Analysis and Commentary on Civil Rights

The Changing Scope of the Freedom of Expression in the United States and Brazil

Guest columnists Igor De Lazari and Antonio Sepulveda, and Justia editor David S. Kemp compare and contrast the evolving recognition of the rights of LGB individuals in the United States and Brazil. The authors point to several parallel decisions by the high court of each nation, but they also point to ways in which the jurisprudence of the two countries might diverge—specifically when religious beliefs appear to conflict with the recognition of the rights of gays and lesbians.

Reflections on Insurrections

George Washington law professor and economist Neil H. Buchanan considers the irony of the (hopefully remote) possibility that people might resort to violence to keep President Trump in power. Buchanan explains the “insurrectionist view” of the Second Amendment, which has never been credited by the Supreme Court, but which holds that the founders included the gun-related amendment in the Bill of Rights to prevent the federal government from running roughshod over the people. Buchanan points out the circular logic that under the insurrectionist view, the reason people need guns is to prevent the government from taking their guns.

The Handmaid’s Tale—Junior Version

SMU Dedman School of Law professor Joanna L. Grossman analogizes a situation in the present United States to the dystopic circumstances of The Handmaid’s Tale. In each, Grossman points out that men have taken upon themselves the right and responsibility to mandate what women may (and must) do during pregnancy, despite what are indisputably their constitutional rights.

Sex, Lies, and Trump’s Rollback of the Contraceptive Mandate

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent change in policy announced by the Trump administration rolling back the Affordable Care Act’s contraceptive mandate, allowing employers with religious or moral objections to exempt themselves. Grossman describes the history of access to contraception in the United States and the measures Trump has taken that have the purpose or effect of restricting access to contraception.

Concern About DeVos’s Rescission of Obama Policy on Campus Rape

Cornell University law professor Sherry F. Colb comments on the decision by Education Secretary Betsy DeVos to rescind the Obama-era Title IX guidance on campus sexual assault because it allegedly denies due process to students accused of rape. While acknowledging specific instances where accused students have been treated poorly, Colb argues that the existing guidelines are eminently sensible and defensible and that rescinding them rather than editing or modifying them goes well beyond what is necessary to address concerns for accused students. Colb focuses on two commonly attacked features of campus policy—the preponderance of the evidence standard and the affirmative consent requirement—and explains why they are good policy.

Got Milk? Eleventh Circuit Holds That Discrimination Because of Employee’s Breastfeeding is Unlawful Discrimination

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision in which the US Court of Appeals for the Eleventh Circuit recognized that discrimination because of an employee’s breastfeeding constitutes illegal pregnancy discrimination. Grossman explains the facts leading up to the case and explains why the court found that the employer, the Tuscaloosa Police Department, had violated the employee’s rights under the Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act.

Why One Can Support Affirmative Action but Oppose Favoring Whites Over Asians When Administering It

Illinois Law dean and professor Vikram David Amar comments on the recent indications that the Trump Justice Department will investigate and possibly sue colleges and universities that make use of race-based affirmative action. Without expressing views as to the merits of pending lawsuits, Amar explains how one can simultaneously support race-based affirmative action and oppose the so-called “Asian penalty”—that is, systematically requiring Asian American applicants to have higher scores than white applicants.

What Do Colleges Have to Fear From Trump Justice Department’s Anti-Affirmative Action Policy?

Cornell University law professor Michael C. Dorf highlights some potentially dangerous consequences of the Justice Department’s recent indication that it would be investigating and suing colleges and universities that practice affirmative action. Dorf points out that the executive branch holds significant power over both public and private universities and colleges, and that it could exercise that power to induce significant changes in admissions policies.

Reason in the Time of Trump’s Transgender Tweet: The Military Benefits of Fortifying Pro-Dignity and Anti-Discrimination Norms

Illinois Law professor Lesley Wexler explains why the U.S. military would benefit from strengthening its pro-dignity and anti-discrimination norms, rather than implementing divisive discriminatory policies such as President Trump’s recent tweet regarding transgender service members. Wexler points to concrete ways inclusivity fortifies the military and calls upon leadership to embrace inclusive policies.

