by Alan E. Brownstein, Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law
Massachusetts law creates a 35 foot buffer zone around the entrances of clinics that provide abortion services. As written and applied, the law prohibits even a single individual standing on a public sidewalk near a clinic’s entrance from calmly trying to counsel women against having an abortion. During last week’s oral argument in McCullen v. Coakley, many Justices appeared to be convinced that a regulation prohibiting such seemingly quiet and persuasive speech violated the First Amendment.
Massachusetts argued the law was a permissible content-neutral attempt to eliminate congestion preventing people from safely entering and leaving clinics. The regulation satisfied intermediate level scrutiny, the appropriate standard of review, because the law served an important state interest, allowed adequate alternative avenues of communication, and did not ignore less restrictive alternatives – that is, the law did not burden substantially more speech than necessary to further its purposes.
The Court seemed unconvinced. Several Justices returned repeatedly to a single inquiry: If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing. Even Justice Kagan, who seemed somewhat sympathetic to the state’s position, suggested the 35 foot size of the buffer zone was problematic.
Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
“We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago. “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”
The U.S. Supreme Court in Harris v. Quinn may not overturn precedent, seriously disrupting public employee unions, but such a possibility was “at least on the table” during today’s oral argument in the case.
In an argument recap, SCOTUSblog’s Lyle Denniston reported that “atmospherics” of today’s oral argument “suggested strongly that this case has very large potential.”
The case involves Illinois recognizing a single union for its home health care workers. Health care workers are not forced to join the union (in this case SEIU), but all members are required to pay fees for the union to engage in collective bargaining. A few state health care workers represented by an anti-union outfit called the National Right to Work Legal Defense Foundation are challenging that practice embodied in the National Labor Relations Act and supported by high court precedent.
Defending precedent on public employee unions was U.S. Solicitor General Donald B. Verrilli, Jr., who Denniston reported, “talked as if he, too, perceived the case to be a severe test of public worker collective bargaining.”
Nearing end of oral argument, Verrilli urged the justices to uphold its 1977 precedent set in the case Abood v. Detroit Board of Education. That case has stood “for forty years, and is entirely consistent with the First Amendment jurisprudence regarding the government as employer,” he said.
If the high court were to upset precedent and decide, “You can’t have an exclusive representative union, that would be a stake in the heart of not just unions in the public sector but all unions,” Smith told NPR.
The United States Supreme Court will soon hear oral argument in Harris v. Quinn, concerning the rights and responsibilities of unionized home healthcare workers in Illinois. Others have already spoken well on the subject in this ACSblog series. And it seems to me that this case, flying under the legal radar until it is heard, is poised to let activist conservative justices undo the legal solidarity fabric that undergirds American labor relations.
I’ve been a union and workers’ lawyer for more than twenty-five years. I’ve represented construction and heavy-industry workers, the backbone of the traditional labor movement. I’ve represented some white-collar employees. But for most of my career, I’ve been by the side of so-called low-skilled, low-wage workers- retail clerks, meatpackers, healthcare aides- people who do hard, dirty, and dangerous duties that many won’t touch. Maybe, like me, you used to do manual labor, but now you use your eyes, fingers and creativity on the job much more than your back and knees. If so look at this issue through your memories and through the eyes of those who do truly hard work for very little.
The kernel of the Harris issue is workers paying for union services. Since there’s a lot of misinformation about union membership, union security and union participation, a little background is needed. No one has to become a member of a labor union: that’s your First Amendment right. If you don’t want to join, you don’t have to. In southern and western states (and now Midwestern states like Michigan and Indiana), the nearly half of America that is “right-to-work,” you can work in a union shop and get union benefits and services for free. But, in the rest of the country, if your workplace has a union and a contract with a union security clause, you have to pay an amount roughly equivalent to union dues to work there. You don’t have to join, you don’t have to agree, you don’t have to go to meetings, you don’t have to participate. But paying for union services isn’t optional.
This week saw a flurry of action on the judicial nominations front.
On Monday, January 13, the Senate confirmed Robert Wilkins to the D.C. Circuit with a vote of 55-43. With his confirmation, the D.C. Circuit is fully staffed for the first time since 1991.
On Thursday, January 16, the Senate Judiciary Committee held votes on 29 nominees, including nine nominees who had already been reported out last year. All 29 nominees were voted out of Committee, including several with connections to ACS’s network. No votes by the full Senate have been set. Quick action, however, could cut the judicial vacancy rate by one-third. The nominees voted out of Committee are:
Carolyn B. McHugh, Tenth Circuit, Voice Vote
John B. Owens, Ninth Circuit, Voice Vote
Michelle T. Friedland, Ninth Circuit, Roll Call Vote, 14-3
Nancy L. Moritz, Tenth Circuit, Voice Vote
David Jeremiah Barron, First Circuit, Call Vote, 10-8
Jeffrey Alker Meyer, District of Connecticut, Voice Vote
Timothy L. Brooks, Western District of Arkansas, Voice Vote
James Donato, Northern District of California, Voice Vote
Beth Labson Freeman, Northern District of California, Voice Vote
Pedro A. Delgado Hernandez, District of Puerto Rico, Voice Vote
Pamela L. Reeves, Eastern District of Tennessee, Voice Vote
Vince Girdhari Chhabria, Northern District of California, Roll Call Vote, 13-5
James Maxwell Moody, Jr., Eastern District of Kansas, Vote
Matthew Frederick Leitman, Eastern District of Michigan, Voice Vote
Judith Ellen Levy, Eastern District of Michigan, Voice Vote
Laurie J. Michelson, Eastern District of Michigan, Voice Vote
Linda Vivienne Parker, Eastern District of Michigan, Roll Call Vote, 14-3
Christopher Reid Cooper, District of Columbia, Voice Vote
M. Douglas Harpool, Eastern District of Pennsylvania, Voice Vote
Gerald Austin McHugh, Jr., Eastern District of Pennsylvania, Roll Call Vote, 12-5
Edward G. Smith, Eastern District of Pennsylvania, Voice Vote
Sheryl H. Lipman, Western District of Tennessee, Voice Vote
Stanley Allen Bastian, Eastern District of Washington, Voice Vote
Manish S. Shah, Northern District of Illinois, Voice Vote
Daniel D. Crabtree, District of Kansas, Voice Vote
Cynthia Ann Bashant, Southern District California, Voice Vote
Jon David Levy, District of Maine, Roll Call Vote, 15-2
Theodore David Chuang, District of Maryland, Roll Call Vote, 10-8
George Jarrod Hazel, District of Maryland, Voice Vote