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A lot of ink has been spilled about the phrasing of the Questions Presented in the Same-Sex Marriage Cases. The first question asks “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” I think a necessary antecedent question is whether state is required to license marriage altogether. Marriage, understood in terms of a license, is in every sense a positive right. Unlike, say, Lawrence which protected the right to engage in sodomy, or Griswold, which protected the right of married couples to access contraceptive, the same-sex marriage cases are seeking that the state recognize unions with a license, and confer other positive benefits.

How is it, that the issuance of a piece of paper and certain entitlements could be a fundamental right? There is precedent to support this position–although I don’t think those cases carry such weight. Let’s start with Myer v. Nebraska (by everyone’s favorite Justice McReynolds) which lists the “right to marry” among other liberties protected by the 14th Amendment:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Arguably, all of these rights are negative right–the liberty to be free from some sort of governmental restraint. Marriage, if we understand it to mean the granting of a government license, does not fit in with this list. Ejusdem generis. I had always understood McReynolds to use “to marry” as the right to cohabitation (certainly men and women, and perhaps even those of the same race). Marriage, as a positive right, does not fit in with the rest of the liberties McReynolds listed, except to the extent we are discussing a “common law” marriage.

Second, consider Skinner v. Oklahoma ex rel. Williamson. It discusses marriage in the context of procreation, in the absence of state infringement :

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches.

Here Justice Douglas–who was very familiar with marriage licenses, having received quite a few himself–wasn’t referring to a positive right of marriage, but a negative right that the government cannot restrain the liberty interest of families. Recall Skinner concerned mandatory sterilization of prisoners–one of the greatest possible infringements on liberty imaginable. Indeed, Douglas’s decision in Griswold tied the right to contraception to those already married (Roe discarded this limitation).

Third, consider Justice White’s concurring opinion in Griswold v. Connecticut. His understanding of Myer, Pierce, and Skinner was premised on a negative conception of liberty–the state cannot infringe on the intimacies of family life.

It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty. Suffice it to say that this is not the first time this Court has had occasion to articulate that the liberty entitled to protection under the Fourteenth Amendment includes the right “to marry, establish a home and bring up children,”Meyer v. Nebraska, 262 U.S. 390, 399, and “the liberty . . . to direct the upbringing and education of children,” Pierce v. Society of Sisters, 268 U.S. 510, 534-535, and that these are among “the basic civil rights of man.” Skinner v. Oklahoma, 316 U.S. 535, 541. These decisions affirm that there is a “realm of family life which the state cannot enter” without substantial justification. Prince v. Massachusetts, 321 U.S. 158, 166. Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.

The entire nature of these precedents was keeping government out of private relationships. But modern day cases want to bring the government into these relationships to officially recognize them. (Libertarians in particular should be more cognizant of this point).

Fourth, this brings us to Loving v. Virginia, which was primarily an equal protection case. Then, at the end, Chief Justice Warren added a two-paragraph long Part II focusing on whether a fundamental right was violated. Here is the section, in its entirety:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

When I teach this case, students are always confused about whether it is a due process inquiry or equal protection inquiry. Their confusion is justified, as Warren’s muddled opinion blurs the two beyond recognition.

First, the analysis effectively says because the ban on interracial marriage violates equal protection, it also violates due process. It speaks of “racial classifications,” “principles of equality,” and “invidious racial discriminations,” as the factors to suggest it deprives “citizens of liberty without due process of law.” If I had to guess, I suspect the Court added this as a throwaway to bolster the burgeoning due process jurisprudence from Griswold two years earlier–but this is mere speculation.

Second, the last sentence is not complete. The decision to cohabit with another “resides with the individual” for sure. This was the sort of right at issue in Myer or Skinner. This fits in with Justice White’s understanding of these precedents in Griswold. There was nothing in the law that prohibited the Lovings from living together. What they sought was not just to live together, but to have the state recognize that union with a marriage license. Or in other words, provide them with equal protection of the laws. Virginia would give marriage licenses to people of the same race, but not different races. This is indeed an invidious racial discrimination, that violates the equal protection clause. But nothing in the Court’s analysis explains why the marriage license itself–citations to Skinner are unhelpful–is a due process liberty interest, when it is separate and apart from negative rights like procreation and cohabitation.

In the past two years, numerous courts have dutifully cited Loving’s conclusion that a marriage license is a fundamental right regularly. Much of the criticism of these citations is that when the Court wrote Myer or Skinner or Loving, it meant that marriage was a union between a man and a woman. My criticism is different. Myer and Skinner discussed marriage in the negative context of procreation and raising a family–not as a positive right to petition the state for a marriage license. Loving added that gloss, without any analysis. Arguably Loving supports those citations, but Myer and Skinner do not.

