In yesterday's post I described how there appears to broad support in favor of enacting ENDA – the law that will prohibit employment discrimination on the basis of sexual orientation and gender identity.  In this post I sketch out the provisions of the proposed federal law.

     The heart of the bill is Section 4(a), which provides:

It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual's actual or perceived sexual orientation or gender identity.

     Section 3 of the bill defines "sexual orientation" as "homosexuality, heterosexuality, or bisexuality."  Accordingly, gays, lesbians, bisexuals, and heterosexuals are all protected against job discrimination.  The law defines "gender identity" in the following terms:

"The term 'gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."

     Note also what the bill does not cover:

1.  There is no provision in the bill for a cause of action based on "disparate treatment."  That is, if the employer adopts a neutral policy that has the unintended effect of discriminating against gays or lesbians, that is not prohibited under the bill;

2.  The bill contains specific expemptions for religious organizations and the armed forces.  This law will not require any church, synagogue, or mosque to employ gays or lesbians, nor does it repeal or affect the "Don't Ask / Don't Tell" law that is in place for the military; 

3.  The bill will allow employers to make rules regarding the use of shower and dressing facilities "in which being seen unclothed is unavoidable," and it permits employers to require employees "to adhere to reasonable dress or grooming standards" so long as persons who are in transition from one gender to another are allowed to dress as either gender;

4.  Finally, with respect to the granting of employee benefits, the bill does not require employers to recognize same-sex marriages.  In this connection Sections 8(b) and 8(c) of the bill state:

(b) Employee Benefits- Nothing in this Act shall be construed to require a covered entity to treat an unmarried couple in the same manner as the covered entity treats a married couple for purposes of employee benefits.

(c) Definition of Marriage- As used in this Act, the term 'married' refers to marriage as such term is defined in section 7 of title I, United States Code (referred to as the Defense of Marriage Act).

     ENDA essentially leaves it for each state to decide whether or not employers must recognize same-sex marriages, a position that will no doubt make it easier to secure the enactment of the federal law.  According to this statement by Senator Tom Harkin, Chair of the Senate HELP Committee, twenty-one states already have laws banning employment discrimination on the basis of sexual orientation.  I do not know whether those state non-discrimination laws require employers to recognize same-sex marriages in awarding benefits.

     The Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination on the basis of sexual orientation or gender identity is moving through both houses of Congress.  A similar law in Salt Lake City picked up unexpected support from the Church of Latter-Day Saints.

     The federal Employment Non-Discrimination Act, which would ban employment discrimination against gays, lesbians, bisexuals, and transgender people, has been introduced in Congress with broad bipartisan support.  Here is some background on the bill from the Human Rights Campaign.  In the House, Rep. Barney Frank (D-MA) has introduced H.R. 3017, which has 189 co-sponsors, and in the Senate, Sen. Jeff Merkley (D-OR), has introduced S. 1584, which has 43 c0-sponsors.  On November 5 the Senate Health, Education, Labor, and Pensions Committee held a hearing on S. 1584.  The Chair of the Committee, Senator Tom Harkin (D-IA), released a statement which commences with these words:

"The issue here could not be more simple. We are talking about a fundamental American value – equal treatment for all – a principle that citizens who work hard, pay their taxes and contribute to their communities deserve fair treatment and should not be discriminated against.

"Over the last 45 years, we have made great strides towards eliminating discrimination in the workplace. The Civil Rights Act of 1964 prohibited discrimination on the basis of race, sex, national origin and religion. The Age Discrimination in Employment Act, in 1967, prohibited discrimination on the basis of age. The Americans with Disabilities Act, in 1990, prohibited discrimination on the basis of disability. It is time, at long last, for us to prohibit discrimination on the basis of sexual orientation and gender identity as well. Such discrimination is wrong and cannot be tolerated.

     Rosemary Winters and Peggy Fletcher Stack of the Salt Lake Tribune report that the Church of Latter-Day Saints endorsed a municipal ordinance banning discrimination in employment and housing against persons based on sexual orientation and gender identity.  In an article dated November 11, they state:

At a public hearing Tuesday, church spokesman Michael Otterson expressed strong support for ordinances that, starting in April, will ban discrimination based on sexual orientation or gender identity in housing and employment. Salt Lake City, home to the worldwide faith's headquarters, approved the statutes in a unanimous City Council vote.

     The reporters quoted another LDS official to the effect that the church would support similar state-wide legislation.  The church's position on this question was welcomed by local and national gay rights groups: here is an article on the subject by Michael Aaron of QSaltLake and a reaction from Harry Knox, Religion and Faith Director of the Human Rights Campaign.   

     With the LDS on board, I predict that any remaining opposition to ENDA will collapse, and that it will become law later this year or early next year.  In tomorrow's post I will describe what ENDA will and will not do.

     Voters in Maine and Washington State voted yesterday in referenda on whether to approve or disapprove laws that had been adopted by their state legislatures relating to the recognition of same-sex unions.  In Maine, the voters decided to reject a law that would have recognized same-sex marriage.  In Washington State the voters ratified a domestic partnership law that grants same-sex couples the same legal rights as married couples.

     According to an article by Kevin Miller and Judy Harrison of the Bangor Daily News, by a margin of 53-47 % voters in Maine have chosen to reject the state's same-sex marriage law.   There was popular support for same-sex marriage in cities such as Portland and Bangor, but this was overcome by votes from rural areas of the state and Roman Catholic / Franco-American regions. 

     The legislature had adopted this law and Governor had signed it in May of this year, but opponents placed the measure on the ballot to prevent the law from going into effect.  The Maine law, LD 1020, contained the following definition of marriage:

Marriage is the legally recognized union of 2 people. Gender-specific terms relating to the marital relationship or familial relationships, including, but not limited to, "spouse," "family," "marriage," "immediate family," "dependent," "next of kin," "bride," "groom," "husband," "wife," "widow" and "widower," must be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law or any other source of civil law.

     The Maine law would have recognized same-sex marriages that had been performed in other states:

A marriage of a same-sex couple that is validly licensed and certified in another jurisdiction is recognized for all purposes under the laws of this State.

     And the Maine law contained a provision preserving the religious freedom of religious institutions that chose not to participate in same-sex marriages:

This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution's religious doctrine, policy, teaching or solemnization of marriage within that particular religious faith's tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution. A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

     Isn't it interesting that the foregoing "conscience provision" would have applied not only to members of the clergy but to "any person authorized to join persons in marriage."  I suppose that would include judges and ship captains – and what a contrast to the situation in Louisiana where a justice of the peace who refused to officiate at interracial marriages was recently driven from office.

     In Washington State, by an even narrower margin, voters chose to approve the state's new domestic partnership law that essentially grants gay and lesbian couples all of the same rights that married couples have.  The Secretary of State's office indicates that the ballot measure ratifying domestic partnerships passed with 51% of the vote.  According to an article by Lornett Turnbull, Janet I. Tu, and Susan Kelleher of the Seattle Times, the measure passed by wide margins in King County and the Puget Sound area and was "soundly rejected" in eastern Washington – the same urban-rural pattern that obtained in Maine.

     Like the Maine law, the Washington Law, S. 5688, was adopted in May of this year, and was challenged by voters seeking to overturn the law by way of referendum.  Here is a link to a page of the Washington State Legislature website from which you can access text of the bill and other documents relating to its legislative history.

     One interesting feature of the Washington Domestic Partnerships law is that it applies not only to same-sex couples but also to unions where one of the persons is 62 years of age or older.  I assume that this is for the purpose of preserving people's rights to survivorship benefits under Social Security or other laws or pension plans, but I would have to research this to be sure.  According to Ballot Pedia, here is the official summary of the law:

Same-sex couples, or any couple that includes one person age sixty-two or older, may register as a domestic partnership with the state. Registered domestic partnerships are not marriages, and marriage is prohibited except between one man and one woman. This bill would expand the rights, responsibilities, and obligations of registered domestic partners and their families to include all rights, responsibilities, and obligations granted by or imposed by state law on married couples and their families.

     Here are links to websites from Approve Ref 71 and Protect Marriage Washington, organizations that supported and opposed this measure.

     Yesterday Congress enacted the Matthew Shepard Hate Crimes Prevention Act as part of the National Defense Reauthorization Act for 2010.  This law makes it a federal offense to assault people because of their race, color, religion, national origin, gender, sexual orientation, gender identity or disability.  However, because of constitutional considerations, crimes based on the victim's race, color, religion, and national origin are treated differently than crimes committed because of the victim's gender, sexual orientation, gender identity, or disability.  The law also contains provisions preserving the prerogative of state governments to punish these crimes, and other provisions protecting freedom of speech.

     Sections 4701 to 4714 of the Defense Reauthorization Act contain the Matthew Shepard Hate Crimes Prevention Act, which will add a new section to Chapter 13 of the federal criminal code.  This new law will be codified at 18 U.S.C. Section 249, and the codified version of the criminal law will simply be called "Hate Crime Acts."

     Section 249(a)(1) makes it a federal crime to "willfully cause bodily injury to any person because of the actual or perceived race, color, religion, or national origin of any person."  It is also a violation of this subsection of the Act to attempt to cause bodily injury to someone on account of the victim's real or perceived race, color, religion, or national origin "through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device." 

     Section 249(a)(2) makes it a federal crime to willfully cause bodily injury to someone because of the victim's "religion, national origin, gender, sexual orientation, gender identity or disability."  This subsection applies only if the perpetrator of the act crosses a state line, uses a channel or instrumentality of interstate commerce to commit the crime, uses a weapon that has moved in interstate commerce, interferes with commercial or economic activity that the victim is engaged in at the time of the offense, or otherwise affects interstate commerce.  It is also an offense under subsection (a)(2) if the hate crime occurred in a place that is under U.S. territorial jurisdiction. 

     Why does the law treat hate crimes based on race, color, religion, and national origin differently from hate crimes based on gender, sexual orientation, gender identity, and disability?  The reason is that Congress has broad power under the 14th Amendment to protect people against discrimination based on race, color, religion, and national origin.  Accordingly, subsection 249(a)(1) is adopted pursuant to Congress' power to enforce the 14th Amendment.  The Supreme Court has ruled that Congress has less power under the 14th Amendment to enact laws relating to gender and disability.  Accordingly, subsection 249(a)(2) is enacted pursuant to Congress' power under the Commerce Clause.  In order to be constitutional, these crimes have to have some connection to interstate commerce: the defendant or the victim crossed state lines; the weapon that used moved in interstate commerce; the person committed the crime by using a "instrumentality" of interstate commerce like a telephone or an airplane; or when attacked the victim was engaged in economic or commercial activity.

