What Masterpiece Cakeshop is Really About

by Douglas NeJaime, Professor of Law, Yale Law School and Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School

*This piece was originally published on Take Care Blog.

Masterpiece Cakeshop v. Colorado Civil Rights Commission is framed narrowly—as a case about whether making a wedding cake is expressive conduct or whether religious individuals should be exempted from laws protecting same-sex couples. But this narrow view of the case misses its real stakes. The Alliance Defending Freedom (ADF, formerly Alliance Defense Fund), which represents Masterpiece Cakeshop, is driving the litigation and many similar cases around the country. ADF is not interested in a narrow resolution to a narrow question; rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.

ADF formed in 1994, a time in which sodomy criminalization was a live issue in the U.S. When the issue reached the U.S. Supreme Court in 2003 in Lawrence v. Texas, ADF submitted a brief that portrayed gays and lesbians as dangerous and diseased. In arguing that Texas needed to criminalize “homosexual conduct” to protect public health—a justification that even Texas did not advance—ADF asserted that “same-sex sodomy is a distinct”—and “overwhelming”—“public health problem.”

This line of argument reflected the views of ADF’s founder, Alan Sears. In The Homosexual Agenda: Exposing the Principal Threat to Religious Freedom Today, published the same year as Lawrence, Sears and his co-author described homosexuality as “sexual deviancy.” Linking “pedophilia and homosexual behavior,” they asserted that gays and lesbians are engaged in “a lifestyle of certain, ultimate despair.”

The organization litigating Masterpiece Cakeshop is still committed to these views. With an understanding of ADF’s views and the positions its lawyers are taking around the world, one can see that this caseis not merely an attempt to achieve a narrow exception to a legal order that recognizes LGBT equality; rather, part of the point is to undermine that legal order.

At the 2012 World Congress of Families, a global convening of leading anti-LGBT advocates, Sears, then ADF’s president, gave an address in which he described gays and lesbians as “lost in their own sexual depravity.” “[H]omosexual behavior,” he declared, “is self-destructive and wrong.” Today, ADF lawyers abide by a statement affirming that “all forms of sexual immorality (including adultery, fornication, homosexual behavior, polygamy, polyandry, bestiality, incest, pornography, and acting upon any disagreement with one’s biological sex) are sinful and offensive to God.”

ADF’s leaders support the criminalization of homosexuality and believe Lawrence was wrongly decided. When India’s high court upheld a law criminalizing same-sex sex in 2013, Benjamin Bull, then ADF Chief Counsel, praised the decision: “When given the same choice the Supreme Court of the United States had in Lawrence vs. Texas, the Indian Court did the right thing. India chose to protect society at large rather than give in to a vocal minority of homosexual advocates. . . . America needs to take note that a country of 1.2 billion people has rejected the road towards same-sex marriage, and understood that these kinds of bad decisions in the long run will harm society.” (ADF is not alone. Just last year in the Constitutional Court of Romania, Liberty Counsel, Jerry Falwell’s legal organization, argued that “[e]ngaging in homosexual conduct is dangerous, and endorsing and subsidizing same-sex unions and treating them as marriages is an endorsement of conduct that does not benefit society, but rather harms it by creating irresponsible and unhealthy people.”)

ADF and its allies support laws that criminalize same-sex sex; and they oppose laws that would protect gays and lesbians against discrimination. In 2008, ADF sought to block passage of the very antidiscrimination law at issue in Masterpiece Cakeshop—urging the Colorado legislature to reject it on several grounds. In short, ADF is not merely seeking exemptions from antidiscrimination laws; it opposes such laws altogether as a threat to “the privacy and safety of . . . citizens.” And it opposes laws prohibiting LBGT discrimination even if they include exemptions for religious objectors—declaring that such an arrangement “is not a compromise we can make.”Nearly 100 other religious leaders and political advocates have joined ADF in signing a manifesto against such laws.

