Sunday, October 13, 2019

Title VII Applies to Sexual Orientation "Because of Sex"

      Five years before Stonewall, Congress passed a law prohibiting discrimination in the workplace "because of sex," with no thought about barriers facing gay men and lesbians in getting and holding jobs. Thus, the law, Title VII of the Civil Rights Act of 1964, did not explicitly cover discrimination based on sexual orientation or gender identity, phrases not even coined at the time much less in common use.
      As early as the 1970s, however, gay rights advocates began arguing in court that a law prohibiting discrimination because of sex necessarily applies, as a simple matter of statutory construction, to discrimination because of sexual orientation as well. At the Supreme Court last week [Oct. 8], the veteran LGBT rights advocate Pamela Karlan opened with a simple and irrefutable example to prove that point, but conservative justices resisted the necessary implication of their strict textualist approach to statutory construction.
      "When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," Karlan explained. That discrimination is "because of sex," Karlan continued, because the employer's action "is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men."
      For most of the past 50 years, courts and the Equal Employment Opportunity Commission (EEOC) have found Title VII inapplicable to anti-gay discrimination on the ground that Congress in 1964 intended nothing beyond "traditional" notions of sex. Over the past 30 years, however, textualists led by the late Justice Antonin Scalia have insisted that words matter, not intentions, in the delicate judicial art of statutory construction.
      Courts stuck with this narrow approach even as the Supreme Court ventured beyond Congress's intent in decisions extending Title VII to issues unthought-of in the 1960s. The 9-0 decision in Meritor Savings Bank v. Vinson (1986) applied Title VII to a male supervisor's sexual harassment of one of the bank's female employees on the ground that the law was intended "to strike at the entire spectrum of disparate treatment of men and women' in employment."
      Three years later, the Court held in a 6-3 decision, Price Waterhouse v. Hopkins (1989), that Title VII also applies to adverse employment decisions based on an employee's failure to conform to gender stereotypes. The ruling allowed Ann Hopkins to sue after the accounting firm's male partners denied her a promotion because she was "too macho."
      A decade later, Scalia himself led a unanimous Court in extending Title VII even further. The ruling in Oncale v. Sundowner Offshore Services, Inc. (1998) applied Title VII to same-sex harassment suffered by the straight male plaintiff from his coworkers on an offshore oil rig. "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," Scalia explained in his opinion for the Court.
      The EEOC extended Title VII to anti-gay discrimination in a ruling in 2015 that favored a Federal Aviation Administration air traffic controller who was passed over for a promotion after mentioning to his supervisor that he and his partner had recently attended Mardi Gras celebrations in New Orleans. "We don't need to hear about that gay stuff," the supervisor reportedly told him.
      "Sexual orientation is inherently a sex-based consideration," the EEOC stated in its 17-page opinion in Baldwin v. Fox. "An allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."
      The gay plaintiffs in the two cases argued before the Court, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, were both fired after they were outed, inadvertently, by circumstances. Gerald Bostock was fired from his job as a child welfare specialist in Clayton County, Georgia, after the local gay paper showed him playing in the gay softball league. Donald Zarda was fired from a New York skydiving company after he tried to reassure a female student by telling her that he was 100 percent gay.
      The federal appeals court in New York ruled in Zarda's favor, but the federal appeals court in Georgia in Bostock's case stuck with the majority view that Title VII permits anti-gay discrimination. The EEOC gave both of the plaintiffs right-to-sue letters, but the agency was unheard from in either of the cases or a third case, Harris Funeral Homes v. EEOC, seeking to apply Title VII to protect transgender employees.
      With no independent litigating authority, the EEOC was sidelined by the Trump administration's decision to support the discriminating employers in the three cases. Representing the administration, Solicitor General Noel Francisco began simply but misleadingly, "Sex means whether you're male or female, not whether you're gay or straight."
      Two of the liberal justices, Sonia Sotomayor and Elena Kagan, hoisted Francisco on his textualist petard. "The text of the statute appears to be pretty firmly in Ms. Karlan's corner," Kagan told him. But Francisco gained ground with two of the conservatives, Samuel A. Alito Jr. and Neil Gorsuch, by warning that it would be "pernicious" for the Court to extend Title VII beyond what Congress intended.
      Alito and Gorsuch worried about "massive social upheaval" from a judicial ruling to extend Title VII to anti-LGBT discrimination. Oddsmakers were hedging their bets after last week's arguments, but take pity on the law clerks in the conservative justices' chambers assigned to show that sexual orientation has nothing to do with sex.

