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By Hank Greely, a professor of law and genetics at Stanford University, and director of both The Center for Law and the Biosciences and the Stanford Interdisciplinary Group on Neuroscience and Society.

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I was shocked last week when I learned that Judge Royce Lamberth had enjoined federal support for human embryonic stem cell (hESC) research. As a lawyer, I was even more shocked when I read the opinion, which seems to me, when considered solely as a legal matter, clearly wrong.

Last week's decision came on the plaintiffs' motion for a preliminary injunction. The law allows a judge to issue a preliminary injunction when the moving party establishes, in Judge Lamberth's words:

(1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

In this case, the merits turn on the so-called Dickey-Wicker amendment. This amendment was first added to the HHS appropriations bill in 1996. Appropriations bills are good for only one year, so every year from 1996 to the present, Congress has added essentially the same language to the relevant appropriations bill. The current version, adopted as part of the fiscal year 2009 Omnibus Appropriations Act, states:

(a) None of the funds made available in this Act may be used for-- . . .
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death . . . .

For 11 years, the Clinton, Bush, and Obama administrations have agreed that this language allows funding of research using hESC lines as long as that funded research project does not itself destroy embryos. Judge Lamberth held that the language not only prohibited government funding of any hESC research, but did so clearly and unambiguously.

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

In 1996, this interpretation might have been reasonable, though, I believe, still wrong. In 2010, the decision is clearly and unambiguously wrong, for at least three reasons.

First, Judge Lamberth's decision is wrong because it does not understand the nature of government funding of scientific research, today or in 1996. The NIH does not say "Here's a pool of $100 million for hESC research; come and get it." It says "Please write us a long and complicated application for a grant to do a specific piece of research and if, against long odds, we accept your grant, we'll give you some money to do the work you said you would do." What the NIH funds are "pieces of research," as defined by grant applications. The Guidelines at issue do not allow the destruction of embryos as one of the actions to be undertaken as part of any grant they fund.

Second, this is not 1996. James Thomson of the University of Wisconsin did not announce the first successful hESC derivation until November 1998. In January 1999 HHS concluded that Dickey-Wicker forbade only funding specific research in which embryos were destroyed (or threatened), but allowed funding of research with hESC lines that had been created as part of some other work. HHS has maintained this position for 11 years, through three very different administrations. This is evidence against Judge Lamberth's conclusion that the language of the amendment is clear. If his reading of the language is unambiguously right, why did three very different administrations reject it? And if the language is, in fact, unclear, then under governing administrative law, the Chevron doctrine, the judge has to defer to the interpretation placed on the statute by the government agency charged with administering it - HHS.

Third, the version of Dickey-Wicker that Judge Lamberth was supposed to apply was passed in 2009 . . . by a Congress that had, for ten years, seen those three administrations interpret the rider to mean that HHS could fund hESC research, but not direct embryo destruction. If Congress had disagreed with that interpretation, it could have changed the wording of the following year's Dickey-Wicker amendment to make that disagreement clear. It did not. In fact, twice Congress passed new legislation to overturn President Bush's relatively restrictive policy on use of federal funding, only to see its bills vetoed. These facts make it very odd indeed to interpret the action of Congress in passing the 2009 version of this rider as clearly rejecting federal funding for any hESC research.

Judge Lamberth's conclusion that the plaintiffs have shown they are likely to win at trial seems the most important part of his holding, but, remember, to grant a preliminary injunction, he must find that the plaintiffs have shown that they would suffer irreparable injury without an injunction, that they other parties would not be substantially injured by an injunction, and that the injunction would further the public interest. His decision on those points also seems wrong.

Finally, the operative part of this decision, like any judicial decision, is the order that accompanies it. His order is both short and confusing.

ORDERED that defendants and their officers, employees, and agents are enjoined from implementing, applying, or taking any action whatsoever pursuant to the National Institutes of Health Guidelines for Human Stem Cell Research, 74 Fed. Reg. 32,170 (July 7, 2009), or otherwise funding research involving human embryonic stem cells as contemplated in the Guidelines.

And what does that mean? It surely means that the NIH cannot issue new grants for such research, but it has already issued many grants, both under the Bush Administration policy and, already, under the expanded Obama Administration policy. What happens to them? NIH has announced its preliminary interpretation of the order - all existing grants continue up until the moment of their renewal date, no pending grants will be considered - but it is not clear that the NIH interpretation is correct.

