18 June 2011
The struggle of gays and lesbians to obtain full marriage rights is now a legal battle being fought in the courts. The questions facing the court are numerous and all grounded in the U.S. Constitution. For instance, the U.S. Supreme Court has recognized an implied constitutional right to marry. So does this also apply to gays and lesbians. So far the courts have said no. Does prohibiting gays and lesbians from marrying violate the Equal Protection Clause? Well, it depends how you analyze it. Under current Supreme Court precedent, the question must be analyzed using the Rational Basis Test. Under this test the plaintiff must prove that the government does not have a legitimate interest in passing the law and/or the means used to achieve the government interest are not rationally related to the interest itself. The primary argument used by opponents of gay marriage is that the government has a legitimate interest in encourages only those partnerships where procreation is possible. But as this article in Slate magazine points out, perhaps prohibiting gays from marrying is not rationally related to this interest.
11 June 2011
Hardly month goes by without the news reporting some case of a person being arrested and charged with a crime for swearing in public. Time and time again the courts throw these cases out on the basis of the First Amendment's free speech protection. It makes me wonder whether prosecutors have ever read the Constitution. This recent case out of Arizona is a nice example.
10 June 2011
Dahlia Lithwick of Slate Magazine recently asked whether legal arguments over President Obama's health care reform should make us question the role of the courts in our system of government. The article is really about the politicization of America's "independent" judiciary, and provides one view how American courts are being impacted by outside influences, and whether this development (if in fact it is something new) should make us reconsider judicial review.
09 June 2011
As with most questions in American Administrative Law, the answer is it depends. It depends on what the enabling statute (the statute either creating the agency or the agency's task) says. The law blog JURIST has a good example of a statute that allows private parties to enforce regulations and an instance where a federal judge found that environmental groups had standing to sue to enforce the regulations:
A federal judge on Tuesday permitted two environmental groups to sue a Texas refinery owned by ExxonMobil Corp. [corporate website] for failing to enforce federal environmental standards. The Sierra Club and Environment Texas [advocacy websites] filed the lawsuit [Reuters report] in December in the US District Court for the Southern District of Texas [official website] against ExxonMobil's Baytown, Texas, refinery and the adjacent chemical plant for allegedly releasing over 8 million pounds of pollutants beyond the levels permitted under the CAA in the last five years. The Clean Air Act (CAA) [materials] contains a provision permitting private individuals to seek enforcement of federal pollution laws when the US Environmental Protection Agency (EPA) [official website] fails to do so.you can read the rest here.