Sunday, December 27, 2015

Political Correctness

A number of leading Republican candidates for President have decried "political correctness." Why?

In Defense of Hate Crimes Legislation

I explained the purpose and defended the validity of hate crimes legislation in a pair of posts that were published in 2009 in the Akron Law Cafe. Those posts are summarized and updated here.

Saturday, December 26, 2015

What Drives the Ideological Divide in the United States? Reason Versus Magical Thinking

Over the past fifty years the political parties have realigned demographically and ideologically. In general, conservative groups moved towards the Republican Party and liberals have become Democrats. For example, the Dixiecrats switched from the Democratic Party to the Republican Party and Evangelical Christians became politically active and joined the Republican Party; while conservationists and "good government" reformers abandoned the Republican Party for the Democratic Party. Conservative Democrats and liberal Republicans no longer exist in any numbers. Thus, today there is a sharp ideological divide between the parties, making it difficult to find common ground on issues such as climate change, health care policy, gun control, immigration, or same-sex marriage. But another difference has also arisen between the two dominant political parties in the United States: an epistomological one. Democrats, who in general seek to change the future, are increasingly drawn to science and economic analysis, while Republicans, who wish to preserve or return to what they value in the past, are more and more likely to depend upon various forms of magical thinking. Some examples follow.

Monday, December 21, 2015

The First Amendment Defense Act: State Action, Equal Protection, Freedom of Expression, and Establishment Clause Concerns

In the preceding post discussing the First Amendment Defense Act I analyzed the vague and overbroad language of the Act and how the Act fundamentally misunderstands the nature of "liberty." This post discusses how the proposed law fares under the State Action Doctrine, Equal Protection, Freedom of Expression, and the Establishment Clause.

First Amendment Defense Act: Protecting an Open-Ended "Right" to Discriminate Against Same-Sex Couples

The First Amendment Defense Act purports to prohibit discrimination. In fact it fosters and promotes discrimination against same-sex couples. Moreover, the proposed law is fatally vague, and as it result it would encourage and protect a broad range of discriminatory actions by businesses, universities, hospitals, and other institutions. Furthermore, although the Act purports to defend "liberty," the Act fundamentally misunderstands the true nature of liberty -- that no person is entitled to more liberty than he or she is willing to grant to every other person.

Thursday, December 10, 2015

Analysis of Little Sisters of the Poor v. Burwell

The Supreme Court is returning to the issue that it dealt with in the Hobby Lobby case -- whether the Religious Freedom Restoration Act (RFRA) gives an employer the right to refuse to provide health insurance coverage for contraceptive services. This is a difficult question because the Affordable Care Act gives employees the right to such coverage. In Hobby Lobby the Court was able to craft an accommodation that protected the rights of both employers and employees. In this case, a group of employers challenges that accommodation; they contend that the accommodation itself violates their rights to religious exercise under RFRA.

Friday, October 2, 2015

Consistent with the Constitution, What Can We Do About Gun Violence?

Guns don't kill people. People kill people. But they mainly use guns to kill people. Every year twelve thousand Americans are gunned down by other Americans; in addition there are more than twenty thousand American suicides by gun annually. In the past 20 years we have lost over 600,000 Americans to gun violence. That's more than we lost in combat in World War II; twelve times more than we lost in Vietnam; thirty times more than we lost in Korea; one hundred times more than we lost in Kuwait, Iraq, and Afghanistan combined; and three hundred times more than we have lost to terrorists. In fact, over the last 20 years we have lost more Americans to gun violence than we lost in combat in all of our wars and every terrorist attack over the last 80 years.

We think of war as a terrible scourge. Domestic gun violence is four times as deadly as war.

It is way past time for this country to adopt common-sense gun control legislation. What laws would be constitutional?

Tuesday, September 29, 2015

The Constitutionality of Defunding Planned Parenthood

Would it be constitutional for a state or the federal government to defund Planned Parenthood? The answer lies in the interpretation of the Spending Clause and the First Amendment.

Monday, September 14, 2015

County Clerk Kim Davis and the Establishment Clause

County Clerk Kim Davis contends that she has a constitutional right to refuse to issue marriage licenses to same-sex couples under the Free Exercise Clause of the Constitution. But she forgets that Freedom of Religion consists of two rights: not only the right of the individual to the free exercise of religion, but also the prohibition against the establishment of religion by the government.

Thursday, August 20, 2015

Birthright Citizenship

Donald Trump, the leading Republican candidate for President, contends that if a child is born in the United States but the parents are undocumented immigrants, then the child is not a citizen of the United States. Several other Republican candidates for President have jumped on his bandwagon against "birthright citizenship." Are they right?

