Supreme Court reporters will never lack for good copy as long as Antonin Scalia continues serving as a justice. In an otherwise slow news month at 1 First Street, Scalia delivered two zingers for the Supreme Court press corps. In separate campus appearances a week apart, Scalia compared homosexuals to child molesters and earlier invited defiance of Supreme Court decisions by anyone who disagrees with a specific ruling.
Both comments came against the backdrop of the court’s ruling in June to guarantee marriage equality for same-sex couples nationwide. Scalia vigorously dissented from the decision, just as he had done in the court’s three previous gay rights rulings over the past two decades. With the first comment, Scalia implicitly endorsed the refusal of some public officials to recognize same-sex marriages. And with the second he reiterated his view that the court had overstepped by deciding an issue that should have been left to elected legislators.
Scalia made the remarks in campus appearances — the first before Princeton University’s Union League [Nov. 11] and the second before a general student audience at Georgetown Law School [Nov. 16]. Both events were unrecorded, so my views are based on accounts published in news media, print and on-line.
At Princeton, Scalia’s interlocutor was Robert George, a professor of jurisprudence at the university and a leading academic opponent of marriage rights for same-sex couples. George published an account of Scalia’s remarks on his Facebook page. He paraphrased the justice as saying that public officials have no general constitutional obligation to treat as binding a Supreme Court decision that lacks a warrant in the text or original understanding of the Constitution.
George said that Scalia specifically mentioned the same-sex marriage decision, Obergefell v. Hodges, and the line of Supreme Court decisions keeping church and state separate. Seemingly, Scalia did not specifically mention Kim Davis, the county clerk in Kentucky who defied the marriage decision by refusing to issue licenses for same-sex couples. But Scalia surely is aware of Davis’s refusal: she was jailed for a week for contempt of a lower federal court order.
Scalia buttressed his stance by citing Abraham Lincoln’s somewhat misunderstood suggestion that the court’s pro-slavery decision in the Dred Scott case did not bind public officials who were not parties to the case. Lincoln never actually refused to follow the court’s decision, however, and the more recent history of defiance of Supreme Court decisions is an unhappy one. Segregationist officials in the South mounted “massive resistance” to the court’s school desegregation ruling in the 1950s, and their views helped justify the violence and intimidation directed against black school children in the ensuing years.
The same-sex marriage decision has provoked less resistance, none of it violent, but Scalia’s remarks can only encourage others to follow Davis’s example in turning away same-sex couples at the marriage bureau’s door. Justice Anthony M. Kennedy, author of the decision, took a different stance when he addressed the same issue at a Harvard Law School appearance in late October. Kennedy suggested that a public official with conscientious opposition to the ruling should simply resign instead of refusing to comply with the decision.
Scalia’s remarks on the marriage decision at Georgetown were less direct but if anything more incendiary. According to the New York Times’s account, Scalia said the decision had no constitutional basis and suggested the rationale for the decision could be applied to child molesters.
“What minorities deserve protection?” Scalia asked rhetorically. “What? It’s up to me to identify deserving minorities?” He went on. “What about pederasts? What about child abusers? This is a deserving minority. Nobody loves them.”
Scalia surely knows that gay men have been discriminated against for decades based on an unreasoning fear of them as sexual predators. So, for those who still disapprove of homosexuality, Scalia’s remarks were the equivalent of shouting fire in a crowded theater.
In any event, Scalia’s remarks fail in two regards. First, the court’s majority based the marriage decision primarily on due process instead of equal protection grounds. Kennedy reasoned that the right to select one’s marriage partner was “inherent in the concept of individual autonomy” protected by the Due Process Clause. The equal protection rationale received scant attention, as Chief Justice John G. Roberts Jr. noted in his dissent.
Scalia is entitled to disagree with what is called “substantive due process,” but his critique of the courts’ role in applying the Equal Protection Clause simply makes no sense. The constitutional provision that states cannot deny “the equal protection of the laws” to “any person” is not self-defining. The courts inevitably have the role of defining what legal distinctions fall within the prohibition.
The Equal Protection Clause would be a nullity if it were left to legislators to decide what groups could be treated unequally. Under Scalia’s logic, racial segregation would still be legal unless legislators decided to end it. Ditto, sex discrimination.
Scalia’s remarks may have been unscripted, but that is no excuse for spouting legal theories more in the manner of Fox News than an academic venue. In the political context, Americans have a present-day example of a supposedly serious figure gaining attention by spouting inanities and absurdities. So it is fair to suggest that Scalia has become, if he has not always been, the Donald Trump of the Supreme Court lecture circuit.