     Forty-five states currently have hate crimes legislation.  How will the new federal law be implemented to avoid unnecessary duplication of law enforcement efforts?

     The law places no restriction on the power of the federal government to investigate hate crimes, however there is a "certification requirement" before the federal government may bring criminal charges under the Act.  The law states:

(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or his designee, that–

(A) the State does not have jurisdiction;

(B) the State has requested that the Federal Government assume jurisdiction;

(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

     Essentially, the federal government will prosecute hate crimes only if state and local authorities appear unwilling or unable to prosecute the offense.

     A number of provisions were added to the bill in response to concerns that people could be jailed simply for expressing disapproval of gays and lesbians.  The law is only applicable to "violent acts," and the law defines the term "bodily injury" as specifically excluding "solely emotional or psychological harm."  Finally, the law includes the following provisions regarding freedom of speech:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to–

(1) plan or prepare for an act of physical violence; or

(2) incite an imminent act of physical violence against another.

(3) FREE EXPRESSION- Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs.

(4) FIRST AMENDMENT- Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(5) CONSTITUTIONAL PROTECTIONS- Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

     Jim Abrams of the Huffington Post published an excellent summary of the enactment of the law here.  He reports that despite the foregoing provisions protecting freedom of speech Senator Jim DeMint (R-SC) asked whether the Act would

"serve as a warning to people not to speak out too loudly about their religious views."

     Abrams also reports that Tony Perkins, President of the Family Research Council, states that the law is

"part of a radical social agenda that could ultimately silence Christians and use the force of government to marginalize anyone whose faith is at odds with homosexuality."

     DeMint and Perkins need not worry about criminal prosecution.  Hateful thoughts are absolutely protected under the Constitution, and the government may punish hateful speech only when it crosses the line from "advocacy" of violence into "direct incitement" to commit a violent act.  Of course, if DeMint and Perkins believe that they have a constitutional right to plan or conspire to commit acts of violence against gays and lesbians, then they are sadly mistaken. 

     DeMint's and Perkins' actual concern is moral, not legal.  DeMint and Perkins and others who share their opinions believe that by opposing tolerance and equality for gays and lesbians that they are taking a principled stand against immorality and sin.  But despite their efforts society is changing – we are becoming more tolerant and accepting of homosexuality, and gays and lesbians are making steady progress towards legal and social equality.  DeMint and Perkins are in fact worried that people will come to regard their views as hateful.  Too bad.

     This much is obvious.  Keith Bardwell, an elected Justice of the Peace in Louisiana, violated the Constitution when he refused to marry an interracial couple.  People have not paid too much attention to the reason that he refuses to marry people of different races.  That reasoning is instructive.

     Keith Bardwell is Justice of the Peace for the 8th Ward of the Tangipahoa Parish in southeastern Louisiana.  Bardwell made national news when he refused to marry an interracial couple, Beth Humphrey and Terence McKay.  Here is a report from CNN on this matter and an AP report posted at ABC. 

     Bardwell's action was a clear violation of the Constitution.  In 1967 in the case of Loving v. Virginia the Supreme Court ruled that a state law prohibiting interracial marriage was unconstitutional – a violation of the Equal Protection Clause.  In this case, Bardwell was not enforcing a state law, but rather was breaking the law by refusing to marry this couple.  That does not make his act any less a violation of the Constitution.  Whenever public officials take action "under color of law" – that is, in their official capacity – it is state action and the Constitution governs their conduct, whether they are obeying or disobeying state and local laws.   This principle was established in 1879 in the case of Ex Parte Virginia, in which a judge, acting on his own inititive and without support under state law, had deprived blacks the right to sit on juries.  The Supreme Court ruled this act constituted "state action" which is prohibited by the Constitution – that the act was performed "under color of law" even though it was illegal.  The Court stated:

     A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.

     Accordingly, Bradwell's refusal to marry Humphrey and McKay was a violation of the Constitution.

     What has not received as much attention are the reasons that Bardwell gave for refusing to marry interracial couples.  He claims that he is not a racist – he is just thinking of the children.  Here is the explanation that he gave to the Associated Press, according to this article by Mary Foster:

I'm not a racist. I just don't believe in mixing the races that way," Bardwell told the Associated Press on Thursday. "I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else."

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

Bardwell said he has discussed the topic with blacks and whites, along with witnessing some interracial marriages. He came to the conclusion that most of black society does not readily accept offspring of such relationships, and neither does white society, he said.

"There is a problem with both groups accepting a child from such a marriage," Bardwell said. "I think those children suffer and I won't help put them through it."

If he did an interracial marriage for one couple, he must do the same for all, he said.

"I try to treat everyone equally," he said.

     To their credit, both Governor Bobby Jindal and Senator Mary Landrieu called for Bardwell to be removed from office, as well he should be.  But wouldn't it be nice if they and other elected officials were to realize that the very same argument that Bardwell levels against interracial marriage is being raised against same-sex marriage – that a common reason that is given for preventing gays and lesbians from marrying is to protect their children from mental confusion or social stigma.  See for example the interview by Larry King with James Dobson, founder of the organization Focus on the Family, on March 2, 2002, where Dobson says that a gay couple cannot be a family, and in which he explains that the principal reason that he believes that gays and lesbians should not be permitted to marry or adopt children is for the sake of the children. 

     It is indeed wonderful to listen to people who "care about the children" explain why the children's parents shouldn't be allowed to marry – how much better for children if their families are not recognized by the law, if the laws of marriage and divorce do not govern their parents' relationship, if the children themselves are regarded as "illegitimate" or without a second parent altogether rather than the lawful children of a committed couple.  What humanity, what compassion, what tender concern!  One also has to admire the mental gymnastics that, on the one hand, condemns a couple to hell and damnation (or at least legal limbo) for the kind of sexual relationship that they have, and on the other extends such tender mercy to that couple's children – even though by virtue of that "mercy" the children must suffer the denial of the rights and benefits of being part of a lawful family.

     The extent and scope of slavery and discrimination against blacks in this country far exceeds the nature of discrimination against gays and lesbians.  But in this instance, from the perspective of a little child whose parents are not allowed to marry, there is no difference whatsoever.

     On Saturday evening President Obama delivered a major address on gay rights.  The principal points he made are set forth below.

     President Obama spoke before the Human Rights Campaign, a gay rights advocacy group, on Saturday evening.  Here is a link to the text of the speech.  The principal points that he made are summarized below.

1.  He expects that Congress will soon approve the Matthew Shephard hate crimes bill, which he will sign into law.  This law will make it a federal criminal offense to assault someone because of the sexual orientation of the victim.

2.  He promised to obtain the repeal of the "Don't Ask, Don't Tell" law, stating, "I will end Don't Ask, Don't Tell."  The repeal of this law would allow gays and lesbians who are married or who otherwise choose to disclose their sexual orientation to serve in the military.

3.  He has called on Congress to repeal the Defense of Marriage Act and to enact the Domestic Partners Benefits and Obligations Act.  The Defense of Marriage Act prohibits the federal government from recognizing same-sex marriages, including those that have been performed in states where such marriages are legally valid.  This means gay and lesbian federal employees who have entered into same-sex marriages which are recognized as valid under state law are nevertheless denied employment benefits which are extended to the spouses of federal employees in heterosexual marriages.  Similarly, the present law prevents gay and lesbian married couples from filing joint returns under the federal income tax or from qualifying as "surviving spouses" under Social Security.  All of these distinctions would be wiped away if the Defense of Marriage Act is repealed.  In addition, the Defense of Marriage Act expressly authorizes the States to refuse to recognize same-sex marriages performed in other States.  The repeal of the Defense of Marriage Act, by itself, would not force the States to recognize the validity of same-sex marriages performed elsewhere – the courts would still have to decide whether the States have the power to refuse to do this under the Full Faith and Credit Clause of the Constitution.

4.  The President stated that he supports the passage of a comprehensive bill that will prohibit employment discrimination on the basis of sexual orientation.  It is significant that he supports the broader version of this bill that would protect bisexuals and transgender persons as well as gays and lesbians from acts of discrimination. 

     What I found most significant in the President's speech was his repeated message that this is not simply a legal matter, but a moral one – that discrimination on the basis of sexual orientation must be addressed not only in the legislatures and the courts, but our homes and communities.  Two passages in particular struck this theme.  The President said:

If we are honest with ourselves we'll admit that there are too many who do not yet know in their lives or feel in their hearts the urgency of this struggle. That's why I continue to speak about the importance of equality for LGBT families — and not just in front of gay audiences. That's why Michelle and I have invited LGBT families to the White House to participate in events like the Easter Egg Roll — because we want to send a message. And that's why it's so important that you continue to speak out, that you continue to set an example, that you continue to pressure leaders — including me — and to make the case all across America.

     And in closing, the President stated:

Tonight, somewhere in America, a young person, let's say a young man, will struggle to fall to sleep, wrestling alone with a secret he's held as long as he can remember. Soon, perhaps, he will decide it's time to let that secret out. What happens next depends on him, his family, as well as his friends and his teachers and his community. But it also depends on us — on the kind of society we engender, the kind of future we build.

I believe the future is bright for that young person. For while there will be setbacks and bumps along the road, the truth is that our common ideals are a force far stronger than any division that some might sow. These ideals, when voiced by generations of citizens, are what made it possible for me to stand here today. These ideals are what made it possible for the people in this room to live freely and openly when for most of history that would have been inconceivable. That's the promise of America, HRC. That's the promise we're called to fulfill. Day by day, law by law, changing mind by mind, that is the promise we are fulfilling.

     In a previous post I described the New Haven firefighter case and Judge Sonia Sotomayor's participation in it as a member of the Second Circuit Court of Appeals.  In this posting I will analyze yesterday's 5-4 decision of the Supreme Court reversing the Court of Appeals' decision in that case.  One aspect of this case particularly intrigued me.  As an educator I was very interested in the fact that the type of test that was administered – multiple choice versus oral exams – resulted in different people and different groups doing well, and I look forward to hearing your opinions about the best way to test for leadership positions in the firefighting profession.

