Constitutional Law Prof Blog

The Constitutional "Gay Agenda": Robson's Saturday Evening Review

The Matthew Shepard Hate Crimes Act, ENDA, the repeal of "Don't Ask, Don't Tell" in the military, same-sex marriage and DOMA - - - these are often considered the "gay agenda."  Indeed, President Obama's anticipated speech tonight at a Human Rights Campaign dinner in Washington, DC, is expected to cover many of these issues, although according to preliminary reports, Obama's message will be one of patience and temperance, disappointing many activists.

(Update: These preliminary reports were confirmed after the speech, NYT here, WaPo here; the text of the speech is on whitehouse.gov here).

Yet not all "activists" would agree that the conventionally described "gay agenda" should be the goals of any LGBT legal reform movement.  Libby Adler (pictured below) ConLaw Prof at Northeastern University School of Law, argues that the ongoing "culture war,"  "while a fundraising boon and a media draw, compels a particular type of participation and a particular reform agenda, eclipsing reform possibilities that might be preferable in the long run." 

In her article, The Gay Agenda, 16 Mich. J. Gender & L. 147 (2009), available in draft form on ssrn here,  Adler not only seeks to transcend the "culture wars," but argues that goals of "formal equality" between "gay and straight people," need to be replaced by goals enabling law "to create the best possible conditions against which a broad array of people can make choices."  In the context of the application of Loving to same-sex marriage arguments, Adler writes:

Formal equality has its merits, but it is not incontrovertible that formal equality is the highest value that law reformers could be pursuing at all times.  For one thing, the very term formal equality exists in opposition to substantive equality, and—as any student of affirmative action or workplace accommodations for working mothers will report—these goals can conflict.  A formal equality agenda can eclipse or even undermine other potentially worthy goals.  .  . . [t]he benefits of formal equality stand counterpoised to the costs associated with the pursuit of formal equality.  While the attainment of formal equality has undeniable fairness appeal, the pursuit takes place in the context of a culture war which is waged in normalization and rights discourses.

Instead, Adler posits several law reform agendas.  As a central example, she uses homeless adolescents.  By combining critical theory and real lives, Professor Adler demonstrates a methodology to assist the rethinking of "the gay agenda" as well as equality.

This is a thought-provoking and necessary article, worth reading (if you haven't already done so) and assigning.

RR

JUDICIAL VALUES: SHOULD JUDGES JUST APPLY THE LAW - OR SHOULD THEY BRING THEIR OWN VALUES TO THE TASK?: Forum

The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one.  Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.  

The participants include Justice Michael Kirby (former High Court Justice) and Professor Reg Graycar (University of Sydney), who were most recently discussed on Constitutional Law Prof Blog here and here, as well Professor Justin Malbon of Monash University and Bernhard Schlink.

 Schlink, of course, is the author of the bestselling novel The Reader,  which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime.  The book was made into a popular movie in 2008.  

Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany. 

The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report."  The publicity frames the discussion this way:

The [Australian] High Court attracted enormous criticism after the Mabo and Wik decisions [relating to Aboriginal land claims] for changing the law to suit the personal values of the (unelected) judges. Judges during the Nazi and South African apartheid eras were criticised for merely applying the law, and were accused of being accomplices to those grotesque regimes. Should judges apply their “judicial values” to their judicial tasks?

Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.

RR

DOMA is unconstitutional says Larry Tribe

Quoting Larry Tribe, Con Law Prof, Huffington Post reports that Tribe has stated:

"I certainly agree (a) that Section 3 of DOMA is unconstitutional, at least as applied to couples like those who are currently challenging it in federal court here in Massachusetts.... I'm not at all reluctant to have it known that I think the equality component of the Fifth Amendment's Due Process Clause forbids the federal government to deny same-sex spouses benefits identical to those that it would grant to opposite-sex spouses when the spouses are "married" under the law of their state -- that is, when the spouses were married and reside in states where the law forbids a distinction between same-sex and opposite-sex marriage and rejects the DOMA definition of 'marriage.'"

