2016-2017 Course Offerings at Columbia Law School


Posted on June 24th, 2016 by Elizabeth Boylan

Columbia Law School recently announced it’s lineup of classes for the 2016-2017 Academic Year.  We’re pleased to see the number of courses devoted to studying civil rights, racial justice, LGBTQ rights, gender justice, and the problems of mass incarceration.

The full list of courses may be found here, but we’ve selected a few highlights for our friends, colleagues, and students that we list on our webpage, and in the list below:


FALL 2016


Antidiscrimination Law
Jessica Bulman-Pozen
Law – L6905-001

This course will provide an overview of federal constitutional and statutory antidiscrimination law while encouraging students to consider the proper role of the law in addressing discrimination and inequality. The focus will be on discrimination based on race and sex, but some attention will also be given to discrimination based on other characteristics, including sexual orientation and disability. We will explore: competing frameworks for antidiscrimination law; constitutional and statutory doctrines, including disparate impact; the roles of courts, legislatures, and administrative bodies, as well as private actors, in addressing discrimination; models of bias; and justifications for affirmative action. The course will consider such issues in a range of contexts, including employment, education, and housing.


Human Rights
Catherine Powell
Law – L6276-001

This is a core course in the Law School’s human rights curriculum. The course examines issues ranging from the extraordinary rendition of terrorism suspects to mass atrocities to basic rights to housing, speech, sex equality, LGBT rights and more. The course begins with the origins of the idea of rights from an historical, philosophical and analytical perspective. It then turns to the rise of the modern international human rights regime, including its origins and theoretical foundations, examines the basic international and regional human rights instruments and oversight and enforcement institutions, and considers remedies under both international and domestic law. The course considers the role of human rights law in the U.S. domestic system, as an example of the role of national law and institutions in securing human dignity. It also examines the human rights of women and refugees, the relationship between international criminal law and international humanitarian law and human rights law, and the human rights responsibilities of business enterprises. The course also covers selected rights from a comparative perspective (including international, U.S., and other national approaches), including comparative approaches to such topics as the protection of economic and social rights, equality and privacy in the context of LGBT rights, and the protection of rights in counterterrorism efforts.


Seminar: Civil Rights Lawyering in the Modern Era: Theory and Practice
Kendall Thomas and Myrna Perez
Law – L8155-001

This Tutorial Seminar will investigate issues in contemporary civil rights law and policy across a variety of settings. Particular attention will be given to controversies and questions that have been the subject of recent Supreme Court and appellate litigation or national policy debate. Seminar members will consider contemporary civil rights questions that have arisen in a number contexts, which may include: voting rights; employment discrimination; access to equal educational opportunity; fair housing and fair lending; barriers to reentry for individuals with prior criminal convictions; race and criminal justice; cybersecurity, privacy and civil rights, and immigrants’ rights. After examination of the current statutory and doctrinal framework for addressing discrimination and inequality in each of the selected areas, the seminar members will explore the practical and theoretical issues civil rights litigators and legislative lawyers face in each of the mentioned fields. Through close reading and critical analysis of the assigned materials, seminar members will develop a sense of the context-specific character of civil rights lawyering. Invited guests from both government and non-governmental practice will offer experiential perspectives on civil rights lawyering across a number of discrete institutional and professional locations. Finally, seminar students will consider and assess a broad range of remedial approaches for addressing discrimination and inequality in each context, and consider the structural and conceptual limits of contemporary civil rights law, policy and practice.


Seminar: Critical Human Rights Theory
Kendall Thomas and Thomas Keenan
Law – L8284-001

During the second half of the twentieth century, the idea of universal human rights emerged as a powerful source of legal and political discourse and governance, both within and across states. At the beginning of the twenty-first century, however, consensus regarding the meaning, interpretation and application of contemporary human rights norms continues to elude us. Once taken-for-granted notions bequeathed to us by the liberal humanist tradition–of a sovereign, rational human subject; of a shared human condition; of inalienable global human rights–are now radically contested, on conceptual as well as practical grounds. This three point, two hour weekly Tutorial Seminar will explore some of the classical and contemporary critical writing that has questioned the theoretical foundations of the human rights idea.


Seminar: Human Rights, Law and Development Workshop
Edwin Rekosh
Law – L9252-001

Discredited in the 1970s when it took the form of the “law and development movement,” international assistance in the area of reforming laws and legal institutions has flourished anew in the last two decades under the rubric of “building the rule of law.” In parallel, a human rights approach to international development has become mainstream, as most recently reflected in the adoption of SDGs (Social Development Goals) by the United Nations — particularly Goal 16: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”The course will examine how human rights plays out in the 21st century against the backdrop of a quasi-consensus on the rule of law, explosive growth of locally-based advocacy organizations and accelerating economic globalization. In particular, the course will examine the fast-developing counter-trend that is constricting the space for local civil society as governments adopt new legislation and policies designed to reign-in the global forces that have been supporting the development of rights-claiming at the national level.


Human Rights Clinic
Sarah Knuckey and Benjamin Hoffman
Law – 9233-001

The Human Rights Clinic prepares students for lifelong careers in social justice advocacy around the globe. Through the Clinic, students join a community of advocates working to promote human rights and to recalibrate the global power imbalances that drive economic and political inequality, exploitation, threats to physical security, poverty, and environmental injustice. Through fact-finding, reporting, litigation, media engagement, advocacy, training, and innovative methods, the Clinic seeks to prevent abuse, promote accountability, and advance respect for human rights. Embedded in the Clinic’s work is a commitment to the values of equality and mutual exchange in transnational partnerships; respect for rights-holder autonomy, voice, and power; and diversity, inclusion, full participation, and justice within the human rights field.Through a combination of Seminars and Project Work, and with the mentorship of Clinic professors and supervisors, students develop the wide range of skills necessary to be strategic and creative human rights advocates, critically analyze human rights, and advance the human rights methodologies of the Clinic and the human rights field.


Mass Incarceration Clinic
Brett Dignam and Farhang Heydari
Law-L9256-001

Challenging the Consequences of Mass Incarceration is a clinic that will focus on litigation in federal court and resolution of claims related to prisoners’ conditions of confinement. Students will visit clients in state and federal prisons where they will interview, counsel and develop strategies. In collaboration with non-profit organizations and small civil rights law firms and subject to the law student intern rules, clinic students will litigate issues identified by the clients.Although the identification of cases will be done collaboratively with the clients, projects may include a federal habeas action on behalf of a state prisoner raising an actual innocence claim and conditions claims from MDC Brooklyn. It is anticipated that claims related to medical care and mental health will become part of the clinic’s docket. Students will continue to work with the community and the New York City Probation Department in an effort to eliminate barriers to successful reentry.


Externship: Domestic Violence Prosecution
Scott Kessler
Law-L6607-001

The Domestic Violence Bureau offers a fieldwork opportunity, in which students are able to prosecute misdemeanor crimes on behalf of the State. Students will have the opportunity to apply law they learned in Criminal Law, Evidence, Criminal Adjudication and other classes. Operating under an Appellate Division special practice order, each student will be responsible for about 15 to 20 active domestic violence criminal cases and may work on other cases. Students will get the opportunity to argue pre-trial motions and take their cases to trial in a first-chair capacity as needed. Students also will subpoena relevant evidence, draft complaints, prepare discovery materials and negotiate pleas with defense counsel. They also will interview victims and meet with police, defense counsel and judges, seeking the right solution to cases that are fraught with consequences for the victims, defendants and families. To the extent possible, matters of discretion (e.g. what to charge, what plea to offer, what evidence to subpoena) are left to the student’s judgment. Thus, each student is forced to grapple with the tough decisions inherent to domestic violence prosecutions. Students will spend at least 10 hours per week working at the Bureau and appearing on their cases in Queens Criminal Court (located next to the E and F subway stop in Kew Gardens, Queens).


