The place to start is with the Constitutional text itself, which is not […]

It’s depressing: Our summer scholarship project(s) may still be incomplete, the deadlines seeming to be rebukes rather than reasonable […]

A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit’s opinion […]

Sexual conversion therapy, also known as reparative therapy or sexual orientation change efforts (“SOCE”) seek to “convert” a patient’s sexual orientation from homosexual to heterosexual (never the reverse). […]

In a 25 page opinion  replete with bolded underlined language, Judge […]

That challenge is linked to her book – – – entitled simply Corruption – – – just published by […]

Reversing […]

That’s an issue one of our CUNY Law alums, Alana Chazan (pictured), just litigated in California.  While California, of course, now recognizes same-sex marriages so that gender should not have been an issue at all, the marriage at issue occurred in Louisiana, a state that does not recognize same-sex marriages.

Superior Court Judge Gould-Saltman, in the Statement of Decision in Miller v. Angel considered the full faith and credit clause implications not only of the Louisiana marriage, but also of the California judgment that the petitioner was male, entered in 1998, years before the 2003 marriage.  In essence, the judge rules, that California judgment was good enough for a driver’s license and it is good enough for a marriage license, arguments that there needed to be a birth certificate notwithstanding.  The judge added that the putative spouse theory had relevance because the parties intended to be married to each other.

Why all the fuss about the validity of the marriage?  There’s an underlying property dispute.

I considered similar issues almost a decade ago in an essay  Reinscribing Normality? The Law and Politics of Transgender Marriage published in the anthology  Transgender Rights edited by Brooklyn College Professor Paisley Currah,  Shannon Minter, and Richard Juang.  (A version also appeared in Hypatia as A Mere Switch or a Fundamental Change? Theorizing Transgender Marriage and is available here).   The article analyzes the cases, their rhetoric, and also the lawyering choices that can pit individual interests against theoretical positions.   And though I don’t generally list my own work on a class syllabus, this is one that I’ve made optional in Sexuality and the Law for many years.

And how nice to get a note with the opinion from one of the former students in the class who used the article to win a case.

Though how odd that such cases are still being litigated.

You’ve most likely heard about the United States Supreme Court’s  divided and divisive opinion in “Hobby Lobby” – – now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell – – – on the last day of the Court’s Term in 2013-2014.  The majority, in an opinion authored by Justice Samuel Alito, held that closely held corporations (or their owner/shareholders) are entitled to a religious exemption from the federal mandate to provide health insurance to employees that includes contraceptive coverage.

[caption id="attachment_91" align="aligncenter" width="300"] image via[/caption]

But what is getting lost in this discussion is that not only is the provision of contraceptive coverage based on federal laws (“Obamacare” and the regulations passed pursuant to it), but so too is the basis for the religious exemption.  The Religious Freedom Restoration Act, RFRA, is the statute interpreted by the Court to provide religious “freedom” to for profit corporations like Hobby Lobby.

Importantly, the decision is an interpretation of the word “person” in the RFRA statute, passed by Congress in 1993.  Equally important, the decision is an application of the requirement under RFRA that a person’s religion be “substantially burdened.”   And perhaps most important, the decision is an application of RFRA’s ultra-strict scrutiny that changed otherwise applicable First Amendment doctrine.  Under RFRA,  the government interest must be compelling and that interest must be effectuated by the “least restrictive means, even if the government action is a religiously neutral one of general applicability.

Given that the Court is simply interpreting a statute – – – and not the Constitution – – – Congress can amend the statute to nullify the Court’s interpretation.  Or Congress could repeal the statute – – – a statute meant to change First Amendment doctrine after all – – – in its entirely and restore the First Amendment.  Indeed, the repeal statute could be called the First Amendment Restoration Act.

I further discuss the option Congress has in a post for the London School of Economics blog. [Update: And here’s more]

Meanwhile, I’ll be more than interested in what New York’s Senator Kirsten Gillibrand has to say.

