Balkinization

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Balkinization
an unanticipated consequence of
Jack M. Balkin

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Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Bernard Harcourt
harcourt at uchicago.edu
Scott Horton
shorto at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
marty.lederman at comcast.net
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at princeton.edu
Rick Pildes
rick.pildes at nyu.edu
Alice Ristroph
alice.ristroph at shu.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

The Senate Filibuster Deal

Our Exceptional Debt Ceiling, the Lessons of Comparative Constitutionalism, and Separation of Powers

How many Presidents have taken the oath of office...

American Founding Son

The Side Effects of Abortion Restrictions

“Constitutional Frameworks” at Roe’s 40th Anniversary

The First Amendment and the Regulation of Medical Professionals

Gay-affirmative school-based interventions: Public health benefits and First Amendment concerns

Doing human rights without a belief in progress

Same-sex couples: a tale of two paths to parenting

Freedom to worship, not freedom to shun: accommodating pluralism in American public life

The Child-Protective Argument in Same-Sex Marriage Litigation

Progress and LGBT Parents

After Lawrence

Liberty, Equality, and the Rights to Have Families

Will We Sanction Discrimination?

To Live Not by Lies

Making the “Lonely Homosexual”

Sexual Freedom and the Constitutional Text

The 10th Anniversary of Balkinization

Liberty, Equality and Marriage

Roe and the “Reproductive Profiling” of Women of Color

Backlash to the Future?

Shaping Marriage through Non-Marriage

Sex, Stereotyping, and Same-Sex Marriage

Due Process and the Fundamental Right to Marry

Abortion Rights and Constitutional Equality

Sanford Levinson and Constitutional Faith

Sex Panics/Sexual Justice

1973

Military Commissions at a Crossroads

Final schedule: Is America Governable

Sexual freedom, legal equality and settler colonialism

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Thursday, January 24, 2013

The Senate Filibuster Deal

Gerard N. Magliocca

Rarely has so much been given away by so few for so little. We can always hope that the Senate will exercise more restraint with respect to the filibuster, but don't count on that. The only people who will benefit from this are professors who write about Congress.

Posted 9:29 PM by Gerard N. Magliocca [link] (13) comments

Monday, January 21, 2013

Our Exceptional Debt Ceiling, the Lessons of Comparative Constitutionalism, and Separation of Powers

Guest Blogger

Miguel Schor

According to the Wikipedia entry on the debt ceiling crisis, the United States and Denmark are the only nations in the world that have a debt ceiling (and Denmark apparently sets its ceiling so high that it is a non-issue). The United States government first decides on a budget and then authorizes the Treasury to borrow the money needed to finance the budget. The rest of the world apparently has come to the conclusion that if a nation enacts spending programs, it also agrees to borrow the money to pay for it. This one step process was actually the rule in the United States in the 1980s and early 1990s and was known as the Gephardt rule (named after former Congressman Dick Gephardt who implemented the rule). The rule reverted back to the 2-step process when Newt Gingrich became Speaker of the House in 1995. This 2-step process has become a source of serious friction in recent years. In 2011, Standard & Poor’s downgraded the creditworthiness of U.S. bonds after concluding that “political brinkmanship” and partisan infighting made it somewhat more likely that the United States would be unable to reach an agreement on fiscal policy. In recent months, House Republicans threatened to not raise the debt ceiling unless spending cuts were enacted. They have now backed away from that threat after sensibly concluding that a default would be bad for the Nation and for the Republican Party. The debt ceiling, however, remains a real problem. The comparative evidence and our own historical experience suggest that the debt ceiling is unnecessary and exacerbates political conflict.

I think there is another reason why the debt ceiling is a bad law. There is a rich literature criticizing separation of powers because it facilitates existential struggles between legislatures and presidents. The seminal article is Juan Linz's “The Perils of Presidentialism.” The argument is that fixed terms for each branch facilitate democratic breakdown since these terms do not correspond to the exigencies of political events and each branch can claim that it has an electoral mandate to fix the nation's problems. In a presidential system, snap elections cannot be used to have the electorate resolve a crisis and politicians, protected from the voters by a fixed term, may prefer conflict over co-operation. The conflict that presidentialism institutionalizes has been less of a problem in the United States than in Latin America (where presidentialism has a poor track record in sustaining democracy) because the political culture in the United States was, at least for much of the 20th century, less conflictual than had historically been the norm in Latin America.

All systems of governance, of course, suffer from pathologies and the potential of democratic breakdown. But Linz's observations on how presidentialism can break down illustrate how poorly the debt ceiling interfaces with our constitutional system. At time T-1, a legislative majority decides to spend x dollars. At a different (and later) time (T-2), a legislative minority that controls one House decides to use the debt ceiling as a means to undo the spending enacted by earlier majorities. The legislative minority lacks the votes to enact its favored spending bill but can use the threat of destroying the Nation’s creditworthiness to extract concessions from the majority party. The point is that the "pathology" of presidential systems—which is that they are susceptible to inter-branch, partisan conflict—is exacerbated by statutes such as the debt ceiling that afford a political minority that controls one branch of government the power to completely disrupt the operation of government.

Miguel Schor is Professor of Law at Drake University School of Law. You can reach him by e-mail at miguel.schor at drake.edu

Posted 10:50 PM by Guest Blogger [link]

Sunday, January 20, 2013

How many Presidents have taken the oath of office...

