Equality and Liberty

  • June 26, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of Columbia Law School's Center for Gender and Sexuality Law, Herbert and Doris Wechsler Clinical Professor of Law, and Executive Vice President for University Life at Columbia University.

    By striking down state laws that shut same-sex couples out of marriage, the U.S. Supreme Court has put an end to a long and painful chapter in our country’s history and, at the same time, created an opening for a new wave of civil rights, safety, and justice advocacy.

    For so many years, with heightened intensity in the past two decades, states have denied same-sex couples access to marriage and the rights, recognition, and responsibilities that go along with it.  The terrible consequences are familiar: longtime partners kept from each other at hospitals, children and parents torn apart, humiliation and cost to people like the man at the heart of today’s decision, James Obergefell, whose marriage Ohio treated as nonexistent after Obergefell’s spouse, John Arthur, died in 2013.

    Familiar now, too, is the dramatic shift in the marriage equality landscape.  With increasing momentum, voters, legislatures, and courts around the country have reversed course on “defense of marriage” acts and rejected second-class citizenship for gay and lesbian couples.

    Without Supreme Court action, the nation was destined to maintain a discriminatory patchwork of marriage laws for years to come. The Court’s decision, in other words, reinforced the American tradition that courts, legislatures, and the general public each have a role in securing justice.

  • June 26, 2015
    Guest Post

    by Lara Schwartz, Professorial Lecturer, American University School of Public Affairs

    Much will be written, and is being written as we speak, on the Court’s historic decision in Obergefell v. Hodges, which recognized same-sex couples’ fundamental and equal right to marry. As someone who teaches constitutional law to undergraduates, most of whom have never read a judicial opinion when they enter my class, I will say this: I will hold class outside the day we discuss Obergefell, because I will not need a blackboard. This opinion will be the easiest reading assignment I’ll ever give them.

    Of all of the concepts I teach them, they struggle most with the concept of standards of review. Fortunately for them, the term “standard” does not appear in Justice Kennedy’s soaring, poetic opinion. Nor does “rational basis,” “heightened scrutiny,” or “compelling interest.” “Dignity,” on the other hand, appears nine times. This is as it should be, because the case was so simple.

    In plain English, for any American who is parsing this opinion today, I offer the following:

    The question before the Court in Obergefell was: Are gay people really people? It has always come down to this: If gay people are like other people, there is no compelling, important, or even rational basis to deny them the rights accorded to others. If gay people are as fully human as others, living in equal families, then laws that label same-sex couples and their children as legal strangers are repugnant to our Constitution.

  • June 22, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of the Center for Gender and Sexuality Law at Columbia Law School and Executive Vice President for University Life at Columbia University.

    *This post originally appeared on The HuffPost Blog.

    As the U.S. Supreme Court considers taking up another case related to abortion rights, now is the time to reexamine the old-chestnut narrative that abortion rests solely on a tenuous right to privacy and take heed that the Court ‒ yes, this Court ‒ has a long track record of protecting not only privacy but also the liberty that is part of such deeply personal decision-making.

    Over the last several decades, a popular, but inaccurate, narrative has taken hold about the constitution and abortion. Many argue that the right to privacy, set out in Roe v. Wade in 1973, is the sole constitutional protection for a woman's right to end a pregnancy. But this analysis rests on a limited and restrictive understanding of the law.

    The right to abortion is grounded in the Fourteenth Amendment, which protects all of us from undue government interference with our liberty interests. More than 20 years ago, the Supreme Court made this clear when it reaffirmed the constitutional right to abortion in Planned Parenthood v. Casey. There, the Court explained that this right was rooted in a woman's Fourteenth Amendment liberty right, which covers decisions about marriage, procreation, contraception, family relationships, child rearing and education. 

    In the words of the linchpin justices, Souter, O'Connor and Kennedy:

    These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

    At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

  • 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 2, 2015
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Yesterday’s Supreme Court opinion in EEOC v. Abercrombie & Fitch Stores was unusually short, a mere six and one-half pages.  The Court issued a sensible ruling that ― unlike last year’s decision in Burwell v. Hobby Lobby Stores ― upheld the religious freedom of employees.

    Abercrombie & Fitch had a policy requiring its employees to maintain a certain “look.”  “Caps” were not allowed.  Samantha Elauf, a Muslim, applied for a job at an Abercrombie store.  She was apparently quite stylishly dressed, but she wore a headscarf in accordance with her faith.  Abercrombie managers refused to hire her because of the headscarf, even though they believed that the headscarf was religiously motivated.

    Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire a job applicant because of his or her religious practice, unless accommodating that practice would impose an undue burden on the employer.  Yet the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie did not violate Title VII because Elauf did not tell Abercrombie that she needed a religious accommodation.

    The Supreme Court reversed that ruling yesterday and allowed Elauf’s case to proceed.  The Court explained that when an employer knows or suspects that an employee’s practice is religiously motivated, the employer cannot deny employment because of that practice unless accommodating it would impose an undue hardship.

    The Supreme Court’s ruling is sensible, while the Tenth Circuit’s approach was eminently unfair.  There was no evidence here that Elauf knew about Abercrombie’s prohibition on “caps.”  How can a prospective employee be expected to request an accommodation if she has no idea that she might need one?