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KIEV: When Ukraine face North Macedonia at Euro 2020 on Thursday (Jun 16), foreign-based Oleksandr Zinchenko and Ruslan Malinovskyi will be the star names but Dynamo Kiev and Shakhtar Donetsk will form the core of the team.

Manchester City defender Zinchenko and Malinovskyi, a midfielder who plays for Italian side Atalanta, are supported by ten players from Dynamo, the reigning Ukrainian champions.

Head coach Andriy Shevchenko also selected seven players from the domestic league runners-up Shakhtar.

Goalkeeper Georgiy Bushchan, one of five Dynamo players in the starting line-up against the Netherlands on Sunday, made several impressive saves in the first half but could not stop the Dutch taking a 3-2 victory in a thrilling match thanks to Denzel Dumfries' winner in the 85th minute.

Ukraine must now take points in the remaining Group C matches against North Macedonia and Austria if they are to make it beyond the group stage of a European Championship for the first time ever.

Ukraine's preparations for the tournament were overshadowed by a row about their shirt -- they angered Russia after unveiling kits featuring patriotic slogans and showing the outline of Ukraine including Crimea, which was annexed by Moscow in 2014.

Another problem was the injury of Dynamo Kiev right winger and rising star Viktor Tsygankov, who has made 26 international appearances and scored six goals for Ukraine.

His position on the pitch in the Netherlands encounter was taken by former Dynamo player Andriy Yarmolenko. The midfielder now with West Ham curled in a brilliant goal in the 75th minute to bring Ukraine back into the game in Amsterdam.

- Rivals and teammates -

Players like Dynamo forward Artem Besedin and Shakhtar centre-back Sergiy Kryvtsov are fierce rivals when playing for their clubs but they put that rivalry aside when playing for their country.

In April, Mircea Lucescu, the Romanian former coach of Shakhtar, guided Dynamo to the Ukrainian league title in his first season as coach of the club from the capital.

It was Dynamo's first title for five years and 16th overall.

However, Dynamo's decision last summer to hire the 75-year-old Romanian sparked uproar from fans because of his lengthy tenure in Donetsk where he won a host of domestic honours and the 2009 UEFA Cup, now known as the Europa League.

Lucescu was unsettled by the reaction and even announced his intention to walk away just two days after signing his contract, but stayed in the end.

In another incident illustrating the confrontation between domestic opponents who then put that animosity aside for the sake of the national side, in 2016 Yarmolenko, then with Dynamo, was involved in a mass brawl against Shakhtar which soured relations with Ukraine teammate Taras Stepanenko.

As fists flew, Yarmolenko kicked Stepanenko after the Shakhtar midfielder celebrated a goal during his team's 3-0 win against Dynamo.

Yarmolenko was suspended for three matches and fined 50,000-hryvnia ($2,000) over the incident.

Stepanenko told Ukrainian television afterwards that his friendship with Yarmolenko was "over" -- but he said he would put the incident aside for the sake of the national team.

Both players are in the squad again and with no conflicts on the horizon now, Shevchenko said before the tournament that be believed club rivalries would be safely left behind.

"Players should understand that being in such a tournament is a huge experience," he said.

"Small details that many do not pay attention to can play a very large role."

Read more:
Football: Ukraine's Euro 2020 challenge built on twin pillars of Dynamo and Shakhtar - CNA

Juneteenth National Independence Day is now an official holiday, after President Joe Biden signed a bill Thursday, approved by both the US Senate and House of Representatives.

Also known as Black Emancipation Day, Liberation Day and Jubilee Day, its celebrated on June 19, which marks the anniversary of an historical celebration of emancipation which started in Galveston, Texas when news that enslaved people had been freed by President Abraham Lincoln reached the Black community, almost two years and a half years after the Emancipation Proclamation.

Many states have already designated the holiday, and momentum for the legislation followed the Black Lives Matter protests sparked by the police killing of George Floyd last year.

Enforcement of the liberation of Black people was slow, and accompanied the advance of Union troops. The Proclamation only outlawed human slavery in the Confederate states, it took the 13th Amendment to the Constitution to end enslavement elsewhere.

Akilah Wallace, member of the Black Southern Womens Leadership Project and executive director of Faith in Texas, said true liberation for Black Americans has yet to be achieved.

When were still faced with mass incarceration, police brutality, white supremacy within every system and fiber of this nation, we still have a fight to take on, Wallace asserted.

This year, multiple states have approved bills that limit voting opportunities in Black communities, and passed legislation prohibiting schools from teaching about the countrys legacy of racism.

