Analysis and Commentary on Civil Rights

A Federal Judge Thwarts Title VII and the Pregnancy Discrimination Act by Ruling Bizarrely That Lactation Is Not Related to Pregnancy

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent case that was brought by a woman who alleged that she was fired because, after giving birth, she asked if she could pump breast milk in a back room at her workplace. The judge held that she did not have a right to do so, under either Title VII, which prohibits discrimination based on gender, or the Pregnancy Discrimination Act. Grossman takes strong issue with the ruling, which reasoned oddly that lactation and pregnancy are somehow unrelated. Grossman notes that the lactation-discrimination conflict is part of a long-running war—involving employers, employees, insurance companies, state governments, and the federal government—about whether women, alone, should bear all the consequences, costs and hardships of reproduction, or whether their employers and/or others must play a part. In addition to the lactation-discrimination case, Grossman also covers prior cases involving contraceptive equity and infertility discrimination, as well as discussing the legal protections that woman can turn to when the reproductive process conflicts with work, and the role the EEOC has played in this area of law.

The U.S. Court of Appeals for the Ninth Circuit Strikes Down Proposition 8: Three Key Elements of the Decision

Justia columnist and Cardozo law professor Marci Hamilton comments on several key aspects of the recent decision, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, holding that Proposition 8—the initiative constitutional amendment purporting to abolish gay marriage in California—violates equal protection. Hamilton focuses, in particular, on (1) the standing issue and the problems the initiative procedure raised; (2) the question whether Prop. 8 had any legitimate purpose, or was simply driven by animus toward gay people; and (3) why the U.S. Supreme Court is unlikely to take the case.

The Beginning of the End of the Anti-Same-Sex-Marriage Movement

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.

Repealing the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the Due Process Guarantee Act of 2011—a bill that states that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the U.S., unless Congress explicitly provides for such detention. As Mariner explains, this clear-statement rule would offer citizens and resident non-citizens in the U.S. default protection against indefinite detention without charge, unless Congress plainly authorized such detention. Nevertheless, Mariner notes that she is of two minds about the Act. On one hand, Mariner believes that the Due Process Guarantee Act would effect a welcome change to the detention provisions of the controversial NDAA (National Defense Authorization Act) regarding U.S. citizens and lawful permanent residents of the U.S. On the other hand, though, Mariner points out that the Due Process Guarantee Act would do nothing to solve the problem of the indefinite detention, by the U.S., of non-resident aliens at Guantanamo—which Mariner contends is, by far, the U.S.’s most urgent and glaring detention problem.

The Indefinite Detention of Citizens and Non-Citizens Under the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the provisions of the NDAA (National Defense Authorization Act) relating to the detention of citizens and non-citizens. She begins by noting that, last week, the tenth anniversary of the military prison at Guantanamo occurred, and was the subject of comment by the media, but this brief focus on the prison and its prisoners was the exception to the rule. In addition, she points out that the NDAA addresses the very issue that Guantanamo embodies, indefinite detention without charge, and does so in a way that has sparked sharp criticism from conservatives and liberals alike. Mariner focuses here, however, on a less-remarked aspect of the NDAA: Although its provision for indefinite detention for American citizens has been highly controversial, far less attention has been paid to its provision for indefinite detention for non-citizens—of which there are 171 being currently held at Guantanamo; all but five indefinitely (of the five, four were convicted and one faces terrorism and other charges). Mariner calls for more attention to the NDAA’s treatment of non-citizens, reminding readers that indefinite detention for Americans remains theoretical, but indefinite detention for those incarcerated at Guantanamo is very real.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court Embraces a Narrow Ministerial Exception to Federal Anti-Discrimination Laws

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s decision this week in a case that pitted First Amendment religious freedom rights against the rights set forth in federal anti-discrimination law. In the case, a woman who worked for a church as a teacher was fired after taking a medical leave, and sought to invoke her rights under the Americans with Disabilities Act (ADA). But because she was a “called” teacher, with some religious responsibilities, the church argued that her firing was within its discretion, under the First Amendment’s religion clauses. The Supreme Court ultimately agreed, but as Hamilton explains, the Court issued a narrow decision that still leaves a host of related questions unanswered. Hamilton covers the “parade of horribles” that was raised, but that the Court declined to address in its decision. She also identifies the decision’s bottom line: Courts cannot constitutionally establish selection criteria for clergy.

