In a move that has sparked local controversy and national attention, the Largo, FL City Commission voted last month to dismiss their City Manager of fourteen years because she is undergoing a gender transition. No one contested that Susan Stanton -- formerly Steven Stanton -- had done a great job all along, but five out of seven commissioners decided she'd "lost credibility" because of her transition.
Ms. Stanton is appealing her dismissal through commission procedures for now, but she has retained legal representation through the National Center for Lesbian Rights, which has said it will consider going to court over the matter.
Largo has an internal nondiscrimination policy here that appears to have been violated by this filing, though it's not clear to me what the remedy is for such a violation. Florida and federal law do not clearly prohibit anti-trans discrimination in employment. The Equal Protection Clause probably does so in public employment, see Doe v. United States Postal Service, 1985 WL 9446 (D.D.C. 1985). Though under rational basis review an argument about "credibility" or the like might be made, this looks like animus under another name.
Is the firing, by vote of the city commission, of a city manager a nonjusticiable political question? Nice try, but I think not. I haven't really studied this area, but Powell v. McCormack seems to me to dictate that even dismissal of a top political official is justiciable when constitutional rights are involved.
More interesting to me than the legal questions here is how this plays out in public discourse, particularly within the city and state. Firings of trans teachers and professors in recent years have generated considerable discussion of anti-trans discrimination, but this high-profile case involving a long-serving public official seems an even more poignant vehicle for that discussion.
For more on the relevant law and the media coverage of this case, I refer you to Janet Weiss's Transgender Workplace Diversity blog.
Friday, March 9, 2007
Thursday, March 8, 2007
On overruling Roe
Over at Prawfsblawg, Jessie Hill (my favorite CWRU faculty member) recently wrote a trilogy of commentaries on the prospects and implications of overruling Roe v. Wade. She points out what I have often found myself pointing out to nonlawyers interested in the issue: that despite the recent Supreme Court appointments, there are still five clear votes for upholding Roe. And moreover, Justice Roberts's general attitude so far, together with the unanimous Ayotte opinion, suggests that he just might give considerable weight to the stare decisis factor than his conservative colleagues if he were in a position to swing the Court. This is all another way of saying that the state legislators busying themselves with creating "test" laws to challenge Roe are engaging in a huge waste of state resources.
More interesting than all that is Hill's thoughtful speculation about how state legislatures would react to such an overruling; whether pre-Roe bans would "reactivate" automatically; and whether the health exception requirement would remain.
More interesting than all that is Hill's thoughtful speculation about how state legislatures would react to such an overruling; whether pre-Roe bans would "reactivate" automatically; and whether the health exception requirement would remain.
HPV vaccination: the litigation begins
Reportedly thirty-three states have now begun considering bills to promote or require the revolutionary HPV vaccine (here's a summary of six of those). While cultural-conservative response during the FDA approval process was relatively muted (as compared to the long struggle over OTC emergency contraception), there is now a full-blown debate about whether the vaccine should be mandated, largely arising from HPV's status as a sexually transmitted disease.
Inevitably, the litigation has begun, with several Texas parents challenging Texas Gov. Rick Perry's executive order mandating the vaccine for sixth-grade enrollment. While the claim in this case appears to one in state law alleging that the Governor exceeded his authority, this will not be the only such suit, and others will surely raised constitutional objections. These claims, I expect, will be based either on the right to bodily integrity or the right to direct the upbringing of one's children. Free exercise claims are also imaginable, although the mandatory vaccination bills out there seem generally to include religious exemptions.
The natural question becomes the application of Jacobson v. Commonwealth, in which the Supreme Court in 1905 rejected a constitutional challenge to mandatory smallpox vaccination. The Court there held that (1) individual liberty interests could in appropriate circumstances be overridden by public health measures, and (2) the legislature having judged a mandatory scheme proper in accordance with overwhelming medical opinion, it was not for the courts to undertake a fresh examination of claims about the safety or efficacy of the vaccine. That case is still good law, as demonstrated by the Court's need to distinguish it in the Cruzan case, and by a military appeals court's recent reliance on it to uphold a mandatory anthrax vaccination. U.S. v. Schwartz, 61 M.J. 567 (N.M. Ct. Crim. App. 2005).
Of course, one vaccination is not the same as another; the public health implications of cervical cancer and smallpox are also quite different. Nearly 12,000 diagnoses and 4,000 deaths per year is a serious problem, but it is not highly contagious and does not rise to the level of a public emergency.
On the other hand, the potential parental objections seem relatively slight. Rather than asserting that the HPV vaccine is dangerous (as in Jacobson), parents would presumably be asserting simply that its safety and efficacy are uncertain, and/or that it would interfere with their parental prerogative in teaching proper sexual values. As in Jacobson, medical authority overwhelmingly supports the safety and efficacy of the vaccine. The risk of physical harm is merely speculative, as is the "risk" that vaccination would encourage adolescent sex. In any event, vaccination in no way prevents parents from teaching their children - and if they want to teach them to fear sex, there are plenty of other risks to spook them with.
