All-GOP Ohio Supreme Court rules breastfeeding unconnected to pregnancy
Aug 31st, 2009 | 46 responses
Who knew!?
You know, I’ve been pregnant three times, gave birth to live, healthy babies three times and nursed each of my three babies. If breastfeeding my babies was not related to pregnancy, someone tell me what was going on with my body, k?
Kate Harding at Salon.com has an excellent take-down and analysis of this gobsmackingly narrow decision regarding Totes/Isotoner’s pregnancy discrimination that defies common sense.
In the strictest legal sense, the ruling is logical: Allen admitted she took unauthorized breaks, and that’s a firing offense. If she can’t prove that someone said, “Ha! Now’s our chance to get rid of her for being a woman!” then apparently, she can’t prove discrimination. But it’s manifestly weaselly to suggest that her “insubordination” can somehow be separated from the fact that she was lactating, especially since they were responding to a decision that included this colossal eye-roller:
“Allen gave birth over five months prior to her termination from [Isotoner]. Pregnant [women] who give birth and choose not to breastfeed or pump their breasts do not continue to lactate for five months. Thus, Allen’s condition of lactating was not a condition relating to pregnancy but rather a condition related to breastfeeding. Breastfeeding discrimination does not constitute gender discrimination.”
Of course not.
ZOMG.
Hey, you know – Totes obviously has no idea just how many women wear Totes-like socks during labor and delivery. Do they really want every hospital to stop purchasing those items from them? How about hotels, spas – also places lactating and pregnant women like to go – often for non-pregnancy related occasions.
Let me tell you something, Totes – you don’t think breastfeeding is connected to pregnancy? Well – I don’t think wearing your brand of socks is connected to keeping my tootsies warm anymore.
Game on.
NB: Anyone ask the thousands of doctors across the country, who tell women to breastfeed as long as possible because of the health benefits of breastfeeding to the babies, how they feel about this decision and whether breastfeeding is connected to pregnancy? And how about how our country ranks embarrassingly high on infant mortality, with countries like Germany, South Korea, Britain – oh, and Cuba doing better? Nah – guess Totes could care less about that.
46 Responses to “All-GOP Ohio Supreme Court rules breastfeeding unconnected to pregnancy”
Breastfeeding discrimination does not constitute gender discrimination.
Until men start breastfeeding it sure does.
Justice is supposed to be blind, but not ignorant. What a truly stupid and offensive ruling.
OK, so maybe it's related to childbirth (actually, not that, either) or rather, to lactation.
* * *
Ignore the infant mortality confusion, because different nations compile different statistics for the same term, and because this nation is far from homogeneous, and a single statistic is misleading.
Instead:
“thousands of doctors across the country [...] tell women to breastfeed as long as possible because of the health benefits of breastfeeding to the babies”
Child endangerment, deliberate harm of threat of harm — there may be a valid lawsuit in the making.
DLS: I'd add: can you imagine that if the personhood bills that some want to have enacted in order to protect embryos are allowed to stand, how on earth could this kind of decision ever be consistent with a legal system that gives protection to an embryo? I use that only as perspective to demonstrate the true lack of foundation for the ruling.
Thanks, Austin Roth. This is going to be very, very interesting.
This is an excellent point, Jill. I would like to point out, though, that once there's an *actual* living, breathing baby, most of the embryonic-rights folks stop giving a hoot.
I'm not female but I support breast-feeding & I vote.
Right now I'm glad I don't live in Ohio, or the courthouse would be shaking.
Thanks, Roro. And I know – you are totally right re: they stop giving a hoot.
Thanks, Frith_Ra. I do love living in Ohio, but it can be really frustrating.
Austin – I just want to add one thing – I think that it's THIS idea that you write re: blind but not ignorant that really is what Obama meant re: empathy in our judges. It's not about BIAS or PREJUDICE, it's about dealing with what's in front of us and will be set as precedent, understanding the practical impact. Anyway – just wanted to tag that on.
“[C]an you imagine that if the personhood bills that some want to have enacted in order to protect embryos are allowed to stand, how on earth could this kind of decision ever be consistent with a legal system that gives protection to an embryo?”
Oh, that's easy. Nobody has a “right” to breastfeed, or to expect accomodation by employers. (It is a separate issue altogether if society wants to support or ever promote the practice, and give it support or employer accomodation as a matter of law.) This is a child; it has nothing to do with abortion or the controversy that is associated with abortion.