The NDAA Explained: Part Two in a Two-Part Series of Columns on the National Defense Authorization Act

In the second of a two-part series of columns on the highly controversial NDAA (National Defense Authorization Act), Justia columnist and Hunter College Human Rights Program Director Joanne Mariner continues to explain and comment upon on the bill, which is now the law. Mariner explains President Obama’s reasons for signing the bill, despite what he called “serious reservations” about its provisions that regulate the detention, interrogation and prosecution of suspected terrorists; and what his signing statement, accompanying the bill, said. Mariner notes that at this point, Obama is responsible for three key steps in America’s entrenchment of indefinite detention without trial: (1) justifying indefinite detention in litigation opposing the release of detainees held at Guantanamo; (2) issuing an executive order on indefinite detention; and (3) signing the NDAA. Mariner chronicles the road that took America to the passage of the NDAA, detailing the contributions of the Bush and Obama Administrations. In addition, she considers the most controversial aspect of the NDAA: its supposed allowance of the indefinite detention even of American citizens. Finally, Mariner notes that any fair reading of the NDAA ought to include a set of basic points, which she explains; and calls for a repeal of the NDAA’s detention provisions, as well as for the closure of Guantanamo.

The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner explains and comments on the highly controversial National Defense Authorization Act (NDAA), which has passed the House and Senate and is now awaiting President Obama’s signature. As Mariner notes, the NDAA’s provisions on indefinite detention earlier caused President Obama to threaten to veto the bill, but now President Obama appears poised to sign the bill’s current version—based on his claim that it affords the president substantial discretion on how the law will be implemented. But, Mariner points out, numerous human rights groups, civil libertarians, and Members of Congress still find the bill extremely objectionable in this current version. In this two-part series of columns, Mariner provides background on the recent history that is relevant to the bill; describes what the often-mischaracterized provisions of the bill actually say, and whom they affect; and focuses, especially, on the sections that have caused human rights groups the greatest concern.

The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court?

Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.

The Penn State Scandal: Why Is No One Talking about Title IX? Part Two in a Two-Part Series of Columns

In the second in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake continue their commentary on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Here, in Part Two of the series, Grossman and Brake discuss particular issues that may arise if a Title IX claim is brought: Does it make a difference if a given boy was abused only once, for liability purposes? Did the alleged Penn State abuse occur under “any education program or activity” as the statute requires? Does Title IX apply to the alleged harassment by Jerry Sandusky of these particular boys, who (obviously) were not Penn State students? In answering these questions, Grossman and Brake explain why, at the very minimum, the alleged sexual assaults that took place in the showers of the Penn State locker room or its sauna would, at least, fall within Title IX’s reach. In addition, they explain the legal issues regarding Penn State’s potential liability for the abuse, and look to the Grand Jury’s report to see if actual notice and deliberate indifference can be proven, as Title IX requires. Finally, Grossman and Brake note that, for several reasons, there are likely to be no statute-of-limitations issues here, despite the passage of time.

The Penn State Scandal: Why Is No One Talking About Title IX? Part One in a Two-Part Series of Columns

In the first in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Grossman and Brake note that Title IX has been used in the past to address sexual harassment by teachers and coaches, and by third parties, and that such harassment can encompass sexual assault and rape. Title IX, they note, also reaches same-sex harassment. Based on the grand jury presentment, Grossman and Brake detail the allegations at issue. Based on Supreme Court precedent, they explain why the alleged conduct at issue could fit within the parameters of Title IX.

The Reasons Why Herman Cain Has Not Been Able to Talk His Way Out of His Exploding Sexual Harassment Scandal

Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.

An Update on the Fisher v. University of Texas Affirmative Action Case, and the Procedural Issue That Might, But That Need Not, Complicate Things For the Supreme Court

Justia columnist and U.C. Davis law professor Vikram David Amar comments on an interesting case about affirmative action, in which U.S. Supreme Court review is being sought. As he explains, the case asks the question whether a rejected applicant who challenges an affirmative-action program as unconstitutional must prove that, without the affirmative-action program, he or she would have been admitted. Focusing on two key prior Supreme Court cases, Amar notes that there is another possible standard to be applied here—one under which the applicant would not need to show that he or she would have been admitted under the program, but would simply need to assert that he or she had applied, and thus that he or she had been harmed by being considered under an unconstitutional set of rules. Carefully parsing the Court’s precedents, Amar considers whether ambiguous prior decisions are best seen as involving substantive or jurisdictional issues.

Military Commissions Resurgent

Justia columnist and Hunter Human Rights Program Director Joanne Mariner comments upon the return of military commissions, which she describes as the latest in a string of victories for congressional Republicans who seek to bring back Bush-era “war on terror” policies—while seeking not only to keep Guantanamo open, but also to increase the number of persons detained there. Mariner argues that the Obama Administration ought to fight hard against such compromises of rights, but notes that it is not clear yet whether the Administration will take that stance. As Mariner explains, the test case here, which may signal the Administration’s future approach, is that of Lebanese citizen and alleged Hezbollah commander Ali Mussa Daqduq, who has been detained for crimes against U.S. military personnel in Iraq. Mariner contends that the federal courts, not military commissions, are the proper place to try terrorism suspects—with a strong record, under which (1) not a single genuine terrorist escaped conviction, and (2) the federal courts’ sentences generally proved to be longer than the military commissions' sentences.

