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Defense Secretary Puts President Trump’s Transgender Ban on Hold

In the wake of President Donald Trump's proclamation that openly transgender individuals be discharged from the military, in addition to the lawsuits, there has been some pushback from an unexpected source: the Secretary of Defense, General James Mattis. After sources reported that the general was appalled by the president's proclamation, soon after, he came out with a plan that effectively puts the ban on hold. While socially, and politically, transgender rights are a polarizing and controversial issue, it may not be possible to read anything more than prudence into Mattis's actions. Making a sweeping change like this to the military requires careful planning and assessment. What's Mattis's Hold Up? The general, reportedly, has instituted the hold on implementing the newest ban in order to study the effects and strategically plan how to actually do it (and potentially even whether to do it at all). Although the president, in a series of Tweets, claimed to have met with his generals prior to implementing the ban, no general has corroborated this claim. As such, not only was the general caught off guard, but the new policy's effects had not been studied prior to the implementation. While it may be too soon for those on either side of this issue to celebrate, LGBT advocates are pleased that there is at least some relief from the abruptly announced policy that would have uprooted many people's lives. Constitutional Challenges and Civil Rights Laws The lawsuit by the ACLU that challenges the transgender military ban argues that there is no military basis for the ban. According to the ACLU's complaint, "The Trump Administration has provided no evidence that this pronouncement was based on any analysis of the actual cost and disruption allegedly caused by allowing men and women who are transgender to serve openly."The Trump administration also faces a lawsuit from Lambda Legal that challenges the constitutionality of the transgender ban. Lambda Legal's lawsuit alleges "the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment," and "are unsupported by any compelling, important, or even rational justification."Although the new administration has taken a position that transgender individuals should not be protected under civil rights laws, there has been a steady trend in the law to protect transgender individuals. The number of states, and even federal courts, that have recognized transgender individuals as belonging to a protected class, and thus protected by civil rights laws, keeps growing. Related Resources: Trump Administration Rescinds Guidance on Bathroom Use for Transgender Students (FindLaw's Law and Daily Life) The Rise of Anti-Anti-Discrimination Laws (FindLaw's Law and Daily Life) California's Gender Neutral Bathroom Bill (FindLaw's Law and Daily Life) Here's the Latest on Trump Immigration Reform Efforts (FindLaw's Law and Daily Life)
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La.’s Gay Marriage Ban Upheld by Federal Judge

Louisiana's gay marriage ban has been upheld in a federal court, bucking a year-long trend of federal rulings against same-sex marriage bans. In Robicheaux v. Caldwell, U.S. District Court Judge Martin L. C. Feldman ruled Wednesday that Louisiana's prohibition on gay marriage did not violate same-sex couples' constitutional rights because the law implicates no fundamental rights and has a rational basis. As noted by The Huffington Post, Judge Feldman is the first federal judge to uphold a gay marriage ban since the U.S. Supreme Court's ruling in Windsor in 2013. Why did Louisiana's gay marriage ban get upheld when so many others have been struck down? Judge Finds Rational Basis for Ban Although the result may be surprising, Judge Feldman is not the first judge to apply rational basis review to state gay marriage laws. This lowest level of constitutional scrutiny only asks that the challenged law have a rational basis -- meaning a rational link between a legitimate interest and the law. Unlike other levels of judicial scrutiny, the burden is on those challenging the law to prove that it lacks any rational basis in order for it to be found unconstitutional. Other federal courts have used this low level of scrutiny but with opposite effect, finding that a state's law barring gays from marrying lacked any rational basis. However, this trend has been based on these courts rejecting arguments which had been successful in court one decade prior: that opposite-sex couples are better at child-rearing. And while a panel of the 7th U.S. Circuit Court of Appeals recently gave a public tongue-lashing to those who espouse those views, it was crucial in this Louisiana decision. Judge Feldman wrote, "This Court is persuaded that Louisiana has a legitimate interest... whether obsolete in the opinion of some, or not, in the opinion of others... in linking children to an intact family formed by their two biological parents." Although this kind of social rationale has often been dismissed as crockery since California's Prop 8 case, there is no controlling federal ruling that prevents it from being accepted as a rational basis. Appeal to 5th Circuit This decision doesn't change much for Louisiana's same-sex couples, but it is still likely to be appealed to the 5th U.S. Circuit Court of Appeals for review. The 5th Circuit is also scheduled to review Texas' gay marriage decision, which struck down the law as unconstitutional in February. Related Resources: Federal judge upholds La. gay-marriage ban (The Associated Press) Utah's Gay Marriage Ban Is Unconstitutional: Federal Judge (FindLaw's Decided) Tenn. Court Upholds Gay Marriage Ban: Is 'Pro-Gay' Trend Over? (FindLaw's Decided) Oregon's Gay Marriage Ban Struck Down, Effective Immediately (FindLaw's Law and Daily Life)
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What Is the Religious Freedom Restoration Act?

