Analysis and Commentary on Constitutional Law

Is the Defense of Marriage Act (DOMA) Indefensible? A Federal Court Says Yes, in Golinski v. OPM

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

A Louisiana Federal District Court Judge Strikes Down a Law Banning Registered Sex Offenders From Accessing Facebook and Other Social-Networking Sites Was It The Right Call?

Justia columnist and attorney Julie Hilden comments on a recent Louisiana federal district court decision striking down an extremely broad and vague law prohibiting registered sex offenders from accessing a large variety of websites. Hilden argues that the judge’s decision, which followed a bench trial, was plainly correct under First Amendment case law. Accordingly, she contends that Louisiana Governor Bobby Jindal is likely using the law, which he signed, and the decision, which he has vowed to appeal, for political purposes. Hilden also raises the questions whether any law restricting Internet access for ex-offenders could pass muster; if so, what it might look like; and whether individual websites’ policing themselves—or creating separate sections for adults and children—might be part of the solution.

Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram Amar comments on the Supreme Court and affirmative action—a timely subject due to the Court's recent grant of review in the case of Fisher v. University of Texas, which involves affirmative action in college admissions. Amar contends that, when it comes to this explosive issue, the two wings of the Court have both engaged in intellectual dishonesty, and he details how the Justices adopted their current distrust: Amar charges the Court's liberals with an unwillingness to apply meaningful strict, or even intermediate, scrutiny to race-based programs; charges its conservatives with the unfair treatment of remedial rationales; and takes issue with some Justices' treatment of history and precedent. Amar's analysis includes some shockingly out-of-context quotes that Justices, over time, have used to try to make their points in this highly controversial area.

Understanding the Misunderstandings on Both Sides of the U.S.-Chinese Financial Relationship: Who Is Taking Advantage of Whom?

George Washington law professor and economist Neil Buchanan comments on the financial relationship between U.S. and China—which he argues is far from as problematic as some claim. Buchanan covers the issues that have been raised regarding China’s holding U.S. debt; argues that the mutual China/U.S. dependence is ultimately healthy; discusses a possible worry on China’s part that the U.S. would accomplish a stealth repudiation of its debt through deliberate inflation, but deems that worry unrealistic; and considers whether the U.S. holds political power over China due to its holding our debt. Ultimately, Buchanan suggests, Americans should not be particularly concerned about the U.S.-China relationship, but should be quite concerned by the situation of the have-nots in both countries. Both governments, Buchanan concludes, need to ensure that the prosperity their country enjoys benefits not just the elites, but also the whole of society. While China is besting us in infrastructure improvements, he notes, it is not, at the same time, improving its citizen’s lives as it ought to. Yet the economic relationship between our two nations, he says, is sound.

Chipping Away at the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses two recent steps toward limiting the scope of the detention provisions of the National Defense Authorization Act (NDAA), the controversial, recently-passed federal statute regarding the military detention and trial of terrorist suspects. The first step was an Obama Administration policy directive that effectively negates an NDAA section that purports to require that non-citizens suspected of strong links to terrorism be held in military, not civilian, custody. The second step was the commencement of a Senate Judiciary Committee hearing on the Due Process Guarantee Act, which was introduced after the NDAA was enacted into law. As Mariner explains, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the U.S. against being detained indefinitely under a military rationale. Moreover, the Act would set a baseline prohibition on indefinite military detention in such cases, allowing such detention to be used only when Congress explicitly provides for it. Mariner sees these steps as constituting progress, but contends that amending the NDAA itself would have been a better remedy—especially as a presidential directive can always be reversed by a future president.

The Supreme Court Agrees to Hear an Affirmative Action Case Will the Justices Honestly Confront the Issues?

Justia columnist and Cornell law professor Michael Dorf comments on the Supreme Court’s recent decision to review a case involving race-based affirmative action in higher education.  As Dorf explains, the Court has not resolved an affirmative-action case since 2003, and thus this new case will be especially closely watched.  Dorf discusses the affirmative action precedents that the Court has already handed down, including the famous Bakke case, and the University of Michigan cases, Gratz and Grutter—the impact of which, Dorf explains, has been modest.  The new case that the Court will review, Dorf explains, involves the University of Texas's admissions system—which offers admission to all Texas students who rank in the top ten percent of their high school class, and also adds consideration of race as one of a number of factors in admissions decisions.  Dorf describes the issues the Texas case raises, and predicts that the Court's opinions—on both sides—will necessarily lack candor, as both liberals and conservatives pay lip service to an ideal of colorblindness, but do not actually hew to that ideal.

