Category: Civil Rights


Government Lawyers’ Ethical Obligations and the War on Terror

Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Read More


The Blossoming Union of Same-Sex Marriage and Religious Freedom

After approval of Proposition 8 in California last fall, who would have expected to find the movement for same-sex marriage and concern for religious freedom on common ground in the spring? As legislatures in Vermont and Connecticut have just demonstrated, however, a long-overdue reconciliation between claims of marriage equality and those of religious liberty is there for the taking.

In the fight over Proposition 8, social conservatives used arguments about religious freedom as a sword. Their most prominent arguments were spectacularly overstated. Some proponents of Prop 8 warned, for example, that recognition of gay marriage would lead to hate speech prosecutions of anti-gay pastors, and loss of tax exemption for churches that refused to host same-sex marriages. Though neither of these developments was remotely likely, some voters were apparently moved by these assertions to support Prop 8.

Very recently, however, same-sex marriage has gotten a tremendous boost. In early April, the Iowa Supreme Court and the Vermont legislature, acted in favor of same-sex marriage. On April 23, the Connecticut legislature did likewise. But Vermont and Connecticut, acting through the legislative process, took steps that are not open to courts in cases like that in Iowa. Both the Vermont and Connecticut legislatures acted to protect religious freedom as well as marriage equality. The recently enacted Vermont law recognizes the right of clergy to not preside over same-sex marriages; the right of religious organizations to refuse the use of their facilities to celebrate a same-sex marriage; and the right of fraternal benefit societies, such as the Knights of Columbus, to refuse to provide insurance benefits to same-sex partners of its members if the organization has religious scruples against doing so. The Connecticut law includes those three safeguards for religious liberty but goes farther still. It insulates religious organizations from liability for refusing to provide any goods or services when the request for such goods or services arises from a same-sex marriage – so, for example, a religiously affiliated college would not have to make its married student housing available to a married same-sex couple. And the Connecticut law exempts adoption and foster care services run by religious organizations from any obligation to serve same-sex couples, so long as these services are not government-funded. Thus, in Vermont and Connecticut, religious liberty became a shield for religious freedom against the intrusion of same-sex marriage on traditional religious values, not a sword to be used against all recognition of such marriages.

Read More


Public opinion on same-sex marriage

Thanks again to Danielle and Dan for inviting me to blog here this month. I didn’t expect, when I started this guest-blogging stint, that same-sex marriage would be a primary focus of my posts–it’s something I care about as a citizen, but not one of my academic research fields. But my posts have been largely driven by events, and it seems clear that April 2009 will be looked back upon as a turning point in this civil rights movement. The month started with major developments in Iowa, Vermont, and DC, and today it ends with what strikes me as even bigger news: the Washington Post and ABC News released what I think is the first nationwide poll showing that more respondents support same-sex marriage than oppose it. The split (49% to 46%) is within the poll’s margin of error, but even so, it represents a pretty dramatic shift–less than three years ago, the same poll split 58% opposed and 36% in favor.

The Post article treats this as being largely a story about demographics, and of course that is part of the explanation: young people are much more likely to support marriage equality than older people. But the composition of the population hasn’t changed fast enough to explain shifts of this magnitude in a few years–it’s also got to be that a lot of people, young and old, have changed their minds. As I suggested in an earlier post, court decisions might have contributed to that change–by direct persuasion, by starting a statewide or nationwide conversation that gets people to question traditions, or simply by allowing gay and lesbian couples to begin to marry (which could shape public opinion as people realize that fears about the effects on marriage as a social institution have not panned out).

