ACSBlog

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.

  • January 20, 2015

    by Caroline Cox

    At The Atlantic, Garrett Epps examines the two questions that the Court has asked the parties to brief on the same-sex marriage issue and concludes that that there is not a way to split them. He also references the recent guest post from Steve Sanders on ACSblog.

    Nina Totenberg of NPR reports on Williams-Yulee v. Florida Bar, which considers whether judicial candidates can solicit campaign money.

    Brianne Gorod continues the Constitutional Accountability Center’s series on Chief Justice John Roberts with a look at the how the Chief Justice has changed access to the Courts.

    At The Nation, Ari Berman argues that the best way to honor Dr. Martin Luther King, Jr.’s legacy is to protect voting rights.

  • January 19, 2015

    by Jeremy Leaming

    On Saturday we posted a piece by Indiana University Maurer School of Law Professor Steve Sanders regarding distinct paths the Supreme Court could take in the consolidated cases challenging states’ bans on same-sex marriage. Sanders' guest post was noted in a Jan. 18 article by The Washington Post’s Robert Barnes examining a number of thoughts on how the high court might handle the questions before it. The Atlantic contributing writer and law professor Garrett Epps also cited the Sanders' piece in a Jan. 19 article.  (For more analysis of the questions before the justices, see University of Minnesota law school professor Dale Carpenter’s commentary for The Washington Post’s “The Volokh Conspiracy” blog.)

    Today ACS Board member Paul M. Smith, a longtime Supreme Court litigator and partner at Jenner & Block, took note of the matter before the high court and looked ahead to the work remaining to stop discrimination against LGBT persons.

    Smith, whose Supreme Court victories include the landmark case Lawrence v. Texas, which invalidated as unconstitutional a state’s sodomy law, told ACSblog:

    It’s great to finally know that this Supreme Court will almost surely resolve the merits of claims for marriage equality this year. Many have commented at how quickly things have moved since the Court invalidated a key part of the Defense of Marriage Act in 2013 in the Windsor case. But that key ruling was itself the product of long years of hard work and struggle. The movement has had the advantage of being able to plan careful steps leading up to this moment – attacking the sodomy laws, seeking marriage equality under state constitutions, demanding that the federal government recognize existing marriages of same-sex couples despite DOMA, and now claiming a federal constitutional right to marriage equality. It looks as if that strategy will now be vindicated.

    The New York Times is reporting today that many Republican political operatives are pleased at the prospect of the Court taking this issue out of the political debates by resolving it before the next presidential campaign. My guess, however, is that immediately after a victory on marriage equality the focus would shift rather strongly toward the need to prohibit private discrimination against LGBT persons and the opposition of most Republicans in Congress to a federal anti-discrimination law. That could become a significant issue in the upcoming campaign.

  • January 19, 2015
    Guest Post

    by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.

    One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.”   We cannot see his eyes because they are averted from the camera.  Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.[1]

    The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964.  Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis.  An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press.[2]  The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.[3]

    We rightly celebrate and honor Dr. King as the “drum major for justice”[4] who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them –  who laid their bodies on the line so that future generations could exercise their constitutional rights.   The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act.  The frontal indignities of Jim Crow at least are gone.

    And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes,[5] racially-discriminatory annexations[6] and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength.[7]   Evidence of this adaptive discrimination carries through to the present.  For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.[8]

    Against a record of  “unremitting and ingenious defiance of the Constitution,”[9] Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights”[10] to unilaterally change their voting practices.  This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes[11] by demonstrating that they would not disfranchise minority voters.[12]  In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge,[13] as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters.[14]  In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage.[15]  While acknowledging that voting discrimination persists, [16] the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination.  In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.[17]   

    After Shelby, fifteen states enacted laws that discouraged voter participation.[18]  Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color.[19]  Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls.  The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law[20] – appears calculated to suppress minority turnout.[21]

  • January 17, 2015

    by Steve Sanders, who teaches constitutional law, constitutional litigation and family law at the Maurer School of Law, Indiana University Bloomington.   

    When the Supreme Court decided Friday to hear four marriage equality cases, it ordered briefing on two separate questions: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and “2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”  (Emphases added.) 

    By splitting the question in this way, the Court appears to be saying that marriage recognition is conceptually and doctrinally distinguishable from marriage creation. This may seem like hair-splitting – I’ll explain why it’s definitely not – but first, forgive me for indulging in a bit of “feeling vindicated” (is there a Facebook status for that?). 

    I’ve been flogging this idea – that in addition to a right to marry, there is a constitutional right to remain married, and that non-recognition of valid same-sex marriages should be seen as a distinct Due Process Clause problem – since as far back as 2008, in essays for this blog (here and here) and others (here, here, here), and in a 2012 article in the Michigan Law Review, which I titled “The Constitutional Right to (Keep Your) Same-Sex Marriage.”  (I followed up with an article last year arguing it was also time to revisit the conventional wisdom that the Full Faith and Credit Clause does not apply to interstate marriage recognition.)

    My suggestion at the time -- before anyone thought the whole issue would be at the Supreme Court this quickly -- was that nullification of existing marriages was a greater harm and more urgent question that federal courts could address to pave the way for a later right to marry.

    Initial reaction among some of my academic colleagues was skeptical. When I work-shopped the “right to remain married” paper at the University of Chicago, even the students piled on about why they didn’t buy it.  Andy Koppelman, my commentator that day, said that state courts applying choice-of-law doctrine, not federal courts doing constitutional law, should handle the recognition problem.  A couple of my old professors at Michigan Law suggested my argument was “advocacy.”

    But scholars hope to advance the law, and signs started to appear that that was happening.  The district judge in the Obergefell case (the name the Supreme Court’s opinion likely will carry, since it’s first in the cert grant) graciously credited my work in holding that Ohio had to recognize the marriage of two men who had been married in Maryland.  (Something I had written on this blog about his earlier opinion in the same case may or may not have played some role.)  Several more courts also dealt with recognition of existing marriages as a distinct issue, and the Michigan article has been cited in a number of merits and amicus briefs. Last June, the Tenth Circuit, in striking down Utah’s marriage ban, commented that “we agree with the multiple district courts that have held that the fundamental right to marry necessarily includes the right to remain married.”  

    So now, the right to remain married is before the Supreme Court, and speculation has begun about what the Court might be up to.