Verdict http://verdict.justia.com Legal Analysis and Commentary from Justia Wed, 01 Oct 2014 14:15:50 +0000 en-US hourly 1 Copyright © Verdict 2013 opinionsupport@justia.com (Verdict) opinionsupport@justia.com (Verdict) 1440 http://verdict.justia.com/wp-content/themes/verdict/images/verdictsquare-110.png Verdict http://verdict.justia.com 144 144 Legal Analysis and Commentary from Justia Verdict Verdict opinionsupport@justia.com no no Singling Out Jewish Kaporos For Criticism http://verdict.justia.com/2014/10/01/singling-jewish-kaporos-criticism http://verdict.justia.com/2014/10/01/singling-jewish-kaporos-criticism#comments Wed, 01 Oct 2014 04:01:04 +0000 http://verdict.justia.com/?p=14883 Continue reading →]]> JudaismThis Friday night marks the beginning of Yom Kippur, the Jewish Day of Atonement and arguably the holiest day of the year in the Jewish calendar. During the day before the fast, some observant Jews perform a ritual as part of their atonement for transgressions committed in the past year. With varying spellings, the ritual is called “Kaporos.”

Kaporos literally means “atonement” and involves the penitent’s taking an object and symbolically transferring her sins onto that object. Some observant Jews use a bag of coins as the object and then, after the ritual transfer, donate the money to charity. But in one form of the tradition that has become controversial in recent years, the “object” onto which the atoning person transfers her sins is not a thing at all but a live chicken.

When a person uses a chicken for the kaporos ritual, she swings a live hen (or a rooster, if the penitent is male) around her head three times, reciting the traditional words, “This is my substitute, this is my exchange, this is my atonement. This fowl will go to death, and I will enter upon a good and long life.” After this process, the bird is slaughtered.

Animal protection groups—including Jewish groups—have circulated petitions and have otherwise protested against this practice. In one example of such a protest, Hasidic Rabbi Yonassan Gershon says to fellow Jews, “I beg you, please give money, instead of hurting one of God’s living creatures.” These protests have given rise to their own critiques, including some accusations of anti-semitism. In this column, I will consider why an animal rights advocate might choose to protest the Kaporos ritual, and I will explain my thinking on such advocacy.

Why Oppose Kaporos?

Many of the people who have vocally opposed the practice of Kaporos are themselves Jewish. This fact does not, of course, insulate people from charges of bias. One can be a member of a minority group and simultaneously engage in activities that reflect, manifest, or feed prejudice against one’s own group. The large presence of Jewish people within a particular protest movement does, however, provide some prima facie evidence that the movement is motivated by something other than group-based animus.

So what motivates the protest here, and why would Jews participate? One answer is that anyone who finds animal cruelty disturbing could be motivated to protest a ritual that plainly involves cruelty. A chicken is an innocent sentient being, a bird who has done nothing to deserve to be sacrificed to atone for human sins. To mix metaphors a bit, a chicken used in a Kaporos ritual is a paradigmatic scape goat. The treatment of the bird prior to slaughter, the handling of the terrified bird, and the slaughter itself all constitute violence against a vulnerable creature.

For Jewish people in particular, moreover, this ritual can be a source of personal shame and anger. When I was growing up, my mother—who was a Holocaust survivor—was constantly on the lookout for high-profile embarrassing behavior by Jewish people. There is a Yiddish expression for such behavior—a “shanda fur di goyim”—that loosely translates into a scandal for the nations (i.e., for people who are not Jewish). This is a version of “airing our dirty laundry” in public, and it reflects an intense fear that the public will come to judge all Jews for what some embarrassing individuals among our numbers do, that a few bad apples will incite anti-Jewish hatred and possibly violence. Being a self-identified Jewish person who opposes animal cruelty could therefore give rise both to outrage and simultaneously to anxiety about the impact of reprehensible behavior that one has observed among one’s fellow Jews.

Readers could characterize such a reaction as no less prejudiced than that of an anti-semitic person who targets Jewish misbehavior out of an animus against Jews. In either case, the critic is aiming her critical eye at conduct at least in part because the conduct is that of Jewish people. And because people engaged in the ritual of Kaporos are often not only Jewish but ultra-Orthodox, the worry that “we” will be judged by “their” actions has at least some elements of singling out the outsider for moral condemnation.

I would nonetheless distinguish in-group discipline from outside-bullying in at least one respect. Part of what drives the former, but not the latter, is a sense of community or oneness among the in-group members. I might not want other Jewish people to engage in animal cruelty, because I regard animal cruelty as profoundly immoral, and the first people whose immorality I feel entitled to confront may be those within my community. Along similar lines, I am more outraged by misconduct when a member of my own family has perpetrated the misconduct than when a complete stranger has. In this sense, it is partly love rather than hate that might drive the criticism.

A Problem With Singling Out Kaporos

Despite this distinction, between in-group policing and out-group targeting, there is reason to worry about the impact of a campaign that singles out Kaporos for criticism. The reason is that perhaps what makes the Kaporos ritual objectionable to some people who learn of the campaign against it may have as much to do with its apparent primitiveness as it does with the fact that it hurts animals. Stated differently, the Kaporos ceremony, for many, will look different from other instances of animal cruelty because it is “weird,” because it is seemingly pointless and irrational, and because it involves people who may be wearing unusual, Hasidic garb. Protests that highlight Kaporos, even when initiated in good faith, can easily attract people whose opposition to the practice is frankly rooted in prejudice rather than in concern for animals.

One might react by saying “so what?” After all, if we are saving animals’ lives, what difference does it make whether we (or our followers) are doing so for good reasons or for bad reasons? I would suggest that reasons matter a great deal and that our choice to focus on one evil rather than on another can ultimately affect the future direction of our efforts to combat animal cruelty.

To be more concrete, let me say that the Kaporos ceremony is utterly reprehensible but that it is also indistinguishable along any relevant dimension from the behavior of between 97 and 99 percent of the American population. That is, almost all Americans (undoubtedly including some number of the people currently protesting the Kaporos ritual) consume animal products, including the flesh and secretions (eggs) of hens and roosters no different from the victims of the Kaporos ritual.

To bring chicken flesh to the tables of those who consume these products, people have to slaughter animals, and the slaughter is no more humane and no less terrible for these birds than it is for the birds who die after being used in Kaporos. The same is true for the production of chickens’ eggs, in which the newly hatched baby roosters—all useless to the egg industry—are immediately ground up alive, gassed to death, or suffocated inside a plastic bag. The laying hens themselves are slaughtered or thrown out alive as garbage when their “useful life” (approximately two years, during which they each produce about 500 eggs) is over.

This violence against birds is so common among us as to be almost invisible as animal cruelty. Many people who eat chickens and eggs will claim that they “love animals” and thus overlook the lacuna between their words or feelings and their actions. When people who participate in such animal cruelty turn around and publicly point fingers at the ultra-Orthodox Jews who participate in the Kaporos ritual, they reveal themselves to be hypocrites. And vegans who participate in such campaigns, though not themselves acting hypocritically, run the danger of encouraging hypocrisy in others who are not vegan. These others may be people who contribute to the cruelty and slaughter visited on more than nine billion chickens a year in the United States alone but who allow themselves to “take a stand” against a practice that seems “weird” to them but which is materially equivalent to what they do to animals several times every day.

Food Versus Animal Sacrifice

One response that readers might have to what I have said is that there is an important difference between eating the flesh and ova of chickens, on the one hand, and using chickens as a receptacle for one’s bad deeds, on the other. Animal sacrifice is not “necessary” to human existence, whereas eating is necessary and thus perhaps provides a justification or mitigation for the violence entailed in killing “food” chickens. Indeed, even under Jewish tradition, one can perform “Kaporos” with money instead of a chicken, so the cruelty of Kaporos with chickens is gratuitous, even taken on its own terms.

This argument sounds far better than it is. It sounds good because it describes the activities at issue at different levels of generality, well-suited to dismissing the utility of one activity while elevating that of the other.

Begin with Kaporos. If we ask whether the specific ritual in question is “necessary” to human survival and existence, the answer is certainly no. A person can survive quite well without ever performing the ritual of Kaporos with a chicken. In fact, one can live well, even as a traditional and observant Jew, without doing so, because using money is a perfectly acceptable alternative. But if we were to describe what is happening at a higher level of generality, we would perhaps say that Kaporos is part of religious and spiritual expression, both of which—if not exactly “necessary” in the way that water or food is necessary—are nonetheless extremely important and may be essential to the survival of a group.

I am not at all, by the way, suggesting that people ought to be able to use chickens for Kaporos. I am simply re-characterizing the ritual to match up better with how people typically describe their ingestion of chicken corpses and secretions as food. A perfectly appropriate response by the opponent of Kaporos now would be to say that one can have a full religious and spiritual existence and ensure group survival without utilizing chickens in Kaporos ceremonies. Respect for the general need for spirituality does not have to translate into respect for the particular, violent ritual under consideration.

Note, however, that this response is no less compelling in the context of animal consumption. Yes, one needs to eat in order to survive, and eating chickens’ flesh and ova qualifies (for most people) as “eating.” But, as with Kaporos, one can fulfill one’s needs—here, to eat well and potentially much more healthfully—without consuming the dead bodies or ovulatory (or lacteal) secretions of any living being. The existence of ethical vegans—people like myself and more than 40 vegan friends I can list just off the top of my head—demonstrates this truth.

The fact that humans must eat to survive does not provide a moral foundation for consuming the products of animal suffering and exploitation any more than this fact would provide a moral foundation for cannibalism. And no one, after all, would argue that serial killer Jeffrey Dahmer’s actions were morally superior to those of serial killer Ted Bundy in virtue of the former’s having eaten the flesh of his victims. Yet Dahmer, too, had to eat something.

I see similar arbitrariness in laws prohibiting Kosher (but not other) slaughter. In Denmark, for example, Agriculture and Food Minister Dan Jørgensen defended a law prohibiting Kosher slaughter by announcing that “animal rights come before religion.” I have a difficult time understanding how anyone could claim with a straight face that a commitment to stunning and then cutting animals’ throats to create food that we do not need could be plausibly characterized as keeping faith with any coherent notion of animal “rights” (even putting aside the fact that slaughter line speeds ensure that huge numbers of non-Kosher animals are also fully conscious when slaughtered). If not motivated by anti-semitism, then those who would prohibit Kosher slaughter while permitting billions of animals to continue to be slaughtered gratuitously for non-Jewish consumption certainly create the appearance (and the effect) of irrationally targeting Jews.

Let me be clear here in saying that I do not regard the people who protest Kaporos ceremonies as anti-semitic or even as necessarily comparable to those who campaign to prohibit Kosher slaughter (while leaving in place all of the grotesque cruelty of farming animals for non-Kosher products). What I am saying is that when we single out a minority practice that is admittedly evil but the evil of which is morally indistinguishable from that in which the vast majority of critics themselves engage, it is difficult to provide a meaningful account of the protest that does not at least invite and enable anti-minority prejudice.

Two Potential Saving Graces

Though I am extremely uncomfortable with the anti-Kaporos campaigns, for the reasons I have elaborated, I would be remiss if I did not mention some potential saving graces of such campaigns. To the extent that those involved in the protest are primarily members of the Jewish community (which they may be, though I do not know), a protest against this practice might—with proper encouragement—inspire participants to question and ultimately reject the exploitation of chickens (and of other animals) more generally, precisely because Kaporos is morally indistinguishable from other exploitation. As well, the campaign might lead those who were going to kill the particular chickens prepared for Kaporos to reconsider and spare those animals. For those two reasons, I cannot unequivocally reject the campaign against Kaporos. But because these saving graces are themselves highly uncertain, and because I worry greatly about the symbolic impact of such a campaign, I cannot energetically support the campaign either, despite my own moral revulsion at Kaporos and at all animal slaughter and consumption.


Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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Click Away: A Texas Law on “Improper Photography” Bites the Dust http://verdict.justia.com/2014/09/30/click-away-texas-law-improper-photography-bites-dust http://verdict.justia.com/2014/09/30/click-away-texas-law-improper-photography-bites-dust#comments Tue, 30 Sep 2014 04:01:31 +0000 http://verdict.justia.com/?p=14878 Continue reading →]]> Camera LensRonald Thompson was arrested in Texas and charged with 26 counts of “improper photography” in 2011. He was seen taking pictures of kids underwater at Sea World. After parents complained, he was arrested. A search of his camera revealed 73 photos of children in swimsuits, with the focus on their breasts and buttocks.