SPRING 2017


Family Law
Solangel Maldonado
Law-L6252-001

This course examines the evolution of legal policy toward the family in response to important social changes in the late 20th and early 21st centuries. These changes, which have shaped modern family law, include evolving gender roles in families and in society, the redefinition (and declining importance) of marriage, the expansion of non-marital families, and the increasingly effective advocacy by gays and lesbians for legal recognition of their family relationships. Against this backdrop, the course will focus on the legal regulation of marriage and other intimate adult relationships, and of the parent-child relationship. Substantial time will be devoted to premarital agreements, the meaning of marriage and marriage regulation, including the movement toward recognition of same sex marriage, divorce grounds, child custody, economic aspects of marriage dissolution (including spousal support and division of property by courts as well as private ordering through contracts), child support, the establishment and termination of non-marital relationships, establishing parenthood, and adoption.


Gender Justice
Katherine Franke
Law-L6506-001

This course will provide an introduction to the concrete legal contexts in which issues of gender and justice have been articulated, disputed and hesitatingly, if not provisionally, resolved. Readings will cover issues such as Workplace Equality, Sexual Harassment, Sex Role Stereotyping, Work/Family Conflict, Marriage and Alternatives to Marriage, Compulsory Masculinity, Parenting, Domestic Violence, Reproduction and Pregnancy, Rape, Sex Work & Trafficking. Through these readings we will explore the multiple ways in which the law has contended with sexual difference, gender-based stereotypes, and the meaning of equality in domestic, transnational and international contexts. So too, we will discuss how feminist theorists have thought about sex, gender and sexuality in understanding and critiquing our legal system and its norms.For more information, go to: http://web.law.columbia.edu/gender-sexuality/faculty/katherine-franke/gender-justice


Human Identity and the Scientific Revolution
Patricia Williams
Law-L8678-001

This class will explore the challenges of translating the coded “œtext”€ of the double helix into the taxonomies of law, public policy, social science. We will consider the balancing of interests in the evolving intersection of DNA technology and the law, particularly as a contrasting set of scientific conventions and legal discourses.The human genome project has complicated the Anglo-American jurisprudential model, premised as so much of it has been upon a Manichean divide between mind and body, freedom and instinct, intellect and impulse. In addition, genetic modification and “€œbioprospecting”€ of microbial, plant and animal life forms have vexed the meanings of “€œproperty,” “€œnature,” “€œregulation”€ and “reproduction.”  Finally, in a world where DNA can pinpoint a range of medical or biological inequalities, the very cornerstone of our constitutional identity–the notion of equal personhood–is increasingly undercut by confusions about the distinction between cultural (or “€common sense”€) norms and reproducible scientific insight. That is, socially-constructed, pseudo-biological taxonomies like “€œrace”€ or “€œdisability”€ are given new if misleading life when falsely interwoven with the authority of genetic sequence.The challenge we face is how to chart an ethical course in the face of nearly unprecedented technological leaps and expansion of human understanding. How can we re-examine the etymological history hidden in common metaphors or the unconscious images embedded in the language we bring to the enterprise of knowledge production? What principles or philosophical coordinates do we employ in deciding what’€™s right and what’€™s wrong in confronting these evolving moral, legal and policy challenges?


Seminar: Domestic Violence and the Law
Dorchen Leidholdt
Law-L8006-001

This seminar provides an in-depth examination of the issue of domestic violence, and the movement to advance the rights of survivors, from legal, historical, and multidisciplinary perspectives. It explores a wide range of topics across legal practice areas, including police and prosecutorial response, expert witness testimony, domestic violence survivors as criminal defendants and prisoners, legal remedies for victim safety, domestic violence and child custody, civil rights and civil actions, legal remedies for battered immigrants, economic justice for intimate abuse survivors, the intersection of intimate partner and related forms of gender violence, and domestic violence as a human rights concern. Many of the topics are approached using case studies drawn from actual cases handled by Ms. Leidholdt and other attorneys at the Center for Battered Women’s Legal Services, which she directs.Special emphasis is placed throughout on the evolving response of state systems to intimate partner violence–especially criminal justice, child welfare, immigration, and human resources–as well as parallel developments in jurisprudence and theory. Students will explore and assess the legal and social justice strategies that contributed to these developments, from impact litigation to campaigns for legislative and public policy reform. In lieu of a textbook, students will be given The Lawyer’s Manual on Domestic Violence, 6th Edition, which Ms. Leidholdt edited. Students will also be provided with a weekly packet of readings drawn from case law, state and federal statutes, legal and social science commentary, and redacted litigation materials from actual cases handled by Ms. Leidholdt and the attorneys she supervises.


Seminar: Human Rights at Home: U.S. Human Rights Advocacy
Risa Kaufman
Law-L8044-001

This seminar explores the use of human rights strategies to advance social justice lawyering in the United States. In advocacy on issues ranging from racial disparities in the criminal justice system to access to healthcare, U.S. lawyers are increasingly using the human rights mechanisms of the United Nations and Inter-American Human Rights System, drawing on international human rights and comparative foreign law in litigation in U.S. courts, and engaging in broader advocacy such as documentation, organizing, and education. They find that a human rights framework provides new and cross-cutting strategies and highlights the interdependence of rights. Indeed, the human rights framework is having a profound impact on social justice lawyering in the United States.This seminar contextualizes and explores the growing movement to incorporate human rights strategies into U.S. social justice lawyering while preparing students to thoughtfully engage these tools in their own practice of law. We begin the semester by exploring the historical context of the contemporary U.S. human rights movement and developing an understanding of the sources of human rights in U.S. law. We then examine the ways in which advocates have sought, in recent years, to incorporate human rights discourse and practice into their domestic efforts to advance rights defense and promotion in general, and institutional responses to those efforts. The seminar explores litigation efforts, as well as non-litigation strategies, including engaging UN mechanisms and mobilizing grassroots communities. Through course materials, discussion, and guest speakers, we investigate the promise of domestic human rights strategies, along with the challenges and limitations. Many of the examples considered in readings and in discussion draw on advocacy related to economic and social rights, as well as work to advance racial justice in the United States.


Seminar: International Human Rights Advocacy
Hina Shamsi
LWPS-W8829-001

This seminar considers major issues in contemporary international human rights from the perspective of the advocate. The initial class sessions will familiarize participants with key human rights standards and their implementation and enforcement through international, regional and national institutions and by non-governmental organizations. The remainder of the seminar will evaluate human rights advocacy tools and strategies applied in current political and social contexts and through case studies. We will critically examine the role of institutions and non-governmental organizations in upholding, advocating or failing to uphold international human rights standards. Topics are wide-ranging and include the challenges and opportunities presented to human rights advocates by: developments in national security and counterterrorism laws and policies; the intersection of international human rights and humanitarian law; and, how “positive” economic and social rights can and should be enforced in market economies and resource-challenged developing countries. We will have several human rights activists as guests.


Seminar: Mass Incarceration
Brett Dignam and Jeffrey Fagan
Law-L9612-001

This seminar examines detention centers, jails, and prisons in an era of “hyper” or “mass” incarceration. Nearly 2.4 million Americans are now behind bars, roughly one in every 100 adults, far more per crime than any other industrialized nation. If we include persons on parole or probation, one adult in 31 is under correctional supervision. Criminologists say that the experience of incarceration is so pervasive among some social groups as to be a defining feature of their collective (rather than individual) experience. We will examine both how people get to prison and their experiences once there. We will look beyond the institutional walls to analyze external regulation and oversight by executive or other public bodies, the influences of organizations of correctional professionals, legislation addressing detention and incarceration, and litigation brought by public and private actors.