Tuesday, August 11, 2015

"Follow the Law": Ohio Judges Must Perform Same-Sex Marriages

On Friday, August 7, the Ohio Supreme Court's Board of Professional Conduct issued an opinion entitled "Judicial Performance of Civil Marriages of Same-Sex Couples." The Board ruled:
A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.
The Board's opinion is available at

Sunday, August 9, 2015

Could the IRS Deny Tax-Exempt Status to Religious Schools That Discriminate on the Basis of Sexual Orientation?

No, not at this time. In my opinion, the courts would allow the Internal Revenue Service to deny tax-exempt status to religious schools that discriminate on the basis of sexual orientation only if Congress made such discrimination in education illegal. If Congress does that, then of course no school that engages in acts of illegal discrimination should be entitled to claim tax-exempt status.

Wednesday, August 5, 2015

If Income Distribution Were Fair, Income Redistribution Wouldn't Be Necessary

Economic conservatives decry the redistribution of wealth through tax and spending programs such as Social Security, Medicare, and the Affordable Care Act, and they have a point. Is it fair to rob Peter to pay Paul? They also believe that hard work should be rewarded, and in this I could not agree more. Hard work should be fairly rewarded. The problem is that they fail to apply these ideals in a consistent and principled manner to our present form of capitalism.

Wednesday, July 15, 2015

"Religious Liberty" Discrimination Cases -- What If a Business's Conduct Is Speech?

Our conduct must conform to the dictates of the law, but we cannot be punished for exercising our right to freedom of expression. What if our conduct is expressive? How do these principles apply in situations where businesses have religious objections to same-sex marriage?

Tuesday, June 30, 2015

Obergefell Verses the Dissenters

Roberts just loves democracy,
So long as it works to keep him free.
Scalia now thinks gays are lovely
Forget his rants on sodomy.

Thomas thinks that slavery
Did not rob blacks of dignity.
And Alito delivers a homily
On the way marriage used to be.

Is their opposition due
To fears that they might be gay too?
To those who worry this might be true,
I'm afraid I have some news for you!

Or is it based on gender role?
Men sweat but women glow?
Is it a matter of control?
Man on top, woman below.

Will these dissenters consecrate
A desire to discriminate?
Do they dare insinuate
That Jesus taught us how to hate?

The Constitution's polity
Guarantees our liberty.
Obergefell's finality
Establishes equality.

Monday, June 29, 2015

Responding to Chief Justice Roberts' Dissent in Obergefell

Chief Justice John Roberts wrote a thunderous dissenting opinion in the same-sex marriage case, Obergefell v. Hodges. Here is my response.

Sunday, June 28, 2015

Summary of the Supreme Court's Decision in King v. Burwell

In King v. Burwell a majority of the Supreme Court interpreted the Affordable Care Act to mean that tax credit subsidies for the purchase of health insurance are available to citizens of all the states. And the majority of the Court squarely ruled that in the interpretation of statutes judges are not supposed to determine what they think the meaning of a statute is; rather, judges are supposed to determine what the legislature meant when it enacted a statute.

Thursday, June 25, 2015

Summary of Oral Argument in Obergefell v. Hodges

This entry describes the arguments that were made during the first part of oral argument in Obergefell v. Hodges, the same-sex marriage case that was argued before the Supreme Court on Tuesday, April 28, 2015.

Tuesday, June 23, 2015

Summary of Oral Argument in King v. Burwell

It is expected that the Supreme Court will soon render its decision in King v. Burwell, the Affordable Care Act case. This blog entry summarizes the arguments that the parties and the justices discussed during oral argument, which occurred on March 4.

Sunday, June 21, 2015

The Confederate Flag Is Not a Symbol of Respect for One's Ancestors - It Is a Symbol of Hatred

The Confederate flag is usually defended as a symbol of respect for one's ancestors - for the courage and fortitude of the people who endured the Civil War in the South. It is not. It is instead a symbol of a political, military, and terrorist movement whose purpose was to preserve and promote slavery, segregation, race hatred, and White Supremacy.

Saturday, June 20, 2015

Supreme Court's Decision in Kerry v. Din

This entry summarizes the ruling of the Supreme Court in Kerry v. Din, which was decided by the Supreme Court on June 15, 2015.

