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Constitutional Law

Selected Works

2018

Equal protection

Articles 1 - 3 of 3

Full-Text Articles in Entire DC Network

Leveling Down Gender Equality.Pdf, Tracy A. Thomas Apr 2018

Leveling Down Gender Equality.Pdf, Tracy A. Thomas

Tracy A. Thomas

The U.S. Supreme Court in Sessions v. Morales-Santana (2017) revived its decades old jurisprudence of "leveling down" -- that is, curing an equal protection violation by denying the requested benefit to all rather than extending the benefit to the excluded class. This article challenges that continuation of the conventional acceptance of leveling down or the "mean remedy" and the assumption that leveling down is an equally legitimate remedial option as leveling up for gender discrimination. Instead, it argues for the adoption of an alternative remedial calculus of a strong presumption of leveling up remedies, overcome only rarely by limited equitable ...


Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke Jan 2018

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Anthony O'Rourke

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills ...


From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau Dec 2017

From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau

Holning Lau

Loving v. Virginia and Obergefell v. Hodges are both landmark Supreme Court cases that advanced marriage equality. In Obergefell, the Court invalidated bans on same-sex marriage by building upon precedent it set nearly five decades earlier in Loving, which declared antimiscegenation laws unconstitutional. Indeed, commentators often describe Loving as an important precursor to Obergefell. Yet Obergefell’s reasoning deviated from that of Loving. The differences between the two cases are all too often overlooked. This Essay thus seeks to address this blind spot by drawing attention to a critical distinction: Loving and Obergefell differ in their conceptualization of discrimination. 

When ...