Today, a number of Senators on the Senate Judiciary Committee delayed a committee vote on the nomination of Loretta Lynch to be Attorney General of the United States. This delay is nothing but baseless obstruction of a nominee so superbly qualified that not one of the Republican-called outside witnesses at her confirmation hearing opposes her confirmation. Senators from both parties have announced their support of Loretta Lynch to be the nation’s leading law enforcement officer, as have the nearly 40 individuals and organizations who have submitted letters to the Committee. Read more »
Good news - the U.S. Court of Appeals for the 5th Circuit just refused to reconsider a panel’s earlier decision to block a Mississippi law that would have closed the state’s only abortion clinic. The law required abortion providers to have admitting privileges at a local hospital and was meant to — and would have — forced the sole clinic in the state to shut its doors. But the panel said the law went too far and was unconstitutional — the full court’s decision not to rehear the case means that the clinic stays open. This is great news for Mississippi women who will continue to have access to abortion in their state.
For those of us in need of some good news for women's health, the D.C. Circuit Court just came through. In the first Circuit Court decision since Hobby Lobby, a unanimous panel of the D.C. Circuit said [PDF] that non-profit organizations that object to providing birth control don’t get out of complying with the birth control coverage requirement of the federal health care law.
Specifically, the non-profit organizations – including Catholic University – were challenging the "accommodation" provided to them. Non-profit organizations that qualify for the accommodation do not have to provide employees with birth control coverage. Instead, they simply have to send a form to HHS or their insurance company saying they object to covering birth control. The insurance company then provides the birth control coverage without cost-sharing directly to the employees and students. In other words, as the court said, the non-profits need only "complete the written equivalent of raising a hand in response to the government's query as to which religious organizations want to opt out…. Other entities step in and fill the gap" to ensure women get the benefit. Read more »
Yesterday, the U.S. Court of Appeals for the Sixth Circuit handed down its decision in DeBoer v. Snyder, [PDF] becoming the first federal appellate court to state uphold bans on marriage between same-sex couples post-Windsor. Instead of addressing the constitutional issues, the majority focused largely on who should decide the issue, insisting that the democratic process, not the federal judiciary, was the appropriate forum through which same-sex couples should obtain their civil rights. In other words, those “laboratories of experimentation” that adopted the bans to begin with should be charged with removing them. This decision begs the question, what is the role of the courts, if not to “say what the law is”—especially when the legal questions involve individual constitutional rights of such grave importance? Nevertheless, according to the Sixth Circuit, the courts should “wait and see” what the fallout is in the states where same-sex marriage is now legal and respect the will of the voters. Sound familiar? That same argument was made, unsuccessfully, by Virginia in Loving v. Virginia, the case that overturned Virginia’s ban on interracial marriage. It was an outrageous proposition then and it is today: don’t we look to courts to be counter-majoritarian? To prevent majorities from oppressing minorities? Read more »
In a forceful decision for the unanimous panel written just nine days after the cases were argued, Judge Richard Posner concluded that the states’ marriage bans violate the Constitution’s equal protection guarantee. Judge Posner wrote that cases present a straightforward question: whether the states “are discriminating against homosexuals by denying them a right that these states grant heterosexuals, namely the right to marry an unmarried adult of their choice.” The court’s analysis, he wrote, “goes to the heart of equal protection doctrine” and “capture the essence of the Supreme Court’s approach in heightened scrutiny cases,” the approach courts use to evaluate whether laws that discriminate based on sex violate equal protection. Read more »
Protection of basic individual rights has had a tough time as of late in the courts. Marriage equality, however, is a happy exception, sweeping through the courts with extraordinary unanimity. The Supreme Court started the trend last June in United States v. Windsor. In Windsor, the Court overturned as unconstitutional Section 3 of the federal Defense of Marriage Act, which prohibited the federal government from recognizing marriages between same-sex couples. Since then, every federal court to decide the constitutionality of same-sex marriage bans has found the state laws unconstitutional. Next up are the rights of same-sex couples in Kentucky, Michigan, Ohio, and Tennessee—the four states over which the Sixth Circuit Court of Appeals has jurisdiction—with five district court cases under review by that court.
In Tennessee, married same-sex couples are looking to have their validly-performed, out-of-state marriages recognized in their home state. In Ohio, one case is seeking to have valid out-of-state marriages between same-sex couples recognized for the purposes of death certificates, and the other case is seeking the same recognition rights for birth certificates. In Michigan and Kentucky, same-sex couples are seeking the right to marry in their states. In all cases, the district courts found the challenged marriage bans and marriage recognition bans unconstitutional under the Fourteenth Amendment. Read more »
Last week, the D.C. Circuit heard oral argument in two challenges to the contraceptive coverage benefit brought by non-profit organizations with religious objections to contraceptives. And, on Tuesday, a Wyoming district court ruled that a group of non-profit organizations raising the same challenge can’t take the benefit away from their employees while the case moves forward. The argument at the D.C. Circuit and the decision by the Wyoming district court show how the courts are responding to employers’ attempts to let religion trump facts and legal responsibilities of the court.
After voting to move forward on her nomination yesterday morning, the Senate scheduled an up-or-down vote on the nomination of Michelle T. Friedland to be a judge on the Ninth Circuit Court of Appeals – for April 28. That is, two weeks from Monday, after the Senate returns from its two-week recess.
This two-week delay came about because Senate Republicans refused to allow the vote to take place before Senators left town, even though the bipartisan procedural vote leaves little doubt that this outstanding nominee will imminently be confirmed to this important court. Read more »
This morning, the Senate voted to allow a confirmation vote on the nomination of Michelle Friedland to the Ninth Circuit Court of Appeals, 56-41. The vote was bipartisan, with Senators Collins and Murkowski supporting the decision to move forward on the nomination. Read more »