Judge Lamberth's opinion is disappointingly bad. I do not know Judge Lamberth and I do not know whether this decision is the result of bias or whether it is just an example of the occasional bad opinion one must expect from even a good judge. Either way, I hope - and expect - that the District of Columbia Circuit will quickly first stay the order and then reverse the decision.

A longer version of this discussion is available at Stanford Law School's The Center for Law and the Biosciences blog.

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A conversation between Dennis Parker, ACLU Racial Justice Program Director, and Marjorie Esman, ACLU of Louisiana Executive Director, about Hurricane Katrina and the racial injustices that it exposed to the rest of the country.

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Dennis Parker: Let me begin the conversation by asking you, Marjorie, as a New Orleans resident and rights and liberties advocate, what you think was the most important lesson learned from the disaster?

Marjorie Esman: Katrina showed the world what we here always knew: New Orleans is a city divided by race and class. Those divisions played a major role in everything that followed in aftermath of the flood. Still, we and the rest of the country were shocked by the images of thousands of poor black people trapped in terrible conditions and the never-ending stories of abuse. The ACLU did a report bringing to light the police abuse, racial profiling, housing discrimination and the dangerous lack of planning at the Orleans Parish Prison that disproportionately impacted the black population.

DP: Sadly, we didn't learn the lesson that systematic discrimination and inequality exist not only in New Orleans but in the United States as a whole. Katrina wasn't the first time that inequality was revealed, and sadly, it won't be the last. Remember how surprised everyone was 20 years ago when statistical evidence confirmed what communities of color had long known, that black and brown people are subjected unfairly to racial profiling? But I'm not sure we learned any lasting lessons. Look at the extreme "show me your papers" law in Arizona that basically requires police to racially profile Latinos. Where are we five years later in New Orleans?

ME: The anniversary of Katrina offers us an opportunity to reevaluate the discriminatory systems in place and to assess whether those systems have improved. The report card is mixed. Our police force is now being monitored by the U.S. Justice Department because of longstanding police misconduct, some of which was uncovered after Katrina. It's too soon to know whether this and other recent changes will have lasting effects. On the other hand, because of the connection between race and poverty, race has played a major factor in determining who can return to the affected areas.

DP: To illustrate your point, just a few days ago a federal court in Washington, D.C., blocked the state of Louisiana from continuing to use a discriminatory formula as part of the federally-funded Road Home program meant to help homeowners rebuild after the devastating damage resulting from Hurricanes Rita and Katrina.

The program gave relief funds based on home appraisals. The problem is that homes in poor neighborhoods, many of which are predominately black, aren't valued as highly as similar homes in white neighborhoods. People who lived in the poorer neighborhoods didn't receive equal relief even though materials and labor for reconstruction don't cost any less in one neighborhood than they do in another. The program was designed by the Louisiana Recovery Authority and approved by the U.S. Department of Housing and Urban Development, but both Louisiana and the federal government failed to take the reality of racial and economic inequality into account.

ME: Tragically, the ruling only impacts the families who qualify for future Road Home funding. Thousands of others who lost their homes to Katrina or Rita will not be receiving any additional money to rebuild even though the court recognized that they did not receive equitable funding because of where they lived. This means that poorer areas, many of which are black neighborhoods, will remain full of destroyed and empty houses.

DP: It's an unfortunate example of what happens when we refuse to acknowledge or forget our sad legacy of racial and economic inequality despite all of the evidence that it still persists. I believe that New Orleans and the United States will be able to more successfully address the persistent effects of racial discrimination if we stop pretending that it doesn't exist.

ME: Yes, it's time that as a country we honestly look at race and what it means. New Orleans remains a city divided by race, despite our shared experience in surviving this disaster. Five years later, despite significant improvements, we still fight the legacy of racial discrimination. Katrina made the world see the problem, and we need to remember that the problem hasn't gone away.

[Photo courtesy of Infrogmation]

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By Sonja Ralston, a judicial law clerk to the Hon. Guido Calabresi of the United States Court of Appeals for the Second Circuit. Ralston taught bilingual first grade prior to law school, and has published several scholarly papers on education law.

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On Tuesday, the federal Department of Education announced the winners of the final round of its Race to the Top program. Nine states and the District of Columbia join Delaware and Tennessee, which won the first round in April. All told, forty-six states and the District of Columbia competed for a share of the $4 billion in prize money to implement comprehensive education reform plans, making it the largest state-based "competitive, discretionary grant" - in short, prize - in national history.