Thursday, April 9, 2015

Fifth Circuit's Ruling on Standing in Mississippi DACA Case -- Implications for Texas DAPA Case

On Tuesday a three-judge panel of the United States Court of Appeals for the Fifth Circuit affirmed a decision of a District Court finding that the State of Mississippi lacks standing to challenge President' Obama's "DACA" immigration policy -- the policy that defers deportation of persons brought to this country as children. What does this mean for the decision of a Texas federal district court that found that the State of Texas and other states have standing to challenge the President's DAPA immigration policy -- the policy that defers deportation for four million more undocumented aliens?

Monday, April 6, 2015

How Will the "Religious Liberty" Laws Affect the Supreme Court's Decision on Same-Sex Marriage?

The four conservatives on the Supreme Court have repeatedly argued that opposition to same-sex marriage is not based on hatred but rather on traditional morality and religious belief, and that these are sufficient grounds upon which to deny same-sex couples the right to marry. Will the furor over "religious liberty" laws that would have legalized discrimination against same-sex couples change their minds?

Friday, April 3, 2015

150 Years Ago: Abraham Lincoln's Visit to Richmond

On April 4, 1865 -- twelve days before his death -- the 16th President landed on the banks of the James River near the shattered Tredegar Ironworks in Richmond, Virginia, and walked up the hill to the Confederate White House, accompanied by his disabled son Tad, a small platoon of soldiers, and thousands of cheering newly-freed slaves.

Tuesday, March 31, 2015

The Rejection of "Plain Meaning" in Young v. United Parcel Service

By a vote of 6 to 3, the United States Supreme Court ruled in favor of Peggy Young in her lawsuit against United Parcel Service under the Pregnancy Discrimination Act. However, all nine justices of the Supreme Court rejected the "plain meaning" interpretation of the law that she proposed.

Friday, March 27, 2015

Indiana S.B. 101 - The Anti-Gay "Religious Freedom Restoration Act"

Indiana Governor Michael Pence described Indiana Senate Bill 101, the state's new "Religious Freedom Restoration Act," as nothing different than the Religious Freedom Restoration Acts adopted by the federal government and many other states. He stated: 
This bill is not about discrimination, and if I thought it legalized discrimination in any way I would have vetoed it.
Governor Pence is misinformed. This law is clearly designed to foster and encourage acts of private discrimination by businesses and employers on the basis of sexual orientation.

Friday, March 20, 2015

Supreme Court's Decision in Department of Transportation v. Association of American Railroads

On March 9 the Supreme Court ruled that Amtrak is a governmental entity for purposes of the Separation of Powers; therefore it did not violate the Constitution for Congress to give Amtrak a voice in the development of metrics and standards for evaluating the performance of passenger rail service. This was a non-controversial decision -- but it does have implications for King v. Burwell, the Affordable Care Act case.

Sunday, March 15, 2015

Preview of Walker v. Sons of Confederate Veterans: Confederate Flag License Plates

How do you feel when you see a Confederate Flag? Proud? Angry? Terrified? Whatever your reaction, you would probably concede that under the First Amendment individuals have the right to display this symbol, for example on a bumper sticker on their cars. But would it make a difference if the flag were on a license plate?

Saturday, March 14, 2015

Some Subtle Textual Arguments in King v. Burwell Addressed to Justice Scalia

In  a previous post I set forth the three statutory provisions that are under consideration in King v. Burwell and described the powerful constitutional arguments that were asserted by the federal government in support of the proposition that federal subsidies for health insurance under the Affordable Care Act are available to citizens in every state. These constitutional arguments were addressed to Justice Kennedy (who is committed to Federalism) and Chief Justice Roberts (who follows a pragmatic approach to legal interpretation). In this post I cover the more subtle textual arguments that were addressed to Justice Scalia.

Friday, March 13, 2015

Oklahoma and Alabama Laws Designed to Make It More Difficult for Gay and Lesbian Couples to Marry Will Backfire

News reports indicate that the Oklahoma House has approved a bill that transfers the power to issue marriage licenses from clerks of court to members of the clergy, and that the Alabama House has approved a bill that would explicitly authorize judges and members of the clergy to decline to officiate at specific marriages on account of religious objections. Neither law is constitutional. Both will have serious unintended consequences.

Constitutional Arguments in King v. Burwell

In King v. Burwell the government contends that the ACA requires the government to provide subsidies for families to purchase health insurance in all the states, while the challengers assert that the statute authorizes subsidies only in those states that established their own exchanges for the purchase of health insurance.

In this post I set forth the relevant statutory provisions and describe some of the powerful constitutional arguments that the government raised during oral argument in King v. Burwell that were intended to sway practical men like Justice Kennedy and Chief Justice Roberts. In a later post I will address some of the more subtle textual arguments that were intended to persuade a textualist like Justice Scalia.