Sunday, October 6, 2019

Trump Off the Rails on Impeachment

      President Trump is now conceding that the House of Representatives is all but certain to impeach him by Thanksgiving for the high crime of soliciting foreign assistance to benefit him in his bid for reelection next year. His inability to control or manipulate events has driven the distractible Trump to new heights of distraction, even to the point of adding to the articles of impeachment by publicly soliciting China's help on Thursday [Oct. 3] in digging up dirt on his political rival, former vice president Joe Biden, and Biden's global business-dealing son Hunter.
      The president's defense strategy appears to turn on how he feels any given day and, recently, he has not been feeling well at all. Trump was "as riled up as any time in his presidency," according to the New York Times's senior White House correspondent Peter Baker, when he called on China as the second foreign country that should investigate Hunter Biden's business dealings for unspecified wrongdoing.
      On Capitol Hill, Florida's Republican senator Marco Rubio, the former Trump rival turned Trump lapdog, had no better answer to Trump's latest high crime than to insist that he was not serious. China, apparently, agreed; Beijing responded to Trump's veiled threat to step up the trade war unless it bowed to his demand by saying that it would not interfere in the U.S. election.
      Meanwhile, the email traffic between administration officials in Washington and embassy personnel in Kyev confirmed what Trump had initially denied until eventually defending as completely proper. The text exchanges, as shown on cable news programs and in the pages of the New York Times and other newspapers, show that the White House was slow-walking President Volodymyr Zelensky's hoped-for White House meeting until he delivered on the asked-for investigation of Hunter Biden's role in the Ukrainian natural gas company Burisma.
      With the former ambassador, Marie Yovonovitch, removed because she would not cooperate, it was left to the embassy's chief of mission, Bill Taylor, to try to make sense of the demands from Washington. "Are we now saying that security assistance and WH meeting are conditioned on investigations?" Taylor asked in a Sept. 1 text message. Eight days later, he put his objections into writing. "As I said on the phone," Taylor wrote in a Sept. 9 text, "I think it's crazy to withhold security assistance for help with a political campaign."
      It bears repeating that the risk of foreign influence on the new government was the very danger that led the Framers in 1789 to give Congress a method for removing the president. Only now, 230 years later, has the fear materialized. "We have never seen the president of the United States using his foreign policy power for his own political advantage," Mieke Eoyang, a former staff director for the House Intelligence Committee, remarked in a briefing sponsored by the progressive American Constitution Society (ACS).
      Trump continues to deny and to dismiss as unimportant Russia's documented interference in the 2016 election benefiting him by publicizing Hillary Clinton's emails and spreading cybersmears about her among targeted population groups and in targeted battleground states. In Moscow, the Russian president Vladimir Putin was pursuing this strategy eagerly, as one of several initiatives aimed at destabilizing Western democracies that he views as obstacles to Russia's rightful place in the world.
      Ukraine, on the other hand, had no interest in U.S. politics except its own sovereignty and transparency, but the emails before Trump's infamous July 25 telephone call with Zelensky make clear the pressure on him to bow to Trump. "I spike [sic] directly to Zelensky and gave him a full briefing," Gordon Sondland, U.S. ambassador to the European Union, wrote six days before the phone call. "He's got it."
      With the phone call concluded, the U.S. diplomats set about drafting the actual statement that Zelensky was to use in announcing the requested investigation. For Trump's lackeys, it was not enough that Ukraine had lost part of its territory to Russia; it also had to be turned into an actual client state for Trump to control.
      Trump's substantive defense to the looming charges against him consists mostly of confusion and deflection, according to Michael Gerhardt, the University of North Carolina law professor and author of Impeachment: What Everyone Needs to Know. Trump and House Republicans are insisting that House committees cannot conduct an impeachment inquiry without a formal House vote first. Not so, Gerhardt remarked in the ACS briefing. "The fact is that all the procedures are being properly followed," he said.
      In the meantime, Trump has hurled denunciations right and left. The still unidentified whistleblower is a spy in Trump's telling and perhaps deserves the punishment once reserved for spies, an apparent reference to execution. Trump is demanding the whistleblower's identity, in contravention of the law guaranteeing whistleblower confidentiality. As the law's main author, Iowa's senior Republican senator Charles Grassley broke GOP ranks over the issue. "We should always protect whistleblowers," Grassley said in a statement on Tuesday [Oct. 1].
      Judging from his conduct so far, Trump is all but certain to go even further off the rails as the House moves toward impeachment and the articles, however many there be, move toward trial in a Senate controlled by Trump-fearful Republicans. Trump is counting on division, just as he did in his campaign. "He's making it clear," MSNBC's Chris Matthews remarked on Hardball last week. "If he's going down, he's taking the country with him."

