Analysis and Commentary on Civil Rights

A Unanimous Supreme Court Ruling Underscores the Limits of Habeas Corpus as a Remedy for State Prisoners

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s unanimous Supreme Court ruling in Metrish v. Lancaster, as well as on the more general significance of unanimous rulings. Lancaster, as Dorf explains, involved the writ of habeas corpus, which the Justices declined to invoke, despite evidence indicating that the convict at issue did not receive due process at the state court level. Dorf also notes that this is only one instance in a larger pattern of the weakening and narrowing of habeas corpus at the High Court.

If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? Part Two in a Two-Part Series of Columns

In Part Two of a two-part series of columns regarding legal issues relating to Proposition 8, Justia columnist and U.C., Davis law professor Vikram Amar comments on various scenarios relating to the Proposition that may or may not come to pass. The scenarios include a number of different ways in which Judge Walker’s injunction might be read.

The Supreme Court Will Review a Michigan Affirmative Action Case Next Term, but May Address the Key Issues in It This Term

Justia columnist and Cornell law professor Michael Dorf comments on a set of key affirmative action issues that the Supreme Court may address this term and/or the next. The programs at issue include affirmative action in state public higher education, employment, and contracting. As Dorf notes, the Michigan affirmative action case that the Court will address is more complicated than it may at first seem, in part because Court precedents establish limits on how a state or local government may go about eliminating or preventing laws that benefit racial minorities. Dorf also notes that an issue that is important here also crops up in the Prop 8 case currently before the Court: the issue of the import of giving and then taking away rights.

Why The U.S. Supreme Court Should Not Fear That Denying the Proposition 8 Sponsors Federal Standing Will Weaken The Initiative Device (And a Few Other Thoughts on the Oral Argument in Perry v. Hollingsworth)

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the standing issues, as well as some other issues, that were discussed by the U.S. Supreme Court’s Justices in their recent oral argument regarding Proposition 8, the California measure that bans same-sex marriage. In particular, Amar discusses whether the proposition’s sponsors are the ones who should defend it in court, concluding that they are not. He adds, as well, that denying the sponsors standing will not weaken the initiative device. Moreover, Amar notes that state law could authorize sponsors to defend initiatives in the future, but the authorization must be done carefully, clearly, and in a way that is visible to voters. Amar also considers the possibility that the Proposition 8 case will ultimately be dismissed by the Supreme Court as having been improvidently granted.

A Lawyer for All: The 50th Anniversary of Gideon v. Wainwright

Justia columnist Joanna Grossman and Justia guest columnist Leon Friedman, both Hofstra law professors, comment on the landmark Supreme Court case of Gideon v. Wainright, which established the right to an attorney for those who are facing felony charges, and who would not otherwise be able to afford a lawyer. The column is timely, as the Gideon precedent is now fifty years old. In their column, Grossman and Friedman describe the state of the law before the ruling in Gideon, note the arguments that persuaded the Court to declare a right of appointed counsel for those who could not afford counsel, and explain the meaning of the ruling.

Justice Scalia’s Long Campaign Against “Racial Entitlements” Takes an Unexpected Turn

Justia columnist and Cornell law professor Michael Dorf comments on Justice Scalia’s arguments regarding what Scalia calls “racial entitlements,” and the Voting Rights Act. As Dorf notes, these issues came up during the oral argument in the case of Shelby County v. Holder. Moreover, Dorf notes, Scalia had earlier raised these arguments both when he was a law professor, and repeatedly in his opinions on the Court. But, Dorf points out, Scalia’s references in the past appeared in affirmative action cases, whereas this reference appeared in his discussion of Section 5 of the Voting Rights Act, which is not an affirmative action provision; rather it deals with election rules in jurisdiction with a history of discriminatory voting rules. Dorf questions whether Scalia’s extension of his own “racial entitlements” logic is valid in this context.

Is Veganism a Religion Under Anti-Discrimination Law? An Ohio Federal District Court Says Perhaps

Justia columnist and Cornell law professor Sherry Colb comments on a discrimination case in which the Cincinnati Children’s Hospital Medical Center fired a Customer Service Representative, Sakile S. Chenzira, for refusing to get a seasonal flu vaccine, in contravention of hospital policy. Chenzira refused the vaccine because she is a vegan and the vaccine is produced in chicken eggs. After her firing, Chenzira went to federal district court, arguing that her firing violated her right to be free of religious discrimination. The court denied the hospital’s motion to dismiss the case, and decided to hear the evidence. Colb describes in detail what it means to be a vegan, and explains why, for some vegans, the decision whether or not to be vaccinated is a difficult one. She also discusses when, under federal law, a belief system counts as a religion, noting that veganism ought to qualify under that definition. Colb also offers a prediction as to the likely outcome of Ms. Chenzira’s case.

