Cortelyou Kenney, Fellow

Cortelyou C. Kenney is a Cross-Cutting Legal Projects Fellow.  Before her work at the Center, she was an associate at Wilmer Hale and a law clerk for the Honorable Roger L. Gregory (4th Circuit) and the Honorable Miriam Goldman Cedarbaum (SDNY). She is a graduate of the University of California, Berkeley School of Law and Dartmouth College. She is fluent in Spanish. 

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My Take

New Cases Challenge Women’s Exclusion from Combat

Posted by Cortelyou Kenney, Fellow | Posted on: November 30, 2012 at 05:45 pm

This Tuesday, a group of servicewomen and a non-profit organization filed suit in California against the Secretary of the Department of Defense (DoD), challenging the Department’s prohibition against women in direct ground combat as a violation of the federal equal protection clause. The prohibition is also being challenged in a lawsuit in the District of Columbia. The Center believes the ground combat exclusion, which is not legislative, should be revoked, and all military assignment should be opened to women. Today, women de facto perform the same military jobs as men in many instances without comparable training, recognition, and benefits. They deserve better.

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Tags: Department of Defense, Women in the Military, Military (Women in the Military), Employment | Add new comment

Supreme Court to Decide Whether to Hear DOMA and Prop 8 Marriage Equality Cases on Friday

Posted by Cortelyou Kenney, Fellow | Posted on: November 27, 2012 at 12:14 pm

This Friday, November 30, the Supreme Court will decide whether to hear the so-called marriage equality cases: suits challenging the legality of Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as between one man and one woman at the federal level, and Proposition 8, the California provision banning same-sex marriage there. The Court will announce next Monday whether it will hear any of those cases.

Each of the laws has been struck down by lower courts. The First and Second Circuit as well as a federal district court in the Northern District of California invalidated Section 3 of the DOMA under the federal equal protection clause, while the Ninth Circuit ruled that Proposition 8 was constitutionally impermissible for the same reason.

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Tags: Courts & the Judiciary, DOMA, Issues Before the Courts, LGBT, Same-Sex Marriage, Supreme Court, Supreme Court | Add new comment

Sixth Circuit Strikes Down Michigan’s Ban on Affirmative Action

Posted by Cortelyou Kenney, Fellow | Posted on: November 16, 2012 at 05:38 pm

Yesterday, in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the Sixth Circuit by a vote of 8-7 struck down an amendment to Michigan’s Constitution prohibiting affirmative action, holding that it violated the federal Equal Protection Cause. As a result, the Sixth Circuit found that the admissions policies of Michigan’s public universities, which up until the amendment had used race as a “plus factor,” were permissible under state law.

The Michigan amendment prohibited any consideration of race, gender, and certain other factors, in admissions to public universities, including the individualized admissions practices that give some weight to race that the Supreme Court found constitutional in Grutter v. Bollinger. Yesterday’s majority did not discuss the benefits of race-conscious admissions lauded by the Supreme Court in Grutter, which proclaimed diversity in higher education was a compelling state interest. It also did not address the effect that the prohibition on gender-conscious affirmative action would have on women seeking admission to traditionally male-dominated fields of study like engineering. Rather, the Sixth Circuit’s decision centered on the inequalities that the state amendment introduced into the political process for racial minorities.

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Tags: Courts & the Judiciary, Equal Protection Clause, Issues Before the Courts, Judges & the Courts | 1 comment

Low-Wage Women’s Rights at Stake in Genesis Healthcare Corp. v. Symczyk

Posted by Cortelyou Kenney, Fellow | Posted on: October 26, 2012 at 02:45 pm

Today, the Center filed a friend of the Court brief in Genesis Healthcare Corp. v. Symczyk. This important case will decide whether a defendant in a class action brought under the Fair Labor Standards Act (FLSA)—called a “collective action” under that statute—can end the case by offering the lead plaintiff a settlement for her own claims before any other plaintiffs have had a meaningful opportunity to join the lawsuit. The case involves a suit brought under the FLSA on behalf of nursing home workers, who are predominantly women earning near poverty-level wages.

The FLSA is a landmark law passed during the Great Depression that is designed to protect workers from oppressive wage and hour conditions. The Equal Pay Act (EPA), which outlaws pay discrimination based upon gender, was passed as an amendment to the FLSA in 1963. Both the FLSA and the EPA allow for “collective actions,” where one employee can sue on behalf of herself and other employees whose rights are being violated in the same way. In a collective action, the other employees must “opt in” to participate in the case. The Center believes that collective actions are vital to enforce the FLSA and the EPA and to protect low-wage working women, including women in the nursing home industry.

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Tags: Fair Labor Standards Act (FLSA), Issues Before the Courts, Supreme Court, Supreme Court, Judges & the Courts | 1 comment

Second Circuit Rules DOMA Unconstitutional

Posted by Cortelyou Kenney, Fellow | Posted on: October 19, 2012 at 12:25 pm

This Thursday, the Second Circuit ruled 2-1 that Section 3 of the Defense of Marriage Act (DOMA) violates the Equal Protection Clause of the U.S. Constitution. DOMA defines marriage under federal law as between one man and one woman. The Second Circuit’s ruling continues a recent string of decisions striking down Section 3 of DOMA, which began with the Northern District of California’s ruling in Golinski v. OPM in February and continued with the First Circuit’s ruling in Gill v. OPM. 

In Windsor v. United States, the Second Circuit concluded that laws discriminating against gays and lesbians were subject to “heightened” or “intermediate scrutiny” under the Constitution. According to the Court, heighted scrutiny applies based on the history of discrimination against gays and lesbians and their relative political disempowerment. Heightened scrutiny is the same constitutional standard of review that applies to gender and the Second Circuit here used gender discrimination as an analogy to the discrimination faced by gays and lesbians. Laws subject to heightened scrutiny are presumed to be unconstitutional, unless the challenged legislation is shown to be at least substantially related to an important purpose. In other words, the justification for the law must be “exceedingly persuasive.”

The Second Circuit found that the DOMA failed to meet heightened scrutiny because the purposes given for the law — uniformity at the federal level on marriage, conservation of federal resources, preserving a traditional definition of marriage, and “responsible” child-rearing — were not promoted by the law.

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Tags: Courts & the Judiciary, DOMA, Issues Before the Courts, LGBT, Judges & the Courts | 1 comment