In any event, whatever the role of courts in bringing about this cultural shift, now that it’s happening, it suggests that the courts will probably play a less central role in pushing the movement toward marriage equality forward in the future. This is increasingly becoming a battle that marriage equality advocates can win in legislatures and at the ballot box. As the poll numbers shift, we’re likely to see increased support for same-sex marriage from politicians who might have been reluctant to take that stand previously. (I suspect this will eventually include President Obama.) That support may be led by Democrats, but it will cross party lines. Of course, this cultural shift is far from being complete, as California voters demonstrated a few months ago. There are still a substantial number of energetic opponents (like the National Organization for Marriage, which I’ve noticed seems to have dropped its priceless “2M4M” slogan). But the road ahead may not be that long. Check out statistician Nate Silver’s state-by-state projections–a few weeks ago, he predicted that every state will have majority support for marriage equality by 2024. Silver also projected that marriage equality would achieve majority support nationwide by “sometime in the 2010s”–so if the Post/ABC News poll is correct, Silver’s projections may have been on the conservative side.

Increasing public support matters, and not just because it is likely to affect the ultimate state of the law–I suspect that given a choice between achieving marriage equality through the courts and achieving it through the democratic process in the same timeframe, just about every equality advocate would prefer the latter (even if the court decisions couldn’t be overturned by referendum). That’s because the battle over same-sex marriage is ultimately one about social meaning–it’s about the expressive power of the law. Sure, it’s about the various legal benefits attached to marriage too, but if that were all it was about, then both sides of the struggle would treat civil unions as being interchangeable with marriage, and they don’t. The recognition of committed same-sex unions as marriages is a social statement that such unions, and the men and women in them, are worthy of respect rather than stigma. So if the ultimate goal is to foster inclusive social norms, then changing public opinion isn’t just a sign that the movement may achieve its goals–in an important sense, changing public opinion is the central goal. Court decisions, in contrast, can only ever be a step along the way.


Affirmative Action Under Review Today: Ricci v. DeStefano

This morning, the Supreme Court will hear arguments in Ricci v. DeStefano, an affirmative action case involving the promotion of firefighters in New Haven, Connecticut. According to The New Republic’s Jeffrey Rosen, the city administered a promotion test in 2003, which had been validated by independent experts pursuant to federal law to ensure that it focused on job-related skills instead of purely cognitive ones. None of the top-scoring candidates for 15 available positions were African American. As Rosen explains, a local preacher contacted the mayor to suggest that the test should not be certified due to its racial disparities. The local civil-service board deadlocked as to whether the test should be certified. As a result, the city declined to certify the test, denying promotions to those who passed the test. Nineteen white fire fighters, along with one Hispanic fire fighter, sued the city for its refusal to certify the test.

The case highlights an important tension between Title VII law and constitutional requirements deriving from Equal Protection. Title VII requires employers to examine whether facially neutral hiring practices that produce a disparate impact are justified on grounds of “business necessity.” In that sense, Title VII asks employers to focus on the race of the candidates that the tests produce. At the same time, Equal Protection case law addressing employment practices appears to forbid racially-conscious hiring practices. This leaves employers like the New Haven Fire department in a bit of a bind. May they take the race of the firefighters eligible for promotion into account or not? In a post on Balkinization yesterday, Deborah Hellman criticizes the fact that the briefs in the case focus heavily on the question of what exactly the New Haven fire department intended to do. As she explains, one can easily describe the city’s aim as either racial balancing (forbidden under the Equal Protection Clause) or a good faith attempt to comply with Title VII (which is permitted). In her excellent book When is Discrimination Wrong?, Hellman carefully and cogently argues that when it comes to determining whether state action constitutes wrongful discrimination, “It’s Not the Thought that Counts.”

Here’s how her view would handle Ricci v. DeStefano. First, her approach would pose the question as one of objective interpretation rather than of mining the subjective motivations or intentions of the New Haven Civil Service Board. Her approach would ask: may a state employer decline to hire on the basis of a facially neutral hiring method when doing so produces a disparate impact? We do not need to know whether the Board declined to use the test because of the disparate impact. We need only ask whether it is constitutionally permissible not to use a test with a disparate impact. The answer to this question is likely to be yes. But that’s not all. As she also discusses in the book, facially neutral action that produces disparate impact can sometimes violate Equal Protection. It does so when the social meaning of the action demeans anyone or any group. So, as Hellman explains in the book, the Court wrongly decided the 1971 case, Palmer v. Thompson, because the city of Jackson, Mississippi’s decision to close the only public swimming pool rather than integrate was clearly understood as sending the message that white kids couldn’t possibly swim with black kids, thereby demeaning African-Americans. The relevant question in Ricci is thus does the Board’s decision to abandon the test and promote nobody demean the high scoring white and one Hispanic firefighter? While Hellman’s approach doesn’t tell us how she would answer this question, I think the clear answer here is that it would not.