Nevertheless, I would expect to see some ingenious arguments being made against mandatory vaccination, in both the legislatures and the courts, as this issue plays out across the country.
Edit: As the commenter below rightly indicates, the forthcoming legislation will likely have generous opt-out provisions, thus largely vitiating any constitutional objections by parents. In the context of school prayer, the Supreme Court has said that opt-outs are not enough to protect the objector because the opting-out child may be ridiculed by others. No such concerns apply here, and even if they did they only really have force in the Establishment Clause context. I shouldn't be surprised, however, if some creative arguments are put out there to challenge vaccination nonetheless -- so much is suggested by the current political debate, despite the opt-outs.
Inevitably, the litigation has begun, with several Texas parents challenging Texas Gov. Rick Perry's executive order mandating the vaccine for sixth-grade enrollment. While the claim in this case appears to one in state law alleging that the Governor exceeded his authority, this will not be the only such suit, and others will surely raised constitutional objections. These claims, I expect, will be based either on the right to bodily integrity or the right to direct the upbringing of one's children. Free exercise claims are also imaginable, although the mandatory vaccination bills out there seem generally to include religious exemptions.
The natural question becomes the application of Jacobson v. Commonwealth, in which the Supreme Court in 1905 rejected a constitutional challenge to mandatory smallpox vaccination. The Court there held that (1) individual liberty interests could in appropriate circumstances be overridden by public health measures, and (2) the legislature having judged a mandatory scheme proper in accordance with overwhelming medical opinion, it was not for the courts to undertake a fresh examination of claims about the safety or efficacy of the vaccine. That case is still good law, as demonstrated by the Court's need to distinguish it in the Cruzan case, and by a military appeals court's recent reliance on it to uphold a mandatory anthrax vaccination. U.S. v. Schwartz, 61 M.J. 567 (N.M. Ct. Crim. App. 2005).
Of course, one vaccination is not the same as another; the public health implications of cervical cancer and smallpox are also quite different. Nearly 12,000 diagnoses and 4,000 deaths per year is a serious problem, but it is not highly contagious and does not rise to the level of a public emergency.
On the other hand, the potential parental objections seem relatively slight. Rather than asserting that the HPV vaccine is dangerous (as in Jacobson), parents would presumably be asserting simply that its safety and efficacy are uncertain, and/or that it would interfere with their parental prerogative in teaching proper sexual values. As in Jacobson, medical authority overwhelmingly supports the safety and efficacy of the vaccine. The risk of physical harm is merely speculative, as is the "risk" that vaccination would encourage adolescent sex. In any event, vaccination in no way prevents parents from teaching their children - and if they want to teach them to fear sex, there are plenty of other risks to spook them with.
Nevertheless, I would expect to see some ingenious arguments being made against mandatory vaccination, in both the legislatures and the courts, as this issue plays out across the country.
Edit: As the commenter below rightly indicates, the forthcoming legislation will likely have generous opt-out provisions, thus largely vitiating any constitutional objections by parents. In the context of school prayer, the Supreme Court has said that opt-outs are not enough to protect the objector because the opting-out child may be ridiculed by others. No such concerns apply here, and even if they did they only really have force in the Establishment Clause context. I shouldn't be surprised, however, if some creative arguments are put out there to challenge vaccination nonetheless -- so much is suggested by the current political debate, despite the opt-outs.
Saturday, March 3, 2007
More on Lawrence v. Texas's sandpapery slope
Howard Bashman's latest On Appeal column neatly summarizes the recent incest and sex toy decisions and their implications.
Bashman is right about the Supreme Court's apparenty disinterest in hearing follow-up cases. As I have mused before, this is a striking contrast to the rapid succession of post-Brown v. Board of Ed. cases, which quickly dispensed with the narrow distinctions drawn in Brown. In fact, if this trend continues, one wonder whether Lawrence will become a little like Bush v. Gore, a case you're not supposed to cite for anything. "Oh, you're not trotting out that old thing, are you?"
Bashman is right about the Supreme Court's apparenty disinterest in hearing follow-up cases. As I have mused before, this is a striking contrast to the rapid succession of post-Brown v. Board of Ed. cases, which quickly dispensed with the narrow distinctions drawn in Brown. In fact, if this trend continues, one wonder whether Lawrence will become a little like Bush v. Gore, a case you're not supposed to cite for anything. "Oh, you're not trotting out that old thing, are you?"
