Dorf on Law

By Mike Dorf In my blog posts on Tuesday and Thursday of last week, I explained that I thought a stay of the SSM judgment in the Utah case might be warranted because a federal court lacks the authority to provide "grandfather" protection for the couples who married while the district court ruling was in effect, in the event that the merits ruling was eventually reversed.  That statement was partly based on the concurring opinion of Justice Stevens in Edgar v. MITE . There, in the context of addressing whether a case was moot, Justice Stevens said that even if a federal district judge issues a preliminary or final judgment declaring that the plaintiff has a constitutional right to act in violation of a state law, if the plaintiff does just that, but the judgment is later reversed on appeal, the plaintiff may be prosecuted for the conduct--even though the conduct had been declared lawful at the time it occurred.  It might be helpful, Justice Stevens said, for federal courts

By Mike Dorf Adam Liptak reports in the NY Times  that Utah will indeed ask the Supreme Court to stay the district court judgment invalidating the state's same-sex marriage ban.  The article, which quotes me and my most recent blog post on the topic, focuses on the incredibly rapid pace of change with respect to SSM since the Supreme Court's decisions in June in Windsor and Perry .  Those changes suggest that if the Supreme Court could manage to avoid deciding the issue for just another couple of years, the case will be a mopping-up operation like  Loving v. Virginia rather than a controversial decision on an issue that deeply divides the country, like Brown v. Board or Roe v. Wade . In my earlier post I explained why I think that a stay is probably warranted, even though I think the district court decision was correct.  Here I'll add one other consideration that is not, strictly speaking, a legal consideration.  Ideally, the Court will either grant or deny a stay in a

By Mike Dorf This being Christmas Eve, I'm only going to put up a very short post on this very important topic. The 10th Circuit has denied the State of Utah's emergency motion to stay the district court judgment invalidating Utah's ban on same-sex marriage, with the consequence that Utah now has SSM.  The state could seek (and by the time you read this perhaps already will have sought) emergency review by the Supreme Court. The ordinary procedure would be to seek relief from the Circuit Justice--in this case Justice Sotomayor--who, in a case as important as this, would likely refer the application to the full Court. In my view, this is one of those rare cases in which the correct moral outcome is also the correct legal outcome, but is still wrong.  I should explain. Permitting marriages to go forward is correct morally for the innumerable reasons why it is simply unfair, unequal and unjust to deny people the right to marry based on sex or sexual orientation or the

-- Posted by Neil H. Buchanan In my post here on Dorf on Law this past Friday, I offered one possible answer to the question: Why Do Anti-Tax Zealots Resort to "Envy" and "Vengeance" as Explanations for Calls for Redistribution? (I will offer a different, complementary answer in a future post.)  There, I returned to my occasional discussion of the puzzling and empty rhetoric that conservatives have long used to attack progressive taxation. The odd self-victimization involves the wealthy and their flatterers professing to believe that it is all about jealousy, with "losers" simply wanting to take things from "winners" out of spite.  And I do mean it when I say that the wealthy see themselves as victims: Recall the leading anti-tax militant's comparison of progressive taxation to the Holocaust, which has become a standard meme on the crazy right.  Under this view, the 99% are using their extreme numbers to hijack democracy and take from th

By Mike Dorf Today is Festivus--at least as celebrated in the Seinfeldian tradition.  Dan O'Keefe, the Seinfeld writer whose father celebrated Festivus before it was Festivus , reports that the early Festivus had no fixed date. I shall take this occasion to write a follow-up to my Festivus reporting ( on the blog and in my Verdict column ) last week. Readers will recall that when last I reported, the government officials in charge of the Florida Capitol Rotunda had permitted a Festivus Pole to be erected as one of the private displays in what was treated as a public forum.  Soon thereafter, those same authorities denied permission to a group called the Satanic Temple, deeming its proposed display "grossly offensive."  As of the most recent press reports, the Satanists asked for, but had not received, an explanation of what was deemed offensive about their display.  The brewing controversy presents some interesting First Amendment questions. 1. The basic rule for a

