ACLU

Should Therapists Be Able to Turn Away Clients on Moral Grounds?

By David Lat

Judge Jeffrey Sutton

Over the weekend, Mark Oppenheimer wrote an interesting New York Times piece about the Sixth Circuit’s recent ruling in Ward v. Polite (PDF). In that case, Judge Jeffrey Sutton — noted feeder judge, judicial hottie, and possible SCOTUS nominee in a Republican administration — handed a (partial) victory to Julea Ward, an evangelical Christian who sued various teachers and administrators at Eastern Michigan University, where she had been studying counseling.

Here’s a concise summary of the facts, from the opening to Judge Sutton’s opinion (which is wonderfully clear; he’s great at explaining complex legal issues to large lay audiences; see also his Obamacare opinion):

When the university asked Ward to counsel a gay client, Ward asked her faculty supervisor either to refer the client to another student or to permit her to begin counseling and make a referral if the counseling session turned to relationship issues. The faculty supervisor referred the client. The university commenced a disciplinary hearing into Ward’s referral request and eventually expelled her from the program. Ward sued the university defendants under the First and Fourteenth Amendments.

Ward claimed that her expulsion violated her free speech and free exercise rights. The district court granted summary judgment in favor of the university, but the Sixth Circuit reversed. At the same time, the Sixth Circuit held that Ward wasn’t entitled to summary judgment in her favor either: “At this stage of the case and on this record, neither side deserves to win as a matter of law.” So perhaps we’ll end up with a trial.

Who’s in the right here, Ward or the university? Let’s discuss….

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Morning Docket: 01.24.12

By Staci Zaretsky

* First the Jones verdict, then the Fourth Circuit affirmed the dismissal of Jose Padilla’s torture lawsuit. It’s enough to make ACLUers develop bipolar disorder. [Washington Post]

* Release the Kagan! The Supreme Court rejected Freedom Watch’s motion for time to argue that Justice Elena Kagan should recuse herself from the Obamacare case. [CNN]

* Biglaw problems: here’s a great round-up of 2012′s law firm lawsuits, starring Akin Gump, Crowell & Moring, Dechert, and Greenberg Traurig, to name a few. [Am Law Daily]

* After dropping a lawsuit challenging their forcible eviction from Zuccotti Park, supporters of Occupy Wall Street will go back to occupying the couches in their parents’ basements. [Bloomberg]

* Not interested in being a lawyer? Check out these suggestions for “unique” career paths (i.e., ones that you could have pursued after college, with half the debt load). [U.S. News]

* Not such a great alternative fee arrangement. A prosecutor turned solo practitioner is going to jail after accepting oxycodone pills as payment from a police informant. [Tampa Bay Times]

Are Occupiers Finally Learning The Value Of Competent Lawyering?

By Elie Mystal

I’ve said from the beginning that while the goals of the Occupy Wall Street crowd were not wrong, their tactics have been lacking. The denizens of “Wall Street” (at least not in its geographic form) didn’t cause the collapse of the American economy; they’re just trying to figure out how to profit from it. There’s been an entire legal structure erected to protect the banking industry; wagging your fingers at them isn’t going to do a whole hell of a lot.

And it’s not like “the banks” or whoever can’t fight back. Occupiers might be angry at Wall Street or corporate America or whoever, but it’s “the law” that will be in charge of actually crushing their little movement. The people in Oakland already saw what the police can do. And the police are just the storm troopers of the military-industrial complex. City ordinances, curfews, and unsympathetic judges: these are the people and things that can turn Occupy Wall Street into Alderaan.

But maybe the protesters are starting to understand the true power of the dark side. And maybe they’ll have some new hope if they get some fully trained lawyers on their side (as opposed to non-lawyer volunteers)….

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Boobs v. Brains: Who Wins When It Comes to LSAT Accommodations?

By Staci Zaretsky

Om nom nom.

Ah, the LSAT. For those of you who are still considering the practice of law, this test should be the first indication of the epic toolishness you will encounter when you enter the hallowed halls of a law school. This is usually where the bragging begins, folks. Your “friends” not only studied harder than you did (they didn’t), but they also got better scores than you did (they didn’t).

But worse than all of the bragging is the fact that some — but not all — people will get special accommodations for the LSAT (and law school exams, and the bar exam, and every other exam, ad infinitum). These special little snowflakes will get extra time and other perks to take the same exam that you’re taking.