Though prizes are not an entirely new means of governing (in 1714, Parliament established the Longitude Prize to develop accurate measures of longitude on the open water and awarded £100,000 over fifty years), the Obama administration has newly emphasized competitive grants. But even among the administration's prize programs, Race to the Top is special: unlike the Longitude Prize or the Department of Energy's prizes for energy-efficient light bulbs and better batteries, the goal is to spur policy rather than technological innovation. Therefore, it invites states rather than individuals, companies, universities, or cities to compete.

Race to the Top represents a new approach to federalism: one that strikes a better state/federal balance in substantive policymaking than traditional spending programs while simultaneously doing more to leverage the impact of federal dollars.

In terms of the balance of policymaking, Race to the Top puts more power in the hands of states than other federal education programs. Overall, the federal government provides around 10 percent of K-12 public education spending each year, but that funding is overwhelmingly concentrated in two areas: aid to high-poverty school districts under Title I of the Elementary and Secondary Education Act (ESEA) and aid to school districts for the education of students with disabilities under the Individuals with Disabilities Education Act (IDEA). In each of these block grant programs, Congress, not the states, decides how the money will be spent. For example, IDEA sets very specific standards for what counts as a disability, how students with disabilities must be accommodated in schools, and what procedures schools must follow.

In contrast, Race to the Top gives states greater discretion over how to spend the funds. Fifty percent of any Race to the Top award can be distributed as the state sees fit, within guidelines that are so loose that a state could comply by spending the money on essentially any education program. Additionally, the 500-point rubric for awarding Race to the Top grants has dozens of subcategories, allowing states to pick what reform issues to focus on. As a result, each state's application proposes a different approach to improving education. Race to the Top thus gives real meaning to the cliché, "laboratories of democracy."

Under Race to the Top, states, not the federal government, set policy even when uniformity is important, as it is for learning standards. Under the Race to the Top rubric, a state received up to 40 points for joining "a consortium of States that . . . develop[s] and adopt[s] a common set of K-12 standards." The federal Department of Education did not write the standards; it didn't even establish the group that wrote the standards. The National Governors' Association took the lead, starting last summer, and published the Common Core Standards this June, which forty-eight states (and the District of Columbia) helped develop and thirty-five (and the District) have already adopted.

Prizes also have the potential to leverage federal dollars. Consider the now-familiar Ansari X Prize. It awarded $10 million to the company that first produced a private manned spacecraft, whereas competitors spent over $100 million. The $4 billion the federal government is spending on Race to the Top is only around 25 percent of what it spends every year on Title I. Yet unlike other small programs, which are pilot projects only implemented in a small percentage of schools or districts, the process of merely applying for Race to the Top led to changes in the laws of nearly every state, from lifting caps on the number of charter schools to eliminating data firewalls.

Race to the Top gives the federal government more bang for its buck than most education spending. Unlike, for example, Title I (a block grant program the Department of Education administers according to a congressional formula), Race to the Top is a discretionary - and therefore flexible - funding program. Funds are awarded by the agency, not by Congress, so there's no push for pork, the program need not spend a proportionate amount in every state, and it is not the kind of block-grant pre-requisite that might lead to contentious congressional votes - like when attempts to add national standards to annual ESEA funding were repeatedly defeated.

Finally, Race to the Top is special because its competitors are states - and only states. This focus on states in the first two rounds has policy benefits: making the states the competitors is the most direct way to prod states to change course on alternative school structures like charters or autonomous schools, teacher tenure, and standards. But it also embraces a larger virtue: federalism. By giving the states real choices about how to accomplish federal policy priorities rather than just making them administrative go-betweens that cut checks and write reports, Race to the Top reaffirms states' status as sovereigns with authority over - and responsibility for - their citizens' welfare.

At a moment when the public is increasingly concerned about reasserting state authority (including by calling for the repeal of the Seventeenth Amendment), less radical ways to give states greater autonomy deserve attention. The so-far success of Race to the Top shows that prizes can spur policy innovation, especially in fields in which it is easier to agree on ideal outcomes (like having all children learn) than on how to reach those goals.

 

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By Nsombi Lambright, Executive Director of the American Civil Liberties Union of Mississippi.

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I can't believe that five years have passed since Hurricane Katrina devastated Gulf Coast communities in Louisiana, Mississippi and Alabama. And although groups and advocates who were experienced in disaster recovery told us that it would take at least ten years to rebuild, I never imagined that five years later, we'd still face the same challenges. The fifth anniversary of Hurricane Katrina; are we celebrating growth and recovery, commemorating a tragedy, or both?

