Dorf on Law

by Michael Dorf During Part 1 of Tuesday's oral argument in the SSM cases , CJ Roberts created a stir when he asked the lawyer for the state the following question: "if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?" Writing in the NY Times , Adam Liptak suggested that the Chief Justice's question hinted at a possible narrower ground on which he might join the presumed five other votes for a right to SSM. Stating what has become more or less the emerging conventional wisdom, Liptak wrote that CJ Roberts "may have found a modest path that would not require revision of constitutional standards for discrimination based on sexual orientation." I have long agreed with the argument that laws banning SSM are unconstitutional under the equal protection rationale of  Loving v. Virginia for exactly the reason articul...

by Sherry F. Colb In my column for this week, I examine a conflict scenario that has been making its way into the news lately, one in which an ultra-Orthodox Jewish man (also known as a "Haredi") asks one or more people on an airplane to switch their seats to enable him to avoid sitting next to a woman, as an accommodation to his religious observance.  My column explains the religious doctrinal basis for the religious man's request ("Negiyah"), and I consider the perspectives of both the religious man and the woman in the situation and conclude that his request--though it may seem relatively trivial, particularly given his minority status--is capable of inflicting a lot more harm on the woman than might be apparent at first glance.  Having said this, I want to consider in this post how I personally would react to such a request, were a Haredi man to ask me to switch seats so that he would not have to sit next to me on an airplane. I predict that, in my own ...

By Michael Dorf During the oral argument in Obergefell v. Hodges , Justice Alito said to Mary Bonauto, the attorney arguing for the plaintiffs, that ancient Greek society was not hostile to gay people--indeed, Plato wrote approvingly of homosexuality. Yet the Greeks did not recognize same-sex marriage (SSM). Ergo, Justice Alito implied, the prohibition of SSM does not demean gay people. Bonauto essentially punted the issue, declining to speculate on the implications of the views of philosophers, but the brief exchange led me to imagine how a somewhat longer discussion of this question might have gone. Accordingly, after the fashion of The Crito or The Phaedo , I present The Bonauto : Persons of the Dialogue ALITO BONAUTO SCALIA NOTORIOUS RBG BREYER SPECTATOR IN THE GALLERY CHIEF Scene: The Supreme Court of the United States __________________________________________________________________________ ALITO: Tell me, Bonauto, how can laws recognizing only opposite-sex ma...

by Neil H. Buchanan A famous New Yorker cartoon shows two men standing in front of a chalkboard.  On the left side of the board are some mathematical symbols.  Another group of symbols has been written on the right side.  In the middle, connecting the two sets of symbols, are the words "THEN A MIRACLE OCCURS."  The older man points to those words and says, "I think you should be more explicit here in step two."  This is a nerd-comic take on the concept of the deus ex machina : "a character or thing that suddenly enters the story in a novel, play, movie, etc., and solves a problem that had previously seemed impossible to solve." I am becoming increasingly convinced that "lobbying" is now the miracle-equivalent that explains everything in politics, without actually explaining anything.  We all think we know what lobbying is, and maybe even how it is supposed to work.  We attribute many (all?) unfavorable political outcomes to it.  At the en...

by Michael Dorf Last Thursday I posted on the oddity that the Idaho legislature appears to have the power to prevent the United States from entering into a multilateral treaty governing transnational enforcement of child support obligations. As I explained, the state's veto power is a product of the anti-commandeering doctrine that the U.S. Supreme Court announced in two 1990s cases, forbidding Congress from requiring states to enact or enforce legislation. In the course of addressing the question of whether the commandeering prohibition applies to treaty obligations and statutes implementing treaty obligations, I noted that I think the anti-commandeering doctrine--which is not based on any express provision of the Constitution--is misguided. In particular, I approvingly summarized the historical argument made by the dissenters in the anti-commandeering cases as follows: Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Consti...

by Neil H. Buchanan In my new Verdict column , published yesterday, I describe the political strategy that Republicans have been using for the last generation or so, wherein they set the IRS up for failure, watch it fail, and then use that failure as an excuse to cut the IRS's budget even further, setting up the next round of failure.  Obviously, I did not imagine that I am the only person to have noticed this pattern, but after I wrote the piece, I was surprised to discover that my column's title ("The Republicans’ Cynical Tax Game: Undercut the IRS, Blame the IRS, Repeat") was eerily similar to a sentence in a column in Forbes magazine last December ("It is a cynical recipe for a self-fulfilling disaster: Give the agency more and more work. Cut its budget. Blame it for failing to do its job. Repeat.")  Not as surprised as I was to see that Forbes would publish such a column, but still surprised. My column also ran through three of the common rig...

by Michael Dorf Yesterday's NY Times carried a story that, I imagine, was baffling to most readers. It noted that a committee of the Idaho legislature had voted to kill (for now) legislation designed to bring that state into line with provisions of a multilateral treaty governing the transnational enforcement of child support obligations. The U.S. signed the treaty in 2007 but full ratification depends on the enactment of legislation in all 50 states. To which the moderately well educated reader might well have reacted "huh? I thought the Senate gave its consent to treaties in order for them to become binding." The very well educated lawyer, however, will understand what's going on here. The treaty imposes affirmative implementation obligations on the governmental authorities in each signatory nation, which with respect to family law in the U.S. means state governments. But under the Supreme Court's "anti-commandeering" doctrine as set forth in New...