The question is, who really deserves these special testing accommodations? Boobs or brains?

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Morning Docket: 09.21.11

By Staci Zaretsky

* Hey, Preet Bharara, even Lady Gaga can read your poker face when you’re going all in on an allegation of Full Tilt Ponzi. Maybe Lederer and Ferguson will finally fold. [Wall Street Journal]

* You know what this country really needs? More doctors who don’t believe in science. Another stem cell research case is going up to the D.C. Circuit. [Bloomberg]

* The last 9/11 wrongful death suit has been settled. Lessons learned: airport screeners might not know what Mace is, but they sure can lift and separate your balls. [New York Times]

* Cooley Law held a groundbreaking ceremony for its new campus. We’re good at surviving natural disasters, but a tsunami of unemployed lawyers might break this profession. [Miami Herald]

* A group of drag queens in Florida got busted for thieving the essentials — bras, boas, and butt pads. As RuPaul would say, you better work. Or steal. You know, whatever. [New York Daily News]

* Guys in my high school middle school used to have the ACLU file lawsuits over breathalyzer tests all the time. It was no big deal. [MSNBC]

Udderly Deplorable

By Juggalo Law

When I was a child, my mom’s friend visited the house and brought her newborn baby with her. Without warning, the woman whipped out her boob and began feeding the newborn in front of me and all of God’s creation. I stared for an uncomfortably long ten seconds at the parasitic orgy, then quickly scampered behind the curtains located less than five feet from the feeding frenzy. As I stood behind the curtains, my face beet red with embarrassment, my mother and her friend tried to coax me out, assuring me that everything would be okay. After an unusually long time behind those curtains, I stomped past the horror and made a beeline to the kitchen. I had to conquer my fear. I was also determined to salvage what was left of my 14th birthday party.

Segue.

And so it was that a lady filed a complaint with the Equal Employment Opportunity Commission, claiming that she was fired from her job as a teacher because she had to leave the classroom to suck milk out of her boob.

Moooooo-re after the jump!

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Indiana Judge Upholds High School Girls’ Constitutional Right To Post Slutty Photos Online

By Kashmir Hill

Back in 2009, some teen girls in Indiana had a sleepover that lived up to any teen boy’s fantasy version of one. After racy photos from the summer slumber party made their way to the principal’s office, two of the athletes in attendance were suspended from school sports for the year. That’s, like, totally unfair, said the ACLU, which helped the students sue the school, alleging violation of their First Amendment right to post slutty photos of themselves online.

The girls took photos of themselves “playing” with “phallic-shaped rainbow colored lollipops,” in the court’s words. It sounds like the oh-so-innocent unicorn horn lollipop to me. Though unicorns are usually associated with purity and virginity, these girls took the horn in a different direction, using it in photo shoots that simulated various sexual positions. I’ll leave the descriptions to the court, which wrote one of the racier opinions [pdf] I’ve ever come across (via Professor Eric Goldman’s Technology and Marketing Law Blog)….

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Obama Directs DOJ to Stop Defending DOMA

By David Lat

President Obama has directed the Department of Justice to stop defending Section 3 of the Defense of Marriage Act (DOMA), the 1996 law prohibiting federal recognition of same-sex marriage. Attorney General Eric Holder’s letter explaining the decision to Speaker of the House John Boehner appears here.

In other marriage-equality-related news, the American Foundation for Equal Rights (AFER) — the organization represented by Ted Olson and Davis Boies inthe Prop 8 litigation — has filed a motion in the Ninth Circuit, asking that court to lift its stay on same-sex marriage in California.

Read more at the links below.

UPDATE: For some reactions to this news, see, e.g., the ACLU (pleased) and Ted Frank (displeased).

BREAKING: DOJ Will No Longer Defend Section 3 of DOMA [Poliglot / Metro Weekly]
Obama Orders End to Defense of Federal Gay Marriage Law [New York Times]
AFER Asks U.S. Court of Appeals to Lift the Stay on Marriage for Gay and Lesbian Couples [American Foundation for Equal Rights]

University of Michigan Student ACLU Defends Andrew Shirvell

By Elie Mystal

Sometimes it’s not the person, it’s the principle. You all remember Andrew Shirvell. He’s the former assistant in the Michigan’s Attorney General’s Office who started a hate blog directed at Chris Armstrong, a Michigan student body president who happens to be gay.

