April 4, 2009
Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review
Mary Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L. J. 1131, 1148-49 (1979).
Turning to the work of Mary Dunlap (1949 - 2003), the pioneering law professor and litigator, seems appropriate the day after the Iowa Supreme Court's opinion in Varum v. Brien (our most recent post here) and as the California Supreme Court continues to deliberate on the constitutional challenge to Proposition 8 (our most recent post here). Dunlap did not live to see the United States Supreme Court overturn Bowers v. Hardwick, a case she called a "grievous loss," and it is difficult not to wonder what she would think about post-Lawrence developments, especially in the area of state constitutional opinions finding same-sex marriage prohibitions unconstitutional. It is easy, of course, to assume she would have been overjoyed. However, it is also possible to imagine the ways in which she might criticize constitutional doctrine for continuing to reify the "present paradigm of two sexes" or to regulate sexual freedom.
Indeed, the entire volume of the Hastings Law Journal issue in which Dunlap's piece appears invites reflection. Published in March 1979, it is entitled "Sexual Preference and Gender Identity: A Symposium," with a full page dedication to Harvey Milk, 1930 - 1978, complete with a large photo of the murdered San Francisco Board of Supervisors member. The volume opens with the classic article by another pioneering law professor - - - Rhonda Rivera, entitled "Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States," and also includes an article by constitutional scholar David A.J. Richards (now at NYU), entitled "Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution."
While many of the specific doctrinal issues discussed in these articles may seem dated, the theoretical perspectives and constitutional arguments remain current. These articles from 1979 can be difficult to find in electronic copy, but are worth a trip to a law library's shelves.
April 4, 2009 in Fundamental Rights, Gender, Interpretation, Profiles in Con Law Teaching, Scholarship, Sexual Orientation, Sexuality, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack
Sebelius(es) on Federal Burdens on States
Kansas Governor Kathleen Sebelius, whose Senate confirmation as HHS Secretary both started and stalled this week, and Georgetown and Kennedy School student Ned Sebelius co-authored an article in the Harvard Law & Policy Review, the official journal of the American Constitution Society, titled Bearing the Burdens of the Belway: Practical Realities of State Government and Federal-State Relations in the Twenty-First Century. The piece is a very practical (i.e., non-theoretical) review of federal-state relations over the past eight years from the perspective of a (Democratic) governor implementing federal mandates ofa (Republican) Congress and President.
The authors argue that federal mandates during the early twenty-first century are overwhelming the states, especially in the current economic crisis. Moreover, the types of federal bullying--failing to repay states for implementing federal program requirements, and setting caps, not floors, on state policy initiatives--are particularly burdensome and hamstring those states that seek to take initiative in areas where thefederal government dropped the ball.
They argue that federal strings in any single program may amount merely to "coercion" (acceptable under South Dakota v. Dole), when taken together unfunded federal mandates amount to compulsion.
The authors look at No Child Left Behind, SCHIP, and the State Criminal Alien Assistance Program and REAL ID to bring a very practical perspective to federal state relations.
The article is unselfconsciously political, but that may make it all the more interesting an illustration of a governor's perspective on federal mandates. It'll be especially interesting to see how this perspective informs the likely Secretary Sebelius, as she takes charge of an agency with many and varied cooperative federalism programs.
April 3, 2009
Analysis of Iowa Supreme Court ruling on same-sex marriage
The first footnote of the 33 footnotes in the Iowa Supreme Court's opinion in Varum v. Brien (pdf of full opinion in post below) quotes the motto on the state flag: “Our liberties we prize and our rights we will maintain.” This reference is in keeping with the Iowa Supreme Court's vision of Iowa at the forefront of civil liberties:
In each of those instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the “absolute equality of all” persons before the law as “the very foundation principle of our government.”
Opinion at 17-18 (some citations omitted).
