Supreme Court begins election year term full of big cases
The justices are returning to the Supreme Court bench for the start of an election year term that includes high-profile cases about abortions, protections for young immigrants and LGBT rights. The court meets Monday morning for its first public session since late June. First up is a death penalty case from Kansas about whether states can abolish an insanity defense for criminal defendants. The justices also will hear arguments Monday in a challenge to a murder conviction by a non-unanimous jury in Louisiana. The term could reveal how far to the right and how fast the court’s conservative majority will move, even as Chief Justice John Roberts has made clear he wants to keep the court clear of Washington partisan politics. The court is beginning its second term with both of President Donald Trump’s Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, on board. The justices could be asked to intervene in disputes between congressional Democrats and the White House that might also involve the possible impeachment of the Republican president. Roberts would preside over a Senate trial of Trump if the House were to impeach him.Its biggest decisions are likely to be handed down in late June, four months before the election. The court also could be front and center in the presidential election campaign itself, especially with health concerns surrounding 86-year-old Justice Ruth Bader Ginsburg.For now, though, the court has plenty of significant cases to deal with, including whether federal civil rights law that bars workplace discrimination on the basis of sex covers LGBT people. The justices will hear arguments Tuesday in two cases on that topic, their first foray into LGBT rights since the retirement of Justice Anthony Kennedy, who wrote all the court’s major gay-rights rulings. Next month, the fate of the Deferred Action for Childhood Arrivals program is in front of the justices. Lower courts have blocked Trump from ending the Obama-era program, which has shielded roughly 700,000 people from deportation and provided them with permits to work.During the winter, the justices will take up a challenge to a Louisiana law that would force abortion providers to have admitting privileges at local hospitals. It’s another test of whether the change in the court’s composition will result in a different outcome. With Kennedy in the majority, the court in 2016 struck down a virtually identical Texas law. By Mark Sherman Associated Press Republished with the permission of the Associated Press.
Supreme Court to rule on Trump bid to end Obama-era protection for illegal immigrant youth
Adding a high-stakes immigration case to its election-year agenda, the Supreme Court said Friday it will decide whether President Donald Trump can terminate an Obama-era program shielding young illegal migrants from deportation. The justices’ order sets up legal arguments for late fall or early winter, with a decision likely by June 2020 as Trump campaigns for re-election. The president ordered an end to the program known as DACA in 2017, sparking protests and a congressional effort to salvage it. That effort failed, but federal courts in California, New York, Virginia and Washington, D.C., have blocked him from ending it immediately. A federal judge in Texas has declared the program is illegal, but refused to order it halted. The program — Deferred Action for Childhood Arrivals — protects about 700,000 people, known as dreamers, who were brought to the U.S. illegally as children or came with families that overstayed visas. The DACA protections seem certain to remain in effect at least until the high court issues its decision. The administration had asked the court to take up and decide the appeals by the end of this month. The justices declined to do so and held on to the appeals for nearly five months with no action and no explanation. The court did nothing Friday to clear up the reasons for the long delay, although immigration experts have speculated that the court could have been waiting for other appellate rulings, legislation in Congress that would have put the program on a surer footing or additional administration action.“We are pleased the Supreme Court agreed that this issue needs resolution. We look forward to presenting our case before the court,” Justice Department spokesman Alexei Woltornist said. Since entering the White House, Trump has intermittently expressed a willingness to create a pathway to citizenship for the hundreds of thousands of immigrants who’ve been protected by DACA. But he’s coupled it with demands to tighten legal immigration and to build his long wall along the Mexican border — conditions that Democrats have largely rejected. With the 2020 presidential and congressional election seasons underway or rapidly approaching, it seems unlikely that either party would be willing to compromise on immigration , a touchstone for both parties’ base voters. Three decades of Washington gridlock over the issue underscore how fraught it has been for lawmakers, and there’s little reason to think a deal is at hand. On the campaign trail, nearly all of the two dozen Democratic presidential candidates have pledged to work with Congress to provide a pathway to citizenship for millions of people in the country illegally — beginning with the dreamers. On the other hand, Trump sees his hardline immigration policies as a winning campaign issue that can energize his supporters.The Obama administration created the DACA program in 2012 to provide work permits and protection from deportation to people who, in many cases, have no memory of any home other than the United States. The Trump administration has said it moved to end the program under the threat of a lawsuit from Texas and other states that raised the prospect of a chaotic end to DACA. Then-Attorney General Jeff Sessions determined the program to be unlawful on the grounds that President Barack Obama did not have the authority to adopt it in the first place. Sessions cited a 2015 ruling by the federal appeals court in New Orleans that blocked a separate immigration policy implemented by Obama and the expansion of the DACA program.Texas and other Republican-led states eventually did sue and won a partial victory in a federal court in Texas. Civil rights groups, advocates for immigrants and Democratic-led states all have sued to prevent the end of the program. In November, a three-judge panel of the federal appeals court in San Francisco ruled that the administration decision to end DACA was arbitrary and capricious. The appeals court noted that the federal government has a long and well-established history of using its discretion not to enforce immigration law against certain categories of people. While the federal government might be able to end DACA for policy reasons under its own discretion, it can’t do so based on Sessions’ faulty belief that the program exceeds federal authority, the court held. Republished with the permission of the Associated Press.
