Sanitizing Scalia

“Memories to be erased

And nasty old stuff you’ve been hiding”

The Harvard Law Review recently published its issue dedicated in memoriam to the late Supreme Court Justice Antonin Scalia.  I know the point of such exercises is to say nice things about the person memorialized.  But I would hope that even an academic such as Martha Minow, Dean of the Harvard Law School, whose position admittedly requires great diplomacy and efforts not to alienate a broad swath of students, faculty, staff, and alumni, would manage to eulogize Scalia without painting a false picture of her subject.  Unfortunately, I can’t recognize the Scalia she describes.

I don’t mean the personal aspects of Scalia that she reports in her contribution.  It’s her depiction of Scalia’s jurisprudential legacies that is unrecognizable to me as a constitutional law professor.  According to Dean Minow, among several of Justice Scalia’s legacies “is his commitment to liberty even for individuals whose actions deviated from his own values.”  Fortunately, I was not drinking anything when I first read this, so I didn’t short out my computer with a spit take.  Minow’s characterization is about as far from my understanding of Scalia as one can get.

The only evidence she offers to support her claim that Scalia was committed to protecting the liberty of people who had different values was his 1989 vote in Texas v. Johnson to uphold Joey Johnson’s constitutional right to burn a flag in protest.  Now, while Johnson was arrested after this year’s Republican National Convention for burning a flag in protest, I’ve seen no evidence that this is conduct in which he engages on anything like a daily basis.  Justice Scalia’s vote to protect it therefore wasn’t very costly to his conformist preferences, shielding only infrequently occurring behavior.

Contrast the Justice Scalia whose legacy I know too well, starting with a different case where Texas was squelching freedom.  Scalia dissented from the Supreme Court’s 2003 decision in Lawrence v. Texas that held unconstitutional a law that criminalized consensual adult sexual activity, between two men (as in that case) or two women.  That law sought to control the intimate conduct of people of the same-sex, even if they had been in a long-term committed relationship.  Justice Scalia could not accept that the Constitution protected our liberty to make such life-shaping choices.

Or consider Roe v. Wade, which in 1992 in Planned Parenthood v. Casey the Supreme Court sustained in modified fashion, retaining a significant measure of constitutional protection for the right to choose to terminate one’s pregnancy.  Justice Scalia dissented there, arguing that the Constitution affords no special protection for abortion rights (beyond the universal constitutional requirement that government not act wholly irrationally) and that the Court should overrule Roe.  Again, he showed no commitment to women’s liberty to determine something so fundamental about the direction of their lives in his Casey dissent.

Concurring in Washington v. Glucksberg, Justice Scalia voted against constitutional protection for a right of terminally ill patients to seek to enlist a willing physician’s assistance in ending their lives on their own terms.  Writing the lead opinion in Michael M. v. Gerald D., Justice Scalia rejected a claim that the Constitution protected the liberty interests of an unmarried father when the mother of the child he sired was married to a different man, even though the unmarried father played a role in the child’s upbringing in her early years.  Dissenting in Troxel v. Granville, Scalia argued that the Constitution did not protect parental rights, so that in his view a court could order a parent to allow someone visitation with her child based on what many members of the Supreme Court majority thought a mere disagreement over what would be overall best for the child.

Whatever his other accomplishments, Justice Scalia was hardly a friend of the liberty of people whose views he did not share.  It does neither him nor the country any good to pretend otherwise.  Sanitizing Scalia is, rather, perilous, particularly in this current political moment where facts are too commonly ignored and even denied.

Trump and the Promise of LGBTQ Equality

I’ve always got my head in the clouds

Hope that I could find

One of them that’s silver-lined

As I write, it appears that Donald J. Trump will take office as the forty-fifth President of the United States.  Some (many?) people, myself included, deeply feared this and are anxious or worse about the prospect.  So, in an effort to help myself confront this new reality, I offer this brief exploration of one possible way to deal with it.

“As your president, I will do everything in my power to protect LGBTQ citizens,” Trump promised in his nomination acceptance speech to the Republican National Convention in July 2016.  Americans should hold him to that promise.  It doesn’t mean, as Trump seemed to think, we should embrace blatantly unconstitutional anti-Muslim immigration policies.  But it could and should mean a great deal.

(Reuters/Carlo Allegri)

Trump’s promise to protect LGBTQ persons – and, yes, I’m deliberately overlooking his rhetoric extending solicitude to citizens, since the Constitution guarantees equal protection of the laws to persons, not just citizens – means he should support the Equality Act and use the power of the presidency to help it become part of the law of the land.  In 2000 he publicly supported amending the Civil Rights Act of 1964 to ban sexual orientation discrimination (see his interview with The Advocate here); the Equality Act would accomplish much the same, but in a more comprehensive matter that would also protect against anti-transgender discrimination and that leaders on these issues in Congress believe would be most effective.

