Saturday, March 26, 2016

"Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage"

The title of this post comes from this forthcoming paper by Professor Robin B. Kar, the abstract of which states:

When the Supreme Court found a constitutional right to same-sex marriage in Obergefell v. Hodges, many thought the Court was exercising its political will rather than its legal judgment. Noting the absence of same-sex marriage in early American history and assuming that marriage is a relatively static and timeless social institution (a view I call "marriage essentialism"), many believe that Obergefell cannot be grounded in legal precedent.

In truth, however, marriage was itself evolving in numerous ways in the centuries and decades prior to Obergefell. It was evolving from a hierarchically organized relationship of status, which gave certain religious and communal institutions a great amount of de facto control over patterns of marital relation and sexual and reproductive liberty, to a more autonomously governed private relationship, grounded in respect for personal choice and concern for the emotional well-being of partners in intimate relationships. Whereas the early traditions of marriage in America supported two illiberal and inegalitarian caste systems, relating to sex and race, marriage had already become much more egalitarian, libertarian and diverse in function.

Hence, the real legal question in Obergefell was not whether — given a fixed but ultimately mistaken conception of "traditional marriage" — there was any direct legal precedent for same-sex marriage in the United States. The real question was whether — given the recent developments in domestic marriage in America prior to Obergefell — it violated the equal protection clause to give Americans unequal rights to participate in this new and more libertarian form of marriage, based solely on their sexual orientations and resulting romantic choices. The Supreme Court answered this question in the affirmative, but the false premise of marriage essentialism has prevented many from understanding the correct legal grounding for this case.

March 26, 2016 in Same-sex marriage | Permalink | Comments (0)

Tuesday, November 24, 2015

"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"

The title of this post comes from this recent paper by Professor Jeffrey Hirsch, the abstract of which states:

In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.

November 24, 2015 in Civil Rights Act, Freedom of Religion, Same-sex marriage | Permalink | Comments (0)

Tuesday, May 5, 2015

"Original Meaning and Marriage Equality"

The title of this post comes from this recent paper by Professor William Eskridge, the abstract of which states:

In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no “expectations” that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted (“equal protection”) had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.

May 5, 2015 in 14th Amendment, Equal Protection Clause, Same-sex marriage | Permalink | Comments (1)

Monday, December 8, 2014

"The (Non-)Right to Sex"

The title of this post comes from this recent paper by Professor Mary Ziegler, the abstract of which states:

What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project — the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, the Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex — rather than committed relationships or marriage — from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the non-right to sex provides a compelling historical parallel to the contemporary marriage equality movement. The mistakes of past decades illuminate the dangers inherent in contemporary marriage-equality tactics.

The Article begins the story of the non-right to sex in the 1960s and 1970s, when groups like the ACLU and NAACP confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual freedom. Often, however, feminists and civil rights attorneys presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen or leave intact traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives inadvertantly reinforced the State’s ability to regulate sexual behavior.

For the marriage equality movement, this history offers a cautionary tale. Efforts to achieve incremental social and legal change have obvious advantages: these strategies appeal to cautious courts and reduce the odds of backlash. At the same time, as the materials considered here make plain, incremental strategies can strengthen the status quo. In the 1960s and 1970s, progressives paid lip service to the evils of illicit sex in an effort to chip away gradually at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, since cause attorneys helped to entrench an existing intimate hierarchy. As this history counsels, incremental litigation strategies adopted by the marriage equality movement may have a profound cost of their own.

December 8, 2014 in Same-sex marriage | Permalink | Comments (0)

Friday, November 7, 2014

"Why the Supreme Court May Have to Rule on Gay Marriage"

The Atlantic's Matt Ford explains that the 6th Cir.'s recent decision upholding same-sex marraige bans in Kentucky, Michigan, Ohio, and Tennessee will give SCOTUS another opportunity to consider the constitutionality of such bans. Because this decision created a split between circuits, the likelihood that we will hear arguments on the issue before the nation's highest court is considerable.

November 7, 2014 in Same-sex marriage | Permalink | Comments (0)

Monday, October 13, 2014

"Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex not warrant the status, benefits and dignity given to couples of the opposite sex."

...said U.S. District Judge Timothy Burgess yesterday in his opinion striking down Alaska's same-sex marriage ban as a violation of equal protection under the Fourteenth Amendment.

Gov. Sean Parnell (R) confirmed to the AP that he intends to waste state money by appealing, even though the 9th Circuit, of which Alaska is a part, has already told Idaho and Nevada that same-sex marriage bans are unconstitutional.   

October 13, 2014 in Same-sex marriage | Permalink | Comments (0)

Thursday, October 9, 2014

Chemerinsky: SCOTUS "backing into recognizing a constitutional right to marriage equality."