As I viewed the film "Trouble the Water" this week, I was mixed up inside. The ACLU of Mississippi partnered with an organization started by Katrina Survivors who relocated from New Orleans to Jackson, called Rise Above Katrina, to show the film at Tougaloo College, a historically black college in Mississippi. I met the New Orleans natives from Rise Above Katrina and hundreds of others from the Mississippi Gulf Coast immediately after Hurricane Katrina as the ACLU began to monitor the Government's overall response to the disaster as well as the disparities between services provided to white communities and people of color communities. In 2006, the ACLU participated in a U.S. delegation to Geneva to discuss the impact of these disparities to the United Nations Human Rights Committee. The ACLU also provided technical and legal assistance to Rise Above Katrina when they were threatened by law enforcement when protesting in front of the American Red Cross offices in Jackson. The group protested the American Red Cross' distribution of disaster relief funds.

As I interacted with Wilma Taylor and LaShawn Traylor and some of the other survivors, I thought about how far they'd come. Wilma is a Gulf Coast Fellow who is starting her own organization to advocate for individuals with disabilities. LaShawn is finishing her education and continuing her ministry. They've moved into new homes, celebrated births.

Life has moved on. They have risen above Katrina. However, there's still a glimpse of sadness remaining in their eyes. It's a sadness that allows you to travel into their bodies and view the pain in their souls. You hear it when they talk about loved ones who didn't make it through the storm. You hear it when they talk about their disappointment in the governments that let them down. The city of New Orleans, which did not provide transportation for people to leave; the state of Louisiana, which brought military and law enforcement in to shoot and arrest survivors; the state of Mississippi, which withheld federal dollars from everyone except homeowners; the city of Jackson, which moved everyone out of the temporary shelter of the coliseum because a Disney show was coming to town; Harrison County, the place that has not rebuilt shelters for the homeless and arrests people for not having a place to rest their heads at night.

The list of disappointments is endless. And still they rise. They rose above the storm to accomplish great things. They rose above the storm with new friends and family who were survivors too. They rose above the storm with a new sense of awareness about the importance of fighting for those who cannot fight for themselves. And even though they are still rising, they don't forget; they won't forget; they can't forget. I'll be there with them, rising too; until there is true freedom and justice for all!

 [Photo courtesy of Infrogmation]

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By Emily J. Martin, Vice President and General Counsel, National Women's Law Center

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Much like the Nineteenth Amendment itself these days, Women's Equality Day-the anniversary of the amendment's ratification-keeps a fairly low profile, sneaking in at the end of August, when much of the country is enjoying the last few days of summer vacation. But this August 26, the ninetieth anniversary of the constitutional guarantee of women's right to vote, it is worth stopping to reflect on the many years of labor that culminated in ratification of the Nineteenth Amendment and that work's relevance to women's progress going forward. One important way of honoring that history and continuing that progress would be ratification of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) , a landmark international agreement that affirms principles of fundamental equality for women and girls.

In one of the few law review articles addressing the Nineteenth Amendment, Yale Law professor Reva Siegel describes it as "a constitutional amendment so rarely cited that reference to it prompts many, if not most, constitutional law scholars to ask: ‘Which one is that?'" In retrospect, its passage seems inevitable and the ground it broke has been largely forgotten. But ratification came in 1920 only after fifty years of fierce campaigning for a constitutional guarantee of full citizenship for women.

As Siegel explains, opponents of women's right to vote saw suffragists' demands as deeply threatening. "The demand is for the abolition of all distinctions between men and women, proceeding upon the hypothesis that men and women are the same," one opponent asserted. "[This] attacks the integrity of the family; . . . it denies and repudiates the obligations of motherhood." Anti-suffragists asserted that a federal guarantee of women's right to vote represented a power grab for the federal government, which would "draw a line of political demarcation through a man's household, through his fireside, and to open to the intrusion of politics and politicians that sacred circle of the family." Given this history, it is ironic that last week a Washington Times op-ed invoked the anniversary of the Nineteenth Amendment to urge opposition to CEDAW, the women's rights treaty, in terms remarkably similar to those once used to oppose women's suffrage.

The CEDAW treaty has been adopted by every country in the world but seven; the United States is one of the holdouts, in the unlikely company of Iran, Sudan, Somalia, and three small Pacific Islands. Ratifying countries affirm that women's rights are human rights and commit themselves to ending discrimination against women and girls. CEDAW provides a practical blueprint for these efforts; guided by CEDAW, policymakers and advocates in other countries have taken important steps toward stopping sex trafficking and domestic violence, expanding girls' educational opportunities, providing access to maternal health care, and yes, ensuring women's right to vote. By ratifying CEDAW, the United States would strengthen its role as a global leader in standing up for the rights of women and girls and continue a long, bipartisan tradition of promoting and protecting human rights.

