Verdict Legal Analysis and Commentary from Justia Fri, 09 Oct 2015 04:01:03 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Four Specific Indicators to Look for (As Distinguished From Cases to Watch) This Supreme Court Term Fri, 09 Oct 2015 04:01:03 +0000 Continue reading →]]> U.S. Supreme Court BuildingLast year at the Supreme Court, there was some level of drama about who would win or lose what I (and many other analysts) thought were the major cases; most people expected Justice Kennedy to join (as he did) with the more liberal Justices to recognize a national right of marriage equality for same-sex couples, but folks were less confident about the results in the Obamacare tax subsidies case and the challenge to Arizona’s independent redistricting commission, to name just a few. It turns out that the conservative wing of the Court lost in all three of these cases and (as I wrote in an earlier column) were worse off at the end of the Term than they were before.

The Term that kicked off this week seems to me different, in that the conservative side is likely to prevail in most of the high-profile hot-button cases, but often the key question will be not whether, but how it will win: will it win in big, sweeping rulings that wash away liberal precedents altogether, or will it win in more incremental ways that trim back earlier holdings (or purport simply not to extend them)?

In the space below, I identify four bellwether markers to keep your eye on to get a sense of whether the 2015-2016 Term will be seen as conservative movement or a conservative rout.

The Power of Public Labor Unions

In California, as in many other states, a public sector bargaining unit may, by majority vote, elect to create an “agency shop” in which the union is the collective bargaining agent on behalf of all the employees. Employees in the unit, whether or not they choose to become full-fledged union members (and they have a choice not to), must pay an “annual fee to cover the cost of union services related to collective bargaining (so-called chargeable services). Such chargeable services do not, and cannot, however, include expenses In Abood v. Detroit Board of Education, and then again in Chicago Teachers Union v. Hudson, the Court held that the First Amendment prohibits states from forcing public-sector employees to pay for the ideological or political activities of a union (as distinguished from the union’s collective bargaining activities) with which some employees may disagree. But, importantly, the Court has upheld systems in which the nonmembers who wish not to pay for political activities must affirmatively “opt out” of payment—silence on the part of such individuals enables unions to charge them for bargaining and political activities alike.

In Friedrichs v. California Teachers Association, the Court will revisit these earlier cases, perhaps taking on fundamental questions of whether collective bargaining itself is a political activity such that any distinction between the two is illusory, and also whether (assuming chargeable fees can ever be imposed on people who choose not to join the unions) an “opt out” regime should be replaced with an “opt in” regime, where only those individuals who explicitly choose to pay are billed.

The results of this case for public-sector unions seem ominous. Given the signals the Court has sent in recent years, it’s hard to imagine the Court leaving the status quo untouched; the real question seems to be whether the majority will simply require an “opt in” system for non-members, or instead whether the Court will scrap Abood altogether and hold that unions cannot require non-members to pay even for chargeable services. If the Court leaves chargeable services alone, a move from an opt-out to an opt-in for political expenditures will likely reduce public sector union political clout considerably, but the thing to look for here is whether the Court goes big and actually overrules Abood. If that happens, many employees will seek to be free-riders, benefitting from but choosing not to pay for the collective bargaining process. As a result, it may be harder for such unions to have the resources to engage in collective bargaining as effectively as they do now.

How Far Will Affirmative Action Be Cut Back?

The extent to which government can consider the race of individuals is also front and center in the Court this Term. In Fisher v. University of Texas the Court will address the admissions scheme at the University of Texas (UT). UT already accomplishes some racial diversity by admitting the highest (top ten percent) grade performers from each high school in the state regardless of standardized test scores. (This produces some diversity because many high schools are all or nearly all non-white, so the top grade-earners at these schools are also necessarily non-white). The question is whether UT can, on top of that program, give a preference to applicants who come from underrepresented racial groups such as blacks and Latino(a)s. In 2003 a bare five-person Court majority allowed the University of Michigan law school (in Grutter v. Bollinger) to give a plus to ethnic minority applicants, but Justice Alito (who seems to frown on race-based affirmative action) has since replaced Justice O’Connor (who wrote Grutter).

Everyone expects Justice Kennedy to be the pivotal vote in Fisher, and everyone also expects Justice Kennedy to reverse the Fifth Circuit opinion that upheld UT’s admissions policy on the strength of Grutter. What people do not seem sure of, however, is how broad or narrow Justice Kennedy’s dispositive position in this case will be. I see two real possibilities.

The broader option—holding that race may never be used at the individualized admission stage—is the one hard conservatives most hope for, but it is also the least likely to come to pass. For starters, notwithstanding language in Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 (a case shortly after Justice Alito’s arrival that effectively refused to apply Grutter at the high school level) that flirted with a ban on individualized race consideration, and his separate writing in the 1980s case of City of Richmond v. J.A. Croson to the same effect, he has refused to disclaim Grutter’s professed approach altogether. Moreover, Justice Kennedy rarely likes to establish bright-line rules in constitutional cases, and affirmative-action cases seem no exception. Finally, Justice Kennedy explicitly said in his Grutter dissent that “[t]here is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity . . . [provided] each applicant receives individual consideration and that race does not become a predominant factor in admissions decision making.” That sounds a lot like acceptance of Justice Powell’s approach in Regents of the University of California v. Bakke, so long as courts ensure that a meaningful substantive strict scrutiny approach is rigorously followed.

So the most likely Fisher result is something less extreme, with Justice Kennedy holding that UT’s plan simply does not survive a sincere application of the “strict scrutiny” test that applies. The reasoning Justice Kennedy will most likely embrace centers on the existence of the “Top Ten Percent” plan. Even if a Harvard-style “plus” plan (of the kind that Justice Powell described in Bakke and that the Court upheld in Grutter, in which individuals of minority ethnicity are given “plusses” in their application files) can sometimes pass constitutional muster because it is necessary to accomplish educational diversity, it cannot be considered necessary—and thus constitutionally permissible—if a “percentage plan” like Texas’s is already operating and accomplishing results that exhibit some meaningful diversity. This move would be most consistent with Justice Kennedy’s key concurrence in Parents Involved that permitted, if not encouraged, the racial identity of groups to be considered when deciding what criteria of geographical student assignment and educational programming should be (akin to deciding what the admissions criteria at UT should be), but distinguishing that from the consideration of the race of individuals when the criteria are applied.

Justice Kennedy need not definitively affirm or disclaim his prior suggestions that race of individuals might sometimes be taken into account because the percentage plan’s modicum of success in achieving diversity makes that question unnecessary to answer. We cannot predict with certainty whether the opinion will require all states to experiment with percentage plans before ever making individualized use of race, or will simply indicate that those states which do have percentage plans that are working reasonably well have no occasion to do anything else. But either way, Texas can’t make use of race in the way it has tried.

So the key things to look for here are how close to color-blind Justice Kennedy wants to get, and how much he requires jurisdictions to experiment with percentage plans before ever taking race into account.

It is also important to note that whatever the Court holds here could apply not just to prominent public universities like UT, UC Berkeley, and the University of Illinois, but also to private colleges and universities—such as Yale, Harvard and Stanford—that are bound to the same norms as public schools by virtue of federal funding statutes.

Abortion Rights and the Meaning of Undue Burden

Although there is no abortion case yet on the Court’s docket (and it has been a while since the Court has taken up a major abortion case), there is a high likelihood that the Court will grant review in Whole Woman’s Health Center v. Cole, a challenge to a Texas statute that applies the same regulatory standards to abortion clinics as are applied to “ambulatory surgical centers,” and also requires abortion-providing doctors to have admitting privileges at a hospital near to where they perform abortions. These two provisions would, if fully implemented, have the effect of reducing the number of abortion clinics in Texas by about three quarters, to around a dozen facilities. The Supreme Court blocked a lower court ruling that had allowed these provisions to be enforced, and when the Court grants a stay of (or a hold on) a lower court ruling, it very often decides to take the case up for itself. (I should note that it takes 5 Justices to grant a stay, and only 4 to grant review.)

If the Court does hear the case on the merits, the key question to focus on is how the Court applies the “undue burden” standard; under current precedent (Planned Parenthood v. Casey), laws that impose “undue burdens”—that is, laws that have the intent of effect of placing a substantial obstacle in the path of women seeking an abortion before a fetus is viable—are unconstitutional. If the Court (and the matter will likely turn on Justice Kennedy, who is the last remaining architect of the Casey plurality opinion) concludes that a law such as Texas’s does not create an undue burden, there is a strong argument that the meaning of that standard will have been watered down, and the door opened more widely for aggressive state laws regulating abortion access. That would diminish abortion rights from their present state in a significant way, and mark a big victory for those who think the substantive due process right to abortion is not adequately grounded in the Constitution in the first place.

The Death Penalty Under Pressure

Finally, let us look at another issue that has been debated vigorously in the twenty-first century—the death penalty—and the possibility that the conservative Justices could lose ground on this matter. On the docket this year is Hurst v. Florida, which examines Florida’s death penalty regime, the only one in the country that allows a jury to find the existence of aggravating circumstances beyond a reasonable doubt (something the Court has held in the past is necessary before a death penalty can be imposed), and to recommend a sentence of death, by use of a simple majority vote.

Given the importance that a majority of Justices (including conservatives like Antonin Scalia) have attached to having juries—as opposed to judges—make key findings in criminal cases, Florida’s scheme may be a hard sell. So this is a death penalty case conservatives might lose. But the bigger question—and the one on which to keep a close watch – is whether this case is one that begins to set up a full-frontal challenge to the death penalty altogether. That would be a silver lining for liberal Justices even if the Term as a whole seems pretty dark. Justice Scalia recently told students in Tennessee that he “wouldn’t be surprised” if the Court were to invalidate the death penalty as a general matter. Last Term, Justice Breyer, joined by Justice Ginsburg, intimated that he was now of that view, and it is hard to imagine that Justices Sotomayor and Kagan would not follow suit if there were a fifth vote to constitutionally abolish capital punishment. That brings us to pivotal Justice Kennedy again. Do Justices Breyer and Scalia know something the rest of us do not about Justice Kennedy’s thinking on this topic?

That is the thing to keep an eye on. It is highly unlikely that the Court would sweepingly invalidate the death penalty without asking for and considering briefing on that big question, but the Florida case could be a vehicle for doing so, or, more narrowly but still importantly, at least be an opportunity for Justices Sotomayor and Kagan to join Justices Breyer and Ginsburg in such a way as to make clear to the world and to Justice Kennedy that he is, yet again, in the pivotal position.