If you were awake at all yesterday, you likely heard that SCOTUS declined to consider five states' appeals of lower court decisions striking down their same-sex marriage bans. Instantaneously, the fundamental right to marry extended to include same-sex couples in 24 states - which merits excitement and celebration. Nevertheless, SCOTUS's decision is also completely inadequate to address the continued discrimination against same-sex couples in the remaining states. 

UC Irvine School of Law Dean Erwin Chemerinsky sees SCOTUS's decision for what it ultimately is -- pretty weak sauce. Chemerinsky writes:

[I]t is inexplicable why the Supreme Court did not take at least one of these cases and then rule for the entire country that laws prohibiting same sex marriage are unconstitutional. In all likelihood, the court denied review because, so far, there is no disagreement among the federal courts of appeals; all three to rule so far have declared the state laws unconstitutional. It appears that the court will wait until a federal court of appeals decides the other way and upholds a state law prohibiting marriage equality.




However, it is hard to understand what the Supreme Court gains by waiting to decide this constitutional issue. It is not a situation where the court will benefit from the wisdom of the lower courts. It is very unlikely that an additional court of appeals will say anything that has not already been expressed.




It seems that the court is backing into recognizing a constitutional right to marriage equality. The more that marriage equality exists in the United States – the more states that have same-sex marriage and the more gay and lesbian couples that marry – the harder it will be for the court to deny such a right and invalidate these marriages.


But that is not how the court should be making landmark decisions. It now seems inevitable that there will be a right to marriage equality everywhere in the United States. There is no reason for the court to delay this. The court abdicated its responsibility when it denied the marriage cases instead of taking one and clearly and unequivocally holding that laws denying marriage equality violate the Constitution. 

Indeed, just what this issue demands -- more litigation.

October 9, 2014 in Equal Protection Clause, Same-sex marriage | Permalink | Comments (4)

Wednesday, October 8, 2014

Justice Kennedy grants Idaho's request to block same-sex marriages...

Monday, September 29, 2014

Everybody's ready for SCOTUS to review same-sex marriage

David Savage reported in today's Los Angeles Times:

The justices will meet Monday to consider a thick pile of pending appeals, and they have before them gay-marriage cases from five states. In all five, the ban on same-sex marriages was struck down. But unlike most appeals, both sides — the winners as well as the losers — are asking justices to hear the case.


"It's a near certainty the court will decide it this term and definitively answer" whether same-sex marriage is a constitutional right, said Irv Gornstein, a law professor who directs Georgetown's Supreme Court Institute.


Gay-rights advocates who once steered clear of the high court are now eager for a ruling. "There is no question we are winning, but winning is not won," said Evan Wolfson, founder of Freedom to Marry. "It's time for the Supreme Court to finish the job."


First, the justices have to settle on which case, or cases, they will hear, and that may take a few weeks. They could hear cases from Utah, Oklahoma, Virginia, Wisconsin or Indiana. In all but Virginia, the state's top lawyers are fighting to uphold laws banning same-sex marriage.




But state attorneys in four Republican-led states say they are determined to offer the Supreme Court a robust defense of their state laws. They noted that their voters, as well as their lawmakers, had adopted measures in the last decade to define marriage as the union of a man and a woman. They sought to prevent "judicial activism" by defining marriage in the state constitution, said Wisconsin Atty. Gen. J.B. Van Hollen, in a court filing.

September 29, 2014 in Same-sex marriage | Permalink | Comments (0)

Thursday, September 11, 2014

Republican U.S. Senate candidate highlights support for same-sex marriage in new ad

That's Monica Wehby. Republican U.S. Senate candidate running against incumbent Democrat Sen. Jeff Merkley in Oregon. As The Lost Angeles Times observes, she would join an exclusive class of Republican senators who openly support same sex-marriage were she to win in November.  

U.S. Sens. Susan Collins of Maine, Mark Kirk of Illinois, Lisa Murkowski of Alaska and Rob Portman of Ohio are the only Republicans in the Senate to support same-sex marriage.

September 11, 2014 in Same-sex marriage | Permalink | Comments (0)

Tuesday, September 9, 2014

“Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Judge Richard Posner is the Dixie Limited in this Flannery O'Connor quote, while Judge Martin Feldman - the judge who upheld Louisiana's ban on same-sex marriage - is apparently the mule.

According to The Atlantic's Garrett Epps, Posner's "tour de force" decision affirming the unconstitutionality of the same-sex marriage bans in Indiana and Wisconsin decimates most arguments for banning same-sex marriage. He questions whether Justice Anthony Kennedy will be willing to play the mule when the Supreme Court eventually addresses the issue.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

ICYMI: Federal judge upholds Louisiana's same-sex marriage ban

But about his opinion.

