Tag Archive for 'supreme court'

Failure to Hire Due to Religious Attire

When 17-year-old Samantha Elauf applied for a job at Abercrombie and Fitch in 2008, she was not hired even though she received a high score during the interview process. The assistant manager who conducted the interview thought she was qualified, but the manager was concerned that Elauf’s hijab would be in violation of the company’s “Look Policy.” The policy did not permit caps to be worn. After communicating with her district manager about the issue, the assistant manager agreed to lower Elauf’s score because Elauf wore a hijab.

The Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Elauf as a result of being denied a position at the retail store in Tulsa, Oklahoma. A district court ruled in her favor, granting the Muslim teen damages in the amount of twenty thousand dollars. However, the decision was reversed by the Tenth Circuit Court of Appeals, which held that an employer is free from liability for neglecting to “accommodate a religious practice” if a potential employee had not requested the accommodation. Samantha Elauf, Majda Elauf, P. David Lopez

However, the Supreme Court sided with Ms. Elauf in an 8-1 decision, with Justice Thomas the lone dissent. Justice Antonin Scalia spoke on behalf of the high Court when he said “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Moreover, during oral arguments, Justice Samuel Alito stated that the managers at Abercrombie could have questioned her as to whether she would wear the head scarf while at work for religious reasons. But they did not ask her this question. Instead, they made the assumption that she wore the scarf as part of her religious practice, and refused to hire her for that reason.

Dress Codes Cannot Violate Civil Rights

While it is acceptable for an employer to have a dress code, it is unconstitutional for an employer to discriminate against someone because of religious practice. For instance, if an employer terminates, or refuses to hire, someone because of their religious practice, and does not even attempt to accommodate them, then that counts as discrimination under Title VII of the Civil Rights Act of 1964.

Given Abercrombie’s reputation for exclusivity in its hiring and marketing practices, it is unsurprising that the store refused to hire someone because of her religious practice of wearing a hijab. Nevertheless, the managers should have realized that such a denial was a form of discrimination, and in violation of the law.

However, the company seems to be leaning towards becoming more inclusive, especially in light of a prior class-action discrimination lawsuit, which alleged that Abercrombie discriminated against minorities, including African-Americans, Latinos, and Asian-Americans, in its hiring practices and its marketing. In fact, just this past April, the company stated that it would be more “inclusive and diverse” in its hiring methods, and adopt a “more individualistic” dress code.

Supreme Court to Decide If States Can Ban Same-Sex Marriage

It’s happening, whether you like it or not. In 2013, Justice Scalia predicted that the Supreme Court’s decision to invalidate the federal law banning recognition of same-sex marriage would inevitably lead to a Court decision invalidating state laws banning same-sex marriage. Two years later, Scalia’s prophecy has come true.

EP-141009361The Supreme Court has agreed to hear four cases that would decide if states can ban same-sex marriage. The decision will be announced in June. If the Court finds against the state bans, then same-sex marriage will be legal everywhere in the United States.

The cases themselves are a mixed bag of issues. One couple was wed in New York in 2011 and went to Ohio in 2013 to adopt a child. Ohio refused to list both men on the birth certificate, citing a state law that limited parentage to one father because Ohio only recognized marriages between one man and one woman. In Michigan, a lesbian couple sued to have their relationship recognized so that they could adopt each other’s children if one of them passed away. The third couple met and was married in New York, but Tennessee refused to recognize their marriage when they moved to the state for work. The last couple was married in California, but the men moved to Kentucky to adopt children.

The Court has combined the four cases to address two questions:

  1. Does the 14th Amendment require states to recognize marriages between two men or two women?
  2. Does it require states to recognize a same-sex marriage that was lawfully performed in another state where such marriages were legal? The four cases come from the Sixth Circuit, which decided 2-1 that the authority to legalize same-sex marriage comes from voters, not the courts.