Vikram David Amar is the Iwan Foundation Professor of Law and the Dean at the University of Illinois College of Law. Previously, he served as 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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Budgetary Nonsense Across the Republican Landscape Thu, 08 Oct 2015 04:01:29 +0000 Continue reading →]]> Tax FormsIn the lead-up to the 2016 Republican presidential primaries, the surprise story has of course been the emergence and staying power (thus far) of Donald Trump. Trump’s remarkable resilience flies in the face of all of the received wisdom in American politics, especially because he seems to take every Republican position and push it to heretofore-unthinkable extremes.

In 2012, for example, Republican presidential nominee Mitt Romney earned jeers for his comment that the people whom Republicans call “illegals” should “self-deport.” This was understandably unpopular with the general electorate, even though it had been an applause line during the Republican primaries, because it was so obviously mean-spirited and at odds with the realities of migration into and out of the United States.

But Donald Trump specializes in mean-spiritedness and ignoring reality, so he was perfectly willing to burst onto the scene earlier this year by staking out a position on immigration that was to the right of everyone in the Republican field. Republican primary voters who wanted immigrants to self-deport apparently are unwilling to wait for that to happen, making them eager to support a man who says that he will forcibly eject the whole group. That this would be a human rights disaster and a logistical impossibility in no way deters Trump or his eager supporters – or, for that matter, his Republican opponents who have been frantically moving rightward on this issue.

At this point, however, the question is whether Trump’s extremism on immigration is all that he has to offer Republican voters. Now that he actually has to say something about issues other than immigration, and especially because his caustic personal insults have lost much of their sting, the world wonders whether Trump is going to be the most extreme candidate across the board, or whether he even cares enough about other issues to bother having a position on them.

At least on economic policy, it turns out that Trump truly is an extremist, but he is not appreciably more extreme than any of his opponents, or for that matter the rest of the Republican Party, especially in Congress.

In this column, I will describe how Donald Trump’s comments about taxes and the national debt do not noticeably distinguish him from his opponents. Indeed, the Republican Party’s full-on embrace of economic ignorance shows up not just in the current presidential race and in the snake pit that is the House of Representatives, but even among former Republican officeholders who attempt to continue to influence policy. Sadly, some Democrats have also embraced this ignorance, similarly misunderstanding deficits and the national debt.

Therefore, even if – as now seems increasingly likely – the Trump phenomenon runs its course, it is important to understand that although the other Republicans might not share Trump’s bombastic style, at least on economic issues they are barely distinguishable from Trump. And that is not a good thing.

Trump Tries to Outdo His Opponents’ Economic Ignorance in His Comments on Taxes

I confess that I was surprised when Donald Trump recently released a description of how he would change the tax system. It would be inaccurate to characterize what he described as an actual “proposal” or even a “plan,” because such labels suggest a level of detail and careful policy coordination that Trump rejects. Even so, he has said enough about taxes to get the pundits talking.

Easily the most enjoyable description of Trump’s tax ideas can be found in an op-ed that appeared in the Business Section of last Sunday’s The New York Times. The author, who does Trump the favor of calling Trump’s ideas a “plan,” nevertheless mocks Trump mercilessly. Essentially, it turns out that Trump took Jeb Bush’s ridiculously bad tax proposal and simply made all the numbers bigger.

So, instead of Bush’s extremely regressive tax cut that would lose three or four trillion dollars over a decade without paying for it, Trump offers the prospect of an extremely regressive tax cut that will lose eleven trillion in tax revenues, also without any hint as to how he would pay for it.

How is that different from immigration, where Trump took bad ideas and made them much, much worse? On taxes, Trump evidently cares so little about the subject that he could not even be bothered to think about any of the details, so he simply cribbed someone else’s ideas. On taxes, the difference is entirely a matter of degree. On immigration, as bad as his opponents’ views have been, Trump’s views are different as a matter of kind.

In short, Trump does not have any new, especially awful ways to make the tax code less fair or to shovel money toward the richest people in the country. He just wants to do more of it. Estimates from Citizens for Tax Justice, for example, show that 68 percent of Trump’s tax cuts would go to the top twenty percent of the population, and half of that would go to the top one percent alone.

Or, to put it more simply, Trump is a mainstream Republican when it comes to taxes. He is extreme in his views and unconcerned about distributive justice, just like the others.

The Republican Orthodoxy on the National Debt

The Republican Party has long railed against government debt. Although they conveniently ignore times when their own party has shown its true colors, cutting taxes on the rich even when doing so clearly resulted in more debt, the party has consistently treated the federal government’s debt as a uniquely evil and dastardly plan by liberals to bankrupt the nation. This has never been even a remotely defensible view, but that has not stopped Republicans from repeating it ad nauseum, and many Democrats have been intimidated by the nonstop nonsense.

Thus we have soon-to-be-withdrawing presidential candidates like Senator Rand Paul decrying deficits by claiming that the government is borrowing “a million dollars a minute,” a claim that was correctly deemed “mostly true” (with the “mostly” qualifier because Paul aggressively rounded up) but that has no particular meaning in an economy that produces $33 million in income every minute.

That particular distortion, however, is only the tip of the iceberg when it comes to debt fear-mongering on the right. And Donald Trump, of course, bows to no one when it comes to extreme fear mongering.

In an appearance on “The Late Show with Stephen Colbert” on September 22, after assuring the host that “I think I can do a great job” as president, Trump immediately added: “We can bring it back. We can bring the country back. We owe right now 19 trillion dollars. There are tremendous problems . . .”

Of course, it turns out that this is not true even with rounding error, because the gross federal debt on that date was $18.15 trillion. But hey, does an $850 billion overstatement really matter to someone like Trump? More to the point, Trump (like all Republicans) insists on using the “gross federal debt” number, which includes debt that the federal government owes to itself. The net debt (often called “debt held by the public) is currently $13.06 trillion.

That number is still meaningless out of context, but the point here is that Trump is simply following the Republican playbook by (1) treating the national debt as a reliable scare tactic, and (2) exaggerating the numbers without giving any sense of why anyone should actually care.

Trump in particular should be aware that debt is not necessarily a bad thing, because he is staking his claim to the presidency on being a successful businessman. And businesses are not scared of going into debt. Being deeply in debt, in fact, is often the best strategy for a successful business, for similar (but not precisely the same) reasons that governments should always be in debt. In particular, when a good investment opportunity presents itself (such as when a business buys a new subsidiary, or when a government spends money on infrastructure or education), borrowing money is the smart way to pay for it.

But Trump is not interested in any of that. He merely knows that it is easy to scare people by making bogus claims about the national debt. In his appearance on Colbert’s show, Trump managed to combine debt hysteria with xenophobia by saying: “We actually owe China 1.5 trillion dollars, which is pretty amazing, ‘cause they take our business and we owe them money, and that’s like a magic act.” That is wrong, but again, it is nothing that any of Trump’s competitors would be uncomfortable saying.

But the icing on the cake was when Trump said, “We have to do something, and we have to do it fairly quickly. You know, when you get up to the 24 trillion . . . 23 . . . 24, that’s like a magic number, where as a country . . .” Incredulous, Colbert tried to interrupt by saying, “Really? There’s a magic number of 23 or 24?” Undaunted, Trump kept going: “They say . . . Can I tell you what? They say it’s the number at which we become a large-scale version of Greece, and that’s not good. And we’re very close to that number. Not good.” Mercifully, Colbert ended the discussion with a joke: “Wow. I don’t like feta cheese.”

Other than Trump’s classic reliance on unnamed sources (“They say . . .”), what is notable about this baseless claim is that it is not all that different from what Republicans have been saying for years. The closest thing to a “magic number” that has ever been suggested by economists was the completely discredited claim that a debt-to-GDP ratio above 90 percent is a tipping point beyond which an economy is severely damaged by additional borrowing. Again, however, that claim turned out to be wrong. I have no doubt that someone, somewhere, has tried to say that $23 trillion or $24 trillion is a magic number, but it is honestly impossible even to begin to guess where such a number would come from.

Again, however, none of this is unique to Trump. Invoking Greece as the ultimate cautionary tale is old news among Republicans, no matter that the analogy does not work in any number of ways. Senate Majority Leader Mitch McConnell and Speaker of the House John Boehner have been making similarly nonsensical claims for years. Trump is doing nothing more than singing from the same old Republican hymnal.

What Are Other Republicans Saying About Debt?

Perhaps the Trump phenomenon will soon pass, and we will be looking only at candidates who are viewed as “serious” by the political commentators. One such purportedly serious candidate is Ohio governor John Kasich. The problem is that Kasich departs from the Republican orthodoxy only very occasionally, and on the national debt, he is leading the pack with bad ideas.

Indeed, Kasich preceded the announcement of his presidential candidacy with a national tour, the sole purpose of which was to push his plan to call a national constitutional convention to pass a balanced-budget amendment. This idea is dangerous for a wide variety of political reasons (which even Supreme Court Justice Antonin Scalia decried), but even on non-political grounds, such an amendment has no place in our constitutional or economic system.

Proponents of balanced budget amendments try to make it seem simple, claiming that the government can be forced to balance its budget annually, and all will be well. But such plans, to have any possibility of being less than disastrous, need safety valves for economic crises and other completely legitimate reasons to accumulate debt. Kasich is remarkably vague about his plans, but such safety valves typically involve super-majority voting thresholds in Congress to override the balanced-budget requirement in any given year. This, however, would dangerously empower a minority of ideologically driven extremists to sacrifice the economy to a meaningless requirement to balance the budget every year. If Kasich is the “serious” guy in the Republican field, things are even worse than they looked.

Finally, there are groups of former politicians scattered across Washington who are constantly pushing for more austerity in fiscal policy. In response to recent good news on fiscal matters, one such group (which has three co-chairs, two Republicans and one Democrat) has said that the sky is still falling, because (as the group put it in a headline) a “CBO Report Shows Return of Trillion-Dollar Deficits.” Yet that scary-sounding number is actually the forecast for the deficit in 2025, not next year, and it would be only four percent of projected GDP.

Although that is a bit higher than the three percent that the more reasonable analysts usually described as a target for the deficit, it is certainly not extreme. (And besides, ten-year budget forecasts are notably imprecise.) Even so, these supposedly sober-minded men who are not even running for office associated themselves with a blog post that treats “trillion dollar deficits” as somehow a meaningful and terrible prospect.

In other words, if Donald Trump wants to out-crazy his opponents, he has already done so on immigration policy. As far as taxes go, he is willing to go further than his opponents in providing tax cuts to the rich. But when it comes to being a demagogue about the national debt, Trump is a piker. He will have to work a lot harder if he wants to say and do more irresponsible things than the rest of the Republican Party says and does about deficits and debt every day.

