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Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges, John P. Bringewatt

Michigan Law Review

In March 2008, the Supreme Court decided Snyder v. Louisiana, the latest in the line of progeny of Batson v. Kentucky. This Note demonstrates that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has moved away from permitting the unfettered use of the peremptory challenge in favor of stronger Equal Protection considerations. Snyder alters the requirements for trial judges in deciding Batson challenges by requiring them to provide some explanation of their reasons for accepting a prosecutor's justification of a peremptory challenge. Snyder is the …

Moving Beyond The Immutability Debate In The Fight For Equality After Proposition 8., M.K.B. Darmer, Tiffany Chang

The Scholar: St. Mary's Law Review on Race and Social Justice

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of “strict scrutiny” for purposes of the state’s equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples. On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to “amend” the state constitution by adding fourteen words in a new clause following the equal protection clause: “only marriage between a …

Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent

Kristen Nugent

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …

State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker

Scholarly Works

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis …

A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea

dylan zorea

I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …

The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Poor As A Suspect Class Under The Equal Protection Clause: An Open Constitutional Question, Henry Rose

Henry Rose

(Abstract) The Poor as a Suspect Class Under the Equal Protection Clause: An Open Constitutional Question Both judges and legal scholars assert that the United States Supreme Court has held that the poor are neither a quasi-suspect nor a suspect class under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They further assert that this issue was decided by the Supreme Court in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). It is the thesis of this article that the Supreme Court has not yet decided whether the poor are a quasi-suspect …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

Jennifer S. Hendricks

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social …

Don't Tap, Don't Stare, And Keep Your Hands To Yourself! Critiquing The Legality Of Gay Sting Operations, Jordan Woods

Jordan Blair Woods

'Activist Courts,' Misleading Wedge Politics And The Tragedy Of Proposition 8, M. Katherine B. Darmer

M. Katherine B. Darmer

This paper explains that Proposition 8 was uniquely devastating in that it stripped vested marriage rights away from a protected minoirty group. Previously, where voters sought to define marriage narrowly to exlude gay and lesbian couples, voters did so in advance of gay and lesbian couples having such rights. The paper defends the California Supreme Court's decision in the May 15, 2008 "Marriage Cases," criticizes misleading advertising ploys of the Proposition 8 campaign and broadly defends the role of the courts in ensuring equal protection, drawing parallels between the current fight for marriage equality and earlier fights for the rights …

Discriminatory Acquittal, Tania Tetlow

Tania Tetlow

This Article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modern empirical evidence continues to show a devaluation of black victims; dramatic disparities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of …

Terms Of Imprisonment: Treating The Noncitizen Offender Equally, Nora V. Demleitner

Scholarly Articles

Not available.

The Supreme Court As The Major Barrier To Racial Equality, Ivan E. Bodensteiner

Law Faculty Publications

This Article suggests that the U.S. Supreme Court, through its decisions in cases alleging race discrimination, stands as a major barrier to racial equality in the United States. There are several aspects of its decisions that lead to this result. Between 1868 and 1954, the Equal Protection Clause of the Fourteenth Amendment, while it had been interpreted to strike down a few blatant forms of de jure discrimination, allowed government to separate the races based on the “separate but equal” fiction. Beginning in 1954, Brown and a series of subsequent decisions attacked this fiction, and for a period of nearly …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Akron Law Faculty Publications

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Passions We Like… And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Michigan Journal of Gender & Law

This Article proceeds as follows. In Part II, the author catalogs the history of anti-gay hate crime laws in the United States, describing the rapid spread of state-level laws extending race- and religion-based hate crime laws to LGB people. The Article also provides an overview of federal legislation addressing anti-gay hate crime. In Part III, it examines the policy environment within which anti-gay hate crime laws have been, and continue to be, considered. Specifically, the jurisprudential frameworks that shape, define, and constrain discourses of equality, rights, and social identity are analyzed. The argument is made that the policy environment of …

Moving Beyond The 'Immutability Debate' In The Fight For Equality After, M. Katherine B. Darmer

M. Katherine B. Darmer

On May 15, 2008, the California Supreme Court issued its historic decision regarding marriage rights for same-sex couples. In the course of its opinion, the court found that classifications based upon sexual orientation are subject to the protections of "strict scrutiny" for purposes of the state's equal protection clause. The court also found that marriage is a fundamental right that extends to same-sex couples.

