Individual liberties

  • April 27, 2015
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    On April 28, the Supreme Court will hear arguments challenging the same-sex marriage bans currently in place in Kentucky, Ohio, Tennessee and Michigan.  Here are my predictions for both the argument and the ultimate decision (in ascending order of certainty).

    1.      After the questioning stops and Chief Justice Roberts officially closes the oral argument with his consistent mantra, “The case is submitted,” no human being will ever be able to see any video recording (or photograph) of this historic day at the Court.  Sadly, this is a fact, not a prediction.

    2.      During the argument, Justice Thomas will 1) not utter a syllable; 2) look uncomfortable for most of the argument; and 3) eventually write a dissent saying he would of course not vote for the bans on same-sex marriage if he were a legislator but nothing in the Constitution prevents states from adopting them.  This could be avoided if Justice Thomas would just re-read the Equal Protection Clause (no “person” shall be denied the “equal protection of the laws”).

    3.      Justice Kennedy will try to out gun Judge Posner’s shredding of lawyers who tried to defend the same-sex marriage bans on the basis that they somehow further the states’ interests in the welfare of children and the family.  Kennedy will come close to matching Posner’s witty ire but he won’t succeed.

    4.      Justice Kennedy will eventually write a decision striking down the same-sex marriage bans on the basis that there are no rational reasons for the bans other than unconstitutional dislike of gays and lesbians.  His decision will not be as entertaining or persuasive as Posner’s, but it will count a whole lot more.

    5.      No Justice will ask about the perplexing amicus brief filed by “same-sex attracted” men (and their wives) arguing that overturning same-sex marriage bans would be an affront to their “dignity.”  Please don’t ask me to explain this brief.

  • April 27, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered.  During oral argument, the justices aren’t interested in educating the citizenry.  They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly  quickly—and usually right over the heads of anyone but the experts.  Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.

     

    1.    Justice Kennedy

    The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy.  With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court.  Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality.  If I were a betting person, that’s where I’d put my money, too.  Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises.  In Romer v. Evans, he declined to say that sexual orientation was a suspect classification.  In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny.  In U.S. v. Windsor, half his opinion rested on states’ rights.  If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble.  That’s why it’s worth paying close attention to what Kennedy says at oral argument.  Is he skeptical of the state’s arguments?  Does he express concern about the implications of overturning the marriage bans?  Or does he emphasize the harms that come from denying LGBT couples marriage?  Kennedy, in this as in most other cases, is the vote that counts.

    2.    Baker v. Nelson

    Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage.  Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue.  The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States.  The justices summarily affirmed the lower court decision “for want of a substantial federal question.”  In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim.  Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis?  There are good reasons to believe they won’t.  The law and society has changed immensely since 1971.  Back then, laws discriminating against women didn’t even trigger any form of heightened review.  Besides, do the justices ever really treat any prior decision as binding?

  • April 9, 2015

    by Nanya Springer

    On “mommy blogs” across the Internet, pregnant women lament that perfect strangers feel entitled to pat their bellies, offer unsolicited diet and parenting advice, and ask intrusive questions about their personal health.  For most women, such invasions are at most a temporary social annoyance.  But it should come as no surprise that in this culture of entitlement to pregnant women’s bodies, legislation that effectively strips pregnant women of their privacy and autonomy is widespread and, in many instances, has resulted in incarceration and forced intervention by the state.

    The ceaseless barrage of measures restricting the liberty of pregnant women takes many forms.  First, there are laws that place medically unnecessary (and sometimes irrational) mandates on abortion procedures: waiting periods, crisis pregnancy center counseling, ultrasounds, physician scripts, ambulatory surgical center requirements, hospital admitting privileges, hospital transfer agreements, procedure-specific bans, parental consent laws, restrictions on private insurance coverage, and the list goes on.

    In Texas – a state where judges are elected – a bill is being considered that would publicize the names of judges who give minors permission to obtain an abortion.  The Ohio House last week passed a bill that would ban abortion once a fetal heartbeat is detected – possibly before a woman even knows she is pregnant – and provide for doctors who violate the ban to be imprisoned.  A new Arizona law requires doctors to tell patients, contrary to medical evidence, that drug-induced abortions can be reversed.  And on Tuesday, Kansas became the first state to ban dilation and evacuation as an abortion method.

    Such restrictions and state-sanctioned intrusions into the doctor-patient relationship are alarming, but they are not the end of the story.  At least 38 states have enacted “fetal homicide” laws, the majority of which apply to even the earliest stages of gestation.  These laws, which were originally sold to the public as tools to prosecute abusive boyfriends and others who may harm pregnant women, are increasingly being used to prosecute pregnant women themselves.

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • February 9, 2015
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs. Edelson is also author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror from the University of Wisconsin Press.

    The misstep Republicans took last month on legislation seeking to prohibit abortions after 20 weeks of pregnancy has exposed larger problems related to the party’s position on abortion.  The bill foundered when some House Republicans raised concerns about a provision that would create a “rape exception” to permit abortions after 20 weeks of pregnancy, but only for victims of rape who report the crime.  Republican House member Rep. Carlos Curbelo said he is “pro-life but . . . had concerns about the bill.”  Rep. Curbelo added that he believed the rape reporting requirement caused “a level of discomfort, especially with the females in our conference.”  Republican leaders in the House agreed with Curbelo and canceled a vote on the legislation, apparently based at least in part on concerns that Republican women in the House would vote as a bloc against the bill because of the wording of the rape reporting provision.

    This unexpected development highlights problems in terms of both logic and politics for Republicans when it comes to abortion and, more broadly, when it comes to women.  The Republican Party has taken a position that strongly suggests abortion is never justified, using language reminiscent of anti-abortion arguments that flatly describe abortion as murder.  The 2012 Republican Party platform declared that “the unborn child has a fundamental individual right to life which cannot be infringed.” That language does not seem to leave room for any exceptions – whether they might be for the health of the pregnant woman or for rape.  Logically, it makes sense for the party to take this stance.  If Republicans believe abortion involves the taking of an innocent life – and elected Republicans frequently make clear that they believe precisely this – then it would not make sense for them to support abortion under any circumstances (other than if the pregnant woman’s life is at risk).

    The problem is that polling shows most Americans reject this position and believe women who are pregnant as the result of rape should be able to get an abortion.  Relatedly, in 2012 when Republican senatorial candidates Todd Akin and Richard Mourdock tried to explain why they believed abortion was only permissible in cases of “legitimate rape” (Akin) or that perhaps it is never permissible because pregnancy resulting from rape is “something God intended” (Mourdock), they ended up costing their party otherwise very winnable Senate seats.

    Republicans, of course, remember 2012 very well and have no interest in reminding the rest of the country of the cringe-inducing debate over how best to define rape.  Sen. Lindsey Graham recently suggested that the party needs to “find a way out of this definitional problem with rape” (although, as Joan Walsh observes, Sen. Graham risks stepping in the same trap as Todd Akin simply by alluding to a “definitional” question regarding rape.)  The revival of the rape definition discussion (most recently prompting philosophical musings by a Utah lawmaker about the ability of unconscious wives to have consensual sex) raises a larger problem for Republicans: It seems they just don’t trust women