News Law and Policy

Supreme Court Says Anti-Choice Protesters May Recover Attorney Fees Under Civil Rights Law

Jessica Mason Pieklo

In an unsigned per curiam opinion the Supreme Court allowed a group of anti-choice activists to rely on a civil rights statute to recover attorney fees in a challenge to attempts to shut their protests down.

In a little noticed per curium opinion issued just before the election, the Supreme Court held anti-abortion activists can use a civil rights law to claim “reasonable attorney’s fees” in a case where law enforcement stopped protesters from carrying graphic signs after complaints by residents. The law relied on by the anti-choice activists was intended to support civil rights groups filing suits over issues such as school desegregation, but anti-choice groups have embraced and appropriated the law as they look to ways to push back against protest restrictions.

Steven Lefemine and members of Columbia Christians for Life (CCL) routinely engaged in anti-choice demonstrations in Greenwood County and elsewhere in the state that include large, graphic signs containing pictures of aborted fetuses. After complaints from citizens about the signs a Greenwood County police officer informed the protesters that if they didn’t get rid of the signs they would be ticketed for breach of the peace. Lefemine and CCL challenged the police officer but eventually agreed to disband their protest for the day.

But as is often the case with anti-choice protests, the group continued to spar with law enforcement over its protests with graphic signs at the intersection. According to the complaint, law enforcement eventually threatened the group with economic penalties should they continue their protests. Out of fear of those economic sanctions the group claimed it chose not to protest in that county for the next two years and instead sued, arguing their First Amendment rights of speech and assembly had been violated. 

A federal judge agreed that the sheriff was wrong, but did not award damages or lawyer’s fees. The justices threw out that decision without hearing arguments, saying the legal decision that officers could not stop the protesters ‘‘supported the award of attorneys’ fees.’’ The case now goes back to the lower courts for a determination of those fees. 

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Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

Analysis Human Rights

Immigrant Rights Groups Call for Moratorium on Deportations After Supreme Court Ruling

Tina Vasquez

“Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations," said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws.

The undocumented community received a devastating blow when the Supreme Court deadlocked on United States v. Texas, the lawsuit challenging President Barack Obama’s 2014 executive action on immigration. The Court’s decision leaves 3.6 million undocumented parents without the ability to work legally in the United States and with no relief from deportation.

Immigrant rights organizations say forcing such a large segment of the undocumented population to live in fear is “unacceptable,” and they are calling for a moratorium on deportations.

“Honestly, we were waiting on the Supreme Court to give us something, anything in the form of relief, and it didn’t happen,” said Tania Unzueta, policy and legal director at #Not1More, a campaign to stop anti-immigrant laws. “This is why we’re calling for the moratorium. It feels like this is the minimum we can ask for. People would be much happier with rights and citizenship and being able to do things like legally work in this country, but that’s not on the table right now. Given the pain and the suffering immigrants have been facing with family separation—the minimum the president can do is stop deportations.”

Stopping deportations, which have separated thousands of families, is within President Obama’s power, advocates say. As Unzueta wrote recently at the #Not1More site, the Supreme Court’s inaction in United States v. Texas “did not result in a challenge to the federal government’s jurisdiction over immigration enforcement issues or the President’s executive power to expand, reduce, or shut down the immigration enforcement programs that it has invested in.” And as Peter L. Markowitz, a professor at the Benjamin N. Cardozo School of Law, wrote in the New York Times, the president does have the “pardon power,” which includes “the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest.” Unlike deferred action, amnesty would not provide work permits, but there would be no complicated application process and it would be a form of immediate relief for millions of undocumented immigrants. However, given the president’s immigration track record, it’s unclear if President Obama is even considering amnesty.

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Deportations: An Urgent Crisis

The president’s executive action would have expanded the Deferred Action for Childhood Arrivals (DACA) program, enabling eligible undocumented immigrants to receive three-year work permits, and created Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). DAPA would have provided a renewable work permit and exemption from deportation for two years to undocumented parents with children who are U.S. citizens or legal permanent residents and also meet certain requirements.

After the Supreme Court announced its split decision, President Obama essentially washed his hands of the undocumented community for the remainder of his presidency, while also leaving behind a “deportation machine” for the next president of the United States, Unzueta told Rewire.