John Roberts’ Supreme Court defies easy political labels
Just hours after Chief Justice John Roberts handed Republicans a huge victory that protects even the most extreme partisan electoral districts from federal court challenge, critics blasted him as worthy of being impeached, a politician who should run for office and a traitor. But the attacks came from President Donald Trump’s allies and their anger was directed not at the Supreme Court’s partisan gerrymandering ruling, but at the day’s other big decision to keep a citizenship question off the 2020 census, at least for now. Trump tweeted from Japan that the census citizenship decision was “ridiculous.” What good is a high court conservative majority fortified by two Trump appointees, the critics seemed to be saying, if Roberts is not prepared to use it? That’s not how Roberts would characterize the court he now leads in name and as the justice closest to the center of a group otherwise divided between conservatives and liberals. He has talked repeatedly about the need to counter perceptions that the justices are just politicians in black robes, beholden to the president who appointed them. The flurry of action came at the end of a Supreme Court term in which the court welcomed a new justice, Brett Kavanaugh, who narrowly survived the most tumultuous confirmation hearings in nearly 30 years. The justices now begin a three-month summer recess. The court seem determined to maintain as low a profile as possible once Kavanaugh joined the bench in early October, finding a variety of ways to keep hot-button topics like abortion, guns, immigration and gay rights, that might divide conservatives from liberals, off the term’s calendar. “This tactic may have been an effort to keep things relatively quiet” following the Kavanaugh nomination, said Josh Blackman, a law professor at the South Texas College of Law in Houston. But one result of putting off some major decisions in Kavanaugh’s first term is a docket crammed with guns, immigration, gay rights and probably abortion in a session that begins in the fall and will come to a head in June 2020, amid the presidential election campaign. So far there is only a partial answer to the big question of how far and fast the court will move to the right now that the more conservative Roberts had taken the place of Justice Anthony Kennedy, who retired last year, as the swing justice. In the case of partisan gerrymandering, Roberts closed the federal courthouse door to lawsuits, a decision that mainly benefits Republicans whose districting plans had been challenged in several states. On the death penalty, the five conservatives appear much less willing to entertain calls for last-minute reprieves from execution. And in two cases the court divided along ideological lines in overturning precedents that had been on the books for more than 30 years. But Roberts was unwilling to join the conservatives to allow the citizenship question to proceed, although it is not yet clear whether the administration will continue pressing the legal case for the question. The reaction to the census ruling was swift. Former Trump aide Sebastian Gorka called Roberts “a traitor to Constitution.” American Conservative Union president Matt Schlapp called for Roberts’ impeachment. Fox News host Laura Ingraham tweeted that “Roberts should quit and run for office.” The chief justice also declined to be the fifth conservative vote to overturn two past high court decisions about the power of federal agencies, and joined the liberals in ruling for an Alabama death row inmate who suffers from dementia. In emergency appeals, Roberts was the fifth vote to keep Trump from requiring asylum seekers to enter the country at established checkpoints and the fifth vote to prevent Louisiana abortion clinic regulations from taking effect. Twenty-one decisions, or nearly a third of all the cases the court heard since October, were by 5-4 or 5-3 votes. But of those, only seven united the conservatives against dissenting liberals. In 10 others, the cohesive bloc of liberals attracted the vote of a conservative justice. The lack of high-profile cases undoubtedly contributed to the relatively small number of ideologically divided outcomes, said David Cole, legal director for the American Civil Liberties Union, which was on the winning side of the citizenship case and the losing side of the gerrymandering one.Cole said the 5-4 decisions that cross ideological lines “send a message that this is a court that is not just determined by partisan ideology, but is applying law.” Roberts sought to reinforce that perception of the court in comments in November, speaking out after Trump called a judge who ruled against his asylum policy an “Obama judge.” Roberts responded: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” Commenting on the day before Thanksgiving, he said an “independent judiciary is something we should all be thankful for.” It could be several years before the impact of a more conservative court, assuming no changes in membership, becomes clear. But one fear among the liberal justices, and liberals more generally, is a push to restrict if not overturn abortion rights the Supreme Court first declared in the Roe v. Wade decision in 1973. At least one conservative justice has the decision in his sights. Justice Clarence Thomas at one point this term labeled it as “notoriously incorrect.” The first term of any new justice often has fewer big cases than normal, but the court’s desire to stay away from controversy was heightened by Kavanaugh’s difficult confirmation following allegations he sexually assaulted a woman when they were both in high school. He denied doing anything improper. When he arrived at the court, his colleagues seemed to welcome him warmly. Justice Elena Kagan, his neighbor on the bench, joked with the new justice and made a point of shaking his hand at the end of his first day of arguments. Kavanaugh’s parents were often in the courtroom, especially when their only child announced an opinion. The new justice “stuck pretty close to the chief in a lot of cases,” said Supreme