The HuffPo piece by Emma Ruby-Sachs notes that Tribe "hired Obama as a research assistant in his first year of law school."   The implication is that Obama is influenced by his former conlawprof?  One might also look at Professor Obama's 1996 Con Law exam "feedback" regarding a lesbian issue, discussed here. 

The DOJ has until June 29 to decide whether or not to defend the DOMA challenge, discussed here.  The federal government's stance on the lawsuit is being closely watched.  Obama is being criticized for not keeping his campaign promises to LGBT Americans.  Obama's most recent statement on LGBT issues, blogged here, is also being criticized as insufficient as well as too radical. 

DOMA was signed by then-President Bill Clinton in 1996 (pictured below).

RR

Obama's Constitutional Law Exam and Feedback

Interested in a Constitutional Law III examination and feedback from 1996?   What about if the Professor was the now-President Barak Obama?

The first question on the exam involves a lesbian seeking to obtain IVF despite a law that the "state legislature passed a law last year, titled the “Preservation of Family Values Act” (PFVA), that, inter alia, prohibits any doctor or health care professional, whether in private practice or employed by the state, from providing infertility services to any unmarried person within the State of Wazoo."  The question asks students to address both equal protection and substantive due process claims.

The second question involves an African-American mayor considering two affirmative action policies - one regarding city contracts and the other involving  the hiring of firefighters and the civil service examination.   This question specifically asks students to argue both sides, provide a considered conclusion, and to "feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum."

The full exam is here.  The feedback, here, is twelve pages and in the form of a discussion rather than a checklist or model answer.   It was an open book examination and students had six hours, although as the instructions assert: "The exam is designed, however, to be completed in approximately three hours. Feel free to use the extra three hours as you wish (anxiously flipping through the casebook for that one last citation, or heading over to the gym for a good workout - your choice)."

Thanks to Alana Chazan, class of 2009 CUNY School of Law, for these documents, which are from the NYT blog from July 2008 here, along with other exams and syllabi and comments from conlawprofs.  And yes, it did make me look for the exam I gave and the feedback from 1996, although I am about to admit defeat unless I can find a floppy disk reader!

RR

Lesbian (Gay) Supreme Court Nominee Possibility

“To start with, we need a lesbian on the Supreme Court.”

Or so I once said, in an interview: “It was the summer of 1992, the last summer of the Reagan-Bush regime, although the demise of that era was far from certain. I was being interviewed by a gay and lesbian magazine for a feature article about the Supreme Court. I was staying in Provincetown, a place renowned for its lesbian/gay culture, surrounded by lesbians of every ilk. . . . when the interviewer  asked me a general question about changing the United States Supreme Court, I replied that we should start with the appointment of a lesbian.  My proposal, glib as a Provincetown summer, implicitly asserts lesbianism would be a relevant quality of a United States Supreme Court Justice.”

The specter of a lesbian Supreme Court Justice raises an issue that has troubled lesbian and political theory, the issue of identity politics.  The rest of the article, The Specter of a Lesbian Supreme Court Justice: Problems of Identity in Lesbian Legal Theorizing, 5 St. Thomas Law Review 433 - 458 (1993), analyzes identity politics circa 1992.

Now, seventeen years later, identity politics remains an issue and at least two lesbians are thought to be contenders for the Court. The story has been buzzing around for a while,  it makes its appearance on Politico here:

Either Kathleen Sullivan or Pamela Karlan, both law professors at Stanford, could become the first “openly gay” Supreme Court justice.

Sullivan is former dean at Stanford and teaches Constitutional Law.

Karlan is a former clerk to Justice Blackmun and Director of Stanford's Supreme Court Litigation Clinic.

POLTICO also reports that ”in response to questions from POLITICO in recent days, White House aides declined to say whether sexual orientation was among the diversity factors the president planned to consider either with respect to a Supreme Court nominee, or judicial nominees more generally."