Sunday, September 29, 2019

Impeach Trump to Deter Future Presidents

      Before Watergate. few students of the American presidency would have thought that a president would send burglars into an opposing political party headquarters and then direct hush-money payments to the burglars to keep them from spilling the beans. But President Richard M. Nixon did those things and, after incontrovertible proof emerged, resigned in the face of a certain impeachment, conviction, and removal from office.
      Nixon's cut-short impeachment establishes a clear precedent of what constitutes "high crimes and misdemeanors" under the Impeachment Clause and serves to deter any future chief executive from repeating his misconduct. Today, President Donald Trump must be impeached for his attempt to solicit a foreign government's interference in the 2020 election to deter him from doing it again and to set the precedent for future chief executives.
      Trump actively solicited Russia's interference in the 2016 election and consciously benefited from the Putin government's disinformation campaign against Trump's opponent, Hillary Rodham Clinton. Trump escaped accountability for his actions after special counsel Robert Mueller failed to find prosecutable evidence that Trump and his campaign directly colluded with the Russians in their interference.
      Trump took from this episode the lesson that he could get away with it. Three years after the infamous Trump Tower meeting to gather dirt on Clinton from the Russians, Trump went so far as to tell ABC's George Stephanopoulos that he would take information on a future opponent from a foreign government. "There's nothing wrong in listening," he told Stephanopoulos. "I think I'd want to hear it."
      Long after the fact, it is now known that Trump actually told Russian diplomats during a meeting in the Oval Office four months after taking office that he had no concerns about the Russians' interference in the 2016 election. Unchastened, Trump directly asked for Ukraine's help in the 2020 election in his now infamous July 25 telephone call with Ukraine's newly elected president, Volodymyr Zelensky.
      The so-called "rough transcript" of that telephone conversation, as eventually released by the White House, confirms the incriminating account that the unidentified intelligence community whistleblower pieced together in the course of his official duties from others with direct information about the call. The "memorandum" of the call shows that Trump dangled military aid before Zelensky as he asked the Ukrainian head of state for his government's assistance in investigating former vice president Joe Biden, currently the leading Democratic candidate to oppose Trump in 2020.
      Even with the damning evidence for all in Congress and the American public to see for themselves, Trump has continued to insist the call was "perfect," not merely innocent. House Speaker Nancy Pelosi moved quickly to greenlight an impeachment inquiry in the Democratic-controlled House of Representatives. By midweek, more than 218 Democrats —  a majority in the 435-member House —  had publicly supported Pelosi's move, suggesting that Trump is now all but certainly facing impeachment by the House and a trial in the Senate for yet-unspecified high crimes and misdemeanors.
      With the 2020 election still a year away, the House must impeach Trump if for no other reason to warn him against any other election-related misconduct. Timothy Snyder, the Yale historian who raised alarms early in Trump's presidency of tyranny-creep, aptly noted Trump's lack of remorse in an appearance with MSNBC's Rachel Maddow on Friday [Sept. 27]. "Seeking foreign interference in two elections is a record unlikely ever to be broken," Snyder remarked.
      At Pelosi's direction, the Democratic strategy for now appears to be to gather evidence on Ukraine-gate quickly —  Secretary of State Mike Pompeo received strongly-worded subpoenas on Friday — and then move on after hearings to a single-count article of impeachment. That "short and sweet" strategy may be best politics for the steep uphill road that Democrats face in an eventual trial in a Senate controlled by Republicans who cower in fear of being "primaried" by Trump's base.
      Republicans and Trump apologists —  but I repeat myself —  have concocted a false narrative that Trump actually wanted to help Ukraine ferret out corruption of the sort that  he and the manic Rudy Giuliani falsely imagine Biden and his son Hunter committed.  To be clear, Ukraine's prosecutor has stated that Hunter Biden did nothing illegal as a board member of the Ukrainian oil company and Joe Biden, as vice president, helped oust the former prosecutor for lack of anti-corruption initiatives.
      A one-count article of impeachment against Trump would establish that a president's soliciting a foreign government's assistance in gathering dirt on a political opponent amounts to impeachable conduct even if, in the political circumstances, he is not convicted. The precedential value of an impeachment could be increased if other counts were added — for example, for Trump's open and notorious violation of the Constitution's Emoluments Clauses, as argued in this column as early as 2017.
      With the evidence not yet disclosed, Biden accurately described what we now know Trump did in the phone call. "That is not the conduct of an American president," Biden said. Sadly, it was, but one hopes never again.
      Trump has lowered the bar for presidential conduct from his first day in office, but Congress must at least draw a line against using the presidency for a shakedown in the manner of a Mafia don. The House's duty is clear even if conviction in the Senate is unlikely and the political effects of the process unclear. Yes, "Impeach Now."