Redistricting reforms already taking root in many states
While ruling that it had no authority to resolve partisan gerrymandering claims, the U.S. Supreme Court noted Thursday that states could act on their own to try to limit the role of politics in drawing congressional and state legislative districts. Several states already have done so, including some where voters adopted constitutional amendments last year. In most places, state lawmakers and governors are responsible for drawing and approving political district maps following each U.S. Census. But a growing number of states have shifted the task to independent or bipartisan commissions or have changed their redistricting criteria to reduce the likelihood of partisan gerrymandering. Here are some of the states using commissions or other nontraditional methods for the next round of redistricting, which will take place after the 2020 Census. ALASKA: A five-member commission draws districts for the state House and Senate under a 1998 amendment to the state constitution. Two members are appointed by the governor and one each by the presiding officers of the House and Senate and the chief justice of the Supreme Court. Districts must be compact, contiguous and contain “a relatively integrated socio-economic area.” Alaska has only one congressional district. ARIZONA: Congressional and state legislative districts are drawn by a five-member commission established under a ballot measure approved by voters in 2000. Twenty-five potential redistricting commissioners are nominated by the same state panel that handles appeals court nominees. The Legislature’s two Republican leaders choose two commissioners from 10 Republican candidates, and the two Democratic leaders chose two from their party’s 10 nominees. Those four commissioners then select the fifth member, who must be an independent and serves as panel chairman. The constitution says “competitive districts” should be drawn as long as that doesn’t detract from the goals of having compact, contiguous districts that respect communities of interest. Democrats have accused Gov. Doug Ducey, a Republican, of influencing the commission’s composition by stacking the appellate court panel that narrows the field of potential candidates. The panel has eight Republicans and five independents, but no Democrats. CALIFORNIA: Voters approved a pair of ballot measures, in 2008 and 2010, creating a 14-member commission to draw congressional and state legislative districts. A state auditor’s panel takes applications and selects 60 potential redistricting commissioners — 20 Democrats, 20 Republicans and 20 others. The state Assembly and Senate majority and minority leaders each can eliminate two nominees from each political category. Eight redistricting commissioners — three Democrats, three Republicans and two unaffiliated members — are randomly selected from the remaining pool of candidates. Those commissioners then select an additional two Democrats, two Republicans and two unaffiliated members. Approving a map requires nine votes, including three from each political category of members. The constitution says the districts should be compact and keep cities, counties and communities of interest together to the extent possible. COLORADO: Congressional and state legislative districts will be drawn by a 12-member commission, under a pair of constitutional amendments approved by voters last November. The commission will consist of four Republicans, four Democrats and four independents selected from a pool of applicants. Half will be chosen randomly and the rest by a judicial panel. Nonpartisan legislative staff will draft proposed maps for the commission’s approval; maps will require at least eight votes, including two from independents. The state Supreme Court will then review the maps to determine whether legal criteria were followed. The districts must be compact, preserve communities of interest and “maximize the number of politically competitive districts.” HAWAII: Congressional and state legislative districts are drawn by a nine-member commission. The majority and minority party leaders in the House and Senate each appoint two commissioners. Those eight then pick a ninth commissioner. If they can’t agree, the ninth member is appointed by the state Supreme Court. Districts cannot be drawn to “unduly favor a person or political faction.” IDAHO: A six-member commission is responsible for drawing both congressional and state legislative districts. Two-thirds of the commissioners must vote to approve a map. The majority and minority party leaders in each legislative chamber each select one person to serve on the commission; the state chairmen of the Republican and Democratic parties also each select a commissioner. Mapmakers should avoid “oddly shaped” districts and preserve “traditional neighborhoods and local communities of interest.” IOWA: The nonpartisan Legislative Services Agency draws maps for congressional and state legislative districts, which are submitted to the Legislature for approval. Districts must consist of “convenient contiguous territory” and be reasonably compact. Districts cannot be drawn to favor a political party, incumbent or other person or group. MICHIGAN: Under a constitutional amendment approved by voters last November, congressional and state legislative districts will be drawn by a 13-member citizens’ commission. It will consist of four Democrats, four Republicans and five independents randomly selected by the secretary of state from among applicants. Approval of districts