Articles Posted in Constitutional Law

Two More Nails in DOMA’s Coffin: Courts Invalidate Federal Law’s Rejection of Same-Sex Marriage

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Justia columnist and Hofstra law professor Joanna Grossman comments on two recent rulings that invalidate applications of a federal law—the Defense of Marriage Act (DOMA)—purporting to reject same-sex marriages. One ruling resolves a set of consolidated cases, and was issued by the U.S. Court of Appeals for the First Circuit. That ruling is entitled Commonwealth v. U.S. Department of Health and Human Services. The other ruling is Windsor v. U.S., a decision from a New York-based federal district court. After providing background on DOMA, Grossman analyzes the claims that were put forth in the cases that led to the two recent decisions, and argues that both courts were right to invalidate the applications of DOMA that were before them. She also discusses three U.S. Supreme Court precedents that are relevant to these issues.

A Tale of Two Child Sex Abuse Trials Involving Two Iconic Pennsylvania Institutions: Penn State and the Philadelphia Roman Catholic Archdiocese

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Justia columnist and Cardozo law professor Marci Hamilton comments on two child-sex-abuse trials related to two iconic Pennsylvania institutions: Penn State and the Philadelphia Roman Catholic Archdiocese. The upcoming Penn State-related trial arises out of widely reported allegations of child sex abuse by former assistant coach Jerry Sandusky, who served under Joe Paterno. The defendant in the ongoing trial relating to the Philadelphia Archdiocese is Monsignor William Lynn, who is charged with conspiracy and child endangerment. Hamilton’s report today comes after hearing testimony in the Lynn case. In addition to commenting on these two cases themselves, Hamilton makes a strong suggestion that Philadephia, home of both of the institutions involved in the scandals, should review its laws and practices regarding to allegations of child sex abuse, and should work toward the state’s now becoming a model when it comes to preventing and punishing child sex abuse.

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

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Justia columnist and U.C. Davis law professor Vikram Amar takes issue with Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare. In a recent Wall Street Journal Op-Ed, McConnell took aim at such professors. In particular, McConnell argued that liberal law professors have failed to make “actual legal arguments, based on text, history, structure and precedent” to support Obamacare. Moreover, McConnell claimed that liberal law professors’ definition of judicial activism is one-sided—a charge that they only believe to be true when it applies to the conservative Justices. Amar counters McConnell’s arguments on both of these points, providing a very specific description of the constitutional-law basis for their view that Obamacare is constitutional.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part Two in a Two-Part Series of Columns

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In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Here, in Part Two, Colb continues to address the important question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment. Colb also analyzes the abortion-related laws that the Court has struck down, and explains why. Moreover, she considers the relevance, here, of cases regarding unwanted speech and targeted picketing. Finally, Colb parallels the law with another context in which disturbing images may be shown, and if they are, the showing can be controversial: Animal Rights classes.

How to Better Fight Cyberbullying: Finding Fixes for the Internet Protection Act

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Justia columnist and former counsel to the president John Dean comments on a new proposed New York statute, the Internet Protection Act, which would provide a remedy for those who are the targets of anonymous Internet attacks—including the victims of cyberbullies, and businesses harmed by competitors’ fake reviews. Dean notes that the Act has drawn much criticism, but he argues that the focus of comments on the Act should not be to attack the Act, but rather to offer constructive criticism as to how the Act can be made consistent with the First Amendment. Dean summarizes the First Amendment arguments that have been raised regarding the Act; cites two key Supreme Court anonymous speech cases; notes that it is often possible to unmask cyberbullies without breaking the law, but it takes time and money to do so; and contends that a constitutional way to address cyberbullying would be through a law allowing the unmasking of the perpetrators of Internet harassment, and the issuance of a protective order against them. Even the deterrent effect of such a law, Dean predicts, could be powerful.