     The decision of the Supreme Court in Ricci v. DeStefano, including the concurring and dissenting opinions, is 93 pages long.  I will try to condense the reasoning of the judges from the different opinions but I am sure to leave out many important points. 

     New Haven hired an Illinois company, IOS, to draft and administer the firefighter examinations for promotion to captain and lieutenant.  Under union rules, 60% of the test score had to be based upon a written examination and 40 % from an oral examination.  The written test that IOS constructed consisted of 100 multiple choice questions based upon training manuals and other materials. The oral examinations, also managed by IOS, were conducted by panels selected from 30 high-ranking firemen from out-of-state.

     77 candidates (43 whites, 19 blacks, and 15 hispanics) took the lieutenant examination, and all 10 of the persons who became eligible for promotion to captain were white.  41 candidates (25 whites, 8 blacks, and 8 hispanics) took the captain examination, and of the 9 persons who became eligible for promotion to captain 7 were white and 2 were Hispanic. If the tests had been weighted differently – if the multiple choice test had comprised 30 % of the final score and the oral examination had counted for 70%  – then 3 black candidates would have qualified for promotion to lieutenant or captain.

     Because the test results had such an overwhelmingly disparate impact on blacks the City canceled the test results and intended to develop another means of evaluating firefighters for promotion.  The firefighters who had qualified for promotion under the test sued the city.  The federal District Court ruled in favor of the City and a panel of the Second Circuit Court of Appeals – Judge Sotomayor and two other judges – affirmed the decision of the district court in a very brief opinion in which the court relied on precedent previously handed down by the Second Circuit (the Hayden case).  One of the plaintiffs in that other case, Mr. Hayden, recently submitted a comment on the other thread.  

     Yesterday the Supreme Court reversed the decision of the District Court and the Second Circuit  and entered judgment for the plaintiffs, the New Haven firefighters who had qualified for promotion on the tests.   The plaintiffs raised two issues.  First, they claimed that when it canceled the test results the City violated Title VII – a federal civil rights statute – in that the City was treating them differently because of race.  Second, they claimed that even if the City's action was legal under Title VII it was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

     Justice Kennedy wrote the opinion for the five justices of the majority.  The City had contended that it had not only the right, but the duty, under Title VII, to cancel the test results, because of the danger that the test itself was unfair to racial minorities.  If an employment test has a racially disparate impact the employer has the burden of proving two facts: that the test was "job related," and that there was no other employment test that would be just as accurate but that would have had a smaller impact on minorities.  Justice Kennedy agreed that under certain circumstances the City had the legal right to abrogate the test results, but he established a fairly high standard for the City to meet.  He ruled before a city can throw out the results of an employment test it has already administered it must have a “strong basis in evidence” to believe that test results that have a disparate impact are not job related or that there is an alternative employment test that would have had less disparate impact that could have been used.  The Court adopted this standard as an interpretation of Title VII, the statute, and it did not reach the question of whether or not the city’s decision violated the Equal Protection Clause. The Court concluded:

Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

     Justice Scalia’s concurring opinion (starting at page 39 of the pdf copy of the case) suggests that the “disparate impact” provision of Title VII itself is unconstitutional.  He thinks that when the law forbids the use of employment techniques that have a racially disparate impact the law is encouraging employers to discriminate on the basis of race.  No other justice joined Justice Scalia's opinion. 

     Justice Alito, in his concurring opinion (starting at page 42 and joined by Justices Scalia and Thomas) goes further than Justice Kennedy but not as far as Justice Scalia in condemning the City's decision to rescind the test.  He comes to the conclusion that a reasonable person could have found that the real reason that the City reversed the test results was simple racism – that the City was responding to political pressure from blacks and that their stated reason to comply with Title VII was simply a pretext.  Accordingly, he thought that this was an additional reason to rule against the City.

     Justice Ginsburg wrote a dissenting opinion (beginning at page 54) for four members of the Court – herself and Justices Stevens, Souter, and Breyer.  She says that the majority opinion “leaves out important parts of the story,” including the history of racial discrimination in the firefighting profession (in New Haven in the early 1970s racial minorities comprised 30 % of the city’s population but only 3 % of the firefighters) – that the white candidates in this case had greater access to study materials because they had relatives in the department – that other cities use different tests that have less racially disproportionate impact – and that multiple choice tests may not be the best way to evaluate leadership capability in the field.  In particular, the dissenters thought that the City of New Haven acted in good faith when it threw out the test results.  The dissenters found that there was substantial evidence that the City was worried that it would not be able to defend the validity of the test if the black firefighters brought a suit under Title VII for "disparate impact." 

     That's the basic problem in this case.  If the City hadn't cancelled the test results, it was potentially vulnerable to a "disparate impact" suit under Title VII from the black firefighters.  When it did cancel the test results, the City was sued by the white and hispanic firefighters for "disparate treatment" in violation of the same law.  In light of that problem, the precise legal standard governing the City's action makes a big difference.  Under the decision of the majority, the City must have "strong evidence" that the test is not job related before it can cancel the results.  The dissent would let the City cancel the results so long as it acts in "good faith."  From the City's perspective the decision of the majority in the Ricci case puts them on the horns of a dilemma.  If a test is administered that has a racially disproportionate impact the City has the burden of proving to black candidates that the test was fair – but it can't cancel the test unless it has strong evidence that it was not fair.  After this case I wouldn't want to sit on a City Council trying to guess how a court two or three years in the future was likely to evaluate the fairness of the test.  Of course, if I were a candidate for promotion I wouldn't want to have to study for a test whose results could be easily thrown out.

     As a last thought, back to the question posed in the title of this piece.  Are multiple choice tests or oral examinations better for evaluating leadership capability in a field like firefighting?  Do you think that the City had a decent argument that the 60-40 weighing (60 for the written portion, 40 for the oral) was, in hindsight, a mistake, and that more reliance should be placed on the oral exams?

We're honoring Native Americans. Really.

Spring training got into full swing this week.  For most of my adult life, the return of baseball was like a ray of sunlight breaking through grey skies because I love to watch and score the game.  But since I moved to Cleveland four years ago, the return of baseball has left me tense–dealing with the conflict between my love of the game and the image of Chief Wahoo.  At times like these, I am repeatedly reminded of a poster I saw in Sports Illustrated when I was in grade school that had pictures of fictitious and patently offensive mascots for teams named the "New York Negroes" and the "Boston Jews," along with those of the Cleveland Indians and Washington Redskins.  At the bottom of the poster it read: "If any one of these is offensive to you, then they all should be."  I have yet to hear a good explanation for why that statement is not correct.

None of which is to say that I don't sympathize with fans of the Indians who get defensive on this point.  There is the simple conscious or unconscious equation that: (1) I've been wearing Chief Wahoo gear my whole life; (2) I'm not a racist; so, (3) Chief Wahoo can't be a racist image.  There is also the sense that there should be one place in the world where we should be free from the wagging finger of the "political correctness police."  For many, that "place" is sports.  We work hard, struggle to make end meets and be good people–is it really too much to ask that we be allowed to watch our home team in peace?  I can sympathize with both these sentiments.  But my short response to them is that we are called to be better.  One of the great things about humans is that they have the capacity to reconsider deeply held beliefs.  And, when the time is right, they can stop defending the indefensible.

And speaking of being better, I think I know just where to start.  When I think of Cleveland and northeast Ohio I think of a place where people suit up and show up for work and greet you with a smile in spite of high crime, foreclosures, and winters that would make Mr. Freeze look for warmer climes.  There is a spirit here that refuses to give up even in the face of the cruelest jokes or harshest criticisms.  I am currently in my fourth year at the University of Akron School of Law, and I can tell you with complete conviction that every person on our organizational chart is committed to being of maximum service to our students, the law school, and the communities–local, national, and global–that we are connected to.  There really is a "Spirit of Ohio" and I would love to see the team that plays the most games in Cleveland each year have a name and mascot that reflect that spirit–as opposed to one that leads to children holding signs that say, "I am not a mascot."

Which leads me to the subject of this post: Does Chief Wahoo deserve an antitrust exemption?  Professor Mitchell Nathanson recently posted a paper that,

examines the relationship between Major League Baseball (MLB) and the law and discusses how it has evolved that MLB has become unofficially exempt from federal law on a wide range of issues due to its unique status within American society. Although its antitrust exemption is well-known, MLB has, in practice, not been subject to the forces of federal law in many other contexts as well, setting it apart from most other corporations and organizations – even other professional sports leagues such as the NFL, NHL and NBA. . . . .  From its inception in 1876 to the present, MLB has been, in effect, an extra-judicial entity, a society unto itself, answerable to no one in all but the most extreme circumstances.

This made me wonder whether the United States government should be bestowing such benefits on an organization that profits from the use of a racist image like Chief Wahoo.  To believe that it shouldn't does not even require you to believe that Chief Wahoo is in fact a racist image.  You would just have to accept that there is a significant amount of controversy surrounding the image and that the federal government shouldn't be "taking sides" in the controversy.  (Prof. Nathanson argues that the government's preferential treatment of major league baseball is rooted in judicial and legislative acceptance of the "baseball creed," which states that "baseball contribute[s] to individual and public welfare by 'building manliness, character, and an ethic of success.'")  You also would not have to worry about infringing on the individual liberty of MLB and the Cleveland Indians because you would not be prohibiting the use of Chief Wahoo as a mascot, you would merely be declining to bestow special federal treatment so long as they chose to keep the Chief.  This is not unlike Title IX, which does not prohibit sex discrimination in education–it simply ties the receipt of federal funding to compliance.

Joe Posnanski, sports columnist and former Clevelander, put it like this:

Wahoo is an inherently racist symbol.  Nobody could really deny this.  Nobody could look at that grinning mug and say, "No, it's really a flattering portrayal of Native Americans, who were conquered, nearly wiped off the planet by our ancestors and then forced to live on reservations."

….

The only reason Chief Wahoo is around is because Native Americans don't have a strong enough voice in this country to put a stop to it.  When Native Americans protested at the 1997 World Series, they were mostly laughed at.  Three were arrested.  Is this really the kind of country we want to be?  And for what?  To stand up for our inherent rights to enjoy a racist sports logo?

I love Cleveland. I love the Indians and I even love Wahoo in a weird way because it is such a part of my childhood.  But it is not just time to get rid of Wahoo, it is way, way past time.  I don't think this is the biggest problem facing the world, or even the 54,993,287th biggest problem facing the world.  I don't care about political correctness either.  No.  It's just wrong.  Very wrong.  Get rid of it.  The fewer wrong things in the world, better.

