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Spring 2016
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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

A Recap of the SCOTUS 2014–15 Term

Marisa A. TrasattCaroline E. Willsey Marisa A. Trasatti and Caroline E. Willsey

As the Supreme Court of the United States (“SCOTUS”), works on this year’s docket, let us reflect on the most groundbreaking decisions from its 2014–2015 term. Last term, SCOTUS addressed many controversial topics such as housing discrimination, free speech and social media, same-sex marriage, the Patient Protection and Affordable Care Act (“ACA”), and religious freedom in the workplace. Surprisingly, the Court declined to hear a controversial Second Amendment case, brought by San Francisco gun owners, challenging a city ordinance that required all guns kept in the home to be stored in locked containers or disabled by trigger locks. The Court also declined to hear a challenge to state voter registration laws requiring documentary proof of citizenship and a dispute over code copyrighting between Google and Oracle. Despite a record number of unanimous decisions in its 2013–2014 term, the Court’s 2014–2015 term was more divided– the Court only issued unanimous decisions in thirty (30) out of seventy-six (76) cases. Sixteen cases were decided by 5-4 plurality opinions. Of those 5-4 decisions, the vast majority divided the Court along party lines (i.e., Justices Ginsburg, Breyer, Sotomayor, and Kagan (“liberals”) versus Chief Justice Roberts and Justices Thomas, Alito, and the late Justice Scalia (“conservatives”). The Court was most frequently divided in cases involving politically controversial topics. Let us review seven (7) of the most noteworthy cases that have emerged from SCOTUS’ 2014 – 2015 term.

1. Housing Discrimination— Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. ____ (2015).

In Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., the issue before the Supreme Court was whether claims of a racially disparate impact in the distribution of low-income housing credits was legally cognizable under the Fair Housing Act (“FHA”). The Federal Government provides low-income housing tax credits to developers, which are distributed through state housing agencies. The Inclusive Communities Project (“ICP”) is a nonprofit organization that helps low-income families secure affordable housing. The ICP brought a disparate impact claim against the Texas Department of Housing and Community Affairs (the “Department”), alleging that the Department caused segregated housing patterns by disproportionately allocating tax credits for low-income housing in predominantly black inner-city neighborhoods.

Assuming that the Department’s proffered interest in its method of administering tax credits was legitimate, the District Court held that the Department still had to prove that “no less discriminatory alternatives” existed. 860 F. Supp. 2d 312, 331 (N.D. Tex. 2012). Because the Department failed to meet this burden, the District Court ruled for the ICP. The U.S. Court of Appeals for the Fifth Circuit affirmed the District Court, ruling that the disparate impact standard articulated by the District Court mirrored that of the U.S. Department of Housing and Urban Development. The Supreme Court affirmed the Fifth Circuit ruling. The Supreme Court compared the language of the FHA to the language of Title VII of the Civil Rights Act of 1964, which focuses on the discriminatory consequences of the challenged state action, rather than the actor’s discriminatory intent. Several circuits had already read the 1988 Amendments to the FHA as creating disparate-impact liability and the Supreme Court interpreted Congress’ inaction acquiescenced in this interpretation. Finally, the Court reasoned reading the FHA to include disparate-impact liability was consistent with the FHA’s purpose of preventing discriminatory housing practices.

In his dissent, Justice Thomas disagreed that Title VII, on which the majority based much of its analysis, provided disparate-impact liability. In a separate dissent, Justice Alito argued that the plain language of the FHA does not impose disparate-impact liability because it focuses on intentional discrimination, rather than racial disparity itself.

2. Free Speech and Social Media—Elonis v. United States, 576 U.S. ____ (2015).

In Elonis v. United States, the Supreme Court decided whether a conviction for transmitting threats to injure another person under 18 U.S.C. § 875(c) required proof of the defendant’s subjective intent that the thing transmitted be an intent to injure. After his wife left him, Anthony Elonis used the social media website, Facebook, to post rap lyrics containing graphically violent imagery regarding his wife and state and federal law enforcement, among others. Elonis injected these lyrics with multiple disclaimers that the lyrics were “fictitious” and that he was exercising his First Amendment rights in posting them. Elonis’ employer reported the Facebook posts to the FBI, which began monitoring Elonis’ Facebook page, and eventually arrested him. Elonis was charged with five (5) counts of violating 18 U.S.C. § 875(c), which criminalizes the transmission, in interstate commerce, of threats to injure another person.

At Elonis’ criminal trial, the District Court instructed the jury that it could convict Elonis if a reasonable person would foresee that his statements would be interpreted as a threat. Elonis challenged this jury instruction, arguing that the jury should have been required to find that Elonis intended to communicate a “true threat.” Elonis appealed and the U.S. Court of Appeals for the Third Circuit upheld Elonis’ conviction. The Supreme Court disagreed, in an 8-1 decision, holding that the prosecution needed to prove a subjective intent to threaten. The Supreme Court explained that an objective reasonable person standard did not go far enough to distinguish innocent, accidental conduct, from purposeful, unlawful acts. In this case, especially, the Court viewed the subjective intent element as crucial, because the criminal act was the making of a threat, not the posting on social media.

