Justice Scalia’s Petard and Same-Sex Marriage
Justice Antonin Scalia is well known not only for his conservative views, but also his literary language. So perhaps he might appreciate how the Shakespearean phrase, “hoist with his own petard,” could describe how his dissents are being used to support the very outcome he derided: the constitutional recognition of same-sex marriage.
In United States v. Windsor decided in June 2013, the Court, by a bare majority, declared unconstitutional section 3 of the Defense of Marriage Act (DOMA) which prohibited federal recognition of same-sex marriages even if the marriages were recognized by state law. As in two other important cases involving lesbian and gay rights, Romer v. Evans (1996) and Lawrence v. Texas (2003), Justice Kennedy wrote an opinion for the majority longer on rhetoric than on analysis and Justice Scalia wrote a dissent guaranteed to be called “scathing.” In these dissents, Justice Scalia not only criticized the majority opinion’s lack of rigor and exercise of judicial supremacy, but he warned of the consequences of the Court’s decision.
In Romer, Justice Scalia’s alarm was loud, if imprecise. He famously accused the Court, like other legal elites—including law schools—of taking sides in the “culture wars” by prohibiting discrimination on the basis of sexual orientation.
At that time, Congress had just passed the Solomon Amendment, denying federal funding to law schools that enforced their non-discrimination policy against military recruiters because of the military’s exclusion of homosexuals. A decade later, the Court unanimously upheld the constitutionality of the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006). But Justice Scalia’s dissent in Romer might also be read as signaling the end of Bowers v. Hardwick (1986), in which the Court upheld the constitutionality of criminalizing homosexual sodomy; Scalia’s dissent in Romer chastises the majority for not even mentioning this holding.
Lawrence v. Texas achieved Scalia’s implicit prediction regarding the demise of Bowers v. Hardwick. In his dissent in Lawrence, he repeats (and at times quotes) his earlier accusations regarding lack of rigor and assertion of judicial supremacy. He adds a further criticism regarding the Court’s failure to honor stare decisis.
Special thanks to our new staff members for contributing to a solid start this semester:
John Paul Guyette
SPACE LAW AND THE FUTURE OF PUBLIC INTEREST
On April 10, 2013, the Obama Administration released its proposed budget for 2014 with initial reviews showing that there would be a $200 million cut for NASA’s planetary exploration program. Critics against the cut, such as Planetary Society CEO Bill Nye, have spoken out about the crippling effect the cuts will have on future missions and the cuts potential to reverse a decade’s worth of investment building the world’s premier exploration program. On the other hand, proponents of the budget have praised it for its approval of $105 million for a mission to capture an asteroid so that it can be explored by 2015, as well as its funding for ongoing human spaceflight and support for private space taxis that could launch astronauts to and from the International Space Station. Irrespective of the divisions the budget proposal has caused among those in the space industry, one thing is for certain: the space industry is going through a resurgence. Not since the Space Race has there been more of a reason for people to be excited about what lies ahead. Rightfully so, considering that despite budget cuts and perceived setbacks from the public (such as the retirement of NASA’s space shuttle program in 2011) the space industry is now a $250 billion per year global market.
Now with what Jeffrey Kluger, a senior Time magazine writer, calls a “handful of the world’s most daring entrepreneurs” picking up where the space shuttle program left off and transporting cargo and astronauts into space, the space industry is looking to grow rapidly in what is poised to become the Second Space Race. However, unlike the Space Race of the 60s & 70s, the Second Space Race will be less about government space programs and more about the private space industry actors. With more private actors entering the space industry, more opportunities are becoming available for lawyers specializing in space exploration. While space law as a field of law is still in its infancy, the concept of a space lawyer isn’t new. Space lawyers, and space law for that matter, have been at the center of satellite issues for some time. Because satellites handle television transmissions, GPS signals, and other projects for commercial, military, and government clients, several binding international treaties such as the 1972 Convention on International Liability for Damage Caused By Space Objects and the 1967 Outer Space Treaty have been used to “address liability and risk concerns over satellites…regarding fault for either non-functioning satellites or people or property on the ground” injured or damaged by falling satellites. Current issues that will need to be faced by the space law community include commercial human spaceflight, space debris, export control reform, and flags of convenience. Other issues such as property rights to outer space resources will grow in importance as the commercial spaceflight industry matures.
CUNY Law Review is proud to introduce our latest installation in our ongoing series of web-exclusive pieces for Footnote Forum by our own Prof. Borgmann. For a primer on the procedural history of the Proposition 8 saga that led to Hollingsworth v. Perry, see our interactive graphic walk-through.