So how are we to understand ADF’s aims in litigating Masterpiece Cakeshop? As we have shown, after suffering losses in the last decade, opponents of same-sex marriage have shifted from speaking as a majority seeking to enforce traditional morality through laws of general application to speaking as a minority seeking exemptions from laws that have only recently come to protect gays and lesbians. No longer able to control the law of marriage or discrimination, ADF seeks religious exemptions from it.

But in seeking religious exemptions, is the organization simply seeking settlement for Christian bakers? The aim is much larger. In Masterpiece Cakeshop, ADF seeks to establish precedent—whether through the First Amendment’s speech or free exercise clause—that would provide the basis for refusals to serve same-sex couples in a much broader range of settings, and thus alter the exercise of the right to marry. ADF may emphasize the distinctive features of wedding cakes, but this case is not simply about cakes. As the Court’s composition continues to change, any exemption crafted in Masterpiece Cakeshop might soon extend to employment, housing, and healthcare. Employers, for example, might be allowed to deny healthcare benefits to lesbian and gay employees and their spouses.

And, widespread religious refusals can erode the foundations of antidiscrimination law and marriage equality, as the example of religious refusals in the reproductive healthcare context illustrates. As we have shown, after Roe v. Wade recognized a constitutional right to abortion, federal and state legislation was enacted to authorize doctors with religious or moral objections to refuse to perform abortions or sterilizations. When opponents of abortion failed to persuade the Court to overturn Roe in 1992, they enacted much more expansive healthcare refusal laws. These laws authorize refusals, not only by doctors and nurses who decline to perform the procedure, but also complicity-based refusals by other healthcare workers, as well as organizations such as insurers, with only an indirect connection to the procedure. Even though the Constitution protects abortion and contraception, in many regions of the country, the law sanctions restrictions: legally authorized religious refusals impose significant barriers to access, inflicting health harms, stress, and stigma.

The same could happen with respect to LGBT equality. Refusals can restrict practical access to goods and services—not simply cakes and flowers but insurance, housing, and healthcare. And refusals can stigmatize gays and lesbians. Indeed, as Sherif Girgis explains with respect to religious exemptions from laws protecting gays and lesbians, “political potency and moral stigma are part of the point.” Just as with reproductive healthcare, the threat is especially potent in areas where opponents of same-sex marriage, mobilized by groups like ADF, continue to represent powerful majorities. ADF and its allies occupy prominent positions at all levels of government, and they have tremendous resources supporting their work. As Sarah Posner recently explained in The Nation, ADF itself has almost 60 lawyers on staff in addition to thousands of allied attorneys and boasts annual contributions of more than $50 million.

In short, ADF’s appeal to seemingly narrow arguments for religious exemption is part of a broader strategy to erode the foundations of marriage equality and antidiscrimination law.

As Girgis’s comments suggest, laws authorizing expansive refusals of goods and services to same-sex couples can provide a way to continue conflict over same-sex marriage. In fact, opponents of same-sex marriage have looked to the abortion conflict as a model.As the Heritage Foundation’s Ryan Anderson declared before Obergefell, “we must . . . make clear that court-imposed same-sex marriage via a Roe-style decision will not settle the marriage debate any more than it has settled the abortion debate.”

ADF and its allies are not interested in compromise. As Sears declared in 2012, “there is no room for compromise with those who would call evil ‘good.’” Accordingly, ADF and its allies “can’t settle for same-sex ‘marriage’, or even ‘civil unions,’ . . . can’t endorse schemes and other sex-partner subsidies in the workplace or by governments for those engaged in homosexual behavior, . . . can’t support same-sex adoptions, or the idea that permanently depriving a child of a father and mother is as good as both a mom and a dad, [and] . . . can’t stand by while they teach our children that homosexual urges . . . are legitimate and honorable and good.”

Attending to ADF’s own words—across time and space—leaves no doubt about what Masterpiece Cakeshop is really about. It is not a narrow case. It is a case that implicates the very status of LGBT people and the fragile legal advances they have secured in the U.S.