At a time when there is much wailing and gnashing of teeth surrounding the message our children are getting from baseball regarding steroids, maybe we can also reconsider the message of Chief Wahoo.  After all, newly appointed Attorney General Eric Holder recently "described the United States … as a nation of cowards on matters of race, saying most Americans avoid discussing unresolved racial issues," and "urged people of all races to use Black History Month as a chance for frank talk about racial matters."

So, consider yourself urged.

P.S.–In the interest of full disclosure: I am a Yankees fan.  I realize some of you may dismiss everything I've written to this point on that basis alone.  But I hope you won't.

The evidence

Yes, it's the Associated Press v. Shepard Fairey. Turns out that the famous poster by artist Shepard Fairey (is that a great name or what?) was confessedly based on a photograph by freelance photographer Mannie Garcia.  The AP is claiming that the poster violates their copyright in the photo.

AP made the headlines by making the claim without actually filing a lawsuit. Now Fairey has sued AP preemptively, trying to get a court to determine that his use and alteration of the photo came under the "fair use" exception to the general prohibition on copying protected work. Predictably, at least some photographers think the poster definitely infringes the photographer's rights. Others think the poster is sufficiently different from the photo to make it a fair use. Various opinions here and here.

Of course, the whole claim is premised on AP owning the rights to the photo, which many have assumed is true. However, now it seems that the photographer is claiming he owns the rights, not AP. Stay tuned…

On Wednesday, the military’s highest court on war crimes prosecutions gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.

Yesterday, President Obama signed his first legislative action, endorsing the Fair Pay Act intended to give workers more time to sue in court for pay discrimination based on sex or race.  The new law passed by Congress, the “Lilly Ledbetter Fair Pay Act” reverses the Supreme Court decision in Ledbetter v. Goodyear which held that the 180-day statute of limitations for pay discrimination cases begins to run from the time of the first initial pay decision.  That rule meant that Lilly Ledbetter, a manager at a Goodyear plant in Alabama for 19 years, could not sue for her unequal pay that continued up until she filed suit, but which first began 19 years ago.  The Court was sharply divided, with Justice Alito writing the opinion for the conservative majority of 5.  Justice Ginsburg wrote the dissent, noting that that such pay disparities are “often hidden from sight.”  In signing the new legislation, the President cited Census Bureau figures demonstrating that women still earn about 78 cents for every dollar men earn for doing equivalent jobs, and the disparity is even greater for women of color.  Michelle Obama’s first official First Lady function was a luncheon yesterday for Ledbetter as the figurehead of the equal pay movement: “She knew unfairness when she saw it, and was willing to do something about it because it was the right thing to do—plain and simple.”

Goodyear issued a statement vehemently denying that it had discriminated against Lilly Ledbetter, saying that she was paid the same as similar male workers at the plant.  They criticized Ledbetter for ignoring Goodyear’s policy of reporting concerns about discrimination and suing only after she retired.  Ledbetter claims she did not know about the pay discrimination until then, which she discovered inadvertently when a co-worker’s paycheck ended up by mistake in her pay envelope.  Ledbetter was making $3,727 per month, while men doing the same job were paid $4,286 to $5,236 per month. Ledbetter filed a complaint with the EEOC and was then assigned to lift heavy tires, which she felt was retribution.  A jury originally awarded her $3.3million, which was later reduced to $300,000.  Opponents of the Fair Pay Act claim that the law will encourage frivolous lawsuits.  However, the Fair Pay Act simply reinstates the longstanding time rule that was in place prior to the Supreme Court’s 2007 decision in Ledbetter.  Ledbetter herself will not be able to benefit from the new law due to the Supreme Court’s conclusive decision in her case and her retirement (and thus cessation of pay) from Goodyear. 

     On November 4 California voters adopted Proposition 8, an amendment to their state constitution which simply states, "Only marriage between a man and a woman is valid or recognized in California."  Opponents of the measure contend that it was adopted in an unconstitutional manner because the California Constitution provides that while "amendments" to the constitution may be adopted by a majority of the people, "revisions" must also be approved by two-thirds of each house of the state legislature.  It is not clear, however, whether Proposition 8 constitutes a revision or an amendment to the California constitution.  Furthermore, insofar as it refuses to recognize same-sex marriages performed in other states, Proposition 8 could be challenged on the ground that it violates the "Full Faith and Credit Clause" of the Constitution which requires the States to give "full faith and credit" to the laws and judicial proceedings of other states, or it could be challenged on the ground that by denying the same marriage rights to gays and lesbians as it does to hetersexual couples the amendment violates the Equal Protection Clause of the Constitution of the United States.  However, constitutional scholar Larry Tribe has expressed the opinion that neither of these challenges is likely to be successful at the present time.  But there is one other constitutional argument that opponents of the measure might raise – and it is one that I think would be likely to work, in light of the current makeup of the United States Supreme Court – and that is a First Amendment challenge to Proposition 8.

     I do not mean to suggest that Proposition 8 directly affects Freedom of Expression or Freedom of Religion.  Instead, I would argue that Proposition 8 takes away the equal rights of gays and lesbians to participate in the political process in order to gain the right to marry.  Heterosexual couples are free to petition the legislature to recognize their marriages as valid.  After the adoption of Proposition 8, gays and lesbians may not.  Propostion 8 deprives gays and lesbians of the opportunity to persuade the California legislature to allow them to enter into the institution of marriage. 

     There is precedent that supports the argument that the people of a state may not enact a state constitutional amendment that denies gays and lesbians the right to seek the same rights from the state legislature that other people have.  In Romer v. Evans (1996) the Supreme Court ruled that an amendment to the Colorado Constitutional was unconstitutional because it denied gays and lesbians certain political rights.  The Colorado measure was adopted after several cities and state agencies adopted measures prohibiting discrimination against gays and lesbians in employment, housing, education, and health care.  In reaction to these reforms, the people of the State of Colorado adopted Amendment 2, a state constitutional amendment which prohibited cities, state agencies, and even the state legislature from enacting nondiscrimination legislation.  The United States Supreme Court struck down Amendment 2 on the ground that a state constitution may not make it more difficult for one group of people to obtain from the legislature the same rights as another group of people.  In the course of his opinion for the 6-3 majority, Justice Anthony Kennedy wrote:

The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

     Justice Kennedy explained how gays and lesbians were being treated differently:

Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution ….

     Justice Kennedy articulated the following general principle in defense of the equal right to seek protection under the political process:

A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

      The foregoing argument does not contend that gays and lesbians have a constitutional right to marry.  It simply states that they have the equal First Amendment right to gain the right to marry through the political process.  If they can persuade a majority of the state legislature to grant them the same privilege as other people have to enter into marriage, then they must be permitted to marry, and the people of the state may not prevent this through the adoption of a state constitutional amendment.

     The use of state constitutional amendments to prohibit state legislatures from granting equal rights is an old one.  After the Virginia legislature debated abolishing slavery in January and February of 1832, the southern states adopted amendments to their state constitutions making it impossible for their state legislatures to enact laws abolishing slavery or even allowing voluntary emancipation or manumission of slaves.  The purpose and effect of these state constitutional amendments was to make it impossible for the southern states to resolve the question of slavery through the political process.  In reaction to these state constitutional amendments, Abraham Lincoln delivered his famous "Hundred Keys" speech of June 26, 1857.  Contrasting the generation of the Revolution, who had considered slavery to be a moral wrong and a social evil, to the contemporary generation which had enacted state constitutional amendments protecting the institution of slavery, Lincoln stated: 

In those days, as I understand, masters could, at their own pleasure, emancipate their slaves; but since then, such legal restraints have been made upon emancipation, as to amount almost to prohibition. In those days, Legislatures held the unquestioned power to abolish slavery in their respective States; but now it is becoming quite fashionable for State Constitutions to withhold that power from the Legislatures. In those days, by common consent, the spread of the black man's bondage to new countries was prohibited; but now, Congress decides that it will not continue the prohibition, and the Supreme Court decides that it could not if it would. In those days, our Declaration of Independence was held sacred by all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal, it is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it. All the powers of earth seem rapidly combining against him. Mammon is after him; ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.

     The institution of slavery that Lincoln fought is not comparable to the denial of marriage to gays and lesbians by our society,  but the principle that Lincoln and Justice Kennedy so eloquently articulated is the same.  State constitutional amendments should not be used to prevent any group of people from seeking the same rights as other people through the political process.

I was a poll observer on election day. I saw:

One poll worker who called everybody "baby," as in: "Have you ever voted before, baby? Well, sweetie, you just fill out the bubble for the person you want, OK baby? But don't write anybody's name down there where it says 'write-in,' baby, because then you're voting twice. OK, baby?"

Lots of people who filled in the bubble and then also wrote in Obama and Biden. The machine spits out their ballot and they have to start all over with a new ballot.

One polite young man who had voted in the primary but was no longer on the rolls. We called the Board of Elections and they had canceled his registration due to a felony conviction on July 1. No notice, no opportunity to re-register. He is in fact eligible to vote as long as he is not incarcerated.

One Hispanic couple who didn't have any idea they had to register in advance. They couldn't vote.

Many people who were at the wrong precinct. I think we caught most of them because we had internet access at the library where this polling location was, and between my laptop and two other outside volunteers, we were able to find where people were supposed to go vote, rather than having them cast a provisional ballot at the wrong precinct, which would not have been valid.

One person who had no ID, only the last four digits of her Social Security number, which should have entitled her to vote provisionally. I had to rather firmly persuade the Presiding Poll Judge not to check the box that says she has to come back to confirm her identity within 10 days in order for her vote to count.

Poll workers very prone to just issue a provisional ballot at the drop of a hat–which are less likely to get counted, due to technical errors in filling out the required form.

A half-hour to 45-minute wait right when the polls opened at 6:30, but no lines at all at the usual rush time, 5 to 7:30 close. We were worried about turnout. The tentative summary currently shows that this precinct had 108 percent turnout, which can't be right.

Lots of first-time voters.

A friendly, helpful environment, even with the Republican observer there. (In Ohio, we have bipartisan rather than nonpartisan observers–I was appointed by Barack!)

Summit County's 57-40 margin and 45,000 vote edge contributed greatly to Ohio's 200,000 vote margin for Obama.