This course is designed to stimulate students to think critically about contemporary punishment practices, and the serious social and economic consequences of mass incarceration. What accounts for the growth of incarceration, including both prison and jail? What have been the effects of the prison build-up on individuals, their families and communities? What are the social costs of incarceration in the communities that send the most persons to prison? What are the public safety consequences? What happens to inner-city communities when prisoners return in need of social and economic support? What happens to the children of incarcerated parents? How shall we interpret and critique the development of “supermax” prisons in the 1970s that place individuals into indefinite solitary confinement? What happens after people are released from prison? We will address these topics, bringing legal, statutory, policy and criminological perspectives to bear on these important policy topics.


Seminar: Race and Gender in Corporate Law, Governance & Theory
Aaron Dhir
Law-L8808-001

This seminar explores the intersections of race and gender with corporate law, governance, and theory. The confluence of these fields, to date, has garnered little attention. Traditionally, the disciplines have lived in remote houses and have had few occasions to speak to one another. And yet, almost 30 years ago two feminist scholars argued that “the impacts of corporate cultures are not…marginal to the experiences of women” and bemoaned “the relationship between patriarchal culture and the development of business corporations.” And as noted by a leading scholar of racial justice, “[r]ace suffuses all bodies of law…even the purest of corporate law questions within the most unquestionably Anglo scholarly paradigm.”In addressing these intersections, topics such as the following will be considered:

(1) race and gender in the corporate law curriculum;

(2) feminist engagement with corporate law doctrine and theory;

(3) critical race engagement with law and economics and corporate law theory

(4) corporate board composition and the implications of homogenous boards for organizational performance and social justice;

(5) legal reform strategies aimed at addressing corporate board homogeneity;

(6) the use of corporate law tools to address gender and race issues; and

(7) corporate law in the transnational sphere and the implications for indigenous communities.


Seminar: The Anatomy of Autonomy: From Personhood to Personification
Patricia Williams
Law-L8174-001

This course will examine what it means to be a person in the eyes of the law. We will examine the rhetorical framing that infuses our conception of living subjects, legal persons, non-persons and things. The line between human and subhuman, or person and thing, is given new urgency in an era when the limits of incarceration, torture, human trafficking, medical experimentation, and the right to due process often turn on newly minted meanings of words like “enemy combatant,” “IQ,” “underclass,” “market choice,” “race,” “terror” or “illegal immigration.” If slavery is “unthinkable” to most people today, why? How do we keep bringing the unthinkable back into being? What connection do historical taxonomies have to the contemporary perpetuation of genocide, torture, disappearance, starvation? What disconnections? What about us is truly or essentially “inalienable”?Whom we consider a person, whom we label less than fully endowed, are questions that inform some of the most urgent legal and political questions of our time. We will look at legal opinions, historical documents, as well as texts in philosophy, anthropology, linguistics, literary criticism, and popular culture.


Seminar: Topics in Sexuality Law
Katherine Franke
Law-L9549-001

This seminar, previously called the Queer Theory Workshop, will explore in the spring of 2014 the ways in which appeals to religion, tradition and/or culture have been increasingly used to limit or trump the application of otherwise generally applicable laws securing equal rights for LGBT people and reproductive/sexual rights more generally. The seminar will cover the legal and political contexts in which religion or conscience are used to carve out exceptions to otherwise universally binding rights of equality and sexual liberty.The seminar sessions will be comprised of outside speakers for half of the sessions and selected readings related to the work of the outside speakers in the intervening sessions.


Seminar: Vision, Action and Social Change
Susan Sturm and Richard Gray
Law-8019-001

This field research seminar and practicum, co-taught by Professors Susan Sturm and Richard Gray, the Director of Community Organizing and Engagement at the Annenberg Institute for School Reform, will explore innovative ways to reduce structural inequality and advance full participation in educational institutions and surrounding communities, with a particular emphasis on education and criminal justice. The seminar and field research projects will expose students to cutting edge, collaborative approaches to community and policy change through an action research approach connecting theory and practice.In class, the seminar will examine the dynamics that have produced growing inequality and shrinking mobility, limited quality education for under-served groups and communities, and the world’s highest incarceration rate. We will investigate strategies for enabling leadership of communities directly affected by these dynamics, building collaborative networks, mobilizing institutional and community-level change, achieving collective impact, and changing public policy informed by community needs. The course also provide training on qualitative interviewing, data analysis, network mapping, and policy research and examines the role of innovative lawyers in participating in this kind of community and systems change.For the fieldwork, students will undertake collaborative action research and policy projects, connected to ongoing change initiatives in their assigned setting. They will have the opportunity to work closely with leadership, staff and community members in their field research site. The course also offers students the opportunity to develop knowledge and capabilities that are crucial to be effective in advancing social change in a wide variety of contexts, such as facilitation, problem framing, using multi-disciplinary knowledge, conducting institutional analysis, mapping, collaboration, information gathering and analysis, and multi-media presentation.


Sexuality and Gender Law Clinic
Suzanne Goldberg
Law-L9232-001

The Sexuality and Gender Law Clinic provides students with a cutting-edge opportunity to step into the shoes of lawyers advocating on sexuality and gender law issues. The clinic’s cornerstones are collaboration, communication, and a multidimensional approach to advocacy.For much more information about projects and pedagogy, please see the Clinic’s website: http://web.law.columbia.edu/sexuality-gender-clinic/about

In the wake of last Sunday’s tragedy, wherein 49 people were murdered at a Latinx Night in an LGBTQ nightclub in Orlando, Florida, in a violent attack that left more than another 53 people injured, the question that so many people beg the answer for is “Why?”

As the attacker was shot and killed by police, we cannot ask him what his motivations were, and speculating on the thoughts of a dead man is a dangerous proposition, as he cannot address any assumptions made.

I can’t speak to the individual who perpetrated the attack’s motives.  I won’t speculate on the affiliations or beliefs that this individual held, as they are not relevant, and making misinformed assumptions about persons’ identities and beliefs contributed to this attack in the first place. I will, however attempt to speak, in part, to the larger culture wherein this violent attack occurred, and how this larger culture, contributed to this tragedy.

What is clear is that this is an act of violence that clearly targeted the LGBTQ community, and specifically Latinx persons in the LGBTQ community.  Communities of color and ethnic minorities in the LGBTQ community are disproportionately subject to anti-LGBTQ violence, and the tragedy that occurred on Sunday morning is a gross and shocking example of this.

Persons of color were those on our continent first subject to erasure and systemized marginalization as a result of European colonialism and xenophobia.  The first nations that existed in North, Central and South America have largely been erased through genocide and systemic oppression.  Those individuals who survived or escaped genocide by capture or forced submission were enslaved or interred.  Additional persons of color from around the world were murdered, enslaved, and exploited for European and American capitalism.

LGBTQ identities are consistently marginalized and rendered invisible in larger dialogue.  Queer identities, gender-non-conforming and transgender individuals are particularly subject to marginalization and erasure.  By definition, something that is queer challenges the perception of normalcy and the status quo – – queerness is a curiosity, a transfiguration.  To be queer in a society that venerates heteronormativity is an act of personal and political revolution, one that is met with discrimination, violence, and systemic oppression.

