In 2008, Oklahoma teenager Samantha Elauf applied for a job as a salesperson at retail giant Abercrombie & Fitch. Elauf is a devout Muslim who believes that her religion requires her to wear a headscarf. But the company has a dress code that prohibits its employees from wearing – among other things – “caps.” When Abercrombie didn’t hire Elauf, and a company employee indicated that the rejection was attributable to the headscarf, she went to the Equal Employment Opportunity Commission, which filed a lawsuit on her behalf. A lower court ruled for Abercrombie, reasoning that it could not be held liable because Elauf had not specifically said that she was wearing the scarf for religious reasons. Yesterday, the Supreme Court reversed that ruling – yet another in a series of victories for religious rights at the Roberts Court. Continue reading »
Plain English / Cases Made Simple
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First, there was hanging. Then there was the electric chair, or in some places the gas chamber and the firing squad. More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions. The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution: the prisoner could simply drift off, as if he were sleeping.
In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly. But that didn’t end the debate, particularly after several well-publicized botched executions. And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures. After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself. Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English. Continue reading »
In the past few years, the Roberts Court has been very supportive of the freedom of speech, ruling in favor of protests by the Westboro Baptist Church at a soldier’s funeral, violent video games for children, videos depicting dog-fighting, and lies about receiving prestigious military medals. But today an unusual coalition of five Justices — Chief Justice John Roberts and the Court’s four more liberal Justices – agreed on one kind of speech that the government can ban: personal solicitations of campaign funds by people running for judgeships. Let’s talk about the ruling in Williams-Yulee v. The Florida Bar in Plain English. Continue reading »
It could turn out to be a nailbiter. After two-and-a-half hours of oral argument in the same-sex marriage cases, it was not clear where Justice Anthony Kennedy – and therefore the rest of the Court – was headed. Let’s talk about the oral argument in Plain English.
The arguments started with what many people refer to as the “marriage question” – whether the Constitution requires states to allow same-sex marriages. Representing the same-sex couples challenging the state bans, Mary Bonauto ran into tough questions from Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia. Roberts suggested that adopting Bonauto’s position would “redefine” marriage, adding that “every definition I looked up until about a dozen years ago” defined marriage as a union between a man and a woman. The plaintiffs could not have been encouraged when Justice Anthony Kennedy, who is probably their best bet to join the Court’s more liberal Justices to strike down the bans, echoed this idea. He told Bonauto that the traditional definition of marriage has been around for millennia, but it has only been a little over a decade since the Court held that Texas could not criminalize sex between two consenting adults of the same sex. That may be a long time for scholars, he pointed out, but it isn’t very long compared to the big picture, and “it’s very difficult for the Court to say we know better.” Continue reading »
Two years ago, the Supreme Court issued its decision in United States v. Windsor. By a vote of five to four, with Justice Anthony Kennedy joining the Court’s four more liberal Justices to form a majority, the Court struck down a provision of the federal Defense of Marriage Act that defined marriage, for purposes of over a thousand federal laws and programs, as a union between a man and a woman. In Windsor, the Court made clear that it was not deciding whether states can prohibit same-sex marriages. But – as I explained in the first part of my preview of tomorrow’s oral arguments in the same-sex marriage cases – lower courts around the country quickly began to rely on the decision in Windsor to strike down state bans on same-sex marriage, and the plaintiffs have done the same in their efforts to convince the Supreme Court to rule in their favor.
So it may come as a bit of a surprise that the Court’s ruling in Windsor also plays a starring role in the arguments made by Tennessee, Michigan, Ohio, and Kentucky to defend their bans on same-sex marriage. The heart of the Court’s decision in Windsor, the states emphasize, was that the states have traditionally defined and regulated marriage. And just as the Court in Windsor determined that the Defense of Marriage Act must fall because it stood in the way of a decision by New Yorkers that same-sex couples should be treated the same as their opposite-sex counterparts, a decision by the Supreme Court for the plaintiffs would overturn a decision by the residents of these four states that marriage should be reserved for opposite-sex couples. Because each state is its own independent entity, they insist, they don’t have to allow same-sex marriages or recognize same-sex marriages that take place outside their state just because some other states have opted to do so. Continue reading »
April DeBoer and Jayne Rowse have lived together for ten years, own a home together, and have three children. Laws in Michigan, where they live, prevented them from jointly adopting their children, so DeBoer adopted one child on her own, while Rowse adopted the other two. This also means that Rowse can’t cover DeBoer’s child on her health insurance, and vice-versa. And if one of them were to die, the other would not automatically get custody of her children. So the two women want to get married – but they can’t, because Michigan laws specifically prohibit them from doing so.
In 2013, James Obergefell married John Arthur, his partner of more than twenty years, on a tarmac at an airport in Maryland, which permits same-sex marriage, where they had flown in a medically equipped plane because Arthur was battling ALS. After Arthur died a few months later, Obergefell filed a lawsuit, seeking to be recognized as Arthur’s spouse by the state of Ohio, where the pair lived and he still lives – so that, for example, his name will appear on Arthur’s death certificate as his spouse. Continue reading »
After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands. Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg all seemed like solid votes for the federal government, defending the subsidies, while the challengers could clearly count on the votes of Justices Antonin Scalia and Samuel Alito. Chief Justice John Roberts – who three years ago joined the Court’s more liberal Justices to uphold another provision of the Affordable Care Act, requiring everyone to buy health insurance or pay a penalty (it’s a tax!) – kept his cards close to his chest, asking only a few questions that gave no real hint as to how he might vote. But even if it ultimately doesn’t get the Chief Justice’s vote, the government could still win as long as it can pick up just one more vote. And that seemed like at least a possibility, because Justice Anthony Kennedy asked several questions which suggested that he might be leaning more toward the government than the challengers. Let’s talk about today’s argument in Plain English.
Fifteen years ago, in the hope of eliminating or at least reducing partisan battles over redistricting, Arizona voters amended the state’s constitution to hand the power to draw boundaries for federal congressional districts over to an independent commission. The state’s legislature went to court to challenge that transfer of authority, and after an hour of oral arguments that focused almost exclusively on the words of the Constitution, it appeared that the Justices may be poised to return the power to the legislature – which could spell trouble not only for the Arizona commission, but also for California and the handful of other states with similar schemes. Let’s talk about Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English. Continue reading »
Arizona voters were fed up. After each census, states have to draw new boundaries to elect members of the House of Representatives in Washington. Until 2000, the state legislature took on this job, as it does in many other states. But voters weren’t happy with the results: in Arizona, as elsewhere, it was common for the political party that controlled the state legislature to use its power to its advantage in redistricting, by drawing districts to maximize the opportunities for its members to win election and to ensure that, once in office, those seats were safe. So in 2000, Arizona voters passed an amendment to the state constitution that would turn control of redistricting over to an independent commission. Three years ago, though, the state legislature filed a lawsuit in federal court, challenging the voters’ transfer of redistricting power to the commission. Let’s talk about today’s argument in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English. Continue reading »
Today the Court heard oral arguments in EEOC v. Abercrombie & Fitch Stores, in which the federal government is suing the retail giant for its refusal to hire Samantha Elauf, a Muslim teenager who wore a headscarf. (I previewed the case in Plain English yesterday.) After an hour of often spirited discussion, it wasn’t clear that there was a consensus for either side’s proposed rule. But the government (and therefore Elauf) has reason to be optimistic, as several Justices seemed to coalesce around a rule that would give it much of what it is seeking. Let’s talk about today’s oral arguments in Plain English. Continue reading »