This kind of statement by the court, do you mean? (It's separate from actual discrimination as well as a clumsy way to say that the breastfeeding itself was indeed a decision by the mother, not unavoidable.)
Related to that statement:
Don't forget the federal regulation revisions that would ascribe civil rights to fetuses, too, Jill, that were played with during the recent Bush years. (Don't overreact, though. It was just an occasional-to-rare sop to the Religious Right to ameliorate their resentment at being taken for granted, and keep them sufficiently motivated to continue voting Republican. As I've noted more than once, now gays as well as activists on the far left are learning a similar, if lighter, lesson now that Obama is in the White House.)
An inconsistency here, instead, involving other people than just those who issued this court ruling, is how this (and a view by others supporting the court decision, who are the kind of people involved) would be hypocritical of those who profess “family values” and love for children in addition to being anti-abortionists because they defend the developing child before it has been born.
As to other facts that would establish improper termination and sexual discrimination, these are separate things but also relevent here, as well as what I listed also — there's an ever-growing trend that already goes beyond “accepting” breastfeeding as normal, to its being preferred and of course promoted, and a re-definition of normality with women of childbearing (and child-rearing!) age that should affect the law in the future as well as establish the implicit standards of “reasonable” associated with that word.
I'd agree with most of your points here, DLS. Thanks for thinking about this topic.
Jill, sometimes a murderer, etc., can be freed from punishment on a legal technicality. The same kind of thing is evident here with the key word, in that “pregnancy” does have a specific, restricted-only-to-itself meaning and that “pregnancy and lactation” (or better, “pregnancy, childbirth, and lactation”) needs to be substituted (and applied) wherever needed in the law.
(There must be a limit to the scope of the definition — otherwise, “pregnancy” can be extended on the front or fore end as well, involving conception, fertility treatments, and so on, for example, in addition to childbirth, lactation, and weaning.)
What an incredibly idiotic ruling. The dumbing down continues… or is it more nefarious than mere dumbness?
Oh by the way, we can stop using the expression “common sense” any time now..
“empathy in our judges” (“breastfeeding discrimination is not gender discrimination”)
It has nothing to do with feelings and desires (and bias, and prejudice), (“empathy”), in this case, Jill.
This is about plain language and what's obvious, possibly awful diction or disconnection from reality.
The last thing I'll say is: The background about this also has health and disability implications.
“Allen, whose practice was to breastfeed her baby just before leaving for work at 5:30 a.m. and whose breasts subsequently re-filled with milk in 3-4 hours, found that her 10-minute break at 8 a.m. was too short to allow her to use the pump, but that waiting until her 11 a.m. lunch period caused her to become engorged with milk to the point of physical pain and leakage. “
http://www.sconet.state.oh.us/PIO/oralArguments…
“This is about plain language and what's obvious, possibly awful diction or disconnection from reality.”
But DLS, can't you see that even if (very big “if”) this disconnect from reality is not driven by discrimination, it will certainly have real-world consequences that are discriminatory? In that, the negative effects of said judiciary disconnection from reality will fall on exactly two groups of people: women and their infants.
I have a niece who didn't think she could get pregnant if she was still breast feeding. Wrong! She delivered a set of twins. Could it be the court … ???
Nah.
well, you lost my dollars, ignorant fools! who do you think buys things like slippy socks?
If you need family leave then take it. Your employer has the right to assume you can do the job when you get back. Following the policies at work is part of the job. On a personal note I have trouble seeing a workplace not making some accommodation with a good (valuable) employee. Makes me wonder about the back story if you will. I'm sure people are worried about the precedent but lets face facts, this was after family leave and all the insurance etc. The real good reasons to fire her had already passed. If she were a good, valued employee then it would of been worked out, if not, you should be able to fire people who you don't want to work for you.
“even if (very big “if”) this disconnect from reality is not driven by discrimination, it will certainly have real-world consequences that are discriminatory”
Laying aside the sexism-by-employer suspicion versus unathorized breaks taken —
that something may have wrongful consequences does not in and of itself not justify a court ruling that such practicesare thus somehow illegal, or laws permitting them are invalid. That is beyond legitimate judicial scope.