will require a majority vote with support of at least two Democrats, two Republicans and two independents. If that fails, each commissioner would submit a plan and rank their options by preference, with the highest-ranked plan prevailing. In case of a tie, the secretary of state would randomly select the final plan. Districts must be compact, contiguous, limit splitting of counties and cities, “reflect the state’s diverse population and communities of interest,” not favor or disfavor incumbents, and not provide a disproportionate advantage to any political party. MISSOURI: A constitutional amendment approved by voters last November will require a new nonpartisan state demographer to draft maps for state House and Senate districts. The demographer is to design districts to achieve “partisan fairness” and “competitiveness” as determined by statistical measurements using the results of previous elections. Districts also shall be contiguous and limit splits among counties and cities. Compact districts are preferred but rank last among the criteria. The maps will be submitted to a pair of existing bipartisan commissions for approval. The governor will appoint a 10-member commission for the Senate districts, choosing five Republicans and five Democrats from among nominees submitted by
Census, redistricting top remaining Supreme Court cases
The Supreme Court enters its final week of decisions with two politically charged issues unresolved, whether to rein in political line-drawing for partisan gain and allow a citizenship question on the 2020 census. Both decisions could affect the distribution of political power for the next decade, and both also may test Chief Justice John Roberts’ professed desire to keep his court of five conservatives appointed by Republican presidents and four liberals appointed by Democrats from looking like the other, elected branches of government. Decisions that break along the court’s political and ideological divide are more likely to generate criticism of the court as yet another political institution. In addition, the justices could say as early as Monday whether they will add to their election-year calendar a test of President Donald Trump’s effort to end an Obama-era program that shields young immigrants from deportation. The court’s new term begins in October. Twelve cases that were argued between November and April remain to be decided. They include disputes over: a trademark sought by the FUCT clothing line, control of a large swatch of eastern Oklahoma that once belonged to Indian tribes and when courts should defer to decisions made by executive branch agencies. But the biggest cases by far involve the citizenship question the Trump administration wants to add to the census and two cases in which lower courts found that Republicans in North Carolina and Democrats in Maryland went too far in drawing congressional districts to benefit their party at the expense of the other party’s voters. The Supreme Court has never invalidated districts on partisan grounds, but the court has kept the door open to these claims. The court has struck down districts predominantly based on race. Now though the justices are considering whether to rule out federal lawsuits making claims of partisan gerrymandering. Conversely, the court also could impose limits on the practice for the first time. It was not clear at arguments in March that any conservative justices were prepared to join the liberals to limit partisan gerrymandering. In the census case, the Census Bureau’s own experts say that Hispanics and other immigrants are likely to be undercounted if the census questionnaire asks everyone about their citizenship status. The last time the question appeared on the once-a-decade census was in 1950, and even then it wasn’t asked of everyone. Democratic-led states and cities, and civil rights groups challenging the citizenship case, have argued that the question would take power away from cities and other places with large immigrant populations and reward less populated rural areas. They have more recently pointed to newly discovered evidence on the computer files of a now-dead Republican consultant that they say shows the citizenship question is part of a broader plan to increase Republican power. The administration has said the new allegations lack merit. When the case was argued in April, it appeared that the conservative justices were poised to allow the question to be asked. Census results determine how seats in the House of Representatives are allocated among the 50 states and how billions of dollars in federal money is distributed. The population count also forms the basis for the redrawing of districts from Congress to local governments that takes place every 10 years. The court’s decisions in the redistricting cases will affect the tools state lawmakers can use to draw those districts, especially in states in which one party controls the governor’s office and both houses of the state legislature. Republican successes in the 2010 election cycle left them completely in charge of the process in such states as Michigan, North Carolina, Ohio and Wisconsin. In all four states, Democratic voters sued over congressional or legislative districts, and federal courts determined that the districts violated those voters’ constitutional rights. Democrats controlled the process in Maryland, where they successfully reshaped one district to pry it from longtime Republican control. Once the court’s work is done for the summer, the justices typically leave town to teach and travel. Justice Brett Kavanaugh will teach a course on the origins of the U.S. Constitution for George Mason University’s summer program in England, near where the Magna Carta was sealed 800 years ago. By Mark Sherman Associated Press Republished with the permission of the Associated Press.