Sunday, November 29, 2015
Sunday, November 22, 2015
Police Get "Super Powers" From High Court
Richard Nixon ran for the presidency in 1968 in part by campaigning against the Warren Court for its criminal law decisions that he said “handcuffed” the police. Nixon appointed a new chief justice, Warren E. Burger, and three associate justices who started the court’s shift to the right that has continued ever since.
Within the past two decades, the court has not merely backed away from adding any new constraints on police. Instead, according to Georgetown law professor Paul Butler, the court under two conservative chief justices — William H. Rehnquist and John G. Roberts Jr. — has issued decisions that give police “super powers” to arrest, to racially profile, and even to kill.
Butler, an African American who has become a leading critic of racism in the criminal justice system, delivered his critique as keynote speaker at a daylong symposium “Police/State: Race, Power, and Control” sponsored by the Georgetown Law Journal [Nov. 20]. (Disclosure: I was editor in chief of the Journal, volume 69, a few years before the current EIC was born.) Butler provocatively declared that the most important police-related issue today is not illegal police misconduct but actually legal police conduct.
Butler made no mention of the two major Warren Court decisions aimed at regulating police practices: Mapp v. Ohio (1960), the decision that bars use of illegally obtained evidence, and Miranda v. Arizona (1966), the ruling that requires police to inform suspects of their rights before custodial interrogation. He could have detailed the many subsequent decisions that have narrowed the applications of those decisions even while leaving them on the books.
Instead, Butler listed decisions largely unknown to the general public that have given the court’s blessing to questionable police conduct. Butler followed a series of speakers who documented the racial disparities in criminal justice dramatically detailed in Ferguson, Mo., and equally found nationwide. “The court has created a legal platform for black lives not to matter to the police,” Butler said.
On their face, the three decisions in Butler’s list have nothing to do with race. Indeed, a white woman was the unfortunate victim of police overreaching in one of the rulings. In the real-world context, however, Butler argues that police use of their “super powers” inevitably means that black and brown people lose and white people win.
Chronologically, the list begins with a Rehnquist Court decision, Whren v. United States, that upheld the convictions of two African American men following a traffic stop in a “high drug area” in Washington, D.C. The plainclothes vice officers said they stopped the defendants’ truck because it drove away from an intersection at an “unreasonable” speed. The defendants argued that the traffic stop was a pretext and that the officers had singled them out because of their race.
Writing for a unanimous court, Justice Antonin Scalia said the officers’ “subjective intentions” did not matter as long as they had an objective basis for the stop. With racial profiling already being challenged in lower courts, Scalia acknowledged that the Constitution prohibits race-based selective enforcement, but he relegated that issue to the impossible-to-meet standard of intentional discrimination. In operation, the decision makes racial profiling all but impossible for defendants to challenge or for courts to police.
A second Rehnquist Court decision, Atwater v. Lago Vista (2001), widens police power to arrest after routine traffic stops. A police officer in Lago Vista, Texas, stopped Gail Atwater for driving without a seat belt and took her into custody. Atwater argued that the arrest for such a minor offense was an “unreasonable” seizure under the Fourth Amendment. The court disagreed in a 5-4 decision written by Justice David H. Souter. Even though Atwater is white, the impact falls on African Americans and Hispanics given the statistics that show them more likely than whites to be traffic-stopped or arrested once stopped.
In a third case, the Roberts Court in effect gave police a license to kill. The 8-1 decision in Scott v. Harris (2007) rejected a federal civil rights suit by a Georgia man, Victor Harris, who was left permanently paralyzed after police shot him in a high-speed automobile chase. Writing for the court, Scalia found the police conduct reasonable given “the actual and imminent threat” that Harris supposedly posed for the officers, other drivers, or pedestrians. In a lone dissent, Justice John Paul Stevens argued the case should have been allowed to go to a jury.
Just this month, the court issued a summary ruling that makes clear police have no obligation to choose a non-lethal alternative for terminating a high-speed chase. The 8-1 ruling in Mullenix v. Luna [Nov. 9] found a Texas state trooper entitled to qualified immunity for fatally wounding the suspect-driver in misdirected shots aimed at disabling the vehicle. "The Court has [ ] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment,” the unsigned opinion states.
The court is not to blame for other problems highlighted in the symposium. Congress and state legislatures bear responsibility for the mass incarceration that stems from overcriminalization and harsh mandatory minimum sentences; local authorities are to blame for the fines and fees that often land indigents behind bars. But a court that arms police with super powers contributes to the widespread lack of confidence in equal justice under law.
