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Recent Posts
- Election Night Preview — Part Six (Post-Midnight Eastern)
- Election Night Preview — Part Five — The Local News and the West Coast (11:00 To 11:59 P.M. Eastern)
- Election Night Preview — Part Four — Prime Time Hour Three (10:00 to 10:59 P.M. Eastern)
- Election Night Preview — Part Three — Prime Time Hour Two (9:00 To 9:59 P.M. Eastern)
- Election Night Preview — Part Two — Prime Time Hour One (8:00 to 8:59 p.m. Eastern)
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Tag Archives: employment discrimination
Religious Freedom (for some) — Supreme Court Overtime Edition 2
The big news out of the Supreme Court today is that Thursday is the last opinion day of the court. Under normal practice, the justices would hold a public session in their courtroom to announce the opinions. Opinions would be announced in reverse order of seniority (with some exceptions for companion cases) with the justice who wrote the opinion reading a brief summary of the opinion and (sometimes) a dissenting justice reading a statement as well (but such a statement is a rare event). With the Supreme Court not being open to the public (and no public information office handing out copies to reporters), the opinions are merely being posted on-line but at roughly the same pace (one every ten minutes) as would be true if the Supreme Court was actually proceeding as normal with the opinions being released in the courtroom. As we have already seen this term, sometimes the Supreme Court’s website is not quite up to the traffic associated with a major opinion. But, if you wish to go to www.supremecourt.gov at 10am EDT and repeatedly refresh, you can see the opinions as they are being released. As discussed further below, my expectation is that the Chief Justice will have one of the two (or maybe both) of the Trump tax cases. If that is the case, I would expect the Oklahoma opinion to be released at 10 (regardless of who has the opinion) followed by two Trump tax cases at 10:10 and 10:20., but there is a chance of one of the two Trump tax cases at 10:00 followed by the Oklahoma case at 10:10 and the Chief Justices opinion at 10:20. It all depends on how closely connected the holding in the two Trump tax cases are.
Today, the Supreme Court released the two remaining “religion” cases. The first case, written by Justice Alito, concerned the “ministerial exception” as it applies to school teachers. The ministerial exception has its roots in the Free Exercise Clause. Basically, under the Free Exercise Clause, the government has no power over the religious leaders of a religious organization. Courts only play a limited role in deciding intra-faith disputes and only when the issue to be resolved is a secular matter like which group of opposing claimants to leadership actually has title to the assets of a religious organization (including the right to use the name). Today’s case, however, takes the exception to (and arguably past) the breaking point. The issue is whether teachers at a parochial school are covered by the ministerial exception. On the one hand, teachers at a parochial school — especially an elementary school where one teacher handles all subject matters — do teach some religious materials and are expected to comply with a code of conduct. On the other hand, many parochial schools — while having a preference that teachers belong to the same sect that runs the school — do not expressly mandate that teachers are members of the religious group running the school. The majority — in a 7-2 decision — essentially held that all teachers in religious schools are minister based solely on the school’s assertion that it views them as ministers and that the decision to fire was based on non-religious grounds. As the purpose of the ministerial exception is to avoid courts from having to decide whether a particular minister is sufficiently “orthodox,” this broadening of the exception is significantly divorced from the purpose behind the exception. In this consolidated case, the two teachers claimed that they were fired based on age (violating the law against discriminating based on age) and medical condition (breast cancer, violating the laws governing medical leave). The schools — while asserting an absolute bar to proceeding on the merits due to the ministerial exception — asserted that they were fired because they were not good teachers. In short, religious issues had nothing to do with the case, and a court could have decided which secular reason was the main motivating factor in the decision to fire these two teachers.
The other case involved the contraception mandate. Amazingly, the majority opinion by Justice Thomas only made a passing reference to the Religious Freedom Restoration Act. Instead, the gist of the opinion was whether the Affordable Care Act gave the government discretion to create a religious exemption to the contraception mandate. Technically, the majority opinion does not resolve the final issue of whether the current regulation is valid. Instead, it merely held that the Affordable Care Act granted the government the discretion to create an exception for religious groups (and private companies) with moral objections to the mandates and that the government complied with the procedural requirements of the Administrative Procedure Act. The case is sent back to the lower court to decide if the regulation was adequately supported by the administrative record. (Which means that the future of the contraceptive mandate and this religious exemption depends on the results of the election.)
Posted in Donald Trump, Judicial
Also tagged Affordable Care Act, Contraceptive Coverage, Free Exercise Clause, Native American Rights, Supreme Court, Trump Financial Records, Trump subpoenas
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Equality Maybe?
