Analysis and Commentary on Civil Rights

Is It Arbitrary to Distinguish Incest From Homosexuality?

Cornell University law professor Sherry Colb differentiates state bans on incestuous marriages from bans on same-sex marriages by looking at the governmental interests the bans purportedly serve and the harm done to their targets. Colb argues that the U.S. Supreme Court can, if it wishes, use this distinction to strike down bans on same-sex marriages without also having to rule on bans on incestuous marriages.

If She Don’t Win It’s a Shame: Female Executive Sues New York Mets for Pregnancy Discrimination

Hofstra University law professor Joanna Grossman and University of Pittsburg law professor Deborah Brake comment on a recent lawsuit filed by Leigh Castergine against her former employer, the New York Mets, alleging pregnancy discrimination. Grossman and Brake argue that based on Castergine’s allegations, she is likely to prevail in her case; however, they describe the inconsistent results in many seemingly similar pregnancy discrimination cases across the country.

Two New Rulings Unmask the Weakness of the Case Against Marriage Equality

Cornell University law professor Michael Dorf comments on two recent rulings on state bans on same-sex marriage—one by the U.S. District Court for the District of Louisiana upholding that state’s ban and the other by the U.S. Court of Appeals for the Seventh Circuit striking down bans in Indiana and Wisconsin. Dorf explains how a comparison of these two rulings reveals weaknesses in the case against marriage equality.

Comparing Two Federal Appellate Court Decisions on Same-Sex Marriage

Attorney David Kemp discusses the recent decision by the U.S. Court of Appeals for the Fourth Circuit striking down Virginia’s ban on same-sex marriage. He compares and contrasts that opinion to an opinion handed down last month by the Tenth Circuit striking down Utah’s equivalent law. Based on the majority and dissenting opinions, Kemp anticipates what might be the key issues if the case reaches the U.S. Supreme Court—an event that seems increasingly likely.

Hard Labor: New Pregnancy Discrimination Guidance From the EEOC

Hofstra University law professor Joanna Grossman discusses the Equal Employment Opportunity Commission (EEOC)’s new Enforcement Guidance on pregnancy discrimination. Grossman provides an overview of the Pregnancy Discrimination Act of 1978, as well as a history of courts’ treatment of pregnancy discrimination claims. She describes how the new Guidance clarifies the Act and serves to help pregnant women begin work, continue working, and return to work throughout the reproductive process.

How to Fix the Religious Freedom Restoration Act

Cornell University law professor Michael Dorf proposes eight different options for fixing the Religious Freedom Restoration Act (RFRA). Dorf suggests that open discussion of what was wrong with the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc. can inform the public and opinion leaders about how to fix RFRA when the opportunity arises.

Hobby Lobby Yields More Rancor as Wheaton College Queues Up to Deny Contraceptive Coverage to Its Female Employees

Cardozo Law professor Marci Hamilton discusses Wheaton College’s request to receive accommodation under the Religious Freedom Restoration Act (RFRA) to avoid providing some reproductive coverage for its female employees. Hamilton draws upon her own personal experience and points out that the recent controversies over RFRA in the U.S. Supreme Court have revealed that law’s true nature.

Federal Appellate Court Rules Utah’s Ban on Marriage by Same-Sex Couples Unconstitutional

Hofstra University law professor Joanna Grossman discusses a recent decision by the U.S. Court of Appeals for the Tenth Circuit upholding a lower court’s invalidation of a Utah ban on same-sex marriage. Grossman points out that while state same-sex marriage bans have been invalidated in sixteen different rulings across the country, this decision marks the first time a federal appeals court has so ruled.

What’s Really Wrong With the Decisions in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell?

Marci Hamilton, a law professor at Cardozo School of Law, offers a strong critique of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby, in which the Court held that owners of closely held corporations may deny its employees the health coverage of contraceptives on the basis of the owners’ own religious beliefs. Hamilton explains why the Court’s interpretation of the Religious Freedom Restoration Act (RFRA) is problematic and calls for that legislation to be repealed as soon as possible.

