Tipping the Balance in Favor of Justice: Due Process and the Thirteenth and Nineteenth Amendments in Child Removal from Battered Mothers

After Sharwline Nicholson was assaulted by her boyfriend for the first time, the Administration for Child Services (“ACS”) of New York took her children without a court proceeding and temporarily placed them with foster parents. This action was particularly surprising because the children had not been abused by either their father or their mother. Without determining who was at fault, ACS concluded that Nicholson was unfit to parent because she had “engage[d] in acts of domestic violence,” even though she had not assaulted her children or her boyfriend but was only assaulted herself. Nicholson’s experience was not unique, as she represented a class of mothers who had children removed under similar circumstances. In what has already been called a “landmark” ruling, Nicholson v. Williams held that the ACS policy violated abused mothers’ substantive due process rights by taking away their children “solely because the mother[s] [had] been abused.” In addition to finding a Fourteenth Amendment substantive due process violation against the city, the court suggested that the Thirteenth and Nineteenth Amendments should be “added” to this Fourteenth Amendment analysis. While noting that the Thirteenth and Nineteenth Amendments could aid a Fourteenth Amendment analysis, the Nicholson court did not adequately articulate the precise impact either of the amendments could have on the substantive due process analysis or how this analysis would impact a future battered mother’s substantive due process claim. There have been no prior attempts in the literature to articulate the connection between the Thirteenth and Nineteenth Amendments and a Fourteenth Amendment substantive due process analysis. Furthermore, prior to Judge Weinstein in Nicholson, no commentator has argued that the Thirteenth and Nineteenth Amendments should be combined in the context of domestic violence. This Comment builds on earlier writings by arguing that the Thirteenth Amendment’s prohibition of slavery-like treatment and the Nineteenth Amendment’s guarantee of autonomy bolster a battered mother’s Fourteenth Amendment substantive due process claim when her children have been taken from her solely because she was abused

Religious Monopolies and the Commodification of Religion

In recent years, the number of countries in which a dominant church receives state aid and other forms of preferential treatment has increased. Dominant religions and their supporters in the former Soviet bloc and elsewhere often argue that special benefits and protection are warranted based upon the unique history and contribution of the dominant church to the identity, history, and culture of the country, and the interests of the state and its citizens. Because of the distinctive status of religion and its importance to national and cultural identity, special protection, especially against foreign and other outside influence, is deemed necessary. Although the spiritual realm is putatively treated as being a special situation requiring special protection, the arguments in favor of religious protection bear a curious resemblance to arguments in favor of protection made by monopolists and other protected industries in the economic sphere. This article compares the arguments in favor of protection made by dominant religious groups with arguments in favor of protection by monopolists and protected industries, and concludes that in their pleas for special treatment, religious monopolists make arguments that closely parallel the arguments made by their economic counterparts. Rather than resulting in religion being treated as unique and different, protectionist arguments result in religion being treated much like any other market commodity. We conclude that because religious freedom is a fundamental human right, arguments promoting state protection of dominant religions should be viewed with suspicion

Tipping the Balance in Favor of Justice: Due Process and the Thirteenth and Nineteenth Amendments in Child Removal from Battered Mothers

After Sharwline Nicholson was assaulted by her boyfriend for the first time, the Administration for Child Services (“ACS”) of New York took her children without a court proceeding and temporarily placed them with foster parents. This action was particularly surprising because the children had not been abused by either their father or their mother. Without determining who was at fault, ACS concluded that Nicholson was unfit to parent because she had “engage[d] in acts of domestic violence,” even though she had not assaulted her children or her boyfriend but was only assaulted herself. Nicholson’s experience was not unique, as she represented a class of mothers who had children removed under similar circumstances. In what has already been called a “landmark” ruling, Nicholson v. Williams held that the ACS policy violated abused mothers’ substantive due process rights by taking away their children “solely because the mother[s] [had] been abused.” In addition to finding a Fourteenth Amendment substantive due process violation against the city, the court suggested that the Thirteenth and Nineteenth Amendments should be “added” to this Fourteenth Amendment analysis. While noting that the Thirteenth and Nineteenth Amendments could aid a Fourteenth Amendment analysis, the Nicholson court did not adequately articulate the precise impact either of the amendments could have on the substantive due process analysis or how this analysis would impact a future battered mother’s substantive due process claim. There have been no prior attempts in the literature to articulate the connection between the Thirteenth and Nineteenth Amendments and a Fourteenth Amendment substantive due process analysis. Furthermore, prior to Judge Weinstein in Nicholson, no commentator has argued that the Thirteenth and Nineteenth Amendments should be combined in the context of domestic violence. This Comment builds on earlier writings by arguing that the Thirteenth Amendment’s prohibition of slavery-like treatment and the Nineteenth Amendment’s guarantee of autonomy bolster a battered mother’s Fourteenth Amendment substantive due process claim when her children have been taken from her solely because she was abused

Viewpoint Neutral Zoning of Adult Entertainment Businesses

Zoning of strip clubs, adult video stores, and other adult entertainment businesses is a frequent source of controversy and litigation in many American cities. Community members often oppose strip clubs moving into their city and many cities try to keep these businesses as far from public life as possible. The Supreme Court\u27s First Amendment law has not helped this struggle. In fact, the current secondary effects test used by the Supreme Court has actually made it more difficult for cities to zone adult businesses. Although a few commentators have expressed their disapproval of the secondary effects test, they have all complained that the test allows cities too much power or erodes constitutional freedoms. Surprisingly, no commentator has ever argued that the test actually does not defer enough to cities. This Article argues that the secondary effects test weakens the state zoning power and imposes an impossible task on cities in forcing them to ensure the economic success of adult businesses. After exploring the main flaws of the secondary effects test as, demonstrated by lower court decisions following the Supreme Court\u27s latest zoning decision in Alameda Books, this Article demonstrates how the Court can adopt a new viewpoint neutral approach that allows cities to protect adult entertainment expression while maintaining broad discretion under their zoning power