Victorious Samantha Elauf

The SCOTUS issued another opinion, this time from Justice Antonin Scalia, strengthening religious rights in the workplace. In EEOC v Abercrombie & Fitch, the High Court reversed a 10th Circuit Court of Appeals' ruling that favored an employer's right to uphold a corporate dress code; in this case, it was Abercrombie's "no head wear" policy.

The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment. Samantha Elauf, a Muslim teenager back in 2008, applied to an A&F store in Tulsa, Oklahoma.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or head wear of any kind.  At the SCOTUS, Abercrombie argued that no religious discrimination occurred because it had no "actual knowledge" that Ms. Elauf wore her hijab for religious reasons; she was silent on the subject during her interview.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Justice Scalia's decision was aptly summarized in Amy Howe's "Plain English" post for SCOTUSBlog:

The Court reasoned that the federal law at issue in this case, Title VII of the Civil Rights Act of 1964, bars employers from refusing to hire someone “because of” her religion, which includes religious observances. And in the context of this law, the Court continued, the phrase “because of” requires only that “an individual’s actual religious practice . . . not be a motivating factor” behind the failure to hire her. There is no requirement that the employer actually know that there could be “a conflict between an applicant’s religious practice and a work rule.” Indeed, the Court emphasizes, although other antidiscrimination statutes do explicitly require knowledge, Title VII does not. Therefore, reading the statute to include a knowledge requirement would “ask us to add words to the law to produce what is thought to be a desirable result.” And that, the Court made clear, “is Congress’s province.” 

Similarly, Abercrombie's argument-in-the-alternative that its dress code applied to all employees was rejected by the SCOTUS.  The Court's ruling states that the civil rights act does not require employers to be neutral but rather, that they provide an applicant's or employee's religious practices "favored treatment."

In the workplace, this means that employment practices that are otherwise neutral must now "give way to a need for an accommodation."  Business groups have already taken issue with the ruling on the basis that it puts employers behind the eight ball with a confusing standard that forces the employer to guess at an applicant's religious practices.  Also, business groups fear the opinion opens the door to litigation, making employers vulnerable within the context of the "favored treatment" workplace.

We here at the Law Blogger wonder which religious practices are going to surface in the inevitable cases spawned by this decision. No doubt, there will be some interesting ones, you just wait and see...

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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By: Timothy P. Flynn

Fresh off the press from yesterday's announced decision: the 4th Amendment warrant requirement means something after all.  In Riley v California, a case we've been tracking here at the Law Blogger, SCOTUS held that without a warrant, the police cannot seize the digital data contained in an arrestee's cell phone.

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  Now SCOTUS has reversed that sentence in a unanimous opinion that injects new life into the 4th Amendment's search and seizure clause.

The traffic stop led to the discovery that Riley's drivers license was suspended.  When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to the discovery of guns in the trunk.

The cops also located Riley's cell phone in the car from which they promptly extracted digital data in its entirety.  Think for a moment about the kind of data that lies buried within your cell phone.

In Riley's case, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Legal scholar Lyle Denniston of SCOTUSblog summarized the High Court decision much better than we ever could:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone  is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

We here at the Law Blogger heartily agree with this unanimous decision.  We walk around with our private lives attached, literally to our hip, or our ear, or our belt.  Cell phones are miniature personal computers, and should be imbued with some modicum of privacy relative to law enforcement.

If the data is needed to prove criminal conduct, then an old fashioned warrant must be secured.  From their landmark graves, our Founding Father's would agree.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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