April 2011

  • April 28, 2011
    Guest Post

    By Emily Hecht-McGowan, Director of Public Policy, Family Equality Council

    In a stunning reversal of both the district and appellate court rulings in Adar v Smith, the U.S. Court of Appeals for the 5th Circuit sitting en banc found that the refusal of the Louisiana state registrar to issue an amended birth certificate to a child adopted by a gay couple did not violate the Full Faith and Credit clause of the U.S. Constitution.

    Parents Oren Adar and Mickey Smith’s (no relation to the state registrar also named Smith) child was born in Louisiana and adopted jointly by the two men in New York. Although Louisiana state law requires the registrar to issue a new birth certificate upon receipt of a valid adoption decree, the registrar refused to do so in this case on the ground that Louisiana state law prohibits adoption by unmarried couples. Adar and Smith sued under both the Full Faith and Credit Clause and the Equal Protection Clause.  The federal district court agreed with plaintiffs’ Full Faith and Credit argument, and ordered the registrar to issue a new birth certificate identifying both men as the child’s parents. A panel of the 5th Circuit affirmed. Louisiana then sought en banc review by the full 5th Circuit, and in a divided decision with a vigorous dissent written by Judge Weiner, the en banc Court reversed and ordered that Adar and Smith’s complaint be dismissed. 

    With respect to plaintiffs’ Full Faith and Credit claim, the Court noted that the state “is bound by the New York adoption decree, such that the parental relationship of Adar and Smith with Infant J cannot be re-litigated in Louisiana.”  The Court nevertheless concluded that Louisiana’s failure to issue a new birth certificate reflecting that adoption did not deny recognition of the New York adoption.  Although the Court emphasized that the adoption’s validity could not be contested in a Louisiana court, same-sex couples who jointly adopt children born in Louisiana will find these statements of very little comfort in light of the practical effects of this decision.  Specifically, by permitting the state registrar to refuse to issue a new birth certificate on the ground that the adoption decree entered by N.Y. would not have been permissible under Louisiana law, the Court has essentially given permission for any entity other than a court to refuse recognition of any out-of-state adoption decree for any purpose.  There is no legitimate state interest in refusing to issue a birth certificate that accurately reflects the established legal relationship between a child and the child’s parents. The clear objective here is to attempt to delegitimize an adoption by a gay couple and to stigmatize an innocent child.  

  • April 28, 2011
    Philosopher Kings?
    The Adjudication of Conflicting Human Rights and Social Values
    George C. Christie

    By George C. Christie, James B. Duke Professor of Law, Duke University School of Law

    In Europe, speech involving matters that are not generally known, even if the speech concerns events that took place in an area open to public view, has been successfully challenged as an invasion of privacy if the defendant was unable to show that the speech in question concerned a matter of legitimate public interest or contributed “to a debate of general interest to society.” What speech meets these criteria is for the courts to determine. That the public may have a great interest in the subject matter involved in the challenged speech is not by itself enough. Whether courts actually have the capacity to decide on their own what is a matter of "legitimate" public interest is one of the major themes discussed in my new book Philosopher Kings?  The Adjudication of Conflicting Human Rights and Social Values."

    In the United States, the balance is tilted the other way since freedom of speech is the preferred value. Recent developments, however, contain a hint that a court-administered regime of what is acceptable speech has some support in the United States as well. In Snyder v. Phelps, the United States Supreme Court, quite properly in my judgment, upheld the right of members of the Westboro Baptist Church to picket near the funeral of a Marine killed in Iraq. The signs they displayed to express their contempt for the military’s tolerance of homosexuality were certainly vulgar and offensive, but Chief Justice Roberts, writing for the Court, declared that the issue involved was a matter of public concern and thus protected by the First Amendment.

    Many American observers, however, have preferred the approach taken in the dissenting opinion of Justice Alito, who expressed the view that, if the plaintiff could show that he suffered severe emotional distress because of the grossly tasteless signs displayed by the demonstrators, the plaintiff should be able to recover under the common law tort of intentional infliction of emotional distress. Indeed, the approach taken by Chief Justice Roberts leaves open the possibility that vulgar hateful speech on matters that a court determines do not concern a matter of public concern is actionable. That suggests the possible adoption of something like the method used in Europe to decide conflicts between speech and privacy. Under the European approach, a court must balance the value of the challenged speech against the value of the other interests involved in the case before the court. These other interests can range from the desire of the plaintiff to preserve his anonymity to the judicially determined legitimacy of the public interest in the subject matter of the speech in question.

    I disagree. In Europe,

  • April 28, 2011
    Guest Post

    By Neena Chaudhry, Senior Counsel, National Women’s Law Center

    On Monday, The New York Times released a poll, in conjunction with CBS News, showing that nearly half of Americans who are familiar with Title IX believe it needs stricter enforcement.