As Shirvell’s actions came to light, he was banned from Michigan’s campus (he had been going there to harass Armstrong). It seemed like the smart thing to do, not just for protection of gays and lesbians at Michigan, but hey, one less tool hanging around campus can’t be a bad thing.

But not according to the Michigan student chapter of the ACLU. The organization is using the Shirvell case to condemn the school’s trespass policy…

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The ACLU, Suspected Terrorists and American Policy on Killing Them — A Wedding Crashers Screenplay

By Above the Law

Ed. note: This post is by “The Gobbler,” one of the two writers under consideration to join Morning Dockette as a Morning Docket writer. As always, we welcome your thoughts in the comments.

I was asked to cover the lawsuit filed yesterday by the ACLU against the Obama administration regarding its policy of keeping a “kill list” and, to a larger extent, following up on it. Ashby Jones does a workmanlike summary of the basics here, providing links to background, discussion, and the complaint. Rather than rehash the facts, or lead a discussion of the latest embarrassingly naked moment in America’s long history of civil-rights-shrinkage during dips in the wartime pool, I thought I’d get creative. Sorry.

What follows is a screenplay depicting the rocky relationship between Mr. Anwar al-Aulaqi (pictured), the first American citizen added to the CIA’s naughty list; the ACLU, which, on Anwar’s behalf, alleges that the list and any action thereon violates several sections of the Constitution and international law; and the American Government. As the title suggests, it’s based on the plot and dialogue from Wedding Crashers. Christopher Walken will play the role of America, with Keir O’Donnell (a/k/a “Todd”) playing the role of Anwar. The supporting cast, in order of appearance: Vince Vaughn as ACLU, Owen Wilson as Center for Constitutional Rights, Ellen Dow (think “Rapper’s Delight” in The Wedding Singer) as Righty Conservative, Isla Fisher as Treasury, Bradley Cooper as District Court and Rachel McAdams as Court of Appeals.

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A Brave New Genetic Database

By Kashmir Hill

While in journalism school, one of my “assignments” was to hang out at New York’s night court (open until 1 a.m. every night), observe the proceedings, and then write about them. It was less exciting than Judge Harry had led me to believe, but was an interesting night replete with drug addicts, prostitutes, and a cheap-date-loving couple who had stopped in to observe as free post-Chinatown-dinner entertainment.

It also introduced me to a 2006 New York law that requires felons to submit a genetic sample to the state DNA database. When informed of the law, one defendant arraigned on burglary charges resisted giving up his double helixes. “Are you willing to issue a court order to make me do it, sir?” he asked the judge.

“Is my saying it to you not enough?” the judge replied. The defendant said: “If you sign a court order, I’ll do it.” The judge asked for a piece of paper, and the defendant objected, “No, I want an official court order.”

The assistant district attorney then explained, in an annoyed tone, that any paper written and signed by the judge qualifies as a “court order.” The judge issued the order, but the man returned 15 minutes later, still refusing to give the DNA sample. The judge set bail and again reminded the dude that the DNA sample was required by law.

Many states have criminal genetic databases these days. As noted by the Genomics Law Report, the LAPD’s using theirs to catch the “Grim Sleeper” serial killer has resulted in a lot of media attention for these databases, despite the fact that they’ve been around for awhile. That’s because, according to GLR, “the case marks the first time in the United States that a DNA search technique known as familial searching has led to an arrest in a homicide case.” The LAPD nabbed the Grim Sleeper after DNA samples from the murders were found to be genetically similar to those of the Sleeper’s son, who had given up his DNA after a felony weapons charge. (Apparently, criminal genes run in that family.)

The attention being paid to the databases is not all positive, though. The ACLU, which has a problem with the way that California compiles its database, filed a lawsuit against Attorney General Jerry Brown last year. It’s now before the Ninth Circuit. What’s the ACLU’s problem with California’s compiling genetic information for felons and suspected felons?

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Three Cheers for Designating Cheerleading a Sport?

By Kashmir Hill

It’s one of life’s great unanswered questions: Is cheerleading a sport? Soon a federal judge in Connecticut will make a ruling in a Title IX case that may help solve this age-old mystery. From the New Haven Register:

It is unclear whether federal judge Stefan R. Underhill will offer an opinion on whether competitive cheerleading is a viable varsity sport or not. But, Underhill will have to decide whether Quinnipiac University can truly count it as one in his decision in the case of the women’s volleyball team against the school.

