March 28, 2017

Amicus Curiae Briefs

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  • Section Drafts ABA Amicus Curiae Brief in Gloucester County School Bd. v. G.G. (March 2017). Question Presented: Whether the Gloucester County School Board’s policy, which prohibits school administrators from allowing boys and girls who are transgender to use the restrooms that other boys and girls use, constitutes “discrimination” “on the basis of sex” under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a).

  • Section Drafts ABA Amicus Curiae Brief in Fisher v. University of Texas at Austin (Fisher I) (August 2012) / (Fisher II) (November 2015). Question Presented: Whether the University of Texas could use race as a factor in its admission policies, pursuant to the Court’s previous decisions on affirmative action, including Grutter v. Bollinger and Gratz v. Bollinger.  The ABA argued that achieving diversity in the legal profession is and continues to be a compelling state interest, that race-conscious admission policies have aided in the goal of increasing the representation of racial minorities in the legal profession, but the goal is far from complete, and that diversity in the legal profession can be achieved only through diversity in undergraduate admissions. 

  • Section Drafts ABA Amicus Curiae Brief in DeBoer v. Snyder and Bourke v. Beshear (March 2015). Question Presented: Whether the Fourteenth Amendment requires a state to license a marriage between two persons of the same sex and whether the Fourteenth Amendment requires a state to recognize a marriage between two persons of the same sex when that marriage was legally performed outside of the state.  The ABA argued that state marriage bans are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, because they deny same-sex persons equal access to the fundamental right of marriage and to full spousal benefits, and that such denials impose substantive economic and legal harms on same-sex couples and deny the dignity of their unions.  


  • Section Drafts ABA Amicus Curiae Brief in Hall v. Florida (December 2013). Question Presented: Whether Florida could use a stark IQ cutoff for the purpose of determining whether an individual had an intellectual disability and was thus ineligible for the death penalty, pursuant to Atkins v. Virginia. The ABA argued that the Florida legislature erred in using a stark IQ cutoff without considering either the margins of error on IQ tests or other behavioral and cognitive factors that mental health professionals define as constitutive of a mental disability.

  • Section Drafts ABA Amicus Curiae Brief in U.S. v. Windsor (December 2013). Question Presented: Whether Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional as applied to same-sex couples legally married in their state of residence under the Fifth Amendment’s Equal Protection Clause. The ABA argued that DOMA denied legally married same-sex couples access to the benefits that are afforded to heterosexual couples and that, even under the rational basis standard, the U.S. government has failed to present a single satisfactory rationale to justify its exclusion of same-sex couples from federal benefits.

  • Section Drafts ABA Amicus Curiae Brief in Shelby County v. Holder (February 2013). Question Presented: Whether Congress’ 2006 renewal of Section 5 and Section 4b of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments. The ABA argued that Section 5 continues to be a necessary section of the Voting Rights Act and that Section 2 of the Voting Rights Act is not alone sufficient to resolve electoral discrimination. 


  • Section Drafts ABA Amicus Curiae Brief in Christian Legal Society v. Martinez (March 2010). Question Presented: Whether the nondiscrimination “All Comers” policy of a public university, which required university-recognized clubs to admit members of all backgrounds and beliefs, violated the First Amendment rights of a Christian organization. The ABA argued that the “All Comers” policy struck an appropriate balance between two conflicting constitutional principles: (i) that the governmental shall not use funds to support organizations which discriminate, and (ii) that the government shall not use funds to suppress speech. In addition, public universities have a compelling interest in combating discrimination through neutral nondiscrimination policies and the “All Comers” policy did not harm First Amendment rights, because it was viewpoint-neutral and because it did not prohibit the Christian organization from meeting.


  • Section Drafts ABA Amicus Curiae Brief in Northwest Austin Municipal Utility District No. 1 v. Holder (March 2009). Question Presented: Whether the Northwest Austin Municipal District constituted a political subdivision as defined by the Voting Rights Act and was thus eligible to seek an exemption to Section 5’s federal preclearance requirement, and whether Congress’ 2006 reauthorization of Sections 4 and 5 of the Voting Rights Act exceeded Congress’ constitutional authority. The ABA argued that the legislative record was sufficient to demonstrate the continued existence of the prerequisites required for Section 5’s reauthorization, including both the continued existence of electoral discrimination and the ability of Section 5 to remedy this discrimination, and that Section 2 of the Voting Rights Act is alone insufficient to remedy electoral discrimination.


  • Section Drafts ABA Amicus Curiae Brief in Al Marri v. Spagone (January 2009). Question Presented: Whether a legal U.S. resident could be detained indefinitely on suspicion of illegal activities without being charged with a crime or brought to trial. The ABA argued that criminal due process rights may not be rescinded under military detention, except through constitutionally permissible means, and the detainee must receive prompt judicial review, effective assistance of counsel, and his/her detention must proceed from an Act of Congress that establishes constitutionally permissible procedures and standards.

