Andrew Sullivan was arguing for same-sex marriage long before it was cool. When he made the case for gay marriage in a 1989 essay in The New Republic, “Here Comes the Groom,” he was attacked from the left by gay activists for selling out the cause of sexual liberation and slavishly acquiescing to bourgeois institutions. How times have […]
Author Archive | Jonathan H. Adler
Epstein on the Gay Marriage Cases
Richard Epstein has two recent pieces discussing the Hollingsworth and Windsor cases. One for Hoover’s Defining Ideas, the other for Ricochet. In these pieces he notes some of his doubts about the libertarian case against DOMA and Proposition 8, but also suggests that Justice Kennedy — if he is to be consistent with his prior opinions — should […]
Federalism and Proposition 8
Federalism principles may weigh against Section 3 of the Defense of Marriage Act (DOMA), but what about Proposition 8? Reason.com has just posted an exchange between me and Ilya Shapiro of the Cato Institute on this question. Cato’s Ilya S. (not to be confused with our Ilya S.) argues that federalism has nothing to do […]
Supreme Court to Consider Michigan Affirmative Action Ban
Among the orders issued by the Supreme Court this morning was a grant of certiorari in Schuette v. Michigan Coalition to Defend Affirmative Action , in which the question is whether a state ballot initiative prohibiting the consideration of race in state university admissions violates the Equal Protection Clause. The case arises from a lawsuit […]
Why Does Federalism Matter in an Equal Protection Case?
The question presented in United States v. Windsor is whether Section 3 of the Defense of Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection. Why, then, are some of us talking about federalism? It’s a fair question. In an equal protection case, courts are called upon to weigh the weight of the […]
Can Statutory Definitions Be Unconstitutional on Federalism Grounds?
In his latest post on the federalism argument against DOMA, my co-blogger Nick Rosenkranz suggests that there can be no federalism-based constitutional objection to a statute that “defines [a word] only for purposes of federal law.” According to Nick. such a definition can only be unconstitutional if it offends some substantive constraint on government power, […]
Whelan v. McConnell on Same-Sex Marriage
By Jonathan H. Adler on March 23, 2013 3:43 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
On Thursday, Stanford law professor and former federal appellate judge Michael McConnell suggested the Supreme Court should avoid ruling directly on the constitutionality of same-sex marriage by denying Proposition 8’s supporters standing to defend the initiative’s constitutionality and holding that the Defense of Marriage Act exceeds the scope of federal power. NRO’s Ed Whelan, who […]
“Master of Disaster” Disbarred
Last week, the Kentucky Supreme Court disbarred noted Ohio plaintiffs’ attorney Stanley Chesley. The WSJ Law Blog reports: The state’s highest court on Thursday sanctioned Mr. Chesley, 76 years old, for professional misconduct, accusing him of cheating clients out of millions of dollars in a widely followed settlement of a diet-drug lawsuit. The court stripped […]
McConnell on the Same-Sex Marriage Cases
By Jonathan H. Adler on March 21, 2013 10:40 pm in DOMA, Federalism, Same-Sex Marriage, Supreme Court
In Friday’s WSJ, Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit, argues that the Supreme Court should hold that Proposition 8 supporters lack standing to defend the ballot initiative in federal court and that the federal government lacks the power to define marriage. the court need […]
On Conservatives & Environmental Protection
Earlier this week I was interviewed by Brad Plumer of the Washington Post‘s Wonkblog about my ideas for “conservative” approaches to environmental protection (and my recent paper on the subject). The resulting article is here.
Are the Days of Auer Deference Numbered?
As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center. The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century. Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer […]
Justice Scalia, Environmental Champion
Today the Supreme Court decided Decker v. Northwest Environmental Defense Center. By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads. The sole dissenter was Justice Scalia, who would […]
Today’s Interesting Supreme Court Line-Up
Among the opinions the Supreme Court handed down this morning was Kirtsaeng v. John Wiley & Sons, concerning the application of the first-sale doctrine to copyrighted works sold abroad. I’ll leave the substance of the opinion to others. What interests me is the line-up: Justice Breyer delivered the opinion of the Court joined by the […]
Economics’ Egalitarian Core
Tyler Cowen had an interesting “economic view” column in yesterday’s NYT about the “egalitarian and civil libertarian core” of economics. Here’s a taste: Economic analysis is itself value-free, but in practice it encourages a cosmopolitan interest in natural equality. Many economic models, of course, assume that all individuals are motivated by rational self-interest or some variant […]
A “Conservative Vision” for the Future of Environmental Policy
Last fall, I participated in a conference at Duke Law School on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative. I blogged the event, summarizing […]