Trump’s promise to protect LGBTQ persons means he should abandon his intention to nominate Supreme Court Justices who would overrule the Court’s 2015 Obergefell decision, which held that the Constitution forbade government to exclude same-sex couples from legal marriage (aka “civil marriage”) on the same terms and conditions civil marriage is offered to different-sex couples.  The interaction of civil marriage and the U.S. legal order generally may be criticized on various grounds – why should any of us have to count on employment benefits that may or may not be offered in order to secure a basic right such as healthcare for us and our marital partners and children?  But so long as that is how the U.S. system is structured, LGBTQ people and our families will not be protected, and certainly not be protected equally with heterosexually identified persons, if we are denied access to or recognition of our marriages.

Trump’s promise to protect LGBTQ persons also means he should reject efforts to exempt us from the benefits of our state, local, and national antidiscrimination laws.  He should not repeal executive orders that forbid sexual orientation and gender identity discrimination, which would expose us to the harms of the discrimination those orders are designed to prevent.  He should not support the so-called First Amendment Defense Act, which would grant a government sanctioned right to discriminate to people who disapprove of the marriages or other relationships of LGBTQ persons.  Such targeting of us is the opposite of protection.

There is much, much more that Donald Trump would have to do as President to live up to his promise to “do everything in my power” to protect LGBTQ persons.  Let us hope that he does.  And more than that, let us insist that he does.  Let us never let him forget his words.  Some of Trump’s campaign pledges were unjust; some were unconstitutional.  But the pledge to protect LGBTQ persons to his utmost extent is in itself noble, worthy of our constitutional order.  We all need to press our representatives in government to hold Donald Trump to this promise of equality.

Federal Government Issues Guidance for Schools, Educational Programs, re: Transgender Students

“When it’s time to change, you’ve got to rearrange

Who you are and what you're gonna be”

The Department of Justice and the Department of Education today issued a significant guidance document today to help schools comply with their obligations toward transgender students under Title IX of the Education Amendments of 1972 (“Title IX”) – which is a federal statute modeled after part of the Civil Rights Act of 1964 – and the federal regulations implementing that law.  This “dear colleague” letter does not subject schools to any new binding regulatory commands, but it clarifies how these two agencies interpret extant laws.  The Department of Education’s blog introduces the guidance, illustrating the importance of assuring schools respect the rights of all students including transgender students and explaining the departments’ action as responsive to requests from the education community.   Title IX prohibits sex discrimination in educational programs and activities receiving federal funds, as the vast majority of schools do.  Consistent with the trend in federal courts (much of which was, disgracefully and likely disingenuously, omitted from North Carolina’s complaint in the state’s lawsuit against the Justice Department for its actions in response to HB2), the guidance explains that the Departments of Justice and Education have interpreted Title IX’s ban on sex discrimination to include a prohibition on “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”    Under Title IX and its regulations, as the departments of the federal government charged with enforcing them have interpreted these laws, schools must not discriminate against transgender boys (who were identified as female at birth but whose gender identity is male) or transgender girls (who were identified as male at birth but whose gender identity is female).  Transgender boys are to be treated as the school treats boys generally; transgender girls are to be treated as the school treats girls generally.  Most prominently under discussion these days due to North Carolina’s anti-civil rights HB2, if a school provides separate spaces for students of different sexes, it must allow transgender students to use the space consistent with their gender identity.  Thus, transgender boys must be allowed to use boys’ restrooms, and transgender girls.  This requirement is how the departments had already been interpreting the relevant federal laws.   In addition, the guidance makes clear that schools must ensure a safe and nondiscriminatory environment for their students, including taking effective steps to preclude hostile environments created by “[h]arassment that targets a student based on gender identity, transgender status, or gender transition.”  The guidance suggests that school staff and contractors are to use student names and pronouns consistent with the student’s gender identity, regardless of what may be specified on formal identity documents such as birth certificates, which can be difficult or impossible to amend to reflect correctly a person’s gender identity.  The guidance also makes clear that this can be important to protecting the confidentiality of a student’s transgender status.   The guidance letter does what this kind of document is supposed to do: provides significant guidance to schools and educational programs across the country concerning their legal requirement not to discriminate on the basis of sex.  Unlike the Justice Department’s letter to North Carolina, which violated transgender students’ rights in state law, HB2, rushed through from introduction to adoption in a single day in an extraordinary special session of the legislature, today’s guidance document does not threaten any school with loss of federal funding.  It does, however, make clear what the relevant federal department understand the governing law to mean for schools.  It seems likely, then that schools that are seeking in good faith to provide equal educational opportunities to all their students will take the opportunity to change their policies, or adopt ones, to do what is legally required when it comes to their transgender students, who deserve the same chance to learn and to thrive as all others.

   

“A little bit of living, a little bit of growing all adds up to you”