Notre Dame Sues the Federal Government in Order to Avoid Providing Reproductive Services to Its Female Students and Employees

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Justia columnist and Cardozo law professor Marci Hamilton comments on Notre Dame University’s and other Roman Catholic organizations’ recent suit against the federal government over federal executive regulations, promulgated through the Department of Health and Human Services (“HHS”), that require the University and the other organizations to include contraception, abortion, and sterilization in their healthcare plans. Hamilton focuses, in particular, on the federal court complaint filed by Notre Dame and the other plaintiffs, and the arguments they have made. Hamilton also describes a series of Supreme Court precedents in which various religious groups have failed to get exemptions from generally applicable laws, and argues that these precedents do not bode well for the plaintiffs’ success in this court challenge. Hamilton also discusses the role the Religious Freedom Restoration Act (RFRA) plays in the lawsuit.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part One in a Two-Part Series of Columns

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In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Colb focuses especially on the question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment.

The Citizens United Case and Jeffrey Toobin’s Account of it in The New Yorker: An Interesting Story but an Incomplete Argument

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Justia columnist and U.C. Davis law professor Vikram Amar comments on legal journalist Jeffrey Toobin’s recent article in The New Yorker regarding the highly controversial Citizens United case, holding that not just persons, but also corporations, have a First Amendment right to spend money to advocate for or against candidates for election. Amar respectfully raises questions about Toobin’s account of the case and how it was decided by the Court. In particular, he focuses on whether this was the rare case in which oral argument actually mattered to the case's outcome, as Toobin suggests.

A Federal Judge Draws the Right Line in Interpreting a Utah Law Regarding Web Content That Is Deemed Harmful to Minors

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Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent First Amendment/Internet law ruling from a Utah-based federal judge. As Ramasastry explains, the ruling limited the scope of a a Utah law that (1) criminalized knowingly or intentionally disseminating harmful content to minors over the Internet, and (2) required website operators to tag or label such content in such a way that the tags or labels can be picked up by search engines. Ramasastry argues that the court struck the right balance by upholding but clarifying the first part of the law, and striking down the second part on First Amendment grounds. When it comes to screening content, she adds, the best solution is not a legal one. The better solution is, she argues, for parents to select screening software if they so choose; and for parents to have a serious talk with their kids to prepare them to deal psychologically with the kind of explicit material that they are likely to see, one way or another, even if parents do install screening software on all home computers.

Denying Clemency for Draconian Sentencing Based on Bad Information: The Clarence Aaron Case

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Justia columnist and former counsel to the president John Dean comments on a criminal case in which he argues that a deeply unjust sentence was handed down. Dean contends that it is high time for presidential clemency for the prisoner, Clarence Aaron, especially as the record shows that the Pardon Attorney gave President George W. Bush’s staff inaccurate and incomplete information in the case. As Dean explains, drawing on reporting by The Washington Post and ProPublica, Aaron—a 23-year-old first-time offender at the time of his arrest—was convicted for his role in abetting a non-violent drug deal. Dean notes that other participants in the deal had made careers in the drug business, and received light sentences in exchange for pointing the finger at Aaron, who received three life sentences. Their testimony has, since then, been shown and admitted to be false, yet Aaron still languishes in jail. Especially now that Aaron has the support of the relevant U.S. Attorney, Deborah Rhodes, and the sentencing judge, Dean contends that it is high time that Aaron receives a pardon.

The Truth About the Philadelphia Archdiocese, Child Sex Abuse by Its Priests, and Its Latest Missteps

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Justia columnist and Cardozo law professor Marci Hamilton comments on recent events regarding the Philadelphia Archdiocese and clergy child sex abuse. She praises former Philadelphia D.A. Lynne Abraham and current Philadelphia D.A. Seth Williams for their courage and hard work in pursuing the matter, and establishing not only crimes, but also a cover-up. Hamilton notes that the trial of Msgr. William Lynn, who is charged with suppressing the identities of priest perpetrators, marks the first time a member of the Catholic Church’s hierarchy has been put on trial. Despite Pennsylvania’s short statute of limitations for child sex abuse, Hamilton explains, the prosecutors still found a way to make their case—finding two victims whose claims still fit within the statute of limitations, and successfully admitting evidence about 22 other victims whose claims are time-barred at trial. Hamilton faults the Philadelphia Archdiocese not just for the underlying crimes that are alleged, but also for the deficits of its own private investigation, which she argues has re-victimized the victims, given the insensitive way in which it has been conducted.