In considering the issue of the constitutionality of the state statute prohibiting same-sex marriage, the Iowa Supreme Court interprets its state constitutional provisions of equal protection: Iowa Const. art 1 § 16 provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens;” Iowa Const. art. I, § 1 provides: “All men and women are, by nature, free and equal . . . ." The Court's opinion is a model discussion of the tiers of equal protection - great for classroom use.
The Iowa Supreme Court concludes that the classification the state is making is one of sexual orientation (not gender, as had been argued and as some other courts have found). In deciding what level of scrutiny should be applied, the Iowa Supreme Court looked to four factors, derived from United States Supreme Court precedent, and rooted in Carolene Products footnote 4:
- (1) the history of invidious discrimination against the class burdened by the legislation;
- (2) whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
- (3) whether the distinguishing characteristic is “immutable” or beyond the class members’ control; and
- (4) the political power of the subject class.
Applying these factors, the Iowa Supreme Court decided that the "sexual orientation" classification merits intermediate (heightened) scrutiny.
In its application of intermediate scrutiny, the Iowa Supreme Court considered the governmental objectives proffered by the state: support for the “traditional” institution of marriage, the optimal procreation and rearing of children, and financial considerations. Again, in a model of analytic clarity, the Iowa Supreme Court looked at whether each government interest was "important" and then whether each government interest was substantially related or fairly advanced by the classification.
Regarding the traditional institution of marriage state objective, the Iowa Court found that "A specific tradition sought to be maintained cannot be an important governmental objective for equal protection purposes, however, when the tradition is nothing more than the historical classification currently expressed in the statute being challenged." Opinion at 52. Regarding the other three objectives, the Iowa Supreme Court found the problem was that the classification did not substantially further the government objective.
In its last pages, the Court's opinion addresses the "religious opposition" to same-sex marriage, "left unspoken" by the state, concluding that this silence reflects a correct belief that religious sentiment cannot be used as a reason to justify a ban on same-sex marriage under the state constitution. Opinion at 63-64. The Iowa Supreme Court also considers the remedy - rejecting the approach of other states regarding legislative equivalents such as civil unions and concluding:
IOWA Same-Sex Marriage
Although the Iowa Supreme Court website has "crashed" due to traffic, the first "twitter" reports are that the Iowa Supreme Court has declared the state's opposite-sex only marriage law unconstitutional.
Updates to follow:
* DesMoines Register story now available here.
* Unanimous Opinion in Varum v. Brien available as pdf here.
April 2, 2009
EZ Pass, Dormant Commerce Clause & Equal Protection Right to Travel
Could be a nice exam question.
Habeas Extends to Bagram, Afghanistan, District Court Judge Rules
Judge Bates ruled that three foreign nationals, detained outside of Afghanistan and brought to Bagram for detention, could challenge their detention in federal court under the Supreme Court's ruling in Boumediene v. Bush. (The Court in that case held that the privilege of habeas extends to detainees at Guantanamo Bay.) Bates:
Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene--they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be "enemy combatants," a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumedienereceived. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the "objective degree of control" asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the "practical obstacles" inherent in resolving a Bagram detainee's entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war. But those obstacles are not as great as respondents claim, and certainly are not insurmountable. And importantly, for these petitioners, such practical barriers are largely of the Executive's choosing--they were all apprehended elsewhere and then brought (i.e., rendered) to Bagram for detention now exceeding six years.
Bates ruled that a fourth detainee, an Afghan, could not similarly challenge his detention in federal court, because "practical obstacles"--"friction with the 'host' country"--"tip the balance of the Boumediene factors against his claim to habeas corpus review."
This is obviously a major ruling and significant victory for an unknown number of detainees at Bagram. (Bates was careful to limit his opinion: only non-Afghans captured outside of Afghanistan and subsequently transferred to Bagram enjoy the privilege under his ruling. We don't know how many fit this category.) The administration has not yet indicated whether it will appeal.
