Friday's Class: Focus on Three Cases

We are finishing the list of assignments right on schedule, but we will need to limit our focus somewhat concerning assignment number 22.

For Friday, December 1, 2006, please read all of assignment 22, but we will spend our class time on 3 cases:City of Cleburne (p.918), Romer(p.926), and Bruning(re-read your printout from link supra).

This Term's Racial Affirmative Action Cases

Today's USA Today has this article that includes this key passage:

The school districts in Louisville and Seattle are at the heart of a pair of legal disputes, now before the U.S. Supreme Court, that test whether public schools can use race as a factor in determining where students go to school. The cases, to be heard by the court Dec. 4, have drawn national attention because they could affect policies in districts across the country.

The key legal question in the Louisville and Seattle lawsuits — which were filed by parents of white students who weren't allowed to attend the schools of their choice — is whether school-assignment plans that use students' race as a factor violate the Constitution's guarantee of equality.

It's an emotionally charged issue that gives the court its first chance to weigh in on racial policies since Chief Justice John Roberts and Justice Samuel Alito joined the nine-member court last term. The new justices are former government lawyers who, early in their careers, showed reluctance toward government race-based policies.

Alito's actions in the cases could be especially significant because he replaced the retired Sandra Day O'Connor, who often joined the court's four-member liberal wing to form a majority in favor of affirmative action policies. In 2003, her vote in a case involving the University of Michigan law school ensured that colleges could consider applicants' race to achieve diversity.

The Court and Partial Birth Abortion: Two Views

New York Times

Washington Times

Partial Birth Abortion Cases to be Argued This Wednesday

Update: Howard Bashman has a preview of the partial birth abortion cases (which will be argued today) here. His prediction: "I expect that the Supreme Court will uphold the constitutionality of this federal law by a vote of 5–4, and in the aftermath of such a ruling states too will be free to ban the procedure by enacting similarly worded statutes."


Today's Chicago Trib has this article.

I will post the transcript of the oral argument as soon as I get a link.

Michigan Voters Abolish Racial Preferences

Not to be lost among all the results from yesterday's election returns is the Michigan ballot issue that would "prohibit the University of Michigan and other state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin." That initiative won by a 58-42 vote of the people despite almost unanimous opposition from the powers that be in that state.

Here is today's coverage on the issue from the Detroit Free Press.

Lawrence Questions

1. Did Lawrence apply a kind of "medium rare scrutiny" to the Texas sodomy law?

2. After Lawrence, may a state criminalize prostitution or do consenting adults have a right of sexual autonomy that includes exchanging sex for money or money's worth?

3. May a state prohibit same sex marriage after Lawrence? In other words, may a state make it a crime for same-sex couples to cohabit as a "married" couple? What about a man who cohabits with more than one woman and holds himself out as "married" to both? Is there a difference between formal recognition of some new form of "marriage" and criminal proscription of that type of "marriage?"

4. What is the holding (the constitutional doctrine) of Lawrence? Is Lawrence basically Lochner with Mr. Vatsyayana's Kama Sutra substituted for "Mr. Herbert Spencer's Social Statics?"

5. Suppose the state of Texas re-enacts its sodomy law and bases its defense of the law on public health rather than public morality? Is public health a legitimate government interest? Is male on male anal sex associated with any rational public health concerns?