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Witt-Less: A History And Analysis Of The U.S. Military’s Failure To Comply With The Ninth Circuit’s Due Process Standard For ‘Don’t Ask, Don’t Tell’

Witt-less: A History and Analysis of the U.S. Military’s Failure to Comply With The Ninth Circuit’s Due Process Standard for ‘Don’t Ask, Don’t Tell’

Ari Freilich[1]

Please click here for a PDF version of the article.

I. Introduction

 

In its May 2008 ruling in Witt v. Dep’t of the Air Force,[2] the Ninth Circuit Court of Appeals became the first court in the nation to subject Don’t Ask, Don’t Tell (“DADT”) to a standard of “heightened scrutiny” and, more generally, to explicitly require more than deferential rational basis justification for “government attempts to intrude upon the personal and private lives of homosexuals[.]”[3] But Witt did more than simply articulate an abstract due process standard for subsequent gay rights cases. Surprisingly scant attention has been paid to the fact that, in applying heightened scrutiny to DADT, Witt mandated a new, significant, evidentiary burden shift against the military in discharging servicemembers for their sexual orientation. The Witt Court invalidated DADT’s blanket, mandatory discharge policy in favor of a fact-specific standard requiring actual, individualized proof of military necessity in order to substantiate a servicemember’s discharge under DADT. That decision, and the “Witt Standard” borne of it, should have been a watershed moment for gay rights in America because the Ninth Circuit Court afforded significantly expanded substantive due process protections to gay men and women within its jurisdiction.[4] The decision should also have had an immediate impact on gay servicemembers’ right to serve openly in the U.S. Armed Forces. Although the military’s highest ranking officials acknowledged the Witt Standard as binding and approvingly cited it in federal court cases, the military simply, absolutely, and unconstitutionally ignored the decision in practice.

Since its enactment in 1993, 10 U.S.C. § 654, commonly known as Don’t Ask, Don’t Tell, mandated that military commanders discharge all servicemembers who engaged in homosexual conduct, attempted to form a same-sex marriage, or evidenced a “propensity” to engage in homosexual conduct or relationships. Before Witt, that statute was upheld under rational basis review by every court that considered it.[5] The military’s evidentiary burden in such discharges was extremely slight, and courts and military commands routinely (and rather absurdly) placed the burden on outed servicemembers to prove that they were not physically attracted to the same sex in order to qualify for continued military service.[6]

But in Witt, still three years before the military halted its enforcement of DADT,[7] the Ninth Circuit held that, in order to constitutionally discharge any servicemember for homosexual orientation or conduct, the military was required to first prove that the servicemember’s discharge significantly furthered, and was necessary to further, the military’s interests in maintaining morale, unit cohesion, and good order and discipline in the Armed Forces.[8] To establish the discharge’s necessity, military separation authorities also had to establish on the record, prior to separation, that the military could not likely “achieve substantially” the same goals through any “less intrusive means,” such as transferring an outed servicemember to another unit.[9] In 2009, the Defense Department’s attorneys acknowledged in federal court that Witt “made clear” that the legality of DADT discharges had to be evaluated in the Ninth Circuit “through an ‘individualized balancing analysis’ . . . tied ‘specifically’ to the circumstances of an individual.”[10] The Secretary of Defense, the Department of Defense General Counsel, and multiple service secretaries all subsequently testified before Congress that Witt had changed the legal requirements for DADT discharges within the Ninth Circuit.

However, despite these public acknowledgements, the military and its service secretaries took no action and gave commanders no guidance to comply with the Ninth Circuit’s Witt Standard in any way, shape, or form. In short, the military chose to ignore the U.S. Court of Appeals. This was consistent with one author’s observation that “[i]t doesn’t appear that any decision of any court actually impacted the manner in which the military administered DADT.”[11]

After the Witt ruling in May 2008, the military proceeded to enforce DADT as usual. It involuntarily discharged well over 1,000 more men and women from the Armed Forces, at a time of war and severe manning shortages, on the sole basis of their sexual orientation, before DADT was finally repealed and its enforcement enjoined by court order in July 2011.[12] The military ended these honorable, otherwise qualified servicemembers’ careers without meeting, or even attempting to meet, its constitutionally-required burden under the Ninth Circuit’s Witt Standard. As a result of the military’s failure to honor basic balance of powers principles and to afford servicemembers the individualized due process required by Witt, a large number of servicemembers were discharged from the Armed Forces between May 2008 and July 2011 in violation of rights protected by the U.S. Constitution. Surprisingly, little legal scholarship has been published about their rights and legal injuries under Witt.

This article will begin to fill that dearth of scholarship and analysis about the context and legal framework of the Witt decision and the consequences of the military’s failure to comply. It will rebut the military’s false rationales for non-compliance, including its bizarre theory of judicial inferiority in military matters and its baseless concerns about disruption to military operations. It will also discuss other ways in which the military has shown itself well-practiced at rendering individualized determinations of servicemembers’ fitness for duty to demonstrate that the military reasonably could and should have complied with the Ninth Circuit’s ruling without delay.

It is also intended that this Article and analysis will assist veterans’ and gay rights advocates in developing cases seeking recovery and remuneration for the large number of servicemembers who were unconstitutionally discharged after and in violation of Witt. Four discharged servicemen successfully brought two such cases in federal district courts in recent years; one even included a named plaintiff with essentially no ties to the Ninth Circuit.[13] Both cases resulted in significant out-of-court settlements, which granted the plaintiffs requested relief of reinstatement on active duty, military retirement, or time-in-service credit with compensation for lost income and allowances.[14] These cases should be just the beginning. A broader, informed litigation strategy or legislative fix is necessary to redress the military’s failure to comply with Witt, which has resulted in the arbitrary denial of discharged patriots’ due process rights. As federal courts’ and military correction boards’ statutes of limitations foreclose more and more DADT discharge cases in coming years,[15] advocates and would-be plaintiffs must be mindful, well-informed, and savvy about their rights and legal options. This article intends to assist in their just endeavor for redress.

 

II. Background: Major Witt and the Road to a Heightened Scrutiny Standard for Gay Rights in Military Discharges

 

A. Major Witt’s Record of Exemplary Service and Suspension for Homosexuality

Air Force Major Margaret Witt was an accomplished, decorated, and by all accounts outstanding flight nurse throughout 19 years in military service.[16] She received superb performance evaluations and numerous high awards and honors in recognition of her superior career achievements. The Air Force made her a literal “poster child” in 1993, when it selected her to be prominently featured in its recruiting and promotional materials as the “model” Air Force nurse.[17] Serving for most of her career in Aeromedical Evacuation Squadrons, Major Witt was responsible for providing inflight care and treatment of ill and injured servicemembers during transport aboard military aircraft.[18] She served in Europe in the 1990’s, caring for ill and wounded in Bosnia, and in the Middle East, where she served on dozens of flight missions to rescue and treat soldiers fighting in Iraq.[19]

Recognition for her service included an Air Medal citation from President Bush commending her delivery of “outstanding medical care” to wounded servicemembers during Operation Enduring Freedom.[20] The citation noted that “her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions and demonstrate[d] her outstanding proficiency and steadfast devotion to duty.”[21] She was named Air Force Officer of the Quarter in late 2003, receiving an award “given only to those individuals who have demonstrated exceptional professionalism, leadership and service to our country . . . [as] recognition for superior dedication . . . .”[22]

Photos of this “poster child” flight nurse appeared in Air Force ads and literature for more than a decade, [23] even after her sudden involuntary suspension from the Air Force without pay in November 2004 pending investigation into an anonymous allegation that she was a lesbian.[24] During a formal investigation into her private sexual history lasting for nearly seventeen months, she was prohibited from participating in military duties or activities. Moreover, she was barred from earning pay, points toward promotion, and time-in-service credit toward her military retirement, even though she was less than one year short of earning that lifetime pension for her years of service.[25] In March 2006, Air Force officials finally informed Major Witt that they were initiating formal discharge proceedings against her—terminating her from the military—“on account of her homosexuality” based on evidence that she had “engaged in homosexual acts” in a private, committed 6-year relationship with a civilian woman.[26]

Regulations implementing Don’t Ask, Don’t Tell called for the mandatory discharge of all servicemembers who engaged in homosexual conduct, attempted to form a same-sex marriage, or indicated a “propensity” to engage in such acts or relationships, for instance, by making a “homosexual statement” indicating their sexual orientation.[27] Under these regulations, discharge was mandatory for all servicemembers in all of these circumstances except where the servicemember could demonstrate a predominantly heterosexual orientation.[28] Major Witt could not and did not attempt to deny her orientation or same-sex relationship.

In April 2006, Major Witt filed suit in the federal District Court for the Western District of Washington, seeking a preliminary injunction to enjoin the Air Force’s discharge proceedings against her.[29] Though the DADT statute had to date been upheld by every court to consider it,[30] Major Witt argued that its application in her individual circumstances could not survive the “searching constitutional inquiry”[31] required by the Supreme Court’s 2003 ruling in Lawrence v. Texas, in which the high Court held that “[Homosexuals’] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”[32] Major Witt argued that, in light of Lawrence, her discharge under DADT was an as-applied violation of the Fifth Amendment’s guarantee of substantive due process.[33]

 

B. The Military Prevails at the District Court Under Deferential Rational Basis Scrutiny

In July 2006, U.S. District Court Judge Ronald Leighton rejected Major Witt’s plea for injunctive relief and granted the Government’s motion to dismiss her case on summary judgment.[34] Judge Leighton’s opinion acknowledged that he was “not unsympathetic to the situation in which Major Witt . . . [found] herself” based on the fact that “her colleagues value[d] her contribution to their unit and apparently want[ed] her back.”[35] “[Major Witt] has served her country faithfully and with distinction,” he wrote, so “[i]t is tempting to accept [her] urging to apply DADT narrowly within the context of [her] individual circumstances.”[36] But “this,” he concluded, “the Court cannot do.”[37]

Judge Leighton held that “Rational Basis review” was the appropriate standard of scrutiny for laws impinging gay rights, and concluded that such deferential scrutiny did “not allow for the kind of balancing test between government interest and interest of the individual advocated by [Major Witt].”[38] That was particularly true, he said, because of a nebulous tradition of judicial deference to the political branches in making and enforcing personnel rules for the military. As he explained, “Court review of Congressional enactments is especially deferential in the military context. “It is difficult to conceive of an area of governmental activity in which the courts have less competence.”[39] “[E]very court,” the Judge noted, “has upheld the constitutionality of DADT under rational basis review,” and “[i]t is not for this Court, on rational basis review, to conduct a re-weighing of the evidence that was before the legislative decision-makers” who enacted that statute.[40]

Two months after Judge Leighton’s decision, in September 2006, an Air Force administrative discharge board determined that Major Witt had engaged in homosexual acts and had admitted to being homosexual in violation of DADT.[41] Acting on the board’s recommendation, in July 2007, the Secretary of the Air Force ordered her to be discharged from the military.[42] She received no pension or benefits to show for her 19 years in service. Because she was discharged for “homosexuality,” the military automatically reduced her severance pay by half.[43]

For discharged servicemembers like her, the stigma of involuntary discharge often became a life-long indignity. On separation documents commonly requested by civilian and government employers, the military clearly and permanently stamped reasons for separation like “Homosexual Act” or “Homosexual Statement,” with negative “re-entry codes” indicating that these veterans were people the military would not take back under any circumstances. Those codes often rendered them ineligible for employment opportunities with law enforcement agencies and government contractors.[44] Many of these men and women received less than honorable service characterizations too, which prevented them from accessing valuable benefits through the Department of Veterans Affairs, including funding for education and medical care, or the honor of burial in a veterans’ cemetery.[45]

 

C. The Witt Standard is Born at the Ninth Circuit

On appeal before the Ninth Circuit Court of Appeals in May 2008, Major Witt won a staggering and unprecedented victory. In Witt v. Dep’t of the Air Force, the Ninth Circuit ruled that the District Court had erred in granting the Government’s motion to dismiss Major Witt’s claim.[46] In so doing, the court articulated what has come to be called the “Witt Standard,” which required heightened scrutiny and fact-specific, individualized justification for each individual’s discharge under DADT. [47]

Applying heightened scrutiny in Witt, the Ninth Circuit invalidated the military’s blanket application of DADT by holding that the Fifth Amendment’s guarantee of substantive due process required consideration of each DADT discharge on its own facts.[48] The court shifted the burden to the military to prove that each specific servicemember’s discharge under DADT was “necessary” to maintain military cohesion, morale, and discipline within his or her specific unit,[49] and to prove that the military could not reasonably accomplish its goals by any “less intrusive means,”[50] like transferring outed servicemembers to another unit. While the Ninth Circuit’s decision did not overrule DADT outright, it made clear that the evidentiary burden had significantly shifted against the military in DADT cases; the military would now have to make individualized showings of necessity on record before it could lawfully discharge servicemembers for their sexual orientation within the Ninth Circuit’s jurisdiction.[51]

Witt also made clear that the Ninth Circuit would grant the military little traditional deference. Though the Ninth Circuit acknowledged courts’ traditional deference to Congress in matters concerning management of the military, it declared, “Notably, deference does not mean abdication . . . . Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs.”[52] That language was a far cry from district Judge Leighton’s more traditional, self-abasing posture in military personnel matters, where, as he wrote, courts have little “competence,” even in cases with a constitutional dimension.[53]

As Major Witt had urged, the Ninth Circuit Court rooted its heightened scrutiny Witt Standard in the U.S. Supreme Court’s decision five years earlier in Lawrence v. Texas,[54] in which the Supreme Court declared that due process, “as a general rule, should counsel against attempts by the State, or a court, to define the meaning of [an individual’s personal] relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects . . . . [Homosexuals’] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.[55] It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”[56] The Witt Court interpreted these words from Lawrence to require that the military prove each individual servicemember’s sexual orientation caused actual “injury” or “abuse” to the military, such that his or her involuntary discharge furthered, and was necessary to further, the military’s interests. Otherwise, the military would be imposing indiscriminate, severe burdens on homosexual servicemembers’ constitutionally protected “realm of liberty” and private lives.

The Witt Court also found the 2004 case of United States v. Marcum[57] particularly instructive.[58] In Marcum, the military’s highest court, the Court of Appeals for the Armed Forces, had carefully considered whether Lawrence’s constitutional protections applied in the military context. The court considered whether Lawrence protected a defendant from criminal prosecution under the Uniform Code of Military Justice (“UCMJ”) for homosexual acts with a subordinate. Though the court ultimately held against the defendant in that case on the grounds that the UCMJ prohibited sexual acts with a subordinate independent of sexual orientation, it explicitly rejected the argument that Lawrence’s due process protections did not apply in the military context.[59] The Marcum Court ruled that Lawrence’s constitutional protections had to be addressed in the context of each servicemember’s specific case[60] and then undertook a detailed, fact-specific analysis, which, the Ninth Circuit Court concluded in Witt, “necessarily required more than hypothetical justification for the [military’s homosexual conduct] policy” and “applied a heightened level of scrutiny.”[61]

Applying “heightened scrutiny” to DADT in light of these precedents, the Witt Court ultimately ruled:
We hold that when the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words . . . a less intrusive means must be unlikely to achieve substantially the government’s interest . . . .

In addition, we hold that this heightened scrutiny analysis is as-applied rather than facial . . . . Under this review, we must determine not whether DADT has some hypothetical, posthoc rationalization in general, but whether a justification exists for the application of the policy as applied to Major Witt.[62]

 

The Witt Court then firmly rejected the military’s generic, post-hoc justification for DADT discharges, writing:

 

The Air Force attempts to justify the [DADT] policy by relying on congressional findings regarding “unit cohesion” and the like, but that does not go to whether the application of DADT specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.[63]

 

Applying this individualized balancing test, as the Marcum Court had done, the Ninth Circuit then noted that “Major Witt was a model officer whose sexual activities hundreds of miles away from base did not affect her unit until the military initiated discharge proceedings under DADT and, even thenit was her suspension pursuant to DADT, not her homosexuality, that damaged unit cohesion.”[64]
D. A Different Tune from the District Court on Remand Suggests that the Military was Unlikely to Meet its Burden under Witt in Most Other DADT Discharge Cases

The Ninth Circuit remanded Major Witt’s case to Judge Leighton at the district court level to apply the Ninth Circuit’s new due process standard in her individual circumstances. But the Ninth Circuit’s own language in Witt left little room for him—or other district courts—to justify almost any servicemember’s discharge under DADT. At trial on remand, the Government called only one material witness to testify about the potential negative impacts that Major Witt’s homosexuality posed to the military’s interests. General Charles Stenner, head of the Air Force Reserves, testified that he had never met Major Witt and that he had never knowingly met any gay person in his life, but he “plead[ed] for uniformity and consistency in the administration of personnel policies” despite the Ninth Circuit’s clear requirement of a non-uniform, individualized analysis for such discharge cases.[65]

Judge Leighton ultimately concluded:

 

The facts deemed worthy of mention by the Court of Appeals are inconsistent with the more deferential analysis advocated by the government . . . . The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect. . . .

If DADT does not significantly further an important government interest . . . it cannot be necessary to further that interest . . . . Application of DADT therefore violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution. She should be reinstated at the earliest possible moment. [66][67]

 

Perhaps helpful to future practitioners, Judge Leighton also rejected the Government’s argument that an amalgamation of broader conjectural fears about “push back” from heterosexual servicemembers could justify the separation of a proven, qualified gay servicemember:

 

The possibility of such push back is off-set by the known negative impact of DADT upon the military: the loss of highly skilled and trained military personnel once they have been outed and the concomitant assault on unit morale and cohesion caused by their extraction from the military. In this regard, the Court notes the Army’s policy of deploying openly gay or lesbian personnel if the discharge process has not yet begun when the order to deploy issues. In this time of war, the Army, at least, has decided that allowing openly gay service is preferable to going to war without a member of a particular unit.[68]

 

In light of these precedents, military officials in the Ninth Circuit would have to prove that DADT discharges were necessitated by fact-based determinations about the actual impacts of an individual’s open service, without being able to lean on traditional judicial deference, Congressional findings, or conjectural “push back” fears. It seems clear that in the vast majority of such cases, the military could not meet its burden under Witt to prove the servicemember’s discharge actually furthered and was necessary to further the military’s interests.

 

III. Military Officials Publicly Acknowledged that Witt Placed Binding New Requirements on Military Commands in the Ninth Circuit to Conduct DADT Discharges “Through an Individualized Balancing Analysis”

 

After the Witt decision, the military’s highest officials publicly acknowledged that the individualized Witt Standard was binding on military commands in the Ninth Circuit. In the 2009 case of Log Cabin Republicans v. United States, the Department of Defense’s (“DOD”) attorneys defended DADT against attempts to invalidate the law entirely by arguing that Witt was the appropriate standard for the separation of gay servicemembers in the Ninth Circuit. The Government argued that Witt “made clear” that the legality of DADT discharges must be evaluated “through an ‘individualized balancing analysis’. . . tied ‘specifically’ to the circumstances of an individual.”[69] The Government’s brief addressing due process had three headings, all of which cited to Witt and to no other case.[70] In a related case that same year, the U.S. Solicitor General, representing Defense Secretary Gates, cited Witt as binding precedent too, arguing that a facial challenge to DADT was not ripe for Supreme Court review based on the fact that Witt had only set binding rules governing DADT’s “constitutional[ity] as applied.”[71] When it suited the military’s needs, apparently, the Government was all too happy to cite Witt as governing law permitting the separation of some gay servicemembers.

DOD’s courtroom attorneys were not the only military figures to publicly acknowledge Witt as binding Ninth Circuit law. The Defense Department’s General Counsel, Jeh Johnson, now serving as Homeland Security Secretary, testified before the House Armed Services Oversight and Investigations Subcommittee in May 2010:

 

The decision in Witt v. Department of the Air Force in the Ninth Circuit creates what we lawyers call a split in the circuits. The rule of law there is different than the rule of law in all the other circuits. We and the Department of Justice have been very actively working through how that split in the circuits should be applied and implemented throughout the force . . . . [W]e continue to work through how to address whatever pending cases exist within the Ninth Circuit versus the other circuits.[72]

The Chairman of that House Committee, Rep. Vic Snyder, also asked Secretary of the Air Force, Michael Donley: “Has your legal team kept you up to speed on the fact that there is now a split of authority between the circuit Court[s] of Appeal with regard to . . . the Witt case? Are you aware that we have different standards now [for DADT discharges] in the different circuits of the country?” Secretary Donley declared simply, “Yes.”[73]

Finally, in testimony before the Senate Armed Services Committee, Defense Secretary Robert Gates said plainly, “We have to devise new rules and procedures in light of the appeals court decision in Witt v. Department of the Air Force for the areas of the country covered by the [Ninth Circuit] appellate court.”[74]

By that point in time, the military had already failed to devise Witt-compliant rules and procedures for two years and it had already been citing Witt in federal courts as settled, binding law for much of that time. Despite the military’s public acknowledgements that it was bound to honor the Witt Standard, it did not even attempt to do so. The military never devised any new rules and never issued commanders any new guidance about Witt-compliant discharge procedures at any time. For large numbers of servicemembers discharged for their sexual orientation between May 2008 and July 2011, Witt might just as well never have existed.

 

IV. The DOD General Counsel Affirmed that the Military Took No Action to Comply with Witt Due to a Bizarre Balance of Powers Theory that the Military Needed to “Balance” the Ninth Circuit Court’s Ruling Against the DADT Law as Written

 

Clues about why the military failed to comply with Witt after acknowledging its duty to do so may be found in the muddled additional testimony provided by DOD’s General Counsel, Jeh Johnson, about the Witt case. In the same March 2010 hearing detailed above, Chairman Snyder pressed Mr. Johnson to clarify whether the military was planning to “send direction to commanders and legal authorities throughout [the Ninth Circuit] States that there is now a category of gay and lesbian servicemembers that . . . indeed can serve [openly].”[75] The alternative, the Chairman warned, would be to “take every [DADT] case to the courts and lose at the district court level who [would] cite the Ninth Circuit [Witt decision] over and over and over again.”[76]

Mr. Johnson’s response confirmed that the military favored a do-nothing approach grounded in a bizarre and false notion that the military had to engage in “a complex exercise” to determine when and whether to comply with federal court rulings.[77] Mr. Johnson responded:

 

The Witt case requires an intermediate level of constitutional scrutiny to the [DADT] policy. We have to balance that against applying the law as the Congress has given [it] to us. We say consistently within the Department of Defense that we apply the law, we faithfully implement the law in as fair and as balanced a way as possible. We have got to balance that against the rule of law that Witt has created for us in the Ninth Circuit. It is a complex exercise that we are working through right now. . . .[78]

 

In seeming disbelief, the Committee Chairman asked Mr. Johnson yet again to clarify whether “there [had] been no different directions given to base commanders, Judge Advocate General (JAG) officers, that in a certain number of cases meeting certain criteria, there is no reason to move ahead with those cases because they would be overturned in the Ninth Circuit.”[79] Mr. Johnson responded that the military had not given any such direction to comply with Witt.[80]

That testimony from the military’s chief lawyer encapsulated a tellingly bizarre and improper theory of judicial inferiority or insignificance in military affairs—a view that the military must balance binding court interpretations of the Constitution against the military’s own interpretation of what the law is and requires. Those are and must be false choices.[81] In a civilian democracy as ours, with equal and balanced separation of powers, the military should face no legal conflict when federal courts hold that acts of Congress, or their method of application, are unconstitutional.[82] In Witt, the Ninth Circuit was clear enough: “All of Congress’s laws must abide by the United States Constitution,” the court declared,[83] as “Congress, of course, is subject to the requirements of the Due Process Clause when legislating in the area of military affairs. . . .”[84] There should have been no dithering or balancing act and no “complex exercise” required to determine whether to comply with an Appeals Court’s unambiguous ruling on a constitutional question. The military was required to provide individualized, Witt-compliant justification for each DADT discharge within the Ninth Circuit after its May 2008 Witt ruling. The military acknowledged its duty to comply with that requirement. At the command-level, the military was also, as discussed below, in fact well practiced at making such individualized determinations of fitness for duty. Given a clear and feasible court standard, the military had no legitimate rationale for its damaging, years-long failure to comply.

 

V. Contrary to Its Public Rationale for Non-Compliance, the Military Could Reasonably Have Implemented Witt-Compliant Discharge Procedures With Minimal Confusion or Delay

 

As a Supreme Court nominee in June 2010, Elena Kagan testified before the Senate Judiciary Committee about her role as Solicitor General in declining to appeal Witt to the Supreme Court. Her testimony suggested that that the Government believed it could essentially wait out the courts, assured that the district court’s application of the Witt Standard to Major Witt on remand would prove unworkable and demonstrate that the Ninth Circuit’s requirements were radical and unreasonably disruptive in practice.[85] Over two years after the Ninth Circuit ruling, Ms. Kagan testified:

 

[W]hat the Ninth Circuit was demanding that the government do was, in the government’s view, and in particularly in DOD’s view, a kind of strange thing where the government would have to show, in each particular case, that a particular separation caused the military harm, rather than to view it in general across the statute.