What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism

Cardozo law professor Marci Hamilton comments on a recently filed religious discrimination lawsuit the EEOC brought on behalf of several employees against two companies, United Health Programs of America, Inc. and Cost Containment Group, Inc. In that case, the two defendant companies are allegedly imposing their “Onionhead” practices on their employees and discriminating against those employees who object to those practices. Hamilton argues that the case illustrates what is at stake in the Hobby Lobby and Conestoga Wood cases currently before the U.S. Supreme Court, in which the Court is expected to resolve crucial questions about the scope of the Religious Freedom Restoration Act (RFRA) and its relationship to civil rights acts.

Academic Freedom Is Not Immunity From Robust Debate in the Marketplace of Ideas

Cardozo Law School professor Marci Hamilton argues for the importance of academic freedom but distinguishes it from immunity from debate in the marketplace of ideas. She comments on a recent Freedom of Information Act (FOIA) request targeting University of Virginia School of Law professor Douglas Laycock for allegedly using university resources for anti-LGBT ends. Hamilton calls the formal FOIA request unnecessary but the intent to question how his public positions on various issues play out in the real world. Hamilton describes a number of positions Laycock has taken publicly that support the view that he is an advocate for extreme religious forces.

Will the Lower Court Consensus on Same-Sex Marriage Influence the Supreme Court?

Cornell University law professor Michael Dorf discusses how the lower courts’ consistent rulings in favor of same-sex marriage might influence a decision by the U.S. Supreme Court. Dorf observes that every single judge to rule on the question has relied on the Court’s 2013 decision in United States v. Windsor for the conclusion that SSM bans are unconstitutional. He concludes that while the lower courts’ decisions have no binding effect on the Supreme Court, they might serve as a legal barometer of what is legally plausible and as conduits of public opinion.

A Decade of Change: The Tenth Anniversary of Same-Sex Marriage in the United States

Hofstra University law professor Joanna Grossman reflects on the progress of same-sex marriage in the United States over the past decade. She notes that on May 17, 2004, Massachusetts became the first state to issue marriage licenses to same-sex couples. Grossman describes how the movement gained momentum and how the U.S. Supreme Court’s 2013 decision in United States v. Windsor contributed substantially to that rapid change. She observes that as of now, 19 states and the District of Columbia permit same-sex marriage, and that number is only going to increase.

How the Biggest Supreme Court Victory for Affirmative Action a Decade Ago Contributed to the Defeat for Affirmative Action Last Month in the Schuette Case

Justia columnist and U.C. Davis law professor Vikram David Amar discusses the U.S. Supreme Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action upholding the Michigan state constitutional ban on race-based affirmative action. Amar explains how the Court’s 2003 decision in Grutter v. Bollinger—widely regarded as a victory for proponents of affirmative action programs—paradoxically contributed to the outcome in Schuette. Amar concludes that while diversity is a worthwhile rationale for race-based admissions programs, minority students would be better served if that rationale supplemented, rather than a replaced, the original remedial purpose of such programs.

Using the State to Bully Dissidents

Justia columnist and Chapman law professor Ronald Rotunda explains why the First Amendment of the U.S. Constitution is implicated by the forced resignation of Mozilla CEO Brendan Eich for his donation to a committee that supported California Proposition 8, the California initiative that banned gay marriages in that state. He critiques the state law requiring disclosure on the grounds that it facilitates harassment of donors who wish simply to exercise their constitutional rights.

The Supreme Court Again Fractures Over Race

Justia columnist and Cornell law professor Michael Dorf discusses the U.S. Supreme Court’s decision this week in Schuette v. Coalition to Defend Affirmative Action. He provides a brief history of Supreme Court jurisprudence on race and contrasts that history with yesterday’s fractured opinions, which consist of a plurality opinion, three concurrences, and a dissent (with Justice Kagan recused). Dorf explains that while the decision has relatively low doctrinal stakes, the case exposes three important fault lines running through the Roberts Court.

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