September 9, 2014 in Same-sex marriage | Permalink | Comments (0)

Saturday, July 5, 2014

'Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality'

The title of this post comes from this recent paper by Professor Nancy Knauer, the abstract of which states:

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (e.g., Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws where some states allow marriage, others ban it, and others have created parallel legal categories that grant some or all of the rights of marriage (e.g., civil union, domestic partnership, reciprocal beneficiary).

The post-Windsor complexity and lack of uniformity has left LGBT individuals to navigate an uncertain and rapidly changing legal landscape. With over thirty marriage cases pending in federal courts across the country, and positive decisions from many conservative federal District Courts, it seems that the U.S. is poised for nation-wide marriage equality within the next several years. Although many members of the media have already declared that the struggle for LGBT rights has been won, this article explains why these reports are not only premature, but miss the mark by conflating marriage equality with the larger LGBT rights movement. It details both the promise of marriage equality and its limitations.

July 5, 2014 in Same-sex marriage | Permalink | Comments (1)

Saturday, June 7, 2014

'Speed is through the eyes of the beholder.'

WaPo's Katie Zezima recently interviewed Margaret H. Marshall, former chief justice of the Massachusetts Supreme Court and author of Goodridge v. Department of Public Health, the decision that legalized same-sex marriage in Massachusetts. Particularly intriguing is Marshall's response to claims that the success of same-sex marriage has come quickly since her 2003 decision.

It is often people who have had access to these rights and responsibilities who think of it as speed, but for those who have not had access to these rights and responsibilities they may view it differently, and they do view it differently. Because the time between 2003, when the Goodridge case was decided, [and now] -- it did not change the law outside Massachusetts. And now it is a decade later. So think of it through a child’s eyes. A couple wants to adopt and raise a child. And they must wait for 10 years, then file a lawsuit. That’s a long time for a couple to wait. It might be that the woman is 35 and she’s now 45. That’s a biological challenge. It might be that there’s a particular child a male gay couple wants to adopt and the child is 2 or 3 or 4 and the child is now 12 or 13 or 14. Speed is through the eyes of the beholder. And the first legal case raising a right of access to marriage for same-sex couples was filed close to 50 years ago.

According to Freedom to Marry, 19 states now allow same-sex marriages. In eight others, judges have struck down same-sex marriage bans, but marriage equality in those states generally awaits appellate review of those decisions. 

Most recently, U.S. District Judge Barbara Crabb struck down Wisconsin's same-sex marriage ban yesterday as violative of the "liberty and equality" rights of same-sex couples.  She wrote:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiff’s right to marry, in violation of the Due Process Clause, and discriminates against plaintiffs on the basis of sexual orientation, in violation of the Equal Protection Clause.

June 7, 2014 in 14th Amendment, Same-sex marriage | Permalink | Comments (0)

Wednesday, May 14, 2014

Proponents of marriage equality celebrate Arkansas, Idaho decisions while awaiting ruling on Utah, Oklahoma same-sex marriage bans

The success of same-sex marriage proponents continued yesterday as U.S. District Magistrate Judge Candy Dale ruled that Idaho's same-sex marriage ban violated the constitutional rights of same-sex couples. According to the AP:

Supreme-court-protest"The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries," Dale wrote, saying same-sex couples in Idaho have been denied the economic, emotional and spiritual benefits of marriage.


"Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love," she wrote.

Of course, Idaho governor C.L. "Butch" Otter plans to appeal the decision, although the futility of such efforts appears evident. Judge Dale's decision is just the latest in a series of successful challenges to state laws banning same-sex marriage since the Supreme Court's decision in United States v. Windsor last summer. In Windsor, the Court held the federal government's definition of marriage under the Defense of Marriage Act (DOMA) as between a man and a woman denied equal protection of the laws to same-sex couples. After Arkansas's top court struck down its ban last Friday, 18 states and D.C. now legally recognize same-sex marriages. This number might soon increase, too. The Tenth Circuit is expected to issue its decision on the constitutionality of Utah's and Oklahoma's bans any day now, although uncertainty clouds expectations for the Fourth Circuit's pending decision as to Virginia's ban.

Meanwhile, advocates continue to raise challenges to laws against same-sex marriages. As The Salt Lake City Tribune's Marissa Lang recently reported:

As of late last week, there were 72 lawsuits pending in state and federal courts of 32 states and territories that challenge state laws banning or limiting same-sex marriage...


Alaska — which approved a constitutional amendment banning same-sex weddings in a 1998 referendum and then made it illegal for gay and lesbian couples to achieve any form of civil union or domestic partnership in 2007 — is the only state in the country whose law is not being challenged in court.

