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equal protection clause
'Discriminatory' North Carolina Law Criminalizing Felon Voting Struck Down
One plaintiffs' attorney said the ruling "makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society."
Apr 23, 2024
Democracy defenders on Tuesday hailed a ruling from a U.S. federal judge striking down a 19th-century North Carolina law criminalizing people who vote while on parole, probation, or post-release supervision due to a felony conviction.
In Monday's decision, U.S. District Judge Loretta C. Biggs—an appointee of former Democratic President Barack Obama—sided with the North Carolina A. Philip Randolph Institute and Action NC, who argued that the 1877 law discriminated against Black people.
"The challenged statute was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters," Biggs wrote in her 25-page ruling.
Therefore, according to the judge, the 1877 law violates the U.S. Constitution's equal protection clause.
"We are ecstatic that the court found in our favor and struck down this racially discriminatory law that has been arbitrarily enforced over time," Action NC executive director Pat McCoy said in a statement. "We will now be able to help more people become civically engaged without fear of prosecution for innocent mistakes. Democracy truly won today!"
Voting rights tracker Democracy Docket noted that Monday's ruling "does not have any bearing on North Carolina's strict felony disenfranchisement law, which denies the right to vote for those with felony convictions who remain on probation, parole, or a suspended sentence—often leaving individuals without voting rights for many years after release from incarceration."
However, Mitchell Brown, an attorney for one of the plaintiffs, said that "Judge Biggs' decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to reengage in the political process and perform their civic duty."
"It also makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society, specifically Black voters who were the target of this law," Brown added.
North Carolina officials have not said whether they will appeal Biggs' ruling. The state Department of Justice said it was reviewing the decision.
According to Forward Justice—a nonpartisan law, policy, and strategy center dedicated to advancing racial, social, and economic justice in the U.S. South, "Although Black people constitute 21% of the voting-age population in North Carolina, they represent 42% of the people disenfranchised while on probation, parole, or post-release supervision."
The group notes that in 44 North Carolina counties, "the disenfranchisement rate for Black people is more than three times the rate of the white population."
"Judge Biggs' decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to re-engage in the political process and perform their civic duty."
In what one civil rights leader called "the largest expansion of voting rights in this state since the 1965 Voting Rights Act," a three-judge state court panel voted 2-1 in 2021 to restore voting rights to approximately 55,000 formerly incarcerated felons. The decision made North Carolina the only Southern state to automatically restore former felons' voting rights.
Republican state legislators appealed that ruling to the North Carolina Court of Appeals, which in 2022 granted their request for a stay—but only temporarily, as the court allowed a previous injunction against any felony disenfranchisement based on fees or fines to stand.
However, last April the North Carolina Supreme Court reversed the three-judge panel decision, stripping voting rights from thousands of North Carolinians previously convicted of felonies. Dissenting Justice Anita Earls opined that "the majority's decision in this case will one day be repudiated on two grounds."
"First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own," she wrote.
As similar battles play out in other states, Democratic U.S. lawmakers led by Rep. Ayanna Pressley of Massachusetts and Sen. Peter Welch of Vermont in December introduced legislation to end former felon disenfranchisement in federal elections and guarantee incarcerated people the right to vote.
Currently, only Maine, Vermont, and the District of Columbia allow all incarcerated people to vote behind bars.
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Use State Courts to Defend Trans Rights
Three types of provisions unique to state constitutions—state-level Equal Rights Amendments, privacy rights protections, and healthcare freedom amendments—could all be wielded to strike down anti-LGBTQ+ legislation.
Jul 18, 2023
Republican-led states have passed a deluge of anti-trans legislation over the last few years, including bans on gender-affirming care, trans athletes participating in sports, and drag shows. In response, civil rights and LGBTQ+ advocacy groups have challenged the constitutionality of these new laws, primarily raising claims under the U.S. Constitution and federal statutes. Their claims have seen some early success, with Democratic- and Republican-appointed judges on federal district courts around the country handing down preliminary injunctions against the enforcement of these laws. State constitutions, however, may provide advocates with greater opportunities for pushing back against anti-trans legislation.
Given the uncertainty of how both circuit courts and the Supreme Court will come down on the constitutionality of these laws, the near-exclusive focus on federal constitutional claims is somewhat surprising. The most common argument raised by LGBTQ+ rights advocates in this litigation is that anti-trans legislation constitutes impermissible gender-based discrimination and thus runs afoul of the Equal Protection Clause. But this argument is not guaranteed to win. As the Sixth Circuit recently noted in reversing a district court’s injunction against Tennessee’s trans healthcare ban, the challenge to the law “seek[s] to extend the constitutional guarantees” under the Equal Protection Clause “to new territory.”
