Vorchheimer and Symmetric Gender Distinctions
Chris Green
Some social-media discussions of Obergefell yesterday provoked me to look more closely at what, exactly, the Supreme Court has said about the application of intermediate scrutiny to symmetric gender distinctions. Are they encompassed within "classifications" in Craig and its progeny (on the most sensible reading of those precedents)? Craig was decided in December 1976, but […]
Obergefell, Craig, Nguyen, and Somin (Updated)
Chris Green
Just below, Andrew makes an interesting argument about the relationship of the Obergefell sex-discrimination argument to Giles Hotchkiss's comments at the very end of the February 1866 Bingham Amendment discussion. Hotchkiss hoped that Bingham's proposal would be replaced with a provision "to provide that no State shall discriminate between its citizens and give one class of citizens […]
Obergefell and Esteem Dilution
Chris Green
As in the 2013 Hollingsworth v. Perry argument (here at 17: "What harm you see happening and when and how and–what–what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?"), Justice Kagan asked yesterday (here at 44) why the expansion of the "marriage" label would undermine its effectiveness […]
The CAC amicus brief in Obergefell
Chris Green
As Mike Ramsey notes, the Cato Institute and the Alexander group were not the only Obergefell amici to discuss the original meaning of the Equal Protection Clause. David Gans's Constitutional Accountability Center also considered the issue, as Gans elaborates here. It is striking, however, how little of the CAC's evidence helps us learn what the […]
Equal Protection v. Privileges or Immunities in the Cato/Eskridge/Calabresi Obergefell brief
Chris Green
Several of the Obergefell briefs touch briefly on sources relevant to the original meaning of the Fourteenth Amendment, but the most extensive treatment is probably the brief on behalf of the Cato Institute and professors William Eskridge of Yale and Steven Calabresi of Northwestern, co-authored by Eskridge and Ilya Shapiro from Cato. Other than Melissa Saunders's […]
Hyman, Johnson, Bingham, Wilson, Trumbull, Colfax, and Stevens
Chris Green
Andrew Hyman notes that Andrew Johnson, vetoing the Civil Rights Act of 1866 on March 27, 1866, claimed that the freedmen were unworthy of "all the privileges and immunities of citizens of the United States." After interpreting Johnson as referring only to constitutionally-enumerated rights with that phrase, Hyman notes, "as far as I am aware, no supporter […]
Schalk & Kopf and Obergefell
Chris Green
I noted here and here the failure of the petitioners' briefs in Obergefell, and the briefs of their amici, to deal with the use of tradition in Heller v. Doe. A search through the 4084 pages of briefs so far shows another interesting near-total omission: only one of the 78 briefs so far (here at […]
Heller v. Doe and the Obergefell amici
Chris Green
I commented last week on the failure of the same-sex-marriage petitioners in Obergefell to confront what I consider respondents' strongest argument: the inference in Heller v. Doe of a "commonsense distinction" from the fact that that "the law has long treated the classes as distinct." The first 13 petitioner-side amici (briefs available here) unfortunately likewise fail to confront Heller. Two […]
Heller v. Doe in Obergefell
Chris Green
One thing that strikes me about the briefs filed Friday in the same-sex marriage cases, which the Supreme Court has put on its web site here (amici will be here), is how little attention they give to (what seems to me) the respondents' strongest argument: the deference due to traditionally-drawn distinctions under Heller v. Doe. In Heller, […]
Incorporation, Total Incorporation, and Nothing But Incorporation: The Essay
Chris Green
I have combined into an essay my posts responding to Kurt Lash's excellent book adopting an enumerated-rights-only reading of the Privileges or Immunities Clause. The new version–with many fewer abbreviations!–is here. Please send me any comments you might have! Update: The essay is now forthcoming in the William and Mary Bill of Rights Journal.