Even Alaska no longer can distinguish itself as the only state whose same-sex marriage ban remains unchallenged. Five same-sex couples filed suit yesterday to overturn the state's ban as a violation of the fundamental right to marry. 

CRL&P related posts:

May 14, 2014 in Equal Protection Clause, Same-sex marriage | Permalink | Comments (0)

Tuesday, January 28, 2014

The Trouble with Inclusion

By many accounts, last year was a banner year for same-sex marriage. The Supreme Court overturned the Defense of Marriage Act's (DOMA) definition of "marriage" as between a man and a woman in United States v. Windsor, and nine states extended marriage equality to same-sex couples. The Mebeginning of 2014 has been matched by challenges to and debates over state constitutional bans on the practice--e.g. Arizona, Florida, IndianaMissouri, Ohio, Utah, etc. Last week, Virginia AG Mark Herring announced his belief that the state's ban on same-sex marriage is unconsitutional, signaling its likely downfall.

Yet, same-sex marriage adovocates should remain cautious that such victories could "misconstrue justice," as described Yuvraj Joshi in The Trouble with Inclusion. According to Joshi, a new framework is needed to understand when the inclusion of previously excluded groups into societal institutions fails to produce just results--often because of misconceptions about the nature of the injustices faced by the excluded. Joshi writes:

Inclusion tends to focus solely or largely on the injustice that stems from exclusion and not to pay heed to other injustices. Such inclusion errs in assuming that the only or most serious injustice perpetrated by an institution is that it excludes members of a particular group, or that different injustices can be tackled simultaneously. Consequently, it is liable to leave intact the institutional framework generating those injustices.

Joshi focuses, in particular, on efforts to improve marriage and gender equality. The title of this post comes from his paper, the abstract of which states:

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice. 

CRL&P related posts:

January 28, 2014 in 14th Amendment, Same-sex marriage | Permalink | Comments (0)

Friday, December 20, 2013

CRL&P Daily Reads: Dec. 20, 2013

Thursday, December 19, 2013

CRL&P Daily Reads: Dec. 19, 2013

Five recommendations from NSA task force; The Week asks whether NSA's mass surveillance is effective; Politico looks at how task force's recommendations affect Obama's policy options; and, Dave Eggers says Dave Eggers and others should speak out against the NSA's policies.

ACLU alleges Native American and black students subject to racial and sexual harassment from students and teachers in California school district.

Bill in Ohio Senate would allow married same-sex couples to file joint tax returns.

Former officer alleges sex discrimination by police department when it terminated her because of a workplace relationship; police in New Jersey settle civil rights suit alleging harassment of a teenager; officer in Georgia faces lawsuit after putting a man in the hospital with a blow from his flashlight; and, Columbus alleged to have violated event organizer's civil rights when it shut down his festival after the shooting of an 11-year-old. 

No more donations to the Boy Scouts until gay leaders are allowed, says Lockheed Martin.


December 19, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (0)

Wednesday, December 18, 2013

CRL&P Daily Reads: Dec. 18, 2013

Larry Klayman, Larry Klayman, Larry Klayman.

Brazil shirks Snowden.

Plain Dealer columnist argues for armed employees in schools.

Federal judge will hear challenge to Ohio's ban on recognition of same-sex marriages on death certificates.

Student's civil rights suit alleges anti-LGBT harassment by teachers and administrators; police lieutenant claims he was fired in retaliation for testimony he gave against the department in several civil rights cases; Orlando PD face allegations of excessive force by a group of officers; and, civil rights suit over alleged unjustifiable death of Lansing teenager re-emerges.


December 18, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Gun Policy, Same-sex marriage, Schools, Web/Tech | Permalink | Comments (0)

Tuesday, December 17, 2013

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.


December 17, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (1)

Friday, December 13, 2013

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.


December 13, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Voter ID | Permalink | Comments (0)

Tuesday, December 10, 2013

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.


December 10, 2013 in Civil Rights Litigation, Excessive Force, First Amendment, Fourth Amendment, Freedom of Press, Freedom of Speech, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches, Web/Tech | Permalink | Comments (0)

Sunday, December 8, 2013

Windsor as the end of federalist minimalism in LGBT litigation?

In this upcoming article, Professor Nancy C. Marcus argues that the Supreme Court's decision in United States v. Windsor--in which the Court struck down the interpretation of section 3 of the Defense of Marriage Act's (DOMA) use of "marriage" and "spouse" as applying only to heterosexual couples--landed a fatal blow to federalist minimalism with regard to marriage equality and LGBT- Gay_marriage_81102178_620x350-300x169rights litigation. According to Marcus, the Windsor Court rejected "federalist-based marriage discrimination" and instead contributed to the "growing foundation of equal liberty jurisprudence." Here's the abstract: 

Things are not always as they seem. The adage, “if it walks like a duck and quacks like a duck, it must be a duck,” is far from a fail-proof test, as seen from its earlier days, when the “duck test” was reportedly used to persecute suspected Communists during the McCarthy Era. Today, I propose, the “duck test” is just as fallible when applied to the Supreme Court’s latest LGBT rights opinion, United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act as unconstitutional. Where duck = federalism, I suggest that, while Windsor was widely expected to be a federalist decision, and was interpreted as a federalist decision by some after its release, upon closer examination, Windsor is not a federalist duck at all, but is, rather, a swan song for federalist-based marriage discrimination. 