In remarks after the Supreme Court ruling, President Obama said that in November when the next president is elected, he believes the country will get an immigration policy that reflects “the goodness of the American people” and that he has “pushed to the limits” of his executive authority. “We now have to have Congress act,” the president said, while also assuring Americans that the enforcement policies enacted by his administration will remain in place.

The president is referring to policies like the Priority Enforcement Program (PEP), announced November 20, 2014, the same day he announced the expansion of deferred action. PEP replaced Security Communities, an immigration enforcement and deportation program, though advocates argue that PEP is simply a continuation of Secure Communities. Both programs include local law enforcement working with ICE to detain undocumented immigrants.

“Since that announcement of both DAPA and PEP, there are members of our community who have experienced no relief. Now, because of the [Supreme Court] ruling, all that’s come is an increase in the ability to deport people. To me, that proves that you can’t put all of your eggs in one basket, and Obama can’t rely on trying to expand deferred action as the only response to immigrant communities. There’s so much more that he can do,” Unzueta told Rewire.

In a post for #Not1More, the policy and legal director outlined all of the avenues President Obama could take in light of the Supreme Court ruling, including stopping the home raids that have been taking place since January, reviewing his enforcement priorities such as targeting those who recently arrived in the United States, and ending “all programs that entangle local law enforcement and immigration enforcement.” Unzueta also wrote that the president could stop defending “the erosion of the few rights that immigrants have in detention centers,” referring to Jennings v. Rodriguez, a case the Supreme Court announced it would take four days before it issued its decision on DAPA. In Jennings, the Court will debate how long undocumented immigrants detained for immigration violations can be held in detention. “The case had already been decided in the 9th Circuit Court, indicating that immigrants had a right to a regular review of their case via a bond hearing,” Unzueta wrote. “The Obama administration is pushing against this decision asking the Supreme Court to overturn it, arguing effectively for fewer rights for immigrants who are detained.”

The most pressing concern, however, is deportations, which is why #Not1More and other groups, including ICE Out of Austin and the Connecticut Immigrant Rights Alliance (CIRA), are calling for a moratorium on them.

On June 27, the Georgia Latino Alliance for Human Rights blocked the ICE Atlanta field office and undocumented members of CIRA blocked traffic at the Hartford, Connecticut, immigration office demanding a moratorium on deportations. According to CIRA member Stefan Keller, the Hartford action resulted in the arrest of nine protesters, some of whom were undocumented. But because Hartford is a sanctuary city, which is a region that does not work with ICE for the detainment and deportation of undocumented community members, undocumented protesters were not at risk of deportation.

Alejandro Caceres, an organizer with ICE Out of Austin, a campaign to end Austin law enforcement’s partnership with the federal immigration agency, told Rewire the Supreme Court ruling has left many in Austin’s undocumented community feeling sad and frustrated, but that he’s now more committed than ever to focus his efforts locally.

“I think our organizing mentality is that we can’t do anything about the Supreme Court, but we do have the power to work to end deportations here locally,” Caceres said. “Our campaign has a four-resolution plan, and it ends with a city ID.” Community ID programs for undocumented immigrants have been adopted in various cities nationwide, including some in North Carolina, where this initiative is currently under attack. Under these programs, the city issues identification cards, which can make undocumented communities safer.

“That’s something we’re very recommitted to in the light of the Supreme Court ruling. It’s not a solution to the larger problem, but it’s a solution we can focus our energy on. It’s not citizenship. It’s not work authorization. But it’s something, and it’s one more barrier to stop folks from being deported.”

Like Unzueta, Caceres believes there is more Obama can do before he leaves office; there is more he must do, the organizer said, because without DAPA or the DACA expansion, millions of people are at risk of deportation. This is why ICE Out of Austin signed on to call for a moratorium on deportations.

“Saying, ‘DAPA didn’t pass, there’s nothing I can do,’ just isn’t true, and it’s not holding yourself accountable to the immigrant community. We know he [President Obama] can do more, and that’s why we want to put a stop to the deportations. Those who have been calling for comprehensive immigration reform understand people are being needlessly deported, and if they understand that, they have to agree that we must put a stop to deportations as soon as possible. If folks continue to be deported, that is the most urgent crisis we have and that is the issue we will continue to fight,” Caceres said.

