Romer and the Nebraska Marriage Amendment

In Romer, the Court said that Colorado Amendment 2 failed rational basis review because the nearly infinite breadth of the amendment was not rationally related to the legitimate state interests of protecting the liberty of landlords and employers from restrictive gay rights laws. See p. 998-1000. In other words, the means employed were extremely overinclusive with respect to the legitimate governmental purpose of economic liberty. How does Romer apply to the Nebraska Marriage Amendment?

The Nebraska Constitution (art. I, sec. 29) provides:

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.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Is the Nebraska marriage amendment extremely broad like Amendment 2, or does it narrowly deal with only the issue of marriage and close-substitutes for marriage?

The Eighth Circuit (in the Bruning case) upheld the Nebraska Marriage Amendment and said it is rationally-related to the legitimate interest in "steering procreation into marriage?" Is there a strong government interest in encouraging procreation to take place within a marriage between the procreating partners? In other words, is out-of-wedlock procreation a social problem that the state has a legitimate interest in discouraging? If so, is it rational to limit the "responsible procreation" program to couples whose sexual relationships might result in procreation?

Although the Romer Court said it was applying the rational basis test, some commentators view the decision as actually applying some kind of medium rare scrutiny to Amendment 2. Did Justice Kennedy's reluctance to ratchet up the level of review for sexual orientation discrimination affect the outcome of Bruning? How would the case come out under intermediate scrutiny or strict scrutiny?

Guns Stop People From Killing People!

How about a little Second Amendment update!

In today's column, George Will posits this ironic headline from the mainstream media:

No one saw the possible problem with the word "despite" in this headline: "Gun crime continues to decrease despite increase in gun sales."

Have a great Thanksgiving.

Nebraska Marriage Amendment

Here is the text of the Amendment, Nebraska Constitution (art. I, sec. 29) , which I helped draft:

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.

Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.

Is this Nebraska Amendment constitutional under the 14th Amendment?

Obamacare Case Granted Cert

The Gotham Times has the story.

Here is an excerpt:

The Supreme Court agreed to hear appeals from just one decision, from the United States Court of Appeals for the 11th Circuit, in Atlanta, the only one so far striking down the mandate. The decision, from a divided three-judge panel, said the mandate overstepped Congressional authority and could not be justified by the constitutional power “to regulate commerce” or “to lay and collect taxes.”
The appeals court went no further, though, severing the mandate from the rest of the law.
On Monday, the justices agreed to decide not only whether the mandate is constitutional but also whether, if it is not, how much of the balance of the law, the Patient Protection and Affordable Care Act, must fall along with it.
Even the Obama administration, while arguing that the mandate is perfectly constitutional, has said that it is “absolutely intertwined” with two other provisions — one forbidding insurers to turn away applicants, the other barring them from taking account of pre-existing conditions. 

Some are calling this the Supreme Court's "Term of the Century" because so many important cases are before the Court this year.

What's Good For Peter and Paul

Is Good For Kody, Meri, Janelle, Christine and Robyn. No?

From the ReligionClause Blog:

"Sister Wives" Challenge Utah's Ban on Polygamy

A lawsuit was filed in federal district court in Utah yesterday by the polygamous family featured on the TLC series "Sister Wives" challenging the constitutionality of Utah's statute which bars polygamy.  The complaint (full text) in Brown v. Herbert, (D UT, filed 7/13/3011) summarizes the claims of Kody Brown and his 4 wives as follows:

To the extent that Article III of the Utah State Constitution, Utah Code Ann. §30-1-2, and ... §30-1-4.1 are used as the basis for the criminalization of plural relationships or families, the Brown family seeks a declaration that these laws are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment ... and the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment....

According to the Salt Lake Tribune, plaintiffs' lawyer filing the lawsuit-- George Washington University Prof. Jonathan Turley -- at a press conference said: "We can’t embrace privacy as a principle and pick and choose who can enjoy it."  Utah Attorney General Mark Shurtleff says polygamy is different because it involves not just consenting adults, but also their entire families. According to AP, Utah has not prosecuted  prosecuted anyone for polygamy under its bigamy statute since 2003. However, according to the complaint in the lawsuit, the Browns have been subject to criminal investigations in Utah.

