If Browns long snapper Christian Yount didn’t already feel pressure, he will now.

The Browns have signed long snapper Charley Hughlett to their practice squad, his agent, Brett Tessler, announced Tuesday on Twitter. The Browns later announced they made the move and placed defensive lineman Calvin Barnett on the practice squad/injured list.

Still, Yount remains on the active roster.

“I love this coaching staff — [special teams coordinator Chris] Tabor and [coach Mike] Pettine, all those guys,” Yount said Tuesday after practice. “I love being a Brown and being on this team. I’m happy to be here.”

Yount misfired high on a botched extra-point attempt in a 26-24 win against the New Orleans Saints in Week 2. Then he misfired low on the 50-yard field goal Billy Cundiff missed with 13:26 left in a 23-21 loss to the Baltimore Ravens in Week 3. Pettine has said another less-than-ideal snap played a role in Cundiff’s 36-yard attempt being blocked with 7:46 remaining against the Ravens.

The Browns tried out Hughlett and Kevin McDermott last week, according to NationalFootballPost.com. Hughlett’s workout was Thursday, Tessler said via Twitter.

Hughlett has never appeared in an NFL regular-season game. He spent the preseason with the Jacksonville Jaguars and was on the New England Patriots’ practice squad earlier this season. Tessler tweeted that his client “has had numerous workouts since the start of this season.”

Yount, who signed a five-year, $4.21 million contract extension before the 2013 season, went home and enjoyed time with family during the Browns’ recent bye-week break. He considers himself recharged.

“I’m ready to work and correct the mistakes we’ve had and get going on Tennessee,” said Yount, who has handled long-snapping duties for the Browns since Week 13 of the 2011 season, when he took over for Ryan Pontbriand.

If Yount doesn’t fix his problems, the Browns are ready to summon Hughlett.

Prof. Padfield

Some thoughts on that here.

Prof. Padfield


Prof. Padfield

You can find my promised response to Prof. Bainbridge here.

Prof. Padfield

I’m a bit tardy in passing on the post I put up on that topic last Saturday, which you can find here.

Stephen Bainbridge responded here.

I plan on replying to his response tomorrow.

Prof. Padfield

On Thursday, May 31, from 11:30 to 2:00, the Cleveland-Marshall College of Law will be hosting a panel discussion (with free Ohio CLE credits) entitled:

Crisis in the Courts: The New White House Push on Judicial Confirmations and the Vacancy Rate’s Impact on Justice

Go here for more information.

Wilson Huhn

Gay rights groups have strongly criticized President Obama for refusing to issue an Executive Order banning employment discrimination on the basis of sexual orientation by federal contractors. In my opinion, the President could issue an order prohibiting government agencies from discriminating on the basis of sexual orientation. However, I believe that the President lacks the authority to prohibit discriminatory action by private businesses that are under contract with the government.

On September 24, 1965, President Lyndon Johnson issued Executive Order 11246 prohibiting discrimination on the basis of race, gender, or religion by any agencies of the federal government as well as any companies doing business with the federal government. Gay rights advocates have encouraged President Barack Obama to broaden Order 11246 to add sexual orientation to the list, thus prohibiting companies receiving federal funding from discriminating against gays and lesbians.

On January 13, 2012, the Williams Institute confidentially released this report describing the likely effects of such an order and briefly analyzing its legality and constitutionality. The Williams Institute strongly favors the issuance of an order prohibiting employment discrimination by government contractors.

I agree with the Institute on moral grounds, but I reluctantly conclude that the President lacks the lawful authority to issue an order that would regulate the conduct of private employers. At most, I believe, the President could order government agencies themselves not to discriminate on the basis of sexual orientation in either employment or contracting. However, even if the order were thus limited to government agencies, the President could not order agencies to treat the spouses and domestic partners of government employees as if they were lawfully married, because this would directly violate the federal Defense of Marriage Act.