Despite a popular culture that waxes poetic about equality, rights, and justice, our country’s legal system and politics speak to a grim reality.  The United States only denounced racial segregation in public schools as unjust in the case of Brown v. Board of Education in 1954.  The Civil Rights Act was only enacted 52 years ago in 1964, Title VII of which “prohibits employment discrimination based on race, color, religion, sex, or national origin.”[1]  And, it wasn’t until October of 2009 that crimes committed “… where the commission of such offense ‘evidences prejudice based on… sexual orientation… of the victim.’”[2] were classified as Hate Crimes under Federal Law[3].  “According to the Florida Attorney General, hate crimes based on sexual orientation currently account for 22 percent of all hate crimes, surpassing religion as the second highest category. Race is still the most common motivation. When taking into account the size of the targeted communities, LGBT Floridians are at the highest risk of being targeted with a hate crime.”[4]  The fact that the attack in Orlando on Sunday, June 12th targeted a group of people whose identities intersect as members of a racial minority and that of a minority sexual orientation speaks to the prevalence of how vulnerable multiply marginalized persons are to violent hate crimes.

Based on a 2010 survey by Pew Research Center, 84 percent of Latinx persons cited discrimination against Latinx persons as a problem, with 61 percent of those respondents noting that it was a ‘major problem’; these figures represented an increase from a survey conducted in 2007, wherein only 78 percent cited it as a problem and only 54 percent felt it was a ‘major problem.’[5]  This represents an increase in discriminatory attitudes and behavior by larger society towards Latinos.  Additionally, according to another Pew Research Report, Latinx persons “are the second most discriminated against racial minority in the United States, after African Americans.”[6]

While Title VII protects individuals’ workplace rights based on ethnicity, “There is currently no federal statute prohibiting private sector sexual orientation discrimination in the workplace.”[7]  No federal statute prohibits discrimination against employees based on gender identity.  While some states have adopted laws that offer employment or housing protection for LGB individuals, Florida, as a state, is not among them; even fewer states have adopted laws that offer employment or housing protection to transgender individuals.  Though some cities and municipalities in Florida have adopted anti-discrimination policies that prohibit discrimination against some LGBTQ persons, Equality Florida Action, Incl., reports that more than 53 percent of Florida citizens inhabit places where they can be denied housing or employment based on their sexuality.

In 2013, the Pew Research Center released a comprehensive national survey of LGBTQ Americans reporting on experiences of societal perceptions of LGBTQ identities.  The survey “offers testimony to the many ways [LGBTQ persons have] have been stigmatized by society…. (39%) say that at some point in their lives they were rejected by a family member or close friend because of their sexual orientation or gender identity; 30% say they have been physically attacked or threatened; 29% say they have been made to feel unwelcome in a place of worship; and 21% say they have been treated unfairly by an employer. About six-in-ten (58%) say they’ve been the target of slurs or jokes.”[8] While many of these incidents were not reported as criminal offenses, they represent a pervasive pattern of discriminatory and harmful behavior rooted in homophobia and transphobia that deny the dignity of LGBTQ persons.

Another research survey, conducted by the Henry J. Kaiser Family Foundation investigated ways in which LGBTQ persons’ access to and experience of health care in the United States differed from that of non-LGBTQ persons.  Their reporting notes that:

Health is shaped by a host of social, economic, and structural factors. For LGBT individuals, these factors include the experience and impact of discrimination, stigma, and ostracism which affect health outcomes, access, and experience with health care. Research available to date finds that while sexual and gender minorities have many of the same health concerns as the general population, they experience some health challenges at higher rates, and face several unique health challenges.[9]

Additionally, “bias and discrimination in the health care system have been… unfortunate … In addition to provider level discrimination… some policies in the insurance and financing system have disproportionately affected LGBT people, including pre-existing condition clauses permitting plans to deny insurance to people with conditions such as HIV, mental illness, or to transgender individuals….”[10].  Without adequate access to proper health care, LGBTQ persons are further disadvantaged in relation to non-LGBTQ citizens – – as LGBTQ persons are more likely to suffer from mental illness, substance abuse issues, and other chronic health problems.  This is compounded by the fact that many LGBTQ persons – especially transgender and gender-nonconforming persons – are less likely to have stable employment or sources of income. These factors magnify the marginalization of LGBTQ persons and put them at risk for further health problems, economic instability, subjecting them to additional social stigmatization.

These factors combine to develop a portrait of a country that does not afford LGBTQ persons the same legal rights as non-LGBTQ persons.  When a minority group of persons is not afforded the same rights as the majority, it represents not only that society does not value the rights of the minority, but that persons are not accountable to their government for upholding the rights of the minority.  This is the basis of systemic injustice: wherein an imbalance in a legal or social system causes a mutual ripple effect across both legal and social spheres in a state.  These echo chambers of law, policy and legislation, and social stigmatization and behavior have marginalized the LGBTQ community, and symbolize a state that enables widespread intolerance, fear, and hate against LGBTQ persons.

While the existence of anti-discrimination law and policy does not necessarily change societal attitudes towards minority persons, they are a powerful symbol of a legal system that values and commits to protecting the rights of all persons equally. With these laws and protections lacking in the United States, one cannot state that this is a country that truly seeks to uphold the rights of LGBTQ persons as equal to those of non-LGBTQ persons.

It is a dangerous assumption, however, to believe that by simply passing laws that would enable the protection of a marginalized group that all persons will ultimately abide by them.  The United States has seen this clearly through it’s history of systemic racism.  Though the Civil Rights Act was passed in 1964, persons of color are still subject to widespread discrimination and inequality; however, the passing of the Civil Rights Act at the very least represented that the United States Government recognized that person of color were deserving of the same protections as non-racialized persons in the United States. By failing to pass an amendment to the Civil Rights Act or other legislation that would protect the rights of LGBTQ persons, the United States Government denies the fact that LGBTQ persons are deserving of the same protections as non-LGBTQ persons.

The perpetration of these systems of injustice and inequality that ultimately contributed to a society wherein a marginalized group became the target of a violent hate crime.  The perpetuation of these systems of injustice and inequality oppress already marginalized minority communities further.  As a nation and as a society, if we believe in the equal rights of all people, we need to mobilize towards the creation, enactment and enforcement of laws and policies that protect the rights of minority persons and groups: Without this action, any talk about equality is simply noise.

________________________________

[1] Equal Employment Opportunity Commission. “Federal Laws Prohibiting Job Discrimination Questions And Answers.” Accessed 6/16/2016. https://www.eeoc.gov/facts/qanda.html

[2] Equality Florida Action, Inc. “Florida Hate Crimes.” Accessed 6/16/2016. http://www.eqfl.org/node/11

[3] Obama Signs Hate Crimes Bill. Accessed 6/16/2016. http://thecaucus.blogs.nytimes.com/2009/10/28/obama-signs-hate-crimes-bill/?_r=0

[4] Equality Florida Action, Inc. “Hate Crimes.” Accessed 6/16/2016.  http://www.eqfl.org/Hate_Crimes

[5] Pew Research Center. “Hispanic Trends.” Accessed 6/16/2016. http://www.pewresearch.org/daily-number/hispanics-targets-of-discrimination/http://www.pewhispanic.org/2010/10/28/illegal-immigration-backlash-worries-divides-latinos/

[6] Pew Research Center. “Hispanics: Targets of Discrimination.” Accessed 6/16/2016. http://www.pewresearch.org/daily-number/hispanics-targets-of-discrimination/

[7] FindLaw.com, “Employment Discrimination.” http://employment.findlaw.com/employment-discrimination/sexual-orientation-discrimination-in-the-workplace.html

[8] A Survey of LGBT Americans. Pew Research Center.  Accessed 6/16/2016. http://www.pewsocialtrends.org/2013/06/13/a-survey-of-lgbt-americans/

[9] Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S. “Health Challenges.”  The Henry J. Kaiser Family Foundation.  Accessed 6/16/2016. http://kff.org/report-section/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-health-challenges/

[10] Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S. “Impact of Changes in the Legal and Policy Landscape on Coverage and Access to Care.” The Henry J. Kaiser Family Foundation. Accessed 6/16/2016. http://kff.org/report-section/health-and-access-to-care-and-coverage-for-lesbian-gay-bisexual-and-transgender-impact-of-changes-in-the-legal-and-policy-landscape-on-coverage-and-access-to-care/

A Message in Response to the Tragedy in Orlando


Posted on June 16th, 2016 by Elizabeth Boylan

Low Library


The Center for Gender & Sexuality Law joins our allies and friends in acknowledging and supporting all persons suffering as a result of Sunday morning’s hate crime at Pulse Nightclub in Orlando.