Mark Tushnet

At least three times? Exactly three times? (As of the moment of this post, the second question is something of a trick question.)

Posted 3:04 PM by Mark Tushnet [link] (3) comments

Saturday, January 19, 2013

American Founding Son

Gerard N. Magliocca

I'm excited to share the cover image for my biography of John Bingham, which will be out in August. My apologies for breaking into this terrific online symposium.

Posted 11:23 AM by Gerard N. Magliocca [link] (2) comments

Friday, January 18, 2013

The Side Effects of Abortion Restrictions

Guest Blogger

Maya Manian

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

State personhood laws pose a puzzle. These laws would establish fertilized eggs as persons and, by doing so, would ban all abortions. Many states have consistently supported laws restricting abortion care. Yet, thus far, no personhood laws have passed. Why? I am currently writing an article that offers a possible explanation. I suggest that voters’ recognition of the implications of personhood legislation for health issues other than abortion has led to personhood’s defeat. In other words, opponents of personhood proposals appear to have successfully reconnected abortion to pregnancy care, contraception, fertility, and women’s health in general. Public concern over the “side effects” of personhood laws seems to have persuaded even those opposed to abortion to reject personhood legislation. If this is so, personhood opponents may have struck on a strategy that could apply more broadly. Various anti-abortion regulations—not just personhood laws—have deleterious “side effects” on women’s health. Focusing the public’s attention on these side effects could not only create stronger support for access to abortion care but could also better promote the full spectrum of women’s healthcare needs.
Read more »

Posted 5:30 PM by Guest Blogger [link]

Thursday, January 17, 2013

“Constitutional Frameworks” at Roe’s 40th Anniversary

Guest Blogger

Dawn Johnsen

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Forty years ago the seven-Justice majority in Roe v. Wade held that “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” protected the fundamental right of a woman to decide “whether or not to terminate a pregnancy.” Ever since, constitutional scholars and commentators of all stripes have critiqued and criticized the Court’s reasoning, in particular its substantive due process approach to reproductive liberty. Some among Roe’s critics strongly support the essential right the Court protected but find the constitutional protection more appropriately rooted elsewhere in the Constitution – for example, in the Fourteenth Amendment’s guarantees of equal protection or privileges or immunities.

Such alternative (or supplemental) theorizing at its best – as in recent works by Reva Siegel and Jack Balkin – enriches understanding of the constitutionality of governmental restrictions on women’s decisions about and access to abortion. In fact, I sought to do the same in coauthoring an amicus brief in the Court’s 1989 Webster case on behalf of “Seventy-seven Organizations Committed to Women’s Equality.” Some progressive criticism of Roe, however, risks unintentionally undermining judicial protection of women’s reproductive liberty. I offer here three suggestions for reviewing Roe on its fortieth anniversary.

Posted 10:30 PM by Guest Blogger [link]

The First Amendment and the Regulation of Medical Professionals

Guest Blogger

Robert C. Post

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

The First Amendment has become the joker of constitutional litigation. It is now being applied with lethal results in all kinds of unpredictable circumstances. The consequences for the regulation of medicine, particularly in the area of reproductive and sexual rights, are enormous.

Posted 7:30 AM by Guest Blogger [link]

Gay-affirmative school-based interventions: Public health benefits and First Amendment concerns

Guest Blogger

Ilan H. Meyer

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

My research concerns public health issues related to minority health, in particular, the relationship of stigma, prejudice, and discrimination on the health of sexual minorities. In 2011 I was called to testify at a hearing of the U.S. Commission on Civil Rights (USCCR) on peer-to-peer violence and bullying in schools. Research in this area has been quite solid and shown consistent and robust findings: lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth fare worse than heterosexual youth. Compared with their heterosexual peers, LGBTQ youth experience more stress, including violence bullying and, related to this, worse health outcomes and academic performance. Most public health professionals agree that LGBTQ youth can be helped if schools stem violence and bullying and, generally, improve the school environment—making it more friendly and accommodating for LGBTQ youth.

At the USCCR hearing I was taken by surprise when invitees of the Republican members of the Commission opposed such recommended interventions on behalf of LGBTQ youth. In particular, I was intrigued by concerns that efforts to improve the school environment for LGBTQ students, aimed at reducing stigma and prejudice, raised First Amendment concerns. I was particularly struck by Professor Eugene Volokh’s testimony, which singled out one of my statement to the committee, saying “[O]ne of the things that [Meyer noted] is that one of the dangers to the mental health of gay students is anti-gay stigma and prejudice. I think that's probably right, but the consequence of that is that if you take that logic seriously, then again speech, whether on campus or off campus, that expresses and contributes to the stigma of prejudice would be punishable.”

Posted 7:00 AM by Guest Blogger [link]

Wednesday, January 16, 2013

Doing human rights without a belief in progress

Guest Blogger

Alice M. Miller

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

For those of us who use the language and tools of human rights in social justice advocacy, progress is a kind of leitmotif of our work: aren’t we aiming for better places, better things? In the last decade, sexual rights has begun to function globally as one of the new markers of ‘progress’ in contemporary human rights work. From being a set of rights which were interpreted into more accepted rights (health rights, reproductive health, rights of bodily integrity, rights of association and expression) sexual rights, mostly in the guise either of women’s sexual and reproductive rights or ‘gay rights’ are emerging as clear independent standards.