CEDAW's opponents, however, assert that CEDAW's promise of nondiscrimination "denies the nature of women, the need for families, and the proper role of government." These scare tactics and false claims grossly misrepresent CEDAW and its mechanisms, given that a central purpose of CEDAW is to ensure that women are not disparaged or devalued based on their status as mothers. CEDAW instead seeks to provide parents the support they need to provide for and care for their children. Moreover, through its opposition to practices like polygamy, forced marriage, and domestic violence, CEDAW promotes women's safety and health within families. A committee of women's rights experts makes nonbinding recommendations to ratifying countries regarding best practices for ending discrimination, but it is always up to policymakers and advocates within each country to determine how best to meet CEDAW's goals in that country. In short, CEDAW no more threatens the integrity of the family than did the Nineteenth Amendment before it.

Yet the similarities between the language used to oppose the Nineteenth Amendment a century ago and CEDAW today are striking. Both the Nineteenth Amendment and CEDAW have been described as an attack on motherhood. While anti-suffragists warned of the Nineteenth Amendment's "abolition of all distinctions between men and women," CEDAW opponents assert that CEDAW "forbids recognizing the wonderful differences between men and women." While anti-suffragists warned of the federal government's invasion of the "sacred circle of the family," CEDAW opponents claim that CEDAW would somehow turn family decisions over to the U.N. The echoes are revealing, demonstrating the remarkable persistence of the fear that recognizing women's equality will somehow mean the end of families, even in the face of decades of evidence to the contrary.

In the case of the Nineteenth Amendment, overcoming this fear required:

56 referendum campaigns directed at male voters, plus "480 campaigns to get Legislatures to submit suffrage amendments to voters, 47 campaigns to get constitutional conventions to write woman suffrage into state constitutions; 277 campaigns to get State party conventions to include woman suffrage planks, 30 campaigns to get presidential party campaigns to include woman suffrage planks in party platforms and 19 campaigns with 19 successive Congresses."

The Senate should celebrate the 90th anniversary of the great and hard-fought achievement that was the Nineteenth Amendment by ratifying CEDAW. By doing so, the United States would again reject the argument that ending discrimination against women somehow harms families. By affirming women's fundamental human rights, the ratification of CEDAW would instead promote women's health, safety, economic security, and dignity, helping not only women themselves, but their families and communities. The Senate should ratify CEDAW now.

[image via the U.N.'s Division for the Advancement of Women]

 

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By Donna Lieberman, Executive Director, New York Civil Liberties Union, and Louise Melling, Deputy Legal Director, ACLU.

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Cross-posted at ACLU's Blog of Rights

"Of course you have the right to build a mosque, but it is insensitive to build it there."

This is the newest version of the call from critics of the proposed Islamic center in downtown New York City. The sentiment may at first blush seem sensitive: it recognizes the trauma of 9/11, the sacred nature of Ground Zero and the constitutional right to religious freedom. But the sentiment that the Islamic center can be built - just elsewhere - inevitably reflects a prejudice and intolerance that is in fact inconsistent with religious freedom.

To conclude that building the Islamic center near Ground Zero is insensitive, one must, consciously or not, believe that the Muslims of downtown New York City who will come to the center to pray are - by virtue of their faith - all tainted by the terrorists who committed an atrocious act in the name of Islam. How else to explain the alleged "insensitivity"?

Political leaders like Mayor Bloomberg in New York should be praised for standing up for religious freedom in the face of political pressure. But the voices of prejudice still fill the airwaves, and outright hostility toward mosques continues to flare up around the country in locations having no relation to any acts of terrorism.

Throughout our history, Jews, Protestants, Catholics and Muslims have all been victims of fear and discrimination. In the end, tolerance and fairness generally prevail. So should it here. But that means speaking up for fairness, opposing religious discrimination rooted in cultural stereotyping, and resisting those who seek to trade away our most precious values for political advantage. It means letting our political leaders know that discrimination is a losing proposition, and that adherence to the Constitution is not optional.

For our part, the ACLU will continue to defend the right of all religious denominations - from majority faiths to unpopular religions - to establish places of worship, and for Americans to pray, or not, as they choose. We will also continue to defend the right for those who object to speak their mind. At the same time, we will continue to remind people that, even as we are still healing from an indescribable wound, we cannot abandon our core values or we will have lost everything.