And one reason we thought that the remand would actually strengthen the case in the Supreme Court was because the remand would enable us to show what this inquiry would look like, what . . . the inquiry that the Ninth Circuit demanded would look like, and to suggest to the Supreme Court, using the best evidence there was, how it was that this inquiry really would disrupt military operations.[86]

 

Essentially, Ms. Kagan suggested, the military delayed compliance with an unduly onerous Ninth Circuit ruling while it built the case against it. But the implication that Witt was a radically disruptive “strange thing” does not withstand scrutiny. First, Ms. Kagan implied another set of false choices to justify the military’s do-nothing approach. If the military feared the disruptive administrative burdens of individual DADT trials, it had all the more reason to issue Witt-compliant rules and guidance to commanders and military attorneys in the Ninth Circuit states while Witt remained good law in that Circuit. Ignoring the dictates of a federal appeals court is a very curious way to discourage disruptive litigation under that court’s precedents. As Chairman Snyder repeatedly warned in congressional hearings with DOD’s General Counsel, the military’s true choice was whether to issue Witt-compliant regulatory guidance or, in the alternative, to “take every [DADT] case to the courts and lose at the district court level who [would] cite the Ninth Circuit [Witt decision] over and over and over again.”[87]

Second, Ms. Kagan’s characterization of Witt’s individualized justification requirement as novel “strange thing” does not withstand scrutiny either. Though Witt created a significantly heightened due process standard for DADT discharges, its requirement of individual justification was hardly radical or burdensome. Military separation authorities were and are well practiced at making individualized determinations concerning servicemembers’ fitness for service.[88] Commanders regularly make contextual, nuanced decisions regarding whether a servicemember’s misconduct should result in his or her discharge from the military. With advice from Staff Judge Advocate (JAG) attorneys, these commanders are trusted to weigh the individual servicemember’s conduct and the actual impact on the military mission against his or her performance record and potential for rehabilitation to productive service.

In the pre-DADT era, the military’s anti-gay regulations had also expressly permitted commanders to make “exceptions” in individual cases when they determined that retention of specific openly gay servicemembers was in the military’s best interests.[89] The military retained numerous openly gay soldiers under this standard and explicitly determined that these members served honorably and productively without negative impact on their unit’s performance, morale, or discipline.[90] A “kind of strange thing,” Witt was not: commanders had previously been permitted to conduct the same sort of individualized balancing analysis in considering the same sort of “homosexuality discharges.”

In fact, the Witt Standard merely required commanders to make the same case-by-case determination in DADT discharges that the military already permitted them to make in discharging proven child molesters. Air Force Instruction 36-3208, for instance, afforded proven child molesters the opportunity to prove on a case-by-case basis that their presence in a specific unit was not disruptive, while irrationally denying homosexuals the same opportunity.[91] That regulation stated that Air Force commanders “may” discharge airmen who committed “indecent acts with or assault on a child,”[92] while mandating that commanders “shall” discharge those with a mere “propensity” to engage in constitutionally protected same-sex relations with a consenting adult.[93] It is difficult to conceive of a class of servicemembers whose presence is more likely to have a degrading effect upon military cohesion, morale, and discipline than proven child abusers. Yet their exclusion from military service was not mandatory, as it was for gays and lesbians. Somehow, commanders were able to make individualized determinations in those cases without disrupting military operations.

Major Witt’s trial brief at the district court on remand also pointed out that despite the military’s insistence that a non-uniform rule would disrupt military operations, “the Armed Forces no longer even ha[d] a ‘uniform’ rule about uniforms . . . . The Army recently decided to allow a devout Sikh doctor to wear a turban instead of the usual Army headgear . . . follow[ing] a longstanding practice of deciding such requests on a case-by case basis . . . . [T]he Army had weighed [the individual servicemember’s] request against factors such as ‘unit cohesion, morale, discipline, safety, and/or health.’”[94]

The military clearly appreciated the value of substantiating servicemembers’ quality, character, and discharges on an individualized basis and its commanders were evidently readily capable of making such case-by-case determinations. Witt required commanders to do so in DADT cases and to prove that no less burdensome alternative, short of discharge, could reasonably accomplish the military’s objectives. That was a high but familiar burden with clear requirements, which the military simply and unacceptably ignored. The fact that military leadership failed to devise a simple rule informing commanders of their obligation to substantiate the necessity of each DADT discharge on a case-by-case basis or to conduct the same “individualized balancing analysis” it already permitted in child molester discharge cases should not have absolved the military of its duty to honor the Constitution and comply with the Ninth Circuit’s ruling without delay.

This indicates that the Government chose not to comply with Witt for political reasons, not ones rationally related to national defense. In every federal case brought under the Witt Standard, the military proved unable to cite actual, individualized proof that gay servicemembers’ discharges were justified by military necessity.[95] The military was unable to present any such evidence in Major Witt’s case, instead calling in a solitary witness who had never met Major Witt or any other gay person to plead for uniformity in a case about individualized due process analysis.[96] When one of the plaintiff servicemembers in Almy invoked the Witt Standard prior to his discharge, his command specifically refused to provide individualized justification for his discharge.[97]

It appears then that the sole military operation truly disrupted by Witt-compliance would be the military’s bizarre, archaic, and corrosive process of discarding qualified servicemembers for their sexual orientation. Rather than face down the incoherence and baselessness of that policy as applied in the vast majority of individual cases, the military appears to have punted and dithered, ignoring Witt’s requirements for years while awaiting DADT’s ultimate legislative repeal.

Whatever the merits of that strategy, non-compliance inflicted legal injury on a large and foreseeable scale: at least hundreds of dedicated men and women in uniform fell through the gaps and lost their military careers without any actual or individualized justification and in violation of their due process rights protected by the U.S. Constitution. Those men and women must be informed and savvy about their legal injuries and rights to redress.

 

VI. A Post-Witt DADT Case Study[98]

 

In September 2009, just two years before DADT faded into the history books, Air Force officials pulled 20 year-old airman Jason Garcia from his security detail in Iraq, raided his bedroom and belongings, and interrogated him for hours. They transferred him thousands of miles to his stateside commanders in Washington State, who then abruptly ended his military career with a stigmatizing discharge based on a two-sentence Commander’s Report concluding that Mr. Garcia had “made a statement that he was homosexual in violation of [DADT’s implementing regulations].” After spending almost his entire adulthood on the front lines in Iraq, Mr. Garcia lost his career in a matter of days after posting a comment for homework credit in an online civilian psychology course about struggling with self-acceptance as a gay man. To substantiate his discharge for “homosexual conduct (statement),” his stateside command produced an Investigator’s Report with just two exhibits: 1) his psychology course posting and 2) a page torn from a confiscated high school diary in which he had, as a teen, privately written about a same-sex crush. Mr. Garcia was a well-liked, honorable airman committed to military and his mission. His discharge senselessly deprived his unit of a valued asset and a good man.

The military’s actions in his case were also blatantly unlawful. Mr. Garcia’s commanders in Washington State, within the Ninth Circuit, did not meet or even attempt to meet the constitutionally-required due process standard the Ninth Circuit had demanded in Witt a full 19 months prior. The military provided absolutely no individualized justification for his discharge and did not attempt in any way to link it to military necessity. His commanders concluded his online statement indicated a “propensity” to engage in homosexual conduct—namely a sexual orientation—and that was the end of their inquiry. Mr. Garcia’s cursory, abusive, and baseless discharge seems to be the exact sort of situation Witt was intended to prevent. But in his discharge action, the Witt Standard might as well have been non-existent although it was already nearly two years old.

Well over 1,000 men and women were, like Mr. Garcia, discharged under DADT on the sole basis of their sexual orientation between May 2008, the date of the Ninth Circuit’s Witt ruling, and July 2011, when DADT was finally enjoined by court order.[99] It is doubtful that many of those discharges could meet, or ever attempted to meet, the Ninth Circuit’s high burden of proof. Military commanders and attorneys, after all, received no guidance or instruction to comply with Witt in any form, as DOD’s General Counsel, Jeh Johnson, conceded to Congress.[100] And the military’s failure to provide any individualized basis for applying DADT to qualified servicemembers like Major Witt also suggested it simply could not do so for the vast majority of DADT discharges. As a result of the military’s non-compliance, commanders within Ninth Circuit states continued, as they had before, to justify involuntary terminations of these dedicated servicemembers based entirely on evidence—like Mr. Garcia’s high school diary entry—that they were gay. Mr. Garcia’s statements about his sexual orientation in an online civilian psychology class did not, and could not, so threaten morale, discipline, or cohesion in his unit that his separation from duty was necessary and the least intrusive means of accomplishing the military mission. In fact, because no one in Mr. Garcia’s unit was aware of his online statement until his sudden separation from duty, it highly doubtful that the military could have cogently argued that his sexual orientation caused negative impacts in his individual circumstances. As in Major Witt’s case, it was his separation from duty and sudden involuntary departure from his unit in Iraq that truly threatened the morale, discipline, cohesion, and safety of his fellow servicemembers, and not his sexual orientation.

Federal courts treat a military discharge as wrongful and “void,” even if the military “could have validly discharged [the servicemember] at the time it did so invalidly.”[101] Therefore, where military separation authorities within the Ninth Circuit’s jurisdiction failed to provide Witt-compliant due process after May 2008, discharged servicemembers like Mr. Garcia should have a strong case for wrongful termination from military service.

Judicial relief for military servicemembers who have been wrongfully discharged is premised on the central principle of making the injured servicemembers “whole.”[102] A court’s remedy aims to return these servicemembers to the position they would have occupied “but for” their illegal or invalid release from duty.[103] To make these discharged men and women even partially “whole” again, they must be reinstated on active duty or else receive recovery of the active duty pay and allowances they lost through the time their term of enlistment ordinarily would have expired, but for the military’s unlawful actions.[104]

In two cases brought within the Ninth Circuit based on the military’s failure to comply with Witt—Fehrenbach v. Department of the Air Force[105] in 2010 and Almy v. U.S. Department of Defense[106] in 2013—the military settled out of court by granting reinstatement, retirement, or lost pay and allowances with interest to four gay servicemembers discharged after Witt without Witt-compliant due process.[107] Though those full settlements represent huge victories for those individuals, those cases’ out of court settlements prevented federal courts from weighing in, applying Witt, and building a clear precedential consensus that servicemembers discharged without Witt-compliant due process should receive redress. As a result, there is to date no published precedent from any federal court or from the services’ respective (and powerful) boards for correction of military records ruling one way or another on a discharged servicemember’s claim for redress under Witt. That must change.

 

VII.      Conclusion

 

Because essentially no legal scholarship has been published concerning the military’s failure to comply with Witt, very few servicemembers are likely to know that they should have received significantly heightened due process during their discharges. If they sought legal counsel, particularly from military JAG attorneys, it is doubtful that they would have been accurately informed and equipped to invoke their constitutional rights under Witt. When a plaintiff in the Almy case attempted to do so prior to his discharge, his command explicitly declined to provide Witt-compliant justification.[108] Therefore, veterans and gay rights advocates must be savvy about the post-Witt legal landscape and help identify discharged servicemembers who were unknowingly wronged by the military’s non-compliance. The military made a choice to ignore a federal court’s constitutional due process standard and it must be held accountable for the legal injuries resulting from that choice.

To prevent the military from clogging federal courts with hundreds of duplicative cases re-litigating its failure to comply with Witt, Congress should also step in to take appropriate legislative action to compensate those discharged under DADT in violation of Witt after May 2008. A case-by-case review of these discharges would also be appropriate and hardly unprecedented. Section 530B of H.R. 1960, The 2014 National Defense Authorization Act similarly required the DOD Inspector General to “review the cases of all members who, since January 1, 2002, were separated after making an unrestricted report of sexual assault,” to ensure those servicemembers’ due process rights were validly protected throughout the discharge process. A similar review of post-Witt DADT discharges would be administratively feasible and much less timely and costly than duplicative litigation in federal court. At the very least, DOD should instruct the respective services’ boards for correction of military records to normally grant claims for lost pay and allowances where the record indicates the servicemember was discharged under DADT after May 2008 without any aggravating factors supporting his or her discharge. DOD guidance memoranda have, since September 2011, instructed these powerful intra-military administrative boards to “normally” grant requests from those discharged under DADT to upgrade their service characterization to fully Honorable, absent these aggravating circumstances.[109] Extension of that guidance to remedy the military’s non-compliance with Witt should be administratively uncomplicated and equitable and cannot come too soon.

[1] The author is a pro bono veterans’ attorney and Post-Doctoral Fellow at the Military Law Institute in Orange, California, where he represented an Air Force veteran in alleging his discharge from service under Don’t Ask, Don’t Tell unlawfully failed to comply with the Witt Standard discussed throughout this article. Mr. Freilich is a graduate of Stanford Law School.

[2] 527 F.3d 806 (9th Cir. 2008).

[3] Id. at 819; see also Witt v. U. S. Dep’t of Air Force, 444 F. Supp. 2d 1138, 1145 (W.D. Wash. 2006) aff’d in part, rev’d in part sub nom. Witt v. Dep’t of Air Force, 527 F.3d 806 (9th Cir. 2008) (observing that “every court, before and after Lawrence [v. Texas] ha[d] upheld the constitutionality of DADT under rational basis review.”).

[4] The United States Court of Appeals for the Ninth Circuit is the highest federal court, except for the U.S. Supreme Court, with appellate jurisdiction in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

[5] Witt, 444 F. Supp. 2d at 1145.

[6] See, e.g., Richenberg v. Perry, 97 F.3d 256, 262 (8th Cir. 1996) (upholding the discharge of outed military officer under DADT for failing to rebut legal presumption that he had “propensity” to engage in homosexual conduct, despite his promise to abstain from homosexual conduct, because under cross-examination he admitted to being physically attracted to the same sex).

[7] See Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 922 (C.D. Cal. 2010); Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16134 (9th Cir. Jul. 6, 2011); Log Cabin Republicans v. United States, 2011 U.S. App. LEXIS 16310 at *5 (9th Cir. Jul. 22, 2011) (“The district court’s judgment shall continue in effect insofar as it enjoins the government from investigating, penalizing, or discharging anyone from the military pursuant to the Don’t Ask, Don’t Tell policy.”); see also Andrew Tilghman, Pentagon Suspends DADT in Wake of Court Ruling, Army Times (Jul. 8, 2011), http://www.armytimes.com/article/20110708/NEWS/107080319/Pentagon-suspends-DADT-in-wake-of-court-ruling, archived at http://perma.cc/F6DV-5LLJ.

[8] Witt, 527 F.3d at 819.

[9] Id. (“In other words . . . a less intrusive means must be unlikely to achieve substantially the government’s interest.”); see also Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964) (“Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.”).

[10] Defendants’ Supplemental Brief Addressing Substantive Due Process at 6, Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2009) (hereinafter Log Cabin Substantive Due Process Brief) (No. CV04-8425) (internal citation omitted).

[11] Walter Frank, Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy 131 (2014).

[12] More than 1,000 servicemembers were separated under DADT in 2008 and 2009. See The Williams Institute, Discharges Under the Don’t Ask, Don’t Tell Policy 1, 5 (2010), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Gates-Discharges2009-Military-Sept-2010.pdf, archived at http://perma.cc/H568-K9SS. Hundreds more were separated in 2010. See Andrea Stone, Pentagon Discharged Hundreds of Service Members Under ‘Don’t Ask, Don’t Tell’ in Fiscal 2010: Report, Huffington Post (May 25, 2011), http://www.huffingtonpost.com/2011/03/24/dont-ask-dont-tell-2010-discharges_n_840136.html, archived at http://perma.cc/H568-K9SS. Though the military has not reported any breakdown of its discharge numbers by installation or geographic area, a presumably large portion of these servicemembers could establish proper venue in judicial districts within the Ninth Circuit to avail themselves of the Ninth Circuit standard. In the case of Almy v. U.S. Department of Defense, (N.D. Cal. 2013) (No: 10-5627) (RS), the named plaintiff received a substantial monetary settlement with the Air Force on his claim for unlawful discharge under Witt, even though he was a resident of Washington, D.C. and had no evident ties to the Ninth Circuit states.

[13] See Fehrenbach v. Air Force, Case No. 10-00402 (D. Idaho 2010); Almy v. U.S. Dep’t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).

[14] See Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach, OutServe-SLDN (Aug. 16, 2010), http://www.sldn.org/news/archives/breaking-update-u.s.-dept.-of-justice-u.s.-air-force-reach-federal-cou/, archived at http://perma.cc/A8UJ-M32K [hereinafter Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach]; OutServe-SLDN Announces Settlement for Almy, Outserve-SLDN (Mar. 15, 2013), at [Yana – there’s inconsistency when including the hyperlink] http://www.sldn.org/news/archives/outserve-sldn-announces-settlement-for-almy/, archived at http://perma.cc/7AUM-R3VS.

[15] Under 10 U.S.C. § 1552(b) (2012), claims challenging the propriety or equity of a servicemember’s discharge before intra-military administrative correction boards must be brought within three years after the servicemember “discovers the error or injustice.” That statute of limitations may be waived at the administrative board’s discretion if it would be “in the interest of justice” to do so. Cases seeking federal court review of these administrative boards’ final decisions are also subject to a six-year statute of limitations. 28 U.S.C. § 2401(a); Lebrun v. England, 212 F. Supp. 2d 5, 16 (D.D.C 2002) (the right to obtain judicial review of a Board of Corrections’ decision under the Administrative Procedures Act accrues at the time of the final agency decision rather than at the time when the underlying discharge occurred). If the servicemember wishes to bring suit under the Military Pay Act and seeks monetary damages in excess of $10,000, the “Big Tucker Act” applies and exclusive jurisdiction lies, with limited exceptions, with the U.S. Court of Federal Claims. See 28 U.S.C. § 1491(a)(1). In these cases, the Court of Federal Claims tolls the six-year statute of limitation from the date of the applicant’s discharge or separation. 28 U.S.C. § 250. See also Raymond J. Toney, Military Record Correction Boards and Their Judicial Review (2010), http://www.texasbar.com/flashdrive/materials/military_law/militarylaw_toney_militaryrecord_finalarticle.pdf, archived at http://perma.cc/438J-JV3E.

[16] Witt v. Dep’t of Air Force, 527 F.3d 806, 809–10 (9th Cir. 2008)

[17] Id. at 809.

[18] Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Preliminary Injunction Motion at 4, Witt v. U.S. Dep’t of Air Force, 444 F. Supp. 2d at 1138 (W.D. Wash. 2006) (No. C06-5195 RBL) [hereinafter Plaintiff’s Memorandum].

[19] Id.

[20] ACLU Wins Reinstatement for Lesbian Air Force Major Discharged Under “Don’t Ask, Don’t Tell,” ACLU (Sept. 24, 2010), https://www.aclu.org/lgbt-rights/aclu-wins-reinstatement-lesbian-air-force-major-discharged-under-dont-ask-dont-tell, archived at http://perma.cc/57RC-XKQ8.

[21] Plaintiff’s Memorandum supra note 19, at 4.

[22] Id. at 4–5.

[23] Id. at 6.

[24] Witt v. U.S. Dep’t of Air Force, 444 F. Supp. 2d 1138, 1141 (W.D. Wash. 2006).

[25] Witt, 527 F.3d at 810.

[26] Id.

[27] DOD Dir. 1332.14, Encl. 2, Definition G, Encl. 3 (1993) (repealed 2010).

[28] DOD Dir. 1304.26 Encl. C (1993) (repealed 2010).

[29] Witt, 527 F.3d at 810.

[30] Witt, 444 F. Supp. 2d at 1145.

[31] Id. at 1143 (quoting United States v. Marcum, 60 M.J. 198, 204 (C.A.A.F. 2004)).

[32] 539 U.S. 558, 578 (2003).

[33] U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property, without due process of law[.]”). Substantive due process protects those rights so fundamental as to be “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324–25 (1937). In Roberts v. U.S. Jaycees, 468 U.S. 609, 618-19 (1984), the Supreme Court wrote that under its substantive due process jurisprudence, “certain kinds of highly personal relationships” are entitled to “a substantial measure of sanctuary from unjustified interference by the State,” and that such constitutional protection “safeguards the ability independently to define one’s own identity that is central to any concept of liberty.” Three years later, the Court unambiguously stated that the “freedom to enter into and carry on certain intimate or private relationships [is] a fundamental element of liberty protected by the Bill of Rights.” Bd. of Dirs. v. Rotary Club, 481 U.S. 537, 545 (1987) (emphasis added). In Lawrence v. Texas in 2003, the Supreme Court held that “[Homosexuals’] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 539 U.S. 558, 578 (2003). It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Id.

[34] Witt, 444 F. Supp. 2d at 1138.

[35] Id. at 1144.

[36] Id.

[37] Id.

[38] Id. at 1145.

[39] Id. (citation omitted) (quoting Goldman v. Weinberger, 475 U.S. 503, 508 (1986) and Gilligan v. Morgan, 413 U.S. 1, 10 (1973)).

[40] Id.

[41] Witt, 527 F.3d at 810.

[42] Id.

[43] See DOD Instr. 1332.39 § 4.3.2 (Aug. 2010). In 2013, as full settlement in a class action suit brought by the ACLU, servicemembers discharged under DADT on or after November 10, 2004 were finally awarded their full severance pay from the military. See Settlement Agreement at 5, Collins v. United States, Case No. 10-778C (Fed. CL. Jan, 7, 2013); Deal Restores Severance Pay for U.S. Military Gays, USA Today, Jan. 7, 2013, archived at http://perma.cc/T2N3-RM5Q.

[44] ABA Comm’n on Sexual Orientation and Gender Identity, LGBT Serv. Members and the Armed Forces: One Year After ‘Don’t Ask, Don’t Tell’ 6 (2012), archived at http://perma.cc/L2DM-5ATR.

[45] Id.

[46] Witt, 527 F.3d at 821–22 (“Taking direction from what the Supreme Court decided in Lawrence and Sell, we hold that DADT, after Lawrence, must satisfy an intermediate level of scrutiny under substantive due process. In light of the foregoing, we VACATE and REMAND the district court’s judgment with regard to Major Witt’s substantive due process claim and procedural due process claim[.]”)

[47] Id. at 819.

[48] Id.

[49] Id.

[50] Id. at 821; see also Witt v. Dep’t of the Air Force, 548 F.3d 1264, 1267 (9th Cir. 2008) (O’Scannlain, J., dissenting from denial of rehearing en banc) (“The Witt opinion leaves no doubt about how fact-specific this inquiry is to be. The panel ordered the trial court on remand to determine ‘whether the application of [‘Don’t Ask, Don’t Tell’] specifically to Major Witt significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.’” (citing Witt, 527 F.3d at 821); Witt, 739 F. Supp. 2d at 1315 (“The facts deemed worthy of mention by the Court of Appeals are inconsistent with the more deferential analysis advocated by the government. Rather, a complete review of the history of Major Witt’s service, including her conduct as an officer, as well as her sexual orientation, must be evaluated within the context of the squadron in which she served, its mission, its personnel and its culture.”); Defendants’ Supplemental Brief Addressing Substantive Due Process at 6, Log Cabin Republicans v. United States, 716 F. Supp. 2d 884 (C.D. Cal. 2009) (No. CV04-8425) (“The Ninth Circuit [in Witt] made clear” that challenges to the DADT statute must be as-applied and conducted through an “individualized balancing analysis . . . tied specifically to the circumstances of an individual.”) (quoting Witt, 527 F.3d at 821)).

[51] See Press Release, ACLU, supra note 21.

[52] Witt, 527 F.3d at 821 (citation omitted).

[53] See Witt, 444 F. Supp. 2d at 1145 (“Court review of Congressional enactments is especially deferential in the military context. It is difficult to conceive of an area of governmental activity in which the courts have less competence.”).

[54] 539 U.S. 558 (2003).

[55] Witt, 527 F.3d at 814 (quoting Lawrence, 539 U.S. at 567) (emphasis added).

[56] Id. (quoting Lawrence, 539 U.S. at 567) (internal citation omitted).

[57] 60 M.J. 198 (C.A.A.F. 2004).

[58] See Witt, 527 F.3d at 816.

[59] Id. at 205–06 (“The Supreme Court and this Court have long recognized that men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter military service. Our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes. As a result, this Court has consistently applied the Bill of Rights to members of the Armed Forces, except in cases where the express terms of the Constitution make such application inapposite . . . . Constitutional rights identified by the Supreme Court generally apply to members of the military unless by text or scope they are plainly inapplicable. Therefore, we consider the application of Lawrence to Appellant’s conduct.   However, we conclude that its application must be addressed in context.” (internal citations omitted)).

[60] Id. at 206.

[61] 527 F.3d at 816.

[62] Id. at 819 (emphasis added) (internal citations omitted) (quoting Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964) (“Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental liberties when the end can be more narrowly achieved.”))

[63] Id. at 821 (emphasis added).

[64] Id. at 821 n.11.

[65] Witt, 739 F. Supp. 2d at 1314 (denial of rehearing en banc).

[66] Witt, 739 F. Supp. 2d at 1315–16.

[68] Id. (internal citations omitted).

[69] Log Cabin Substantive Due Process Brief, supra note 11, at 6 (quoting Witt, 527 F.3d at 820); see also Letter from Eric Holder Att’y Gen. to Irving Nathan, House Gen. Counsel (Apr. 24, 2009) (on file with author) (declining to petition for certiorari in Witt).

[70] See id. at 5, 7–8 (“I. Witt Prohibits Facial Substantive Due Process Challenges to DADT”; “II. The Witt Analysis Makes Associational Standing Unavailable”; “III. [Plaintiff’s] Facial Challenge Would Fail In Any Event After Witt”).

[71] Brief for the Federal Respondents in Opposition to Petition for a Writ of Certiorari at 9, Pietrangelo v. Gates, 556 U.S. 1289 (2009) (No. 08-824).

[72] Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don’t Ask, Don’t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), archived at http://perma.cc/4L5Q-QNPT.

[73] Budget Request from the Dept. of the Air Force, National Defense Authorization Act for Fiscal Year 2011 and Oversight of Previously Authorized Programs: Hearing Before the H. Comm. on Armed Services, 111th Cong. 123 (2010) (testimony of Michael Donley, Sec’y. of the Air Force).

[74] Dept. of Defense Authorization for Appropriations for Fiscal Year 2011: Hearing Before the S. Comm. on Armed Services, 111th Cong. 701, Pt. 1 (2010) (testimony of Robert Gates, Sec’y. of Defense), archived at http://perma.cc/Q3SC-U6BZ.

[75] Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don’t Ask, Don’t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), archived at http://perma.cc/4L5Q-QNPT.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] See id.

[81] See Diane Mazur, Palm Ctr., The Department of Defense’s Obligation to Comply with the Constitutional Ruling in Witt v. Department of the Air Force, 6 (2010), archived at http://perma.cc/W349-326Y.