In a somewhat surprising decision, the United States Supreme Court issued its long awaited decision on Title VII and the LGBTQ community. There were several unexpected things in the opinion. Going in the best bet was that the Supreme Court would find that discrimination against transgender individuals fit the requirement that the discrimination was “on the basis of sex,” but that the Supreme Court would find that “on the basis of sex” did not cover sexual orientation. Second, because of this potential split in the reasoning, there was a good reason to expect two separate opinions, one dealing with the two homosexual employees and one dealing with the transgender employees. Third, as I noted on Saturday, it looked like Chief Justice Roberts would be writing at least one of the opinions.
Instead, what we got was one opinion covering all three cases that sided with the employees. Even more unexpected was that the justice holding the stolen Supreme Court seat — Justice Neal Gorsuch — was the author of the opinion. (Yes, part of me is having thrills of joys at how Trump is going to be able to explain this one to the folks who just voted out a conservative Republican congressman for officiating at a same-sex marriage.) Of course, the opinion was not unanimous, (6-3 with Chief Justice Roberts joining the majority) and two justices (Justice Alito and Justice Kavanaugh) wrote dissents driving the total length of the opinions in this case to 172 pdf pages.
Now for the bad news. First, the dissenters tried to hide their true colors on the issue of equality by painting this case (like the previous decisions in the gay marriage cases) as being about what the law is, not what the law should be. They even went so far as to express the incredible belief that, but for this decision, we are within years of Congress acting to expand anti-discrimination laws to cover sexual orientation, claiming that the Supreme Court was overstepping its bounds by acting. (Of course, they failed to identify the reason why the proposed fix has never managed to get past both houses in the same session — Republican Party control of the other house. See the above-mentioned result this weekend in the nominating convention for Virginia’s Fifth District.)
Posted in Civil Rights, Judicial, LGBT
Also tagged Justice Neal Gorsuch, Supreme Court, Title VII
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Title VII and Sexual Orientation/Gender Identity — Some Thoughts on the Supreme Court Argument
Most summaries of the Supreme Court arguments on the three Title VII cases on sexual orientation/gender identity reflect that the arguments were a rather convoluted mess. While I have a hunch that we are heading toward a 5-4 decision with the judges splitting on partisan lines, there was enough in the argument to blur the lines as justices seemed to depart from their traditional stances.
One of the big debate in legal fields over the past 100 years is about the theory of “legal realism.” In oversimplified terms, legal realism contends that judges are just politicians wearing robes and that they decide cases based solely on their policy preferences. The alternative theory, as expounded by Chief Justice Roberts during his confirmation hearing, is that judges are just umpires calling the balls and strikes based on rules drawn up by others. In this latter school of thought, judges are trying to interpret the meaning of texts and should not be concerned about the real world consequences of their decisions.
Much of the debate in the ball and strikes theory is about the proper method of interpreting legal texts. In recent years, conservatives have been big on textualism. Textualism posits that words in a text have meaning. If some of the terms are ambiguous, there are rules that can be applied to clarify the text (e.g., by looking at the term in the context of that statute and how that term is used in other similar statutes). The alternative to textualism is often a reference to legislative history, but — as many statutes were written during a time when liberals had the upper hand in Congress — legislative history (primarily the reports summarizing what a bill was intended to achieve) often supported a more liberal result. So conservative judges argued that those reports were never actually approved by Congress and that judges should only look at what Congress actually passed — the statutory language itself.
Posted in Civil Rights, Judicial, LGBT
Also tagged gender identity, Sexual Orientation, Supreme Court, Title VII
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Supreme Court Term Preview — October 2019 Term (Part I)
It’s that time of year again. October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments. This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions. Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.
(For a little explanation of what I mean about argument sessions and filling them. From October through April, the Supreme Court has seven argument sessions. Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays. A “normal” argument day consists of two arguments on two cases. Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position. Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session. A Supreme Court case has two rounds of written arguments. The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari. These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take. While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions. If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument. The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of. Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better. So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June, And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session. Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)
At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions. While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible). Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term. Any attempt to guess what is likely to be granted is highly speculative. The Supreme Court accepts about 1% of the cases for actual full review. Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review.
Posted in Civil Rights, Judicial, LGBT
Also tagged Chief Justice John Roberts, Justice Anthony Kennedy, Justice Brett Kavanaugh, Puerto Rico, Sexual Orientation, Supreme Court, Title VII
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