constitutional law

The Indiana House Judiciary Committee heard testimony today about legislation that would start the process to amend Indiana's constitution to ban same-sex marriage. But the vote was delayed by the committee chair, the Associated Press reports.

The U.S. Supreme Court's workload might reach a new low because the court will consider only half the usual number of cases when it convenes in March, The Washington Post's Robert Barnes reports. Yet the issues the court will consider are central to American society- whether corporations are entitled to religious expression, affirmative action and separation of powers between the presidency and Congress over the appointment of governmental officials, Barnes writes. “The court has had several cases implicating major issues of national debate each of the last few years. What that shows is that this is a court that’s not at all shy about tackling hot-button issues,” Supreme Court litigator Kannon Shanmugam told Barnes.

The Texas Supreme Court took up two cases this week on whether injunctions in defamation cases are constitutional: "Treading the gray area between freedom of speech and permissible government censorship, the Texas Supreme Court heard arguments in two cases Thursday that could determine whether state judges may permanently ban people from repeating information found to be false and defamatory," the Austin American-Statesman reports.

I reviewed the oral arguments, and one issue that came up is whether there is a constitutional right to defamatory speech under the Texas Constitution. One of the proponents for the constitutionality of post-judgment injunctions banning someone from repeating false and defamatory statements said that defamatory speech has no constitutional protection. But his opponent argued the Texas Constitution provides more protection than the U.S. Constitution for freedom of speech and that defamatory speech does have constitutional protection in Texas. If there is constitutional protection under state constitutional law , then a post-judgment injunction would be illegal and damages would be the only remedy for the parties who were defamed.

Whether history and what the Founding Fathers thought about things controls how we interpret the American Constitution is going to get another ride in the U.S. Supreme Court in the upcoming term. USA Today reports on the historical issues implicated in the case in which the justices will decide the constitutionality of the president making appointments during Congressional recesses: "For two centuries, presidents have found ways to get around Congress in order to fill important positions in their administrations. Now the Supreme Court is set to decide if what's common is constitutional. Sound backwards? Perhaps. When it comes to the law, however, history isn't always the best guide. Take prayer: When the justices in November debated the practice of opening government meetings with an invocation, which dates back to the framers of the Constitution, they were forced to consider whether that tradition trumps the separation of church and state. Or marriage: Presented last year with a modern interpretation of a male-female institution that Chief Justice John Roberts noted 'has been around since time immemorial,' the justices had a tough time justifying the exclusion of gays and lesbians. Now comes an epic balance-of-powers battle between the executive and legislative branches that only the judicial branch can resolve. On Monday, what's been billed as the marquee case of the high court's 2013 term will give the justices a chance to decide if George Washington and many of his successors violated the Constitution they swore to uphold."

Four couples are challenging Arizona's ban on same-sex marriage in a putatative class action, Courthouse News Service reports. For example, "plaintiffs Holly Mitchell and Suzanne Cummins say that though they were able to become certified foster care parents, only Cummins was allowed to adopt their two children because 'Arizona law strongly prefers heterosexual couples in permanent adoption proceedings and permits only a husband and wife to jointly adopt,'" Courthouse News Service further reports. The plaintiffs are seeking declaratory judgment and injunctive relief.

Despite the many lawsuits pending to strike at state-level bans on same-sex marriage--and success in some of those lawsuits, the Associated Press reports that the 30-plus mini-Defense of Marriage Act laws aren't going anywhere just quite yet. "'The thing that I would not do is confidently predict that now all of these ‘mini’ DOMAs are going to be declared unconstitutional. That would be a mistake,' ... Andrew M. Koppelman, a Northwestern University School of Law professor and author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,”' told the AP. '“There is wiggle room here for judges to do what comports with their sense of what’s right.'" For example, some judges could find that the U.S. Supreme Court decision striking down the federal DOMA left the decision on authorizing same-sex marriage up to individual states. 

The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.

The National Law Journal's Marcia Coyle reports on the U.S. Supreme Court's spring 2014 term: "The term may seem a little blockbuster-light compared with back-to-back historic terms involving health care, immigration, same-sex marriages and voting rights. But there are a number of headline grabbers and the new year brings two possible game changers for the executive branch," including on the issue of whether the president has the power to make appointments during Congressional recesses.

The Associated Press reports that U.S. District Judge Timothy Black ruled today that Ohio's 9-year-old ban on same-sex marriage cannot extend to refusing to recognize valid same-sex marriages from other states on death certificates. The ruling is likely to have a broader impact than just on death certificates because of the judge's sweeping language. According to the AP, the judge reasoned: "'The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no."'

A federal judge struck down Utah's ban on same-sex marriage as violative of LGBT couples' rights to due process and equal protection, the AP reports. U.S. District Judge Robert J. Shelby's ruling could prime the issue for the U.S. Supreme Court. The Supreme Court, while ruling this year that a ban on federal benefits for gay couples is unconstitutional, did not address whether there is a fundamental right for same-sex couples to get married in the United States.