By Mike Dorf When the Supreme Court decided Lawrence v. Texas in 2003, the majority opinion included language disavowing implications for same-sex marriage.  In invalidating the Texas law forbidding "homosexual sodomy," Justice Kennedy wrote for the Court, the majority did not say that the government was obligated to grant official recognition to same-sex relationships (through marriage or otherwise).  In dissent, Justice Scalia objected that, notwithstanding the Court's disclaimer, the logic of the case implied that there is a right to same-sex marriage. Subsequent events largely proved Justice Scalia right.  Before the end of the year, the Massachusetts Supreme Judicial Court ruled in the Goodridge case  that the state's constitution guaranteed a right to same-sex marriage. Although the opinion did not cite Justice Scalia's Lawrence dissent, in repeatedly citing the Lawrence majority, the Massachusetts SJC made clear that it agreed with his logic. Did Jus

-- Posted by Neil H. Buchanan A colleague recently forwarded a quotation from a 1976 U.S. District Court decision ( F reedman v. Barrow , 427 F.Supp. 1129, 1136 (S.D.N.Y. 1976)), which included the following remarkable paragraph (emphasis added): To understand these incentive programs, their effect and purpose, some general observations may be helpful. The larger, more profitable American corporations which have achieved their success against overwhelming international competition, have done so through the efforts of highly skilled, experienced managerial and executive personnel who generally have little or no ownership of the business and no share in the customary rewards of shareholders. Keeping the high level of motivation of these employees, retaining their loyalty in the future, and protecting their skills, experience and specialized knowledge from raids by competitors or others, is the biggest single responsibility of top management, which naturally is also interest

-- Posted by Neil H. Buchanan The 2014-15 budget deal will soon be signed, sealed, and delivered.  I discussed the content of the deal in my Dorf on Law posts last Thursday and Friday , noting the extreme austerity that the Democrats accepted as part of this supposedly middle-ground compromise.  As I also noted in the Thursday post, it was not immediately clear whether the Republicans intended to make another stand on the debt ceiling when it is revived early next year.  I did note that there was no reason to think that they would not rally around even more absolutism, to prove to their base that they are still true believers. It did not take long for Republicans in Congress to confirm my prediction.  In my Verdict column today , I offer quotes from Paul Ryan and Mitch McConnell, both of whom are breathing fire about the debt ceiling.  No "clean increase," they promise.  They are going to "get something" from President Obama in return for increasing the debt

By Mike Dorf My latest Verdict column discusses the news that the Florida Capitol now sports a Festivus Pole.  I explain how the Supreme Court's Establishment Clause jurisprudence led to this unexpected result: Because of the legal uncertainty surrounding government-sanctioned religious displays, governments increasingly treat the sites for displays as "public fora" where anyone can make whatever point he or she likes.  (I gloss over the power of government to control the subject matter, but not the viewpoint, of what is said in a so-called "designated" forum for speech.) And once governments open up space to the public, it's hardly surprising that people who object to religious displays on public property would use the opportunity to make that point--by erecting deliberately silly monuments, such as the Festivus Pole. Predictably, once the story hit the national news, the rightwingoverse went nuts, treating the Festivus Pole as just one more front in t

By Mike Dorf In keeping with my recent tradition, I'm posting my latest constitutional law exam here.  As always, I will not grade readers' answers. I'm omitting the instructions, other than to say that it was an eight-hour, open-book, take-home exam.  (Note that the exam question refers to a mass shooting.  It was administered early last week, before the Newtown anniversary and before the latest school shooting in Colorado.  It was/is not intended to make light of such events, although it was/is intended to ridicule the policy reaction in some quarters.) The following facts pertain to all questions:             In late December 2013, a virus infects the computers that operate the federal and state health insurance exchanges, as well as the computers of the companies that offer insurance on these exchanges. As a consequence, all records of persons who enrolled for health insurance on the exchanges are lost and the centerpiece of the Affordable Care Act is widely re