On Senate Judiciary Chairman Grassley’s Decision to Abandon the Blue Slip Tradition

by Senator Patrick Leahy (D-Vt.)

As the longest-serving member of the United States Senate and a former chairman of the Senate Judiciary Committee, I feel obligated to speak up about the steady erosion of the Judiciary Committee’s norms and traditions. I am deeply troubled that Chairman Chuck Grassley (R-Iowa) has decided to reverse his blue slip policy.

The “blue slip” is a century-old Senate tradition that allows senators the courtesy of approving a nominee to the federal bench in their home state. There will surely be an ongoing discussion about the history of the blue slip tradition over the years. Not all chairmen have adhered to the tradition in the same way. But one thing is beyond dispute: Casting aside blue slips based on how the partisan winds blow will damage the integrity of the Judiciary Committee’s judicial confirmation process.

When I was chairman of the Judiciary Committee, under both the Bush and Obama administrations, not a single judicial nominee received a hearing without first receiving both home state senators’ positive blue slips. Regardless of who was in the Oval Office, I defended blue slips because I firmly believe in their constitutional importance—to give meaning to the constitutional requirement of “advice and consent.”

I also firmly believe in the prerogatives of home-state senators, and the need to ensure that the White House works in good faith with those senators. All of us, both Democrats and Republicans, should care about good faith consultation when it comes to nominees from our own states. Last week, Senator John Kennedy (R-La.) shared his experience with the Judiciary Committee of how the Trump White House “consulted” with him on an important vacancy to a Louisiana-based seat on the Fifth Circuit. The White House failed to provide him with any meaningful opportunity for consultation before informing him that he would need to accept the nomination of a Washington D.C.-based attorney, Stuart Kyle Duncan. And that is how this president consults with a senator from his own party.

My decision to defend blue slips was not without some controversy. I faced significant pressure from my own party’s leadership to hold hearings for President Obama’s nominees who had not received blue slips from Republican senators, including several Republican senators currently on the Judiciary Committee. And I was criticized by advocacy groups and even the editorial page of The New York Times. But I resisted such pressure. I did so because I believed then—and I still believe now—that certain principles matter more than party.

Chairman Grassley has rightly pointed out that not all chairmen followed the same policy as I did. That is a fair statement. But the fact that he is adopting a different policy from my own is not what I find most concerning. What I find most concerning is that the Chairman is adopting a policy different than his own policy—the one that he applied during the Obama administration.

When Senator Grassley became Chairman of the Judiciary Committee in 2015, I was heartened when he assured me that he would adhere to the same blue slip policy as I did. He wrote that I had “steadfastly honored the tradition” despite those in my party calling “for its demise,” and that he “also intend[s] to honor it.” During the final two years of the Obama administration, Chairman Grassley kept his word and defended the blue slip tradition.

In 2015 and 2016, nine of President Obama’s nominees, including four circuit court nominees, did not receive positive blue slips from Republican Senators. Chairman Grassley did not schedule a hearing for any of those nominees—even when home state senators were thoroughly consulted or did not provide a rationale for their opposition. This includes Kentucky Supreme Court Justice Lisabeth Hughes, who was nominated to the Sixth Circuit but opposed by Senator McConnell despite nearly two years of consultation with the White House. This also includes the first African American and first woman on the Indiana Supreme Court, Myra Selby, who was nominated to the Seventh Circuit but opposed by Senator Coats. And this includes Abdul Kallon, who was nominated to the Eleventh Circuit but opposed by both Alabama senators—despite the fact that they supported his nomination to a district court vacancy a few years before.

Because these nominees were missing blue slips from Republican senators, none of them received a hearing under Chairman Grassley. And I do not begrudge Chairman Grassley of that. I only ask that all of us, Republicans and Democrats, be treated equally. Unfortunately, less than year into this new Republican administration, Chairman Grassley has already held hearings for two judicial nominees who have not received favorable blue slips from both home-state senators.