The Path to Recognition

Most commentators (including yours truly) would be shocked if the Court found against same-sex marriage. It is possible that the Court would rule against same-sex marriages, but precedent makes that unlikely. The Court only recently announced that the federal government cannot distinguish between same-sex and heterosexual marriages. The main question is how the Court will make the decision. Here are a few ideas on how the Court could go about doing that:

  • Discrimination based on sexual orientation – this is the main argument being pushed, but sexual orientation has not officially been recognized by the Court as a protected class.
  • Discrimination based on sex – Old fashioned sexism is an idea the Court has dealt with before. The logic is a little flawed though because states that ban same-sex marriage prohibit both men and women from entering into a same-sex marriage.
  • Right to Marriage – This right has been well established from interracial marriage cases. However, recognition of same-sex marriage based purely on a right to marriage would limit other rights that homosexuals could have.
  • Full Faith and Credit – This clause in the Constitution is suppose to require that states recognize contracts, including marriages, formed in other states. If the Court fails to legalize same-sex marriage throughout the country, states that ban same-sex marriage may still be required to recognize same-sex marriages from other states.

The details of how the Court recognizes same-sex marriage is important. As mentioned, if the Court only recognizes a right to marriage without equal protection, then states can enact other laws restricting same-sex couples. Many businesses, such as wedding photographers and bakeries, are already refusing to serve same-sex couples.

It’s also important to realize that even if the Court rules that same-sex marriage is legal throughout the United States, states will still resist. Many states are preparing laws in anticipation of such a decision. Oklahoma has proposed a law that would allow parents to take their children to gay conversion therapy. Similarly, South Carolina has proposed a bill that would allow government employees, including judges and court clerks, to opt out of issuing marriage licenses if issuing such licenses would violate their religious beliefs.

The battle over same-sex marriage might soon be over, but the war over homosexuality may yet continue in conservative states.

Police Power Expanded by the Supreme Court

Massive protests have recently spread throughout the nation, expressing outrage at police brutality and the murders of unarmed suspects Michael Brown and Eric Garner.

police powerIn the wake of these protests, on December 15, 2014, the U.S. Supreme Court increased police power and granted officers more discretion when making an arrest. The case involved a traffic stop conducted by North Carolina officer Matt Darisse. After noticing that a right brake light of a car owned by Nicholas Heien, and driven by Mayor Havier Vasquez, the officer decided to pull the vehicle over. However, having a non-working right brake light is not in violation of the North Carolina traffic code. After pulling over the vehicle, Darisse issued a warning for the light but, somehow, convinced Heien to authorize a voluntary search of his car. Officer Darisse later admitted that he pulled over the vehicle, not because of the brake light, but because he thought Vasquez appeared “stiff and nervous,” insofar as he was “gripping the steering wheel at a 10 and 2 [o’clock] position, looking straight ahead.” The driver, Vasquez, is Latino.

After conducting the search, the officer recovered a bag of cocaine. Both Heien and Vasquez were charged with drug trafficking. The legal question presented to the Supreme Court was whether the officer’s mistaken belief about the law constituted a valid stop. If the Court had decided in the negative, the stop violated the defendant’s 4th amendment rights against search and seizure.

Normally, mistake of law is never a defense for those charged with a crime. The question stands, should the officer’s ignorance of the law remain a justification to legally search a suspect’s car, if they have reasonable suspicion? The Supreme Court decided, yes, the officer can mistakenly believe there is a violation of the law. Therefore, even though the defense of “mistake of law” is unavailable to a defendant charged with a crime, it is readily available to an officer who makes an arrest based on their ignorance of the law. There are many concerns with the ruling including an officer’s potentially lying that they made a mistake, when they really knew the offense was not a violation of any law.

The Supreme Court ruling appears to be directly in violation of the “fruit of the poisonous tree” exception, applied to criminal arrests. This doctrine makes an arrest invalid if it is the direct result of an illegal search. The law states that is that if the source (the “tree”) of the evidence is tainted, then anything gained (the “fruit”) from it is also tainted. The arrest will likely not stand up in court.

It has long been established that, in this type of situation, a suspect’s 4th amendment rights are violated. For example, if a police officer searches a home without a warrant and takes some property as evidence, it is an illegal search. That evidence will be thrown out of court, unless the officer can demonstrate that this evidence could have been obtained by other means.

Furthermore, there are many concerns of the law allowing the police to use stereotyping and racial bias in a search. One of the amicus curiae briefs, filed by the Rutherford Institute, in the Heien case addressed race and ethnicity and the Fourteenth Amendment’s equal protections afforded to criminal defendants. The brief argued that this ruling will allow the police too much discretion in their interpretations of the law, which will inevitably lead to negative impacts on minorities.