His behavior, according to the authorities, violated a provision of the Texas criminal code on “improper photography” (Tex. Penal Code, sec. 21.15). This provision outlawed photographs taken “without the other person’s consent,” and “with intent to arouse or gratify the sexual desire of any person.” Thompson’s defense: this law violated his rights under the First Amendment—rights to freedom of speech and expression. The Texas Court of Criminal Appeals agreed with him. An 8-1 majority of the Court of Criminal Appeals, in Ex Parte Thompson, held that the statute went too far and violated Thompson’s constitutional rights.

Upskirting, Creepshots, and Other Hazards of Public Spaces

Why was Thompson arrested? First of all, it was because parents at Sea World had complained. Did the parents know what was in the Texas Penal Code? Almost certainly not. They complained because a weird guy was behaving around children in a way that made them scared, angry, and uncomfortable.

In fact, Thompsons actions was of a kind certain to disturb parents of kids. But his behavior did not fall into certain well-known and widely disliked categories. He was, for example, not an “upskirter,”—someone who surreptitiously takes photographs or videotapes up a woman’s skirt. Or a “downblouser,”—a person who prefers the top-down shots. Or a taker of “creepshots,” defined by the Urban Dictionary as pictures of “the butts of women in yoga pants,” taken without the knowledge or consent of these women.

There’s no catchy name for Thompson’s behavior. But the behavior he was charged with has a family resemblance to these other invasions of (a kind of) privacy. And, like them, technical developments—tiny and powerful cameras—made his actions possible. It has become easier and easier to take photos and videos when subjects are unaware. One might add that it also gets easier and easier to disseminate these photos rapidly and to a huge potential audience.

This was not always the case. A milestone in the history of photography was the invention of the candid camera, in the late 19th century. Now for the first time, the camera could capture motion. No longer did people have to sit stock-still and pose for their portraits. But, by the same token, it was now possible to take a photo of a person without his or her consent. Brandeis and Warren, in their classic article on the right of privacy (1890), specifically mentioned this fact: the candid camera made invasions of privacy possible, in new and alarming ways. Since then, each “advance” in camera technology—zoom lenses, for example—has increased the danger.

Creepy People

The law is a pretty blunt instrument. One lesson of the Thompson case is how hard it is to legislate against, well, “creeps.” Civilized life depends on norms, customs, understandings, rules of etiquette and politeness—ideas about how people are supposed to behave, in public and in private. Most of us follow these rules, almost without thinking.

A woman, say, gets on a bus. A man sits across from her, and stares at her, without saying a word, for half an hour. This makes her very uncomfortable; but of course he has broken no formal law, only a “law” about the way “normal” people behave—a rule of (customary) behavior. He has, in a way, invaded her privacy. Of course, she is in public, riding on a public bus. But even in public, we more or less assume that we carry with us a kind of cocoon of personal space, a space of anonymity if not privacy, and one which is not to be violated, even by staring eyes. And because this man broke a rule of (customary) behavior, we become suspicious. What is he up to? Is there something wrong with this guy? Is he mentally ill? Is he dangerous? Can something be done?

Our man on the bus used only his eyes. Suppose he used a camera; and snapped photo after photo of the woman on the bus. This would make her, we suppose, even more uncomfortable. He was violating some sort of rule, some sort of expectation. She would have to wonder: why is he doing this? What is he after? Is he some sort of “pervert?”

The statute in Thompson, taken literally, could well apply to our man on the bus with the camera. Texas Penal Code § 21.15(b), aimed at “improper photography or visual recording,” made it an “offense” when a person

  1. photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
    1. without the other person’s consent; and
    2. with intent to arouse or gratify the sexual desire of any person.

One imagines the “sexual desire” in question is usually the photographer’s. Of course, we would have to prove that the photographer had some sort of sex motive for taking these pictures. If he was taking photos of women in bikinis on the beach this would be easier, one supposes, than pictures of a woman on a bus.

To be sure, the human race would quickly die out, unless people were allowed to “arouse . . . the sexual desire” of other people; but there is a time and a place for everything, and that principle applies very much to sexual behavior. Rules monitor and control this behavior. The fundamental rule (legally and socially) is that sex depends on free, voluntary consent. This is the age of the sexual revolution; a permissive age; almost anything done with consent (by adults) is allowed. And “freedom of expression” means that almost anything (sexual) is allowed, in books, in art works, in the movies. As a result, sex talk and sex images are everywhere.

But this makes parents nervous. It makes women, in general, nervous, particularly about “weirdos” and “creeps”—people whose behavior violates the norms we expect from other people—even when we are out in public, on buses and trains, on the street, or taking the sun or swimming at a beach.

The Law Steps In

This sense of uneasiness lies behind the Texas statute. This same sense of uneasiness has led, in general, to a flurry of legislation, which is designed to put an end to behavior that makes people (justifiably) uncomfortable. In recent years, states have either tried to apply existing privacy laws to punish upskirters and the like or have passed new laws directly targeting these people. The efforts have met with mixed results.

In Massachusetts, for example, transit police set up a sting operation against an alleged upskirter on a Boston trolley; riders had seen a man videotaping up the skirt of a woman sitting across from him. The sting was successful; the man made the mistake of upskirting a woman who turned out to be an undercover officer. But the state’s highest court threw out the man’s conviction. The statute in question made it a crime to take photos or videos of a person who is “nude or partially nude” and who “in such place and circumstance would have a reasonable expectation of privacy. . . .” In Commonwealth v. Robertson, which we discuss in more detail in another column, the Supreme Judicial Court held that the statute on its face did not criminalize upskirting. Clothed women on public transit were not “nude or partially nude,” and a trolley is not a place where one should expect privacy. In fact, public transportation is a place where people should expected to be photographed without explicit consent, for security purposes if for no other reason. At least, this was the court’s point of view.

Almost immediately, the Massachusetts Legislature passed a new law to make sure future upskirters could be prosecuted. The new provision speaks of images under or around a person’s clothing “when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public.” It shifts the expectation of privacy from a person’s surroundings—for example, a subway—to parts of the body.

In some cases in other states, police and even judges were surprised to find that their privacy laws did not cover upskirting. The highest court in Washington State concluded, in Washington v. Glas (2002), that a man who upskirted young girls at a sports arena was not guilty of invasion of privacy because he filmed up the skirts of people who had ventured out in public—and thus could not “reasonably expect to be safe from casual or hostile intrusion or surveillance.”

Whatever you think of the legal reasoning in these cases, they seem factually naïve. We might expect to be filmed and watched in public—entering a courthouse, for example—but do we expect someone to try to photograph intimate parts of the body? We expect certain behavior from other people in public places; and upskirting certainly does not fall into the category of behavior we reasonably expect—and tolerate.

Texas’s Law and Ex Parte Thompson

Unlike the statutes in Robertson and Glas, which were drafted to protect against invasions of privacy in private places, the Texas provision under which Thompson was charged contained no such limitation.

On its face, the law covered upskirting, downblousing, and creepshots; these images are always taken without consent. And the photographer surely does intend to arouse and satisfy his sexual desires. But the statute, in the court’s opinion, went far beyond upskirting and the like; it was much broader, and that was a fatal flaw.

The court began by explaining that photographs were in general protected speech: they were as “expressive”—and just as much under the wing of the First Amendment—as books, plays, movies, and paintings. The State argued that, even if a photo or videotape is “expressive,” the act of taking a photo or videotape is not. And the statute does not criminalize the photo or videotape; only the act of taking them—if this is done without consent and with the intent to arouse or gratify sexual urges. The court dismissed this argument. The right to disseminate “speech” necessarily includes the process of making the speech or expression—creating a tattoo, drawing the picture, and so on. “The camera,” the Texas court wrote, “is essentially the photographer’s pen or paintbrush.” Like “applying pen to paper,” the “process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes.” So, the act of taking a photo deserves the same protection as the photo itself.

The State also argued that the clause about intent to arouse or gratify the sex urge somehow took the behavior out from under the protection of the First Amendment. But there is intent and intent. The intent to convey a message of protest through flag burning actually adds to the expressive nature of the conduct—and brings it even more obviously within the ambit of the First Amendment. And while intent to threaten or intimidate can do the opposite—yelling “fire!” in a crowded theater is not protected speech—the mere existence of an intent requirement does not take behavior out of the orbit of the First Amendment. The intent requirement here was especially bad: it is an attempt to regulate thought, which the government must not do.

The ultimate question, then, is under what conditions can the state prohibit an act which involves behaviors normally protected by the First Amendment. The court decided the restriction in the statute was “content-based.” . (It did not prohibit all photographs without the subject’s consent, but only those taken with the intent to arouse of gratify sexual desire.) For this reason, the court applied “strict scrutiny;” and under this heightened standard of review, the statute could not survive. Content-based regulations of speech are presumptively invalid and can only be sustained if the government proves the regulation is the “least restrictive means of achieving the compelling government interest in question.”

The court conceded that the state has a legitimate right to protect “the substantial privacy interests” that are “invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.” But the statute is not restricted to these invasions and contains no language requiring that a person’s privacy be invaded at all. The provision applies, broadly, to “any non-consensual act of photography or visual recording, as long as it is accompanied by the requisite sexual intent.”

The court concluded that less restrictive alternatives could promote the state’s interests in protecting privacy equally well. It could, as other states have, designate specific places and manner—such as “in a private home” or “underneath a person’s clothing.” (The recently adopted Massachusetts statute might be a model for reform.) Or the provision could condition violation on an actual invasion of privacy. But, as written, the statute regulated expressive conduct too broadly; and failed its constitutional test. The statute court, the court observed, “easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.” And given our complete embrace of celebrity culture, we could not accept a law with such breadth.

So Ronald Thompson goes free. Free, presumably, to go to some other swimming pool or beach, and take his photos (unless he has learned a lesson). Texas, too, could change its statute, and make such things as upskirting illegal; this behavior is very clearly an invasion of privacy, and the statute would probably be upheld. Could it draft a statute that would make Thompson’s behavior illegal? Maybe. Could it draft a statute that would make it illegal to snap photo after photo of a pretty girl on the bus? Less likely. Dirty minds are beyond the power of the law to reach.

The real issue the case suggests is this: can the law in any practical way outlaw behavior that is weird, that “creeps people out,” that makes them uneasy, and, indeed, behavior that strongly suggests some underlying pathology. There are laws against “loitering”—in certain places, like near schools, or in public restrooms, or generally on the streets, in a suspicious way. The parents of the children that Thompson photographed were no doubt disgusted by the court’s decision; and it would be hard to blame them. They wanted him put in jail. One father, in San Antonio, in 2013, noticed a convicted sex offender taking photos and videos of cheerleader. He alerted the police, and the man was arrested. This father thought the decision in Thompson’s case was “not right”; people shouldn’t “think they can get away with” that kind of behavior.

But apparently they can get away with it, at least for now. A law that reaches behaviors like Thompson’s without crossing over the invisible boundary of freedom of expression is very hard to draft. The Texas statute simply did not pass this test.


Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at Stanford University and an internationally renowned legal historian. Professors Grossman and Friedman are co-authors of Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press 2011) and working together on a social history of privacy law.
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A Special Counsel to Investigate the IRS Targeting of Tea Party Groups http://verdict.justia.com/2014/09/29/special-counsel-investigate-irs-targeting-tea-party-groups http://verdict.justia.com/2014/09/29/special-counsel-investigate-irs-targeting-tea-party-groups#comments Mon, 29 Sep 2014 04:01:33 +0000 http://verdict.justia.com/?p=14875 Continue reading →]]> The White HouseOn July 30, 1974, President Nixon released the White House tape recordings to comply with a U.S. Supreme Court order. A day earlier, the House Judiciary Committee approved Articles of Impeachment. Article 2 dealt with “abuse of power.” The first impeachment count, 40 years ago, complained that the President attempted to use the Internal Revenue Service to harass his enemies.

(1) He has, acting personally and through his subordinated and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner. [Emphasis added.]