Sex for Phillies Tickets

Protected under Lawrence? Link

Suppose a man asks a woman on a date to attend the World Series. She accepts, goes to the game at his expense, and then they have sex at his apartment after the game. Protected under Lawrence?

Suppose a woman places an ad in the personals section of the New York Review of Books: "Busy forty-something professional woman seeks sexual relationship with busy professional man." They meet in a bar and she is arrested by the undercover police officer who responded to her ad? Protected under Lawrence?

Pro-Life Nurses Sue Hospital

Here is a Press Release about a law suit recently filed by ADF, a public interest law firm I often work with:

FOR IMMEDIATE RELEASE

12 nurses sue NJ hospital for forcing them to participate in abortions

ADF represents nurses in lawsuit against Univ. of Medicine and Dentistry of NJ
Tuesday, November 01, 2011

ADF attorney sound bite:  Matt Bowman

NEWARK, N.J. — Twelve nurses represented by Alliance Defense Fund attorneys filed suit Monday against their employer, a hospital run by the University of Medicine and Dentistry of New Jersey, for requiring them to participate in abortions. Federal and state law both protect them from being forced to do so.

“Pro-life nurses shouldn’t be forced to assist in abortions against their beliefs,” said ADF Legal Counsel Matt Bowman. “No less than 12 nurses have encountered threats to their jobs at this hospital ever since a policy change required them to participate in the abortions regardless of their religious objections. That is flatly illegal.”

Federal law prohibits hospitals that receive certain federal funds from forcing employees to participate in abortions. UMDNJ receives approximately $60 million in federal funds annually. In addition, New Jersey law states, “No person shall be required to perform or assist in the performance of an abortion or sterilization.”

In September, UMDNJ initiated a policy change and began telling Same Day Surgery Unit nurses that they must assist abortions. The hospital imposed the policy on the nurses in October and repeatedly threatened that they must assist abortions or be terminated.

When one nurse objected to assisting abortions on the grounds of her religious beliefs, a supervisor responded that UMDNJ has “no regard for religious beliefs” of nurses who object to participating in abortions.

The hospital scheduled the nurses to begin training to assist abortions on Oct. 14. The training involves actually assisting surgical abortions, which the nurses believe is, in the words of the U.S. Supreme Court, “an act of violence against innocent human life.”

If the court does not issue an order requested by ADF attorneys that stops the training sessions while the lawsuit moves forward, the nurses and their colleagues will continue to be scheduled one by one to undergo the training and then to assist abortions on a regular basis. The lawsuit also requests that the hospital be ordered to return part of the federal taxpayer money it has received in light of its violation of federal law.

Demetrios K. Stratis, one of nearly 2,100 attorneys in the ADF alliance is local counsel in the case, Danquah v. University of Medicine and Dentistry of New Jersey. ADF is currently involved in a similar lawsuit in New York state court involving a nurse at Mt. Sinai Hospital.

• Photo of nurse Lorna Jose-Mendoza, who is scheduled to assist with abortions Nov. 4 against her religious objections
• Pronunciation guide: Bowman (BOH’-min)

On the Road Again--No Class Wednesday & Thursday October 26 & 27

     Brooklyn Bridge (just after I purchased it for a bargain price from some guy named Rocky) August 2010



I will be speaking about federalism and liberty at Idaho Law and Montana Law next week.

Thus, class is canceled on Wednesday and Thursday October 26 & 27. I think we have now used 5 of our 7 class cancellation days.

