Category: Civil Rights


The M Word

David Blankenhorn and Jonathan Rauch have an Op Ed in the New York Times on “A Reconciliation on Gay Marriage.” Blankenhorn has spoken out strongly against gay marriage. Jonathan Rauch has been in favor of it. They think they have struck a deal. Here is their proposal:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

The gist of the proposal is that same-sex couples could receive federal benefits, while religious entities would not be forced to recognize their unions. B & R note that the First Amendment likely means no church can be required to perform a same-sex union. Under the proposal they offer, a church auxiliary or charity also could not be forced to give spousal benefits to the partner of a gay employee; a faith-based nonprofit would not lose tax status by refusing to host a gay wedding ceremony.

The proposal is likely to generate a good deal of discussion and opposition on both sides. Marriage proponents will object to the seemingly broad exemption for religious groups; marriage opponents will object to any conferral of federal benefits on same-sex couples.

One aspect of the proposal, which might easily be overlooked, strikes me as fatal.

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Title VII, the Adverse Action Requirement, and Ricci v. DeStefano

The reverse discrimination case Ricci v. DeStefano , in which the Supreme Court recently granted certiorari, is a strange case for the Court for a number of reasons. One oddity is the fact that the case involves a Title VII Civil Rights Act claim by plaintiffs who do not seem to have suffered an “adverse employment action,” and yet there is no hint anywhere, at least that I have seen, that this issue was raised. In the traditional discrimination context, courts have consistently required that a plaintiff have suffered an adverse employment action before he or she has an actionable claim under Title VII. Many courts define the requirement strictly, to require an “ultimate” employment action, like refusal to hire or to promote, and even those applying a somewhat broader definition require that the race- or sex-based decision have had a material effect to be actionable. The firefighters in Ricci had suffered no such material effect. Why no mention of this in the case? If courts are really going to apply an adverse employment action requirement to Title VII claims, the requirement should apply regardless of how obvious the racial motivation and certainly regardless the race of the plaintiffs.


The Best Way to Give D.C. a House Seat Is Also the Only Way

Professor Rick Hasen has a piece up at Slate on the D.C. Voting Rights bill. He says that the bill—which would give D.C. residents a voting member of the House of Representatives—is “probably unconstitutional,” but that “Congress should pass it” anyway. That’s what the Washington Post editorial board thinks too, saying that Congress should leave constitutional-law debates to the courts and do what is right. They agree with Rep. Steny Hoyer that “the case should be made on principle, not technicalities.”

Since when is adherence to the Constitution a technicality, and not a principle? I agree that D.C. residents deserve representation, and I would support a constitutional amendment to give them some (or perhaps to let them go back to being part of Maryland). But I think that an amendment is necessary, because the Constitution limits the House to members from “the several states,” and D.C. is not a state.

To me, Hoyer’s dismissal of the Constitution—as a technicality to be brushed aside—is the opposite of principled. This country is not better off when it encourages members of Congress to abdicate their responsibility and their oath to support the Constitution. Our belt-and-suspenders system is supposed to give us multiple lines of defense against unconstitutional laws: the House, the Senate, the president, and the courts are all supposed to agree that a law is constitutional before it can be used. Leaving it to just the courts is like taking off the belt and one of the suspenders, and having the remaining suspender be very loose. I would very much prefer to keep America’s pants on.

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A New Day Dawning at Justice

As the full measure of lawlessness at the Bush Office of Legal Counsel gets disclosed, many lawyers have anxiously awaited the nomination of a new OLC head capable of repairing the damage. The appointment of Dawn Johnsen is a sign that Obama is serious about righting the ship here. As Prof. Johnsen wrote about the infamous torture memo:

The shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it–all demand our outrage.

Unlike the legal academy’s many “Professors Strangelove,” Prof. Johnsen had the courage to uphold lasting American values in the face of temporary passions demanding their discarding. Congratulations to her on this well-deserved appointment.


Individualizing v. Generalizing

Thanks to Dan for inviting me to blog this month. I’m looking forward to it.

I’ll start with two pieces in the NY Times Sunday Magazine this week that raise interesting questions about individualization versus generalization and the struggle for equality for women and people with disabilities.

In Creature Comforts, Rebecca Skloot reports on the difficulty faced by people with disabilities seeking to use a variety of animals to assist them in day-to-day public life. In doing so, she identifies the inevitable tension between the individualized inquiry required by the ADA and the urge (and sometimes need) to generalize. The people maintaining public spaces, including those who use those spaces, want bright lines about which animals are permissible service animals, while the ADA requires that they accommodate individuals with disabilities and their individualized needs.

