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“Sex”, Title VII, and the role of the courts

Yesterday, Utah joined Nebraska and fourteen other states asking the Supreme Court to remember that policy changes should come from legislative bodies, not the courts. You can read the brief here

Two quick facts:

First, SB 296 is not at risk. A U.S. Supreme Court ruling in Harris Funeral Homes will not affect Utah’s housing and employment protections for the LGBTQ community.  Those Utah statutes are not (and will not be) the basis for any Court decision in Harris

Second, the brief doesn’t address whether prohibiting employment discrimination on the basis of gender identity is good or bad policy.  Instead, it makes the straightforward point that Congress—not the federal courts— should decide those types of policy questions.

So, why did we sign on? 

The issue in Harris Funeral Homes is how to interpret a word in a federal statute known as Title VII, which prohibits employment discrimination on a number of protected characteristics. One of those prohibitions is discrimination on the basis of “sex.” Some courts—including the U.S. Court of Appeals for the Sixth Circuit in Harris Funeral Homes—have interpreted the word “sex” to mean not just the physiological distinctions between men and women, but also a person’s personal gender identity. The states’ brief argues—as other courts have found—that this interpretation contradicts the widespread public understanding when Congress adopted Title VII that discrimination based on “sex” meant only discrimination on physiological distinctions.

Now you know. 

The role of American courts is not to redefine the law. When laws need to be amended to include a broader definition, that responsibility belongs to the appropriate legislative body, not the courts.





Utah Joins California on Federalism Issue

August 7, 2018

Eighteen states urge U.S. Supreme Court to follow 1985 precedent

SALT LAKE CITY – Today, Utah Attorney General Sean Reyes announced Utah has joined California and sixteen other states asking the Supreme Court of the United States to uphold a Third Circuit Court of Appeals decision stating land use regulation and state property law cases should be heard in state courts before moving into the federal court system.

“From time to time, Utah and California interpret the constitution differently,” said AG Reyes. “In this case, however, we agree that questions about state property laws and land use regulations should be heard in a state court first. Local self-governance, especially on land use issues, is an American principle of federalism we need to preserve.”

The bipartisan coalition hopes the U.S. Supreme Court will affirm the appeals court ruling and the 1985 high court precedent prohibiting landowners from litigating takings claims in federal court until they have exhausted all avenues at the state level. The coalition of states contend that state courts are best situated to resolve complex, local conflicts – especially when individual rights and the needs of the community may be in tension.

The case involves Rose Mary Knick, owner of 90 acres of rural land in eastern Pennsylvania, and the Township of Scott, Pennsylvania. Knick alleged the violation of her Fourth and Fifth Amendment rights and appealed the Third Circuit Court of Appeals before exhausting state-law remedies. The Supreme Court will hear oral arguments of Knick v. Township of Scott in their next session.

Utah joined the California-led brief along with attorneys general from Delaware, Indiana, Iowa, Louisiana, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the Commonwealth of Massachusetts, and the District of Columbia.

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1. You can review the amicus brief here:

2. For more information on the details of Knick v. Township of Scott, see 
SCOTUSblog: & Oyez:

3. The AG’s office published a blog explaining its stance. You can read that here:

State Courts Before Federal Courts

At times, Utah and California are on opposite sides of critical legal issues, but today we stand together on the solid principles of federalism.  

Utah has joined our west-coast neighbor and 16 other states to ask SCOTUS to affirm a court of appeals decision that says state property law and land use regulation should be heard in state court before it goes to federal court.

You can read the brief here: 17-647 Knick v. Township of Scott Amicus Brief

We believe landowners should pursue compensation remedies that are available in state court before bringing takings claims in federal court.


Local courts are best situated to resolve complex, local conflicts – especially when individual rights and the needs of the community may be in tension. Federal courts tend to be removed from the day-to-day workings of state government and have different priorities; they are naturally designed to serve federal goals not state policy initiatives. Hearing land disputes in state court first also preserves each state’s ability to prevent regulatory overreaching by its own agents or subdivisions, thereby facilitating state efforts to ensure effective, efficient, and fiscally responsible regulation.

Of course, federal courts will always have the ability to provide guidance for the protection of federal constitutional rights.

We hope SCOTUS will see this issue the same way as Utah and California and affirm the Third Circuit Court of Appeals decision of dismissal based on a similar decision by the U.S. Supreme Court in 1985.