Kevin Matthews II, founder of BuildingBread, said in an interview with YES! Media, he shared those concerns. Matthews is an author and an expert on the Tulsa massacre of what was then called Black Wall Street. Hes also a former financial advisor.

Any time that people of color in this country have significant progress, there is almost always a swift reaction from those who are still in power or those who benefited from oppressing others, Matthews observed.

Tim Wise also spoke with YES! Media. An author and anti-racism educator, Wise wrote White Like Me, and Dispatches from the Race War. He said his own family tree revealed slave owners, who handed down documents that showed their lack of compassion when writing about the buying and selling of enslaved people.

And I think we need to grapple with that, because we may not literally pass down human beings anymore, thank God, but we pass down the mentality that made the selling of human beings possible, Wise contended.

President Joe Bidens approval makes Juneteenth the first federal holiday established since Martin Luther King, Junior Day in 1983.

See the original post here:
Juneteenth Declared National Holiday, Amidst Progress, Upheaval - bctv.org

In a ruling last week, the U.S. Supreme Court moved closer to allowing LGBTQ+ discrimination.

In a surge of recent court cases, businesses open to the publicin industries ranging from photography to florists, and wedding services to foster care placementhave invoked constitutional rights to refuse to serve LGBTQ+ people. The most prominent case to date was Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 case that involved a bakery asserting the right to refuse to sell a wedding cake to a gay couple.

Today, court cases in which businesses claim a right to deny employment to LGBTQ+ people in the face of antidiscrimination regulations are similarly accumulating following the Supreme Courts ruling last year in Bostock v. Clayton County, Georgia. The Court in Bostock held that Title VII of the Civil Rights Act of 1968the federal employment nondiscrimination lawforbids discrimination against employees for being gay or transgender under the Acts prohibition on discrimination because of sex.

Although in some sense these cases are a new and important development, they also form part of a larger arc of entities claiming that they have the right to refuse service or employment to certain groupssuch as Black people, immigrants, or womenthat reaches back at least a hundred years. Over many decades, the Supreme Court considered and rejected the arguments of employers and public accommodations, such as restaurants and hotels, that claimed constitutional exemptions from antidiscrimination laws.

After the passage of the Civil Rights Act of 1968, which prohibited discrimination in both employment and public accommodations, the Supreme Court rejected the argument of an Atlanta motel that the Fifth Amendment gave it the right to refuse service to Black customers. The Court similarly rejected the contention of the prominent law firm King & Spalding that the First Amendment protected its freedom of association right to make only men, not women, partners. The Supreme Court described as patently frivolous a barbeque restaurants argument that the Civil Rights Act of 1968 was invalid because the requirement to serve Black patrons assertedly contravenes the will of God and constitutes an interference with the free exercise of the Defendants religion. And in two casesone involving a federal law that required private schools to desegregate, and another involving the tax-exempt status of Bob Jones University, which prohibited interracial dating and marriage as part of its religious missionthe Court held that private schools do not have constitutional rights to adopt racially discriminatory policies or admissions practices.

These decisions made two related moves. First, they restored the common law duty of businesses open to the public to serve the public on a nondiscriminatory basis. This duty prevailed before the Civil War but was abrogated after Reconstruction by racially discriminatory southern laws. Second, these decisions reflected the view that schools and employers are institutions that are open to the public and critical for public participation in what it later described as the basic transactions and endeavors that constitute ordinary civic life in a free society.

Masterpiece again raised this question of whether the Constitution protects a right to refuse service or employment to a class of people on religious or moral grounds. Importantly, in addition to a free exercise of religion claim, the cakeshop made a free speech claim. Masterpiece argued that it could not be required to sell a cake to a gay couple because doing so would compel it to express a message of support for gay marriage.

Court watchers speculated that the Supreme Court might change course in Masterpiece from its consistent rejection of such claims because, for over three decades, the Court had adopted an increasingly robust and libertarian view of the freedom of speech, particularly in economic life. The Court had expanded the sorts of activities that are protected as speech or expression and are subject to heightened judicial review.

By contrast, free exercise jurisprudence had remained relatively stable. For example, the Courts 1990 decision Employment Division v. Smith had remained good law. Smith held that generally applicable laws that are neutral toward religionthat is, do not target or disfavor religionreceive the lowest level of judicial scrutiny, rational basis review.