[82] Id.

[83] Id. (quoting Witt, 527 F.3d at 821).

[84] Id. (quoting Weiss v. United States, 510 U.S. 163, 176 (1994)).

[85] Senate Committee on the Judiciary Holds a Hearing on the Elena Kagan Nomination, 111th Cong. 130 (2010) (testimony of Elena Kagan, Solic. Gen.), available at http://www.washingtonpost.com/wp-srv/politics/documents/KAGANHEARINGSDAY3.pdf, archived at http://perma.cc/L7PT-2SLJ.

[86] Id.

[87] Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don’t Ask, Don’t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), available at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg57127/pdf/CHRG-111hhrg57127.pdf., archived at http://perma.cc/4L5Q-QNPT.

[88] See, e.g., UCMJ, Art. 134 (1951) (The provision of the Uniform Code of Military Justice prohibiting conduct “to the prejudice of good order and discipline,” Article 134, requires individualized proof that a servicemember’s conduct actually prejudiced good order and discipline.).

[89] See Diane Mazur, supra note 82 at 7, (citing Watkins v. United States Army, 875 F.2d 699, 702 (9th Cir. 1989) (en banc)).

[90] Id.

[91] Air Force, Office of Secretary, API 36-208, Administrative Separation of Airmen (2014).

[92] Id.

[93] Id.

[94] Plaintiff’s Trial Memorandum at 8, Witt v. United States Dep’t of the Air Force, 739 F. Supp. 2d 1308 (W.D. Wash. 2010) (internal citations omitted).

[95] See Witt, 739 F. Supp. 2d at 1314 (denial of rehearing en banc); Fehrenbach v. Dep’t of Air Force, Case No: CIV 10-402-S-EJL (D. Idaho 2010); Almy v. U.S. Dep’t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).

[96] Witt, 739 F. Supp. 2d at 1314 (denial of rehearing en banc).

[97] Plaintiff’s Motion for Partial Summary Judgment at 8, 16, Almy v. U.S. Dep’t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).

[98] Mr. Garcia’s name has been changed for the purposes of this article. All other facts and details in his case are cited from affidavits submitted on his behalf to the Air Force Board for Correction of Military Records. The author represented Mr. Garcia to challenge the circumstances of his discharge as a pro bono attorney with the Military Law Institute in Orange, California.

[99] See The Williams Institute supra note 13.

[100] Review of the DOD Process for Assessing the Requirements to Implement Repeal of Don’t Ask, Don’t Tell: Hearing Before the Subcomm. on Military Personnel of the H. Comm. on Armed Services, 111th Cong. 130 (2010) (testimony of Jeh Johnson, DOD Gen. Counsel), available at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg57127/pdf/CHRG-111hhrg57127.pdf, archived at http://perma.cc/4L5Q-QNPT.

[101] Clackum v. United States, 148 Ct. Cl. 404, 410 (1960). See also Sofranoff v. United States, 165 Ct. Cl. 470, 478 (1964).

[102] Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 1980).

[103] Id.

[104] Clackum v. United States, 161 Ct. Cl. 34, 35 (1963) (“Where a service person serving a fixed term of enlistment is wrongfully discharged, recovery is for the active duty pay and allowances lost up to the time the term of enlistment would have expired even though the active duty call-up might have expired earlier. The allowances include allowances for clothing, quarters, rations, mustering-out pay, travel, and amounts attributable to leave; see also Smith v. United States, 155 Ct. Cl. 682, 691 (1961); Murray v. United States, 154 Ct. Cl. 185, 186 (1961) (“[A wrongfully discharged servicemember] is also entitled to recover all of his enlistment bonus including the allegedly unearned portion thereof.”).

[105] Fehrenbach v. Dep’t of Air Force, Case No: CIV 10-402-S-EJL (D. Idaho 2010).

[106] Almy v. U.S. Dep’t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).

[107] See Breaking Update: U.S. Dept. of Justice, Air Force Reach Agreement with Lt. Col Fehrenbach, supra note 15, and OutServe-SLDN Announces Settlement for Almy, Outserve-SLDN (Mar. 15, 2013), available at http://www.sldn.org/news/archives/outserve-sldn-announces-settlement-for-almy/, archived at http://perma.cc/7AUM-R3VS.

[108] Plaintiff’s Motion for Partial Summary Judgment at 8, 16, Almy v. U.S. Dep’t of Defense, Case No: cv 10-5627 (RS) (N.D. Cal. 2013).

[109] Memorandum from Clifford L. Stanley, Under Sec’y of Def., to Sec’ys of the Military Dep’ts, on Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code (Sept. 20, 2011), http://sldn.3cdn.net/8b5bfaa11d5854c9e5_k2m6b382s.pdf, available at http://perma.cc/MP8D-B8HX. (directing Service Discharge Review Boards to “normally grant requests to re-characterize [an applicant’s] discharge to honorable when,” as in this case, “the following conditions are met: (1) The original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT; and (2) There were no aggravating factors in the record, such as misconduct.”).

Ultraschallgrät

The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand A More Concrete Legal Analysis By Courts

The Court Treads Lightly: Why Mandatory Pre-Abortion Ultrasound Laws Demand a More Concrete Legal Analysis by Courts

Rebecca Bucchieri 

George Mason University School of Law, J.D. Candidate, May 2015; American University, B.A. Law and Society, Magna Cum Laude, 2012. I would like to thank my family and friends for their invaluable feedback and loving support. 

Please click here for a PDF version of the article.

Introduction

The doctor tells Ms. Jones, “Here I see a well-developed diaphragm and here I see four healthy chambers of the heart.”[1] Words that should sound uplifting instead feel like punishment. The doctor continues to describe the size and shape of the fetus as he shows Ms. Jones the image on the ultrasound machine. Ms. Jones is not at a prenatal care appointment. She is at an abortion clinic undergoing a mandatory pre-abortion ultrasound. Ms. Jones is not listening to each of the doctor’s words in joyful anticipation of the next. She is clenching her eyes shut and wishing she could shut off the machine resonating the fetus’s heartbeat.

Ms. Jones waits for it to stop, “as one waits for the car to stop rolling at the end of a terrible accident.”[2] But even when the ultrasound ends, Ms. Jones knows she will have to wait twenty-four more hours to obtain the State’s statutory stamp of approval to responsibly proceed with her abortion. Ms. Jones is thirty, married, and has a two-year old child. Most importantly, she has already reached an informed decision about her own body. However, the required pre-abortion ultrasound law implies that the State still doubts Ms. Jones’s ability to choose what is best for herself and her future. Ms. Jones wants to keep the fetus with all her heart, but she has decided to abort to save him from the irreversible and painful birth defects revealed through an earlier ultrasound—an ultrasound that, unlike this one, was performed with her consent.

The Supreme Court intended to guarantee abortion care for all women, in all circumstances, without exception.[3] In considering whether mandatory pre-abortion ultrasound laws are constitutional, the standard applied must protect each woman equally, regardless of her justification for terminating the pregnancy.[4] Although the Supreme Court affirmatively held in Roe v. Wade that women have a fundamental right to access abortions,[5] the Court in Planned Parenthood v. Casey[6]blurred the boundary of how far states may restrict that right.[7] Under Casey,a state may regulate abortion until an “undue burden” is placed upon the woman’s access to the procedure.[8] The court will find an undue burden when “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”[9] Laws requiring women to undergo invasive ultrasounds prior to their abortion reveal how states have stretched the undue burden standard past its constitutional limits.[10] Broad interpretation of the undue burden standard allows state lawmakers to condition abortion access on agreeing to receive medically unnecessary and expensive procedures. The effect of these laws in placing a substantial obstacle in the woman’s path is purposeful rather than incidental.[11] The drafters of these laws believe that requiring a woman to see and hear the fetus will convince her to discontinue abortion care.[12]

Arguments in the mandatory ultrasound debate range from positions deeply entrenched in the Constitution[13] to those animated by ideology.[14] These arguments have engendered a largely distorted public and legal discourse concerning the intersection of these laws with the Constitution.[15] In the short time since its legalization, abortion law has been subject to scrupulous and repeated revision.[16] These revisions left exposed various legal questions concerning the extent to which states may regulate abortion before such regulations constitute encroachments upon a woman’s right to terminate her pregnancy.[17] One such legal question that recently split circuit courts is the lack of constitutional clarity surrounding mandatory pre-abortion ultrasounds with speech and display requirements.[18] Although the movement to propose mandatory ultrasound laws emerged concurrently with the Casey decision in the 1990s, such laws gained broad legislative traction only recently.[19] In fact, lawmakers passed more abortion restrictions in the period spanning 2011-2013 than in the entire previous decade.[20] This onslaught of abortion restrictions can largely be attributed to the anti-choice movement’s strategic drafting of laws that cloak abortion legislation under the pretense of promoting women’s health and safety.[21] Twenty-three states now have active abortion laws with ultrasound mandates and several states have legislation pending approval.[22]

State lawmakers used the same deceptive strategy to successfully pass a mandatory pre-abortion ultrasound law in Oklahoma. However, the Oklahoma Supreme Court in Nova Health Systems v. Pruitt identified the true intentions behind the law, striking it down as facially unconstitutional.[23] Adhering to Oklahoma precedent, the Pruitt court interpreted an undue burden to unequivocally include the unnecessary medical treatment of mandatory pre-abortion ultrasounds.[24] Although the court faithfully applied Casey’s undue burden standard, the brevity of the opinion left many questions unanswered—questions that remain unresolved, as the Supreme Court of the United States denied certiorari to review the judgment in Pruitt.[25]

This Note argues that, although the court decided Pruitt correctly, the court neglected to analyze and expound the legal parameters of Casey as applied to mandatory pre-abortion ultrasounds. Consequently, the court missed an important opportunity to distill the current discourse on this controversial area of law and to influence other courts across the nation.[26] To clarify the limits of abortion jurisprudence, litigation that challenges mandatory pre-abortion ultrasounds must offer more than a mere cursory analysis of the issues. Rather, courts must consider the constitutional issues raised by these restrictive laws, both to provide more robust analysis for lawmakers to use moving forward, as well as to ensure that the Supreme Court has sufficient material to analyze circuit splits and grant certiorari in the future. This shift to conducting more in-depth review will compel the Supreme Court to finally revisit abortion law and more accurately define the parameters of the undue burden standard in relation to mandatory pre-abortion ultrasounds—a legal review that has become increasingly urgent as these laws further encroach upon women’s reproductive rights.

I.         Background

This Note highlights the most relevant court decisions upon which the Pruitt court relied in reaching its final judgment. Section A will analyze the development of the undue burden standard in Casey. Section B will examine House Bill 2780, the Oklahoma mandatory pre-abortion ultrasound law, in light of the precedent upon which the court relied.

A.        Legal Framework for Analysis of Abortion Laws

In Pruitt, the Oklahoma Supreme Court narrowly applied Casey’s undue burden standard by invokingstate precedent that dealt with similarly restrictive abortion measures.[27] The court’s decision relied almost entirely on its analysis of Casey in the Oklahoma Supreme Court decision of In re Initiative Petition No. 349, State Question No. 642, a case that examined the legality of a restrictive abortion ballot initiative.[28]

  1. Federal Precedent: The Undue Burden Standard

Twenty years after the landmark abortion decision, the Court in Casey diverged from Roe to create the foundation of abortion law today.[29] Although the Court upheld Roe’s core premise that women have a constitutionally protected right to an abortion under the Due Process clause, the Court significantly weakened the legal protections afforded to this right in two ways.[30]

First, the Casey Court discarded Roe’s trimester framework[31] and instead held that the state has a legitimate interest in the fetus throughout the entirety of the pregnancy.[32] Second, in its most significant disparaging of the Roe decision, the Casey Court held that the appropriate standard for assessing the state’s legitimate interest in regulating abortion before viability is the more ambiguous undue burden standard.[33] Taken together, the Casey Court allowed lawmakers to place earlier and more restrictive limitations on when women may have abortions.[34]

The Casey Court did provide some clarification about the application of this new undue burden standard.[35] It explained that unduly burdensome regulations are unconstitutional because, “the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”[36] In other words, any law enacted with the intent to advance the state’s interest in the fetus, while also inflicting an undue burden on the woman’s choice to abort prior to viability, is unconstitutional.[37]

The Casey Court spoke broadly about abortion for much of the opinion, but briefly did consider how the new undue burden standard should be applied to distinct situations of state regulation.[38] For instance, the court held that spousal notification laws are unconstitutional because, “[t]he effect of state regulation on women’s protected liberty is doubly deserving of scrutiny,” especially when “the State has touched not only upon the private sphere of the family, but upon the very bodily integrity of the pregnant woman.” [39] By striking down spousal notification laws as unduly burdensome, the Court fortified an important protection supported by Roe,[40] that an encroachment upon the bodily integrity of a woman obtaining an abortion constitutes an undue burden.[41]

  1. State Precedent: The Oklahoma Personhood Ballot Initiatives

In 2012, the Center for Reproductive Rights, one of the groups involved in filing the lawsuit in Pruitt,[42] filed jointly with the American Civil Liberties Union to challenge a ballot initiative that aimed to amend the Oklahoma constitution.[43] The Oklahoma Personhood Ballot Initiative sought to define a fertilized egg at any point in the pregnancy as a “person” afforded full constitutional protections.[44] If passed, the initiative would have effectively banned all abortions, fertility treatments, and most forms of contraception.[45] The Center for Reproductive Rights argued that the initiative would violate the Constitution, specifically the Fourteenth Amendment, by usurping women’s constitutionally protected right to reproductive freedom under Casey.[46] Before the ballot initiative reached the polls, the Oklahoma Supreme Court struck it down as “clearly unconstitutional” and “void on its face” in light of the court’s invalidation of an earlier analogous petition filed in 1992.[47]

The 1992 Oklahoma Supreme Court struck down this analogous petition in Initiative Petition No. 349 by reasoning that the petition was unconstitutional as it attempted to ban and criminalize abortions altogether except when the woman fell within four narrow exceptions.[48] The 1992 court declared that it would “uphold the law of the land whatever it may be.”[49] The “law of the land” in 1992, as it still is now, was Casey.[50] Following that precedent, the1992 court argued that, “[b]ecause viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,” the 1992 abortion restriction initiative must be invalidated as unconstitutional.[51]

By citing the 1992 decision as binding precedent, the 2012 court invoked this earlier court’s constitutional analysis and treated it as binding authority in deciding to strike down the Oklahoma Personhood Ballot Initiative.[52] The two ballot initiatives, although twenty years apart, demonstrate the Oklahoma Supreme Court’s consistent interpretation of Casey­.[53]

B.     Statement Of The Case: Nova Health Systems v. Pruitt

Later that same year the court also struck down Oklahoma’s mandatory pre-abortion ultrasound law, affirming the district court’s ruling that it is facially unconstitutional under Casey.[54] The court’s 2012 decision in Nova Health Systems v. Pruitt generated a circuit split on the constitutional question of mandatory pre-abortion ultrasound laws.[55]

  1. The Mandatory Pre-Abortion Ultrasound Law of Oklahoma House Bill 2780

Legislators introduced House Bill 2780 “[i]n order for the woman to make an informed decision” about whether to continue with her abortion.[56] To proceed with an abortion under this bill, the woman must undergo either a trans-vaginal or abdominal ultrasound, whichever will produce a clearer image of the fetus.[57] The ultrasound must occur at least one hour before the abortion and the patient must listen to the doctor’s explicit description of the image, including the dimensions, internal organs, and cardiac activity of the fetus.[58] If, after these steps, she still wishes to proceed, the woman must obtain written testimony stating that she has met these requirements.[59] The provision requiring the physician to choose whichever ultrasound procedure will produce a clearer image effectively requires most women to undergo the most intrusive form of ultrasound—the trans-vaginal ultrasound.[60]

The Oklahoma Representative who authored the bill attested, “The bill is necessary to provide women all of the information before they make an irrevocable decision. This bill actually provides her a choice—she does not have to view that screen.”[61] The Representative was technically correct: the law states that “[n]othing in this section shall be construed to prevent a pregnant woman from averting her eyes from the ultrasound images required to be provided to and reviewed with her.”[62] However, a woman wishing to completely forego the visualization of the fetus is still required to listen to the physician’s detailed description of the fetus even if her eyes are shut.[63]

  1. The Development of Nova Health Systems v. Pruitt and the Court’s Legal Analysis

Wasting no time, Nova Health Systems, a local Oklahoma reproductive services provider directly affected by this new bill,[64] and the Center for Reproductive Rights[65] filed a suit challenging House Bill 2780 the same day the bill became law.[66] In December 2012, the Oklahoma Supreme Court affirmed the district court’s ruling that the state’s mandatory pre-abortion ultrasound law is facially unconstitutional.[67] However, it held the law unconstitutional under the United States Constitution rather than Oklahoma’s state constitution.[68] The most relevant portion of the court’s brief opinion is as follows:

[T]his matter is controlled by the United States Supreme Court decision in [Casey], which was applied in this Court’s recent decision of In re Initiative No. 395, State Question No. 761. Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. . . . The challenged measure is facially unconstitutional pursuant to Casey. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.[69]

The court’s citation to In re Initiative No. 395, State Question No. 761 refers to the previously discussed 2012 case that struck down the Oklahoma Personhood Ballot Initiative as facially unconstitutional under Casey.[70] That 2012 opinion relied entirely on the analysis and reasoning of Initiative No. 349,the 1992 opinion that held an analogous abortion restriction ballot initiative unconstitutional under Casey twenty years earlier.[71] Thus, by citing to the most recent 2012 case overturning the Oklahoma Personhood Ballot Initiative, the Oklahoma Supreme Court in Pruitt effectively invoked the 1992 court’s analysis of Casey in Initiative No. 349.[72]

In light of the split Pruitt created between the Oklahoma Supreme Court and the Fifth Circuit[73] and the high stakes of the ruling for supporters of pre-abortion mandatory ultrasound laws in the future, the Oklahoma Attorney General filed a petition for writ of certiorari to the United States Supreme Court.[74] He urged the Supreme Court to reverse the court’s holding and find that Casey’s undue burden standard permits states to condition women’s access to abortions on first agreeing to undergo a descriptive ultrasound.[75]

In November 2013, the Supreme Court denied certiorari in the Pruitt appeal, allowing the Pruitt court’s decision striking down ultrasound laws to stand.[76] The denial left in place a circuit split that promises to further develop as an increasing number of states are introducing similar ultrasound laws.[77] Because the Supreme Court holds a compelling interest in resolving circuit splits, the more divisive this area of law becomes, the more pressure the Court will be under to grant certiorari on this issue.[78]

  1. The Circuit Split and Developing Cases

Around the same time, Texas enacted a mandatory pre-abortion law similar to the one struck down in Oklahoma. In the legal challenge to the Texas law, Texas Medical Providers Performing Abortion Services v. Lakey, the Fifth Circuit unanimously held that mandating pre-abortion ultrasounds for women seeking abortions was constitutional under Casey—a ruling that directly conflicted with Pruitt.[79] Although the Oklahoma and Texas laws were nearly identical, certain provisions made the Texas law even more intrusive than the one struck down in Pruitt.[80]

The Lakey court primarily analyzed whether mandatory pre-abortion ultrasounds violate the First Amendment by compelling speech that has no other purpose than to endorse the state’s ideological anti-choice message.[81] In vacating the district court’s ruling, which held that the mandatory pre-abortion law was unconstitutional under the First Amendment as construed in Casey, the Lakey court clarified its interpretation of Casey.[82] The court asserted that Casey permits informed-consent laws under the First Amendment as long as the purpose of these laws is to offer “truthful and non-misleading information” pertinent to the woman making a final decision about whether to continue with her abortion.[83]

The Lakey court felt it was “belabor[ing] the obvious and conceded point [that] the required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.”[84] Upon further elaboration, the Lakey court emphasized that “[t]hey are not different in kind, although more graphic and scientifically up-to-date, than the disclosures discussed in Casey—probable gestational age of the fetus and printed material showing a baby’s general prenatal development stages.”[85] Because the Lakey court ultimately upheld the law based on Casey, this decision conflicts with the holding in Pruitt, creating a split on the same constitutional issue.[86]

The circuit splits leaves the constitutionality of mandatory pre-abortion ultrasounds unresolved, prompting continued litigation in this area and further division among states. For example, in December 2011, a U.S. district judge in North Carolina preliminarily enjoined part of the state’s mandatory pre-abortion ultrasound law in Stuart v. Huff.[87] The North Carolina law, entitled “A Women’s Right to Know,” is nearly identical to the ultrasound law upheld in Texas.[88] The district judge held that the ultrasound requirements, which required the physician to provide both an auditory and visual description of “the dimensions of the embryo or fetus and the presence of external members and internal organs,”[89] violated the First Amendment by compelling physicians to advance the state’s content-based speech to dissuade women from choosing an abortion.[90] Although the judge only preliminarily enjoined the speech and display requirements of the law, she also emphasized that these requirements were not only unconstitutional under the First Amendment, but were also medically unnecessary and beyond the scope of the informed consent requirements upheld as constitutional in Casey.[91]

In January 2014, the same district judge made the preliminary injunction final, striking down the Act as an unconstitutional violation of doctors’ rights to free speech under the First Amendment.[92] The district judge again emphasized the underlying purpose of the law as one that compels doctors to further North Carolina’s ideological beliefs rather than to provide informed consent to the woman and increase the safety of the abortion procedure.[93]

Relying on Casey’s interpretation of the First Amendment,[94] the district judge reasoned that “[t]o the extent the Act is an effort by the state to require health care providers to deliver information in support of the state’s philosophic and social position discouraging abortion and encouraging childbirth, it is content-based, and it is not sufficiently narrowly tailored to survive strict scrutiny.”[95] The district judge further held that even if there were a health-related purpose behind the law, it would fail heightened scrutiny because the law is not enforced in a way that is substantially related to the state’s purported interest.[96] Mandatory pre-abortion ultrasound laws continue to be introduced around the country, triggering legal challenges, furthering the rift between the circuits, and imploring the Supreme Court to grant certiorari in the future.[97]

II.         Analysis

Although the Pruitt court construed Casey correctly, the court ultimately erred when it adopted an earlier court’s analysis rather than explaining the application of Casey and its undue burden standard to the particular law at issue.[98] In a legal domain where the constitutionality of mandatory pre-abortion laws is highly contested, where a circuit split has developed,[99] and where the Supreme Court has rejected the opportunity to clarify abortion law,[100] the Oklahoma Supreme Court could have taken the opportunity as one of the first high courts to rule on this issue to explain exactly how Casey’s undue burden standard necessitates the rejection of mandatory pre-abortion ultrasound laws. A detailed analysis of the undue burden standard in relation to these laws would have provided much needed clarity, especially in light of the Supreme Court’s decision not to review Pruitt.[101]

A.       Pruitt’s Cursory but Correct Application of Casey

The Pruitt court struck down the state’s mandatory pre-abortion law as unconstitutional under Casey, issuing a cursory, but correct opinion.[102] First, the holding was legally sound as the court cited to and invoked the robust analysis of Casey in Initiative Petition No. 349.[103] Second, the holding recognized that Oklahoma’s ultrasound laws violate the Casey Court’s intention to prevent states from unnecessarily intruding into this particular zone of a woman’s privacy.[104]

  1. Invoking Prior Precedent: Pruitt’sAdoption of the Legal Analyses Used to Strike Down the Oklahoma Ballot Initiatives

Indeed, in the petition for writ of certiorari to the United States Supreme Court, the Attorney General described the Pruitt court’s opinion as “cursory.”[105] He further claimed that the court’s “refusal to engage with Casey’s reasoning or to conduct any analysis returned Oklahoma to the legal theory Casey explicitly rejected,” as the opinion indicated that the state still retains interest in the potential future life of the fetus.[106] Although the Attorney General was correct that the court’s opinion lacked substantial legal analysis, this deficiency does not diminish the legitimacy of the court’s holding or the application of Casey to the present issue, especially when understood in light of the legal precedent upon which the Pruitt court relied.

The Pruitt court’s opinion was so concise because it relied entirely on the analysis it employed when striking down both the 1992 and the 2012 ballot initiatives.[107] Although it would have been wise for the Pruitt court to develop a broader legal analysis adjusted to the specific legal issue of mandatory pre-abortion ultrasound laws, the legal reasoning underlying the court’s judgment was well founded. To invalidate the Oklahoma Personhood Ballot, the 2012 court relied heavily on the legal analysis of the 1992 court.[108] Thus, when the Pruitt court cited to the more recent 2012 case as the basis of its legal analysis, it implicitly extended the legal reasoning employed by the 1992 court to the issues presented in Pruitt.[109]

The 1992 court rejected the Oklahoma abortion restriction ballot initiative because, under Casey, any law that has the effect of banning abortion and contraceptive use altogether is unconstitutional as it comes too close to defining a fetus as a person.[110] In adopting this prior precedent, the Pruitt court found that the mandatory pre-abortion ultrasound laws in House Bill 2780 crossed the same threshold denounced by the 1992 court.[111] In other words, because mandatory pre-abortion ultrasounds serve no medical purpose for the mother seeking an abortion or for the physician performing the procedure,[112] the Pruitt court grouped the ultrasound’s purpose in the same category as the 1992 and 2012 ballot initiatives—one that serves the interest of the fetus as a recognized person.[113] Furthermore, by choosing to cite to the 2012 Oklahoma Personhood Ballot Initiative case instead of any number of other recent Oklahoma abortion related cases, the Pruitt court equated the issues entangled in mandatory pre-abortion ultrasound laws with the extreme and unequivocally unconstitutional personhood ballot amendment.[114] This reference to both ballot initiatives suggests that the Pruitt court viewed mandatory ultrasound laws as the type of state regulation Casey intended to explicitly prohibit.[115]

  1. Pruitt’s Recognition That Mandatory Pre-Abortion Ultrasound Laws Violate the Bodily Integrity Protected in Casey

Casey reiterated that “the right recognized by Roe is a right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’”[116] This right was a core premise of Roe and one that the Casey Court did not disturb.[117] Instriking down the mandatory pre-abortion ultrasound law, the Pruitt court held that forcing a woman to undergo an intrusive medical procedure as a prerequisite for abortion care violates the woman’s bodily autonomy and unduly burdens her fundamental right to terminate a pregnancy.[118]

As mentioned in the previous section, the Casey Court struck down spousal notification requirements as unconstitutional, because when “the State has touched . . . upon the very bodily integrity of the pregnant woman,” the state has placed a substantial obstacle in the path of a woman seeking an abortion, amounting to an undue burden.[119] If a requirement that the woman must first tell her spouse about an abortion constitutes an unconstitutional intrusion into the bodily integrity of the woman, then a vaginal transducer that quite literally invades the most intimate areas of a woman’s body must also amount to an unconstitutional and unduly burdensome intrusion under Casey.[120] Spousal notification and mandatory ultrasound laws impose similar undue burdens because neither requirement is elective.[121] The undue burden arises because these requirements negate the woman’s personal choice in the matter, depriving her control over her own bodily integrity. House Bill 2780 falls under this category because the choice between using a vaginal or abdominal transducer is conditioned on whichever machine will produce the clearest photograph of the fetus. This is almost always the most invasive vaginal transducer. Thus, because of how these laws are drafted, the physician is almost always required to choose the more intrusive ultrasound procedure.[122]

B.      Pruitt Neglected to Address the Various Ways in Which Mandatory Pre-Abortion Ultrasounds Deteriorate Reproductive Rights

The Pruitt court, however, failed to develop its analysis, thus bypassing the significant opportunity to clarify this area of the law, influence the direction of future legal discourse, and demand Supreme Court review. Through a more in-depth analysis, the court could have considered other implications of these laws, such as the effect they have on minority women and questions about medically necessity.