Within the past two decades, the court has not merely backed away from adding any new constraints on police. Instead, according to Georgetown law professor Paul Butler, the court under two conservative chief justices — William H. Rehnquist and John G. Roberts Jr. — has issued decisions that give police “super powers” to arrest, to racially profile, and even to kill.
Butler, an African American who has become a leading critic of racism in the criminal justice system, delivered his critique as keynote speaker at a daylong symposium “Police/State: Race, Power, and Control” sponsored by the Georgetown Law Journal [Nov. 20]. (Disclosure: I was editor in chief of the Journal, volume 69, a few years before the current EIC was born.) Butler provocatively declared that the most important police-related issue today is not illegal police misconduct but actually legal police conduct.
Butler made no mention of the two major Warren Court decisions aimed at regulating police practices: Mapp v. Ohio (1960), the decision that bars use of illegally obtained evidence, and Miranda v. Arizona (1966), the ruling that requires police to inform suspects of their rights before custodial interrogation. He could have detailed the many subsequent decisions that have narrowed the applications of those decisions even while leaving them on the books.
Instead, Butler listed decisions largely unknown to the general public that have given the court’s blessing to questionable police conduct. Butler followed a series of speakers who documented the racial disparities in criminal justice dramatically detailed in Ferguson, Mo., and equally found nationwide. “The court has created a legal platform for black lives not to matter to the police,” Butler said.
On their face, the three decisions in Butler’s list have nothing to do with race. Indeed, a white woman was the unfortunate victim of police overreaching in one of the rulings. In the real-world context, however, Butler argues that police use of their “super powers” inevitably means that black and brown people lose and white people win.
Chronologically, the list begins with a Rehnquist Court decision, Whren v. United States, that upheld the convictions of two African American men following a traffic stop in a “high drug area” in Washington, D.C. The plainclothes vice officers said they stopped the defendants’ truck because it drove away from an intersection at an “unreasonable” speed. The defendants argued that the traffic stop was a pretext and that the officers had singled them out because of their race.
Writing for a unanimous court, Justice Antonin Scalia said the officers’ “subjective intentions” did not matter as long as they had an objective basis for the stop. With racial profiling already being challenged in lower courts, Scalia acknowledged that the Constitution prohibits race-based selective enforcement, but he relegated that issue to the impossible-to-meet standard of intentional discrimination. In operation, the decision makes racial profiling all but impossible for defendants to challenge or for courts to police.
A second Rehnquist Court decision, Atwater v. Lago Vista (2001), widens police power to arrest after routine traffic stops. A police officer in Lago Vista, Texas, stopped Gail Atwater for driving without a seat belt and took her into custody. Atwater argued that the arrest for such a minor offense was an “unreasonable” seizure under the Fourth Amendment. The court disagreed in a 5-4 decision written by Justice David H. Souter. Even though Atwater is white, the impact falls on African Americans and Hispanics given the statistics that show them more likely than whites to be traffic-stopped or arrested once stopped.
In a third case, the Roberts Court in effect gave police a license to kill. The 8-1 decision in Scott v. Harris (2007) rejected a federal civil rights suit by a Georgia man, Victor Harris, who was left permanently paralyzed after police shot him in a high-speed automobile chase. Writing for the court, Scalia found the police conduct reasonable given “the actual and imminent threat” that Harris supposedly posed for the officers, other drivers, or pedestrians. In a lone dissent, Justice John Paul Stevens argued the case should have been allowed to go to a jury.
Just this month, the court issued a summary ruling that makes clear police have no obligation to choose a non-lethal alternative for terminating a high-speed chase. The 8-1 ruling in Mullenix v. Luna [Nov. 9] found a Texas state trooper entitled to qualified immunity for fatally wounding the suspect-driver in misdirected shots aimed at disabling the vehicle. "The Court has [ ] never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment,” the unsigned opinion states.
The court is not to blame for other problems highlighted in the symposium. Congress and state legislatures bear responsibility for the mass incarceration that stems from overcriminalization and harsh mandatory minimum sentences; local authorities are to blame for the fines and fees that often land indigents behind bars. But a court that arms police with super powers contributes to the widespread lack of confidence in equal justice under law.
Saturday, November 14, 2015
Supreme Court on C-SPAN, With Warts and All
The public affairs cable
channel C-SPAN marked the halfway point of its series “Supreme Court Landmark
Cases" last week [Nov. 9] with one of the court’s worst decisions
ever: Korematsu v. United
States, the ruling that upheld the World War II internment of
Japanese-Americans.