This emergence is hard fought and deeply prized, and yet I am reluctant to use the word “progress” in this work. After twenty-five years of this work, I think rights work can be happiness-making without the certainty that it sticks as ‘progress’. Some of my reluctance to trumpet sexual rights as progress lies in my ambivalent relationship to the construct of progress generally, and some lies in the particular role sexual rights are playing in global politics.

Posted 11:00 AM by Guest Blogger [link]

Same-sex couples: a tale of two paths to parenting

Guest Blogger

Gary Gates

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

While adoption and the use of reproductive technologies grows as a path to parenting for LGBT people and same-sex couples, U.S. Census Bureau data show substantial differences between same-sex couples who adopt and other same-sex couples. While more than 15,000 same-sex couples are currently raising an adopted child under age 18 (according to my analyses of data from the 2010 American Community Survey), nearly 74,000 same-sex couples are raising a biological or stepchild. Same-sex couples with biological or step children show evidence of substantial economic disadvantage while those with adoptive same-sex parents are economically advantaged.

Posted 9:30 AM by Guest Blogger [link]

Freedom to worship, not freedom to shun: accommodating pluralism in American public life

Guest Blogger

Jennifer C. Pizer

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

It was disappointing, if not truly surprising, that the World Day of Peace message with which Pope Benedict XVI welcomed this new year warns, among other things, that those who would treat loving same-sex couples and their families equally under civil law are “harm[ing] and help[ing] to destabilize marriage.” That isn’t a new claim. It still echoes in nearly every marriage equality case, even as the social, scientific, and legal records ever-more-thoroughly show it is baseless. Then the Day of Peace message adds a more sharply cutting charge—that civil marriage equality “constitutes an offence against the truth of the human person, with serious harm to justice and peace.” I scan the international headlines. There are wars raging and constant, and horrifying assaults on justice. But lesbian and gay couples in love and building families are nowhere the cause.

Posted 7:30 AM by Guest Blogger [link]

Tuesday, January 15, 2013

The Child-Protective Argument in Same-Sex Marriage Litigation

Guest Blogger

Kenji Yoshino

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

In my intervention, I plan to unpack the “child-protective” argument relating to same-sex marriage by using the case study of Hollingsworth v. Perry, the federal challenge to California’s Proposition 8. Insistently present throughout the Prop 8 campaign in California was the slogan “Protect Our Children.” Part of the force of this slogan was that, framed at that level of abstraction, it is impossible to contest—who, after all, does not wish to protect children? Yet a broad spectrum of individuals—ranging from the plaintiffs to an expert for the Proponents of Prop 8—have maintained that “protecting our children” can be an argument for, rather than against, same-sex marriage. One useful aspect of the federal trial concerning Prop 8 was that it forced both sides to unpack the question of which children were being protected from what. Several possibilities emerged:

Posted 2:30 PM by Guest Blogger [link]

Progress and LGBT Parents

Guest Blogger

Nancy D. Polikoff

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

A trial court concludes it is in the best interests of four daughters to change custody from their mother to their father because their mother was “going through a transsexual change” from female to male. The mother had changed her name to Mark, and, after the father petitioned for the custody change, Mark married a woman. Reversing, the appeals court quotes the statutory requirement that “the court shall not consider conduct of a proposed custodian that does not affect his relationship with the child," and finds no adverse impact on the mother’s relationship with the children or on their emotional development.

A trial court terminates the parental rights of a father after he undergoes sex reassignment surgery and becomes a woman. Affirming, the state supreme court finds that “Suzanne, in a very real sense, has terminated her own parental rights as a father. It was strictly Tim Daly's choice to discard his fatherhood and assume the role of a female who could never be either mother or sister to his daughter.”

Contrary to the recommendation of the guardian ad litem, and in spite of finding that the father was the more nurturing parent, a trial court awards primary custody of two children to their mother rather than their father, who was transitioning to become a woman. The trial court reasons that "[Robbie] has indicated she will be undergoing sexual reassignment surgery sometime in the very near future. [The] surgery may be everything she has hoped for, or it may be disastrous. No one knows what is ahead, and the impact of gender reassignment surgery on the children is unknown." Affirming, the appeals court finds that the trial court properly “focused on the children's need for ‘environmental and parental stability’."

The above snapshots are from three cases, one decided in 1973, one in 1986, and one in 2007. Which case do you imagine goes with which year? Take a moment and think about that before you keep reading.

Posted 2:00 PM by Guest Blogger [link]

After Lawrence

Guest Blogger

Melissa Murray

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

This year marks the tenth anniversary of Lawrence v. Texas In Lawrence, the U.S. Supreme Court struck down a Texas criminal statute prohibiting same-sex sodomy, concluding that “two adults who, with full and mutual consent from each other, engage in sexual practices common to a homosexual lifestyle…. are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Much has changed since Lawrence. Though Justice Kennedy insisted that the decision did not involve “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” most recognized that the decision laid the foundation for same-sex marriage. Indeed, a few months after Lawrence was announced, the Massachusetts Supreme Judicial Court struck down that state’s law limiting civil marriage to same-sex couples. Citing Lawrence for support, the majority noted that “[w]hether and whom to marry, how to express sexual intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights.” Today, more than ten U.S. jurisdictions recognize same-sex marriages, and the U.S. Supreme Court recently granted certiorari in two cases that seem poised to resolve the question of legal recognition of same-sex marriage for purposes of federal law and the U.S. Constitution.

