Equality and Liberty

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • June 28, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over.  Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards.  And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.   

    Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • June 26, 2013

    by Jeremy Leaming

    Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

    Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

    According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where ‘primary’ in its role,” Scalia fumed.

    He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

    Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

    And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

  • June 26, 2013
    Guest Post

    by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.

    The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

    Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

    Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

    Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

    Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.