Archive | Equal Protection

Evolving Christian Attitudes Towards Personal and National Self-Defense

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 OrthodoxyJohnson (who is my co-author on the Second Amendment textbook Firearms Law and the Second Amendment) details the long and honorable history of Black Americans’ use of arms for lawful self-defense, especially against white racists. Johnson observes that in the late 1960s, Black political leadership abruptly shifted from the community’s traditional support for armed self-defense into being quite hostile to gun ownership.

The Johnson article is a short version of his forthcoming (Jan. 14, 2014) book Negroes and the Gun: The Black Tradition of Arms by Nicholas Johnson (Jan 14, 2014). I very highly recommend the book. It goes far beyond the Connecticut article. The subject of race control and gun control has been a subject of increasing scholarly attention ever since Robert J. Cottrol and Raymond T. Diamond’s 1991 Georgetown LJ article, The Second Amendment: Toward an Afro-Americanist Reconsideration. Having followed the subject carefully for the past two decades, I am amazed by how much original research that Johnson brought to the book, and by the rigorous analysis he provided for the most difficult questions.

In the Connecticut symposium, response essays are offered from leading “pro-gun” scholars (Cottrol & Diamond, Don Kates & Alice Marie Beard) and from leading “anti-gun” scholars (Michael DeLeeuw, David Kairys, Andrew McClurg [my co-author on another gun textbook], and William Merkel).

My own contribution to the symposium is an article titled Evolving Christian Attitudes Towards Personal and National Self-Defense. (SSRN link here; Conn. L. Rev. link here.) My article observes that the Black political leaderships’ sharp turn against self-defense in the late [...]

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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 married out-of-state as legally married in Oregon.  The state DOJ has not yet taken the position that Oregon must allow same-sex couples to marry in the state, but its logic certainly leads there.  For now (and I mean, for today), same-sex couples will have to get married elsewhere, like California or Washington, and return to Oregon to claim benefits.  (You can read the administrative memo and the Oregon DOJ opinion in the body of the link.)

The rationale for the state DOJ opinion is this: Like other states, Oregon recognizes marriages from out of state even if those marriages could not have been entered in Oregon.  Yet, in 2004, the state’s voters amended the state constitution to provide that only opposite-sex marriages could be “valid” or “legally recognized” — language that bans both in-state and out-of-state gay marriages.  But this provision, argues the state DOJ, likely violates the federal Constitution because it denies equal protection.  “We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state, marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes,” argues the Oregon DOJ.  There’s “no benefit” to Oregon in that limitation, it asserts, and “no injury would result from recognizing the marriages.”  The opinion goes on to speculate that a court would apply heightened scrutiny to a prohibition on out-of-state same-sex marriages, either because marriage is a fundamental right or because gay [...]

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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 that this classification fails even that highly deferential test:

A rational nexus between a conviction for any and every felony offense and the fitness to act as a precious metals dealer simply does not exist. The legislature has not drawn any distinctions beyond the classification of felon; it has not written the statute to conform to the legitimate state interest of protecting the public from unscrupulous dealers. Many unsuitable applicants can obtain licenses, yet many suitable applicants cannot.

Felony crimes range widely, and many do not implicate the purposes identified by the State as justifying the ban. Federal felonies include mishandling of environmental pollutants, draft dodging, and certain offenses involving fish, wildlife and plants. State felonies include violating a sexton’s burial duties, illegally assisting a disabled voter, injuring a peace officer animal, and violating pollution requirements. See OLR Research Report, 2012-R-0358, Unclassified Felonies (2012). Many, if not most, of the hundreds of federal felonies and more than 265 Connecticut felonies, have no tendency whatsoever to predict unsuitability for licensure based on the interests that the State claims section 21-100(a)’s felony bar was enacted to protect.

At the same time, many misdemeanors reflect conduct that seems to be more relevant to the state’s legitimate goals than the conduct underlying many felonies. For example, illegal sale of used motor vehicle parts, illegal ticket scalping, issuing a bad check, and forgery are all misdemeanors. Moreover, the fortuity of plea bargaining may reduce felonious conduct to a misdemeanor

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VA Must Extend Benefits to Married Same-Sex Couples, District Court Says

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 v. Texas, lower federal courts are also reading the decision expansively.  Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA.  The brief opinion is here

The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.”  38 U.S.C. Section 101 (c) .  The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional.  (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)

The district judge determined that, in light of Windsor, Title 38’s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention. 

Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals.  A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion of the (in)famously deferential rational-basis test as a free pass for legislation. [...]

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Is Martin Luther King’s Dream Unconstitutional?

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 question presented in Schuette v. Coalition to Defend Affirmative Action: “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” [...]

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The Fiduciary Foundations of Federal Equal Protection

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 the general public, but to enrich select interests. President Jackson wrote: “There are no necessary evils in government. Its evils exist only in its abuses. If it would confine itself to equal protection, and, as Heaven does its rains, shower its favors alike on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary departure from these just principles.”