The Separation of Church and Market?

Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:

In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws ­ laws not promulgated with the intention of affronting anyone’s conscience ­ the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:

Read More

Online Symposium: Citron’s Cyber Civil Rights

From tomorrow through Thursday, Concurring Opinions will be hosting a number of scholars invited to discuss Danielle Citron’s work Cyber Civil Rights. Responding to controversies over online attacks, Citron argues the following:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations. . . .

Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond. General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

As I’ve noted before, I think this piece breaks new ground in applying venerable laws to the online environment. In this cyber-symposium, we propose to discuss the following issues:

What can the law do to respond to these threats?

How we deter harassment while promoting legitimate speech?

How do we balance the privacy rights of speakers and those they speak about in the new communicative landscape created by sites like AutoAdmit, Juicy Campus, Facebook, and anonymous message boards?

A list of scholars invited to discuss these issues appears below:

Read More


And more good news for marriage equality….

Quick follow-up to Friday’s post: Vermont just became the first state to adopt same-sex marriage by legislative vote, with an override of the governor’s veto. A couple of questions for commenters:

–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)

–What lessons will historians draw concerning the ability of courts to promote social change? As readers no doubt remember, Vermont’s supreme court issued a landmark decision nearly ten years ago requiring reform of the marriage law, but holding that civil unions were a constitutionally permissible alternative to marriage. The legislature at that time chose civil unions, but over the course of the past decade, apparently, social norms in Vermont have shifted. Can the judicial decision be credited with triggering that shift, by starting a statewide (indeed, nationwide) conversation? If so, was the court’s deference to the legislature in selecting the remedy wise from the perspective of promoting lasting social change? Or could a similar result have been reached if the court had just gone the whole distance on its own, as in Massachusetts or Connecticut–or California, where chances are good, considering demographics and changing attitudes, that it won’t take ten years for the people to reinstate the rule adopted by the high court? (Of course, these comparisons are complicated by the fact that Vermont’s decision came considerably earlier in our national conversation about this issue. In 1999, the main precedent for the Vermont court to consider was what had happened in Hawaii, where voters had amended the state constitution following a court decision that had taken a big step toward legalizing same-sex marriage.)

UPDATE: Also today, the city council of Washington, DC voted unanimously to recognize same-sex marriages performed in other states. It’s been an eventful few days on this front!


John Hope Franklin 1915-2009

I wanted to note the passing of John Hope Franklin, the great historian of the African-American experience in this country, who passed away last week. Professor Franklin was part of Thurgood Marshall’s team during the Brown litigation, and his 1947 book “From Slavery to Freedom: A History of American-Americans” is still considered a classic in the field.

I had the pleasure of meeting Professor Franklin three years ago when I was doing research at the FDR Library in Hyde Park. The reading room there is rather small and only a few people were there when he came walking in with a librarian who blurted out, “Hey, everybody! It’s John Hope Franklin.” We all went over to chat and he couldn’t have been more gracious, asking me about my work in detail. (He did seem a tad disappointed when I told him I was a lawyer rather than a historian, but that passed quickly.) I was struck by his approach because I’d seen an interview with him not long before where he explained that as a young man he met W.E.B. Dubois, who was pretty nasty and dismissive towards him — a lowly graduate student. He made sure not to treat others that way.

John Hope Franklin led an exemplary life as a scholar and a citizen. We can all aspire to that standard, but it’ll be hard to match.


