An Absolute Right to Discriminate
Thousands upon thousands of schoolteachers at religious schools – teachers who are mostly women – have been stripped of protection against anti-discrimination laws. Once again, religious rights trump women’s right to equality.
Pinkwashing the Supreme Court
The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.
June Medical As The New Casey
As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.
Updates | The Week of December 18, 2017
Another federal judge blocked a Trump Administration executive order that would allow employers with religious objections to refuse employee's contraceptive coverage as a part of healthcare plans.
Updates | The Week of December 18, 2017
Another federal judge blocked a Trump Administration executive order that would allow employers with religious objections to refuse employee's contraceptive coverage as a part of healthcare plans. A federal district court in Michigan has upheld a right to display signs depicting aborted fetuses.
Updates | The Week of December 18, 2017
President Trump's Muslim ban echoes Japanese internment in the U.S. during World War II, and the Supreme Court should not make the same mistake today. The Education Department is proposing to delay by two years an Obama-era rule that would push states to ensure that students of color are not over-represented in special education and put in programs because of racial bias.
Updates | The Week of December 18, 2017
President Trump’s Muslim ban echoes Japanese internment in the U.S. during World War II, and the Supreme Court should not make the same mistake today. President Trump has abandoned his campaign promises to help Christian refugees as his administration has accepted significantly fewer than previous administrations.
Updates | The Week of December 18, 2017
Justice Gorsuch's limitation of his use of the word 'privacy' at the oral argument of Carpenter v. United States may mean a desire to limit substantive due process doctrine in the future. DHS's costly implementation of facial screening technology at airports is technologically flawed and is a significant escalation in government surveillance, claims a report from Georgetown University researchers. Use of fear-mongering tactics in the campaign to pass the Foreign Intelligence Surveillance Amendments Act demonstrates contempt for Fourth Amendment rights.
The Travel Ban and Inter-Branch Conflict
The real problem is the Trump Administration itself. What feels like damage today is largely the echo of damage that already happened, rather than something new.
Masterpiece Cakeshop and Protecting Both Sides
By Thomas C. Berg & Douglas Laycock: The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides
Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform
On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!
Getting To No On Roe
The question is not whether the reconstituted Supreme Court will overturn Roe v. Wade. The only question is how the Supreme Court will do so.
Rucho and Section 2 of the Voting Rights Act
The Court’s decision in Rucho will have profound and disastrous implications for the 2020 redistricting cycle and beyond. But it may also foreshadow the endgame for Section 2
Abortion, Equal Protection, and the ERA—Courts Then and Now
A half century ago women and men challenging abortion restrictions were creative in making claims on the Constitution, taking to the streets, to the legislatures, and to the courts. In their audacity and creativity, we can find our future.
Michigan’s Discriminatory Work Requirements
Michigan legislators want to exempt rural residents from Medicaid work requirements, but not extend the same accommodation to people who live in cities. The racial disparities are obvious—and unlawful.
In increasingly vile and shocking ways, Trump has proven himself an unreformed racist on the model of the authors of Massive Resistance.
Forced Separation Of Families & Forced To-Term Pregnancies
The administration’s policy of forcibly separating children from their parents highlights some of the shortcomings with the legal justifications for the administration’s position in Azar v. Garza, the case in which the administration is refusing to allow undocumented women in its custody to obtain abortions.
An Unconstitutional Threat to Sanctuary Cities
DOJ argues that courts can't hear challenges to Trump's executive order threatening to punish sanctuary cities. Its arguments are wrong and prove that Trump's policy is illegal.
Neo-Nazis, Wedding Cakes, and Compelled Speech
Here I explore the interests asserted by GoDaddy and Google in denying service to neo-Nazis and their ilk. I then consider implications of my analysis for the pending Supreme Court case of Masterpiece Cake Shop v. Colorado Civil Rights Comm'n.
Senator Collins's Shell Game On Roe v. Wade
Susan Collins claimed that there is no reason to worry about Justice Kennedy's replacement because the Chief Justice (!!!) and Justice Gorsuch (¯\_(ツ)_/¯) would never overturn Roe v. Wade. That's wrong.
Guantánamo and President Trump’s Anti-Muslim Animus
By Nimra Azmi and Sirine Shebaya: Trump's position on Guantánamo perfectly aligns with his habitual rejection of the idea that Muslims accused of terrorism are entitled to any constitutional protections
Versus Trump: Judges of Christmas Future
On this week’s Versus Trump holiday spectacular, it's all judges, all the time. Charlie, Jason, and Easha take a closer look at a number of the President's judicial nominees—confirmed, pending, and withdrawn—to examine what might happen to Versus Trump cases in years to come. Listen now!
