Category Archives: Discrimination

Rights ch 13, Short Course ch 19

Science and the 6th Amendment

As reported by the Ottawa Citizen, a trial judge, applying a Canadian Supreme Court ruling, ordered a devout Muslim woman to testify in court without her niqab.[1]  She is testifying against men she accuses of sexual abuse while she was a minor.  Her religion dictates that she wears her niqab when facing men who are not relatives.  Below is a graphic from the BBC illustrating two types of Muslim face coverings.[2]


 niqab Conservative choice

The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.

The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.

There have been attempts to ban both the niqab and burka in some European countries.



This trial clearly pits the right to confront witnesses and the right to a fair trial against the free exercise of religion.  In Canada, the Supreme Court determined that this issue must be addressed on a case-by-case basis:


“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained.  Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.  However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.  The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.”[3]


Essentially, the Canadian Supreme Court set out a four-prong test for lower court judges to use when determining if the niqab interferes with the trial.  As summarized by the CBC, the prongs are:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?[4]

The trial judge applied the test in the remanded case and found in favor of the rights of the accused.  Normally, in Canada or the U.S. this would be the end of the issue and either N.S. would testify without her niqab or the trial would not move forward.  But her lawyer is trying another tactic and using recent scientific evidence calling into question the ability of individuals to discern anything reliably from facial expressions.  This argument is similar to the argument regarding eyewitness testimony and line-ups.[5]  Simply put, humans are not good at remembering facts and faces, we are influenced by context, and we are poor judges of truth despite what we see on “The Mentalist”.[6]

Does this evidence tip the balance?  Would jurors be better judges of truth without seeing facial expressions or posture during testimony?  Are these scientific findings enough to say that due process if fulfilled even if a witness wears a niqab or burka?  And how does this balance with the right to confront accusers? In 1985, the U.S. Supreme Court said:

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination…

The second category of cases is exemplified by Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, 94 S.Ct., at 1110, “confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).[7]

Yet, this opinion does not address N.S.’s new argument.  What if the fallibility or emasculation lies with the jurors?  If jurors gain nothing from observing the witness or, perhaps worse make erroneous or unreliable conclusions based upon observing the witness, where does that leave the right to confront?  If evidence continues to mount—creating a nearly irrefutable Brandeis brief—free exercise would likely trump the right to confront.  But in the end, this same analysis would call into question the rationale for including that latter right in the Bill of Rights.

We have seen the Court reinterpret or alter the interpretation of these amendments over the course of our history, but we have not yet dealt with the increase of knowledge undermining the very rationale for an amendment.  In such a situation, what should the Court do?  Stick to avowed legal approaches and continue to interpret this clause fairly literally?  Or can they use founders intent and suggest that the amendment does not do what the founders intended—indeed it may undermine that intent—so we move away from a strict reading of the clause?  Its an interesting conundrum, especially for justices like Scalia who aver originalism.


[1] We wrote about the oral argument in this case back in 2011 (  Here we discussed if the Supreme Court, when it faces this issues because its bound to come up in the U.S., would use the Sherbert or the Employment Division v. Smith test.

[7] Delaware v. Fensterer (474 US 15).


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Filed under Attorneys, Trials, and Punishments, Discrimination, Religion

An Unusual Lobbying Campaign

Yesterday, veteran Court reporter Tony Mauro wrote about a lobbying effort headed by Professor Peter Irons to cleanse the reputation of the Supreme Court resulting from the Korematsu ruling.  As political scientists, we know about the usual efforts to lobby the courts.  Interest groups bring test cases, though this strategy is actually quite rare, take over cases as they climb the appellate court ladder, write amicus briefs to sway the justices, and publish or support law review articles to introduce new ideas or concepts to the legal lexicon.

Irons sent each of the justices an article that presents why the Court should repudiate its 1944 decision.  The basis of Iron’s argument is not that history reveals that the Court decision was wrong, but rather that vital facts were purposely kept from the justices—facts that likely would have altered the outcome of the case. A 2011 statement of the Solicitor General’s office, as Mauro reports, significantly bolsters Irons’s argument.  In this blog post,[1] then acting SG Neal Katyal outlines the purposeful withholding of information by his office.[2]  Mauro also reports that most of the justices have made their stance on this case clear: Korematsu was wrongly decided.  The executive and legislative branches have come to the same conclusion; Irons argues that it is now time for the judicial branch to do likewise formally.