    The survey was conducted last month, but it would have been very interesting to see what the results would have been if respondents had first read the other New York Times Title IX piece that ran the same day: “College Teams, Relying on Deception, Undermine Gender Equity.” The article goes on to describe how athletic programs across the country manipulate their athletic rosters to artificially boost women’s participation numbers in order to claim compliance. 

    Title IX requires that schools receiving federal funds not discriminate on the basis of sex, including in sports.  Most Americans think it’s been doing a good job.  In the same Times/CBS poll, 78 percent of people familiar with Title IX said they believe it’s been a positive force for women’s opportunities in sports.

    It’s easy to see why. Since Title IX’s passage in 1972, women’s participation in collegiate athletics has increased to nearly six times the pre-Title IX rate. Multiple generations of girls have grown up shooting hoops and scoring goals, going on to earn college scholarships and represent their schools in competition.  

    Despite this progress, women still lack access to equal opportunities.  According to the NCAA, women in Division I colleges, while representing 53 percent of the student body, receive only 45 percent of the participation opportunities, 34 percent of the total money spent on athletics, 45 percent of the total athletic scholarship dollars, and 32 percent of recruiting dollars.

  • April 27, 2011

    “‘Originalism’ as many politicians practice it today has little to do with what the Constitution really says,” writes University of Baltimore law professor Garrett Epps in The Atlantic.

    The Constitution’s Citizenship Clause, for example, should be read exactly as it is written: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States."

    Yet “Da Vinci Code originalists” such as Sens. Paul Vitter, Mike Lee, Rand Paul, and Jerry Moran, suggest secret meanings where there are none, selectively quoting from the legislative history to reach the conclusion that the children of undocumented immigrants born in the United States are not U.S. Citizens, Epps explains.

    During a recent panel discussion on birthright citizenship co-hosted by the American Constitution Society and the Center for American Progress, Epps elaborated on the clear constitutional and historical underpinnings of birthright citizenship.

    During the original debate on the clause, he explained, some expressed concern about so-called “gypsies” becoming citizens, calling them, “those people who flout our laws.”

    This was what Epps termed the “Lou Dobbs moment" in the debate, and the drafters, unequivocally rejecting these concerns, had the following response: “How someone who professes such high regard for humanity and civilization could object to making citizens of these innocent children is simply beyond us.”

    ACS and CAP are hosting a second lunchtime panel discussion May 11 on the potential impact of proposed laws that seek to repeal or limit the Citizenship Clause. Bookmark this link for more information about registering and watching the simulcast from your computer.

    Watch video of the first panel discussion here, and read Epps’ full article in The Atlantic here.

  • April 27, 2011
    Guest Post

    By Rochelle Bobroff, Directing Attorney, Herbert Semmel Federal Rights Project, National Senior Citizens Law Center

    Last week the Supreme Court issued two sharply contrasting decisions addressing states’ sovereign immunity from suits challenging state violations of federal law. Decided on April 20, VOPA v. Stewart involved a state Protection and Advocacy (P&A) program seeking injunctive relief to obtain medical records from state hospitals in order to investigate possible abuse and neglect of people with disabilities.  Because the P&A was set up as a state agency, the state claimed it violated state sovereignty for the state to be sued by a unit of its own government in federal court.  The Court disagreed with the state and allowed the claim to proceed.  The next day, the Court issued Sossaman v. Texas, concerning a claim for damages by a prisoner who was not permitted to attend religious services while on cell restriction for disciplinary infractions.  Again the state claimed immunity from suit; the Court agreed and dismissed the case.  The apparent line separating these cases – i.e., the distinction between suits against state governments for injunctive relief vs. damage claims – may be critical for this Court.  Nevertheless, the Court applied a different standard in the back to back cases.  But more than this apparent double standard, the most surprising facet of these two cases, and, possibly, the most worthy of attention, is the differing and unusual mix of Justices in the majorities and minorities in each case. 

    We are quite accustomed to seeing the four justices nominated by Democratic presidents band together against the five justices nominated by Republican presidents, and lately the conservative Justice Kennedy has on rare occasion swung into alignment with the Democratic nominees.  But in last week’s cases the four Justices in the majority on both sovereign immunity cases were the ultra-conservative Justices Scalia and Thomas, the liberal Justice Ginsburg, and Justice Kennedy.  Chief Justice Roberts and Justice Alito dissented in VOPA, while Justices Breyer and Sotomayor dissented in Sossamon.  Justice Kagan was recused in both cases. 

    The flipping of sides of the surprising gang of four – Scalia, Kennedy, Thomas, and Ginsburg – makes for an interesting line-up.  Scalia, Kennedy and Thomas would have been predicted to join with Roberts and Alito in a suit involving states’ rights, and Ginsburg would have been expected to join with the other liberals in defending the rights of a prisoner to exercise his religion.  So, the case provides for at least a little intrigue as to the future votes of the justices.