Updates: DACA, Alabama Death Penalty Case, Big Title VII Case

Today (February 26) was order day at the Supreme Court, and there were two major ones, both cases followed by this blog.  This post is a brief summary of those orders and a major decision from the Second Circuit on anti-gay employment discrimination under Title VII which is almost certain to end up on the certiorari docket.

DACA: The Supreme Cout unanimously denied the government's petition for certiorari before judgment.  The order reads: 

17-1003   DEPT. OF HOMELAND SEC., ET AL. V. REGENTS OF UNIV. OF CA, ET AL. 

The petition for a writ of certiorari before judgment is
denied without prejudice. It is assumed that the Court of
Appeals will proceed expeditiously to decide this case.

I first posted about this case on January 17 and said then that the government's attempt to get the Court to bypass the Ninth Circuit was a long shot and very unlikely to succeed.  That prediction turned out to be right.  Not a single justice thought that the case met Supreme Court Rule 11's standard of "imperative public importance" so as to "require immediate determination in this Court".  It's back to the Ninth Circuit for the government.

Two procedural points.  "Denied without prejudice" means that the government, if they lose in the Ninth Circuit, can still file a (regular) cert petition.  And the "it is assumed" language means the Supreme Court trusts the Ninth Circuit not to drag its feet in deciding the case.  No matter how fast they do decide it, the case, even if it is ultimately accepted by the Court, will not be argued until next term.

Alabama Death Penalty Case: On January 30 I posted about the case of Vernon Madison, sentenced to death in Alabama, and his attempt to get his execution stayed and his sentence overturned.  The Court issued an order on January 25 staying the execution until they had decided on the petition for cert and, if they did grant it, staying the execution until they reached their final decision in the case.   Today (February 26) they granted Madison's petition:

17-7505   MADISON, VERNON V. ALABAMA

The motion of petitioner for leave to proceed in forma pauperisand the petition for a writ of certiorari are granted.

("In forma pauperis", Latin for "in the manner of a pauper", allows a poor person to bring a suit without the liability of the costs of the suit, such as filing fees). 

This case will be argued next term, and involves the issue of whether a person be sentenced to death by the judge when the jury sentences that person to life without parole?  For more details of the case, see the full blog post.

Big Title VII Case: The Second Circuit (see map) issued an en banc (the entire court) decision holding that anti-gay discrimination was prohibited by Title VII of the Civil Rights Act.  In a 10-3 decision, the Court of Appeals held the "sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one's sex in relation to the sex of those to whom one is attracted making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account".  (Title VII bars discrimination based on sex).

One of the odd things about this case is that the federal government was arguing with itself.  The EEOC (Equal Employment Opportunity Commission) was on the side of the discharged gay man; the Justice Department was on the employer's side and said that the EEOC "was not speaking for the United States".  Yes, that happened.  This scenario is happening more and more.

And it probably will continue in this case (or at least on this issue) because this case sharpens the circuit conflict on this topic, pitting the 2nd and 7th Circuits against the 11th.  A cert petition, in this case, is very likely; a cert petition on this issue is all but inevitable. 


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