We also acknowledge the particular vulnerability and pain experienced by the communities most affected by this tragedy, especially the LGBTQ community, the Latinx community and LGBTQ communities of color.

Following the massacre, we have seen people resort to further hate and bigotry, expressing Islamophobic sentiments regarding the alleged identity and affiliation of the attack’s perpetrator. We refuse to participate in a culture that allows hate to beget further hate.  And we urge careful thought about the language being used to describe this event and to shape responses to it.  In particular, we resist the use of the term “terrorism” to capture the kind of violence suffered by those attacked at Pulse.  Terrorism is defined as “the use of violence and intimidation in the pursuit of political aims.” The term focuses attention on the motivation of the shooter, and diverts attention from “political aims” that enable this kind of violence: a political culture that chooses the interests of gun owners over human life.  The term “terrorism” exceptionalizes these acts of violence and exonerates Congress’s embrace of a well-funded politics of death.  Our political culture is saturated with a kind of necro-politics and this sort of mass murder is its extreme, ugly face.  For this reason we are also troubled by our allies who lament the failure of a bill in Congress that would have denied gun permits to “terrorists.”  Besides the obvious Islamophobia that underwrites this kind of legislation, isolating “terrorists” as the people who don’t deserve to own weapons renders everyone else not so labeled as innocent if not virtuous bearers of Second Amendment rights.

What is vitally important is that we all cultivate a culture that enables us to move away from hate, and towards a dialogue that seeks to dissect fear and cultivate compassion, understanding, and support for the marginalized communities that are suffering most right now.  We also are committed to deconstructing the systemic legal, cultural, and social inequities that enabled this tragedy to occur.

Sunday morning’s hate crime has left many people feeling a range of intense emotions.  We at the Center for Gender and Sexuality Law believe that feeling those emotions is important, and channeling emotion into passionate action is a positive way to enact change in our world.

At the Center for Gender and Sexuality Law Blog, we have developed a list of12 ways that individuals can take action in the wake of the tragedy in Orlando.  The blog post may be accessed here, and we encourage you as our friends and colleagues to offer any further suggestions you may have.

In Solidarity,

The Center for Gender & Sexuality Law and
The Public Rights/Private Conscience Project


Professor Katherine Franke
Sulzbacher Professor of Law and Director, Center for Gender & Sexuality Law

Elizabeth Reiner Platt
Director, Public Rights/Private Conscience Project

Kira C. Shepherd
Associate Director, Racial Justice Program

Liz Boylan
Assistant Director, Center for Gender & Sexuality Law


12 Ways to take action in the wake of the tragedy in Orlando


Posted on June 14th, 2016 by Elizabeth Boylan

12 Ways to take action in the wake of the tragedy in Orlando

Sunday morning’s hate crime against the LGBTQ Latinx community has left many people, especially folks in the Queer community, feeling a range of intense emotions.  We at the Center for Gender and Sexuality Law believe that feeling those emotions is important, and channeling emotion into passionate action is a positive way to enact change in our world.

We offer here 12 ways that individuals can take action, and turn emotion into mobilization.

1) If you have money, consider donating to support the victims of the attack at Pulse Nightclub, here:  https://www.gofundme.com/PulseVictimsFund

2) If you have money, consider donating to LGBTQ Organizations, specifically those that work with Latinx communities.  Four that we love are:  The Translatin@ Coalition: http://www.translatinacoalition.org/  Latino GLBT History Project: http://www.latinoglbthistory.org/, Unity Coalition: http://www.unitycoalition.org/Workshops.html, and the Latino Commission on AIDS: https://latinoaids.org/.

3) If you do not have money, consider volunteering with one of the organizations noted above, or an organization based in your community that is devoted to supporting the LGBTQ community, and fighting hate and injustice against the LGBTQ community.  Six that are based in New York are The LGBT Center: https://gaycenter.org/, The Audre Lorde Project: http://alp.org/, The Ali Forney Center:http://www.aliforneycenter.org/, GMHC: http://www.gmhc.org/, The Brooklyn Community Pride Center: http://lgbtbrooklyn.org/, and The Sylvia Rivera Law Project: http://srlp.org/.

4) Fight the discrimination that shames sexually active MSM “Men who have sex with men” and prohibits them from donating blood.  This discrimination is rooted in homophobia and serophobia and is an injustice to all people.  A petition arguing that all MSM to be able to donate blood may be found here: https://www.credomobilize.com/petitions/tell-the-fda-end-the-ban-on-blood-donations-from-gay-men

5) If you are able to donate blood and feel comfortable doing so, please consider donating.  Donation locations in New York may be found here through the New York Blood Center: http://nybloodcenter.org/donate-blood/where-to-donate-today/, to find donation locations outside of New York, please check in with the American Red Cross website: http://www.redcrossblood.org/donating-blood/tips-successful-donation

6) If you feel safe and comfortable doing so, attend a vigil in your community.  Many LGBTQ Centers have organized vigils to enable community members to come together and honor the dead, and to organize and plan for ending future violence against the LGBTQ Community.  In New York, vigils were held at the LGBT Community Center, and at the Stonewall Inn, and people have begun using the public space outside of these locations to honor those whose lives were lost: http://www.thestonewallinnnyc.com/StonewallInnNYC/Welcome.html.  Tonight, June 14th, there will be one at Grand Army Plaza, in Brooklyn: https://www.facebook.com/events/568689859977577/.

7) If you do not feel safe going to a larger vigil, as there is sometimes an increased police presence in these places and many marginalized communities are disproportionately scrutinized by police, consider going to an alternative vigil.   Some small organizations are putting together smaller vigils, and through community forums (Queer Exchange on Facebook, Listservs, et cetera) many individuals are using these online spaces to develop dialogue around mourning and creating safe spaces for expressing grief.

8) Check out the National Coalition of AntiViolence Programs: http://www.avp.org/about-avp/coalitions-a-collaborations/82-national-coalition-of-anti-violence-programs, and the New York City AntiViolence Project: http://www.avp.org/, and get involved.  The NCAVP and the AVP are committed to ending violence, and specifically focus on ending violence against minority communities and communities more prone to violence as a result of systemic injustice.

9) While the primary issue at the heart of the Orlando massacre is homophobia, it also represents the single largest shooting in American History. We recognize that changes in gun control legislation could reduce the impact of gun violence in the United States.  We encourage you to visit the Law Center to Prevent Gun Violence, and learn through them how you may get involved, if you choose to, in creating change in gun legislation and law: http://smartgunlaws.org/.