Similarly, in The Senator Track, Lisa Belkin comments on the difficulty that women (including Caroline Kennedy) face when they seek jobs after taking what she calls a “mom sabbatical.” Belkin claims that we need to redefine “experience” so that “what you do, and think, and produce, and change all count—even if none of your activities take place in an office, where you enjoy a title and a salary.” This call for individualized inquiry, however, butts up against the simplicity and utility of generalization; in short, working in an office with a particular title serves as a general proxy for a group of skills that Belkin would have employers examining on an individual basis (e.g., ability to run meetings, to arrive on time, to manage accounts, etc.).

The fight for individualization over generalization is a worthy one. In setting up the equality struggle in this way, however, both pieces miss an important component of the battle: longstanding and entrenched biases. In the disability context, our perceptions and judgments about the suitability of certain animals for public accommodation are undoubtedly intertwined with our biases regarding difference (and our definitions of “normalcy”). It will be much easier, I expect, to get people to accept, for example, horses as service animals for the blind than it will be to get people to accept a parrot as a service animal for a man prone to psychotic episodes. Similarly, the difficulty faced by women who take time out of the traditional work force to provide care for family members is as much one of stereotypes as it is of a more neutral inclination to generalize. I’m reminded here of research by sociologist Shelley Correll and colleagues at Cornell on the motherhood penalty (for a recent review of the research the work in this area, see Stephen Benard et al., Cognitive Bias and the Motherhood Penalty, 59 Hastings Law Journal 1359 (2008)). This research suggests that a woman seeking to reenter the traditional work market will have to overcome stereotypes that her male counterpart will not. Imagine a mother and a father who each picks up a child from your neighborhood school, Monday through Friday at 1:30 pm. You bump into each one and engage in conversation; which one do you expect will have an easier time convincing you (through subtle signals or otherwise) that he/she is engaged in workforce-related activities between 9:00 and 1:00?


2008, R.I.P.

300px-Mildred_Jeter_and_Richard_Loving.jpgAs 2008 draws near, we naturally have much to reflect upon, from the momentous election and our troubled economy to the War in Iraq and the loss of people who touched our lives in signficant ways. The New York Times Magazine did a magnificent job honoring some of those extraordinary individuals who died in 2008. One person featured in the Sunday Times deserves special mention as we head into the New Year: Mildred Loving, a black woman whose anger over being banished from Virginia for marrying a white man led to a landmark Supreme Court ruling overturning state miscegenation laws.

Mildred Loving married Richard Loving, a white man, in the District of Columbia in 1958. After the wedding, they returned to their home in Virginia where they were promptly jailed under Virginia law for “cohabitating as man and wife, against the peace and dignity of the Commonwealth.” Mildred spent five nights in a rat-infested jail, while Richard spent only one day in jail. The Lovings pled guilty and were sentenced to one year in jail, which the court suspended on the condition that they leave Virginia. After living apart from her Virginia-based family for four years, Mildred Loving wrote a letter to the Washington branch of the A.C.L.U. seeking legal help. She explained: “We know we can’t live [in Virginia]” because “my husband is White [and] I am part negro, & part indian” but “we would like to go back once and awhile to visit our families and friends.” The Virginia judge told them that if they set foot, together, in the state again, they would be jailed for a year, noted Ms. Loving.

As our law students know well, Ms. Loving’s letter inspired two young civil rights lawyers to take up her case, which ended in 1967 with Chief Justice Earl Warren’s ruling striking down Virginia’s anti-miscegenation law on the grounds that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” But something that may be overlooked in thinking about Loving v. Virginia and Ms. Loving’s role in history is the extraordinary bravery that Ms. Loving possessed. Mildred Loving wrote that letter to the A.C.L.U. in June 1963, the same month that Governor George Wallace made good on his “segregation forever” pledge by gathering state police to prevent two black students, Vivian Malone and James Hood, from entering the University of Alabama. No doubt, she knew about the Ku Klux Klan’s bombings, lynchings, and murders throughout the South, including Virginia. Yet, despite the very real possibility that challenging her inability to return to Virginia might endanger her life, she wrote the letter anyway. And she remained steadfast to the ideals of social justice until the very end of her life, when she publicly stated her support of gay marriage on the 40th anniversary of the Loving ruling last year. Mildred Loving, R.I.P.


