For Thursday's Discussion of Obergefell

Here below is a link to the opinion.  I will pay special attention to Chief Justice Robert's dissent, which I believe is one of the great opinions ever written in SCOTUS cases. Do you agree with Roberts when he basically accuses the majority of ignoring the Rule of Law and ruling a free people from the Bench?


Obergefell v Hodges (2015)

Obergefell--A Few Thoughts and Questions

1. What is Substantive Due Process?

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Does the Due Process Clause protect liberty by requiring procedural safeguards (by requiring process that is due before a state deprives someone of liberty), or does it protect certain liberties substantively?

If the latter, which liberties are protected? All liberties? Certain liberties? Which ones? Fundamental liberties? Which liberties are fundamental? And where does the Constitution provide a list of fundamental liberties?

Is Obergefell an example of Judicial Activism? Or is it an example of the Court faithfully applying the protections of the Written Constitution?

2. Chief Justice Roberts suggests that "those who believe in a government of laws, not of men" should be disheartened by the Majority's decision to redefine marriage in all 50 states. (p.2; 12;22).  What does he mean by this? What is the Rule of Law?

3. Roberts talks about "the precious right" to democratic self-government. And Bork quotes Chesterton:"What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." See also Scalia at p. 2: The Court's decision in Obergefell "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

What do you think Roberts & Scalia meant by all this?

4. Does Obergefell advance any liberty interest? Or does it deprive Americans of liberties explicitly protected by the Constitution?

5. How secure is religious liberty in the wake of Obergefell? Is absolute sexual autonomy and recognition a more fundamental liberty that religious liberty?

Con Law Seminar Spring 2016

Welcome to the Constitutional Law Seminar! I am excited about this year’s seminar because there are so many recent and important issues to discuss and debate.

The purpose of this short memo is to discuss the requirements for the course and to explain how your grade will be calculated.

The requirements for each student are:

1. Participate in our class discussions;

2. Do a class presentation of your research paper; and

3. Write a 30-45 page research paper (similar to a short law review article or student note) on a constitutional law topic of your choosing. Your paper may focus on any issue normally covered in our Constitutional Law I and II courses, but may not focus on issues of criminal procedure. You should discuss your topic with me at your earliest convenience. You must get approval of your topic from me.

Your grade for the course will be based 100% on the grade you receive on your paper, however, your grade may be increased by one full point for exceptionally good class participation (including an excellent presentation of your paper).

OFFICE, EMAIL, and COURSE BLOG

Professor Duncan’s office is in Room 220. Please feel welcome to stop by any time.

Professor Duncan’s email: rduncan2@unl.edu

Please check the course blog regularly for class announcements and substantive content. I will assume you have notice of anything posted on the course blog.

Hobby Lobby Rounds 1 & 2

Here are some cases I would like you to read for our discussion of religious liberty and the contraceptive mandate (RFRA & RLUIPA):

--RFRA & Hobby Lobby: RFRA text (link); Hobby Lobby (Link); RLUIPA:  Holt v. Hobbs (link) (Sup Ct opinion)

See Gedicks on Substantial Burden issue


See also this post from Religion Clause Blog:

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage.  In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016),  Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal.  The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)