One of the other decisions covered
in the 12-part series also ranks high on the worst-ever list: Scott v.
Sandford, the pre-Civil War decision commonly known as the Dred Scott
case that barred citizenship for African-Americans, free or slave. At least
three of the other historic cases in the series are also generally viewed as
mistakes, and four of the more recent decisions remain somewhat to very controversial
despite some degree of acceptance for each.
In all, only one of the featured
decisions is universally acclaimed: Brown v. Board of
Education, the unanimous Warren Court ruling that outlawed racial
segregation in public schools. Whether or not intentional, the series serves to
remind viewers that the Supreme Court is far from infallible. “Just as the
country has warts and all,” says executive producer Mark Farkas, “the court has
those as well.”
C-SPAN deserves major props
for the series, telecast on Monday evenings and produced in cooperation with
the National Constitution Center. The 12 cases are presented in chronological
order, starting with the Marshall Court’s power-grabbing decision in
Marbury v. Madison (1803) and ending on Dec. 21 with the
still very contentious abortion rights ruling Roe v. Wade
(1973).
Farkas, a producer at
C-SPAN for 30 years, says the goal of the series “was to be representative of a
number of different kinds of decisions the court has made and to be representative
of our country’s history.” And the watchword, he says, was to convey the cases
in human terms to be fully accessible for a wider audience.
Farkas has no legal
training, nor does the program’s host: Susan Swain, C-SPAN’s president and CEO.
Swain is joined in each 90-minute program by two experts, typically academics
but sometimes practicing lawyers.
For the Dred Scott case,
both experts — George Washington law professor Christopher Bracey and
University of Michigan legal history professor Martha Jones — emphasized
that Chief Justice Roger Taney was not only morally wrong but historically
inaccurate in the court’s main opinion. Taney was wrong, the professors
explained, in stating that blacks had never enjoyed citizenship anywhere in
colonial America or in post-independence United States.
The experts for the
Korematsu case similarly spoke with one voice in condemning the 6-3 decision. Karen
Korematsu, who now directs a civil rights institute that bears her father’s
name, and civil rights attorney Peter Irons, author of Justice at
War, both made clear the ruling was infected with anti-Japanese
racism and gave too much credence to the wartime military authorities.
The chosen experts openly
disagreed, however, about the court’s decision in Lochner v. New
York, the 1905 ruling to strike down a New York law limiting the
hours of bakery employees. The ruling gave its name to a 30-year stretch of
Supreme Court decisions striking laws regulating the economy in ways favorable
to workers and consumers and unfavorable to industry.
Randy Barnett, a Georgetown
law professor and author of Restoring the Constitution: The Lost
Presumption of Liberty, defended the 5-4 decision on the ground that
the New York law was an arbitrary infringement of contract rights. From the
opposite side, Paul Kens, a professor of political science at Texas State
University and author of Lochner v. New York: Economic Regulation on
Trial, echoed the dissenting justices in depicting the decision as
motivated by ideology rather than law.
Implicitly, the series
underscores the court’s complex relationship with public opinion and the
political branches of government. In the Dred Scott case, pro-slavery justices
set themselves against advancing anti-slavery forces. In
Lochner, the court’s majority aligned themselves with
industry and capital as the populist, progressive, and labor movements were
gaining strength.
In Dred Scott and to some
degree in Lochner, the majority hoped to be settling a
conflict that was roiling the nation. Taney thought the decision would settle
the slavery issue once and for all. The Lochner majority saw
the ruling as a way to limit the zeal of the reform-minded. In both cases, the
court misjudged.
The court misjudged in
Korematsu and in a second wartime case featured in the
series. The unanimous opinion by Justice Oliver Wendell Holmes Jr. in
Schenck v. United States (1919) upheld the convictions of
Charles Schenck and Elizabeth Baer for distributing an anti-draft pamphlet
during World War I. Holmes joined with Justice Louis J. Brandeis in dissenting
opinions in the 1920s that laid the groundwork for the more speech-protective
approach now established as First Amendment law. Korematsu
remains on the books, but the recent decisions in Guantanamo-related cases
require some judicial process for wartime detentions.
Still to come are two of
the Warren Court’s criminal law rulings: Mapp v. Ohio
(1960), the exclusionary rule case, and Miranda v. Arizona
(1966), which requires police to inform suspects of their rights before
interrogation. In those cases, the court got ahead of public opinion, as it did
to some extent in Brown and more so in Roe v.