Note that the charge was not that the President had caused the IRS to engage in discriminatory enforcement of the tax laws. No, the claim was that the President had tried, unsuccessfully, to do so. I remember the incident better than most because I was assistant majority counsel to the Senate Watergate Select Committee.

On that same date, July 30, 40 years later, the House Judiciary Committee held a hearing: The IRS Targeting Scandal: the Need for a Special Counsel. I was one of the witnesses. The question was whether Attorney General Eric Holder should appoint a Special Counsel to investigate the IRS targeting scandal, discover how far it went, and determine who was involved in the cover-up.

We all will agree on the seriousness of any claim that any federal official has ever tried to use the IRS to harass those perceived to be political opponents, because such actions undercut our faith in a nonpartisan IRS. Our tax system is largely voluntary: we report our income and list our deductions. When the people lose faith in the IRS, we are all the worse. Thus, we should all be happy if the President is correct when he assured us that there is “not even a smidgen of corruption” regarding Lois G. Lerner and the IRS targeting of Tea Party groups.

The problem is that there is more than a smidgen of corruption. First, it is hard to argue that the IRS did not target conservative groups because the IRS has now “apologized” for doing so and the nonpartisan Inspector General for the IRS concluded that the IRS “systematically” used ‘‘Inappropriate Criteria” to identify these groups.

That, of course, does not mean that the President was involved. However, we would like to know whether the scandal stopped with Lois Lerner or went beyond her to include her superiors or officials at the Department of Justice. Did any such officials help to cover up the scandal?

We would also like to know the basis for the President’s assurance that there is not a smidgen of corruption. Did someone at the Department of Justice mislead him, intentionally or through incompetence? What did the Department of Justice tell him that caused him to assure us that there is not a smidgen of corruption? We would not expect the President to plead Executive Privilege to that information because the point of him receiving it was to pass it on to the people, to all of us.

The House has passed a special, bipartisan House Resolution, calling for the Attorney General to appoint a Special Counsel. The House found

  • The Department of Justice (DOJ) interviewed Lois Lerner about the IRS targeting (after she pled the Fifth Amendment), but DOJ has, oddly enough, not disclosed the content of her interview—although doing so could support the President’s claim that there is not a “smidgen of corruption” if she really did nothing wrong.
  • Since February of 2010 (about nine months before the elections of 2010), The IRS began targeting conservative nonprofit groups for enhanced scrutiny when they filed their routine application for tax-exempt status.
  • The IRS focused on groups with “Tea Party” in their name, and on February 1, 2011, Lois G. Lerner wrote that the ‘‘Tea Party matter [was] very dangerous.’’
  • Months after the President assured us that there is not a “smidgen of corruption,” the Inspector General for Tax Administration (IG)) issued an audit report that concluded that the IRS “systematically” used ‘‘Inappropriate Criteria” to “Identify Tax-Exempt Applications for Review.’’
  • On May 15, 2013, the President called the IRS’s targeting ‘‘inexcusable,” but on February 2, 2014, he represented that there was ‘‘not even a smidgen of corruption.’’ He has not explained what information caused him to change his mind.
  • We recently learned, from an email, that Ms. Learner was also interested in using IRS powers against Senator Charles E. Grassley (Republican, Iowa). Any IRS investigation can be very onerous, although the targeted taxpayer has done nothing wrong. The IRS can demand records going back many years.
  • Many emails and other forms of electronic communication related to the Lois Lerner matter have disappeared, or perhaps not disappeared—the IRS has not been completely and promptly forthcoming on this issue. The emails that the IRS belatedly said are “lost” just happen to fall within the time frame from January 1, 2009, and April 2011, the relevant period.

We also know that in August 2014, Federal Judge Emmet Sullivan launched an independent inquiry into the issue of the missing emails associated with former IRS official Lois Lerner.

In June, the IRS agreed to pay $50,000 for the illegal disclosure of tax return information—“leaking” the 2008 tax return and list of major donors of the National Organization for Marriage [NOM] to an activist who turned over that tax data to NOM’s adversary, the Human Rights Campaign. The President of that organization happened to be the national co-chair of President Obama’s Reelection Campaign. This relationship certainly suggests a conflict of interest, when lawyers supporting the President are ultimately in charge of the investigation that involves the national co-chair of President Obama’s Reelection Campaign.

When NOM deposed the activist who received the confidential IRS tax information, he (like Ms. Lerner) pled the Fifth Amendment. The DOJ indicated that it would not be filing any charges against this person. Hence, NOM asked the DOJ to give him immunity, to force him to testify. Doing so would not compromise any criminal investigation against him because the DOJ said it would not be filing charges. Inexplicably, the DOJ refused to grant him immunity.

There is no longer a special statute that provides for a Special Prosecutor or Independent Counsel. However, the Attorney General does not need a statute to appoint a Special Counsel. There was a Special Counsel in the Teapot Dome scandal despite a lack of statutory authorization. Similarly, there was no statutory authorization for the Special Counsel in the Watergate scandal.

What we have now, as in the case of Watergate, is a regulation, in Title 28 of Code of Federal Regulations, Section 600.1. It provides that the Attorney General “will appoint a Special Counsel” when he determines that “criminal investigation of a person or matter is warranted,” and the Department of Justice has a “conflict of interest” and “it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. “

The Attorney General has already been investigating. We also know that the President (the chief law enforcement officer of the United States) announced last February that there has not been a “smidgen of corruption” even though neither he nor the Department of Justice could have examined all the evidence, in particular the emails and other electronic information. The Attorney General and all top officials of the Department of Justice serve at the pleasure of the President. They are in an apparent conflict because an impartial investigation may undercut the assurance of the President that there is not a smidgen of any IRS corruption in the Lois Lerner affair. The Department of Justice is also in a conflict because an impartial investigator will have to determine whether DOJ lawyers were aiding Mr. Lerner in a cover-up of the IRS targeting scandal. The DOJ is now defending the IRS in that scandal, so we would not expect the DOJ to impartially investigate itself.

Moreover, a majority of the federal government’s Inspectors General (IGs) (47 out of 73 IGs) have signed an extraordinary joint letter on August 5, 2014, complaining that the Obama administration is obstructing their investigations into government mismanagement and corruption. President Obama appointed many of these IGs, including one of the signers, who is the Inspector General of the Department of Justice. The DOJ, for example, is refusing to provide the IG records that in the past it has given without objection. The Peace Corps also refuses to provide its IG with full access to sexual assault records.

The present circumstances are extraordinary. Emails disappear. IRS backup disks are destroyed, while the IRS is involved in litigation to turn over those backup disks. The IRS does not appear to keep the records that the law requires it to keep. The President assures us that there this is no hint, “not a smidgen of corruption,” before the DOJ completed its purported investigation. That prejudgment undermines the investigation. There is also the appearance of a conflict when Department of Justice lawyers who are political appointees of the President are in charge of the investigation that involves the national co-chair of President Obama’s Reelection Campaign. The Washington, D.C., Rules of Professional Conduct governing lawyers, Rule 1.7(b)(4), provides there is a conflict if a lawyer’s professional judgment “may be adversely affected” by his own “personal interests.”

Let me put the matter in another way: if the DOJ and the Attorney General wanted to hide the evidence that one or more Administration officials used the IRS to harass opponents, they would act exactly the way they are acting now.

The Attorney General can restore America’s faith in the nonpartisanship of the Internal Revenue Service by fulfilling his duties under § 600.1 to appoint a Special Counsel. During the Watergate controversy, the Attorney General appointed a prominent Democrat, first Archibald Cox and then Leon Jaworski. If a Democrat had given Nixon a clean bill of health, the people would have believed it. Similarly, if now, the Attorney General appoints a prominent Republican to investigate the misuse of the IRS, and if that person finds not a smidgen of corruption, the people will believe that. If, on the other hand, the Special Counsel finds corruption and a cover-up, well, let the chips fall where they may.

Granted, this Special Counsel regulation is not a statute, but it is still the law. As the Supreme Court explained in United States v. Nixon, when referring to the regulations that governed the Attorney General’s appointment of a Special Counsel: “So long as this regulation is extant it has the force of law.” The Court went on to summarize the precedent as holding that “so long as the Attorney General’s regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations.”

Government officials require us to turn square corners with dealing with them. They should turn square corners when they deal with us. The Attorney General should follow his own regulations, which appear to deny himself the authority to exercise discretion to refuse to appoint a Special Counsel.


Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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The Road Show Blaming Teachers for Society’s Ills Moves from California to New York http://verdict.justia.com/2014/09/26/road-show-blaming-teachers-societys-ills-moves-california-new-york http://verdict.justia.com/2014/09/26/road-show-blaming-teachers-societys-ills-moves-california-new-york#comments Fri, 26 Sep 2014 04:01:47 +0000 http://verdict.justia.com/?p=14870 Continue reading →]]> School Teacher ConceptBack in June, a California superior court judge declared that a group of state laws governing the employment of public school teachers is unconstitutional. In his short ruling, Judge Rolf Treu concluded that California’s system has a disparate impact on minority students, who are concentrated in poorer school districts. Along with many conservative activists, the Obama Administration’s Secretary of Education praised the ruling.

This lawsuit did not arise organically, but was instead a well-financed effort, backed by charter school advocates wielding millions of dollars in resources, money that was principally supplied by a Silicon Valley multi-millionaire. After their (probably temporary) win in California, that group quickly took aim at the public school system in New York State, filing suit in a Staten Island court over the summer.

As I will describe below, the details of California’s Vergara case do not support the broad conclusions that the judge reached, or that the press has widely reported. In particular, nothing in the judge’s ruling supports the holding that tenure for schoolteachers is unconstitutional. Instead, his analysis showed at most that the challenged laws might have some curable unintended effects as a matter of policy.

Nonetheless, the Vergara case and its New York cousin are, in fact, the current incarnation of an increasingly fierce campaign to blame any and all problems in this country’s public schools on teachers in general, and to focus that blame on tenure and other job protections for teachers, which ultimately makes these cases part of a concerted attack on teachers’ unions.

Therefore, before turning to the Vergara case and the arguments offered by the plaintiffs there and in New York, I will first describe the state of knowledge about the effects—both positive and negative—of teacher tenure and other due process protections for teachers in the United States.

Job Protections for Teachers: What Is at Stake?

In the United States, the default rule for work arrangements is known as “at-will employment.” Essentially, the at-will system allows employers to fire any employee at any time, for any reason—or for no reason at all. This puts power squarely in the hands of employers, but supposedly people are free to contract around that default position. That is, if a would-be employee is lucky enough—which, in this case, means that she possesses a unique market characteristic that gives her unusual bargaining strength—she can extract a concession from a company to supersede the default at-will rules. Some people, therefore, can individually obtain for-cause dismissal provisions in their job contracts.

For everyone else, however, the situation is simple: If the boss wakes up in a bad mood, everyone who gets in his way can be in trouble. There are various theories that implausibly claim that this power will not be abused, but in any case, most employees are at all times only a moment away from being fired.

Teachers have long been given more due process protections than the usual worker, mostly as a result of the creation of teachers’ unions that fought for tenure systems across the country. While the cynical view is that the teachers simply want something—protection from being fired—that anyone else would envy, there are actually very good reasons why tenure should exist.

Teachers are in a unique situation, providing knowledge to students regarding subjects that are often politically charged. Science classes should, if they are to reflect the state of scientific knowledge, cover subjects such as evolution, climate change, and so on. History classes must confront the complicated lessons of American history’s most difficult periods, including Vietnam, the Civil Rights Era, the stakes in the Civil War, and other fraught topics. (A Colorado school district’s recent efforts to teach “patriotic values” to its students is only the most recent example of the kind of muddled thinking that non-teachers can try to impose on teaching in the schools.)

Even stepping back from these high-voltage controversies, schoolteachers also must deal with people who are often unwilling to admit that their children have done anything wrong. If a child receives a low grade, the teacher gets the blame. Teachers, on a daily basis, must tell people things that they do not want to hear. If the mayor’s son is disruptive in school, it is the teachers who have to choose whether to do something about it, or instead to allow a powerful person to bully them into letting his son live by different rules.

Teachers also are often privy to information about how a school district is operated, seeing when funds are being diverted by politically connected administrators, and when the students are being denied basic rights. Indeed, having tenured teachers on staff provides protection even for untenured teachers, because the tenured teachers can stand up to administrators and politicians in ways that an at-will employee never could on her own.