Studies have long shown that African Americans and Hispanics are much more likely than whites to be searched, despite constituting a much lower percentage of the population. Studies have also shown that here is an innate psychological bias against minorities within many police departments, based on high crime in low income neighborhoods. In fact, in New York City a number of officers, who fall into a minority classification, recently expressed that they fear white police officers when undercover.

History shows that dictatorships have allowed the police to misuse their power and even carry out criminal acts, with no consequences. The institutionalized racism and classism was all too apparent in countries run by dictators. However, the United States is a democracy. Nonethless, confrontations between the police and those of lower income brackets, are often the stage for violence that ensues between the two.

The police, who are obviously in a position of power, often overreact when making an arrest, soliciting a voluntary search or extracting a confession of a person that they perceive as guilty. In no way am I suggesting that the police force of any city is, as a whole, racist and classist. However, it is inevitable that racism occurs when profiling suspects and these occurrences have resulted in unjustified arrests. Recently, potentially unnecessary arrests have actually resulted in the death of an unarmed suspect who was not physically resisting, for something as minor as selling single cigarettes on a street corner.

The type of unfettered police discretion, granted by the Court in the Heien ruling, has proven to have devastating consequences on both minorities and even the police. After the death of Garner, caused by a chokehold banned by the NYPD, a man murdered two police officers on the streets of New York. He apparently had expressed his anger on social media about the deaths of Mike Brown and Eric Garner. Much of the mainstream media, as well as the NYPD union spokesman, linked the murders to the protests of police brutality throughout the City. However, they minimize the fact that the suspect had a history of mental illness.

The majority of people in opposition to police brutality do not advocate for the murder of police officers. To the contrary, many of the social media posts from the left state that “all lives matter” and condemn the murders. We must not confuse the two situations. Murder, of any person, is wrong. In fact, the daughter of Eric Garner attended the memorial of the murdered officers to show her support to their families. However, the relationship between the police and the community must change. A mutual respect must be established and racial profiling needs to be replaced by the motto of “protect and serve”, as opposed to unfettered police discretion, based on racial profiling. However, the Heien decision will allow these potentially illegal searches and arrests to stand up in court and give the police too much discretion in the handling of suspects.

The Future of Same-Sex Marriage May Be up to the Supreme Court

The states have an enormous amount of leeway when it comes to marriage. On occasion, however, a state’s laws regarding marriage may be called into question, requiring a high authority to step in and offer a well-reasoned answer. For example, Virginia outlawed interracial marriages for many years, until someone challenged the law and eventually had it overturned in the landmark decision of Loving v. Virginia.

same-sex marriageAs coincidence would have it, Virginia has recently become the third state to ask the Supreme Court to weigh in on their gay marriage law. Joining Utah and Oklahoma, and undoubtedly more in the coming weeks, Virginia’s Attorney General is essentially asking the Supreme Court to answer one highly controversial question: do homosexual couples have a fundamental right to marriage?

The Supreme Court is under no obligation to hear any of the cases. Even if they do decide to weigh in, there is no real deadline facing the Court. Notwithstanding, the situation presents a daunting situation; nine unelected justices may ultimately be responsible for ending the most tumultuous debate in decades.

For proponents of gay rights, that may not be such a great thing.

Earlier this year, same-sex marriage made news when a California ballot initiative attempted to define marriage as between a man and a woman. Reviewed by the Supreme Court, the appeal was shot down on jurisdictional grounds. What that means is that the court never really, officially reached the merits of whether same-sex couples can marry, but rather simply said the people challenging it didn’t have a legal leg to stand on.

In another victory for supporters of same-sex marriage came about in 2013, when the same Court held the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman, is invalid, because the law offered no legitimate purpose that outweighed the discriminatory, damaging effect DOMA had on same-sex couples. The Court reasoned that “by seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The initial inclination many may have is that the Court will make the same decision with respect to states. What makes this time different?

Unlike DOMA, which is a piece of congressional legislation, these laws are all unique to their respective state. As such, they are written differently, and may have provisions that could potentially satisfy the Court’s requirement for a legitimate purpose. Remember, DOMA was deemed to have no legitimate purpose, and, similar to bans on interracial marriage or same-sex marriage at a federal level, there also may not be any legitimate purpose of any of these states laws. However, and regardless of anyone’s personal beliefs, the devil is in the details with respect to statutory construction. With so many different state laws the Supreme Court will have to choose form, it’s possible they may make a ruling based on the best written – or most poorly written – law that appears before them.