Many observers speculated at the time of Masterpiece that Justice Kennedy was looking to carve out a free speech right not to sell wedding cakes to gay couples, to balance the scales after granting major wins to the gay community. The bakerys argument, however, turned out to be too expansive for the Court to accept. Why? Humans are expressive animals and almost anything they do can be understood as expressive. For this reason, recognizing an expressive right not to serve a customer would not only threaten most civil rights laws but potentially government regulation more broadly. If refusing to abide by a nondiscrimination law is a constitutional right, why not refusing to abide by any other type of law because of what adhering to it might express?

The Court did not take the course urged by the bakery. Instead, it emphasized the general rule that religious objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. In doing so, the Court affirmed established constitutional principles. The bakery won the battle but lost the war.

The law around religious exemptions, however, is swiftly changing. The Supreme Court is now stocked with Justices for whom religious liberty is a central or perhaps even primary concern. The new majority has already begun dramatically remaking religion law in ways that may provide religious exemptions to refuse service or employment to the LGBTQ+ community.

Although the Courts recent decision in Bostock held that Title VII protects LGBTQ+ people against discrimination as part of its prohibition against discrimination because of sex, the Court also noted that it was deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution. It observed that the Religious Freedom Restoration Act of 1993 is a kind of super statute that might supersede Title VIIs commands in appropriate cases. Such cases have not yet reached the Supreme Court, but the Bostock opinion certainly invited them.

The Supreme Courts highly anticipated decision in Fulton v. City of Philadelphia also addressed these issues. The case presented the question of whether the City of Philadelphia could, consistent with the First Amendments protections for religion and speech, refuse to renew its contract with Catholic Social Services to provide foster care placements because the organization refuses, on religious grounds, to place children with gay couples. Although providing foster services is distinct from selling cakes, it is a service that is open to the publicindeed a service that the City contracted to provide the public. Fulton squarely presented the questions of whether Smith should be overturned and whether antidiscrimination rules are unconstitutional if applied to religious dissenters.

To the surprise of many, the Supreme Court jumped the queue to make new law on religious exemptions before it decided Fulton, via what University of Chicago Law School professor William Baude has called its shadow docket, decisions it makes by summary order without briefing or argument. By a 5-4 vote in Tandon v. Newsom, the Court earlier this year issued an emergency injunction blocking Californias COVID-19-related restrictions on in-home gatherings as violating the free exercise clause, in what one scholar described as the most important free exercise decision since 1990.

The majority reasoned that, because California allowed some secular businesses to bring together more than three families at a timesay, at a grocery storea three-family limit on in-home gatherings for any purpose, including religious ones, was unconstitutional. The Court adopted what some have called a most favored nation view of the free exercise clause, under which otherwise neutral laws are constitutionally suspect if they create any exceptions for comparable secular activities. Tandons approach, it would turn out, foreshadowed Fultons.

The Court in Fulton ostensibly declined to overturn Smith. Nor did it extend a general constitutional right to discriminate against LGBTQ+ people on religious grounds, as Catholic Social Services had sought and as court watchers believed was the near certain outcome. That is a significant win for LGBTQ+ rights advocates.

Nonetheless, the Court ruled 9-0 in favor of Catholic Social Services, with the majority ruling on seemingly narrow, fact-bound grounds, arguably similar to its decision in Masterpiece Cakeshop. Why? Expanding on the logic of Tandon, the Court reasoned that the Philadelphias foster care contracts included a system of individual exemptions available at the sole discretion of the Commissioner that invites the government to consider the particular reasons for an agencys noncompliance with the rule. The Citys antidiscrimination policies, therefore, did not constitute generally applicable law. Accordingly, strict scrutiny, rather than Smiths rational basis review, applied, and the City failed to justify sufficiently its refusal to grant Catholic Social Services an accommodation not to serve LGBTQ+ couples.

Several points are worth noting here. As University of Pennsylvania professor Cary Coglianese and Penn State Law professor Daniel Walters compellingly argue, provisions explicitly authorizing exceptions to otherwise seemingly general rules are in fact rife throughout the law. As a result, as they contend, in Fulton the Supreme Court would seem to have opened the barn door for anyone with religious objections to escape from their duty to obey vast swaths of the law. Although seemingly narrow, Fulton (along with Tandon) may render Smith largely inapplicablelikely with more far-reaching consequences than LGBTQ+ rights alone. As University of Virginia School of Law professor Douglas Laycock has observed, if a law with even a few secular exceptions isnt neutral and generally applicable, then not many laws are. Indeed, if governmental discretion to enforce a law or any under-inclusiveness constitutes an exception, the domain of Smith becomes vanishingly small.