By Mike Dorf In 2007, J. K. Rowling outed Dumbledore as gay. I used the occasion to write a column-- Harry Potter and the Framers' Intent --that inquired about authorial intentions in literature and in constitutional interpretation. I want to do something broadly similar with Megyn Kelly's recent statement that Santa Clause is white. I'll admit that it's tempting simply to ridicule Kelly's statement, and The Daily Show did a pretty good job of it, as seen in the clips below.  (Email readers should follow this link  and this link if you don't have the embedded video.) For a more scholarly takedown, I recommend this piece on Slate by Aisha Harris, whose original comments somehow set Kelly off in the first place. Meanwhile, Kelly, in damage control mode, now claims that her insistence on the whiteness of Santa Claus was tongue-in-cheek. Based on the actual clip, this seems implausible, unless Kelly has an incredibly subtle deadpan delivery in which th

-- Posted by Neil H. Buchanan The next possible government shutdown date is October 1, 2015, instead of January 16, 2014.  That is true because the Republican leadership of the House of Representatives managed to pass the Murrary-Ryan budget agreement, which I discussed  yesterday here on Dorf on Law . What was the price paid to change the next date on which Republicans could self-destruct?  The acceptance of some (although admittedly not all) of the sequestration-related cuts in domestic spending, the end of unemployment benefits for well over a million people in less than three weeks (and a very high risk that those benefits will never be restored, while hundreds of thousands more people will lose their benefits), and the continued validation of the idea that Republicans can refuse to allow any but the most minor and hidden (and regressive) taxes to be included in a budget deal.  This, ladies and gentleman, is moderation today. The larger picture, however, was captured perfectl

-- Posted by Neil H. Buchanan The legislation in October that ended the government shutdown, and that put the debt ceiling back to sleep until early February, required House and Senate negotiators to reach a budget agreement by tomorrow, December 13.  That deadline was a bit difficult to understand, because the same legislation reopened the government through January 15, 2014, giving this month's deadline little more than symbolic significance. To everyone's surprise, however, a "breakthrough agreement" was announced by some Congressional leaders earlier this week.  The two houses' budget chairs, Sen. Patty Murray and Rep. Paul Ryan, agreed in principle to a deal that they and others described as preventing budget brinksmanship for two years.  The details are somewhat unclear, but apparently Murray and Ryan agreed to overall budget numbers for fiscal years 2014 (which is already in its third month, operating for the time being on that "continuing resolut

by Sherry F. Colb In my Verdict column for this week , part 2 of a 2-part series of columns, I continue my analysis of Burrage v. United States , a case currently before the Supreme Court on the question of when a heroin dealer can be said to have caused the death of a customer who uses the purchased heroin.  For whatever light it might shed on the issue, I would like to consider competing tests for the definition of insanity. Let me explain why I think this might be useful.  An arguably embedded premise of laws that attribute responsibility for a heroin-user's death in his dealer is the notion that even though a user is choosing  to consume a dangerous substance, the user may not be entirely (or perhaps even partially) at fault for his own self-destructive behavior.  If the user is not the primary culprit, then the other (voluntary) actor in the scenario, the dealer, is the logical candidate for absorbing the blame. This is perhaps why a merchant who sells a product to a custo

By Mike Dorf As reported on HuffPo over the weekend, a group of 14 law professors (including Prof. Colb and me) recently sent a letter to key members of Congress sounding the alarm about a provision of the pending House version of the Farm Bill , originally proposed as an amendment by Iowa Rep. Steve King (R), supposedly in response to a California measure governing the treatment of hens who produce eggs for sale in that state. What does the provision say? Here, look for yourself: SEC. 12312. PROHIBITION AGAINST INTERFERENCE BY STATE AND LOCAL GOVERNMENTS WITH PRODUCTION OR MANUFACTURE OF ITEMS IN OTHER STATES. (a) In General- Consistent with Article I, section 8, clause 3 of the Constitution of the United States, the government of a State or locality therein shall not impose a standard or condition on the production or manufacture of any agricultural product sold or offered for sale in interstate commerce if-- (1) such production or manufacture occurs in another State;