Issue number 5 of this year’s Connecticut Law Review is an excellent symposium on firearms law, policy, and culture. The lead article is from Nicholas Johnson, of Fordham: Firearms Policy and the Black Community: An Assessment of the Modern Orthodoxy. Johnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long […]
Archive | Equal Protection
Gay Marriage in Oregon (Sort of)
The state’s Department of Justice has concluded that the state’s administrative agencies can (and probably must) recognize same-sex marriages validly performed in other states, even for purposes of providing state-law benefits. The opinion, dated October 16, was revealed in a memo from the head of the state’s agencies directing those agencies to treat same-sex couples […]
Duquesne Federalist Society
By Dale Carpenter on October 14, 2013 10:22 am in Beyond DOMA, DOMA, Equal Protection, Federalism, Same-Sex Marriage
Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School. We’ll be there at the invitation of the Duquesne University Law School student chapter of the Federalist Society. The event begins at Noon.
Unconstitutional to Ban All Felons from Becoming Precious Metals Dealers
So holds last week’s Barletta v. Rilling (D. Conn. Sept. 26, 2013), in a decision that — if upheld — may pave the way for similar decisions with regard to bans on gun ownership by (nearly) all felons. The court applies the “rational basis” test, under which nearly all legal classifications are upheld, but concludes […]
VA Must Extend Benefits to Married Same-Sex Couples, District Court Says
By Dale Carpenter on August 30, 2013 3:25 pm in Beyond DOMA, Constitutional Law, Equal Protection, Sexual Orientation, Supreme Court
In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence […]
Is Martin Luther King’s Dream Unconstitutional?
By Nick Rosenkranz on August 28, 2013 3:11 pm in Affirmative Action, Constitutional Law, Equal Protection
Fifty years ago today, Martin Luther King, Jr., spoke these immortal words: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” He would have been mystified, one imagines, by […]
The Fiduciary Foundations of Federal Equal Protection
By David Kopel on August 4, 2013 3:46 pm in Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, Education, Equal Protection, Fifth Amendment, Fourteenth Amendment, Originalism, Supreme Court
Does the federal government have to adhere to the equal protection of the law? President Andrew Jackson certainly thought so. He vetoed in 1832 the recharter of the Second Bank of the United States, and based his veto message on constitutional grounds–among them, that the Bank was special interest legislation, created not for good of […]
Three Senses in Which DOMA Implicates Federalism
By Dale Carpenter on March 29, 2013 10:54 am in Equal Protection, Federalism, Same-Sex Marriage, Sexual Orientation
Overnight, it seems, federalism has become a major ground on which the Defense of Marriage Act is being contested. This is surprising because, as we saw Wednesday in the arguments of Roberta Kaplan and the Solicitor General, there were no real advocates for federalism as an issue during the oral argument in United States v. Windsor. No advocates, that […]
A Federalism-Based Equal Protection Argument Against DOMA
By Dale Carpenter on March 1, 2013 2:43 pm in Constitutional Law, Equal Protection, Federalism, Same-Sex Marriage, Supreme Court
Over the past few days, the Court has been treated to an avalanche of briefs submitted by law professors, professional associations, prominent Republicans, and even football players arguing that California’s Proposition 8 and Section 3 of the Defense of Marriage Act are unconstitutional. Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy […]
The Second Circuit’s DOMA Decision
By Dale Carpenter on October 22, 2012 5:44 pm in DOMA, Equal Protection, Federalist Society, Sexual Orientation
At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional. The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA: Even if the Court is […]
Second Circuit Strikes Down DOMA Section 3
By Dale Carpenter on October 18, 2012 12:28 pm in Equal Protection, Same-Sex Marriage, Sexual Orientation
In a 2-1 opinion by Chief Judge Dennis Jacobs, a conservative appointed by the first President Bush, the Second Circuit has joined the unanimous chorus of federal courts striking down Section 3 of the Defense of Marriage Act, which bars federal recognition of same-sex marriages legalized by individual states. The dissenter was Judge Chester Straub, who was appointed […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
First Circuit Unanimously Strikes Down DOMA Section 3
By Dale Carpenter on May 31, 2012 12:12 pm in DOMA, Equal Protection, Federalism, Gay Marriage, Gay Rights, Same-Sex Marriage
The opinion is here. The panel concluded that the Defense of Marriage Act, barring federal recognition of same-sex marriages, violates Equal Protection. On a quick reading, it appears the court applied “rational basis with bite” scrutiny based on the arguments that the exclusion (1) denied important federal rights and benefits to a small class of married couples, and […]
Spanking Judges as a Rational Basis for Prop 8
By Dale Carpenter on February 11, 2012 1:36 am in Equal Protection, Same-Sex Marriage, Sexual Orientation
In the ongoing search for a constitutionally minimal justification for Prop 8, Orin proposes a creative one — repudiating activist judges independent of the substantive merits of the amendment: One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with […]