How would the Court follow Irons’s advice?  Mauro reports on a rare practice of “correcting factual errors.”  Essentially, Irons is asking the justice to correct the factual errors then repudiate Korematsu without having an additional case that serves to overturn the decision.  How could the Court do this?  Professor Irons argues that both reversal and repudiation of earlier decisions are not defined by the Supreme Court rules.[3]  Therefore, the justices can consider the evidence from the coram nobis hearings and the Solicitor General’s statement to correct the facts and note that the decision would have been different had this information come to light.  He also argues that any invidious discrimination case can be used to reverse formally the internment decisions.  “The fact that the Court has never before issued such a “repudiation” statement is no bar to the authority of the Justices to take such an action.[4]

Professor Irons makes a good argument and I wholeheartedly agree that the Japanese internment decisions need to be reversed and repudiated.[5]   However, I do not agree that there is no bar to action he requests.  The evidence here is overwhelming, but there are good reasons to embrace historical precedent. One clear consideration is the current political climate.  Like it or not, repudiating this decision creates a new avenue for lobbying the Court.  How long would it be before other groups use additional facts—facts “ignored” by the government—to petition the justices to re-evaluate precedent setting decisions.  The Court might like to take this step for the internment cases and note the extraordinary circumstances, but as with Bush v. Gore the Court can claim that the case won’t be used a precedent, it cannot prevent litigants from finding other uses or cases for the procedure.

Imagine the Court does repudiate the internment cases.  How long will it be before the next request comes?  And, can we hazard a guess what cases will be first on the “need to repudiate” list?


[2] It is interesting that the SG’s office makes this statement in May of 2011 and the cornam nobis decision of 1983 (vacating Korematsu’s wrongful conviction) was based on the same evidence.  Professor Irons represented Korematsu in this case.

[3] Peter Irons, The Case for Repudiation, a publication of the Earl Warren Bill of Rights Project, University of California, San Diego, 2013 at 26.

[4] Ibid.

[5] Some years ago, the authors of this blog viewed a Smithsonian exhibit about the internment camps.  One of the most disturbing parts of the exhibit was a section that compared US and Nazi propaganda (How to tell a Jew/Japanese type of literature).  The similarities were striking.

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Filed under Discrimination, The Judiciary, Understanding the U.S. Supreme Court

Judicial Elections and Equal Protection?

In the forthcoming issue of Judicature, there is a symposium on James L. Gibson’s new book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.[1]  The commentators, Sara Benesh, Robert Hume, Matt Streb, and Lee Epstein, all sing the praises of Gibson’s latest work and discuss a number of issues regarding judicial elections and relate them to his findings.  Interestingly, both Epstein and Streb wonder about a potential equal protection problem.  I find their concerns intriguing from the standpoint of constitutional law and judicial politics.

Essentially, the argument stems from research revealing a tendency for elected judges to vote more harshly in some areas than others (the death penalty is the most cited and obvious case) and to vote more or less harshly depending on where in the electoral cycle the case is inserted.  Gibson finds these arguments specious; judges will make different decisions and no one is guaranteed the same outcome for the same crime in the district.  Two judges will likely handle the matter differently.  Additionally, there are many reasons why a judge might be harsher on some crimes or defendants at one point in time than another.  After a series of particularly violent crimes or high profile thefts, a judge might sentence defendants convicted of similar crimes differently to set an example.

Gibson is correct that there are infinite reasons why different judges may behave differently or the same judge may behave dissimilarly at different points in time.  The issue or concern is more than judges behaving differently or a judge reacting to the political context surrounding a crime or string of crimes.  I am sure after the massive Enron fraud or the Madoff ponzi scheme was uncovered and the damages to individuals made headlines, many judges were a bit harder when sentencing similar defendants.  I am also sure no one would quibble with such a discrepancy in judicial behavior—all of our decisions are affected by context.  However, a systematic and predictable pattern of changes in judicial decision-making related to the timing of elections may be a horse of a different color.  If judges make calculated choices to treat similar defendants differently simply because the case happens to appear on their docket two months prior, rather than two months after, their next election, the reaction is one of self-interest.  Altering behavior because an external stimulus forces a re-evaluation of values—for judges and layfolk alike—is not the same as calculating an abrupt shift simply because of an upcoming retention or general election.  The election stimulus is unrelated to the facts of the case or the crime committed unlike a high profile scandal revealing a need for stricter sentencing. Such behavior is expected among other elected politicians—legislators or executive branch officials, but as Gibson’s new book and the symposium highlight, the judicial branch must be concerned with its legitimacy, perceptions of fairness, and due process.[2]  To the extent that judges behave like politicians, they could undermine the strength of public perceptions of legitimacy and fairness,

Even so, is the finding that there is a cycle of decision-making related to electoral necessity grounds for claiming either a due process or equal protection violation?  The trial doesn’t change and the institutional and constitutional rules still apply.  The sentence, albeit harsher, is not necessarily out of the bounds of regular practice.  And the claim that one sentence is harsher than another due to proximity to an election would be much harder to prove and receive a different level of scrutiny than a claim that sentence length is due to race or gender.