None of this is to say that in June, the Court will decline to recognize marriage as a fundamental right. Perhaps due to evolving standards of decency, or modern conceptions of the dignity inherent in receiving state recognition of a union, there is a due process right to obtain a marriage license. But citations to Myer, Skinner, and even Loving need to add a modern-day gloss to carry the burden.

However, this gloss will raise serious complications if, after the Court finds a due process violation, states vote to give no one marriage licenses. If the phrasing of the Court’s first question presented is taken seriously, then a state cannot eliminate the licensure of marriage altogether, as that would violate the 14th Amendment. If this is a fundamental right, states would be required to hand out the licenses.

Oklahoma (the home of Skinner!) is proposing a bill that would prevent any state official, including judges or clerks, from performing marriage ceremonies. Further, the state would not issue any state-issued marriage licenses. Instead couples can file “marriage certificates” or “common law marriage certificates” with the clerk. Marriage would exist largely outside the state. This would seem to run afoul of the first question presented in the same-sex marriage cases. All the attendant benefits of marriage would remain, but the state would not be complicit in issuing any licenses to decide who is married.

Would such a law be constitutional? If indeed the Court holds that marriage is a fundamental right–not just that denying same-sex couples a license violates the equal protection clause–Oklahoma would be required to issue marriage licenses.

As I noted in an earlier post, this will be a much tougher opinion to write than people suspect. Circuit courts can gloss over these tough issues, but the Supreme Court cannot. They ducked the hard issues in Lawrence and Windsor. In the former, most stated had already eliminate sodomy statutes from the books, and those that had them on the books almost never enforced them. In the latter, invalidating the federal DOMA allowed the states to operate as they had before. But this case directly impacts laws that are feverishly contested in a majority of the states. I’ve been wrong about virtually every prediction I’ve made with the same-sex marriage cases, so I make no prediction, other than that the Court will surprise us.

Among the many questions left unresolved by Heller, and ignored by the Court in the six years since, has been what weapons are or are not in the scope of the Second Amendment. Citing United States v. Miller, Justice Scalia sketched out what kinds of weapons would, and would not be covered. In short, those weapons “typically possessed by law-abiding citizens for lawful purposes” are protected.

We may as well consider at this point (for we will have to consider eventually) whattypes of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged inMiller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment  does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

The majority decision then lists a few types of guns that can be banned, including those that are “dangerous and unusual” and “M-16 rifles and the like.”

There is a circularity to the Court’s reasoning. If the government has banned a certain type of gun before Heller, it cannot be typically possessed–because they aren’t on sale–and thus is outside the scope of the Second Amendment. But if a gun was not banned before Heller, and it was typically possessed, it is within the scope of the Second Amendment. Thus it cannot now be banned.

Justice Breyer addresses that fact in his dissent:

According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.  In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Another reason why 3D-printed guns are such a hot topic.

 

Fully-automatic guns have been heavily regulated through taxes (not banned as you may think) since the 1939 National Firearms Act. There are very, very few in civilian possession today. Contrast that with the semi-automatic AR-15, which has long been legal, and is one of the most popular rifles sold. The former, under the Court’s reasoning would be out of the scope of the Second Amendment because it is not typically possessed. The latter (I would argue) is in the scope, because it is typically possessed.

During oral arguments in the 7th Circuit concerning Highland Park’s ban on so-called “assault weapons” and high-capacity magazines, Judge Easterbrook probed the depths of what weapons are, are not covered. Courthouse News has this summary:

    “The Supreme Court made it clear in Heller that law abiding people have a core constitutional right to keep commonly owned firearms in their homes.”
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
Vogts stuck to his position. “The firearms here are without question some of the most commonly used. One out of nine guns sold since the invention of AR-type rifles is an AR rifle.”

Easterbrook’s comments highlight the weakness of Heller’s reliance on Miller. Only those weapons that were not banned before Heller can realistically be in common sue after Heller. Later Easterbrook made this point quite clear:

Later, probably trying to curry favor with Easterbrook, he added: “You can’t have a bazooka.”
The move backfired. “Why not?” Easterbrook demanded.
“They’re not commonly owned,” Wilson said.
The judge chuckled: “They’re uncommon because they’re illegal. At the time of Heller, handguns were not common in D.C.”

This is the circularity of Heller.

Finally, Easterbrook said what is on all of our minds–why have the Justices not taken any cases!

  Easterbrook ended the day bemoaning the lack of a clear standard to decide the case. “We have no idea what ‘scrutiny’ means here. Any speculation about why the Justices declined to specify it?” he asked, before mentioning that the Supreme Court had declined certiorari on several such cases.
“I have no insight into their reasoning on that,” Vogts shrugged

Easterbrook is frustrated. Join the club.

The lecture notes are here. The live chat is here.