This article traces federalist-based advocacy for marriage equality to the late twentieth-century minimalist movement, viewed the judiciary pessimistically as an ineffective agent of social change, and urged that if civil rights litigators must turn to the courts for social justice in politically controversial areas, they stick to unambitious and narrow arguments. Even after the Supreme Court’s LGBT-rights decisions Romer v. Evans and Lawrence v. Texas, minimalists discouraged LGBT-rights litigation. Similarly, as DOMA challenges became inevitable, there was a push to frame constitutional challenges in terms of federalism, which was viewed as more strategically prudent than broader individual rights arguments. Even after Windsor was decided on broad substantive due process and equal protection grounds, rather than on Tenth Amendment federalism grounds, some persisted in reading it as a federalist opinion, influenced in that reading by the minimalist movement. 

The article explains both why backlash-fearing minimalists were wrong about the success of LGBT marriage equality, and why the reading of Windsor as a federalist decision is erroneous. The article describes how minimalist forecasts of doom for LGBT rights litigation have been proven wrong through successes in courts, legislative battles, and public opinion polls. The article details an evolution from backlash-fearing minimalism to a renewed faith in the courts serving an important role, along with legislative and educational measures, in the protection of fundamental and equal rights. Finally, examining Justice Kennedy’s majority opinion in Windsor in more detail, I explore different ways to interpret the strategic placement of its federalism discussion side-by-side with a Loving v. Virginia citation, for example. I offer that on the one hand, the opinion may be read cynically as rhetorical maneuvering, not unlike other historic examples of such strategic artifice used to co-opt the arguments of one’s opposition. On the other hand, however, I suggest that Windsor, as with past opinions, represents a principled, deliberate foundation building, which adds a layer of a growing foundation of equal liberty jurisprudence, established with doctrinal integrity to ensure greater protections for individual rights over time.

CRL&P related posts:

December 8, 2013 in 14th Amendment, Same-sex marriage | Permalink | Comments (1)

Thursday, December 5, 2013

CRL&P Daily Reads: Dec. 5, 2013

Massachussetts legislative committee on election laws considers voter ID bill; Mississippi's Secretary of State claims that 90 percent of the state's citizens already have ID required by new voting law; and, voting rights group to advocate for laws that expand voting and access to the polls in all 50 states.

Civil rights lawsuit filed against a police officer who allegedly broke an elderly man's arm in a roadside incident while off-duty; taxpayers in a Rhode Island town will cover $7 million settlement agreed to after a confrontation in which the police shot a teen 9 times leaving him paralyzed; and, wrongful death claim against California police for the shooting of a suicidal man is allowed to proceed.

Support for stricter-gun laws is dropping.

Federal judge hears oral arguments on Utah's same-sex marriage ban.

Tennessee asks state Supreme Court to provide dates of execution for 10 inmates.

NSA tracks cell locations worldwide.


December 5, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID, Web/Tech | Permalink | Comments (0)

Wednesday, December 4, 2013

CRL&P Daily Reads: Dec. 4, 2013

Sunday, December 1, 2013

CRL&P Daily Reads: Dec. 1. 2013

Friday, November 29, 2013

Six months after Dallas council’s heated gay-rights discussion, the subject will return to the horseshoe

The Dallas Morning News reports that the city again will consider a resultion to legalize same-sex marriage. The title of this post comes from the article, which begins:

Six months after the Dallas City Council's heated and ata times personal dust-up over that marriage equality resolution Mayor Mike Rawlings has beed dodging for close to two years, the subject will finally return to the horseshoe on Monday.

And as promised in June, it will go to the Budget, Finance & Audit Committee, where interim assistant city manager Theresa O’Donnell and assistant city attorney John Rogers will make a presentation titled Status on Defense of Marriage Act (DOMA) Impact, which you can sneak-peek in full below.

O’Donnell says committee chair Jerry Allen initially asked her to help with the briefing; she told him Budget, Finance & Audit was the perfect place for it, because, as she says, “that’s what marriage is about — financial security for your family.” She recruited Rogers to help.