Guarding the First Amendment

The U.S. Supreme Court recently ruled that the First Amendment prohibits states from turning pro-life pregnancy clinics into government mouthpieces required to convey a state’s preferred message about abortion.  Utah supports this decision, along with 20 other states who filed an amicus brief urging the Supreme Court to protect the clinics’ First Amendment rights. 

It is a significant win. 

It all started in 2015 when California passed the Reproductive FACT Act. The legislation, an acronym for Freedom, Accountability, Comprehensive Care, and Transparency, required two types of crisis pregnancy clinics – unlicensed and licensed – to post certain kinds of notices. Unlicensed crisis pregnancy centers had to disclose to their clients that they are not a licensed medical facility and have no licensed medical provider on staff. Licensed clinics that do not provide a full range of reproductive services had to post a sign informing clients that the State provides free or low-cost access to prenatal care, birth control, and other reproductive services, including abortion.

Most crisis-pregnancy centers are faith-based and pro-life. As a result, the FACT Act would require them to disseminate a message about practices they oppose. The states’ amicus brief opposed this requirement.  No other medical facility is required to inform its clients about services provided by other facilities.

The Supreme Court ruled that the FACT Act likely violates the First Amendment because the Act requires the clinics to speak a particular message that is not their own and therefore alters the content of their speech. This becomes an act of forced speech, since promoting alternative services, including abortion, would be a violation of their beliefs.

Bottom line:

Not only is the government not allowed to ban speech, it isn’t allowed to tell you what to say either.

For more documents, and information, check out SCOTUSblog


Utah’s War on the Unreadable Amicus

Well over 800 amicus briefs were submitted to the U.S. Supreme Court in 2017.  All were numbered, tagged, diced, and measured for the following five crucial elements of good legal writing:

  • Flow
  • Plain English
  • Punchiness
  • Reading Happiness
  • Sentence Length

Top score? Utah’s Solicitor General Tyler Green, of course. 

Here’s an excerpt from Doctor Adam Feldman’s analysis entitled Getting Rid of those Amicus Blues

The top scoring brief was from Utah’s Solicitor General Tyler Green in Lucia v. SEC.  Another one of Green’s briefs, the one from D.C. v. Wesby, ranked in this top group as well. 

The Utah AG’s Office combines the natural respect of courts for the work of the states with style, readability, and strong arguments. 

Why this matters

“The number of amicus briefs filed each term far outweighs the number of briefs filed by direct parties. These amicus groups vie against one another for the Court’s attention as the resources for evaluating these briefs are limited.  High-quality writing remains one of the best ways for groups to get the Court’s attention. . . “

Bryan Schott has more in Utah Policy.

Read Dr. Feldman’s full report here

AG Reyes’ statement on Judge Brett Kavanaugh’s Appointment to the U.S. Supreme Court

July 9, 2018


Sean Reyes Praises Judge Kavanaugh, Urges Quick Confirmation

SALT LAKE CITY – This evening, Utah Attorney General Sean D. Reyes made the following statement in support of the appointment of Judge Brett Kavanaugh to the Supreme Court of the United States:

I applaud President Trump for nominating Judge Brett Kavanaugh to serve as Associate Justice of the Supreme Court of the United States. Judge Kavanaugh’s experience and jurisprudence on the U.S. Court of Appeals for the District of Columbia demonstrates he has the most important quality a judicial nominee can possess—the ability to decide cases as an impartial judge based on the U.S. Constitution and laws passed by Congress, and not as a would-be legislator, based on laws as the judge may wish them to be.

President Trump deserves credit for continuing his commitment to nominate originalist and textualist jurists like Justice Neal Gorsuch and Judge Brett Kavanaugh who respect the Constitution and the Rule of Law. Judge Kavanaugh brings with him many of the best aspects of Justice Kennedy’s legacy in addition to his own unique lens to the Court.

Those who have worked with Judge Kavanaugh on both sides of the aisle praise his intellect, approach and character on the bench. He will be a fine addition to the High Court. I urge the Senate to quickly confirm Judge Kavanaugh so that the Court can continue its important work with a full complement of Justices when it returns to the bench this fall.

