Law Commons^™

The Narrow And Shallow Bite Of Romer And The Eminent Rationality Of Dual-Gender Marriage: A (Partial) Response To Professor Koppelman, Richard F. Duncan

William & Mary Bill of Rights Journal

In this response to Professor Koppelman, Professor Duncan takes issue with the assertions Koppelman makes in Romer v. Evans and Invidious Intent. Though Duncan agrees with Koppelman's summary of the rule of Romer and the ongoing effects of Bowers v. Hardwick, he rejects Koppelman's claims that laws that discriminate against gays will always be constitutionally doubtful because they disadvantage an unpopular class.

Duncan claims that Koppelman has tried, without success or authority, to fill in the "missing pages" left in Romer by the Supreme Court. Finally, he argues that traditional marriage laws are valid and will survive under Romer and …

Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Mccristal Culp Jr.

William & Mary Bill of Rights Journal

In this Article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of *their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of color-blindness. This submerged racial jurisprudence provides the …

Tearing Down The House: Weakening The Foundation Of Divorce Mediation Brick By Brick, Colleen N. Kotyk

William & Mary Bill of Rights Journal

Mediation is an attractive alternative to traditional litigation. In the last decade the use of mediation in family law has increased substantially. Mediation is particularly suited to family disputes when the parties voluntarily choose to use the process because it can help the parties resolve disputes and foster long-term relationships. Not all parties, however, are given a choice between mediation and more traditional adversarial justice. Currently, state legislation ranges from permitting mediation to mandating mediation. Mandatory mediation raises the issue of due process violations, especially in situations involving spousal abuse.

This Note analyzes the use of mediation in domestic relations …

Romer V. Evans And Invidious Intent, Andrew Koppelman

William & Mary Bill of Rights Journal

In this Essay, Professor Koppelman argues that, notwithstanding numerous scholarly claims to the contrary, the Supreme Court's decision in Romer v. Evans was based on the invalidated law's impermissible purpose. Professor Koppelman examines the Court's understanding of the Fourteenth Amendment, and concludes that its current doctrine is designed to ferret out unconstitutional intent. Such impermissible intent, Koppelman argues, was evident in the law challenged in Romer. Nonetheless, Koppelman acknowledges, Romer is a hard case, and its precedential significance is unclear, particularly in light of Bowers v. Hardwick, which upheld the constitutionality of laws against homosexual sodomy. Laws that facially disadvantage …

Justice George Sutherland And Economic Liberty: Constitutional Conservatism And The Problem Of Factions, Samuel R. Olken

William & Mary Bill of Rights Journal

Most scholars have viewed Justice George Sutherland as a conservative jurist who opposed government regulation because of his adherence to laissez-faire economics and Social Darwinism, or because of his devotion to natural rights. In this Article, Professor Olken analyzes these widely held misperceptions of Justice Sutherland's economic liberty jurisprudence, which was based not on socio-economic theory, but on historical experience and common law. Justice Sutherland, consistent with the judicial conservatism of the Lochner era, wanted to protect individual rights from the whims of political factions and changing democratic majorities. The Lochner era differentiation between government regulations enacted for the public …

Playing Defense, Robert F. Nagel

William & Mary Bill of Rights Journal

Noting that the Romer opinion condemns the motives behind Amendment 2 without pausing even briefly to examine the social context in which it was enacted, Professor Nagel describes the decision as a model of the intolerant impulse in action. He traces this impulse to the Justices' unwillingness to examine their own role--and that of the rest of the constitutional law establishment- in creating the underlying conditions that produced Amendment 2.

In order to identify those conditions, Professor Nagel analyzes the primary document used by Colorado for Family Values during its campaign on behalf of the initiative. He argues that this …

The Equal Protection Clause: A Note On The (Non)Relationship Between Romer V. Evans And Hunter V. Erickson, Jay S. Bybee

William & Mary Bill of Rights Journal

In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court's decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other "equal process" cases, Professor Bybee concludes that although the Court's analysis of Colorado's Amendment 2 …

High Wall Or Lines Of Separation?, James J. Knicely

William & Mary Bill of Rights Journal

The issue of religion and the role it should play in government has long evoked spirited debate. Recently, an argument has been made that the "separation" between religion and politics has played a large factor in what many consider to be our nation's "moral decay. " Such an argument, however, is not new.