Here is the key language in the January 13 report of the Williams Institute:

   “The president has the statutory authority to issue an executive order that broadens existing nondiscrimination requirements for federal contractors.
   It is well within the president’s legal authority to issue either an amended or a new executive order to require that federal contractors not discriminate based on sexual orientation and gender identity. Further, courts are generally reluctant to overturn executive orders. The Supreme Court has only overturned two executive orders, and neither involved nondiscrimination requirements. Lower courts have repeatedly upheld executive orders prohibiting discrimination by federal contractors. However, the lack of Supreme
   Court precedent on the constitutionality of nondiscrimination executive orders, as well as the lack of recent case law affirming the constitutionality of such orders, adds a modicum of uncertainty to the legal analysis. If a contractor were to challenge the proposed executive order, courts would most likely use two tests to determine whether the president had authority to issue it: (1) the “economy and efficiency” test; and (2) the conflicts test.
   First, the Federal Property and Administrative Services Act (1949) gives the president broad authority to prescribe policies and directives relating to the federal government’s role in the acquisition of goods and services, so long as there is a sufficiently close tie between the executive order and the “economy and efficiency” of the procurement process. Generally, courts leniently apply the economy and efficiency test to executive orders, giving significant deference to the president. However, some courts apply the test more strictly and require a direct link between the terms of an executive order and the goals of economy and efficiency in government procurement. As described in this memo, inclusive nondiscrimination and benefits policies optimize the economy and efficiency of procurement, and an executive order requiring either should withstand legal scrutiny.
   Second, courts would determine whether the executive order explicitly or implicitly conflicts with any other federal laws. It might be argued that potential conflicts exist with current ENDA legislation related to disparate impact claims, numerical affirmative action goals, and data collection, all of which are prohibited in ENDA as currently drafted, but could be potentially included in an executive order. However, the president’s executive order does not need to include any of these provisions, and even if they are included, conflict issues can be addressed, in part, with changes to future versions of ENDA. If benefits are included in the executive order, it could be argued that this provision may conflict with the Defense of Marriage Act (DOMA), the Employee Retirement Income Security Act (ERISA), and possibly some sections of the Patient Protection and Affordable Care Act of 2010. Legal challenges based on these arguments, however, are not particularly strong because, among other reasons, an employee’s life partner can be recognized without reference to marriage (as the president’s memoranda on employee benefits have recognized), and the contracting power need not implicate ERISA.”

The authors of the Williams Institute report betray some anxiety about the constitutionality of issuing an Executive Order. They admit that it might call the constitutionality of Executive Order 11246 into question:

   “However, inclusion of these new characteristics could result in a legal challenge that attacks the entirety of EO 11246. … Issuing a new executive order with similar language to EO 11246 would avoid the potential for a case challenging these new provisions that could possibly undermine the existing order.”

Whether the President has the authority to prohibit employment discrimination against gays and lesbians by government contractors presents a question under the doctrine of Separation of Powers. The standard for evaluating the constitutionality of Executive Orders was set forth in the foundation Separation of Powers case Youngstown Sheet & Tube Co. v. Sawyer. In that case the Supreme Court struck down an Executive Order issued by Harry Truman in which he ordered the steel mills to be kept open despite a strike and a lockout. The Korean War was raging, and Truman contended that it was necessary to keep the factories open to support the war effort. Truman issued the order under his authority as Chief Executive and Commander-In-Chief.

Three renowned justices delivered opinions in that case: Hugo Black, Robert Jackson, and Felix Frankfurter. Each of them had been appointed by Franklin Roosevelt and would be politically inclined to support President Truman. But each of them found that the President had exceeded his power.

Each gave a different reason in support of the Court’s decision. Black contended that in issuing the Executive Order the President had engaged in lawmaking in violation of his assigned power under the Constitution. Black stated:

   “The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.”

Justice Jackson on this occasion developed his famous “tripartite” theory of Congressional and Presidential power. According to Jackson, Presidential power varies depending upon the extent to which Congress has authorized the President to act:

   “The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
   1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
   2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
   3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

Jackson found that President Truman’s seizure of the steel industry had not been authorized by Congress; that in fact Congress had considered and rejected granting this power to the President in the event of a labor stoppage. Accordingly, the President’s power in this context was at its “lowest ebb.” Like Justice Black, Jackson found the President’s action to be unconstitutional.

Justice Frankfurter added another test for determining whether or not the President has the power to undertake action that the Congress has not specifically authorized by law – a tradition test:

   “To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for government. Therefore the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on “executive Power” vested in the President by 1 of Art. II.”