If legal recognition of same-sex marriage—which once seemed impossible—seems now to be in the offing, in what new, uncharted territory might Lawrence take us in the next ten years?

Posted 10:00 AM by Guest Blogger [link]

Liberty, Equality, and the Rights to Have Families

Guest Blogger

Ariela Dubler

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Writing in 1943, Dr. Charlotte Silverman, a researcher at the U.S. Children’s Bureau, argued that one troubling consequence of the absence of fair maternity leave policies in workplaces was that, faced with the prospect of losing their jobs, more women were choosing to have abortions. Better leave policies, she argued, would mean fewer abortions.

Five years later, in the aftermath of World War II, when a congressional subcomittee held hearings on a bill that would have guaranteed paid maternity leave to female government workers, Genrose Gehri, the director of a home for unmarried mothers, was questioned about whether paid maternity leave would encourage more women to avoid marriage. Gehri dismissed these concerns. “I know that every time such a bill is considered,” she testified, “there is always the fear lest the unmarried be included in these benefits, that illegitimacy will be encouraged. I think there is no need for such a fear as that. The unmarried girl who has a second child in my judgment, is a sick person.”

Posted 9:30 AM by Guest Blogger [link]

Monday, January 14, 2013

Will We Sanction Discrimination?

Guest Blogger

Louise Melling

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

More than forty lawsuits blanket the country with various institutions – ranging from Notre Dame to a chain of arts and crafts stores to archdioceses to a mining company – challenging the requirement that they include prescription birth control among the services covered by the insurance they provide employees. In every case, the plaintiffs claim the contraception requirement violates their religious freedom.

These challenges to the contraception requirement are the most prominent of a rash of cases challenging anti-discrimination rules in the name of religion. We see bakeries and bucolic inns closing their doors to same-sex couples, Christian schools firing employees who are pregnant and unmarried, and nurses protesting even taking the blood pressure of abortion patients. In every case, the refusal to provide services or equal treatment is rooted in religious beliefs.

The cases pose this fundamental question: Does the right to religious freedom include the right to impose your views on others? Does it include the right to impose your views on a diverse workforce? On customers and patients seeking your services you offer the public? Does it include the right to close the door – in your office or your bakery or your emergency room – because you disagree with the person seeking services?

Posted 1:30 PM by Guest Blogger [link]

To Live Not by Lies

Guest Blogger

Eugene Volokh

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

In 1974, Alexander Solzhenitsyn wrote an essay titled, To Live Not by Lies (original here). This was not legal analysis; Solzhenitsyn had bigger tasks at hand. Rather, it was a call to his countrymen to refuse to participate in the spread of what they saw as lies:

Let each of us choose his own path through our timidity: will he remain the conscious servant of the lie (of course, not because of his inclination, but to feed his family, to raise his children in the spirit of the lie!), or has the time arrived for him to shake himself off and become an honest person, deserving of respect of his children and of his contemporaries. And from that day forward ... he will not write, not sign, not print through any means even a single phrase that distorts, in his opinion, the truth ... [or] in painting, sculpture, photography, music, or through technological ... depict, accompany, or retransmit even a single lying thought, not a single distortion of the truth, that he recognizes.

Only a refusal to participate in the spread of lies, Solzhenitsyn argued, could help heal not just a broken social and political system, but the integrity, self-respect, and political efficacy of the people who were broken by it. And such a refusal will also embolden others to overcome their fear, by seeing that they are not alone in their views.

The very same insight, it seems to me, is at the heart of two different rights claims in America today.

Posted 10:35 AM by Guest Blogger [link]

Making the “Lonely Homosexual”

Guest Blogger

David B. Cruz

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

“Love the sinner, hate the sin.” Some on the Christian Right might claim to take that injunction to heart when it comes to us lesbian, gay, bisexual, and transgender (or LGBT) persons. They love us, but they hate what we may do. They say they won’t shun us simply for having what some of them trivializingly dub “same-sex attractions,” or for believing we have a gender identity different from what they take our sex to be. But heaven forbid we should act on any of that, marrying our partners or bringing our bodies or identity documents into better conformity with our identities. We may think they’re thus trying to condemn us to lonely, inauthentic lives. But they’d tell us that we’re mistaken, that true nature and God’s plan for us require us to eschew sexual intimacy or daily living in the forms we find natural, even if some of them may grudgingly concede that we’re oriented toward those forms. “The lonely homosexual” is the image that “reparative therapy” or other efforts to “cure” or condition gay people not to act on our orientations hold out as a deterrent to people embracing a gay identity and entering same-sex relationships. (See, for example, David B. Cruz, Controlling Desires: Sexual Orientation Conversion andthe Limits of Knowledge and Law, 72 So. Cal. L. Rev. 1297, 1366 (1999), ).

Posted 9:30 AM by Guest Blogger [link]

Sexual Freedom and the Constitutional Text

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Beginning with Griswold v. Connecticut, and continuing with Roe v. Wade and Lawrence v. Texas, people have criticized decisions protecting sexual freedom because they have no basis in the text of the Constitution.