Justice Scalia: “I’m hoping that the ‘ living’ Constitution will die,”

The great debate continues this time between Justice Scalia and Justice Breyer. These two buddies appeared together recently and debated the merits of the so-called "living Constitution." Here is an excerpt:

Scalia and Breyer have often appeared together to spar cheerfully with each other about their starkly different views regarding the notion of a living Constitution.
“I’m hoping that the ‘ living’ Constitution will die,” Scalia said, adding that the controversial nature of recent confirmation proceedings is partly attributable to a notion that the Constitution evolves. “It’s like having a mini-constitutional convention every time you select a new judge.”
But Breyer, no stranger to Scalia’s views, struck back, saying that Scalia’s view could produce “rigidity” and interpretations that might not work for people living in the 21th century.

Link.

Of course, Breyer is correct that the existing Constitution may need to be changed to meet the needs of people living today.

But, also of course, the real issue is who should amend the Constitution--an unelected body of 5 lawyers acting as an ongoing constitutional convention with the power to propose and ratify amendments, or we the people through the Art. V Amendment process?

And if the Amendment process is too difficult to be workable, maybe we should amend Art. V to require a Constitutional Convention to be called every 20 years, as Jefferson suggested, to propose modern amendments for ratification.

What are some of your thoughts?

No Class Wednesday October 5

I'm heading off to St. Louis next week to speak at SLU and Wash U law schools.

For next Thursday's class, lets be prepared to discuss two short assignments--Nos. 9 & 10.

The Tea Party's Constitution

I. Article V and My Proposed Amended Art. V

                                    Art. V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

                             My Proposed Amended Art. V

1. The words and phrases of this Constitution shall be interpreted according to their ordinary meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations. [I borrowed most of this language from Randy Barnett’s proposed federalism amendment]

2.  Whenever a majority of either House of Congress shall deem it necessary, such House shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States.

3. Whenever the Legislatures of any five of the several States shall deem it necessary, such Legislatures shall propose Amendments to this Constitution, which shall be valid to all Intents and Purposes, when ratified by the Legislatures of three-fourths of the several States.

4. Congress, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.

5. Anything to the contrary herein notwithstanding, no state, without its consent, shall be deprived of its equal suffrage in the Senate.

II. Constitutional Convention ("Con Con")

The second method created by Article V for amending the Constitution provides that Congress “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Again, any amendments proposed by the Constitutional Convention will become law only “when ratified by the legislatures of three fourths of the several states.” So, to be clear, under this second method, four separate actions are required in order to amend the Constitution:

First, two-thirds of the states must apply to Congress for a constitutional convention.

Second, Congress, at least in theory, must—shall—call a constitutional convention.

Third, the constitutional convention must then propose certain constitutional amendments.

And, fourth, the proposed amendments must then be ratified “by the legislatures of three fourths of the several states.”

 III. Some Tea Party Proposals

Prof. Barnett's proposed federalism amendments include:

--a proposal to replace the income, gift and estate taxes with a uniform “fair” tax on consumption; 

--a proposal to restrict the commerce and spending powers of Congress in order to restore them to what Randy believes is their original understanding; 

--a balanced budget amendment with a Presidential line item veto; 

--a term limits amendment for Congress

--repeal of Seventeenth Amendment, which provides for the direct election of United States Senators instead of, as before the Seventeenth, appointment by state legislatures

IV. The "Repeal Amendment"

My primary focus: Prof. Barnett’s “Repeal Amendment,” which I believe may well be able to get political traction. After a series of meetings between Prof. Barnett and Tea Party activists, they decided to go forward with the following proposed amendment:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose and that particularly describe the same provision or provisions of law or regulation to be repealed.

V. Madison and Federalist No. 45

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

VI.  Commerce Clause and tenth Amendment

Art. I Section 8.

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The Tea Party's Constitution

I will be giving a Law School Colloquia Presentation next Wednesday Sept. 28th (at Noon in Room 113) on "The Tea Party's Constitution." This is just a sexy title for a proposal, first made by Prof. Randy Barnett of Georgetown Law, to call a constitutional convention for the purpose of proposing constitutional amendments designed to limit the power of the Federal Government and to increase the powers retained by the States and the People.

This presentation is open to everyone, so if you are interested in discussing the possibility of a constitutional convention please come.

GOP's Pledge To America

Consider this pledge for Congress: "Require every bill to be certified as constitutional before it is voted on."