  1. The Effect of Mandatory Ultrasound Laws on Minority Women

The Oklahoma ultrasound law had a minimum one-hour wait-time between the ultrasound and the abortion, requiring many women to come back the following day for the procedure.[123] This time requirement would require physicians to be available at the abortion clinic on two consecutive days, which, in turn, increases the cost of their services.[124] This increase in cost becomes a substantial obstacle in the path of many women struggling financially because “[i]n most states, low-income women have to come up with between $500 and $1000 in cash to pay for [a first-trimester] abortion. For a woman living at or below the poverty level this is equivalent to a month’s income.”[125] This number grows even larger with the additional cost of an ultrasound, which can range from around $150-$2,500 depending on the type of ultrasound the law requires and the facility at which the ultrasound is performed.[126]

Laws that negatively and disparately impact a vulnerable group of people often receive higher levels of scrutiny in court because they have the potential to subjugate an already suspect class. Courts review laws that discriminate against a suspect class—persons belonging to a group historically discriminated against based upon race, alienage, or national origin—with strict scrutiny.[127] The impoverished are not considered a suspect class.[128] However, due to ingrained societal and economic disparities as well as disparities in access to sex education, contraceptives, and reproductive health care,[129] an overlap often exists between lower income women seeking abortion care and women in the racial minority.[130] Moreover, the historical discrimination and marginalization of minorities continues to unjustly impact their socioeconomic status today to the extent that minority women are twice as likely to be living in poverty.[131] Therefore, mandatory pre-abortion ultrasound laws gravely affect a class of women historically discriminated against, as the oppressive costs of these laws function as an additional obstacle that minority women must overcome in order to claim a supposedly fundamental right.[132]

Restrictions on abortion access raise a unique threat, not only to an immediate suspect class, but also to suspect classes in the future. Because low-income minority women seeking abortion care may be unable to afford the mandatory ultrasound, these ultrasound requirements repress and immobilize a suspect class, and lead to more unintended pregnancies among families living below the poverty line.[133] However, the Supreme Court has consistently held that statutes which have a disparate impact on a suspect class are only unconstitutional if the statute has a clearly discriminatory and invidious intent.[134] Thus, it is unlikely mandatory pre abortion ultrasound laws would be struck down on the basis of disparate impact alone. However, although these laws circumvent the disparate impact standard, they nonetheless result in the imposition of an undue burden on the expansive class of women that the laws disparately affect. This is a valid legal concern under Casey,and a disparate impact line of analysis uniquely shows the breadth of the disparately impacted class—women who are equally as entitled to the constitutional right to an abortion protected by Casey.

  1. Unnecessary Medical Procedures as Unduly Burdensome in the Abortion Context

Whether it is medically necessary for every woman to undergo an ultrasound before obtaining an abortion is highly contested.[135] As the district court in Pruitt noted, mandatory pre-abortion ultrasound laws are “improperly . . . addressed only to patients, physicians and sonographers concerning abortions and do [] not address all patients, physicians and sonographers concerning other medical care where a general law could clearly be made applicable.”[136] The district judge in Stuart also shared this sentiment, noting that there is “uncontradicted” evidence that mandatory pre-abortion ultrasounds serve no medical purpose.[137]

In unearthing the primarily anti-choice agenda behind these laws, the laws’ true purpose comes to light. Americans United for Life is an anti-choice organization with a transparent mission of securing “legal protection for human life from conception to natural death.”[138] If Americans United for Life succeeded in this pursuit, they would overrule Roe, making abortions illegal without exceptions.[139] The spokeswoman for Americans United for Life confirmed that the organization authored a model bill for states to use in drafting mandatory pre-abortion ultrasound legislation.[140] A number of states have used the model bill to draft their own mandatory pre-abortion ultrasound laws.[141]

It is common for organizations to create model legislation that reflects their social and political postures. However, the integration of the Americans United for Life’s model bill into states’ existing abortion laws is alarming because the organization’s purpose—to ban abortion and grant fetuses’ personhood—is at odds with the Supreme Court’s holding that abortions are a fundamental right until fetal viability.[142] Thus, when reviewing these laws, the Supreme Court should pay careful attention to the anti-choice purpose they conspicuously reflect.[143]

The sponsors of these bills claim that the laws protect women’s health, but neglect to explain why the procedures they support are medically necessary.[144] The same spokesperson from Americans United for Life argued that “ultrasounds are absolutely vital for protecting woman’s health, for determining how far along is the pregnancy.”[145] However, if that were the true purpose of these laws, they could be written in a way that required far less invasive procedures without any visual or auditory requirements.[146] Moreover, individuals with extensive medical experience and training in ultrasounds and abortions admonish the laws for lacking a medical purpose. A trained gynecologist and abortion provider attested that “[r]equiring [women] to have this specific kind of ultrasound prior to an abortion can be stressing, can be unnecessary… and, in my opinion, should not be mandated in such a way that it might not be medically necessary for a particular patient.”[147]

Additionally, the first ultrasound has become a celebrated step in pregnancy that elevates a fetus to the status of a child about to become part of a traditional family.[148] Americans United for Life used this logic to support their model bill, explaining that “[m]edical evidence indicates that women feel bonded to their children after seeing them on the ultrasound screen. Once that bond is established . . . a woman no longer feels ambivalent toward her pregnancy and actually begins to feel invested in her unborn child.”[149] Evidence that ultrasound imagery has this effect on women is minimal.[150] Yet, mandatory ultrasound laws were nonetheless enacted against this backdrop, suggesting ulterior motives based on anti-choice bias rather than medical necessity.[151]

Conclusion

Mandatory ultrasound laws are host to a handful of constitutional questions. In Pruitt, the Oklahoma Supreme Court ruled that House Bill 2780, a mandatory pre-abortion ultrasound law with restrictive speech and display requirements, was facially unconstitutional under Casey.[152] Even though the Pruitt court’s decision was correct, the court disregarded the constitutional questions implicated in the mandatory pre-abortion ultrasound debate and which are currently being contested in courts across the country. By neglecting to expand their analysis and to apply Casey to the particulars of these ultrasound laws, the court discarded an opportunity to clarify how these laws inevitably chip away at the fundamental right preservedin Casey.

In light of the Supreme Court’s denial of certiorari for Pruitt, future circuits will be tasked with analyzing mandatory pre-abortion ultrasound laws without a clear legal framework. The Pruitt court’s opinion aptly recognized the need for Supreme Court direction on this complex issue when they struck down the mandatory pre-abortion ultrasound law as unconstitutional under Casey, “until and unless the United States Supreme Court holds to the contrary.”[153] Although the Supreme Court denied this opportunity to clarify United States abortion law, the legal ambiguity of mandatory pre-abortion ultrasounds will continue to grow as circuits across the country interpret these laws. Eventually, the Supreme Court will have to clarify the confines of the law.

In anticipation of this future grant of certiorari, and to ameliorate the insufficiencies within the Pruitt court’s concise opinion, circuit courts and state supreme courts should offer more robust opinions explaining their application of the undue burden standard to mandatory pre-abortion ultrasound laws. A more detailed analysis will likely increase the potential that Supreme Court review will arrive sooner rather than later, as it will evidence the nation’s legal divide. Such analysis will bring much needed clarity to the application of the undue burden standard and demonstrate the unreasonable obstacles that mandatory pre-abortion ultrasounds and similarly restrictive laws pose to women’s constitutional right to abortion.

[1] The following fact pattern is closely based on actual events, as related by Carolyn Jones, the recipient of a mandatory ultrasound for her abortion in Texas; See Carolyn Jones, ‘We Have No Choice’: One Woman’s Ordeal with Texas’ New Sonogram Law, Texas Observer (Mar. 15, 2012), http://www.texasobserver.org/we-have-no-choice-one-womans-ordeal-with-texas-new-sonogram-law/.

[2] Id.

[3] See Planned Parenthood v. Casey, 505 U.S. 833, 837 (1992) (“Adoption of the undue burden standard does not disturb Roe‘s holding that regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”) (emphasis added).

[4] See Casey, 505 U.S. at 837 (“[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”).

[5] See Roe v. Wade, 410 U.S. 113, 169–70 (1973).

[6] Casey, 505 U.S. at 874 (“Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”).

[7] Scott W. Gaylord & Thomas J. Molony, Casey And A Woman’s Right To Know: Ultrasounds, Informed Consent, And The First Amendment, 45 Conn. L. Rev. 595, 599 (2012) (discussing how the courts in Texas, Oklahoma, and North Carolina all employed different analyses of the undue burden standard when considering the constitutionality of mandatory pre-abortion ultrasounds). See also Michael F. Moses, Casey And Its Impact On Abortion Regulation, 31 Fordham Urb. L.J. 805, 808 (2004) (quoting Casey, 505 U.S. at 877) (“The Supreme Court defined [an undue burden] as a ‘substantial obstacle,’ but those words seem as vague as the words they define.”)

[8] See Casey, 505 U.S. at 874. Black’s Law Dictionary defines “undue burden” as “[a] substantial and unjust obstacle to the performance of a duty or enjoyment of a right.” Black’s Law Dictionary (9th ed. 2009).

[9] Casey, 505 U.S.at 877.

[10] See Nova Health Systems v. Pruitt, 292 P.3d 28, 28-29 (2012).

[11] See infra Part II.B.2.

[12] See infra Part II.B.2; see Carol Sanger, Seeing And Believing: Mandatory Ultrasound And The Path To A Protected Choice, 56 UCLA L. Rev 351, 362 (2008).

[13] Compare Pruitt, 292 P.3d at 28-29 (holding that the Oklahoma mandatory ultrasound is facially unconstitutional under the undue burden standard), and Gaylord & Molony, supra note 7, at 600 (arguing that the undue burden standard requires rational basis review which, when applied, upholds mandatory ultrasound laws as constitutional).

[14] Casey, 505 U.S. at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define liberty of all, not to mandate our own moral code.”); Sanger, supra note 12, at 362 (quoting Roe, 410 U.S. at 150, 154, 156, 163) (“[T]he ultrasound is meant to establish or simply to reinforce the state’s position that the fetus is not just ‘potential life,’ to use the U.S. Supreme Court’s phrase in Roe v. Wade, but ‘actual life,’ with all the ideological and emotional force that word now comprises and exerts.”).

[15] Supra note 13 and accompanying text. See Tracy Weitz, What We Are Missing in the Trans-vaginal Ultrasound Debate, RH Reality Check (Mar. 1, 2013), http://rhrealitycheck.org/article/2013/03/01/challenges-in-the-trans-vaginal-ultrasound-debate/ (“The public discourse about mandated trans-vaginal ultrasounds for abortion patients is completely out of control—among both abortion rights opponents and abortion rights supporters. The facts are slim and distorted on all sides.”).

[16] See generally Gonzales v. Carhart, 550 U.S. 124, 147 (2007); Stenberg v. Carhart, 530 U.S. 914 (2000); Mazurek v. Armstrong, 520 U.S. 968 (1997); Casey, 505 U.S. at 874 (1992); Roe , 410 U.S. at 138-40 (1973) (all of which evidence the various changes the Supreme Court has made to abortion law).

[17] Gaylord & Molony, supra note 7, at 599 (discussing how the courts in Texas, Oklahoma, and North Carolina all employed different analyses of the undue burden standard when considering the constitutionality of mandatory pre-abortion ultrasounds); Moses, supra note 7, at 808 and accompanying text.

[18] See, e.g., Tex. Med. Providers Performing Abortion Services v. Lakey, 667 F.3d 570, 572 (5th Cir. 2012); Nova Health Systems v. Pruitt, 292 P.3d 28, 28-29 (Okla. 2012).

[19] See Guttmacher Institute,State Policies in Brief: Requirements for Ultrasound(2014), http://www.guttmacher.org/statecenter/spibs/spib_RFU.pdf (hereinafter Guttmacher, Requirements for Ultrasound).

[20] Elizabeth Nash et al., Guttmacher Inst., Laws Affecting Reproductive Health and Rights: 2013 State Policy Review (2013), http://www.guttmacher.org/statecenter/updates/2013/statetrends42013.html.

[21] Stealth Attack: What You Need to Know About the New Abortion Laws, ACLU, available at https://www.aclu.org/reproductive-freedom-womens-rights/stealth-attack-what-you-need-know-about-new-abortion-laws (last visited Sep. 20, 2014).

[22] See Guttmacher, Requirements for Ultrasound, supra note 19; Guttmacher Institute,Monthly State Update: Major Developments In 2014, http://www.guttmacher.org/statecenter/updates/index.html (last updated July, 1, 2014). So far in 2014, legislators have introduced new mandatory pre-abortion ultrasound legislation in 12 states (IL, KY, MA, MD, MI, MO, NJ, NY, OH, OK, RI and TN). Id.

[23] See Pruitt 292 P.3d at 28-29.

[24] Id. (“The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary.”).

[25] Id. at 28 (Okla. 2012), cert. denied, 134 S.Ct. 617 (2013).

[26] Id.

[27] See Pruitt, 292 P.3d at 28–29 (“The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary.”).

[28] See In re Initiative Petition No. 349, State Question No. 642, 838 P.2d 1, 7 (Okla. 1992).

[29] See Casey, 505 U.S. at 870.

[30] Id. at 871 (“The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.”).

[31] Roe, 410 at 163-65. The trimester framework is as follows: within the first trimester, the woman has an unconditional right to abort because the state’s interest in regulating the procedure has yet to become compelling enough to survive strict scrutiny; within the second trimester, the state may only regulate abortions insofar as the laws serve the compelling interest of protecting the woman’s health; by the third trimester the fetus has reached the point of viability, and the state may regulate and ban abortions how they see fit.

[32] See Casey, 505 U.S. at 876.

[33] See id.

[34] See Linda J. Wharton et al., Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 Yale J.L. & Feminism 317, 330-32 (2006).

[35] See Casey, 505 U.S. at 877.

[36] Id.

[37] Id.

[38] See id. at 898.

[39] Id. at 896.

[40] See id.

[41] See Casey, 505 U.S. at 896. This sentiment, regarding the important of protecting bodily integrity, was later espoused by other courts. See Missouri v. McNeely, 133 S. Ct. 1552, 1565 (2013) (plurality) (“We have never retreated . . . from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.”).

[42] Pruitt, 292 P.3d 28 (2012).

[43] Center for Reproductive Rights,In re Initiative Petition 395, State Question No. 761 (OK Personhood) (2012), http://reproductiverights.org/en/case/in-re-initiative-petition-395-state-question-no-761-ok-personhood [hereinafter Center for Reproductive Rights].

[44] On Petition for Writ of Certiorari to the Supreme Court of Oklahoma at 2, cert. denied, In Re Initiative Petition, No. 395 State Question No. 761, 2012 WL 3109490 (Okla. July 30, 2012).

[45] See Center for Reproductive Rights, supra note 43.

[46] Nancy J. Moore, Oklahoma Court Blocks Ultrasound Rule As Unconstitutional Under State Law, 21 Health L. Rep. (BNA) No. 14, at 521 (April 5, 2012).

[47] In re Initiative Petition No. 395, State Question No. 761, 286 P.3d 637, 637–38 (Okla. 2012). See also Patrick B. McGuigan, State Court Slaps Down Personhood Initiative, Capital Beat OK, May 1, 2012, http://capitolbeatok.com/reports/state-court-slaps-down-personhood-initiative.

[48] See In re Initiative Petition No. 349, 838 P.2d at 6. These exceptions were: (1) if the woman suffered from serious mental health problems, (2) if the pregnancy resulted from rape, (3) if the pregnancy resulted from incest, or (4) if the fetus showed serious physical or mental defects. See id. at 7.

[49] Id. at 6.

[50] See generally Casey, 505 U.S. 833.

[51] In re Initiative Petition No. 349, 838 P.2d at 7.

[52] See In re Initiative Petition No. 395, 286 P.3d at 637–38.

[53] See In re Initiative Petition No. 349, 838 P.2d at 6.

[54] Pruitt, 292 P.3d at 28–29.

[55] See, e.g., id; Tex. Med. Providers Performing Abortion Services v. Lakey, 667 F.3d 570, 572 (5th Cir. 2012).

[56] Okla. Stat. Ann. tit. 63, § 1-738.3d (West 2013).

[57] Id.

[58] Id.

[59] Id.

[60] See Weitz, supra note 15 (“Because trans-vaginal ultrasounds provide higher quality images at earlier gestational stages, these laws by definition require abortion providers to perform trans-vaginal ultrasounds.”).

[61] Michael Mcnutt, Oklahoma House OKs Ultrasound Bill, News OK, (Mar. 23, 2010), http://newsok.com/oklahoma-house-oks-ultrasound-bill/article/3443446.

[62] Okla. Stat. Ann. tit. 63, § 1-738.3d (West 2013).

[63] Id. The only way a woman may bypass the ultrasound prior to an abortion is if a medical emergency threatens her life. Id.

[64] Reproductive Services: Your Body, Your Choice, Reproductive Health Services, https://reproductiveservices.com/tulsa-ok-abortion-clinic/ (last visited Dec. 28, 2013) (“Nova Health Systems” does business as “Reproductive Services”)..

[65] About Us, Center for Reproductive Rights, http://reproductiverights.org/en/about-us (last visited Dec. 28, 2013).

[66] Amended Petition for Plaintiffs, Nova Health Systems v. Pruitt, No. 2:12-CV-00395, 2012 WL 1034022 (Okla. Dist. Ct. Okla. Cnty.) (Mar. 28, 2012), 2011 WL 1821702.

[67] See Pruitt, 292 P.3d at 28–29; Nova Health Systems v. Pruitt, No. 2:12-CV-00395, 2012 WL 1034022 (Okla. Dist. Ct. Okla. Cnty. Mar. 28, 2012) (Order Granting Summary Judgment Declaring Ultrasound Act As an Unconstitutional Special Law and Permanent Injunction Preventing the Enforcement of the Ultrasound Act). The district court judge held, that the law is, “improperly . . . addressed only to patients, physicians and sonographers concerning abortions and does not address all patients, physicians and sonographers concerning other medical care where a general law could clearly be made applicable.” Id.

[68] Id.

[69] Id.

[70] See In re Initiative Petition No. 395, 286 P.3d at 637–38; supra Part I.A.2.

[71] See supra Part I.A.2.

[72] See supra Part I.A.2.

[73] See infra Part I.B.3.

[74] Petition for Writ of Certiorari, cert. denied, Nova Health Systems v. Pruitt, 292 P.3d 28, (Okla. 2012) (No. 12-1170), 2013 WL 1225690. The Attorney General at the time was Scott Pruitt. Id.

[75] Id. at 7. Nova Health Systems filed a brief in opposition to the Attorney General’s petition, arguing that the decision was correct and should be undisturbed by plenary Supreme Court review. See Brief in Opposition On Petition For A Writ Of Certiorari To The Supreme Court Of Oklahoma at 1, cert. denied, Nova Health Systems v. Pruitt, No. 12-1170, 292 P.3d 28, (Okla. 2012), 2013 WL 2428980.

[76] Pruitt, 292 P.3d at 28, cert. denied, 134 S.Ct. 617, 617 (2013).

[77] See Richard Wolf, Steady Stream of Abortion Cases Headed Toward High Court, USA Today (Nov. 12, 2013), http://www.usatoday.com/story/news/politics/2013/11/12/supreme-court-abortion-ultrasound-oklahoma/3466467/.

[78] Sup. Ct. R. 10 at 5-7, available at http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf; see also Wolf, supra note 77.

[79] Id.

[80] Tex. Health & Safety Code Ann. § 171.0122 (West 2011). In addition to the ultrasound, the visual image of the fetus, and the description of the dimensions and fetal organs, the Texas law also mandates that the physician make the fetal heartbeat audible to the woman and requires that she then wait an additional twenty-four hours before proceeding with the elective procedure. Id. Although the law permits the woman to decline the option of viewing the image of the fetus and of hearing the heartbeat, she may only forego the physician’s explicit depiction of the embryo or fetus if she falls within three narrow medical exceptions: (1) if the pregnancy was a result of incest or rape, (2) if the patient is a minor, or (3) if the fetus has an irreversible medical condition. Id. at § 171.0122(d).

[81] See Lakey, 667 F.3d at 572, 574–80.

[82] See Tex. Med. Providers Performing Abortion Services v. Lakey, 806 F.Supp.2d 942, 972 (W.D. Tex. 2011), vacated in part (Tex. Med. Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012)).

[83] Tex. Med. Providers Performing Abortion Services v. Lakey, 667 F.3d 570, 577 (5th Cir. 2012).

[84] Id. at 578.

[85] Id.

[86] See id. at 572.

[87] See Stuart v. Huff, 834 F.Supp.2d 424, 433 (D. N.C. 2011).

[88] N.C. Gen. Stat. Ann. § 90-21.85 (West 2011). The North Carolina law provides no exceptions for women who were victimized by rape, incest, or who receive a prior diagnosis that their pregnancy will suffer medical complications if brought to term. There is also a waiting period of four hours between the ultrasound and being able to obtain an abortion. Id.

[89] See § 90-21.85.

[90] See Huff, 834 F.Supp.2d at 429.

[91] See id. at 431.

[92] Stuart v. Loomis, No. 1:11–CV–804, 2014 WL 186310, slip op. at 1 (M.D.N.C. Jan. 17, 2014) (The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state’s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today.).

[93] Id.

[94] Id. at 7 (quoting Wooley v. Maynard, 430 U.S. 705 (1977)) (“In Casey, the Court explicitly recognized a physician’s First Amendment rights . . . [holding that] the state cannot compel a person to speak the state’s ideological message.”)(alteration in original).

[95] Id. at 1.

[96] Id. (“[T]he state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.”).

[97] Monthly State Update, supra note 22 and accompanying text. See, e.g.,Edwards v. Beck, 946 F. Supp. 2d 843, 850-51 (E.D. Ark. 2013) (where a U.S. District Judge granted a preliminary injunction enjoining enforcement of a mandatory pre-abortion ultrasound, an order that is currently pending appeal with the 8th Circuit); Complaint, Hope Med. Grp. for Women et al v. Caldwell et al, 2010 WL 3269282 (M.D.La. 2010) (3:10-CV-00511) (arguing that the mandatory pre-abortion ultrasound law was unconstitutionally vague, a challenge that is no longer being pursued in lieu of an internal agreement reached among the challenging abortion clinic and other state officials which is explained in Parts of Louisiana Abortion Ultrasound Law Blocked, Center for Reproductive Rights, http://reproductiverights.org/en/press-room/parts-of-louisiana-abortion-ultrasound-law-blocked (last visited Aug. 8, 2014)); Complaint, Preterm-Cleveland, Inc. v. Kasich, Ohio Ct. Com. Pl., No. (CV-815214), available at http://www.dispatch.com/content/downloads/2013/10/PretermVKasichComplaint2013_1009.pdf(challenging the constitutionality of the recently enacted House Bill 59, which includes a mandatory pre-abortion ultrasound requirement).

[98] See Pruitt, 292 P.3d at 28–29.

[99] See, e.g., Lakey, 667 F.3d at 578. See also Pruitt, 292 P.3d at 28–29.

[100] Pruitt, 292 P.3d at 28–29, cert. denied, 134 S.Ct. 617 (2013).

[101] See id.

[102] Pruitt, 292 P.3d at 28–29.

[103] See In re Initiative Petition No. 349, 838 P.2d at 7.

[104] See Casey, 505 U.S. at 896.

[105] Petition for Writ of Certiorari, cert. denied, Nova Health Systems v. Pruitt, 292 P.3d 28, 28 (Okla. 2012) (No. 12-1170), 2013 WL 1225690.

[106] Petition for Writ of Certiorari, Nova Health Systems, supra note 105 at 14–15.

[107] See Pruitt, 292 P.3d at 28–29 (2012) (citing In re Initiative Petition No. 349, 838 P.2d at 2).

[108] See infra Part I.2.B (explaining the relationship between the two ballot initiatives and how they interact to form the precedent relied upon in Pruitt).

[109] See Pruitt, 292 P.3d at 28–29 (citing In re Initiative Petition No. 349, 838 P.2d at 2).

[110] See In re Initiative Petition No. 349, 838 P.2d at 7.