Iowa Passes an “Ag-gag” Law: The Power and Limits of Free Speech

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Justia columnist and Cornell law professor Sherry Colb comments on “ag-gag” laws, which prohibit people from gaining entry into, or employment in, an agricultural production facility, including an animal agriculture facility, under false pretenses. Colb notes that Iowa recently passed such a law, and that North Dakota, Montana, and Kansas also have such laws. Colb argues that the laws are aimed at concealing the true facts about how animals are treated in such facilities, because of the fear that if consumers knew the truth of the cruelty that is perpetrated there, they might change their eating habits. Supporters of that view see those who enter these facilities knowing they will convey information about them to the outside world as undercover reporters and whistleblowers, while the animal industries see them merely as trespassers. Colb details ways in which consumers are misled or misinformed about animal agriculture, suggesting that there is a need for undercover reportage so that the truth can be known. For instance, she explains how milk production entails slaughter, contrary to popular opinion, and not just on factory farms. Colb questions, though, whether consumers really want to know a truth that could complicate their lives with new ethical questions leading to possible dietary changes, and whether if consumers do learn that truth, they will really change their behavior. Colb also examines why humans may not feel empathy for animals, citing the coping strategies that often accompany humans’ acceptance of systematic violence, including violence toward other humans.

Another Frontier: Connecticut’s High Court Recognizes a Cause of Action for Sexual-Orientation Harassment in the Workplace

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Justia columnist and Hofstra law professor Joanna Grossman comments on a recent important decision from the Connecticut Supreme Court. As Grossman explains, the case arose when a manufacturing company failed to take action to stop the ceaseless name-calling that the plaintiff endured in his workplace regarding his sexual orientation. Even worse than the slurs themselves, some of the plaintiff’s tormentors would say the slurs while standing right behind the plaintiff while he was operating heavy machinery. Grossman begins by sketching the legal landscape (federal and state) regarding sexual orientation discrimination, and then goes on to focus on the law of Connecticut, where the employer was located, and the result the Connecticut Supreme Court reached in the case. Grossman also questions why the employer took the case all the way up to Connecticut’s high court when the illegality of the acts involved was quite clear.

Does the First Amendment Provide Protection for Facebook “Likes”? A Federal Judge Wrongly Says No

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Justia columnist and attorney Julie Hilden comments on a recent decision from an Eastern District of Virginia federal judge, who effectively held that the use of the “Like” icon on Facebook is not protected by the First Amendment. The case arose when the employees of a sheriff who was up for re-election decided to “Like” his opponent’s Facebook page. Once the sheriff was re-elected, he fired those employees (as well as others). But the fired employees who had used the “Like” icon sued, arguing that the sheriff had illegally fired them for the exercise of their First Amendment rights. Hilden takes issue with both the judge’s decision to rule against the fired employees, and his approach to the case, which caused him to refuse to interpret what the Facebook “Likes” meant. Citing Supreme Court precedent, Hilden notes that the High Court has often protected and interpreted symbolic speech, and that the Court, in the recent case of Morse v. Frederick, has interpreted the meaning of ambiguous speech as well. She thus concludes that the judge should have both interpreted the “Likes,” and also held that they were First Amendment-protected.

What Does the Pew Research Center’s Recent Survey Showing an Historically Low Favorability Rating of the Supreme Court Tell Us?

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Justia columnist and U.C. Davis law professor Vikram Amar comments on the results of a recent survey conducted by the Pew Research Center, regarding the percentage of adult Americans who hold a favorable view of the Supreme Court. Amar notes that the current percentage is 52%, a 25-year low. After describing the details of the Pew Survey, Amar considers the possible reasons for this low rating, suggesting that factors that may play a role include (1) The perception that the Court is no better than Congress (which gets low favorability ratings and is, obviously, partisan); (2) The impressions of the Justices that have been conveyed by some recent confirmation processes, particularly when nominees have made embarrassing gaffes that were ceaselessly repeated in the media, or have constantly avoided questions about the law; and (3) Republicans’ displeasure with the Court on social-issues cases, despite the Court’s conservative track record in its cases generally—and in certain blockbuster cases—over the last dozen years, in combination with what seems to be the advent of a more radicalized Republican Party.