In fact all of these decisions are grounded in the text of the Constitution, but unwise Supreme Court decisions have obscured the connections.
Read more »

Posted 8:35 AM by JB [link]

Sunday, January 13, 2013

The 10th Anniversary of Balkinization

Today marks the 10th anniversary of Balkinization.

Although the blog officially started on January 10th, 2003, the first substantive posts, on the thirtieth anniversary of Roe v. Wade, were written on January 13th.

It is therefore fitting that 10 years later, we're hosting a series of essays connected with an conference on sexual liberty and equality commemorating Roe's 40th anniversary and the 10th anniversary of Lawrence v. Texas.

In the fall of 2002, my center, the Yale Information Society Project, had hosted one of the first academic conferences on blogging, Revenge of the Blog, which featured, among others, Glenn Reynolds, Josh Marshall, Jeff Jarvis, and Mickey Kaus.

Balkinization began as a result of that conference, and especially as a result of a conversation a few months later with Glenn Reynolds, who had been blogging for awhile, and Eugene Volokh, who had just started his group blog that summer. The number of legal scholars in blogging was still very small: in addition to Glenn and Eugene, Larry Lessig and Larry Solum had also begun blogging in 2002.

Glenn, Eugene and I were sitting at a bar in the convention hotel where the American Association of Law Schools convention was meeting, talking about how blogs were likely to change the legal and political world. Glenn said "You should do this Jack, you'd be good at it." Since Glenn knows a great deal about blogging, I took his advice. My wife Margret Wolfe suggested the blog's name.

I was the blog's only writer until late June of 2004, and for that reason I signed my posts with my initials JB, a practice which I have continued to this day.

Writing a solo blog is hard work, as anyone who has done it knows, and it soon became clear that the blog would not continue without additional contributors. Cass Sunstein wrote the first guest post. I invited several people to join me in July 2004, and by the end of the summer, Balkinization was established as a group blog.

Since then we've largely stuck to our mission: providing serious commentary on legal and political issues, especially those related to the Constitution.

I'd like to thank all of the contributors over the last ten years who have maintained the blog's high standards and scholarly approach, and all of the millions of readers who have visited us over the years.

Jack Balkin

Posted 11:55 AM by JB [link]

Liberty, Equality and Marriage

Guest Blogger

Jon W. Davidson

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

2013 marks the 40th anniversary of the decision in Roe v. Wade and the 10th of the ruling in Lawrence v. Texas. These shared anniversaries—which arrive just as the Supreme Court considers same-sex couples’ right to marry—provide an opportunity to reflect on the significance of the ways in which legal arguments are framed.

While the decision in Roe v. Wade was grounded in privacy doctrine, plaintiff’s counsel and amici also had raised sex discrimination arguments. Even though the Court chose not to reach these equality claims in Roe, Justice Blackmun subsequently recognized in his separate opinion in Planned Parenthood v. Casey that “restrictions on a woman’s right to terminate her pregnancy also implicate constitutional guarantees of gender equality.” Similarly, in her dissent in Gonzales v. Carhart, Justice Ginsberg wrote that “Legal challenges to undue restrictions on abortion procedures … center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Some have wondered whether Roe might have fared an easier future had the decision been grounded in such equality arguments instead.

Posted 10:45 AM by Guest Blogger [link]

Roe and the “Reproductive Profiling” of Women of Color

Guest Blogger

Priscilla A. Ocen

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

On the 40^th anniversary of Roe v. Wade, I am struck by the narrow vision of reproductive justice that the case has often come to signify. Roe, which ensured access to safe and affordable contraceptive care and abortion services, is a significant milestone in the ongoing struggle for women’s equity and autonomy in the United States. But while the decision itself emphasized the broad liberty, privacy and dignity interests associated with procreation and parenting, many mainstream feminist organizations have focused on the freedom not to bear children (via abortion and contraception). An equally important aspect of reproductive justice involves the right to parent. For women of color, this right continues to be burdened through policies and discourses that deny their reproductive capacity and denigrate their identities as mothers. Indeed, notwithstanding the significance of Roe, women of color continue to struggle to have the full scope of their reproductive autonomy respected by the state, particularly with respect to their choice to have children or become parents, and all too often this struggle has gone unremarked or unnoticed in mainstream feminist organizing. The failure to truly center the concerns of women of color is not insignificant; it not only constrains the reproductive autonomy of the most vulnerable, but constrains a more expansive articulation of reproductive autonomy and justice as well.

Posted 10:43 AM by Guest Blogger [link]

Backlash to the Future?

Guest Blogger

Linda Greenhouse & Reva Siegel

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Can we really avoid conflict by avoiding courts? In June 2010, as the Proposition 8 trial was wrapping up in a San Francisco courtroom, the Federal District Judge, Vaughn Walker, put this question to Ted Olson, who was about to make his closing argument on behalf of the two same-sex couples seeking the right to marry:

“Isn’t the danger . . . to the position that you are taking . . . not that you’re going to lose this case, either here or at the Court of Appeals or at the Supreme Court, but that you might win it? And, as in other areas where the Supreme Court has ultimately constitutionalized something that touches upon highly-sensitive social issues, and taken that issue out of the political realm, that all that has happened is that the forces, the political forces that otherwise have been frustrated, have been generated and built up this pressure, and have, as in a subject matter that I’m sure you’re familiar with, plagued our politics for 30 years – isn’t the same danger here with this issue?”