Applying this test, Frankfurter was unable to discover a “systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned” similar to Truman’s action in taking control of the country’s steel mills to keep them operating. He too voted to strike down the Executive Order.

Would an amendment to Executive Order 11246 adding sexual orientation to the list of prohibited categories of discrimination be constitutional?

The President could certainly issue an order regulating the conduct of the government agencies themselves. The President would be justified in acting to enforce the Equal Protection of the Fifth Amendment, which arguably (in my opinion, almost certainly) would prohibit the government from arbitrarily treating gay and lesbian job applicants and employees differently than heterosexuals. However, the Fifth Amendment does not apply to private companies – not even to private companies that are under contract to the government. Merely entering into a public contract or receiving public funding does not constitute “state action” subject to constitutional restraint.

Accordingly, it would be necessary to apply the three tests from Youngstown Sheet & Tube to determine whether such an order would be constitutional.

Under Justice Black’s test an Executive Order prohibiting discrimination by government contractors on the basis of sexual orientation would be clearly unconstitutional. According to Black, such an order would be “policymaking,” a “legislative act” that is committed solely to Congress, not the President.

Under Jackson’s test the Executive Order would also be of doubtful constitutionality. Congress has considered enacting ENDA (the Employment Non-Discrimination Act) many times and has failed to do so. Like Truman’s order seizing the steel mills, an order prohibiting employment discrimination on the basis of sexual orientation would be in the third category of Congressional “disapproval” and would be presumed unconstitutional unless the Constitution disabled the Congress from legislating on this subject and instead vested the power to issue this order solely in the President. That, of course, is not the case. Jackson, too, would conclude that the non-discrimination order was unconstitutional.

Only Justice Frankfurter’s opinion would offer substantial support for a Presidential order decreeing an end to employment discrimination by government contractors on the basis of sexual orientation. Executive Order 11246 is nearly 50 years old, and previous executive orders dating back to the Roosevelt administration addressed discrimination by government contractors. The courts might very well uphold a similar executive order or an expansion of 11246 based upon this “systematic, unbroken practice” stretching back seven decades.

But it is not at all a sure thing. Roosevelt’s order banning discrimination on the basis of race was issued during World War II when it was necessary to eliminate all forms of employment discrimination that might interfere with the war effort. Furthermore, Roosevelt’s and Kennedy’s orders were essentially ratified when Congress enacted the 1964 Civil Rights Act which provides substantial statutory authority for Johnson’s Executive Order 11246.

The “King’s Cure” for employment discrimination against gays and lesbians is not an Executive Order but rather a duly enacted statute. An Executive Order to this effect would almost certainly face a determined legal challenge – a challenge that might very well be successful.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Brant T. Lee

Property Law is a required two-course sequence for first-year law students at the University of Akron. These students are with me for the entire first year of law school. On the last day of class each year, I hold a poetry contest. The assignment is to write a poem that captures the year in Property Law. This year’s winner was “Nothing But a P Thang.” 

Prof. Padfield


Wilson Huhn

The transcript of the oral argument in Arizona v. United States is available here. I will analyze what occurred during oral argument in a later post. My previous posts on the subject are set forth below.

I have written about this case and the underlying demographics in Arizona that are driving the anti-immigration laws. Here are links to those previous posts. Please excuse the distracting symbols that infect some of these posts – they are the result of a technical glitch that is being corrected.

Ninth Circuit Affirms Lower Court Decision Striking Down Key Portions of S.B. 1070, Arizona Immigration Law (April 17, 2011)

United States v. Arizona: Updates on the Federal Challenge to the Arizona Immigration Law (October 23, 2010)

Key Portions of Arizona Immigration Law Struck Down by Federal Court (July 30, 2010)

Demographic Information About Arizona (June 27, 2010)

Wilson Huhn teaches Constitutional Law at The University of Akron

Wilson Huhn

Professor Huhn will be speaking to an audience at Northeast Ohio Medical University Thursday, April 26 about the constitutionality of the Affordable Care Act. He will review the issues that are before the Supreme Court and summarize the amicus brief that he submitted to the Supreme Court on in support of the constitutionality of the law.

Wilson Huhn

Mitt Romney has announced that Robert Bork will be advising him about nominations to the Supreme Court. This post describes and critiques Bork’s approach to constitutional interpretation.