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Doug NeJaime is Associate Professor of Law at Loyola Law School - Los Angeles. He teaches in the areas of Ethical Lawyering and Law & Sexuality.

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The unwillingness of California's Attorney General and governor to defend Proposition 8 - and the corresponding presence of Proposition 8 proponents as the amendment's defenders - has yielded a procedural mess. But with all the discussion of Proposition 8 proponents' impact on procedure, it is easy to overlook their significant impact on substance: With the actual supporters of the proposition replacing the increasingly pro-gay state as the law's defender, the explicit connection between sex and sexual orientation discrimination has surfaced.

When the California Attorney General defended California's (statutory) marriage restriction in the state litigation (In re Marriage Cases), he refused to rely on governmental interests related to procreation and dual-gender childrearing. As I have noted elsewhere, this refusal reflected the mainstreaming of a gay equality norm as both a political and legal matter. In the awkward position of defending the law without resort to its key substantive purposes, the Attorney General merely asked the court to defer to the voters' desire (as evidenced by Proposition 22) to preserve the traditional definition of marriage.

With the shift toward more federal litigation on gay rights issues, we have seen a similar trajectory in the arguments offered by the (increasingly pro-gay) government in defense of anti-gay laws. For instance, the Justice Department has refused to stand behind rationales related to procreation and childrearing when defending the Defense of Marriage Act (DOMA) in federal litigation in Massachusetts. Indeed, in arguing that "the government does not believe that DOMA can be justified by interests in ‘responsible procreation' or ‘child-rearing,' " Justice Department lawyers admitted that "children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents." When Judge Tauro found DOMA unconstitutional as applied to married same-sex couples in Massachusetts, he noted the government's unwillingness to stand behind DOMA's actual purposes and rejected the government's newly manufactured rationale, which had no substantive content and amounted to a wait-and-see approach to marriage equality.

In Perry v. Schwarzenegger, the federal litigation challenging Proposition 8, the California Attorney General resolved his earlier inconsistency (and unease) by moving wholeheartedly to the side of marriage equality and leaving no government lawyers to defend the amendment. Enter the Proposition 8 proponents as the party charged in the federal litigation with defending its constitutionality. Finally, the substantive reasons behind marriage restrictions get their day in court. The proponents urged Judge Walker to uphold Proposition 8 not merely based on deference to voter preferences and tradition, but also as part of the government's role in channeling procreation and childrearing into dual-gender, married households. Children, Proposition 8 proponents argued, need a mother and a father because mothers and fathers (wives and husbands, women and men) fulfill different and complementary roles. Through this lens, men function as breadwinners while women become homemakers and caretakers; men teach their children about ambition, hard work, and independence, while women nurture their children with love and encouragement. As Protect Marriage's Ron Prentice put it (in a statement that Judge Walker quoted in his opinion):

Children need the chance to have both mother love and father love . . . [M]oms and dads, male and female, complement each other. They don't bring to marriage and to a family the same natural set of skills and talents and abilities. They bring to children the blessing of both masculinity and femininity.

In this framework, preventing same-sex couples from marrying preserves the sex-differentiated roles that Proposition 8 proponents believe men and women should play in marriage and the family.

Marriage equality advocates have pointed out the connection between marriage restrictions and gender roles in earlier litigations. But state courts considering same-sex couples' right to marry have consistently rejected or neglected the way in which marriage restrictions rely on and perpetuate sex stereotypes that subordinate women. While disappointing, this hardly seems surprising; state officials defending the restrictions increasingly refuse to explicitly rely on gender norms, and arguments about sex stereotypes are often buried in amicus briefs.

But Proposition 8 proponents' direct role in the Perry litigation forced Judge Walker to fully consider the sex-based implications of Proposition 8. Arguments based on sex stereotypes now constituted part of the principal case put forward by the proposition's defenders. And where Proposition 8 supporters saw legitimate justifications for the amendment, Judge Walker saw impermissible sex stereotypes, concluding that "Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage."

For all the confusion introduced by Proposition 8 proponents' role in the litigation, their presence has made one thing crystal clear: Laws that prohibit marriage for same-sex couples constitute just one part of a broader normative framework of the family that harms individuals based on both sex and sexual orientation.