The two sides of the lawsuit brought before the U.S. District Court by the American Civil Liberties Union to determine if Quinnipiac violated Title IX parameters debated the merits of competitive cheerleading for much of Tuesday’s session, the second day of testimony.

Says the (male) tipster who sent this along:

I’d love to work on this trial… the exhibits could be great.

One of the cheerleading experts for the volleyball plaintiffs offered a spirited argument against cheerleading as a sport, comparing it to chess.

Please. Could Bobby Fischer do what those women above are doing for the Indians?

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Arizona, Here Come the Lawsuits

By Elie Mystal

As we mentioned in Morning Docket, the lawsuits are coming for Arizona’s new immigration law. First up, the ACLU. Bloomberg reports:

The American Civil Liberties Union is leading a court challenge to Arizona’s new law targeting illegal immigration, claiming the measure would allow unconstitutional racial profiling by police.

A group of civil rights organizations led by the ACLU also alleges that the law interferes with federal power and authority over immigration matters in violation of the U.S. Constitution, according to a complaint filed today in federal court in Phoenix. The group claims in addition that the statute infringes the free-speech rights of day laborers in the state.

It’s not surprising that the ACLU is taking the first shot at this. The Department of Justice might not be far behind….

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You Can Dance If You Want To (Unless You’re a Lesbian)
Judge declines to order school to hold prom.

By David Lat

Don’t be misled by the photo — this isn’t another post about Snooki. It’s about Constance McMillen (pictured), a lesbian high schooler who wanted to bring her girlfriend to the high school prom.

(Query from Elie: Is “lesbian high schooler” the politically correct way to say “girls’ hockey team”?)

The Clarion-Ledger reports:

Both sides are claiming victory from a federal judge’s ruling Tuesday on a Mississippi school board’s decision to cancel the prom rather than allow a lesbian student to attend with her girlfriend.

U.S. District Court Judge Glen Davidson denied 18-year-old senior Constance McMillen’s request to reinstate the prom, noting “the court cannot go into the business of planning and overseeing a prom.”

To paraphrase Justice Blackmun: From this day forward, I no longer shall tinker with the machinery of teenage sex.

So if Judge Davidson declined to “so order” a high school prom, how can McMillen claim victory?

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Judge declines to order school to hold prom.“

Hate Abounds at University of Idaho College of Law

By Elie Mystal

Idaho college of law logo.JPGThe administration at the University of Idaho, College of Law, is dealing with a spate of hate inspired incidents. The news coming out from Idaho is all fairly grotesque; federal authorities have been alerted to the potentially dangerous problems on campus.
In an email to all Idaho law students, associate dean Elizabeth Brandt explains that the problems started in August:

Dear Students,
I am writing to give you the details of a series of events that have occurred in the law building since last August.
The first incident occurred shortly before school started in August. At that time, students discovered that someone had gouged out the eyes of a student in a photo posted on the ACLU bulletin board next to the elevator on the ground floor near the café. The person whose picture was defaced is an LGBT rights and ACLU activist. At the time, we believed that this might be a prank, but that it also might be malicious. Dean Albertson-Ploucha and I sent an email at the time letting you know that items on the ACLU bulletin board had been defaced, cautioning that such conduct was unprofessional, threatening and potentially illegal, and encouraging support for the diverse law school community.

As we understand it, there is no evidence that the tasteless acts were committed by Idaho law students.
But sadly, whoever is frightening the community didn’t stop in August …

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Let’s Talk Even More About Dr. Li-ann Thio

By David Lat

Jeez. Even we are sick of this story — and that’s saying a lot.
But apparently some folks think, despite the endless navel-gazing and handwringing over the (canceled) visit of Dr. Li-ann Thio to NYU Law School, that there is more to be said here.