And now consider this "analysis" from the MSN web site:

Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary. 

Is it an "encroachment on the judiciary" for Congress to consider, for example, whether proposed legislation exceeds its own power under the Commerce Clause? Even if Congress takes a more narrow view of its own power?

Class Cancelled

We will not have class next Wednesday Sept. 21, 2011.

This is the second of our seven required class cancellations.

"Get-it-rightism"

I hope you enjoyed getting an opportunity to talk with Justice Thomas.

It was one of the highlights of my 32 years here.

My take away from his noon chat was the label he uses to describe his search for the textual meaning of the Constitution--"get-it-rightism!"

I love that phrase.

Next Week

No Class on Wed (Sept. 14) and Thursday (Sept. 15).

However, we will meet with Justice Thomas and Prof. Berger's class at 10:30-11:30 am on Thursday Sept. 15 in the Auditorium. Please be thinking of some questions you would like to ask Justice Thomas.

Justice Thomas Article

Here is a great recent article about Justice Thomas from the New Yorker.

He will be meeting with our class soon, and this article is worth a quick read.

U.S. Const. Art. V

Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Government Disapproval of Religion

Jay Wexler's article available here.

Stanley Fish on "What Does the First Amendment Protect"

From NYT (link)

Here is the article:

July 4, 2011, 8:30 pm

What Does the First Amendment Protect?

By STANLEY FISH

Stanley Fish on education, law and society.

In the two First Amendment cases handed down last week — one about limiting sales of violent video games to children, the other about Arizona’s attempt to make public financing more attractive to candidates — the dissenting justices contend that the protection of speech is not really the issue at all.
In his dissent to Brown v. Entertainment Merchants, Justice Stephen Breyer declares that this is not a case, as the majority claims, about “depictions of violence”; rather it is a case about “protection of children.” What Breyer is doing (or attempting to do) is shift the category under which the matter of dispute is to be considered. According to Justice Antonin Scalia, writing for the majority, depictions of violence merit First Amendment protection because they are speech, not acts. Breyer replies that the video games in question are in fact acts, although they are, he acknowledges, acts “containing an expressive component.” That component, he argues, does not outweigh or render irrelevant the “significant amount of physical activity” involved in playing these games, activity in the course of which players do not merely see violent things but do violent things.
The danger Breyer wants to protect children from is not the danger of being exposed to violence, but the danger of being initiated into violence. This happens (or can happen) when game-players are required not merely to view violent acts passively, but to perform them by making a succession of choices (with a button or joystick) that decide the fate of the characters they have created.