Robert Bork has staked his career – and made his livelihood – on the particular approach that he takes to constitutional interpretation. Bork is committed to interpreting the Constitution in accordance with what he believes constitutes the “original intent” of the framers of the Constitution. The problem with Bork’s approach is that he does not truly follow the intent of the framers. Instead, his approach to constitutional interpretation is more appropriately called “original application” not “original intent.”

Bork argues that the Constitution should be interpreted in accordance with the intent of the framers. That is no doubt true. No constitutional scholar – no American – should dispute that. In 1776 the founders of this nation announced in the Declaration:

“Governments are instituted among men, deriving their just powers from the consent of the governed.”

In 1803 in Marbury v. Madison Chief Justice John Marshall wrote that the people have the “original right” to create a government, to specify its powers, and to set limits upon those powers:

“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?”

In 1816 in Martin v. Hunter’s Lessee Justice Joseph Story described the Constitution in these terms:

“It is the voice of the whole of the American people.”

From these premises Bork rightly derives the conclusion that the Constitution must be interpreted in accordance with the intent of the framers. The power of Congress to enact laws, the power of the President to enforce laws, and the power of the courts to interpret the law and to declare laws unconstitutional – all of these powers are conferred by the people through the Constitution. The entire government including the judiciary has no power to act except as granted by people in the constituent act that is the Constitution. Accordingly Bork is correct in concluding that the Constitution must be interpreted in accordance with the “original intent” of the framers.

Where Robert Bork is mistaken is in his particular understanding of “original intent.” He takes it mean that the framers intended that we should parrot the precise ways in which their society applied constitutional doctrine. That does a disservice to the Constitution, and it dishonors our ancestors who fought so hard to enshrine certain fundamental moral principles into our basic law.

For example, the generation who fought and won the Civil War and who adopted and ratified the Thirteenth, Fourteenth, and Fifteenth Amendments would be appalled at Bork’s crabbed interpretation of those portions of the Constitution. Abraham Lincoln never said that the Civil War was fought so that future generations of Americans would have those rights, and only those rights, that were recognized in America in 1868. He said that this nation was “conceived in liberty and dedicated to the proposition that all men are created equal.” In the first speech of his campaign for the U.S. Senate against Stephen Douglas in 1858 he explained that equality is a sacred principle:

“My friend [Stephen Douglas -ed.] has said to me that I am a poor hand to quote Scripture. I will try it again, however. It is said in one of the admonitions of the Lord, “As your Father in Heaven is perfect, be ye also perfect.” The Savior, I suppose, did not expect that any human creature could be perfect as the Father in Heaven; but He said, “As your Father in Heaven is perfect, be ye also perfect.” He set that up as a standard, and he who did most towards reaching that standard, attained the highest degree of moral perfection. So I say in relation to the principle that all men are created equal, let it be as nearly reached as we can. If we cannot give freedom to every creature, let us do nothing that will impose slavery upon any other creature. [Applause.] Let us then turn this government back into the channel in which the framers of the Constitution originally placed it. Let us stand firmly by each other. If we do so we are turning in the contrary direction, that our friend Judge Douglas proposes—not intentionally—as working in the traces tend to make this one universal slave nation. [A voice—“that is so.”] He is one that runs in that direction, and as such I resist him.
My friends, I have detained you about as long as I desired to do, and I have only to say, let us discard all this quibbling about this man and the other man—this race and that race and the other race being inferior, and therefore they must be placed in an inferior position—discarding our standard that we have left us. Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal.” (Lincoln, 7 Collected Works 501, Speech at Chicago, July 10, 1858))

Lincoln didn’t understand “equality” to be a static state of affairs. It is instead a dynamic ideal, a transcendent truth. Equality, for Lincoln, was not some state of affairs as it existed in the distant past, but rather a goal that we must strive to achieve. When the founding generation declared that “all men are created equal,” Lincoln said,

“They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.” (Lincoln, 2 Collected Works 406 (Speech at Springfield, June 26, 1857)

Lincoln understood equality to mean that every person has the right to equal opportunity to advance and succeed. He explained this to the United States’ troops, and as at Gettysburg he inspired Americans to believe that this principle is worth fighting for:

“I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children’s children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father’s child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright—not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel.” (Lincoln, 7 Collected Works (Speech to 166th Ohio Regiment, August 22, 1864))

Bork construes the Equal Protection Clause to mean that women do not have to be treated equally under the law because they were not treated equally in 1868. He contends that poll taxes and malapportionment are constitutional because those practices existed in 1868. He even has a difficult time explaining why Brown v. Board of Education should be followed in light of the fact that many northern states had segregated schools in 1868.

