Results tagged “United States Supreme Court”

October 23, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

Every year, my constitutional law students study Personnel Administrator of Massachusetts v. Feeney (1979), which involved a Massachusetts program giving veterans an employment preference when applying for state jobs. Since at that time veterans were overwhelmingly male, the law effectively locked females out of state jobs. The U.S. Supreme Court upheld the program, explaining that the state would not be discriminating by enacting a law that disporportionately harmed women -- unless the state chose that law "because of," and not merely "in spite of" its disparate impact.


I do not know whether Massachusetts still has a veterans preference, but according to presidential candidate Mitt Romney, he did his part to find state employment for women while he was governor of that state. As he told the story during the Oct. 16 debate:

As I was serving as governor of my state ... I had the chance to pull together a cabinet and all the applicants seemed to be men.

And I went to my staff, and I said, “How come all the people for these jobs are all men?” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we find some women that are also qualified?”

And we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet.

I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.

I was proud of the fact that after I staffed my Cabinet and my senior staff, that the University of New York in Albany did a survey of all 50 states, and concluded that mine had more women in senior leadership positions than any other state in America.

Now one of the reasons I was able to get so many good women to be part of that team was because of our recruiting effort. But number two, because I recognized that if you’re going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can’t be here until 7 or 8 o’clock at night. I need to be able to get home at 5 o’clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let’s have a flexible schedule so you can have hours that work for you.

According to the Boston Phoenix, women's groups assembled the resumes of qualified women in advance of the election, so Governor Romney may not have instigated the idea as he described. But as an article on Slate points out, Romney at least took the trouble to look through the binders, and hired quite a few women from those resumes.

There's a name for what Governor Romney described in the debate: affirmative action. An all-male list of finalists may signal something faulty about your search. Absence of women on the list of qualified applicants may tell you more about your assumptions about job qualifications than tells you about the capabilities of women. The obligation to reconsider institutional arrangements goes beyond the recruitment phase. The nature of workplace may need to change so that nontraditional workers can succeed once they are hired. Most of my students think this sounds pretty good. And a presidential nominee would not be boasting about his history of affirmative action it unless he thought it would generate mainstream support.

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December 2, 2010

Doug NeJaimeBy Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.

Both cases are slowly working their way up the federal appellate chain. The federal District Court of Massachusetts recently ruled tag that DOMA violates the federal equal protection guarantee, as applied to Massachusetts same-sex couples. While the case sits at the First Circuit Court of Appeals, GLAD has filed a similar challenge tag, in the federal District Court of Connecticut, on behalf of married same-sex couples in Connecticut, New Hampshire, and Vermont. The Perry plaintiffs also received a favorable district court ruling tag, in which the Northern District of California federal court found Proposition 8 violative of federal due process and equal protection guarantees. The Ninth Circuit will hear oral argument in the case on Monday and will consider questions of standing in addition to the substantive constitutional merits.

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November 2, 2010

By Professor F. Jay Dougherty

Jay Dougherty The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames".  In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.

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