The Candidates and the Constitution

Slate magazine recently asked who would do more harm to the constitution. Their results can be found here. A word of caution, Slate tends to lean to the left, which surely colors how it defines "damage." Nevertheless, this is a good read for anyone interested in how an election for the presidency can potentially impact the constitution. 

Can Muslims Be Banned From Entering the United States?

Donald Trump is no stranger to controversy. In fact, he craves it. His most recently controversial statement, however, has raised an interesting constitutional question: Would it be constitutional to exclude all Muslims from entering the United States? (for a primer on this issue in German see "Trump für komplettes Muslim-Einreiseverbot in die USA"). Interestingly, there is a split of opinion among American academics regarding this question, and one of the reasons is a case that was discussed here early this month. For a taste of the some of the conflicting views regarding this question see here, here and here.

The Shadow of Korematsu

With all the overheated rhetoric coming from some Republican presidential candidates about how Muslims in America should be treated, one cannot help but think back to some of the darker episodes of American history where fear overran reason. Perhaps no other episode sticks out more than the internment of Japanese-Americans in the aftermath of the attacks on Pearl Harbor. While the internment was bad enough, the fact that the Supreme Court went along with such a policy is even more shameful, at least in retrospect.

Writing for the Court in the (in)famous Korematsu case, Justice Black said:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,"

For Black and the majority, the idea that there could be Japanese spies circulating among the populace in the immediate aftermath of a Japanese attack was sufficient justification to round up over 120,000 people and place them into camps. The case is still good law today, never having been overturned by the U.S. Supreme Court, and has actually been cited by a few American politicians as precedent for the idea of rounding up recent refugees from Syria. 

Students who are interested in learning more about the Korematsu case and how it relates to Syrian refugees are encouraged to check out a recent post over at the Constitutional Daily Blog as well as a recent article by Matt Ford of the Atlantic.

Finding a Rational Basis to Prohibit Gay Marriage

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.

More on Racial Preferences

Students in my Race and Equality in America seminar recently engaged in a discussion concerning the controversial topic of Affirmative Action. And wouldn't you know it, a day later Affirmative Action is in the news with the U.S. Court of Appeals' ruling on the University of Texas admission policy, which takes race into consideration as a factor for admission. The Statesman newspaper has more.

A True Groundbreaker

Brown v. Board of Education is often viewed as being the first major victory in court in the fight to end legal segregation of the races in America. While it most certainly did change the legal landscape concerning racial discrimination, it was not the first victory in this battle. That distinction goes to Lloyd Gaines. The New York Times explains that:

On Dec. 12, 1938, the Supreme Court ruled that the segregated University of Missouri Law School had to admit Lloyd Lionel Gaines, who was qualified except for the color of his skin, if there was no comparable legal education available to him within Missouri — and there was not.

The New York Times has more on this fascinating individual and case.

Same Sex Marriage

What is the future of same-sex marriage in America? Students in my American Constitutional Law courses learned that the federal courts have not been a very friendly place for gay rights advocates primarily because they have not been open to treating gay and lesbians as a "suspect class." Thus, federal courts have had no problem finding laws such as the military's Don't Ask Don't Tell policy or the Defense of Marriage Act to be perfectly constitutional. But lawsuits in state courts have recently been far more successful. Georgetown law professor David Cole has a wonderful piece in next month's New York Review of Books about the history and future of same-sex marriage in the United States. It is worth a quick glance. At the very least, students should consider the three reasons Cole says are put forth by the government as why laws banning same-sex marriage are rationally related to a legitimate government interest:

(1) the state is responsible for preserving the traditional conception of marriage; (2) limiting marriage to heterosexual couples furthers the state's interests in promoting procreation and/or healthy childrearing; and (3) the state has a legitimate interest in refusing to condone homosexual behavior that it deems immoral.

Should any of these reasons be enough for the state to pass the rational basis test under the Equal Protection Clause?

Marriage Revisited

I have written in the past about the landmark decision of Loving v. Virginia in which the U.S. Supreme Court stuck down laws banning whites and blacks from marrying. I have also written about how the courts are becoming involved in the issue of gay marriage. But I have yet to suggest that these two cases raise the same issue, although I believe they may. Anna Quindlen of Newsweek has a nice short piece in this week's issue explaining how these cases are basically the same. Surprisingly, the question of whether this is a civil rights issue on par with issues raised by racial discrimination is somewhat controversial. And ironically polls show that a vast majority of African-Americans oppose gay marriage. So give this question some thought. Are laws prohibiting gay marriage the same as those which prohibited people of different races from marrying?

Don't Ask, Don't Tell - An Update

During U.S. Constitutional law lecture a few weeks ago, I used the issue of gays in the military to illustrate how courts generally apply the rational basis test (as you recall, this is the lowest level of scrutiny applied to due process and equal protection claims). Well, it turns out that at least one court now believes that the military's policy of "Don't Ask, Don't Tell" should be judged using a level of scrutiny somewhere between strict and rational basis. Here's why.

A few years ago the U.S. Supreme Court struck down a Texas statute that outlawed consensual homosexual sex. (see Lawrence v. Texas). According to many commentators, and three judges on the First Circuit Court of Appeals, the decision in Lawrence recognized "a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label." In short, the Court didn't use the rational basis test to deal with this law that classified gays and lesbians differently then heterosexual couples, which is how courts had always dealt with such classifications in the past.

But even using this "new" level of scrutiny that falls between strict scrutiny and rational basis, the First Circuit Court of Appeals still found the Don't Ask, Don't Tell policy to be constitutional. How?

The court began it's analysis by noting that "Lawrence balanced the strength of the state's asserted interest in prohibiting immoral conduct against the degree of intrusion into the petitioners' private sexual life caused by the statute in order to determine whether the law was unconstitutionally applied." In short, the Lawrence Court weighed the "protected liberty interest" as noted above, against the state's interest in stopping "immoral conduct." In the end, the Lawrence Court felt that individual right was more important.

Lawrence truly was a departure from past reviews of laws that classified gays and lesbians differently, i.e. using the rational basis test. A rational basis analysis "does not permit consideration of the strength of the individual's interest or the extent of the intrusion on that interest caused by the law; the focus is entirely on the rationality of the state's reason for enacting the law," said the First Circuit Court of Appeals. In Lawrence, the Court most certainly looked at the individual interest at stake.

So the First Circuit Court of Appeals now had to use this new approach to judge the military policy at issue. And they did so rather quickly, saying basically that when it comes to matters of the military, courts have always shown deference to Congress because: 1) Congress is in a much better position than the courts to determine the proper workings of the military and; 2) the U.S. Constitution specifically gives Congress the power to raise and support armed forces. The Court then noted that the policy in question was created after a careful and thorough review noting that Congress:

focused explicitly on the effect that the Act could have on constitutional rights of homosexuals, concluding that "if the Supreme Court should reverse its ruling in Bowers and hold that private consensual homosexual acts between adults may not be prosecuted in civilian society, this would not alter the committee's judgment as to the effect of homosexual conduct in the armed forces. . . . Congress ultimately concluded that the voluminous evidentiary record supported adopting a policy of separating certain homosexuals from military service to preserve the "high morale, good order and discipline, and unit cohesion" of the troops.

In short, concerning matters of the military, courts should basically defer to Congress, which is really what Courts generally do when applying the rational basis test. Which begs the question. Did the First Circuit really use something other than the rational basis test in concluding that the policy did not violate the Constitution? It doesn't appear so.