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Mar 5

Free Expression, Hate Speech and LGBTI Rights

One of the great differences between the public law regimes of Europe and the United States is the diverging attitudes that judges and legislators have adopted towards “hate speech.”

While both the First Amendment of the US Constitution and Article 10 of the European Convention on Human Rights recognize that free expression is essential to public debate, the Courts administering these two provisions have taken widely different views as to what transcends the boundaries of protected speech and becomes something that society might rightly prohibit.

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Mar 5

The Walls of DOMA Come Tumbling, Tumbling Down

One question that has arisen all too infrequently in discussions of California’s Proposition 8 is, “What effect would such a ruling have on DOMA?” The Defense of Marriage Act (DOMA), chaptered at 1 U.S.C. § 7, defines “marriage” for federal purposes as “a legal union between one man and one woman as husband and wife.”

Judge Jeffrey S. White, who presides in my ‘hood (the U.S. District Court for the Northern District of California), recently found that DOMA is unconstitutional because (1) it “treats gay and lesbian individuals differently on the basis of their sexual orientation,” (2) laws classifying gays and lesbians differently from heterosexuals are subject to heightened scrutiny, and (3) as such, DOMA fails review both because it is not substantially related to an important government objective, and because the government’s proffered objective (“promoting procreation within marriage”) is not “a legitimate reason to exclude same-sex marriages from federal recognition.” (See Golinksi v. Office of Personnel Management.)

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Mar 5

Retiring McDonnell Douglas

In a recent Title VII decision, Coleman v. Donahoe, Judge Diane Wood wrote a very interesting special concurrence calling for the end of the McDonnell Douglas burden shifting framework.  (The Outten & Golden Employment Law Blog recently highlighted the Wood concurrence.) McDonnell Douglas v. Green established the familiar three-step framework for proving employment discrimination under Title VII and analogous civil rights laws. In the first step, the plaintiff establishes a prima facie case of discrimination. The burden of production then shifts to the employer for the second step, at which point the employer must proffer a nondiscriminatory reason for the adverse employment action. The employee bears the burden of production for the third step, which requires a showing that the employer’s nondiscriminatory reason is actually a pretext for discrimination.

In announcing the McDonnell Douglas approach, the Supreme Court’s intention was to assist plaintiffs by setting out a roadmap for proving employment discrimination via circumstantial evidence.  But in practice the rigidity of McDonnell Douglas burden shifting all too often creates barriers for plaintiffs, because good evidence of discrimination won’t always fit neatly into the three-step framework. Read more

Mar 2

“Conscience Amendment” defeated in Senate

Voting mostly along party lines, the Senate today voted to defeat the so-called Conscience Amendment, which embodied the Senate Republicans’ response to the 2010 Patient Protection and Affordable Care Act’s requirement that group health plans must include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”  The Obama Administration later offered an “accommodation” for religious institutions whereby, in case a religious institution decides to opt-out and declines to provide coverage that includes contraceptive services, the insurance company would have to contact the concerned woman directly and offer her contraceptive coverage free of charge.”  This compromise has been largely rejected as inadequate by conservatives.

Many Senate Republicans have tried to couch their opposition to the policy as premised on the First Amendment right of employers, such as Catholic hospitals, to free exercise of religion, rather than their aversion to a woman’s ability to access birth control.  Proposed by Senator Roy Blunt (R-Mo.), the Conscience Amendment was attached to a highway bill,  and would allow employers to opt out of a new federal health-care mandate for their employees if they have religious objections.  Federal lawsuits have also been filed challenging the constitutionality of the policy on the anvil of the Free Exercise Clause of the First Amendment.

However, under the controlling Supreme Court precedent, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the First Amendment argument is a non-starter.   Read more

Mar 2

Court seems poised to limit corporate liability for human rights abuses

If the comments at oral argument are any indication, the Supreme Court will soon overrule several lower court rulings that held corporations liable for violations of international law under the Alien Tort Statute (ATS), a law passed by the first Congress. The ATS granted federal courts jurisdiction to hear lawsuits by foreign persons for torts that violate international law. Read more

Mar 1

A Pressure Point for the NCAA?