Imagine this: you’re hired as a director of a program for at-risk youth as part of a CUNY initiative.  When you take a look at the finances, you discover there’s a state legislator  listed on the payroll.  You soon figure out this legislator has never performed any work for the program.  You talk to some administrators, but you are warned by them – – – and then by a university lawyer – – –  that terminating the legislator’s employment could have negative repercussions for both you and the university.  Nevertheless, you do terminate the legislator from the payroll.  She tells people she is going to “get back” at you.
Instead, she’s investigated.  You testify at the grand jury and at her two criminal trials.  She’s convicted.  You’re fired by the same administrator who warned you not to get involved.

Those are the facts, more or less, in Lane v. Franks, decided by the United States Supreme Court.  The Court held that Edward Lane, the employee, did have a First Amendment right not to be retaliated against for his testimony on the criminal trial.  However, the Court held that the administrator – – – Steve Franks, president of the Alabama community college system who fired Lane – – – was not personally liable for damages because Lane’s First Amendment rights were not sufficiently “clearly established” at the time of the termination.

It’s a limited but important victory for the protection of the rights of university and other public employees.

More of my comments about the case and the opinion are on Constitutional Law Professors Blog here and on SCOTUSBlog here.

Dissenting from the denial of certiorari review in Elmbrook School District v. Doe, a case presenting the question of whether a school can hold its graduation in a church building, Justice Scalia had this to say:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

Scalia’s view threatens to reduce the Establishment Clause of the First Amendment to a matter of personal taste.  The Court’s denial of the petition for certiorari, however, lets stand the Third Circuit decision that held the graduation ceremony on a church did violate the Establishment Clause of the First Amendment.

There’s more about the case on the Constitutional Law Professors blog here.

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an […]

Maybe the Court’s opinion is more political than it seems?   Here’s my discussion on the Constitutional Law Professors Blog.

Seattle’s much-heralded raise of the minimum wage to $15 earlier this month has already been challenged.  In a lawsuit by the International Franchise Association, Inc. – – – represented by well-known conservative attorney Paul Clement, there are a raft of challenges including protectionism of local companies (a violation of the “dormant” commerce clause), treating franchised companies “unequally,” and even a First Amendment claim.   I’ve discussed the complaint in more detail on the Constitutional Law Professors Blog here.

Challenges to local minimum wage laws are nothing new.  As an excellent discussion by Steven Levine from CUNY’s La Guardia and Wagner Archives reminds us, in 1964 “Mayor Robert F. Wagner prioritized increasing the minimum wage from $1.25 to $1.50” as part of the war on poverty.  Wagner’s success, however, was short-lived.  The New York Court of Appeals (our state’s highest court) concluded that NYC  “Local Law 1964, No. 45, fixing higher minimum wage rate than State Minimum Wage Act, was unconstitutional.”   The case – – –Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 15 N.Y.2d 604, 203 N.E.2d 652 (1964) – – – affirms the lower courts without even writing an opinion.  There is no dissent and it’s apparently so settled that there is no need for any explanation.

[caption id="attachment_28" align="aligncenter" width="217"] Spinner in a Cotton Mill, New England, by Lewis Hine, 1910[/caption]

But the Seattle lawsuit is not simply concerned with city-state relations.  Instead, most of the claims of the complaint would apply to a similar scheme passed by a state and many would apply even if passed by the federal government. It shouldn’t be surprising that corporations have objections to paying workers what has been called a “living wage.”   Again, this is nothing new.  There’s more about these constitutional issues in the last chapter of my latest book, Dressing Constitutionally, considering slavery, child labor, the garment industry, and contemporary sweatshops.

Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973),  in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a “general diffusion of knowledge” provision.   Yet Vergara turns the focus from state resources to “bad teachers” and can tap into anti-teacher and anti-union and anti-government worker sentiments.

More analysis is available on the Constitutional Law Professors Blog here.

Our Clothing, and Hair, in the Courts

February 10, 2014 | Book Beat
From Colonial collars and Quaker hats to miniskirts and Muslim headscarves, our clothing — and hair — often have become issues for U.S. courts, says CUNY Law School professor Ruthann Robson. In her new book, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, Robson examines nudity cases, saggy pants in schools and recent battles of transgender teens dressing for the prom.

[audio mp3="https://ruthannrobson.commons.gc.cuny.edu/files/2014/06/bookbeat_13.mp3"][/audio]