For all of these reasons and more, it is important that teachers be provided job security that is currently not available for people in other lines of work. To be clear, I believe that at-will employment is the wrong default for all types of jobs; but no matter what laws govern the rest of the work force, teachers need to be guaranteed that they can say “no” even to the most powerful people in town.

Job Protections and the Quality of Teachers

Beyond the many reasons that teachers’ effectiveness requires them to be shielded from being fired at someone else’s whim, there are also reasons tenure and other job protections are essential to attracting a qualified pool of teachers in the first place.

New Jersey Governor Christie’s infamous 2010 rant against a schoolteacher, which was one of the moments that turned Christie into a national star among conservatives, is merely one small data point in an ongoing effort to vilify teachers. Even without the vitriol recently leveled against them, however, the simple fact is that teachers have always been treated disrespectfully in this country (especially when compared to the way that other countries honor their teachers).

Teachers are educated professionals, nearly all of whom hold bachelors degrees with special certification in teaching, and many of whom hold masters and doctorate degrees. Even so, they have never been treated with the respect afforded the other professions. Due to a complicated and unfortunate history of sexism in U.S. labor markets more generally, teachers have been treated perhaps as well-meaning souls, but not as the professionals that they are.

This disrespect showed up especially in the form of low pay. Over the years, teachers’ unions were able to raise salaries somewhat, but never to the point where teaching was anything but a middle class job. In many areas, in fact, the pay barely supports a lower-middle class standard of living.

One of the most important non-salary aspects of the job that matters greatly to any teacher—or, just as importantly, any potential teacher—is job security. The pay might be low, and the social status might be low and falling, but with job protections in place, it was at least possible for a young person to imagine a stable life in teaching.

Those who disparage teacher tenure as protecting “bad teachers,” therefore, are imagining that “guaranteed job security” (which is obviously an exaggeration, since many tenured teachers are fired every year) only has the effect of keeping ineffective teachers on the job. What they leave out is that tenure and other protections also bring and keep good teachers who would otherwise never risk getting into such a job, if they could be fired as easily as a barrista at Starbucks can be dismissed.

In short, even if we are only going to look at the effect of job protections on teachers’ “quality,” it is an empirical question whether the net impact of tenure is positive or negative. Similarly, changes in the law to allow teachers to be fired more easily might backfire, if those changes drive out the best teachers (and future teachers) from the field.

The Empirical Evidence: The Weakening of Tenure Rules Has Not Improved Teacher “Quality”

As it happens, the ongoing attacks on teachers and their unions have resulted in an extended natural nationwide experiment, allowing researchers to assess the effects of changes in work rules. Indeed, this is one of the most heavily studied sets of questions in the social sciences. Every time a state, or an individual district, experiments with a change in how teachers are treated, we have new data about what really matters in our schools.

Although all empirical inquiries are based on incomplete data, and even though they are sometimes subject to various interpretations, we do in fact have a very clear picture of the effects changes in teachers’ job protections have on the schools.

The clear verdict is that the moves to make it easier to fire teachers have not improved schools, by any measure of “quality” that one might use. In fact, we still see that tenured teachers in wealthier districts are “good teachers,” at least in the sense that federal and state testing-obsessed standards require. We also know that non-unionized public charter schools have not shown any improvement over the schools that they displace.

It would be one thing if we were only discussing an idea that had never been tried, but efforts to make teachers’ jobs less secure have been going on for decades, and none of the supposed reforms have delivered what was promised.

The bottom line is that the teachers are being blamed as a group for supposedly caring more about themselves than about their students. The reality is, however, that making teachers the villains has not succeeded in improving matters, and there are still plenty of well-protected teachers who are doing a great job of teaching our children.

The California “Anti-Tenure” Decision

Given that we have plenty of evidence that teacher tenure and other job protections have no statistical connection to any of the bad outcomes that we see in schools, and that those protections serve important positive goals, why would any legislator or judge buy into a public-relations campaign—no matter how well financed—that tries to claim that children are harmed by the hiring and firing practices for teachers?

In California, the anti-tenure campaign seized upon an equal protection claim. The campaign’s proponents noted that measured educational outcomes are worse in poor areas, where a majority of students are from racial and ethnic minority groups. Then, they made a simple, illogical leap: If teachers have tenure, and some teachers do not seem to succeed at teaching students, then the teachers must be to blame for the students’ poor performance.

But even that willful effort to ignore basic logic needed one extra step. Somehow, it had to be claimed that the students in poorer schools were uniquely harmed by tenure, because only then could there be a constitutional equal protection claim.

The judge who heard the California case bought into that argument, but he could do so only by conflating a number of different effects, and then blaming the entire system for all of the bad effects.

After describing California’s laws regarding the initial awarding of tenure, the dismissal of tenured teachers, and a “last in, first out” (LIFO) system that supposedly protects seniority over quality, the judge concluded that all of the statutes are unconstitutional.

What is especially odd about this holding is that the judge’s constitutional ruling ultimately relies only on the purported effects of the LIFO statute. That is, even if one were to believe that the awarding of tenure and the dismissal rules combine to protect ineffective teachers (a highly dubious claim), only the LIFO statute could possibly have the supposed effect of placing the pool of bad teachers disproportionately in poor/minority school districts.

In other words, the judge rejected all of the teachers’ job protections as unconstitutional, even though the most that he can say about the non-LIFO rules is that they might be responsible for allowing some bad teachers to stay on the job. (And to be clear, his evidence on those claims is utterly unconvincing, as I will discuss in a future column.) No matter how much he tries to inflame passions by citing economic studies out of context (focusing, for example, on the supposed costs of “grossly ineffective” teachers on future economic performance by their students), there is nothing unconstitutional about those laws unless they impose unequal burdens on specific classes of individuals.

In legal parlance, the judge is guilty of failing to engage in the equivalent of a “severability” analysis. That is, instead of saying, “The legislature has passed these laws, and the modest judicial stance should be to leave as much of the people’s representatives’ work in place as possible,” the judge said, “The current set of laws regarding teachers’ hiring and firing results—for a combination of reasons that I have not bothered to separate—in some ineffective teachers being concentrated in poorer districts.”

This failure on the judge’s part is especially egregious, of course, because courts apply the usual severability analysis when they are evaluating a challenge to a single statute. If, for example, the “individual mandate” in the Affordable Care Act had been deemed to violate the Constitution, the next step would have been to decide whether that provision is the only part of the ACA that is infirm, or whether larger sections of the law, or the entirety of the law, are implicated. For the judge in Vergara to treat separate laws as inseparable, therefore, is simply bizarre.

In addition, even the judge’s own analysis of the tenure law (the so-called “Permanent Employment Statute”) does not support the more general claim that tenure harms students. The judge complains that California’s law takes too little time to evaluate a new teacher before awarding tenure. That state’s system has a two-year probationary period, and the judge points out that “32 states have a three year period, and nine states have four or five. California is one of only five outlier states with a period of two years or less. Four states have no tenure system at all.” (Referring back to a previous point, there is simply no evidence that those four non-tenure states have better schools than the rest of the country.)

Again, even if one were inclined to give the judge in this case a pass, and to say that he is not in the position to re-write the statute, he has not shown how tenure after two years on its own could possibly create an equal protection violation. He even directly quotes the state’s experts as saying that “3-5 years would be a better time frame to make the tenure decision for the mutual benefit of students and teachers.”

But for those who are eager to change the laws to make teachers’s jobs less secure and attractive, which is exactly what the plaintiffs and their wealthy backers are trying to accomplish in California and New York (and, let’s be honest, everywhere else), there is actually not much of substance to celebrate in the Vergara decision, even though the decision has been an enormous symbolic victory.

After all, even after engaging in a strained reading of the evidence a judge has found that a two-years-to-tenure system, along with a dismissal system that makes tenure worth having, interacting with a LIFO teacher allocation system, collectively harms minority students in a disparate fashion. He then found that adding even one more year before tenure would be better for students. If, as the judge seems to assume, the equal protection claim hangs together, then any improvement to any of the relevant laws could cure the constitutional defect.

In short, despite the judge’s rhetoric, and despite the heated proclamations from those who wish to attack teachers more generally, the Vergara case (if, against all odds, it is not overturned on appeal) will stand at most for the proposition that California should change some aspect of its teacher hiring, retention, and allocation system so that it does not disproportionately harm minority students.

This is, ultimately, good news. For those who thought that Vergara was somehow the death knell for teacher tenure, the reality is quite different. Teachers continue to deserve unique job protections, both to allow them to do their jobs, and to encourage more and better people to become teachers. Vergara should not change that.

Therefore, only if politicians allow the loudest voices to mislead them about the evidence (and about the content of the Vergara case) will they get this wrong. Sadly, there is no guarantee that legislatures across the country, as well as Congress and the White House, might not in fact continue to blame teachers for problems far beyond the reach of schools. But at least we now know that, if they do, it will be because they are ignoring reality and instead scapegoating the people who have devoted their lives to teaching children.


Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at DorfonLaw.org, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Yet Another (Judicial) Incursion Into A State’s Decisions About How to Structure Direct Democracy: The Ninth Circuit’s Ruling in Chula Vista Citizens for Jobs and Fair Competition v. Norris http://verdict.justia.com/2014/09/25/yet-another-judicial-incursion-states-decisions-structure-direct-democracy http://verdict.justia.com/2014/09/25/yet-another-judicial-incursion-states-decisions-structure-direct-democracy#comments Thu, 25 Sep 2014 04:01:41 +0000 http://verdict.justia.com/?p=14866 Continue reading →]]> Gavel and BookThe past year or so has been a rough period for people who support the design of the direct democracy process in California. Last summer, as I explained at the time, the U.S. Supreme Court wrote its Hollingsworth v. Perry ruling (involving Proposition 8, a California initiative banning same-sex marriage) using overly broad reasoning that makes it hard, if not impossible, for official proponents of an initiative to ever defend the measure in federal court when elected representatives decline to defend.

More recently, the California legislature, Governor and state judiciary have themselves all taken actions that violate the state’s direct democracy scheme. The legislature passed, and the Governor earlier this month signed, a repeal of parts of an initiative concerning immigration policy, despite the fact that initiatives are not supposed to be subject to ordinary legislative amendment or repeal. To be sure, the initiative at issue in this instance—Proposition 187—deserved to be repealed (insofar as it was a misguided measure from the start). But, as I argued in an earlier column, the legislature and Governor lacked power to repeal it, and yet they did so anyway, without any convincing legal basis.

As for the California judiciary, last month the California Supreme Court, for reasons that I am not fully persuaded by, blocked (at least temporarily) voters from being able to weigh in on Proposition 49, a measure that would have solicited voter views on the desirability of amending the U.S. Constitution to undo the highly publicized Citizens United ruling concerning campaign finance.

In the space below, I describe yet another blow to the California statutes and constitutional provisions that set up the Golden State’s direct democracy system. This time, the injury was inflicted by the U.S. Court of Appeals for the Ninth Circuit; in June, in Chula Vista Citizens for Jobs and Fair Competition v. Norris, that court invalidated state statutory provisions that require the identities of the official proponents of an initiative be disclosed to would-be signatories of the initiative petition (whose signatures are needed to qualify the measure for the ballot) at the time that signatures are sought.

In striking down the so-called petition-proponent disclosure requirement, the three-judge Ninth Circuit panel found that requiring disclosure amounted to a direct regulation of the content of political speech, and impermissibly burdened, in violation of the First Amendment, the free speech choices of initiative proponents to engage in political expression anonymously. The State of California has requested the Ninth Circuit to rehear the case en banc, but unless something changes, the provisions in California law containing the petition-proponent disclosure requirement are unenforceable.

