Courts & the Judiciary

The Second Circuit has confirmed that Quinnipiac University ran afoul of Title IX when it dropped the women’s volleyball team and tried to count the competitive cheerleading team as a sport under Title IX. That doesn’t mean cheer isn’t a great activity or that it’s not athletic; it simply means that cheer is not developed enough at this point to qualify as a varsity sport under U.S. Department of Education guidelines. The court held that cheer did not qualify as a varsity sport because it did not walk and talk like other varsity sports. The cheer team did not conduct any off-campus recruiting, did not compete solely against other varsity teams, and had no progressive playoff system in the post season.

The other big issue the court addressed involves the standards for complying with prong one of Title IX’s three-part participation test. Following Department of Education policy, the court held that QU’s 3.62% gap between female enrollment and participation—which amounted to 38 additional spots needed to provide women with proportional opportunities—was large enough to field an additional women’s team and therefore did not constitute compliance. Read more »

We just heard that the 9th Circuit Court of Appeals has issued a preliminary injunction, stopping the extreme pre-viability ban in Arizona from going into effect pending consideration of the case. This is great news for women in Arizona.

Tuesday, the U.S. District Court of Connecticut joined the Northern District of California, the Southern District of New York, and the First Circuit in holding that Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as between one man and one woman, violates the Equal Protection Clause of the Constitution.

In Pedersen v. OPM, Judge Vanessa L. Bryant concluded that gays and lesbians are entitled to significant constitutional protection because of the history of discrimination against them. She rejected arguments made by a group of Republican leaders of the House of Representatives, who have taken up defending DOMA in the courts after the Department of Justice refused to do so. The Pedersen case involved six same-sex couples and a widower, all of whom had been married legally under the laws of Connecticut, Vermont and New Hampshire, and were denied federal benefits. Judge Bryant declined to apply “heightened scrutiny” to Section 3, because the provision could not survive “under even the most deferential level of scrutiny.” Read more »

Last Wednesday, the Fourth Circuit Court of Appeals (PDF) upheld a district court decision finding that a Baltimore ordinance requiring limited service pregnancy centers, also known as crisis pregnancy centers (CPCs), to post completely factual information stating that they “do not provide or make referrals for abortion or birth control services” violated the CPCs’ right to free speech.

According to the Fourth Circuit, the notice would have been compelled speech that required CPCs “to participate in the City’s effort to tell pregnant women that abortions are available elsewhere as a morally acceptable alternative, contrary to the moral and religious beliefs of the Pregnancy Center.” The majority opinion privileges the beliefs of those who oppose abortion over the rights of women to get accurate information by declaring that a mere factual statement that CPCs do not provide or make referrals for abortion or contraceptive services is also a moral statement and endorsement of the opinion that abortions and contraception should be available.

This is false logic. A factual statement is not an endorsement and, in and of itself, does not carry a moral valence. After all, nothing is stopping a CPC from posting a sign stating that it does not endorse abortions or contraception next to the required notice. This sign could even be five times the size of the notice so that there wouldn’t be any confusion regarding the CPC’s moral position. Read more »

Support the Nomination of Caitlin Halligan

Tell your Senators to support the nomination of Caitlin Halligan to the D.C. Circuit.

This week, Caitlin Halligan, one of the most respected appellate lawyers in the country, was renominated to the U.S. Court of Appeals for the D.C. Circuit. She was originally nominated in September 2010 and her nomination expired after a filibuster in December 2011. Upon her confirmation, she would become only the sixth female judge in this court's 119-year history.

Women shouldn't have to wait for justice because some senators are determined to obstruct: Tell your Senators to support the nomination of Caitlin Halligan, a highly-qualified nominee for the D.C. Circuit.