Rogers and O’Donnell are among the openly gay city staffers featured in the city's "It Gets Better" video posted earlier his year. And she’ll admit the two have “a vested interest” in the subject. Which is precisely why they initially hoped to get a college professor — “an impartial speaker” — to brief the council. But after profs from SMU, the University of Texas and Texas A&M University couldn’t clear their Monday schedules, Rogers and O’Donnell decided to do it themselves.


November 29, 2013 in Same-sex marriage | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 29, 2013

Wednesday, November 27, 2013

How Marriage Inequality Prompts Gay Partners to Adopt One Another

The Atlantic's Koa Beck documents how historical bans on same-sex marriage have prompted some couples to adopt one another in an effort to gain legal protections denied because of their sexual orientation. Although achieving minimal protection of their assets, these efforts also have unintentionally reinforced misperceptions as to the morality of same-sex couples.

The title of this post comes from Beck's article, which begins:

The queer community has been dubbed as "perverse" since long before gays were dragged from The Stonewall Inn and beaten for their orientation.

Because of historical opposition to gay marriage, long-term, same-sex couples have a history of adopting one another for legal protection—the arrangement Liberace promised Scott Thorson in Behind The Candelabra during one of the high points in their jewel-encrusted relationship. The adopting of one's partner was a direct response to laws for estate, taxes, and wills that have failed to recognize same-sex partnerships. But in fact, it's heterosexist policies that prompted many notably "deviant" couples from history to engage in what could be considered incest, essentially further "deviance."

As late as June 2013, a 65-year-old man legally adopted his 73-year-old partner in Pennsylvania for financial protection because marriage was not available to them. The couple told ABC News that they were primarily concerned about Pennsylvania’s inheritance tax, which could make one partner liable for a 15 percent tax on the estate (as opposed to 4 percent if they pushed ahead with adoption). Men of this vintage can't sit around and wait for marriage equality to show up, so they've legally changed their relationship from partners to father and son.

They're in excellent company. Robert Allerton, the wealthy son of the founder of First Chicago Bank, openly adopted his partner, John Gregg, in 1959 following a change in Illinois law that permitted adult children to be adopted. Gregg was a 22-year-old orphan who met 49-year-old Allerton at a pre-football game lunch at the University of Illinois in the decadent 1920s. Gregg was studying architecture when he wandered into the Zeta Psi fraternity house, to which many brothers had brought their fathers. On meeting his future long-term companion/legal father, Gregg famously said in 1984, "Robert Allerton was invited over there for lunch, and he didn't have a son and I didn't have a father, so we were paired off and lived happily ever after."


November 27, 2013 in Same-sex marriage | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.


November 27, 2013 in Department of Justice, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Press, Freedom of Speech, Gun Policy, Same-sex marriage | Permalink | Comments (0)

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Friday, November 22, 2013

CRL&P Daily Reads: Nov. 22, 2013

Wednesday, November 20, 2013

CRL&P Daily Reads: Nov. 20, 2013

NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.

Albuquerque voters reject ban on abortions after 20 weeks; and, Supreme Court won't block Texas abortion law that has caused some clinics to close.

Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.

Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.

Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.

Iowa city required to release records from closed meetings.

Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.

Governor expected to sign Illinois's law legalizing same-sex marriage later today.

Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.


November 20, 2013 in Abortion, Election Law, First Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Right to Vote, Same-sex marriage, Science, Voter ID | Permalink | Comments (0)

Tuesday, November 19, 2013

CRL&P Daily Reads: Nov. 19, 2013

Monday, November 18, 2013

CRL&P Daily Reads: Nov. 18, 2013

Sunday, November 17, 2013

CRL&P Daily Reads: Nov. 17, 2013

Friday, November 15, 2013

CRL&P Daily Reads: Nov. 15, 2013

Ten homeless people file civil rights lawsuit to keep city from evicting them from a local landfill.

NYC's stop-and-frisk policy results in conviction in just 3 percent of cases.*

Disabled man sues city under ADA for right to keep his service dog--a pit bull.

California judge rejects challenge to local ordinance banning the use of 'sign waver' advertisements.

Pennsylvania judge rejects request to block challenge to the state law banning recognition of same-sex marriages; Hawaii judge upholds state's new same-sex marriage law; and, transgender woman's employment discrimination case is tossed.

Victims call for legislation criminalizing revenge porn.

Jimmy Carter says the U.S. should abolish the death penalty.

* Correction: A helpful reader observed that the second link above was incorrect. It previously stated that New York City's stop-and-frisk policy leads to sentences of 30 days or more in just 1.5 percent of the cases, but the rate is actually much lower than that. In fact, the AG's report states on page 3:

Less than one in seventeen SQF arrests, or 0.3% of stops, resulted in sentences of more than 30 days of imprisonment.