After all, we have inequality of wealth and income and this extends to compararisons among the races for historical reasons, for example, but that doen't mean any and every unpleasant consequence of inequality is “racist.”
EEllis – your concern is completely legit but if you read the dissent, you'll see that there was no comparison of why people could take bathroom breaks without asking but she could not take a break to pump without asking. Therein lies some of the doubt about nondiscriminatory practices – and the dissent IDs some others:
http://www.facebook.com/l.php?u=http%3A%2F%2Fww…
I have a small business and one of my employees did the breast-pump thing for several months, mainly on her lunch break but she did take some breaks at other times. The thing is she is a good and valued employee and was always considerate that her brief absences wouldn't cause a problem. Like a lot of employment issues problems come in when you have borderline employees who take advantage of the situation. For that reason I am sympathetic to Totes/Isotoner's position. If my employee had demanded to take her breaks when we were knee-deep in alligators I would not have been happy about it.
As far as lactation being pregnancy-related women can lactate for years if they continue to nurse. It seems to me there has to be an endpoint where it is no longer considered pregnancy related. A reasonable endpoint would be at the point lactation stops if the mother does not nurse at all post-partum, but there might be other reasonable endpoints based on societal norms.
DaGoat – I'm cool with the facts having a bearing on the case, but the dissent raises several points that never got addressed that should have in terms of how all employees and breaks were treated. And just the whole notion of putting into case law the opinion that breastfeeding is not at any stage related to pregnancy? Just not defensible. I agree with what you say about there needing to be an endpoint, but the facts in this case do not indicate that that was the issue, and even if it had been, the court still could have addressed it, as you suggest.
I know I'm being adamant here, lol, but it's just a bad decision, IMO.
I wonder if the lady ever offered to take a pay reduction for longer breaks so that she would have enough time for pumping? The company certainly has no o9bligation to pay her during that extra time, but if she had explained her situation and volunteers a pay cut due to it as long as she was breastfeeding, perhaps a lot of trouble might have been avoided.
I understand the Theory, but in this case there is no reason to believe her firing was because about the lactating or pregnancy. The expensive (to the employer) and hard part of the pregnancy had past (would already affect insurance, have to cover her during leave, act) so why fire her? They just don't like women who nurses? I doubt it. It may have just been that she is a pain rather than the breaks, but that isn't bias against her pregnancy but her personality. Sure there are some questions but it's her job(or her lawyers) to prove them not just ask. They didn't. They also seem to indicate that they considered breaks for “pumping” different from restroom breaks as if indicating that one would need to discuss and arrange the situation not just say “this is what I'm going to do and you can't fire me”. Now maybe that wasn't the case but I have my suspicions. As fare as lactation in general it seems like many in the concurring opinion would tend to agree with you just that this case really didn't directly hit the question for most of the court.
hi there Jill, nice to see you as always.
From my brush with law school, I know that seeming irrational rulings and jury findings often come about, NOT because a judge or a jury is out of their minds, but because there is an element(s) of local, state or federal law that does not provide for any other decision.
I dont know the precis of this case, whether it was a jury trial or a hearing before a judge. But, I'd need to know the law in Ohio about 'at will' employment and whether so-called insubordination in the employment contract or agreement has any flexibility re 'reasons for an alleged insubordination', or whether it is written as a contract between objects : employer/ employee, without any room for personal considerations. IF, the contract were written in the latter way, that the person let go was breastfeeding or not, would not enter into the legal argument as a sturdy position. If the contract were the latter, NO accomodation or adjustment of hours/ make up time would be made, regardless of the extra-activity engaged in by the employee.
I'd like to know if the issue was a legal one about breastfeeding within whatever limits the Ohio law allows, or doesnt… or if the case in fact was an employment contract dispute. If the latter, although sympathy for the mother would seem required, still, the law is not what we think it 'ought to be,'…. the law is what is written legislatively to date, and case law and precedents to date. Often, I'm afraid, two different things.
And Jillzie, what the heck is a 'slippy sock.' I'd happily not buy any, but I need to know what I'm not buying.
I hope that last made you laugh.
thanks,
dr.e
Good morning, dr. e!
Thanks for the comment.
Very good points. One thing first – the court did not treat this is an accommodation case and in part that derives from not viewing pregnancy as a disability. There's a bit more on that below and also in the separate opinion written by Justice O'Connor.