  • Section Drafts ABA Amicus Curiae Brief in Fitzgerald v. Barnstable School Committee (September 2008). Question Presented: Whether the enactment of Title IX prohibited the use of § 1983 to resolve claims of gender discrimination in educational settings. The ABA argued that Congress intended Title IX to strengthen, not replace, previously-existing protections against gender discrimination, and that the use of § 1983 remedies should not be considered to be “repeal[ed] by implication,” as such remedies derive from constitutional rights found in the Equal Protection Clause, rather than from statutory provisions, and are not in “irreconcilable conflict” with Title IX provisions.


  • Section Drafts ABA Amicus Curiae Brief in Munaf v. Geren and Geren v. Omar (February 2008). Question Presented: Whether U.S. courts could hear habeas corpus petitions brought by U.S. citizens detained abroad by a multinational task force including members of the U.S. military and existing under an American chain of command. The ABA argued that all U.S. citizens are entitled to meaningful judicial review and to information regarding the charges against them, and that involvement with a multinational task force does not absolve the U.S. government of its due process obligations.

  • Section Drafts ABA Amicus Curiae Brief in Walter Allen Rothgery v. Gillespie County, TX (January 2008). Question Presented: Whether the Sixth Amendment right to effective assistance of counsel applied to persons during early appearances before a magistrate judge if a prosecutor was not present at such appearances. The ABA argued that it is a long-held consensus of ABA members that indigent defendants should be appointed counsel as soon as possible after either: (i) charges are filed, (ii) custody is initiated, or (iii) the defendant is brought before a committing magistrate. This policy serves to reduce unnecessary prosecutions and incarcerations and to ensure that indigent defendants are placed on equal footing with those of greater wealth.


  • Section Drafts ABA Amicus Curiae Brief in Boumediene v. Bush (August 2007). Question Presented: Whether the Military Commissions Act of 2006 should be interpreted as stripping courts of their ability to hear the habeas corpus claims of detainees held at Guantanamo Bay, and if so, whether the Act was thus unconstitutional under the Suspension Clause, and whether Guantanamo Bay detainees are entitled to Fifth Amendment Due Process protections. The ABA argued that Congress may not suspend the writ of habeas corpus for Guantanamo detainees, because their situation does not constitute either of the two exceptions to the Suspension Clause, “rebellion” or “invasion,” and that it is disingenuous, dangerous, and diametrically opposed to the Framer’s intentions to argue that because Guantanamo is not “sovereign territory,” its prisoners are not entitled to due process protections.

  • Section Drafts ABA Amicus Curiae Brief in Panetti v. Quarterman (February 2007). Question Presented: Whether the Eighth Amendment permitted the execution of a death row inmate who had a factual awareness of the reason of his execution but who, because of severe mental illness, had a delusional belief as to why the State was executing him, and thus did not understand that his execution was intended to seek retribution for his capital crime. The ABA argued that not only must an offender be aware of the nature and purpose of his punishment, but he/she must also appreciate its personal application in the offender’s own case.


  • Section Drafts ABA Amicus Curiae Brief in U.S. v. Georgia/Goodman v. Georgia (July 2005). Question Presented: Whether, and to what extent, Title II of the Americans with Disabilities Act validly abrogated state sovereign immunity for suits by prisoners with disabilities challenging discrimination by state-operated prisons. The ABA argued that humane and nondiscriminatory treatment of prisoners with disabilities is essential to ensuring the legitimacy of and public confidence in the administration of justice, and that Title II requires reasonable measures to secure the rights of prisoners with disabilities, which are essential to protecting fundamental rights of prisoners with disabilities.


  • Section Drafts ABA Amicus Curiae Brief in Jackson v. Birmingham Board of Education (August 2004). Question Presented: Whether the private right of action for violations under Title IX encompassed redress for retaliation for complaints about unlawful sex discrimination. The ABA argued that Congress intended to provide protection against retaliation when it enacted Title IX.


  • ABA Amicus Curiae Brief in Benitez v. Mata - co-sponsored by the Section (February 2004). Question Presented: Whether 8 U.S.C. 1232(a)(6) and Zadvydas v. Davis compelled the release of an arriving alien who was apprehended at the border of the United States, denied admission, and ordered removed from the United States. The ABA argued that the Court recently ruled that simply because a non-citizen is deemed inadmissible does not permit that non-citizen’s indefinite administrative detention pending removal, and that a non-citizen’s status as inadmissible, along with the government’s interest in national security, are both relevant to determining precisely what process is due.