by Michael Dorf In my latest Verdict column , I take the occasion of next week's oral argument in the same-sex marriage cases to reflect on some broader questions about the relation between social change and judicial rulings. I make a number of points, including these: (1) Progress on LGBT rights has been very rapid in recent years but partly that's a tipping-point effect that disguises the long steady progress; (2) in general, majoritarian politics lends itself to tipping points, because just below 50% support for some legal change means that the status quo likely remains, whereas just above 50% means that it can change rapidly; (3) the courts play an important role in this dynamic, although hardly the primary one; (4) because legal change follows rather than leads social change, the worst abuses of minorities and others will typically occur before they have legal protection; but (5) it does not follow that progress in the social and political realm should prevent rights cla...

by Neil H. Buchanan Yesterday's Washington Post included an op-ed by Dana Milbank, " The New Argument Against Gay Equality: Same-Sex Marriage Kills ," which describes and effectively dismantles an especially loopy new argument from someone named Gene Schaerr, who was a losing lawyer in Utah's SSM case.  (Schaerr is no minor player or local rube, by the way, having clerked for Justice Scalia.)  That the argument is nutty does not, of course, mean that it will lead to any embarrassed distancing by other people on the right; and, in fact, the Heritage Foundation held an event earlier this week in which Schaerr laid out what one might generously call his argument. Here, I will briefly describe that non-argument.  This will be fun, in its way, but it is not difficult.  Indeed, Milbank does a great job on his own mocking Schaerr's claims.  Even so, Milbank missed one big possible defense by Schaerr.  After describing (and ridiculing) that possible defense, I...

by Michael Dorf With Religious Freedom Restoration Acts (RFRAs) much in the news lately, it may be worth recalling the piece of religious freedom that did not  need to be restored, even after the SCOTUS weakened protection for religious freedom in the 1990 case of Employment Division v. Smith . There the Court held that a law that does not single out religion does not implicate the Free Exercise of Religion, even if, in particular cases, it substantially burdens the exercise of religion by particular people--as Oregon's general ban on peyote burdened the exercise of religion by Native Americans wishing to participate in the peyote ritual. But even after Smith and before the enactment of the federal RFRA, the Supreme Court made clear that a law that actually targets a religious practice because it is a religious practice does implicate--and presumptively violates--the free exercise of religion. The case so holding was Church of Lukumi v. Hialeah , which unanimously invalidated a...

by Neil H. Buchanan Chuck Davenport died last week.  I admired him greatly.  Chuck was the senior tax law professor at Rutgers-Newark when I was on the entry-level market for legal academics.  When I visited Newark for my job talk, Chuck came to the small dinner the night that I arrived, and I immediately knew that I had met a kindred spirit.  It was clear that we were politically similar (for example, he positively compared my thinking with that of John Kenneth Galbraith -- a generous compliment that would turn anyone's head!), but that was not what really mattered.  Chuck was just so easy to like. Upon my joining the Rutgers faculty, Chuck agreed to be my official senior faculty mentor.  He had already become my mentor unofficially, so this really changed nothing.  Even so, it meant that he was willing to put his considerable reputation behind my emerging career, which changed things quite a lot.  After I left Rutgers, Chuck and I stayed in...

by Neil H. Buchanan In my post here on Dorf on Law yesterday, I asked, " Do Republicans Lie and Deceive for No Reason? "  There, I considered whether there is any real value in calling out the lies and deceptions of politicians -- especially today's Republicans, who have taken shameless distortion to levels previously unseen.  In particular, I responded to the apologia that goes something like this: "Oh, come on, it's all a game.  The politicians lie, and the people know they're lying.  It's stupid to think that there is any reason to point out when a politician isn't being completely honest." My response to that objection was that it proves too much, which is not to say that there is nothing at all to it.  For example, any good criminal defense lawyer will know to refer to her client by name (to humanize him), just as any good prosecutor will know never to refer to a defendant by anything other than "the defendant," and it would ...

by Neil H. Buchanan Several of my recent posts ( here , here , and here ) have confronted various forms of pandering and dishonesty from Republican presidential candidates Rand Paul and Jeb Bush.  (I realize that Bush has not yet officially announced his candidacy, but please.)  Although the comments in response to each of those posts have been generally constructive, an unmistakable theme has started to emerge.  None of my commenters has been harsh, but a blunt version of the meta-narrative might go like this: "Wow, you noticed that politicians are dishonest.  Stop the presses!  What the heck do you expect politicians to do?  They lie.  They pander.  Get over it." Again, no actual commenter has offered such an unvarnished response, and I am deliberately setting this up in its extreme form.  Even so, the "nothing to see here" tenor of some of the responses has caused me to wonder whether there is any value in pointing out that a group of ...