     The fifth and final type of argument under the Constitution is a policy argument.  Policy arguments are fundamentally different from arguments based upon text, intent, precedent, or tradition.  The four standard types of arguments are grounded in the past, while policy arguments look to the future.

     Policy arguments have an inherently different structure than the other types of legal arguments.  Every policy argument consists of two steps – a predictive statement and an evaluative judgment.  First, you must predict what the consequences of interpreting the Constitution one way or another will be, and second, you must evaluate whether or not those consequences are or are not consistent with the underlying values and purposes that the Constitution serves.

     Policy arguments based in law are inherently different from policy arguments based on politics in the following sense.  A member of the legislature is free to select any goal whatsoever and to adopt any law that will tend to achieve that goal.  A judge, on the other hand, must identify what the purposes of the law are in order to apply the law in a manner that is consistent with those purposes.

     Policy arguments entered our law relatively slowly.  At the end of the 19th Century and beginning of the 20th Century leading American judges such as Oliver Wendell Holmes, Louis Brandeis, Learned Hand, and Benjamin Nathan Cardozo led the way in a movement called "Legal Realism."  In 1908 Louis Brandeis submitted a brief to the United States Supreme Court in support of a state law establishing minimum wages and maximum hours for women workers.  The brief consisted of two pages of standard legal argumentation and over ninety pages of summaries of social science studies demonstrating the devestating effect of long hours and low pay on women and their families.  This type of brief is now referred to as a "Brandeis brief," and it is embematic of the new method of legal analysis that entered our law at that time.  In explanation of his style of legal argumentation, Brandeis wrote:

     "In the past the courts have reached their conclusions largely deductively from preconceived notions and precedents.  The method I have tried to employ in arguing cases before them has been inductive, reasoning from the facts."

     Benjamin Cardozo rose through the ranks of the New York State courts and became famous for his many opinions that developed and modernized the principles of the common law of torts, contracts, and property.  His opinions fill the casebooks and are part of the standard curriculum in American law schools.  Typically Cardozo would apply precedent (previously decided cases) to new problems that were arising in contemporary society, and he did so by indentifying the reasons why a previous court had developed a particular rule of law.  Very often judicial precedent in a field of law was based upon two or more competing or even conflicting policy objectives.  After Cardozo had identified all of the relevant values and policies that the law was intended to serve, he would balance those values against each other in the context of the particular case.  Through this weighing and balancing process Cardozo would draw a conclusion as to how a particular law should be interpreted and applied in the case before him.  Cardozo said:

"The final cause of law is the welfare of society.  The rule that misses its aim cannot permanently justify its existence.  …  Logic and history and custom have their place.  We will shape the law to conform to them when we may, but only within bounds.  The end which the law serves will dominate them all."

     In most cases text, intent, precedent, and tradition are consistent with each other and are sufficient to guide us to the correct answer as to what the law is.  But there are situations where text, intent, precedent, and tradition are inadequate, by themselves, to answer difficult questions of law.  This occurs in cases where there is a conflict among the different types of legal arguments, or where no single type of argument yields a clear answer because the situation before the court is unprecedented.  This happens occasionally in every field of law – it happens frequently in constitutional law.

     Why is this?  Why is the interpretation of the Constitution so dependent upon policy arguments as opposed to other fields of law such as securities regulation or commercial transactions?  A principal reason is that many of the most important provisions of the Constitution are not specific rules but rather are broad concepts.  All Americans would agree that the Constitution was intended to protect our liberty, but we legitimately disagree about the specific meaning of the term "liberty" in any particular case.  Certainly our understanding of "equality" has changed over time as we have gradually learned more and more about human potential.  "Fairness" is also an evolving concept, as new and different procedures have to be adopted to ensure that hearings and trials are fundamentally fair and rational.

     Nor is the intent of the framers always a reliable guide.  To be sure, they were devoted to liberty and (after the Civil War) to equality, but it is not at all clear that in applying those concepts they wanted us to recreate the same society that they had.  Rather, it seems more likely that they articulated these ideals as guides for us to strive for, to live up to, and to reinterpret and reapply to the challenges of every generation.

     Liberty, for example, may be understood as a person's right to make decisions for himself or herself at least in matters that are intensely personal such as whom to love, whom to live with, whom to marry, whether to have children, how to raise those children, and whether to accept or refuse lifesaving medical treatment.  In short, the right to privacy.  Liberty also includes freedom of speech, freedom of the press, and freedom of religion, not because these are traditional rights, but because these principles protect the dignity of the individual and promote intellectual and spiritual development. 

     Equality may be phrased as the principle that the government may not treat a group of people differently from other groups unless the group is in fact different in the relevant context.  If you accept this principle, then it is not sufficient to say (as Justice Scalia would) that certain groups may be treated differently from other groups simply because they have traditionally been treated differently or even (as Judge Bork would) because the framers treated them differently.  In drafting and adopting the Equal Protection Clause the framers of the 14th Amendment did not expect us to hold onto the society that they had at that time – they expected us to live up to the ideal that their generation and the Revolutionary generation fought and died for – that all persons are created equal.  They wanted us to stand upon their shoulders and to see a little further than they did.

     There are five types of legal argument.  Each type of argument is a legitimate form of legal reasoning.  In hard cases the different types of arguments give you different answers.  We see this very clearly in constitutional law, particularly in cases where groups or individuals are claiming rights they have been denied in the past, such as interracial couples or gay and lesbian couples who wish to marry.

     We are all Americans and we are all devoted to the Constitution and to the principles of limited government and individual rights.  We have different understandings of those concepts because there are legitimate methods of reasoning that yield different answers to the questions of liberty, equality, and fairness that constantly arise.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law and the author of the book The Five Types of Legal Argument.  This is the eighth and last in a series of essays describing why people disagree about the meaning of the Constitution.  The next series of essays will cover the constitutional cases that the Supreme Court will be deciding during the coming year.

Ohio looks to be an important swing state (again!) in the upcoming Presidential elections. But you might not have realized that legal issues may determine the outcome. Efforts to settle these issues in advance seem to have failed. Here are a few of the battles currently being fought:

Five-Day Window: Republicans have sued to try to prevent voters from registering to vote (must be at least 30 days before the election) and then, on the same day, voting by absentee ballot (may be done up to 35 days before the election) during the 5-day window when they are eligible to do both. They claim to be concerned about vote fraud.

Vote Caging: Democrats are seeking to end the practice in some counties of eliminating or challenging the registration status of some voters based on mailed notices having been returned undelivered. They claim that typos, students away at college, and military personnel may have their votes unfairly taken away.

Meanwhile, in Cincinnati, voters who responded to an erroneous absentee ballot application mailed out by the McCain campaign may find their applications ruled invalid by Democratic Secretary of State Jennifer Brunner, although she has offered an easy way for voters to correct their applications. Pho has the statutory language.

Wouldn't it be nice if we could just focus on which candidates were supported by more people?

     Between 1937 and 1943 President Franklin D. Roosevelt appointed eight justices to the Supreme Court. These justices, who included Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson, changed the meaning of the Constitution. For the first time in American history the Court began to systematically protect the rights of individuals and minority groups against government action. In particular, the Supreme Court established doctrine protecting the separation of powers, freedom of speech, freedom of religion, racial equality, and the right to privacy. In recent years, however, the legacy of the Roosevelt Court has come under attack, and the fundamental constitutional framework established by the Roosevelt justices may be in danger of unraveling.    

     For over eleven years between 1994 and 2005 the make-up of the Supreme Court remained stable, but during his second term in office President George W. Bush had the opportunity to appoint John Roberts and Samuel Alito to the Supreme Court. These two conservative justices have moved the Court closer to a tipping point than it has been in over seventy years. The 2008 Presidential election, in which the candidates offer the American people starkly contrasting social, economic, and political viewpoints, will have a substantial effect on how the Constitution will be interpreted. The following questions may be determined by the outcome of this election:

1. Will the Supreme Court overrule Roe v. Wade and allow the government to outlaw abortion at all stages of pregnancy?

2. Will the Court overrule Lawrence v. Texas and allow the government to imprison people for engaging in same-sex intercourse?

3. Will the Court reject the Right to Privacy altogether, including the right to refuse lifesaving medical treatment (commonly called the "right to die")?

4. Will the Court overrule United States v. Virginia, which ordered women to be admitted to V.M.I. on an equal basis with men?

5. In Equal Protection cases generally, will the Court adopt a standard based upon tradition rather than upon a realistic assessment of human potential?

6. Will the Court overrule Grutter v. Bollinger and declare affirmative action to be unconstitutional in virtually all circumstances?

7. Will the Court overrule McConnell v. F.E.C. and to strike down all laws that limit the amount of money that people may contribute to political campaigns?

8. Will the Court overrule McCreary County v. A.C.L.U. and instead find that it is constitutional for the government to post the Ten Commandments in courthouses?

9. In general, will the Court reject the principle that the government must be neutral towards religion, and instead adopt the rule that the government is free to endorse religion?

10. Will the Court decide that the Establishment Clause does not apply to the states, thereby allowing the states to establish official churches?

11. Will the Court overrule Boumediene v. Bush and instead rule that prisoners who are held at Guantanamo Bay are not entitled to habeas corpus?

     On most of these issues the Supreme Court is closely divided, and the addition of one or more justices will determine the outcome. Some people criticize the fact that a Presidential election can determine how the Constitution is interpreted. They contend that the meaning of the Constitution should remain static until it is amended, as if the Constitution were a statute or an administrative regulation. There is merit to this argument, but as a practical matter the meaning of the Constitution is dependent upon the will of the American people as expressed in national elections.

     If you feel strongly about what the meaning of the Constitution should be on these or other issues, then you should be sure to vote on November 4.

Wilson Huhn is a Professor of Constitutional Law at the University of Akron School of Law.  This is the last of a series of ten essays regarding how the 2008 Presidential election may affect the interpretation of the Constitution.

     The focus of one of the starkest ideological divisions on the Supreme Court and an area of law that may undergo dramatic change as a result of the 2008 presidential election is the interpretation of the Religion Clauses of the First Amendment.     

