equal protection

  • September 18, 2015
    Guest Post

    by Michael Waterstone, J. Howard Ziemann Fellow and Professor of Law, Loyola Law School Los Angeles 

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

    I believe the disability rights movement has more to offer constitutional law, and constitutional law has more to offer the disability rights movement. This is the case for at least several reasons.

    First, even assuming that the ADA is a more effective tool to combat the discrimination most people with disabilities face in their daily lives, its vitality is under constitutional attack. Cases like Garrett and Lane challenge Congress’s ability to legislate on behalf of people with disabilities under its Section 5 of the Fourteenth Amendment powers, and these attacks will continue. With equal protection law, if you are not playing offense, you are not playing adequate defense either.

  • May 7, 2013

    by Jeremy Leaming

    As the U.S. Supreme Court tries to figure out how it will handle California’s anti-equality law, Proposition 8, and the federal government’s equally noxious Defense of Marriage Act, a number of progressive-leaning states are moving forward on expanding liberty.

    Last week Rhode Island become the 10th state to enact legislation allowing same-sex couples to wed and it appears Minnesota and Delaware may be closely following suit. Before the Rhode Island legislature gave final approval of the marriage equality measure R.I. Gov. Lincoln D. Chafee (I), celebrated the impending law, saying, “We will be open for business, and we will once again affirm our legacy as a place that is tolerant and appreciative of diversity.”

    The Minnesota House has scheduled a vote for this week on a marriage equality bill, the Pioneer Press reports. The newspaper reports that the House speaker has determined he has the requisite votes to pass the measure and send it to the Senate, where its leaders say they are confident they have the votes to approve it. Gov. Mark Dayton said he would sign the marriage equality bill into law.  

    Delaware lawmakers are also on the verge of advancing equality. The state House has already passed a bill recognizing same-sex marriage and the Senate, the Associated Press reports, is preparing to vote today on the measure. The AP also notes the state’s Democratic Gov. Jack Markell has “promised to sign the measure ….”

    While marriage equality is hardly the capstone of LGBT equality, it is nonetheless an important part of the efforts to achieve equality under the law. (In this post, it’s noted that federal lawmakers are pushing other measures to protect LGBT people in the workforce and LGBT military families.)

    The states moving to end discrimination against same-sex couples – at least in the arena of granting marriage licenses and state benefits that come with legally recognized unions – provide a strong argument for federalism. That is, many argue – including some pro-equality individuals and groups – that states are moving along to recognize same-sex marriage and there is no reason for the Supreme Court to upset the process by, say, finding that states refusing to recognize same-sex marriage are violating the equal rights of lesbians and gay couples.

  • March 29, 2013
    Guest Post

    by Erin Ryan, Associate Professor of Law, Northwestern School of Law, Lewis & Clark College. Professor Ryan is the author of Federalism and the Tug of War Within. For more on the cases raising marriage equality concerns see the ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

    A federalism scholar explains why federalism isn't the issue in Hollingsworth and Windsor.

    Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued this week. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether they should just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter at hand is an individual right.

    While both cases raise curious issues of standing, the substantive issue at the heart of each case is whether same-sex couples should be able to marry. Hollingsworth v. Perry asks the Court to review the constitutionality of a California’s “Prop 8,” a ballot initiative banning same-sex marriages within the state. United States v. Windsor tests the constitutionality of the Defense of Marriage Act (DOMA), a federal law that prevents the U.S. government from recognizing same-sex marriages performed in states that allow it (and affecting the administration of some 1,100 federal benefits connected with marriage). 

    Yet the looming question for the Supreme Court is not just whether gays and lesbians have the right to marry -- the justices must also confront the question of who should decide whether same-sex couples can marry. Is this something that states should be able to decide for themselves, by making and interpreting state law? (After all, matters of family law have traditionally been left to state regulation.) Or, is the decision to marry so fundamentally important that it triggers the federal Constitution’s promise that all citizens will be treated equally under the law? (After all, even though family law is traditionally left to the states, the Constitution won’t allow them to deny interracial marriages.)

  • March 27, 2013

    by Jeremy Leaming

    In a powerful, personal piece for USA Today, the Constitutional Accountability Center’s Judith Schaeffer explains why it’s far past time for the demise of the so-called Defense of Marriage Act.

    Schaeffer, vice president of CAC and a longtime attorney handling constitutional matters, and her partner Eileen Ryan had hoped to get married in 2004 after then-San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to same-sex couples. Schaeffer and Ryan planned a trip to San Francisco to wed, after nearly 26 years together, but the California Supreme Court moved too quickly and shut down “Mayor Newsom’s noble endeavor,” Schaeffer writes. Subsequently the couple was able to wed in Canada. Schaeffer notes the couples’ “wedding announcement joyfully expressed our ‘gratitude to the enlightened people of Canada.’”

    Now before the U.S. Supreme Court are two cases that could decide whether lesbian and gay couples have a constitutional right to wed. As noted here yesterday, oral argument in the first case, Hollingsworth v. Perry, which involves a constitutional challenge to California’s ban on same-sex marriage, did not bode well for a high court opinion declaring that same-sex couples have a constitutional right to marry. (It appeared the justices were searching for a way to avoid reaching the question; and tossing the case on standing grounds may well be that avenue.)