I understand the desire as the Senate Judiciary chairman to help a president of your own party to fill judicial vacancies. And I also understand the significant pressure a chairman receives from within his or her own party to do so—to make it as easy as possible to confirm the nominees of a president from your own party. I received, and withstood, the same pressure when I was chairman. The dilemma for a chairman is that yielding to such pressure—reversing course on your own policy simply due to a change in the White House—can do lasting damage to the integrity of the Judiciary Committee.

At its best, the Judiciary Committee can serve as the conscience of the Senate. It should never function as a mere rubberstamp for nominees seeking lifetime appointments to our federal judiciary. And blue slips are one of the last remaining guardrails on the nominations process.

I greatly respect Chairman Grassley as both my friend and a fellow senator. I know he is a chairman who strives to be driven by principle, not party. I urge him to reconsider his decision going forward—and to abide by the same blue slip policy that he applied when a Democrat was in the White House. I urge him to consider the damage we are doing to our Committee by abandoning one of the few remaining sources of bipartisan goodwill in our judicial confirmation process.

Enough is Enough: Block Trump’s Judges

by Paul Gordon, Senior Legislative Counsel, People For the American Way

*This piece was originally posted by People For the American Way.

On December 7, Senate Judiciary Committee Chairman Chuck Grassley will try to ram ten judicial nominees through for committee votes, the latest example of Grassley’s unprincipled chairmanship. Among them are several extremely controversial nominees, three of whom have been nominated to circuit courts. Especially given the increasingly dangerous state of our nation’s body politic, the Senate should not be confirming Donald Trump’s nominees to lifetime positions on our nation’s courts.

In fact, Democrats should use every tool at their disposal to prevent their confirmation.

Continue reading "Enough is Enough: Block Trump’s Judges" →

ACS Supreme Court Review 2016-2017 Inaugural Edition: Introduction

by Steven D. Schwinn, Professor of Law, the John Marshall Law School

*Read the full Supreme Court Review here.

We are thrilled to bring you this inaugural edition of the American Constitution Society Supreme Court Term Review. In these pages, you’ll find a series of outstanding critical essays, penned by the nation’s top legal scholars and practitioners, on the most important cases and themes from the Supreme Court’s October 2016 Term. You’ll also find a splendid Foreword, written by Dean Erwin Chemerinsky, that puts these cases and themes in the broader context of key happenings and trends at the Court.

In the many panels and reviews of the Court’s October 2016 Term, we sometimes heard that the Term was unremarkable, with no Big Blockbuster cases, no significant changes in the law, and no notable impacts on major political issues—at least as compared to so many other recent Terms. Many said that this was the direct result of an eight-member, equally divided Bench for most of the Term. That is: the Court was reluctant to take on major controversial cases without a full staffing.

But I think you’ll find in these pages that this description of the Term is not exactly right. Indeed, I think you’ll find that there were several quite significant rulings, even if they did not receive the kind of attention that the Blockbusters received in other prior Terms. And while these cases may not hit with the same immediate impact of some other major recent rulings, as our authors explain, their full impacts will unfold slowly, over time.

So here is perhaps a better way to summarize the October 2016 Term: The Court dealt with somewhat lower profile cases that often flew below the radar (at least comparatively speaking), but nevertheless resulted in significant changes in the law that we’ll see over the next several years and decades.