Justice Samuel Alito, who concurs in the result because he believes the law to have been poorly drafted but disagrees with the majority’s reasoning, provides an example. Compare, he says, the reader of a novel depicting violence with a video-game player “who creates an avatar that bears his own image; who sees a realistic image of the victim … in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.” Are these experiences the same?, Alito asks, and answers no. The difference, which Scalia labors to deny (“Certainly the books we give to children … contain no shortage of gore”), is sufficient, Alito thinks, to justify the state’s interest in regulation, even though he finds the present attempt at regulation flawed.
Breyer frames the issue precisely when he declares, “This case is ultimately less about censorship than it is about education.” Education is important in a democracy, he explains, because it gives us a means of raising “future generations committed cooperatively to making our system of government work.” The implication is that a generation immersed in violent video-games will be committed not to cooperation but to actions less helpful to the flourishing of the country.
Justice Clarence Thomas, writing another dissent disguised as a concurrence, shares Breyer’s concern that children be protected from influences that might turn them into damaged citizens. He reminds us of Noah Webster’s admonition that children’s minds be “untainted till their reasoning faculties have acquired strength and the good principles which may be planted … have taken deep root”; and he cites a 1979 opinion in which Justice Lewis F. Powell declares that “the State is entitled to adjust its legal system to account for children’s vulnerability.” Children are vulnerable, according to this theory, because they have not yet developed the ability to distance themselves from what is put before them. Interactive video games increase this vulnerability and lead not merely to the consuming of bad images, but to the possibility of becoming a bad person. This is the corruption that will follow, Alito fears, from allowing “troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.”
Breyer drives the point home: “…extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life.” Violent video games, in short, are not representations that deserve First Amendment protection; they are acts with harmful consequences and children deserve to be protected from them.
Although its subject matter could not be more different, Arizona Free Enterprise v. Bennett, displays the same opposition between a libertarian concern for freedom and a consequentialist concern for the corruption that attends unregulated activity. In this case it is not a child but the political system that is in danger of corruption, and the source of corruption is not a violent game but the desire of private individuals to purchase the votes of office-holders.
That at least is the view of Justice Elena Kagan, writing in dissent: “Campaign finance reform over the last century has focused on one key question: how to prevent massive pools of private money from corrupting our political system.” In Kagan’s formulation, “private money” equals “special interests,” whereas those who “rely on public, rather than private moneys, are ‘beholden [to] no person.’” Therefore by “supplanting private cash, public financing eliminates the source of political corruption.”
No says Chief Justice John G. Roberts, writing for the majority. Arizona’s public financing scheme, he contends, is an unconstitutional restriction on free speech because it penalizes privately financed candidates for being successful. Expenditures by privately financed candidates and the groups supporting them trigger the awarding of matching funds to candidates who have accepted the limits that come along with public funding. Roberts concludes that “any increase in speech is of one kind … that of publicly financed candidates.” So even if “the matching funds provision did result in more speech … in general, it would do so at the expense of impermissibly burdening (and thus reducing) the speech of privately financed candidates.”
But that parentheses — “and thus reducing” — is a little too fast. How exactly does the fact that in response to your expenditures an opponent with fewer resources will be given additional funds reduce your speech? You can still get to spend as much as you want and to say as much as you want. What you don’t get to do is overwhelm the voices of less affluent candidates and their supporters. As Kagan points out, “what petitioners demand is essentially a right to quash others’ speech … they would prefer the field to themselves, so that they can speak free from response.” The Arizona law, she adds, can hardly be characterized as a restriction on speech..
It follows, Kagan asserts, that “public financing furthers a compelling interest” — the prevention of corruption — and does so without diminishing anyone’s speech rights. The conclusion, she believes, is inescapable “[e]xcept in this Court,” where the majority declares that the state interest in leveling the playing field “cannot justify undue burdens on political speech.” But, to make the point again, there is no burden unless being prevented from being the only speaker with a megaphone is a burden, and it is not. In the majority decision, a compelling state interest is set aside because of a restriction on speech that has not occurred.
In some exasperation, Kagan remarks, “Only one thing is missing from the Court’s response: any reasoning to support [its] conclusion.” That’s not quite right. The reasoning is contained in an assumption that is the reverse of Kagan’s: private money, rather than being the vehicle of corruption, is the vehicle of speech, and therefore you can’t have too much of it, no matter what its effects. The First Amendment, says Roberts, “embodies our choice as a Nation that, when it comes to … speech, the guiding principle is freedom—the ‘unfettered interchange of ideas’ — not whatever the State may view as fair.”
Roberts does not have to reply to Kagan’s points — he can even concede them — because in his view they are irrelevant. “When it comes to protected speech, the speaker is sovereign.” Other considerations (like corruption and fairness) may be in play, but the rights of the speaker — in this case the rights of the spender — are paramount. They are what the First Amendment protects. Kagan disagrees: “The First Amendment’s core purpose is to foster a healthy vibrant political system full of robust discussion and debate,” and the Arizona law, with its mechanism for increasing participation is, she maintains, true to that purpose.
And there you have it: a clash between the worship of freedom of speech and a concern for the quality of public life in relation to which free speech may sometimes be asked to take a back seat. It is the same clash that pits the freedom to play video games against society’s interest in fostering a generation of young adults responsive to its ideals and aspirations. We have seen this before — in the pornography cases, in the crush-video case, in the case upholding the right of an anti-gay ministry to picket the funerals of soldiers — and we shall certainly see it again.