Equality and Liberty

  • June 2, 2015
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Yesterday’s Supreme Court opinion in EEOC v. Abercrombie & Fitch Stores was unusually short, a mere six and one-half pages.  The Court issued a sensible ruling that ― unlike last year’s decision in Burwell v. Hobby Lobby Stores ― upheld the religious freedom of employees.

    Abercrombie & Fitch had a policy requiring its employees to maintain a certain “look.”  “Caps” were not allowed.  Samantha Elauf, a Muslim, applied for a job at an Abercrombie store.  She was apparently quite stylishly dressed, but she wore a headscarf in accordance with her faith.  Abercrombie managers refused to hire her because of the headscarf, even though they believed that the headscarf was religiously motivated.

    Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire a job applicant because of his or her religious practice, unless accommodating that practice would impose an undue burden on the employer.  Yet the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie did not violate Title VII because Elauf did not tell Abercrombie that she needed a religious accommodation.

    The Supreme Court reversed that ruling yesterday and allowed Elauf’s case to proceed.  The Court explained that when an employer knows or suspects that an employee’s practice is religiously motivated, the employer cannot deny employment because of that practice unless accommodating it would impose an undue hardship.

    The Supreme Court’s ruling is sensible, while the Tenth Circuit’s approach was eminently unfair.  There was no evidence here that Elauf knew about Abercrombie’s prohibition on “caps.”  How can a prospective employee be expected to request an accommodation if she has no idea that she might need one?

  • June 2, 2015
    Guest Post

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

    *This post is part of ACSblog’s symposium honoring the 50th anniversary of Griswold v. Connecticut.

    Fifty years ago this week, the Supreme Court held that the Constitution did not permit a state to prohibit the use of contraceptives within marriage or the provision of contraceptives to married people.  Finding a “zone of privacy created by several fundamental constitutional guarantees,” the majority concluded that the contraception bans unconstitutionally intruded on marriage, which the Court described as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”  Seven years later, in Eisenstadt v. Baird, the Court extended the constitutional right to use birth control to unmarried couples.

    By guaranteeing legal access to birth control, the Griswold decision opened the door for dramatic changes for women and for our society.  As the Supreme Court has since observed, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”  In fact, research has shown that availability of reliable birth control has been a key driver of the increases in U.S. women’s education, labor force participation, average earnings, and the narrowing in the wage gap between women and men achieved over recent decades.

    Given the profound importance of the availability of contraception to women’s health and women’s opportunities, it is notable that the Griswold majority nowhere mentioned the word “woman” or “women.”  Neither did the word “gender” or “sex” make an appearance.  And while the opinion for the Court relied on the First Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment in finding a constitutional right to be let alone and a right of intimate association that included the right to use contraception, the majority made no reference to the equality guarantee of the Fourteenth Amendment in striking down Connecticut’s birth control ban.

  • May 11, 2015
    One Mississippi, Two Mississippi
    Methodists, Murder, and the Struggle for Racial Justice in Neshoba County
    Carol V.R. George

    Carol V.R. George is research professor of history at Hobart and William Smith Colleges. Her new book, One Mississippi, Two Mississippi: Methodists, Murder, and the Struggle for Racial Justice in Neshoba County, will be released from Oxford University Press in May 2015.

    On June 21, 1964, civil rights activist Andrew Goodman sent a postcard to his parents announcing his safe arrival in Meridian, Mississippi: “This is a wonderful town… The people in this city are wonderful and our reception was very good.”  Little more than twenty-four hours later Goodman was dead. Along with his two colleagues, James Chaney and Mickey Schwerner, Goodman was shot on a dark wilderness road by a group of local Ku Klux Klan members.

    Forty-one years later, in June 2005, Edgar Ray Killen was named the architect of the conspiracy that killed these civil rights workers. This delay of over four decades to bring a measure of justice to this case—to the families of the victims as well as to those who had supported the plan to enfranchise black voters. It was powerful testimony about the nature of historical amnesia.

    Once the Voting Rights Act of 1965 provided blacks the ballot, Americans generally—not just Mississippians—readjusted their moral compass to focus on issues other than those that once motivated movement activists. All those years, Edgar Ray Killen walked the streets of Neshoba County, Mississippi, confident that the surrounding white community would never bring charges against him, because the case had gone cold, because he was growing old, because it would resurrect bad memories, but also because at some level many believed his crime was not that horrific. Goodman and Schwerner were outsiders; Chaney, too, though he was a black resident of Meridian; and they had come into Neshoba County uninvited, with plans to disrupt the way of life most white Southerners held dear. Some whispered that “it was good they were gone,” and for Killen and his supporters, that sounded like an endorsement of what he had done.

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • May 7, 2015
    A Novel
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.