Moreover, the major cases last Term split between conservative constitutional rulings and progressive ones. As you’ll read in the following pages, on the one hand, the Court gave progressive constitutionalists plenty to worry about, from much enlarged religious liberty claims,₁ to sharply curtailed Bivens claims,₂ to (yet further) restraints on access to justice.₃

On the other hand, the Court gave progressive constitutionalists some important reasons to celebrate. The Court handed victories to progressive causes in a consolidated pair of fair housing cases,₄ election-law cases,₅ a pair of IDEA cases,₆ an immigration case,₇ criminal procedure cases,₈ and a marriage-equality case.₉

And the Court ruled in favor of free-speech rights in three First Amendment cases.₁₀

Along with the cases and trends, as Dean Chemerinsky reminds us, no analysis of the Term would be complete without at least mentioning Justice Gorsuch, the Court’s newest member. Although he participated in only a handful of cases last Term, he has already staked his territory on the Court, aligning squarely with the Court’s most conservative wing. He also relished in his active participation, and did not shy away from sharing his opinions, even taking on the Chief (in a concurrence, no less).₁₁

In short, Justice Gorsuch proved himself to be quite conservative. And he was no wallflower. If this trend continues, he will be a major conservative force on the Court for decades to come.

Still, we can’t but compare Justice Gorsuch’s track record with the expected record of an imagined Justice Merrick Garland, whose nomination the Senate railroaded in the dishonest name of “leaving Justice Scalia’s replacement to the voters.” (And we can’t but compare the Court’s track record, now and in the future, with Justice Gorsuch instead of a Justice Garland.) We’ll see soon enough the impact of the Senate’s infamous and unprecedented take-down of Chief Judge Garland when the Court starts issuing major 5-4 rulings this current Term. (We’ll report back on this in next year’s edition.)

This inaugural Review would not have been possible without the support and effort of a number of individuals. First, I’d like to thank ACS President Caroline Fredrickson and the entire staff at the ACS for supporting this project. Next, special thanks go to Kara Stein, the Vice President for Policy Development and Programming. Without Kara’s vision, support, and patience, this project could not have happened. Special thanks also go to Melissa Wasser, Law Fellow, whose tireless efforts ensured that our copy came out clean. (All editorial errors, of course, remain my own.) Finally, I’d like to thank our authors. These are national leaders in constitutional thinking, writing, and practice, and they graciously took time from their already-too-busy schedules to contribute to this publication. Thank you all.

I hope you enjoy reading this volume as much as I’ve enjoyed editing it.

Endnotes:

1 Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012 (2017) (holding that a state’s express policy of denying public grants to any applicant owned or controlled by a church violates the Free Exercise Clause).

2 Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (severely limiting the Bivens doctrine).

3 Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017) (holding that state courts lacked specific jurisdiction to hear claims brought by plaintiffs who were not state residents, because there was not a sufficient connection between the forum and the specific claims at issue).

4 Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) (holding that the City of Miami had standing to sue under the Fair Housing Act).

5 Cooper v. Harris, 137 S. Ct. 1455 (2017) (holding that the district court did not err in finding that race predominated in drawing legislative districts); Bethune-Hill v. Virginia St. Bd. of Elections, 137 S. Ct. 788 (2017) (holding that the district court used an incorrect legal standing in determining that race did not predominate in drawing certain legislative districts).

6 Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017) (holding that exhaustion under the Individuals with Disability Education Act is unnecessary when the basis of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee of a “free appropriate public education”); Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017) (holding that under the IDEA a school must offer an “individualized education program” reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances).

7 Maslenjak v. U.S., 137 S. Ct. 1918, 1923 (2017) (holding that the government must establish that a defendant’s illegal act played a role in her acquisition of citizenship in order to convict for “procur[ing], contrary to the law, the naturalization of any person”).

8 Buck v. Davis, 137 S. Ct. 759 (2017) (holding that a criminal defendant demonstrated ineffective assistance of counsel when his attorney put on testimony that the defendant’s race predisposed him to violent conduct); Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) (holding that the Sixth Amendment requires that the no-impeachment rule give way in order to allow the trial court to consider evidence of a juror’s statement that he relied on racial stereotypes to convict a criminal defendant).

9 Pavan v. Smith, 137 S. Ct. 2075 (2017) (holding that a state may not deny married same-sex couples recognition on a child’s birth certificate).