At the same time, Fultons negotiated 15-page majority opinion and nearly 100 pages of concurrences by the Courts conservatives suggest far more. At least three important implications follow from this collection of opinions.

The first and most important implication may be what all of the opinions declined to address: the speech claim made by Catholic Social Services. By deciding the case on religious grounds, the Court, as in Masterpiece, avoided the broadest rule it could have adopted, namely that individuals have a right to break laws if they believe their breakingor followingthat law expresses something. Such a holding would deal a fatal blow to regulation at all levels, serving to render self-government impossible. But in Fulton, not a single Justice gave the speech argument any air time. Will this Court more broadly shift its focus from speech to religion jurisprudence? Fulton suggests it might.

Second, it is clear there already exist five votes on the Court to expressly overrule SmithJustices Alito, Barrett, Gorsuch, Kavanaugh, and Thomasbut the justices do not (yet) agree on what should replace it. Of note, the Court has still before it the possibility to hear appeals in both Arlenes Flowers v. Washington and Ricks v. Idaho Contractors Board, either of which could provide swift vehicles to overrule Smith.

Of the separate opinions in Fulton, Justice Barretts concurrence, joined in full by Justice Kavanaugh and in part by Justice Breyer, is no doubt the most important. It disputes the prevailing assumption that, if Smith were overruled, strict scrutiny would categorically apply to all neutral and generally applicable laws that burden religion, in favor of a more nuanced approach informed by other First Amendment doctrines.

What might that mean? Perhaps a more context-dependent approach, akin to what free speech jurisprudence has long required. Speech jurisprudence has long used different rules and levels of scrutiny depending on the context of expression. Consider, for example, ordinary contracts. Although written in words, contract law generally falls outside of the domain of the Speech Clause, as does the speech of public school teachers dolling out bad grades or of doctors offering advice that constitutes malpractice. Or consider the rules that apply to the speech of a government lawyer, to flag burning, to nutrition labels, or to a law regulating noise levelsall of which receive not only context-bound levels of scrutiny but also legal tests that advance context-dependent constitutional values.

Justice Barrett may attempt to bring religion law to the more complex, and indeed nuanced, world of speech jurisprudenceinstead of moving speech law, perhaps, toward the blunt one-size-fits-all rule that the Kennedy Court had increasingly embraced. Barretts move, if accepted by the Court, might forge something of a middle path in the conflict between religion and secular laws, and might even benefit speech law in the process.

Third, and finally, a majority of the CourtChief Justice Roberts and Justices Barrett and Kavanaugh, along with the Courts liberals, Breyer, Kagan, and Sotomayornonetheless appear to agree that the heartland of public accommodations laws are neutral, generally applicable, and constitutional. How does that square with their holding in Fulton? Considering the Philadelphia ordinance, it appears that the majority reasoned de novoif perhaps in the shadow of constitutional avoidancethat foster services are not covered by Philadelphias public accommodations law. Foster care services, the majority reasoned, are not available to the public in the sense that the services of ordinary public accommodations, such as restaurants, are publicly available. Foster services, the Court stressed, involve a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. That move is important, insofar as it suggests that the Court may in fact uphold against a religion challenge a public accommodations law that does not contain exceptions in contexts such as hotels, restaurants, or transportation. Of course, court watchers will have to wait and see how that question looks to Justices Roberts, Kavanaugh, and Barrett once a concrete case is before them.

If a majority does adhere to the longstanding, general position that public accommodations laws are constitutional, at least in some contexts, what services other than foster care might it exempt from that rule, if any? And if the general position does not hold in the future, will the Court require religious exemptions from public accommodations laws for anyone who would like to refuse to serve or employ LGBTQ+ people on religious grounds in the heartland of economic life?

It would seem that the answer will depend in significant part on what Chief Justice Roberts and Justices Barrett and Kavanaugh view as open to the public. Are businesses that make custom wedding flowers or cakes, or dresses or table settings for that matter, open to the public? At this point, I remain relatively optimistic as to the core of public accommodations, if perhaps not as to so-called personalized wedding services.