Religious Freedom As a Basis for the Right to Choose
If Roe is overturned, doctrines of religious freedom may help safeguard reproductive rights, but only if we build the groundwork by recovering the history of religious reproductive justice and amplifying the moral reasoning of pregnant people
No Peeking? Korematsu and Judicial Credulity
The Supreme Court's decision in the Japanese Internment Cases offers a chilling reminder of why courts cannot close their eyes to clear evidence of bigotry in executive orders supposedly justified by security concerns.
June Medical Services’ Double Threat to the Rule of Law
In recent months, commentators and the justices themselves have raised concerns about declining public confidence in the judiciary. But confidence has to be earned. Enforcing the law and summarily reversing the Fifth Circuit is an essential first step.
Versus Trump: State Immunity Under The VRA + Adios, Easha :(
On this week’s Versus Trump, Charlie and Jason discuss a dissenting opinion by a Trump-appointed judge arguing that states cannot be sued for violating the Voting Rights Act. They then say goodbye to Easha with a tribute to her thinking about Versus Trump law and litigation. Listen now!
Versus Trump: Are Medicaid Work Requirements Legal?
On a new episode of Versus Trump, Easha and Jason discuss a new lawsuit challenging the Trump Administration's approval of Kentucky's new rules for its Medicaid program. The new rules will require some Medicaid recipients to work 20 hours per week to receive health benefits, and they also impose other novel requirements. Listen now!
Versus Trump: States vs. Conscience Rule
On this week’s Versus Trump, Jason, Charlie, and Easha discuss a court's opinion vacating the Trump Administration's so-called "conscience rule." This rule would have broadly permitted many employees in the healthcare sector from in any way participating in procedures with which they have religious or moral disagreements—even in emergencies. Listen now!
June Medical And The End of Reproductive Justice
While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence
Slavery and the Right to Travel Armed: A Short History Lesson
By Saul Cornell: The opinion striking down D.C.'s gun law under the Second Amendment relies heavily on a selective culling of historical evidence—and a shocking ignorance of the most important facts about Anglo-American criminal law and its history.
Versus Trump: DACA's Back!
On a new episode of Versus Trump, Easha, Jason, and Charlie discuss the big decision that forced the Trump Administration to restart the DACA immigration program. Listen now!
A Tale of Two Neil Gorsuches
It seems just last month Justice Gorsuch was saying his rule was not to “make it up" and was to "follow the law.” The Title VII cases allow us to see whether that's the case.
#MeToo Series: When Will #MeToo Become #WeToo?
This post, which addresses collective responsibility for #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.
Versus Trump: The Healthcare Episode
On a new episode of Versus Trump, Take Care's podcast, Easha and Jason dig into healthcare for the first time, as they take a deep dive into the House v. Price litigation that addresses whether certain payments to insurers under the Affordable Care Act have been properly appropriated. They also debate immigration rhetoric vs. action and discuss drug testing for unemployment benefits. Listen now!
Abortion and #MeToo
The rock-the-world power of #MeToo shows us that the ultimate key to change is story-sharing with families, friends and neighbors
The Problem with Palmer
In its Muslim Ban brief, DOJ favorably cites Palmer v. Thompson (1971)—which allowed Jackson, Mississippi to close public pools rather than integrate them. The Fourth Circuit should question DOJ about this stunning citation and make clear that Palmer, an odious ruling, has no place in anti-discrimination law today.
Ten Minutes of History on: The Constitutionality of Funding HBCUs
President Donald Trump is known for changing his political views after a ten-minute history lesson. In this continuing feature, I encourage the president to take a few minutes to learn about the historical background of things he says. This first edition, on his signing statement regarding HBCUs, concerns one of his favorite historical topics: A nineteenth-century general who saw the Civil War coming, was angry, and did something about it.
Trump’s Newest Attack on the Rule of the Law
Trump isn’t just reckless, and he doesn’t just seem to think he is above the law. He has an authoritarian’s hostility to the very idea of a principled inquiry into the truth.
Why Regulate Guns?
When the Supreme Court considers an important Second Amendment case this week, it ought to consider a robust conception of the state's interest in regulating firearms. Properly understood, the state's interest in adopting gun laws includes much more than mere empirical studies about how effective gun laws are at preventing wrongful gun deaths.
A Lone Star Bail-in?