Unsolicited Opinion: The Department of Justice Files Brief Urging Court to Block Rights for LGBT Employees

SMU Dedman School of Law professor Joanna L. Grossman and Chicago-Kent College of Law professor Anthony Michael Kreis comment on a brief recently filed by the U.S. Department of Justice arguing that Title VII of the Civil Rights Act of 1964 does not protect against sexual orientation discrimination. Grossman and Kreis point out the flaws in the DOJ’s arguments and explain the dangerous consequences its position will have if it prevails.

Independence Day: The Texas Supreme Court Refuses to Hold That the Federal Constitutional Right of Same-Sex Couples to Marry Has Full Force in Texas

SMU Dedman School of Law professors Joanna L. Grossman and Dale Carpenter comment on a recent decision by the Texas Supreme Court in which it refuses to give effect to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry. Grossman and Carpenter explain why the Texas court’s decision was clearly wrong and why factors other than merits might have (though they should not have) affected the ruling in that case.

Summarily Reversed: Arkansas’s Attempt to Flout Obergefell v. Hodges Is Blocked

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent summary reversal of the Arkansas Supreme Court’s ruling that upheld that state’s attempt to avoid the marriage equality decision in Obergefell v. Hodges. Grossman describes the ways in which some states, such as Arkansas in this case, have tried to avoid, subvert, or limit Obergefell’s holding, and she discusses the Supreme Court’s simple yet clear response, as well as the significance of Justice Gorsuch’s dissent from the per curiam opinion.

Policing Sexism at the Border: The Supreme Court’s Decision in Sessions v. Morales-Santana

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision in Sessions v. Morales-Santana, in which the Court held unconstitutional a federal law imposing different physical presence requirements on mothers as compared to fathers. Grossman argues that the law at issue epitomized sex discrimination and was rooted in archaic generalizations about parents based on gender.

Discrimination Begets Discrimination: The Ninth Circuit Allows Prior Salary to Justify Paying Women Less Than Men for the Same Work

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Ninth Circuit perpetuating pay disparities between men and women by allowing an employer to rely on prior salary in determining pay. Grossman explains why the use of salary history undermines the purpose of the Equal Pay Act of 1963 and argues that laws prohibiting use of salary history, like Massachusetts has, require an employer to think about how much the work is worth rather than how much the person is worth.

Equality for All: Federal Appeals Court Holds in Hively v. Ivy Tech Community College That Title VII Prohibits LGBT Discrimination

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision by the U.S. Court of Appeals for the Seventh Circuit, sitting en banc, in which it unequivocally held that Title VII prohibits LGBT discrimination. Grossman describes the history leading up to this momentous decision and applauds the court for getting it right.

The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein explain the complexities behind analyzing the motive underlying legislation and executive orders. Specifically, Amar and Brownstein highlight the difficulty in courts’ using perceived motive to strike down President Trump’s executive order regarding entry to the United States.

The Child Sex Abuse Scandals Are All the Same and They Demand the Government to Act

Marci Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and the CEO of CHILD USA, calls attention to the patterns of child sex abuse that indicate it is a symptom of a larger society-wide problem. To address this problem at its root, Hamilton proposes a law that would mandate certain principles and practices for every organization involved in any way with children.

Should Federalism Play a Role in the Interpretation of Civil Rights Laws?

Cornell University law professor Michael Dorf argues that in some contexts, consideration of states’ rights is relevant to the interpretation of federal statutes, but in other contexts—including the federal lawsuit over a transgender boy’s access to a boys’ restroom at school—principles of federalism are outweighed by other considerations. Dorf provides three examples of instances where federalism should play a role in the interpretation of federal statutes, and he explains why the transgender bathroom case differs from those instances.

Another Senseless Act of Destruction: The Trump Administration Undermines Protections for Transgender Students

SMU Dedman School of Law professor Joanna Grossman argues that the decision by the Trump Administration to roll back protections for transgender students is mean-spirited and serves no legitimate purpose. Grossman briefly describes the history of the recognition of transgender rights under federal statutes and explains why protections for transgender students make far greater legal sense than denying those protections.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more