Ted Olson replied: “I think the case that you’re referring to has to do with abortion.”

“It does, indeed, said the judge.

Running through commentary on the cert grants in Perry and Windsor are continual references to Roe v. Wade. “Watch out! Don’t go there! Look what happened 40 years ago when the Supreme Court granted women the right to abortion.” The Roe-centered backlash narrative, it seems, is the trump card in many discussions of the marriage cases. But what do we mean by “backlash” in the context of a Supreme Court decision? What might an accurate account of what occurred before and after Roe v. Wade actually have to impart? And why should we care, on Roe’s 40^th anniversary, Lawrence’s 10^th, and on the eve of Perry and Windsor, about getting this story right?

Posted 10:40 AM by Guest Blogger [link]

Saturday, January 12, 2013

Shaping Marriage through Non-Marriage

Guest Blogger

Douglas NeJaime

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

The Supreme Court recently announced it will consider two cases involving marriage for same-sex couples. In United States v. Windsor, the plaintiff challenges Section 3 of the federal Defense of Marriage Act, which withholds federal recognition to same-sex couples’ valid, state-law marriages. In Hollingsworth v. Perry, the plaintiffs challenge California’s Proposition 8, which built a prohibition on same-sex marriage into the state constitution.

A core disagreement between same-sex couples seeking marriage recognition and social conservatives defending those couples’ exclusion centers on the meaning of marriage itself. In both cases, the defenders of the marriage prohibitions – the Bipartisan Legal Advisory Group in Windsor and the official proposition proponents in Perry – argue that the discriminatory marriage laws should be upheld because they cement a traditional view of marriage geared toward procreation and dual-gender childrearing. Only different-sex couples, they claim, fulfill these purposes of marriage. Those challenging the laws counter that same-sex couples fit within the contours of marriage, forming loving and committed relationships that are marriage-like in important ways. Accordingly, the issue of whether marriage can and should include same-sex couples involves an inquiry into the content of marriage and the function marriage serves today.

Posted 1:37 PM by Guest Blogger [link]

Sex, Stereotyping, and Same-Sex Marriage

Guest Blogger

Cary Franklin

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Pope Benedict XVI recently issued two important messages, one on the occasion of Christmas and the other in celebration of World Peace Day. Both messages concentrated on the serious threats “to justice and peace” confronting society in the twenty-first century, including, most prominently, the threat of same-sex marriage.

The Pope warned that, although lamentable in and of itself, the spread of same-sex marriage was symptomatic of a deeper “crisis” in the modern world: namely, the dissolution of traditional sex roles and the rise of feminist ideology. Before there was same-sex marriage, the Pope asserted, there was Simone de Beauvoir, who paved the way for same-sex marriage by suggesting that sex roles are a product of culture, rather than nature, and that one’s life path ought not to be determined by his or her biological sex. The Pope called on people of all faiths to resist this feminist “attack” on traditional sex and family roles, and to pursue social policies that reflect and reinforce “gender complementarity,” in marriage and all other walks of life.

The Pope may not have been aware, when he issued these messages, that he was taking sides in longstanding debate among legal scholars and gay rights advocates about whether discrimination against gays and lesbians should be understood as a form of sex discrimination. But he was. Ironically, the Pope’s position in this debate aligns him most closely with feminist scholars, who have argued that much of the disapprobation of homosexuality is a reaction to the way in which it violates gender norms, and that opposition to same-sex marriage is fueled in significant part by a desire to preserve traditional conceptions of men’s and women’s roles.

Posted 10:35 AM by Guest Blogger [link]

Friday, January 11, 2013

Due Process and the Fundamental Right to Marry

Guest Blogger

Matt Coles

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Many of the Supreme Court’s more recent decisions suggest that the Court has adopted Justice Scalia’s ideas about how it should decide if the due process clause gives special protection to an aspect of freedom not explicitly mentioned in the Constitution. That idea is that the Court should: 1) describe the potentially protected liberty in as fact-specifically narrow way as is possible; and 2) then decide if the liberty is one that history shows has been traditionally protected by American society. See Michael H. at 122-124 for a good example of Justice Scalia’s idea. See, Glucksberg and McDonald v The City of Chicago at for examples of plurality opinions invoking it.

It is a bit odd that much of the Court relies for its substantive due process analysis on the ideas of one who thinks the entire enterprise is illegitimate “judicial usurpation.” See Justice Scalia’s dissenting opinion in City of Chicago v. Morales, at 85. Putting that aside, while Justice Scalia’s approach got six votes in Glucksberg¸ Chief Justice Rehnquist’s formulation of it there wasn’t as tightly restricted as Justice Scalia probably would have liked. The Glucksberg majority called for a “careful” description of the claimed right (at 721), not a narrow one (Justice Scalia’s dissent in Morales at 85). And it described history and a careful description as “primary features” of due process analysis. It did not quite say that either was essential although it goes on to rule as if “being deeply rooted” in American “history and tradition” is essential (Glucksberg at 720-721 and 723-25).