Key takeaways from the briefs in the ongoing litigation to "bail-in" Texas under Section 3(c) of the Voting Rights Act
Reproductive Justice Symposium
Take Care has hosted a symposium on "Reproductive Rights and Justice Stories"—an important new book edited by Melissa Murray, Katherine Shaw, and Reva B. Siegel
Versus Trump: Ask Charlie About The Census
On this week's episode of Versus Trump, Jason asks Charlie to take us through the mammothly long, massively important opinion from the Southern District of New York invalidating the proposed citizenship question on the 2020 Census. Listen now!
Trump’s Latest Affront To Women, and to the Constitution
A draft of the Trump Administration's revised contraception mandate has been leaked. If implemented, this policy would weaken civil rights for women. Moreover, the plan could violate the Establishment Clause by providing a religious accommodation for some private citizens only by shifting costs to others who may not share their beliefs.
Versus Trump: 2017 Scorecard
On the first episode of Versus Trump of 2018, Jason and Charlie look back at Versus Trump cases in 2017 and score them as Administration wins, losses, or not-yet-decided. They also look ahead at big issues to come in 2018. Listen now!
Against Establishment Clause Concession
There are reasons to worry about whether certain liberal justices on the Supreme Court fully appreciate that we are at an inflection point in the history of the Religion Clause
Diversity and Democracy
The growing diversity of the country may break Americans’ commitment to democracy. What can we do to stop that from happening?
Protecting Against Arbitrary Government
Executive bullying creates a potential taint of illegitimacy, of arbitrariness, that could color the political and moral legitimacy of future governmental actions
Towards an Inclusive Democracy: Next Steps
We asked 10 experts from a variety of disciplines to help us think through strategies for building a stable and inclusive democracy in the face of demographic change. Here’s what we learned.
Versus Trump: Is There A New Title X In Town?
This week on Versus Trump, Jason and Charlie are joined by guest host Alexandra Brodsky to discuss the Ninth's Circuit's recent decision that let go into effect major new regulations for the primary federal program dealing with family planning and women's health—a program known as Title X. Listen now!
Moral Convictions And The Contraception Exemptions
Yet another major flaw in the draft contraception rule, which would not only allow employers to drop contraception coverage for *religious* reasons, but would also (without any lawful basis) allow employers who have *moral* objections to do the same.
A Legal Challenge to Trump's "Religious Liberty" Executive Order
Yesterday, the Freedom from Religion Foundation (FFRF) filed a lawsuit against Donald Trump’s most recent Executive Order, “Promoting Free Speech and Religious Liberty.” While there has been muted reaction to Trump’s executive order, the FFRF complaint makes two important points that have been mostly unappreciated.
Versus Trump: California X Trump
On this week's episode of Versus Trump, Charlie and Jason discuss a new lawsuit from California challenging new regulations regarding Title X, an important federal family planning program. Listen now!
June Medical Symposium: Abortion Returns To The Supreme Court
On March 4, the Supreme Court will hear its first abortion case in several years. In the first entry of our symposium, Dean Erwin Chemerinsky sets up the stakes—and fears that the case is going to end with the five conservative justices allowing severe restrictions on abortion, such as have not been upheld since Roe v. Wade.
Versus Trump: The Contraception Mandate Challenges
On this week’s episode of Versus Trump, Easha and Jason discuss the Administration's drastic expansion of the number of companies that may now offer health insurance that does not cover birth control, as well as several lawsuits that were immediately filed challenging these new regulations. Listen now!
Disparate Impact and the Administrative Procedure Act
The Supreme Court has held that there's no private right of action to enforce Title VI. But the civil rights laws can still form the basis of a challenge to a waiver allowing states to impose work requirements.
Reproductive Rights and Justice
The story of reproductive justice extends far beyond courts and involves all the conditions in which individuals make decisions about having and not having children
Versus Trump Emergency Pod: JD v. DHS
On this week’s episode of Versus Trump, Easha and Charlie have a quick turn-around emergency pod to discuss an ongoing—wait, just now resolved—case filed by a pregnant 17-year-old girl in federal immigration custody who seeks an abortion. Easha and Charlie first talk about the procedural wrangling that this case has wrought and second about the legal claims in the case, which bring them into the exciting worlds of reproductive rights, immigration law, and international relations. Listen now!