What is the Religious Freedom Restoration Act? It's at the center of two Obamacare-related U.S. Supreme Court cases scheduled for oral argument Tuesday. While the First Amendment guarantees persons the free exercise of religion, there are other legal protections for religious rights -- including the Religious Freedom Restoration Act, which has been the subject of recent court cases. So what exactly is the RFRA? Passed to Protect Religious Liberty Congress passed the RFRA in 1993 in response to a 1990 U.S. Supreme Court decision, Employment Division v. Smith. The Smith case involved a Native American church in Oregon that was denied unemployment benefits for because of members' use of peyote, a hallucinogenic drug, as part of a religious ceremony. The U.S. Supreme Court ruled that despite the protections of the Free Exercise Clause of the First Amendment, Oregon could legally deny those church members unemployment benefits because of their peyote use. This worried lawmakers about the future of religious freedom in the workplace. The RFRA applies when a law "substantially burdens" an individual or religious group's free exercise of religion. For the burdensome law to apply to the person or group, the government must show it has a "compelling interest" in applying the law, and that the law uses the "least restrictive means" to achieve that interest. (This standard was used in religious exercise cases prior to Smith; RFRA's purpose was to continue to apply this standard -- even for laws which apply generally to all persons.) Laws like the Affordable Care Act, better known as Obamacare, are now being tested by claims under RFRA. But while the RFRA applies to individuals and religious groups, does it also apply to corporations? Can Corporations Sue Under the RFRA? Two corporations that object to Obamacare's contraceptive mandate have made claims under the RFRA, alleging Obamacare violates a corporation's right to free exercise of religion. On Tuesday, craft-store chain Hobby Lobby plans to argue before the High Court that its religious freedom is burdened by the requirements of Obamacare, and that the company has a right to judicial remedy under the RFRA. Lawyers for Conestoga Wood Specialties Corp., a kitchen-cabinet manufacturer, are expected to make similar arguments. Federal courts have disagreed about whether corporations are "people" intended to be protected by the RFRA -- a question the U.S. Supreme Court is now poised to consider. The Court has previously affirmed that corporations have free speech rights (see Citizens United), but can a corporation really have religious freedom rights? Justice are being asked to determine whether the RFRA applies to corporations, small closely-held companies, or merely to a company's individual executives and employees. The U.S. Supreme Court's decision may change how we view religious freedom and the RFRA for years to come. Related Resources: 5 questions about the Supreme Court cases on requiring contraceptive coverage (Pew Research Center) Top 5 Obamacare Court Rulings (FindLaw's Decided) Corp. Can't Assert Free Exercise in Mandate Claim, But People Can: D.C. Cir. (FindLaw's D.C. Circuit Blog) Birth Control Mandate Cases Reaching Critical Mass; Possible Outcomes (FindLaw's U.S. Supreme Court Blog)
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Why Aren’t Cameras Allowed Inside the Supreme Court?

The U.S. Supreme Court has never allowed its proceedings to be recorded, but a rogue video that surfaced on YouTube this week offered rare, if shaky, moving images of the High Court at work. The video, posted Wednesday, captures a portion of October's oral arguments in McCutcheon v. FEC, which dealt with campaign contribution limits. The recording includes the moment when a protester disrupts proceedings, announcing that "corporations are not people." The protest has been linked to the group 99Rise, which opposes the protections afforded to corporations as the result of Supreme Court cases like Citizens United, reports The New York Times. But the incident is also brings attention to the question: Why aren't recordings allowed inside the Supreme Court chamber? How Do Justices Feel About Cameras? The U.S. Supreme Court prohibits spectators from bringing electronic devices into the courtroom, including cameras and cell phones. Visitors, including journalists, are screened with magnetometers, CNN reports. But in an age when almost every event is being captured and streamed live online, it may seem strange that some of the most important legal events in U.S. history would be closed off to video recording. Even the current Justices differ on the subject: Justice Elena Kagan told a Senate committee during her confirmation hearing in 2010 that unlike prior Justices, she thinks "it would be a terrific thing to have cameras in the courtroom," The Hill reported. Justice Samuel Alito also gave positive spin to cameras during his 2006 confirmation hearing, explaining that he argued for their use in the 3rd U.S. Circuit Court of Appeals, according to SCOTUSBlog. However, Justice Antonin Scalia told C-SPAN in 2012 he was originally on the side of television in the courts, but now thinks that it would "miseducate the American people." The Court's current stance seems to be that televising its own proceedings would violate the rules laid down for federal courts. Recording in Federal Courts In 2010, the U.S. Supreme Court struck down a plan by U.S. District Court Judge Vaughn Walker to televise the California Proposition 8 hearings, citing rules for televising federal court proceedings. This policy for federal courts barring all video recording remains largely the same today. However, there have been pilot programs in the last few decades designed to test video recording in the federal courts, some of which are continuing in 2014, according to USCourts.gov. The contemporary pilot program has allowed federal judges in more than a dozen district courts to approve the recording of court proceedings, but the program is set to expire in 2015. Though this seems a step in the direction of more transparency for federal courts, as of now, there are no plans by the U.S. Supreme Court to allow video recording. Related Resources: Unauthorized video of U.S. Supreme Court protest posted online (Reuters) Justice Kagan Talks Cameras in the Supreme Court, Collegiality (FindLaw's U.S. Supreme Court Blog) Courtroom Cameras Coming to Western Federal Courts (FindLaw's Law and Daily Life) SCOTUS to Allow Cameras in Court (FindLaw's U.S. Supreme Court Blog)
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