Reflections on the 9/11 Attacks’ Lasting Impact on America, and American Law

Justia columnist and former counsel to the president John W. Dean comments on the tenth anniversary of the 9/11 attacks, with a special emphasis on the legacy of the attacks for American law. Dean begins by assessing how foreign media sources—whose perspectives, he explains, may be somewhat more detached than Americans’, yet who often interviewed Americans as sources—see the anniversary of 9/11. In addition, Dean contends that, where American law is concerned, the legacy of 9/11 is a baleful one. In support of his claim, Dean points to a post-9/11 proliferation of laws (some with sunset provisions, some without) that, he contends, go beyond all previous limits of constitutional propriety. Dean focuses in particular on the Patriot Act, and the infamous torture memo. All told, Dean concludes, the fallout of the 9/11 attacks has had a highly negative impact on American law.

An Affirmative Action Case That May Illustrate Justice Kennedy’s Power on the Supreme Court and Reshape the Law of Race-Based Admissions Programs

Justia columnist and U.C. Davis law professor Vikram David Amar comments on an affirmative action decision from the U.S. Court of Appeals for the Fifth Circuit in which the Supreme Court may well grant review. Amar explains why, if the High Court does indeed take the case, its decision may substantially alter constitutional law relating to affirmative action in the context of educational admissions. In addition, Amar notes that this case, if taken up by the Court, may illustrate the very considerable power that Justice Anthony Kennedy now wields. Amar also provides thorough background to allow the reader to put this case, and the issues it raises, in the context of prior precedents relating to affirmative action in admissions, such as Bakke, Hopwood, Grutter, and Gratz.

Why the Seventh Circuit Allowed U.S. Citizens to Sue Former Secretary of Defense Rumsfeld for Torture

Guest columnist and Justia editor David S. Kemp comments on a recent decision from the U.S. Court of Appeals for the Seventh Circuit, which permitted two American citizens to sue several U.S. military officials and former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. In that case, the plaintiffs alleged that Rumsfeld authorized the officials to detain and torture them for several months in Iraq, and that they were subsequently released without being charged with any crime. Kemp covers the three essential questions that had to be answered before the suit could proceed; explains the nature of Bivens claims, through which a plaintiff can bring suit against federal officials (such as, here, Rumsfeld) by proceeding directly under a particular constitutional provision; and describes the two-part test federal courts use to decide whether a Bivens claim will be recognized.

David Hicks’s Guantanamo Memoir

Justia columnist Joanne Mariner, an attorney and the head of Hunter College’s Human Rights Program, comments on the memoir of David Hicks, an Australian who was incarcerated at the United States’ Guantanamo Bay detention facility for five-and-a-half years. Mariner notes that Hicks’s Guantanamo memoir is now one of many such works that detail interrogation practices and detention conditions at the facility. She also points out the book has recently made headlines due to the Australian government’s attempt to confiscate the royalties Hicks earned from his publisher, citing Australia’s Proceeds of Crime Act. Mariner notes the parallel between that Act and the United States’ “Son of Sam” laws, which the U.S. Supreme Court has occasionally held to be in violation of the First Amendment, and she explains other troubling aspects of the attempt to apply Australia’s Act to Hicks.

Armed and Crazy: Should Mentally Ill People Be Permitted to Own Firearms?

Justia columnist and Cornell law professor Sherry Colb contends that laws broadly preventing certain mentally ill persons from possessing firearms may not be as obviously a good idea as they might seem at first glance. Currently, Colb explains, there is a federal law—passed in the wake of the Virginia Tech shootings—to simplify the identification and tracking of persons who have previously been committed to a mental hospital, and who have therefore been divested of their right to possess firearms; those rights, though, can later be restored. Interestingly, though, Colb notes that in other contexts, members of certain groups (such as men) may be statistically far more likely than their counterparts (such as women) to commit gun violence, and yet, are allowed to carry guns nonetheless. Colb also points out that certain types of mental illness, which might lead to commitment to a mental hospital, are not connected to gun violence at all, yet still are swept in by the law.

“Respect” or “Defend” Marriage? The Senate Considers a Bill to Repeal the Defense of Marriage Act of 1996 (DOMA): Part Two in a Two-Part Series of Columns

Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.

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

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... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more