A couple things to note in Bates's ruling. First, he ruled that the Court in Boumediene invalidated Section 7 of the Military Commissions Act of 2006--the section that amended the federal habeas staute to deny habeas to "enemy combatants"--as applied to detainees at Guantanamo, and not on its face. This is hardly a surprise, given the the way the Court circumscribed its ruling in Boumediene. But as a result, Bates ruled that Section 7 continued to bar Bagram detainees from asserting habeas in federal court under the federal habeas statute. (Detainees in this case thus relied upon the "constitutional right to habeas corpus as protected by the Suspension Clause"--the same way the Boumediene detainees got into federal court.)
Bates also subdivided the Boumedienefactors into six, plus a "tacit" seventh: (1) citizenship of the detainee; (2) status of the detainee; (3) adequacy of process through which the status determination was made; (4) "nature of the site of apprehension"; (5) "nature of the site of detention"; (6) practical obstacles in resolving the detainee's entitlement to habeas. There's nothing really controversial in this subdivision. But Bates's seventh, "tacit" factor--"the length of a petitioner's detention without adequate review"--is new. This factor--from Bates's reading of the Court's concern in Boumediene with potential indefinite executive detention--reflects Bates's concern throughout the opinion with unchecked executive authority to detain. He flatly rejected the administration's separation-of-powers argument for exactly that reason: "The writ is a judicial check on Executive detention."
Finally, Bates noted that the practical difficulties in extending habeas to Bagram are "significantly mitigated today by technological advances." He cited video-conferencing of detainees at Guantanamo as an example of how technology may help overcome challenges in allowing Bagram detainees access to U.S. courts.
In some ways, Bates's ruling is an unsurprising extension of Boumediene. He carefully compares a narrow class of Bagram detainees--aliens who were captured outside of Afghanistan and rendered there for detention--to Guanantamo detainees and quite reasonably concludes that their situations are almost exactly the same.
Even so, the decision is a significant step in opening up U.S. courts to foreign detainees to challenge their detention and in judicial checks over the President in executing a war.
Politically, this could be a tremendous gift to the Obama administration in dealing with detention policy left over from the Bush administration at Bagram. If the administration declines to appeal, for example, it might use the decision as political coverto expedite the release or transfer of these detainees. In other words, the decision could help the administration dodge those inevitable claims that it's soft on terrorism by allowing it to blame it on the courts.
Whether the administration appeals or not, this should be a swift kick to reevaluate overseas detention policies. If the administration don't do it now, it may find itselves doing it through innumerable habeas claims in federal court.
April 1, 2009
Fate of the Uighurs at Guantanamo
The NYT reports today that the Obama administration may be accelerating its decision on what to do with the Uighurs, the Chinese Muslims detained at Guantanamo Bay. According to the report, administration officials interviewed the 17 Uighurs to "assess their suitability for release, perhaps in the United States." I posted most recently on the Uighurs here.
The article also provides a fascinating and disturbing account of how the Uighurs ended up at Guantanamo in the first place, and why so many still think they're a danger--or why they "could potentially be terrorists, according to one member of Congress--even after the Bush administration said they weren't "enemy combatants," and even after a federal court ridiculed the basis for their detention and ordered their release.
March 31, 2009
Neglected Supreme Court Justices
Vanderbilt Law Review just published a symposium issue on neglected Supreme Court justices. Articles cover Samuel Chase (1796-1811), William Johnson (1804-1834), Bushrod Washington (1798-1829), John Catron (1837-1865), John McLean (1829-1861), David Brewer (1889-1910), Rufus Peckham (1895-1909), George Sutherland (1922-1938), Pierce Butler (1922-1939), and Sherman Minton (1949-1956). Articles are available at the link, above; check it out.