The concern is real.  Regardless of the debate between accountability and independence, and regardless of how judges make their decisions (based upon ideology, constituent preferences, etc.), we do and should expect those decisions to be consistent and stable.  But I do not see any way we can argue that such results are constitutionally guaranteed.

[1] Chicago, IL: University of Chicago Press, 2012

[2] Gibson’s book argues that judicial elections do not undermine legitimacy; rather, judicial elections may actually boost it.

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Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]


If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.


If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.


Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.


Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.

[1] North Carolina Senate Bill 518 Section 1.a.3

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Filed under Discrimination, Freedom of Speech, Assembly, and Association, The Right to Privacy

There’s logic and then there’s strict scrutiny…—it-gets-worse[1]


Last night, Stephen Colbert thought he took aim at Paul Clement and his defense of the Defense of Marriage Act.  In reality, he took aim at the constitutional doctrine surrounding suspect classification.  As Colbert reports, Clement’s argument is that the gay rights movement has been so successful it loses.  And, this is the rub with strict scrutiny.  In order to receive preferential status under the equal protection clause, a group must prove more than the presence of discrimination based upon an irrational criterion.  The classes of citizens elevated to either suspect or semi-suspect classes have more than an inherent characteristic in common.  These classes have experienced well-documented discrimination and these classes were considered politically powerless.[2]


The difficulty of proving that a group fits all of these characteristics is readily apparent.  The Court has not elevated any new classes of citizens to suspect or semi-suspect class since the 1970’s.[3]  How likely is it that the Roberts Court will break with this trend?  How would the Roberts Court determine that the GLBT community is politically powerless?  Are all the successes of the GLBT movement now making the courts the least likely ally in the fight for equal protection and treatment?  How much success is too much success?


This reasoning is what has lead to Clement’s seemingly illogical argument.  The GLBT community has managed to fight against DOMA all the way to the Supreme Court, has received the backing of the White House in its fight, and several states are allowing gay marriage.  These victories reveal a strong and dedicated national movement that is not powerless.  Therefore, this class of citizens does not warrant the increased protection that comes with suspect or semi-suspect classification.


On the flip side, many more states still ban gay marriage. DOMA did pass with majority support in Congress and members of Congress are still fighting for its survival. Young men and women are still harassed and bullied because of their sexual orientation or the failure to fit in with sexual stereotypes.  And as Colbert notes, 29 states allow dismissal from a job based upon your sexual orientation.


Will the Supreme Court oral argument be based upon whether the GLBT community is or isn’t powerful?  And if the constitutionality of DOMA comes down to the type of question two year olds fight over (is too versus is not), is it time to reconsider the criteria for suspect classification?

[1] Warning sexual innuendo is used throughout the clip.  See Bethel School District v. Fraser.

[2] See pages 605 and 606 of CLCA: Rights and Liberties for more discussion on the subject.

[3] The Court has added to the list of the honor roll of rights in McDonald v. City of Chicago (2010)

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Filed under Discrimination, Understanding the U.S. Supreme Court

Irresistible Impulses

As reported by a variety of news outlets, the Iowa Supreme Court has ruled that an employer may terminate an employee due to an “irresistible attraction.”  In this case, a dentist found his assistant extremely attractive and after working together for ten years he felt he was on the verge of having an affair with her.  He then fired her because she was a “perceived threat”[1] to his marriage.  According to the Iowa court’s opinion, the dentist had insisted that the assistant wear a lab coat to cover clothing he considered too revealing or tight.  His testimony shows these requests had little to do with a dress code or professionalism, “I don’t think it’s good for me to see her wearing things that accentuate her body.”[2]  Other comments have been widely reported such as “if she saw his pants bulging, she would know her clothing was too revealing,” or in a discussion of the frequency of the assistant’s sexual intercourse, “[T]hat’s like having a Lamgorhini in the garage and never driving it.”[3]  And, in discussions with the assistant’s husband after termination, the dentist said “nothing was going on but he feared he would try to have an affair with her down the road if he did not fire her.”[4]


