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31 posts from September 2009

September 30, 2009

The disparate impact non-issue in ENDA

By Guest Contributor Harper Jean Tobin

At last week’s House Education and Labor Committee hearing on ENDA, witness Camille Olsen, an attorney who represents employers, raised several questions about what she characterized as ambiguities in the bill. Among the points Olson raised was the question of “disparate impact” claims under ENDA. Olson’s technical arguments were potentially confusing even for an attorney like myself, so it’s worth trying to explain them in plain English.

Under existing employment discrimination laws, there are two types of unlawful discrimination claims. “Disparate treatment” cases are where there is evidence of intentional discrimination by the employer. Vandy Beth Glenn suffered a classic case of disparate treatment when her boss fired her for the stated reason that she was transitioning from male to female. The principle of “disparate impact” is different: an employer may not take actions that have the overall effect of excluding a group of people, unless there is a sufficient reason to do so.  For example, height and weight requirements have a disparate impact on women because (even though some women would meet them) they tend, on average, to exclude more women than men. Unless an employer can demonstrate a sound reason for using these requirements, they will be deemed discriminatory.

The disparate impact approach has been a powerful tool for promoting the inclusion of women and minority groups in the workplace. Some conservatives, however, oppose it because they view it as a form of “reverse discrimination.” Justice Antonin Scalia even speculated earlier this year that disparate impact laws could be unconstitutional. Because it has become something of a political football, disparate impact would be a sticking point under any new anti-discrimination law. But as Rep. Robert Andrews pointed out at the hearing, it would be hard to think of a situation where a disparate impact claim could be brought under ENDA. (No short men or tall women? No Streisand fans need apply?)  So, to avoid distracting debates on the subject, ENDA states that “Only disparate treatment claims may be brought under this Act.” That seems plenty clear to us. But Olson suggested that ENDA needs, well, added redundancy: to provide in so many words that disparate impact claims are barred, and that “disparate impact” means that same thing it does under every other law. Of course, as Acting EEOC Chair Stuart Ishimaru stated at the hearing, that’s really not needed: read in context, the bill is already crystal clear.

Like many of the other questions that have been raised about ENDA, this one is really a non-issue. We can expect to see more such non-issues raised in the weeks ahead.

-- Cross-posted at the Transgender Equality blog

Court dismisses case brought by partner denied hospital visitation

In a case with heart-wrenching facts, the federal district court in Miami has ruled that Jackson Memorial Hospital violated no duties of care in denying visitation to the partner and children of a patient who lay dying and in largely ignoring their requests for updates as to the patient's status. In Langbehn v Jackson Memorial Hospital, the court held that Janice Langbehn, who furnished a copy of her health care power of attorney to hospital staff shortly after her partner Lisa Pond was admitted, had no basis to recover in tort for the way that she was treated during the eight hours she spent in the trauma center [ER] waiting area. 

The court accorded no weight to proof of bias behind why Langbehn was treated as she was, and instead acknowledged only a narrow potential zone of liability for situations in which the health care surrogate could show that the denials of information or visitation create medical risk for the patient or that the surrogate would have made different decisions regarding care had she been more fully informed.

Lambda, which represents Langbehn, describes the facts as follows:

While on a family cruise leaving from Miami, Lisa Pond, a healthy 39 year-old, suddenly collapsed. She was rushed to Miami's Jackson Memorial Hospital with her partner Janice and three children following close behind. There, the hospital refused to accept information from Janice about her partner's medical history. Janice was informed that she was in an anti-gay city and state, and she could expect to receive no information or acknowledgment as Lisa's partner or family. A doctor finally spoke with Janice telling her that there was no chance of recovery. Other than one five minute visit that was arranged by a Catholic priest at Janice's request to perform last rites, and despite the doctor's acknowledgment that no medical reason existed to prevent visitation, neither Janice — who provided the hospital with a medical Power of Attorney document — nor their children were allowed to see Lisa until nearly eight hours after their arrival. Soon after Lisa's death, Janice tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner.

The court agreed that the hospital had a duty to inform Langbehn about Pond's condition and to allow her, as the surrogate, to make decisions. However, it found that this duty was not breached because doctors consulted with Langbehn twice (during the eight hours), including once when they sought her permission to use a brain monitor. Because there was no medical need, as determined by the physicians, to provide additional information to Langbehn, the court ruled that the hospital staff had no duty to do so. Further, the court held that the duty to provide any information ceased after last rites were administered because there were no further medical decisions to be made.