Sunday, September 22, 2019

For Same-Sex Couples, No Equality Under 'Special Rules'

      Back in the day when anti-LGBT campaigns were in fashion, opponents tried to rally the public against gay rights with campaigns built around the powerful if misleading slogan, "No special rights." The anti-gay groups used the slogan to stall or block anti-discrimination measures by arguing to lawmakers and voters that equal treatment under the law would give gay folk a privileged status instead of the legitimate birthright guaranteed to all Americans.
      Decades later, LGBT advocates achieved a landmark victory with the Supreme Court's decision in 2015 guaranteeing equal marriage rights for same-sex couples nationwide. Four years later, however, some same-sex couples are discovering that their ostensibly equal rights come with an asterisk: "special rules" that grant them fewer rights than opposite-sex couples enjoy.
      Within recent days, the U.S. Department of State and the Arizona Supreme Court have given their stamps of approval to policies that reduce same-sex couples' unions to second-class marriages under the law. The victims of these decisions are same-sex couples shopping for wedding invitations in Phoenix and a married gay couple in Maryland seeking to establish U.S. citizenship for their Canadian-born infant daughter.
      The Arizona court's 4-3 decision in Brush and Nib Studio LC v. City of Phoenix marks the first time a state court has squarely held that a company serving the public has a constitutional right to violate an anti-gay discrimination law. The stationery store, owned by two self-identified Christians who cite religious beliefs in opposing same-sex marriage, sued the city in state court claiming a First Amendment right to refuse to print customized wedding invitations for same-sex couples.
      Writing for a majority that included four Republican-appointed justices, Justice Andrew Gould concluded that it would amount to unconstitutional "compelled speech" to require Brush and Nib's owners to customize invitations with the customary request to join in celebrating a marriage that they disapprove of. The dissenting justices, the Court's only Democratic-appointee and two Republicans, contended that the city's ordinance regulated conduct, not speech, with only "incidental" effect on the store owners' speech rights.
      Supreme courts in three other states have rejected similar claims by anti-gay marriage business owners: a baker in Colorado, a photographer in New Mexico, and a florist in Washington. The U.S. Supreme Court ruled for the Colorado baker in its  decision Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission in 2017 only by finding that the state agency's decision to fine the baker was tainted by religious bias.
      The Washington Supreme Court reaffirmed its decision in the florist's case after the U.S. justices sent the case back with instructions to reconsider the case in the light of Masterpiece Cakeshop. In short, the Arizona court's decision, filed on Monday [Sept. 16], breaks new ground by throwing same-sex couples under the religious-liberty bus when claiming rights to equal treatment under state or local anti-discrimination laws.
      The Maryland couple's dispute with the State Department marks the most recent skirmish for married same-sex couples raising children born through some form of assisted reproduction. Roee Kivit and Adiel Kiviti, Israeli-born U.S. citizens who married in California in October 2013, used a gestational surrogate to give birth to their second child, a daughter, in Calgary, Canada, earlier this year.
      K.R.K.'s birth certificate accurately lists Roee and Adiel as parents, not the surrogate mother. But the State Department has refused to issue a passport showing K.R.K. to be a U.S. citizen, just as a child of married U.S. citizen parents ordinarily would be even if born abroad. The State Department is ignoring the couple's marriage by invoking an immigration law provision that limits citizenship for an out-of-wedlock child born outside the United States.
