Articles Posted in Constitutional Law

Justia columnist and Hofstra law professor Joanna Grossman chronicles Hawaii’s role in the same-sex marriage controversy—including its being the site of the beginning of the modern battle over same-sex marriage, although back then, Hawaii did not itself legalize same-sex marriage. But as Grossman notes, 20 years later, Hawaii now finally has legalized same-sex marriage, thus closing the circle. She also explains why Hawaii’s action should never have had the impact it did, given the proper interpretation of the Full Faith and Credit Clause.

Justia columnist and Cardozo law professor Marci Hamilton comments on the recently argued Supreme Court case that asks whether it is constitutional for a small town to open its town council meetings with prayer. Hamilton’s conclusion is that the case ultimately turns on a single factual question: Can there be, in 21st Century America, such a thing as a “nonsectarian” prayer? The short answer, according to Hamilton, is “No way.”

Justia columnist and Hofstra law professor Joanna Grossman comments on the U.S. Senate’s passage of the Employment Discrimination Act (ENDA) of 2013, which would prohibit employers from discriminating on the basis of sexual orientation or gender identity. Although the measure is not predicted to survive the House, Grossman contends that its passage in the Senate is noteworthy and encouraging.

Justia columnist and attorney Julie Hilden comments on a case from the U.S. District Court of the Northern District of Illinois, which involved a public school grammar teacher who—after intercepting a student's note that included rap music lyrics—continued the discussion, which then moved on to the use of the “N Word.” Hilden argues that the teacher should not have been suspended without pay as a result of the “N Word,” the use of which, by a teacher, in context, should not have resulted in the teacher's punishment.

Justia columnist and U.C. Davis law professor Vikram David Amar, and Justia guest columnist and U.C. Davis law professor Alan Brownstein comment on the Supreme Court oral argument in the Town of Greece Establishment Clause case. As Amar and Brownstein explain, the case involves the interesting issue of the constitutionality of prayer at town board meetings.

Justia columnist and attorney David Kemp discusses a recent decision by the U.S. Court of Appeals for the Third Circuit requiring law enforcement officers to have a valid warrant before installing a GPS tracking device on a suspect’s vehicle. Kemp describes the facts of the case and the reasoning the court used to reach its decision. He argues that the court’s interpretation of the Fourth Amendment is not only correct, but also indicative of what is necessary to ensure that constitutional law keep up with the technology available to law enforcement.

Justia columnist and Cardozo law professor Marci Hamilton argues that a narcissistic worldview has infected debates over religious liberty in America, where, she notes, individuals are now demanding the right to construct their workplaces, communities, and schools in the image of their personal religious viewpoints. This is religious narcissism, Hamilton argues, and she compares it to the narcissistic viewpoint that critics of the Millennials say that many members of their generation often hold.

Justia columnist and attorney Julie Hilden comments on “revenge porn,” which occurs when a person agrees to provide nude photos to his or her partner during a relationship, but after the breakup, the partner posts the nude photos online, at times connected to the partner’s name or other information. Hilden notes that California now has a relevant law on this topic, but some think that the law is not sufficiently strong.

Justia guest columnist and Loyola Law School professor Paula Mitchell continues her series of columns on the death penalty, describing the punishment’s effect on jurors, justices, governors, and executioners. She presents testimonies from various people involved in different parts of the process of capital sentencing and execution. She concludes that the public should consider the impact capital punishment has on those individuals who have to make the decisions of life and death.

In Part Two of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her examination of Navarette v. California, the case in which the U.S. Supreme Court will decide whether anonymous tips are sufficient to create reasonable suspicion to support a stop by officers. The case involves the relationship between probable cause and reasonable suspicion, as well as the role of known informants and anonymous informants in helping police meet each of these standards, in turn, to shed light on what is normally required to justify an arrest or stop.

Justia columnist and attorney Julie Hilden comments on an updated California law that protects celebrities' children from the paparazzi, with penalties of jail time and hefty fines. Hilden suggests that the new law ignores serious First Amendment concerns, and that civil remedies, rather than criminal sanctions, might have been enough, particularly in light of those concerns.

Justia columnist and Hofstra law professor Joanna Grossman discusses the recent developments in New Jersey culminating in today’s first same-sex marriages performed in that state. She describes the relatively complex journey to marriage equality in that state and explains how the U.S. Supreme Court’s decision last term in United States v. Windsor led to the New Jersey Supreme Court refusing to delay enforcement of a lower court’s ruling striking down the ban on same-sex marriage.

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the Supreme Court case of Navarette v. California, which asks whether police may lawfully stop a vehicle for reckless driving on the basis of an anonymous tip. Colb explains why that question is difficult, for two key reasons.

Justia columnist and attorney David Kemp discusses a case argued before the U.S. Supreme Court on the first day of its 2013-2014 Term. That case, Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible.

How has a minority in the House been able to hold the country and the global economy hostage? Justia columnist and Cornell law professor Michael Dorf’s answer is a matter of ideology, politics, and constitutional structure. As Dorf explains, Congress was not designed to work with political parties and has only been awkwardly retrofitted to do so.

Justia columnist and attorney David Kemp describes two recent lawsuits filed in Virginia challenging that state’s laws prohibiting same-sex marriages. Kemp describes the two cases, explains why Virginia is a favorable venue for such legal challenges, and notes the prevalence of other similar cases around the country. Kemp concludes that the existence of so many cases challenging discriminatory laws must be seen as a step in the right direction for same-sex marriage advocates.

Justia columnist and Cornell law professor Michael Dorf contends that mass shootings will never lead to gun-control laws. While he notes that the gun lobby plainly plays a role in that situation, Dorf also sees the difficulty of getting such laws passed as a failure of democracy: Although more people favor than oppose additional gun-control measures, the gun-control opponents appear to favor gun rights with greater intensity than the intensity with which the majority favors gun control.

Justia columnist and University of Washington law professor Anita Ramasastry comments on a Southern California school district’s decision to retain a private firm to search the Web and look for public posts, photos, tweets, and other communications made by its students. The district’s stated purpose for retaining the firm is to prevent students from harming others—and, in particular, to stop cyberbullying. But Ramasastry notes that the company that does the monitoring also finds out a lot of other information about students, as well.

Justia columnist and attorney Julie Hilden comments on a recent Ninth Circuit case regarding the tension between the right to free speech and fears that such speech might spur school violence. Another issue that the case raises is whether the well-known Tinker test for public school student speech needs to be modified or augmented in the Internet Age.

For this year’s Constitution Day, Justia columnist and Cardozo law professor Marci Hamilton comments on three key flaws in the Constitution of 1787. She comments, specifically, on the original Constitution as to the issues of slavery, women’s suffrage, and the civil rights of gay men and lesbians.