The court's reasoning was similarly strained as to visitation. Staff in the ER where Pond was initially taken repeatedly refused Langbehn's requests to see Pond, despite one doctor's statement that there was no medical reason for Pond's family not to be with her. The sole exception was when last rites were administered. Seven hours after she was admitted, Pond was transferred to a non-trauma room in a different part of the hospital, but Langbehn was not told. An hour later, Pond's sister arrived. Hospital staff treated the sister as a legitimate relative, and informed her of Pond's transfer. Together with the sister, Langbehn and the children were then allowed visitation with Pond until she died.

On these facts, the court found no liability because "doctors at a trauma unit do not have a freestanding legal duty, untethered to informed consent..., to allow visitation with a patient who is in critical condition and undergoing treatment ... or to allow visitation with a terminal patient ... who is going to be transferred to a regular room where visitation will be permitted...[D]ecisions as to visitation must be left to the medical personnel in charge of the patient..."

In a similar case, the Washington Court of Appeals ruled that a patient's life partner could sue for outrage and negligent infliction of emotional distress for having been excluded from the patient's room for long periods the night before her death.  Reed v. ANM Healthcare, 147 Wash. App. 1044 (2008). There the physicians had allowed visitation, but a nurse countermanded the order.  The judge distinguished the facts in the Florida case because it was the physicians who barred the visitation that Langbehn sought.

At the very end of his opinion, Judge Jordan noted that "the defendants' lack of sensitivity and inattention" to the plaintiffs "caused them needless distress...[Defendants' actions] exhibited a lack of compassion and was unbecoming of a renowned trauma center...Unfortunately, no relief is available..."

In this case, tragic facts made very bad law, although the public education value of the ruling will probably be enormous. Not only should Lambda appeal, but Florida legislators should swiftly enact provisions that clearly prohibit this kind of conduct.

September 29, 2009

Out in Carolina politics: an interview with NC State Senator Julia Boseman

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Julia Boseman, North Carolina's only out state senator, was the solitary holdout who voted no on the resolution honoring Sen. Jesse Helms after he died last year. She is also the successful plaintiff in a custody case, in which the North Carolina Court of Appeals accepted the validity of a second-parent adoption. What absolutely boggles my mind is that if I still lived in the very conservative town where I grew up, she would be my state senator.

Durham Indy interview conducted by Steven Petrow:     

In sitting down with the Indy recently at her Wilmington home, Boseman, a 43-year-old Democrat from New Hanover County, spoke frankly and movingly about [a number of issues].

For Boseman (and North Carolina's LGBT community), it's been, as she says, a "really good year," one where she successfully led the fight as primary sponsor of the School Violence Prevention Act (known informally as the anti-bullying bill), which specifically protects LGBT kids and marks the first time that sexual orientation and gender identity are included in North Carolina law. The year also marked the passage of the Healthy Youth Act, which provides young people with life-saving information about STDs as part of a comprehensive sex education program that teaches more than just abstinence....

Indy: When you first ran for office, were you out as a lesbian?

Sen. Boseman: Yes!

How much do you think your sexual identity has been a driver in your political life?

I have to say it's much easier with the whole world knowing that you're gay. I can remember when I ran in 2000 for county commissioner, I had a choice: I can either be closeted or I can run as an openly gay candidate. If I run as an out gay person, I take away the biggest bombshell that they can use against me. There was a lot of interest in my race at that time—especially my first Senate race [in 2004]—because there have only been a handful of openly gay elected officials in North Carolina. So people from around the country had concerns.

[In the end], I made a conscious decision to run as an out lesbian. I have to say it was a little unnerving when the media went through my campaign reports and they found out I got support from the Gay and Lesbian Victory Fund. They came into my office with the cameras running, saying, "You're a lesbian. You're openly gay."

"Yes, I am. I am going to be honest with the people about who I am, just as I will be about honest with them about the issues that affect them."

So what's it like to be the lesbian, the only out state senator, the poster child for being an elected dyke here in North Carolina?