Wade.
The court’s success over
time, however, can be seen in the facts that Miranda is now
a part of the national culture and Roe’s essential holding survives
even if battered. Credit C-SPAN with providing an informative and watchable
exploration of how the court formed those successes — and its notable
failures.
Up next: The
Youngstown steel seizure case (Nov. 16).
Sunday, November 8, 2015
Path Toward Transgender Rights Not Yet Certain
Transgenders gained more visibility during the past two years than at any time since Christine Jorgenson’s transition now more than 60 years ago. Time used a May 2014 cover to proclaim “the transgender tipping point,” while HBO debuted the award-winning comedy series “Transparent” last fall. And “call me Caitlyn” Jenner drew a record-setting TV audience in May as she went up close and personal for two hours with ABC’s Diane Sawyer.
Fear-mongering on transgender rights, however, proved to be politically effective last week in dooming a broad equal rights ordinance in Houston, the nation’s fourth most populous city. An omnibus anti-discrimination measure officially entitled the Houston Equal Rights Ordinance (HERO) went down to defeat in a referendum on Tuesday [Nov. 6] at the hands of 61 percent of the voters.
Public opinion polls demonstrate increasing acceptance of transgenders. A poll conducted after the Caitlyn Jenner broadcast by the British-based market research firm found that a majority of those surveyed — 53 percent — saw being transgender as “morally acceptable.” Still, 31 percent of those surveyed found it unacceptable. A narrow plurality — 41 percent to 39 percent — said they would be “upset” or “very upset” if their child said he or she was transgender.
Social and political conservatives exploited that discomfort in Houston in defeating what they called “the bathroom ordinance.” In a radio ad, the former Houston Astros star Lance Berkman warned, “No men in women’s bathrooms; no boys in girls’ showers or locker rooms.”
Houston’s openly lesbian mayor Annise Parker aptly accused opponents of mounting a “campaign of fear-mongering and deliberate lies.” She and other supporters emphasized that existing law, unchanged by the ordinance, prohibited entering a restroom of the opposite sex with the intent “to create a disturbance.”
Equal rights advocates from the White House on down decried the result, but transgender rights advocates must do more than view with alarm to realize their goal. Gender identity remains a third rail of civil rights legislation; the tipping point may have been reached, but the path to future acceptance and equality is unlikely to be smooth or uninterrupted.
In an unintended coincidence, the Houston referendum came the day after the federal government adopted for the first time the formal position that discrimination on the basis of gender identity is already illegal as sex discrimination. The U.S. Department of Education’s Office of Civil Rights took that stance in an action against a suburban Chicago school district for restricting a transgender girl’s access to the girls’ locker rooms and athletic facilities.
The school district in the suburban village of Palatine had gone at least part of the way in trying to accommodate the transgender girl identified only as “Student A.” The student, born male but self-identified as female from an early age, was allowed to register under a female name and participate on girls’ athletic teams.
The school district’s initial effort to balance her rights with the privacy rights of other girls meant that she had to change in a single-user restroom, away from her teammates. The arrangement caused the girl to be late getting to class and to miss some important team communications.
Now, the school wants the girl to change in the locker room but behind a privacy curtain. Representing the girl, lawyers for the American Civil Liberties Union, argue she should be allowed to make that decision voluntarily.
In a 14-page letter [Nov. 5], the Education Department said that the school’s policy violated Title IX, the provision that prohibits sex discrimination by schools receiving federal assistance. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room,” Catherine Lhamon, the assistant education secretary for civil rights, explained in a statement.
Mara Kiesling, executive director of the National Center for Transgender Equality, says the Illinois case is the exception, not the rule, among school districts nationwide. Most schools are accommodating transgender students with little difficulty or controversy. But she acknowledged that complaints from parents in the Palatine district have reached the center’s office in Washington.
Daniel Cates, superintendent of the 12,000-student school district, told The New York Times that parents had made it clear they wanted “some measure of privacy expectation” in locker rooms. Cates insisted the school system has not violated Title IX but said he hoped to negotiate a settlement with the Education Department, as the department offered in its letter.]
The defeat in Houston should not have come as a surprise. Twice before, Houston voters had gone to the polls to reject gay rights measures, in 1985 and 2001. Houston itself may be a blue, increasingly diverse jurisdiction, but it is still part of Texas, a determinedly red state despite its rapidly increasing Latino population.