The Straightforward Case for the Permissibility of Disclosure Requirements

On the face of things, it is hard to understand why California cannot require disclosure of the identity of initiative proponents at the time signatures are sought. After all, the identity of proponents could be very relevant, non-misleading information that many would-be signatories might want to have in deciding whether a measure should be placed on the ballot. And, of course, California need not have an initiative at all; the greater power not to have initiative signature gatherers altogether would seem to subsume the lesser power of allowing them but regulating their activities. Of course, if state law required signature gatherers to disclose certain information in such a way as to create a partisan skew, or to disclose information that was false or misleading, or if the failure to comply with disclosure requirements subjected initiative proponents or signature gatherers to punishment, the First Amendment might very well be violated. But in the case of California’s law, the petition-proponent disclosure requirement is not viewpoint based or skewed, and the only consequence of noncompliance with the requirement seems to be that the signatures do not count towards the requisite number needed to place a measure on the ballot; there doesn’t seem to be a suggestion that the signature gatherers or initiative proponents would be punished in any other way for their failure to disclose.

Why, then, were these provisions struck down? The fault really lies not mainly with the Ninth Circuit, but rather with the U.S. Supreme Court, which in a few cases has mistakenly said that regulating signature gathering is regulating “petitioning,” an activity singled out for protection by the First Amendment, rather than regulating access to the official election ballot, which is subject to much less judicial skepticism. Because of this category recognition mistake—the Supreme Court effectively has, as Justice Scalia put it in the context of a different case, been “faked out” by a label—the Court has subjected signature-gathering rules to “exacting” scrutiny under the First Amendment, rather than a much more generous “reasonableness” standard that normally applies to a state’s decisions about how to regulate access to the official ballot. Because of these Supreme Court decisions (described in more depth in the following paragraphs), the three-judge panel really had little recourse but to apply rigorous scrutiny to the state laws. And under that searching review, the disclosure requirements did not survive.

The Misguided Supreme Court Rulings that Constrained the Ninth Circuit

One of the wrongheaded Supreme Court decisions that put the Ninth Circuit in something of a bind here is Buckley v. American Constitutional Law Foundation (ACLF), a 1999 ruling addressing a challenge to Colorado’s initiative procedures. Colorado law provided that when a certain number of voters sign up in support of a given state initiative, the measure is placed on the statewide ballot. In ACLF, the Court reviewed and invalidated three particular Colorado regulations governing this process. First, Colorado required that each signature gatherer wear a badge bearing her name and indicating whether or not she was paid to collect the signatures. Second, each gatherer had to be a registered Colorado voter. Third, initiative backers had to disclose monthly exactly how much each gatherer was getting paid.

The Supreme Court struck down all of these state law requirements as violating the right to “petition” government protected by the First and Fourteenth Amendments, presumably because initiative provisions often use the term “petition” in describing the beginning of the initiative process. The Court held that circulating an “initiative petition” is akin to distributing a handbill, and that Colorado’s identity badge requirement was thus squarely foreclosed by a 1995 ruling in which the Court struck down an Ohio law banning the anonymous distribution of campaign handbills. Colorado’s other rules met a similar fate; the Court found that requiring signature gatherers to be registered voters impermissibly limited the number of voices in the debate, and the Court held that the financial disclosure requirements impermissibly forced paid gatherers and their backers to surrender the anonymity enjoyed by their volunteer counterparts.’

In reaching these rulings, the Justices relied on Meyer v. Grant, another troubling case (from 1988) in which the Court invalidated another Colorado initiative provision which attempted to prohibit the payment of money to initiative signature gatherers altogether. As in ACLF, the Court in Meyer characterized the question as “involv[ing] a limitation on political expression subject to exacting scrutiny.” From there, the Court quickly concluded that “[t]he refusal to permit appellees to pay petition circulators restricts political expression . . . [and that] [t]he First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.’’

The Court’s reasoning in these cases would be plausible if plaintiffs were in fact “petitioning” within the meaning of the First Amendment. But that label is inapt. The Colorado initiative process (like California’s) is not about “petitioning the Government for a redress of grievances.” It is about circumventing government by engaging in lawmaking itself. Thus, state law did not regulate “petitions” or “speech” at all. Instead, it merely provided that unless signatures were collected in a certain way, they would not count for purposes of qualifying an initiative for the statewide ballot.

In effect, citizens retained the right to collect signatures and present them to the government as a demonstration of the signers’ views essentially as a handbill. None of the challenged provisions of Colorado (or California) law said otherwise. This right, however, does not include the right to have signatures count for purposes of triggering an election, when the signatures do not comply with the ballot access rules a state has put in place. No court would deny that I have the right to voice my preference for Jennifer Granholm for President, but I do not have a right to have my vote for Granholm count when that vote is made six months before the presidential election and for a person ineligible to hold the office because she is not a natural-born citizen. Indeed, the Supreme Court has repeatedly made clear that content neutral, reasonable ballot access requirements designed to limit the number of candidates or the number or issues placed on a ballot are not subject to strict judicial scrutiny.

If the Court in ACLF (and Meyer) had seen the Colorado laws for what they were (ballot access rules) and not for what they were not (impediments to pure speech) then the Court likely would have come out the other way. It would have evaluated Colorado law, not with reference to the First Amendment’s protection of core political speech, but with reference to the Tenth Amendment’s protections, buttressed by those provided in the so-called Guarantee Clause, of the core right of the people of each state to structure their lawmaking processes as they desire, so long as they do not discriminate on the basis of viewpoint, race, or some other illicit criterion.

The best outcome of the Chula Vista case from the Ninth Circuit would be for the Supreme Court to grant review (assuming that certiorari is, as it should be, sought) and to cut back or overrule altogether the erroneous decisions and reasoning of Meyer and ACLF. That is the only way to avoid future injuries to state direct democracy systems by lower courts.


Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Scotland’s Vote to Stay in the UK Raises the Question of When Other Groups Should Have the Chance to Secede http://verdict.justia.com/2014/09/24/scotlands-vote-stay-uk-raises-question-groups-chance-secede http://verdict.justia.com/2014/09/24/scotlands-vote-stay-uk-raises-question-groups-chance-secede#comments Wed, 24 Sep 2014 04:01:39 +0000 http://verdict.justia.com/?p=14860 Continue reading →]]> Scottish FlagLast week, voters in Scotland defeated a measure that, if passed, would have resulted in their exit from the United Kingdom. By most accounts, Scots voted their wallets rather than their hearts, believing that the economic benefits of union outweighed considerations of national pride.

A “yes” vote on the secession referendum would have required resolution of a host of complicated questions, including currency, EU membership, and whether the UK would remain a nuclear power. Rejection of the ballot initiative takes those matters off the table, even as promises made by Prime Minister David Cameron raise other questions about how greater autonomy for Scotland will now be implemented.

How those questions will be answered remains to be seen, as Cameron already faces resentment from ministers and back-benchers in his own party who worry that implementation of his promises will place England at a disadvantage relative to Scotland. But the very referendum itself raises a more fundamental question for international and domestic law: When should secession votes even be held?

That broader question is not merely theoretical. Western powers—including the UK and the United States—have treated the Crimean vote to secede from Ukraine and join Russia as fundamentally illegitimate, and continue to oppose secession efforts by separatists in eastern Ukraine. Meanwhile, one sees separatist movements throughout the world, including: Catalans seeking to leave Spain; Kurds who have autonomy in Iraq and favor statehood; Tibetans seeking to leave China; Francophones in Quebec seeking independence from Canada; and many more.

What principles govern the question of when secession is permitted? And apart from legal constraints, when is it wise policy for secession to occur?

International Law: No Secession Without Permission

Officially, the answer to the core legal question is clear under international law. Sub-units of a nation-state have no right to secede from that nation-state without its permission. Thus, a territory that is recognized as a part of a nation-state—as Scotland is a part of the UK and as Crimea was recognized as a part of Ukraine—cannot secede without permission. In a nutshell, Prime Minister Cameron was not being hypocritical when he declared that the Crimea referendum was illegal even as his government agreed to be bound by the result of the Scotland referendum. The crucial difference is that Ukraine did not agree to the Crimea referendum, whereas the UK agreed to the Scotland referendum.

Why is there no international law right to secede? The cynical answer is that international law is made by nation-states and nation-states do not want their territories to be carved up without their consent.

Although thus rooted in the self-interest of nation-states, the international norm against unilateral secession also plays an important role in maintaining peace.

Existing national boundaries are often arbitrary. There are notorious examples—such as the World War I-era Sykes-Picot Agreement that formed the basis for the modern Middle East without much regard for local loyalties. But even boundaries that we imagine as “natural” are typically the result of centuries of conquest, counter-conquest, and arbitrary line-drawing. Consider that Charlemagne’s empire, though now typically conceived as a medieval French state, also included substantial parts of modern-day Germany, Italy, and other countries.

As a consequence of the inherent arbitrariness of national boundaries, a right of unilateral secession would lead to chaos and war. Indeed, even without such a right, the possibility of creating facts on the ground often leads separatist movements to use force in an effort to redraw national boundaries. For example, the so-called Islamic State (IS) recently announced that it aims to erase the Sykes-Picot boundaries. International law alone cannot prevent such efforts but it should not legitimate them.

Fuzziness at the Edges of International Law

To be sure, international law can be said to validate separatist movements to a considerable degree. Although international law does not authorize violent separatist movements, if such a movement succeeds in controlling territory and gaining recognition of other sovereigns, it becomes a nation-state. One need not even look abroad for examples. The United States left the orbit of England without the mother country’s permission, and became a sovereign nation. Although international law has changed considerably since the Revolutionary War, on this particular it remains the same: illegal acts of secession become valid under international law if they succeed.

Moreover, some politicians and scholars argue that international law ought to recognize a right to secede for regions in which a minority population is being oppressed. Countries (including the U.S. and most other NATO members) that recognize the sovereignty of Kosovo—which declared independence from Serbia in 2008—appear to be acting partly on the basis of this emerging norm. The same war crimes that led to NATO intervention in Kosovo in 1999 played a role in the recognition decisions of these countries.

Meanwhile, although Russia opposed both NATO intervention in Kosovo and Kosovar independence, it has cited Kosovo’s secession without Serbian permission as support for its position that Crimea was legally entitled to secede without Ukraine’s permission. But that analogy should probably be rejected because Russian speakers in Crimea in 2014 faced nothing like the threat of ethnic cleansing that faced Kosovar Albanians in 1999.

Accordingly, and notwithstanding Russian efforts to muddy the picture, the basic outlines of international law are clear: In general there is no unilateral right of secession; there may be an emerging norm permitting unilateral secession by oppressed minorities; and regardless of the reasons, a group that succeeds in seceding and maintaining control over its territory becomes a de facto sovereign and based on recognition by other sovereigns can become a genuine sovereign nation-state.

When Should a Nation-State Permit Secession?

The foregoing analysis of international law makes evident an irony: The nation-states most likely to authorize secession referenda are just those least likely to be required to do so, even under the most expansive view of an international law right to secede for oppressed minorities. That’s because a country that oppresses its minority population is unlikely to give in to that minority’s aspiration for independence. In contrast, democracies that respect minority rights will be more likely to take seriously the claim by members of a minority group that they are entitled to secede.

Even so, liberal democracies do not grant a secession vote to every constituency that seeks one. Many ethnic minorities are dispersed throughout the nation-state’s territory, so secession of no particular territory would grant them national self-determination. In other circumstances, the demand for secession may be seen as fundamentally unjust—as when Southern states sought to secede from the Union so that they could preserve the institution of slavery.

Under what circumstances do states permit secession or secession votes? We can identify two paradigms.

First, the new nations created in the wake of World War II were a product of decolonization, in recognition by the colonial powers that the territories they were relinquishing were never really theirs to begin with. Even in territories where the local population voted for local officials, they typically were not treated as full members of the home polity. We can categorize the states that emerged from the dissolution of the Soviet Union in the same way. In none of these cases would it be quite accurate to say that a fully integrated unit of a nation-state broke off to become an independent nation. Rather, it would be more accurate to say that one nation gave up its control over what were all along recognizably distinct entities.

Second, we can point to a small number of relatively recent cases in which it was proposed that a unit of a federal state be permitted to break away—as in the Scotland vote and similar referenda in Quebec—or in which the units of a federal state mutually agreed to go their separate ways—as when Czechoslovakia broke into the Czech Republic and Slovakia.