The Pregnant Workers’ Fairness Act: Accommodating the Needs of Pregnant Working Women

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Justia columnist and Hofstra law professor Joanna Grossman comments upon the proposed Pregnant Workers’ Fairness Act (PWFA), which was recently introduced in the House of Representatives. Grossman explains that, if the bill becomes law, it will guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of their job, as long as the accommodation does not impose an undue hardship on the employer. Grossman explains the limited protections that federal law currently offers pregnant women, how even those protections have been narrowed by courts, and why further protections are needed. Grossman describes the holdings of relevant Supreme Court cases, explains the provisions of the 1978 Pregnancy Discrimination Act (PDA), and argues that the PDA’s protections are markedly insufficient, especially in light of the courts’ narrowing of pregnant women’s rights. Grossman concludes that the passage of the PWFA is urgently needed to ensure fair treatment for pregnant workers.

Facebook’s New “Organ Donor” Feature: Many Applaud It, but Some Raise Possible Concerns About Protecting Private Health Information

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Guest columnist and Justia writer and editor David Kemp comments on a new development on Facebook: users’ ability to add the fact that they have become organ donors as a “Life Event” on their Timelines. Kemp notes that the reason for this development is to encourage organ donation after death—and that it’s been very successful in doing so. He also comments on three likely reasons why Facebook chose this particular cause, as opposed to all the other causes that it might have promoted. While applauding the feature’s benefits, Kemp also considers some risks connected to the use of Facebook in this way—including the risk that other medically-related applications may lead to the disclosure of private health information, which could potentially implicate federal privacy laws. (Already, the “Life Events” application, Kemp points out, can reveal a broken bone or weight loss.) Ultimately, Kemp raises the question whether Facebook may evolve in such a way as to provide not just social networking, but also social engineering.

North Dakota’s Religious Freedom Restoration Act (RFRA) Signals Religious Lobbyists’ New and Disturbing Approach to Statute-based Free Exercise Rights

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Justia columnist and Cardozo law professor Marci Hamilton comments on past and recent developments regarding Religious Freedom Restoration Acts (RFRAs) on both the state and federal levels. As she explains, a RFRA functions as follows: If a religious believer carries his burden to prove that a given law places a “substantial burden” on his right to religious exercise, then the government must prove that the law it is seeking to enforce serves a compelling interest and is the least restrictive means to accomplish that interest, or the law will not be applied. Hamilton describes a typical RFRA, chronicles the history of RFRAs, and describes a kindred federal statute, RLUIPA, the Religious Land Use and Institutionalized Persons Act. She focuses especially on a recently proposed North Dakota RFRA, which is being introduced through the initiative process. In addition, Hamilton considers how RFRAs, if enacted into law, might affect school-voucher programs.

How the Government May, and May Not, Punish People’s Thoughts and Words

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Justia columnist and Cornell law professor Sherry Colb comments on instances in which the criminal law punishes people’s thoughts and/or words instead of—or in addition to—their acts, despite the First Amendment’s protections for speech and thought. Colb analyzes the uneasy relationship between criminal and civil litigation, on one hand, and guarantees of free speech, on the other. She also covers the categories of speech that the Supreme Court has deemed unprotected by the First Amendment. Moreover, Colb notes that it is perfectly constitutional to use a person’s words as evidence of what he or she has done, or is planning. In addition, Colb describes the subtle answer to the question of whether limits on free thought can constitutionally be imposed, for thought is the essence of culpability. Finally, she concludes by describing the permissible use of evidence of thoughts in determining what may be deemed a hate crime (as well as what may be deemed a violation of discrimination law).

Why the Cyber Intelligence Sharing and Protection Act (CISPA) Is Not the Solution to U.S. Cyber Attack Fears

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Justia guest columnist Anjali Dalal, Postdoctoral Associate in Law and Google Fellow, Information Society Project at Yale Law School, comments on the Cyber Intelligence Sharing and Protection Act (CISPA). Dalal argues that while cybersecurity is a very genuine concern for the U.S., CISPA’s approach is not the way to address that concern. Dalal makes four key points to support her thesis, contending that (1) CISPA could reach common, otherwise legal Internet activities; (2) that information received from private companies under CISPA could be used for purposes other than cybersecurity; (3) that CISPA appears to effect an end-run around the Fourth Amendment; and (4) that CISPA subordinates civil-liberties protections to national security concerns. Dalal also describes the next steps that we are likely to see in the battle over CISPA.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variet... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion at the University of Pennsylvani... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more