Thursday, March 12, 2015

Saturday, March 7, 2015

Barack Obama at Selma, Alabama

The White House unveiled today a new website, Selma to Montgomery, to mark the 50th anniversary of this watershed event in American history. The President addressed the assembled marchers today. His speech will stand with his remarks in Cairo on June 4, 2009, A New Beginning. As then his words today are enduring and inspiring -- a sacred effort.

Monday, February 23, 2015

Smerconish: "Real patriots voice opinions based on substance, not smears."

Years of blogging, briefing, debating, and public speaking have driven home to me one point -- a point that CNN's Michael Smerconish articulated perfectly last Friday. Personal attacks reveal the weakness of a person's position on the issues. Rudy Guiliani's recent attack on President Obama's patriotism is merely the most recent example. This is what people do when they cannot rationally defend their substantive beliefs.

Saturday, February 21, 2015

Friday, February 20, 2015

Williams-Yulee and Francis Bacon

Sir Francis Bacon, justly famous as the father of the scientific method, is less often remembered for his service and disgrace as a judge. In 1621 he was forced to resign from his position as Lord Chancellor of England after he shamefully confessed that he had accepted "gifts" from the parties who appeared before his court, although he denied that these gifts ever influenced his judgment. In his defense many historians contend that it was common practice for litigants in those days to make "contributions" to the judges who presided over their cases.

We have the same problem with "gifts" to judges, do we not? We call them "campaign contributions." Later this year in Williams-Yulee v. The Florida Bar the United States Supreme Court will decide whether the law can prohibit judges from personally soliciting campaign contributions when running for office.

Thursday, February 19, 2015

State of Washington v. Arlene's Flowers: Washington Superior Court Rules in Favor of Same-Sex Couple

On February 18 in the case of Washington v. Arlene's Flowers Judge Alexander Eckstrom, Superior Court Judge for Benton County in the State of Washington, ruled in favor of a same-sex couple who sued a florist who refused to provide flowers for their wedding. The court upheld the enforcement of the state's non-discrimination law against the florist. The florist shop -- Arlene's Flowers -- had argued that it would violate the florist's religious beliefs to provide flowers for a same-sex wedding, and that it would be unconstitutional to enforce the non-discrimination law against the florist. Judge Eckstrom ruled that state law prohibiting discrimination on the basis of sexual orientation could be enforced under these circumstances.

Wednesday, February 18, 2015

Texas Federal Court Strikes Down DAPA - President's Order to Defer Deportation of 4.7 Million People

On Monday in the case of Texas v. United States federal District Judge Andrew S. Hanen issued a preliminary injunction against implementation of DAPA, the President's recent policy directive preventing the deportation of more than four million people. What was Judge Hanen's reasoning? Was it consistent with previous decisions of the United States Supreme Court?

Friday, February 13, 2015

Same Sex Marriage in Alabama - Showing Respect

A few days ago when last I posted on this topic Chief Justice Ray Moore stood in the courthouse door barring entry to same sex couples seeking marriage licenses. He had ordered Probate Judges across the state to disobey the federal court order striking down the Alabama constitutional provisions and statutes that prohibited same sex marriage. The Chief Justice did not purport to issue an injunction, nor did he propose to punish errant Probate Judges who might choose to obey the order of the District Court. Instead he called upon the governor of the state to enforce the law, presumably by taking some unspecified action against such judges. What happened? And what happens now?

Monday, February 9, 2015

Judge Ray Moore, Governor Robert Bentley, the Bible and the Constitution

     Late last night Ray Moore, Chief Justice of the Alabama Supreme Court, issued an order to all Probate Judges in Alabama to refuse to issue marriage licenses to same-sex couples. In his order he called upon Governor Robert Bentley to enforce Alabama law prohibiting same sex marriages.

Saturday, February 7, 2015

King v. Burwell and the Separation of Powers

     On February 5 the New York Times published an op-ed by Linda Greenhouse, a leading commentator on the Supreme Court, entitled The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court. Greenhouse argues that King v. Burwell, the Affordable Care Act case currently pending in the Supreme Court, involves far more than mere questions of statutory construction and contends that the case has political and constitutional implications that put the Supreme Court itself in peril. I agree, and would add that if the Supreme Court eliminates billions of dollars of tax credits that Congress and the Internal Revenue Service intended to extend to American citizens that it would violate the doctrine of Separation of Powers.