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, 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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“Shout Your Abortion” Movement Raises Questions About the “Coming Out” Analogy Wed, 07 Oct 2015 04:01:20 +0000 Continue reading →]]> Twitter AppWith social conservatives calling for the defunding of Planned Parenthood and reproductive freedom otherwise under attack, some pro-choice activists recently sought to borrow a page from the gay rights movement by urging women who have had abortions to “come out” and tell their stories. Using the Twitter hashtag #ShoutYourAbortion, they seek to destigmatize abortion.

The results thus far have been mixed. As reported last week in The New York Times, the initial post drew over 150,000 replies. Many were supportive in exactly the way that #ShoutYourAbortion creators Amelia Bonow and Lindy West had hoped. But there was also a backlash by pro-life activists who believe that abortion ought to be stigmatized. Needless to say, given the strong feelings the subject provokes and the tendency of the Internet to reduce inhibitions, some of the backlash has been extremely angry.

It remains to be seen whether #ShoutYourAbortion will succeed in changing public opinion and ultimately public policy regarding abortion. As I explain below, while there are parallels to the gay rights movement, there are important differences as well.

The Value of Coming Out

“Coming out” narratives played a very important role in the gay rights movement. Closeted gay men and lesbian women felt ashamed of who they were and, because of their isolation, were easy prey for discrimination and homophobic violence. By coming out of the closet in significant numbers they discovered a supportive community and dispelled common myths that the larger straight society believed. Confronted by the fact that friends, relatives, neighbors, and respected community members were gay, people gradually let go of hateful stereotypes.

Coming out created a positive feedback loop. Seeing others come out gave individual gay men and lesbians the courage to do so themselves, and the more people who came out, the harder it was for straight society to marginalize gay men and lesbians, which in turn encouraged more to come out.

Other movements and organizations have been able to capitalize on the same dynamic. President Franklin Delano Roosevelt hid the fact that he used a wheelchair, but the modern disability rights movement eventually succeeded in showing that there should not be anything shameful in living with a disability. As a recent Los Angeles Times article on #ShoutYourAbortion noted, Betty Ford’s public acknowledgment of her breast cancer, her alcoholism, and her drug addiction helped break down stigmas relating to these conditions and inspired countless people to seek treatment. In general, coming out combats stigma.

Will Coming Out Work For Abortion Rights?

There are reasons to think that women telling stories about their abortions will work in the same way. After all, about 30 percent of women (or fifteen percent of the population) have had or will have an abortion at some point in their lifetime. That is comparable to the high end of estimates of the proportion of the population who feel same-sex attraction and substantially higher than the low end of approximations of the gay and lesbian population. It is, in any event, a lot of women. If even a small fraction of them were to “shout” their abortions, that would go a long way towards normalizing abortion.

Moreover, many women have compelling stories to tell. Some women have abortions to save their lives. Some have abortions when a pregnancy was caused by rape. And whatever her story, just by telling it, a woman tells the world that “normal” people have abortions.

Nonetheless, there is one potentially very important difference between coming out as having had an abortion and coming out in most other contexts. The message of coming out as gay or lesbian is that there is nothing wrong with being gay or lesbian. Many people used to think (and some people still think) that homosexuality is simply wrong in itself. When gay men and lesbians came out, they prodded the straight majority to ask themselves why they thought homosexuality was wrong. Thinking about the question sincerely, no one could come up with a good answer.

A similar dynamic has worked for other instances of coming out. People came to realize that there is no reason to blame or stigmatize anyone for having a disability or suffering from a disease, whether the disease is breast cancer, HIV/AIDS, alcoholism, or drug addiction.

It is possible that #ShoutYourAbortion will persuade people that there is likewise nothing wrong with having an abortion. We are social creatures, including with respect to our moral judgments. Seeing that otherwise respected and ethical women have abortions could lead people to regard abortion as a harmless and thus blameless act.

Yet unlike in the other contexts, that seems like a lot to ask of coming-out stories. A great many of the #ShoutYourAbortion narratives involve abortions based on difficult personal circumstances. Women explain that they were teenagers, or poor, or already struggling to raise several children when they unexpectedly became pregnant, and that having an abortion saved them and their other children from a very dire situation. One quite possible reaction is sympathy. We can come to understand why a woman would choose abortion and not regret the choice.

But that is not the only possible reaction. If one begins with the strong conviction that a fetus has a right to live, one will think that abortion is a morally permissible choice, if at all, only where a woman has an extraordinarily good reason for the abortion—such as a life-threatening medical condition. At least given the possibility of giving a baby up for adoption, someone with a commitment to fetal rights will hear the standard narrative and think that the women should regret their abortions. The hypothetical pro-life listener will understand how the women telling the narratives benefited from having abortions but will think that those benefits did not justify killing a fetus.

That is not to say that women who have had abortions are obliged to remain silent. Coming out as having had an abortion may be therapeutic for women who have been told that having an abortion reflects a moral failing. Even if one thinks that some, most, or even all abortions are immoral, one can acknowledge that shame and stigma are also harmful.

Whatever benefits #ShoutYourAbortion may have for individual women, however, it is unlikely to have a substantial impact on American public opinion on abortion, which has been quite stable for the last four decades. Compelling narratives can change minds but with respect to abortion, people are already committed to their respective narratives.

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
]]> 0 0:06:06 Cornell University law professor Michael Dorf discusses the #ShoutYourAbortion movement intended to destigmatize abortion. Dorf describes how people “coming out” as being gay or lesbian helped destigmatize sexual orientation, and how coming out as h[...] Cornell University law professor Michael Dorf discusses the #ShoutYourAbortion movement intended to destigmatize abortion. Dorf describes how people “coming out” as being gay or lesbian helped destigmatize sexual orientation, and how coming out as having a disability or disease has helped destigmatize those statuses, as well. Dorf cautions that while the #ShoutYourAbortion movement could resemble these other movements, it may also be different in some important ways. no no
Dignity as an Indispensable Condition of Criminal Justice Mon, 05 Oct 2015 04:01:53 +0000 Continue reading →]]> Dignity Holding HandsAs many have observed, there is a gathering consensus that the criminal justice system has run off the rails. But what is the alternative? We know we don’t want to be here, but where should we be instead? In my last column, I began to describe a new vision for criminal justice based on a different organizing philosophy. This column continues the discussion.

As I indicated, no criminal justice system in the United States can be legitimate unless it satisfies three distinct conditions:

  1. People have a right to be treated with dignity and respect;
  2. Communities deserve to thrive;
  3. Government must be fair and just.

These conditions do not weigh against one another. Unlike other framings—liberty vs. security, for instance, or public safety vs. the rights of the accused—these conditions are separate and independent. People have rights; communities have interests; and the state has obligations. All three matter; each is non-negotiable.

In this column, I discuss the inviolable right to human dignity.

* * *

What is this thing, dignity? Like so many abstract concepts, dignity has changed with the times, its meaning shaped by the perceived demands of the day. The term originated to denote high social status or rank, along with the honors and respect accorded to someone who held that exalted position.

The Founders did not much speak of dignity, and when they did, they tended to use it in this original sense. In fact, the term apparently did not surface in presidential remarks until 1939, when President Roosevelt warned that democracies risked the long slide into dictatorship if its people were denied “as large a share of material success and of human dignity as they have a right to receive.”

But once the Nazis exposed the desperate need for a universal commitment to humanity’s intrinsic worth, dignity became a staple of international human rights discourse. The movement began in 1948, when the UN General Assembly adopted the Universal Declaration of Human Rights. In the first sentence of the first Article, the Declaration proclaims that “all human beings are born free and equal in dignity and rights.”

The following year, the Grundgesetz (Basic Law) of the Federal Republic of Germany announced in its first Article that “Human dignity is inviolable. To respect and protect shall be the duty of all state power. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”

It would take no particular effort to fill this column and many others with comparable passages from constitutions, charters, and laws from around the world, all of which dedicate themselves to the protection, promotion, and preservation of human dignity. These documents use dignity in its modern sense, to signify the intrinsic worth of all human beings, shared equally merely because they are human, without regard to their status or condition—a worth untethered to the vagaries of circumstance.

It is this meaning that President George W. Bush had in mind when he spoke of “the non-negotiable demands of human dignity.” And it is the same meaning the Supreme Court intended when it held that overcrowding in California prisons forced people to live under conditions that deprived them of “the essence of human dignity inherent in all persons.”

Yet the increasing universality of dignity does not, in itself, tell us why it should be the basis around which we build a new criminal justice system. What is it about dignity that suits it to this role? We might start by contrasting dignity with another right that conventionally occupies a prominent place in discussions of criminal justice: liberty. Liberty is undoubtedly a right of inestimable importance and many political scientists rank it first among equals in the American creed.

But the fact is that the State can deprive a person of her liberty. Indeed, that is the premise of any criminal justice system: those who refuse to follow society’s rules can be restrained. So long as certain procedures are followed and protections observed, the State may—and routinely does—deprive people of their liberty in countless ways, and not simply in the criminal justice system.

Quarantines and blockades are obvious examples, as is the military draft. In truth, the State has the power to order people around with great regularity. Liberty, therefore, is by its nature subject to compromise, to arguments that purport to balance someone’s liberty against another’s safety.

Dignity, by contrast, cannot be compromised. The State cannot deprive someone of her dignity. It cannot—at least not legitimately—degrade her, or treat her as some might an animal. This in turn disqualifies certain arguments. Unlike with liberty, the State cannot invoke the seductive language of imminent catastrophe to justify behavior that tramples on human dignity, nor may it say restrict dignity to some but not others—to the citizen, for instance, but not the visitor.

Dignity extends to all people, at all times, under all circumstances. It is the quintessentially moral insistence that there is a point below which we will not descend, and beyond which we may not pass. It is more than a Rubicon, since Caesar crossed that point of no return. It is the point at which humanity declares, “No more,” for beyond that point we are no longer human.

In fact, the Supreme Court recognized precisely this distinction between liberty and dignity in the California overcrowding case. The Court wrote that “prisoners may be deprived of rights that are fundamental to liberty,” but cannot be stripped of “the essence of human dignity” that inheres “in all persons.”

In this way, dignity—and dignity alone—responds to and mitigates the most pernicious impulse in American history—viz., the frenzy to dehumanize, to construct mythical monsters who do not so much walk the street as haunt the imagination, and whose specter is invoked to justify yet another round of repression.

This impulse has particularly bedeviled the modern criminal justice system, which has relied on an unbroken series of omnipotent demons—almost always black, brown, and poor—to coerce acceptance of still more punishment and control. Liberty, with its built-in commitment to compromise, cannot resist this impulse. And that is why a legitimate criminal justice system must be built around dignity.