10 Matal v. Tam, 137 S. Ct. 1744 (2017) (holding that the “disparagement clause” in patent law violates free speech); Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (holding that a law that makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages” violates free speech); Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (remanding the case and ordering the lower court to analyze a pricing regulation under the First Amendment).

11 See, e.g., Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012, 2025-26 (Gorsuch, J., dissenting) (criticizing the Court’s distinction between religious status and religious use).

Sexual Harassment: New Laws That Would Help

by Terri Gerstein, Leadership in Government Fellow, Open Society Foundations

*This piece was originally posted on On Labor.

We are experiencing a watershed moment in relation to sexual harassment: boldface names fall daily, and women are speaking up as never before. This is one of those moments when norms change, presenting a tremendous opportunity. Proposals that seemed unrealistic last year could now be taken seriously in the political sphere.

In the Guardian last weekend, Sharon Block and I outlined an agenda for bringing sexual harassment to light sooner, punishing it appropriately, and above all, preventing it in the first place. In the interest of furthering the conversation, this post elaborates on those ideas, and also aggregates several noteworthy articles proposing thoughtful reforms.

Along with the long-term work of building strong worker organizations, the following are some government policies to consider. Some of them would also serve to strengthen workers’ rights enforcement generally.

Disallow non-disclosure agreements. The use of non-disclosure agreements in settlements involving workplace abuses should be limited, because of the broad public interests at stake (an idea I discussed in the Nation this spring). A bill proposed by New York State Senator Brad Hoylman would disallow settlement terms aimed at concealing details of harassment claims, as well as discrimination and wage and hour cases, a wise approach given the extent and public impact of workplace violations generally.
Modify current anti-discrimination law. The 15-employee threshold for federal coverage should be reduced to cover more workplaces. In addition, the time frame for filing an EEOC charge should be extended beyond its current 180 days(or up to 300 depending on state and local agencies). By way of comparison, the FLSA’s statute of limitations is two years unless conduct is willful, and some state laws extend even further. Moreover, we have seen how long it takes many sexual harassment victims to come forward; a 180-day statute of limitations is plainly a mismatch with real world experience. Both of these suggested changes would require additional enforcement resources.
Create strong penalties and qui tam or whistleblower statutes to enable and incentivize private lawyers to bring such cases, thereby also supplementing agency enforcement. Public agencies are resource-strapped, and enforcement by private plaintiffs plays a critical role. But the economics often don’t work for private lawyers, especially when it comes to low wage workers. Mandatory arbitration and class waiver agreements greatly exacerbate this situation, as Sharon Block and Celine McNicholas describe, because such agreements prevent individual sexual harassment and other cases from being aggregated into class actions, eliminating economies of scale. A qui tam or whistleblower law could go a long way to expand resources for public enforcement by enabling private lawyers to bring sexual harassment and other workplace justice cases. California’s Private Attorney General Act (PAGA) allows employees to file lawsuits to recover civil penalties on behalf of themselves, co-workers, and the state for labor law violations. False Claims Acts also allow whistleblowers in certain situations to sue on the government’s behalf and receive a portion of the recovery. States should consider passing laws, which would allow employees to sue on behalf of the state; for example, in New York, a legislative proposal called the Empowering People in Rights Enforcement (EMPIRE) Worker Protection Actwould deputize workers to enforce certain labor statutes on behalf of the state, with the state retaining control of the suit, and receiving the majority of damages.
Require notification of government agencies when settlements occur. Despite those mandatory training videos, companies have proven unable to police themselves. Given this history, the government should have at least an oversight role when matters of public interest are resolved. This could be done in various ways. For example, settlement of FLSA lawsuits generally requires court approval or review by the federal labor department; a similar structure could be established at the city, state, or federal level for discrimination and harassment settlements. Another model could be the Class Action Fairness Act, which requires that notice of any proposed settlement in a class action lawsuit be provided to the appropriate state officials who regulate an employer’s business, with state Attorneys General as a default. Either of these approaches would give key government actors notice and the ability to step in if a pattern of violations existed.
Strengthen anti-retaliation laws. Usually, workers – even well-paid professionals – are afraid to report labor law violations of all kinds because they fear retaliation. Consider Angelina Jolie, who strides boldly into war-torn countries and refugee camps, yet did not denounce Harvey Weinstein until multiple public allegations were made by others. If Angelina Jolie was initially quiet, how much harder can it be for rank-and-file or low wage employees to speak up? Workers who report lawless behavior should be praised, not punished. They protect not only themselves, but also their co-workers. Accordingly, when employers retaliate against workers for reporting violations, there must be harsh and meaningful penalties and damages. And anti-retaliation laws should address whistleblowing’s impact on future employment by explicitly outlawing blacklisting, and by barring reprisals not only by the employer but also by “any other person,” as New York’s anti-retaliation labor law.
Criminally prosecute workplace violations, including sexual assault, when appropriate. Finally, when crimes occur, the perpetrators should be prosecuted. Much of the conduct coming to light is, frankly, rape or sexual assault. True, the crime scene is the workplace, which may seem unorthodox to prosecutors: it may feel, in some inarticulable way, like a civil case, and the victims may be reluctant witnesses. Similar challenges once protected domestic abusers from prosecution – after all, domestic violence occurs in the home. Yet prosecutors now fully embrace prosecution of domestic violence as part of their mission — just as they should now embrace addressing workplace abuses as well. A quick Google search reveals a growing list of arrests: an ice cream store owner in Colorado; a heating oil company owner in Connecticut; a restaurant owner in the Pittsburgh area. A few well-publicized prosecutions in each state would go a long way toward educating the public, empowering workers, and deterring future violations.