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By Sahar Aziz. Ms. Aziz is the author of Sticks and Stones, Words That Hurt: Entrenched Stereotypes Eight Years After 9/11 published in the New York City Law Review. She is a Legal Fellow at the Institute for Social Policy and Understanding and serves as counsel to the Bill of Rights Defense Committee.

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The political backlash and opportunism surrounding President Obama's defense of Muslims' First Amendment rights jeopardizes religious freedom for all Americans.

On August 13, 2010, the White House sponsored the annual Iftar, a tradition started by President Clinton in 1996, commemorating the month of Ramadan. Diplomats, members of Congress, and community leaders from diverse backgrounds celebrated America's venerable support for religious diversity and freedom.

At the dinner President Obama accurately summarized the Founders' intent to preserve religious freedom in America, for native-born and immigrant alike. He commendably stated, "As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. And that includes the right to build a place of worship and a community center on private property in Lower Manhattan."

Republicans were quick to criticize President Obama for "endorsing" of what has misleadingly come to be known as the "Ground Zero Mosque." Facing a tough reelection, Senate Majority Leader Harry Reid broke with Obama, joining those who call for the mosque to be built somewhere else. Leading critics claim that they aren't opposed to building the community center and mosque per se, but rather its location. But their claim is belied by growing protests against mosques in cities across the country, not to mention escalating religious bigotry on the internet and a scheduled Koran burning on September 11. Statements from major figures like Newt Gingrich comparing supporters of the community center to Nazis make it clear that, in fact, all Muslims are being falsely tarred with the brush of extremism.

Some cite polls indicating that the majority of Americans oppose the project, but we should ask ourselves whether opinion polls should be our compass when it comes to the Bill of Rights and the exercise of religious freedom in America? Indeed, such rights were promulgated by the Founding Fathers precisely to shield minority faiths from persecution by those in the majority. In our history we have nevertheless seen the systematic persecution of Catholics, Jews, Mormons and Quakers. But in each case, the persecution was ultimately repudiated and support for the Constitution restored. That elected officials have forgotten this fundamental American principle is baffling given many of their constituents self-identify as staunch defenders of religious freedom.

This paradox illustrates two important lessons.

First, the fundamental right to religious freedom rings hollow for all if it is only applied selectively. There is nothing in the charter of the Cordoba Center that can be cited as an offense to the memory of the thousands of Americans, including Muslims, murdered on September 11, 2001. And if opinion polling is sufficient to stop an otherwise lawful plan to build a community center and house of worship for Muslims, we are setting a dangerous precedent. By the same logic, predominantly Christian communities might similarly be allowed to oppose the building of a synagogue or temple.

Second, the integrity of our Constitution depends on a meaningful enforcement of the Bill of Rights. When our founding principles are not put in practice, the rule of law is systemically undermined and our Constitution becomes nothing more than a dated piece of paper.

Critics like Gingrich like to suggest that only when Saudi Arabia allows a church or a synagogue to be built in Mecca should we allow the Community Center to be built. But do we really want to cede leadership on religious pluralism, a hallmark of American freedom, to Saudi Arabia or other Mideast states?

Take for instance the issue of religious freedom in Egypt. Article 40 of the Egyptian Constitution states, "All citizens are equal before the law. They have equal public rights and duties without discrimination between them due to race, ethnic origin, language, religion, or creed." Yet the 2009 U.S. State Department human rights report highlights the difficulties Christians face in building new churches and renovating existing ones, due in large part to political opposition by a segment of the Muslim majority population. And in Saudi Arabia the state dictates the practice of religion.

The vitriol and specious arguments being made against building the Cordoba Center should serve as a wake-up call. Once we start down the slippery slope of compromising religious liberty to accommodate majority opinion or the winds of political opportunism, we proceed at our own peril. Pressuring minority faiths to opt out of their rights under the U.S. Constitution can render those rights meaningless for all.

The freedom to practice one's religion is a founding principle of our nation and is embedded in the First Amendment. "And that has been upheld ever since," noted President Obama. Let this not be the day when we focus more on its inscription than its enforcement.

[image via robethuffstutter]

 

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By F. Paul Bland, Jr., senior attorney at Public Justice.

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The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. The case could decide the fate of most consumer and employee class actions for years to come.

The Concepcion case involves the widespread corporate practice of using standard-form contract terms that purport to prevent consumers and employees from ever participating in class proceedings. Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese. And even if they did, few consumers or employees could negotiate the contracts' terms.

Many federal and state courts have held such class-action bans unenforceable under state laws providing that contract terms that block individuals from enforcing their rights under consumer protection and civil rights laws. Hoping to sweep aside many of those cases, AT&T Mobility ("ATTM") has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act ("FAA").