Key Context for Trump's Rhetoric About Immigrants
President Trump's rhetoric draw upon a familiar narrative that pathologizes immigration and immigrant reproduction as a threat while protecting and supporting the nation’s “good” mothers, families, and neighborhood
The Substance of the Supreme Court’s procedure
Last week’s Supreme Court stay orders say a lot about how the Court views the substance of the underlying constitutional claims in Dunn v. Ray and June Medical Services v. Gee.
HIV is a Health Condition — Not a Crime
Despite consensus that criminalizing HIV has little public health effect, is not supported by scientific knowledge of transmission risks, and may violate the Americans with Disabilities, states are still enforcing laws against people living with HIV.
What’s the Price of Tolerance?
Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.
Andrew Sullivan Is Wrong About Public-Accommodations Law
Andrew Sullivan recently criticized gay people who seek to obtain services from those with religious objections to serving them. But Sullivan's criticism fundamentally misunderstands the basic purpose of public accommodations laws and should be rejected.
Legal Challenges To H.J. Res 43
The Republicans’ bill to arbitrarily deny grants to family planning programs could be challenged in several ways.
Disestablishing the Mother
Artificial reproductive technology might disestablish the traditional ideas of maternity on which abortion law and discourse rests
Federal Defenders and the Sixth Amendment's Zone of Interests
The zone of interests test shouldn't apply to constitutional claims seeking injunctive relief. But even if it does apply, it doesn't prevent federal defenders from challenging arbitrary limits on attorney access under the Sixth Amendment.
Domestic Adherence to the Gender Binary
Three former Surgeons General have called for an end to involuntary medical procedures on intersex babies and children. U.S. immigration law sheds light on why this is such an important development.
Versus Trump: Contraception Mandate, Round Infinity
On this week's episode of Versus Trump, Charlie, Jason, and Easha comment on several cases addressing whether the Trump Administration may legally expand the number of employers who do not need to provide insurance that includes coverage for contraception. Listen now!
Controlling Our Losses
While bleak, planning to lose is not about conceding defeat. It’s about laying the groundwork for a brighter future and avoiding precedential barriers to that future.
#MeToo Paper Spotlight (Part II)
This post, which highlights an academic paper related to #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.
Versus Trump: Trump vs. The Equal Rights Amendment
On this week’s Versus Trump, Jason, Easha, and Charlie discuss the Trump Administration's new legal opinion regarding the legal status of the Equal Rights Amendment, also known as the ERA. They consider what will happen now that Virginia has become the 38th state to ratify the ERA since 1972. Is it too late, or can Congress do anything to add this amendment to the Constitution? Listen now!
On Clerkships & Wasted Opportunities
An HLS Clerkship Blog encapsulates some of the challenges to the profession in light of Trump’s reshaping of the federal judiciary.
Munger Tolles Proves Why We Still Need #MeToo
The news that a major law firm is requiring its summer associates to sign agreements to confidentially arbitrate sexual harassment claims underscores why we still need #MeToo.
Animus, Past and Present
In a new op-ed, Erwin Chemerinsky and I argue that the entry ban is unconstitutional because it was driven by animus toward Muslims.
Pavan and June Medical Services
Pavan and June Medical Services are both examples of lower courts bending over backwards to avoid the clear command of Supreme Court precedent. Both merit the same treatment from the Supreme Court – summary reversal.
Versus Trump: Versus Kobach
On this week’s episode of Versus Trump, we discuss the litigation against the newly-created Presidential Advisory Commission on Election Integrity, that has Kansas Secretary of State—and repeat defendant in voting rights litigation—Kris Kobach as its now-infamous Vice Chair. Listen now!
It is time for progressives to embrace federalism and to use Supreme Court precedents protecting states’ rights to fight against Trump administration policies
Kris Kobach is a Menace to Democracy. Boycott his Vote-Rigging Commission.
By Jed Shugerman. Trump is using the Comey firestorm as a smoke screen for a potentially more dangerous move: appointing Kris Kobach vice chair of a new “election integrity” commission, with Mike Pence as chair. Kobach will make it a voter-suppression/vote rigging commission, fomenting anti-immigrant and racist fears.
Versus Trump: A Ninth Circuit Compromise
This week on Versus Trump, Jason and Charlie discuss the Ninth's Circuit's recent somewhat cryptic, compromise decision regarding the ban on service by transgender individuals in the military. Listen now!
What Masterpiece Cakeshop is Really About
The Alliance Defending Freedom, which represents Masterpiece Cakeshop, is not interested in a narrow exemption. Rather, ADF is taking aim at the very legitimacy of LGBT people and legal protections for them.