However, when push has come to constitutional shove, at least two of the Justices who joined the Glucksberg majority made it clear that they don’t think history is everything, or necessarily essential. Just eleven months after signing on to Glucksberg, Justice Kennedy, joined by Justice O’Connor (who was the sixth vote in Glucksberg) wrote that “…history and tradition are the starting point, but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis at 857-858. Justice Kennedy seemed to take this farther, though in a pretty unclear doctrinal context, in Lawrence at 571-2 (“In all events, we think that our laws and traditions of the past half century are of most relevance here.”).

Posted 1:40 PM by Guest Blogger [link]

Abortion Rights and Constitutional Equality

Guest Blogger

Neil Siegel and Reva Siegel

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Roe v. Wade grounds constitutional protections for women’s decision whether to end a pregnancy in the Due Process Clause. But in the four decades since Roe, the Supreme Court has come to recognize the abortion right as an equality right, as well as a liberty right.

The sex equality argument asks whether abortion restrictions are shaped solely by the state’s interest in protecting potential life, or whether they might also reflect constitutionally suspect judgments about women. (Does the state act consistently to protect potential life in contexts not involving women who resist motherhood? Does it support those who bear and care for future generations? Or might abortion restrictions reflect traditional sex-role stereotypes about sex, caregiving, or decision-making around motherhood?)

The equality argument is also concerned about the gendered impact of abortion restrictions. The equality argument observes that abortion restrictions deprive women of control over the timing of motherhood and so predictably exacerbate the inequalities in educational, economic, and political life engendered by childbearing and childrearing. The sex equality argument asks whether, before depriving women of control over the timing of motherhood, the state has taken steps to ameliorate the impact of compelled motherhood on women.

Given these concerns, restrictions on abortion implicate constitutional values of equality as well as liberty. Equality concerns can be vindicated in the course of protecting liberty, or as an independent ground of constitutional concern.

Supreme Court case law now recognizes equality arguments for the abortion right based on the Due Process Clause. But a growing number of Justices have also asserted equality arguments for the abortion right independently based on the Equal Protection Clause.

Posted 10:35 AM by Guest Blogger [link]

Sanford Levinson and Constitutional Faith

I've posted my new article, Sanford Levinson's Second Thoughts About Constitutional Faith, on SSRN. It's a review of Sandy's republication of Constitutional Faith, with the new ending that states that he has lost his faith in the American Constitution.

Reviewing a book in which the author has significantly changed the ending was both intellectually challenging and fun; and it also gave me the chance to talk about larger issues of political faith, a recurring theme in my work, and the topic of a long conversation between Sandy and me over the years.

Here is the abstract:

Sanford Levinson's 1988 book, Constitutional Faith, described the U.S. Constitution as America's civil religion and closed with Levinson's statement of faith in the Constitution as "a commitment to taking political conversation seriously." In 2011, Levinson republished the book with an afterword in which he renounced his faith in the Constitution, denounced Americans' reverential attitude toward the document, and called for a new constitutional convention. In all other respects, however, the text of the book remains the same.

The afterword to the 2011 edition transforms the significance of all of the previous chapters and their arguments. It changes the location and the object of Levinson's political faith, and it alters the story that Levinson wants Americans to tell themselves about the meaning of American history. This essay reexamines the book's arguments in light of its new conclusion.

Once people lose faith in a relationship or an institution, they move from the "middle game" -- in which participants make mutual concessions to keep the relationship going -- to the "endgame," where participants seek to protect their interests and make a successful transition to a new life. In the same way, once people lose faith in the Constitution, it can no longer function as America's civil religion or as an aspirational source of values; instead it becomes a modus vivendi, a transitional state of affairs on the way to what participants hope will be a better political order.

Posted 9:31 AM by JB [link]

Thursday, January 10, 2013

Sex Panics/Sexual Justice

Guest Blogger

Katherine Franke

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

The majority of voters in November’s election voted in favor for two kinds of decency: one a fiscal decency by asking the well-off to shoulder a larger proportion of the tax burden, and the other a kind of sexual decency by sanctioning the rights of same-sex couples to the blessings and benefits of civil marriage.

But a politics of decency can be tricky business. Just as the lame-duck Congress debated how we might avoid the self-imposed danger of the looming “fiscal cliff,” another kind of danger has emerged on the front pages of our daily papers. The illustrious career of CIA Director and retired four-star Army General David Petraeus’ dissolved in disgrace when it was revealed that he had had an “extra-marital” affair. Many found it deeply troubling that Petraeus’ career ended in humiliation on account of adultery, not the alleged war crimes and crimes against humanity committed by the U.S. government in the Petraeus-led military campaigns in Afghanistan and Iraq, or the expansion of the CIA’s Predator drone fleet. The Center for Constitutional Rights and the ACLU have filed a lawsuit charging senior CIA and military officials, including Petraeus, with violating the Constitution and international law when they authorized and directed drone strikes that resulted in these deaths as part of a broader practice of extrajudicial “targeted killing” by the United States. But adultery, not these global acts of illegal violence and murder, pushed General Petraeus out of public service.

