators and executive officials cannot – and should not ‒ behave just like impartial judges. They should have close ties to the people who elected them. Their votes and official actions should generally reflect the self-interested preferences of their supporters.  But, as Edmund Burke taught us in his 1774 Address to the Electors of Bristol, there are important occasions in the life of a democracy when even a “politician” with close ties to her constituents should enjoy the appearance and reality of exercising independent judgment free from pressure by financial supporters. Chief Justice Roberts’ bright-line distinction between judges and “politicians” preserves an elected judge’s capacity for such Burkean independence, but obliterates it for legislators and executive officials.

    Instead of relying on a tyranny of labels, the Williams-Yulee opinion should trigger discussion of how best to free “politicians” as well as elected judges from the appearance and reality of excessive financial thralldom to their large financial supporters. Maybe then we can begin to rebuild faith in our democracy; hold real elections, not auctions; and insist that our “politicians” occasionally think for themselves.

  • May 5, 2015
    Guest Post

    by Bill Lurye, General Counsel, and Matt Stark Blumin, Associate General Counsel, at American Federation of State County and Municipal Employees (AFSCME)

    On February 9, less than a month into his first term as governor of Illinois, Bruce Rauner issued an executive order barring state employee unions from collecting fair share fees, thus unilaterally transforming Illinois into a right-to-work state for state employees.  He justified this extreme act by arguing that, in his opinion – though contrary to Supreme Court precedent dating to 1977 – such fees violate the First Amendment.  Rauner’s anti-union executive order is a blatantly illegal power grab, and unions have filed suit to overturn it.

    As is the case in many states, Illinois’ public sector labor relations statute expressly authorizes collective bargaining agreements allowing unions to collect fair share fees, and over 40,000 state employees are covered by collective bargaining agreements (CBAs) that include fair share fee provisions.  Yet, despite strong separation of powers language in the Illinois Constitution that prevents him from legislating, Governor Rauner has declared that he will not turn over any of the contractually owed fair share fees to unions, no matter what the duly enacted state labor law statute says.

    First, some background on fair share fees in Illinois.  Just like a private sector union under the National Labor Relations Act (NLRA), a public sector union under Illinois law is required to represent every employee in a unionized bargaining unit whether or not the employee is a member of the union.  This means that the unions have to do lots of costly work on behalf of nonmembers, like negotiating the CBA fairly on the nonmembers’ behalf and handling any grievances they have.  Fair share fees represent the cost to the union of providing those services to nonmembers, and nothing more.  (Members who pay full union dues additionally fund other work by the union, such as lobbying or political donations, that fair share fees don’t cover.)  As even Justice Scalia has recognized in his concurrence in Lehnert v. Ferris Faculty Association, fair share fees “allow the cost of . . . the union’s statutory duties to be fairly distributed; they compensate the union for benefits which ‘necessarily’ – that is, by law – accrue to the nonmembers.”

  • May 5, 2015

    by Caroline Cox

    At SlateDahlia Lithwick hosts a podcast exploring the oral arguments in Obergefell v. Hodges and interviews Douglas Hallward-Driemeier, one of the three lawyers who argued for marriage equality.

    Jeff Clements writes at The Hill about the liberal law professors who oppose a 28th Amendment to the Constitution that would overturn Citizens United

    At The American ProspectLincoln Caplan profiles Justice Elena Kagan, arguing that her work has expanded the role of a Supreme Court justice. 

    In The Washington PostRobert Barnes discusses how Chief Justice John Roberts is the Supreme Court's "most scrutinized player" as the public waits for the Court rule on several high profile cases. 

    Brad Lander and Karl Kumodzi consider at The Nation how funding problems in cities are exacerbating racial and economic inequality.