When the National Collegiate Athletic Association’s proposal to permit multi-year athletic scholarships survived an override vote earlier this month, some of the legal implications were obvious. The Department of Justice had already conducted a preliminary inquiry into the antitrust status of the NCAA’s old scholarship rules, which permitted scholarships to be granted for only one year at a time. Various powerful political figures, including the President, have expressed their displeasure with the way the NCAA handles its football national championship and conference realignment and the DoJ has hinted that there may be antitrust violations to be found in those parts of the sport as well.  It’s hard not to see the DoJ investigation as a message to the NCAA that it can no longer hide behind protestations of amateurism and higher education and that it must acknowledge that it has become a billion dollar business and act accordingly.

With the passage of this new proposal, the NCAA may have staved off one line of inquiry, but college sports are a dirty business on many levels and federal intervention will continue.  One criticism raised by flacks for the college sports industry is that DoJ must have better things to do.  They’re right: using the DoJ to make changes in college sports is not the most effective use of federal resources.  The US government may have a far more powerful weapon against the NCAA, one that the recent change has made even more available.  This weapon is the tax code. Read more

Feb 22

Edwin Hart Turner and the Politics of Executing the Mentally Ill

 

 

 

 

 

 

 

Edwin Hart Turner as a boy

Despite the presence of a Southern District of Mississippi Temporary Restraining Order (TRO) staying his execution until February 20, 2012, Edwin Hart Turner was brought to the death chamber at the Mississippi State Penitentiary in Parchman and executed on February 9, 2012.

The District Court issued the TRO to consider legal arguments which could allow mental health professionals to examine Turner  in order to inform the legal process of Turner’s capacity to be executed. However,  in a remarkable decision that disregarded the guiding principles of stare decisis and judicial restraint, the Fifth Circuit Court of Appeals overruled the TRO, thus preventing any intervention which could have saved Turner’s life. Read more

Feb 22

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Governor petitions high Court, claims political prosecution

Former Alabama Governor Don Siegelman has spent the last decade of his life on trial, in jail or out on bond. He was convicted of obstruction of justice and “honest services” fraud in 2006. The governor recently petitioned the Supreme Court, arguing the evidence against him was insufficient. Siegelman says his prosecution was politically motivated, and statistical evidence suggests he may be right. 

The Democratic governor’s conviction was based on accusations that he agreed to seat an executive on a state board in exchange for a $500,000 contribution to a lottery campaign that Siegelman supported. After the Supreme Court narrowed the definition of “honest services” fraud to “bribes and kickbacks,” the Eleventh Circuit upheld Siegelman’s conviction and rejected the argument that bribery requires an express quid pro quo. The Eleventh Circuit conceded that the Supreme Court requires an“explicit” agreement but concluded that “explicit” does not mean “express.” (Webster’s defines “explicit” as “fully revealed or expressed without vagueness, implication, or ambiguity.”) Siegelman complained that the court’s broad definition results in “confusion . . . as to where the line lies between politics and crime.” He warned that political speech could be chilled: “[M]oney is the lifeblood of modern politics, and most . . . officials are responsive in at least some degree to those who contribute [to campaigns].” Read more

Feb 22

Citizens United and the Precedent of Doom

Citizens United II is coming, looming like a sequel to Friday the 13th. This time, the part of the Federal Election Commission will be played by the State of Montana. Though the Court has not yet granted certiorari, an order from last week staying the Montana Supreme Court’s decision proves insightful. Look out, Montana! Don’t go into that dark basement alone!

Accompanying the State on its journey through the abandoned cabins of Camp Crystal Lake are Justices Breyer and Ginsburg, still highly suspicious of the majority’s reasoning in Citizens United. In last week’s order, Justice Ginsburg wrote, “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United . . . make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’” Read more

Oct 11

best-cell-phones

Gov. Brown Vetoes Cell Phone Protections

But how long after an arrest can the police search a cell phone? Earlier this year, California grappled with People v. Diaz, 51 Cal.4th 84 (2011) and concluded that even ninety minutes after an arrest, when the phone is safely stored far away from the suspect and the danger of destruction is effectively zero, the police could search the contents of a cell phone without a warrant.

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