Ms. Halligan has a broad range of legal experience, including government service, private practice, and academia. She has honed her practice in state and federal appellate courts, and has argued five cases before the Supreme Court. Her many accomplishments are reflected by the unanimous "Well-Qualified" rating she received from the ABA Standing Committee on the Federal Judiciary. She has earned the respect and support of her peers and has been endorsed by a long list of organizations. The National Women's Law Center is proud to support her nomination. Read more »

Following on the heels of Northern District of California Judge Jeffrey White's ruling in Golinski v. OPM in February and the First Circuit's decision in Gill last week, yesterday, a judge on the Southern District of New York ruled in Windsor v. OPM that Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage for the purposes of federal law as between one man and one woman, violates the Equal Protection Clause of the Constitution.

Like those other decisions (as well as Perry v. Brown in the Ninth Circuit, which considered California's state constitutional ban on same-sex marriage), the Windsor decision does not adopt heightened constitutional scrutiny, but nonetheless concludes that DOMA does not satisfy the more searching rationality review appropriate in cases that do not involve routine economic regulations. This is notable because Windsor is the first DOMA challenge in a jurisdiction where the governing circuit court had not previously decided whether or not heightened scrutiny applies to laws that discriminate against LGBT individuals (and indeed, Windsor is one of the cases whose filing prompted Attorney General Holder's February 2011 memo stating that the Department of Justice would no longer defend DOMA's constitutionality). Read more »

As you may be aware, despite over 80 judicial vacancies (35 of which were judicial emergencies), at the beginning of this week the Senate had only confirmed 7 judges in 2012. Yesterday, the landscape changed somewhat. Precipitated by Senate Majority Leader Harry Reid’s filing cloture petitions on 17 district court nominees, Senate leadership agreed to confirm a dozen district court nominees and two circuit court nominees by May 7. The first of those confirmations occurred today, with votes on Gina Groh, nominated to a seat on the Northern District of West Virginia, and Michael Fitzgerald, nominated to a seat on the Central District of California. Judge Groh was confirmed 95-2; Judge Fitzgerald was confirmed 91-6. Read more »

Speaking in Yuma, Arizona on Tuesday, former Supreme Court Justice Sandra Day O’Connor told of her harrowing search for work as a young lawyer recently graduated from Stanford Law in 1952. She called every firm recruiting Stanford graduates, but “not one of them would talk to me. I was female. They didn’t intend that a woman would make an appointment.”

Finally, she interviewed with a fellow female law student’s father, a lawyer in Los Angeles. She thought surely he would give her a chance, but “he said he was impressed but that the law firm had never hired a woman lawyer and that he didn’t see a day when it would.” He offered her a job as a legal secretary instead.

How times change. Today, that very law firm has hired hundreds of women, and the same lawyer supported Justice O’Connor’s later appointment to the Supreme Court.

Justice O’Connor’s difficulties are echoed by many female judges who graduated from law school in the same era and went on to hold high-ranking positions in the federal judiciary. But even though female lawyers have become commonplace in the legal field, it’s a different story when it comes to the judiciary.  Even though women comprise nearly half of all law school graduates, far fewer make it to the federal judiciary. Read more »

Caitlin Halligan, a nominee for the D.C. Circuit Court, is one of the most respected appellate lawyers in the country. She has a broad range of legal experience, including government service, private practice, and academia. She has honed her practice in state and federal appellate courts, and has argued five cases before the Supreme Court. Her many accomplishments are reflected by the unanimous "Well-Qualified" rating she received from the ABA Standing Committee on the Federal Judiciary. She has earned the respect and support of her peers and has been endorsed by a long list of organizations.

This superb nominee has waited over eight months without a vote by U.S. Senators — even though there are three vacancies on the D.C. Circuit. But the wait is finally over.

It's time for a vote: Tell your Senators to support the nomination of Caitlin Halligan for the D.C. Circuit. Read more »

Yesterday afternoon, the Senate voted to confirm Christopher Droney to a Connecticut-based seat on the Second Circuit Court of Appeals. Remarkably, Judge Droney is only the 8th appellate court judge confirmed by the Senate in 2011. Those members of the Senate determined to slow-walk judicial nominees are apparently determined to do so in every conceivable category. With 15 vacancies on the courts of appeal, you would think that all Senators would want to proceed to votes on the four other Court of Appeals nominees ready for a vote, out of, you know, a concern for the administration of justice. Apparently not. Read more »