February 2012

  • February 9, 2012

    by Jeremy Leaming

    Earlier this week, we noted a forthcoming study by a couple of law school professors, rich with data, which reveals the U.S. Constitution’s dwindling global influence. It’s not terribly surprising, other nations' governing documents, such as the Canadian Charter of Rights and Freedoms, are more expansive than the Constitution.

    As cogently noted in this blog post by David Lyle of Media Matters For America, right-wing pundits and bloggers are going ballistic, especially over Justice Ruth Bader Ginsburg’s comments to an Egypt interviewer that there are other governing documents, such as South Africa’s constitution that she might consult if she were to draft a constitution “in the year 2012.”

    Her comment sent the right-wing blogosphere and activists into frenzy, to say the least.

    Religious Right activist Mat Staver, head of the Liberty Counsel and founder of the late Jerry Falwell’s law school, fired off a press statement calling Ginsburg’s comments “unacceptable.” He said she spoke “derisively” of the nation’s founding document, and that she has undermined the “Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

    This is typical for Staver, who is given to over-the-top rhetoric. But it’s also ridiculous. Ginsburg did not knock or degrade the U.S. Constitution in anyway, she merely pointed out the fact that there are newer governing documents that are also worthy of emulation.

  • February 9, 2012

    by Jeremy Leaming

    Beltway Religious Right lobbyists are finding some success, with the help of opportunistic lawmakers in Congress, in painting the Obama administration’s health care policy that requires many insurance plans to provide free contraceptives as a brazen attack on religious liberty.

    TPM reported earlier today that weak-kneed politicos, such as Sen. Joe Manchin (D-W.Va.) are opposing the new rule. That opposition, not surprisingly was joined by Sen. Joe Lieberman (I-Conn.), who tweeted yesterday, aping Religious Right rhetoric, that “Government should not compel religious organizations to provide services contrary to their beliefs.” (TPM's Sahil Kapur is also reporting that Sen. Marco Rubio (R-Fla.) has introduced a sweeping bill that would not only overturn the administration's contraception rule, but would "effectively permit any employer to deny contraception coverage in their employee health plans ....")

    Christian Right lobbying group, the Family Research Council, will conduct a webcast this evening blasting the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    But the Religious Right’s rhetoric should be recognized for what it is, overwrought spin.

    The contraception rule is not difficult to understand, unless you’re Michael Gerson, a former speechwriter for President George W. Bush, now a columnist for The Washington Post.  Later this year, the Affordable Care Act will require most health insurance plans to provide women access to contraception for free or by paying a co-pay or deductible. Houses of worship, however, are exempt from the rule, meaning they get to play by different rules than secular organizations, so if they wish to provide their employees limited health care coverage, they can.

  • February 9, 2012
    Intersexuality and the Law
    Why Sex Matters
    Julie A. Greenberg

    By Julie A. Greenberg, a professor at Thomas Jefferson School of Law

    The term "intersex" evokes diverse images, typically of people who are both male and female or neither male nor female. Neither vision is accurate. The millions of people with an intersex condition, or a DSD (difference of sex development), are men and women whose sex chromosomes, gonads, or sex anatomy do not fit clearly into the male/female binary norm. Until recently, intersex conditions were shrouded in shame and secrecy; many adults were unaware that they had been born with an intersex condition and those who did know were advised to hide the truth. Current medical protocols and societal treatment of people with a DSD are based on false stereotypes about sex, gender, sexual orientation, gender identity, and disability, which create unique challenges to framing effective legal claims and building a strong cohesive movement. (For some of my earlier work on this topic, see http://ssrn.com/author=252410.)

    Intersexuality and the Law: Why Sex Matters examines the role that legal institutions can play in protecting the rights of people with a DSD. The first part of the book explains the sex, gender, and disability assumptions underlying the current medical protocol for the treatment of infants born with an intersex condition. Although most intersex conditions are not disabling, pose no physical risk, and require no medical intervention, infants with these conditions often are subjected to invasive cosmetic surgeries to alter their genitalia so that their bodies conform to a binary sex norm. These surgeries provide no medical benefit and have not been proven to enhance the child’s psychological well-being, but they can lead to a number of problems. They can render women incapable of experiencing an orgasm. They may also result in infection, scarring, incontinence, and other severe physical complications and emotional trauma.

    The major goal of the intersex movement is to challenge these medical practices. In addition, the intersex movement is also concerned that people with an intersex condition whose gender identity does not match the sex assigned to them at birth will face the same legal obstacles confronting transgender people. Sometimes, government authorities refuse to recognize their self-identified gender as their legal sex for purposes of marriage, identity documents, and appropriate housing and restroom use.

  • February 8, 2012

    by Jeremy Leaming

    As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.

    The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.

    Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”

    But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.

    Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”

  • February 8, 2012

    by Jeremy Leaming

    Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

    But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

    First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

    Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

    But that argument, Brown continues, is as wobbly as the federalism argument.