When You Have Five, They Let You Do Whatever You Want
While several of the essays in the edited collection of Reproductive Rights And Justice Stories talk about social movements that have influenced the law, some recent events suggest we should have those discussions without losing our focus on courts themselves
All Your Voter Data Are Belong To Us
Kris Kobach just asked for help building a national voter file in two weeks. That’s massively irresponsible. And it might well be illegal.
Versus Trump: Wisconsin Republicans Versus Elections
On this week’s Versus Trump, Jason and Charlie discuss last week's election in Wisconsin, include two rulings—one by the Wisconsin Supreme Court and one by the U.S. Supreme Court—that don't hold up very well in light of what occurred. Listen now!
Opposing Trump's Muslim Ban at the Supreme Court
President Trump has asked the Supreme Court to lift the stay preventing him from implementing his travel ban. Nelson Tebbe, Micah Schwartzman and I, along with a large group of constitutional law scholars, have filed a brief opposing Trump's motion.
Versus Trump: Russia Check-In
On a new episode of Versus Trump, Easha, Jason, and Charlie check back in with the most politically charged of all Versus Trump suits: the Russia investigation. Listen now!
Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose
Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.
#MeToo And The Supreme Court
This post, which considers the current Supreme Court term through the lens of #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that are more than quick fixes.
Versus Trump: The Citizenship Question
On a new episode of Versus Trump, Jason and Easha discuss lawsuits challenging the Trump Administration's decision to ask a question about citizenship on the 2020 census. Listen now!
Versus Trump: Is There A Freedom To Say Goodbye?
On a new episode of Versus Trump, Charlie and Jason discuss an unexpected recent opinion that held that Ravi Ragbir, an immigration activist and alien subject to deportation, had the "freedom to say goodbye" before he could be removed from this country. Listen now!
Trump’s Anti-Trans Animus, Unmasked
By Scott Skinner-Thompson: A federal district court has concluded that President Trump’s ban on transgender people in the military was likely motivated by animus, not readiness.
Disability Advocates Challenge Medicaid Cuts
Hundreds of people in wheelchairs, with walkers, and using ventilators protested in Senators’ offices and RNC offices across the country. Many traveled far from their homes, suffered blazing temperatures, and were denied access to bathrooms and elevators, to make their voices heard. And Senators and RNC staff refused to meet them, had them forcibly ejected, and called police to arrest them.
The Anti-Abortion Movement's Unworkability Strategy
Antiabortion lawyers think that they can turn a fact and evidence-based legal standard into an argument against stare decisis, which would advance their ultimate goal of overturning Roe. In June Medical, it is time for the justices to prove them wrong.
Twitter and the Political Community
By communicating mainly through Twitter, Trump has asserted the power to define his own political community—and to exclude people from it.
Trump's Hostility to LGBT Rights is Now Unmistakable
Several years ago the assertion that Title VII does not prohibit sexual orientation discrimination might have been seen as merely cautious; today it can only be apprehended as reactionary and bigoted
Versus Trump: Versus Plastic Guns
On this week's episode of Versus Trump, Jason, Charlie, and Easha—in her last episode for several months—discuss the fast-moving lawsuit by states against the Trump Administration and Cody Wilson seeking to block distribution of plans for 3D-printed guns. As usual, you can listen online below, and subscribe via this page with any podcast player or here in iTunes.
Versus Trump: Watch Out, Watch List
On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!
Trump DOJ's Flipped Positions
Republicans may not be advancing their agenda through legislation, but they're getting it done in other ways.
The Muslim Ban and Trump's Latest Tweets
Thanks in part to the President's own recent tweets and public comments, the case for concluding that his revised travel ban is unconstitutional has now become overwhelming.
The Plain Meaning of Title VII
According to Justice Kagan, we're all textualists now. What exactly does that mean as we interpret Title VII's ban on discrimination 'because of such individual's . . . sex'?
No, Mike Pompeo, America Was Not Founded As A Christian Nation
By embracing Christian nationalist rhetoric, Secretary of State Pompeo ignores America’s secular constitutional tradition—and undermines the United States’ ability and credibility to promote human rights, pluralism, and the rule of law around the globe.
Versus Trump: Borderline Searches + Response To First Mondays
On this week’s episode of Versus Trump, Jason and Charlie discuss a new lawsuit that forces courts to answer the question of whether the federal government needs a warrant to search people's electronic devices at the U.S. border, and they also respond to a discussion on the Supreme Court podcast First Mondays regarding the government's recent filing in the Hargan v. Garza abortion case. Listen now!