The Legislative Powers

• Bicameralism & Presentment (260-261).
• INS v. Chadha (261-272).
• Clinton v. City of New York (272-281).
• Read Article I, Section 8 of the Constitution (3-4).
• Enumerated Powers in Article I, Section 8 (281-283).
• Bills of Attainder (283-284).
• Note 5 – Nixon v. GSA (293-294).
• Ex Post Facto Clause (294-295).
• Contracts Clause (295).

This is Chief Justice Warren E. Burger, who wrote the majority opinion in INS v. Chadha.

 

This is Jagdish Chadha.

Justice Louis Powell authored a concurring opinion.

Justice White dissented.

 

The City of New York was led, at the time by Mayor Rudy Giuliani, who opposed President Clinton’s usage of the “Line Item Veto.”

The majority opinion was authored by Justice John Paul Stevens.

Justice Anthony Michael Kennedy concurred.

Justice Stephen G. Breyer dissented, in part.

Justice Antonin Scalia dissented, in other parts.

Nixon v. GSA concerned President Nixon’s attempts to keep secret tapes he recorded privately in the White House.

 

The Supreme Court’s web site has a feature on its page listing slip opinions. If you hover your mouse over the name of the case, a box will pop up providing a one-sentence summary of the decision. I’ve never noticed this feature before, but all of the cases going back to 2009 seem to have this feature.

For example, this is what appears when you mouseover Holt v. Hobbs.

The Arkansas Department of Correction’s grooming policy, which generally prohibits inmates from growing beards, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) insofar as it prevents petitioner, a devout Muslim, from growing a ½-inch beard in accordance with his religious beliefs.

A slightly different statement appears in the syllabus:

The Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs.

This feature works on Windows, but not a Mac.

We live in an era of dysfunction. I’ve written at some length how the Executive has reacted to this gridlock through the expansion of his own executive power, or what David Pozen refers to as “self-help.” I’ve also addressed how courts react to this gridlock with respect to the judicial power. Rounding out this trilogy, is gridlock and congressional power–how the Congress attempt to expand its power when the President does not get along.

One of the most fascinating examples of the latter involves House Speaker John Boehner’s decision to invite Israeli PM Benjamin Netanyahu to address Congress without the approval of the President. I tend not to write about issues of foreign policy, unless there is a connection to domestic law. This is such a case. At the Originalism Blog, Mike Ramsey spells out with lucid details why this action is likely unconstitutional. David Bernstein largely agrees.

This conflict fits into the ongoing theme of gridlock. Politico reports that for some time, Boehner has been trying to secure the President’s permission to invite Netanyahu.

Soon after becoming House Speaker in 2011, Republican John Boehner started running the traps on inviting Israeli Prime Minister Benjamin Netanyahu to speak to a joint meeting of Congress.

But when Barry Jackson, then Boehner’s chief-of-staff, checked with President Barack Obama’s top advisers, Jackson said he was left waiting a month only to get no response.

Under normal circumstances, the President would likely approve of the Speaker wishing to invite the PM of an ally to address Congress. But we are not living in normal times. Politico suggests that this battle has become quite personal.

But the sequence of events does capture how much the normal courtesies between this White House and Congress have deteriorated — even in front of guests from another country.

“There appear to be no rules anymore. If you can do it, do it,” said Patrick Griffin, who recalls nothing quite like this even in the tempestuous times Griffin served as White House liaison between President Bill Clinton and Speaker Newt Gingrich (R-Ga.). Democratic Leader Nancy Pelosi (D-Calif.), herself a former speaker who oversaw similar joint meetings for foreign guests, said the management of the invitation was “inappropriate” and Boehner risks squandering his power in a fit of “hubris.”

But privately, Democrats admit too that this White House — as seen in the South Korea episode — is no innocent. And Jackson, who has served at both ends of Pennsylvania Avenue, said he is baffled that the administration should talk now about “protocol” after being so quick to exert its executive power to run over Congress.

“This is not the first time where they got cross-wise thinking the House was not an equal branch,” Jackson said. “When I heard about this, I shook my head.”

Here, Boehner seemed to be responding to the breakdown of what would normally be a routine matter for the house. In a well-functioning government, the President would approve the address by the Israeli PM. But, we don’t have that today, so Boehner bypassed POTUS. To Pozen’s theory, this could be viewed as a legitimate form of self-help. I don’t think this is valid, in the same way I don’t think the President can sidestep Congress. As Ramsey notes, here it is even worse as the President is the sole organ of foreign policy, and Congress has no constitutional imperative to host foreign leaders.

Relatedly, my friend Adam White queried on Twitter whether the courts can receive amici from foreign sovereigns. In light of the fact that the judicial power extends to matters involving public ministers, there would seem to be a very strong place for briefs from foreign governments. Also, courts would often have to apply the law of nations (under the ATS for example), so foreign nations would have something to say there. Interestingly, no foreign briefs were filed in Zivotofsky.