Is there any real doubt that if Lincoln and the framers of the Fourteenth Amendment were brought back to life and made aware of all the advances since 1868 that they would say that racial segregation in the public schools is inconsistent with Equal Protection? Is there any doubt that if they were informed of the progress of women in our society that they would find that it was both wrong and unconstitutional for a state to exclude women from a prestigious public university?

Bork simply does not believe that the Constitution stands for the ideals of equality, liberty, and fairness. To quote a famous American, “I find your lack of faith … disturbing.” (OK, maybe Darth Vader wasn’t American … but he is famous!) I find it disturbing that Bork would rob the Constitution of its vital moral content and substitute a lifeless restatement of the past that was in many respects so sad and wretched. That is not what the framers intended.

Our ancestors did not fight and die in the Civil War for the idea that “equality” should be interpreted to mean “the state of the law in 1868.” They sacrificed – many hundreds of thousands of Americans like Lincoln gave the last full measure of devotion – so that we would continue the struggle to make our society ever more equal. In Lincoln’s words,

“In relation to the principle that all men are created equal, let it be as nearly reached as we can.”

With the enactment of the Fourteenth Amendment the Civil War generation enshrined this ideal in the Constitution. The Constitution should be interpreted in accordance with the intent of the framers – not how Robert Bork would interpret it.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. 

Prof. Padfield

I think it’s possible (more here).

Prof. Bainbridge hopes not (more here).

Wilson Huhn

The EEOC has rendered a landmark victory for transgender persons. Henceforth discrimination against transgender persons will be considered to be a form of gender discrimination, which is already prohibited by the Equal Employment Opportunity Act.

Chris Geidner of Metro Weekly has posted an interview with the woman, Mia Macy, entitled A Woman’s Fight, A Couple’s Resilience. Macy told the reporter that she was offered a job with the ATF as a man, but the agency changed its mind when she showed up as a woman.

”I was in the military and then I became a cop. One of the last jobs I had with the Phoenix Police Department, I worked on an ATF [team], and it’s a gun squad, and I was certified by the ATF. They came in and they certified us for these pieces of equipment, and I worked on the gun cases,” she tells Metro Weekly. ”I got a job offer to come out to San Francisco … and work for the ATF in their lab, and went through the process and went through the background and completed that.” … ”We moved out to the [San Francisco] Bay [where the job was to be located], and within three days after my background was completed and they alerted the lab that Mia would be coming to work, I was notified that the position was no longer available — even though I was certified and trained for the job.”

Macy states that the ATF in fact gave the job to another person (a man). ”At that point, I needed some help. I didn’t think something was right.” She turned to the Transgender Law Center for help, and the Center represented her before the EEOC.

The Center’s report of its victory is entitled Groundbreaking! Federal Agency Rules Transgender Employees Protected by Sex Discrimination Law. The Center states:

“In a landmark ruling, the Equal Employment Opportunity Commission (EEOC) has announced that Title VII, the federal sex discrimination law, protects employees who are discriminated against because they are transgender. In its unprecedented decision, the EEOC concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex’ and such discrimination … violates Title VII.” The EEOC is the federal agency that interprets and enforces federal employment discrimination law, and today’s decision marks the first time it has offered clear guidance on this issue.”

The Center explains that this ruling will have a broad impact not only on federal agencies but on all employers, and will influence the courts in their interpretation of the law:

“The decision today follows a clear trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination. But it has even broader implications than a court decision, because the EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation. The EEOC’s decision will impact every employer, public and private, throughout the nation. The decision is entitled to significant deference by the courts, and will be binding on all federal agencies.”