We are unlikely to see many more decolonial secessions for the simple reason that the colonial era is largely over. Still, there may be a few exceptions. Although Israel’s Likud-led government and the most violent Palestinian nationalists sometimes appear to be acting in concert to delay it, a sovereign Palestine in Gaza, the West Bank, and parts of Jerusalem seems inevitable. More speculatively, a gradually liberalizing Chinese Communist Party might eventually conclude that Tibetans and possibly Uyghurs in Xinjiang should be permitted to choose independence. And there remain a few pockets of colonial holdings elsewhere, such as Puerto Rico, whose residents have repeatedly defeated referenda for independence or statehood.

As for secession votes within federal systems, these are likely to recur from time to time, precisely because federalism is often chosen as a compromise between tighter integration into a unitary government and independence. So long as the reasons for avoiding full unitary status remain operative, some people will find the partial autonomy afforded by federalism insufficient and will thus agitate for a secession vote.

Put differently, despite Prime Minister Cameron’s pronouncement that Scotland’s opportunity for secession was a one-time offer, it would not be surprising if, some years down the road, pressure builds for another referendum.


Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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http://verdict.justia.com/2014/09/24/scotlands-vote-stay-uk-raises-question-groups-chance-secede/feed 0 0:10:11 Cornell University law professor Michael Dorf discusses Scotland’s recent vote to stay in the UK and considers the broader question of when secession votes should be held, as a matter of international and domestic law. Cornell University law professor Michael Dorf discusses Scotland’s recent vote to stay in the UK and considers the broader question of when secession votes should be held, as a matter of international and domestic law. opinionsupport@justia.com no no
Resurrecting the Dubious State Secrets Privilege http://verdict.justia.com/2014/09/19/resurrecting-dubious-state-secrets-privilege http://verdict.justia.com/2014/09/19/resurrecting-dubious-state-secrets-privilege#comments Fri, 19 Sep 2014 04:01:22 +0000 http://verdict.justia.com/?p=14855 Continue reading →]]> Private EnvelopeIn an unusual move, the U.S. Department of Justice has filed a motion to make a private lawsuit simply disappear. While the U.S. Government is not a party to this defamation lawsuit—Victor Restis et al. v. American Coalition Against Nuclear Iran, Inc.—filed July 19, 2013, in the U.S. District Court for the Southern District of New York, Attorney General Eric Holder is concerned that the discovery being undertaken might jeopardize our national security.

This lawsuit is a fight between private parties: Victor Restis, a Greek shipping magnate, who claims he was defamed by United Against Nuclear Iran, a group lobbying against businesses it believes are facilitating Iranian nuclear ambitions. The group claims Restis has been doing embargoed business with Iran, but Restis denies the allegation. Holder’s Justice Department is not saying exactly what the problem might be with the discovery in this action; rather it has simply turned to the Bush II administration’s favorite post-9/11 device for protecting information by ending lawsuits: the “state-secrets privilege.”

When reporting this story, the New York Times noted that the use of the state secrets privilege had surprised attorneys across the political spectrum given Attorney General Holder’s efforts to distance his Justice Department from the tactics and practices of his immediate Bush II administration predecessors. Slightly contrary to the reaction of plaintiff Victor Restis’s lead attorney, Abbe D. Lowell, who claims there is “no precedent, literally, for what the government is attempting to do,” there are a handful of instances reaching back to the early 1900s, even before the state secrets privilege had been blessed by the U.S. Supreme Court, where the executive branch of government intervened to protect secret information. But calling for dismissal of a private lawsuit, based on the always dubious state secrets privilege, is throwing the baby out with the bath water.

Precedents for Government Intervention in Private Litigation

The government’s argument for intervening in this lawsuit is technical and thin. They assert that pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, which provides: “Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” The government says it has a unique and important interest in protecting the information set forth in its (classified) State Secrets Privilege Declarations.

Because it is such a terrible idea to expand this fuzzy and often abused privilege into the area of a private defamation lawsuit, I am almost reluctant to mention that Lou Fisher’s book, In The Name of National Security: Unchecked Presidential Power and the Reynolds Case, sets forth the long history of this privilege (or its earlier incarnations) being invoked when the government is not a party to the litigation. While there are some distinctions, Lou, a leading constitutional authority on national security law and separation of powers, found a case as early as 1912, Firth Sterling Steel Co. v. Bethlehem Steel Co., which is cited in Reynolds; in this case the federal government intervened in private litigation between two steel companies, when one company had been given secret drawings of Navy Department projectiles as part of a government contract. Similarly in Pollen v. Ford Instrument Co. (1939) the federal government intervened in a private lawsuit to block the disclosure of secret military drawings.

The strongest precedent in the government’s brief in the current case is the 1985 case of Fitzgerald v. Penthouse Intern., Ltd. Fitzgerald had sued Penthouse Magazine for an allegedly libelous article, but the U.S. Navy moved to intervene on the ground that the government had a national security interest which would not be adequately protected by the parties, so the government requested the action be dismissed, after invoking the state secrets privilege. The federal district court granted the motions and dismissed the case, which the U.S. Court of Appeals for Fourth Circuit affirmed. So there is precedent for this unusual action by the government in a private lawsuit, but the legitimacy of the state secrets privilege remains subject to question.

The State Secrets Privilege and the Reynolds Case Fraud

The Justice Department’s memorandum of law accompanying its motion to intervene states that once the state secrets privilege has been asserted “by the head of the department with control over the matter in question . . . the scope of judicial review is quite narrow.” Quoting from the U.S. Supreme Court ruling establishing this privilege in 1953, U.S. v. Reynolds, the brief adds: “the sole determination for the court is whether, ‘from all the circumstances of the case . . . there is a reasonable danger that compulsion of the evidence will expose military [or other] matters which, in the interest of national security, should not be divulged.’”

In short, all the Justice Department need claim is the magic phrase—”state secrets”—after assuring the court that the head of department or agency involved has personally decided it is information that cannot be released. That ends the matter. This is what has made this privilege so controversial, not to mention dubious. Indeed, invocation by the executive branch effectively removes the question from judicial determination, and the information underlying the decision is not even provided to the court.

Lou Fisher looked closely at the state secrets privilege in his book In The Name of National Security, as well as in follow-up articles when the Reynolds case was litigated after it was discovered, decades after the fact, that the government had literally defrauded the Supreme Court in Reynolds, e.g., “The State Secrets Privilege: Relying on Reynolds.” The Reynolds ruling emerged from litigation initiated by the widows of three civilian engineers who died in a midair explosion of a B-29 bomber on October 6, 1948. The government refused to provide the widows with the government’s accident report. On March 9, 1953, the Supreme Court created the state secrets privilege when agreeing the accident report did not have to be produced since the government claimed it contained national security secrets. In fact, none of the federal judges in the lower courts, nor the justices on the Supreme Court, were allowed to read the report.

In February 2000, Judith Loether, a daughter of one of the three civilians killed in the 1948 B-29 explosion, discovered the government’s once-secret accident report for the incident on the Internet. Loether had been seven weeks old when her father died but been told by her mother what was known of her father’s death and the unsuccessful efforts to find out what had truly happened. When Loether read the accident report she was stunned. There were no national security secrets whatsoever, rather there was glaringly clear evidence of the government’s negligence resulting in her father’s death. Loether shared this information with the families of the other civilian engineers who had been killed in the incident and they joined together in a legal action to overturn Reynolds, raising the fact that the executive branch of the government had misled the Supreme Court, not to mention the parties to the earlier lawsuit.

To make a long story short, the Supreme Court was more interested in the finality of their decisions than the fraud that had been perpetrated upon them. They rejected the direct appeal, and efforts to re-litigate the case through the lower courts failed. As Fisher notes, the Court ruled in Reynolds based on “vapors and allusions,” rather than facts and evidence, and today it is clear that when it uncritically accepted the government’s word, the Court abdicated its duty to protect the ability of each party to present its case fairly, not to mention it left the matter under the control of a “self-interested executive” branch.

As Fisher and other scholars note, there is much more room under the Reynolds ruling for the court to take a hard look at the evidence when the government claims state secrets than has been common practice. Fisher reminds: “The state secrets privilege is qualified, not absolute. Otherwise there is no adversary process in court, no exercise of judicial independence over what evidence is needed, and no fairness accorded to private litigants who challenge the government . . . . There is no justification in law or history for a court to acquiesce to the accuracy of affidavits, statements, and declarations submitted by the executive branch.” Indeed, he noted to do so is contrary to our constitutional system of checks and balances.

Time to Reexamine Blind Adherence to the State Secrets Privilege

In responding to the government’s move to intervene, invoke state secrets, and dismiss the Restis lawsuit, plaintiffs’ attorney Abbe Lowell sent a letter to Judge Edgardo Ramos, the presiding judge on the case on September 17, 2014, contesting the Department of Justice’s ex parte filings, and requesting that Judge Ramos “order the Government to file a public declaration in support of its filing that will enable Plaintiffs to meaningfully respond.” Lowell also suggested as an alternative that he “presently holds more than sufficient security clearances to be given access to the ex parte submission,” and the court could do here as in other national security cases, and issue a protective order that the information not be shared with anyone. While Lowell does not so state, he is in effect taking on the existing state secrets privilege procedure where only the government knows what is being withheld and why, and he is taking on Reynolds.

Lowell states in his letter: “By relying solely upon ex parte submissions to justify its invocation of the state secrets privilege, especially in the unprecedented circumstance of private party litigation without an obvious government interest, the Government has improperly invoked the state secrets privilege, deprived Plaintiffs of the opportunity to test the Government’s claims through the adversarial process, and limited the Court’s opportunity to make an informed judgment. “ Lowell further claims that in “the typical state secrets case, the Government will simultaneously file both a sealed declaration and a detailed public declaration.” (Emphasis in Lowell’s letter.) To bolster this contention, he provided the court with an example, and offered to provide additional examples if so requested.

Lowell explains it is not clear—and suggests the government is similarly unclear in having earlier suggested a “law enforcement privilege”—as to why the state secrets privilege is being invoked, and argues this case can be tried without exposing government secrets. Citing the Fitzgerald ruling, Lowell points out dismissal is appropriate “[o]nly when no amount of effort and care on the part of the court and the parties will safeguard privileged material is dismissal warranted.”

No telling how Judge Ramos will rule, and the government has a remarkable record of prevailing with the deeply flawed state secrets privilege. But Lowell’s letter appears to say, between the lines, that he has a client who is prepared to test this dubious privilege and the government’s use of it in this case if Judge Ramos dismisses this lawsuit. The U.S. Court of Appeals for the Second Circuit, where that ruling would be reviewed, sees itself every bit the intellectual equal of the U.S. Supreme Court and it is uniquely qualified to give this dubious privilege and the Reynolds holding a reexamination. It is long past time this be done.


John W. Dean, a Justia columnist, is a former counsel to the president.
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Mr. President: The Islamic State Is a Religion http://verdict.justia.com/2014/09/18/mr-president-islamic-state-religion http://verdict.justia.com/2014/09/18/mr-president-islamic-state-religion#comments Thu, 18 Sep 2014 04:01:56 +0000 http://verdict.justia.com/?p=14851 Continue reading →]]> The White HouseLast week, President Barack Obama addressed the nation to outline the measures the United States is using to deal with the latest terrorist threat, the Islamic State (“ISIS” or “ISIL,” as the Administration calls it). Here is where he veered off path, early in his speech:

My fellow Americans, tonight I want to speak to you about what the United States will do with our friends and allies to degrade and ultimately destroy the terrorist group known as ISIL. . . . Now let’s make [this] clear: ISIL is not ‘Islamic.’ No religion condones the killing of innocents.

Actually, Mr. President, ISIS is a religion, and to label it in any other way is to underestimate its drive and determination to destroy nonbelievers, or infidels, or, as we call it, Western culture.

I am sure you are familiar with European and American history. It was religion that “condone[d] the killing of innocents” during the Spanish Inquisition and the Protestant Reformation and the Catholic Counter Reformation. The Tower of London is a monument to killing infidels, whether the throne was occupied by Catholic Queen Mary or Protestant Queen Elizabeth. The Salem Witch Trials in Massachusetts led to the execution of nonbelievers for supposed “witchcraft.” The Massachusetts Puritans killed Quakers, Mr. President, because of their beliefs.

Our founding fathers were familiar with the dangers of religiously fueled violence. In fact, the framer of the First Amendment, James Madison, in his justly famous Memorial and Remonstrance, explicitly cited the Inquisition when he decried the Virginia bill to use state funds to support Christian teachers. He believed state financial support for religion was the first step toward intolerance, persecution, and the Inquisition:

Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthropy in their due extent, may offer a more certain repose from his Troubles.