* * *

Naturally, some will complain that “dignity” cannot be defined with precision, as if that were enough to disqualify it from consideration. But this of course is no objection at all, since the same is and will always be true for the values Americans have held so dear for so long: liberty, equality, the rule of law—these and other expressions are hopelessly abstract, and acquire meaning only in the super-heated crucible of the public square. The difference is that a commitment to dignity signals the aspiration to put certain behavior beyond compromise, beyond politics.

Relatedly, some will fret that the law will give lip service to dignity but deny its moral essence. But this is just the latest expression of an old fantasy—the idea that the written law can magically bestow what we have not yet embraced as our own. In 1944, reflecting on the perennial quest for liberty, Judge Learned Hand wondered aloud “whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes,” he said. “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it . . . . While it lies there, it needs no constitution, no law, no court to save it.”

I do not know whether genuine transformation of the criminal justice system is at last upon us. But if it is—in particular, if we finally embrace dignity as humanity’s irreducible core—the written law will follow, of that I am certain. Yet if we still have not come to this place—if instead of transformation we seek nothing more than modest reform—no written law can bridge the divide, of that I am equally certain.

Joseph Margulies is a Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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Republicans Continue Their War on Women Fri, 02 Oct 2015 04:01:02 +0000 Continue reading →]]> CongressThe incivility by the Republican members of the House Oversight and Government Reform Committee as they attacked Cecile Richards, the president of Planned Parenthood Federation of America, Inc., if not all thinking women, this past Tuesday, September 29, 2015, was shameless. It was also embarrassing to see these Republican elected representatives, sitting members of Congress, thoughtlessly haranguing Ms. Richards because she, and her organization, seek to provide reproductive healthcare to women who might otherwise be unable to afford it. This right-wing anti-abortion mania, and their belief that Planned Parenthood is killing babies and selling their parts, is sadly indicative of the collective delusion shared by many who think of themselves as contemporary conservatives.

Spiking interest in this subject was the full frontal rant by GOP presidential candidate Carly Fiorina’s calling on her Democratic opponents to watch a non-existing film of Planned Parenthood with a “fully formed fetus on the table, its heart beating, its legs kicking, while someone says we have to keep it alive to harvest its brain.” Apparently, the film is of a miscarriage and not a Planned Parenthood brain harvest, but Carly is not much for correcting herself.

Carly was merely trying to extend the attack on Planned Parenthood after a series of illegally and surreptitiously recorded videos made by anti-abortion activist David Daleiden, the founder of the (misleadingly named) Center for Medical Progress, purportedly showed Planned Parenthood officials selling fetal tissue, which is against the law. Carly, like all true Republicans believers, was not interested in the fact that both Daleiden and his videos had been discredited. Daleiden is now the subject to two lawsuits which will hopefully force into the open his fraudulent and outrageous attack on Planned Parenthood.

Nonetheless, Daleiden and Carly managed to stoke congressional Republicans, who are also inclined to disregard inconvenient facts and actually wanted to close down the entire government rather than provide continued federal funding to Planned Parenthood. To fully inform their colleagues about “selling baby parts” and “baby brain harvesting,” GOP members of the House Oversight and Government Reform Committee provided five hours of political theater for their colleagues and followers, using Ms. Richards as their foil, as they all but accused her of killing unborn babies to sell their parts and getting paid way too much money by Planned Parenthood for all her organization’s unestablished wrongdoing imagined by Republicans. The men of the Oversight Committee, in particular, wanted to see Cecile Richards in the fetus position at the witness table, her heart beating and legs kicking, as they kept her there for hours on end to harvest her brain. But Cecile Richards was not willing to play the role they wanted in this sham drama. (A few sane Republicans and the Democrats also stopped the wingnuts from shutting down the government over this bogus issue.)

Actually, a truth-seeking congressional committee would have called Carly Fiorina as a witness to ask where she had seen the remarkable video she told America she had viewed. Republicans knew Carly had stretched the truth. Also that committee would have called David Daleiden, and all those at the Center for Medical Progress involved in producing and distributing the videos they claim show Planned Parenthood breaking the law. Of course, that did not happen because the committee was not interested in the truth.

Since the 1973 ruling by the U.S. Supreme Court in Roe v. Wade, abortion is not only legal but a constitutionally protected right. It is therefore ironic that the political party that wants to keep government out of everyone’s life, the Republicans, have spent decades trying to get the government in everyone woman’s uterus to regulate what they can and cannot do with their reproductive organs. The political party that wants to protect unborn children because of their belief in the sanctity of life, again the Republicans, in further irony fully supports and encourages capital punishment, most recently applauding the execution of the first woman in Georgia in seven decades, notwithstanding a plea from the Pope to spare her.

Watching, as I did periodically during the day, the protracted anti-abortion hearing before the House Oversight and Government Reform Committee, and the false or distorted attacks on Planned Parenthood, I thought about where I first learned of the work of this organization. While I have long since forgotten the substance of the conversation, I have not forgotten first hearing of Planned Parenthood from the wife of Senator Barry Goldwater, Peggy Johnson Goldwater. She helped organize the chapter in Phoenix, with the encouragement and support of her husband, long considered a patron saint of modern conservatism. As I witnessed the fact-free questioning of Ms. Richards, often cutting her off before she could answer a question based on a bogus premise, I realized that Planned Parenthood would survive this latest attack by the anti-abortion zealots who so dearly want to deny a constitutional right to women, and their right to choose, their right to not give birth. It would survive for the attacks are conspicuously baseless. There is no evidence whatsoever that Planned Parenthood is doing anything illegal, notwithstanding the charges of the zealots to the contrary.

The disdain with which so many of the men on the Oversight and Government Reform Committee treated Ms. Richards because of her pro-choice views was striking, as is the narrow-minded stupidity of anyone who thinks it wrong to hold such views. Every First Lady of this country since the 1972 ruling in Roe has supported the right of all women who make the unimaginably difficult decision to have an abortion: Pat Nixon, Betty Ford, Roslyn Carter, Nancy Reagan, Barbara Bush, Hillary Clinton, Laura Bush, and Michelle Obama. Today, according to Gallup, the more conservative of our legitimate national polling organizations, a majority of all Americans are pro-choice. And notwithstanding the GOP attack on women and Planned Parenthood, Americans support the funding of the organization by a two-to-one margin.

As for Congress, thanks to Republicans, it never has it been viewed less favorably, and while politicians are never thought of well, Republicans rank much lower than Democrats. After the broadside on women this last week, the GOP should sink even further. They’ve earned more disfavor.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Pope Francis Visits Philadelphia and Promises No More Secrets Thu, 01 Oct 2015 04:01:38 +0000 Continue reading →]]> Pope in PhiladelphiaGod works in mysterious ways, so I have my doubts that it was pure coincidence that the Pope visited Philadelphia exactly ten years after the release of the landmark 2005 Grand Jury Report on Sexual Abuse in the Philadelphia Archdiocese. I was there in 2005 next to pioneering District Attorney Lynne Abraham as we introduced this massive, detailed document of decades of abuse and cover up by Cardinals Krol and Bevilacqua and others.

It is the only document of its kind in the United States and did more to educate the public about Catholic abuse and cover up than all of the bishops’ statements on the issue combined.

Of course, Pope Francis did not mention the report this weekend and neither did Philadelphia Archbishop Charles Chaput, but it was not necessary, because the report has left its mark: It is impossible in Philadelphia for anyone to hear about clergy sex abuse and not know that the cover up was real and the pain deep.

An Early Tactical Error by Pope Francis

On his first day in the United States, the Pope made a large tactical error by congratulating American bishops for their “generous commitment to bring healing to victims . . . and to work to ensure that such crimes will never be repeated.”

For those of us in the trenches on child sex abuse, this was intolerable; no one has labored more mightily to block victims’ access to justice than the bishops. (Just ask the state legislators in New Jersey, New York, and Pennsylvania.) He sounded out of touch and as though he had drunk a large cup of the bishops’ Kool-Aid on these issues.

A Second Tactical Error, Meeting With Victims Only in Secret

The Vatican and some bishops dropped hints that Francis would be meeting with victims while in Philadelphia, but the survivor community had no inkling of who or when that would occur. Early on Sunday morning, before he delivered an address to the bishops at St. Charles Borremeo Seminary, apparently he did have such a meeting—in secret. At first, everyone assumed it was a meeting only with clergy survivors, but, no, we are told that it was a meeting with victims of parents, teachers, and clergy. No names were released. Indeed the silence is so deafening that many assume that they must have had to sign a non-disclosure agreement as a prerequisite to such a meeting.

This was a colossal error in my view, because victims, particularly in Philadelphia, need to be brought out of the dark and treated like the victims of crime they are. By meeting with them in secret, the Pope perpetuated the antiquated and wrongheaded way we used to deal with rape survivors. They need not whisper their suffering; rather, they deserve our acclamation and affirmation. They also deserve justice.

Imagine what Francis could have accomplished by sending out a call to all victims of child sex abuse and their families to join him in a large public gathering in the sunlight. He could have showered the victims with his loving attention, much the same way he does so naturally with the needy and the disabled. It would have set an extraordinary example for American bishops who have devoted so much time to alienating victims in court and the state legislatures.

Just think what survivors might have thought had they heard a Pope say the following to them in public:

For those who were abused by a member of the clergy, I am deeply sorry for the times when you or your family spoke out, to report the abuse, but you were not heard or believed. Please know that the Holy Father hears you and believes you. I deeply regret that some bishops failed in their responsibility to protect children. It is very disturbing to know that in some cases bishops even were abusers. I pledge to you that we will follow the path of truth wherever it may lead. Clergy and bishops will be held accountable when they abuse or fail to protect children.

Instead, these are part of prepared remarks issued by the Vatican after the secret meeting. They lose some of their force and sincerity after the fact.

Finally, Pope Francis, Moved by the Victims, Gets It Right When He Speaks Off the Cuff

The meeting clearly affected him, though, as he began his remarks to the bishops at the seminary by delivering clearly heartfelt reproof for the abuse of children by clergy (and anyone else). In addition to saying the oft-quoted, “God weeps,” he said that “the crimes and sin of sexual abuse of children can no longer remain secret” and that he “committed the close vigilance of the church to protect the children, and I promise that all responsible will be held accountable.” For those in the abuse community, whether abused, family or friend, or advocate, this charge of no more secrets was finally a moment of balm they deserved.

His spontaneous comments continued on the plane home when he “strongly condemned priests who molested children as ‘sacrilegious’ and publicly acknowledged that bishops had covered up abuse cases. ‘When a priest abuses, it is very grave because the vocation of the priest is to make that boy, that girl grow toward the love of God.’ Francis said. ‘For this reason, the church is strong on this, and one must not cover these things up. Those who covered this up are guilty. Even some bishops who covered this up.’”