Here's the opinion for anyone interested in reading it – it's not that long.
http://bit.ly/tgQBe
I've read the court's opinion a few times, highlighted and red-markered it, circled sections and starred others.
Here's what I read:
1. The employer said that she's fired for unauthorized breaks. All agree she took unauthorized breaks. Employee then does not adequately defend against that being a pretext and therefore the trial court granted summary judgement, the appellate affirmed and the OH Sup Crt split: they ruled 5-1 in the judgement with a seventh saying she'd dismiss the appeal; 3-2-1-1 in opinion (3 for a per curiam opinion, two for a separate opinion of Judge O'Connor, then the judge who would dismiss and then one judge in dissent)
2. The three concurring judges say that the question about whether breastfeeding is covered by Ohio pregnancy discrimination law need not be answered by the Sup Crt and that they can stop at just affirming the lower courts re: she took unauthorized breaks and can be fired.
5. Justice Maureen O'Connor (joined by Chief Justice Tom Moyer) writes a separate opinion and says that those three judges are wrong and that the court DOES have a duty to answer that question. Furthermore, she finds that they used the wrong precendent (federal instead of state) and that breastfeeding IS covered in Ohio pregnancy discrimination law and IS gender-based discrimination. Still, she found that the plaintiff failed to show disparate treatment discrimination given the facts that she produced and that is why O'Connor does say that summary judgement against plaintiff was proper at the lower courts.
Finally, O'Connor says that she does not find lactation to be a disability for purposes of disability discrimination analysis. She's very specific that pregnancy is not a disability and should not be seen as such.
6. Justice Paul Pfeifer dissents in judgement and opinion and would have sent this back to the trial court. He writes,
The appellate court does not explain why Allen’s trips to the
restroom outside scheduled break times were different from the restroom trips
other employees made outside scheduled break times. There is no evidence in the
record about any limit on the length of unscheduled restroom breaks and no
evidence that employees had to seek permission from a supervisor to take an
unscheduled restroom break. There is evidence only that unscheduled bathroom
breaks were allowed and that LaNisa Allen was fired for taking them. What made
her breaks different?
{¶ 54} We accept cases not necessarily because of how the result might
affect the parties in the individual case, but because of how a holding might affect
other persons similarly situated. Ohio’s working mothers who endure the
uncomfortable sacrifice of privacy that almost necessarily accompanies their
attempt to remain on the job and nourish their children deserve to know whether
Ohio’s pregnancy-discrimination laws protect them.
{¶ 55} I would hold in this case that employment discrimination due to
lactation is unlawful pursuant to R.C. 4112.01(B), that clear public policy justifies
an exception to the employment-at-will doctrine for women fired for reasons
relating to lactation, and that LaNisa Allen deserves the opportunity—due to the
state of the record—to prove her claim before a jury.
So – he feels that she never got the chance to prove her claim. Frankly, I'm not 100% sure that that's true – I need to know an awful lot more about the trial level and her attorney – I'm a bit concerned that something didn't go well with her representation but I just don't know anything about that level's proceedings beyond this opinion and some news items. There should have been instructions or something I would think at the trial court level. But I'm also thinking that totes/Isotoner knew a good thing when they had it re: her facts and legal argument not stepping up to the level the separate opinion and dissent suggest and so this was the result.
Hindsight is 20/20 but here's hoping that the Ohio legislature will get this taken care of re: lactation is part of pregnancy, is covered by those discrimination laws and is gender-based!
I'm going to have to disagree with you on this. Our society at every level should be valuing family values – not only for unborn embryos and babies in the womb, but for what child care takers must do to grow that baby to be healthy. Breastfeeding is part of that and business and the law must suck it up (no pun intended) and stop sending mixed messages. Why should women make less because of this health benefit only they can offer – for themselves as well as the child?
“Our society at every level should be valuing family values”
Not just accomodation, but support?
Don't flinch. Pro-natal and pro-family policies might get more support than the low level they have now, as part of our demographic and economic future. Why, even if the expenses are huge? To add to the number of taxpayers and ease the growth in dependency ratios in the future, that is why.