Thursday, March 1, 2007
Consensual adult incest still a crime in Ohio
Speaking of the need for guidance on Lawrence v. Texas, the Ohio Supreme Court yesterday affirmed a man's incest conviction for having, concededly consensual, sex with his 22 year old stepdaughter. The court first held that the lack of any mention of age or consent in the statute meant that these factors were legally irrelevant; and further held that Lawrence was inapplicable since the State's legitimate interest in protecting the family is involved.
The Ohio court viewed Lawrence as a simple rational-basis decision. This seems to be the view of most post-Lawrence decisions, but it is by no means clear from the Supreme Court's poetic but legally muddled opinion.
If only rational basis review applies, it's pretty clear that Ohio's incest ban survives. It is rational to conclude that incestuous relationships may have destructive tendencies even between consenting adults. To the extent that this danger may sometimes be lessened with stepparent relationships, the stepparent who has not adopted his stepchild may get outside the ban by divorcing.
It is less clear to me that this law would pass muster if a fundamental right were involved, for it is at least arguable that the dangers of incest are less pervasive and less severe when with consenting adult. This would present a complex question, begging some illumination from the social sciences. But since the law was upheld, a narrowing amendment by the legislature is at least worth considering carefully in light of the serious criminal consequences (not that it will happen, of course).
Interestingly, in this case a dissenting justice said nothing of the constitutional issue but took issue with the court's statutory interpretation, based on a different reading of the legislative history. He went on to say:
The Ohio court viewed Lawrence as a simple rational-basis decision. This seems to be the view of most post-Lawrence decisions, but it is by no means clear from the Supreme Court's poetic but legally muddled opinion.
If only rational basis review applies, it's pretty clear that Ohio's incest ban survives. It is rational to conclude that incestuous relationships may have destructive tendencies even between consenting adults. To the extent that this danger may sometimes be lessened with stepparent relationships, the stepparent who has not adopted his stepchild may get outside the ban by divorcing.
It is less clear to me that this law would pass muster if a fundamental right were involved, for it is at least arguable that the dangers of incest are less pervasive and less severe when with consenting adult. This would present a complex question, begging some illumination from the social sciences. But since the law was upheld, a narrowing amendment by the legislature is at least worth considering carefully in light of the serious criminal consequences (not that it will happen, of course).
Interestingly, in this case a dissenting justice said nothing of the constitutional issue but took issue with the court's statutory interpretation, based on a different reading of the legislative history. He went on to say:
I suspect that the statute was not employed in this case as a means to preserve Ohio’s fractured extended families. Rather, the state used [the law] as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim. [The incest law] provides a shortcut to a conviction. This sort of use of the statute demeans its true purpose.This is a problem that has often occurred to me, and which I had not yet seen recognized by courts. There is no indication from the opinions whether consent was in any way doubtful in this case. But I suspect that this is a major reason why many laws criminalizing consensual sex are kept on the books. To use laws like this as a "shortcut to a conviction" would seem to erode the basic rights of the criminal defendant and cheapen our system of justice, even if it sometimes helps put bad guys in jail.
Wednesday, February 28, 2007
No comment.
I'm sure there some legal commentary to be had here, but I just don't know where to begin:
A Michigan man will stand trial for committing sodomy with a dog carcass.
A Michigan man will stand trial for committing sodomy with a dog carcass.
Tuesday, February 27, 2007
S.Ct. denies cert. in polygamy case
The U.S. Supreme Court denied certiorari yesterday in Holm v. Utah, the appeal of a heretic Mormon polygamist whose polygamy conviction was upheld by the state's highest court. This continues the Supreme Court's consistent refusal to hear any cases concerning the scope of Lawrence v. Texas.
In one sense this is a pity, because the unique "bigamy" statute in Utah -- which actually criminalizes nothing more than cohabitation with a person other than one's spouse -- presents an issue that may be closer to the one in Lawrence than in other post-Lawrence cases it has refused to hear. (The major difference being the state's asserted interest in addressing separate crimes believed to be correlated with polygamy -- also an issue of considerable interest.) Yet denial in this particular case makes perfect sense, because the involvement of a sixteen-year-old in Holm means that the issue of the rights of consenting adults is not squarely presented.
However you feel about the polygamist sects of the American West, or about Utah's law, one may hope that a case comes up that does squarely present this issue, so that maybe we can finally have some guidance on Lawrence.
In one sense this is a pity, because the unique "bigamy" statute in Utah -- which actually criminalizes nothing more than cohabitation with a person other than one's spouse -- presents an issue that may be closer to the one in Lawrence than in other post-Lawrence cases it has refused to hear. (The major difference being the state's asserted interest in addressing separate crimes believed to be correlated with polygamy -- also an issue of considerable interest.) Yet denial in this particular case makes perfect sense, because the involvement of a sixteen-year-old in Holm means that the issue of the rights of consenting adults is not squarely presented.