In reviewing Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, edited by Daniel L. Dreisbach, James Knicely examines the power of elected government to act benevolently toward religion and the moral values associated with it in light of today's social ills. Religion …

Takings And Causation, Jan G. Laitos

William & Mary Bill of Rights Journal

Constitutional protection of private property is grounded in a conflict between two legal principles--the government's power to regulate private property for the common good and the Constitution's limit on this power in the Takings Clause. The Takings Clause's check on government power conforms to John Rawls's philosophy, which rejects the utilitarian beliefs that government may act to achieve* the "good" of maximizing human happiness and that government can force people to trade certain political liberties for an improved distribution of wealth. Under Rawls's theory, the principle of "justice as fairness" limits a government's ability to require some people to bear …

Prior Bad Acts And Two Bad Rules: The Fundamental Unfairness Of Federal Rules Of Evidence 413 And 414, Jason L. Mccandless

William & Mary Bill of Rights Journal

This note presents a Due Process analysis of Federal Rules of Evidence 413 and 414. These rules, which took effect in July 1995, overturn the exclusionary requirements of Rule 404 exclusively in cases involving sexual assault and child molestation. The new rules allow similar crimes to serve as evidence for purposes other than those stated in Rule 404(b). Now, federal prosecutors may offer evidence of a defendant's prior uncharged sexual misconduct to demonstrate that the defendant committed the sex offense for which he currently is being charged. Rules 413 and 414 reevaluate the historic concern that evidence of prior acts …

The "Defense Of Marriage Act" And Authoritarian Morality, Alec Walen

William & Mary Bill of Rights Journal

The "Defense of Marriage Act" has defined marriage at the federal level for the purpose of denying recognition to same-sex marriages. It thereby perpetuates the unequal treatment of homosexuals, and does so by denying them a fundamental right-the right to marry. In this Essay, Dr. Walen examines the wide range of justifications offered in Congress for this law. Six categories of argument are assessed: (1) politics and economics, (2) history and tradition, (3) religion, (4) the essential nature of marriage and the family, (5) social.decay, and (6) morality. Walen concludes that none of the justifications prove to be adequate to …

Affirmative Action Implications For Colleges And Universities Beyond The Scholarship And Student Admissions Areas, Ellen R. Dassance

William & Mary Bill of Rights Journal

In Podberesky v. Kirwan, the Fourth Circuit held that a University of Maryland scholarship designated for African-American students violated the Constitution's Equal Protection Clause. In so holding, the court contributed to the recent tradition of dismantling affirmative action programs in higher education. This Note explores the implications of Podberesky for other university settings, particularly faculty hiring and endowment programs. The first part of the Note's analysis concentrates on ways in which the Podberesky rationale may -be extended to university ,programs other than scholarships and student admissions. The Fourth Circuit's employment of a narrow set of factors in reviewing the scholarship …

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

William & Mary Bill of Rights Journal

Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

Loyal Lieutenant, Able Advocate: The Role Of Robert H. Jackson In Franklin D Roosevelt's Battle With The Supreme Court, Stephen R. Alton

William & Mary Bill of Rights Journal

Before his appointment to the Supreme Court, Justice Robert H. Jackson played a highly visible role in Franklin D. Roosevelt's failed "court packing plan. " Roosevelt's legislation would have increased the size of the Supreme Court and could have dramatically altered the functioning of our government. Jackson supported the plan from his post as Assistant Attorney General. This Article uses a chronological narrative to examine Jackson's role in Roosevelt's court fight. The Article examines his role in light of the surrounding history and the tension between the backers of the New Deal and the Supreme Court. Jackson's testimony before the …

Bottoms Iii: Visitation Restrictions And Sexual Orientation, Joseph R. Price

William & Mary Bill of Rights Journal

In 1994, national media attention focused on the Virginia case Bottoms v. Bottoms, in which Kay Bottoms successfully fought to terminate her lesbian daughter Sharon's custody of Sharon's son, Tyler. Although the Court of Appeals of Virginia reversed the trial court's award of custody to Kay Bottoms, the Supreme Court of Virginia reversed the appellate court and returned custody to Tyler's grandmother. Sharon then sought modification of the visitation and custody order, but the trial court denied her petition and instead reduced and further restricted her visitation rights. In Bottoms III, the Court of Appeals of Virginia reversed the trial …