     There were battles over freedom of religion from the very earliest times in our nation's history. In the 1630s the Puritans established a religious government in the Massachusetts Bay Colony. Early religious dissenters such as Roger Williams, Anne Hutchinson, and Mary Dyer objected to the role that religion played in the government of the colony and they questioned the religious principles that comprised official doctrine. Each of the dissenters was found guilty of heresy and expelled from the Massachusetts colony. Roger Williams founded the colony of Rhode Island upon the principles of freedom of religion and the separation of church and state. Mary Dyer, a Quaker, was executed when she returned from Rhode Island to Massachusetts. Today she considered a martyr to religious liberty.

     Just before the Constitution was written, James Madison and Thomas Jefferson also fought for religious liberty. In the 1780s the State of Virginia had imposed a tax to pay the salaries of religious teachers. Madison wrote his famous Memorial and Remonstrance against the tax, and Jefferson drafted Virginia's Bill for Religious Freedom which overturned the tax. Over the course of their lives Madison and Jefferson frequently wrote of the necessity for the separation of church and state, and Madison drafted the First Amendment to protect freedom of religion.

     The principle of separation of church and state is embodied in the Establishment Clause and the Free Exercise Clause of the First Amendment – in fact these two clauses are the first words of the Bill of Rights. The First Amendment commences: "Congress shall make no law respecting an establishment of religion, nor abridging the free exercise thereof."

     The religion clauses of the First Amendment, like many of our other fundamental rights, were not enforced by the Supreme Court until after Franklin Roosevelt had the opportunity to appoint eight justices to the Court. In 1947, the Supreme Court declared that the First Amendment requires the government to be "neutral" with respect to religion. Today, the accepted meaning of the Establishment Clause is that the government may not endorse religion, and the accepted meaning of the Free Exercise Clause is that the government may not interfere with the practice of religion. Taken together, the two religion clauses prohibit the government from either helping or hindering religion.

     It is often not an easy task to determine whether or not a governmental action is "neutral" towards religion. The Court has ruled that the government may not (at least directly) subsidize religious education, that it may not teach religious doctrine such as creationism in the public schools, and that it may not post overtly religious displays in public buildings or on public land. On the other hand, the Court has determined that the government may give parents vouchers which may be spent to send their children to private or parochial schools, that it may post displays that have historical or artistic value as well as religious significance, and that it may exempt religious institutions from paying property taxes.

     The division within the Court over the interpretation of the Free Exercise Clause involves the constitutionality of laws that apply to everyone but that impose duties or restrictions on people that conflict with some persons' religious beliefs.   The liberal wing of the Supreme Court believes that any law that imposes a substantial burden on the exercise of a person's religion must pass the "strict scrutiny test" in order to be upheld.  This test requires the government to prove that the law is necessary to achieve an overriding governmental purpose.  The conservative wing of the Court, led by Justice Scalia, believes that if a law applies to everybody in society equally, then the law is constitutional so long as it is supported by any rational reason.  Justice Scalia's view of the Free Exercise Clause has prevailed upon the the Supreme Court.  As a result, laws that burden minority religions, like the Native American Church, now receive very little scrutiny from the courts.

      The Establishment Clause of the First Amendment has provoked an equally strong division on the Court.  A slim majority of the Court still supports the "neutrality principle" described above, but Justice Scalia and Justice Thomas have two basic objections to the Supreme Court's current interpretation of the Establishment Clause. First, they contend that the Establishment Clause does not apply to the States. In other words, they believe that the Constitution permits the states to establish official religions. Second, they argue that the religion clauses do not require the government to be neutral with respect to religion. Instead, they take the position that, if it chooses, the government is entitled to endorse religion. They do not believe in the separation of church and state.

     If the views of Justice Scalia and Justice Thomas regarding the Establishment Clause were to prevail, it would mark a complete reversal of the Supreme Court's understanding of the meaning of freedom of religion. The states would be permitted to endorse and fund specific religions with taxpayer dollars, and the federal government would no longer have to act in a neutral manner towards religion.

     Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law.  This essay is the eighth in a series of ten essays describing how the 2008 Presidential election may affect the interpretation of the Constitution.

     In 1927 in the case of Whitney v. California Justice Louis Brandeis wrote that the First Amendment protects "freedom to think as you will and to speak as you think." Freedom of thought is absolute, but freedom of speech is not an absolute right because in some situations speech can cause harm, as Justice Oliver Wendell Holmes described in his famous example of a person falsely shouting fire in a crowded theater. The Supreme Court is closely divided on many questions involving the constitutionality of laws that infringe freedom of expression, including the following:

1. Campaign finance reform. In 2003 the Supreme Court narrowly upheld the principal provision of the McCain-Feingold Act which placed limitations on the amount of money that an individual may contribute to political campaigns. Another important provision of the Act which extended these contribution limits to funding for so-called "issue advertisements" during political campaigns was reinterpreted and essentially eviscerated by the Supreme Court in a 2006 opinion by Chief Justice John Roberts.

2. Abortion protests. The Supreme Court has narrowly upheld laws and injunctions against abortion protestors who harass and intimidate patients and staff at abortion clinics. These are difficult cases because the protestors are conducting their activities on public property – the sidewalks and streets outside the clinics – and they do have a constitutional right to attempt to persuade the patients and workers that they should not engage in abortion. However, many abortion protestors have abused that right.

3. Regulation of "adult" businesses. States and cities have used zoning laws and public nudity laws to close down adult bookstores, movie theaters, and strip clubs, and a closely divided Supreme Court has generally upheld these laws.

4. Internet pornography. A large percentage of internet websites are devoted to pornography, and Congress has enacted a number of laws attempting to close these websites or make them less accessible. In general, the Supreme Court has struck down these laws. The key to these cases is whether the internet is a medium of communication which may be closely supervised by the government for content like broadcast television, or whether it should remain largely free from government regulation like a bookstore. So far a majority of the Supreme Court has ruled that the internet should be free of regulation, with Justice John Paul Stevens referring to "the vast democratic forums of the Internet."

5. Symbolic speech such as flag burning and cross burning. A narrow majority of the Supreme Court has declared laws that prohibit burning the American flag to be unconstitutional, while a larger majority ruled that it is unconstitutional for a state to prohibit cross burning. Justice Clarence Thomas dissented in both cases. In his opinion, neither flag burners nor cross burners are protected by the First Amendment. Justice Thomas explained his position in the following passage from his opinion in Virginia v. Black:

"In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred [the American flag] and the profane. I believe that cross burning is the paradigmatic example of the latter."

     The contrasting view in favor of freedom of expression was articulated by Justice Robert Jackson in the 1943 case West Virginia Board of Education v. Barnette, where the Supreme Court ruled that children could not be expelled from public schools because they refused to salute the American flag. Jackson said:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

     In each of the contemporary freedom of expression cases described above, the Supreme Court has split in its interpretation of the Constitution. The substitution of one or more Supreme Court justices could not only change the outcome of these cases, but it could spell the difference between the adoption of Justice Thomas' view that the government may define what is sacred and what is profane, and Justice Jackson's view that every citizen has the right to make this decision for himself or herself.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the seventh in a series of ten essays regarding how the 2008 presidential election may affect the interpretation of the Constitution.

     Affirmative action is a difficult issue for the same reason that abortion is – the stakes are high for both sides. On the one hand, it is wrong to discriminate against any person on account of his or her race. On the other hand, a great wrong was committed against African Americans -they were held in slavery for two hundred and fifty years and they were subjected to second class citizenship for another hundred years after that. The black race has now achieved legal and political equality with the majority, but our society still bears the legacy of slavery and Jim Crow. This continuing inequality can be measured in many ways, but there is one metric that explains many of the other inequalities. White families, on the average, have a net worth that is five times greater than black families. A family's wealth determines how well it can weather a storm (such as Katrina), start a business, or educate its children.Closing the gap between the races depends principally upon education, and yet on the whole there are stark differences between the educational opportunities afforded to blacks and to whites. Although many white children attend inferior elementary and secondary schools, black children disproportionately suffer from this inequality. Affirmative action in the field of education represents an attempt to close that gap, and the opponents of affirmative action should admit that affirmative action is not racism but rather is an attempt to ameliorate the effects of racism. But there is a cost that accompanies affirmative action, and the proponents of affirmative action should admit that this is a grave cost indeed. White children, on account of their race, are not admitted to schools they are otherwise qualified to attend.

     Over the past four decades the Supreme Court has wobbled back and forth on the constitutionality of affirmative action. This indecision can be demonstrated most clearly by examining the opinions of Justice Sandra Day O'Connor on the subject. In the case of Richmond v. J.A. Crosun Co. Justice O'Connor signaled that affirmative action for the purpose of achieving racial diversity was unconstitutional when she stated:

"Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."

     However, in 2003, in the case of Grutter v. Bollinger, Justice O'Connor changed her mind and ruled that affirmative action in colleges and universities admissions programs was constitutional for pragmatic reasons:

"Universities, and in particular, law schools, represent the training ground for a large number of our Nation's leaders. … In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."

     Justice O'Connor has now retired and the majority of the Court is relatively hostile to affirmative action. Recently the Court struck down racially-based school attendance programs designed to achieve racial balance in the Seattle and Louisville public schools. In that case Chief Justice John Roberts stated, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In a concurring opinion Justice Clarence Thomas equated the school boards in Seattle and Louisville which were attempting to integrate their public schools with the school boards in Brown v. Board of Education which had been trying to segregate their schools. In other words, Justice Roberts and Justice Thomas believe that affirmative action programs are unconstitutional on their face and cannot be justified under the Equal Protection Clause.

     The swing justice on this issue, as with most issues, is Justice Anthony Kennedy. He voted against the affirmative action programs in the Grutter and Seattle School District cases, but he stated that he would vote to uphold other affirmative action programs that were designed differently. If one more justice who agrees with Justice Thomas or Chief Justice Roberts is added to the Court, under no circumstances will an affirmative action program be upheld as constitutional.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the sixth in a series of ten essays regarding how the 2008 presidential election might affect the interpretation of the Constitution.

     Gay rights cases may be arranged in four categories that fall along a spectrum according to the level of hardship that the law imposes. The most serious cases involve criminal laws or legal disabilities that are imposed upon gays and lesbians; less serious, but no less significant, are laws that deny equal benefits to gays and lesbians. These penalties and denials of equal benefits include the following kinds of laws.

     (1) Laws that make same sex intercourse a crime. In 1986, in the case of Bowers v. Hardwick, the Supreme Court upheld a Georgia statute that made "sodomy" a crime, but in 2003, in the case of Lawrence v. Texas, the Supreme Court ruled that a similar Texas statute was unconstitutional.