Supreme Court rules against immigrants in detention case
A divided Supreme Court ruled Tuesday against a group of immigrants in a case about the government’s power to detain them after they’ve committed crimes but finished their sentences. The issue in the case before the justices had to do with the detention of noncitizens who have committed a broad range of crimes that make them deportable. Immigration law tells the government it must arrest those people when they are released from custody and then hold them while an immigration court decides whether they should be deported. But those affected by the law aren’t always picked up immediately and are sometimes not detained until years later. In the case before the Supreme Court, a group of mostly green card holders argued that unless they’re picked up essentially within a day of being released, they should be entitled to a hearing where they can argue that they aren’t a danger to the community and are not likely to flee. If a judge were to agree, they would not have to remain in custody while their deportation case goes forward. That’s the same hearing rule that applies to other noncitizens the government is trying to deport. But the Supreme Court disagreed with the immigrants’ interpretation of federal law in a 5-4 ruling that divided the court along ideological lines. Looking at a statutory provision enacted by Congress in 1996, Justice Samuel Alito wrote that “neither the statute’s text nor its structure” supported the immigrants’ argument. The court’s conservative justices sided with the Trump administration. The administration argued, as the Obama administration did, that those affected by the law aren’t entitled to a hearing where they can argue for their release, regardless of whether they are arrested immediately after being released from custody or not. Department of Justice spokeswoman Kerri Kupec said the administration was “pleased with the decision.” Justice Stephen Breyer, in a dissent he read aloud in court, said that the larger importance of the case has to do with the power his colleagues’ ruling gives the government. “It is a power to detain persons who have committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail,” Breyer said. He wrote that in his view the law requires immigrants who have committed crimes to be detained “within a reasonable time after their release” from custody, “presumptively no more than six months.” If the person is not detained within that time, they should get a hearing where they can argue for their release, Breyer wrote. The American Civil Liberties Union represented the immigrants in the case before the Supreme Court. ACLU attorney Cecillia Wang, who argued the case, said after the decision that the ACLU will call on Congress to clarify the law and will continue to pursue options in court. Tuesday’s ruling was based on the text of the statute, and Wang said the ACLU will argue that the statute, as interpreted by the justices, is unconstitutional. Wang also called the decision an “extreme waste of taxpayer money,” saying it locks up individuals who are not a danger to the community. The case before the justices involved a class-action lawsuit brought by noncitizens in California and a similar class-action lawsuit brought in the state of Washington. In those cases, the U.S. Court of Appeals for the 9th Circuit sided with the immigrants, but other appeals courts had sided with the government in similar cases. One of the lead plaintiffs involved in the California case, Mony Preap, has been a lawful permanent resident of the United States since 1981 and has two convictions for possession of marijuana. He was released from prison in 2006 but was not taken into immigration custody until 2013. Preap has since won his deportation case, allowing him to remain in the country. The case is 16-1363 Nielsen v. Preap. Republished with permission of the Associated Press
States ask US Supreme Court to hear Alabama abortion case
Twenty-one states are urging the U.S. Supreme Court to let Alabama ban a commonly used second trimester abortion procedure. The states filed a brief with the high court Monday asking justices to review the constitutionality of the Alabama law that was blocked by lower courts. Justices haven’t said if they’ll hear the case. The 2016 law banned the procedure known as dilation and evacuation abortions, in which the fetus is removed in pieces with forceps. State politicians used the nonmedical term “dismemberment abortion” to describe the procedure. A federal judge ruled the procedure ban was an unconstitutional restriction on abortion access. The 11th U.S. Circuit Court of Appeals upheld that decision. Several states supporting Alabama, including Kansas, Louisiana and Texas, have tried to enact similar restrictions. Republished with permission from the Associated Press
Richard Shelby announces meeting, ‘strong’ support for Brett Kavanaugh
Doug Jones says he is keeping ‘open mind’ on Brett Kavanaugh
U.S. Sen. Doug Jones of Alabama said he is keeping an “open mind” on President Donald Trump’s Supreme Court nominee Brett Kavanaugh and is not worried about a flurry of advertising pressuring him to confirm or reject the nominee. The Democratic senator told reporters Friday evening that he wants to do his “due diligence” on Kavanaugh’s work. “I want to keep an open mind on every aspect of it and look at a number of different things,” Jones said. Jones said the one concern he has is getting documents out of the White House. Democrats have asked to see records from Kavanaugh’s time there as White House staff secretary to President George W. Bush. With past nominees, everything was “turned over” unless there was a technical reason that it should be privileged, Jones said. “We need the information out of the White House,” Jones said. “We didn’t nominate him. The President did. He nominated him with a full knowing of his background. I would like to see them just say, ‘Look, OK, we will get this to you.’” The conservative Judicial Crisis Network has launched advertising in Alabama pressuring Jones, a Democrat in a red-leaning state, to confirm Kavanaugh, saying the vote “will show who Doug Jones really is.” Jones said he was not concerned about the advertising. “I’m not worried about the ads. I tell folks, ‘Ads on both sides, they are really wasting their money.’ I have a process I’m going through to do what I think is my job and ads from interest groups really don’t mean that much to me at all,” Jones said. After graduating law school in 1979, Jones worked for the Senate Judiciary Committee during his time as a staffer to the late Sen. Howell Heflin. He said the process today is “much, much, much, much more political” and partisan. “That’s very unfortunate. The framers of the Constitution wrote in an independent judiciary. And it’s hard to see how a Supreme Court is considered independent when you see so much money spent on advertising to get 51 votes,” Jones said. Republished with the permission of the Associated Press.