Ben Wattenberg is the guy here in the States formerly best known for bringing attention to “the Birth Dearth” and aging in general long before it become a big issue elsewhere, including at the UN and CSIS, for example; Phillip Longman (“The Empty Cradle”) is a more recent author on this subject.
Just don't be naive about where government or “societal” policies have the potential to take us.
http://www.washingtonmonthly.com/features/2004/…
http://www.newamerica.net/events/2008/family_based
Those are interesting articles, DLS, but I see it almost more as a moral and ethical issue as reality of population growth and demands press harder on all of us across the globe. And I think a lot of the destructive discourse occurring right now regarding health care, immigration and the role of our government in our lives are the playing fields for the tug of war over which points along the spectrum will dominate.
Jill – First, thanks for your link to the case. Having read it (quickly), I think you may be reading too much into it. The court never actually reached the issue of whether post-pregnancy lactation is covered under employment discrimination. The main opinion, in which three joined said, “The court does not reach the issue of whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute.”
The case was decided based on the plaintiff having failed to prove a “discriminatory motive” on the part of Isotoner or that that the reasons for her fring were a “pretext” for discrimination. Understand that an “at will” employee can be fired for any reason or for no reason, just not for the wrong reason.
The concurring opinion suggests the court should reach the issue and would hold that lactation is covered under the employment discrimination law, noting however that it is not a disability, and that they (two judges) would uphold the trial court's dismissal in this particular case because of the lack of proof issue. The dissent also would find lactation within the employment discrimination statute.
The math is this: 3 judges would find lactation to be within Ohio's employment-discrimination statute; 3 judges take no position on the question; and one judge bailed out of the case.
All of this raises the really sensient point that you make. Judges today, being so skittish about being labeled “activist”, tend to look for technical grounds to decide cases rather than looking to justice or the societal value of reaching decisions on the merits. This case is a classic example of that mindset as represented by the three who joined in the main opinion…(paraphrasing) “since we don't need to reach the key issue to decide this particular case, we will punt” (they call it not wanting to issue an advisory opinion). What you see here is the fallout from years of demonizing “activist judges”.
very interesting tidbit… re 'activist judges' allegations over the years. So many micro-factors, I have learned, from the inside, affect some of the considerations before final verdicts. One certainly is whether judge is appointed or elected. There are others. As famous Spanish galleon runner once said about the see-saw of justice: I've been known for escaping from prison in ten countries, but I've put ten times that many bad apples in prison in ten times more countries.
dr.e
Thanks for commenting, Tidbits.
I'm not clear where you think I went overboard.
“The court” in the personas of Justice O'Connor and Chief Justice Moyer absolutely does address whether what you term “post-pregnancy lactation” (there is no such thing as pre-pregnancy lactation that I know of!) is covered under Ohio employment discrimination law and they say yes, it is covered. Likewise Pfeifer says it is, in his dissent. You point that out too.
I honestly don't think this case is about being skittish on being activist – the court is 100% Republican – all judges in Ohio are elected and the laws about mixing party with judges has been loosened over the years. So, I think the party persuasion is part of the issue.
Additionally, I see a “pro-business interpretation where possible” bias in the Ohio Sup Crt and others have over the years as well.
I accept that people will disagree with this interpretation of mine, but I don't see it as reading too much into the opinion. This is all common knowledge about the Ohio Sup Crt.
The only thing I haven't done yet is search who has given money to which judges – I'd like to see if any of the totes/Isotoner folks in Cincy have.
Jill – I think I took a long way of saying the Ohio Supreme Court has not decided one way or the other whether lactation falls within the employment discrimination law. No majority was ever formed on that issue and it remains open for the next case.
It does appear to me, and I'm reading between the lines, that the trial lwyer tried to depend too much on an ADA claim (disability) and that cost considerable credibility. I agree that partisanship may play a role here, and, perhaps we make a similar point from different directions. Republicans tend to be most acute in their desire to avoid the activist label. They are also, as you point, more “pro-business” in their leanings. If any received campaign contributions from Isotoner and did not recuse him/herself from the case, notice to the Ohio Judicial Fitness Committee may be order, though I don't pretend to know the intricacies of Ohio's ethical standards for judges.
Btw, the term “post pregnancy lactation” was lifted verbatim from the case.