November 15, 2013 in 14th Amendment, Civil Rights Litigation, Equal Protection Clause, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (3)

Thursday, November 14, 2013

CRL&P Daily Reads: Nov. 14, 2013

Northern Illinois University student has been arrested after police discovered an AR-15 rifle and a handgun in his dorm room; federal agents claim gun made by a 3-D printer could threaten security; Iowa gun store owner has been arrested after selling fully automatic machine gun; Milwaukee youth help city officials develop strategies to reduce gun violence; and a Florida woman pulls a gun on a journalist.

Sen. Rubio is scheduled to speak at a conference led by an anti-gay activist; Indiana woman has been denied access to her partner who is currently unconscious in the hospital; and five Senagalese women could face as much as five years in prison because they are lesbians.

Supreme Court considers whether law enforcement officials violate the Fourth Amendment when they search an apartment after one roomate denies them entry but another later permits it; and TSA's profiling program is ineffective.

Students decry lack of diversity at UCLA; and federal court hears oral argument on University of Texas's addmission policy that considers race.

Former Dolphin's offensive lineman Jonathan Martin might sue the team for harassment and discrimination.

ProPublica documents China's efforts to censor Twitter messages.


November 14, 2013 in Affirmative Action, First Amendment, Fourth Amendment, Freedom of Speech, Gun Policy, Same-sex marriage, Search, Seizure | Permalink | Comments (0)

Wednesday, November 13, 2013

CRL&P Daily Reads: Nov. 13, 2013

Saturday, November 9, 2013

CRL&P Daily Reads: Nov. 9, 2013

Authorities in New Mexico face another lawsuit over allegedly illegal body-cavity searches, as do police in Milwaukee.

Medical marijuana distributor files a civil rights lawsuit alleging that authorities targeted him for his "outspoken advocacy" of local taxation of medical marijuana.

Same-sex marriage will be legal in Hawaii when the governor signs legalization bill into law later this week.

Guardian editor will face questioning by British lawmakers for publication of NSA leaks.

3-D printer makes gun, raises production concerns.

Singapore blocks popular adulturey website.


November 9, 2013 in 14th Amendment, Civil Rights Litigation, First Amendment, Freedom of Press, Gun Policy, Prisons and Prisoners, Same-sex marriage, Strip Searches | Permalink | Comments (0)

Friday, November 8, 2013

CRL&P Daily Reads: Nov. 8, 2013

CRL&P Morning Reads: Nov. 8, 2013

Although not charged, the Cleveland PD continue to hold a man's gun pursuant to a city ordinance that permits police to seize an arrestee's guns until a court orders their return.

House Republicans say they're worried about ENDA's effect on small businesses, and gay-rights advocates turn to President Obama urging him to sign an workplace anti-discrimination order. Crotia prepares to vote on whether to allow gay-marriage.

Secure email system used by Snowden now will work to create a new system that is immune from government surveillance.

LAPD arrests 54 Walmart protesters as more than 500 workers and community leaders gathered to protest the store's low wages.

Mother files suit against local school district alleging it ignored reports that an assistant principle repeatedly snuck her daughter out of her home for sex.


November 8, 2013 in 42 U.S.C. § 1983, Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Assembly, Gun Policy, Same-sex marriage, Schools, Search, Seizure | Permalink | Comments (0)

Thursday, November 7, 2013

CRL&P Morning Reads: Nov. 7, 2013

Sen. Portman supports ENDA after the addition of an amendment strengthening the religious exemption.

Judge removed from stop-and-frisk case claims the Second Circuit's actions violated the Fifth Amendment.

Senate prepares to fight over bill banning abortions after five months.

WaPo's Eilperin says passing gay marriage legislation is going to get more difficult.

Asians and Latinos lagging in voter registration numbers.


November 7, 2013 in Abortion, Election Law, Right to Vote, Same-sex marriage, Stop-and-frisk | Permalink | Comments (0)

Tuesday, November 5, 2013

Illinois House votes to allow gay marriages

Via AP:

A historic vote Tuesday in the Illinois House positioned that state to become the largest in the heartland to legalize gay marriage, following months of arduous lobbying efforts by both sides in President Barack Obama's home state.

Under the measure, which the House approved 61-54, gay weddings could be held in Illinois starting in June. The state Senate, which approved it in February, was expected to vote later Tuesday on a technical change allowing the new effective date. The bill would then head to Gov. Pat Quinn, who has pledged to sign it.

Fourteen states plus Washington D.C., allow same-sex marriage. Most recently, New Jersey, Minnesota and Rhode Island have legalized it.

See here for the full article.


November 5, 2013 in Same-sex marriage | Permalink | Comments (0)

CRL&P Daily Reads: Nov. 5, 2013

Illinois House takes up gay marriage bill, and the U.S. Senate prepares to pass ENDA.