Without speculating on the Supreme Court’s resolution of this question, it’s worth considering how state constitutions provide advocates with a set of substantially stronger arguments than the U.S. Constitution, as well as how state judiciaries may prove more hospitable to these arguments. Three types of provisions unique to state constitutions—state-level Equal Rights Amendments, privacy rights protections, and healthcare freedom amendments—could all be wielded to strike down anti-LGBTQ+ legislation.
Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too.
First, an Equal Rights Amendment is conspicuously missing from the U.S. Constitution, forcing litigants challenging laws on the basis of gender discrimination to make their claims under the 14th Amendment’s Equal Protection Clause. But many states around the country ratified their own versions of the Equal Rights Amendment, including a number of Republican-governed states. Most state courts have interpreted these amendments to require strict scrutiny for gender-based discrimination, making them friendlier to these kinds of claims. Moreover, the text of many Equal Rights Amendments—which prohibit discrimination “because of” or “on the basis of” “sex” or “gender”—could allow a state supreme court to easily import the Supreme Court’s holding in the 2020 case of Bostock v. Clayton County, which affirmed that employers can’t discriminate against individuals on the basis of sexual orientation.
One of the best examples of how such litigation might proceed is the Hawaii Supreme Court’s 1993 decision in Baehr v. Lewin. The case involved a challenge to the state’s ban on gay marriage, and the state supreme court agreed that the ban constituted a form of sex-based discrimination that was subject to strict scrutiny under the state Equal Rights Amendment. While Baehr was a victory for advocates, its legacy is striking—it kickstarted the national debate to ban gay marriage, inspiring the Defense of Marriage Act and state-level bans. Additionally, the court’s decision was soon mooted by the ratification of an amendment to the Hawaii Constitution in 1998 allowing the legislature to define marriage.
Second, many state constitutions recognize, either expressly or implicitly, a right to privacy. In the context of abortion rights, several state courts have relied on these protections to recognize rights to abortion under their state constitutions. The right to privacy has been central to recognizing some modicum of LGBTQ+ rights, too. In the decade after the U.S. Supreme Court rejected the argument in Bowers v. Hardwick in 1986 that Georgia’s anti-sodomy law violated the right to privacy, several state supreme courts embraced nearly identical arguments made under their state constitutions. The U.S. Supreme Court ultimately switched course, overruling Hardwick in Lawrence v. Texas in 2003, but the implied right to privacy that motivated the Court’s ruling in Lawrence was eroded in Dobbs, leaving the long-term viability of the Court’s privacy-based jurisprudence in question.
Third, a handful of states contain what are colloquially known as “healthcare freedom” amendments. These provisions were adopted in several conservative states in the years immediately following the passage of the Affordable Care Act, designed to protect individual rights to healthcare “from undue governmental infringement.” In the abortion rights context, litigants in Ohio and Wyoming have relied on these provisions to challenge their states’ abortion bans.
But the “freedom” of a person “to provide for their health care,” as recognized by the Alabama, Arizona, Ohio, and Oklahoma Constitutions, or the “right” of each person “to make his or her own health care decisions,” as recognized by the Wyoming Constitution, is clearly applicable in the context of state bans on gender-affirming care. Admittedly, the language of these provisions is keyed to Obamacare-specific contexts. They speak, for example, about protecting people from being required to “participate in any health care system” and to “pay directly” for their healthcare services. But these provisions can easily link up with other provisions in a state constitution, like an Equal Protection Clause or a right to privacy, to articulate a broad, textually grounded right to bodily autonomy.
Not only is there an unequivocally stronger textual argument for LGBTQ+ rights under state constitutions, but in many states, the state judiciaries may be friendlier, too. So far this year, otherwise conservative state supreme courts in Indiana, North Dakota, Oklahoma, and South Carolina have recognized some right to abortion under their state constitutions. Though two courts in recent years—in Idaho and Iowa—have declined to recognize such a right, both courts are exclusively composed of Republican appointees and rejected those claims by just one-vote majorities.
For the time being, the focus of LGBTQ+ rights advocates on federal constitutional claims may make sense—after all, they keep winning. But regardless of what the U.S. Supreme Court does when it considers one of these cases, litigation is likely to continue for the foreseeable future. And while state courts have been viewed as backups in the abortion context after Dobbs, they shouldn’t be seen that way when it comes to challenging legislation targeting transgender individuals and the broader LGBTQ+ community. If litigants pursue their claims in state court, state constitutions grant them the opportunity to develop robust, creative protections for LGBTQ+ rights at the state level, which can influence sister courts to adopt similar rationales and protect members of the LGBTQ+ community in all contexts.
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'Huge Win for Tribes' as US Supreme Court Preserves Indian Child Welfare Act
"By ruling on the side of children's health and safety, the U.S. Constitution, and centuries of precedent, the justices have landed on the right side of history," said one Cherokee chief.