The statutory interpretation path taken by the Court in Fulton might allow the Court to avoid some of the knottiest questions and implications raised by the possibility of a flat exemption for any religious entity that provides public accommodationsso-called faithful public accommodations. This possibility constituted a central focus of oral argument in Fulton. Specifically, if a faithful public accommodation possessed a right to refuse service to LGBTQ+ people, could another such faithful entity then assert a right not to serve people based on their race, sex, religion, or disability? The federal governments lawyer attempted to dodge that thorny question, stating that race discrimination might be different, but without explaining why. Indeed, it is hard to see how a constitutional rule granting a right to refuse service to LGBTQ+ people on religious grounds would not create a general right for religious entities to refuse service on the basis of race, disability, family status, religion, or other protected status, especially when an antidiscrimination law treats those categories identically.

By tinkering with the domain of what is truly open or available to the public, the Court may be able to avoid an outcome in which all businesses are able to choose their customers and employees. That would be a happy result for LGBTQ+ advocates. But the Court is nonetheless already on its way to creating enclaves of exclusion and increasing the balkanization of the nations social and economic life. Straight Couples Only signs can now be posted with full constitutional protectionat least in some contexts.

How far will the newly configured Supreme Court go in its remaking of religion law? And how will it reshape the opportunities of LGBTQ+ people and the openness of institutions that constitute ordinary civic life in a free society for all of us? We will have to wait and see.

Amanda Shanor is an assistant professor at the Wharton School of the University of Pennsylvania.

Shanor was part of the ACLU team that represented Charlie Craig and David Mullins, the gay couple denied service by Masterpiece Cakeshop, before the U.S. Supreme Court. She also advised ACLU counsel for the transgender plaintiff and joined an amicus brief of scholars of philosophy on behalf of the employees in the cases consolidated in Bostock.

This essay is part of a 9-part series, entitled LGBTQ+ Rights and Regulation.

See original here:
LGBTQ+ Need Not Apply - The Regulatory Review

From Nunes v. Lizza, handed down yesterday by Magistrate Judge Mark A. Roberts (N.D. Iowa):

Defendants published an article about Plaintiffs' dairy farm. A thorough statement of the factual background is set forth in Judge Williams's Memorandum and Order regarding Defendants' Motion to Dismiss. Because of Judge Williams's ruling, the sole surviving claim is for defamation arising from Defendants' allegedly false statements that Plaintiffs knowingly employed undocumented or unauthorized workers.

Thereafter, discovery focused on the immigration status of Plaintiffs' employees, including, among other things, Plaintiffs' I-9 documentation and records in the possession of the Social Security Administration. Defendants noticed the depositions of six of Plaintiffs' current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions.

Plaintiffs' counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants' counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.]" Mr. Biss then interrupted stating, "Hold on. Hold on. Can we go off the record for just a minute? I'd like to talk to Justin before we do this." In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants' counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we've had several conversations with lots of people and I've talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Defendants complain about Mr. Biss's behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and "intended to call out the Defendants' overt harassment of the NuStar employee." Mr. Biss's further explanation on this issue is puzzling and troubling:

No effort was made to "signal to the witness how to answer questions" or to "coach[ ] the witness to testify in a certain way." Counsel for the Defendants got answers to all his questions, including those about [F.S.D.'s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff's counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs' counsel.

During the deposition, Defendants' counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer's lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss's explanation, however, is the representation that he "sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment." This two-hour "sidebar" occurred immediately after Mr. Allen stated, "I've advised my client to invoke his Fifth Amendment right regarding questions about this document."

Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss's protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss's behaviorcoupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was firedgives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

Here, the problem is at least the appearance of an attorney pressuring a witness not to assert a privilege and effectively canceling the deposition to obtain that result. I make no finding based on this record that such pressure did, in fact, occur. Nevertheless, the record lends itself to the appearance that [F.S.D.] may have been subject to pressure not to independently assert his rights.

See the original post:
Devin Nunes's Libel Lawyering, Employee Witnesses, and the Privilege Against Self-Incrimination - Reason

The principle that anyone born in the United States is an American citizen is enshrined in the 14th Amendment. But in a divided decision Tuesday, a federal appeals court reaffirmed the unique inapplicability of the citizenship clause to one of Americas six federal territories American Samoa, the only one of the six where birthright citizenship does not currently apply.

The ruling in Fitisemanu v. United States doesnt just rest on a deeply flawed understanding of the 14th Amendment. It also breathes new life into a long since discredited distinction that the Supreme Court drew in the early 20th century one in which territories that just happened to be predominantly white received full constitutional protections, while those that were not didnt.