Marriage Equality in Iowa

The Iowa Supreme Court today unanimously struck down the state’s marriage law as a violation of the Iowa equal protection clause. I don’t have much to add to the well-reasoned opinion, but just wanted to call it to the attention of anyone who missed it, as it is currently buried in scrolldown-required small print at the New York Times and Washington Post websites. (Seriously, I know this isn’t the first state, but isn’t this still newsworthy?)

A brief summary, in case you don’t have time to read 65 pages: The Court holds that intermediate scrutiny is appropriate because (a) gays and lesbians have long been victims of invidious discrimination, (b) sexual orientation is unrelated to ability to contribute to society, and (c) sexual orientation is at least largely immutable. (The Court points out that it doesn’t need to find definitively that nobody can ever change his or her orientation to justify intermediate scrutiny; after all, some people change their sex.) Applying this standard, it then rejects all of the county’s proffered justifications for marriage exclusion. First, the claim that the marriage law should be upheld “to preserve the traditional definition of marriage” is tautological, and treats discrimination “as an end in itself.” Second, the claim that opposite-sex parents are better for kids has been disproven by a raft of studies, and even if it were true, marriage exclusion is a poor fit to the kid-protective aim: the law does not prevent gays and lesbians from becoming parents, and it does not exclude from marriage people who would undoubtedly make way worse parents, like straight convicted child abusers, while it does exclude gays and lesbians with no intent to raise children. Third, the related “promoting procreation” goal also lacks a substantial relationship to the law—straight people will not stop having babies because gays and lesbians can marry. Fourth, the goal of “stabilizing opposite-sex relationships” likewise has no logical relationship to excluding gays and lesbians from marriage. Finally, the goal of saving the state money in taxes and benefits could justify excluding any group from marriage, but intermediate scrutiny requires that there be a good reason to exclude this particular group and not everybody else.

Notably, this decision apparently will not result in an initiative campaign this fall. According to the New York Times story, Iowa law requires constitutional amendments to be approved by two consecutive legislative sessions, and only then approved by voters. That’s good news for marriage equality, because as demonstrated by the experience of Massachusetts (which has a similar amendment procedure), the longer same-sex marriage is in place, the more public support it gains. Given a little time, straight citizens tend to recognize that their own marriages haven’t fallen apart, nor has the sky otherwise fallen, just because other loving couples are also able to recognize their commitments through marriage.


Cyber Harassment: Yes, It is a Woman’s Thing

In response to yesterday’s post, commentators questioned whether cyber harassment is a gendered problem. The answer is yes. While cyber attackers target men (see my post here), more often their victims are female. According to a University of Maryland study, online users who appear female are 25 times more likely to receive threats and sexually explicit messages than online users with male names. The disproportionate targeting of women accords with statistics compiled by the organization Working to Halt Online Abuse (WHOA). In 2007, 61 percent of the individuals reporting online abuse to WHOA were female while 21 percent were male. 2006 followed a similar pattern: 70 percent of those reporting online harassment identified themselves as women. Overall, in the years covering 2000 to 2007, 72.5 percent of the 2,285 individuals reporting cyber harassment were female and 22 percent were male. 70 percent of the victims were between the ages of 18 and 40 and half of them reported having no relationship with their attackers.

What of the comment that these statistics are somehow skewed because women are just more likely to “*complain* about it [whereas] Men are more likely to either ignore it, see it as trivial, or engage in self-help.” Here, the study from the University of Maryland’s Department of Electrical and Computer Engineering Department is particularly instructive. Robert Meyer and Michel Cukier studied the threat of attacks associated with the chat medium IRC. They used a combination of simulated users (i.e., bots) and regular users. In an experiment using silent bots, they tested whether or not the gender of the user-name had an affect on the number of attacks received. The female names used were Cathy, Elyse, Irene, Melissa, and Stephanie. The male names were Andy, Brad, Dan, Gregg, and Kevin. The study found that female bots received on average 100 malicious private messages a day while the male bots received an average of 3.7. It found that the user gender had a significant impact on the number of sexually explicit and threatening messages received. Moreover, studies suggest that women under-report cyber harassment due to feelings of shame, not over-report as the commentator suggests.

Read More