However you feel about the polygamist sects of the American West, or about Utah's law, one may hope that a case comes up that does squarely present this issue, so that maybe we can finally have some guidance on Lawrence.
Monday, February 26, 2007
Parents' challenge to gay-positive curriculum dismissed
Massachusetts's federal district court on Friday dismissed a suit by parents challenging the use of gay-positive books in their children's elementary classrooms. The parents objected particularly to the presence and occasional use of storybooks such as King and King, Molly's Family and Who's in a Family?, which positively depict same-sex couples and families. Since the parents believe that homosexuality is immoral, they claimed that the curriculum violated their right to raise their children and to exercise their religion.
In a strict sense, the dismissal in this case breaks no new legal ground. The district court was bound by First Circuit Court of Appeals holding in Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995), which held that "In Brown, the First Circuit held that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion."
The district court's view of Brown as indistinguishable from the present case, however, is significant, and its discussion of the interests of students who have queer parents or may be queer is even moreso.
Brown concerned a high school assembly in which an outside presenter used a particularly salacious approach to promote safer sex. (Very much the sort of edgy presentation I once gave to college students, actually. While the use of such an over-the-top approach with high school students surprises even me, I've no doubt that parental objections directed to school authorities would be sufficient to ensure a more toned-down approach in future.) That the present case concerned elementary students might at first glance suggest that more deference to parents is warranted, but Brown's holding, based in essence on the discretion required by all public schools, applies equally at all levels. Brown's holding has been followed by the other circuits, and the district court was right not to deviate here.
The court noted multiple reasonable bases for the inclusion of positive discussions of queer families in the curriculum: fostering mutual respect in a diverse nation; eradicating past discrimination; preventing future discrimination; and creating a learning environment in which queer students and students with queer parents can excel.
But its most interesting comments concerned the future of this dispute outside of federal court. The parents are free to pursue in state court a claim that the curriculum violates a state law guaranteeing a parental opt-out for any curriculum that "primarily involves human sexual education or human sexuality." The State argues that the statute does not apply. The court urged the parties to seek a compromise out of court, but acknowleged that
This dismissal will almost certainly be upheld on appeal; it will indeed be interesting to see what, if any, compromise the parties may be able to reach.
In a strict sense, the dismissal in this case breaks no new legal ground. The district court was bound by First Circuit Court of Appeals holding in Brown v. Hot, Sexy and Safer Productions, 68 F.3d 525 (1st Cir. 1995), which held that "In Brown, the First Circuit held that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion."
The district court's view of Brown as indistinguishable from the present case, however, is significant, and its discussion of the interests of students who have queer parents or may be queer is even moreso.
Brown concerned a high school assembly in which an outside presenter used a particularly salacious approach to promote safer sex. (Very much the sort of edgy presentation I once gave to college students, actually. While the use of such an over-the-top approach with high school students surprises even me, I've no doubt that parental objections directed to school authorities would be sufficient to ensure a more toned-down approach in future.) That the present case concerned elementary students might at first glance suggest that more deference to parents is warranted, but Brown's holding, based in essence on the discretion required by all public schools, applies equally at all levels. Brown's holding has been followed by the other circuits, and the district court was right not to deviate here.
The court noted multiple reasonable bases for the inclusion of positive discussions of queer families in the curriculum: fostering mutual respect in a diverse nation; eradicating past discrimination; preventing future discrimination; and creating a learning environment in which queer students and students with queer parents can excel.
But its most interesting comments concerned the future of this dispute outside of federal court. The parents are free to pursue in state court a claim that the curriculum violates a state law guaranteeing a parental opt-out for any curriculum that "primarily involves human sexual education or human sexuality." The State argues that the statute does not apply. The court urged the parties to seek a compromise out of court, but acknowleged that
Finding a reasonable accommodation may be a challenging task. Allowing parents to exempt their children from classes primarily involving human sexual education may not injure the value of those classes for the students who remain. However, as Ralph Waldo Emerson wrote in his journal, " 'I pay the school master, but 'tis the school boys that educate my son.' " [...] An exodus from class when issues of homosexuality or same-sex marriage are to be discussed could send the message that gays, lesbians, and the children of same-sex parents are inferior and, therefore, have a damaging effect on those students. Cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954). It might also undermine the defendants' efforts to educate the remaining other students to understand and respect differences in sexual orientation.An opt-out for sex ed risks no implied message about any particular group of people. A similar treatment of any discussion of same-sex relationships has quite different applications. The court's citation to Brown v. Board here is wholly appropriate (notwithstanding subsequent criticism of the education studies cited in that case), but nonetheless amazing.
This dismissal will almost certainly be upheld on appeal; it will indeed be interesting to see what, if any, compromise the parties may be able to reach.
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