Class-action bans dramatically undermine enforcement of consumer- and employee-protection laws. In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) even when those laws are broken. Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights. For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars. There are many situations where a case will either be handled on a class action basis or it will never be brought at all.

In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come. But that result is far from inevitable. For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision should be limited. On the merits, if the Court agrees with the vast majority of lower courts, then the decision will change little. If the Court uses this case to grant the fondest wishes of some corporate lawyers for immunity, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

For the court to rule for ATTM, it will have to sweep aside a widespread consensus of lower courts. Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law. The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law. In addition, federal circuit courts that have both struck down and upheld class action bans in unconscionability challenges have all examined the issue as one of state law. See here for a much longer blog offering case cites for these propositions.

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn't caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.

The only language in the FAA that relates to the question presented in Concepcion provides that agreements to arbitrate will be enforceable only if the agreement is not counter to laws that would lead to revocability of any contract. 9 U.S.C. § 2. In this case, the state laws at issue are the common-law doctrine that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable. This body of law applies to all contracts, does not mention or target arbitration, and thus does not conflict with the Federal "Arbitration" Act.

Also, the Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people "effectively vindicate their statutory legal rights." The Court will have to ignore those decisions if it's going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law? Will scores of state and federal appellate cases be disregarded? Will the FAA be put on an inevitable collision course with the Congress? Or will the Court step back and do the right thing? No one will know for sure until the Court decides Concepcion next spring.

 

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Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.

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When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.

In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.

False Statements of Fact As A Less-Protected Category

Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.

Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error'."

The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)

The majority, in my view, had the better of the argument because it looked beyond dicta to the facts and holdings of the cases. Past decisions upholding punishment for lies involved harms beyond mere disapproval of lying. These include the financial losses that accompany fraud, the obstruction of justice that flows from perjury or false swearing, or the injury to psyche caused by defamation. Even Oliver Wendell Holmes' famous remark from US v. Schenck that the First Amendment does not protect "falsely shouting fire in a theatre and causing a panic" includes harm in the form of a panicky crowd that can stampede. Falsely shouting fire on a lonely beach is a different matter. On this understanding, the majority correctly concluded that the less-protected categories defined thus far are what they purport to be.

The use of an alias provides a good example. I. Lewis Libby tells people his name is "Scooter," and Marshall Mathers presents himself as "Eminem," although both are demonstrably false statements of fact regarding their names that can be disproved through government birth records. One is free to use an assumed name so long as it is not done as part of a scheme to defraud. The same should apply to a false statement about receiving a medal, which can be disproved through government records in the same way. Indeed, the ease of proving falsity makes it suitable for correction in the marketplace of ideas, as seen at the Medal of Honor Imposters website.

Truth Police

Our free speech alarms should ring especially loudly whenever an utterance is banned purely out of official disapproval. If speech could be banned merely because it were false, Congress could ban assertions in favor of creationism or evolution. Galileo's assertion that the earth revolved around the sun was a factual assertion that was once deemed officially false. The government should not be the truth police in the absence of other harm.

Volokh's amicus brief recognized this peril, and proposed that false statements of fact could not be punished if made when discussing the government, history, or science. But if false statements are presumptively proscribable, it becomes difficult to construct a legal principle to explain the exceptions to the exception. The Alvarez majority approach is conceptually cleaner and provides better guidance in separating proscribable from protected false statements.

Controlling Speakers to Control Listeners' Thoughts

Freedom of speech, like freedom of religion, is also about freedom of thought. When despotic governments have acted as truth police, they punish perceived untruths in large part to ensure conformity of thought in society at large. The Stolen Valor Act shares that vice. The tip-off is in Congress's statement of purpose, which is "to protect the reputation and meaning of military decorations and medals." Congress wants to control what everyone thinks military medals mean.

People should be allowed to decide for themselves what meaning to attach to symbols - especially symbols of government. This is the lesson of Texas v. Johnson and US v. Eichman, which rejected any valid interest in dictating how the flag must be perceived as "a symbol of nationhood and national unity." As we know from West Virginia State Board of Education v. Barnette, "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The dangers of government as truth police outweigh any damage that may come from the imposters who tell obnoxious but not harmful lies about themselves. Faced with these charlatans, we should take a deep breath and remember Justice Jackson's statement from US v. Ballard that the price of free speech "is that we must put up with, and even pay for, a good deal of rubbish."