In a concurring opinion, Justice Alito criticized the majority for not clarifying whether the proper standard for assessing Elonis’ subjective intent on remand was recklessness or knowledge.. Justice Alito argued that recklessness was the standard. In his dissenting opinion, Justice Thomas argued that nine circuits had already addressed this issue and determined that the objective reasonable person standard was appropriate.

3. Same-Sex Marriage—Obergefell v. Hodges, 576 U.S. ____ (2015).

In Obergefell v. Hodges, the Supreme Court decided whether state officials who denied same-sex couples the right to marry had violated the Fourteenth Amendment. The petitioners were fourteen (14) same-sex couples and two (2) men whose same-sex partners were deceased. The petitioners came from Michigan, Ohio, Kentucky, and Tennessee—all states which refused to grant marriage licenses to same-sex couples and refused to legally recognize same-sex marriages lawfully performed in other states.

Each District Court ruled in favor of the petitioners. The U.S. Court of Appeals for the Sixth Circuit consolidated the petitioners’ cases and reversed. The Supreme Court reversed the Sixth Circuit and held that the Fourteenth Amendment requires state officials to license the marriages of same-sex couples and to recognize lawfully performed marriages of same-sex couples performed in other states. The Supreme Court held that the fundamental liberties protected by Fourteenth Amendment extend to “personal choices central to dignity and autonomy” including the right to marriage. The Supreme Court further held that this applies with equal force to same-sex couples.

In his dissent, Justice Roberts recognized that same-sex marriage may be a good and fair policy; yet, he argued that the Constitution does not address the issue, and that it was, therefore, beyond the purview of the Supreme Court to decide the issue. In a separate dissent, Justice Scalia made a similar argument, stating that the legality of same-sex marriage was an issue for state legislatures to decide. In another dissenting opinion, Justice Thomas wrote that the majority stretched the bounds of the Fourteenth Amendment so far that it had distorted the democratic process by taking power from the legislative branch. Finally, Justice Alito wrote that the Constitution does not address the issue of same-sex marriage and that, therefore, it is for states to decide what definition of marriage they wish to recognize.

4. ACA Tax Credits—King v. Burwell, 576 U.S. ____ (2015).

In King v. Burwell, the issue before the Supreme Court was whether the Internal Revenue Service (“IRS”) acted within its authority under the Patient Protection and Affordable Care Act (“ACA”) when it promulgated a regulation that extended tax credits to a federal “Exchange” through which individuals could purchase healthcare coverage. The ACA implemented a series of healthcare reforms, one of which required the creation of an “Exchange” in each state that would serve as a marketplace for the purchase of insurance plans. The ACA provides that if a state does not or will not establish an “Exchange,” then the federal government will establish one. The ACA provides tax credits for individuals who enroll through an “Exhange.” The IRS interpreted this provision to include individuals who enrolled through the federal “Exchange,” in addition to individuals who enrolled through state “Exchanges.” The petitioners in this case were four individuals who lived in Virginia, which has a federal “Exchange.” Without the tax credit for individuals enrolled under the federal “Exchange,” the petitioners would fall under the ACA’s “unaffordability exception,” and be exempt from having to purchase healthcare insurance. The petitioners challenged the IRS Rule in federal court, alleging violations of the Administrative Procedures Act (“APA”).

The District Court granted the IRS’s motion to dismiss, and the U.S. Court of Appeals for the Fourth Circuit affirmed. The Supreme Court affirmed the Fourth Circuit decision by a 6-3 vote. The Court determined that the language providing tax credits for individuals enrolled in an “Exchange” was ambiguous. Therefore, the Court held that a reading of the provision within the context of the entire ACA supported the interpretation that the tax credits were to be provided to individuals who enrolled under both state and federal “Exchanges.” The Court justified its reading by concluding that it was necessary for federal “Exchanges” to function like their state counterparts.

In dissenting, Justice Scalia countered with his own plain-meaning interpretation of the ACA, which he argued limited the tax credit to individuals enrolled in state “Exchanges.” Justices Alito and Thomas joined Justice Scalia in his dissent.

5. Voting Rights—Alabama Legislative Black Caucus v. Alabama, 575 U.S. ___ (2015).

In Alabama Legislative Black Caucus v. Alabama, the Supreme Court reviewed the U.S. District Court for the Middle District of Alabama’s decision to reject a racial gerrymandering claim, brought in response to the redrawing of state legislative voting districts. Appellants, Alabama Legislative Black Caucus, among others, claimed that Alabama’s new district boundaries created a “racial gerrymander” in violation of the Fourteenth Amendment’s Equal Protection Clause. The District Court ruled against Appellants, holding that redistricting violates the Fourteenth Amendment only when race is the “predominant” consideration. In the alternative, the District Court ruled that if race was the “predominant” consideration, the State’s use of race was “narrowly tailored” to serve a “compelling state interest” in avoiding retrogression.