I never really think of it like that. People automatically assume things about you because you're gay—like you're going to raise taxes through the roof because you're liberal. You want everything that's considered liberal. Actually, we care about all the same things as other people—getting a good education, roads, where's the guy who's picking up my trash.

What advice do you have for other LGBT folks who are thinking about politics and public service?

You better have a really thick skin. You better want it real bad. You need to work hard. Don't get distracted from the light at the end of the tunnel.

Continue reading "Out in Carolina politics: an interview with NC State Senator Julia Boseman" »

September 28, 2009

Homophobia at U VA law school, circa 1985 - UPDATED

10/6/09 UPDATE - Since the following post was published, multiple blogs have picked up the story; current Virginia Law Dean Mahoney issued a denial that discrimination was a factor in Bill's tenure denial; Bill replied that Mahoney was mistaken; and a U VA student blog republished an article from the student newspaper in January 1986 quoting many students as "shocked" that Bill did not receive tenure and voicing suspicion that something fishy was going on (the main belief being that Bill's criticism of law and economics scholarship was behind the decision).  In other words, the end point of this story seems to be a he-said-he-said dispute, with a conclusive adjudication of exactly what happened and why probably impossible. Bill is a friend and co-author; I believe his testimony. The bigger point is that he has opened a window into what the world was like for gay men and lesbians in law teaching in the 1980's - it wasn't pretty.

++++++++

As part of his testimony at last week's House hearing on ENDA, Bill Eskridge retold a story that many people find it difficult to believe: that he was denied tenure at the University of Virginia Law School in substantial part because he is gay. What follows is an excerpt from the full testimony (pp.83-93):

    …Although I was gay and was dating men in Washington, DC during my tenure at Virginia, I was never publicly “out,” largely because I thought that such a status would be lethal for tenure purposes; from time to time, I heard snide anti-homosexual comments from senior faculty. But because I was closeted, I was vaguely optimistic about tenure when my case came up in the Fall Term, 1985. … [A faculty subcommittee reviewed Eskridge’s work and enthusiastically recommended tenure. The full appointments committee, in a virtually unprecedented move, rejected the recommendation.]

My understanding was that the subcommittee’s report was supposed to serve as the factual record for the Appointments Committee to consider in making its tenure recommendation to the faculty.   Before my case, the Appointments Committee had generally included at least one faculty member who was also on the subcommittee, and the report was always accepted as the primary basis for the final recommendation.   In my case, however, there was no overlap of personnel, and the Appointments Committee wrote its own report, apparently the first time that happened under this bifurcated system. … According to faculty colleagues, the committee’s meeting was an emotional one, filled with tension and anxiety.

…The morning after the committee’s negative meeting, I remained unaware of the committee’s recommendations and of its substantive objections.   Apparently, other senior faculty members became aware of the committee’s negative leanings and the fact that the committee had kept me in completely in the dark and was not following the procedures that had been duly established by the faculty.   While I sat in my office preparing for class that morning, stormy conversations were apparently occurring at various parts of the law school’s building.  Late in the morning, as I was finishing up my class preparation, the chair of the committee stormed into my office and screamed at me for 10 minutes or so.  With clenched fists and a beet-red face, the chair of the committee threw a tantrum that included a string of accusations, such as “stabbing me in the back” and behaving in the treacherous manner that he and his colleagues ought to have expected of a “faggot.”   Apparently, the chair thought I had complained to the dean that he had been derelict in following the established law school procedures and that I was sneaking behind his back to discredit him.  In fact, I remained utterly clueless as to what those procedures were and was reduced to tears as the chair of the committee spat on me and called me dirty names.   During this tirade, the chair of the committee never shared with me his committee’s reasons, their recommendation, or the news that I had a right to appear before the committee.  Nor did he share this information with me thereafter.  (Nor did he apologize for unfairly screaming at me, spitting on me, or calling me a “faggot.”)…

            After the committee’s report was ratified by the faculty, blood was in the water.  For the remainder of my tenure at the University of Virginia School of Law, I was harassed on a regular basis by faculty colleagues and parts of the law school’s administration.   Several faculty friends and at least one member of the committee explicitly urged me to get out of Charlottesville as quickly as possible, partly because there was so much hatred toward me on the faculty and partly just for my own mental sanity and physical safety (during the tirade by the chair of the committee, I believed that he was going to assault me).   So I visited at the Georgetown University Law Center in academic year 1987-88 and accepted a permanent position there in 1988. …

           

 

September 27, 2009

Kendell 2.0 - I felt like I was playing out of position

Kate Kendell reflects on the personal side of the California roller coaster ride for lgbt rights (with apologies for too much camera movement):


Lawbama profs - fall update (updated 10/21/09)

All together, 46 law professors are working or will soon be working in the Obama administration. In addition, four profs have been named to advisory or oversight boards.