10) Do not counter hate with further hate.  Following Sunday morning’s massacre, we have seen a great deal of violence and anger against the Muslim community, due to Islamophobia, and misunderstanding about the ways in which some individuals use religion to justify violence against others.  Fight Islamophobia, and acknowledge and correct people when they blame this event on faith, or use incorrect, harmful and hateful terms like “Radical Islam.”  Support the Islamic community, and learn more by visiting the Council on American Islamic Relations, here: http://www.islamophobia.org/.

11) Reach out to friends in the LGBTQ community and offer support.  Discuss what happened, and how you feel about it.  Discuss things that you want to see happen, and begin making plans to enact change.

12) Practice self-care.  Grief is an important means of processing tragedy, and it is important to allow yourself to process any emotions that you are feeling about the tragedy in Orlando.  Learn about the grieving process at helpguide.org: http://www.helpguide.org/articles/grief-loss/coping-with-grief-and-loss.htm.  In the words of a wise friend, “Healing is not a linear process.”  Take time, take care, and stay safe.

 

We are pleased to announce that we are seeking an Associate Director to work with the Public Rights/Private Conscience Project at Columbia Law School.

The job description is as follows below, and may be accessed via Idealisthttp://www.idealist.org/view/job/xjk6T6cT55Cp/

Job Description

Columbia Law School seeks an Associate Director to serve as part of the project’s onsite team reporting to Elizabeth Reiner Platt, Project Director of the Public Rights/Private Conscience Project at Columbia Law School.

The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. It’s mission is is to conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and to disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

Responsibilities

Programming

  • Conduct legal and policy analyses of state and federal proposals that would expand the scope and nature of religious liberty rights.
  • Play a key role in formulating and executing a pilot project to engage state attorneys and solicitors general around the tension between sexual and reproductive rights/liberty and religious liberty, with the goal of sparking state-level outcomes from the relevant offices.
  • Facilitate participation of academic partners in efforts to publicize the impact of religious exemption laws on PRPCP’s focus issues and communities.
  • Work with the PRPCP Director to build our capacity to actively participate in the multiple advocacy coalitions forming around religious exemption work, particularly in the reproductive rights and LGBT rights communities, and to undertake more collaborative work with advocacy organizations.
  • Maintain PRPCP’s presence on social media, including Facebook, Twitter, and regular content posting to PRPCP’s blog. (10%).
  • Assist in logistical planning for meetings, convenings, and conferences.
    Management & Funding

Work with Director to identify potential partners for programs, projects, and initiatives.

  • Assist in drafting grant proposals and annual budgets for Program initiatives.
  • Assist in preparing grant reports and other compliance documents required by Columbia Law School or Columbia University.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 1, 2016 – The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School is delighted to announce that Elizabeth Reiner Platt has been appointed as the Project’s Director, effective today.

Liz Platt joined the PRPCP last November as Associate Director, and has led our efforts to address the constitutional infirmities of legislation introduced in scores of state legislatures that would create overly broad religious liberty rights.

A graduate of NYU School of Law, Liz was awarded a Flora S. and Jacob L. Newman Prize (Outstanding Note for the Review of Law & Social Change) for her Note, Gangsters To Greyhounds: The Past, Present, And Future Of Offender Registration, 37 N.Y.U. Rev. L. & Soc. Change 727 (2013).  After law school she was a Carr Center for Reproductive Justice Fellow at A Better Balance, and then worked as a staff attorney with MFY Legal Services representing clients with mental illness.  She currently serves on the New York City Bar Association Sex and Law Committee and the Urban Justice Center Sex Workers Project Host Committee.

“I am excited to have Liz succeed Kara Loewentheil as Director of the PRPCP, leading the preeminent academic think tank conceptualizing the constitutional and policy implications of religious exemptions and their relationship to reproductive and sexual liberty, and racial, sexual and sexual orientation-based justice,” said Professor Katherine Franke, the PRPCP’s Faculty Director.

“I’m delighted to take on this new role at the PRPCP,” said Liz Platt. “It’s clearly a critical moment to examine the tension between religious rights and sexual, racial, and reproductive freedoms, and I look forward to continuing and expanding the Project’s important work at the intersection of law, policy, and academic scholarship.”

For more about Liz Platt go here.  The Public Rights/Private Conscience Project’s website is here.

Silent Spring: Where have the queer voices gone?


Posted on April 22nd, 2016 by Elizabeth Boylan

An Earth Day Blog Post


There was a strange stillness…. It was a spring without voices.  On the mornings that had once throbbed with the dawn chorus of robins, catbirds, doves, jays, wrens, and scores of other bird voices there was now no sound; only silence lay over the fields and wood and marsh….

….A grim specter has crept upon us almost unnoticed…What has already silenced the voices of spring in countless towns in America?[1]


When I was 17, I took the train in from Long Island to a gay pride parade in New York City, and it was like the rainforest: there was so much beauty, diversity, and richness in community and joy in difference that I could see.  People cried into megaphones, “We’re here, we’re queer, get used to it!” asserting the rights of LGBTQ people to exist, and to be acknowledged.  It was a call to action for queers to be present, and for recognition by non-queers: it spoke to the diversity inherent in humanity.

Diversity in society and in culture is analogous to biodiversity – the ways in which individual organisms relate with communities, their habitat, and their concentric and overlapping biotic systems is parallel to how humans interact with one another in an increasingly globalized world.

In 1962, Rachel Carson published Silent Spring.  Carson opens with a cautionary fable: she describes a world gone quiet, devoid of natural diversity, where people fall ill quickly and mysteriously, and towns and communities implode from the impact of death and loss.  Carson’s book was a thoughtful response and outcry against the ways in which the United States Department of Agriculture and Agribusiness’ uses of chemical pesticides for the purpose of controlling insect, fungal, and bacterial populations was having unintended consequences on myriad ecosystems in the United States.

The use of chemical pesticides had been touted as a ‘solution’ to dealing with pest populations of insects, fungi and bacteria by the United States Department of Agriculture.  These solutions, included substances such as dichlorodiphenyltrichloroethane (DDT), dichlorodiphenyldichloroethane (DDD), and benzene hexachloride (BHC).  As a solution, it is simple: spray chemicals, and the pests will die; however, this equation failed to recognize how complicated the algorithms of ecology are, and as such, was wholly unbalanced.

The unintended results of this solution were myriad: plants and animals produced for farms by human consumption were ultimately inedible and toxic to humans, due to biomagnification: the phenomena wherein contaminant concentrations increase in accumulation as it passes up the food chain through multiple trophic levels.[2]  Biomagnification also accounted for declines in bird populations, as the high concentrations of DDT in their bodies weakened the shells of their eggs, nullifying their viability. The presence of DDD and BHC in soil systems inhibited nitrogen-fixation by bacteria that have positive mutualistic relationships with plants. Upon using pesticides to eradicate fire-ants in the Southern U.S., farmers came to realize that the fire-ants had been consuming boll-weevils, which can decimate cotton crops[3]; The bacteria and fire-ant’s value were only conspicuous by their absence.

What was deemed to be the “problem” that the United States responded to with the widespread use of insecticides were the existence of pest insect, fungal and bacterial populations in certain agricultural sectors.  This maybe wasn’t so much a ‘problem’ but a symptom of a larger issue – – a system out of balance.  By attempting to selectively micromanage this facet – to “treat the symptom” as it were – the United States Department of Agriculture initiated a ripple effect that reverberated through the larger ecosystem.

By focusing on only one element of a system in seeking a solution, the Government lost the forest for the trees… or, the ecosystem for the insects. What was intended to help one small group, ultimately led to detrimental and lethal effects on multiple organisms and communities as a result of feedback loops not taken into account in the development of a solution.