More LGBT issues loom as justices near wedding cake decision
A flood of lawsuits over LGBT rights is making its way through courts and will continue, no matter the outcome in the Supreme Court’s highly anticipated decision in the case of a Colorado baker who would not create a wedding cake for a same-sex couple. Courts are engaged in two broad types of cases on this issue, weighing whether sex discrimination laws apply to LGBT people and also whether businesses can assert religious objections to avoid complying with anti-discrimination measures in serving customers, hiring and firing employees, providing health care and placing children with foster or adoptive parents. The outcome of baker Jack Phillips’ fight at the Supreme Court could indicate how willing the justices are to carve out exceptions to anti-discrimination laws; that’s something the court has refused to do in the areas of race and sex. The result was hard to predict based on arguments in December. But however the justices rule, it won’t be their last word on the topic. Religious conservatives have gotten a big boost from the Trump administration, which has taken a more restrictive view of LGBT rights and intervened on their side in several cases, including Phillips’. “There is a constellation of hugely significant cases that are likely to be heard by the court in the near future and those are going to significantly shape the legal landscape going forward,” said Shannon Minter, legal director of the National Center for Lesbian Rights. Several legal disputes are pending over wedding services, similar to the Phillips case. Video producers, graphic artists and florists are among business owners who say they oppose same-sex marriage on religious grounds and don’t want to participate in same-sex weddings. They live in the 21 states that have anti-discrimination laws that specifically include gay and lesbian people. In California and Texas, courts are dealing with lawsuits over the refusal of hospitals, citing religious beliefs, to perform hysterectomies on people transitioning from female to male. In Michigan, the American Civil Liberties Union filed suit against the state’s practice of allowing faith-based child placement agencies to reject same-sex couples. Advocates of both sides see the essence of these cases in starkly different terms. “What the religious right is asking for is a new rule specific to same-sex couples that would not only affect same-sex couples but also carve a hole in nondiscrimination laws that could affect all communities,” said Camilla Taylor, director of constitutional litigation at Lambda Legal, which supports civil rights for LGBT people. Jim Campbell of the Christian public interest law firm Alliance Defending Freedom said the cases will determine whether “people like Jack Phillips who believe marriage is the union of a man and a woman, that they too have a legitimate place in public life. Or does he have to hide or ignore those beliefs when he’s participating in the public square?” ADF represents Phillips at the Supreme Court. The other category of cases concerns protections for LGBT people under civil rights law. One case expected to reach the court this summer involves a Michigan funeral home that fired an employee who disclosed that she was transitioning from male to female and dressed as a woman. The 6th U.S. Circuit Court of Appeals ruled that the firing constituted sex discrimination under federal civil rights law. That court is one of several that have applied anti-sex discrimination provisions to transgender people, but the Supreme Court has yet to take up a case. The funeral home argues in part that Congress was not thinking about transgender people when it included sex discrimination in Title VII of the 1964 Civil Rights Act. A trial judge had ruled for the funeral home, saying it was entitled to a religious exemption from the civil rights law. “Congress has not weighed in to say sex includes gender identity. We should certainly make sure that’s a conscious choice of Congress and not just the overexpansion of the law by courts,” Campbell said. ADF also represents the funeral home. In just the past week, two federal courts ruled in favor of transgender students who want to use school facilities that correspond to their sexual identity. Those cases turn on whether the prohibition on sex discrimination in education applies to transgender people. Appeals in both cases are possible. In the past 13 months, federal appeals courts in Chicago and New York also have ruled that gay and lesbian employees are entitled to protection from discrimination under Title VII. Those courts overruled earlier decisions. Title VII does not specifically mention sexual orientation, but the courts said it was covered under the ban on sex bias. The Obama administration had supported treating LGBT discrimination claims as sex discrimination, but the Trump administration has changed course. In the New York case, for instance, the Trump administration filed a legal brief arguing that Title VII was not intended to provide protections to gay workers. It also withdrew Obama-era guidance to educators to treat claims of transgender students as sex discrimination. There is no appeal pending or expected on the sexual orientation issue, and there is no guarantee that the court will take up the funeral home’s appeal over transgender discrimination. The trend in the lower courts has been in favor of extending civil rights protections to LGBT employees and students. Their prospects at the Supreme Court may be harder to discern, not least because it’s unclear whether the court’s composition will change soon. Justice Anthony Kennedy, 81, has been the subject of retirement speculation, though he has not indicated he is planning to retire. When Justice Stephen Breyer turns 80 in August, he will join Kennedy and Justice Ruth Bader Ginsburg, 85, as octogenarians on the bench. If President Donald Trump were to replace any of those justices, the court probably would be much less receptive to LGBT rights. Even the landmark gay marriage ruling in 2015 that Kennedy wrote was a 5-4 decision. “We’re very concerned about the composition of the federal bench. Under the Trump administration, we’ve seen a
