Nebraska and South Dakota Marriage Amendments: Similar But Different

Here is the Nebraska Marriage Amendment:
Article I-29
Marriage; same-sex relationships not valid or recognized.
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

And here is the South Dakota marriage amendment:

Art. XXI, § 9.
Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

How are these provisions different?

Disclosure: I was one of the Framers of the Nebraska Amendment and the sole Framer of the South Dakota Amendment. The South Dakota language is what I wanted to do in Nebraska, but someone (a non-lawyer) made a change at the last moment in Nebraska. I will explain in class.

In Citizens for Equal Protection v. Bruning, Pls. sued the Attorney General and Governor to permanently enjoin them from enforcing the Nebraska Marriage Amendment. Exactly which pending, imminent or threatened enforcement actions on the part of the AG and the Governor were Pls seeking to enjoin? Was either the AG or the Governor doing anything in the present or in the immediately foreseeable future to enforce the Amendment? If not, do Pls have standing to enjoin non-existent and non-threatened enforcement actions?

Under the 11th Amendment, is this really an action to enjoin state officials from taking unconstitutional action, or is this more accurately described as a suit against the State of Nebraska by Pls who have a generalized grievance against the State Constitution?

As an advocate who advised the the AG's office concerning this case, I was delighted that we lost the standing and 11th Am issues, because the 8th Circuit reached the merits and upheld the constitutionality of the Marriage Amendment (a ruling which is now the law of the 8th Circuit). But I continue to believe that the court lacked jurisdiction in this case under both Art. III and the 11th Amendment.

By the way, does the Nebraska Marriage Amendment prohibit same-sex "marriages" in Nebraska? If two people of the same sex "marry" in, say, a church located in Nebraska that performs same-sex "marriages" is this "marriage" prohibited by the Amendment? Does the Amendment prohibit a same-sex couple from living together and considering their relationship a "marriage?" Does the Amendment prohibit a private employer from providing various benefits to same-sex employees and their significant others?

Does the U.S. Constitution require states to recognize as a "marriage" any kind of consensual relationship for which people wish recognition and public benefits? If not all consensual relationships must be recognized, which ones? Why these and not others? We will consider many of these questions in a few weeks when we study the 14th Amendment and equal protection and due process.

My Article on Justice Thomas and "Partial Incorporation" of the EC

Was distributed in class last week.

If you missed it, a few copies are available in the handout racks outside the South Side Faculty Suite.

It is assigned as part of assignment 11.

Speaking of Mary jane

Drug laws raise all kinds of interesting constitutional questions. Here is a recent post from the Religion Clause blog:

Hawaii Supreme Court Rejects Free Exercise Defense In Marijuana Case

In State v. Sunderland, (HI Sup. Ct., Sept. 21, 2007), the Hawaii Supreme Court held that the First Amendment's Free Exercise clause is not a viable defense to a prosecution under state law for illegal possession of marijuana. The court also found that defendant Joseph Sunderland failed to preserve for appeal his argument that use of marijuana for religious purposes in his own home is protected by his right to privacy. Three justices dissented on this point, but, after reaching the merits of the privacy argument, only one of those three
concluded that Sunderland's defense should prevail. (Text of dissents 1, 2, 3).

Unintended Consequences of the "Evolving" Constitution

Sometimes when the Court creates new constitutional doctrine in one area, it causes unintended consequences in another area.

For example, when the court expands Congressional power to regulate local economic activity as interstate commerce (local equals interstate, non-commerce equals commerce--see Wickard), it brings state and local government employment within the scope of the new & improved Commerce Clause. Thus, when Congress seeks to impose federal wage and hour laws on state government as an employer, a clash between sovereigns that could not have occurred under the original Commerce Clause becomes a serious problem under the new & improved Commerce Clause.

Does Congress' power to regulate interstate commerce apply when Congress enacts laws regulating the activities of state government? Who should decide the terms and conditions of employment between state government and state employees performing the functions of state government? Congress? Or state law?

Up In Smoke

Here is the full SCOTUS opinion in Gonzalez v. Raich in which the Court upheld the authority of Congress under the Commerce Clause to prohibit the local cultivation and use of "medical marijuana" as permitted by California law. Don't worry about reading the full opinion, we have an edited version in our casebook supplement.

Here is the oral argument transcript.