In meditating on Carson’s parable, I’m thinking about the parallels that exist between the organisms harmed and silenced by agricultural interventions in the early and mid-20th century, and the queer communities and individuals threatened and silenced by recent court decisions and legislation in the United States.

On June 26th, 2012, the Supreme Court ruled in Obergefell v. Hodges “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State”.  This has been touted as a landmark decision, and people saw this as a “solution” to the issue of LGBTQ Rights in the United States.  A man could marry another man, and a woman could marry another woman, and their legal and contractual union had to be recognized by states.

The legitimizing and legalization of same-sex marriage by the federal government seems far too simple a solution to something that is not really a “problem,” but one element that is a symptom of a larger issue – a system out of balance.

The system out of balance is the way that federal and state laws and policies consistently value the rights and privileges of straight, heteronormative people over LGBTQ persons in the United States.  Homophobia, biphobia, transphobia, and queerphobia loom large, and oppress, marginalize and silence people in the LGBTQ community.  These forces flatten and oppress voices, and the violence that accompanies these forces – – especially transphobic violence – – is deadly.

There are no federal employment protections for persons based on sexuality or gender identity.  Only 24 out of 50 states have state-wide employment non-discrimination laws that prohibit employment discrimination on the basis of Sexual Orientation; only 21 of those also prohibit employment discrimination on the basis of Gender Identity.[4]  In the 3 months and 22 days of 2016 that have elapsed so far, 11 transgender people have been murdered[5][6].

While the Obergefell case was not poised to be a landmark decision for all LGBTQ Rights in the United States, many pundits and media outlets wanted to champion it as such – – as evidence that some solution had been rendered, and that some social progress had been achieved.  Winnowing issues of homophobia, biphobia, transphobia and queerphobia in American society to an issue of whether same-sex couples are afforded the right to legally marry is reductive and dangerous in its oversimplification.  The issue affords only a singular protection only for persons who do choose to marry.  It ignores the homophobic, transphobic, biphobic, and queerphobic ideas and attitudes that are rampant in the United States, and the ways in which the cultural embrace and acceptance of these attitudes enable violence and discrimination against LGBTQ people every day.

In the nearly 10 months’ wake since the Obergefell decision, states including Georgia, North Carolina, Tennessee, Louisiana, Missouri, and Mississippi have all considered legislation that would legalize discrimination against LGBTQ persons.  While many of these are disguised as State Religious Freedom Restoration Acts (RFRA) or Religious Exemptions[7], several are not, and are based purely in phobias surrounding LGBTQ persons.  We have seen increases in violence against transgender individuals.  There has been a swath of “Bathroom bill” legislation, wherein transgender or gender nonconforming people are denied the right to use a bathroom based on their gender or their perceived gender being perceived as a threat.  Hate is toxic, and it has been magnified and focused against the larger LGBTQ community in the wake of the Obergefell decision.

Just as the use of pesticides as a solution to a perceived agricultural problems in the early- and mid-20th century ignited a chain reaction of unintended consequences, looking to the courts to regulate a single aspect of same-sex couples’ relationships seems to be causing reactions in feedback loops that are larger than the Supreme Court may have conceived would be affected when this solution was rendered.

This is not to put the Supreme Court at fault for all of the negative backlash that has occurred in State Governments or in popular culture as a result of the Obergefell decision. However, it does call into question how short-sighted it was for some groups[8] to so vehemently pursue the right for same-sex marriage.  It also calls into question the ways in which the LGBTQ community rallies, and seeks to exist among a larger ecosystem comprising queers and non-queers in the United States.

In contrast with the raucous spring I experienced years ago in New York City, the call for marriage equality was tame, quiet, and almost insidious.  The call for marriage equality wasn’t one that said “we represent the diversity of humanity” – – it was a weak plea for mercy towards a small subset of LGBTQ people saying: “we’re just like you”.  Those voices from that pride parade, and their ilk – – that cacophony of strong voices that defied gender roles, and sang against heteronormativity – – Those are the voices that are now conspicuous in their absence. They are absent as a result of a flattening and homogenizing of LGBTQ experience; they are absent as a result of violence, and as a result of a larger social and cultural devaluation of the diversity and breadth of the LGBTQ community.


[1] Pages 2-3, in Carson, Rachel. Silent Spring. Boston, Houghton Mifflin, 1962

[2] Nowell, L.H., Capel, P.D., and Dileanis, P.D., 1999, Pesticides in stream sediment and aquatic biota–Distribution, trends, and governing factors: Boca Raton, Fla., Lewis Publishers, 1001 p.

[3] Carson, page 57.

[4] https://www.aclu.org/map/non-discrimination-laws-state-state-information-map

[5] https://en.wikipedia.org/wiki/List_of_unlawfully_killed_transgender_people

[6] This number is likely higher, due to a gross lack of reporting of transphobic violence

[7] For analysis of RFRA legislation by the Center for Gender & Sexuality Law’s Public Rights/Private Conscience Project, see: http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project/policy

[8] http://www.hrc.org/

Link to Document/Text here:
http://bit.ly/1TOUnSu

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 12, 2016

Fifteen law professors, most from universities in Missouri, issued a memorandum today arguing that Missouri’s Senate Joint Resolution 39, which would amend the Missouri constitution to create new and very broad religious liberty rights, is unconstitutional. The Missouri House Committee on Emerging Issues has scheduled a hearing on SJR 39 for this afternoon.

SJR 39 would give many religious organizations, individuals, for-profit entities, and state workers the right to violate municipal antidiscrimination ordinances and contractual obligations that conflict with their “sincere religious belief concerning marriage between two persons of the same sex.”

The amendment would protect a wide range of discrimination in employment, housing, public accommodations, and government services against same-sex couples and supporters of marriage equality. For example, the amendment would allow:

  • A religious hospital to violate a “good cause” provision in a collective bargaining agreement and fire a nurse who expresses support for marriage equality;
  • An adoption agency that has a contract with the city of St. Louis to violate that city’s antidiscrimination ordinance and refuse to work with same-sex couples;
  • A private restaurant chain to break a contract to cater a wedding when it learns that the couple is of the same sex; and
  • A judge to ignore the U.S. Supreme Court and the Missouri Code of Judicial Conduct and refuse to marry a same-sex couple.

The memo, which was spearheaded by the Public Rights/Private Conscience Project at Columbia Law School, concludes that SJR 39 violates the Establishment Clause of the First Amendment by accommodating religion in a way that meaningfully harms other Missourians. It was signed by professors from Washington University in St. Louis, University of Missouri-Kansas City, and Saint Louis University School of Law.

“SJR 39 does not just disrupt the careful balance between religious and secular rights enshrined in the Constitution,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it’s also unconstitutionally vague. It’s impossible to predict the range of otherwise prohibited behavior that would be given absolute immunity under this amendment.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said SJR 39 “is not about religious freedom, which is already very well-protected by the robust liberty of conscience provision of the Missouri Constitution. It merely codifies a right to discriminate.”

Read the memorandum here.

Read the Mississippi Memorandum here:
http://bit.ly/1SNYHiz

Read
 the Georgia Memorandum here:                             http://bit.ly/1pGlmmO

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 5, 2016—More than a dozen law professors with expertise in constitutional and civil rights law have signed memoranda published by the Public Rights/Private Conscience Project at Columbia Law School that analyze two so-called “religious liberty” bills recently passed in Mississippi and Georgia.