The Lessons We Should Take From the Recent Hearings on President Obama’s Contraception-Coverage Compromise, and Other Battles Involving Religious Lobbyists

Justia columnist and Cardozo law professor Marci Hamilton comments on the recent hearings regarding contraception coverage for employees of religiously-affiliated institutions. Hamilton starts by going back to the time of the Framers, and noting their concerns about the potential abuse of power by legislators. In the context of the contraception-coverage debate, Hamilton argues, Congress is being overly influenced by religious and religiously-affiliated institutions’ lobbyists. Those lobbyists’ religious arguments, she contends, lack any constitutional or statutory basis, especially now that the Obama Administration has offered a compromise, under which the institutions would not have pay for their employees’ contraception coverage; insurance companies would pay instead. Hamilton parallels this fight with an earlier Congressional controversy, regarding RLUIPA, the Religious Land Use and Institutionalized Persons Act. She argues that there, too, religious institutions’ lobbyists sought—and gained—more for such institutions than could possibly be justified, because legislators capitulated when they should have held firm.

A Federal Judge Thwarts Title VII and the Pregnancy Discrimination Act by Ruling Bizarrely That Lactation Is Not Related to Pregnancy

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent case that was brought by a woman who alleged that she was fired because, after giving birth, she asked if she could pump breast milk in a back room at her workplace. The judge held that she did not have a right to do so, under either Title VII, which prohibits discrimination based on gender, or the Pregnancy Discrimination Act. Grossman takes strong issue with the ruling, which reasoned oddly that lactation and pregnancy are somehow unrelated. Grossman notes that the lactation-discrimination conflict is part of a long-running war—involving employers, employees, insurance companies, state governments, and the federal government—about whether women, alone, should bear all the consequences, costs and hardships of reproduction, or whether their employers and/or others must play a part. In addition to the lactation-discrimination case, Grossman also covers prior cases involving contraceptive equity and infertility discrimination, as well as discussing the legal protections that woman can turn to when the reproductive process conflicts with work, and the role the EEOC has played in this area of law.

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

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.

The Supreme Court Decides the GPS Case, United States v. Jones, and the Fourth Amendment Evolves: Part Two in a Two-Part Series of Columns

In Part Two in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on the Supreme Court’s recent GPS (Global Positioning System) decision, which concerned the scope of the Fourth Amendment's protection against unreasonable searches and seizures. As Colb explains, the Court was unanimous regarding the decision’s result: The police had, indeed, performed a Fourth Amendment search or seizure by—without a warrant—attaching a GPS device to a suspect’s car, and then using the device to monitor the car's movements over a four-week period. Yet, as Colb points out, the Court was divided as to the reason for the result, offering two alternative rationales for the case's outcome. Here, in Part Two, Colb explains why Justices Scalia and Alito—both deemed to be conservative—nevertheless differed regarding what the proper rationale for the Court’s unanimous ruling ought to be. Colb argues that Justice Alito’s rationale is the more compelling of the two.

The U.S. Court of Appeals for the Ninth Circuit Strikes Down Proposition 8: Three Key Elements of the Decision

Justia columnist and Cardozo law professor Marci Hamilton comments on several key aspects of the recent decision, by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, holding that Proposition 8—the initiative constitutional amendment purporting to abolish gay marriage in California—violates equal protection. Hamilton focuses, in particular, on (1) the standing issue and the problems the initiative procedure raised; (2) the question whether Prop. 8 had any legitimate purpose, or was simply driven by animus toward gay people; and (3) why the U.S. Supreme Court is unlikely to take the case.

The Supreme Court Decides the GPS Case, United States v. Jones, and the Fourth Amendment Evolves: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent GPS (Global Positioning System) decision, which concerned the scope of the Fourth Amendment's protection against unreasonable searches and seizures. As Colb explains, the Court was unanimous regarding the decision’s result: The police had, indeed, performed a Fourth Amendment search or seizure by—without a warrant—attaching a GPS device to a suspect’s car, and using the device to monitor the car's movements over a four-week period. Interestingly, though, Colb points out that the Court was divided as to the reason for the result—offering two alternative rationales for the case’s outcome. Here, in Part One, Colb explains the seminal precedent of Katz v. United States, and other key Fourth Amendment precedents, including one that involved tracking a car with a beeper device. In Part Two, appearing here on Justia’s Verdict next Wednesday, February 15, Colb will consider why this case divided Justices Scalia and Alito.

The Beginning of the End of the Anti-Same-Sex-Marriage Movement

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.

How The Litigation Over California’s Anti-Same-Sex-Marriage Prop. 8 Gave Rise to a First Amendment Fight

Justia columnist and attorney Julie Hilden comments on a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, regarding videotapes of witness testimony in the Prop. 8 trial. The facts were as follows: Chief Judge Walker of the U.S. District Court for the Northern District of California, who presided over the trial, promised witnesses who supported the anti-gay-marriage Prop. 8 that the videotapes of their testimony would not be used except by the judge himself, in chambers, and he accordingly placed the videotapes under seal. However, Chief Judge Walker himself used some of the tapes during public appearances, and his successor, Chief Judge Ware, attempted to unseal the tapes despite Judge Walker’s promise to witnesses that the tapes would be kept under seal. Hilden notes the crucial difference here between a ruling, which can often be reversed or amended, and a direct promise to witnesses, on which the witnesses may rely. Here, the promise was especially grave, as witnesses suggested that they feared for their safety if the videotapes were to be released.