Here is an article that suggests that as a result of the case it is federalism that has gone up in smoke. Here is an article written by Pl's counsel, Randy Barnett, and here is an interesting excerpt:

It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

And here is an interesting post from the Volokh blog:

Raich and Prosecutorial Discretion: Bloomberg has an interesting story about the consequences (or lack thereof) of yesterday's Raich decision:

Federal law enforcement officials in San Francisco said they don't intend to crack down on medical pot users, who under California state law are allowed to buy and smoke marijuana with a doctor's permission. About 40 marijuana clubs in the city, which operate without interference from local police, are likely to continue in the wake of the Supreme Court decision that federal drug laws ban use of medical pot. "We respect the state law," said Javier Pena, special agency in charge at the San Francisco office of the U.S. Drug Enforcement Agency. "I can't tell you we are going to shut down all those clubs tomorrow. Our efforts will remain targeted at the trafficking organizations. We've never targeted the user, the sick people, the dying people." The DEA in San Francisco has shut down two of the city's pot clubs and arrested two people in connection with club operations in the last two years, said Casey McEnry, an agency spokeswoman. . . . California Attorney General Bill Lockyer said the U.S. has always been able to prosecute medical marijuana users for violating federal drug laws and has rarely done so. "This doesn't represent a big change for the potential for federal enforcement," Lockyer said in a telephone interview. "Our medical marijuana users were always exposed to the possibility of federal prosecution; there haven't been that many."

This is an important point, I think. The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to bring cases doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way.

And here is an interesting post from Lyle Denniston over at the SCOTUS blog:

Monday, June 06, 2005

Commentary: Justice Kennedy and the "war on drugs"

Posted by Lyle Denniston at 08:30 PM
Justice Anthony M. Kennedy's role in Monday's 6-3 decision in Gonzales v. Raich, upholding sweeping power for Congress to criminalize even personal, medical use of marijuana, may be baffling from the perspective of his accustomed role in supporting state power against overreaching congressional legislation. But there is perhaps a different, and simpler, explanation for his vote with the majority (his silent vote, as Ann Althouse points out in her post below). Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures.

Three fairly recent examples suggest that the Justice has a zero-tolerance point of view.

Two are other "silent" votes he has cast: joining the opinion written by Justice Clarence Thomas in U.S. v. Oakland Cannabis Buyers' Cooperative, decided May 14, 2001, finding no medical necessity exception to the Controlled Substances Act, and joining Thomas' 6-3 opinion in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, decided June 27, 2002, upholding the most sweeping drug-testing policy yet to come before the Court -- a testing requirement for any public school student seeking to take part in any extracurricular activity, the near-equivalent of a universal testing policy.

The third example is perhaps the most telling: when the Earls case came before the Court, there was evidence that the young woman who challenged the policy, Lindsay Earls, had never used drugs herself. But that did not deter Kennedy at the oral argument on March 19, 2002. Turning red, he told Ms. Earls' attorney: "No parent would send their child to a 'druggie' school, except perhaps your client." He likened a drug test to a rule requiring students to wear a school uniform. With evident sarcasm, he also remarked: "It is hardly a revelation that the government is concerned about drugs among our youth. This is not exactly rocket science."
Perhaps there are some sacrifices of federalism doctrine the Justice is willing to make, as he may have done on Monday.

Class Schedule

Because our classes are for 60 minutes (instead of 50 minutes), we are supposed to cancel 7 classes this semester.

Here are two of the seven:

1. No class Wednesday September 19

2. No class Wednesday September 26

"The lady doth protest too much, methinks."

Here is a statement Justice O'Connor recently made in protest against statements made in Congress decrying "judicial activism":

"I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings."

And here is something I wrote in response:

Well, let's rewrite this eloquent statement of Justice O'Connor just a teensy, little bit:

"I, said Braveheart, am against judicial decrees driven by nakedly partisan reasoning. We must be ever-vigilant against those who would strongarm the People by imposing their preferred policies from the Bench. It takes a lot of degeneration before a country falls into judicial dictatorship, but we should avoid these ends by avoiding these beginnings."

The fact that the Justices are beginning to act so defensively encourages me that they are beginning to get it. Checks and balances are necessary on the judiciary no less than on the executive and legislative branches.

"Depends What the Meaning of 'Judicial Activism' Is"

An interesting article (link) By the way, this article contains links to other articles you may wish to read.

Here is another classic article, STRICT CONSTRUCTIONISM AND THE STRIKE ZONE, by Prof. Doug Linder.

Con Law Book Recommendation

Constitutional Law--National Power and Federalism: Examples and Explanations (Examples & Explanations Series) (Third Edition 2004)

Here is a link to Amazon.

It seems like it got mixed reviews on Amazon, but I like this book a lot. It is the one I recommended to my son when he took Con Law at Minnesota a few years ago. It provides nice summaries of doctrine with some good hypos for analysis. Just a good supplement to your casebook reading.

McCardle Discussion

I really enjoyed today's class discussion. I know large classes are not always conducive to discussion, but please feel free to speak up and debate these important issues about the meaning of our rights and liberties.

I made a few additions to my blog post (immediately below) on McCardle and the Pledge hypo to highlight some of the questions that arose in class today.

Feel free to post comments and to continue the discussion and debate on line.