Posted 10:35 AM by Guest Blogger [link]

1973

Guest Blogger

Geoffrey R. Stone

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

Forty years ago, I had the privilege of serving as a law clerk to Justice William J. Brennan, Jr. during the Supreme Court’s 1972-73 Term. It was an interesting year for sex at the Court. Three issues in particular bedeviled the justices that year: obscenity, abortion and the status of women under the Equal Protection Clause.

Posted 10:30 AM by Guest Blogger [link]

Military Commissions at a Crossroads

Jonathan Hafetz

After a (very) bumpy decade, the Guantanamo military commissions are again at an important juncture. The government must decide whether to appeal a D.C. Circuit ruling that precludes bringing war crimes charges against detainees that, well, never committed war crimes (i.e., most of the remaining 166 Guantanamo detainees). Should the government decline to seek Supreme Court review, it would help limit the already considerable damage done by military commissions. It could also, however, have the unintended effect of further embedding the existing system of prolonged indefinite detention without trial.

Read more »

Posted 8:29 AM by Jonathan Hafetz [link] (4) comments

Wednesday, January 09, 2013

Final schedule: Is America Governable

Sandy Levinson

You will find below the final schedule for the symposium that will be held at the University of Texas Law School beginning two weeks from tomrrow. All events are free and open to the public. If you are planning to attend the lunch session where Larry Lessig will speak, we would very much appreciate your "registering" by sending an email to that effect to me at slevinson@law.utexas.edu or mhendryx@law.utexas.edu. We won't turn anyone away, but lunches will go first to those who registered. It is my hope that the events will be (at least) live-streamed and availablel thereafter. There is certainly no reason, as we contemplate further budgetary debacles, to believe that the topic has become irrelevant, alas. The website, https://www.utexas.edu/law/conferences/governable/ should, fairly soon, have biographies and, more importantly, bibligraphies of the impressive array of writings produced by the participants. If, as I assume, most readers will not be able to make it to Austin, please feel free to linform any Austinites you know of the invent.

Read more »

Posted 6:45 PM by Sandy Levinson [link]

Sexual freedom, legal equality and settler colonialism

Guest Blogger

Dean Spade

For the Conference on Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries

In recent weeks, the world has been captivated by the emergence of the Idle No More movement. Indigenous people and their allies in Canada and around the world have been engaging in a wave of protest actions. These protests, which include marches, vigils, road blocks, railway blocks, flashmobs and the prominent hunger strike of Chief Theresa Spence of Attawapiskat, are raising a number of significant issues. Initially, the movement was a response to the Harper government’s introduction of Bill C-45, legislation that would significantly weaken environmental protection laws in Canada. As the movement has grown, its message has broadened to raise questions about indigenous sovereignty and environmental protection more generally, both in Canada and around the world where indigenous people struggle against colonization and environmental degradation.

Movements against colonization raise significant questions for scholars studying the legal regulation of sexuality and family. The imposition of gender norms and family formation norms and the use of sexual violence as a tool of war have been significant to processes of colonization. The depiction of cultures and peoples targeted for colonization as “backward” in terms of sexuality and family formation has been a rationalization for colonization, and has often included portraying indigenous women as needing to be saved by the colonizers from their own families and cultures. These methods and rationalizations are visible in the history of the colonization of North America where the Idle No More movement has been most visible so far, but we can also hear these rationales deployed to justify the war in Afghanistan, proposed war with Iran, and in rationales for Israeli settler colonialism in Palestine.

These dynamics are particularly interesting in the context of a contemporary gay and lesbian rights framework in the US and its global influence. As many scholars have noted, the gay and lesbian rights framework has increasingly moved toward demands for formal legal equality in recent decades, particularly focusing on demands for military participation and access to legal marriage. There has been a great deal of critique of these demands by a range of feminist, anti-racist, queer and trans scholars. One aspect of this critique that is particularly interesting in the context of the Idle No More movement’s growing momentum is how these demands speak or fail to speak to the quest for sexual freedom for those imagining freedom from an anti-colonial perspective.

Ostensibly, the contemporary gay and lesbian rights agenda developed from the sexual liberation movements of the 1960’s and ‘70’s that are remembered in images from the Stonewall Riots where queer and trans people fought back against police harassment and criminalization. As it developed, its vision of “freedom” has become more aligned with joining the apparatuses of colonial occupation than fighting them. The US military literally operationalizes US colonial and imperial violence, and marriage enforces the family formation norms for the settler colonial state by disbursing essential benefits to the population based on whether we conform to that norm. As the Idle No More movement and other anti-colonial movements such as the Boycott, Divestment and Sanctions movement continue to grow, queer and trans politics faces interesting questions about how various approaches to conceptualizing sexual freedom relate to anti-colonial agendas that seek to dismantle the apparatuses in which certain lesbian and gay rights campaigns and court cases seek gay and lesbian inclusion. These questions are particularly interesting now, as gay and lesbian people are increasingly articulated as those that need saving in colonial discourses. Access to legal marriage and military participation for gays and lesbians are now often used as measuring sticks for whether or not a country respects human rights, and human rights enforcement rationalizations are a popular justification for military intervention. The Idle No More movement’s emergence in this moment provides an opportunity for reflection on the relationship between commitments to sexual freedom and commitments to self-determination and decolonization.

Dean Spade is Associate Professor at Seattle University School of Law. You can reach him by email at spaded at seattleu.edu

Posted 10:35 AM by Guest Blogger [link]

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