The Washington Blade has posted the EEOC’s decision here. The key portions of the ruling are the following paragraphs:

“That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute’s protections sweep far broader than that, in part because the term “gender” encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”  (Pages 6-7)

“When an employer discriminates against someone because the person is transgender the employer has engaged in disparate treatment “related to the sex of the victim. See Schwenk, 204 F.3d at 1202. This is true regardless of whether an employer discriminates against an employee because the individual has expressed his or gender in a non-stereotypical fashion, because the employer is uncomfortable with the fact that the person has transitioned or is in the process of transitioning from one gender to another, or because the employer simply does not like that the person is identifying as a transgender person. In teach of these circumstances, the employer is making a gender-based evaluation, thus violating the Supreme Court’s admonition that “an employer may not take gender into account in making an employment decision.” Price Waterhouse, 490 U.S. at 244.” (Pages 7-8)

The EEOC cited a number of decisions by federal district courts and courts of appeals consistent with its ruling.

In the latter part of its opinion the EEOC offered an interesting parallel to discrimination based on religion:

“[G]ender is no different from religion. Assume that an employee considers herself Christian and identifies as such. But assume that an employer finds out that the employee’s parents are Muslim, believes that the employee should therefore be Muslim, and terminates the employee on that basis. No one would doubt that such an employer discriminated on the basis of religion.” (Page 13)

The EEOC did not issue a final decision in this case. It simply ruled that Ms. Macy may file a claim for sex discrimination. The agency concluded:

“Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.” (Page 14)

In a footnote on page 14 the EEOC noted that it was overturning the position that the agency had previous taken in decisions rendered in 1984, 1994, and 1996.

The Proactive Employer reports that it will host a radio show on Friday about the likely impact of the EEOC’s decision on employers.

The EEOC’s decision will also have an important political impact on Congress. For some time there has been broad support in Congress for enacting ENDA (the Employment Non-Discrimination Act). This statute would prohibit employment discrimination on the basis of sexual orientation and gender identity. What has held up passage of the law until now was the fact that many lawmakers objected to the inclusion of protection for transgender persons, but the supporters of the law decided not to strip “gender identity” from the bill’s protections. This is the Gay Rights Movement’s version of “no soldier left behind.” Now that the EEOC has ruled that employment discrimination against transgender persons is already covered by the anti-discrimination law, there is no practical reason for legislators to oppose the amendment of the statute to expressly include them.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Wilson Huhn

I have posted a working draft of an article to SSRN discussing the rapid acceptance of same-sex marriage in the United States in light of the theories of “pragmatism” and “legal realism” that have come to dominate American philosophy and jurisprudence. The article is entitled The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking and it may be downloaded here.

Wilson Huhn

 It is being reported at Cleveland.com, WKYC, and  WTAM that Peter Sikora, the longest-serving member of the Cuyahoga County Juvenile Court, has passed away at age 60. Judge Sikora was not only a highly respected jurist but was an inspiration to all who knew him. His wisdom, kindness, and fairness did honor to the bench. He will be greatly missed.

Prof. Padfield


Wilson Huhn

Jefferson Davis’ speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire – but it was real and Davis was sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of “loose lips” caused his army’s strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most significantly he revealed the principles that he thought the Confederacy stood for.

On September 23, 1864, Jefferson Davis addressed the Confederate Army of Tennessee at Macon, Georgia. The speech was published in the Macon Telegraph the following day. The speech itself is available here; an annotated version of the speech from The Papers of Jefferson Davis may be accessed here.

After Braxton Bragg, one of Jefferson Davis’ favorite generals, inexplicably lost the State of Tennessee by being unable to hold impregnable positions at Lookout Mountain and Missionary Ridge, the rugged but out-of-favor Joe Johnston held William Tecumseh Sherman off in northern Georgia throughout the spring and summer of 1864. Johnston, outnumbered 2 to 1, fought a wiley defensive battle, giving up ground grudgingly, slowly edging back toward the fortress of Atlanta, inflicting heavy casualties on Sherman whenever he attacked, extending Sherman’s lines of communication, and never giving Sherman the opportunity to land a knockout blow that would threaten Atlanta. Most importantly, Johnston wanted to prevent the Union army from achieving a significant victory that would ensure Lincoln’s reelection. If the war could be prolonged until after election day, the war-weary North might replace steadfast Lincoln with gutless McClellan, thus guaranteeing the independence of the Confederacy. Sherman could not have taken Atlanta by storm if he had had twice as many troops.
But Davis did not consider Johnston manly enough, and with Bragg whispering in his ear Davis replaced Johnson with John Bell Hood, the bravest and stupidest general of the Civil War. Hood, who had already sacrificed one arm and one leg for his fledgling country, now proceeded to sacrifice his troops, his army, the City of Atlanta, and the last hopes of the Confederacy. Hood launched a series of reckless attacks on Sherman’s forces all around Atlanta. Each time his smaller force suffered far more casualties than they inflicted. Finally, exhausted and demoralized, his troops abandoned Atlanta and withdrew to Macon, where Davis delivered the speech that was intended to inspire the Army of Tennessee and the people of the South.

