Fourth Circuit Refuses to Grant Same-Sex Marriage Stay

As I have been arguing for months, staying decisions in same sex marriage litigation causes substantial harm and is legally unsound. About an hour ago, the Fourth Circuit refused to stay its ruling holding Virginia’s same-sex marriage ban unconstitutional. Depending whether the Supreme Court grants an emergency stay, same-sex marriages could begin next week in Virginia.

I’m quoted in this Associated Press story that was published immediately after the ruling.

The Cumulative Effect of Street Harassment

One of my former classmates at Stanford Law School has started a new Tumblr — Not Your Fucking Sweetheart — that documents the ongoing problem of street harassment. Her immediate goal is to document a month of street harassment in her life in a major metropolitan area (in this case, Washington DC, which is notorious for street harassment). I highly encourage everyone to take a look, and to check back in over the next thirty days.

The project is important for a number of reasons. First, it highlights that the harm of street harassment is not just an occasional one-off encounter, although that can be disturbing in and of itself. For many women, street harassment is a near-everyday occurrence. And it’s this cumulative effect that’s the greatest problem. Dealing with street harassment a few times a year would still be worthy of discussion. But dealing with street harassment nearly every day is a distraction from women’s lives that affects success at school and at work, relationships, and personal well-being. Speaking from personal experience, having someone call you a “fucking whore” on your way to work, or throw Gatorade on you from a car while you’re out for a run, or grope you on your morning subway commute, is a disturbing and frightening experience not immediately shaken off. To my knowledge no one has attempted to measure empirically the effect of street harassment on women’s workplace and educational attainment, but I suspect that it is significant. Continue reading

With Ian Farrell: “Gender Diversity and Same-Sex Marriage”

I am delighted to share a short essay criticizing the “gender diversity” argument (or do I mean “argument”?) against same-sex marriage that I coauthored with my fantastic University of Denver colleague Ian Farrell.  You can download the whole essay here, or for those short on time, here’s the abstract:

Opponents of same-sex marriage have recently adopted a curious new argument. The argument goes something like this. The Supreme Court has held that diversity is a compelling state interest in institutions of higher education. Opposite-sex marriage includes gender diversity, while same-sex marriage does not. Therefore, states may allow same-sex marriage while banning opposite-sex marriage—even if the ban triggers heightened scrutiny under equal protection or due process—because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The gender diversity argument against same-sex marriage has made its way into a number of briefs during the recent increase in challenges to same-sex marriage bans. For example, it appeared in multiple amicus briefs in United States v. Windsor, as well as in various filings in challenges to Utah’s same-sex marriage ban in the Tenth Circuit and Kentucky’s same-sex marriage ban in the Sixth Circuit.

Despite this newfound popularity, the gender diversity argument fails for a number of reasons. It erroneously conflates sex and gender, impermissibly relies on sex and gender stereotyping, lacks credible empirical support, draws untenable analogies, runs afoul of well-established doctrine, and, taken to its logical conclusion, leads to a inexorably to a number of consequences that are either universally undesirable or that we are fairly certain its proponents do not support. In short, we think the argument wholly unsuccessful, and urge courts not to entertain it.


Chen & Marceau: More on the Continuing Problems with Lethal Injection

My colleagues Alan Chen and Justin Marceau have another piece, this time in Huffington Post, about the horribly botched Arizona execution and the broader problems with lethal injection: poor training of executioners; unavailability of the drugs previously used; lack of transparency that makes it very difficult for defense attorneys to challenge death sentences. This piece is written for a generalist, as opposed to legally trained audience. I highly recommend it.

Chen & Marceau: The Continuing Problems with Lethal Injection

For those as horrified as I am by the latest botched execution by lethal injection — this time in Arizona — my colleagues Alan Chen and Justin Marceau have an important post on the American Constitution Society blog analyzing the events leading up to the attempted lethal injection. Alan and Justin are, respectively, a former litigator with the ACLU and a former Assistant Federal Public Defender in the District of Arizona. Their piece is a must-read for anyone wishing to understand what happened in Arizona or to understand the legal and factual debate surrounding lethal injection.

A Few Memories

By now everyone has heard the heartbreaking news of Dan Markel’s untimely passing. Others have written eloquently about Dan’s intellectual gifts, his ability as a teacher, his scholarly contributions, and his commitment to mentorship. It is striking to me that the reaction is not only “this is a horrible tragedy” — which of course it is — but also “this simply cannot be.” Maybe one reason is that — particularly for those of us who entered legal academia in the past decade or so — there’s simply no such thing as legal academia without Prawfsblawg, without Dan’s larger-than-life presence in the blogosphere, without his generous feedback on papers, and without his ceaseless efforts to improve the legal academic community.

I didn’t know Dan anywhere near as long or as well as many of his colleagues did, and this post will be a small drop in the river of memories from people whose lives Dan touched. But for whatever it’s worth, I thought I would add a few of my own. Continue reading

Huffington Post: Constitutional Rights in the Digital Age

My new Huffington Post piece argues that the Supreme Court’s decision in Riley v. California reveals a willingness to think about technology as both quantitatively and qualitatively different, with implications for the scope of Fourth Amendment protection. I consider how emerging technology might affect the way that courts construe other constitutional rights, too. Here, I focus on the First Amendment.

More Same-Sex Marriage Developments

I enjoyed talking to Dave Young for Fox News’ report on the Tenth Circuit’s decision to invalidate Oklahoma’s same-sex marriage ban. Meanwhile, I’m also quoted in this Associated Press story summarizing recent developments in the Colorado same-sex marriage cases. Clerks in Denver and Adams County will stop issuing marriage licenses following a state court order — hopefully a short-lived development.

Fox Oklahoma2

Federalist Society Review of 2013-2014 Supreme Court Term

I’ll be speaking today at an event sponsored by the the Colorado chapter of the Federalist Society, which reviews the Supreme Court’s 2013-2014 term. My co-panelists will be Judge Tim Tymkovich of the Tenth Circuit, Colorado Solicitor General Dan Domenico, Richard Westfall, and Rob Natelson. It should be a really interesting conversation. I’m particularly looking forward to discussing United States v. Riley, in which I was pleased to sign the law professors’ amicus brief that the Supreme Court ultimately cited in its unanimous opinion holding that  that police cannot perform a warrantless search of a cell phone as a search incident to arrest absent some other exception to the warrant requirement.

More information about the event, which takes place over lunch today, is available here.