More balm for the soul of victims!

Of course, on these issues, the devil is in the details.

From Secrecy to Sunlight for Survivors: Statute of Limitations Reform Now

The Philadelphia grand jury reports from 2005 and 2011 challenged all Philadelphians to think about the safety of children. A groundswell has grown in favor of learning the identities of the hidden predators, and it has become common knowledge that the only tried and true route to unveiling hidden predators is to eliminate and revive the child sex abuse statutes of limitations. Among other recommendations, the 2005 Grand Jury Report recommended that Pennsylvania enact a “window” that would revive expired statutes of limitations for child sex abuse.

Over the last ten years, that has not happened, because the Pennsylvania Catholic Conference—i.e., Pennsylvania bishops now led by Archbishop Chaput—have lobbied with hammer and tongs against victims’ access to justice. Indeed, the deepest irony of the Pope’s entire visit was that he met with family, teacher, and clergy victims, presumably to make the point to the public that there is abuse beyond their priests. Instead, it was a reminder that the bishops’ relentless, self-interested lobbying against victims’ access to justice has hurt incest and other victims, too.

Yet, Archbishop Chaput has now said: “We’ve gone out of our way to explore in the past in response to the grand juries,” he said. “I think the people responsible for the grand jury reports would acknowledge our response as being very positive and thorough. The fact that people want more – what is the more they want that we haven’t done?” He added: “We might fail sometimes. But in terms of sincerity and commitment, we are doing all that can reasonably be done.”

Actually, Chaput has been nothing but unreasonable in Harrisburg, hiring not just one but two lobbyists to keep the victims from justice. He also spent millions in Philadelphia “investigating” accused priests and controlling the public’s access to information about the pedophiles in their midst, all the while keeping victims and courts from revealing the full story.

It is now time for everyone else to be reasonable. If the bishops cannot bring themselves to back the victims’ rights to justice, it’s time legislators stake out the high ground. Since the Catholic cover-up story broke in 2002, they have done so in California, Connecticut, Delaware, Georgia, Hawaii, Massachusetts, and Minnesota, among many others.

Now is the time to follow, as Jesus said, “the way, the truth and the life” in order, in Pope Francis’s words, to “bring healing to victims . . . and . . . to ensure that such crimes will never be repeated.” What is the way? By reviving the civil SOLs, and eliminating the civil and criminal SOLs going forward.

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,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Hit the Gym, BorgataBabes Tue, 29 Sep 2015 04:01:23 +0000 Continue reading →]]> Weight LossThis was more or less the message from a New Jersey appellate court, which rejected most of the discrimination claims brought by a group of female casino waitresses who were suspended, fired, or otherwise subjected to a policy restricting weight gain. In a rambling and sometimes poorly reasoned opinion, Schiavo v. Marina District Development Company, a New Jersey appellate court joins a long line of courts that simply refuse to see the illegal and harmful stereotyping embodied in sex-specific dress codes.

Just What Exactly is a BorgataBabe?

According to the appellate court in Schiavo, Atlantic City was “changed forever” in 2003 by the opening of the Borgata, a “Las Vegas-style resort.” Among other differentiating features, the casino created a special group of costumed beverage servers called BorgataBabes, who were supposed to reflect the “fun, upscale, sensual international image that is consistent with the Borgata brand.”

A recruiting brochure spells out the image in more detail. The BorgataBabes are “beautiful,” “charming,” and “bringing drinks.” She “moves toward you like a movie star,” and her smile melts “the ice in your water.” Helpfully, when “you forget your own name,” she “kindly remembers it for you.” And you “relax in the knowledge that there are no calories in eye candy.”

More than 4000 people applied to be one of the first 200 BorgataBabes. Applicants who made it to the final round were interviewed and made to perform, in costume, mock customer scenarios. The court emphasizes that applicants were advised of the Personal Appearance Standards (PAS) to which they would have to adhere to get hired—and to stay employed. Women were to have a “natural hourglass shape,” while men were to have a natural “V” shape (broad shoulders and a slim waist). Women were to have naturally styled hair and “tasteful, professional makeup that complimented their facial features.” Men were to be clean shaven or have neatly trimmed and “sculpted” facial hair.

When the initial group was hired, they signed a contract providing that they would have to “maintain approximately the same physical appearance in the assigned costume” and “appear to be comfortable while wearing the assigned costume for which you were fitted.” For men, the costume consisted of a fitted black t-shirt and black pants. For women, the costume was, in the court’s description, “form fitting, skimpy, and reminiscent of a Las Vegas-themed casino.” (Searching #BorgataBabe will take you to many pictures on the Internet, showing the standard costume of a black bustier and miniskirt with high heels.) The costumes were designed by Zac Posen, who designed Emmy gowns this year for the likes of Amy Schumer, Sarah Hyland, and Tracee Ellis Ross.

A year after the casino opened, the PAS were modified to make the “maintain your appearance” requirement more objective. BorgataBabes were not permitted to gain or lose more than 7 percent of their baseline weight—roughly the amount of weight that would cause a change of one clothing size. There was no fixed schedule for weigh-ins; they occurred when a manager observed an “ill-fitting” costume, when a server returned from a leave of absence, and when a costume change was requested. According to company policy, a BorgataBabe who failed the weigh-in—whose weight had increased by more than 7 percent—would be given a period to bring his or her weight into compliance, with the assistance of company-funded weight-loss programs and gym memberships.

In 2008, one woman filed a complaint alleging that the PAS violated state anti-discrimination law, “as informed by Title VII.” Subsequently, several other complaints were filed, and the cases were all consolidated. All told, twenty-one women who had been subjected to the PAS—many suspended for excessive weight gain—were discriminatory in form and implementation. Women in that group had different outcomes—some brought their weight into compliance and retained their jobs; some requested transfers to a non-PAS position in anticipation of termination; some quit; and some were excused based on a medical condition affecting weight control.

The lawsuit raised the following complaints:

  • the PAS were based on gender stereotypes;
  • the weight-gain standard was not applied equally to men and women (e.g., men were not subjected to weigh-ins and could avoid requesting larger costumes by replacing the nondescript shirt and pants themselves);
  • the policy had a disparate impact—no men were suspended for noncompliance, while over twenty women were;
  • enforcement of the weight-gain policy was harassing and sexually suggestive (e.g., managers would snort like pigs when a woman suspected of excessive weight gain walked by or would ask if she “was pregnant or just getting fat”).

Is any of this, if proven, actionable?

A Long Path with Little Progress: The Law of Dress and Grooming Codes

Sex-specific dress and grooming codes have been challenged under Title VII, which bans all forms of sex discrimination by employers, since the mid-1970s. (These lawsuits often include claims under analogous state anti-discrimination laws.

Title VII prohibits employment actions “based on sex,” making no exception for specific types of discrimination or “de minimis” inequalities. Yet, there has been a longstanding anomaly in Title VII case law that permits employers to maintain sex-specific dress and grooming codes. In an early case, Willingham v. Macon Telegraph Publishing Company (1975), a federal appellate court upheld a rule requiring men (and only men) to have short hair, while women were permitted to wear theirs long. The court refused to acknowledge the stereotypes reflected in the rule, observing simply that hair length was not immutable, and men could comply with the rule simply enough by just getting a hair cut. (For a modern twist on this scenario in the educational context, read here.) In later cases, courts have ruled that employers can require men to wear business suits and ties, while requiring women to wear dresses. They have also allowed employers to impose requirements that women wear makeup, while prohibiting men from doing the same thing.

I describe these decisions as anomalous because they seem to permit precisely what Title VII forbids: treating employees differently on the basis of sex. And the reasoning courts offer is generally unconvincing, question-begging, and employs the very same stereotyping that led the employers to adopt the rule in the first place. Take the Willingham case, mentioned above. The court in that case stated that discrimination laws generally protect people based on immutable characteristics—on the theory that people should not be arbitrarily disadvantaged because of something they can’t change. And hair length, the court noted, is mutable, not immutable. But hair is not the alleged basis for discrimination, sex is. And sex cannot easily be changed.

Courts often resort to platitudes about “good business” and the latitude employers need to run things the way they see fit. But the thrust of anti-discrimination law is to override the decisions of employers that unfairly disadvantage certain groups of workers, regardless in most cases of the impact on business. We do not, for example, allow employers to hire only white workers even if customers prefer them; nor do we allow employers to fire older workers and replace them with younger ones based on the stereotype that they will be more energetic and efficient.

Other courts have had the gall to suggest that dress and grooming codes, though sex-specific, are actually gender neutral because men and women are both required to adhere to a dress code based on generally accepted community standards. That these standards are different and largely, if not exclusively, the product of sex stereotypes is ignored.

The one exception that emerged in more recent cases is that employers cannot impose an undue burden on one sex, but not the other. An employer thus cannot require women to wear uniforms, while allowing men to choose their own attire. But employers can force men and women to wear different uniforms, as long as they are deemed “comparable.”

The early dress and grooming code cases, which preceded the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, are less surprising. In that case, the Court held that sex stereotyping is a form of illegal sex discrimination. A logical extension of that ruling might be that sex-specific codes are invalid if they reflect, reinforce, or perpetuate gender stereotypes. And although some modern courts have used this analysis in dress and grooming cases brought by transgender individuals (challenging policies forcing them to align their dress with their anatomical sex), they have all but refused to do the same in cases brought by women. (Some of the transgender cases are discussed here and here.)

This oversight was nowhere more apparent than in Jespersen v. Harrah’s Operating Co., in which an en banc panel of the Ninth Circuit Court of Appeals upheld a grooming code that required female bartenders to wear teased hair, a full face of makeup, and painted fingernails, while requiring of male bartenders only that they have short hair and be clean. And while the court acknowledged the unequal burden test, it refused to take judicial notice of the fact that the dress code for women was time-consuming and expensive, while the dress code for men was quick and cheap. As Deborah Rhode has noted, however, even a “proper” application of the unequal burden test does not “capture all of what makes these regulations objectionable. Darlene Jespersen resisted Harrah’s makeup requirement not because it took more time and money for her to be presentable than her male counterparts, but because she felt that being “dolled up” was degrading and undermined her credibility with unruly customers. Dress codes that require women to wear skirts and high heels are problematic for similar reasons, regardless of what the codes demand of men.