     (2) State constitutional amendments that prohibit state legislatures from adopting laws that protect gays and lesbians from discrimination. In 1996, in the case of Romer v. Evans, the Supreme Court ruled that a Colorado state constitutional amendment that made it impossible for gays and lesbians to win equal political and social rights was unconstitutional because it interfered with the political rights of this group. In the last few years several states have adopted constitutional amendments which make it impossible for state legislatures to adopt laws that recognize same sex marriage. The Supreme Court has not yet ruled whether these marriage amendments are constitutional under Romer.

     (3) Laws that prohibit same sex marriage. The Supreme Court has not yet decided whether gays and lesbians have a constitutional right to marry.

     (4) Laws or official policies that discriminate against gays and lesbians in government employment, such as the "don't ask – don't tell" policy followed by the United States military. The Supreme Court has also not yet decided whether this type of employment discrimination is constitutional.

     Gays and lesbians contend that laws like these violate their right to liberty under the constitution because they interfere with their fundamental right to love the person whom they choose. In Lawrence v. Texas, Justice Kennedy said:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

     In the same case, Justice Sandra Day O'Connor found that the Texas law violates the Equal Protection Clause because it punishes gays and lesbians for behavior that heterosexual couples are permitted to engage in. Like Justice Kennedy, she found that the law had been adopted solely because society disapproves of this conduct, and she ruled that this was not a sufficient reason to treat gays and lesbians differently.

     Justice Scalia dissented in both Lawrence v. Texas and Romer v. Evans. In Romer, he argued that state laws which prohibit discrimination laws in housing, education, and medical care give gays and lesbians "special rights," and in Lawrence he argued that society's moral disapproval of homosexuality is a sufficient reason to incarcerate gays and lesbians. Justice Scalia and other conservative justices believe that constitutional rights to liberty and equality are determined by tradition. In their opinion, if the government has traditionally prohibited certain behavior or if it has traditionally discriminated against a certain group of people, then it does not violate constitutional rights of liberty and equality for the law to punish that behavior to treat that group differently. In contrast, the more liberal justices demand that the government demonstrate legitimate, concrete reasons to infringe upon people's personal lives or to treat a group of people differently.

     If the next President appoints one more justice who shares Justice Scalia's viewpoint that tradition is the controlling factor in interpreting the rights of liberty and equality, both Lawrence v. Texas and Romer v. Evans will be overruled, and gay rights will no longer be recognized by the Constitution.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law.  This is the fifth in a series of ten essays regarding how the 2008 presidential election could affect the interpretation of the Constitution.

     In recent days the A.C.L.U. has released three more Bush administration memos relating to the torture of prisoners.  The third memo raises a serious question regarding whether the Bush administration secretly continued to rely upon a legal opinion which it had publicly repudiated.

     Each of the newly released memos is heavily redacted.  They are:

1.  An August 1, 2002 Memo from Assistant Attorney General Jay Bybee approving "certain proposed conduct," apparently in the interrogation of a prisoner.  Almost all of the memorandum is blacked out.  The two key sentences of the memo state:

"Based on the information you have provided us, we believe that those carrying out the procedures would not have the specific intent to inflict serious physical pain or suffering."

"Furthermore, no specific intent to cause mental pain or suffering appears to be present."

     In this memo Mr. Bybee, who is now a federal judge, gives two reasons in support of his conclusion that the "certain proposed conduct" is not torture.  First, he appears to restate the argument set forth in his previously disclosed memorandum of August 1, 2002, (the "Torture Memo") in which he contended that the treatment of prisoners does not constitute torture unless it would likely result in "death, organ failure, or permanent damage."  (Bybee also concluded in that memo that the torture of suspected terrorists could be justified by the principle of self-defense, and that in any event the federal laws prohibiting torture were unconstitutional.)  Second, in the recently disclosed memorandum Bybee argues that if a defendant acts in the "good faith belief" that his or actions are not causing serious physical or mental pain or suffering, then the defendant is not guilty of violating the torture statute, and the memo helpfully concludes:

"Accordingly, if an individual conducting the interrogation has a good faith belief that the procedures he will apply, separately or together, would not result in prolonged mental harm, that individual lacks the requisite specific intent.  This conclusion regarding specific intent is futher bolstered by the due diligence that has been conducted concerning the effects of these interrogation techniques."

2.  A January 28, 2003 memo from George Tenet, Director of the C.I.A.  The memo is three pages long, and all but two sentences are blacked out.  The first sentence states that "unless otherwise approved by headquarters" C.I.A. officers may use only permissible interrogation techniques, and that these consist of "standard techniques" and "enhanced techniques."  The last sentence of the memo orders C.I.A. officers to make a record of each interrogation in which an enhanced technique is used setting forth "the nature and duration of such technique employed, the identities of those present," and the remainder of the sentence is blacked out.

3.  An undated, unsigned memo stating that

"the interrogation of [blacked out] shall proceed only with a clear understanding [two or three words blacked out] of all legal and policy matters involved with the interrogation techniques, including:  The classified August 2002 DoJ opinion stating that [several words blacked out] interrogation techniques, including the waterboard, do not violate the Torture Statute … [and] The Supreme Court's decision in Rasul v. Bush, 542 U.S. ___, which raises possible concerns about future US judicial review of the Program, and these issues ." 

     What may be most significant about this third memo is its apparent date.  This memo makes reference to the decision of the Supreme Court in Rasul v. Bush which was issued on June 28, 2004.  However, the August, 2002 "Torture Memo" which was authored by John Yoo and signed by Jay Bybee was withdrawn by the Justice Department on June 22, 2004, by Jack Goldsmith, head of the Justice Department's Office of Legal Counsel.  Goldsmith resigned the same day, and has now authored the book The Terror Presidency.  June 22, 2004, is also the date that President Bush declared, "I have never ordered torture."  Because of its reference to the Rasul decision, however, this particular memorandum specifically approving waterboarding must have been issued after June 28, 2004, and it appears to significantly rely upon the supposedly withdrawn memo of August, 2002, without mentioning that the memo had been withdrawn.

Will Huhn is a Professor of Constitutional Law at The University of Akron School of Law

     The Bush administration's Department of Health and Human Services has drafted a a proposed rule that would redefine certain forms of contraception as "abortion."  According to the New York Times:

The proposal defines abortion as follows: "any of the various procedures – including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action – that results in the termination of the life of a human being in utero between conception and natural birth, whether before or after implantation."

This definition of "abortion" is broad enough to include any form of contraception that prevents a fertilized egg from implanting in a woman's uterus, including birth control pills, emergency contraception, and IUDs. 

   Senator Hillary Clinton of New York and Senator Patty Murray of Washington have sent a letter to Michael Leavitt, Secretary of Health and Human Services objecting to this proposed federal regulation on the ground that it would allow health care institutions or individuals to refuse to provide birth control despite state laws that guarantee access to these forms of medical services.  Furthermore, they state that the rule "could jeopardize federal programs like Medicaid and Title X that provide family-planning services to millions of women."

     If this federal regulation were adopted it would present a very difficult question of constitutional law.  There are at least three ways in which the constitutionaliity of such a law might be challenged:  (1)  It could be argued that the law unfairly discriminates against women; (2)  It could be asserted that the law unduly interferes with the exercise of a fundamental right; or (3) It could be contended that the government does not have a legitimate reason to adopt the law. 

(1)  Possible Violation of Equal Protection

     The Constitution does not require the government to establish social welfare programs such as Medicaid, but when the government does create such programs, it is not allowed to discriminate on the basis of race, gender, or other grounds.  For example, the Supreme Court has struck down a social security law that granted fewer benefits to the survivors of women wage-earners, and a food stamp law that discriminated against hippies.  However, the Court has been reluctant to find gender discrimination in government benefits programs unless the discrimination expressly discriminates against women, even where the law has a dramatically disproportionate impact on women.  When Massachusetts adopted a law that gave veterans an absolute preference in civil service employment, almost all of the persons who benefitted from the law were male, but the Court ruled that the law was constitutional because it was not proven that the law was adopted because of the effect that it had on women.  Furthermore, laws that restict regulate pregnancy have not been found to constitute gender discrimination under the constitution.  Thirty years ago, in the case of Geduldig v. Aiello, the Supreme Court even upheld a state disability insurance program that excluded disabilities resulting from complications from pregnancy on the ground that this law did not to discriminate against women, but only against persons who are pregnant, and the Supreme Court has never ruled that laws restricting abortion constitute gender discrimination.  In my opinion the Supreme Court is not likely to find that this proposed regulation, which would inhibit common types of birth control used by women, is a form of gender discrimination.

(2)  Possible Interference with a Fundamental Right

     The Supreme Court ruled in Griswold v. Connecticut and Eisenstadt v. Baird the people have a fundamental right to use contraception, and if the government were seeking to make birth control illegal in this case it would no doubt be unconstitutional.  However, that is not what the government is proposing to do.  Instead, this law would make it possible for health care providers to refuse to dispense contraception and it would require organizations that receive federal funding to certify that employees are permitted to  refuse to dispense contraception.  Federal law already authorizes hospitals, doctors, and nurses to refuse to perform abortions, and this regulation would extend those laws to certain forms of contraception as well.  While there is a constitutional right to abortion, there is no constituional right to government assistance in obtaining an abortion. 

     When the government goes too far, however – when the government does not simply refuse to assist a woman to obtain an abortion but places a substantial obstacle in the way of a woman seeking an abortion – it is a violation of the Constitution.  The government is not obligated to pay for abortions, but it cannot make it unduly difficult for women to obtain one.  In this case, the issue would be whether or not the government is, in fact, interfering with a fundamental right to use birth control or simply declining from assisting women to obtain it.

(3)  The Possibility That There Is No Rational Basis for the Law

     The third line of argument that a person challenging the constitutionality of this law would invoke is that this law is not supported by any rational justification.  The Supreme Court has interpreted the Due Process Clause to mean that all laws – even laws that do not affect constitutional rights – must be supported by a "rational basis." 

     Laws that prohibit abortion after the fetus is viable are justified by the interest of the government in protecting potential life, which is a valid purpose.  However, according to Roe v. Wade the interest of the state in protecting fetal life becomes compelling only after a fetus becomes viable.  It seems unlikely that the Supreme Court would extend this principle to the first days of pregnancy and recognize that the government has a valid interest in ensuring that fertilized eggs become implanted.