HOLLINGSWORTH v. PERRY
STANDING OVER CONSTITUTIONAL RIGHTS
Caitlin E. Borgmann
One might expect that a Supreme Court decision addressing the constitutionality of a citizen initiative that bars marriage between same-sex couples would yield a predictable political division among both the Justices and Court commentators. Liberal Justices and commentators, one might conjecture, would want the Court to recognize a fundamental constitutional right to marriage equality, while conservative Justices and commentators would prefer the issue be left to the political process. The Supreme Court’s recent decision in Hollingsworth v. Perry reflected no such tidy outcome, however. The majority opinion addressing California’s Proposition 8 (“Prop 8”), which amended the state’s constitution to exclude same-sex couples from legally recognized marriage, sidestepped the substantive issue through a procedural maneuver. Rather than reach the merits, the Court held that the official proponents of Prop 8, who had defended its constitutionality both in the district court and on appeal, lacked standing to appeal the district court’s opinion invalidating the initiative. The Court’s decision left marriage equality as the rule in California (although not elsewhere). Liberal Justices Breyer, Ginsburg, and Kagan joined Chief Justice Roberts’s majority opinion, as did Justice Scalia, while conservative Justices Thomas and Alito, and liberal Justice Sotomayor, joined Justice Kennedy’s vigorous dissent. Some liberal commentators who favor marriage equality applauded the Court’s decision.
It is of course not possible to know exactly what motivated each of the Justices in Hollingsworth. But standing is a doctrine that the Court has notoriously manipulated to reach desired results on the merits. Commentators have widely speculated that the liberal Justices who sided with the majority preferred not to reach the merits either because they believed there were insufficient votes to find Prop 8 unconstitutional, or because they believed such a decision might be politically premature and therefore counterproductive, as it might prompt a backlash. Some proponents of marriage equality were quietly relieved by the Court’s refusal to address the merits, since it allowed the district court’s invalidation of Prop 8 to stand without risking an adverse Supreme Court decision that would be binding on all states.
Panel will feature the following guests, who bring experience in diverse areas of the law such as tenants’ rights, labor and employment, First Amendment, prisoners’ rights, civil rights, police brutality, and government misconduct:
- Daniel Alterman (Alterman & Boop LLP)
- Eric Hecker (Cuti Hecker Wang LLP)
- Margaret Sandercock (Goodfarb & Sandercock LLP)
- Naomi Sunshine (Outten Golden)
- Roger Wareham (human rights attorney)
Join us in the 3rd floor Faculty Lounge at 6 p.m. for a food and wine reception. Panel will begin at 6:30 p.m.
*please note the name change
The City University of New York Law Review is seeking submissions for its Summer 2014 issue, which will continue the journal’s tradition of advancing legal scholarship highlighting the touchstones of our publication’s work—including civil rights, progressive legal reform, the impact of the law on minorities and marginalized communities, international human rights, and attorneys’ insights on how recent developments in the law have affected their public-interest practices in New York and beyond.
We are interested in one-page abstracts or finished manuscripts you may have for consideration by our editorial board. Submissions should be remitted to firstname.lastname@example.org. Abstracts will be considered through December. Finished manuscripts for approved abstracts have a deadline of December 31, 2013. Offers to publish and final decisions on all submissions will be made on a rolling basis and will be finalized by mid-January 2014.
In addition, the journal is seeking shorter, more time-sensitive contributions—such as comments on recent federal or state case law, critiques of legislative proposals, and legally relevant analyses of current events—for inclusion in our evolving digital platform at the City University of New York Law Review website at www.cunylawreview.org. Submissions for digital consideration should be sent directly to our Digital Articles Editor at email@example.com.
Our upcoming Winter 2014 issue includes scholarly works on a range of public interest legal issues, with an emphasis on practical application. Some examples include articles about the hurdles of providing on-the-ground legal assistance after natural disasters such as Hurricane Sandy; the impact of family instability on access to education for children with disabilities; gender inequality in granting asylum requests; how language impairments impact attorney-client relationships; applying a human rights framework in determining services for youth aging out of foster care; policy arguments in favor of stronger single-room occupancy regulations aimed at solving the housing crisis in New York City; and applying contract law to strengthen Individual Education Plans.
We look forward to reading and discussing your manuscript for possible publication, and kindly invite you to forward this letter to other social-justice scholars and practitioners who may be interested in publishing with us.
With our warm regards,
Tatenda, Caitlin, Kate & Cristian
On behalf of the City University of New York Law Review Editorial Board
CUNY Law Review will be hosting a panel with the theme “How to Keep Your Soul in the For-Profit World” on November 7th in the Faculty Lounge. Reception at 6 pm, Panel at 6:30 pm.
Details to follow.