Is Obama’s Policy of Targeted Killings Really Worse than Bush’s Torture Policy?

Justia columnist and Cornell law professor Michael Dorf contrasts Obama’s policy of targeted killings of persons believed to be leaders of al Q’aeda, with George W. Bush’s prior policy of authorization of the use of torture. The issue is timely in the wake of the release of an Obama Administration white paper on the targeted-killing issue. Dorf notes that the Administration is drawing criticism from both the right and the left on that issue. Dorf argues that the Administration is right to seek to craft a policy that complies with both the U.S. Constitution and the international law of war. He also examines the views of controversial conservative law professor John Yoo on which is worse: the Obama Administration’s targeted killing policy, or the Bush Administration’s torture policy. Dorf also looks at such questions from the point of view of not just law, but also morality.

Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

Justia columnist and U.C., Davis law professor Vikram David Amar discusses the question whether BLAG, the Bipartisan Legal Advisory Group of the House of Representatives, has standing in the same-sex marriage cases now before the Supreme Court. Amar details the argument made by professor Vicki Jackson, who was appointed by the Supreme Court to brief questions as to whether BLAG has standing, and also whether the case is justiciable. Amar notes the role of the key precedent of INS v. Chadha, which concerned a legislative veto, and other important precedents that may prove significant to the Court.

Congressional Republicans Offer Three Bad Arguments for Upholding the Defense of Marriage Act

Justia columnist and Cornell law professor Michael Dorf takes strong issue with the three arguments that Congressional Republicans have put forward in support of Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as opposite-sex marriage alone for purposes of federal law. Next month, the Supreme Court will hear oral argument in the case. Dorf characterizes the three arguments put forward in favor of Section 3 by Congressional Republicans as very weak, and indeed, shockingly unpersuasive, analyzing each in turn.

Battle of the Sexes: The Department of Defense Lifts the Restriction on Women in Combat

Justia columnist and Hofstra law professor Joanna Grossman comments on DoD’s recent decision to remove the ban on women in combat. After providing a brief history of women in the military, Grossman characterizes the ban as having been a stubborn form of sex discrimination, and notes that the ban had been honored in the breach, as military women were increasingly participating in combat roles that put them in harm's way, as a number of their deaths have sadly proven. Thus, Grossman calls on the military to recognize the reality that women already occupied what are in effect combat roles, even before the DoD restrictions were lifted, and to ensure military women’s equality by addressing the high level of sexual abuse in the military.

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment

Justia columnist and Hofstra law professor Joanna Grossman takes strong issue with a recent Iowa Supreme Court decision holding that a male dentist did not violate a law banning sex discrimination in employment when he fired his very competent dental assistant simply because he was attracted to her. Grossman argues that the Iowa courts should, in this case, have recognized that the dentist perpetrated what is called “sex-plus discrimination,” which joins sex discrimination with another factor, such as an attraction to a particular person of that sex. Thus, Grossman explains, it is not a factor in the dentist's favor, legally, that he had hired other female assistants, and did not harass them. When women are treated worse than men at work because of their gender, Grossman concludes, discrimination law must apply, regardless of how many women are harassed or how selective or attraction-based the harasser may be.

How a Case About Decriminalization of Marijuana Has Substantial Implications for the Rights of Gay and Lesbian Persons

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.

Going to the Show: The Supreme Court Will Consider Validity of Same-Sex Marriage Bans

Justia columnist and Hofstra law professor Joanna Grossman comments on the two upcoming U.S. Supreme Court cases relating to same-sex marriage. The first case presents the question whether the federal Defense of Marriage Act (DOMA)—one provision of which precludes the federal government from giving effect, for any federal law purpose, to a validly celebrated same-sex marriage—is unconstitutional. The second case raises the issue of the constitutionality—or lack thereof—of a voter referendum in California that eliminated a right of same-sex marriage that the state’s highest court had previously ruled to be constitutionally necessary. Grossman provides detailed background on same-sex marriage developments in the U.S., and then goes on to analyze the issues raised by DOMA and the California referendum, respectively, and to consider the various possible outcomes that the Court might reach in each Supreme Court case. While Grossman notes that the Supreme Court has often tended to rule in ways that bring along straggler states on social justice issues, rather than being ahead of the states as a group, she also notes that this case could be an exception to that pattern.