     Laws that bar the use of government funds for abortion services have been upheld upon the ground that the government may legitimately choose to encourage childbirth.  However, what is at stake in this case is considerably different from choosing childbirth over abortion; instead this law would have the effect of forcing women to choose pregnancy.  Again, it seems unlikely that the Court would rule that the government is entitled to favor pregnancy over non-pregnancy.

    In addition, the government is not normally permitted to enact laws restricting people's actions simply because the government considers the activity to be immoral.  The Court ruled in Lawrence v. Texas that purely moral reasons are not a sufficient justification for a law that makes gay sex a crime.  If the Court became convinced that the sole reason for the adoption of this regulation was that the Department of Health and Human Services believes that it is immoral for people to engage in sexual intercourse without allowing for the possibility of conception then the Court would probably rule that this was an illegitimate purpose and it would strike down the law. 

     The government's strongest argument in support of this proposed regulation is that it is intended solely to protect the rights of institutions and individuals not to participate in an activity that they disapprove of.  In general, the protection of workers' rights is a legitimate governmental purpose.  However, the Court will carefully consider the factual context of this regulation in evaluating whether this is the real purpose of the law and whether or not the law imposes an undue burden upon a woman's right to prevent pregnancy.

     Originally the United States Constitution did not embrace the principle of equality. Instead the Constitution protected slavery in gross contradiction to the Declaration of Independence that had stated "all men are created equal."

     America finally abolished slavery after the Civil War by adopting the 13th Amendment, and in 1868 the country adopted the 14th Amendment which prohibits the government from denying people "the equal protection of the laws." It took another 70 years before the Supreme Court began to enforce the Equal Protection Clause. Between 1873 and 1937 the Supreme Court upheld laws that required the separation of the races on trains and in the public schools, that prohibited interracial marriage, and that were used to strip African Americans of the right to vote. During the same period of time the Supreme Court struck down a number of civil rights laws that Congress had enacted during Reconstruction. Furthermore, during this period the Supreme Court upheld laws that imposed the most serious kinds of discrimination against persons of Asian descent, including laws prohibiting Asians from owning land or even becoming citizens. This was indeed a shameful era in the history of the Supreme Court.

     It was not until 1938 and the Roosevelt administration that the Supreme Court began to protect the rights of blacks and other racial minorities. Sixteen years later, with five of Roosevelt's justices still on the Supreme Court, in Brown v. Board of Education, the Supreme Court outlawed official racial segregation.

     The Supreme Court was even slower to recognize the principle of gender equality. The women's movement had begun in earnest in the U.S. at the Seneca Falls Convention in 1848, but the Supreme Court took no notice of it. In 1873 the Court ruled that women do not have the right to become attorneys; in 1875 it ruled that they do not have the right to vote; and even as late as 1948 the Court upheld a Michigan law that prohibited a woman from working as a bartender except in a tavern owned by her husband or her father. Finally, in 1971, for the first time, the Court ruled that women have rights under the Equal Protection Clause. Over the next several years the Court struck down a number of laws that discriminated against women, including laws that awarded women in the military fewer benefits for their families and social security laws that granted lower benefits to the families of women workers.

     One of the most significant gender discrimination cases is United States v. Virginia, decided in 1996, in which the Supreme Court ruled that it was unconstitutional for the State of Virginia to exclude women from the Virginia Military Institute. V.M.I. is a prestigious publicly supported university, and there exists no comparable program of military education in the state university system. Accordingly, the Court ruled that the university must admit women to the Institute.

     Justice Scalia issued a passionate dissent in the V.M.I. case in which he appealed to tradition. He opened his opinion by stating, "Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half," even though the Court had not "shut down" V.M.I. but simply ordered it to admit women. He also stated, "it is precisely VMI's attachment to such old-fashioned concepts as manly ‘honor' that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education."

     As with the concept of liberty, Justice Scalia defines the constitutional principle of equality by reference to tradition. In contrast, the majority of the members of the Supreme Court define equality in realistic terms: if one group of persons is similar to another group in the relevant context, then the government must treat them similarly. The government may treat two groups differently only if there are real differences between them.

     This is the heart of the matter. Should the Equal Protection Clause of the Constitution be interpreted by reference to tradition or by considering whether there is a good reason to treat two groups differently? The 2008 Presidential election will determine the answer to this question.

Wilson Huhn is a Professor of Constitutional Law at The University of Akron School of Law. This is the fourth in a series of ten essays on how the 2008 Presidential election may affect the interpretation of the Constitution.

July 19 is the 160th anniversary of the Declaration of Sentiments, a document signed by 68 women and 32 men at Seneca Falls, New York at the first women's rights convention.  The Declaration, written by feminist Elizabeth Cady Stanton as a take-off on the Declaration of Independence, was the launching point for the women’s rights movement in the United States.  Stanton spent over fifty years advocating for women’s rights under the law, in society, and in the family.  Her ideas are strikingly modern and continue to ring true in our time.  

Cady Stanton was married to abolitionist and lawyer Henry Stanton and raised seven children.   Despite her education and wealth, she experienced the legal and societal barriers to women of her times.  In the Declaration of Sentiments, Cady Stanton expressed her frustration with her own experience and sought equality of rights for women in all aspects of society including education, employment, voting, and marriage.  Ken Burns produced an excellent PBS documentary series several years ago that traced the lives and work of Stanton and her business partner, Susan B. Anthony.  While Anthony is more familiar to us today, Cady Stanton was the one who was nationally known and respected at the time, with Anthony playing a role behind the scenes.   

Stanton's theories with respect to family law, my area of expertise, called for equal rights to marital property, maternal rights to custody of children, and the equal right to earn a living.  She also called more radically for a shift in the social system that placed women in subordination to men and a systemic reform of the laws that supported that system.  In a time when the law conceptualized men as the custodians of the family property, children, and their wife, Stanton articulated a different ideal in which women had equal authority and responsibility in the family.  For Stanton, reform of the family was as instrumental as the right to vote because to her, the social discrimination was based on a women’s second-class status in the family.   Many of Stanton’s feminist philosophies for the family are now part of our existing law.  Joint property rights for both spouses in marriage.  Domestic violence laws to protect women against assaults by their spouse.   No-fault divorce on grounds of incompatibility.  I am currently working on a book called Elizabeth Cady Stanton and the Feminist Foundations of Family Law that explores Stanton's theories and work in this area of family law.

Stanton confronted many of the issues we see today.  For example, in the late nineteenth century, there was a proposed federal Constitutional Marriage Amendment.  The amendment put forth in 1884 would have made divorce difficult or even impossible, and by some versions, would have prohibited interracial marriages.  Congress and President Bush have proposed a Federal Marriage Amendment today that would amend the U.S. Constitution to define marriage as only between one man and one woman.  The result would make same-sex marriage illegal everywhere in the nation.  Both Barack Obama and John McCain say they oppose such an amendment, but the proposals in Congress continue.  I have written elsewhere in greater detail about Cady Stanton’s arguments against the constitutional amendment and the parallels with our debate today.  Her insights suggest that concerns about federalism, constitutional rights, and gender weigh against amending the Constitution for marriage.

The presidential candidates agree on some things on the issue of gay marriage. Both say they are against gay marriage. Both voted against the proposed Federal Marriage Amendment that would have amended the U.S. Constitution to permit marriages only between one man and one woman. But their agreement ends there. John McCain said on the Ellen DeGeneres show that he supports legal agreements or contracts between gay partners so they can get insurance. Barack Obama supports civil unions and legal recognition of gay partnerships. The candidates disagree adamantly on amendments to state constitutions to ban gay marriage. McCain has supported the recent ban proposed in California and says gay marriage is a states' rights issue, as long as the state preserves traditional marriage. Obama opposes the California ban and other such "divisive and discriminatory efforts.” So what does this all mean? Are the candidates flip-flopping among all this nuance?

Practically, there is little difference between civil unions and gay marriage, though the term “civil union” seems to be more palatable. Both provide most marital-like rights under state law. Neither one grants federal benefits like income tax or social security because the 1996 Defense of Marriage Act says marriage under federal law is only between a man an woman. Civil unions (or domestic partnerships as some states call them) are special status designations created by state legislatures to provide most, if not all, of the usual marital rights to same-sex couples. These marital rights include benefits and obligations such as inheritance, parenting, medical decisionmaking, state income tax, and divorce. A same-sex couple usually obtains a license or registers their partnership in the same way as a straight couple applies for a marriage license.

The first civil union law was adopted by Vermont in 2000 and followed by Connecticut, New Jersey, and New Hampshire. California and Oregon have similar domestic partnership laws. Maine, Hawaii, Washington, and the District of Columbia grant certain limited benefits to same-sex partners. Gay marriage is also recognized in Canada, the Netherlands, Belgium, Norway, South Africa, and Spain. Same-sex partnerships are legal in twenty countries, including Denmark, France, Germany, and the United Kingdom.

The recent California Supreme Court decision finding that the denial of gay marriage was unconstitutional recognized that domestic partnership laws give gay couples “virtually all of the legal rights and responsibilities accorded married couples.” The problem, according to the California court, is the state created segregation. Government is establishing a second-class citizenship for gay people. The same reasoning influenced the Massachusetts Supreme Court in 2004 to reject the legislative proposal of civil unions and require the recognition of same-sex marriage. These courts and others have found that state constitutional guarantees of equal protection and due process require equal treatment for same-sex partners and recognition of their fundamental right to marry.

Over 25 states have reacted to the decisions of the courts with strong prohibitions of gay marriage. Eighteen of these also prohibit civil unions. Some states enacted defense of marriage acts similar to the federal law while others amended their state constitutions to prohibit same-sex marriage. Ohio passed one of the strictest constitutional amendments in the nation in 2004. The Ohio amendment, which Professor Huhn has argued is unconstitutional, prohibits both gay marriage and civil unions and denies recognition to gay partnerships created in other states. This means that gay couples and families moving to Ohio for a new job may find themselves stripped of previously-recognized familial rights. This is contrary to the usual legal result in Ohio which gives full faith and credit to respect the marriage laws of other states.

For the law students in my Family Law class, the issue of gay marriage is simply a generational one. Regardless of political or religious persuasion, the majority of students overwhelming support civil unions. They believe that the issue of gay marriage is a controversy that will pass with time.