Category Archives: 14th Amendment

Scalia To Women: Corporations Have Rights, Not You

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Just how ridiculously narrow-minded and oppressive will U.S. Supreme Court Justice Antonin Scalia get?  It boggles the mind when you consider his latest rant.

In an interview with the online publication California Lawyer” this past week, Scalia declared that the 14th Amendment does not protect gays or women from discrimination.

Scalia stated:

Q. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.

If I understand the good Justice, taking into consideration his opinion in the recent Citizens United case, corporations have constitutional rights but women and other minorities are free game for discrimination, at least as far as the 14th Amendment goes.   Do you find it astounding that a jurist sitting on the Nation’s Court of Last Resort thinks that AT&T or Halliburton or BP has more rights than your mom does or your sister?  I do.

We all need to think very seriously about Justice Scalia’s comments.  Think about them in the context of this quote which I am re-printing from an excellent article in U.S. News’ Politics blog:

“…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

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Montana Supreme Court Approves Doctor-Patient Suicide (Sort Of)

MSNBC is reporting on a significant new court expanding the rights of patients to make end of life decisions.  The Montana Supreme Court ruled today that nothing in state law prevents patients from seeking physician-assisted suicide.  This decision paves the way for patients to begin undergoing procedures to end their lives.

However, the state’s highest court didn’t give Montanans the constitutional right to death with dignity.  Instead, the court merely stated that no law presently exists in Montana or in judicial precedent preventing doctor-patient suicide.  It is unclear whether conservative political factions in Montana will seek to enact legislation preventing doctor-assisted procedures.  You can click to another article discussing the case here.

A year ago, a state District Court judge ruled that the state’s constitutional rights to privacy and dignity protect the right of terminally ill Montanans to get the drugs needed to die peacefully.

In recent years, so-called “right to die” cases have received significant coverage in the media with focus on Dr. Jack Kevorkian and the Teri Schiavo case.  In 1990, The U.S. Supreme Court ruled in Cruzan v. Missouri Dept. of Health Services that states could enact stringent laws preventing doctor-patient suicide and rejected right to privacy challenges. A PDF of the Cruzan case is in the Box for you to download.

Federal Judge Orders Compensation For Gay Couple Denied Benefits

Today’s Los Angeles Times, LA Now, reported that U.S. District Court Judge Stephen Reinhardt has ordered compensation for a Los Angeles couple denied spousal benefits by the federal government because they are gay men.

The couple, both federal employees, married during the five-month period when same-sex marriage was legal in California.

Reinhardt had earlier ordered the Administrative Office of the U.S. Courts to process Levenson’s application for spousal benefits for Sears.  Citing the 1996 Defense of Marriage Act, however, the Office of Personnel Management blocked the judge’s order.

Levenson appealed, seeking either an independently contracted benefits package for his spouse or payment of the equivalent value of the coverage denied. Reinhardt ordered the latter, based on a “back pay” provision in the law covering federal defense lawyers’ employment.  The judge concluded that the government’s actions in denying the benefits was a violation of the Constitution’s guarantee of due process and discrimination on the basis of sexual orientation, which is prohibited by California state law.

The judge’s order is expected to resolve the injustice Reinhardt has cited in previous orders in Levenson’s case.  A copy of the full text of the original case involving these parties, In re Levenson, is in the Box.net on this site.  Click on the download with NRS in the title, and you should receive a PDF from

California Enacts Nation’s First “Civil Gideon” Law

In 1963, the United State Supreme Court decided the case of Gideon v. Wainwright (1963) 372 U.S. 335.  In that case, Clarence Earl Gideon was charged in a Florida state court with a felony for breaking and entering. He lacked funds and was unable to hire a lawyer to prepare his defense.  Despite being semi-literate, Gideon requested court-appointed counsel.  The following colloquy then took place:

‘The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.
‘The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.’

Gideon unsuccessfully defended himself, was convicted by a jury, and the court sentenced him to five years in a state prison.

In a unanimous opinion, the Court held that Gideon had a right to be represented by a court-appointed attorney, and that the trial court’s refusal to appoint counsel violated Gideon’s rights under the 6th and 14th Amendments.  In doing so, the Court overruled its 1942 decision in Betts v. Brady.  Ruling that the Sixth Amendment‘s guarantee of counsel was a fundamental right and essential to a fair trial, and that the 14th Amendment made this right obligatory on the states, the Gideon Court establish a fundamental right in the United States to be represented by an attorney in criminal proceedings.

MV5BMjE4Mjk0MzE5MV5BMl5BanBnXkFtZTYwMjA5NjA5._V1._SX220_SY400_The Gideon v. Wainwright case was depicted in the 1980 movie, ‘Gideon’s Trumpet,’ starring Henry Fonda.  Oral argument in the case of Gideon v. Wainwright can be heard by linking to the Oyez Project.

Traditionally, the right to be represented by counsel has not extended to civil matters.  This is true even though the phrase “civil matters” broadly encompass many important types of cases; e.g., domestic violence cases, paternity cases, housing and employment discrimination, and police misconduct cases.  By enacting what has come to be known as “Civil Gideon,” California is the first state in the nation that will provide a right to representation by counsel, at least in certain types of civil cases.  On October 13, 2009, Governor Schwarzenegger signed AB590 proposed by Assemblyman Mike Feuer (D-Los Angeles).

The California measure provides a pilot project for court-appointed counsel in “civil matters involving critical issues affecting basic human needs.”  Because it is a pilot project, these new rights will not necessarily be in place in all California counties.

In those participating counties, priority under California’s Civil Gideon will be:  domestic violence, civil harassment restraining orders, probate conservatorships, guardianships, elder abuse, and child custody.  Child custody cases are to be given particularly high priority, according to the statute, because of the extraordinarily high number of self-represented litigants in such cases.

For those interested, you can link to the November 2009 article in the California Bar Journal here.  I have also put a complete copy of the California statute as enacted in Box.net, so if you are interested check out the widget in the footer to obtain your copy.

Many thanks go out to my colleague, paralegal Lori J. Paul, for suggesting this topic and for assisting me today with some fast, top-notch research on this.

So what do you think?  Should those without funds to pay for an attorney in those civil cases mentioned above be afforded one by the court system?  Is the California law a civil right or civil wrong?  Does your answer depend upon how this newly created right is funded; i.e., it’s a civil right if and only if it is not funded by tax dollars?  Check out our forthcoming poll on this issue.

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