Dorf on Law

by Michael Dorf This coming Thursday, September 17 is Constitution Day--on which, per federal law, educational institutions receiving federal funds, such as the one that employs me, must provide educational programming regarding the Constitution. For a useful summary of the mostly appropriate mockery of this day, I would direct readers to Dahlia Lithwick's essay in Slate  last year on what might be described as Constitution Eve. My own observations from Constitution Days Past can be found here and here . I was and remain skeptical of Constitution Day, even as I acknowledge that it can be a useful prod to broader reflection. For this year's reflection, I want to take a comparative look at the hot constitutional topic du jour-- same-sex marriage--in comparative perspective. My point of comparison is South Africa, where, in 2005, in  Minister of Home Affairs v. Fourie , the Constitutional Court found a constitutional right to same-sex marriage. Two years ago retired S.A. J...

By Eric Segall The summer heat is about to be over Now the Justices start a brand new year My forecast is for another term quite bleak These important cases will be argued in the dark But we will just have to wait and see Soon will come the first Monday in October The Justices traveled far and wide To forget last term or so they tried Same sex marriage, the death penalty, and Obamacare Gave the Justices quite a scare It was perhaps their grumpiest term Scalia's anger made the press corps squirm This Term won't better I fear Hard cases are coming this year Affirmative Action is back in Court The Conservatives will try to cut it short They say they decide by history and text But on this issue, it’s all pretext They say colorblind the Constitution must be But I am afraid that I must seriously disagree From our beginning to Brown in 1954 Whites almost always closed the school house door Now schools want to make up for the pas...

by Neil H. Buchanan My new Verdict column describes the latest nonsense from House Republicans, who appear to be seriously preparing to take a fateful (and catastrophic) stand in the next debt ceiling standoff.  With a dangerously limited number of days on the legislative calendar, Republicans were not merely wasting time delaying the Iran nuclear dea l (which was a fait accompli), but Paul Ryan was also leading the Republicans on the Ways & Means Committee in more meaningless political theater.  The committee held a hearing this week on their proposed " Default Prevention Act " and the related " Debt Management and Fiscal Responsibility Act of 2015 ." Just when it did not seem possible for Republicans to be more cynical, they pull something like this. It is possible that the government will not be shut down at the end of this month.  All the evidence does suggest that there will in fact be another shutdown in October (notwithstanding Republican leaders...

by Michael Dorf I recently participated in a discussion  of various current proposals to amend the U.S. Constitution sponsored by the National Constitution Center (NCC). NCC CEO (and George Washington University law professor) Jeff Rosen posed questions for me and Cato Institute senior fellow Ilya Shapiro. The proposed amendments under discussion were: (1) permitting states to propose specific amendments rather than an open-ended convention; (2) eliminating birthright citizenship; (3) authorizing campaign finance reform by overruling Citizens United and related cases; (4) adopting an express right to vote with enforcement power in Congress; and (5) providing religion-based opt-outs from participation in same-sex marriage. Although Ilya is a libertarian while I'm a progressive with civil libertarian tendencies, we agreed about much more than we disagreed about. Each of us thought that most of the proposed amendments under discussion were unnecessary, even if one accepts the norm...

by Michael Dorf Even though Kim Davis is no longer in jail, her case continues to provide a rich source of material for working out the dimensions of legal protection for religious opt-outs. In my Verdict column last week I explained why, even if it may be too late for Kim Davis to prevail on a state Religious Freedom Restoration Act (RFRA) claim, in a future case a Kentucky court (or a court in some other state with a state RFRA and a similar situation) could find that a county clerk is excused from the duty of issuing marriage licenses pursuant to a religious objection--so long as other government personnel stand prepared to issue licenses on a non-discriminatory basis. As I noted in the column, Davis objects not only to issuing the licenses herself but to permitting her deputies to issue them, so long as they bear her name. Indeed, as Eugene Volokh notes , apparently Davis even objects to her deputies issuing licenses that DO NOT include her name, so long as they are issued by the...

by Neil H. Buchanan As the summer ends, and the annual Labor Day weekend fades into memory, this seems like a good time to revisit the debate over the minimum wage.  This year, for the first time in many years, the momentum is in favor of meaningful increases in the minimum wage across the country.  There were a few states in which voters passed state-level minimum wage increases in the 2014 midterms, even in a year in which Democrats lost badly.  (Even my blue state of Maryland elected a Republican governor.) What is especially amazing about the current debate on the minimum wage, however, is how suddenly the "Fight for 15" movement has taken hold across the country.  Just a few months ago, it was still safe for Democrats to say that they were in favor of smaller increases in the minimum wage.  Senator Patty Murray's proposal to increase the federal minimum to $12 was considered essentially the furthest that a "practical" politician dared go, and Hillary Cl...

by Michael Dorf As the Kim Davis saga becomes a culture war Rorschach test, it is tempting to spend one's time gagging over the nonsense on the right, beginning with Mike Huckabee's characterization of the jailing of Davis for contempt as the "criminalization of Christianity," and perhaps ending with Davis attorney (and former Liberty Law School Dean) Mathew Staver's comparison of his client to Jews in Nazi Germany. Given the fate of gay and lesbian Germans under Nazi rule, this has to rank as one of the most inappropriate Nazi comparisons ever. I will leave the cultural aspects of this farce to the cultural critics and continue to focus on the legal questions, which, as I tried to show in my earlier discussions of this odd case ( here and here ), are not entirely clear-cut. For now I'd like to take a stab at an issue that is clear-cut but that, for reasons I don't understand, has been treated by Federal District Judge Bunning as mysterious. The qu...

by Michael Dorf In yesterday's brief post announcing my latest Verdict column , I promised to return on Monday with a longer accompaniment. Well, I couldn't stop myself, so I'm posting the follow-up today. The column raises the possibility that someone like Kim Davis (but probably not Kim Davis herself, given how the litigation has proceeded) might be able to succeed by raising an objection under the state RFRA. As I explain, the SCOTUS approach in Hobby Lobby and Wheaton College   indicates that federal courts applying the federal RFRA will take at face value a religious claimant's statement that her religion forbids her from doing just about anything. If the claimant says "I can't sign the form seeking an exemption from providing contraception insurance because signing the form is tantamount to performing an abortion," the Court (in Wheaton College ) appears to accept that as a sincere religious belief. The Court treats the substantial burden inq...

By Michael Dorf My editors at Verdict were kind enough to rush-publish my column on the Kim Davis case. The column is here . I'll have some further thoughts on the broad issue of when, if ever, government officials are entitled to religious exemptions from their official duties on Monday. For now, just one short postscript: A breaking story  reports that Davis has rejected a proposal that her deputies issue marriage licenses. It's not clear that this is a material change, since Davis had already barred her deputies from issuing the licenses.

by Michael Dorf This is my third and final installment of my mini-series on the American Sociological Association meeting. (Earlier installments appear  here and here .) I'll begin by repeating a finding that was reported on my plenary panel by one of the other panelists. He and his team conducted surveys post- Obergefell on public attitudes towards public accommodations laws. They found that most respondents believe that an individual (as opposed to corporate) business owner (such as a baker or florist) with a religious objection to providing services for a same-sex wedding or to serving LGBT customers should be exempt from public accommodations laws but that there was even stronger support for a simple right of such business owners to refuse service based on a non-religious objection. That finding is prima facie puzzling. One would think that religious reasons provide a stronger basis for exceptions to public accommodations laws than do non-religious reasons. I suspect that ...