[111] See Pruitt, 292 P.3d at 28–29.

[112] See Serena Marshall, Virginia Likely to Require Ultrasound for Abortion, ABC News (Feb. 18, 2012), http://abcnews.go.com/blogs/politics/2012/02/virginia-likely-to-require-ultrasound-for-abortion/ (“Requiring them to have this specific kind of ultrasound prior to an abortion can be stressing, can be unnecessary… and, in my opinion, should not be mandated in such a way that it might not be medically necessary for a particular patient.”).

[113] See Pruitt, 292 P.3d at 28-29 (citing In re Initiative Petition No. 349, 838 P.2d at 2).

[114] See id.

[115] See id.

[116] Casey, 505 U.S. at 875 (1992).

[117] Id.

[118] See discussion supra Part I, Section A; see also Casey, 505 U.S. at 846.

[119] See Casey, 505 U.S. at 896.

[120] See id.

[121] Id. (“[N]o physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion.”). See also Okla. Stat. Ann. tit. 63, § 1-738.3d (West 2013) (framing the ultrasound requirement as a condition to obtaining an abortion).

[122] Okla. Stat. Ann. tit. 63, § 1-738.3d (West 2013). This implicit requirement results because around 62 percent of women have abortions prior to their ninth week of pregnancy, Karen Pazol, et al., Centers for Disease Control & Prevention, Abortion Surveillance—United States: Morbidity & Mortality Weekly Report 1 (Nov. 27, 2009), and at a, “gestational age of seven weeks or less, a vaginal transducer generally permits better visualization of the pregnancy. Petition for Writ of Certiorari at 7, cert. denied, Pruitt, 292 P.3d (No. 12-1170), 2013 WL 1225690. (also noting, “[p]atients typically prefer use of an abdominal transducer because it is less invasive than a vaginal probe.”).

[123] See Weitz, supra note 15.

[124] See id.

[125] Id.

[126] See Rachel Zimmerman, My Ultrasound: Three Tests, Three Pricetags, WBUR’S Common Health (Aug. 17, 2011), http://commonhealth.wbur.org/2011/08/my-ultrasound-three-tests-three-pricetags (offering a personal account of a woman comparing three different ultrasound prices in Boston, Massachusetts). See also Jeffrey Young, Hospital Procedure Prices Vary Greatly, New Data Show, Huffington Post (June, 6, 2013), http://www.huffingtonpost.com/2013/06/06/hospital-procedure-prices_n_3393158.html (highlighting the difference in ultrasound pricing between three different facilities in New York).

[127] Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985) (explaining a suspect class); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 319 (1976) (Marshall, J., dissenting) (citing Korematsu v. United States, 323 U.S. 214, 65 (1944)) (“If a statute invades a ‘fundamental’ right or discriminates against a ‘suspect’ class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always, is struck down.”).

[128] Id.

[129] Susan A. Cohen, Guttmacher Institute, Abortion and Women of Color: The Bigger Picture, 11 Guttmacher Pol’y Rev. 2, 3 (2008), available at http://www.guttmacher.org/pubs/gpr/11/3/gpr110302.pdf.

[130] See Guttmacher Institute,Facts on Unintended Pregnancy in the United States (2013), http://www.guttmacher.org/pubs/FB-Unintended-Pregnancy-US.pdf. (“In 2006, black women had the highest unintended pregnancy rate of any racial or ethnic groups. At 91 per 1,000 women aged 15–44, it was more than double that of non-Hispanic white women (36 per 1,000).”) (“The rate of unintended pregnancy among poor women (those with incomes at or below the federal poverty level) in 2006 was 132 per 1,000 women aged 15–44, more than five times the rate among women at the highest income level (24 per 1,000).”).

[131] Id; The Straight Facts on Women in Poverty, Ctr. for Am. progress, http://www.americanprogress.org/issues/women/report/2008/10/08/5103/the-straight-facts-on-women-in-poverty/ (last visited Aug. 8, 2014); Ethnic and Racial Minorities & Socioeconomic Status, Am. Psychological Ass’n, available at http://www.apa.org/pi/ses/resources/publications/factsheet-erm.pdf (last visited Aug. 8, 2014).

[132] See Facts on Unintended Pregnancy in the United States, supra note 130 and accompanying text.

[133] Cohen, supra note 129 at 3.

[134] See, e.g., Harris v. McRae, 448 U.S. 297, 322 (1980); Maher v. Roe, 432 U.S. 464, 464 (1977).

[135] See Marshall, supra note 112.

[136] Nova Health Systems v. Pruitt, No. 2:12-CV-00395, 2012 WL 1034022 (Okla. Dist. Ct. Okla. Cnty.) (Mar. 28, 2012).

[137] Huff, 834 F.Supp.2d at 432 n.7.

[138] AUL’s History – Americans United for Life: Defending Life in Law Since 1971, American’s United for Life, http://www.aul.org/about-aul/history/ (last visited Dec. 29, 2013).

[139] See generally Clarke D. Forsythe, Can Roe v. Wade be overturned After 40 Years?, Americans United for Life, (2013) available at http://www.aul.org/wp-content/uploads/2013/04/RoeAt40-6_RoeOverturned.pdf (discussing the difficulties in succeeding in their mission of overturning Roe and offering suggestions for future success).

[140] See Ryan Sibley, Virginia Ultrasound Law is the Image of a Few Others, Sunlight Foundation Reporting Group (Mar. 7, 2012), http://reporting.sunlightfoundation.com/2012/virginia-ultrasound-law-image-few-others/.

[141] Women’s Ultrasound Right To Know Act: Model Legislation & Policy Guide For the 2011 Legislative Year, American’s United for Life, http://www.aul.org/wp-content/uploads/2010/12/Ultrasound-Requirement-2011-LG-_2_.pdf (last visited on Dec. 29, 2013). See also Sibley, supra note 140.

[142] See Legal Recognition of the Unborn & Newly Born, American’s United for Life, http://www.aul.org/issue/legal-recognition/ (“In addition to their work to end abortion, AUL’s attorneys work to protect the unborn and provide legal recognition for unborn and newly born children . . . .) (last visited Dec. 29, 2013).

[143] Compare Legal Recognition of the Unborn & Newly Born, American’s United for Life, http://www.aul.org/issue/legal-recognition/ (“In addition to their work to end abortion, AUL’s attorneys work to protect the unborn and provide legal recognition for unborn and newly born children . . . .) (last visited Dec. 29, 2013), and 2014 Clinical Policy Guidelines, Nat’l Abortion Fed’n, 2014, at 8, available at https://www.prochoice.org/documents/2014NAFCPGs.pdf(recommending limited use of ultrasounds during abortion care after the first trimester and without auditory and display requirements for the woman).

[144] See Marshall, supra note 112.

[145] Id.

[146] See id.

[147] Id.

[148] Sanger, supra note 12, at 362-63 (quoting K. Dykes & K. Stjernqvist, The Importance of Ultrasound to First-Time Mothers’ Thoughts About Their Unborn Child, 19 J. Reprod. & Infant Psychol. 95 (2001)) (“Women who undergo ultrasound perceive their baby as being ‘more real, more vivacious, more familiar, stronger and more beautiful.’”).

[149] See Weitz, supra note 15.

[150] Id. (discussing how the evidence Americans United For Life relied upon is derived from only one study that looked at an account of only two women).

[151] See Sanger, supra note 12, at 362 (“The word encourage does not quite capture the purpose of mandatory ultrasound. Rather, the requirement is meant to bend a woman’s will once she has already made up her mind to seek an abortion.”).

[152] Pruitt, 292 P.3d at 28–29.

[153] Id.

Panel: On The Front Lines of Law Reform

Editor’s Note: The following panel was held during Harvard Law School’s “Celebration 60,” which honored the 60th anniversary of the first women graduates at HLS. 

Please click here for a PDF version of the article.

 

On The Front Lines of Law Reform

Moderator:
Suzanne B. Goldberg ’90, Professor and Director, Center for Gender & Sexuality Law, Columbia Law School

Panelists:
Amanda C. Goad ’05, Staff Attorney, Lesbian Gay Bisexual Transgender & AIDS Project, American Civil Liberties Union
Linda D. Kilb ’88, Director, California Legal Services Trust Fund Support Center Program, Disability Rights Education & Defense Fund (DREDF)
Lenora Lapidus ’90, Director, Women’s Rights Project, American Civil Liberties Union
Nancy A. Ramirez ’90, Western Regional Counsel, Mexican American Legal Defense and Educational Fund
Camille D. Holmes ’93, Director of Leadership and Racial Equity, National Legal Aid & Defender Association

 

SG: Welcome to “On the Front Lines of Law Reform.” I’m pleased to be here with a terrific group of HLS alumnae, each of whom is a leading advocate in her field.

When I came to law school, somehow I had in my mind that I wanted to be a law reform lawyer. I think my interest dated back to elementary school when I was the first girl to join little league baseball where I grew up. Although I didn’t have to litigate to get into little league, I read stories about girls who had to litigate to play baseball, and the idea that you could use the legal system to make change stayed with me. When I arrived here, I wanted to do either race or sex discrimination work, and though my focus shifted to LGBT and HIV-related discrimination work at Lambda Legal for a decade and now is on sexuality and gender law through the clinic I direct at Columbia Law School,[1] I continue to see important connections across the wide range of law reform advocacy.

The prompt for this panel, then, was partly to step back and think about where law reform work is today and where it is headed. Everyone on the panel has been doing work related to law reform in one way or another for different amounts of time, and our aim today is both to talk about what we are each doing in our areas and then to step back and ask the question: What does law reform look like now?

What we know for sure is that the nature of law reform work is changing. It has certainly changed from the time that many of us were in law school. And, given all that is happening in the world, now is an opportune time to think about what it might look like going forward.

We are going to proceed with this panel in the form of a conversation, so I will ask each panelist to begin by introducing herself. We’ll start on the end with Linda Kilb from the Disability Rights Education and Defense Fund.

 

LK: Lovely to have such a wonderful turnout, both in the audience and in this fabulous group of folks to discuss the interesting work they’re doing. I work with the Disability Rights Education & Defense Fund (DREDF), which is a nonprofit national law and policy center based in Berkeley, California.[2] We also have a Washington, D.C. office. DREDF was founded thirty-five years ago, in 1979, as a unique alliance of adults with disabilities and parents of children with disabilities. We remain board- and staff-led by members of the disability community that we represent. DREDF is dedicated to advancing and protecting the civil rights of all people with disabilities. This includes those with mobility or orthopedic disabilities, sensory disabilities, medical conditions, cognitive or learning disabilities, mental health conditions, and any other kind of impairment. We represent people of any age, including children and seniors. We pursue disability rights work in a wide range of contexts, including employment, government programs and activities, higher education, housing, public accommodations, and transportation.[3] About one-third of our work is dedicated to the educational rights (including special education entitlements) of children with disabilities.[4]

We revise our priorities and focus on new issues as they become relevant. For example, we are now actively engaged with implementation of federal health care reform as it affects people with disabilities. We are also addressing the multi-faceted implications of fast-evolving twenty-first century technology and social media. New technology can alleviate isolation and ease historic barriers to full integration—but it can also create new access barriers if not designed with thoughtful attention to general “digital divide” problems and the specific needs of users with disabilities.

DREDF pursues its mission through education, advocacy, and law reform efforts. We provide disability rights training to people with disabilities and parents of children with disabilities. We litigate, representing clients with disabilities, and their parents, in both individual and class action cases brought under a range of different federal and California disability civil rights statutes. We do extensive amicus work, filing “friend of the court” briefs predominately in the federal courts, but also in state appellate courts. We do public policy development and legislative education, and we have participated in the legislative processes leading up to most key federal and California disability rights statutes. Once statutes are on the books, we monitor and participate in public regulatory and administrative activities, such as submitting public comments on proposed regulations. We provide assistance to other attorneys, including nonprofit and legal services attorneys, and the increasing numbers of private bar attorneys who are also doing disability rights work. This includes offering substantive and strategic advice and sample pleadings to those who need background and support in terms of issues they haven’t encountered before. DREDF has also taught disability rights courses at various Bay Area law schools over the past two decades, including a Disability Rights Law Seminar currently offered at U.C. Berkeley (Boalt) School of Law.

 

SG: And what is your role at DREDF?

 

LK: I was hired as a staff attorney with DREDF about eight months after I graduated. The cause is close to my heart, as I am a person with a hearing impairment who uses a hearing aid. It was my first permanent job out of law school, although I had arranged a temporary job at a mid-sized law firm while I was studying for the bar and searching for public interest employment, which I know would be difficult to arrange now. Since then I have had multiple careers in one, participating in all aspects of my organization’s work over the course of twenty-five years at DREDF. I have helped design and run intensive disability rights training programs. I represent people with disabilities and parents of children with disabilities in litigation. I am involved in policy development, legislative work, and regulatory comment submissions. I have primary responsibility for DREDF’s amicus work, and I provide disability civil rights advice to attorneys and advocates who are from around the country. I have had various administrative roles, serving as DREDF’s managing director from 1992–1995. I also had an adjunct faculty appointment at Boalt from 1999–2008, where I was a co-instructor for the Disability Rights Law Seminar.

Currently, I am the director of DREDF’s California IOLTA Support Center Program.[5] In that role I provide disability civil rights expertise and advocacy support to frontline legal services offices throughout California. I am actively involved in legal services collaborations, and from 2003–2008 I served on the Board of Directors of the Legal Aid Association of California (LAAC), which is a statewide organization representing California IOLTA-funded offices.

 

SG: Great, thanks. Amanda Goad, from the ACLU LGBT and AIDS project.

 

AG: Thanks, and thank you for having me. I’m a staff attorney with the LGBT and AIDS Project of the national ACLU. Lenora will be talking about the ACLU as well, but we are the nation’s oldest and largest civil liberties organization, founded in 1920. The ACLU has been doing some form of LGBT work since 1936 when the ACLU of Massachusetts took on the defense of a Boston production of Lillian Hellman’s The Children’s Hour, which was being censored for its lesbian plotline.[6] In 1970, the ACLU of Minnesota took on the first freedom to marry lawsuit in the United States.[7] And in 1986, largely in response to the Bowers decision,[8] the LGBT and AIDS Project was established as a formal entity within the ACLU, with one purpose being to form a new strategy around taking down sodomy laws and perform the other advocacy that was needed to follow on those sodomy law victories, and another purpose being to address the AIDS crisis. And then of course, this past summer, we won at the Supreme Court in the United States v. Windsor[9] case, striking down Section III of the Defense of Marriage Act.[10]

Looking at the LGBT and AIDS Project specifically, we pursue impact litigation, policy advocacy, and legislative work around the country on behalf of lesbian, gay, bisexual, and transgender individuals, and people living with HIV. Through our affiliates and chapters, the ACLU has a presence in every state, and that helps us to be on the ground as part of legislative and policy coalitions as well as to find out about affirmative litigation opportunities and defensive litigation needs. Currently, although the marriage work is getting a great deal of attention right now and it’s a very exciting time for that work, that’s by no means all of what we are working on. This past week, for example, I was in Alabama for settlement proceedings in a case regarding Alabama being the last state to segregate its HIV-positive prisoners within the state prison system.[11] I also have a particular personal interest in advancing the rights of transgender and gender non-conforming people, and it’s a very active and exciting time for that work at the ACLU and across our movement.[12]

 

SG: I’ll just add, having done LGBT work since I graduated in 1990, people sometimes say, “Well your work is getting close to being done, right?” [Laughter] Next is Camille Holmes, who is from the National Legal Aid and Defender Association.

 

CH: Hello everyone. While I grew up in Memphis, Tennessee, I now live in Washington, D.C. and work at the National Legal Aid and Defender Association (NLADA). NLADA, founded in 1911, is the oldest association for legal services and public defender organizations in the country.[13] Our members are organizations that provide free and low cost legal services to people who are very poor, usually at 200% of the federal poverty line or lower.[14] Half of our association focuses on indigent defense; the other half focuses on civil legal services. We also have members who are clients of legal services organizations and members of their boards of directors. For all of our members we promote good governance, good leadership, and good management, and we work to ensure fully funded, high-quality civil legal aid and public defender programs in all fifty states, the District of Columbia, and the territories.

For today’s panel I will focus primarily on civil legal services organizations. NLADA has about 400 civil legal services nonprofit organization members from across the country.[15] NLADA lobbies Congress for increased funding for legal services at the federal level and works with our partners to expand funding at the state and local levels. Legal services organizations are primarily independent nonprofit organizations that provide services across a wide range of substantive areas—housing, employment, domestic violence, health care, public benefits, family law, foster care, school discipline, land use, etc.[16] Federal funding for legal services began as part of the War on Poverty through the Office on Economic Opportunity (OEO).[17] The range of funding sources include federal funding from the Legal Services Corporation (LSC), other federal funding streams like the Violence Against Women Act (VAWA) and the Older Americans Act, state funding from Interest on Lawyers Trust Accounts (IOLTA), state appropriations, state and local filing fees and fines, individual contributions, and foundation grants.[18] LSC provided $316 million in field grants to fund 134 civil legal services nonprofit organizations in fiscal year 2013.[19] This is down from $322 million in fiscal year 2012,[20] $378 million in fiscal year 2011,[21] and $395 million in fiscal year 2010.[22] IOLTA funding is generated from the interest that accrues on thousands of low value and/or short-term bank accounts held in trust for lawyer’s clients in every state. The pooled funds generate millions of dollars that is then granted to worthy causes, including legal aid.[23] Since it is dependent on interest rates, IOLTA funding has plummeted down from $371 million in 2007 to $93.2 million in 2011.[24] To fully understand the crisis levels of funding facing legal services programs, add to these funding reductions sequestration, budget cuts at the state and local levels, reapportionment of funding based on changes in census numbers, and the greatly increased numbers of eligible poor people due to the economic downturn.[25]

In this climate we are trying to help funders and federal agencies understand what legal services lawyers do and why it is important: often the health benefit that you need, or the education outcome that you need, or the housing outcome you are seeking requires the intervention of a lawyer.[26] We are educating funders and community partners about how you can use the law to get basic services or meet basic needs. At the same time we are educating lawyers about the need to partner with non-lawyers to advance social justice.

Personally, I do anti-racism and anti-poverty work, and I help people think about the intersection between those two.[27] Through my work, I try to facilitate the conversation within the progressive community about how we link all of our various “struggle identities” and develop an intersectional approach that reinforces one another.

 

SG: Thank you, Camille. Now, Lenora Lapidus from the ACLU Women’s Rights Project.

 

LL: Hi everyone. I’m the director of the Women’s Rights Project at the ACLU, and I came to law school—like Suzanne and at the same time as Suzanne, we have a few 1990s up here—not only to do law reform but really to do women’s rights law reform. The summer after my first year I was an intern at the ACLU Women’s Rights Project and little did I know that twelve years later I’d be back as the director. I’ve now been there for twelve years and it’s been wonderful. The Women’s Rights Project was started in 1972 by Ruth Bader Ginsburg and she directed the project for basically the decade of the ’70s.[28] She wrote the first brief in Reed vs. Reed,[29] actually in ’71, before we were formally started, which established constitutional equal protection for women. Today our top three priorities are economic justice, educational equity, and ending violence against women. And one of the things that we’ve been doing that is novel is bringing in international human rights strategies and law into the advocacy that we do.[30]

 

SG: Thanks, Lenora. And Nancy Ramirez from the Mexican American Legal Defense and Educational Fund.

 

NR: Good afternoon everybody. It’s really an honor to be here with such a distinguished panel. I work for the Mexican American Legal Defense and Educational Fund. It’s a national Latino civil rights organization and the only national Latino civil rights organization that litigates. It’s been around for forty-five years, since 1968. We have offices in Sacramento, Chicago, San Antonio (where we were founded), Washington, D.C., and Los Angeles, our national headquarters, where I work. MALDEF does impact litigation in a number of areas: voting rights, where we strive to eliminate barriers to political participation and enhance representation in policy-making positions; employment, where we challenge discriminatory employment practices including securing the right to safe and fair working conditions and the right to hire and promotion; immigrants’ rights, where we work to promote and preserve the right of all Latinos living in the United States to be free of unjustified discrimination on the basis of actual or perceived immigration status; and education, where we work to promote the educational advancement of the Latino community through securing equal access to quality education. One of our landmark cases is Plyer v. Doe,[31] the U.S. Supreme Court decision that gives undocumented immigrants the right to a K-12 public education.[32]

We also do legislative policy work. MALDEF’s legislative work is directly linked to our litigation. We work on developing policies to fill gaps that our litigation has not addressed. In addition, MALDEF has a parent education program that teaches immigrant parents how to navigate the education system in order to advocate on behalf of their children. I am the Western Regional counsel, which means that I am responsible for the region that encompasses the Ninth Circuit, but I primarily focus on California and Arizona.

 

SG: Can you say just a bit more about your time at MALDEF, since you have worked there at two different points in your career?

 

NR: Sure. I am on my second tour of duty at MALDEF, having spent five years at the organization as a staff attorney in the 1990s. In between my first and second stints at MALDEF I did direct legal services for six years at the Los Angeles Center for Law and Justice. Having worked in both legal services and impact litigation, I have seen the benefits and disadvantages of both strategies for law reform. Working in direct legal services, you have a lot of client contact and develop close relationships with your clients. You also can see the impact of your work on your client’s life—for example, securing a restraining order against an abusive partner or reinstating government benefits that allow someone to live in dignity. Plus, cases are resolved more quickly in legal services than in impact litigation, where cases can go on for up to ten years or more. On the other hand, in impact litigation you are touching thousands of people. You are invalidating discriminatory statewide laws or keeping elected officials accountable for their actions. While it takes longer to resolve impact cases, when you are successful you reach large segments of the population and send a powerful message to the wrongdoer. I have concluded that both direct legal services and impact litigation are equally effective tools for social change. Both strategies impact people’s lives in powerful ways.

 

SG: Thanks, Nancy. I was talking to somebody earlier today about organizing this panel on the Front Lines of Law Reform, and she asked, “What’s that? What’s law reform?” That’s really our next question—what is law reform? We could talk for days about this question, of course, including in the conversation many, many people in this room who have worked or are working as law reform lawyers of one sort or another. But within the time constraint of the gathering, each panelist will speak just briefly about what she thinks is law reform. I have asked them each also to illustrate, if they can, with an example. Lenora, why don’t you start us off?

 

LL: To me, law reform is using the law to bring about social change. It is seeking to address a problem using a wide range of tools. At the ACLU, we engage in litigation. But whenever we decide to bring a case, we always do that along with policy reform and communications. Pregnancy discrimination is an example of a problem that we’ve seen out there that just seems to be intractable. It has been thirty-five years, at the end of October, since the Pregnancy Discrimination Act[33] was passed, and yet we still see women being pushed out of jobs when they become pregnant, sometimes still fired on the spot.[34] And so we have been bringing litigation—filing charges with the EEOC—but at the same time drafting new federal legislation—the Pregnant Workers Fairness Act[35]—to explicitly say what we thought the PDA said, which is that you must treat a pregnant woman the same as any other worker who has a similar capacity or incapacity and provide necessary accommodations.[36]

In addition to the federal legislation, we’re working in various states to draft and advocate in support of state bills to provide this protection. [37] Along with all of this, we also use communications strategies. And I think that one of the things that we’re continually adapting is trying to use new tools in communications like social media, using Facebook and writing blogs, in order to engage younger folks and really try to continue to build the movement for women’s equality more broadly.

 

SG: As we continue across the panel to think about this question of what is law reform in various fields, I will ask all of us in the room to be thinking, too, about how much of what law reform lawyers are doing matches up to what any of us learned in law school. Nancy, since you have a different focus in much of your work, why don’t you go next?

 

NR: My sense of law reform is using the law to make social change. MALDEF has been very actively engaged in that by challenging the many anti-immigrant measures that have become law around the nation. As the demographics are changing and the Latino community is becoming a greater proportion of the United States population,[38] there’s a lot of backlash. Some of this backlash has resulted in discriminatory anti-immigrant local ordinances and statewide laws. For example, some cities, such as Farmers Branch, Texas, have passed ordinances that prevent landlords from renting to undocumented immigrants.[39] The Farmers Branch ordinance required prospective tenants to obtain a license from city officials who were to determine the tenants’ immigration status. MALDEF and the ACLU successfully challenged the ordinance as unconstitutional because it conflicted with federal immigration law.[40] In other words, we’ve used the law to enforce the laws that are on the books.

Another example of using the law to enforce constitutional rights that were violated as a result of the backlash against immigrants is the racial profiling lawsuit against Maricopa County Sheriff Joe Arpaio.[41] Last year a federal judge permanently enjoined Sheriff Arpaio and the Maricopa County Sheriff’s Office from conducting racially discriminatory traffic stops of Latino drivers and passengers to enforce federal and state immigration laws because this practice violated Latinos’ Fourth and Fourteenth Amendment rights.[42] One more example is MALDEF’s challenge of anti-day labor ordinances that focus on workers congregating on the street to seek work. MALDEF was a pioneer in challenging these ordinances using the First Amendment’s guaranteed freedom of speech, and First Amendment challenges of anti-day laborer ordinances are examples of how we’ve used constitutional protections to expand protections for some of the most vulnerable people.[43]

 

SG: Thanks, Nancy. Linda, why don’t you jump in next?

 

LK: Certainly, using law as a tool of social change is integral to the disability rights movement. Through the centuries, and even to this day, there has been a medical and individualized model of disability.[44] Disability has been viewed as an individual problem to be fixed, something that has historically excluded you from the mainstream of human life and of human rights. The central organizing principle of the disability civil rights movement is the idea that, regardless of the specific impairment you may have, there’s a common societal reaction—an impulse towards segregation and exclusion.[45]

It’s very much what David Wilkins was saying at lunch: to become a full and equal participant, you first have to get the door open. The challenge, of course, is to find ways to get over the threshold. To that end, part of law reform involves using the tools that have already been gathered and building on already established foundations and principles. Certainly in that regard, the disability rights movement references the achievements of the racial and gender civil rights movements that have gone before. Measured by the chronology of our key statutes and legal victories, disability rights can be viewed as being about twenty years behind the racial and gender civil rights movements.[46] Among the movements, there are many parallels in the use of consciousness-raising, grassroots organizing, and, of course, legal constructs.