Mississippi’s bill, HB 1523, was signed into law today by Governor Phil Bryant. The Project’s analysis concludes that HB 1523 is among the broadest religious accommodation bills to be passed by any state legislature. It builds into state law unconstitutional exemptions for particular religious views on marriage, sexual relations, workplace sex equality, and gender identity. Under HB 1523, religious organizations, individuals, for-profit entities, and even government workers are granted the right to discriminate against a broad range of Mississippians in a variety of contexts including housing, employment, public services, education, and adoption.

Even worse, it prohibits the government from withdrawing grants or contracts from organizations that discriminate, and could therefore lead to the use of taxpayer funds to sponsor religiously-motivated discrimination.

The memoranda, which outline both bills’ constitutional and policy flaws, were signed by a total of 16 law professors from schools including the University of Mississippi School of Law, Mississippi College of Law, Emory University, Atlanta’s John Marshall School of Law, Mercer University School of Law.

“HB 1523 is a solution in search of a problem, as religious belief and practice already receive strong protection under state and federal law,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law. “Rather than strengthening religious liberty protections, the bill radically overreaches by favoring religious believers at the expense of other private citizens.  This amounts to a violation on the First Amendment’s Establishment Clause.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said that the bills “are representative of wave of legislation that has cloaked resistance to LGBT rights, and especially the Supreme Court’s Obergefell v. Hodges decision, as a movement for religious freedom.”

Like HB 1523, Georgia’s HB 757 would have condoned and encouraged both public and private discrimination. Governor Nathan Deal has promised to veto the bill.

While the memos’ signatories have a range of views on the appropriate balance between religious and secular rights, in the words of Governor Deal they “do not think we have to discriminate against anyone to protect the faith-based community.”

Antonin Scalia’s Legacy: The Jurisprudence of Death


Posted on February 26th, 2016 by Katherine Franke

Hdlns1-Scalia Assessing the legacy of a towering figure such as Associate Supreme Court Justice Antonin Scalia turns out to be a bit of a landmine. For some, he stood among the Court’s most brilliant, scholarly and thoughtful justices. While for others, he distinguished himself as a bombastic, small-minded, intolerant bully who disgraced the Court with a kind of behavior that presaged the legitimation of demagoguery we now see in the likes of Donald Trump. “If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia,” political scientist Corey Robin recently observed. “Scalia is the id, ego, and super-ego of modern conservatism.”

When Justice Scalia passed away unexpectedly on February 13th, Georgetown Law School Dean William Treanor issued a statement, in which he declared that “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia … [he] was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law.” These encomia went down poorly with some inhabiting the Georgetown law faculty’s more progressive precincts. Professor Gay Peller, a respected scholar of race and the law, took issue with the Dean speaking on his behalf: “I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” Other faculty defended the Dean’s intentions, while both conservative groups of students and students of color expressed outrage, hurt and concern in response to the intramural eulogistic tennis match taking place at Georgetown law school.   More details here.

To complicate matters even further, many liberals stepped forward shortly after Justice Scalia’s passing to note a kind of ambivalent assessment of the Justice’s legacy: he may have been a conservative justice, to be sure, but he was, all would acknowledge, a very nice person. Cass Sunstein, a prominent liberal law professor at Harvard, wrote: The Scalia I Knew Will Be Greatly Missed.

For myself, I can’t say I care that Antonin Scalia was a nice person when not on the bench. When President Ronald Reagan forwarded Antonin Scalia’s name to the Senate in 1986, it was for Scalia to serve on the Supreme Court burdened with the august responsibility of interpreting the constitution, not to be our friend or dinner guest.   It is the robed justice, not the man behind the robe, that deserves our evaluation, to borrow a metaphor from Judge John Noonan’s book Persons and Masks of the Law.

Justice Scalia, like all the Supreme Court justices, did the rounds of visiting law schools on a regular basis, judging student moot court competitions and giving talks about his judicial philosophy and the like. In these contexts he often displayed behavior that was, well, cringe-worthy. Law students would stand before him, arguing a case while quivering with nervousness in their newly-pressed suits, and he would exploit the opportunity to “punch down” as some have described it. He’d insult the student, make belittling quips that would throw them off their game, or tease them. Don’t get me wrong, I don’t think our students need to be coddled. But I also don’t hold respect for a sitting Supreme Court justice who exploited these moments of grossly asymmetric power by bullying the weaker party standing before him.

His behavior with real lawyers and in real cases was not much different. When writing for the Supreme Court, Scalia was often vindictive and gratuitously cruel, taking school-yard aim at LGBT people, women and people of color. The snarkiness that characterized so many of his opinions, especially when he was in the minority, was injudicious and at times appalling.

While his friends may have included representatives of the groups he vilified in his opinions, that doesn’t in any way mitigate the damage he did to the idea that a constitution is a collective compact and a repository of shared values, not a warrant for the privileged to maintain their power. Being smart, or even nice, seems beside the point when great power is exercised in a manner that has the effect of – and often is intended to – humiliate. Great mind? Ok, whatever. Great jurist? Not at all.

In addition, Justice Scalia’s legacy will surely be distinguished by his tendency to be a particularly bad loser. As a member of a Court that has valued collegiality and the principle that nine jurists can reasonably disagree about some of the most difficult legal questions of the day, Justice Scalia chose instead to hurl ugly insults at his colleagues when he found himself in the Court’s minority. In Obergefell v. Hodges, the same-sex marriage case, he wrote that “I would hide my head in a bag,” if he ever joined an opinion as weak as Justice Kennedy’s. And if that didn’t leave enough scorched earth, he continued: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”   Some have described his opinions as “the jurisprudential equivalent of smashing a guitar on stage.”

Even worse, with respect to the substance, not only the tone, of Justice Scalia’s legacy, it could be fairly described as “a jurisprudence of death.” This necro-political valence of his legal philosophy animated an idiosyncratic commitment to reading the constitution as a text written by a dead hand. “The Constitution that I interpret and apply is not living but dead,” he frequently noted. Before Antonin Scalia was elevated to the Supreme Court by President Ronald Reagan, this version of interpretation was embraced only by a right-wing fringe, including Edwin Meese. Perhaps one of Scalia’s greatest accomplishments was mainstreaming an approach to textual interpretation that fixed the meaning of our founding document in the imagined minds of its now long-dead signatories, and aggressively rejecting the notion of a living constitution.

But Scalia’s jurisprudence of death was not limited merely to interpretive method. It also infiltrated the substance of so many of his opinions – particularly those in the criminal justice area. Robert Cover famously observed “legal interpretation takes place in a field of pain and death.” And this has never been more true than for the way Justice Scalia approached death penalty appeals that came before the Supreme Court. In the 1993 Herera v. Collins case, a case involving the question of whether newly discovered evidence that could exonerate a defendant convicted of murder and sentenced to death, Justice Scalia wrote: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” He later reiterated this view in another death penalty appeal in 2009 brought by Troy Davis: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The taunting scare quotes Justice Scalia placed around the word “actually” loomed as a high-stakes taunt and a deadly provocation that collapsed any daylight between the notion of legality and justice: the state can kill an innocent man if the trial he received satisfied a minimal criterion of fairness. Surely a legal system has lost its soul if this is what criminal justice has been reduced to. How does a person who holds this view, and is blessed to hold the highest judicial office in the nation, sleep at night?

And so it is fitting that death found Antonin Scalia while he slept. In his sleep on a hunting trip of all adventures. Even more curiously, the last Supreme Court justice to die while in office was William Rehnquist and President Reagan appointed Antonin Scalia to fill his seat on the Court. Kinda makes one worry about the deadly endowment that awaits the next appointee to this seat.

 

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