A Lurking Threat to LGBT Rights & Religious Freedom
Today, the Fifth Circuit hears argument in a major case about the future of religious liberty and LGBT rights. The law under review, HB 1523, is flagrantly unconstitutional. And the result of this appeal may profoundly influence Trump's still-evolving policies.
Versus Trump: Trump Versus Facebook
On this week's episode of Versus Trump, Jason and Charlie talk about an unusual and surprising case where the Trump Administration has filed a brief in support of fair housing advocates who have sued Facebook for its part in enabling discriminatory advertising. Listen now!
Versus Trump: Updates, Y'all!
You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!
The Fight for Contraceptive Coverage Rages in the Time of COVID-19
Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.
Arguing Queer Rights
The Supreme Court arguments in the Title VII cases provide a good occasion to revisit how we talk about gender and sexual minorities.
The DACA Decision is Trouble for Discrimination Law
The Dreamers’ victory has been celebrated as a sign that the Court is above partisanship and willing to serve as a check on executive branch abuses. But the price of that victory was a defeat for the Constitution’s guarantee of equal protection.
Christian Nationalism and the Bladensburg Cross
One of the core goals of the Establishment Clause is to stave off developments like Christian nationalism and its hierarchies of citizens. The Bladensburg cross reflects and strengthens this troubling strain in American society.
A Department of Justice, But For Whom?
A letter about how to fix DOJ’s Civil Rights Division simultaneously maintains that we live in a “post-racial world” and urges the Division to take measures that will disenfranchise people of color.
When Free Speech Suits the President
A federal judge has refused to dismiss a suit alleging that President Trump incited violence against protesters at one of his campaign rallies last year. The bitter irony to Trump's defense is that it seeks to expand free speech rules; usually, he prefers to trash them.
A Note Of Caution About Timbs v. Indiana
The concurring opinions in Timbs v. Indiana raise some concerns about how (some of) the Justices would address the Trump administration’s treatment of undocumented minor women.
Some Notes On The Latest “Ban”
There are some notable similarities between the President's announcement that transgender individuals would be banned from military service, and the ban(s) on entry from several Muslim majority countries.
More Attacks on Immigrants’ Due Process Rights
The Trump Administration’s expansion of deportation efforts has occurred alongside systematic efforts to strip people caught in the enforcement web of their right to due process.
Pregnant Workers and Reproductive Justice
Despite legal efforts to eliminate it, pregnancy discrimination remains rampant. Responses based in liberty, temporary disability, and sex equality arguments have met limited success in courts.
Three strategies stand out as a way to defuse and then dismantle reassertions of ethnonationalism
Information Wars Part I: The Challenge To The Census
The Trump administration has enacted several policies to conceal, subvert, or manipulate information. It has retracted a proposal to add LGBTQ identification to the U.S. census and eliminated LGBTQ identification from HHS surveys. These policies and others attempt to deny the existence of a problem by disappearing the (inconvenient) facts.
Versus Trump: Trump Loses On Family Planning, Wins In The Ninth, and More
This week on Versus Trump, Jason and Easha go through a few updates to cases involving Title X, which provides money for family planning; the Administration's policy to have many asylum applicants removed to Mexico; and the controversial border wall. Trump lost one, won one—for now, and hasn't yet gotten a decision in the third. Listen now!
Symposium on June Medical Services v Gee
June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. SCOTUS has granted review of the constitutionality of that law.
Enjoining the Contraception Rules
A district court has stopped the Trump administration's hasty and poorly justified effort to relieve employers of their legal obligation to cover contraception.
Birth Control Is Not Abortion
By Greg Lipper: At his confirmation hearing, Judge Kavanaugh used the phrase “abortion-inducing drugs" while referring to a case he heard on the DC Circuit. This description of the case is at odds with modern science and suggests his hostility to foundational privacy precedents.
California v. DOJ on Immigration Enforcement
An exchange of letters between the California Chief Justice and Attorney General Sessions offers valuable lessons for states considering immigrant protective policies that respect human rights and dignity (but might annoy the Trump Administration).
Resisting Calls for Illegal Hiring Practices at DOJ’s Civil Rights Division
Even in these strange and trying times, we would like to think that our Attorney General will follow the law while staffing the division of DOJ charged with realizing the Constitution’s promise of a democracy that’s worth a damn—one open to all citizens, regardless of the color of their skin.
Justice Kavanaugh Said No On Roe
In June Medical Services, Justice Kavanaugh did exactly what reproductive justice advocates said he did on the court of appeals, and warned he would do once he got to the Supreme Court. Are you listening Susan Collins?