Women of Influence: fair pay champion, Lilly Ledbetter
One of the most inspiring stories in Alabama women’s history is Lilly Ledbetter — a fair pay champion since the late 90’s. From her humble beginnings — in a house with no running water or electricity in the small town of Possum Trot, Ala. — Ledbetter became nationally recognized as one of the many faces of gender prejudice and sexual harassment in the workplace by the mid 2000’s. A graduate of Jacksonville High School in Jacksonville, Ala., Ledbetter started working as a district manger for H&R Block in 1969 where she oversaw 14 locations in Jacksonville and the surrounding area. By the time she left the company, she was overseeing 16 locations. While she was working with H&R Block, she also spent three years working at Jacksonville State University as an Assistant Financial aid director. “I would go in to teach classes, and do tax prep at night and on the weekend,” Ledbetter said. In 1979, Ledbetter applied and accepted her dream position as a manager at the Goodyear Tire plant in Gadsden, Ala. where she became one of the first women hired on for a management position. She said she could go toe-to-toe with any man, doing any job at the factory, nevertheless she still experienced sexual harassment and gender prejudice. After 19 years of working with the company, Ledbetter received an anonymous tip that she was receiving thousands less than her male peers in wages. Heartbroken, Ledbetter filed a sexual discrimination complaint with the Equal Employment Opportunity Commission (EEOC) in 1999. Her case went to trial, and the jury awarded her $3.3 million in compensatory and punitive damages for the pay discrimination she had been subjected to. In November of 2006, the Court of Appeals for the Eleventh Circuit Court reversed the jury’s verdict, saying that because the company’s original decision on her pay had been made years earlier, Ledbetter’s case was filed too late, even though she continued to receive discriminatory pay. In a 5-4 decision, the Supreme Court upheld the Eleventh Circuit decision and ruled employees cannot challenge ongoing pay discrimination if the employer’s original discriminatory pay decision occurred more than 180 days earlier, even when the employee continues to receive paychecks that have been discriminatorily reduced. “It was not fair, it wasn’t even close to being fair. We must go to congress, the house and the senate to prevent this from happening in the future to other females and minorities,” Ledbetter said in an interview. And she did. After realizing that the Supreme Court’s decision could undermined the Congressional goal of eliminating discrimination in the workplace, and after being called upon by Supreme Court Justice Ruth Bader Ginsberg. Congress and President Barack Obama‘s Administration acted quickly Less than two years after the Supreme Court’s decision, both the House and Senate passed the Lilly Ledbetter Fair Pay Act of 2009. A crucial piece of legislation, restoring the longstanding laws that ensure individuals who are subjected to unlawful pay discrimination are able to effectively assert their rights under the federal anti-discrimination laws. Ledbetter is still an activist today, spending her time traveling the country and educating women on fair and equal pay. “There’s still so much work to be done for women and their family’s,” Ledbetter said. “In 2020 women will have only been able to vote for 100 years! We haven’t even been able to even vote for 100 years and we still have so few rights that politicians want to do away with.” “We have to pay attention, especially with things like equal pay, where there are laws in place, but no one is enforcing them. Women have to make sure they’re being enforced so they can take care of themselves and their families.” Ledbetter is still fighting for women and equal pay across the nation, but was kind enough to answer some of Alabama Today’s questions about her life, work, and influences: How have other women influenced your success? Marcia D. Greenberger from the National Women’s Law Center, was absolutely instrumental in helping me navigate the legislative and political events I attended. She jokingly told me that she was my “bag carrier” at the Democratic National Convention in 2008. I had never been in a large group of politicians like that, as I’m not from a political background, I had no idea what I was doing and she guided me like a professional. She has inspired me tremendously, and many other women have succeeded because of her. Today Justice Ruth Bader Gingsburg is my hero! She has made a tremendous progress for women/minorities! She was the one who challenged Congress to change the Law after ruling in Ledbetter v Goodyear verdict. Did you know when you began fighting for equal pay that it would gain as much attention as it did? When I began fighting for Equal Pay, it was for myself and then it became a battle for everyone!! I had no idea the fight would gain so much attention, but everyone “got it”— Unequal Pay breaks the Law! Equal Pay is a Family affair— Unequal Pay will affect a person’s retirements also. What has been your favorite area of service, and what is your favorite thing about that position? My favorite area of service are the groups that had never thought about how Equal Pay affects your life while working and retirements! Young college groups also think we have Equal Pay and it will not be a problem when they start work. They know have Equal Pay Law, but do not understand it was enforced. Have you read any books that have shaped your perspective on life? Books on Elenor Roosevelt helped me understand the difference one person could make. First Lady E.R. made much progress and was ahead of her time. What advice would you give to young women who lack the courage to stand up for themselves? Young women need to make sure they get the Pay their work, experience, etc. because what they are short changed will affect their lives forever!! When it is lost—no way to ever get it corrected. How do you spend your free time? I try to stay very involved with my grandchildren and I love to visit them