  • Section Drafts ABA Amicus Curiae Brief in Hamdi v. Rumsfeld (February 2004). Question Presented: Whether an Executive Official could detain an American citizen, declared to be an “enemy combatant,” indefinitely in military custody in the United States, without access to counsel and with no opportunity to question the factual basis for his detention before an impartial tribunal. The ABA argued that fundamental due process requires that U.S. citizens indefinitely detained by the government have access to counsel and the opportunity to challenge the allegations against them.


  • Section Drafts ABA Amicus Curiae Brief in Tennessee v. Lane (November 2003). Question Presented: Whether Title II of the Americans with Disabilities Act is a proper exercise of Congress’ power under Section 5 of the Fourteenth Amendment and whether it constituted a valid exercise of congressional power to abrogate the States’ Eleventh Amendment immunity from suit. The ABA argued that Title II of the ADA’s requirement of affirmative conduct on the part of states is essential to ensuring that individuals with disabilities obtain real and not merely theoretical access to the judicial system


  • Section Drafts ABA Amicus Curiae Brief in Padilla v. Rumsfeld (July 2003). Question Presented. Whether the burden the U.S. government must meet to detain an individual as an enemy combatant, whether the individual has the right to present facts in support of his habeas corpus petition, and whether it was a proper exercise of the court’s discretion and authority under the All Writs Act to direct that an individual be afforded access to counsel for the purpose of presenting facts in support of his/her petition. The ABA argued that any U.S. citizen detained by the Executive within the United States has the right to a habeas corpus proceeding, which must involve meaningful review by the courts of the authority of the Executive to undertake the detention, and meaningful review necessarily requires access to counsel.


  • Section Drafts ABA Amicus Curiae Brief in Banks v. Cockrell (July 2003). Question Presented: Whether the prosecution in a capital murder trial improperly withheld evidence from the defense and whether defense counsel’s failure to investigate available mitigating evidence in preparation for the sentencing phase of the trial constituted ineffective assistance of counsel. The ABA argued that both prosecution and defense counsel failed to satisfy applicable ABA standards of performance and constitutional due process.


  • Section Drafts ABA Amicus Curiae Brief in Grutter v. Bollinger (May 2001)/(February 2003). Question Presented:Whether the University of Michigan Law School could consider race as a factor in the admissions process. The ABA argued that the U.S. Supreme Court had sanctioned the use of race-conscious admission policies by institutions of higher learning since 1978, that ensuring full minority participation in our legal institutions is a compelling state interest, and that public law schools have a compelling interest in ensuring that racial and ethnic minorities receive a legal education. 


  • Section Drafts ABA Amicus Curiae Brief in Lawrence and Garner v. Texas (January 2003). Question Presented: Whether convictions under a Texas anti-sodomy law violated the Fourteenth Amendment’s guarantee of equal protection. The ABA argued that the Texas Homosexual Conduct Law was unconstitutional and contrary to the rule of law because it infringed individual liberty and irrationally singled out a discrete group for second-class treatment.


  • ABA Amicus Curiae Brief in Wiggins v. Corcoran - co-sponsored by the Section (January 2003). Question Presented: Whether an attorney’s failure to investigate available mitigation evidence constituted ineffective assistance of counsel. The ABA argued the Sixth and Eighth Amendments require reasonable investigation of mitigation evidence, that a reasonable investigation should be complete and thorough, and that counsel has an ethical obligation to conduct a reasonable investigation.

  • Section Drafts ABA Amicus Curiae Brief in Atkins v. Virginia (2002). Question Presented: Whether the Constitution precluded the execution of people with mental retardation.  The ABA argued that allowing defendants with mental retardation to be executed subverts the integrity of the adversarial system and should be prohibited to protect society’s interest in a fair criminal justice system and to satisfy contemporary standards of decency.  


  • Section Drafts ABA Amicus Curiae Brief in McCarver v. North Carolina (June 2001). The ABA argued that that the unique disability of mental retardation warrants a complete exemption from capital punishment. 


  • Section Drafts ABA Amicus Curiae Brief in Dale v. Boy Scouts of America (March 2000). Question Presented: Whether a federally chartered, unselective membership association found to be a “place of public accommodation” under a state non-discrimination statute could lawfully expel a member solely because of his sexual orientation in reliance on a First Amendment expressive association claim. The ABA argued that failure to scrutinize the First Amendment claims in a manner consistent with Supreme Court precedent, which establishes an appropriate framework for balancing the compelling state interest in eradicating discrimination against First Amendment claims, would hinder New Jersey’s laudable effort to eradicate sexual orientation discrimination and would jeopardize states’ efforts to combat other forms of discrimination.