After years of struggle between the U.S., Germany, and United Kingdom for dominance over the Samoan island chain, the islands were partitioned into two in 1899. Just prior to the partition, America had gained significant overseas territories as a result of concessions arising out of the Spanish-American War. The eastern group of Samoan islands quickly joined the ranks after tribal leaders formally ceded the land to the Americans. The western group remained a German possession through Germanys defeat in World War I, becoming an independent nation in 1962.

But even as residents of other U.S. territories gained birthright citizenship either by constitutional mandate or statute, and even as American Samoans (a disproportionate percentage of whom have served in the U.S. military throughout the past century) fought for similar and other protections in Congress, they were left out.

A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

In the case decided Tuesday, three American Samoans living in Utah had brought suit challenging their denial of citizenship which, among other things, means that they are denied the right to vote, the right to run for elective federal or state office outside American Samoa, and the right to serve on federal and state juries. A federal judge in Utah had agreed that the denial of citizenship was unconstitutional but a divided panel of the Denver-based federal appeals court reversed that decision.

Writing for the majority, Judge Carlos Lucero relied heavily on a series of early-20th century Supreme Court decisions known as the Insular Cases. In those cases (none of which dealt specifically with birthright citizenship), the justices adopted a distinction between incorporated territories (those U.S. possessions that were destined for statehood) and unincorporated territories (those U.S. possessions that were not). The Constitution generally applied to its fullest extent in the former, whereas courts were left to decide on a case-by-case (and provision-by-provision) basis the extent to which it applied in the latter.

Forests have been felled on the myriad problems with the Insular Cases. To make a long story shorter, as five of the leading scholars on the subject wrote in 2014:

The Insular Cases approach to the constitutional status of the U.S. territories lacks any grounding in constitutional text, structure, or history. The Insular Cases, rather, reflected the assumptions of the time that the United States, like the great European powers of that era, must (despite being constrained by a written Constitution) be capable of acquiring overseas possessions without admitting their uncivilized and savage inhabitants of alien races to equal citizenship. That reasoning, even if it were constitutionally relevant, is the product of another age. It has no place in modern jurisprudence even if it had any validity in earlier times.

Of course, lower courts would still be bound by those decisions if any of them were squarely on point. But none of the Insular Cases involved the citizenship clause of the 14th Amendment. Instead, the Court of Appeals was free to reach the issue anew in this case and still chose to abide by the Insular Cases discredited framework. In the process, the court wholly ignored the original context of the citizenship clause enacted to overturn a Supreme Court decision in which one of the questions had been the status of slaves in federal territories.

The Supreme Courts 1857 decision in the Dred Scott case is infamous for its full-throated legal defense of the institution of slavery. But its constitutional significance was its specific holding that slaves and their descendants were not and could not become U.S. citizens. Congress accordingly did not just amend the Constitution to abolish slavery after the Civil War; it also wrote into our founding charter the principle of birthright citizenship that anyone born in the United States is a citizen thereof.

Turning to the question of whether the citizenship clause should apply in an unincorporated territory like American Samoa, the 10th Circuit Court of Appeals focused its analysis on whether it would be impractical or anomalous to extend birthright citizenship to American Samoa and held that it would.

Their reasoning: a majority of American Samoans have expressed concern that recognition of birthright citizenship would open the door to arguments that other constitutional provisions cannot be reconciled with some of American Samoas unique legal traditions. That includes worries that if the citizenship clause of the 14th Amendment applies to American Samoa, it might presage a holding that the Supreme Courts modern Fifth Amendment property rights jurisprudence likewise applies to the Pacific Ocean territory, , threatening the islands communal ownership of property..

But this analysis not only misapplied the Supreme Courts precedents (which ask whether recognition of the right is impractical or anomalous from the federal governments perspective); it also fundamentally devalues the importance of constitutional rights in the territories where those rights that arent supported by a majority are perhaps the most in need of judicial incorporation.

One might wonder why its such a big deal that a federal appeals court has held that 50,000 Americans arent constitutionally entitled to birthright citizenship. The answer is two-fold: First, to reach that result, the court had to both ignore the original purpose and context of the citizenship clause and revive the deeply problematic rationale of the Insular Cases

Second, and more fundamentally, one of the two central goals of the post-Civil War amendments was to hard-wire into the Constitution the idea that theres only one class of American to repudiate not only the institution of slavery, but also the caste system it created. The more that contemporary courts recognize circumstances in which our compatriots are not treated as equals, the more they open the door to additional erosions of this fundamental ideal.

Steve Vladeck is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast).

Link:
American Samoans are the latest victims of these ignorant Supreme Court rulings - MSNBC