English Language Proficiency and Elective Office in the Southwest: An Arizona Ballot-Access Case Poses Important Questions

Justia columnist and U.C., Davis law professor Vikram David Amar comments on an interesting Arizona case involving the question whether candidates for office can be required to be proficient in English. As Amar explains, the case arose from a dispute in San Luis, Arizona, a small southwestern city where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. There, the Mayor has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, and has sought to block her name from the ballot on the ground that she is not proficient in English. In so doing, the Mayor invoked longstanding Arizona law. After an expert found Cabrera not to be sufficiently proficient in English, her name was removed from the ballot. She now seeks relief from the Arizona Supreme Court. Amar considers precedents and analogies that are relevant to whether Cabrera should win her case.

Repealing the NDAA

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the Due Process Guarantee Act of 2011—a bill that states that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the U.S., unless Congress explicitly provides for such detention. As Mariner explains, this clear-statement rule would offer citizens and resident non-citizens in the U.S. default protection against indefinite detention without charge, unless Congress plainly authorized such detention. Nevertheless, Mariner notes that she is of two minds about the Act. On one hand, Mariner believes that the Due Process Guarantee Act would effect a welcome change to the detention provisions of the controversial NDAA (National Defense Authorization Act) regarding U.S. citizens and lawful permanent residents of the U.S. On the other hand, though, Mariner points out that the Due Process Guarantee Act would do nothing to solve the problem of the indefinite detention, by the U.S., of non-resident aliens at Guantanamo—which Mariner contends is, by far, the U.S.’s most urgent and glaring detention problem.

The Montana Supreme Court Arguably Flouts the Citizens United Ruling: Will It Be Reversed?

Justia columnist and former counsel to the president John Dean comments on a recent Montana Supreme Court (MSC) ruling that purports to find an exception to the U.S. Supreme Court’s ruling in its Citizens United v. FEC decision. (Citizens United held that corporate campaign contributions are protected as political speech under the First Amendment of the U.S. Constitution.) However, the MSC held that Montana’s own statute, the Montana Corrupt Practices Act, with its ban on corporate contributions, was importantly different from the ban on corporate campaign money that had been at issue in Citizens United, in part due to Montana history. In support of its holding, the MSC reasoned that Montana had a compelling state interest in the enforcement of the Act—especially as the evidence showed that the passage of the Act had been spurred by the situation that existed when it was passed, one hundred years ago, when Montana government was deeply corrupted by corporate influence. Dean notes that it is unclear whether the Supreme Court will intervene here—and whether, if it does, Montana’s unique history and special vulnerability to corporate influence, based on a number of factors, might save its longstanding statute.

New York City and State Consider Seeking to Reverse the Second Circuit’s Decision in the Bronx Household of Faith Case, Regarding Whether a Church Can Make a Public School Its House of Worship

Justia columnist and Cardozo law professor Marci Hamilton comments on a New York church-and-state case in which the U.S. Supreme Court recently declined to grant review. As Hamilton explains, the case concerned a religious group, the Bronx Household of Faith, which sought to continue to use a public middle school on the weekends for Christian worship services, followed by a “fellowship meal”—without providing payment to the school, and while taking advantage of the free use of the school’s utilities. A three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled, 2-1, against the Bronx Household of Faith, on the ground that the group did not have an “all comers” policy. Indeed, Hamilton notes, Bronx Household specifically excludes anyone who is not baptized, who is excommunicated, or who advocates the Islamic religion. Hamilton argues that both the Second Circuit panel’s decision and that of the U.S. Supreme Court were clearly correct as a matter of constitutional law. And yet, she notes, New York City and New York State are now hearing arguments to once again open the public schools to religious groups, including groups that lack “all comers” policies.

The Supreme Court’s Decision in Golan v. Holder: Can the U.S. Government Constitutionally Pull Works Out of the Public Domain?

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent decision in Golan v. Holder, which allowed certain works by foreign authors to be pulled out of the U.S.’s public domain, and put under U.S. copyright protection. The works’ status had been changed by statute, so that the U.S. could comply with an international treaty. Drawing heavily on its prior copyright-extension decision in Eldred v. Ashcroft, the Court allowed the works at issue in Golan to be newly subjected to copyright—despite arguments to the contrary that were based on the Copyright and Patent Clause, and on the First Amendment. In dissent, Justice Breyer, joined by Justice Alito, argued that the public-domain works at issue ought to retain their current status, due in part to First Amendment concerns; in part to practical problems, such as problems with “orphan works,” the copyright status of which is difficult and costly to determine; and in part to a utilitarian reading of the Clause.

The Lower Court Rulings in Nordyke and Heller II Highlight Judicial Confusion Over Gun Rights: Part Two in a Two-Part Series on the Ways in Which Lower Courts and the Supreme Court Will Need to Flesh Out Second Amendment Doctrine

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.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Befo... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has w... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of L... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family Pavi... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of... more

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior... more