In the second in a two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their commentary on a Ninth Circuit decision regarding the use of peremptory challenges in jury selection to eliminate gay or lesbian jurors. Amar and Brownstein also note the strong possibility of additional developments that may follow in this area of law, and a host of others, regarding gay and lesbian rights, especially if intermediate level scrutiny is held by the Supreme Court, in the future, to govern all types of sexual-orientation-based discrimination.
In Part One of this two-part series of columns, Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss whether it violates the Fourteenth Amendment’s Equal Protection Clause for a lawyer to “strike” (that is, remove) individuals from a jury panel on account of their sexual orientation. Part Two in this two-part series of columns will appear on February 14.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, analyze a very intriguing issue raised by a case that will be heard by the U.S. Supreme Court next month, McCullen v. Coakley, in which the plaintiffs challenge a Massachusetts law limiting pedestrian traffic near abortion clinics, because they seek to speak with women who are about to have an abortion and to attempt to deter them from doing so. Amar and Brownstein focus on how such laws ought to be categorized under Supreme Court precedent.
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 Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, analyze an important and interesting decision, Demers v. Austin, involving the First Amendment academic-freedom rights of public school and university faculty members that was handed down last week by the United States Court of Appeals for the Ninth Circuit. Amar and Brownstein argue that that a more concrete and categorical framework for resolving academic freedom disputes than the Ninth Circuit's needs to be fashioned.
Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, comment on last week’s Supreme Court grant in Galloway v. Town of Greece, a case which raised the question whether it is constitutional for a Town board meeting to begin with a prayer that—while the Town claims that anyone can deliver the invocation—has in practice nearly only been delivered by Christian clergy. Amar and Brownstein agree with Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit that the Town’s practice constitutes an unconstitutional establishment of religion, and thus violates principles of religious equality. But they also contend that there is another important constitutional issue here, regarding religious liberty, as well, and they focus their column on that issue. They also contrast the roles of Town Boards and of State Legislatures in this context, and note why analogies to public schools are inapposite here.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the connection between a case about decriminalizing marijuana, and another case about gay and lesbian rights—and in particular, about sexual orientation change efforts (SOCE), which are now prohibited in California where those under 18 are involved. Amar and Brownstein describe SOCE methods, and the two cases, with very different judicial results, which confronted the question whether barring SOCE violates the First Amendment, and particularly the right of doctors to communicate with their patients. They then explain the central importance of the marijuana-decriminalization precedent when it comes to the SOCE cases, which may well end up before the U.S. Court of Appeals for the Ninth Circuit.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on an interesting lawsuit that involves both the Free Speech Clause and the Establishment Clause of the First Amendment. The suit was brought by a group of public high school cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games. Does the Establishment Clause forbid what they are doing? And does the Free Speech Clause come into play? Amar and Brownstein address the complex constitutional issues that the case presents.
Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on California’s law attempting to regulate demonstrations at funerals, as well as similar efforts by the federal government and other states. Amar and Brownstein consider whether such laws are consistent with the First Amendment. As they note, the issue has arisen due to the activities of the Westboro Baptist Church, a Kansas-based family group that has shown up to picket near the sites of funerals—including, often, military funerals. One of the group’s messages is that America is too tolerant of homosexuality. The group’s activities, Amar and Brownstein note, have already been the subject of a Supreme Court ruling, Snyder v. Phelps. In addition to analyzing the Snyder case, Amar and Brownstein discuss another analytical framework that they argue would better suit such cases than the one the Court invoked, and consider related questions such as how broad a no-picketing zone can be imposed to protect mourners’ privacy, and how long that zone can last, before and after a funeral.
Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, discuss the Supreme Court’s decision in United States v. Alvarez. As they explain, the case concerned the Stolen Valor Act, which imposes criminal penalties on those who falsely claimed to have been awarded the Congressional Medal of Honor or another medal granted by the United States. The Court had to decide whether the Act violated the First Amendment. Amar and Brownstein offer a subtle analysis of the various doctrinal moves that were made, in the case, by the Justices who joined the plurality opinion, the concurrence, and the dissent in the case, respectively. They focus especially on a search for a limiting principle that goes just far enough, but not too far, in the case, and target their analysis especially toward law professors who seek to teach the case, and students who seek to better understand it.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on a recent Washington State controversy that raises the issue whether a pharmacy must provide the emergency contraceptive known as “Plan B” if the pharmacy’s owner objects to doing so, based on his or her own religious beliefs. (Such pharmacy owners believe that life begins at conception, meaning fertilization; Plan B prevents the implantation of a fertilized egg.) Amar and Brownstein note that the case is important and interesting not just in itself, but also because it illustrates many of the unanswered questions that concern the First Amendment’s Free Exercise Clause. The federal judge who heard the case ruled in favor of the pharmacy owners, but was he right to do so? Amar and Brownstein consider the arguments on both sides, focusing especially on the Supreme Court case of Church of Lukumi Babalu Aye v. Hialeah, in which a church sought to sacrifice animals in its rituals even though doing so was against the law. They also consider variations of the fact pattern in the Washington State case itself, and consider whether they might yield different results.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the recent controversy regarding Department of Health and Human Services regulations regarding the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services, as part of the insurance they obtain through their employment; and on President Obama’s proposed compromise. With Obama’s proposal drawing fire from both sides, Amar and Brownstein describe the framework in which they contend that the issue should be analyzed. Acknowledging both the serious religious liberty interest here and the value to many women of insurance that provides contraceptive access, Amar and Brownstein note that often, acknowledging such an interest also confers a benefit on the religious organization or person. (For instance, a true conscientious objector gains the benefit of not having to go to war, despite his sincerity and despite his not seeking out that benefit.) Here, if a religious institution does not have to cover contraceptive services, it not only vindicates its beliefs, but also saves money. Amar and Brownstein contend that part of the ideal approach to such questions would minimize such secular benefits of religious observance. They also note that another part of the ideal approach would be mitigate or spread the costs of honoring religious liberty, so that they do not fall disproportionately or heavily on an individual or group. Finally, they apply their ideal approach to the controversy over the HHS regulations, suggesting that religious organizations that are exempted from the regulations be asked to provide some kind of alternative to compliance—just as a conscientious objector in wartime would.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, continue their series of columns on the Second Amendment and how courts have recently interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller, which—while it left many questions unresolved—did establish that there is an individual right to bear arms in certain circumstances. In this column, Part Two in the series, Amar and Brownstein comment on several recent right-to-bear-arms opinions from the U.S. Courts of Appeals. In a Ninth Circuit opinion, Nordyke, the judges agreed on the proper result, but very significantly disagreed on the analysis that should be applied—with each borrowing analogies from other areas of constitutional doctrine, such as free speech doctrine, to give just one example. But Amar and Brownstein question whether these analogies can really work, especially in light of the diversity of fundamental rights doctrine. In light of that diversity, they contend, the choice, in a gun rights case, among all the possible analogies to other rules relating to other rights must be well justified. To make matters even more complicated, moreover, Amar and Brownstein point out that in a D.C. Circuit opinion, Heller II, a totally different framework for reviewing gun regulations than the one the Ninth Circuit panel used, was employed.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, begin their series of columns on the Second Amendment and how courts have interpreted it, with a special focus on the Supreme Court’s decision in District of Columbia v. Heller. One of their key points is that Second Amendment doctrine needs to be developed and particularized in a number of ways, but that the Supreme Court has not given lower courts much guidance in this area of constitutional law. Though the Court has twice addressed the Second Amendment in recent years, it has left many questions open. With Election 2012 coming up, moreover, Amar and Brownstein point out that Second Amendment doctrine may become a political, as well as a constitutional-law, issue. In Heller, they explain, the Supreme Court made clear that there is an individual constitutional right to keep and bear arms, at least under some circumstances, but it is quite unclear where the Supreme Court and lower courts will go from there. Describing Second Amendment doctrine as a work in progress, Amar and Brownstein provide guidance on some of the questions that are likely to arise in the future.
Justia columnist Vikram David Amar, and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the latest ruling in the litigation regarding Proposition 8, the California anti-gay-marriage initiative. Amar and Brownstein begin by noting that this ruling holds that the initiative’s proponents have the authority to defend the initiative in California state court, now that elected representatives have declined to do so. They then summarize all the Prop. 8 litigation that has occurred thus far. In addition, they explain what may happen if this case reaches the U.S Supreme Court based on the standing issue it presents (that is, the issue of whether the parties at issue are legally able to bring this case). They cover a reason why the Supreme Court might decline to find federal standing: until now, initiative proponents have not been elected or specifically deputized by the people. Finally, they briefly discuss some other troubling questions regarding the Prop. 8 litigation that the California ruling did not address.
Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, assess the claim of Texas governor and presidential candidate Rick Perry that the U.S. Constitution’s Seventeenth Amendment—which provides for the direct election of U.S. Senators—was a mistake. Amar and Brownstein explain the original Constitution’s provision for state legislative election of Senators, and the thinking behind it, and the genesis of the Seventeenth Amendment. They also assess the Amendment’s costs, but note that if it were repealed, there would be costs to that decision, as well.