March 30, 2009
Notes on the Court, Part I
Today in Slate Magazine, Dalia Lithwick has an article outlining the ever-popular SCOTUS parlor game "Who's Out First?" As usual, our most likely candidates are Souter, Stevens, and Ginsberg, roughly in that order. The article is also noteworthy because it describes - in detail - why high drama is the rule, rather than the exception when there is a vacancy on First Street. Here are some of the best quotes:
[P]erhaps at least some of the growing support for term limits for the justices and proposed mechanisms to remove them if they become infirm have come about because the public feels so completely cut out of this decision-making process and very much at the mercy of the justices' secret plans.
Sandra Day O'Connor was essentially forced off the court in 2005 . . . Faced with the choice between retiring that spring and potentially serving two more years, O'Connor felt pressed to step down
It's worth remembering that each of these likely suspects for retirement comes from the court's liberal wing. Which means President Obama will replace any of them with a like-minded liberal centrist, and the net effect on the court as a whole will probably be minimal. That might incline any of them to leave sooner rather than later, but not necessarily this June.
It's a truly enlightening article. Enjoy!
Scalia Speaks Out
Justice Antonin Scalia last week gave a series of wide-ranging interviews with Peter Robinson of the Hoover Institution. Audio is available here, thanks to the Federalist Society. Segment titles include "Why the Constitution 'is not living, but dead,'" "Why originalists have lost so much ground to devotees of a living Constitution," and "Roe v. Wade--and other mistakes of the past 50 years." Check these out.
CFP: Supreme Court Preview
The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its Supreme Court Preview issue.
Volume II of the law review had a forward by then - Senator Barak Obama (available on the Review's website).
FROM THE LAW REVIEW EDITORS:
We welcome an article or essay addressing a case before the Court in its October 2009 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court.
Last year, our Supreme Court Preview included a diverse spectrum of works ranging from articles that examined cases argued in the Court’s October 2008 Term to articles that analyzed current voting trends among the Court. For example, in Crime Labs and Prison Guards: A Comment on Melendez-Diaz and Its Potential Impact on Capital Sentencing Proceedings, John Blume and Emily Paavola argued that the Court’s decision in Melendez-Diaz v. Massachusetts could resolve conflicting authority on what constitutes testimonial hearsay under Crawford v. Washington and could have a dramatic impact on the criminal justice system, particularly capital sentencing proceedings. Alternatively, in The Roberts Court and Criminal Justice at the Dawn of the 2008 Term, Professors Christopher E. Smith, Michael A. McCall, and Madhavi M. McCall introduced empirical decision-making patterns from the initial three terms of the Roberts Court in an attempt to ascertain how the Court would likely determine three Fourth Amendment cases in the Court’s October 2008 Term. The Supreme Court Preview is published to coincide with the opening of the October Term 2009, and we therefore ask that work be submitted no later than August 1, 2009. Submissions will be reviewed on a rolling basis beginning July 1, 2009. If you have any questions about our Supreme Court Preview, please contact Ben Garner, Editor in Chief, via email at
bgarner [ at ] charlestonlaw.edu or via telephone at (434) 941-9831.
March 29, 2009
Chafetz on Executive Contempt of Congress
As is well known by now, the House Judiciary Committee last spring filed a complaint in federal court against former White House Counsel Harriet Miers and then-Chief of Staff Josh Bolton for contempt for failure to comply with Congressional subpoenas in the Committee's investigation into the Bush administration firing of U.S. attorneys. The district court ruled for the Committee, but the D.C. Circuit stayed the ruling pending appeal and denied the Committee's motion for an expedited appeal. (Under an agreement announced earlier this month, Miers and Karl Rove will testify under oath, but only to questions on attorney firings, and not to conversations with Bush or with members of the White House Counsel's Office.)
With all the activity, few seemed seriously to delve into this question: Why did the Committee seek to enforce its subpoena in the courts?
This is the question Josh Chafetz (Cornell) takes on in his excellent and thorough review of Congress's contempt power and its power of enforcement in his recently posted piece Executive Branch Contempt of Congress, also forthcoming in the U. Chicago Law Review. Chafetz argues provocatively that while the Committee certainly has the authority to bring the case in court, other enforcement measures could have been more effective and less power-ceding.
