Courts & the Judiciary

Yesterday, the Washington Post published an op-ed by former D.C. Circuit Judge Patricia M. Wald. As Judge Wald put it, in short, “The D.C. Circuit has 11 judgeships but only seven active judges. There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates.” Read more »

For forty years, the Supreme Court has held that the government may not impose laws that treat men and women differently based on an ‘interest’ in perpetuating traditional gender roles. The Court should also hold that the government may not decide who is permitted to marry based on traditional gender stereotypes about who men and women should love, the National Women’s Law Center argued in an amicus brief filed today in Hollingsworth v. Perry—the case in which the Supreme Court will decide the constitutionality of Proposition 8, the California ballot measure that overturned the California Supreme Court's ruling that same-sex couples have a right to marry. Tomorrow, the Center will file the same brief in United States v. Windsor, the case before the Supreme Court challenging the constitutionality of the provision of the Defense of Marriage Act (DOMA) that bars the federal government from recognizing marriages of same-sex couples. Read more »

For the second time, the Senate Judiciary Committee voted today to approve President Obama’s nomination of Caitlin Halligan to fill a vacancy on the Court of Appeals for the D.C. Circuit. Ms. Halligan, a talented appellate lawyer, was first nominated in September 2010, and an outpouring of bipartisan support quickly followed from prominent lawyers, law-enforcement officials, women’s legal organizations, and others from around the country. Even so, a minority of Senators insisted on filibustering her nomination, and they have succeeded in blocking it so far.  In the meantime, the number of vacancies on this important court has grown, and now there are an alarming four vacancies on this 11-judge court. Now that the President has resubmitted her nomination, and the Committee has again approved it, it is high time that a confirmation vote is held before the full Senate. Read more »

Peggy Young was a UPS truck driver. When employees at her jobsite needed changes to their job duties because they had a disability, or an on-the-job injury, or even a D.U.I. conviction that prevented them from driving legally, UPS provided it. However, when she asked for light duty in order to avoid heavy lifting for a few months because she was pregnant, her employer refused and forced her onto unpaid leave for the duration of her pregnancy. Unfortunately, last week the Fourth Circuit Court of Appeals held in United Parcel Service, Inc. v. Young, that in doing so, UPS did not violate the Pregnancy Discrimination Act (PDA), despite the PDA’s requirement that employers treat pregnant employees the same as other employees who are “similar in their ability or inability to work.” The court held that taking this language literally would “transform an antidiscrimination statute into a requirement to provide accommodation to pregnant employees” and concluded that Congress did not intend this result. It came to this conclusion even though in passing the PDA, Congress stated, “[W]hen pregnant women are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working.”

The Fourth Circuit’s decision is extremely troubling, but to quote an aptly-titled article on the decision, Pregnancy Bias Fight Not Over, Despite 4th Circ. Ruling. The article notes that because the Americans with Disabilities Act (ADA) was expanded in 2008 to require employers to provide accommodations to workers with temporary disabilities, employers may be “guilty of discrimination for not providing pregnant workers the same accommodations” when they have similar temporary restrictions on their ability to work. Read more »

Yesterday, the Senate confirmed Paul Grimm to the District Court of Maryland by a vote of 92-1. Judge Grimm had been reported out of the Senate Judiciary Committee on voice vote (Senator Mike Lee, who at the time was still protesting President Obama’s recess appointments, was the only senator to vote no) on June 7. Read more »

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. Read more »

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. Read more »

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. Read more »

In what some may see as a modern version of “David and Goliath,” the women of Wal-Mart have fought for over a decade to challenge the discriminatory pay and promotion practices of the mega-retailer, which is located in all 50 states and Puerto Rico and is the largest private employer in the U.S. Last year, adding insult to alleged injury, the Supreme Court denied class certification in Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) – finding that the plaintiffs failed to satisfy the “commonality” requirement for class actions when they failed to provide proof that “[Wal-Mart] operate[d] under a general policy of discrimination.” The decision dealt a strong blow to those who would seek to become modern-day “Davids” – leading NWLC’s Co-President, Marcia Greenberger, to issue the following statement:

"Today’s ruling undermines the very purposes of the class action mechanism and is tantamount to closing the courthouse door on millions of women who cannot vindicate their rights one person at a time. The women of Wal-Mart — and women everywhere — will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace."

The plaintiffs subsequently limited the size of their class by region – new class actions were filed in California and Texas, and complaints were filed with the EEOC in 48 states – and cut out women who held certain positions in response to the Supreme Court decision. Read more »