Now, the Iowa Supreme Court is under attack for upholding the termination.  However, the assistant did not claim that she suffered sexual harassment or that there was a hostile work environment.  She claimed she was discriminated based upon her gender.  The dentist in this case employs only women in his office and he replaced the attractive assistant with another woman.  The argument was that if she had been male, she would not have been fired.  However, it was not her gender that caused her firing.  The dentist did not discriminate against all women.  She was fired because he found her too attractive.  And for this complaint, there is no constitutional right or congressional statute that prevents discrimination based upon levels of attractiveness.  And the Eighth Circuit agrees with the Iowa justices; the justices cited Tenge v. Phillips Modern Ag Co. (446 F.3d 903 2006).  The effect of an individual’s attractiveness is not a criterion for discrimination under congressional statutes.


In other words, both a state and a federal court have found that if a male (or presumably female) employer cannot control their own impulses, the employee can bear the burden.  Similarly, if an employee is so unattractive to the employer as to cause a distraction, the same logic would hold.  As attractiveness is unlikely to be covered by the ADA or another similar statute, there is really no recourse here.[5]


Again, this is not a constitutional issue per say, however, the implications and echoes of historical expectations of women embedded in this decision will have repercussions for gender equality.  Men, in this case the dentist, cannot control their behavior around an attractive female.  It was the female’s responsibility to remain chaste.  I suppose now it is the female’s responsibility to be attractive enough to be hired by this dentist, but not so attractive that he as any ‘irresistible impulses.’

[2] Page 3 No. 11-1857 Iowa Supreme Court

[3] ibid

[4] Page 5 No. 11-1857 Iowa Supreme Court

[5] For example, the EEOC determined that obesity is considered a disability.

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Gay marriage and federalism

Followers of this blog have no doubt read the timely and interesting piece by my co-author on the blockbuster decision on gay marriage by the 2d Circuit Court in Windsor v. US.  The elevation of gay rights as an area subject to the same level of legal scrutiny as gender discrimination makes it less likely that laws restricting gay rights will be upheld, and that, as my colleague notes, is a real game changer.
There will no doubt be a lot of discussion about the case and legal pundits are now all but certain that this issue will have to be addressed by the Supreme Court.   I will just add an observation about what I see as another important issue in the case: Federalism.


As Judge Jacobs notes in his opinion in Windsor, one of the questions in this case involves the ability of Congress to enact a federal standard for the definition of marriage.  This is an especially important issue since the “Regulation of marriage is ‘an area that has long been regarded as a virtually exclusive province of the States.'” [1] Judge Jacobs goes on to note: “It has for very long been settled that ‘[t]he State… has the absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.'”


One of the purposes used at argument to justify DOMA was that the federal government has “’unique federal interests’ in…a consistent federal definition of marriage.”  As Judge Jacobs notes, this justification raises questions because federal law has always recognized marriage as the “virtually exclusive” province of state government. [2]  After discussions of the “unprecedented intrusion” into state regulation, the failure of DOMA to address other diverse restrictions and regulations of marriage among states, and the “inefficiencies” created, the court concluded that, “Because DOMA is an unprecedented breach of longstanding deference to federalism that singles out same-sex marriage as the only inconsistency (among many) in state law that requires a federal rule to achieve uniformity, the rationale premised on uniformity is not an exceedingly persuasive justification for DOMA.”


If Windsor is accepted by the Supreme Court and the decision to strike down DOMA is upheld, one can imagine that there will be relief amongst many who have been adversely affected by this federal policy.  It’s important not to forget that the impact of that decision would still leave the definition of marriage to the states, and leaving the definition of marriage to the states may not be an unalloyed blessing.  As noted in the dissent to Windsor, many states have adopted restrictive definitions of marriage.   Those restrictive definitions would determine federal benefits for each state’s residents if DOMA were to be struck down.  Thus, the significance of our federal system would then be seen in the challenges to state level restrictions on gay marriage and the standard that would be used by the Court in deciding those cases (cue Hollingsworth v. Perry and cases like it here).


When this occurs, will the fight over gay marriage look like the struggle for progressive labor regulations during the early 20th century?  That is, will gay marriage become an issue that can be regulated by neither the federal government, because it is a matter for the states, nor state governments, because the laws would be an unconstitutional violation of an important individual liberty?

[2] Windsor  Sec. 4 A at 8.

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Filed under Discrimination, Federalism