Chafetz starts with a comprehensive historical review of enforcement of legislative privilege, including contempt, that is well worth the read on its own. (Chafetz is no newcomer to the history of legislative privilege; he's also the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale).) Chafetz traces the history of parliamentary privilege from 1290, when the Prior of the Holy Trinity cited the Earl of Cornwall to appear before the Archbishop of Canterbury, to legislative privilege in state legislatures before 1789, to Congressional contempt in the Miers case. Not all of these involve privilege asserted against an executive (or crown); but Chafetz argues that this doesn't matter: "The case for an inherent contempt authority is, if anything, stronger in the case of executive branch officials than in that of ordinary citizens." The points are that Congressional contempt--independent of judicial enforcement--has a long and impressive pedigree, and that Parliament, state legislatures, and Congress have used a variety of unilateral enforcement methods. As Chafetz points out, turning to the courts is simply another method, and a very recent one at that.
Chafetz then argues in the core of his paper that Congress has plenty of more effective alternatives, and that in seeking judicial enforcement Congress actually cedes power to a third, otherwise uninterested branch. Chafetz explores Congressional arrest and detention, impeachment proceedings, and stalling presidential appointments and executive agendas as unilateral enforcement methods. "Importantly, none of these options require cooperation from another branch. None of them constitutes a concession by Congress that it is unable to carry out its constitutional role without help."
But they may require or lead to other bads, perhaps even a constitutional crisis. (Chafetz's historical examplesthemselves show the serious problems that can come from unilateral enforcement of parliamentary or legislative privilege.) Just imagine if Congress ordered the arrest Miers or Bolton in last spring's political climate and against the famously unyielding Bush administration; Congress might reasonably have sought to avoid that inevitable clash of armed officers. And Congress might deem it better policy not to block important appointments while the country is dealing with wars in Iraq and Afghanistan and the myriad attendant issues, or to block legislation when the country is dealing with a financial crisis. In short, maybe the recent cases of judicial enforcment reflect sound political and policy considerations--that Congress is willing to trade any loss of power in judicial enforcement for the significant bads that might come from any course of unilateral enforcement. Or maybe Congress was simply trying to gain some judicial leverage in its negotiations with the Bush White House (which, ultimately, may have been successful).
In any event, Chafetz provides answers, which make his piece all the more timely (and certainly not preempted by the early March agreement). This is a thoughtful and important piece. I highly recommend it.
Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional?
Yes, according to George Will here.
Will provides this hypothetical (worth reading for ConLawProfs contemplating writing exam questions):
Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.
His conclusion: "Surely this would be incompatible with the Vesting Clause."
This is an argument that will probably be surfacing again.
"too much law" & Judicial Bias (among other problems)
of Phillip K. Howard's book, Shall We Get Rid of the Lawyers? Lewis begins with a recollection:
Justice Hugo L. Black once told me that he thought all government departments and agencies should be abolished every five or ten years. Black was a senator from Alabama for ten years and a Supreme Court justice for thirty-four, and he knew just about everything there was to know about how government works. His startling idea—and I think he was serious—was his way of dealing with the encrustations of bureaucracy. Reading Philip K. Howard's book, I suddenly recalled Justice Black's remark. Not that their concerns are the same, just the sweeping character of their responses.
Lewis also opines on Caperton v. Massey, which we've most recently blogged here,
The Supreme Court evidently had difficulty deciding whether to hear the case, considering it at several conferences before granting review, and it is easy to understand why. Does the Court want to get into the business of deciding whether a state judge's refusal to recuse himself is a violation of the federal Constitution? How much of a campaign contribution should disqualify a judge from sitting on the contributor's case? If expensive judicial elections are allowable, where do we draw such lines? On the other hand, the claims of elementary justice here seem strong.
Lewis doesn't convince me that the book is worth reading; but I'd say Lewis' review certainly is worth a look.