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[UPDATE, 7/13/18:] A majority of the nation’s state attorneys general, including AG Reyes, asked the United States Senate to confirm Judge Kavanaugh, describing him as an outstanding jurist with a proven commitment to upholding the Constitution and the rule of law. Here’s the letter

Supreme Court Win: Mark Janus

In the ongoing American saga of workers, unions, and government, the Supreme Court reversed a four-decade-old opinion which puts the power of choice back in the hands of the individual citizen. 

The process started with a new case brought by Mark Janus, a child support specialist who works for the state of Illinois. Janus sued his union, stating he did not agree with their positions and therefore should not be forced to pay their union fees.

Utah joined 18 other states in support of Janus and urged the court to overturn the 1977 decision in order to protect the First Amendment rights of the individual. You can read our brief here

The Supreme Court overturned their 1977 decision which stated that while it was illegal for unions to force members to pay for their political activities, it was fair to collect fees for collective bargaining and administrative fees.  

In this year’s case? The worker won. 

The Supreme Court’s new ruling strikes down an Illinois law requiring union non-members to pay fees for the collective bargaining process, matters affecting wages and contracts, as well as negotiating conditions and hours of employment. The Court stated the distinction in the 1977 case between a union’s political spending and other activities is unsustainable and unworkable. It has led to practical problems and is inconsistent with other First Amendment cases protecting free speech. 

Find more on the SCOTUSblog.

You’ll remember that Utah had a local version of this issue many years ago (here and here), which also went to the U.S. Supreme Court. The State of Utah led seven other states saying then, as it did in Janus, that an individual’s free speech rights were at stake.  In case you’re interested, here is a copy of our 2009 brief (PDF).

All of this paints an interesting backdrop for today’s discussion about the White House and federal employee unions.

Thanks for paying attention. 





Photo by Sebastian Pichler

Wherein the federal bureaucracy becomes a little more accountable

In the Lucia v. Securities and Exchange Commission decision last week, the Supreme Court of the United States held by a vote of 7-2 that the Securities and Exchange Commission’s administrative law judges are “inferior officers of the United States” for purposes of the Constitution’s Appointments Clause. Utah and thirteen of our sister states filed an amicus brief urging the Court to reach that very decision due to important federalism concerns.

Bottom line

Because of this decision, states will be better able to hold our federal representatives accountable for the types of persons they install to make decisions affecting a broad array of state interests.

Why is this important?

Inferior officers of the United States exercise significant federal power. For example, the SEC’s ALJs have power to conduct trials, take evidence, and issue decisions affecting people’s ability to practice their profession and earn a living. The Appointments Clause allows States and other interested parties to hold the President and the Senate politically accountable for the types of persons they install to perform those important federal functions.

Lucia does not directly affect the States, since the States do not appear as parties in SEC adjudications. But Lucia has significant implications for other federal ALJs before whom States appear, such as ALJs in the Department of Interior. Lucia clarifies that if ALJs at DOI perform functions similar to the SEC’s ALJs, they too must accede to their offices in accordance with the Appointments Clause’s mandates. 

You can read Utah’s Amici Brief here, and find the entire U.S. Supreme Court opinion here

More on SCOTUSblog

Shout out to Utah’s Solicitor General, who led out and wrote the brief. 

Utah Solicitor General Tyler Green Argues Before U.S Supreme Court in Utah v. Strieff

SALT LAKE CITY Feb. 21, 2016 – In the second case argued before it since the passing of the late Justice Antonin Scalia, the Supreme Court of the United States heard oral argument in Utah v. Strieff, a case that addresses the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. Utah Attorney General Sean Reyes assigned Utah Solicitor General Tyler Green to argue the case on behalf of the State of Utah.

“Both sides argued their case very powerfully,” said Attorney General Reyes. “We congratulate Joan Watt and her team at the Salt Lake Legal Defender Association. The State of Utah and the Attorney General’s office were well represented today by our Solicitor General, Tyler Green. True to his reputation, he was extremely well-prepared, articulate and persuasive in handling challenging questions.

“The absence of Justice Scalia and his funeral this last weekend did not seem to distract the Court from being ready for vigorous questioning.”

The case began when police received an anonymous tip alleging that drugs were sold from a Salt Lake area home. Edward Strieff, Jr. was stopped by a detective surveilling the home. During the stop, the detective discovered an outstanding warrant for Strieff, as well as drug paraphernalia.

Audio of the oral arguments can be found on when posted in the coming days. Utah’s reply brief outlining the case and arguments can be found here.

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