Brown v. Board of Education Was Rightly Decided 65 Years Ago. Why Do Trump's Nominees Refuse to Admit It?

This Friday marks the 65th anniversary of Brown v. Board of Education, which would normally be an occasion to commemorate the historic ruling and assess our nation’s progress toward equality and integration. But this year, there are startling new reasons to worry that Brown is imperiled by judicial appointees of the Trump-Pence administration – and that should raise alarms for everyone who cares about civil rights.

The Supreme Court’s unanimous 1954 decision in Brown was monumental in several respects. It struck down the doctrine of separate but equal and began rolling back the sprawling policy of racial segregation in schools and public accommodations. It infused real meaning into the Constitution’s core value of “equal protection of the laws.” And it undergirded constitutional milestones of the 20th century, including the 1967 decision of Loving v. Virginia, which overturned bans on interracial marriage, the 2003 decision in Lawrence v. Texas, which struck down the criminalization of LGBTQ persons, and the 2015 decision in Obergefell v. Hodges, which recognized marriage equality and drew upon Loving and Lawrence.

For the last half century, Brown has been universally praised by nominees to the federal bench, irrespective of the president who nominated them. In his 2005 confirmation hearing, then-judge John Roberts highlighted the “genius of the decision” and said he thought it was “certainly” correct in examining the realities of public education at the time. Likewise, in Samuel Alito’s 2005 testimony, he praised Brown as “one of the greatest, if not the single greatest thing that the Supreme Court of the United States has ever done,” which he “[a]bsolutely” believed protected the rights of children. This consensus extends long before, including Anthony Kennedy who, in 1987, unambiguously extolled Brown as “right when it was decided, and . . . right if it had been decided 80 years before.” Since joining the bench, scores of justices and judges have continued to celebrate Brown in public speeches and official commemorations.

But in recent months, multiple judicial nominees from the Trump-Pence administration have departed from this mainstream consensus and evaded straightforward questions about whether Brown was correctly decided. For example, a nominee for a lifetime federal judgeship in Louisiana, Wendy Vitter, refused to weigh in on Brown at her Senate hearing and only said tepidly that it was “binding.” Neomi Rao, who was confirmed to replace Brett Kavanaugh’s seat on the D.C. Circuit, elusively remarked at the time that it was “not appropriate” for her to comment on the “correctness of particular precedents.” In an apparent coordinated position, multiple nominees for the bench and for senior positions at the Department of Justice have since conspicuously avoided agreeing with Brown.

This is especially troubling for LGBTQ Americans, since it suggests that judges put forward by the Trump-Pence administration may not accept the Constitution’s guarantee of equal protection.  These nominees’ steadfast refusal to validate Brown also raises serious questions about whether they would try to overturn or narrow yet other longstanding civil rights precedents that are widely considered established and uncontroversial, such as the right to privacy. The avoidance of Brown seems part and parcel of the administration’s broader effort to roll back LGBTQ rights and civil rights and unleash a sweeping new license to discriminate against same-sex couples and families. The prospect of resuscitating a legal doctrine of separate facilities has particularly disturbing ramifications for the transgender community, since it could be used to uphold exclusionary policies in the workplace and in bathrooms. Moreover, the recent resistance to LGBTQ equality at the state level and on ostensibly theological grounds has some noticeable parallels to the widespread resistance to implementing Brown in the late 1950s and 1960s.

So this season’s anniversary of Brown is markedly different than years past, since basic precedent and principles are at risk in a way that they have not been in 65 years. The best way to memorialize the legacy of Brown is to mobilize around judicial nominees who accept its foundational importance, not just as a matter of constitutional law, but as an expression of basic human equality. Standing up for Brown is an important way to maintain the promise of equal justice for all Americans – and it could make all the difference for the next 65 years of constitutional rights.

Trump Administration’s New Rules for Asylum Seekers Are Inhumane and Ineffective

President Trump has instructed the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to issue regulations that would make significant changes to the asylum process. The proposed changes would impose new burdens on asylum seekers, deter people from seeking asylum, and divert resources and attention that the immigration courts could focus on adjudicating more cases. The President has asked for these regulations within 90 days.