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Morning Docket 4.24.09

By Eliza Gray

pirate ship.jpg* Kenya has emerged as the chosen venue to try piracy cases. This article is worth it just for the quotes from the Kenyan piracy lawyer. Just try to imagine how much cooler your life would be if you were a Kenyan Piracy lawyer instead of a Biglaw associate. [The New York Times]

* Florida Judge Thomas Stringer worked for years to establish himself as a trusted, competent man. “then last spring, the well-respected, married judge suddenly found his face splashed beside that of a troubled exotic dancer in a kimono,” including here at ATL, of course. Amazing. [The Associated Press]

* Attorney General Eric Holder dodged alternating attacks on Capitol Hill Thursday, with some Congressman telling him to release more documents on Bush-era torture, and some telling him to stop releasing them. [CNN]

The Scarlet Pumpkin: Part II

By Elie Mystal

Scarlet Pumpkin Sign.jpgWe previously discussed Maryland’s Halloween sex offender ordinance, which requires convicted sex offenders to turn off their lights and display the sign (shown to the right) warning children to stay away on Halloween.

Missouri has a similar law. They require sex offenders stay inside between 5 and 10:30 p.m., prohibits them from participating in Halloween related activities, and wants them to turn down the lights and post a “no candy here” sign.

According the WSJ Law blog, District Judge Carol Jackson struck down parts of the law yesterday. In particular, the judge was concerned with the vagueness of the law:

Apparently, Judge Jackson was concerned that in some cases, parents could be punished for Halloween activities with their own children, such as “carving a pumpkin in the privacy of your kitchen with your 5-year-old child.” She questioned whether such parents might have to send their kids away on Halloween to avoid prosecution. “It’s not too much to expect criminal laws to be clear,” she said.

The judge did not note what many of our commenters already have: telling sex offenders to turn down the lights is a terrible idea.

Seriously, the whole thought process behind trampling civil liberties requiring these extra regulations for convicted sex offenders is the fear about sex offender recidivism. If we are truly worried that sex offenders are ticking time bombs waiting to explode all over little children, shouldn’t their houses remain well-lit at all times?

Also, why should sex offenders be forced to stay home on Halloween? It seems like a great time for them to fulfill their Megan’s Law requirements, just like Will Forte suggested.

Halloween & the Law: Targeting Sexual Offenders [WSJ Law Blog]

Earlier: The Scarlet Pumpkin

ACLU Looks To Brooklyn Law For New President

By Elie Mystal

susan herman aclu.jpgOn Saturday the American Civil Liberties Union elected a new president, Susan Herman.

She’s a constitutional law professor at Brooklyn Law School and had served as the ACLU’s general counsel prior to this promotion. It has been a long time since ACLU leadership changed hands:

Herman’s selection gives the organization a new public face for the first time in nearly two decades. Nadine Strossen, the ACLU’s longest-serving president and the first woman to hold the job, had led the group since 1991, overseeing a substantial rise in formal membership and national staff.

Herman intends to spearhead the organization’s outreach to the African-American community, and she believes that her professorial background will help encourage young people to become card-carrying members.

More on Susan Herman’s background after the jump.

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The Scarlet Pumpkin

By Elie Mystal

Scarlet Pumpkin Sign.jpgTrue story: when I was 8-years-old living on Long Island I went trick-or-treating with my friends without adult supervision. On the way home, my bag full of goodies, I got jumped by a group of older kids. My “friends” were busy running away while I tried to “reason” with the bullies. Sensing the these boys were not going to listen to rational arguments I took my faux briefcase (I was going as Ted Kennedy) and knocked one of the bullies right on the temple. Unfortunately, they were many and I was 8. No candy for me that Halloween.

Since then, I’ve always considered it amazingly stupid for parents to let their kids gambol through the night unattended. It’s a pagan holiday and bad stuff can happen.

If more parents followed this basic safety tip, the sign to the right would not be necessary. Our friend at f/k/a explains:

[It's] the sign that sex offenders must display at their homes in Maryland this Halloween. According to the Times, the bright orange pumpkin is the symbol sex offenders “are required to post on their doors with a warning, in capital letters, to trick-or-treaters: ‘No candy at this residence’.” In addition to posting the sign, the offenders must stay at home, turn off outside lights and not answer the door. Some states prohibit sex offenders from decorating the outside of their homes. But, Maryland is mandating this colorful and “attractive” Halloween decoration.

I’m sure many people can appreciate the practicality of not having your kids sidle up to a convicted sex offender’s house on All Hallows Eve. But should people who have ostensibly “paid their debt” to society be forced to decorate their house because some idiot child might come around begging for food?

More analysis after the jump.

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