RR

Michael McConnell Resigns Tenth Circuit to Return to Academia

According to both Wall Street Journal Blog and Wikipedia(!), Michael McConnell is resigning his seat on the Tenth Circuit to direct the Stanford Constitutional Law Center. at Stanford Law School. 

Appointed to the Circuit by George W Bush is 2002, McConnell was frequently mentioned as a possible nominee for the United States Supreme Court.

RR

Mary Dunlap and the Constitutional Rights of Sexual Minorities: Robson's Saturday Evening Review

[U]nder a system that permits individualized sex identification, the past exercises of the legal power to enforce a male/female order might be discovered to have played a primary role in retarding the progress of creativity and diversity among human beings in their relationships to each other, to institutions and to the environment.  While such discoveries now seem far distant from the horizons of the United States Constitution, perhaps tomorrow's journeys into extraterrestrial space, or earth creatures' own ventures into the technology of cloning and test-tube productions of new life forms, or even today's silent mutations, will rapidly and vividly bring the nascent potentials of individual sex definition, free of the present paradigm of two sexes, into focus in the constitutional galaxy.

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. 

RR

ConLaw Prof named new Dean at William & Mary

According to a press release, Davison M. Douglas, a Con Law Prof at William & Mary Law School since 1990, has been named Dean.

 

Douglas' areas of constitutional specialties include race, religions, and elections.  Perhaps his best known work is the legal-historical account, Jim Crow Moves North: The Battle over Northern School Segregation, 1865-1954 (Cambridge University Press 2005).

RR

Center for Constitutional Rights names LawProf new Legal Director

The Center for Constitutional Rights in a press release today announced that Bill Quigley, Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University New Orleans, is the new legal director of CCR:

The Center for Constitutional Rights (CCR) is thrilled to announce human rights lawyer Bill Quigley of New Orleans will begin as its next Legal Director in May. Bill has been an extraordinary public interest lawyer for over 30 years, and has served as counsel on issues including post-Katrina social justice, public housing, voting rights, the death penalty, living wage, civil liberties, educational reform, constitutional rights, human rights work in Haiti, and civil disobedience. Bill has been an essential mainstay to social justice work in New Orleans before and after Katrina.

      

CCR has lately been best known for its representation of Guantanamo detainees.  An interesting profile of this work was published by Adam Liptak in the New York Times in 2004.

RR

Popular Constitutionalism?

In a provocative piece in the Jan/Feb issue of The ATLANTIC, entitled The Founders' Great Mistake, ConLaw Prof Garrett Epps of University of Baltimore School of Law says,

as Bush leaves the White House, it’s worth asking why he was able to behave so badly for so long without being stopped by the Constitution’s famous “checks and balances.” Some of the problems with the Bush administration, in fact, have their source not in Bush’s leadership style but in the constitutional design of the presidency. Unless these problems are fixed, it will only be a matter of time before another hot-rodder gets hold of the keys and damages the country further.

Bottom line?  Epp argues that Article II needs an overhaul.  He has some specific suggestions, including abolishing the electoral college and addressing the "unitary" executive. 

These suggestions might be the basis of an in-class exercise, either asking students to react to Epps' specific suggestions or to "brainstorm" suggestions of their own.  His piece also has an accessible, if necessarily somewhat superficial, history.  And, of course, it can serve to remind students that the very issues they are studying are also being discussed in the "popular media."

RR

(Another) ConLawProf in Obama Administration

ConLawProf Marty Lederman, of Georgetown, has joined the Office of Legal Counsel. Here's the mention from thinkprogress:

Over the past few years, Lederman’s legal blogging at Balkanization has provided invaluable insight and strength to critics of key Bush policies, including torture and warrantless wiretapping. Lederman wrote passionately against the Bush administration’s efforts to legalize the use of torture . . . . Lederman described the mission of the OLC in a Jan. 2005 blog post. “OLC’s proper role is not to distinguish, for Executive Branch officials, among different forms of unlawful conduct, so as to identify those that are subject to the highest criminal sanctions, on the one hand, and those that are ‘merely’ prohibited, but without severe sanction, on the other. … OLC’s proper role, instead, is to inform the Executive Branch as to what conduct is lawful.”