The BorgataBabes case adds in an additional issue: grooming codes based on weight. Is discrimination law relevant to such rules? There is strong research showing that women are judged more harshly than men for exceeding conventional weight expectations. Weight discrimination results in a variety of adverse consequences, including disproportionately low pay. And because being overweight is more common for poor women and women of color, weight discrimination exacerbates discrimination based on race and class. But Title VII does not directly protect against weight discrimination, and neither do most state anti-discrimination laws. But when weight standards are set or applied unevenly, they can be challenged as sex discrimination.

For example, in Frank v. United Airlines, Inc., the Ninth Circuit Court of Appeals concluded that a policy that permitted men’s weight to vary more by height than women’s was invalid sex discrimination. But aligning weight ranges might be just the tip of the iceberg. Women tend to gain more weight as they get older than men and can have dramatic shifts in body weight and shape because of pregnancy. Thus even a neutral rule limiting weight gain can have a disparate impact on women.

The Ruling in Schiavo v. Marina District Development Company

At the trial level, all of the plaintiffs’ claims were dismissed on summary judgment. The presiding judge found that the PAS were “reasonable in light of casino industry standards and customer expectations,” and did not reflect discriminatory treatment of women.

On appeal, the court affirmed the dismissal of most of the claims, but reversed as to one. The plaintiffs are entitled, in the court’s view, to go to trial on the sex-based harassment claims. The court recited a long list of examples that might constitute illegal harassment based on gender, including: requiring a post-partum woman to weigh in more than once on the day she returned; punishment under the PAS even when proper medical documentation should have warranted an exception under the policy’s own terms; comments to the effect that women shouldn’t come back to work after having children because they are too fat; suggestion to one postpartum woman that she should pump out breast milk to make weight; accusing women of lying about being pregnant to avoid weigh-ins. The court correctly recognized that these instances support the claim that women were singled out for harassing conduct not based on weight alone, but on the interaction with gender and pregnancy. (It is somewhat shocking that the trial court, reviewing the same evidence, concluded that these claims did not even warrant further fact-finding before being dismissed.)

But the clear reasoning of the appellate opinion ends here. The court affirmed the grant of summary judgment to the employer on all other claims—that the PAS embodied gender stereotyping; that the weight standard was enforced in a discriminatory fashion; and that the PAS weight standard had a disparate impact on women. Let’s take the court’s analysis of each claim in turn.

With respect to the first theory of discrimination—a facial policy embodying gender stereotyping—the appellate court resorted to the familiar, if erroneous, reasoning that dress codes can be sex-specific and yet non-discriminatory. The court cited Price Waterhouse for the proposition that we are “beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group” and yet upheld the legality of a dress policy that required women to dress in skimpy, form-fitting outfits, while allowing men to wear a t-shirt and pants. Although the court purports to agree with the statement that customer preferences cannot justify “the use of stereotyping gender roles in employment positions,” it notes, in defense of the dolled-up female costume, that in the casino business the “costume may lend authenticity to the intended entertainment atmosphere.” And if it forces women to wear revealing, sexy clothing, but not the men, well so be it. The court actually admits that the “costume and physical fitness standards imposed what many would label an ‘archaic stereotype’ of male and female physiques,’” but finds no fault in it despite the ruling in Price Waterhouse.

And after reviewing a series of cases that also refuse to engage with the real issue—that dress codes like this are drowning in sex stereotypes—the court identified the following “general principle”:

When an employer’s ‘reasonable workplace appearance, grooming and dress standards’ comply with State or federal law prohibiting discrimination, even if they contain sex-specific language, the policies do not violate Title VII, and by extension, the [New Jersey analog.]”

So, in other words, a policy that complies with the law does not violate the law?

The court then also rejects the claim of disparate impact. Federal and state anti-discrimination laws prohibit neutral policies that have a disparate impact on one sex unless justified by business necessity. Given that no men were punished under the weight-gain policy, while many women were, this claim seems at least worthy of serious analysis. But the court is unimpressed and criticizes the plaintiffs for relying on “sheer numbers,” even though that is the crux of a disparate impact claim. (The court then confusingly concludes that “simple statistical disparities are insufficient to show the weight standard was facially discriminatory,” as if that damns the disparate impact claim.) The court never explains why it rejects the disparate impact claim. Is the sample size too small to generate statistically significant comparisons? Is the disparity between men and women too small to be significant? Was the disparate impact justified by business necessity? None of these questions is answered. Nor is the employer forced to explain why men were re-weighed so much less frequently than women. Instead, the court just concludes that there was no evidence of a disparate impact. The numbers, however, would seem to suggest otherwise.


This is a disappointing case, but not only because of the outcome. The disappointment is in the refusal of modern-day courts, against a backdrop of strong anti-discrimination laws and Supreme Court precedent, even to look more closely at dress and grooming policies that so obviously reflect and reinforce gender stereotypes. We aren’t supposed to be living in Archie Bunker’s world anymore—where “girls were girls and men were men”—and yet people are afraid of the alternative. Equal opportunity in employment means more than allowing women to work; it means respecting their competence and ability whether or not they live up to stereotype.

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.
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Marriage Litigation in the Wake of Obergefell v. Hodges Mon, 28 Sep 2015 04:01:44 +0000 Obergefell v. Hodges recognizing a constitutional right to same-sex marriage. Rotunda points out that in some cases, lower courts handling these cases have not adequately discussed or distinguished the relevant cases. Continue reading →]]> Same-Sex Marriage CakeIn the wake of Obergefell v. Hodges (2015) constitutionalizing the right to same-sex marriage, we will see much litigation. North Carolina, for example, recently enacted a law allowing certain state officials to refuse to perform same-sex marriage duties in North Carolina if they cite a “sincerely held religious objection.” The Texas Attorney General issued an opinion that justices of the peace, judges, county clerks, and their employees have a constitutional right of their own to refuse to facilitate same-sex marriages when there may be other county employees and judges willing to do the job.

Is it constitutional for the legislature to allow state officials to bow out of participating in same-sex marriage when the couple seeking the license merely secures it from another? If the law would not carve out an exception, would the state improperly be creating a religious test for office, in violation of the First Amendment?

The cases in the lower courts have not considered such issues yet, but we can expect that they will. Right now, the cases involve primarily bakers and wedding photographers, who have tended to lose. These cases will percolate up to the High Court. It would help the Court if the lower courts spent a little more time discussing the prior case law and flushing out the issues.

Thus far, the lower courts have tended to be conclusory. An example is the recent Colorado appeals court in Craig v. Masterpiece Cakeshop. In July 2012, Craig and Mullins visited a bakery in Colorado, and told Jack Phillips, the owner, to design and create a cake to celebrate their same-sex wedding. Phillips told them them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but said he would be happy to make and sell them any other baked goods. He also objected because of his First Amendment rights.

The administrative law judge found, as a factual matter, that “Phillips believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.” This same judge then ruled that Phillips discriminated against the gay couple, in violation of a state law that forbade, in a place of public accommodation, discrimination on the basis of sexual orientation. A bakery, it turns out, is, like a hotel, a place of accommodation. The appeals court rejected all of Phillips’s arguments and ruled that he must bake the cake and thereby participate in the wedding.

No case is an island, because each decision is a precedent, affecting others. Courts explain their decision and their reasoning so that we know how far the legal principle extends. What does the Colorado precedent mean? In this case we know very little because the court spoke in platitudes.

The Colorado court acknowledged that designing, baking, and presenting the wedding cake has a speech element. “Masterpiece’s contentions involve claims of compelled expressive conduct.” Actions can be speech, like waving a flag. Quoting a U.S. Supreme Court case, the Colorado court said that when “speech” and “non-speech” are “combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” So, what is this important government interest?

It turns out that when Mr. Phillips refused to create the cake, Colorado, in its state constitution and its statutes did not allow same-sex marriages. Yes, Colorado itself discriminated against same-sex marriage while punishing those who disagreed with the state. Indeed, Colorado law made clear that it would not recognize a same-sex marriage even if the parties were validly married under the laws of another state. What does the Colorado court say about that? Nothing. How can the state interest be such an important governmental interest when Colorado itself discriminates? The court ignores that and says nothing.

Let us say a KKK member walks into a bakery and tells the baker to make a cake that says, “Black lives don’t matter.” Or, “God bless the Klan.” Can the state force the baker to design, bake, and deliver the multi-tiered cake to the cross burning and Klan gathering? Does the state have that constitutional power? What does the reasoning of the Colorado court say about that issue? Nothing.

In R.A.V. v. City of St. Paul (1992), the City of St. Paul charged R.A.V. (a juvenile) with violating a city ordinance prohibiting bias-motivated disorderly conduct. R.A.V. burned a cross on a black family’s lawn. The Court held that the ordinance, on its face, violated the First Amendment because it imposed special prohibitions on speakers who express views on certain disfavored subjects, “race, color, creed, religion or gender,” while not punishing displays containing abusive invective if they are not addressed to those topics. For example, under the law, one could hold up a sign saying, all “anti-Catholic bigots” are misbegotten, but not that all papists are because the former does not attack a religion while the latter does.

In the Colorado case, the statute allows the baker to discriminate and refuse to bake a cake for a variety of reasons—the baker doesn’t like the purchaser’s looks; the purchaser cuckolded the baker and the baker does not want to bake the celebratory cake; the purchaser ran over the baker’s dog a decade earlier; the purchaser is too old and wrinkled. Like the law in R.A.V., only certain categories are within Colorado’s prohibition.

The Colorado law does not apply to bakers who refuse to bake cakes that favor traditional marriage; it applies only to bakers who refuse to participate in same-sex marriage. An organization that opposes same-sex marriage found that a baker’s dozen (13 bakers) would refuse to bake a cake that says, “Gay Marriage Is Wrong.” This organization has posted the video on the web. This distinction the Colorado law makes between favored and unfavored speech looks a lot like the law that R.A.V. invalidated it drew distinctions between favored and unfavored speech. What does the Colorado court say about the application of R.A.V.? Nothing.

The Colorado court does understand that free speech affects this case: “We recognize that a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage and, in such cases, First Amendment speech protections may be implicated.” What does the court say about that? Only this: “However, we need not reach this issue.” The baker did not want to design any cake that celebrates same-sex marriage, and the gay couple would want a cake that celebrated their union. How can the court not reach the issue that is at the center of the cake?

The Colorado court did acknowledge Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). That case involved the Santerias, a religious group that engages in ritual sacrifice of animals such as doves. The City of Hialeah enacted several ordinances to forbid this animal killing. Justice Kennedy, for the Court, invalidated them. To survive a free exercise challenge, the law must be neutral and of general applicability. For example, a state law that forbids all murder applies to a religion that believes in child sacrifice. The law in Church of the Lukumi Babalu Aye fails that test because, the Court explained, it was not neutral and not of general applicability: it allowed animal deaths for nonreligious reasons, such as fishing or extermination of rats in the home. There were no dissents.

