Transgender Equality and Dignity Under the Montana Constitution

The United States is seeing a wave of explicit anti-transgender animus, expressed in the form of legislation banishing transgender individuals from full participation in public life. In Montana, such a measure was defeated in the Legislature in the 2017 session. HB 609 would have discriminated against transgender individuals by prohibiting them from using the restroom, locker room, or changing facility in a government building or under public control that corresponds with their gender identity. Following the House Judiciary Committee’s rejection of HB 609, the Montana Family Foundation began collecting signatures on ballot initiative I-183, a nearly identical measure to HB 609, with the intent of placing it on the ballot in 2018. What does the Montana Constitution say about the anti-transgender discrimination embodied in measures like HB 609 and I-183? Surely such legislation is unconstitutional because it classifies on the basis of sex. But that answer does not begin to do justice to the harms transgender discrimination inflicts. And the Montana Constitution does not limit the analysis to this answer. In fact, it compels a deeper analysis that is rooted in the principle of dignity that expressly undergirds Montana’s constitutional protections against discrimination

Borrowing from Dormant Commerce Clause Doctrine in Analyzing Abortion Clinic Regulations

The article examines the intensity in legislative rulemaking specifically directed at dismantling women\u27s health protections is sweeping across the U.S. Topics discussed include the U.S. anti-reproductive rights legislation; legal protections for pharmacists who refuse to dispense contraceptive medications to women; and targeted restrictions of abortion providers (TRAP laws) in Texas

Appellate Review of Social Facts in Constitutional Rights Cases

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts\u27 findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, clearly erroneous standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts\u27 findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. When key social facts are missing from the trial record, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court\u27s findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This Article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts\u27 findings of social fact in constitutional rights cases

Holding Legislatures Constitutionally Accountable through Facial Challenges

The Roberts Court has viewed facial challenges with skepticism and hostility. The Court issued one early decision suggesting that its primary concern with facial challenges was the breadth of the remedy. More recently, however, the Court has simply denied facial challenges outright without considering the possibility of more limited relief. In these cases, the Court has focused more on the pre-enforcement and broadranging nature of facial challenges, expressing a preference for concrete evidence that a law has harmed, or will harm, particular classes of individuals. While placing a heavy burden on plaintiffs to demonstrate actual or likely harm, the Court has often deferred to legislative factual assertions regarding the purposes that underlie rights-infringing laws, even where those purposes are quite likely pretextual. The Roberts Court\u27s intolerance for facial challenges thus does more than perpetuate the Court\u27s longstanding confusion over the standard by which to assess such challenges; it permits the Court to withdraw from its critical role in safeguarding individual rights. This Article argues that facial challenges and facial invalidations can help to promote constitutional accountability among legislatures. When a legislature defies clearly established constitutional requirements, or when a legislature\u27s fact-based justifications for a rights-infringing law crumble under independent examination, a legislature repudiates its duty to uphold the Constitution. That shortcoming infects the entire law; it is not limited to some subset of potential applications. It is the courts\u27 duty in such cases, not to reward or accommodate the legislature\u27s failure, but to protect individual rights from it. Complete invalidation of the law in such circumstances satisfies constitutional norms and vindicates the courts\u27 critical role in protecting individual rights from majority oppression