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.

Thoughts on Gender Diversity and Same-Sex Marriage

I have written previously about the a curious new argument adopted by opponents of same-sex marriage. The argument goes something like this: The Supreme Court has held that diversity is a compelling state interest in upholding certain kinds of affirmative action programs 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, because opposite-sex marriage furthers gender diversity, while same-sex marriage does not.

The argument has found its way into some of the amicus briefs in United States v. Windsor as well as party and amicus briefs in several disputes pending around the country. In Windsor, for example, one amicus arguing the validity of DOMA stated:

Without bothering to cite the copious literature showing the benefits of having a mother and father: common sense tells us that more diversity exists when a child can learn from a female parent and a male parent, than with two male or two female parents. With two fathers, how can a child be breast-fed by a parent? And with two mothers, a child may have no close male role model from whom to learn.

Landmark affirmative-action case Grutter v. Bollinger tells us of the compelling state interest of diversity served by affirmative action at universities. But that is only maybe for four years, at a college. By contrast, for the eighteen years of pre-adult growing up (including the vital first few years of life), for a child to have diverse, different-sex parenting, could be considered a far more compelling interest.

The argument reemerged in the litigation of Utah’s same-sex marriage ban. In an emergency petition asking the Supreme Court to stay the district court’s decision invalidating Utah’s same-sex marriage ban, for example, Utah argued that “society has long recognized that diversity in education brings a host of benefits to students,” and “[i]f that is true in education, why not in parenting?” As Utah puts it: “the combination of male and female parents is likely to draw from the strengths of both genders in a way that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children” (emphasis theirs). Continue reading

This Is a Clear Indictment of Slut-Shaming Research

Yet another slut-shaming study reaches exactly the wrong conclusion:

“Girls and young women who post sexy or revealing photos on social media sites such as Facebook are viewed by their female peers as less physically and socially attractive and less competent to perform tasks, a new study from Oregon State University indicates. ‘This is a clear indictment of sexy social media photos,’ said researcher Elizabeth Daniels.”

But why are these results an indictment of the photos? Why are the results not an indictment of a common social attitude that posits an inherent incompatibility between “sexy” (which, incidentally, means dramatically different things to different people) versus intelligent and/or competent? Can someone explain to me why the fact that a young woman posts one photograph of herself wearing a “low-cut red dress with a slit up one leg to mid-thigh and a visible garter belt” relates in any way to her mental capabilities? (I say “one photograph” because the study only used a single picture.) Continue reading

My Denver Post Op-Ed Opposing Stays in Same-Sex Marriage Litigation

I’ve written before about the harm of stays in same-sex marriage litigation and argued that courts shouldn’t stay decisions to invalidate same-sex marriage bans. Today I have an op-ed in the Denver Post, again arguing that such decisions shouldn’t be stayed, particularly in the context of the recent Adams County and Boulder County decisions in Colorado.

A “Legal Patchwork Quilt”?

Yesterday a judge in Boulder County held that County Clerk Hillary Hall could continue issuing marriage licenses. Attorney General John Suthers quickly issued a statement expressing concern that the ruling could lead to different situations in different counties:

“It is the view of the Attorney General’s Office that the uncertainty that has been created by these recent Colorado court rulings as to the propriety of county clerks issuing same-sex marriage licenses prior to final resolution of the issue, cries out for resolution by the state’s highest court. It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized. Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming.”

Despite Suthers’ comments, Denver County and Pueblo County quickly followed suit and began issuing licenses. I talked with Kent Erdahl of Fox News Denver about what the ruling means and what might happen next. The short version: I’m not convinced that a “legal patchwork quilt” is such a bad thing, particularly if it’s for (what I suspect will be) a relatively short time until the Supreme Court hears the case.

Are Judges Human?

Or perhaps the better question is whether judges are allowed to be human — that is, to speak (or write) their minds in frank language, perhaps even with occasional lapses in judgment, and still be judges. The story that has prompted these reflections is, of course, that of Judge Kopf and his suggestion on his blog that the Supreme Court “STFU,” with a link to the Urban Dictionary definition of that acronym.

I personally don’t always agree with Judge Kopf, and sometimes he has written things that offended many people. Having said that, I think it would be a mistake to limit the ranks of those who blog and judge to people who are unwaveringly restrained in words and demeanor, or risk averse about the things that they write and the words that they use. Having people with a wide range of life experiences and personalities on the federal bench is a good thing: it better reflects the diversity of the United States as a whole and ensures that courts’ output is not skewed toward any particular way of thinking about the world. And the same is true of the blogosphere.

I’m not enamored of this particular comment and think it would have been better phrased differently. But I don’t think that occasional questionable comments and posts that offend people require the conclusion that Judge Kopf should either stop blogging or step down from the bench.

Perhaps Judge Kopf will decide to adjust his approach in the future. One commenter on a previous post suggested that he have a colleague read over future posts that might be controversial. I think that approach would allow for prior practical consideration of appearances and consequences. It’s something that I do myself, both on this blog and my writing in other forums. But in any event I hope that Judge Kopf will continue to blog. The goal of transparency in the judiciary is a worthy one, and his efforts don’t have to be perfect in order to advance that goal.