Proving Intentional Discrimination, Redux
Insights from a recent lawsuit about Arizona’s decision to force the Tucson Unified School District to eliminate its successful Mexican American Studies program
The Trump Administration And Immigrant Children
The news that the Trump administration lost undocumented children after placing them in the custody of minors calls to mind Azar v. Garza, the case in which the administration insists on placing minors into the custody of sponsors before the minors can obtain abortions.
Versus Trump: So, What's New?
On this week's episode of Versus Trump, Easha and Jason reveal their big announcement: we're doing our first ever live show: Saturday, June 9, in DC, as part of the ACS National Convention. After that excitement, they get into a handful of updates about cases about auto emissions, HUD programs, the ban on military service by transgender individuals, and more. Listen now!
Versus Trump: N.Y. Versus Wilbur Ross
On this week's episode of Versus Trump, Jason and Charlie talk about the fight over Commerce Secretary Wilbur Ross's potential testimony in an important lawsuit over the census. Listen now!
A Case To Watch: Garza v. Hargan
One facet of the government's position in Garza v. Hargan got a laugh at the Supreme Court when the government raised it in another case.
Versus Trump: Secret Subpoenas, A New AG, and Live Listener Feedback
On this week's episode of Versus Trump, Charlie, Jason, and Easha hit three topics: the mysterious case of the subpoena to a foreign corporation that may be related to the Mueller investigation; the nomination of William Barr as Attorney General; and the temporal nature of an emergency, as prompted by live listener feedback. Listen now!
The Federal Death Penalty Under Trump
President Trump and Attorney General Sessions hold exceptionally pro-death penalty views. Here's how they might seek to increase use of capital punishment at the federal level, and why any such effort likely would fail.
The Attack on American Cities
Trump's anti-urban rhetoric has fanned the flames of a war by state governments against progressive cities. We see this in battles over sanctuary cities, LGBT rights, gun regulation, employee rights. The time has come for a campaign on behalf of city power.
The Transgender Ban is Facially Unconstitutional
Such a blanket prohibition, tweeted out in advance of the Pentagon completing a policy review, is so lacking in credibility that its only motivation seems to be animus towards transgender people.
ADA Education and Reform Act
The ADA Education and Reform Act would undermine ADA compliance and make people with disabilities the involuntary unpaid consultants of the businesses that discriminate against them
Is the Trinity Lutheran Church Case Moot?
Under President Trump, questions about the role of religion have come to the fore. The Supreme Court was set to decide a major Free Exercise issue this Term, but it now seems that the case is moot.
Religious Animus or Reality?
In a recent case, the Court suggested that calling out an attempt to use religion to justify harming others was evidence of animus. That’s wrong.
Deep Problems with the Proposed Executive Order on Religious Freedom
It's rumored that tomorrow, Trump will issue an executive order on "religious freedom," singling out for protection only traditional and conservative religious views on sex, marriage, sexual orientation, gender identity, and pregnancy. That order will most certainly raise grave constitutional issues under the Establishment Clause.
Versus Trump: #MeToo vs. Trump
On this week’s episode of Versus Trump, Charlie, Jason, and Easha talk about a defamation lawsuit brought by Summer Zervos, a woman who alleges that she was sexually assaulted by President Trump in a hotel room in 2007. Listen now!
Versus Trump: Two Guns Cases, And More
First, real talk: yes, Versus Trump really did get a shoutout at the impeachment hearings on Wednesday! More on that next week. But on this week’s Versus Trump, Jason and Charlie discuss two guns cases. Listen now!
Getting To No On Roe: It Continues
Another recent decision from a court of appeals (this time the Fifth Circuit) illustrates how states and courts can undermine women’s right to decide to end their pregnancies without formally overruling the relevant Supreme Court decisions.
A Landmark Victory for LGBT Rights (And The Path Ahead)
The en banc Seventh Circuit has held that Title VII protects against sexual orientation discrimination. SCOTUS is likely to grant review of this important issue in the near future. But it remains unclear what position the Trump Administration will take.
The Trump administration (with some success) is making an argument to justify discrimination against transgender persons that would roll back some of the protections against other forms of discrimination as well.
#MeToo Paper Spotlight (Part I)
This post, which highlights an academic paper related to #MeToo, is part of a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes.
Versus Trump: Sanctions Versus DeVos!