The Gettysburg Address it wasn’t.

Davis bravely admitted that it was a time of “adversity.” He confidently asserted that Sherman’s army, like Napoleon at Moscow, would now be destroyed as it was compelled to retreat through enemy territory. But in doing so Davis betrayed the strategy that the Confederacy would pursue:
“What, though misfortune has befallen our arms from Decatur to Jonesboro, our cause is not lost. Sherman cannot keep up his long line of communication, and retreat sooner or later, he must. And when that day comes, the fate that befel the army of the French Empire and its retreat from Moscow will be reacted. Our cavalry and our people will harass and destroy his army as did the Cossacks that of Napoleon, and the Yankee General, like him will escape with only a body guard.”
Reading this speech in the newspapers, Sherman came to an important realization. Davis’ plan was that Hood and the Army of Tennessee should busy themselves attacking Sherman’s supply lines and intended to take back Tennessee. If he cut his supply lines, lived off the land, and led his army east to the Atlantic coast, he would face no opposition. Sherman responded:
“If Hood will take his army into Tennessee I will supply him with rations!”
Not satisfied with detailing the strategy that the Army of Tennessee intended to follow, Davis proceded to disclose his army’s greatest weakness. He revealed that the army was greatly understrength, and, even worse, he attributed the cause to cowardice or a lack of patriotism:
“It is not proper for me to speak of the number of men in the field. But this I will say, that two-thirds of our men are absent – some sick, some wounded, but most of them absent without leave.”
Jeff, you should have stopped at “It is not proper to speak of the number of men in the field.”

Davis’ solution to the problem of widespread desertion was to appeal to men’s consciences to return to the army, but in doing so he painted the most pathetic picture of his country, emphasizing “the wail of their suffering” and encouraging mothers to sacrifice all of their sons, even the little boys:
“How can this be the most speedily effected? By the absentees of Hood’s army returning to their posts And will they not? Can they see the banished exiles, can they hear the wail of their suffering country-women and children, and not come. By what influences they are made to stay away, it is not necessary to speak. If there is one who will stay away at this hour, he is unworthy of the name of a Georgian. To the women no appeal is necessary. They are like the Spartan mothers of old. I know of one who had lost all her sons, except one of eight years. She wrote me that she wanted me to reserve a place for him in the ranks. The venerable Gen. Polk, to whom I read the letter, knew that woman well, and said that it was characteristic of her. But I will not weary you by turning aside to relate the various incidents of giving up the last son to the cause of our country known to me. Wherever we go we find the heart and hands of our noble women enlisted. They are seen wherever the eye may fall, or step turn. They have one duty to perform – to buoy up the hearts of our people.”
General Leonides Polk, of course, had been killed by Union artillary at long range a few months earlier. Attaway to bouy up the hearts of the people, Jeff!

