Religious Liberties Practice Group Podcast
On January 16, 2015, the Supreme Court granted cert in four same-sex marriage cases from the Sixth Circuit (one case from each of four states of the circuit, -- Ohio, Michigan, Tennessee, Kentucky). The Court called for Reply Briefs by April 17, with oral argument and decision expected this term. Cert was granted on two questions about the Fourteenth Amendment. The questions are: whether the Fourteenth Amendment "require[s]" a "state to issue a marriage license to two people of the same sex", and/or "to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed" in another state or jurisdiction.
The relationship between the two questions is asymmetrical. An affirmative answer to the first settles the second likewise, where the Court could coherently, hold that states must recognize out-of-state same-sex marriages, but not necessarily license them.
Faculty Book Podcast
- Prof. Gerard V. Bradley, University of Notre Dame Law School
- Ilya Shapiro, Senior Fellow in Constitutional Studies, The Cato Institute
In his new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, Prof. Lash presents the history surrounding the addition of the Privileges or Immunities Clause of the Fourteenth Amendment in 1868. This exhaustively researched book follows the evolution in public understanding of “the privileges and immunities of citizens of the United States,” from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.
Pressor Kurt Lash, Guy Raymond Jones Chair in Law and Director, Program in Constitutional Theory, History, and Law is joined by critical commenter Elizabeth Price Foley, Professor of Law at the Florida International University School of Law. SCOTUScast 7-3-14 featuring Erik Jaffe and Richard Garnett
On June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley. This case involved the constitutionality of Massachusetts’s law regarding speech within 35 feet of an abortion clinic. The law makes it a crime for speakers other than clinic employees to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.” The questions are first whether the law violates the First and Fourteenth Amendments, on its face and as applied to petitioners; and second, whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. Religious Liberties Practice Group Podcast
The Chief Justice delivered the opinion of the Court, which held that the Massachusetts law violates the First and Fourteenth Amendments. The Court found that the law was content neutral but not narrowly tailored to further the government’s legitimate interests. While Massachusetts has a legitimate interest in protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets, the law burdened more speech than necessary to achieve these interests. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which Justices Kennedy and Thomas joined. Justice Alito filed a separate opinion concurring in the judgment. The decision of the First Circuit was reversed.
To discuss the case, we have Mr. Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C. and Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.
On March 25, 2014, the contraceptive mandate case was argued in the U.S. Supreme Court. Hobby Lobby Stores’ owners have no moral or other objection to the use of 16 of 20 contraceptives required by the contraceptive mandate under the Affordable Care Act (ACA), but cite their deeply held religious beliefs in objecting to providing or paying for four others they see as possibly life-threatening. How will the Supreme Court rule? Does the Religious Freedom Restoration Act of 1993 (RFRA), allow Hobby Lobby a way around the ACA ‘s contraceptive mandate? Our experts reviewed the oral arguments and took questions from the audience in this Courthouse Steps Teleforum.
- Prof. Robert A. Destro, Professor of Law, and Director, Interdisciplinary Program in Law & Religion, The Catholic University of America Columbus School of Law
- Adele Keim, Counsel, The Becket Fund for Religious Liberty
A Lady or a Tiger?: Thoughts on Fisher v. University of Texas and the Future of Race Preferences in America Engage Volume 14, Issue 3 October 2013
Alison Somin February 19, 2014
There are not many dull moments in the debate about race preferences in university admissions. Nevertheless, the issuance of the recent Fisher v. University of Texas case has often been painted as one of them. “In with a bang, out with a fizzle” is the title of one account of Fisher, and “Fisher’s big news: No big news” is the headline of another. But perhaps this perennially hot debate has not cooled down after all, and Fisher is better understood as a cliffhanger—one akin to the ending of Frank Stockton’s 1882 “The Lady or the Tiger?,” which famously leaves the protagonist uncertain whether a beautiful woman or a starved tiger will emerge from behind the door he is about to open....[Read Now!]