But long-past history is not the only marker of the capacity of religion to kill innocents. How about our own home-grown American citizens who view killing as the straightest path to salvation and integrity? The murders of abortion providers are religiously motivated. The murder of ordinary citizens last April by a Neo-Nazi white supremacist in Overland Park, Kansas, which I discussed here, was motivated by his religious worldview.

You lead the United States down a primrose path when you attempt to paint ISIS as anything other than an organization that is religious. Sure, it is not composed of mainstream Muslims. But that is not the only category to check off. There are good religious actors and bad religious actors, and it is time this Administration abandoned the mistakes made by Presidents Clinton and Bush, who publicly bought into the Pollyanna view of religion as a way of appeasing religious lobbyists. We were burdened with the Religious Freedom Restoration Act (RFRA) as a result and continue to pay the price for treating religion as a collection of mild-mannered folks who would never hurt anyone.

Just say the truth, which is that religion can be a force for transcendent good and gargantuan evil. That is why we have the rule of law, the separation of church and state, and the Supreme Court has never applied the warped reasoning of RFRA in its First Amendment free exercise cases. Religious actors are humans who do wrong in the name of their God or gods, and who must be named as criminals and terrorists when they are.

There is no force in the history of the world like religious believers who see destruction of nonbelievers—infidels—as the only path to goodness and virtue, and that is what we face in ISIS. You, as Commander in Chief, are facing irrational, implacable believers. Name them honestly, Mr. President, and then destroy them.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.
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Is It Arbitrary to Distinguish Incest From Homosexuality? http://verdict.justia.com/2014/09/17/arbitrary-distinguish-incest-homosexuality http://verdict.justia.com/2014/09/17/arbitrary-distinguish-incest-homosexuality#comments Wed, 17 Sep 2014 04:01:51 +0000 http://verdict.justia.com/?p=14847 Continue reading →]]> Scales of Justice ConceptEarlier this month, in a unanimous opinion by Judge Richard Posner for a three-judge panel in Baskin v. Bogan, the U.S. Court of Appeals for the Seventh Circuit struck down Indiana and Wisconsin laws denying recognition to same-sex marriages (SSMs) in those states, as violations of the Equal Protection Clause of the Fourteenth Amendment. Judge Posner’s opinion does an excellent job of refuting the various arguments that the ban’s defenders presented in their briefs and in court, including the proposal that the purpose of marriage is to serve as insurance for accidental procreation and that because same-sex couples necessarily cannot “accidentally” procreate, they have no need for such insurance. Readers can find an outstanding review of Judge Posner’s opinion (as well as of a less distinguished district court opinion going the other way) in Michael C. Dorf’s Verdict column on the subject.

In the course of responding to the defenders of SSM bans, Judge Posner’s opinion points out a flaw in the argument that the purpose of marriage (and, according to the government of Indiana, its only purpose) is to serve as accidental procreation insurance. The flaw emerges in the observation that although both Indiana and Wisconsin prohibit incestuous marriage (in particular, marriage by first cousins), each suspends its respective prohibition for some couples (those ages 65 and older in Indiana and those that include a female 55 or older in Wisconsin, as well as younger couples in Wisconsin with a doctor’s note attesting to sterility in one of the parties). While gay people cannot marry because they cannot accidentally procreate, it thus seems that straight first cousins may marry only if they cannot procreate, a situation in which they would plainly need no insurance against accidental procreation. The laws governing incest thus provide a useful means of testing the sincerity of government rationales offered in defense of SSM bans.

In this column, I will take up the question of incest/incestuous marriage prohibitions for a different purpose. Defenders of anti-gay legislation have often invoked incest laws as part of making their case. The claim is that laws against incest (or against incestuous marriage), which garner little controversy, are in fact indistinguishable from laws against gay relationships or SSM. Justice Scalia famously said in his angry dissent from Lawrence v. Texas that “[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” all rest on the same basic principles as laws against sodomy between two people of the same sex. Putting aside the other items in the list, this column asks whether Justice Scalia was right in his claim with respect to incest or whether there is in fact a real difference between banning incest (including through prohibitions against incestuous marriage) and banning homosexuality (through SSM bans).

Different Ways of Thinking About the Question

There are at least two distinct ways in which we might assess the legitimacy of distinguishing between bans on SSMs and bans on incestuous marriages. The first would involve focusing on the interest, if any, that the government might have in barring the type of marriage in question. Put differently, we could dwell on the negative impact, if any, that society experiences from the practice at issue. Second, we might consider the harm that the prohibition in dispute inflicts on the population to which it applies; that is, we might ask how much of an interest people have in being free to enter into the marriages that the laws, respectively, seek to ban.

The Governmental Interest Served

The first approach is to consider what legitimate goals a government might have in prohibiting incestuous and same-sex marriages, respectively. A common argument that people have long made in favor of (consensual adult) incest prohibitions is that incestuous unions are far more likely than other, non-incestuous, unions to produce offspring with serious genetic anomalies. A society has an interest, along these lines, in trying to maximize the odds of producing healthy offspring and therefore in preventing unions that are more likely than others to yield genetic abnormalities. An analogous argument for prohibitions against SSM might be that same-sex unions are unlikely to produce children (a proposition that no longer remains true but that used to be relatively accurate) and that society has an interest in encouraging unions that will produce the next generation of (healthy and productive) societal members.

For different people, these two rationales may sound more or less reasonable. Let us begin with the incest ban. Most of us feel some revulsion at the idea of incest, perhaps because evolution has programmed us to feel this revulsion, given the increased odds of negative genetic consequences when close relatives find each other sexually attractive. As a result of our revulsion, we might find ourselves relatively uncritical of the genetic-anomaly-avoidance rationale (or any other rationale, however weak) offered in defense of a ban.

One problem with the genetic rationale, however, is its under-inclusiveness. If government were truly trying to prevent couplings at increased odds of producing offspring with genetic anomalies, then it would hardly seem optimal to begin with incest (which most people find unappealing already). We might instead prohibit unions of people over a particular age, given that older eggs and older sperms are far more likely to yield genetic anomalies than their younger counterparts. We might also require that people seeking to marry first undergo genetic testing and evidence a genetic “clean bill of health.” If testing revealed genetic risks to a union, the law could then either prohibit marriage or require sterilization for that couple as a precondition to marriage.

The sorts of laws we would pass if we were truly serious about preventing genetic-anomaly-producing couplings would plainly be extremely intrusive. It is far easier to implement an incest ban, because the government can readily determine whether two people are siblings or first cousins. But if it were really important to protect the gene pool, then even such intrusive laws would perhaps be acceptable to us, and the reality is that genetic testing could prove necessary to determining that a couple would be incestuous, especially if the parties were not raised as part of one household.

More importantly, legislation of this sort (including the incest ban) is expressly eugenic in nature: that is, the government is imposing prohibitions on the population as a means of improving its “quality.” Outside of the incest context, we tend to find eugenics legislation offensive. Though the U.S. Supreme Court has given its stamp of approval to the forcible sterilization of “imbeciles,” concluding that “[t]hree generations of imbeciles are enough” in Buck v. Bell, modern audiences likely find this language and ideology appalling and far too resonant with the policies of Nazi Germany.

For homosexuality, the concern about wanting to ensure procreation seems, on its face, less convincing than the eugenics rationale for incest prohibitions. It appears, first, that we have lots of people voluntarily procreating with members of the opposite sex—so many, in fact, that Indiana and Wisconsin are expressing worries about “accidental procreation.” If the only way to motivate gay people to produce offspring were to prohibit SSM (or same-sex relationships more generally), moreover, it would appear terribly intrusive into their lives to do so.

The stigma that once attached to homosexuality and that motivated many gay men and lesbians to be closeted and to (unhappily) marry members of the opposite sex to gain social acceptance is surely not something that any compassionate person would want to resuscitate, even if it were necessary to building our numbers. And a prohibition on SSM would be under-inclusive, because heterosexuals are not required by law to reproduce. Finally, of course, gay men and lesbians are now reproducing without having to sacrifice their authentic sexual identities, through artificial insemination and other reproductive technologies, so prohibiting SSM does nothing to increase their reproductive prospects and might instead diminish them.

If one were focusing on societal rationales, then, one might say that incestuous marriage prohibitions serve a somewhat more plausible benefit than SSM prohibitions but that neither is truly necessary or essential, as evidenced at least in part by under-inclusiveness (apparent in the lack of general eugenics laws or procreation mandates for heterosexuals).

Harm to Targets

Another way to assess differences between incest bans and SSM bans would be to think about them from the perspective of their targets. The targets of (adult consensual) incestuous marriage bans are adults who might wish to have sex with and marry one of their close relatives, a sibling or a first cousin, for example. For someone who is already in love with a sibling, such as the fictional Siegmund and Sieglinde, the prohibition could be quite burdensome. However, most of the people who might feel attraction to a sibling or a cousin would likely have learned early in life that such relationships are prohibited and would probably direct their sexual feelings toward a non-relative instead. That is, people who might commit incest or marry incestuously if it were not prohibited by law are, for the most part, going to be capable of sexual relationships with other people. To my knowledge, people do not generally have an exclusively incestuous “sexual orientation.”

Along similar lines, Judge Posner says in one part of his opinion that prohibitions against interracial marriages were, despite their racist ugliness, “in one respect less severe” than bans on SSM, because “[m]embers of different races had . . . abundant possibilities for finding a suitable marriage partner,” even under the anti-miscegenation regime. Laws prohibiting interracial marriage thus left African Americans with many potential marriage partners with whom they could fall in love.

By contrast, a prohibition against SSM has the effect—for the many people whose sexual orientation is toward only people of the same sex— of “prevent[ing] a homosexual from marrying any person with the same sexual orientation, which is to say (with occasional exceptions) any person a homosexual would want or be willing to marry.” Judge Posner makes this point to argue that SSM bans are, in this sense, more onerous than anti-miscegenation laws, which were ruled unconstitutional in Loving v. Virginia and which are almost universally condemned.

The point that Judge Posner makes is arguably even more applicable when SSM is compared to the case of incest. Anti-miscegenation statutes (in addition to having extremely destructive symbolic meaning) made huge numbers of potential marriage partners unavailable to a given individual, whereas the prohibition against incestuous marriages leaves in place almost all of the potential partners from whom one might want to choose a person to marry. A SSM prohibition effectively prohibits gay men and lesbians from marrying any member of the entire population of potentially desirable partners. The same likely cannot be said of a man who would, absent the incest laws, be inclined to fall in love with his first cousin.

Incest and SSM Redux

If we have a law that rests on a very weak foundation, in terms of governmental interests furthered, and imposes great harm on its targets, it is plain that such a law cannot be justified. We can say this clearly of SSM bans, as the rationales that people have put forward (such as “insurance against accidental procreation” or “we need more procreation”) are silly and weak, while the impact of the ban is to make marriage a celebrated societal benefit that is completely off-limits to everyone with an exclusively same-sex sexual orientation. My hope is that at least five Justices on the U.S. Supreme Court are able to appreciate this reality and find SSM bans unconstitutional under the Equal Protection Clause.

With respect to incest bans, I have suggested here that they are not as harmful as SSM bans because they still leave people who would have liked to marry a relative with plenty of alternative partners. In other words, if it is necessary to distinguish the destructiveness of SSM bans from the destructiveness of (adult consensual) incest bans, one can easily draw that distinction based on the differential burden that the two bans respectively impose on their targets. To the extent that the U.S. Supreme Court is not yet ready to strike down incest laws, this differentiation may prove helpful.

Nonetheless, I do not wish to be read in this column to be suggesting that incestuous marriage bans are necessarily legitimate. Indeed, I think they have serious problems in that they prohibit consensual activity on the basis of a rationale (eugenics) that is both troubling and—because it is so troubling—unenforced in virtually any other area of law. It is also true that some people who did not know in advance that they were close relatives (perhaps because they were each adopted and grew up in different families) have fallen in love only to learn later that the law prohibits the celebration of their union (and whatever children they might have already brought into the world) in marriage. For such couples, the incest prohibition could be devastating. The fact that one could in theory fall in love with someone else does little to relieve the hurt involved in finding out after the fact that the actual individual whom one has chosen as one’s partner turns out to be forbidden.