In the aftermath, political observers blamed supporters themselves for the defeat. While outspending opponents, the supporters supposedly failed to develop a politically effective message to answer them. Bob Stein, a political scientist at Rice University in Houston, told the Houston Chronicle that supporters should have warned about the potential economic consequences of rejecting the ordinance. “It doesn't take a rocket scientist to figure out that the economic argument was a salient argument,” Stein said.
Politics and law intertwined in the seesaw, decades-long fight for marriage equality. For transgender rights advocates, the problem in Houston needs to be merely a reminder that the path ahead is uncertain however sure they may be of the goal.
Fear-mongering on transgender rights, however, proved to be politically effective last week in dooming a broad equal rights ordinance in Houston, the nation’s fourth most populous city. An omnibus anti-discrimination measure officially entitled the Houston Equal Rights Ordinance (HERO) went down to defeat in a referendum on Tuesday [Nov. 6] at the hands of 61 percent of the voters.
Public opinion polls demonstrate increasing acceptance of transgenders. A poll conducted after the Caitlyn Jenner broadcast by the British-based market research firm found that a majority of those surveyed — 53 percent — saw being transgender as “morally acceptable.” Still, 31 percent of those surveyed found it unacceptable. A narrow plurality — 41 percent to 39 percent — said they would be “upset” or “very upset” if their child said he or she was transgender.
Social and political conservatives exploited that discomfort in Houston in defeating what they called “the bathroom ordinance.” In a radio ad, the former Houston Astros star Lance Berkman warned, “No men in women’s bathrooms; no boys in girls’ showers or locker rooms.”
Houston’s openly lesbian mayor Annise Parker aptly accused opponents of mounting a “campaign of fear-mongering and deliberate lies.” She and other supporters emphasized that existing law, unchanged by the ordinance, prohibited entering a restroom of the opposite sex with the intent “to create a disturbance.”
Equal rights advocates from the White House on down decried the result, but transgender rights advocates must do more than view with alarm to realize their goal. Gender identity remains a third rail of civil rights legislation; the tipping point may have been reached, but the path to future acceptance and equality is unlikely to be smooth or uninterrupted.
In an unintended coincidence, the Houston referendum came the day after the federal government adopted for the first time the formal position that discrimination on the basis of gender identity is already illegal as sex discrimination. The U.S. Department of Education’s Office of Civil Rights took that stance in an action against a suburban Chicago school district for restricting a transgender girl’s access to the girls’ locker rooms and athletic facilities.
The school district in the suburban village of Palatine had gone at least part of the way in trying to accommodate the transgender girl identified only as “Student A.” The student, born male but self-identified as female from an early age, was allowed to register under a female name and participate on girls’ athletic teams.
The school district’s initial effort to balance her rights with the privacy rights of other girls meant that she had to change in a single-user restroom, away from her teammates. The arrangement caused the girl to be late getting to class and to miss some important team communications.
Now, the school wants the girl to change in the locker room but behind a privacy curtain. Representing the girl, lawyers for the American Civil Liberties Union, argue she should be allowed to make that decision voluntarily.
In a 14-page letter [Nov. 5], the Education Department said that the school’s policy violated Title IX, the provision that prohibits sex discrimination by schools receiving federal assistance. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room,” Catherine Lhamon, the assistant education secretary for civil rights, explained in a statement.
Mara Kiesling, executive director of the National Center for Transgender Equality, says the Illinois case is the exception, not the rule, among school districts nationwide. Most schools are accommodating transgender students with little difficulty or controversy. But she acknowledged that complaints from parents in the Palatine district have reached the center’s office in Washington.
Daniel Cates, superintendent of the 12,000-student school district, told The New York Times that parents had made it clear they wanted “some measure of privacy expectation” in locker rooms. Cates insisted the school system has not violated Title IX but said he hoped to negotiate a settlement with the Education Department, as the department offered in its letter.]
The defeat in Houston should not have come as a surprise. Twice before, Houston voters had gone to the polls to reject gay rights measures, in 1985 and 2001. Houston itself may be a blue, increasingly diverse jurisdiction, but it is still part of Texas, a determinedly red state despite its rapidly increasing Latino population.
In the aftermath, political observers blamed supporters themselves for the defeat. While outspending opponents, the supporters supposedly failed to develop a politically effective message to answer them. Bob Stein, a political scientist at Rice University in Houston, told the Houston Chronicle that supporters should have warned about the potential economic consequences of rejecting the ordinance. “It doesn't take a rocket scientist to figure out that the economic argument was a salient argument,” Stein said.