RR

Cass Sunstein Post in Obama Administration

As The Chicago Tribune reported here, Obama is expected to name Cass Sunstein to head the Office of Information and Regulatory Affairs.  The Chicago Tribune story continues:

Sunstein brings a measure of star power to the post, as a leading constitutional scholar and the Felix Frankfurter professor of law at Harvard. He joined the Harvard faculty this year after many years at the University of Chicago, where he is still a visiting professor. He and Obama taught there.

Along with economist Richard Thaler, Sunstein is co-author of "Nudge: Improving Decisions about Health, Wealth, and Happiness." It examines how setting up thoughtful "choice architecture" can encourage people to make beneficial choices without restricting their freedom to choose.

One of the better posts I've seen on the subject is by Ezra Klein at The American Prospect blog here.  Klein has a nice discussion of the Office of Information and Regulatory Affairs, including its history,  arguing that " OIRA is important! It's just also boring."  He concludes:

Sunstein can do real good there [at OIRA].  But why would he want it? He's shown a taste for celebrity, and OIRA very much does not provide that.

It's worth remembering that Sunstein has recently achieved great fame for Nudge, a book which basically argues that we need to apply the insights of behavioral economics to the construction of regulation. And Director of the Office of Information and Regulatory Affairs is the ultimate staging ground for those ideas. Reagan understood that OIRA was the central clearinghouse where you could affect the whole of the regulatory state all at once. He wanted to virtually shut it down. Sunstein wants to "nudge" it.

RR

Obama and the Judiciary

The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from 2002-2007) predicting the impact of an Obama Administration on the federal judiciary.

Paul Cassell has this to say in part:

And I think the real concern is whether President Obama will bring back something like the Warren Court years, where it seemed like every few months there would be a new constitutional right that was discovered in the Constitution, a constitutional right that struck down acts of Congress or the views of the state legislatures, the views of the American people.

Cassell predicted that Obama appointees would have "more of an activist bent than you would have seen under a President McCain or you have seen in the last eight years from President Bush."

Karlan disagreed:

activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.

I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?

The full transcript is available here (but note that the pull quote under Cassell's photo is actually Karlan's statement).

RR

American Constitution Society

Has the American Constitution Society (ACS) replaced the Federalist Society in the Obama-era?

In a piece entitled Legal Organization May Become Influential Beyond Its Dreams in today's Washington Post, reporter Michael Fletcher writes that the new influence of ACS

is a remarkable turn for an organization born in the frustration that liberal legal thinkers shared over the Supreme Court's role in deciding George W. Bush's contested victory over Vice President Gore in 2000. Many of them saw in the high court's decision a need to counteract the growing influence of the conservative legal movement with a movement of their own.

The article quotes ConLaw Profs Peter Rubin (Georgetown) and Dawn Johnsen (Indiana).   Fletcher concludes on an ambiguous note:

While it is clear that ACS will achieve a new level of influence in the Obama administration, it remains to be seen how persuasive Obama will find any specific suggestions. On the campaign trail, his view of the law was often elusive. He has talked about the importance of judges having broad experience. But he has also praised the Supreme Court decision striking down the District of Columbia's handgun ban, a ruling that many progressive lawyers did not like. Obama also disagreed with the court's decision that the death penalty may not be applied to child rapists, a case in which the court's most conservative members dissented.

RR

 

Con Law Prof John Yoo- controversies continue

According to an article in the San Francisco Chronicle, the Berkeley City Council is considering a resolution that John Yoo, Berkeley School of Law (Boalt Hall) law professor, be charged with war crimes and that students at the law school not be required to take a class from him.  The ABA Journal has the story here.