Which leads to the next issue: variety. With the copious amount of appeals reaching the Supreme Court’s door, the justices will have the option of picking one (or potentially several) cases on which to base their ruling. While variety may be a good thing, as it ultimately gives the justices more freedom to pick the best case to support their legal reasoning, it’s also not such a great thing for that exact reason – if the Supreme Court wishes to limit the impact of the decision, they can. If they want the decision to have the broadest impact as possible, they can do that too.

So, for example, the Supreme Court may only decide on Virginia’s case based on the unique challenges Virginia is facing, and decline to hear the other cases. In doing so, they could indirectly have an impact on every same-sex couple, without actually ever having to reach a final decision on the merits.

Finally, justices are not keen on recognizing new rights. They may not necessarily have to with respect to gay marriage if they simply do not find a legitimate purpose in any of the state’s laws. What that does, however, is perpetuate and stretch out the same-sex marriage battle, making each challenge and each appeal it’s own little constitutional rule instead of one, overarching definitive rule. That will result in a patchwork of ideology, legal reasoning, and doctrinal law, and ultimately confuse the issue even further.

It is entirely possible none of this may happen. The court may decline to hear any case until there is more of split between circuits, and they may make another victory or offer a crushing defeat for same-sex marriages. As more states appeal, one thing becomes clear: they’ll have to do something, and whatever that something may be, it seems to have more potential to further promulgate and muddle same-sex rights than it does to clear things up.

The Beginning of the End for Public Unions

Tired of unions taking money from your paycheck every month? The Supreme Court might have the answer soon.

OLYMPUS DIGITAL CAMERAStephanie Yencer-Price provides in-home care for her daughter, who requires constant care due to certain medical conditions. Illinois pays Stephanie and many others for this type of work. In 2003, Illinois began classifying personal assistants as public employees solely for the purpose of collective bargaining. As a result, personal assistants like Stephanie had to pay “agency fees” to public unions. The problem is that Stephanie and personal assistants like her are not union members. The workers took their case against the unions all the way to the Supreme Court.

Public unions are able to extract fees from non-union members because there is a “free-rider” problem. In theory, unions represent all the workers of a company or government agency. When the union negotiates for higher pay or other benefits, all workers will obtain the benefits. However, even if some workers refuse to join the union, the benefits that the union negotiates for will still go to the non-union workers. In short, the union would be representing people who are not part of the union. To ensure that workers don’t reap the benefits of union representation without paying for fees, the Supreme Court allowed unions to collect “agency fees” from non-members in a 1977 case.

The recent case of Harris v. Quinn undermines this union structure by keeping personal assistants away from the long arm of union fee collection. The Court decided that since personal assistants are hired and fired by the people they serve – rather than the state – personal assistants are not full public employees, exempting them from union fees. This case still scares union leaders though because it could easily snowball into a national right to work.

The right to work means that each individual worker has the right to choose whether he or she wants to be represented by a union. This “right” would shield non-members from union collection fees. The Court supplied the justification for this right by ruling that coerced union fees violates the 1st Amendment.

Modern Slavery

It was bold for the Court to restrict union agency fees through the 1st Amendment, but the Court used the wrong constitutional amendment. Instead of using the 1st Amendment, the Court should have based its decision on the 13th. The 13th amendment is the amendment which banned “slavery” and “involuntary servitude” in the United States. Traditional 13th amendment interpretation defined slavery as the inability to quit work. That’s exactly what mandatory union fees are.

When a worker is hired to work for a company, the worker expects to exchange labor for the company’s money. The third wheel of the relationship, the labor union, takes a portion of the worker’s pay, regardless of how the worker feels about it. The worker can’t leave the unhappy relationship with this third party and thus the worker is forced to work on the union’s behalf.

Union proponents might say that the union is also working for the non-member worker. If the worker stops paying fees, it would the union which labors on the non-member’s behalf without ability to stop. The problem with this argument is that the union is not directly laboring for the non-member. The union bargains with the employer and the employer is the one giving the benefits. In contrast, the non-union worker who is forced to give up fees is directly contributing to the union’s coffers.



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