Politics and law intertwined in the seesaw, decades-long fight for marriage equality. For transgender rights advocates, the problem in Houston needs to be merely a reminder that the path ahead is uncertain however sure they may be of the goal.
Sunday, November 1, 2015
NRA Hired Gun Targets Assault Weapons Ban
The Supreme Court may have to decide sometime whether the Second Amendment includes a personal right to “keep” assault weapons equipped with large-capacity magazines in the home and possibly to “bear” them on public streets as well. Two federal appeals courts have said no within the past six months, but the gun lobby’s paid intellectual champion is up in arms over the use of a relaxed constitutional test that he says relegates the Second Amendment to second-class status.
In the more recent of the decisions, the Second U.S. Circuit Court of Appeals on Oct. 19 upheld the assault-weapons bans enacted in New York and Connecticut in the wake of the Sandy Hook School massacre. Earlier, the Seventh U.S. Circuit Court of Appeals in April upheld a similar ban adopted by the Chicago suburb of Highland Park. David Kopel took to the blogosphere a few days after the Second Circuit decision to denounce what he called the “feeble” form of intermediate scrutiny the appeals court applied in upholding the two laws.
Kopel’s credentials need to be noted before proceeding further. His resume has the earmarks of scholarship: Ivy League degrees, adjunct law school professor, “research associate” at the Cato Institute, multiple books, and oodles of articles in law journals as well as general media. He is also research director at the Independence Institute, a Denver-based “think tank” that bills itself as “freedom’s first line.”
Unmentioned on those web sites are the generous sums that Kopel and the Independence Institute have reportedly received over the years from the National Rifle Association (NRA). Writing for The Progressive, the veteran journalist Frank Smith reported back in April 2014 that Kopel had benefited from a total of $1.4 million in grants from the NRA to himself or the institute over the period 2004-2011.
Smyth reported that Kopel acknowledged the funding but said he has no obligation to disclose it. Apparently, the Washington Post and the Post-published blog The Volokh Conspiracy feel the same way: Kopel’s lengthy ID includes nothing about the NRA. Smyth was prompted to write back in 2014 after the New York Times decided to mention the NRA funding in the author ID for Kopel when it published one of his opinion pieces.
Whatever the source of his strongly held views, Kopel identifies the issue that the Supreme Court must answer some day: what level of constitutional scrutiny to apply to laws limiting the Second Amendment right that the court created by a one-vote margin just seven years ago. In two decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the court went no further than to recognize a right to possess handguns inside the home for self-defense.
Gun control advocates rightly criticize the decisions as upsetting a long-held view of the Second Amendment as limited to state militias, just as the prefatory clause seems to suggest. But even if the ruling opened a Pandora’s box, it lifted the lid only slightly. In Heller, Justice Antonin Scalia implied that any number of firearms regulations would still pass constitutional muster, including laws prohibiting the possession of firearms by criminals or the mentally ill or the carrying of firearms in sensitive places such as schools or government buildings.
This is much different from the kind of strict scrutiny applied in First Amendment cases: criminals and the mentally ill have free speech rights, and so do students and visitors to government buildings. So, as precedents, Heller and McDonald point to a constitutional analysis that takes full account of the public’s interest in public safety.
In its ruling in New York State Rifle and Pistol Ass’n v. Cuomo, the Second Circuit acknowledged that the New York and Connecticut laws banning certain semiautomatic weapons with specified features burdened a Second Amendment right. But it said the burden was “not severe” because assault weapons are in less common use than handguns.
The court went on to uphold the bans because assault weapons are “disproportionately used in crimes and particularly in criminal mass shootings.” The three Democratic-appointed judges were unanimous in the decision, written by the veteran judge José Cabranes.
Kopel complained that the court misapplied intermediate scrutiny by taking the government’s position at face value and by failing to consider a “less restrictive” alternative. That approach would have upheld the handgun bans struck down in Heller and McDonald, he said.
The Seventh Circuit’s decision in Friedman v. Highland Park also cited the use of assault weapons in mass shootings and then explicitly left the issue to the legislature, not the courts. For the majority, Judge Frank Easterbrook Jr. depicted Heller as a limited decision and declined to plumb its “ambiguous passages” for meaning. “When there is no definitive constitutional rule,” Easterbrook wrote, “matters are left to the legislative process.” Easterbrook’s fellow Reagan appointee Daniel Manion dissented.