Archangel, or should I say Contessa Montoya – Thanks for your reply. The extent to which judicial activism has shaped our government, for the good, is often overlooked in these days when we have turned it into a “dirty” word. Without judicial activism much of what we hold dear in tradition and many of the rights and privileges we take for granted would not exist.
Please stop bringing up the days of Spanish galleon running. I'm still mad about the horse.
z of c
Hi Jill:
Because of the “subject matter” indicated by the title of your post, I have been reluctant to even read your post—you see, I am very prudish male.
However once I got the courage to wade in, I found it surprisingly interesting and thought provoking—as proven by the many excellent comments you have received.
Having come in the water so late, there is not much to add, except perhaps that had we had a few wise old (Latinas or not) women on the court with lots of true life experience, the decision might have been different.
By the way, just kidding (a little bit) a bout the “subject matter”.
Dorian
“I see it almost more as a moral and ethical issue”
That's what most if not all laws actually should be about, in addition to being tempered by such things as economics (including cost-benefit analysis) and demographics, in this case.
“as reality of population growth and demands press harder on all of us across the globe”
While there's reason for concern about future “resource wars” and other issues related to the development of the lesser developed nations, the reality for our future is that of aging and decline. (The USA is in better shape than other nations because its fertility levels are, and should remain, higher.) The aging will ruin the situation we face (and it will be worse in Europe) with retirement-related government programs. “Replacement [im]migration” at sufficient levels to ameliorate the problem will not be politically possible (and it will be worse in Europe).
One of the books I've linked to before and did so again today, by a realistic 1990s Democrat, used as an example of government-provided day care here in the USA. Already, at that time, it was not possible.
* * *
“Judges today, being so skittish about being labeled “activist”, tend to look for technical grounds to decide cases rather than looking to justice or the societal value of reaching decisions on the merits.”
That's because it's never the correct role of judges to ignore the actual law, and the actual meaning of the law (as intended by those who wrote and enacted it), in favor of their desires or wishes, or to ask instead, “Is it good?” “Is it right?” (And it's far from hypothetical to say what they want can be bad or wrong.) To create law is a legislative task and function alone, not that of the judiciary. The example I've used of a judge creatively “interpreting” your parents' will to say something much different (or even the opposite) of what they've said, written, and obviously mean, will always be illustrative here. Another example is a sports official who believes there's something unjust about the rules of a sport or game and substitutes something “better.”
DLS – Rather than challenge your position, I think I'd like to ask a series of questions.
1. Do you believe the US Supreme Court should interpret the Constitution? In our early history that was actually a serious debate until the Supreme Court (in probably the most activist decision in its history) took that power unto itself in Marbury v. Madison. Only by capitulation of the other two branches of government did we avoid a constitutional crisis.
2. Do you believe poor defendants should have court appointed attorneys. The Constitution says only they have right to counsel…not a right to publicly paid counsel. The activist case that “extended” that right is Gideon v. Wainwright.
3. Do you believe in the integration of schools, as opposed to the separate-but-equal doctrine. The activist case that integrated our schools was Brown v. Board of Education.
4. Do you believe in a woman's right to choose (maybe you don't). If you do, the activist case that made choice a possibility and took abortions out of back alleys was Roe v. Wade. (the right to purchase contraceptives is also the result of an activist decsion, btw)
And not all activist decisions are liberal or civil liberties related. Last year the SC made an activist conservative interpretation of the Second Amendment, ignoring the “militia” clause and holding that the right to bear arms was individual right and not related to a “well regulated militia”. Do you agree with that activist decision?
In another series of decisions the SC, beginning in the late 70's, recognized commercial speech, not mentioned in the Constitution, as being the equivilent of free speech guaranteed to individuals. Pretty darned activist. Do you agree with that line of decisions?
As I said earlier, many of the rights and privileges we take for granted are the result of activist decisions. Interestingly, probably the most activist judge currently on the SC is Antonin Scalia.
Ha – I'm not surprised re: that post-pregnancy lactation phrase is from the court. Ugh.
I agree with all you've written here – thanks for commenting on the case. I was on a radio show talking about it last night with people in California and wow, their state has just an entirely different approach to women, babies, pregnancy and work. Of course, their budget woes are a lot like Ohio's…:)
Thanks for finally wading in, Dorian!