Yoo has been the subject of controversy for his role in the so-called "torture memos" from the White House in 2001-2003.  The matter continues to be under investigation.  According to a piece in The Public Record:

When these probes are complete it will likely spur the incoming administration of President-Elect Barack Obama to implement widespread reforms at the DOJ and the way interrogations against suspected terrorists are conducted by CIA and the military, said two people working on Obama’s transition team. While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.

The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.

In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."

The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.

Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.

RR

Our First Teaching Profile . . . Featuring Professor H. Jefferson Powell

Welcome to a new regular feature.  The problem with teaching Con Law is that there is so much to learn about how to teach the subject.   As we pondered this reality, we decided to create a feature titled "Profiles in Con Law Teaching."  The point of the "Profiles" series is to highlight a prominent Con Law scholar who is also an excellent teacher.  Our goal is to mine the expertise of these individuals so that we might all benefit from their knowledge. 

I am pleased to announce that Professor H. Jefferson Powell is the subject of our first profile.  Professor Powell teaches at the Duke University School of Law.  In addition to being a prolific scholar (if you haven't yet read his essay on the Curtis-Wright case in the Presidential Power Stories collection, you are missing a truly enlightening piece), Professor Powell has won several teaching awards.  Recently, he graciously agreed to provide his thoughts on the teaching of Constitutional Law.

Professor Powell began teaching Con Law in 1984.  He most enjoys "working out with the students the way in which constitutional law arguments are structured, in terms of what counts as an argument and how the conflicting arguments are dealt with in the opinion or opinions we read."  When asked what a typical day in his classroom is like, Professor Powell stated, "Whenever possible I try to discuss only one major case, with other new cases coming in as means of further elaborating/distinguishing/implicitly criticizing the main case.  I usually ask a student to "set up" the case by reminding us what the issues were, and go on from there with a discussion that, when things go well, involves many contributors."

A common problem confronting Con Law professors is how to make issues such as the commerce clause interesting.  On this point, Professor Powell advises, "Since my course focuses on the structure and forms of argument, more than the substance, I encourage students to see the common issues that cut across doctrinal areas.  Grasping commerce clause disagreements is directly relevant to understanding how to make and evaluate arguments in, say, equal protection or substantive due process." 

Finally, Professor Powell was asked what advice he would give to both new and seasoned con law profs.  To the new law prefessors, he says, " Don't be afraid to change your mind.  Have fun."   For those who have been teaching the subject for some time, he states, "Perhaps it can be helpful to take a break.  I didn't teach con law for several years and came back to it greatly refreshed."

We hope you enjoyed this profile.  Please look for new profiles each week.  Enjoy!

NLS

Con Law Professor is New President of ACLU

Susan Herman, who teaches constitutional law at Brooklyn Law School, has been elected the new president of the American Civil Liberties Union, replacing Nadine Strossen.

The New York Times report is here.

 

RR

 

About Ruthann Robson

Greetings!  Welcome to Constitutional Law Professor Blog - - - like my co-bloggers, I am hoping this will be a useful site to discuss all matters of Constitutional Law, with an emphasis on pedagogy, as well as scholarship and current events.

I'm a Professor of Law and University Distinguished Professor at the City University of New York School of Law.  I have taught various constitutional law courses since coming to CUNY in 1990, with a current focus on our "rights" course (entitled Liberty, Equality and Due Process) and our First Amendment course, as well as teaching Sexuality and Law with a heavy constitutional component, and often Law and Family Relations, a required course also with a heavy constitutional component.  Given these interests, I'll generally be focusing on rights rather than structures.  However, I have an intense interest in judicial review, both in the United States and other nations; one of my recent articles is Judicial Review and Sexual Freedom, 29 U. Haw. L. Rev. 1 (2007).

I also have an avid interest in non-SCOTUS constitutional law litigation.  As a legal services attorney, I had the opportunity to raise many constitutional law issues and think all attorneys should have a mastery of constitutional law possibilities.   I also have an interest in how constitutional law is being taught outside of the law school context.  I've a few regular features planned that I'll be sharing soon. 

RR