The April 29 “Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System” directs DHS and DOJ to issue regulations to require immigration courts to adjudicate asylum claims within 180 days of filing (excluding administrative appeals). The new rules would also impose fees on asylum seekers, and bar asylum seekers who enter the U.S. without inspection from receiving work authorization. As justification for these changes, President Trump cites an immigration and asylum system “in crisis.”

Section 208(d)(5)(A)(iii) of the Immigration and Nationality Act (INA) (8 U.S.C. 1158(d)(5)(A)(iii)) requires adjudication of asylum cases, absent exceptional circumstances, to be completed in 180 days. There are currently 850,000 cases pending in immigration court, and 450 judges.  Absent an immediate, serious investment in the asylum system, it will be impossible for this requirement to have any impact on the short-term “crisis” without seriously undermining the rights of asylum seekers.

Section 208(d)(3) of the INA (8 U.S.C. 1158(d)(3) permits, but does not require, the Attorney General to impose fees for the consideration of asylum applicants and work authorization for asylum seekers. For the past few decades, surcharges on non-humanitarian immigration applications (filed by immigrants and U.S. citizens) have funded the adjudication of asylum and refugee applications. Shifting the responsibility to asylum seekers to cover the costs for adjudicating their applications would require a complete review and adjustment of these surcharges, as the law, while allowing fees, does not allow these fees to exceed the costs of adjudicating the application. The law also requires the administration to establish a system for creating installment plans and collecting payments over time. This proposal would create new bureaucratic hurdles for asylum seekers and divert resources that the administration could use to adjudicate more cases

The President also directed DHS and DOJ to propose regulations to bar asylum seekers who have entered or attempted to enter the United States other than at a port of entry from receiving employment authorization until asylum (or any other form of relief) has been granted. Under current rules, asylum seekers may receive employment authorization after their application has been pending for 180 days, regardless of how they enter the country.

The United States provides no support to asylum seekers while their cases are pending. For the first six months after they file their asylum applications, during which they are not allowed to work, asylum seekers must rely on friends, family, private charity, unauthorized work, and other informal networks of support for housing and other basic needs. Denying work authorization indefinitely to thousands of asylum seekers would create a significant population of asylum seekers with no means of support, increasing the risks of exploitation, and making it impossible for many to obtain legal counsel.

The President also proposes to limit asylum seekers who have demonstrated a credible or reasonable fear of persecution or torture to pursuing only asylum and withholding of removal claims in immigration court.  The new rules would prohibit immigration judges from considering any other forms of relief and would limit their ability to release asylum seekers on bond. Asylum seekers who arrive in the U.S. between ports of entry would be subject to indefinite detention.

It is difficult to see how these new proposals would have any short-term impact on what the administration calls a “crisis.” Any of these changes would take months or years to implement and, depending on how they are drafted, be subject to litigation.

The administration’s enforcement-only approach has coincided with rising numbers of asylum seekers. Prior administrations have addressed large asylum backlogs and surges in asylum applications, but not with a harsh enforcement approach that attempts to discourage persecuted people from seeking asylum. Blocking asylum seekers’ access to the U.S., stripping asylum proceedings of any meaningful consideration by adjudicators, putting asylum seekers in indefinite detention, and separating families has not led to fewer asylum seekers.

A thoughtful, comprehensive approach to the asylum seekers at the southern border would include aid to sending countries, refugee resettlement programs that provide hope to people who face persecution – particularly those who have family members in the US, alternatives to detention, expeditious but fair processing of asylum claims in non-adversarial proceedings, and access to legal counsel.  The current and proposed policies, driven by panic, fear, and what seems to be a complete lack of empathy for people driven from their homes by violence and poverty is doing nothing to stem the flow of people who are seeking safety in the United States. Investing in a humane and efficient system that recognizes and respects the right of persecuted people to seek asylum would restore integrity to the process.

Picking the Right Judges: Four “I”s to Look For

Harsh Voruganti is a DC Lawyer Chapter Board Member and the Founder and Editor of the Vetting Room.