For this reason, I would leave open the possibility that one day, the U.S. Supreme Court will see fit to hold that as a matter of fundamental liberty, any competent adult should be free to marry any other competent adult, if the two wish to marry. Rationales for stopping them have tended to be weak, and the prohibitions themselves are quite costly for the few people who find themselves in relationships generally frowned upon but innocent of any harm to unwilling others.

I will leave arguments about this for another day. For now, the argument before our society and the courts is about bans on SSM, and the balance between the tremendous harm of such bans and the triviality and foolishness of their putative justifications makes clear that whatever one thinks of incestuous marriage bans, it is time for SSM bans to go.


Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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If She Don’t Win It’s a Shame: Female Executive Sues New York Mets for Pregnancy Discrimination http://verdict.justia.com/2014/09/16/dont-win-shame http://verdict.justia.com/2014/09/16/dont-win-shame#comments Tue, 16 Sep 2014 04:01:50 +0000 http://verdict.justia.com/?p=14842 Continue reading →]]> Pregnant EmployeeLeigh Castergine was the first woman to become a Senior Vice President in the Front Office of the Mets, a once-beloved, but now losing Major League Baseball team in New York. She was in charge of ticket sales and was rewarded over the years for innovations and successes to the tune of multiple $50,000 raises and a $125,000 bonus. But she met her glass ceiling when she, an unmarried woman, announced her pregnancy in 2013.

According to the complaint she just filed in federal court, the Mets’ Chief Operating Officer, Jeffrey Wilpon, looked none too favorably upon her pregnancy. She alleges that he humiliated and embarrassed her, making no secret of his disdain for her decision to have a baby without being married. And when she complained to human resources about his behavior, she was fired.

In this column, we’ll consider the nature of the discrimination Castergine alleges and explain why it is part and parcel of a matrix of biases and stereotypes that pregnant women still face in the workplace.

The Allegations in Castergine’s Complaint

An Ivy League graduate and former Division 1 student athlete, Castergine had worked her way up from low-wage ticket sales jobs with other clubs to a high-ranking position in the Mets’ Front Office. She specialized in data analytics and pricing strategy, key skills for a team with high costs and a waning fan base. The job was a challenge, given the team’s poor performance over many years and what she describes as “a series of public relations blunders that too frequently led to the franchise being ridiculed in the sports pages.” Often told that her job was like selling “tickets to a funeral” or “deck chairs on the Titanic,” Castergine persevered and was recognized repeatedly and lucratively for excellent work.

When Castergine announced that she was pregnant in September 2013, the whole tenor of her worklife changed. Before revealing her pregnancy, Castergine sat in on a meeting where her superiors discussed another woman who had recently given birth. They complained that she “hasn’t been the same since she had children” and discussed moving her to a different department.

Upon revealing her pregnancy, Castergine, who had once been profiled in an industry publication and described as “the next female President in the sports industry,” was subjected to a strong of torments by Wilpon, who became “fixated on the idea that Castergine would have a child without being married.” (All facts mentioned in this column are based on the allegations in Castergine’s lawsuit; the defendants have publicly denied them and stated that they are opposed to all forms of discrimination.) He would repeatedly and obviously look at her finger for an engagement ring and told her expressly that she would make more in salary and bonuses if only she would get a ring.

Wilpon’s alleged comments were often made to or in front of others. He told one colleague that he is “old fashioned” and thinks she “should be married before having a baby.” He told another that “she is a senior vice president now; people would respect her more if she was married.” He announced at a meeting that there were “two rules” regarding her pregnancy: “don’t touch her belly and don’t ask how she’s doing; she’s not sick, she’s pregnant.” He later told her: “I am as morally opposed to putting an e-cigarette sign in my ballpark as I am to Leigh having this baby without being married.” Although six other senior executives were present, including the team’s general counsel, no one objected to Wilpon’s comment.

Castergine complained to her immediate supervisor about Wilpon’s comments. He acknowledged the conduct (some of which he had heard in person), but took no action. She alleges Wilpon’s treatment of her became more hostile after the complaint, rather than designed to remediate the situation. She later complained to the Executive Director of Human Resources, Holly Lindvail, who urged Castergine to quit.

After a difficult pregnancy, Castergine gave birth in March 2014 and returned to work three months later. In July she again approached Lindvail about the hostile environment, and Lindvail again urged her to quit. In August, citing “issues” with “her performance,” the Mets fired Castergine. Wilpon claimed she failed to meet her sales goals, but also shared his belief that “something changed” when she gave birth, and she was no longer “as aggressive as she once had been.”

Castergine filed suit alleging violations of the federal Family and Medical Leave Act, the New York State anti-discrimination law, and the New York City anti-discrimination law. She alleges interference with her right to take job-protected leave for childbirth, discrimination against her on the basis of pregnancy, and retaliation.

A Classic Case of Pregnancy Discrimination: “Animus” and Hostility Toward Pregnant Employees

The hostile response of Castergine’s superiors to her pregnancy is not unique. It was exactly this type of animus and bias against pregnant, working women that led Congress to enact the Pregnancy Discrimination Act (PDA) of 1978. The PDA amended Title VII of the Civil Rights Act of 1964 to clarify that pregnancy discrimination is a form of prohibited sex discrimination. The PDA was necessitated by a Supreme Court decision two years earlier, General Electric v. Gilbert, which failed to recognize this core connection between pregnancy discrimination and sex discrimination. Many state fair employment statutes, including New York’s, track the PDA in banning discrimination because of pregnancy, alongside other forms of prohibited discrimination.

While courts have long struggled to determine whether some forms of the unequal treatment of pregnant women are discriminatory (more on that below), Castergine’s allegations, if proven true, are precisely the kind that courts have most easily grasped as discriminatory. The different treatment of an employee once she is known to be pregnant, combined with derogatory remarks about her pregnancy, register easily as discriminatory and present the easiest cases for plaintiff to win.

In our review of cases decided under the federal Pregnancy Discrimination Act, we found that the vast majority of successful cases involved a discernible anti-pregnancy “animus,” typically involving explicit statements by decision-makers making derogatory comments about the plaintiff’s pregnancy. With this type of fact pattern, courts can’t help seeing the employer’s negative reaction to the plaintiff’s pregnancy, combined with an adverse employment action resulting from it, as a form of pregnancy discrimination. So if the allegations are true, the case is a home run.

A Common Core of Stereotyping, but Inconsistent Results

But courts do worse when examining forms of pregnancy discrimination that do not neatly fit this precise paradigm, despite their underlying similarities. While many pregnant women, like Castergine, are punished for becoming pregnant, despite their undiminished ability to do the job, others require some—often modest—accommodation to keep working while pregnant, and seek equal treatment in how the employer treats non-pregnant employees in similar need of accommodations. In this class of cases, courts have done a terrible job of recognizing the unequal treatment of pregnant workers as unlawful discrimination, despite clear language in the PDA directing them to do so and despite the similarity in stereotyping that lies behind the treatment of pregnant workers in both types of cases.

These cases often involve women in much-lower paying jobs than Castergine, jobs with rigidly structured workdays and no flexibility, where pregnancy requires modest allowances to continue working. In one such case, a pregnant store clerk needed—but was refused—permission to carry a water bottle on her shift, per her doctor’s orders. In another, a pregnant stocker sought, but was denied, a shift change to be permitted to stock only lighter-item shelves. The refusal-to-accommodate cases also arise frequently when women hold nontraditional jobs, jobs held predominantly by men and with a history of excluding women, and become pregnant. Police work, firefighting, and construction work are common settings for this class of pregnancy discrimination cases.

In all of these cases, the pregnant worker seeks the kind of accommodation that the employer would have provided to a non-pregnant worker with a limitation that has a similar effect on the employee’s ability to work. Sometimes the employer accommodates similarly situated but non-pregnant workers because of the employer’s own policy (as in policies granting light-duty work for on-the-job injuries), sometimes because of an agreement with the union, and sometimes because of another legal mandate (as with the Americans with Disabilities Act, which requires reasonable accommodations for a broad range of disabilities, even temporary ones, but has been interpreted not to cover normal pregnancy). But whatever the employer’s reason for accommodating the limitations of non-pregnant workers, the PDA specifically directs them to treat pregnant workers no worse than they treat other employees similar in their ability to work. Oddly, courts confronted with an employer’s refusal to provide such equal treatment have refused to recognize it as unlawful pregnancy discrimination.

What makes the courts’ myopia so stark is not just that the statute clearly prescribes the equal treatment of pregnancy, or even that the cases predominantly involve lower-wage workers and women holding nontraditional jobs—precisely those workers most in need of the protections of the law. Especially anomalous in the courts’ very different approaches to the unequal accommodation cases versus the type of discrimination Castergine alleges is that the very same gender stereotyping and gender ideologies underlie both types of discrimination. They should not be seen as occupying opposite ends of the spectrum, but as flip sides of the same coin. In both classes of cases, stereotypes about women, work, and maternity are at the heart of the matter.

Recognizing the continuity between overtly pushing women out of their jobs when they become pregnant and accomplishing the same result more subtly by denying pregnant workers the same benefits and treatment afforded non-pregnant workers with similar work capacity, Congress proscribed both forms of discrimination in the PDA. The latter is encapsulated in the PDA’s second clause, which requires pregnant workers to be treated “the same . . . as other persons not so affected but similar in their ability or inability to work.” As Congress rightly understood, that clause was necessary because denying pregnant workers the same benefits, privileges and accommodations available to other workers with conditions similarly affecting work functioned to push pregnant workers out of the workforce as effectively as more blatant discriminatory exclusions. That such discriminatory policies were justified by “cost” rather than outright animus was of no matter; “cost” predictions themselves for pregnant workers were often tainted by stereotypes predicting that women would eventually leave the workforce or be less competent workers upon becoming mothers.

Historically, employer policies that denied accommodations for pregnancy, but provided them for other conditions similarly affecting work, were based on both descriptive and prescriptive stereotypes. Descriptively, such policies were predicated on stereotypes about pregnant workers as fungible, less valuable, and less deserving of accommodation than non-pregnant workers. Prescriptively, the differential treatment of pregnancy reinforced a judgment that women should not combine work and maternity, or if they do, not at the same level of workplace attachment as the worker held before the pregnancy.

Such stereotypes continue to have force in the differential treatment of pregnant workers today. Scholars who study work and pregnancy have found that pregnant workers’ requests for even minor accommodations—accommodations readily available to others with similar work capacity—are often met with outright hostility. They are treated as fungible, not worth the kinds of investments routinely made in other workers.

The Anomaly Reaches the High Court: Young v. U.P.S.

A case now pending before the U.S. Supreme Court, Young v. United Parcel Service, Inc., involves precisely this type of “second-class” pregnancy discrimination. Peggy Young was fired when she presented a health care provider’s note restricting her from lifting heavy packages. In actuality, it would have been a minor accommodation, since she almost never had to lift heavy packages in her day-to-day job, though her job description mentioned it as part of the job, and on the rare occasions when she did, she could always find a helpful coworker. More to the point, the U.P.S. policy would have accommodated the same request had it come from a disabled worker covered by the ADA, an employee whose on-the-job injury necessitated such a request, and even a driver who lost his or her license for any reason and needed alternative work, pursuant to a collective bargaining agreement between the company and the union. But a pregnant worker whose pregnancy required such an accommodation had no option but to leave her job. She lost her case in the lower courts because they failed to see any anti-pregnancy animus in what U.P.S. had done, and instead saw the company policy as a “pregnancy neutral” rule that favored some classes of workers while leaving out pregnancy.

Increasingly, lower courts have taken this approach to deny the claims of pregnant workers seeking treatment equal to that of similarly affected workers whose non-pregnancy conditions are accommodated. In doing so, they completely miss the overlapping gender stereotypes behind the unequal accommodation cases and the more blatant hostility to pregnancy alleged in Castergine’s case against the Mets. While the fate of Peggy Young’s claim now rests with the Supreme Court, Castergine’s case, if proven, should be an easy run around the bases.


Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
Deborah Brake is a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. Her book, Getting in the Game: Title IX and the Women's Sports Revolution (NYU Press 2010), was recently released in paperback.
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