California children apparently see nothing wrong with gay marriage.

U.S. Senate takes up bill to provide more protection for sexual assualt victims in the military; The Atlantic says "[silent] epidemic" of domestic abuse in same-sex relationships requires more research; and The Week considers the utility and advisability of wearing anti-rape underwear.

TX Attorney General sues EEOC because the agency's hiring guidelines allegedly prohibit the state from denying certain jobs to former felons.

Excited dispute over TX voter ID law erupts at local county court.

Reuter's columnist laments GOP's continued efforts to block federal judicial appointments.


November 5, 2013 in Election Law, Prisons and Prisoners, Right to Vote, Same-sex marriage, Theories of Punishment, Voter ID | Permalink | Comments (0)

Illinois gay marriage bill being debated in Illinois House

The title of this post comes from this article reporting that the Illinois House is considering a bill that would legalize gay marriage. Democrats have a 71 to 47 member majority in the Illinois House, which ought to make the bill's supporters  quite happy--the bill needs 60 votes to pass.

Illinois voters also seem to support gay marriage. One recent poll found that 52 percent of those polled said they support legalizing gay marriage while just 29 percent said they opposed it. This support apparently extends into strong Republican districts as well.

Here's how the article begins:

Gay-Marriage1Illinois House lawmakers are debating a bill today to legalize gay marriage in Illinois.

If approved, Illinois would become the 15th state to allow same-sex unions.

The debate follows months of intense lobbying by gay rights advocates who were bitterly disappointed with the proposal stalled during the spring legislative session. Supporters contend the measure is about creating a society with equal rights for all, while faith-based opponents argue gay marriage is immoral and say the bill doesn’t do enough to protect their religious freedoms.

The bill will need 60 votes to pass the Illinois House. A test vote involving an amendment to the bill got 59 votes this afternoon. The vote is expected to be close.


November 5, 2013 in Same-sex marriage | Permalink | Comments (0)

Saturday, November 2, 2013

CRL&P Daily Reads: Nov. 2, 2013

Employment Non-Discrimation Act (ENDA) has bipartisan support in the Senate, but It's unlikely to come up for a vote in the House. Since Supreme Court struck down parts of DOMA, gay rights activists have increased efforts in state legislatures and courts.

Snowden claims the U.S. 'seeks to criminalize political speech' and says he wants to testify before Congress.

Alabama inmate alleges that warden ignored assaults and rape.

Texas court strikes down ban on sexually explicit online conversations with minors as unconstitutionally overbroad.


November 2, 2013 in First Amendment, Freedom of Speech, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)

Thursday, October 31, 2013

CRL&P Daily Reads: Halloween 2013

Second Circuit stays lower court's stop-and-frisk ruling.

Twenty-three percent of Republicans want more women to be elected to office.

Brown University student defends protest against NYPD commissioner as a successful exercise of free speech.

Hawaii is ready to legalize gay marriage.

Chelsea Manning could sue if she doesn't get treatment for gender identity disorder.

Oneida Nation representatives meet with NFL to discuss the movement to change the name of Washington's football team, but NFL stands firm.


October 31, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Same-sex marriage, Stop-and-frisk, Universities and Colleges | Permalink | Comments (0)

Wednesday, October 30, 2013

CRL&P Daily Reads: Oct. 30, 2013

Group pushing for state laws criminalizing revenge porn, but future efforts could be aimed at federal government.

Glenn Greenwald appeared on Anderson 360 last night to discuss the revelation that the NSA was spying on allies.

Woman sues Texas over ban on same-sex marriage.

NY Post claims former employee's allegations of a hostile work environment related to the controversial Obama/chimpanzee cartoon are trivial.

Saudi teacher who supports women's right to drive has been detained.


October 30, 2013 in 14th Amendment, First Amendment, Freedom of Speech, Revenge Porn, Same-sex marriage | Permalink | Comments (0)

Tuesday, October 29, 2013

CRL&P Daily Read: Oct. 29, 2013

Bill before Ohio House would let nursing home patients set up hidden cameras to document poor treatment.

Sen. Portman paid prominent pollster to assess the effects of his new position on gay-marriage after his son announced that he was gay, and former Supreme Court Justice O'Connor performs same-sex wedding ceremony.

Support for the death penalty reaches its lowest point in more than fifty years.

Plain Dealer editorial argues for keeping convicted felons closer to home.

Al Sharpton and Barney's CEO have a productive meeting discussing recent racial profiling allegations, but that might not be enough for NY Attorney General.

Several hundred protesters denounce the killing of 13-year-old by FBI agent


October 29, 2013 in First Amendment, Freedom of Assembly, Prisons and Prisoners, Same-sex marriage | Permalink | Comments (0)