FGM and the Commerce Clause

In the United States, the federal code prohibits “female genital mutilation” procedures on minors. A Michigan doctor and several parents were charged with violating this law in US v. Nagarwala. Recently, a district court judge struck down this law. This article from the Detroit Free Press provides additional details. In short, the judge found that Congress did not have the power to ban these procedures. 

Image from cnn.com.

Although women’s rights activists were stunned by the ruling,  this article from Reason.com (a libertarian publication) argues that the decision is correct, given the Supreme Court’s existing jurisprudence about the breadth of the Commerce Clause. What do you make of this case? How might the Supreme Court rule in this instance? Is there a way that Congress could institute such a ban using some other provision in the Constitution? Or is this something that must be left to the states to incorporate into their own criminal codes?

#14: Federalism and Same-Sex Marriage

Equality Bacon

Read for 10/21/2015

You might remember a while back when many of your facebook friends changed their profile pictures to red equals signs. This was the round before everyone rainbowized their profile pics. This was about the time that the Court was preparing to hand down its decision in U.S. v. Windsor (2013). Read the excerpt I’ve posted in the content section on WebCampus. How is it that what seems like a 14th Amendment equality issue could morph into a federalism question? Read this insightful SCOTUSblog post that helps to show how the question came to be framed in these terms.

Of course, it has also become very trendy for conservative politicians to abandon the position that “marriage should legally be between one man and one woman” and move to a position that calls for each state to make that determination for itself. One recent example of this is Rep. Joe Heck, who recently made an interesting argument on KNPR’s “State of Nevada.” First, he averred that he still believes (“personally”) that marriage is between a man and a woman. He went on to say that there should be no federal role in defining marriage as anything other than that, although he thought the states should be able to decide for themselves. Interestingly, he also thought that the process currently taking place in the federal courts, whereby these institutions are now regularly striking down state-level bans on same sex marriage, were an appropriate part of the process of determining the legality of same sex marriage. As we all know, of course, the federal courts are part of the federal government. Heck did not elaborate on what he thought of the role of the federal courts in using the federal constitution to invalidate state same sex marriage bans.

For the Alabama Supreme Court, however, this debate is far from over. A federal judge overturned Alabama‘s 2006 ban on same sex marriage. Even though the US Supreme Court refused to issue a stay of the same sex marriages in anticipation of the Supreme Court ruling on the case, the Alabama Supreme Court has taken the matter into its own hands. This Washington Post article gives some of the early details. The Alabama Supreme Court issued a bewildering per curiam opinion, which can be found here. In it, they seem to suggest a number of contradictory reasons for refusing to abide by the federal court’s order. Among these reasons is simply that the Supreme Court’s decision in Windsor was wrong, so the Alabama Supreme Court is not bound by it.

In the wake of Obergefell v. Hodges (2015), you’d think that Alabama would have fallen in line. But you’d be wrong. Indeed, a request to disregard Obergefell is currently pending in front of the Alabama Supreme Court. Read this for an update. In any event, the Obergefell decision has essentially settled the primary question of marriage equality (setting aside the major issue of First Amendment rights). However, the implications of Windsor’s lesser-known companion case Hollingsworth v. Perry (2013) might be construed as having more important implications for federalism than Obergefell did.

Paper Topic #14: Outside of the same sex marriage context, what impact does Hollingsworth v. Perry (2013) have on state sovereignty  and federalism aside from those related to marriage equality?

Suggested Reading: Young, E.A. and Blondel, E.C. 2012. “Federalism, Liberty, and Equality in United States v. Windsor.” Cato Supreme Court Review 2012-2013:117-147.

Palmer, S. 2015. No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives. UCLA L. Rev.62, 1055.

The Women of Harvard Law Review

This article from the Chronicle of Higher Education talks about the striking gender imbalance on this year’s Harvard Law Review editorial board. The author, Carl Straumsheim, puts it like this:

The number of women editors this year fell to its lowest point in about two decades — even as the Harvard Law School itself nears gender parity. Of the law review’s 44 editors, only 9 are women. Women make up 48 percent of the class of 2015.

Apparently, the school is planning to address this by allowing for the consideration of gender in the selection of the 12 members chosen by a discretionary committee. But what is interesting to me (and unexplored in the article) is how the remaining editors are chosen:

Of the remaining 34 positions on the board, 20 are filled based on the results from the law school’s first-year writing test, and 14 on a combination of their grades and writing test results.

It is interesting to me how the women seem to be systematically unable to match the performance of their male counterparts on these measures. It must be at least partly the case that women are not achieving the top scores on the legal writing test–but why?