The Supreme Court appears to be in no rush to take on the issue. The Highland Park case has been conferenced three times so far in successive conferences in October. One possibility: the court has decided not to hear the case with one or more justices — Scalia and Clarence Thomas most likely— writing a dissent from the denial; word could come as early as Monday [Nov. 2]. With no circuit conflict, the issue may not yet be ripe, but the justices may also be having second thoughts about just how far they want to go with the newfound Second Amendment.
In the more recent of the decisions, the Second U.S. Circuit Court of Appeals on Oct. 19 upheld the assault-weapons bans enacted in New York and Connecticut in the wake of the Sandy Hook School massacre. Earlier, the Seventh U.S. Circuit Court of Appeals in April upheld a similar ban adopted by the Chicago suburb of Highland Park. David Kopel took to the blogosphere a few days after the Second Circuit decision to denounce what he called the “feeble” form of intermediate scrutiny the appeals court applied in upholding the two laws.
Kopel’s credentials need to be noted before proceeding further. His resume has the earmarks of scholarship: Ivy League degrees, adjunct law school professor, “research associate” at the Cato Institute, multiple books, and oodles of articles in law journals as well as general media. He is also research director at the Independence Institute, a Denver-based “think tank” that bills itself as “freedom’s first line.”
Unmentioned on those web sites are the generous sums that Kopel and the Independence Institute have reportedly received over the years from the National Rifle Association (NRA). Writing for The Progressive, the veteran journalist Frank Smith reported back in April 2014 that Kopel had benefited from a total of $1.4 million in grants from the NRA to himself or the institute over the period 2004-2011.
Smyth reported that Kopel acknowledged the funding but said he has no obligation to disclose it. Apparently, the Washington Post and the Post-published blog The Volokh Conspiracy feel the same way: Kopel’s lengthy ID includes nothing about the NRA. Smyth was prompted to write back in 2014 after the New York Times decided to mention the NRA funding in the author ID for Kopel when it published one of his opinion pieces.
Whatever the source of his strongly held views, Kopel identifies the issue that the Supreme Court must answer some day: what level of constitutional scrutiny to apply to laws limiting the Second Amendment right that the court created by a one-vote margin just seven years ago. In two decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the court went no further than to recognize a right to possess handguns inside the home for self-defense.
Gun control advocates rightly criticize the decisions as upsetting a long-held view of the Second Amendment as limited to state militias, just as the prefatory clause seems to suggest. But even if the ruling opened a Pandora’s box, it lifted the lid only slightly. In Heller, Justice Antonin Scalia implied that any number of firearms regulations would still pass constitutional muster, including laws prohibiting the possession of firearms by criminals or the mentally ill or the carrying of firearms in sensitive places such as schools or government buildings.
This is much different from the kind of strict scrutiny applied in First Amendment cases: criminals and the mentally ill have free speech rights, and so do students and visitors to government buildings. So, as precedents, Heller and McDonald point to a constitutional analysis that takes full account of the public’s interest in public safety.
In its ruling in New York State Rifle and Pistol Ass’n v. Cuomo, the Second Circuit acknowledged that the New York and Connecticut laws banning certain semiautomatic weapons with specified features burdened a Second Amendment right. But it said the burden was “not severe” because assault weapons are in less common use than handguns.
The court went on to uphold the bans because assault weapons are “disproportionately used in crimes and particularly in criminal mass shootings.” The three Democratic-appointed judges were unanimous in the decision, written by the veteran judge José Cabranes.
Kopel complained that the court misapplied intermediate scrutiny by taking the government’s position at face value and by failing to consider a “less restrictive” alternative. That approach would have upheld the handgun bans struck down in Heller and McDonald, he said.
The Seventh Circuit’s decision in Friedman v. Highland Park also cited the use of assault weapons in mass shootings and then explicitly left the issue to the legislature, not the courts. For the majority, Judge Frank Easterbrook Jr. depicted Heller as a limited decision and declined to plumb its “ambiguous passages” for meaning. “When there is no definitive constitutional rule,” Easterbrook wrote, “matters are left to the legislative process.” Easterbrook’s fellow Reagan appointee Daniel Manion dissented.
The Supreme Court appears to be in no rush to take on the issue. The Highland Park case has been conferenced three times so far in successive conferences in October. One possibility: the court has decided not to hear the case with one or more justices — Scalia and Clarence Thomas most likely— writing a dissent from the denial; word could come as early as Monday [Nov. 2]. With no circuit conflict, the issue may not yet be ripe, but the justices may also be having second thoughts about just how far they want to go with the newfound Second Amendment.