The Colorado court did not explain how its law is a neutral law of general applicability when the law is not general in its applicability. It allows the baker to refuse to design, bake, and deliver the cake for many reasons, as long as sexual orientation is not one of them. For example, it allows the baker to refuse to bake a cake that supports traditional marriage. The Colorado law even allows discrimination on the basis of sex if that has some relationship to the services provided.

The Court asserted that the law is generally applicable because “it does not regulate only religiously motivated conduct.” But that was the case of the law in Babalu. It did not regulate only religion and it did not prohibit all killing, but it did prohibit “unnecessary killing” when “not for the primary purpose of food consumption.” What did the Colorado court say about that? Nothing.

Runyon v. McCrary (1976), another U.S. Supreme Court case, held that a federal law, 42 U.S.C. § 1981, forbids racial discrimination in making private contracts, but it took pains to say specifically that it was not interpreting that statute to apply to private schools “that practice racial exclusion on religious grounds.” The Court suggested that the statute could not apply to such conduct because of the Free Exercise Clause, which protects more than freedom of conscience; it protects “exercise” of religious beliefs. What does the Colorado court say about Runyon? Nothing.

In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), gay, lesbian, and bisexual descendants of Irish immigrants sought to march as a group in the St. Patrick’s Day parade. The parade’s organizers refused, and the state courts ruled that that this exclusion violated Massachusetts’s public accommodation law, which prohibits discrimination because of sexual orientation. Justice Souter, for a unanimous Court, ruled that requiring the defendants to alter the expressive content of their parade violated the First Amendment.

The Colorado court’s response is that it decided that the wedding participants would not think that the baker was making a statement attributed to him: “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.” If that were good enough to distinguish Hurley, the Supreme Court would have permitted the gay pride float if it posted a sign saying others do not share its views. Moreover, the parade in Hurley allowed floats communicating all types of messages, some contradictory to others and some communicating nothing. Hurley responded, “a private speaker does not forfeit constitutional protection simply by combining multifarious voices.”

Wooley v. Maynard (1977) is another free speech case. The Court ruled that the state cannot require motor vehicles to bear license plates embossed with the state motto, “Live Free or Die.” The owner of the vehicle defaced that motto because, apparently, he did not like the alternatives. No one would mistake a license plate for a bumper sticker. We all know that we place license plates on our cars simply because that is the law. What does the Colorado court say about Wooley? Nothing.

Ultimately, the Supreme Court may affirm the Colorado court or a similar decision. When it finally decides the issue, it would help if the lower courts spent a bit more time discussing and distinguishing the relevant cases.

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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Donald Trump’s Woman Problem Fri, 25 Sep 2015 04:01:40 +0000 Continue reading →]]> SexismThe night of the second Republican presidential debate, Carly Fiorina faced the followed question from CNN’s Jake Tapper: “In an interview last week in Rolling Stone magazine, Donald Trump said the following about you. Quote, ‘Look at that face. Would anyone vote for that? Can you imagine that, the face of our next president?’ Mr. Trump later said he was talking about your persona, not your appearance. Please feel free to respond what you think about his persona.”

Though this question gave Fiorina the opportunity to give back, to insult Trump’s appearance just as he had insulted hers, she chose instead to say, “You know, it’s interesting to me, Mr. Trump said that he heard Mr. Bush very clearly and what Mr. Bush said. I think women all over this country heard very clearly what Mr. Trump said.” Of everything that was said that evening, this response garnered what was perhaps the strongest audience applause, and I am guessing that much (though not all) of that applause came from women. In this column, I will explore why that reaction might have been as strong as it was.

One could immediately react to any implication of sexism by observing that Donald Trump has insulted the appearances not only of women but of men too. At one point during the debate, Rand Paul expressed concern about putting an immature man like Trump in charge of our nuclear weapons: “I think really there’s a sophomoric quality that is entertaining about Mr. Trump, but I am worried. I’m very concerned about him—having him in charge of the nuclear weapons, because I think his response, his—his visceral response to attack people on their appearance—short, tall, fat, ugly—my goodness, that happened in junior high. Are we not way above that? Would we not all be worried to have someone like that in charge of the nuclear arsenal?”

Trump’s response to Paul’s question was to say, “I never attacked him on his look, and believe me, there’s plenty of subject matter right there.” Among the many unusual qualities that Trump has brought to the contest this year is a juvenile tendency to attack opponents on the most superficial of grounds. But his insult to Fiorina was different and emblematic of a misogynistic attitude that women can immediately recognize, just as Fiorina suggested.

Donald Trump did not simply insult Fiorina’s looks (as he did Paul’s); he said that she could not be elected because the American people would not want to “vote for that” (emphasis added). If we examine this statement, then we can see that Trump was making an assertion about more than one woman’s appearance. He was presenting a point of view about his estimation of the worth and utility of women as a class.

Consider Trump’s question about Fiorina’s allegedly ugly face. He asked contemptuously, “Would anyone vote for that?” The presumptions in this question are (1) that the “anyone” in the scenario who is doing the voting is a man and the sort of man who, according to someone like Trump, would be looking at a woman’s face and necessarily judging its prettiness as a prerequisite for the office of President and presumably, for any other job she might wish to hold, and (2) that voting for a female candidate is synonymous with voting for that candidate’s facial appearance.

The fact that many women (not to mention men) might find Trump’s “face” (including his constant scowls and disgusted facial expressions) less than enchanting is, as far as Trump is concerned, not even worth mentioning, perhaps because female voters are invisible to him, and voting for a man for President has little to do with voting for that man’s facial attractiveness. Trump’s statement, then, is best understood if we imagine a (sexist) male walking into the voting booth as the paradigmatic voter and deciding whether he could tolerate electing a female face that did not erotically arouse him.

With women’s suffrage and men’s development of an appreciation of women as equals rather than as mere eye candy, a vote for an allegedly unattractive woman should be no more surprising than a vote for an unattractive man. Trump, however, is willing to disqualify a woman at the gate for lacking a sexually appealing face that might, for one, attract Trump’s next marriage proposal.

Facing Fiorina’s devastating response—that women fully understand the contempt in which Trump holds our entire class—Trump could only muster the following, quite telling response: “I think she’s got a beautiful face, and I think she’s a beautiful woman.” Fiorina, in fact, is a pretty woman, but Trump’s reaction said more about Trump than about her. It reiterated that (1) Trump considers himself emblematic of the sort of person who looks at and judges a female presidential candidate, (2) the judgment continues to be based upon physical attractiveness, and (3) since Fiorina is now, according to Trump, “a beautiful woman,” all should be forgiven.

The problem in his earlier comments, Trump apparently believed, was that he had erroneously (or imprudently) suggested that Fiorina was ugly. It was not that he was commenting at all on a woman’s appearance as a necessary qualification for her aspiration to be president. His cluelessness here was so profound that I found myself feeling sorry for him rather than angry. That Fiorina was not flattered by his “compliment” was a sign that she fully comprehended the content of his reprehensible behavior.

In thinking about Trump’s insults to Fiorina, it is useful to consider the implicit insult to women in general (and therefore to more than half of the electorate). To oversimplify (but only a little), women in Trump’s world exist to service men’s sexual needs. If they are attractive, then they are worth looking at, bedding, and marrying, if only for so long as they continue to be young and beautiful (after which they are not suitable wife or presidential material). This view goes hand in hand with the notion that women are on this earth to bear children for men (whether they want to or not) and then stay home and take care of those children while their men strut around and make money to keep their women in sexy clothing.

The people who count, in Trump’s world, whose wishes matter, and whose perspective defines whose looks matter and whether they measure up, are men. This is why someone with Trump’s appearance can so confidently and comfortably throw stones at Fiorina. He apparently did not expect to be called on his vile words and therefore had nothing intelligent to say when he was.

In the first Republican presidential debate, Megyn Kelly asked Trump about other instances of his degrading and insulting remarks about women:

“Mr. Trump, one of the things people love about you is you speak your mind and you don’t use a politician’s filter. However, that is not without its downsides, in particular, when it comes to women.

“You’ve called women you don’t like ‘fat pigs, dogs, slobs, and disgusting animals.’

“Your Twitter account…”

TRUMP: “Only Rosie O’Donnell.

KELLY: “No, it wasn’t.

Your Twitter account…”

TRUMP: “Thank you.”

KELLY: “For the record, it was well beyond Rosie O’Donnell.”

TRUMP: “Yes, I’m sure it was.”

KELLY: “Your Twitter account has several disparaging comments about women’s looks. You once told a contestant on Celebrity Apprentice it would be a pretty picture to see her on her knees. Does that sound to you like the temperament of a man we should elect as president, and how will you answer the charge from Hillary Clinton, who was likely to be the Democratic nominee, that you are part of the war on women?”

Megyn Kelly was effective and persistent in raising the issue of Trump’s attitude towards women, and his response, “only Rosie O’Donnell” implied that Rosie O’Donnell does not count as a woman worthy of protection from his misogyny. It seems that if a woman fails to serve Trump’s purposes by being attractive and compliant (and perhaps heterosexual too), then she can rightly expect to be the target of his insults.

Trump’s response to the accusation that he is feeding the vision of Republicans waging war on American women? “I think the big problem this country has is being politically correct.” He thereby trivialized women’s concerns and refused to engage with them or take them seriously. He then added, ominously, “And honestly Megyn, if you don’t like it, I’m sorry. I’ve been very nice to you, although I could probably maybe not be, based on the way you have treated me. But I wouldn’t do that.”

Shortly after the debate, we were treated to Trump’s version of “not being nice” to Megyn Kelly, when he said to CNN’s Don Lemon that Kelly’s questions were “ridiculous” and “off-base” and—famously now—that “[y]ou could see there was blood coming out of her eyes, [b]lood coming out of her wherever.” The implication here, that Kelly was menstruating and therefore behaving in an irrational and out of control fashion, was hard to miss, despite Trump’s later claims that he was talking about blood coming out of Kelly’s nose. It also seems that Donald Trump regards menstruating women as yet another class of useless females, along with those whose faces do not ignite his desire. Since Megyn Kelly is unquestionably beautiful and young (and therefore could not be insulted for her looks), Trump had to turn to her time of the month.

I take heart, though, in public reactions to Trump’s treatment of women. It was gratifying to hear Republicans criticizing Trump for his blatant sexism in suggesting that Kelly must have been having her period. Penny Young Nance, the CEO and president of the conservative group Concerned Women for America, said to CNN that Trump’s “tantrum was even more enlightening than his original remarks she [Kelly] questioned…. Does he have a problem with women? Three wives would suggest that yes, maybe there’s a problem. The good news is that Kelly is a mother of toddlers and knows how to deal with petulance and tantrums. Every presidential election since 1964 has been carried by women.” This last sentence could have been uttered by a card-carrying feminist.