Equal Access to the Tools of Political Change; The Sixth Circuit’s Coalition to Defend Affirmative Action Case Is Destined For the Supreme Court

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a closely watched affirmative action case that the Supreme Court will very likely resolve. As Amar notes, the case concerns how a state that tries to abolish affirmative-action programs may, in doing so, violate the Constitution. As Amar explains, such programs are never constitutionally required to be initiated, but their abolition may be constitutionally problematic—for instance, if programs that benefit minorities are abolished in a way that leaves all programs that benefit other groups untouched, and that makes reenactment of the programs that minorities prefer especially difficult; or when minorities are subjected to greater political obstacles in the adoption (or re-adoption) of the programs they might support than are other groups.

Is the Supreme Court Ducking the Same-Sex Marriage Question, and If So, Is That Wrong?

Justia columnist and Cornell law professor Michael Dorf comments on two questions involving same-sex marriage that the Supreme Court may or may not duck: First, there is the question whether Section 3 of the Defense of Marriage Act (DOMA)—which defines marriage under federal law as opposite-sex marriage, even when state law recognizes same-sex marriage—is constitutionally valid. And, second, there is the question whether California violated the Constitution when it enacted Proposition 8, which prospectively eliminated the possibility of same-sex marriage, and thereby nullified an earlier California Supreme Court ruling that had found a state-constitutional right to same-sex marriage. Dorf considers why the Justices might—or might not—see the cases that raise these questions to be appropriate vehicles for Supreme Court review, and notes what might happen next if the Court does not take up a DOMA case.

An Historic First: Voters Support Same-Sex Marriage at the Polls

Justia columnist and Hofstra law professor Joanna Grossman evaluates the meaning of the votes cast across the nation on the various pro-same-sex marriage referendums. Such referendums passed in Maryland, Maine, and Washington State. Grossman describes the details of the various referendums and other ballot measures relating to same-sex marriage, and notes the split, in each state she discusses, regarding votes for Obama and for Romney, respectively. Grossman explains why such referendums are noteworthy: (1) the common but not necessarily correct idea that this is an issue for the people (not courts) to decide; (2) the fact that the referendums may augur the future of same-sex marriage in America; and (3) the referendums show that young voters tend to be pro-same-sex marriage, and as more and young people reach voting age, there very likely will be even more pro-same-sex marriage voters. Grossman concludes, citing relevant statistics and developments, that among young people, and Americans generally, we are seeing a sea change toward support of gay marriage.

Hands Off the Merchandise!: Appellate Court Orders Grocery Store to Ban Sexual Harasser from Premises

Justia columnist and Hofstra law professor Joanna Grossman comments on a flagrant case of sexual harassment in a grocery store, which eventually led to litigation that came before the U.S. Court of Appeals for the Second Circuit. The case, as Grossman explains, arose from the store owner’s fiance’s habit of touching sexually, and otherwise sexually harassing, the store’s employees, who were mostly teenage girls. The girls complained, but nothing was done. Ultimately, the store was found liable for sexual harassment. Grossman explains the steps necessary to win such a case, and discusses the question of the scope of the remedy that was imposed upon the store in this case. She also notes that in such cases, both legal remedies (money damages) and equitable remedies (court orders to do or refrain from doing something) are appropriate.

A Federal Appeals Court Invalidates a Military Commission Conviction: Paying the Price for Circumventing the Civilian Justice System

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.

The End of an Unjust Law: The Second Circuit Strikes Down DOMA and Sets the Stage for Supreme Court Review

Justia columnist and attorney David Kemp comments on the recent decision by the U.S. Court of Appeals for the Second Circuit striking down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage, for federal purposes, as being between a man and a woman. Kemp discusses why the Second Circuit held that the Constitution’s Equal Protection Clause required the application of intermediate scrutiny. Kemp also notes that the Second Circuit was the first court facing this issue not to also analyze the issue using a lower level of scrutiny. In addition, he discusses a number of other cases decided by courts across the country, that have confronted the issue of what level of scrutiny is proper for classifications based on sexual orientation—and why such cases may well lead to eventual Supreme Court review.

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