Supreme Court

  • June 19, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

    Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

    The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

    The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

    It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.

  • June 8, 2015
    Guest Post

    by Nancy Northup, President and CEO, Center for Reproductive Rights

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

    Fifty years ago yesterday, the United States Supreme Court issued a ruling that forever changed the legal landscape of our right to plan our families and make private decisions that are fundamental to our lives.  The 1965 case, Griswold v. Connecticut, found that married couples have a constitutional right to obtain and use birth control when planning their families, free from antiquated laws that criminalized their doctors and prevented them from making personal decisions about when and whether to have children.

    Griswold’s recognition of a constitutional right to privacy was a first step towards the Court’s subsequent decisions in Planned Parenthood v. Casey and Lawrence v. Texas, which found the right to liberty under the Fourteenth Amendment protects a broad set of liberty rights ― including the rights to bodily integrity, family decision making, and personal dignity and autonomy ― as well as privacy.

    But the story does not end there.  Far too many American women still face an uphill battle when trying to plan their families ― including efforts by politicians to choke off women’s access to emergency contraception and defund family planning clinics which provide low or no cost birth control.

    Political hurdles such as these are especially high for women living in poor, rural, and immigrant communities ― where access to any health care services can be sparse and the cost of contraception could mean the difference between making the rent and putting food on the table.  And when women don’t have access to reproductive health care, the impact is clear: Nearly half of all pregnancies in the U.S. are unintended or mistimed ― one of the highest amongst developed nations in the world.

  • June 5, 2015
    Guest Post

    by Sarah Lipton-Lubet, Director of Reproductive Health Programs, National Partnership for Women & Families

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

    On Sunday, I’m getting married.  As I prepare for this milestone and draft my vows, I’m thinking about our life together and the family we might someday create.  About the promises we’ll make to support each other through life’s twists and turns.  And about our partnership in decision making and family life.

    In this moment, my mind turns to Griswold v. Connecticut, the 1965 U.S. Supreme Court decision first protecting the right of married couples to access contraception, which will mark its 50th anniversary on the day of my wedding.

    These two events are inextricably linked – and not only because I’m a reproductive rights advocate.  Griswold is foundational to my equality in our upcoming marriage.  It guarantees my ability to pursue my chosen career (law) the same way that my fiancé pursues his (medicine).  Griswold allows my career to be valued in our relationship and ensures that our joint decisions will further our professional choices.  And it enabled us to spend the last 3 1/2 years in a wonderful romance exploring the potential of a life together – without being forced into parenthood before we are ready.

    Griswold makes my marriage possible because it makes my life possible.  Professors Reva Siegel and Neil Siegel have described Griswold as “offer[ing] women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would decide in the next decade – perhaps even more so.”  The Connecticut ban at issue in Griswold prohibited “[a]ny person” from “us[ing] any drug, medicinal article or instrument for the purpose of preventing conception.”  This denied women control over their reproductive lives, affecting their ability to obtain an education, pursue their careers, become financially stable, and follow their dreams.  As the U.S. Supreme Court put it three decades later in Planned Parenthood v. Casey, “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.”

  • June 4, 2015
    Guest Post

    by Jill Adams, Executive Director, Center on Reproductive Rights and Justice, University of California, Berkeley School of Law

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

    When it comes to our most intimate experiences and decisions, the right to privacy should arm the many, not just shield the few who can afford to pay for it.  We’ve learned in the years since Griswold v. Connecticut that privacy is not a panacea for the fulfillment of all people’s sexual and reproductive rights.  The right to privacy has not granted secure and reliable respect for decisions we make in our bedrooms and about our bodies.  This is especially disappointing in a country that places such a legal and cultural premium on matters of autonomy and individualism – particularly in the private sphere.

    Cast in the mold of Griswold’s privacy-based right to use contraception, the right to choose abortion declared in Roe v. Wade similarly presents an important avenue but imperfect vehicle for everyone’s guaranteed arrival at reproductive self-determination.  Courts have allowed the proliferation of countless contractions, exemptions, and restrictions on the rights to abortion and contraception, siphoning power out of the hands of individuals wishing to exercise their reproductive rights and into the hands of states, corporations, and institutions wishing to constrain or control them.

    Is privacy really a “right” if you can’t afford to exercise it?
    The abstract right to use reproductive health services  free from governmental interference rings hollow without the necessary, enabling conditions to ensure access to such services and the ability to make decisions about them free from coercion by person, system, or circumstance.  For low-income people, and other marginalized populations, the right to privacy may merely be a right on paper if it is not a right they can actually afford to exercise.
  • June 3, 2015
    Guest Post

    by Anthony S. Winer, Professor of Law, William Mitchell College of Law

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

    Griswold v. Connecticut is justly celebrated for discerning the constitutional right to privacy, and thus constitutional protection for reproductive freedom.  It not only protected access to contraceptives, but also provided the foundation for the later cases constitutionally protecting access to abortion.  Moreover, Griswold helped instill constitutional respect for the broader concerns of “marriage, procreation, and family relationships,” and ultimately for the even broader concern of “personal dignity and autonomy.”

    However, where the privacy and personal autonomy of LGBT people are concerned, the legacy of Griswold is more nuanced.  Doctrinal developments following Griswold constrained gay rights in some respects, and in some respects fortified them.  And the way in which the Supreme Court has been treating LGBT rights recently may presage salutary changes to come.

    The most negative aspect of the Griswold legacy for LGBT people is that it did nothing to forestall the disaster of Bowers v. Hardwick.  This was the 1986 case in which the Supreme Court held that Georgia’s anti-sodomy law did not protect sexual relations between two men (nor presumably between two women).  When Bowers was decided, Griswold was already 21 years old, and Roe v. Wade had already passed its thirteenth anniversary.  Cases applying the right to privacy were not in short supply, but the Court majority could not bring itself to allow lesbians and gay men to share in the newly discerned freedoms.  There was no principled reason for Bowers to come out differently from the contraception or abortion cases.  Bowers seemed to create a “special case,” perhaps founded on homophobia, excluding lesbian and gay rights from the zone of privacy that protected others.