September 2011

  • September 30, 2011

    In response to mounting pressure to end obstruction of judicial nominations, the Senate announced an agreement this week to schedule votes on ten nominees. The deal leaves 17 pending nominees behind, seven of which are considered judicial emergencies, and four of which have been waiting since the 111th Congress. As part of the deal, the Senate will vote Oct. 3 on Fourth Circuit nominee Henry Floyd, and will confirm by unanimous consent district court nominees Nannette Jolivette Brown, Nandy Torresen, William Francis Kuntz, Marina Garcia Marmolejo and Jennifer Guerin Zipps. Sometime on or after Oct. 11, the Senate will vote on another four district court nominees: Alison Nathan, Katherine Forrest, Jane Margaret Triche-Milazzo and Susan Owens Hickey.

    The Senate Judiciary Committee has scheduled a hearing with U.S. Supreme Court Justices Stephen Breyer and Antonin Scalia entitled “Considering the Role of Judges Under the Constitution of the United States” for Wednesday, October 5 at 2:30 p.m. The hearing will be webcast live online on the Senate Judiciary Committee’s website

    An Issue Brief released by the Center for American Progress reveals that two-thirds of the country’s population are living in a jurisdiction that has been declared a judicial emergency “meaning that in courtrooms across the country there aren’t enough judges to hear the cases that are piling up.” Authors Andrew Blotky and April Carson explain:

  • September 30, 2011

    by Jeremy Leaming

    The NFL, as noted earlier this week by The Huffington Post’s Amanda Terkel, included in its current collective bargaining agreement a clause prohibiting discrimination based on sexual orientation.

    The provision states, in part, “There will be no discrimination in any form against any player by the Management Council, any Club or by the NFLPA [NFL Players Association] because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.”

    Terkel notes that there “are no openly gay professional sports players in football, basketball, baseball or hockey,” and that the NFL “has received some criticism” for not participating in a national effort to help LGBT youth who suffer from bullying because of their sexual orientation.

    She did note that some NFL players, such as the Baltimore Ravens’ Brendon Ayanbadejo, have spoken in support of LGBT equality.

    In an article for The Huffington Post, Ayanbadejo defended marriage quality. First he noted the lameness of the religious-based argument against marriage equality primarily that a divinity does not approve of same-sex marriages. “First and foremost,” Ayanbadejo wrote, “church and state are supposed to be completely separated when it comes to the rule of law in the Unites States. So the religious argument that God meant for only one man and woman to be together has no bearing here!”

    He concluded, “Maybe I am a man ahead of my time. However, looking at the former restrictions on human rights in our country starting with slavery, women not being able to vote, blacks being counted as two thirds of a human, segregation, no gays in the military (to list a few) all have gone by the wayside. But now here in 2009 same sex marriages are prohibited. I think we will look back in 10, 20, 30 years and be amazed that gays and lesbians did not have the same rights as everyone else.”  

    Maybe the only thing surprising about the NFL’s support of a measure prohibiting discrimination based on sexual orientation is that it took so long for the league to adopt it. This is the professional sports league that in 2002 adopted the Rooney Rule, which requires NFL teams to interview diverse candidates, including at least one African American, for head coaching positions.

    In an ACS Issue Brief, Douglas C. Proxmire, a partner at Patton Boggs LLP, noted the positive impact the Rooney Rule has had on diversifying the NFL’s coaching ranks. But Proxmire also wrote that the Rule should be expanded to additional NFL positions, and that other professional sports leagues should also adopt similar policies.

  • September 29, 2011

    by Jeremy Leaming

    When Gov. Andrew Cuomo signed a marriage equality measure into law this summer it included language allowing religious institutions and other nonprofits to refuse to wed same-sex couples, but did not include an out for public officials, such as town clerks.

    But as The New York Times recently noted the town clerk in Ledyard, N.Y. is refusing to issue same-sex marriage licenses, citing evangelical Christianity as a bar against performing her official duties.

    “For me to participate in the same-sex marriage application process I don’t feel is right,” Rose Marie Belforti told The Times. “God doesn’t want me to do this, so I can’t do what God doesn’t want me to do, just like I can’t steal, or any of the other things that God doesn’t want me to do.”

    Belforti’s refusal to issue a marriage license to Deirdre DiBiaggio and Katie Carmichael, however, did not set well with the couple of ten years, who told the newspaper they were not going to let the discrimination stand.

    The national civil liberties group, People For the American Way Foundation, and the New York law firm, Proskauer Rose LLP have lodged a letter with Ledyard town officials calling on them to force Belforti to start issuing marriage licenses pursuant to the state’s Marriage Equality Act, or resign her position.

    The letter states, in part, “Ms. Belfoti is no longer issuing any marriage licenses – an essential duty of her elected office – at the town’s direction, or, at a minimum, with the town’s acquiescence. The actions of both Ms. Belforti and the town are in violation of New York law.”

  • September 29, 2011
    Taking Liberties
    The War on Terror and the Erosion of American Democracy
    Susan N. Herman

    By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School

    The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.  

    The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done. 

    For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.  

    Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.    

    Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.

  • September 29, 2011
    Guest Post

    By Wendy Kaminer, author, lawyer and civil libertarian. Ms. Kaminer is the author of I’m Dysfunctional, You’re Dysfunctional, and was awarded a Guggenheim Fellowship in 1993. This post was first published at the  

    Religious institutions can sidestep workplace discrimination laws when it comes to hiring and firing clergy. But what about more secular employees, such as teachers and office administrators?

    Religious organizations enjoy essential and generally uncontested immunity from anti-discrimination laws in hiring and firing clergy according to religious doctrine: The Catholic Church isn't liable for refusing to ordain women anymore than a Church of White Supremacy would be liable for refusing to ordain blacks. But the scope of this exemption from employment laws, known as the "ministerial exception," is hotly contested. Does it automatically apply to employees other than clergy -- to parochial school teachers or administrators and others that religious employers might describe as important religious functionaries? That question is before the Supreme Court this term in Hosanna-Tabor v EEOC, scheduled for argument on October 5th.

    The legal context for this case is a recurrent conflict between the constitutionally protected autonomy of religious institutions and their obligation to comply with generally applicable secular laws, enacted in the interests of general public welfare and, in this case, equal employment rights. The Supreme Court has addressed this conflict before: in Boerne v Flores, it struck down federal legislation effectively expanding religious exemptions from federal, state, and local laws. In Employment Division v Smith (the case that gave rise to the law at issue in Boerne), the Court held that Native Americans who ingested peyote sacramentally were not exempt from state drug laws (and could, therefore, be denied unemployment benefits when fired for using peyote.)

    But Smith addressed individual practices associated with a minority faith (practices criminalized and demonized by the war on drugs.) Hosanna-Tabor involves the governance of mainstream religious institutions. Whether and how much that factual distinction matters will help determine the scope of the "ministerial exception" and the rights of hundreds of thousands of employees in religious organizations, especially Cheryl Perich, a former teacher at Hosanna-Tabor Evangelical Lutheran Church and School.