The Supreme Court, in a 5-4 decision, held that the District Court improperly looked at the statewide impact of the legislative redistricting, when in fact, Appellants had only claimed that racial gerrymandering took place in a few, select districts. The Court further ruled that the District Court erred in considering the State’s goal of achieving less than a one (1%) percent population deviation among districts as a relevant factor to a determination of whether race was a “predominant” factor in redrawing district lines. Instead, the Supreme Court held, the District Court should have considered the traditional goals of the Voting Rights Act, which is to prevent retrogression in minority voters’ ability to elect candidates of their choice.

In his dissent, Justice Scalia argued that Appellants’ complaint was fatally flawed in that it failed to establish Alabama Legislative Black Caucus’ standing to sue and failed to establish whether it was alleging a statewide claim of racial gerrymandering, or a select district claim. Therefore, Justice Scalia argued, Appellants did not deserve a second bite at the apple because of the Court’s sympathy for the Appellants. In a separate dissent, Justice Thomas argued that it was nearly impossible for the State of Alabama to comply with the numerous, and often conflicting, requirements of the Voting Rights Act.

6. Government Speech—Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ____ (2015).

In Walker v. Texas Div., Sons of Confederate Veterans, Inc., the Supreme Court decided whether the Texas Department of Motor Vehicles Board (the “Board”) engaged in a constitutionally prohibited decision when it refused to approve a specialty license plate design submitted by the Texas Division of the Sons of Confederate Veterans (“SCV”). Texas allows drivers to submit proposed specialty license plate designs to the Board, which, if approved, will be made available for display on vehicles registered in Texas. The Board rejected a proposed design by SCV that featured a Confederate battle flag. SCV challenged the Board’s decision and the U.S. District Court upheld the Board’s rejection of the design. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that specialty license plate designs are private speech and that the Board violated the Constitution by refusing to approve SCV’s design.

The Supreme Court overturned the Fifth Circuit, 5-4, holding that specialty license plate designs constitute government speech, and thus Texas was entitled to refuse to issue license plates bearing SCV’s proposed design. The Court based its decision on the facts that states have long used license plates to convey messages, that the public associates license plates with the State, and that Texas maintains control over the production of specialty license plates. Writing in dissent, Justice Alito argued that with hundreds of different specialty license plate designs, an observer would understand that the license plate was an expression of the driver, not the state. Justice Alito expressed his view that specialty license plates were a form of private expression, carried out in a limited public forum, and that any efforts to suppress this type of expression were unconstitutional.

7. Religious Freedom—EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (2015).

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court was presented with the question of whether an employer could be held liable under Title VII of the Civil Rights Act of 1964 (“Title VII”) for refusing to hire an applicant based on a religious practice, if the employer did not have direct knowledge of the applicant’s need for religious accommodation. Abercrombie & Fitch Stores, Inc. (“Abercrombie”) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf she wore, in religious observation, contradicted Abercrombie’s employee dress code. The EEOC filed suit on Elauf’s behalf, alleging violations of Title VII, which make it unlawful for an employer to refuse to hire an applicant because of the applicant’s religious practices when those practices can be accommodated without undue hardship on the employer.

The District Court ruled in favor of the EEOC, but the U.S. Court of Appeals for the Tenth Circuit reversed, holding that failure-to-accommodate liability attaches only when the applicant informs the employer of his or her need for religious accommodation. The Supreme Court reversed the Tenth Circuit in an 8-1 decision. The Supreme Court held that to prevail under Title VII, the applicant need only show that his or her need for an accommodation was a motivating factor in the employer’s decision. The employer’s actual knowledge was not a necessary factor for the applicant to prove, because the employer may make an applicant’s religious practice a factor in its decision of whether to hire the applicant without having express confirmation of the applicant’s need for religious accommodation.

In dissent, Justice Thomas argued that the application of a neutral policy by an employer (i.e. a uniform dress code) cannot constitute intentional discrimination that violates Title VII. Although the dress code may have disproportionately impacted applicants who wear headscarves for religious reasons, Justice Thomas believed that because all applicants were presented with the same dress code, no applicants could claim to have suffered from disparate treatment. Justice Thomas urged a narrow construction of Title VII, such that an employer could only be punished for acting with a discriminatory motive.

Marisa A. Trasatti is a partner at Semmes, Bowen & Semmes in Baltimore, Maryland. Her practice focuses primarily on civil litigation, with an emphasis on products liability litigation.

Caroline E. Willsey is a law clerk at Semmes, Bowen & Semmes. She will graduate from the University of Maryland Francis King Carey School of Law in May 2016. Caroline is an Articles Editor for the Maryland Law Review. Caroline was also a Teaching Assistant for Legal Analysis & Writing and Written & Oral Advocacy, and worked as a Research Assistant to Professor Shruti Rana.

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