This was the first use of the phrase “equal protection” in an American political document. Three and half decades later, the Fourteenth Amendment forbade States to deny to anyone the “equal protection” of the law.

In 1954, the U.S. Supreme Court ruled in Bolling v. Sharpe that the D.C. public schools could not be racially segregated. The Court held that the Fifth Amendment’s Due Process clause makes the principle of equal protection applicable to the federal government. Bolling was a hastily-written opinion, and it shows. Over the years, Bolling has been derided for creating “reverse incorporation”–as a good result that is hard to defend intellectually, other than by conceding the Supreme Court the power to act as Platonic Guardians.

That view is challenged in a new article by Gary Lawson (BU), Guy Seidman (Interdisciplinary Center, Herzliya, Israel) and Rob Natelson (Independence Institute). Their article “The Fiduciary Foundations of Federal Equal Protection” The abstract explains:

that a federal equal protection principle is not only consistent

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Three Senses in Which DOMA Implicates Federalism

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. WindsorNo advocates, that is, except for five of the nine people sitting behind the bench.

But what exactly is the federalism objection to DOMA?  Despite some misapprehension to the contrary, it doesn’t rest principally on Tenth Amendment case law establishing an “anti-commandeering” principle.  And it’s not that marriage is a subject over which the federal government must always, forever, and for every purpose be obedient to individual states’ whims. That would present what we might call a reverse anti-commandeering problem.

Instead, the federalism concern with DOMA breaks down into at least three different but related types of problems.

(1) The federal-power problem. DOMA is an exercise of federal power. So the first question is, where does the federal government get the power to enact a comprehensive definition of marriage? George Will thinks DOMA is a “usurpation of state power.”  James Taranto at the Wall Street Journal agrees.  Michael McConnell, perhaps the leading conservative judicial scholar of his generation, put it this way in an op-ed in the Wall Street Journal:

The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The federalism amicus brief in Windsor argues this point in some detail. It’s not a novel concept in the Court’s federalism cases. It’s [...]

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A Federalism-Based Equal Protection Argument Against DOMA

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 Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.  The federal govt can have no legitimate interest in regulating beyond its enumerated (and necessarily and properly implied) powers.  If DOMA Section 3 does not serve any legitimate interest — indeed, if a sweeping [...]

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The Second Circuit’s DOMA Decision

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 inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.

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Second Circuit Strikes Down DOMA Section 3

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 by President Clinton.  Applying intermediate scrutiny to sexual-orientation classifications, the court held that Section 3 violates the Equal Protection Clause.  The decision comes as the Supreme Court is weighing whether to grant certiorari to determine the constitutionality of the Act.  I may have more to say after I’ve had a chance to read the opinion. 

HT: David Lat and Walter Olson. [...]

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Next step: Repeal the individual mandate because it is unconstitutional

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 for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same [...]

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First Circuit Unanimously Strikes Down DOMA Section 3

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 (2) intruded on the historic role of the states in defining marriage.  None of the asserted congressional interests, like favoring families headed by biological parents, justified the discrimination in the statute since state law determined who could form such families through adoption and custody rules.  In what appears to be a novel approach, the First Circuit opinion combined the equal protection decisions of Romer, Moreno, and Cleburne, with some of the Court’s recent federalism decisions limiting the scope of federal power over the states.  The panel was careful to say that its decision did not invalidate state marriage laws excluding same-sex couples because, in part, only the Supreme Court could do so under its own precedent in Baker v. Nelson (summarily dismissing, for want of a substantial federal question, a challenge to Minnesota’s marriage law in 1971).  The panel’s opinion won’t be the last word on DOMA, to be sure.  The congressional Legal Advisory Group defending DOMA, headed by Paul Clement, has the option of seeking en banc review or heading straight to the Supreme Court. [...]

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Spanking Judges as a Rational Basis for Prop 8

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 the hope that such a public rebuke might influence the Court’s decisions in the future.  Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.

To the extent this argument rests on the idea that Prop 8 inflicted only “symbolic” harm on same-sex couples, and thus is not not of constitutional concern, it is supported in the opinions of courts in states where same-sex civil unions are recognized but the designation of marriage is withheld.  The New Jersey Supreme Court’s opinion from 2006 would be one example.  As I wrote at the time, I disagree that the difference between “civil union” and “marriage” is purely semantic and unimportant — though that doesn’t by itself mean courts should require the state to grant the designation to same-sex couples.  Indeed, the fact that the word “marriage” is important and in more than a symbolic sense may be the one thing that SSM advocates and opponents agree upon.  Judge Reinhardt addressed the question at length in his opinion and other judges have convincingly, in my view, done the same.  I don’t want to rehash that argument here. At any rate, I don’t think Orin’s point about the judicial-discipline rationale depends on the idea that Prop 8 was a harmless withdrawal of some symbolic affirmation.  Under the rational-basis test, I suppose he’d say that even if some limited harm were collaterally imposed on same-sex couples the judicial-discipline rationale still survives judicial scrutiny.

The rational-basis test in Equal Protection doctrine and in other constitutional [...]

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