It IS a fascinating topic and I do empathize with the challenges some employers feel regarding how to maximize work environments and production when the employee has some attendant circumstance – such as pregnancy or a sick family member or perhaps a looming financial crisis – who knows. These are stresses. But I think Justice O'Connor really hit it right re: the court was wrong to avoid the obvious – they actually had a chance to do something and now the legislature will probably do it instead. I suppose that's not the worst outcome, but it didn't have to be that way.
I hope more comes out about the trial court situation but I think Tidbits is correct re: the attorny shouldn't have tried to stick with the disability angle – though Cincy can be awfully conservative. Who knows.
“1. Do you believe the US Supreme Court should interpret the Constitution? In our early history that was actually a serious debate until the Supreme Court (in probably the most activist decision in its history) took that power unto itself in Marbury v. Madison. Only by capitulation of the other two branches of government did we avoid a constitutional crisis.”
There's a difference between truly, honestly interpreting the law (which includes in its scope the extension of words and their correct meanings to apply to things not named or even foreseen by those who wrote and enacted the law, such as air traffic control and air travel and aircraft) and inventing things out of thin air without any legitimate basis (but rather, from views or desires).
It's a shame that the jucidiary has chosen to overreach rather than remain merely a court, and primarily if not exclusively (in practice) an appellate court, concerned with “due process” (were things done legally) rather than “due process” (what someone thinks the law should be).
“2. Do you believe poor defendants should have court appointed attorneys. The Constitution says only they have right to counsel…not a right to publicly paid counsel. The activist case that 'extended' that right is Gideon v. Wainwright.”
Not everything that “extends” meaning is “activist,” and this isn't. (Nor are federal laws which rightly are implied or whose details materialize under the “reasonable and proper” clause. Example: If the feds can create a Post Office, they can also define laws about use of it, and crimes and penalties for harmful conduct against it.) Obviously “shall” implies the requirement to pay for something that must be done. (It's true any time the federal government chooses to do what it “may” do.)
“3. Do you believe in the integration of schools, as opposed to the separate-but-equal doctrine. The activist case that integrated our schools was Brown v. Board of Education.”
??? I believe in societal integration. (I'm surprised you'd ask that.) Brown is somewhat activist but could have been reworded to address the problems here (nobody actually believed that “separate but equal” was truly honored.) Had Brown not been decided, this problem would have been corrected later, eventually, no later than during the Civil Rights era after passage of the Civil Rights act.
“4. Do you believe in a woman's right to choose (maybe you don't).”
This is incorrect language. To choose what? Abortion, obviously.
Do I believe in a woman's right to have an abortion (to abort a pregnancy)? Overall, yes; the later it happens, the more I am bothered by it, as are most people, but to me this is something that has been happening since women have been getting pregnant (it's related to contraception in that light). Is there an unlimited, absolute right to abortion? No; it's the legitimate object of regulation by state and local governments, where it belongs. And there's no “right” as a claim to government-provided or paid-for abortion. That is something for publics and legislatures to decide if it's to be done, or not.
” If you do, the activist case that made choice a possibility and took abortions out of back alleys was Roe v. Wade. (the right to purchase contraceptives is also the result of an activist decsion, btw)”
Both are activist. Roe v. Wade is particularly insulting to honest, intelligent people. While there are others, the most glaring incontrovertible detail of that ruling exemplifying and proving activism is the “trimester rule” portion.
Also activist is, for example, Reynolds v. Sims (successor to Baker v. Carr). It not only is an insult in the choice to rule like this, and to impose whim in place of actual law and legitimacy, and to add to this with sappy sentiment (“Legislators represent people, not trees or acres”). It was not only illegitimate, but was also inconsistent: it only ordered state legislatures fully apportioned on a population basis. It said nothing about local governments, or more notably, the U.S. Senate, all in addition to state legislatures which were and remain fully constitutional.
Back then the Court admitted that it didn't know precisely how to apportion the seats. But with Roe v. Wade the Court actually chose to craft its own law precisely defining the “trimester rules.”
In no way is this anything legitimate such as, for example, clarifying what a law actually means, or resolving a dispute between conflicting laws that have been legitimately enacted.
