In light of Justice Scalia’s recent passing, check out my University of Denver colleague Justin Pidot‘s brand new paper on SSRN, “Tie Votes in the Supreme Court.” Justin gives us some empirical data on 4-4 splits in the Supreme Court and argues that the court should dismiss cases as improvidently granted if the result would be a tie.
I have a belated post about Elonis v. United States on Hamilton & Griffin on Rights. I’ve seldom felt so little enthusiasm for writing about a Supreme Court decision. The Court refused to decide any of the hard questions and left open the question of whether a recklessness standard will suffice — a question sure to create chaos in the lower courts, not to mention in the lives of those charged with crimes and those targeted by threatening speech.
This is one of the least helpful Supreme Court decisions I’ve seen in a long time. Why didn’t the Court just say whether either the statute or the First Amendment allows a showing of recklessness for conviction? Or not? Both positions are reasonable, and I think almost everyone would be fine with either outcome. (I would.)
I talked to Denver Post reporters Kirk Mitchell and Jordan Steffen for this story on the Supreme Court’s grant in the Sixth Circuit marriage equality case. The story has a Colorado angle and also predicts what’s next for LBGT rights.
One comment about this otherwise very good story. I definitely didn’t use the phrase “gay marriage.” I would have said “same-sex marriage” or “marriage equality.” And I never talk about “gay rights” (depending on context, I probably would have said LGBT rights) or “gays” (I might have said “gay and lesbian people,” or “LGBT people,” or people who are LGBT”). As others have explained, it sounds a little archaic to talk about “gay marriage” and “gay rights.”
The following post originally appeared on the blog “Hamilton and Griffin on Rights.” The owners of the blog have kindly allowed me to cross-post it here.
The year 2014 has raised many issues relating to offensive, harassing, and threatening Internet speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech. The debate over Internet speech has extended to other areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.
It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat. Continue reading
My new Huffington Post column on the Supreme Court’s decision not to hear five same-sex marriage cases is up. I explain why Justice Ginsburg is wrong, and there is a “need to rush” to reach full marriage equality in all fifty states.
From my piece:
When the Supreme Court stayed the decision striking down the ban on same-sex marriage in Utah, over 1300 same-sex couples had already married in Utah. These already-married couples litigated to have their rights recognized, and Judge Dale Kimball held that those rights should receive recognition. “Legal uncertainties and lost rights cause harm each day,” he wrote.
It’s also worth thinking about what might happen if a Republican presidential candidate wins in 2016. I am not sure that those who think there is “no rush” now will still agree if that comes to pass.
I’ve coauthored a short essay with my University of Denver Sturm College of Law colleague Ian Farrell — “Gender Discrimination and Same-Sex Marriage” — and am now pleased to share that the piece will be forthcoming in the Columbia Law Review Sidebar. (For non-legal/non-academic folks, the Sidebar is the online companion to the traditional print format of the Columbia Law Review.) I’ll have more details about the timing of publication soon.
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.
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.
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.
Yesterday the Tenth Circuit released its opinion in Kitchen v. Herbert, which considered the constitutionality of Utah’s same-sex marriage ban. In an opinion by Judge Carlos Lucero, the court invalidated the ban, holding that marriage is a fundamental right and cannot be withheld on the basis of sex. In doing so, the Tenth Circuit became the first federal appellate court to invalidate a state same-sex marriage ban.
Consistent with my prediction after the argument, Judge Jerome Holmes (a George W. Bush appointee) joined Lucero’s opinion. Judge Paul Kelly dissented. As I noted both after the argument and more recently, I thought it was possible but far from certain that Judge Kelly might join the majority opinion, despite his apparent skepticism during oral argument, in part because some of his past decisions have revealed an openness to civil rights claims relating to discrimination on the basis of other characteristics, such as gender and disability. But in the end the court was divided. I previously wrote in more detail about the three judges on the panel here.
The 65-page majority opinion and 21-page dissent each offer fertile ground for analysis. Ilya Somin and Ruthann Robson, among others, have useful provided commentary on the substantive aspects of the decision. But the question that many people are asking is simply: what’s next? Here, I answer some common questions and consider a few of the many ways the litigation could progress. Continue reading