But at a very fundamental level there’s an added complexity to disability rights. What does it mean to “open the door” if the door has steps, and the doorbell is auditory only, and the welcome mat is off-gassing and exacerbating your lupus? The practical issues are thus uniquely nuanced, and to be effective, the legal entitlements and defenses must take that into account.

But the law must also move in tandem with broader efforts to change attitudes and culture—to address the “accumulated myths and fears” that drive the adverse societal reactions to disability. While apparently apocryphal from an etymological perspective, there’s an old canard circulating within the disability community that the word “handicap” derives from the concept of persons with disabilities cap-in-hand begging, because they are unable to otherwise earn a living or take care of themselves.[47] And I’ll just share one anecdote that illustrates how deeply embedded that idea of helpless dependence is:

Back in the 1980s one of my colleagues, who uses a wheelchair, had been traveling in connection with DREDF’s development activities, engaging in a series of in-person meetings with foundation representatives and other potential funders to discuss why DREDF’s work was worthy of support. She was professionally dressed, waiting in a public transit space to connect with another colleague. She had bought a cup of coffee and was hanging out, off to the side of the pedestrian way, much like anyone might do when arriving first at a designated rendezvous location. And she suddenly found herself splashed with coffee because someone had walked by and thrown a quarter into her coffee cup. She looked up in surprise, and at the same moment, this person realized, “I’ve made this very grave mistake by assuming that someone using a wheelchair with a cup in her hand needs a quarter.” The overall experience was of course dismaying, although as my colleague likes to say, it was the only fundraising money DREDF made on that trip. So on occasion erroneous stereotypes offer modest compensating benefits.[48]

 

SG: There’s a terrific book by a disability studies expert and advocate, Simi Linton, who asks the question: I am in a wheelchair and want to go into the building—do I need a doctor or a lawyer?[49] Building on her point, it seems to me that in different ways, all law reform lawyers are thinking about access: How do we open up the law? How do we change the law, as a tool to create a more accessible society? What are the many fields in which we need to work? In fact, that’s a great segue to you, Camille, to talk about your different angle on law reform.

 

CH: I think so as well. At NLADA, I work with organizations that do similar kinds of law reform to what has been described. Some bring class action lawsuits. Some do policy reform. Some engage in other multi-forum complex work, and others do all of the above. I also work with organizations that, due to the kinds of funding they receive, are restricted from pursuing certain kinds of advocacy.[50] Legal services programs funded by LSC are not allowed to bring class action lawsuits, represent most undocumented immigrants, represent prisoners, or, until recently, receive attorneys’ fees.[51] The restrictions are highly politicized and sometimes have a chilling effect on organizations such that they are less likely to pursue controversial or impactful work, even when the regulations do not prohibit the work. In that frame, law reform can mean changing the way legal aid advocates and programs think about their role. When you learn to practice law under restrictive conditions (or you’ve practiced the same way for a long time), sometimes you can forget what is possible. Some of what we do is help advocates understand that they can pursue law reform, i.e. work that has a broader impact beyond their individual cases and creates lasting results for clients and the communities in which they live.[52] They probably shouldn’t say too loudly that it is law reform, though, because federal funding for legal services is a big political football. For some reason there are people who don’t want federal funding used to provide legal services to people who are poor. But shifting the lawyer who’s thinking about that individual case to a mindset where they are saying, “How can I use this individual case to change the law for similarly affected people?” is one way to expand the reach of our limited resources. For both restricted and non-restricted programs, law reform includes moving the individual advocate and the program to an approach that incorporates a broader view. Another part of that broader view is seeing civil rights and racial justice as a critical part of the work. So often, clients don’t even know they are being discriminated against. Lawyers on the ground must be prepared to look for civil rights violations and either pursue those cases or pass them to advocacy organizations with more resources or better expertise. Applying systems thinking and a racial and economic justice analysis at the local level can lead to law reform.

There’s an organization I love in Northern California, called Legal Services of Northern California.[53] They work with many community-based organizations, and because they are well-known and respected for their community-based work, people came to them and said, “You know, someone is offering us money for easements to access our land. They’re going to give us money and we just want to do something with this money for the community.” Legal Services of Northern California did not stop with the request to develop some strategy for the money that would be coming into the communities; they dug deeper. It turned out that the easements would allow a company to store natural gas a mile or so below the homes in this predominantly African American working class community. They did more digging and uncovered natural gas explosions in other marginalized communities. This law reform-oriented organization thought expansively about their role as legal services providers and developed creative strategies for protecting the community against this impending environmental disaster. They prepared and presented testimony before the local land use council and used the environmental impact report process to bring significant media attention and public engagement to the issue.[54]

Their strategies (1) recognized there was a racial inequity involved and engaged the issue strategically, (2) built on the strengths of the community and amplified their voices (rather than using lawyers as the spokespeople and saviors),[55] and (3) did not rely solely on a legal victory (which considering the venue was hardly assured) but used media, data, and public pressure partnering with organized communities. This is not work that all legal services organizations necessarily usually do and it is not “inside the box” lawyering. This program pushed the envelope in terms of the impact they could make.

 

SG: Thank you, Camille. I teach a class in advocacy theory and practice, and one of the articles I teach is by Julie Su, who graduated right around when many of us on the panel did. She writes about advocating on behalf of Thai and Latino garment workers and makes an important point about how sometimes the tools you learn as a lawyer and the professional norms you absorb constrain you from doing things that you ought to do to get the work done.[56] Put another way, as we each spend more time in practice, do we get more conservative but perhaps at the same time more creative in the kind of tools we use? Amanda, you’re the relatively newest lawyer on our panel, so can you weigh in a bit about your view of your role as a law reform lawyer?

 

AG: Sure. From an LGBT movement perspective, like Linda said, we’re doing a lot of the same work in terms of assessing what is law reform, what are the best ways to achieve it, and what strategies help us move legal rules forward on behalf of a social movement. We’re just at a very different place by most measures of formal equality. One could track the progress of a legal movement many different ways, but one way would be based on federal statutory protections against discrimination in employment and housing. That was a goal achieved in the 1960s for some civil rights movements in this country,[57] or in subsequent decades for others,[58] but we in the LGBT movement are still working on it.

Sometimes it feels as though LGBT work has been a victim of its own success. A recent poll reported that eight out of ten Americans think it’s currently against federal law to fire someone for being gay.[59] That’s great that social acceptance has reached that level, but that’s not helpful for passing the ENDA statute that we don’t yet have, and very much need.[60] So, as time has gone by, I think that the tools in the tool kit that are really available to the LGBT movement have evolved drastically. Some of that is a product of the social acceptance that has come through other channels, partly through deliberate public education work, but often just through personal experiences and personal interactions. When people are living openly L, G, B, or T lives in their communities, that has consequences that you ultimately see working their way through the political and legal systems such that legislators and judges are more able and willing to recognize LGBT people’s shared humanity and therefore entertain and credit equality and rights arguments that often weren’t taken seriously awhile back.[61] More specifically, within the LGBT movement, as the culture has changed pretty dramatically in the course of my lifetime, we’ve started to have some interesting conversations about what are the appropriate tactics for making change these days. For the last two decades, there were a lot of ballot campaigns aimed at either taking away state and local discrimination protections for LGBT people or verifying yet again that same-sex couples in a given state would not have the right to marry.[62] And one of the mantras of the opposition in each of those campaigns was that it’s never appropriate to put civil rights to a popular vote.[63] But if you fast forward to today, I’m now doing some work with a group called Oregon United for Marriage.[64] Folks in Oregon have become very excited about going to the ballot in 2014 to repeal their state constitutional amendment that excludes same-sex couples from marriage[65] because folks in Oregon who support marriage equality are now confident they can win that fight.[66] And if it is the clearest, surest, quickest path to marriage equality for Oregonians, these days it seems entirely appropriate to call that kind of a popular vote on a civil rights issue and bring about what you might call “law reform by direct democracy.” That reflects a shift not only of messaging but of more conceptual framing as to what’s reasonable and what’s appropriate to move the law forward.[67]

 

SG: So we’ve talked a bit about the organizing principles by which we work or by which our organizations work. We have also talked some about the array of tools used for law reform work, including litigation, public policy advocacy, legislative work, grass roots organizing, and media advocacy. There are other big questions, too. One, which we’re not going to jump into right now but I want to flag for further thought is: Who is the client? Who is the client for whom we are doing this work and how are we accountable?

What I really want to ask you to focus on now is this: How do you gauge your impact? How do you know the effects of what you are doing? In a human rights panel at this conference, people talked about how effectiveness measures are influenced by what funders want. How many people have sat in your meetings? How many people have taken this training? That’s not really the question I’m asking. The question here is more about, when you consider what you’re doing each day, and you think about either the cases you’re winning or the legislation you’re getting passed or not getting passed, how do you gauge your success?

 

NR: Well obviously when you have a successful outcome in your case and you’re able to enjoin an illegal practice like racial profiling or overturn an unconstitutional law, clearly that’s one way that you can gauge your impact. I think, in addition, even if you file a lawsuit that may not be successful, you’re holding others accountable for their actions and you’re sending a message that they’re being watched and that they cannot get away with what they are doing. I think that’s an extremely important message to send. But also, I think for those of us who work in these areas, sometimes we just give a voice to people who don’t have one. As an example, I had the great fortune to go to trial against Sheriff Arpaio last year.[68] One of the victims of racial profiling was a young woman who had been five months pregnant when she was pulled over by a sheriff’s deputy. The deputy pulled the woman’s arms behind her back, gripped her wrists very tightly, and then shoved her belly-first into the side of her car multiple times. He then threw her into the back of the patrol car. She hit very hard and bruised her tailbone. She was very concerned about her fetus. Her fetus was okay, but he had gripped her so tightly that she had bruises in the shape of his fingers on her wrists and arm. The deputy claimed he pulled her over for a broken license plate light, but there really was no reason for him to pull her over, and the charges were eventually dismissed. This woman had tried multiple times to file a complaint with the sheriff’s department. Nobody took her complaint. The first time she was able to tell her story was during the trial. I had the great privilege of putting her on the stand and giving her the opportunity to tell her story, and even that has a huge impact in giving people who feel powerless an opportunity to share their story.

 

SG: Linda?

 

LK: I have the great good fortune of working in a field where I can literally see our success in the streets—as well as in the kinds of ceremony that help to confirm the scope of our progress.

I began practicing slightly before the passage of the Americans with Disabilities Act (ADA),[69] which is certainly the most visible and (correctly) celebrated federal disability civil rights law. Though it is not the earliest, like many ostensibly overnight successes, it was the result of many, many decades of work, and it was carefully built on a foundation of previous federal disability rights laws.[70] But that timing gave me the privilege of going to the South Lawn of the White House for the ADA signing ceremony on July 26, 1990. It was incredible to be in that crowd, to feel the warm reception that was being given in the halls of power to the people with disabilities who were legion on the South Lawn.

But I think the biggest impact that I felt specific to the ADA was on the twentieth anniversary in 2010, when I was staffing the media response in our Berkeley office. Because many of my colleagues were in Washington, D.C. to participate in other anniversary events, I was commissioned to go get the celebratory cake that our Berkeley staff was going to share. I parked my car a couple of blocks from the bakery, and I went down a curb cut, and up a curb cut, and across the little surfaces of truncated dome detectible warnings, which alert people who are blind as to when they’re about to go into the street. I pushed the automatic door opener to get into the bakery. Unfortunately, we didn’t do so well on the diabetes front that day (it was a rich and sugary cake), so clearly the journey towards full inclusion needs to continue. But it was really compelling to me to see the path we had forged with the law in the streets.

 

SG: Camille?

 

CH: Okay, I have two different impact stories to tell. The first relates to a current discussion within the legal services community about measuring impact. I’m just going to say the tiniest word about that because it is exactly what you said you didn’t want us to talk about, that is, how do we let federal funders, state funders, corporate partners, and law firm partners know that when you provide legal services to poor people, you are actually increasing the economic value in that community—that there’s a social return on your investment.[71] This is calculated by valuing the money recovered during the course of the case from a predatory lender or unemployment benefits, the cost of services that no longer need to be provided, and the longer-term benefits of a child getting an education or a person getting a job. So that’s one conversation that’s going on vigorously because the fear is of course that once you put that measure together, that will become the compliance standard. So that’s impact story number one.

The second impact story I’ll tell is about my own journey into the legal services community. I didn’t say before, but my journey was a little more circuitous than the journeys of others on this panel. I came to law school with vague notions of equality and justice. I was active in progressive causes and wanted to make a difference, and at the same time I looked at my overwhelming debt and decided to go to a law firm so I could pay down that debt. I did that and worked in corporate transactions and made my way into the nonprofit community through pro bono. One of my pro bono projects was with the Southern African Legal Services and Legal Education Project (SALSLEP), a small nonprofit created by Lloyd Cutler to serve as a bridge between the American Bar Association and South African anti-apartheid lawyers during the height of apartheid. I was privileged to represent the nonprofit at meetings with the Legal Resources Centre, a key anti-apartheid organization experiencing the challenge of having much of their leadership promoted into government and onto the Constitutional Court. Watching the legal services advocates at the Legal Resources Centre, I gained an appreciation for real community-centered lawyering.[72] I worked with SALSLEP for a few years and then turned my focus to domestic legal services, first at the Center for Law and Social Policy (CLASP) and now at NLADA.

Over the last twelve years or so, between CLASP and now NLADA, I have built bridges between social service organizations, civil rights organizations, and racial justice organizations. I have advanced concepts of community problem solving and racial equity and helped people think about their roles in the context of a larger movement: How are our struggles connected and how can we work together to address the root causes of poverty and exclusion? Even law reform—it’s more like life reform. How do people actually get what they need? How much of that depends on lawyering and how much of that depends on connecting differently with the issues and each other? When is the key to this reform changing the law, when is it changing the way the law works, and when is it changing the experience of justice?

By pushing this connection between anti-poverty advocacy and anti-racism advocacy, I have tried to get people in our community excited about the fact that, from my perspective, in order to do anti-poverty work you have to do anti-racism work because racism is one of the things that causes and impacts one’s experience of poverty. Not the only thing—you also have to do anti-sexist work, anti-ablism work, and all down the line—but if you are working in a country that has racialized our access to resources (from welfare benefits to community investment dollars to prime loans and so on), you have to understand race, racism, and racial justice advocacy strategies in order to be effective for and with poor people, especially poor people of color.

This spring, I did a survey of legal services organizations and advocates and asked them about their view of racial justice advocacy in the legal services community.[73] On a positive note, the overwhelming majority believe that legal services programs have a role to play in addressing systemic racial bias, and half believe they are doing some type of racial justice advocacy.[74] That’s exciting. On the other hand, when asked to agree or disagree with the statement “addressing poverty will address racism,” 42% agreed with the statement and another 24% had no opinion.[75] The racial justice literature of the past decade states affirmatively that racism must be addressed directly—through analysis of the problem, in the ways we communicate, and when developing remedies to racialized problems.[76] So we all have a ways to go, but the good news is that there is more of a fluency and a willingness to engage on those issues of community problem solving, racial justice advocacy, and the nexus between anti-poverty and anti-racism. The key is developing our capacity, competency, and fluency with these nuanced and complex concepts. We are not currently prepared but we can get there.

 

SG: The ways we measure impact turn out to be quite interesting, as our panelists have been discussing. It’s partly through traditional lawyering—that we won this case, we got this piece of legislation passed. But it’s also very much through measuring changes in the public conversation and seeing the absorption within the broader society of the vocabulary of social change and law reform.

This prompts the question, which we’ll get to in a few minutes, of how we work across issues, which can be a tremendous challenge while also offering great opportunity. But before I ask Lenora to talk about impact, let me just offer my anecdotal observation that many Harvard Law School women have played a central, leading role in shaping and impacting this field. [We then learned, by show of hands in the audience, that many in the room considered their work to have a law reform dimension across each decade of graduates.] We are an impressive group! [Applause.]

So, back to impact. Lenora?

 

LL: I have an example of a time when what you think is the impact may not actually be the impact. The ACLU has been fighting for decades for women’s equality in the military. And over the years, starting in the ’70s and later, we did accomplish many goals and made a lot of progress.[77] Still, women were excluded from combat. We decided finally the time was right and in November of 2012, we filed a lawsuit to strike down the combat exclusion.[78] We filed the suit on behalf of the Service Women’s Action Network (SWAN) and four individual women who had been in combat in Iraq and Afghanistan but were not officially classified as being in combat. About three days before the Department of Defense’s answer was due, they announced that they were lifting the combat exclusion. At first we felt like celebrating. This seemed like a quick victory. However, although the Department announced it would lift the ban, positions remain closed and women continue to be excluded. Accordingly, the case is ongoing and we are continuing to press the Department to fully integrate women into combat.

A second case that illustrates a similar point is that of Jessica Gonzalez, now Lenahan. I think many of you have probably heard of this case, which involved a woman who had a domestic violence order of protection. In violation of that order, her ex-husband came one afternoon and kidnapped their three children from the front yard. She called the police, asking them—begging them—to go after him. During the course of ten hours, she repeatedly requested police assistance. The police refused to go after him. Finally, the ex-husband drove up to the police station in Castle Rock, Colorado and opened fire. The police shot back. And when they looked in the cab of his truck, there were the bodies of the three girls, who had been killed. Jessica filed a lawsuit, and it went up to the U.S. Supreme Court.[79] The U.S. Supreme Court found no constitutional violation, holding she had no due process right to enforcement of her protective order.[80]

As I mentioned at the beginning, we’ve been using international human rights strategies in our work. Usually, one would think that going to the Supreme Court is the last step. However, we didn’t stop there. We filed a petition before the Inter-American Commission on Human Rights, and two years ago, we got this wonderful decision saying that the United States had violated international human rights obligations and that the government should take further steps to address domestic violence.[81] This was a major victory; however, for the last two years we’ve been trying to implement the decision and recommendations. We are having meetings with the Department of Justice, the State Department, and others in the federal government, trying to actually make this ruling real. So I think our answer to the question, “What is success?” is that a win is not the end. When you win a case or get a law passed, you must see it through to implementation and that can take a long time.

 

SG: To paraphrase what somebody said on an earlier panel— there is no finish line. It’s a process. Amanda?

 

AG: Well, I think, given the different place that LGBT work is in compared to some of these other movements, it’s a little bit easier to see visible impact. I see it even in little things— for example, there are still newspapers and news websites that occasionally run a picture of a U.S. soldier in uniform returning from a deployment and kissing a same-sex partner.[82] That’s perceived as news. And in a sense, it is, because until two years ago, that was an impossible thing under the Don’t Ask Don’t Tell regime.[83] But it’s also a very mundane, personal thing, that moment of reunion for a particular couple or family. And going beyond the very visible moments like those reunions, or the same-sex wedding photos that are so well represented in the news recently, I think a lot of the impact of our recent work and victories on LGBT issues manifests itself in things that are not visible, that are just everyday practices in people’s lives. Every time someone puts a same-sex partner onto employer health insurance, that is a pretty direct result of recent legal victories in this area.[84] Similarly, every time a transgender person is able to get a legal name change or change the gender marker on a driver’s license or a birth certificate, the ability to take those steps—steps critical for moving on into a personal and professional life in one’s new gender and identity—results from changes to the law that transgender people and our movement achieved not all that long ago. So in addition to the big litigation victories and the clients whom we serve directly and the press releases we issue about what they’ve gained, I think there are all sorts of smaller processes playing out around the country that are traceable in large part to the successes we’ve had in recent years.

 

SG: Thanks, Amanda. I am now going to consolidate a couple of additional questions and toss them out for our panelists, who can just take their pick of what they would like to respond to.

One of the questions is, if you were going to change something about law reform work that you do or that your organization does, what would it be?

Another, perhaps related, question, which is an important one to me, concerns how organizations collaborate. Law reform organizations all collaborate with each other to some degree, with lawyers working in the private sector, and sometimes with government actors as well. But that is actually not the kind of collaboration I have in mind. Instead, I am thinking of collaboration across issues. Partly because I handled many amicus briefs when I was at Lambda Legal, I performed a study a while back of amicus brief filings in identity-based law reform cases.[85] It was always interesting to me that we would go to the women’s rights groups to write the women’s rights briefs and the race-focused groups to write the race-focused briefs. Nobody at that time wanted to come to the gay rights groups because we were so marginalized that to get the gay rights advocates on your side was considered to be terribly helpful.

So the question, again, is, “How do we work across issues?” Some of that work is done successfully, some of that is not. Certainly in the social movements more generally there is plenty of collaboration. But when you look at the legal defense fund world, at the law world as distinct from the political world, you do not necessarily see a lot of cross-issue organizations. And when you think about people who have multiple aspects of their identities that trigger discrimination or harm or violence of some sort, there is a sense that they have to pick one organization to go to. Once they get there, that organization is likely to look at the issue or case through the lens of the identity in which the organization specializes. While its analysis will not disregard all of the other aspects of the potential client’s life, there will almost certainly be a lead identity issue.

So now, each panelist will speak to something from among this set of topics. Linda, do you want to start us?

 

LK: The collaboration issue is certainly a critical question. But again, I think that the disability rights movement just by its nature is uniquely positioned to understand and draw upon such cross-references. The organizing principle of disability civil rights is that people with seemingly quite disparate different disabilities nevertheless have a common cause. That really is a remarkable idea. It’s one of those ideas that seems commonplace now, but even as much as twenty years ago, it was a very dramatic idea. For example, think about my hearing impairment (which requires my accommodation of being seated on the right side of this panel, and some lip reading and various other personal tricks I use). What does that have to do with my colleague with her coffee cup, using a wheelchair for mobility in a public space? Or another colleague who needs an insulin injection that might be off cycle from the assigned trial schedule? Or the person with a mental health disability who may need also need a different schedule because of medication side effects? It takes some imagination to understand that those circumstances and needs have something in common. And at this point, the disability community has a lot of practice with that.

But it also adds yet more complexity when the disability community is trying to manage all of disability complexity as well as adding in other things. This concept of dual diversity is very compelling to my office right now, though we certainly don’t have it fully figured out. To one way of thinking, there’s the ever-present dilemma of, “What’s the lead?” Is someone a “person of color with a disability,” or a “person with a disability of color”? Is someone a “woman with diabetes,” or a “person with diabetes who’s a woman”?

Alternatively, there’s a question as to whether there should be a “lead” at all. I am profoundly committed to the principles of civil rights, having spent my career dedicated to its promises and possibilities. But I do think that as a broader progressive community, we need to consider whether perhaps the era of civil rights, of splintering us into our diversity, has now run its course. It’s been a powerful vehicle for justice over the last fifty years, but I’m not sure it’s going to carry us through the next stage of the journey. I think that’s a question that we all need to think about. Maybe the time has come for us to fold all those identities back together so that we’re really focused on advancing humanity and human rights and less intent on culling out and protecting specific diversity identities.[86]

 

SG: Amanda, do you want to jump in?

 

AG: Sure. I’m not shilling for the ACLU in giving this answer but I do think that we are an example of an organization that does a relatively high amount of cross-issue collaboration just because of being a multi-issue organization. Out of the fourteen issue-based projects at the ACLU right now,[87] most of them are based in New York and it’s relatively easy for us to get together in person, or of course conference technology also works, and hash things through.

My favorite little example of that is an intake that we got about an incident in Tennessee where a principal of a public high school apparently just sort of reached her breaking point of personal frustration and called an assembly that was really a sermon. She decided to preach to the senior class, and to paraphrase roughly what she said to them, she said, “You all need to accept Jesus as your personal savior, and I’m particularly concerned about the girls who are having babies and the kids who think they’re gay. None of that is acceptable and I won’t have that kind of sin in my school.”[88] So we ended up getting together a sort of strike force from different divisions of the organization—lawyers from the ACLU of Tennessee, the LGBT Project, Lenora’s Women’s Rights Project, and the Program on Freedom of Religion and Belief—and we collaborated on an epic demand letter about all the things that were wrong with that assembly. We sent it, we publicized it,[89] and within two hours, that principal was out of a job.[90]

Of course, it’s not always that smooth to agree on the right approach to a situation or to carry it out, but I do think that we have somewhat of a track record of effective cross-collaboration within the ACLU. We certainly could stand to do more of it. On the flip side, in some cases projects actually act as a check on one another. For example, we LGBT Project folks can sometimes get a little too enthusiastic about bullying and how we’d like to crack down on that problem in the public schools. There’s another project that focuses on First Amendment issues and our colleagues there have been helpful in pointing out the civil liberties concerns around regulating student speech, particularly student speech that’s not strictly in a school context. There are also some ACLUers working on the broader problem of the “school to prison pipeline” and the funneling of students, particularly students of color, into the criminal justice system,[91] and they have provided very important feedback on some of the proposed strategies for regulating bullying, aiming to prevent strict and highly discretionary bullying laws from feeding more students into that pipeline. So it’s a strength for us to be able to confer internally about what debates and cases we choose to take on and also to set out, as best we can, substantive positions on legal issues that work for everyone, meaning they take into account all the competing civil rights and civil liberties interests that may be in play.

 

SG: I wonder, how many of us in law school even ever drafted a sample demand letter much less an epic demand letter? [Laughter.] Camille?

