Courts

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 »

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 »