Women (and hopefully men as well) clapped for Fiorina when she gave the most dignified and truthful response to a question during the debate. American women understand exactly what Donald Trump said, along with the exploitative and hateful attitude towards women that his statements revealed, and people are prepared to vote accordingly. That is good news indeed.

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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Arizona’s SB 1070 Immigration Law Is Back in Play in the Federal Courts Thu, 24 Sep 2015 04:01:36 +0000 Continue reading →]]> Immigration PapersMany of the essays posted on Verdict deal with Supreme Court cases; in today’s column I focus on an opinion issued by a court at the base, rather than the pinnacle, of the federal judicial system—this month’s ruling by a federal district court in Arizona disposing of residual challenges brought against Arizona’s SB 1070 statute, the statute passed in 2010 attempting to deal with immigration stresses in the state, parts of which were struck down two years later by the Supreme Court in Arizona v. United States.

Two key parts of SB 1070 were undiminished by the Supreme Court’s 2012 ruling. One is the so-called “Show Me Your Papers” (SMYP) provision, which requires state law enforcement agents to make a “reasonable attempt . . . to determine the immigration status” of any person they lawfully detain “if reasonable suspicion exists [as to whether] the person is an alien and is unlawfully present in the United States.” The other is a pair of provisions comprising the “Day Laborer” portion of SB 1070. One provision makes it unlawful “for an occupant of a motor vehicle that is stopped on the street [in such a way as to impede traffic] to “attempt to hire or hire and pick up passengers for work at a different location.” And the companion provision makes it unlawful “for a person to enter a motor vehicle that is stopped on the street [in such a way as to impede traffic] . . . in order to be hired by the occupant of the vehicle and to be transported to work at a different location . . . .”

Both of these parts of SB 1070 were challenged as unconstitutional in Valle Del Sol v. Whiting, and three weeks ago federal District Court Judge Susan Bolton issued a ruling on both. As to the challenge to the “Show Me Your Papers” provision, she ruled against the challengers and for the State of Arizona on plaintiffs’ equal protection argument. And with respect to the attack on the Day Laborer provisions, Judge Bolton ruled in the plaintiffs’ favor, concluding that these provisions violate First Amendment guarantees of free speech.

In my view, the district court’s reasoning on both of these claims was confused and unpersuasive, and that the results probably should have been inverted—the equal protection challenge to the SMYP provision should have survived, and the First Amendment claim concerning the Day Laborer provisions should have been rejected.

Equal Protection Challenge to “Show Me Your Papers”

The plaintiffs alleged that this provision was motivated by a constitutionally impermissible purpose to harm ethnic minorities, including Latina(o)s. The judge rejected this claim, holding that even if there were strong evidence of anti-Latina(o) motive, the provision cannot be successfully challenged until the plaintiffs also demonstrate that “state law enforcement officials will enforce the law differently for Latinos” than others. The court’s reasoning was that the goal of the Equal Protection Clause is to ensure that similarly situated people are not treated differently, and that this goal isn’t implicated unless and until plaintiffs show that the enforcement of the law will be done differently for people of some races than others.

But the court misunderstood what is required in equal protection challenges where impermissible motive is alleged. In such cases, the Supreme Court has made clear in Washington v. Davis and elsewhere, so long as the statute will have an unequal, or disparate, effects across different racial groups, it can be successfully challenged if there is a showing of impermissible motive. That is true even if the law is applied by executive officials the same way to people of all races.

Consider a law that punishes use of one drug (Drug A) more harshly than use of another drug (Drug B). Assume that this differential punishment regime is adopted precisely because most of the people who use Drug A are racial minorities, and most of the people who use Drug B are white, and the legislature has the actual goal of imprisoning minorities as much as possible. In such an instance, even if the police arrest and seek to imprison all persons who use Drug A (and thus are enforcing the ban on Drug A in a way that treats Drug A-users of all races equally harshly), the fact that the high punishment for using Drug A was enacted to harm minorities, coupled with the fact that the effect of a “neutral” enforcement of the law will burden a higher percentage of minorities than non-minorities, renders the law unconstitutional.

The district court seemed not to apply this basic “disparate impact plus invidious motive” body of law, confusing the overall goal of the Equal Protection Clause (equal treatment) with the specific doctrinal elements the Supreme Court has identified as being sufficient to state a claim when invidious motive can be established. When a statute is improperly motivated and has a disparate effect (even if the statute is enforced neutrally—that is, without selective racial enforcement), the statute does in a very real sense treat similarly situated people differently, in that one group suffers harm because of an improper motive while another group equally deserving of punishment is spared the burden.

None of this is to say the plaintiffs’ challenge to the SMYP provisions of SB 1070 will or should succeed; almost all invidious motive claims founder at the point of adducing adequate proof of improper government purpose. Courts bend over backwards to avoid finding that legislatures have enacted facially neutral laws for racist reasons, and the proof of anti-Latina(o) motive behind SB 1070 may not be sufficient. But the district court was unconvincing in dismissing the claim on the ground that the effect of the law was not disparate enough—the fact that almost 70 percent of foreign-born Arizona residents are Latina(o) and over 90 percent of undocumented immigrants in the state are from Mexico, combined with the fact that only 30 percent of the state’s residents overall are Latina(o), mean that innocent Latina(o)s are much more likely than innocent non-Latina(o)s to be questioned about their immigration status.

The Day Laborer Provision and the First Amendment

As noted earlier, the district court ruled the other way—siding with the plaintiffs—on the First Amendment challenge to the Day Laborer provisions. Ironically, the problem with the court’s analysis (and embrace) of the First Amendment challenge is that the court essentially accepted a disparate impact analysis where the guiding Supreme Court doctrine seems not to be concerned with disparate impacts. The district court (and the Ninth Circuit too, for that matter, since this part of the case ping-ponged between the two courts over recent years and the district judge was taking her cue from a 2013 Ninth Circuit decision) ruled that the Day Laborer provisions violate the First Amendment because they discriminate against commercial speech—the solicitation of work and offers to hire—without adequate justification. Relying on a Supreme Court case called Central Hudson Gas & Electric v. Public Service Commission, the district court and Ninth Circuit required Arizona to justify the Day Laborer provisions by establishing that there weren’t other ways of coping with the traffic congestion caused by the hiring of day laborers from vehicles. In more doctrinal terms, the courts found the Day Laborer provisions to be inadequately “tailored” with respect to the state’s ostensible goal of orderly street traffic.

But all of this begs the question whether these parts of SB 1070 should be subject to a narrow tailoring requirement in the first place. Laws that single out speech because of its content are indeed subject to a meaningful level of judicial scrutiny, which requires some precision in the fit between the government’s means and ends. For example, in Central Hudson itself, the law in question prohibited the advertising of energy services by utilities. That law targeted certain speech—advertising—because of its content.

But, on their face, the Day Laborer provisions of SB 1070 don’t target any kind of speech; they target conduct—letting someone in your vehicle or getting into someone else’s vehicle for the purpose of creating a contract. Entering into a vehicle is conduct. And entering into a business relationship is also conduct, not speech, even though it may incidentally involve speech. For example, in a recent case involving whether law schools could be required to permit military recruiters on campus to interview job candidates, the Supreme Court unanimously rejected a First Amendment challenge, observing that permitting access of recruiters was conduct, not speech. So too here, the provisions of SB 1070 do not prohibit people in cars from talking on the phone or among existing passengers about the need to hire workers or the terms on which workers should be hired; the provisions simply prohibit the transaction, or attempted transaction, of business in stopped cars.

If a city were to pass a zoning law that prohibits anybody from selling, or attempting to sell, industrial products from their dwelling in a particular neighborhood, nobody would think the law should be subject to meaningful scrutiny on the ground that it, in effect, shuts down commercial speech incident to potential sales. Instead, we would ask only whether the law were minimally reasonable, and if it were, the fit between means and ends would not need to be super tight.

What about the fact that a law that prohibits hiring day laborers from vehicles has a disparate adverse impact on certain kinds of speech—speech between day laborers and potential employers concerning day-laborer employment? The short answer is that, unlike in equal protection cases, the Supreme Court has not generally allowed plaintiffs to inquire into possibly censorial motives behind laws that regulate conduct and mount serious First Amendment challenges (that is, those that require a tight fit between means and ends) based on these laws’ effects on speech; instead, ordinarily a law must target expressive activity on its face to implicate rigorous First Amendment scrutiny.

It is rather surprising that this speech-conduct distinction—which figures prominently in First Amendment case law—was hardly discussed by either the district court or the Ninth Circuit in the SB 1070 day laborer dispute. At one point the Ninth Circuit, in a cursory footnote, rejected the idea that SB 1070 targeted economic activity rather than speech, pointing out that the statute regulates not just hiring people but “attempt[ing]” to hire them as well, and that “attempts” to hire people take the form of negotiations—speech. Putting aside for the moment whether attempted hiring can be distinguished from actual hiring (which is clearly conduct), the Ninth Circuit never even acknowledged that one of the two provisions of SB 1070 it was calling into question—the provision that applied to the laborers rather than the employers—made no mention of attempted hires, but instead simply prohibited the entry into a stopped vehicle in order to be hired. And in any event, if laws regulating attempted economic activity were subject to meaningful scrutiny because such activity takes the form of expression, then many, many laws would be struck down. (It should be noted that actual hiring also takes the form of expression, and yet no one thinks that government can’t regulate hiring practices unless there is a tight fit between means and ends.)

At the end of the day, my sense is that the lower courts in these recent SB 1070 rulings misinterpreted basic Fourteenth and First Amendment doctrine. (I do note that if plaintiffs challenged the Day Laborer provisions based on equal protection, asserting that the Day Laborer part, like the SMYP provision, was intended to hurt Latina(o)s in particular, then that claim would be coherent—assuming that there were adequate proof of bad motive—since the effect of these Day Laborer provisions surely falls harder on Latina(o)s than on other racial groups in Arizona.)

Whether ultimately the Supreme Court will be asked—and choose—to review these SB 1070 disputes down the road I do not know. I do know that in many instances, the district courts and the courts of appeals are in practice the last, best chance to properly apply constitutional doctrine, and it’s somewhat concerning when doctrine gets applied seemingly without full understanding of all the issues involved.

Vikram David Amar is the Iwan Foundation Professor of Law and the Dean at the University of Illinois College of Law. Previously, he served as 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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