 

CH: Sure. I have lot of thoughts. Infrastructure is definitely important. The fact that the ACLU has a number of different projects makes it more likely, or at least possible, that it will practice some type of cross-issue collaboration. I think that it gets harder when you have organizations that are more narrowly focused, under-resourced, and facing high caseloads. But in both cases, within and across organizations and issue groups, we need to develop a practice of listening to one another, of telling each other our theories of change. I have theories about racial equity but I may not talk about them with my colleague inside my office. I talk about them with the people I’m reaching out to externally. We can increase the effectiveness of our advocacy across issues by building in that time to have the conversations about how racial equity is achieved, how women’s rights are advanced, and what we think about LGBT rights. We must also do this in a way that doesn’t bring up the “oppression Olympics.” That is, avoiding the conversation that sounds like, “No but you don’t understand, I have it worse.” “No, you don’t understand, we’re more oppressed.” We really have to find a way to move through the anger, pain, and frustration of, frankly, how bad the law is right now and how things are not where we would like them to be. Instead we must come up with positive strategies and positive communications among ourselves. Cultivating a practice of sharing our equity frameworks is one approach. Another is practicing equitable relationships interpersonally and within organizations. We excel at righting injustices on behalf of our clients, but I’ve been in social justice organizations and I’ve watched social justice organizations, and it’s amazing—you may not be familiar with this—but sometimes nonprofits don’t apply the same demands for justice and equity internally that they apply externally. [Laughter] I think this, too, gets in the way of the practice of a coherent anti-oppression framework that would support cross-issue partnerships within and across organizations.

 

SG: Lenora?

 

LL: I was going to tell how the ACLU has the multiple projects, but you’ve heard that already, so another recent example is even within the self-defined women’s rights organizations, we don’t always all work together. So last year, about a dozen of the national, state, and regional women’s rights organizations got together. The Ford Foundation brought us together to talk about whether there were ways that we could collaborate more effectively. We began working together to think about the core issues on which we might collaborate. The top issue was closing the gender wage gap, including how, as I mentioned earlier, pregnancy discrimination continues to play into that. June 10th, 2013 was the fiftieth anniversary of the Equal Pay Act,[92] and at the time, fifty years ago, women were earning fifty-nine cents to every dollar a man earned.[93] Today, on average, women earn only seventy-seven cents per male dollar.[94] And for black and Latina women, those figures are worse than for white women.[95] So we’ve been discussing how best to finally close this gender wage gap. There is also a whole workers’ rights movement that’s out there, and when we’re talking about equal employment opportunities and issues in the workforce, those silos shouldn’t exist. Therefore, one of the first things that we’ve been doing is trying to reach across those self-defined differentiated categories and say we’re all trying to reform things in the workplace, we need to work together to do that. So it is an ongoing struggle, but we’re working on it.

 

 

CH: Can I actually just comment on something that Lenora just did, which is one of those great practices that helps with building bridges? Lenora just sang an inclusive song. We all need to include in our messages, whether it’s a racial justice message or a women’s rights message, an acknowledgement that our various aspects of identity impact the way we experience any particular oppression. We can focus on workers’ rights or on women’s rights or on rights for people of color but we are not doing our job well if we don’t recognize and communicate clearly the intersectionality of the experience of oppression and the varied strategies and remedies required to enlist those affected and address their particularlized needs. We need to practice communicating in such a way that people can recognize themselves in the advocacy that you’re bringing forward—so it’s worker’s rights, it’s women’s rights, it’s women of color. And all are essential.

 

NR: So, twenty years ago, when Suzanne was at Lambda, she called me to ask if MALDEF would sign onto an amicus brief—I believe it was the anti-gay constitutional amendment case in Colorado.[96] Though we accepted, MALDEF’s work was very “silo-ed” during this time, and this type of discrimination case did not fall squarely into our program areas. We joined a number of amicus briefs in support of gay rights, but they were considered to fall under the “access to justice” catchall. I’m happy to report that today we have an attorney who focuses on the intersection between LGBT and Latino race discrimination.[97] I think that’s a recognition of the diversity within our own communities, that clearly there’s a need to look at the various identities our clients have. We all have multiple layers to our identities—we’re women, we’re disabled, we’re lesbian, we’re Latina. This new program is a recognition of those various layers in our identities.

 

SG: In closing, we can see that law reform lawyering covers a vast territory, with challenging questions and interesting opportunities ranging from staffing and messaging to meeting and getting together, to being aware of how to highlight one aspect of a client’s life while not disregarding the rest of the client’s identity. In the academic world, we talk a lot about institutional design. The concept has some value for the ways we think about law reform too, about how we design ourselves institutionally. By this I mean not just the formal ways, although those are important—where the office is located, how we create communications pathways, and more—but also how we think, conceptually, about the work we do and the ways in which to bring about change most effectively. As we take many lessons from today’s rich conversation and carry them forward, we are, at the same time, setting the groundwork for many more interesting conversations and much more law reform to come.

 

 

 

 

 

 


[1] Sexuality and Gender Law Clinic, Colombia Law Sch., http://web.law.columbia.edu/sexuality-gender-clinic (last visited Mar. 11, 2014), archived at http://perma.cc/RUP8-GZUP.

 

 

 

 

 

 

[2] DREDF grew out of the Berkeley Center for Independent Living (CIL), the world’s first community-based independent living center, which was established in 1972. Fred Pelka, The ABC-CLIO Companion to the Disability Rights Movement 60–61 (1997). By the mid-1970s CIL had launched the Disabled Paralegal Advocacy Program (DPAP), staffed mostly by volunteers. Id. at 100. In 1978, the DPAP transformed into the Disability Law Resource Center (DLRC), a unit within CIL that was supported by federal grants, including some funding from the Legal Services Corporation (LSC). Id.; see also infra notes 16–25 and accompanying text. The DRLC unit ultimately spun off from CIL to become the independent 501(c)(3) nonprofit DREDF. Pelka, supra note 2, at 100. More history as to both CIL and DREDF is provided in Pelka, supra note 2, at 60–62, 100–01. See also Disability Rights Educ. & Def. Fund, www.dredf.org (last visited Mar. 10, 2014), archived at http://perma.cc/D4W9-PFK5. Since 2010, DREDF’s Berkeley office has been housed at the Ed Roberts Campus, a state-of-the-art accessible building. See Ed Roberts Campus, http://www.edrobertscampus.org (last visited Feb. 22, 2014), archived at http://perma.cc/T7HW-LYEN.

 

 

 

 

 

 

[3] For more detailed discussion of specific federal disability rights laws, see infra text accompanying notes 45, 69.

 

 

 

 

 

 

[4] Federal special education entitlements were first put in place by the Education for All Handicapped Children Act of 1975 (EAHCA), Pub. L. No. 94-142, 89 Stat. 773 (codified as amended at 20 U.S.C. §§ 1400–1482 (2012)). Subsequently renamed the Individuals with Disabilities Education Act (IDEA), Pub. L. No. 101-476, 104 Stat. 1103, § 901(a)(1), it requires periodic Congressional reauthorization because it includes funding allocations to states to implement its mandates, see, e.g., 20 U.S.C. § 1444 (2012).

 

 

 

 

 

 

[5] DREDF’s program is part of California’s general Interest on Lawyers Trust Accounts (IOLTA) system, alternatively called Interest on Lawyer Account Funds (IOLA) in some states. Dating to the 1980s, IOLTA programs are now a mainstay of legal services funding throughout the United States. See Hillary A. Webber, Equal Justice Under the Law: Why IOLTA Programs Do Not Violate the First Amendment, 53 Am. U. L. Rev. 491, 495–502 (2003). The programs leverage unique aspects of attorney professional responsibility obligations to systematically fund civil law access to justice for low income communities and litigants. Details offered here are specific to California, but the same basic model is replicated in other states.

Pursuant to rules of professional conduct, attorneys are precluded from comingling funds; they are obligated to maintain a separate “client trust account” to ensure that unearned retainers, settlement or business funds in transit, and other client moneys, remain segregated from earned fees and general firm operating funds. Cal. Rules of Prof’l Conduct R. 4-100 (2008). Such accounts are maintained at financial institutions that pay interest on the principal. The interest attributable to any one client is often negligible or modest, as unearned retainers may be earned in a matter of weeks or months, and settlement or business funds may transit through trust accounts within a matter of days. However, viewed in the aggregate over time, there is sufficient principal in all attorneys’ collective trust accounts to generate millions of dollars in interest.

In California, as in other states, the California Legislature has specified that the collective “interest on lawyers trust accounts” generated by the state’s now 180,000 attorneys shall be used for the provision of legal services to indigent persons, seniors, and people with disabilities. See Cal. Bus. & Prof. Code §§ 6210–6228 (West 2003). Pursuant to this enabling statute, the Board of Governors of the State Bar of California is empowered to administer the IOLTA program. The Board created the Legal Services Trust Fund Program (LSTFP), which oversees the distribution of IOLTA grants.

Though IOLTA programs do not guarantee representation, they have nevertheless accomplished in the civil law context some of what the public defender system has accomplished in the criminal law context: they provide elegantly designed, systematic support to enhance access to justice for vulnerable communities and clients. However, the concept has come under attack. This attack includes constitutional challenges to the general structure of IOLTA programs. Challengers asserting Fifth Amendment violations crafted a two-step argument, asserting first that individual clients had a valid “property” right in IOLTA proceeds, and second that the appropriation of such property constituted an invalid “taking.” In 1998, the U.S. Supreme Court agreed that “property” was indeed at issue, but declined to address whether an unconstitutional “taking” was occurring. Phillips v. Wash. Legal Found., 524 U.S. 156, 172 (1998). First Amendment challenges have also been raised. See generally, e.g., Webber, supra note 5. Of equal concern is the uncertainty of funding that is dependent on prevailing interest rates. Reacting to that reality, in 1999 the California Legislature created the “Equal Access Fund” to supplement variable IOLTA monies with additional funds allocated through the courts budget. See S.B.160 (Cal. 1999), archived at http://perma.cc/F9BB-ZK8L (including the gubernatorial signing statement, “I am sustaining the $10,000,000 legislative augmentation to this item for the Equal Access Fund which will provide legal services for indigents in civil matters; however, I am sustaining this augmentation on a one-time basis.”).

 

 

 

 

 

 

[6] See ACLU History: Earliest Advocacy on Behalf of LGBT People, Am. Civil Liberties Union (Sept. 1, 2010), https://www.aclu.org/lgbt-rights/aclu-history-earliest-advocacy-behalf-lgbt-people, archived at http://perma.cc/JNA2-95L7.

 

 

 

 

 

 

[7] Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), app. dismissed for want of a substantial federal question, 409 U.S. 810 (1972).

 

 

 

 

 

 

[8] Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding, 5-4, the constitutionality of Georgia’s statute criminalizing oral and anal sex between consenting adults), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

 

 

 

 

 

 

[9] 133 S. Ct. 2675 (2013).

 

 

 

 

 

 

[10] 1 U.S.C. § 7 (2006), invalidated by United States v. Windsor, 133 S. Ct. 2675 (2013).

 

 

 

 

 

 

[11] See Henderson v. Thomas, 913 F. Supp. 2d 1267 (M.D. Ala. 2012); Margaret Winter, Stigmatized No Longer: The End of HIV Segregation in Alabama Prisons, JURIST – Sidebar (Oct. 9, 2013), http://jurist.org/sidebar/2013/10/margaret-winter-HIV-segregation.php, archived at http://perma.cc/ZA5G-XHXA.

 

 

 

 

 

 

[12] See generally Blog of Rights: Transgender Rights, Am. Civil Liberties Union, https://www.aclu.org/blog/tag/transgender-rights (last visited Mar. 9, 2014), archived at http://perma.cc/PQ7D-7CKB.

 

 

 

 

 

 

[13] About NLADA, Nat’l Legal Aid & Defender Ass’n, http://www.nlada.org/About/About_Home (last visited Mar. 11, 2014), archived at http://perma.cc/7V9N-H5FD.

 

 

 

 

 

 

[14] See, e.g., Tex. Access to Justice Found., 2013 Income Guidelines 3 (2013), archived at http://perma.cc/G7TW-55YK; Legal Services Alabama & Pro Bono Net, Site Help, AlabamaLegalHelp, http://www.alabamalegalhelp.org/site-help (last visited Mar. 27, 2014), archived at http://perma.cc/UY3Y-5SQ2; Southeast Louisiana Legal Services, 2013 Poverty and Legal Services LouisianaLawHelp, http://louisianalawhelp.org/resource/2010-poverty-guidelines-and-legal-services?ref=ALegw (last visited Mar. 27, 2014), archived at http://perma.cc/E4JJ-3V9D; What Is LawHelpCalifornia and What’s Available?, LawHelpCalifornia, http://lawhelpca.org/site-help (last visited Mar. 27, 2014), archived at http://perma.cc/ERM9-P37K.

 

 

 

 

 

 

[15] See Nat’l Legal Aid & Defender Ass’n, Championing Justice: Marching Toward 100 Years 9 (2010), archived at http://perma.cc/N6L4-BV9J.

 

 

 

 

 

 

[16] Legal aid programs secure the social safety net. The people served by legal aid programs include tenants facing wrongful eviction, homeowners facing foreclosure due to illegal lending practices, workers wrongly denied unemployment or cheated out of earned wages, children seeking appropriate education or a stable home, women trying to escape abusive relationships, veterans seeking the full range of supports from mental health to housing to employment, and more. Legal services programs are the last line of defense to ensure that good public policies impacting poor people get enforced and bad policies, often impacting poor and middle class people, get reformed or eliminated. See generally Alan W. Houseman & Linda E. Perle, Cntr. for Law & Soc. Policy, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States (2007), archived at http://perma.cc/QC29-5MXZ (detailing a history of the legal services movement and the creation of the Legal Services Corporation).

 

 

 

 

 

 

[17] Id. at 7.

 

 

 

 

 

 

[18] See, e.g., Legal Servs. Corp., Fact Book 2011 12 (2011) [hereinafter Fact Book 2011], archived at http://perma.cc/TF5E-N8QY; Legal Servs. Corp., Fact Book 2010 12 (2010) [hereinafter Fact Book 2010], archived at http://perma.cc/UQ9E-UYJG.

 

 

 

 

 

 

[19] LSC Funding, Legal Servs. Corp., http://lsc.gov/congress/lsc-funding (last visited Mar. 9, 2014), archived at http://perma.cc/6RS3-EEYQ; What Is LSC?, Legal Servs. Corp., http://lsc.gov/about/what-is-lsc (last visited Mar. 9, 2014), archived at http://perma.cc/BP6U-SC6M.

 

 

 

 

 

 

[20] LSC Funding, supra note 19.

 

 

 

 

 

 

[21] Fact Book 2011, supra note 18, at 12.

 

 

 

 

 

 

[22] Fact Book 2010, supra note 18, at 12.

 

 

 

 

 

 

[23] See generally supra note 5; What Is IOLTA?, Leadership for Equal Justice, http://www.iolta.org/grants (last visited Mar. 9, 2014), archived at http://perma.cc/DJ6R-XBBN (explaining IOLTA funding).

 

 

 

 

 

 

[24] Terry Carter, IOLTA Programs Find New Funding to Support Legal Services, ABA Journal (Mar. 1, 2013, 1:29 AM), http://www.abajournal.com/magazine/article/iolta_programs_find_new_funding_to_support_legal_services/, archived at http://perma.cc/4NVV-7JKL.

 

 

 

 

 

 

[25] See, e.g., Budget Request Fiscal Year 2014, Legal Servs. Corp. 5 (2013), archived at http://perma.cc/R4LG-E2SK (describing the impact of budget cuts at the state and local levels and highlighting increased numbers of eligible constituents due to the economic downturn); id. at 8 (explaining that “[t]he number of Americans eligible for LSC-funded legal assistance . . . continues to be at an all-time high” and estimating that in 2012 “nearly one in five—61.8 million Americans—were eligible for services, a 21% increase since 2007”); Estimated Census Adjustment on LSC Grantees’ 2014 Funding, Legal Servs. Corp., http://lsc.gov/congress/lsc-funding/estimated-census-adjustment-lsc-grantees-2014-funding (last visited Mar. 9, 2014), archived at http://perma.cc/W3M6-V9AL (providing information on the impact of the census adjustment on legal service programs); Remarks of LSC Board Chairman John Levi at the LSC Forum on the Importance of Access to Justice, Legal Servs. Corp. (July 22, 2013), http://www.lsc.gov/board-directors/chairmans-page/statements/remarks-lsc-board-chairman-john-levi-lsc-forum-importance, archived at http://perma.cc/6ARE-F4PY (detailing the impact of sequestration on legal services programs and noting that “[i]n fiscal year 2013, funding was set at $365 million, but that was reduced by rescissions and sequestration to $341 million, below the historically low rate of 2012”).

 

 

 

 

 

 

[26] In fact, the Access to Justice Initiative of the U.S. Department of Justice has created the Legal Aid Interagency Roundtable (LAIR), which the Initiative staffs.

The purpose of the LAIR, which includes 18 participating agencies, is to raise awareness about the profound impact legal aid programs can have in advancing federal efforts to promote access to health and housing, education and employment, family stability and community well-being, and to remove unintended barriers that prevent legal aid providers from participating as partners, grantees or sub-grantees in federal safety-net programs.

The Access to Justice Initiative, U.S. Dep’t of Justice, Three-Year Anniversary Accomplishments 5 (2013), archived at http://perma.cc/GCG3-AZ9W; see also The Pub. Welfare Found. & The Kresge Found., Natural Allies: Philanthropy and Legal Aid (2013), archived at http://perma.cc/GCG3-AZ9W.

 

 

 

 

 

 

[27] See, e.g., Francisca D. Fajana & Camille D. Holmes, Advancing Racial Equity: A Legal Services Imperative, 47 Clearinghouse Rev. J. Poverty L. & Pol’y 139 (2013).

 

 

 

 

 

 

[28] Tribute: The Legacy of Ruth Bader Ginsburg and WRP Staff, Am. Civil Liberties Union (Mar. 7, 2006), https://www.aclu.org/womens-rights/tribute-legacy-ruth-bader-ginsburg-and-wrp-staff, archived at http://perma.cc/RYD7-GJSZ.

 

 

 

 

 

 

[29] 404 U.S. 71 (1971); Brief of Appellant, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4), 1971 WL 133596.

 

 

 

 

 

 

[30] See infra text accompanying notes 78–80.

 

 

 

 

 

 

[31] 457 U.S. 202 (1982).

 

 

 

 

 

 

[32] Id. at 230.

 

 

 

 

 

 

[33] Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k) (2006)).

 

 

 

 

 

 

[34] Examples we’ve seen of the ways in which women are pushed out and denied accommodations include supervisors putting employees on unpaid leave in response to requests for light duty so as to avoid heavy lifting, denying requests for an extra bathroom break, and refusing to allow employees to carry a water bottle to stay hydrated, among others. See, e.g., Young v. United Parcel Serv., Inc., No. DKC 08–2586, 2011 WL 665321 (D. Md. Feb. 14, 2011), aff’d, 707 F.3d 437 (4th Cir. 2013), petition for cert. filed, No. 12-1226, 2013 WL 1462041 (U.S. Apr. 8, 2013); Wiseman v. Wal-Mart Stores, Inc., No. 08–1244–EFM, 2009 WL 1617669, at *1 (D. Kan. June 9, 2009).

 

 

 

 

 

 

[35] Pregnant Workers Fairness Act, H.R. 5647, 112th Cong. (2012); Pregnant Workers Fairness Act, S. 3565, 112th Cong. (2012).

 

 

 

 

 

 

[36] H.R. 5647, supra note 35, at § 2.

 

 

 

 

 

 

[37] See, e.g., Md. Code Ann., State Gov’t §20-609 (LexisNexis 2013) (pregnancy accommodation bill passed); S. 2995, 215th Leg., Reg. Sess., 2013 N.J. Laws ch. 220 (amending N.J. Stat. Ann. § 10:5-12 (West 2013)) (pregnancy accommodation bill passed); H.B. 4284, 81st Leg., Reg. Sess. (W. Va. 2014) (pregnancy accommodation bill pending).

 

 

 

 

 

 

[38] The increase in the Hispanic population between 2000 and 2010 accounted for over half of the increase in the total population of the United States. Sharon R. Ennis et al., U.S. Dep’t of Commerce, The Hispanic Population: 2010: 2010 Census Briefs 2 (2011), archived at http://perma.cc/K9BG-237D.

 

 

 

 

 

 

[39] Farmers Branch, Tex., Ordinance 2952 (Jan. 22, 2008).

 

 

 

 

 

 

[40] Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 539 (5th Cir. 2013) (en banc), cert. denied, No. 13–516, 2014 WL 801104 (U.S. Mar. 3, 2014).

 

 

 

 

 

 

[41] Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959 (D. Ariz. 2011).

 

 

 

 

 

 

[42] Id. at 992–93.

 

 

 

 

 

 

[43] Some of the successful challenges were Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 950–51 (9th Cir. 2011) (en banc), and Jornaleros Unidos de Baldwin Park v. City of Baldwin Park, No. CV07-4135 ER (C.D. Cal. dismissed Oct. 5, 2007) (stipulated dismissal due to settlement favorable to plaintiffs).

 

 

 

 

 

 

[44] See generally Paul K. Longmore, Why I Burned My Book and Other Essays on Disability (Robert Dawidoff, ed., 2003).

 

 

 

 

 

 

[45] The U.S. Supreme Court recognized the powerful commonality of this discrimination experience in one of the earliest high court disability rights cases. Identifying the impetus for Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. § 794 (2012)), the Court noted that “Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 284 (1987).

 

 

 

 

 

 

[46] One example in support of this very generalized statement is the fact that disability nondiscrimination protection (along with familial status protection) was added to the pre-existing federal Fair Housing Act in 1988—two decades after the original statute had been enacted. Fair Housing Amendments Act (FHAA) of 1988, Pub. L. 100-430, 102 Stat. 1619 (adding “handicap” and “familial status” to the existing list of protected diversity characteristics). While there had been disability-specific federal statutory protections enacted prior to 1988, the FHAA was the first instance in which disability was added to a broader civil rights statute, thus offering subliminal as well as overt support for the concept of disability as a civil rights issue. See infra note 69 for additional discussion of the chronology of federal disability rights laws.

 

 

 

 

 

 

[47] The terminology update from “handicap” to “disability” was reflected in federal legislative language beginning in the late 1980s. As ADA legislative history explains, this was not intended to constitute a substantive definitional change, but rather an effort to conform to the disability community preferences of the time:

It is the Committee’s intent that the analysis of the term “individual with handicaps” by the Department of Health, Education, and Welfare of the regulations implementing section 504 (42 Fed. Reg. 22685 et seq. (May 4, 1977)) and the analysis by the Department of Housing and Urban Development of the regulations implementing the Fair Housing Amendments Act of 1988 (54 Fed. Reg. 3232 et seq. (Jan. 23, 1989)) apply to the definition of the term “disability”’ included in this legislation.

The use of the term “disability” instead of “handicap” and the term “individual with a disability” instead of “individual with handicaps” represents an effort by the Committee to make use of up-to-date, currently accepted terminology. In regard to this legislation, as well as in other contexts, the Congress has been apprised of the fact that to many individuals with disabilities the terminology applied to them is a very significant and sensitive issue.

As with racial and ethnic epithets, the choice of terms to apply to a person with a disability is overlaid with stereotypes, patronizing attitudes, and other emotional connotations. Many individuals with disabilities, and organizations representing such individuals, object to the use of such terms as “handicapped person” or “the handicapped.” [In recent legislation, Congress has begun to recognize this shift in terminology, e.g., by changing the name of the National Council on the Handicapped to the National Council on Disability, Public Law 100-630].

The Committee concluded that it was important for the current legislation to use terminology most in line with the sensibilities of most Americans with disabilities. No change in definition or substance is intended nor should be attributed to this change in phraseology.

H.R. Rep. No. 101-485, pt. 2, at 50–51 (1990), reprinted in 1 Legislative History of Public Law 101-336, The Americans with Disabilities Act, at 323 (1991).

 

 

 

 

 

 

[48] This colleague, Mary Lou Breslin, is a co-founder and former Executive Director of DREDF who still works with the organization as a Senior Policy Advisor. A version of this anecdote is included in Joseph P. Shapiro’s book No Pity, which chronicles the history of the disability rights movement. See Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 19 (1993).

 

 

 

 

 

 

[49] Simi Linton, My Body Politic: A Memoir 120 (2006).

 

 

 

 

 

 

[50] A list of LSC restrictions can be found at About Statutory Restrictions on LSC-Funded Programs, Legal Servs. Corp., www.lsc.gov/media/fact-sheets/about-statutory-restrictions-lsc-funded-programs (last visited Mar. 8, 2014), archived at http://perma.cc/ZP3N-SM3B.

 

 

 

 

 

 

[51] Id.

 

 

 

 

 

 

[52] See, e.g., Victor Geminiani, Somewhere Along the Line We Fell off Track: One Step Up and Two Steps Back, Mgmt. Info. Exchange J., Winter 2011 (discussing the need for legal services programs to pursue aggressive systemic advocacy despite funder-imposed limitations on certain types of advocacy); Gary Smith, Poverty Warriors: A Historical Perspective on the Mission of Legal Services, 45 Clearinghouse Rev. J. Poverty L. & Pol’y 34 (2011) (discussing the original mission of legal services as an anti-poverty program and tension between the anti-poverty and access to justice agendas).

 

 

 

 

 

 

[53] For more information on Legal Services of Northern California see Legal Services of N. Cal., http://lsnc.net (last visited Mar. 11, 2014), archived at http://perma.cc/8BM8-BZQ8.

 

 

 

 

 

 

[54] See generally, Walking on Gas, http://www.walkingongas.com (last visited Mar. 11, 2014), archived at http://perma.cc/7S97-4WZV (describing the case, the players, and the impact on the community as part of the strategy to bring significant public engagement to the issue).

 

 

 

 

 

 

[55] For more information on similar approaches to community lawyering see generally, for example, Karen Tokarz et al., Conversations on “Community Lawyering”: The Newest (Oldest) Wave in Clinical Legal Education, 28 J.L. & Pol’y 359 (2008); Angelo N. Ancheta, Community Lawyering, 81 Calif. L. Rev. 1363 (1993); Lucie E. White, To Learn and Teach: Lessons from Driefontein on Lawyering and Power, 1988 Wis. L. Rev. 699 (1988).