Jun 15, 2023
In what one chief called "a major victory" for Native American tribes, the United States Supreme Court on Thursday upheld a federal law enacted to protect Indian children from being separated from their families.
The justices' 7-2 decision in Haaland v. Brackeen leaves intact the Indian Child Welfare Act (ICWA), a 1978 law passed in response to over a century of Native American children being taken from their relatives and often placed in state or religious institutions or with white families.
"Today, the Supreme Court once again ruled that ICWA, heralded as the gold standard in child welfare for over 40 years, is constitutional," Cherokee Nation Principal Chief Chuck Hoskin Jr. said in a statement. "Today's decision is a major victory for Native tribes, children, and the future of our culture and heritage. It is also a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations."
"We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long," Hoskin added. "By ruling on the side of children's health and safety, the U.S. Constitution, and centuries of precedent, the justices have landed on the right side of history."
\u201cThe Supreme Court handed down a major decision Thursday in the Haaland v. Brackeen case, affirming the constitutionality of the Indian Child Welfare Act by a 7-2 vote.\n\nThe decision represents a major victory for federal Indian law. \n\nhttps://t.co/nOCK9mcShA\u201d— Lakota People's Law Project (@Lakota People's Law Project) 1686841070
The ICWA gives preference to Native American families in adoption and foster care proceedings, a policy challenged by a white couple, the state of Texas, and others, who claimed the law is race-based and therefore violates the equal protection clause of the 14th Amendment.
Chad and Jennifer Brackeen, a Texas couple, had already adopted a Navajo boy and are also trying to adopt his half-sister, who is 4 years old and has lived with them since she was an infant. The Navajo Nation opposes the adoption.
"Before us, a birth mother, foster and adoptive parents, and the state of Texas challenge the act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race," Justice Amy Coney Barrett wrote for the majority. "The United States, joined by several Indian tribes, defends the law."
In addition to the Navajo, the Cherokee, White Earth Band of Ojibwe, and Ysleta del Sur Pueblo tribes were defendants in the case.
"The issues are complicated," Barrett added. "But the bottom line is that we reject all of petitioners' challenges to the statute, some on the merits and others for lack of standing."
\u201cJustice Barrett's 7\u20132 opinion for the court holds that the Indian Child Welfare Act does NOT exceed Congress' constitutional authority or violate the anti-commandeering doctrine. She dismisses nondelegation and equal protection claims on standing. https://t.co/spqRRwCZSW\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1686838073
Justices Samuel Alito and Clarence Thomas dissented, with the latter writing that "the Constitution confers enumerated powers on the federal government. Not one of them supports ICWA."
Justice Brett Kavanaugh concurred with the majority but wrote that the ICWA's race-based nature—specifically a hypothetical scenario in which "a prospective foster or adoptive parent may in some cases be denied the opportunity to foster or adopt a child because of the prospective parent's race"—raises "significant questions under bedrock equal protection principles and this court's precedents."
"Courts, including ultimately this court, will be able to address the equal protection issue when it is properly raised by a plaintiff with standing—for example, by a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding," Kavanaugh added.
\u201cHer parental rights were terminated, meaning she was no longer legally her daughter\u2019s mother.\n\nBut then the state's highest court ruled that under the Indian Child Welfare Act, her parental rights should be restored.\n\nToday, the Supreme Court upheld ICWA. https://t.co/5tGKdlud45\u201d— ProPublica (@ProPublica) 1686841207
Before passage of the ICWA, between 25% and 35% of Native American children were being taken from their homes and placed with other families for adoption, in foster care, or in church- or state-run institutions.
During and after the peak decades of the U.S. genocide against the Western Indians, vanquished tribes were forced to send their children to boarding schools to be "civilized." Under the mantra "kill the Indian, save the man," hundreds of thousands of Native children suffered this cultural genocide. Many never returned home again, as diseases claimed many lives. Parents who resisted giving up their children were often imprisoned, sometimes on California's foreboding Alcatraz Island.
The 2021 discovery of hundreds of Indigenous children buried in unmarked graves at a Canadian boarding school prompted U.S. Interior Secretary Deb Haaland to write about how her Laguna Pueblo grandparents were stolen from their families when they were 8 years old in "an effort to eradicate our culture and erase us as a people."
\u201cMy full statement on the Supreme Court\u2019s decision to uphold the Indian Child Welfare Act\u201d— Secretary Deb Haaland (@Secretary Deb Haaland) 1686843197
Responding to Thursday's Supreme Court ruling, Haaland said that "for nearly two centuries, federal policies promoted the forced removal of Indian children from their families and communities through boarding schools, foster care, and adoption."
"Those policies were a targeted attack on the existence of tribes, and they inflicted trauma on children, families, and communities that people continue to feel today," she added. "Congress passed the Indian Child Welfare Act in 1978 to put an end to those policies."
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