Here's the updated list:

ADELL AMOS (Oregon) has been appointed Deputy Solicitor for land and water resources at Department of the Interior.

SAM BAGENSTOS (Michigan) is Deputy Assistant AG in the Civil Rights Division at Justice.

JONATHAN BAKER (American) is Chief Economist at the FCC.

MICHAEL BARR (Michigan) is Assistant Secretary of Treasury for Financial Institutions.

DAVID BARRON (Harvard) is Principal Deputy Assistant AG at OLC.

NORMAN BAY (New Mexico) has been named to head the Office of Enforcement for the Federal Energy Regulatory Commission.

ROSA BROOKS (Georgetown) is a senior adviser to the Undersecretary of Defense for Policy.

MARCILYNN BURKE (University of Houston Law Center) is deputy director of policy and programs for the Bureau of Land Management

BILL BURKE-WHITE (Penn) is joining the State Department’s Policy and Planning office.

ALTA CHARO (Wisconsin) is a senior adviser in the Office of the Commissioner at the FDA.

SARAH CLEVELAND (Columbia) is Counselor on International Law with the Office of the Legal Adviser of the U. S. State Department.

TINO CUELLAR (Stanford) is Special Assistant to the President for Justice and Regulatory Policy, in the White House Domestic Policy Council.

SUSAN CRAWFORD (Michigan) is Special Assistant to the President for Science, Technology and Innovation Policy.

NESTOR DAVIDSON (Colorado) is Principal Deputy General Counsel at HUD.

LARRY ECHOHAWK (BYU) is the new head of the Bureau of Indian Affairs.

CHAI FELDBLUM (Georgetown) has been nominated to become a commissioner on the EEOC.

JODY FREEMAN (Harvard) is a counselor in the White House Office of Energy and Climate Change.

SETH HARRIS (New York Law School) is Deputy Secretary of Labor.

LISA HEINZERLING (Georgetown) wins the prize for first promotion: initially a senior advisor to EPA Administrator Lisa Jackson, she has been named Associate Administrator for the Office of Policy, Economics and Innovation (OPEI).

Continue reading "Lawbama profs - fall update (updated 10/21/09)" »

September 26, 2009

Matt Coles - Making the non-discrimination norm local, even after ENDA

A few good words from Matt Coles of the ACLU LGBT Rights Project -


Tomorrow - Kate Kendell on 21st century civil rights lawyering.

September 25, 2009

Kate Kendell on whither California

At a recent conference, I had a chance to catch up with Kate Kendell, executive director of NCLR (National Center for Lesbian Rights). She's fab as always.  Following is part 1 of our conversation; tomorrow I'll have a video of Matt Coles talking about the future of marriage campaigns, and on Sunday, Kate reflects on what it was like to jump from litigation chief to an electoral campaign in a state the size of a small country.

September 24, 2009

ENDA - how the hearing went

To cut to the chase: yesterday's hearing before the House Education and Labor Committee probably could not have gone better for supporters of ENDA. You can watch it and access copies of all the written testimony at the Committee's website. Special cheers to witnesses Vandy Beth Glenn, Bill Eskridge and Brad Sears.

The Committee staff did a superb job of preparing the Democratic members for the discussion. There were no fireworks at the hearing, doubtless due in large part to the fact that only a handful of Republican members attended, at least one of whom is an ENDA co-sponsor.