“Last year the SC made an activist conservative interpretation of the Second Amendment, ignoring the 'militia' clause and holding that the right to bear arms was individual right and not related to a 'well regulated militia'. Do you agree with that activist decision? “
It isn't an activist decision, and of course I agree with it, because it's correct. Not only is the right itself an individual right (see Joyce Lee Malcom's book for the history of it in our English-heritage context, in particular), but in addition, the amendment has never been repealed, so it remains in effect. The only question that actually is raised by it is its scope, and specifically the issue of most (and nearly all) importance is if or to what extent it applies to the federal government (the object of it, by normal understanding) versus the state and local governments, which would be able to legislate on this subject as they saw fit. (But, we have federal citizenship, and states cannot infringe on our rights as federal citizens, can they?.)
Unfortunately, a history decades long of liberal judicial activism has led to the use of the courts as a lefty political weapon, and it goes beyond that to encompass the commonplace and disgusting practice of people not seeking to get laws changed as they should, through elections and the legislatures, but rushing to the courts in hopes of finding a friendly judge who will vote — not “rule” — their way.
Worth reading (Malcolm)
http://books.google.com/books?id=j4ZnFy3f8sAC&d…
http://www.amazon.com/Keep-Bear-Arms-Origins-An…
If it's outmoded, then repeal the Second Amendment and you're free to have states and localities legislate on gun control to their hearts' content. It would remain an open question about the scope of federal citizenship and just what the federal government could do nation-wide to its citizens (we have a modern welfare state, associated with the modern concept of citizenship that probably lets some of it slip past any Constitutional filter, but federalism remains alive in spirit as well as in letter and retains limits or constraints on what Washington should be permitted (NOTE) to do.
“In another series of decisions the SC, beginning in the late 70's, recognized commercial speech, not mentioned in the Constitution, as being the equivilent of free speech guaranteed to individuals. Pretty darned activist. Do you agree with that line of decisions?”
What is the content of the speech in question? I'm assuming it's not anything and everything people demand be constitutionally protected as “art,” or in personal [mis]conduct as “speech.”
“Speech” here typically means expression and notably political expression (and within that, most important of all being the right to dissent or to criticize government).
If it's political advertising, as a rule it should be protected. (There's no “right” of libel, slander, fraud…)
That advertising costs money is merely a fact of existence, like everything else that costs money. (“Life is classist,” I say to activists on the far Left.)
Note that the federal government routinely suppresses advertising for tobacco and alcohol in what used to be common ways (something I wish were done with prescription drugs, by the way), which is far closer to “speech” than junk claimed to be “art,” for example.
NOTE:
“federal citizenship and just what the federal government could do nation-wide to its citizens (we have a modern welfare state, associated with the modern concept of citizenship that probably lets some of it slip past any Constitutional filter”
This is where an honest line of legal (and otherwise!) reasoning should be taken with so much today.
And while it involves the obvious threat of activism (all but killing what's left of the Tenth Amendment and what remnants remain of correct construction of the Constitution and constitutional federalism beyond Bob Dole in 1996 carrying the Tenth Amendment in his pocket for campaign appearances), a ruling clarifying (it's risky to say “establishing”) the scope of federal citizenship and corresponding powers of the federal government in this light is long, long overdue. (Ideally this would have happened in the 1930s.)
Extra notes re:
“the scope of federal citizenship and corresponding powers of the federal government in this light”
1. We have had a modern welfare state (as have other developed nations) since the 1930s.
2. This is not a general, unlimited grant of power to the federal government. Federalism remains; the enumeration of powers in the Constitution, and the Tenth Amendment, continue to make this clear, even if it continues to be dishonored all the time. (We've moved over decades to a de facto if not de jure unitary nation with Washington as a national capital with complete supremacy and few limits.)
3. No, “privileges and immunities” don't apply with so much, including entitlement programs.
4. “Rights” are liberties, freedoms, not claims as in “rights” to things like income support or health care. (Informed and concerned people have always worried that the Ninth Amendment “genie” would be “uncorked” in this dishonest manner someday, such as during the earliest 1990s Clinton years.)
5. Obviously the General Welfare clause doesn't justify entitlement programs (the most stupid kind of equivocation), nor does the Interstate Commerce clause (badly abused in previous years), much less the Preamble (which has no applicability whatsoever).
The “federal citizenship” approach has been badly neglected (in favor of the earlier listed examples).
Worth Reading post.Really liked it.I am in support of breastfeeding, i am in her support !The court's decision was wrong, in my opinion.