Demanding a stop to deportations is a way to push President Obama to do more, according to advocates. Every immigration win that has come from the Obama administration began with pressure from undocumented organizers and activists, Keller said, and the call for a moratorium on deportations is no different.

“The president said it’s up to us, it’s up to Congress, it’s out of his hands. But if Congress isn’t going to help create a just immigration system, we need to put a halt on deportations until this broken system is fixed,” Keller told Rewire. “There is no justice in separating families. This is punishing people because no one is capable of reform or carrying out any other plan of action.”

Providing Tangible Support

President Obama is commonly referred to as the “deporter-in-chief” by immigrant rights activists. It is such a commonly used phrase, in fact, that in January when asking Hillary Clinton about her immigration policies, journalist Jorge Rivas asked Clinton if she would be the next deporter-in-chief. According to a Fusion report, President Obama has deported more immigrants than any president in history, more than 2.5 million since 2009. And as the Nation reported, under his administration the budget for immigration enforcement increased by 300 percent.

Chances are, Caceres told Rewire, that these deportations will continue no matter who is president.

“It was Democrats who [deported over 2 million people]; it was Democrats who implemented family detention. If this continues, the immigrant community, the undocumented community, Latinos, all kinds of people will no longer see any political party as viable or trust-worthy. Neither party helps us.”

“That’s why the response to the undocumented community from liberals and Democrats can’t just be, ‘We’re going to go out and vote and elect a Democratic president.’ We can’t rely on one party,” Unzueta added.

#Not1More’s policy and legal director said it’s hard to get behind any politician, presidential candidate or otherwise, who isn’t willing to say that they want to dismantle the deportation machine, stop deportations, and cut back on the policies and programs that target immigrant communities. “Saying you will work toward comprehensive immigration reform is not what we need at this moment. Saying you will work on stopping deportations is what the community needs. That is the immediate concern,” she said.

In March, the Latin Post reported that “the Democratic Party leaders in the Senate and House of Representatives, in addition to 223 additional members of Congress, filed the amicus brief defending DAPA and DACA’s expanded guidelines.” Advocates say those same politicians and lawmakers must provide tangible support to the undocumented community by helping to stop deportations. Whether that’s publicly pressuring the president to stop deportations after the Supreme Court ruling or lending their voice to individual cases of DAPA-qualified undocumented immigrants who are in detention or deportation proceedings, now is the time, Unzueta said.

Caceres and other members of ICE Out of Austin have been pressuring the Austin Police Department and city council for months to adopt a policy not allowing officers to ask about immigration status. Currently, Austin police officers are allowed to inquire about a person’s immigration status—and no one knows that better than Caceres, who was arrested for refusing to discuss his immigration status with an officer. Working to end these types of policies in their own communities is a way to provide the undocumented community with tangible support, the organizer said.

I think local politicians should really look into their police departments and what policies they have around detaining immigrants,” he said. “If we can’t instate DAPA or stop deportations, we can make it more difficult to deport people. Does your local law enforcement work with ICE? Work to end that. If immigration wants an undocumented person’s information, make sure they have to come with a warrant. Ending the Priority Enforcement Program in your community, that’s tangible support,” Caceres said. “It can make you feel good to write a letter to the Supreme Court saying you’re disappointed in the ruling, but that doesn’t really do anything for us. Tangible support is ending ties with ICE. Letting folks in the community know that if they get arrested, for any reason, they will not be deported.”

In addition, advocates suggest urging local politicians to turn their communities into sanctuary cities. Joining the District of Columbia and 12 states in allowing undocumented immigrants to obtain a driver’s license is also a way for local politicians to provide tangible support, Caceres told Rewire.

Unzueta said she doesn’t know if President Obama will provide a moratorium on deportations and she isn’t sure if politicians who voiced support for DAPA and DACA will step up to the plate to help the undocumented community in this time of need. “Hopeful,” she said, isn’t really in her vocabulary anymore.

“I’ve been doing this a long, long time and I’ve seen so many setbacks. As long as our humanity is debated and we have to fight for basic rights, I don’t get my hopes up because I don’t want to be disappointed. But that doesn’t mean I’m hopeless,” she told Rewire. “I believe in community and I believe in organizing. I believe in the power of an organized community. I choose to invest my hope in that.”

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