Monthly Archives: July 2014

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: 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.

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.

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.

Recent Developments for Marriage Equality in Colorado

So many exciting developments on the same-sex marriage front here in Colorado! Yesterday a state district court judge in Adams County held that the state’s ban on same-sex marriage was unconstitutional, and today a state district court judge in Boulder County held that County Clerk Hillary Hall can continue issuing marriage licenses. I talked to the Associated Press about the latter decision. And two more counties have joined in. Denver County has already issued several licenses, and Pueblo County has announced that it will begin tomorrow.

On a personal note, as someone who grew up here, I could never have dreamed that we would see marriage equality in Colorado barely fifteen years after I graduated from high school. Indeed, I couldn’t have imagined it three years ago. It’s amazing how much can change in such a short time.

To get some of the background on the most recent developments for marriage equality in Colorado, check out my long-form discussion on Fox News’ “Colorado Politics from the Source” with host Eli Stokols and Colorado State Senator Jessie Ulibarri (who recently married his partner). Below are a few photos from the taping.

The Source 4

The Source 2

The Source 3

The Source 1

Schwartz: “Police Indemnification”

The final version of “Police Indemnification,” by Joanna Schwartz (UCLA), is now available on the NYU Law Review‘s website. The article presents stark empirical evidence from forty-four large and thirty-seven small and midsize police departments. Across all departments, police are virtually never financially responsible (>1% of the time) for settlements and judgments resulting from their conduct.

This information should affect our assessment of several civil rights doctrines that are currently taken for granted. For example, qualified immunity doctrine is premised on the notion that if police officers are concerned about the possibility of being forced to satisfy a large monetary judgment against themselves, they will hesitate to act in situations where they should. Schwartz’s work suggests that such a possibility is remote — so remote that we should think seriously about whether the rationale for qualified immunity justifies the high hurdle for plaintiffs that the doctrine currently poses.

Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. – See more at:

I reviewed a draft of the article in JOTWELL several months ago. My review, called “Police Don’t Pay,” is available here. (Some of the data have evolved slightly since then as Schwartz examined a few additional jurisdictions, but the empirical results are so stark that there was no significant change in the overall conclusions.

Yung: “How to Lie with Rape Statistics”

Corey Rayburn Yung (Kansas) has an important new article in the Iowa Law Review: “How to Lie with Rape Statistics: America’s Hidden Rape Crisis.” As a starting point, his research uses media investigations in several cities revealing that police systematically eliminated rape complaints from their official reported statistics. Police officers and departments in those cities used “three difficult-to-detect methods” to avoid counting and reporting rapes: “designating a complaint as ‘unfounded’ with little or no investigation; classifying an incident as a lesser offense; and failing to create a written report that a victim made a rape complaint.”

The study presented in the article identifies undercounting jurisdictions by determining whether their pattern of reporting crime is highly unusual. Specifically, the study uses the rate of murders as a baseline. This is a sound choice because murder is not susceptible to undercounting: it’s difficult to undercount a crime that results in a body. And, nationwide, the rate of murder and the rate of rape is highly correlated. Continue reading