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DeBoer v. Snyder: A Case Study In Litigation and Social Reform
On April 28, 2015, the Supreme Court will hear oral arguments for four cases from the Sixth Circuit addressing the constitutionality of state bans on same-sex marriage. This Note examines DeBoer v. Snyder, the Michigan marriage case, with the goal of providing litigators and scholars the proper context for our current historical moment in which (1) the legal status of LGBT people; and (2) the conventional wisdom about the role of impact litigation in social reform movements are rapidly evolving.Flexible Scheduling and Gender Equiality: The Working Families Flexibility Act Under the Fourteenth Amendment
The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman as the basis for analyzing how the WFFA might be upheld under the Enforcement Clause. It also argues that, in order to advance workplace equality, the WFFA should be reframed to target “work-life” balance, rather than specifically “work-family” balance. Because caregiving is so frequently viewed as a women’s issue, as long as flexible scheduling is understood as a policy for caregivers, it will be seen as a policy for women and carry the burden of stereotypes associated with working mothers. To make fundamental improvements in workplace gender equality, we need to decouple the link between flexible scheduling and caregiving.Bathroom Bias: Making the Case for Trans Rights under Disability Law
Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note will look at the role of bathroom access in the fight for trans civil liberties and how disability law might be used to affirm trans people's access in the workplace to gendered bathrooms that accord with their lived sex.Does the Constitution Protect Abortions Based on Fetal Anomaly?: Examining the Potential for Disability-Selective Abortion Bans in the Age of Prenatal Whole Genome Sequencing
This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—-the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation of this new technology into clinical care will both invigorate anti-choice legislatures to pursue such legislation and cause the laws’ impact on women to be greater than initially anticipated. Using the undue burden standard announced in Planned Parenthood v. Casey, this Note concludes that federal and state disability-selective abortion bans are unconstitutional based on the Due Process Clause. The Note also questions whether the federal government has constitutional authority under its enumerated powers to even enact such a ban. Finally, the Note presents policy reasons for why such an abortion ban will degrade the right to a pre-viability abortion so significantly as to render it non-existent.Outing the Majority: Gay Rights, Public Debate, and Polarization after Doe v. Reed
In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional roles of the civil rights litigants from earlier cases, like NAACP v. Alabama. In those early cases, publicly persecuted groups sought protection from disclosure laws, but, here, the persecutors themselves are looking for help. Second, the Doe v. Reed opinion, and especially Justice Scalia's concurrence, articulate an age-old conception of republican citizenship, one supported by a number of modern and contemporary political theorists. Last, this conception of citizenship has interesting, and largely positive, implications for political polarization, especially in the context of LGBT rights. It facilitates the realization of the fruits of hard-fought public opinion victories by the LGBT community and their allies. The Reed holding has the potential to help turn the ever-growing support for LGBT rights into concrete policies in the next decade. Marriage rights and employment protections for gays, lesbians, and transgender Americans have been put up for public referenda in a number of states. While the last few months have seen a number of key victories for the LGBT community, most states still have laws preventing gay and lesbian couples from marrying. Increased transparency might be good for LGBT legislative battles for a number of reasons. I argue that the LGBT movement is at a place where embracing Scalia's combative public citizenship is a winning strategy. Justice Scalia has provided the LGBT community with a critical weapon in its fight for marriage equality. By examining political science literature and public opinion polling, I hope to show that making public ballot initiatives transparent will curb the trend of states taking away rights and privileges from their LGBT citizens. I share the concerns of commentators like Cass Sunstein, who fear the phenomenon of insular political communities moving to extremes. I also share the concerns of thinkers ranging from James Madison to Alexis de Tocqueville to modern day political scientists about political majorities targeting unpopular minorities in winner-take-all elections. The "brave citizen" of Scalia's concurrence is a conception of deliberative democracy that serves the LGBT community well. In this Note I look at the likely impact of Doe v. Reed on the politics of the fight for LGBT rights.The Case for Procedural Safeguards in the U.S. Refugee Admissions Program
The U. S. Refugee Admissions Program (“USRAP”) is a humanitarian program that resettles vulnerable refugees to the United States. Though these refugees have suffered from extraordinarily high rates of trauma, the refugee admissions process does not have formal statutory or regulatory safeguards to accommodate the vulnerable nature of many applicants for resettlement. Yet, the applicants who have suffered the most trauma, including victims of sexual and gender- based violence, are the refugees most likely to be impeded by a process that largely centers on proving the severity of their trauma. To promote accurate outcomes, and to decrease the risk of retraumatization during the resettlement adjudication process, Congress should enact procedural safeguards to govern USRAP. In applications for resettlement, refugees should be guaranteed access to counsel during their interviews, access to evidence used by USRAP against the refugee, written reasons for USRAP’s adverse decisions, the opportunity to appeal, and pre-screening for, and accommodation of, vulnerable traits that might impact the adjudication process.“Off with His __”: Analyzing the Sex Disparity in Chemical Castration Sentences
Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of prosecution of the criminals, and the exercise of judicial discretion when selecting the sentence. Therefore, the public, the government, and the criminals themselves have each contributed to the chemical castration sentencing regime's single greatest flaw: the punishment of chemical castration is, in effect, reserved exclusively for use against male offenders. This Note, broken into six parts, discusses the disparate impact of the current chemical castration regime on male offenders and provides insight into why and how the system must change to eliminate or reduce this disparity.