In addition to the ideas I’ve outlined above, a number of writers have advanced insightful proposals for an effective policy agenda. Sharon Block has written hereabout the need for higher penalties and more enforcement resources, and both she and Andrew Strom highlight the need for unions and more democratic workplaces. Mark Joseph Stern in Slate suggests that statutes are needed to counteract years of problematic Supreme Court jurisprudence, and Sandra Sperino and Suja A. Thomas in the New York Times point to the need for statutory revisions to correct overly narrow approaches by federal courts over time. Industry-specific solutions have been suggested too, including eliminating the tipped wage in restaurants, and creating specific protections for hotel housekeepers, including a panic button, as in a new Chicago law.

There is no silver bullet to end workplace abuse, and any successful approach should combine some or all of the measures described above. The important thing now is to seize the moment and take concrete action so that women can do their jobs in peace.

Let’s Recap: Why Trump Can't Easily Remove Mueller—and What Happens If He Tries

This report examines why President Trump cannot easily bring an end to the Russia investigation by firing Special Counsel Robert Mueller. Authors Noah Bookbinder, Norman Eisen, and Caroline Fredrickson explain that Deputy Attorney Rod Rosenstein, not President Trump, is the one who has authority to fire Mueller. While President Trump might compel others to do so on his behalf or instruct the attorney general to revoke DOJ’s special counsel regulations, the risks of doing so are prohibitive. History warns that he would be risking his presidency, not to mention increasing his exposure to charges of obstruction of justice. In addition, we explain that any firing could be subject to court challenge by Special Counsel Mueller, his staff, and possibly other parties. Mueller's dismissal also would not necessarily bring an end to the investigation that he is leading. Finally, we review the ways in which Congress might make it even harder for President Trump to end the Russia investigation by codifying the special counsel regulations and pre-committing to a course of action that would deter interference with the Russia investigation.

This memorandum was prepared for the Presidential Investigation Education Project, a joint initiative by ACS and CREW to promote informed public evaluation of the investigations by Special Counsel Robert Mueller and others into Russian interference in the 2016 election and related matters. This effort includes developing and disseminating legal analysis of key issues that emerge as the inquiries unfold and connecting members of the media and public with ACS and CREW experts and other legal scholars who are writing on these matters.

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