      For an unmarried couple, a child born abroad to U.S. citizen parents is entitled to U.S. citizenship only if both parents satisfy a durational U.S. residency requirement: specifically, at least five years' residence in the United States prior to the birth. Adiel does not satisfy that requirement: he became a lawful permanent resident in 2015 and a U.S. citizen in 2019.
      Lawyers from Lambda Legal, representing the couple, argue in a 22-page complaint filed earlier this month [Sept. 12] in federal district court in Rockville that the State Department policy is contrary to law and unconstitutional as well. The policy, the lawyers argue, discriminates against the couple because of their sexual orientation and serves "no rational, legitimate, substantial, or compelling government interest."
      Admittedly, children born to married same-sex couples pose novel issues for the law, but the Supreme Court has already issued one ruling that, in effect, requires states to treat same-sex couples just as they would treat opposite-sex couples. The summary 6-3 decision in Pavan v. Smith (2017) required Arkansas to list two married lesbians as parents on their child's birth certificate: the biological mother as well as her female spouse.
      The Court noted that a married opposite-sex couple would both be listed as parents of a child born through assisted reproduction, even if the husband was not the biological father. The ruling emphasized that the Court's marriage-equality decision, Obergefell v. Hodges, entitles same-sex couples to marriage "on the same terms and conditions as same-sex couples."
      The State Department policy flies in the face of that command and illustrates the need to continue educating and pressuring officials at all levels of government to give same-sex couples the full measure of equality under the law. Until that day, the fight for LGBT rights is not yet won.

Saturday, September 14, 2019

Roberts Court Indulges Trump on Asylum Rules

      The Supreme Court played the role of President Trump's lap dog once again last week [Sept. 11] by allowing the administration to put into effect new asylum rules that effectively nullify the federal law guaranteeing asylum applicants the chance to make their case in U.S. immigration courts.
       Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
      Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
      The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts  with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
      The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
      In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
      Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
      The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
      The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals —  pending a final decision in the cases challenging the administration's action.
      In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
      Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
      The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
      Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
      The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.

Sunday, September 8, 2019

In Carolina, GOP Nixes Racial Justice on Death Row

      North Carolina's legislative and gubernatorial elections in 2012 turned out to be matters of life or death for six of the 143 inmates currently awaiting execution on the state's death row.
      The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
      Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law.  Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
      The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
      The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
      The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
      In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
      In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
      The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
      For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
      In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
      The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
      The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
      The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.