On November 4, 2008, 52% of California voters voted for Proposition 8, which purported to "amend" the state constitution by adding fourteen words in a new clause following the equal protection clause: "only marriage between a …

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Nancy Levit

One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …

The State Marriage Cases: Implications For Hawaii's Marriage Equality Debate In The Post-Romer And Lawrence Era, Kristin D. Shotwell

Kristin D Shotwell

No abstract provided.

The Constitutional Future Of Race-Neutral Efforts To Promote Diversity And Avoid Racial Isolation In Our Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Wilson R. Huhn

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Eatin' Good? Not In This Neighborhood: A Legal Analysis Of Disparities In Food Availability And Quality At Chain Supermarkets In Poverty-Stricken Areas, Nareissa Smith

Michigan Journal of Race and Law

Many Americans-especially the poor-face severe hurdles in their attempts to secure the most basic of human needs-food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain--but located in a wealthier neighborhood-she would …

Conaway V. Deane: To Have And To Hold, From This Day Forward—Maryland’S Unfit Marriage To Federal Equal Protection Analysis, Rachel A. Shapiro

Maryland Law Review

No abstract provided.

Engquist V. Oregon Department Of Agriculture: No Harm Meant? The Vanquished Requirement Of Ill-Will In Class-Of-One Equal Protection Claims And The Erosion Of Public Employees’ Constitutional Rights, Kerstin Miller

Maryland Law Review

No abstract provided.

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Can Courts Repair The Crumbling Foundation Of Good Citizenship? An Examination Of Potential Legal Challenges To Social Studies Cutbacks In Public Schools, Eli Savit

Michigan Law Review

In the wake of No Child Left Behind, many public schools have cut or eliminated social studies instruction to allot more time for math and literacy. Given courts' repeated celebration of education as the "foundation of good citizenship," this Note examines potential legal claims and litigation strategies that could be used to compel social studies instruction in public schools. This Note contends that the federal judiciary's civic conception of education leaves the door slightly ajar for a Fourteenth Amendment chrallenge on behalf of social studies-deprived students, but the Supreme Court's refusal in San Antonio v. Rodriguez to recognize education as …

Abolishing The Time Tax On Voting, Elora Mukherjee

Faculty Scholarship

A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …

A (Trans) Gender-Inclusive Equal Protection Analysis Of Public Female Toplessness, Luke Boso

Luke A. Boso

Federal, state, and municipal laws have long regulated, and often blanketly prohibited, the exposure of female breasts in public venues for a variety of purported reasons. Generally worded to prohibit the exhibition of the “female breast with less than a fully opaque covering or any portion thereof below the top of the nipple,” nudity-regulating laws lack a similar provision for male breasts, and, in fact, exclude the male torso from coverage entirely.

Pursuant to the Supreme Court’s sex-based discrimination jurisprudence, advocates for topfree equality have repeatedly challenged these laws in court, arguing that they violate U.S. and state constitutions’ equal …

The Short, Puzzling(?) Life Of The Civil Union, John G. Culhane

John G. Culhane

In the battle for marriage equality, equal protection has proven to be a more successful strategy than fundamental rights. This outcome is perhaps surprising, given that civil unions arguably afford at least "formal" equality to same-sex couples. Yet the supreme courts of Connecticut and California have emphasized the denial of equality that the difference in names connotes - civil unions or domestic partnerships v. marriage - and therefore have moved dramatically towards real equality. These two courts were the first to declare that sexual orientation is a suspect (California) or quasi-suspect (Connecticut) classification, thereby radically changing the debate and the …

The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian

Maya Manian

In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …

The Usual Suspect Classifications: Criminals, Aliens And The Future Of Same-Sex Marriage, Michael A. Helfand

Michael A Helfand

In this Article, I argue for a new understanding of the immutability factor employed by courts in determining which classifications ought to receive suspect status under the Equal Protection Clause. Drawing on the process-based foundations of the Equal Protection Clause, this new understanding defines immutable traits not as traits that cannot be changed, but as traits that are in the words of the Supreme Court in Frontiero v. Richardson, mere "accident[s] of birth." In contrast, courts and scholars typically center the immutability inquiry on an individual’s technical ability to exit a particular class, which has led to inconsistencies in …