ACSBlog

  • July 22, 2014

    by Ellery Weil

    At Vox, Adrianna McIntyre explains today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell, the “greatest existential threat” to the Affordable Care Act since NFIB v. Sebelius. Abbe Gluck explains at Balkinization why the opinion in Halbig “does a disservice to textualism.”

    Katie McDonough takes to Salon and discusses the case of a nurse in Florida who is suing a Tampa-area medical center for religious discrimination after they told the nurse that her objections to prescribing birth control made her ineligible for a position with their reproductive health department.

    The Associated Press reports on Arizona’s decision to appeal to the Supreme Court a recent decision by the U.S. Court of Appeals for the Ninth Circuit which prohibited the execution of an Arizona death row inmate because the state refused to disclose the lethal injection drug cocktail it planned to use.

    Naureen Shah at Al Jazeera America discusses a report by Human Rights Watch and Columbia Law School which claims that not only are the FBI’s current counterterrorism stings violating basic rights, they are targeting the wrong people, sowing distrust of the government, and failing to stop legitimate threats.

  • July 22, 2014
    Guest Post

    by Remington A. Gregg, Legislative Counsel, Human Rights Campaign

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    As we pause to commemorate the 50th anniversary of the passage of the Civil Rights Act of 1964, one of the most important pieces of legislation ever passed into law, it is a perfect time to look at the many ways it paved the way for the lesbian, gay, bisexual, and transgender (LGBT) community.  Not only did passage pave the way for additional pieces of civil rights legislation, including Title II of the Americans with Disabilities Act of 1990 and Title IX of the Education Amendments Act of 1972, but it marked a sizeable shift in the use of the commerce clause.  To LGBT movement, however, the Civil Rights Act marked the beginning of the LGBT community’s own fight for equality. 

    The long march toward LGBT equality gained momentum with Romer v. Evans in 1996, where the Supreme Court held that an amendment to the Colorado state constitution that would forbid the state or its subdivisions from extending legal protections to LGB people violated the Equal Protection Clause.  In 2003, in Lawrence v. Texas, the Supreme Court ruled affirmatively for the first time on a due process claim brought by gay claimants that LGBT people “are entitled to respect for their private lives.  The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”  And last year’s critical decision in United States v. Windsor changed the whole landscape in the LGBT community’s access to important federal benefits.   The Court held that Section 3 of the “Defense of Marriage Act,” which defined marriage as a “union between one man and one woman as husband and wife” for federal purposes, was an unconstitutional infringement on equal protection as applied to the federal government under the Due Process Clause of the Fifth Amendment.  Now, LGBT couples have access to more than 1,100 rights, benefits, and obligations previously denied to them.

    Each of these cases has served as a vital building block in the fight for equality. These successes have been paralleled with incredible legislative and administrative victories, including the repeal of “Don’t Ask, Don’t Tell,” passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and an LGBT-inclusive Violence Against Women’s Act re-authorization. And yesterday, President Barack Obama signed an important executive order.  First, it prohibits federal contractors from discriminating in employment on the basis of sexual orientation or gender identity.  Second, it protects federal employees from discrimination on the basis of gender identity.  (President Bill Clinton signed an executive order that provided protections with regard to sexual orientation.)

  • July 21, 2014
    Guest Post

    by Erwin Chemerinsky and Catherine Fisk. Chemerinsky is Dean and Distinguished Professor of Law and Fisk is the Chancellor’s Professor of law at the University of California, Irvine School of Law.

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    The fiftieth anniversary of the enactment of the Civil Rights Act of 1964 is an occasion worth celebrating. On July 2, 1964, President Lyndon Johnson signed into law the first major civil rights law adopted since the end of Reconstruction. Its provisions prohibit racial discrimination in some crucial areas of society.

    Title II forbids hotels and restaurants from discriminating based on race, ending a form of racial separation that existed throughout the United States and especially in the South.  Title VI prevents recipients of federal funds from discriminating on the basis of race, a provision that was crucial in forcing many school systems to desegregate. Title VII prohibits employment discrimination based on race, sex, or religion. Initially this was limited to private employers, but Congress quickly expanded its coverage to government entities.

    The enactment of the Civil Rights Act of 1964 was a political triumph for Lyndon Johnson. He appealed to the nation’s collective guilt over the assassination of President Kennedy and urged the enactment of the law as a tribute to the slain leader. A Southerner and a former Senate majority leader, Johnson was able to persuade opponents to end their filibuster and allow a vote in the Senate, which then joined the House of Representatives in passing the bill. Over two-thirds of the members of each house of Congress voted in favor of it.

    But what is often forgotten is that the opposition to the Act was not based solely on racism. Those who disagreed invoked the principle of freedom of association: owners of businesses should be free to do business with and employ whomever they want. The claim was that the owner of a hotel or a restaurant should be free to refuse service on any basis to anyone, including race. Similarly, the argument was that employers should be able to choose who they want to associate with in the workplace. Thus, opponents of the Act claimed that owners should be free to use their property however they want and it was wrong for the federal government to restrict their choices by prohibiting discrimination.

  • July 21, 2014

    by Ellery Weil

    Amy Lieberman at Slate writes on mounting protests against immigration checkpoints in Arizona..

    In  The Atlantic, Molly Ball argues that Burwell v. Hobby Lobby Stores, Inc. is a major setback for both the political left and the gay rights movement.

    The Human Rights Campaign Blog discusses President Obama’s historic executive order, signed this morning, barring employment discrimination against the LGBT community.

    At Public Justice, Adrian Alvarez discusses the upcoming Supreme Court case of Young v. United Parcel Services, and what it means for the future of pregnancy discrimination laws.

    ACS sends its deepest condolences to the family of Florida State University School of Law Professor, and founder of PrawfsBlog, Dan Markel, who was shot and killed Friday morning.

  • July 21, 2014

    by Paul Guequierre

    LGBT federal employees and employees of federal contractors can breathe a sigh of relief today, as President Obama signed an executive order barring discrimination on the basis of sexual orientation and gender identity by companies that contract with the federal government and adding gender identity to the existing executive order banning discrimination based on sexual orientation for federal employees. According to the Human Rights Campaign, in the executive order he signed, President Obama explicitly protects transgender federal employees from workplace discrimination by amending an order issued by President Bill Clinton banning sexual orientation discrimination within the federal workforce. In a second order, President Obama will set strong new standards for federal contractors, which employ 20 percent of the American workforce. In so doing, the Obama administration has guaranteed that 14 million more American workers will be protected from discrimination on the basis of sexual orientation or gender identity.

    During his campaign President Obama vowed to sign the executive order, but has spent much of the past few years instead pushing for Congress to pass the Employment Non-Discrimination Act (ENDA), which would make it illegal for all employers to fire or refuse to hire someone based on their sexual orientation or gender identity. In a historic vote, the United States Senate passed ENDA, but its chances of success in the house are slim with an anti-equality leadership.

    Currently only a handful of states offer anti-discrimination protections for LGBT workers. In 29 states a worker can be fired for the sole reason of being gay or bisexual. In 32 states, there is no explicit law banning discrimination based on gender identity.

    Of note, today’s executive order does not include new religious exemption language, relieving the concern of LGBT rights advocates. Last week, 54 law professors from across the country, including several ACS members and contributors penned a letter to President Obama urging him not to cave under pressure from anti-equality conservatives by including religious exemption language in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors.

    President Obama’s signing of the executive order adds to the long list of victories for equality that the LGBT community has been celebrating over the last several years, and in particular since last year’s landmark Supreme Court decisions striking down Section 3 of the Defense of Marriage Act (DOMA) and putting an end to California’s Prop. 8.