 

 

 

 

 

 

[56] Julie A. Su, Making the Invisible Visible: The Garment Industry’s Dirty Laundry, 1 U. Iowa J. on Gender, Race & Just. 405, 408, 412–13, 416–17 (1998).

 

 

 

 

 

 

[57] The Civil Rights Act of 1964 established federal statutory protections against employment discrimination based on sex, race, color, national origin, and religion. Pub. L. No. 88–352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000a–2000h-6 (2006)). The Fair Housing Act of 1968, building on existing law, established federal statutory protections against housing discrimination based on sex, race, color, national origin, familial status, and religion. Pub. L. No. 90-284, 82 Stat. 81 (codified as amended at 42 U.S.C. §§ 3601–3631 (2006)).

 

 

 

 

 

 

[58] For example, the disability civil rights movement enjoyed significant federal legislative victories, including realizing employment and housing protections, during the period from 1973 to 1990. For more detailed discussion and citations, see infra notes 68–69.

 

 

 

 

 

 

[59] Maggie Haberman, Poll: Big Support for Anti-discrimination Law, Politico (Sept. 30, 2013, 5:05 AM), http://www.politico.com/story/2013/09/poll-big-support-for-anti-discrimination-law-97540.html, archived at http://perma.cc/S6NA-7XZ8.

 

 

 

 

 

 

[60] Employment Non-Discrimination Act of 2013, S. 815, 113th Cong. (2013).

 

 

 

 

 

 

[61] See generally Daniel R. Pinello, Gay Rights and American Law (2003) (investigating two decades of appellate litigation over LGBT rights and reporting on demographic patterns and other variables as to when judges are more likely to rule favorably on gay rights issues); Denis Dison, Study: LGBT Legislators Enhance Prospects for Gay Rights, Gay Politics (June 28, 2013), http://www.gaypolitics.com/2013/06/28/study-out-legislators-enhance-prospects-for-gay-rights, archived at http://perma.cc/7TBT-ZPM7 (noting that legislatures with one or more openly LGBT members are much more favorably disposed toward bills advancing LGBT rights).

 

 

 

 

 

 

[62] See, e.g., Brief for The Organization of American Historians and the American Studies Association as Amici Curiae Supporting Respondent at 21–22, United States v. Windsor 133 S. Ct. 2675 (2013), archived at http://perma.cc/E8SB-SYUR; The History of Same-Sex Marriage in the U.S., 1970 to now, The Boston Globe (Mar. 7, 2014), http://www.bostonglobe.com/2013/07/30/same-sex-marriage-over-time/mbVFMQPyxZCpM2eSQMUsZK/story.html.

 

 

 

 

 

 

[63] See Laurel Ramseyer, Mayor Booker: Dear God, We Should Not Put Civil Rights Issues to a Popular Vote, Pam’s House Blend (Jan 26, 2010, 9:10 PM), http://pamshouseblend.firedoglake.com/2012/01/26/mayor-booker-dear-god-we-should-not-put-civil-rights-issues-to-a-popular-vote, archived at http://perma.cc/QG4C-LT3G; see generally Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am. J. Pol. Sci. 245 (1997) (discussing arguments that popular votes on civil rights issues are inappropriate).

 

 

 

 

 

 

[64] Oregon United for Marriage, http://www.oregonunitedformarriage.org/ (last visited Mar. 8, 2014), archived at http://perma.cc/VZR6-CR4L.

 

 

 

 

 

 

[65] Or. Const. art. XV, § 5a.

 

 

 

 

 

 

[66] See David Mixner, Look to Oregon for Our Most Important Ballot Battle in 2014, Towleroad (Jan. 9, 2014), http://www.towleroad.com/2014/01/lgbt-look-westward-for-our-most-important-election-in-2014.html, archived at http://perma.cc/3XXA-PYSQ; Matt McTighe, Referendums Can Be a Tool for Either Side, N.Y. Times (Mar. 26, 2013, 12:01 AM), http://www.nytimes.com/roomfordebate/2013/03/26/civil-rights-decisions-in-courts-or-legislatures/referendums-can-advance-civil-rights-not-just-slow-them, archived at http://perma.cc/U8RT-MR4Y (discussing prospects for attaining marriage equality at the ballot in Oregon in November 2014); see also Complaint at 1, Rummell v. Kitzhaber, No. 6:13-cv-02256 (D. Or. Dec. 19, 2013) (federal lawsuit filed by ACLU and other counsel on behalf of two same-sex couples and Basic Rights Education Fund, seeking marriage equality in Oregon, and subsequently consolidated with a separate previously filed federal lawsuit also seeking marriage equality in Oregon); Oregon United for Marriage Celebrates Attorney General’s Statement Calling Measure 36 Indefensible, Oregon United for Marriage (Feb. 20, 2014), http://www.oregonunitedformarriage.org/agannouncementresponse, archived at http://perma.cc/7CV8-8YNT (reporting the Oregon attorney general’s refusal to defend the state’s ban on same-sex marriage and suggesting that Oregon may achieve marriage equality before November 2014 through pending litigation).

 

 

 

 

 

 

[67] See generally Lani Guinier, The Importance of “Culture Shifting, N.Y. Times (Mar. 26, 2013, 6:54 AM), http://www.nytimes.com/roomfordebate/2013/03/26/civil-rights-decisions-in-courts-or-legislatures/meaningful-changes-depend-on-culture-shifts-not-just-rules, archived at http://perma.cc/H4XN-JLQT; Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663, 736 (2012) (discussing need for deeper change in public opinion and understanding to accompany changes in formal legal rules).

 

 

 

 

 

 

[68] Ortega-Melendres, supra note 41, at 968.

 

 

 

 

 

 

[69] Americans with Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213 (2006)).

 

 

 

 

 

 

[70] The ADA itself addresses five basic areas of human endeavor: (1) employment, (2) state and local government activities, (3) public accommodations (i.e., privately operated businesses open in some way to the public), (4) some (but not all) forms of public and private transportation, and (5) telecommunications. Id. Upon close examination, one of this statute’s most notable features is what it excludes. Indeed, most people are shocked to learn that the ADA does not cover the U.S. Postal Service or the federal government—though the federal legislative branch is addressed. Id. § 12209. It does not, for the most part, cover residential housing. And it does not cover air travel. But these apparently major omissions are intelligible in light of the fact that the ADA is a base, supplemental piece of legislation: it is intended to fill in the gaps left by prior federal disability rights laws.

The earliest federal disability rights statute was the Architectural Barriers Act of 1968 (ABA), Pub. L. No. 90-480, 82 Stat. 718 (codified as amended at 42 U.S.C. §§ 4151–4157 (2006)), which requires that certain buildings and facilities designed, constructed, altered, or leased with federal funds be accessible to people with disabilities. This was followed by Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. § 794 (2012)), which prohibits disability discrimination by entities that receive federal financial assistance. Section 504 was amended in 1978 to extend the nondiscrimination mandate to the executive branch of the federal government, and to the U.S. Post Office. Pub. L. No. 95-602, 92 Stat. 2955.

Air travel was addressed by the Air Carrier Access Act (ACAA) of 1986, Pub. L. No. 99-435, 100 Stat. 1080 (codified as amended at 49 U.S.C. §41705 (2006)), while public and private residential housing come within the ambit of the 1988 amendments to the Fair Housing Act, discussed at supra note 45. Residential housing may also be subject to Section 504 or ADA mandates, to the extent that housing providers are recipients of federal financial assistance, or state or local governments.

 

 

 

 

 

 

[71] See generally What is Social Return on Investment (SROI)?, The SROI Network, http://www.thesroinetwork.org/what-is-sroi (last visited Mar. 8, 2014), archived at http://perma.cc/665T-P59T.

 

 

 

 

 

 

[72] For more information on community-centered lawyering, see generally White, supra note 54.

 

 

 

 

 

 

[73] Fajana & Holmes, supra note 27.

 

 

 

 

 

 

[74] Id. at 143–44.

 

 

 

 

 

 

[75] Id. at 143.

 

 

 

 

 

 

[76] Id. at 145 n. 37 (citing Racial Equality, W.K. Kellogg Found., http://www.wkkf.org/what-we-do/racial-equity (last visited Mar. 27, 2014), archived at http://perma.cc/5EA5-866Q; Race Matters, Annie E. Casey Found., http://www.aecf.org/KnowledgeCenter/PublicationsSeries/RaceMatters.aspx (last visited Mar. 27, 2014), archived at http://perma.cc/U7JC-WSA4; Race Forward, https://www.raceforward.org/ (last visited Mar. 27, 2014), archived at http://perma.cc/F3EY-DSXX).

 

 

 

 

 

 

 

[77] See, e.g., Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976) (striking down mandatory discharge of pregnant women from Marine Corps); Owens v. Brown, 455 F. Supp. 291 (D.D.C. 1978) (striking down bar on women serving on Navy vessels); cf. Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination, 85 N.Y.U. L. Rev. 83, 127 (2010) (explaining that, although the Ninth Circuit dismissed a challenge to the mandatory discharge of pregnant women from the Air Force in Struck v. Sec’y of Defense, 460 F.2d 1372 (9th Cir. 1971), vacated, 409 U.S. 1071 (1972), the Air Force subsequently granted Struck a waiver).

 

 

 

 

 

 

[78] Complaint, Hegar v. Panetta, No. 12-CV-06005 EMC (N.D. Cal. Nov. 27, 2012).

 

 

 

 

 

 

[79] Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

 

 

 

 

 

 

[80] Id. at 768.

 

 

 

 

 

 

[81] Lenahan v. United States, Case 12.626, Inter-Am. Comm’n H.R., Report No. 80/11, ¶ 215 (2011).

 

 

 

 

 

 

[82] See, e.g., Matthew Rosenbaum, Homecoming Photo of Gay Marine Kissing Boyfriend Goes Viral, ABC News (Feb. 27, 2012, 3:30 PM), http://abcnews.go.com/blogs/politics/2012/02/homecoming-photo-of-gay-marine-kissing-boyfriend-goes-viral, archived at http://perma.cc/S24D-V7JM; Brock Vergakis, 2 Women Share 1st Kiss at US Navy Ship’s Return, NBC News (Dec. 21, 2011, 8:51 PM), http://www.nbcnews.com/id/45753034/ns/us_news-life, archived at http://perma.cc/FG85-LFE7.

 

 

 

 

 

 

[83] 10 U.S.C. § 654 (2006) (repealed 2010); see also Don’t Ask, Don’t Tell, U.S. Army, http://www.army.mil/dadt (last visited Mar. 8, 2014), archived at http://perma.cc/9JPU-XPWT (explaining procedures for the end of Don’t Ask Don’t Tell).

 

 

 

 

 

 

[84] See, e.g., Bassett v. Snyder, 951 F. Supp. 2d 939 (E.D. Mich. 2013) (enjoining enforcement of Michigan’s Public Employee Domestic Partner Benefit Restriction Act of 2011); Collins v. Brewer, 727 F. Supp. 2d 797, 815 (D. Ariz. 2010) (enjoining enforcement of Arizona statute that excluded same-sex partners of state employees from family benefits eligibility), aff’d sub nom. Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011); S.D. Myers, Inc., v. City and Cnty. of San Francisco, 253 F.3d 461 (9th Cir. 2001) (upholding constitutionality of local ordinance that required municipal contractors to make benefits available to their employees’ same-sex domestic partners).

 

 

 

 

 

 

[85] Suzanne B. Goldberg, Intersectionality in Theory and Practice, in Intersectionality and Beyond: Law, Power and the Politics of Location 124 (Emily Grabham et al. eds., 2009), archived at http://perma.cc/WM3X-258U.

 

 

 

 

 

 

[86] The perils and possibilities of American civil rights analysis is a theme that is explored, for example, in Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (2006).

 

 

 

 

 

 

[87] ACLU Centers, Am. Civil Liberties Union, https://www.aclu.org/aclu-centers (last visited Mar. 8 2014), archived at http://perma.cc/AGN8-9GHE.

 

 

 

 

 

 

[88] See ACLU Responds to Reports of Proselytizing and Anti-LGBT Remarks by Principal at Tennessee High School, Am. Civil Liberties Union (Mar. 1, 2012), https://www.aclu.org/lgbt-rights/aclu-responds-reports-proselytizing-and-anti-lgbt-remarks-principal-tennessee-high, archived at http://perma.cc/8XS4-HTBR.

 

 

 

 

 

 

[89] Id.

 

 

 

 

 

 

[90] Haywood Principal Resigns After Anti-gay Remarks, Local Memphis (Mar. 1, 2012, 8:21 PM), http://www.localmemphis.com/news/local/story/Haywood-Principal-Resigns-After-Anti-Gay-Remarks/d/story/I8uisJEyN0e2DfvDompxWQ, archived at http://perma.cc/V3M6-C9HX.

 

 

 

 

 

 

[91] School-to-Prison Pipeline, Am. Civil Liberties Union, https://www.aclu.org/school-prison-pipeline (last visited Mar. 8, 2014), archived at http://perma.cc/L298-HRXB.

 

 

 

 

 

 

[92] Equal Pay Act of 1963, Pub L. No. 88-38, 77 Stat. 56 (codified at 29 U.S.C. § 206(d) (2012)).

 

 

 

 

 

 

[93] See U.S. Census Bureau, Historical Income Table P-38, All Races: Full-Time, Year-Round Workers by Median Earnings and Sex: 1960 to 2012, archived at http://perma.cc/B3LZ-MZCV.

 

 

 

 

 

 

[94] Carmen DeNavas-Walt et al., U.S. Census Bureau, P60-245, Income, Poverty, and Health Insurance Coverage in the United States: 2012 11 (2013), archived at http://perma.cc/J4P5-D8WL.

 

 

 

 

 

 

[95] Ariane Hegewisch & Claudia Williams, Inst. for Women’s Policy Research, Fact Sheet: The Gender Wage Gap: 2012 2, 2 tbl.1 (2013), archived at http://perma.cc/CSJ2-NG7P.

 

 

 

 

 

 

[96] In 1992, Colorado passed a constitutional amendment, Colo. Const. art. II, § 30b, that prevented protected status for LGBT persons, which the United States Supreme Court declared unconstitutional in Romer v. Evans, 517 U.S. 620, 635–36 (1996).

 

 

 

 

 

 

[97] One of this attorney’s successful cases was Peña v. Burger King Corp., No. 2:12cv 248 (E.D. Va. dismissed Nov. 9, 2012) (jointly agreed-upon dismissal), an employment discrimination case on behalf of an HIV-positive Latino, which ended in a favorable settlement for the plaintiff.

 

 

 

 

 

 

 

 

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Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*


In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality.

Part II of this Article discusses Windsor. Part III examines that decision’s possible implications for section 2 of DOMA, including some possible constructions of the provision and some of the differing constitutional implications of these alternate constructions. Part IV analyzes Windsor’s possible implications for state same-sex marriage bans. The Article concludes that while Windsor could have been clearer with respect to its implications for section 2 and for some of the state same-sex marriage bans, the most plausible interpretation of Windsor establishes the constitutional invalidity of DOMA’s section 2 and of many state mini-DOMAs, in part if not in whole.

Article: Strasser, Windsor, Federalism and the Future of Marriage Litigation

Citation: Mark Strasser, Windsor, Federalism and the Future of Marriage Litigation, 37 Harv. J. L. & Gender Online 1 (2013).


* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.

[1] 133 S. Ct. 2675 (2013).

 

 

[2] 1 U.S.C. § 7 (1996).

 

 

[3] 28 U.S.C. § 1738C (1996).

 

 

[4] Justice Kennedy merely mentioned it in his opinion. See Windsor, 133 S. Ct. 2675, 2682–83 (2013) (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”).

 

 

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Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, et al., eds.

Wendy B. Scott[1]


Presumed Incompetent: The Intersections of Race and Class for Women in Academia. Edited by Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez and Angela P. Harris. Boulder, CO. University of Colorado Press (2012). 570 pages.

“Presumed incompetent” names a standard imposed on people of color collectively in America. The book so titled demonstrates how this standard operates in the lives of women of color in the academy. The centuries of oppression, brutality, denial, discrimination, and self-effacement combined to establish this presumption based on entrenched images of those with darker skin as inept, [2] unable and therefore unworthy of the respect[3] accorded to those with lighter skin.[4]  Presumed Incompetent chronicles the struggles in which women of color in the academy have engaged, burdened with the presumption, in order to move forward in a world of privilege.  This essay collection is more than a series of anecdotes. The narratives and research establish empirically that being presumed incompetent, before any performance, is not the result of “individual flaws,” but of “larger structural and cultural forces within academia that make the experience . . . far too common” among women of color.[5] Therefore, Presumed Incompetent is required reading for every university president, chancellor, dean, dissertation, and tenure committee that truly wants to undo the presumption of incompetence.

Presumed Incompetent collects stories told primarily by women of color in a multitude of disciplines who have bravely spoken out in personal narratives, supported by a wealth of research, on their experienced or witnessed marginalization and downright mistreatment by colleagues, administrators, and students. I call them brave because the experiences chronicled and sentiments expressed are more often the subject of quiet conversations with kindred spirits than the subject of public discourse.[6] In the end, the authors move us closer to dispelling the presumption with both the content and the quality of the writing, editing, and research.

The editors organized the essays around four major themes: negotiation of identity, the link between the individual and the collective, the nature of academic culture, and mechanisms for change. [7] The themes are addressed in the context of second-generation diversity issues of campus climate; faculty/student relations; networks of alliances; social class in academia; tenure; and promotion. This review begins with a summary of the four themes through which the presumption of incompetence is explored, with emphasis on the negotiation of identity and mechanisms for change. Part I also points to lessons learned from waging the perpetual battle to keep the presumption at bay and offers some critiques of the collection. In Part II, I offer a brief reflection on my own experience with the presumption to further affirm the legitimacy of what the readers of Presumed Incompetent will learn when they study this timely text. Part III concludes with observations on the value of these essays to women interested in or new to the academy.

Full Book Review: Scott, Presumed Incompetent Book Review

Citation: Wendy Scott, Book Review: Presumed Incompetent: The Intersections of Race and Class for Women in Academia, 37 Harv. J. L. & Gender Online 1 (2013).


[1] Professor of Law, North Carolina Central University.

[2] No better place is that image embedded than in Hollywood, a shear repository of evidence to document the campaign to paint people of color as less than. Films like Birth of a Nation (1915), Gone with the Wind (1939) and the Tarzan series burned the image of the unintelligent other into the minds of generations of American children and adults. A movie buff, I watched two Bette Davis movies back to back. In each, a dark man played the part of her servant. One was the butler, “Uncle Cato,” in the antebellum film Jezebel (1938) set on a Louisiana Plantation where slaves danced and sang happy songs on her request. The other manservant was an unnamed Asian “Uncle Cato” in The Letter (1940), a film set on a rubber plantation in Singapore. For a thorough examination of the images created in Hollywood of the incompetent “darky,” see DONALD BOGLE, TOMS, COONS, MULATOES, MAMMIES AND BUCKS (4th ed. 2001). In later years the “blaxploitation” and video vixen image competed against the image of the hard working productive Cosby Show Huxtable family image. See KARRINE STEFFANS, CONFESSIONS OF A VIDEO VIXEN (2005); Top 10 Memorable Blackploitation Films, Listverse, http://listverse.com/2011/09/19/top-10-memorable-blaxploitation-films/ (last visited Sep. 2, 2013).

[3] Dred Scott v. Sandford, 60 U.S. 393 (1857) enshrined the unworthiness of African Americans into American law. For an example of the ramifications of such legal doctrine, see Vincene Verdun, If the Shoe Fits Wear It: An Analysis of Reparations to African Americans, 67 Tulane L. Rev. 597 (1992).  Immigration and policies regarding Native Americans were also premised on assumptions of inferiority and incompetence. IAN HANEY LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (10THed. 2006); ROBERT WILLIAMS, LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005).

[4] Being white constitutes the ultimate privilege. See Cheryl Harris, Property as Whiteness,­­­ 107 Harv. L. Rev. 1707 (1993) (chronicling the value of whiteness in contrast to being colored). The hierarchy of complexion, or colorism, and hair differences within communities of color has also contributed to the feeling of unworthiness, especially among women.  The effect of colorism is described in the old song by Big Bill Broonzy: “If you was white you’re all right, if you was brown stick around, but if you’s black get back.” See Big Bill Broozy:Black, Brown and White, Youtube, http://www.youtube.com/watch?v=k0c1c0ZsTLA (last visited Sep. 2, 2013). For general treatment of colorism, see, What is Colorism, Mobilizing Around Colorism, http://mobilizingaroundcolorism.weebly.com/what-is-colorism.html (last visited Sep. 2, 2013); What is Colorism, About.com, http://racerelations.about.com/od/understandingrac1/a/What-Is-Colorism.htm (last visited Sep. 2, 2013). For scholarly examinations of the significance of hair and color, see Paulette Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 41 Duke L. J. 397 (1991); Jennifer L. Hochschild, The Skin Color Paradox and the American Racial Order, http://scholar.harvard.edu/jlhochschild/publications/skin-color-paradox-and-american-racial-order (last visited Sep. 2, 2013).

[5] Afshan Jafar, Presumed Incompetent, Inside High er Ed, http://www.insidehighered.com/blogs/university-venus/presumed-incompetent (last visited Aug. 16, 2013) (book review).

[6] Two seminal works that addressed the marginalization of women of color in the academy were published three decades ago. THIS BRIDGE CALLED ME BACK: WRITINGS BY RADICAL WOMEN OF COLOR (Cherrie Mofana & Gloria Anzaldua, ed) (1981); ALL THE WOMEN ARE WHITE, ALL THE MEN ARE BLACK, BUT SOME OF US ARE BRAVE; BLACK WOMEN STUDIES (Gloria T. Hull, Patricia Bell Scott & Barbara Smith) (1982).

[7] The major themes of the book are discussed in the introduction. PRESUMED INCOMPETENT: THE INTERSECTIONS OF RACE AND CLASS FOR WOMEN IN ACADEMIA 1, 1-14 (Gabriella Guitierrez y Muhs, Yolanda Flores Nieman, Carmen G. Gonzalez, Angela P. Harris, eds., 2012) [Hereinafter PRESUMED].

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Congressional Power to Effect Sex Equality

Congressional Power to Effect Sex Equality

Patricia A. Seith

This article will be published in our forthcoming Winter 2013 issue.

From its passage by Congress in 1972 to its ratification failure in 1982, the Equal Rights Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and legal scholars have examined and analyzed its demise, its failure has been deemed inconsequential for constitutional doctrine — conventional wisdom submits that a “de facto ERA” was achieved through judicial action. This Article argues that this dominant narrative has obscured the other half of the equation — the role of Congress in implementing the “de facto ERA.” Through original archival and legislative research, this Article offers a new account of congressional action aimed at entrenching the substantive guarantees of the sex equality principle. This Articles introduces the Economic Equity Act to the sex equality narrative.

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Transgenderless

By Stevie V. Tran and Elizabeth M. Glazer

Legal protection from discrimination on the basis of gender identity has been reserved for perfect gender-nonconformists.  These are plaintiffs such as Jimmie Smith and Phelicia Barnes, who were able to state actionable claims under Title VII’s prohibition against employment discrimination on the basis of sex because they were perfectly gender-nonconforming men — that is, individuals who behave like women but who are “really” (according to the courts that decided their cases) men.  Relying on the Supreme Court’s decision in Price Waterhouse v. Hopkins — which expanded the scope of Title VII’s prohibition against sex discrimination to cases in which plaintiffs experienced discrimination for failing to conform to stereotypical norms about masculine and feminine behavior — the Barnes and Smith courts offered protection to transgender victims of employment discrimination.  The protection of what this Article calls “perfect” gender-nonconformists such as Smith and Barnes is an important step toward protecting transgender people from discrimination.

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Tempering Idealism with Realism

By C. Quince Hopkins

This Article evaluates the potential use of "responsibility initiatives" in gender-based violence, with a specific focus on adult intimate partner violence.  This Article analyzes the law's role in furthering victims' recovery from the trauma caused by gender-based violence through promoting acceptance of responsibility by offenders.  Perpetrators of abuse often minimize or outright deny their abuse when asked about it by family, friends, and even their victims.  In cases of acquaintance sexual assault, this denial is often firmly rooted in offenders' cognitive distortion, which leads them to believe their victim in fact consented.  The denial of the victim's experience of the assault as clearly unwanted causes unique and devastating trauma to victims, and yet the core of our criminal justice response to sex offenses facilitates this denial rather than acceptance of responsibility by offenders.

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Gendered (In)security

By Pooja Gehi

Over the past decade, both immigrant rights and lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights have been key issues in United States political and legal debates.  Yet, the two issue areas have rarely publicly intersected within these debates.  The "war on terror" has heightened the public debate around immigration, national security, and border control; however, LGBTQ concerns and a discussion of LGBTQ immigrants continue to be rhetorically separate from these immigration-focused conversations.  This rhetorical separation is especially problematic for those living at the intersections of different identities, including LGBTQ immigrants of color who live in poverty.  As this Article will show, the separation ignores the ways in which individuals who do not fit the public description put forth by "rights-based" organizations are the most negatively impacted by the laws and regulations that are being publicly challenged by these mainstream groups.

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Feminist Legal Realism

This Article begins to rethink current conceptions of two of the most significant legal movements in this countryLegal Realism and Feminist Jurisprudence. The story of Legal Realism has been retold for decades. Authors have dedicated countless books, law review articles, and blog posts to the subject. Legal and other scholars repeatedly have attempted to define better the movement and ascertain its adherents. Although the usual suspects—Karl Llewellyn, Roscoe Pound, and Jerome Frank—are almost always a part of the conversation, surprisingly few agree on the totality of Realism’s personage or parameters. The lists of those considered realists—and there are many—are constantly expanding and contracting. The movement’s teachings and implications are ever-evaluated. In all of this alleged evolution, however, one thing has remained constant: male-centered descriptions of Legal Realism have occupied the center of the discussion.

 

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