A few comments on the two Republican witnesses:

> Virtually all of the discussion on possible problems with the bill centered on the testimony given by Camille Olson,a management side attorney with Seyfarth Shaw and a member of the policy subcommittee on equal employment opportunity of the Chamber of Commerce. In other words, she was representing employers. Her testimony was neither in support of or in opposition to ENDA, but was focused on raising potential objections to specific provisions in the bill. The main point of her testimony was that there is "ambiguity and uncertainty" in the bill at multiple points. Her issues included: whether ENDA will duplicate Title VII's cause of action for sex stereotyping, what changes employers will have to make regarding restroom use policies in order to avoid discriminating based on gender identity, whether ENDA will generate more attorneys fees awards for plaintiffs than Title VII does, and whether the explicit limitation of ENDA to disparate treatment claims really means that disparate impact claims are excluded. Acting EEOC Chair Stuart Ishimaru, testifying on behalf of the Obama administration, answered the last point by saying that, yes, there really is an exclusion, and I would direct the EEOC to not pursue any claims brought to it which fall into the category of disparate impact theories. But the other points generated a fair amount of discussion, and may show up in later phases of the legislative consideration of ENDA.

> The second witness sponsored by the R members was Craig Parshall, general counsel for the National Religious Broadcasters. He and Olson pretty much embodied the two wings of the Republican Party - the religious/social conservative wing and the business wing. By contrast to Olson, Parshall's testimony did not get much take-up or generate much discussion. This may be a result of so few Rs being there to pick up those themes. The tone of the committee and floor debates could well be very different from the tone of the hearing.  But it also struck me as perhaps auguring a new general attitude toward ENDA, of - more or less - morality, schmorality, let's keep our eyes on what's really important: insuring that this law doesn't cost employers too much.

September 23, 2009

Elimination of ban on HIV+ travelers entering US may come very soon

Pink News is reporting that -

A memo has been released by the United States Customs and Immigrations Service which suggests the year-long wait for the HIV travel ban may be nearly over. The CIS's communication instructed employees working on green card applications that would be determined solely by the applicant's HIV status to wait until the expected change in immigration rules.

Currently HIV qualifies as an exclusionary communicable disease, and applications may be turned down by the US authorities if a person wishing to travel to the country, or settle there permanently, is HIV positive.

The policy was overturned [legislatively] last year ..., but the Bush administration did not enact the [necessary] new rules before leaving office. [HHS] published [proposed] regulations this summer, and is currently reviewing public comment.

Commentators have suggested that the pausing of green card applications which come down to the applicant's HIV status is a strong indicator that the rule change will be implemented soon, and that HIV will be removed from the list of exclusionary communicable diseases.

Background here.

ENDA cometh

The campaign to enact ENDA will begin anew at 10 a.m. today with a hearing before the House Committee on Education and Labor. The hearing will be in Room 2175 of the Rayburn House Office Building. If you inhabit the DC environs, get there early - there will probably be heavy demand for seats.  If that's not an option, the webcast should be available here, or check out Jillian Weiss's liveblogging. Witnesses will include Representatives Tammy Baldwin and Barney Frank; EEOC Acting Chair Stuart Ishimaru; Yale Law Professor Bill Eskridge; and Williams Institute Executive Director Brad Sears.

This year's version of ENDA is HR 3017. It prohibits gender identity as well as sexual orientation as a basis of discrimination. In other respects, it is essentially the same as the version of ENDA that passed the House two years ago (HR 3685).

No bill is perfect, and a number of problematic exceptions have been built into this legislation over the years in the effort to ensure its passage. Section 4(g) expressly limits ENDA's coverage to disparate treatment (facially discriminatory practices) and excludes disparate impact claims (claims based on facially neutral practices which have a discriminatory effect that disadvantages lgbt workers). Section 8(b) provides that ENDA shall not be construed to require any employer to give unmarried couples the same benefits offered to married couples; and Section 8(c) effectively limits the term "married" to heterosexual couples. Section 6 provides that any religious organization that is allowed to discriminate based on religion under Title VII can also discriminate based on sexual orientation or gender identity. 

With regard to dress and grooming codes, ENDA would allow employees to abide by the rules for whichever sex aligns with their gender identity [Section 8(a)5)].  In other words, a transwoman could comply with the dress or grooming code (if any) that applies to all women employees. The problems will come in cases like Jesperson v. Harrah's, 444 F.3d 1104 (9th Cir. 2006) (en banc), which upheld the firing of a (non trans-) woman who did not want to wear make-up at work. The Ninth Circuit found that the make-up requirement was reasonable, and that the requirements imposed on men and women were comparable (clean shaven rule for men, make-up rule for women). Although ENDA forbids discrimination based on "gender-related...appearance," the dress and grooming code carve-out would leave the holding of Jesperson undisturbed.  