To add to his message of hope, Davis then confessed that there weren’t many men of military age left to fight the war, and that the ranks must now be filled by boys and old men:
“You have not many men between 18 and 45 left. The boys – God bless the boys – are as rapidly as they become old enough going to the field. The city of Macon is filled with stores, sick and wounded. It must not be abandoned, when threatened, but when the enemy come, instead of calling upon Hood’s army for defence, the old men must fight, and when the enemy is driven beyond Chattanooga, they too can join in the general rejoicing.
Having painted this rosy future for an army of old men and little boys (and again disclosing the army’s plans to retake Tennessee), Davis turned to an even more critical topic – how right he had been to replace Joe Johnston with John Bell Hood as head of the Army of Tennessee. He first spoke of Johnston’s pattern of holding Sherman off as a “disgrace,” and then praised Hood’s “honest and manly blow” against the Union army:
I know the deep disgrace felt by Georgia at our army falling back from Dalton to the interior of the State, but I was not of those who considered Atlanta lost when our army crossed the Chattahoochee. I resolved that it should not, and I then put a man in command who I knew would strike an honest and manly blow for the city, and many a Yankee’s blood was made to nourish the soil before the prize was won.”
Okay. Johnston was a disgrace and a coward, Hood both honest and manly. But in case you missed the point about Johnston, Davis explained his decision further:
“If I knew that a General did not possess the right qualities to command, would I not be wrong if he was not removed? Why, when our army was falling back from Northern Georgia, I even heard that I had sent Bragg with pontoons to cross into Cuba. But we must be charitable.”
I’m not sure that Davis’ understanding of the concept “charity” is the same that Lincoln expressed in the Second Inaugural.

Having established his wisdom in replacing Johnston with Hood, Davis then chose to defend himself against his many critics. Well, actually Davis pretended that he had only one critic; and, for good measure, that solitary individual was a person of dastardly nature and despicable character:
“It has been said that I abandoned Georgia to her fate. Shame upon such a falsehood. Where could the author have been when Walker, when Polk, and when Gen. Stephen D. Lee was sent to her assistance. Miserable man. The man who uttered this was a scoundrel. He was not a man to save our country.”
There are a couple of minor problems with this complaint. First, it was not one “scoundrel” but several prominent Confederate leaders who had publicly criticized Davis’ leadership, including Joseph E. Brown (Governor of Georgia) and Alexander Stephens (the Vice-President of the Confederacy), as well as several leading southern newpaper editors. Second, by following the strategy outlined in this speech Davis did abandon Georgia to her fate. Sherman’s brutal and destructive March to the Sea met no significant opposition.

In the most hopeful portion of his speech, Davis attempted to portray the just rewards that would await the soldier who returned to the battle. It was here that he failed most spectactularly:
“The man who can speculate ought to be made to take up his musket. When the war is over and our independence won, (and we will establish our independence,) who will be our aristocracy? I hope the limping soldier. To the young ladies I would say when choosing between an empty sleeve and the man who had remained at home and grown rich, always take the empty sleeve. Let the old men remain at home and make bread. But should they know of any young men keeping away from the service who cannot be made to go any other way, let them write to the Executive. I read all letters sent me from the people, but have not the time to reply to them.”
In this passage Davis tells his soldiers that if they fight on they will be “limping” with “an empty sleeve,” and that the men who remain home will “grow rich.” He adds that the old men who stay home effeminitely “making bread” should write President Davis to inform on any young men avoiding military service – but that he, Davis, would have no time to answer those letters.

The speech is a testament to the courage of the Americans who fought to gain their independence from the United States, but it is also an admission of the hopelessness of that struggle. Davis’ imagery unintentionally reflected the fact that so many Confederate soldiers had been grievously wounded and called into question the impaired leadership of General Hood:
Let us with one arm and one effort endeavor to crush Sherman.
In my opinion the most demoralizing aspect of Davis’ speech – the worst mistake he made – was to use the word “aristocracy” to describe Confederate society. This was probably Davis’ honest opinion, his vision of what his country should be. In his utopian society wealthy planters and slaveholders would dominate, blacks would labor unremittingly, and poor whites would serve as peasants and cannon fodder. This vision stands in stark contrast to Lincoln’s vision of a country “conceived in liberty and dedicated to the proposition that all men are created equal.” Here is what Lincoln said to a departing Ohio regiment a month earlier, encouraging them to return to the fighting after a visit home:
“I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children’s children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father’s child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright—not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel.” (Speech to 166th Ohio Regiment, August 22, 1864, 7 Collected Works, at 512)
The contrasting speeches by Abraham Lincoln and Jefferson Davis sharply illustrated to all of the people of the United States what the differences were between the societies of the United States and the Confederacy, and demonstrated why it was necessary to preserve the Union and abolish slavery.


This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God’s judgement and grace impact our ideas about human behavior and markets, and therefore about law.

Wilson Huhn

In yesterday’s post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman’s guilt or innocence is likely to turn on whether the jury finds that he “initially provoked” the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the “Stand Your Ground” law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.