For the first time in years, the legal left is talking about judges.  Whether it’s ending lifetime tenure, or “court packing,” progressives are considering and debating ways to make an impact on the bench.  However, few people are talking about exactly who those new seats should go to.  In other words, what makes a progressive judge different than a conservative judge.  Even more simply, what are the qualities of a good judge?

Obviously, liberals and conservatives will disagree as to certain attributes, such as the endorsement of originalism, membership in the Federalist Society or the American Constitution Society, or work as a civil rights lawyer.  Personally, I’d narrow it down to four attributes that all judges, regardless of party, must exhibit to be worthy of an appointment: the Four “I”s of Judging.

First, a judge must have integrity.  While the recent confirmation of Justice Brett Kavanaugh has reignited debates over ethics codes for the Supreme Court, integrity goes beyond rote adherence to the letter of the law.  Rather, a judge with integrity seeks to conduct themselves in all circumstances as a servant of the law.  In other words, not only does a judge need to be in conformity with the law and all relevant ethics codes, he or she must treat all individuals with respect and dignity.  Further, he or she must refrain from promoting racism, sexism, homophobia, religious or anti-religious bigotry on or off the bench.  As such, a state judge who commits campaign finance violations, a prosecutor who skirts Brady obligations, and a lawyer who uses the law to help his clients legally discriminate against transgender employees all lack the requisite integrity for the bench.

Second, a judge should demonstrate intellect.  Intellect can manifest itself in many ways but includes both intelligence and intellectual curiosity.  A judge should have an interest in the law and in learning and supplementing their knowledge.  In addition, for obvious reasons, a judge needs to have the requisite intelligence to understand and parse complex issues they are presented with.  They also need to be able to adapt to changes in the law and adjust their jurisprudence accordingly.  Judges who routinely fail to understand legal arguments or lawyers who fail to comprehend the law they are parsing have no place on the bench.

Third, a judge must maintain industry.  In an increasingly overburdened legal system, judges need to be willing to put in the work needed to keep up with their caseload, as well as extra work as needed to ensure that litigants receive prompt, well-reasoned decisions.  Lawyers who cut corners rather than conduct diligent representation or judges who fail to show up to work on time or to keep their dockets moving efficiently lack this important qualification.

Fourth and perhaps most important, a judge must demonstrate impartiality.  In other words, a judge must have no bias or allegiance in a courtroom other than to the rule of law.  Any judge who shapes their decisions to the views of a political party, intellectual theory of interpretation, or, worst of all, towards a party they feel sympathy for, fails the test of impartiality.

Obviously, lawyers can always find additional criteria to prioritize on top of those listed above.  However, there should be general agreement that these four qualities: integrity; intellect; industry; and impartiality, are essential to a judge.  As such, a candidate must demonstrate all four in order to justify nomination and confirmation.  Regardless of whether or not “court packing” or other judicial reform actually happens, I hope the next President selects judges who possess all four of the “Is” needed to be a good judge.

Oversight Is a Constitutional Necessity, Not a Luxury

Now that the Mueller report is out, the focus of attention has shifted to Congress. This is as it should be. Congressional oversight of the executive branch is the separation-of-powers “in action.” As any student of the Constitution knows, checks and balances are essential to a well-functioning Republic. And as the Supreme Court has written:  “the power of Congress to conduct investigations is inherent in the legislative process.” It is “essential” to the conduct of the government.

Despite this constitutional truism, the Trump administration has now sought to stonewall Congress’s oversight efforts. The Congress seeks the testimony of former White House Counsel Donald McGahn to testify about the Mueller report and obstruction of justice. The President has resisted. The House sought President Trump’s tax returns, and the president not only resisted, he went to court to block the effort. These are but two of the controversies in which the president has attempted to thwart legitimate congressional oversight; the House oversight committee’s work now extends to a wide variety of pending matters including the census, security clearances, and immigration.

There is nothing unusual about Congressional oversight of presidents and their administrations. Congress has exercised its oversight powers since the first Congress, over two hundred years ago. One of the very first laws required that the Treasury Secretary report back to Congress. George Washington was not immune from Congress’s oversight of his conduct when scandal loomed in 1792 over General Arthur St. Clair’s battle defeat. Throughout American history, whether it be the fear that President Grant’s aides ran a Whiskey Ring or President Harding’s men sold off lands for oil profits in Teapot Dome, Congress has investigated the conduct of presidents and their aides to fight corruption, greed, or simple malfeasance in office. And, if those historical examples do not convince, more recent events should not be forgotten: Watergate and Nixon, Iran-Contra and Reagan, Whitewater and Clinton.

No president is above congressional investigation because the president serves the people, not the reverse. As the Supreme Court has explained, in the leading case, United States v. Watkins:

That [oversight] power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.

Not surprisingly, given this rule, presidents of both parties have bowed to public pressure from Congress to oversee the president’s execution of the law. In Watergate, John Dean, Bob Haldeman, and other White House staffers accused of malfeasance testified.  Nixon pled executive privilege in court against a special counsel, not Congress, and then lost, forcing him to release tapes revealing his attempt to steal an election. During Iran-Contra, Oliver North, John Poindexter and Fawn Hall—all former White House staffers alleged to have made errors--testified. Neither executive privilege nor national security concerns caused a court battle.

In the past, it has been the conventional wisdom inside the beltway that presidents incur more political damage by stonewalling than allowing Congress to do its job. But the rules appear to have changed. As I wrote five months ago, in November after the election, enthusiasm about the new Congress and its powers needed to be tempered: Congress’s newfound Democratic majority was likely to find its oversight powers thwarted by this president. And that has come to pass.   Presidents have legitimate tools to resist silly requests or fishing expeditions. Executive privilege covers communications essential to the core of the president’s ability to “faithfully” execute the law. National security laws prevent the disclosure, by anyone, of classified information. In the past, none of these tools have been used successfully to thwart legitimate congressional investigations on matters of serious public import.

Now, however, oversight is about to go to Court. If the president continues to block these investigations, the House will ask the judiciary to enforce its subpoenas. (As some have recently remembered, Congress used to have the Sergeant at Arms arrest recalcitrant witnesses, but this practice has gone out of favor). Supreme Court case law makes clear that Congress has the authority to subpoena any witness and to hold them in contempt of Congress on any matter about which Congress could legitimately oversee the executive. This power is intentionally broad: it includes not only the power to actually legislate, but also to anticipate legislation, and supervise executive employees. It even includes a legitimate interest, as the Court said in McGrain v. Daugherty in “information” that the public may need to assess the workings of government, in that case, about the Attorney General’s malfeasance in office.

Given the breadth of Congress’s oversight powers, enforcing these subpoenas should be an easy case for any judge.  National security concerns, if present, cannot thwart the request—if sincere, they lead to Congress taking testimony in its secure facilities (which it did during Iran-Contra).  The Supreme Court in United States v. Nixon rejected the president’s absolute claim of executive privilege, holding that it was for the Court to delimit the bounds of any privilege. That privilege is narrow and can be overcome by Congress’s need for the information.  If the president has a legal argument, it will largely be based on the claim, which is inaccurate, that he has the “exclusive” authority over all of the matters under subpoena. Even if that claim is applied to the Special Counsel investigation, it should be rejected, just as the Office of the Legal Counsel once rejected its underlying theory—that the “unitary executive” allows the president unlimited authority within the executive branch. Since 1927, when Congress subpoenaed Harry Daugherty, a former Attorney General, the Supreme Court has upheld Congress’s right to investigate the executive.

The problem with these upcoming court battles is not that the House will lose its judicial battles, but that these battles will take time. In Watergate, the Supreme Court accepted the tapes case before a final judgment below because of the “public importance” of the issues and “the need for their prompt resolution.” Let us hope that judges in these cases are savvy enough to understand that their decision should be issued with all deliberate speed. This president would not be the first to claim executive privilege, delay, and hope that, in two years, there would be a new Congress which might drop the matter.

At stake here is a well-functioning Republic. The separation of powers rarely finds its way to the Supreme Court, in large part because the branches negotiate the distance from the Capitol to the White House in good faith almost every day of the week.   They do this with a basic set of guidelines that are well known in Washington and set forth in rare, but clear, Supreme Court cases. If this president means to change the rules, he will first have to go to court. To an outsider, these judicial battles may look like just one witness and one subpoena, but what is stake is much bigger:  it is about the very form of our government.  Presidents have increased their power exponentially over the past decades. In these oversight cases, the question is whether courts will do their duty to recognize the legitimate constitutional powers of Congress.

Understanding the Role of Textualism and Originalism in the LGBT Title VII Cases

*Professor Eyer has written extensively on the issue of LGBT employment rights. Her most recent article on this subject, Statutory Originalism and LGBT Rights, is available here.

Update: Eyer appeared at the ACS Supreme Court Preview event in Washington, D.C. on September 25. Watch the recording of the event.

On Monday, April 22, the Supreme Court granted certiorari in three cases raising the question of whether anti-LGBT discrimination is “because of…sex,” and thus unlawful under Title VII. This issue—which has divided the lower courts—represents one of the most significant civil rights issues affecting LGBT Americans. Rates of employment discrimination against the LGBT community remain high, and no independent federal law proscribes sexual orientation or gender identity discrimination in employment. Thus, answering the question of whether anti-LGBT discrimination is also “because of…sex” will determine for many LGBT employees whether they are protected against even the most explicit and harmful forms of discrimination on the job.[1]

As I have written previously (see Sex Discrimination Law and LGBT Equality), Title VII precedent strongly supports a ruling that anti-LGBT discrimination is indeed, necessarily also sex discrimination. And for the Justices on the Court who have no competing methodological or normative commitments, it seems likely that this existing Title VIII precedent will be dispositive of their votes.

But what about for those Justices who profess commitments to textualism and/or to originalism? Despite the rule of “super-strong” stare decisis in the statutory context, textualists and originalists often have a somewhat less deferential relationship to precedent—accurately deeming it to be potentially in tension with a truly textualist or originalist approach. And textualism and originalism both are often associated in the popular imagination with conservative causes, which might suggest that in this case, LGBT plaintiffs would lose if those methodologies are applied.

So, is there any hope of attracting the vote of Justices who are self-professed textualists or originalists (most of the conservative wing of the Court)?

As set out below, the answer to this question ought to be “yes.”  Neither textualism nor originalism are inherently “conservative” approaches, in the sense of necessarily leading to politically conservative results. (Consider, for example, the work of the Constitutional Accountability Center). And here, textualist arguments strongly support LGBT advocates’ claims to inclusion—indeed so strongly that to hold otherwise would require resort to long discredited contra-textualist approaches. Even most originalist arguments—including those most commonly made in this context, relying on historical dictionary definitions of “sex”—also lead to a pro-LGBT inclusion result. It is only by relying on a narrow, largely discredited brand of “original expectations” originalism—one fundamentally inconsistent with core tenants of textualism—that a judge could reach an exclusionary result.

In order to see this, one need only, as textualists often admonish, “begin with the language of the statute.” Although there are other provisions of Title VII to which one could look in making arguments for LGBT inclusion, the most straightforward analysis arises from Title VII’s core disparate treatment provision, 42 U.S.C. § 2000e-2(a)(1).[2]  That provision states that, “It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…sex.” Thus, the key question a textualist must confront in the LGBT cases before the Court is whether anti-LGBT discrimination is “because of…sex.”

As increasing numbers of judges in the lower courts have recognized, the answer to this question is clearly “yes.”  It is literally impossible to discriminate on the basis of sexual orientation or gender identity, without having it also be “because of…sex.” Consider, for example, the case of Susan the lesbian. If Susan were Mark, a cisgender man, also attracted to women, she would not have been fired. Susan’s firing is thus, quite literally, “because of such individual’s [i.e., Susan’s] …sex.”

Similarly, John, a transgender man who is fired for claiming a male identity, and having a male appearance, would not have been fired if he, like Mark, were assigned the male sex at birth. It is thus, “because of [John’s] sex” that he was terminated. As the Supreme Court has repeatedly held, prohibitions on discrimination “because of” protected class status proscribe, at a minimum, discrimination in which protected class status is a but-for cause. And in each and every case of anti-LGBT discrimination, the employee’s actual or perceived sex is a but-for cause of the adverse action.

Note that of course the outcome of this textualist analysis is no different here even if one uses the narrowest historical definition of sex—as a “biological” man or woman.[3]  As set out above, Susan’s “biological” womanhood—her status as an individual who was assigned the female sex at birth—is still a but-for cause of her termination when she is fired for being a lesbian (since she would not have been terminated if she were an individual who was assigned the male sex at birth, but who was attracted to women). So too, John’s “biological” sex—defined historically by his sex assigned at birth—is a but-for cause of his termination (since he would not have been terminated for identifying or appearing as a man, if he had been assigned the male sex at birth). Thus, on a straightforward textualist analysis, anti-LGBT discrimination is necessarily also “because of…sex.”

But what about originalism? As noted above, a textualist analysis does not change even taking an “originalist” approach to textual interpretation, and adopting a narrow, historical definition of sex. This may seem counterintuitive to those who may have heard (erroneous) claims from both the right and the left that—if originalism controls—LGBT plaintiffs must lose. Understanding the fallacy of this argument—and why the most widespread and accepted strains of originalism actually counsel in favor of LGBT inclusion, not exclusion—requires disaggregating the multiple, inconsistent, theories that are often interchangeably referred to as “originalism.”

The most accepted form of “originalism” today—and the only form that has support in modern federal statutory interpretation case law—is that which looks to the meaning of words at the time of the statute’s enactment and relies on that meaning as the starting point for textualist analysis. Though there are arguments that the relevant time of enactment should be later than 1964—for example the Civil Rights Act of 1991—most commentators have focused on Title VII’s original enactment date in 1964. Thus, an originalist argument in this vein might look to definitions of sex in 1964 and use those definitions as the starting point for their textualist analysis of whether anti-LGBT discrimination is “because of…sex.”

But as set out above, this type of originalist argument still leads to a pro-LGBT inclusion result. Even under the very narrowest historical definition of sex in 1964, discrimination against LGBT employees is still literally “because of…sex.” Susan the lesbian would still be employed, were she a “biological” man attracted to women, and John the transgender man would still be employed were he a “biological” man who presents as a man.[4]  Their termination is thus “because of” sex on a straightforward but-for account. The error of those contending otherwise is their overriding focus on the term “sex,” while utterly ignoring the phrase “because of.” But what the statute proscribes is, of course, adverse actions taken “because of…sex”—one cannot simply excise “because of” from the statutory text. Thus, statutory originalism in its accepted forms—including those embraced by the Court in recent cases like Wisconsin Central v. United States and New Prime v. Oliveira—still leads to the result that anti-LGBT discrimination is covered by Title VII.

It is only by resorting to a largely discredited form of “originalism”—one that contravenes textualism—that opponents of LGBT inclusion have been able to argue to the contrary. Specifically, judges and advocates opposed to LGBT inclusion have suggested that the “original public meaning” of Title VII must control—and that because the original public would not have imagined that LGBT people were protected by Title VII, the claims of LGBT employees today must fail. But this is a form of originalism that has been widely discredited by modern textualist statutory interpretation case law (mostly authored by no less an authority than the late Justice Scalia). As such case law makes clear, the words of broad statutes cannot be cabined by the narrow expectations of their drafters as to where they might apply. Though those making this argument have shifted their focus to the expectations of the “original public” (as opposed to Congress), they have offered no justification for why such a contra-textualist approach should be permitted simply because they are now focusing on the expectations of a different actor (the original public instead of Congress). To the extent that the Supreme Court has said that the language of the statute must control, allowing the expectations of the original public to trump that language seems facially no more legitimate.

In understanding why—as the Supreme Court has held—this “original expectations” approach is inconsistent with textualism, it is useful to unpack the variety of reasons why Congress, or the original public, might not anticipate a particular application of a textually broad statute. Contrary to the rhetoric of opponents of LGBT inclusion, it is not only changes in the meaning of a statute’s words that can explain why actors at the time of enactment might not anticipate a particular application of a textually broad statute. Those reasons might include, as the Court points out in Wisconsin Central, developments in technology that were not anticipated at the time. Or, as in the case of Oncale v. Sundowner Offshore Services, they might include a lack of imagination of foresight. Or, they might, as in the LGBT cases before the Court, include that a group was so stigmatized at the time of enactment that the original public would never have imagined that they were imbued with rights by the law (even if the literal language led to that result). Finally, they might, in some cases, arise from the fact that the meaning of the words of the statute have indeed changed. But it is only the last of these that is plausibly characterized as being consistent with textualism. To the extent exclusions based on original expectations rest on the others, it is simply an argument for allowing historical subjective beliefs to override statutory text.

This contra-textualist approach to statutory interpretation is not only inconsistent with modern textualist statutory interpretation case law, it is not even consistent with the views of most modern originalists. Though “original expectations” originalism—deeming the specific expectations of enactment-era individuals dispositive—was once the dominant originalism perspective, most modern originalists no longer give original expectations primacy. Indeed, many modern originalists make the claim that originalism and textualism are essentially the same thing, a claim that is impossible to make unless one cabins original expectations to the considerably narrower role of simply offering us evidence about what the words of the statutory (or constitutional) provision might have meant at the time. But, as detailed above, even assuming we know what sex meant at the time—and even assuming that it meant something narrow—this does not avoid the fundamental problem for opponents of LGBT inclusion: that even under the narrowest of definitions of sex, anti-LGBT discrimination is still literally “because of…sex.”

In attempts to avoid the appearance of arguing for this discredited contra-textual form of originalism, most proponents of “original public meaning” in the LGBT Title VII cases have rhetorically framed their arguments at least partially around the far more accepted approach of looking to the meaning of “sex” at the time of Title VII’s enactment. But to the extent that is their argument, it poses no genuine challenge to the arguments of advocates for LGBT-inclusion. As set out above, that form of originalism still leads to the conclusion that anti-LGBT discrimination is covered, since it is still, literally, “because of…. sex.” It is only by ignoring the plain language of the statute—and resorting to a form of subjective contra-textual originalism that has long been discredited—that opponents could successfully argue for an LGBT exclusionary result.

In conclusion, it is worth quoting in full Justice Scalia’s words in response to arguments that same-sex harassment must be excluded from Title VII’s broad proscription on discrimination “because of…sex.”  In Oncale, just as in the current LGBT cases, the centerpiece of the defendant’s arguments was that same-sex sexual harassment—which they conflated with anti-gay harassment—was not a former of discrimination that Title VII was expected to proscribe.  But as Justice Scalia wrote, for a unanimous Court:

“We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.”

Here, anti-LGBT discrimination “meets the statutory requirements”: it is “because of sex.” Thus, a textualist Justice (and even an originalist Justice, to the extent they adhere to a textualist approach to originalism), ought to find in favor of LGBT inclusion.

Related: Katie Eyer’s 2017 issue brief, Sex Discrimination Law and LGBT Equality

[1] There are also laws in some states and localities that protect LGBT employees against discrimination, and LGBT employees have sometimes also relied on other fact-specific theories to obtain relief. These potential avenues to relief would remain, regardless of what the outcome is of the cases pending before the Court.

[2] Title VII was amended in 1991 to include language that states that “an unlawful employment practice is established when the complaining party demonstrates that…sex.. was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). Though this language also provides an independent basis for arguing that anti-LGBT discrimination is sex discrimination, I focus my discussion herein on Title VII’s “because of…sex” provision.

[3]Opponents of LGBT inclusion have assumed that “biological sex” is a straightforward concept, despite the fact that modern medical understandings suggest that it is not. For the purposes of my discussion herein, I use the term as it is commonly used by opponents of LGBT inclusion, and as it was most commonly understood in 1964—to refer to the sex assigned an infant at birth, typically on the basis of their external genitalia.

[4] Again, here, I am using the term “biological” sex here in the way that it is commonly used by proponents of historical approaches to construing Title VII, to connote sex assigned at birth on the basis of external genitalia.

ICE Contract Facilities, Including Counties, Continue to Violate the Religious Exercise Rights of Muslim Detainees

Religious freedom is a foundational value. It is so important that the First Amendment is dedicated to protecting it and there are clear laws in place requiring all detention facilities to allow people to worship freely. But immigration authorities don’t seem that interested in living up to that promise for Muslims and other non-Christian immigrants.

There are potentially dozens of detention facilities across the country, where immigration agencies and their contractors routinely mistreat and deny basic rights to inmates. Horror stories abound of immigration authorities locking children in cages, keeping detainees in dangerous conditions, feeding them spoiled food and even dozens of women in custody having miscarriages. But the abuse doesn’t end there.

Religious discrimination against immigration detainees is also a serious and growing problem. At a federal facility in Victorville, California, prison officials blocked Muslim, Catholic and Hindu immigration detainees from worshiping in groups and from obtaining religious diets and articles. In Texas, U.S. Customs and Border Protection would only provide a pork sandwich every eight hours to a Muslim detainee.

Similarly, when five Somali Muslim immigrants arrived at Glades County Detention Center, a jail in central Florida that rents beds to U.S. Immigration and Customs Enforcement (ICE), they were denied access to a Quran, religious meals and other necessities like beads, prayer rugs and even a simple sheet of paper with a prayer schedule printed on it. When the immigrants asked why the facility wouldn’t even take minimal steps allowing them to observe their religion, they were told, “Boy, you’re in Glades County.”

Federal and Florida law protect religious liberty for all. This should mean that all people in this country, including immigrants and refugees, are guaranteed the right to observe their religion, even while incarcerated or detained. But the shocking mistreatment of the men housed at Glades and other facilities shows that we are failing to protect this fundamental right.

There is no compelling reason for Glades County—or any facility—to deny Muslims Qurans and religious meals or to interfere with their prayers. Prayer schedules are free to print out. Charitable organizations will donate Qurans. And many prisons and detention centers around the country manage to provide Muslim detainees with meals at cost and that are halal, or religiously permissible. Additionally, Glades has no trouble allowing Christians to practice their faith. But Glades has refused to provide even these minimal accommodations to Muslims. Meanwhile, taxpayers dish out more than $ 30,000 a year per detainee to facilities like Glades creating massive profits for counties and investors.

ICE “detention standards” in theory guarantee minimum humane conditions for immigration detainees housed at local jails. At Glades and at many other contract facilities, however, only the most outdated standards apply, via the facility’s contract with ICE. And, as found by an Office of the Inspector General report on all contract facilities in June 2018, ICE refuses to enforce even these weak standards: “neither [ICE] inspections nor . . .  onsite monitoring ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections.

The Somalis’ experience is part of a pattern at Glades, which has consistently denied Muslims access to Qurans and religious counseling and services since at least early 2017. Yet when ICE reviewed Glades for compliance with religious exercise detention standards in 2017, it found that the facility complied, despite significant evidence to the contrary.

More than a year after arriving at Glades, the five Somali men are suing Glades County Detention Center and ICE for violating both Florida and federal law. As their attorneys, we at Muslim Advocates and our co-counsel at Americans for Immigrant Justice are working to vindicate their rights and halt future violations at the Glades facility. It is time for Glades to fully accommodate all detainees’ religious practices and for ICE to hold Glades accountable by imposing financial penalties or by declining to renew the detention contract.

After being told “Boy, you’re in Glades County,” one of the Somali immigrants wondered aloud, “But isn’t Glades County in America?” Allowing detainees to practice their faith isn’t just what the law requires, it is also the right thing to do. Anything else is an insult to the Constitution and offends American values.

Yusuf Saei is a Yale Law School Arthur Liman Public Interest Fellow at Muslim Advocates. His work is focused on the religious free exercise rights of prisoners and immigration detainees.