The Future of Civil Rights

As U.S. News and World Report highlights, civil rights advocates now find themselves in the exciting position of suggesting policy changes to an incoming administration whose Commander in Chief really understands civil rights issues. James Rucker, executive director of, an online community devoted to black politics, notes: “Now we’re moving from hypothetical mode to people saying we have to figure out what our agenda is so we can present it to President Obama.” To be sure, meaningful equality for members of traditionally disadvantaged groups will require policy changes. But it also can, and should, be pursued by enforcing existing law, something the prior Administration had difficulty doing. As Professor Helen Norton testified before Congress last year, the Bush Administration had an appalling record in its enforcement of civil rights laws, including those involving employment discrimination, as compared to previous administrations. And the Obama Administration will undoubtedly reverse that course: at the head of the EEOC transition team is Helen Norton, who served as the Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice during the Clinton Administration, where she managed the Civil Rights Division’s Title VII enforcement efforts. Her most recent testimony before the U.S. House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at a hearing concerning workplace discrimination demonstrates how exciting her appointment as head of the transition team for the EEOC is.


The Frame’s The Thing: Rioting or Celebration?

10292001fan13.jpgAfter the Phillies won last night, I went out to Broad Street with tens of thousands of my fellow Philadelphians to celebrate. I felt happy, but in a vaguely distanced way, stunned as I was by the unexpected reality of a major sports team championship in Philly. Because Philadelphia is such a small place (in some ways) I saw three students on the street in fairly quick order. Good times.

As I watched the celebration gather steam (fireworks! champagne! mosh pits!) I thought back to a post I’d written about watching Naples soccer fans celebrate a soccer victory back in ’07.

Apparently, Naples tied with Genova in a soccer match, resulting in both teams being promoted to Series A soccer, or the major league. This led to a general “celebration” consisting of an impromptu “parade” of thousands of mopeds and cars, flags flying and horns blaring, with the occasional firework (or pistol?) thrown into the mix. I expressed some doubt then and now about the celebratory atmosphere not just because there were some random acts of violence against Genovese fans, but because the scene was decidedly chaotic. I also question whether a parade can occur simultaneously on every main street in town.

Here, again, the naive foreign tourist might think to himself that the law had broken down, resulting in a potentially bad situation, a view itself reinforced by a Napolese citizens who told that tourist that it was “very dangerous” to walk to the train station. But a more realistic analysis demonstrated that so long as that tourist walked at a brisk pace while shouting “Forza Napoli” at intervals, he could effectively comply with the new set of norms and not be sanctioned by passing celebrants. Plus, I hailed a cab halfway through the walk.

This post was accurate, except that “brisk walk” really needs to be re-written as “a terrified shambling run, dragging luggage behind”. I remember thinking, while shambling, that if this were only happening in Philadelphia I wouldn’t be scared, because I would have a better situation sense of what was appropriate celebration and what was rioting. That is, a “riot” is a subjective thing, determined by your own contextual and culturally-determined view of what kind of public behavior is ok. I don’t speak Italian well enough to know what happy screams sound like, and without a nuanced sense of language, smiles start to look like the prelude to a mugging.

This is a long way of saying that while fireworks, smashing bottles, and random people screaming in Naples made me fear for my life, those same activities on Broad Street last night only made me feel closer to my fellow celebrants. I was right: when you are home, raucous celebrations feel entirely appropriate.

That said, it is true that I left the party around 11:30, before a night’s work of drinking kicked in and the scene turned a bit more ugly. (A few upturned cars, some smashed windows, but no reported serious injuries. (Cf. Boston).

(Image Source: Chris Bowers)


Judge Kozinski: The First Amendment Is Dead

free speech rip.jpg

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on “The Late, Great First Amendment.” Typically provocative, Kozinski argued that individuals’ inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat – though remote – of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks’ portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I’m running off to class now, so I don’t have time for an extended analysis, but it strikes me that Kozinski’s eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned – protected by a prior restraint doctrine and fattened by classified ads – is the exception and not the norm in our tradition, so any conclusions relying on the Amendment’s relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty – that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can’t effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)


Better That N Fraudsters Vote Than One Citizen Be Denied the Franchise

Since it’s evident that protections against fraudulent voting and fraudulent registration are certain to result in the disenfranchisement of some legitimate voters, I thought it would be interesting to ask our readers what you thought the right value was for “n,” where n equals the number of illegitimate votes cast in any given election for every one vote that would be prevented by an effective anti-fraud regime.

This question builds on one of my favorite law review articles. I’d argue that since the franchise is less historically rooted than the right to liberty, n=<10. But since the only direct and measurable consequence of voting fraud is to marginally dilute other voters’ franchise, n by necessity must be greater than 1.