The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post: Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan. The suit […]
Archive | 2010
In Other Legal News
Today we’re mostly focused on the important district court decision yesterday in Perry v. Schwarzenegger, but I note there was also an important confirmation vote in the last hour or so. Congratulations, Justice-to-be Elena Kagan.
My Senate briefing on Kagan and the McDonald Case
By David Kopel on August 5, 2010 3:20 pm in Constitutional Law, Guns, Kagan Nomination, McDonald v. City of Chicago
It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocals of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And […]
Will the Justice Department Be Pressured to File an Amicus Brief in the Prop. 8 Case?
The rationale for Judge Walker’s decision striking down Prop. 8 would equally apply to the federal Defense of Marriage Act. After all, if it’s irrational and unconstitutional for a state to refuse to recognize same-sex marriages within its own boundaries, it’s irrational and unconstitutional for a state to refuse to recognize out-of-state same-sex marriages (a […]
More on Whether the Facts Matter in Perry v. Schwarzenegger
Over at CoOp, Dave Hoffman has more on the relative importance of the facts in Perry: [T]here are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive […]
Why Judge Walker May Want to Stay His Own Decision Pending Appeal (in the Same-Sex Marriage Case)
Prof. Rick Hasen (Election Law Blog) has an intriguing theory on this: I assume that Judge Walker, like most lower federal court judges, does not like to be reversed. The opinion he issued today is no doubt the most famous (perhaps also the most important) that the Judge will issue in his life…. If Judge […]
The Politics of Same-Sex Marriage, and Constitutional Amendments
The most interesting politico-legal question raised by Judge Walker’s same-sex marriage decision, I think, is whether it will provoke a new — and perhaps narrower — round of Federal Marriage Amendment activity. The earlier attempts at an FMA were quite broad, covering even state courts’ and legislatures’ decisions on marriage within the state. (I opposed […]
How Much Do the Factual Findings Matter in Perry v. Schwarzenegger?
Judge Walker’s opinion in the same-sex marriage case is notable for its factual record. As a commenter to Andrew Sullivan’s blog writes: What strikes me about Judge Walker’s opinion is the amount of evidence he included there – numbered, paraphrased facts with direct citation to and quotation from the trial record. As a lawyer, I […]
How Do You Apply the Rational Basis Test to a Restoration of Prior Law?
I’m sure some people have thought a lot about this issue, and I hope they’ll bear with me as I pose an amateurish question: Should it matter to the constitutionality of Prop 8 that it was passed as part of a ballot initiative that restored preexisting law? Here’s my thinking. Let’s say there’s a really […]
The Pace of Social Change and the Rational Basis Test
A lot of the legal issues in Judge Walker’s opinion have been addressed elsewhere, but I wanted to focus on one narrow part of the opinion raising an issue of particular interest to me: Whether and when the pragmatic concerns abut rapidly changing social institutions provide a rational basis for rejecting such changes. In the […]
A Maximalist Decision, Raising the Stakes
I’m still studying the decision today in Perry v. Schwarzenegger, which strikes down Prop 8 on both due process and equal protection grounds. I like a lot of the language, and the arguments, as a matter of rhetoric, common sense, and policy. There are some interesting twists on familiar arguments and, overall, the opinion is a […]
Key Language From Judge Walker’s Opinion
Much of Judge Walker’s opinion focus on the facts, and why he concludes that there is no rational basis on which a person can oppose same-sex marriage. But here’s a key passage from the law section of the opinion, on pages 113-14 (with citations to the record omitted): The right to marry has been historically […]
A “Win” for SSM in California
San Francisco District Judge Vaughn Walker today struck down California’s Proposition 8, the initiative passed by the state’s voters in 2008 defining marriage as the union of one man and one woman. I’m reading the decision now. It won’t be the last word on Prop 8, of course. Supporters of the ban on gay marriage will now […]
Brilliant People Agree With Me
One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And […]
An Interesting (Though Sad) Development in the Rifqa Bary Case
Rifqa Bary, about whom I blogged before, is the 17-year-old girl from a Muslim family in America who ran away from home, claiming her father had threatened to “hurt her, kill her or send her back to Sri Lanka” because she had converted to Christianity. A police investigation apparently concluded that the girl’s charges were […]