Will ENDA finally pass? That question breaks down into two parts: will it pass the House, and will it pass the Senate?  Since essentially the same bill but for the inclusion of gender identity passed the (then more conservative) House two years ago, the outcome in the House will almost certainly turn entirely on the gender identity issue.

When it goes go to the House floor, the Republicans will probably have the opportunity to offer only one amendment (that's how the majority party runs things in the H of R). There is no way to predict whether the Rs will fashion their one shot at killing or crippling the bill around gender identity or around some other issue (like marriage or religion). If the Dems hold it together, the Rs' effort - whatever it is - will fall short. I'm betting that the good guys will win and that ENDA will pass the House intact (although don't press me for anything more than a gut instinct in support of that).

Then it's on to the Senate, where everything is iffier. No version of the bill has been put to a vote in that chamber for more than 10 years (long before gender identity language).  I doubt that there is yet a clear read on its chances of going through with gender identity protection intact. Given everything else the Senate has to deal with this fall, my main prediction is that ENDA won't come up for a full Senate vote until some time in 2010.

Whatever lies ahead, the action starts today.

September 18, 2009

New judicial ruling: no medical deduction for visits to prostitutes

No, I'm not kidding.  HT to Feminist Law Professors for pointing out this new decision from the U.S. Tax Court -

In Halby v. Commissioner of Internal Revenue, T.C. Memo 2009-204, the Tax Court ruled that William Halby, a New York attorney (for 40 years) and specialist in tax law, could not deduct as medical expenses $65,934 for visits to prostitutes in 2004 and $42,152 for the same purpose in 2005. The opinion did not say whether this one-third drop in one year reflected an improved medical condition, a diminished disposable income, or a realization that he could be prosecuted. 

Further, the court holds that the amounts spent for "books on sex therapy and pornographic materials ... were incurred for [Halby's] general welfare, not pursuant to a doctor's prescription or for a specific medical condition." That would be $2,368 in 2004 and $5,005 in 2005. Has this guy never heard of the internet? Or little blue pills?

And you thought tax law was boring ...

OPM proposes new regs on same-sex partner benefits for federal employees

Proposed regulations published in the Federal Register on Monday would clarify or expand same-sex partner benefits for federal employees.

The first proposed rule deals with leave issues such as family and medical leave and funeral leave. Existing law (dating from 1994) encompasses "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." OPM's proposal would make explicit that same-sex and opposite-sex domestic partners are covered, to "ensure more consistent application of policy across the Federal Government." According to OPM, the details of implementation differ in agency-level policies, and some agencies have no written policies.

The second proposal deals with eligibility to apply for coverage under the Federal Long Term Care insurance Program, and expands the definition of "qualified relative" to include same-sex domestic partners.

Public comments on both of the proposed regs will be accepted until November 13, after which OPM will consider the commentary and then publish final regulations.

September 17, 2009

Update from New Delhi - Government ducks questions of appeal of sodomy law ruling

The Indian national government announced that it would take no position on the correctness of an appellate court decision declaring the sodomy law unconstitutional, but instead would defer to the Supreme Court's assessment. A memorandum prepared for the Cabinet had recommended that the government not ask the highest court to review the decision. It seems from the report below that there is some confusion about exactly what the Cabinet's decision means, beyond please-make-this-go-away.

From The Economic Times:

The Union Cabinet, chaired by Prime Minister Manmohan Singh, considered the report of the three-member Group of Ministers formed on the issue and decided that Attorney General G Vahanvati will "assist" the Supreme Court on it. "The Cabinet decided to ask the Attorney General to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgement of the High Court," Information and Broadcasting Minister Ambika Soni told reporters.

To a volley of questions, she repeated the same formulation of her statement and said the Supreme Court can decide if the High Court was "right or not" in decriminalising gay sex. She refused to say anything more on the issue, maintaining that she was not authorised to "explain" further as the matter related to Cabinet proceedings.

The Cabinet decided against taking any stand on the issue to avoid getting caught in any controversy, a minister said, explaining why it was left for the Apex court to take a view.

Justice rocks

Justice Sotomayor + (actor) Esai Morales = Salsa!

From last night's benefit for the National Hispanic Foundation for the Arts: