Equality and Liberty

  • November 19, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University’s School of Public Affairs. He is author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror (University of Wisconsin Press, 2013). His second book, Power Without Constraint: The Post 9/11 Presidency and National Security will be published in spring 2016 by the University of Wisconsin Press.

    The terrorist attacks in Paris leave us all horrified – as do the attacks in Lebanon last week that have received less public attention worldwide. Terrorism is meant to make people afraid, and it does its job. Part of what we must do in responding to these attacks is to manage our fear and prevent it from ruling us or pushing us (or our elected officials) to make bad decisions.

    No one (except the terrorists themselves) wants to see another attack against civilians. Some elected officials and candidates for office, however, have made counterproductive statements following the Paris attacks. Sen. Ted Cruz (R-Texas) declares the U.S. should only accept Syrian refugees who are Christian, arguing that “[t]here is no meaningful risk of Christians committing acts of terror.” Jeb Bush similarly suggested that the U.S. should focus “on the Christians who have no place in Syria any more.” Bush also described the Paris attacks as “an organized attempt to destroy Western civilization.” Sen. Marco Rubio (R-Fla.) similarly described what is happening as “a clash of civilizations.” Republican presidential candidates criticized Hillary Clinton and other Democratic presidential candidates for declining to use the words “radical Islam” when discussing the fight against ISIS. Donald Trump suggested (not for the first time) that it may be necessary to consider closing some mosques in the United States (though he said he is not personally considering this – yet).

    These candidates surely want to find a way to take meaningful action to keep Americans and others safe from ISIS. (Though Sen. Cruz leveled the very troubling and baseless charge that President Obama “does not wish to defend this country.”) But many are making a serious mistake by speaking about ISIS and terrorism in ways that draw religious lines between Christians and Muslims. This is not a matter of “political correctness,” it is a matter of logic, fact and reason. Of course ISIS is Islamic. But ISIS practices a form of Islam that the vast majority of Muslims reject. In fact, ISIS has terrorized and killed many Muslims it sees as apostates. It may well serve ISIS’s purposes to describe its terrorist acts as part of a religious war: After the Paris attacks, ISIS referred to France as “the carrier of the banner of the Cross in Europe” and a leader of “the convoy of the Crusader campaign [i.e. the military campaign against ISIS in Iraq and Syria].”

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • August 20, 2015
    Guest Post

    by Michael Vargas, Associate, Rimon, PC. Vargas is programming co-chair of the Bay Area Lawyer Chapter.

    When President Obama nominated then-Georgetown law professor Chai Feldblum for a seat on the Equal Employment Opportunity Commission (EEOC) in 2009, it was clear that the former counsel to the Employment Non-Discrimination Act (ENDA) was going to shake up the Commission. As the first openly LGBT person to sit on the Commission, she did not disappoint. In 2012, the Commission announced its unanimous decision in Macy v. Holder (ATF), holding that discrimination against transgender employees was sex discrimination and actionable under Title VII. On July 16, 2015, the Commission issued an even more revolutionary decision in Complainant v. Foxx (FAA), holding that discrimination on the basis of sexual orientation is also sex discrimination and, therefore, must also be actionable under Title VII.

    In the EEOC’s decision, an unnamed complainant filed a complaint alleging that his supervisor would say things like “we don’t need to hear about that gay stuff” whenever the claimant would talk about his partner, and that he was subsequently denied a promotion. In dismissing the case, the FAA treated the complainant’s sexual orientation claim as separate from his sex discrimination claim and therefore not appealable to the EEOC.

    The EEOC summarily reversed the FAA, holding that sexual orientation was “inherently a sex-based consideration” and therefore was “necessarily an allegation of sex discrimination under Title VII.” The EEOC rested their decision on three different theories:

    First, the EEOC argued that sexual orientation necessarily involves treating employees differently because of their sex. To illustrate, the Commission gave the example of a male employee who is fired for having a picture of his husband on his desk when female employees with pictures of their husbands on their desks are not. This, the Commission declared, would be a classic case of sex discrimination.

    Second, the Commission found that sexual orientation discrimination was essentially associational discrimination, which is already recognized in the race discrimination context. If a person cannot be discriminated against because of the race of their spouse, then so too should they be protected from discrimination because of the gender of their spouse.

    Finally, the Commission recognized that discrimination against gays and lesbians is tinged with sex stereotypes, or expectations about what men or women should or should not do, which is yet another form of prohibited sex discrimination.

  • July 29, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    This week is the 25th anniversary of the Americans with Disabilities Act (ADA).  The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation.  It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities.  And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

    Both the ADA and the Americans with Disabilities Amendments Act (passed in 2008) passed with remarkable bipartisan support.  Disability has never entered the culture wars, and in many ways disability rights have transcended traditional political commitments.  But while legislative political elites in both parties have been very comfortable taking pro-disability rights positions, the public at large is less aware of and sometimes hostile to the ideals and goals of the disability rights movements.  Everyone likes and identifies with a feel good story about athletes who “overcome” disability.  But how many business owners have welcomed the idea of making physical or programmatic changes to accommodate difference?

    Although the ADA has a constitutional basis, it is primarily celebrated as a legislative success.  Lawyers and advocates who bring disability law cases are reluctant to engage constitutional law as a source of relief for people with disabilities.  And they have good reasons to be wary.  The ADA offers ample protections, moving deep into the private sphere in a way constitutional law could not.  And the doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Lawyers in the disability rights movement know how to count to five and have reasoned that the Supreme Court is an inhospitable place for equality claims generally.

    At this important milestone in the disability rights movement, I want to suggest that the next 25 years should include more of an engagement with disability constitutional law.  I take this position for several reasons.  First, there is a lot that is unclear, and potentially up for grabs, about equality law.  Cases like Windsor and Obergefell do not fit neatly into conventional tiered Equal Protection Clause analysis, instead looking at some mix of the nature of the interest protected and the legislative classification.  Simply accepting that Cleburne closed the constitutional canon on all disability claims does not sufficiently engage these evolving notions of equality.

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.