Travel ban case is justices’ first dive into Trump policy
The Supreme Court has so far had little to say about Donald Trump’s time as president, even as the nation has moved from one Trump controversy to another. That’s about to change. The justices’ first deep dive into a Trump administration policy comes in a dispute over the third and latest version of the administration’s ban on travel from some countries with majority Muslim populations. Opponents of the policy and some lower courts have labeled it a “Muslim ban,” harking back to Trump’s campaign call to keep Muslims from entering the country. The high-stakes arguments at the high court on Wednesday could offer some indication about how a court that runs on respect for traditions and precedent will deal with a president who regularly breaks with convention. Apart from the campaign statements, Trump’s presidential tweets about the travel ban and last fall’s retweets of inflammatory videos that stoked anti-Islam sentiment all could feature in the court’s discussion of the travel ban’s legality. “The court could get to the right outcome without getting into the question of his tweets. But I think the president set it up so that it’s virtually impossible to ignore him when he’s shouting from the rooftops about what his purpose was in the three versions of the ban,” said Cecillia Wang, the American Civil Liberties Union’s deputy legal director. Solicitor General Noel Francisco, who will argue the administration’s case, said in a court filing that the ban is well within the president’s authority and is not based on prejudice against Islam. In a sign of heightened public interest, the court is taking the rare step of making an audio recording of the proceedings available just hours after the arguments end. One key issue will be how the court evaluates administration actions. Neil Eggleston, President Barack Obama’s last White House counsel, suggested in an online forum last week that Trump does not merit the same measure of latitude that courts usually give presidents, especially in the areas of national security and immigration. “The court will have to wrestle with how much to defer to a President who has created this record of chaos and animus,” Eggleston and co-author Amanda Elbogen wrote on justsecurity.org. Josh Blackman, a professor at the South Texas College of Law in Houston, cautioned that the court would be breaking new ground if it were to treat Trump differently from other presidents. The policy under review at the court applies to travelers from five countries with overwhelmingly Muslim populations — Iran, Libya, Somalia, Syria and Yemen. It also affects two non-Muslim countries: blocking travelers from North Korea and some Venezuelan government officials and their families. A sixth majority Muslim country, Chad, was removed from the list this month after improving “its identity-management and information sharing practices,” Trump said in a proclamation. Francisco said the Chad decision shows that the restrictions are premised only on national security concerns. He also said that the State Department has cleared more than 430 visa applicants from the affected countries for waivers that would allow them to enter the U.S. But the challengers argue that the administration cannot ask the court to ignore all that has happened. Trump’s first travel ban was issued just a week after he took office in January 2017, and was aimed at seven countries. It triggered chaos and protests across the U.S. as travelers were stopped from boarding international flights and detained at airports for hours. Trump tweaked the order after the 9th U.S. Circuit Court of Appeals in San Francisco refused to reinstate the ban. The next version, announced in March 2017, dropped Iraq from the list of covered countries and made it clear the 90-day ban covering Iran, Libya, Somalia, Sudan, Syria and Yemen didn’t apply to those travelers who already had visas. It also eliminated language that would give priority to religious minorities. Critics said the changes didn’t erase the ban’s legal problems. The 9th Circuit and the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, agreed with the ban’s opponents. The 4th Circuit said the ban “drips with religious intolerance, animus and discrimination.” The 9th Circuit ruled that Trump violated immigration law. The third version is indefinite, unlike the other two, and the administration said it is the product of a thorough review of how other countries screen their own citizens and share information with the U.S. It fared no better than its predecessors in the lower courts, but the Supreme Court said in an unsigned order in December that it could take full effect while the legal dispute continues. The justices said nothing about the substance of the policy, either in December or in earlier actions involving the ban. Now, though, they are confronted with the administration’s view that Trump has broad discretion to impose limits on immigration and that the courts don’t even have a role to play. The Justice Department has said throughout the course of the legal fight that the lawsuits challenging the policy should be dismissed without ever reaching the challengers’ claims. The administration says that foreigners have no right to enter the United States and no right to challenge their exclusion in American courts. Supporting briefs for the ban’s challengers dwarf filings on the administration’s side. Retired high-ranking military officers, former Republican officeholders, Catholic bishops, Amazon, Facebook and 113 other companies, the children of Japanese-Americans who were held in internment camps during World War II and more than a dozen mainly Democratic-led states are among those calling on the court to strike down the Trump policy. The administration’s supporters include roughly the same number of Republican-led states, as well as conservative groups and Jay Sekulow, one of Trump’s personal lawyers. A decision in Trump v. Hawaii, 17-965, is expected by late June. Republished with the permission of the Associated Press.