On this week’s special edition of Uncle Charlie's Sanctions Corner–wait, we mean Versus Trump—Jason, Charlie, and Easha bring on Eileen Connor of the Project on Predatory Student to discuss a major opinion issuing sanctions against the Department of Education. Listen now!
Those Who Do Not Know History
On the first full day of Passover, the Trump Administration offered several lessons about institutionalized racism and ethnic cleansing.
The Muslim Ban: Answering Tough Questions About Motive
The opinion by then-Justice Rehnquist in Hunter v. Underwood (1985), a case about denying the right to vote for racist reasons, offers thoughtful answers to many of the hardest questions that you might ask about motive and the Muslim Ban.
Reinvigorating Civil Rights in the Era of Trump
Given the nativist overtones of his campaign and his administration’s signature policies — from the Muslim ban to an immigration crackdown that equates being a foreign-born minority with criminality — Trump has exploded the fiction that we live in a post-racial society.
H.J. Res. 43 As A Health Care Bill
The Democrats have accepted the Republicans’ framing of a bill that would be used to defund Planned Parenthood. That’s a mistake.
Gender Hypocrisy Watch
The administration’s recent claims about gender violence and the humanitarian crisis at the border underscore the administration’s hypocrisy on issues related to gender.
Stare Decisis, The Supreme Court, And Roe
Some further evidence that a mere belief in stare decisis and judicial precedent does not mean a judge will not overrule cases, as Susan Collins has (falsely) suggested.
Motive Matters in Assessing the Travel Ban
To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.
The New Contraception Rule Is Procedurally Flawed
The Trump Department of Health and Human Services has proposed a massive expansion of the program that provides employers and exemption from providing their employees with contraceptive coverage. But they have not sought notice-and-comment on the rule, and that could be a major problem.
Versus Trump: Are There Lawsuits About Gun Regulation?
On a new episode of Versus Trump, Easha, Jason, and Charlie discuss what's going on in courts related to gun regulation. They focus on one set of Versus Trump lawsuits in this area: suits by the Gabby Giffords Law Center to Prevent Gun Violence requesting any Trump Administration records that would show the influence of the gun lobby on the Administration. Listen now!
See You In Court 2.0
Last night, a federal judge in Hawaii blocked Trump's revised entry ban. Here is a detailed analysis of its decision and an assessment of what likely will happen next in that litigation.
Versus Trump Podcast: G.G. Case + Patti Goldman
On a new episode of Versus Trump, Take Care's podcast, we discuss the status of G.G. v. Gloucester County School Board, a major case about transgender rights, and then speak with Patti Goldman of Earthjustice about an important lawsuit that her organization has filed.
At SCOTUS, It's All About Taint
The Supreme Court decided two merits cases today and took one extremely puzzling action via a summary order. The unifying theme I'll identify is taint.
The World Is Not Made Brand New Every Morning
Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.
June Medical Symposium: The History Behind Third Party Standing Arguments
In the third post in our Symposium on June Medical, Professor Mary Ziegler links Louisiana's argument that doctors lack standing to litigate cases related to abortion with a broader shift in litigation tactics by those opposed to abortion. And she wonders whether a reversal of precedent on standing doctrine could lead inevitably to the end of Casey and Roe.
Trump’s Approach to Crime & Punishment
The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.
Fifth Circuit Ruling Threatens LGBT Rights & Religious Freedom
The Fifth Circuit his reversed a preliminary injunction against HB 1523, Mississippi's unusual anti-LGBT "religious freedom" law. Its reasoning is incorrect and at odds with precedent. En banc review is warranted to establish uniformity in the law and vindicate important constitutional principles.
Youngstown Zone Zero
Justice Jackson's famous separation of powers framework offers no support for President Trump's entry ban. In fact, it's irrelevant.
How Many Bullets Do You Need?
Various jurisdictions that have banned large-capacity magazines define large-capacity differently. So how many bullets are enough under the Second Amendment?
Mitch Landrieu and the Anti-Denigration Constitution
Mitch Landrieu’s speech defending the removal of Confederate war monuments in the heart of New Orleans is an eloquent reminder that the Constitution forbids acts that subordinate or denigrate, whether in the context of religion, LGBT rights, or racial equality.
Updates | The Week of April 24, 2017
The Administration sought an extension to negotiate over the Affordable Care Act's birth control provisions, and it hired a State Department spokesperson who has a history of anti-Muslim rhetoric.
Updates | The Week of October 16
Sen. Feinstein argues Congress must act to close the loophole for bump stocks, used in the Las Vegas shooting, in the Firearms Owners Protection Act.