Monday, August 26, 2019

Courts Taking a Bite Out of Establishment Clause

      The Supreme Court took a bite out of the constitutional prohibition against establishment of religion in June by allowing a Maryland state agency to display and maintain a 40-foot Christian cross on public land as a World War I memorial. Writing for the majority in American Legion v. American Humanist Association, Justice Samuel A. Alito Jr. based the decision on the premise that the so-called Peace Cross in Bladensburg, Maryland, had historic significance as a memorial to fallen wartime service members apart from its symbolic affirmation of Christian doctrine.
      Alito's opinion tracked the central argument that Neal Katyal, the former acting U.S. solicitor general, made in defending the Peace Cross on behalf of the Maryland-National Capital Park and Planning Commission. Katyal emphasized that the cross had acquired an "objective meaning" as a memorial to the millions of service members from all sides killed in World War I, including the 49 men from Prince Georges County killed while wearing U.S. uniforms.
      Civil libertarian supporters of church-state separation had expected the Court, with its conservative Republican majority, to allow the cross to continue standing where it has stood for 90 years, but hoped for a narrow ruling that would maintain limits on how far the government can go in favoring or endorsing one specific religion. The American Civil Liberties Union issued a statement on the day of the ruling, June 20, describing it as a "narrow" decision.
      The Court sent a signal a week later, however, that the decision portends a relaxed view for future Establishment Clause challenges beyond the specific facts of the Peace Cross case. In a brief order issued on June 28, the justices told the Eleventh U.S. Circuit Court of Appeals to reconsider its decision to bar the city of Pensacola, Florida, from maintaining a stand-alone, 34-foot Christian cross in a public park in the city. 
      The wooden cross at issue in Kondrat'yev v. City of Pensacola was erected in 1941 by the National Youth Administration to serve as the focal point of what was to become an annual Easter sunrise program — in short, the setting for an annual religious service in a government facility. The appeals court found the cross to run afoul of the Establishment Clause in a decision issued in September 2018, but the Supreme Court gave the city a partial victory in its appeal by ordering the appeals court to reconsider its decision in the light of the justices' ruling in American Legion.
      By the way, the city of Pensacola's official seal includes a Christian cross as its central image. A cross is also the central image in the official seal that Lehigh County, Pennsylvania, adopted in December 1944. The Lehigh County seal is the focal point of an Establishment Clause suit filed by the Freedom From Religion Foundation but rejected on Aug. 8 by a panel of the Third U.S. Circuit Court of Appeals.
      In his opinion for the appeals court, Judge Thomas Hardiman, a two-time runner-up for a Supreme Court seat, applied American Legion in finding no constitutional violation. Hardiman conceded that the plaintiffs suffered legal injury as a result of "direct and unwelcome contacts" with the official seal, but he read the Court's new decision to give a presumption of constitutionality to "longstanding symbols" that incorporate religious imagery
      At the Supreme Court, attorney Michael Carvin, representing the American Legion, conceded that some governmental displays of a Christian cross would likely violate the constitutional prohibition against establishment of religion. In answering a question from Justice Brett Kavanaugh, Carvin adopted Justice Anthony M. Kennedy's suggestion in a decision in the 1980s that a Christian cross atop city hall would be unconstitutional, because, as Carvin explained, "it constitutes proselytizing."
      Carvin went on to reject some of the hypotheticals suggested by the other side in the Peace Cross case. "If they're putting up crosses at every courtroom, every DMV window, and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity." he told the justices.
      Pensacola and Lehigh County both seem to have gone too far, under Carvin's reasoning and under the Court's fact-specific decision in the Peace Cross case. The Bayview Park cross in Pensacola serves as the stage for a religious service. The Framers of the First Amendment surely would have deemed it improper for the government to use public funds to build a church or an outdoor facility for the specific purpose of holding religious services.
      The city seals in these two municipalities also offend church-state separation by incorporating the preeminent symbol of Christian doctrine, just as much as a Christian cross atop city hall would give official imprimatur to one religion over all others. The non-believing Lehigh County plaintiffs complained of seeing the seal with its Christian cross, for example, when paying real estate tax bills or reporting for jury service, analogous to Carvin's hypothesis of a cross on every DMV window.
      The self-styled religious freedom advocates who defend these governmental displays of Christian symbols are no friends of the religious freedom embodied in the First Amendment. The Framers wanted nothing to do with government-established religion, but the self-styled originalists on the Supreme Court have lost sight of that original understanding of the Establishment Clause and may be leading lower courts to go farther afield from that original understanding as well.