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 …

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 …

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 …

Equal Protection, Class Legislation, And Colorblindness, Melissa L. Saunders

Michigan Law Review

Scholars and judges have long assumed that the Equal Protection Clause is concerned only with state action that has the effect of singling out certain persons or groups of persons for special benefits or burdens. Under the traditional doctrinal framework, state action that has this purpose and effect bears a certain burden of justification under the clause, a burden whose stringency varies, depending on the criteria used to define the class being singled out for special treatment and the importance of the interest affected. But state action that lacks such a "discriminatory effect" is not, on the traditional understanding, subject …

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

UF Law Faculty Publications

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

Booth V. Maryland 112 F.3d 139 (4th Cir. 1997) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Great Myths: Santa Claus, The Easter Bunny & Virginia's Proportionality Review, Deborah A. Hill

Capital Defense Journal

No abstract provided.

O'Dell V. Netherland 117 S. Ct. 1969 (1997) United States-Supreme Court

Capital Defense Journal

No abstract provided.

Arnold V. Evatt 113 F.3d 1352 (4th Cir. 1997) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Mu'min V. Pruett 1997 Wl 597978 (4th Cir. Aug. 18, 1997) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Pope V. Netherland 113 F.3d 1364 (4th Cir. 1997)1 United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Reflections On Constitutional Interpretation, Raoul Berger

BYU Law Review

No abstract provided.

Antidisestablishmentarianism: Why Rfra Really Was Unconstitutional, Jed Rubenfeld

Michigan Law Review

Two months ago, the Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), handing down its most important church-state decision, and one of its most important federalism decisions, in fifty years. Through RFRA, Congress had prohibited any state actor from "substantially burden[ing] a person's exercise of religion" unless imposing that burden was the "least restrictive means" of furthering "a compelling governmental interest." RFRA was a response to Employment Division, Department of Human Resources of Oregon v. Smith, in which the Supreme Court abandoned the very same compelling interest test that RFRA mandated. Smith, overturning decades-old precedent, held …

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.

From Piracy To Prostitution - State Forfeiture Of An Innocent Owner's Property: Bennis V. Michigan, Charlena Toro

Brigham Young University Journal of Public Law

No abstract provided.

How Many Times Was Lochner-Era Substantive Due Process Effective?, Michael J. Phillips

Mercer Law Review

According to Justice David Souter, it is "most familiar history" that back when the Supreme Court took a restricted view of the commerce power, it also "routinely invalidated state social and economic legislation under an expansive conception of Fourteenth Amendment substantive due process." As the word "routinely" suggests, Souter evidently believed that this Lochner Court struck down a large number of laws on substantive due process grounds' during the years 1897 to 1937.

As discussed later, other observers agree. Although they recognize that the old Court rejected more substantive due process attacks than it accepted, they also suggest that cases …

Bmw Of North America, Inc. V. Gore: The Supreme Court Rejects A Punitive Damage Award On Due Process Grounds, Rob S. Register

Mercer Law Review

The Supreme Court of the United States has addressed the validity of punitive damages awards many times over the years, but until now has never overturned one based on a claim of excessiveness under the Due Process Clause of the Fourteenth Amendment. BMW of North America, Inc. v. Gore is the first case in which the Court reversed and remanded a large punitive damage amount based on those grounds.

Gray V. Netherland 99 F.3d 158 (4th Circuit 1996) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Mueller V. Murray 252 Va. 356,478 S.E.2d 542 (1996) Supreme Court Of Virginia

Capital Defense Journal

No abstract provided.

Hoke V. Netherland 92 F.3d 1350 (4th Cir. 1996) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Beaver V. Thompson 93 F.3d 1186 (4th Cir. 1996) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

George V. Angelone 100 F.3d 353 (4th Cir. 1996) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Buchanan V. Angelone 103 F.3d 344 (4th Cir. 1996) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Matthews V. Evatt 105 F.3d 907 (4th Cir. 1997) United States Court Of Appeals, Fourth Circuit

Capital Defense Journal

No abstract provided.

Toward A More Effective Use Of Batson In Virginia Capital Trials, Daryl L. Rice, C. Cooper Youell, Iv

Capital Defense Journal

No abstract provided.

Is A Standard Of Proof Required For The Evaluation Of Unadjudicated Acts In Capital Sentencing?, David T. Mcindoe

Capital Defense Journal

No abstract provided.

The Casey Standard For Evaluating Facial Attacks On Abortion Statutes, John Christopher Ford

Michigan Law Review

Since the Supreme Court declared in 1973 that the Constitution grants women a limited right to an abortion, the Justices have decided abortion cases with reference to such weighty matters as religious freedom, the disadvantaged position of women in society, and the proper role of the judiciary. Understandably, the Supreme Court's writings on abortion deal extensively with these large themes. The Court, and certainly others, view abortion cases as rivaling Brown v. Board of Education in their importance to the nation. While the Court has focused on the big issues, however, it has neglected an equally important, if less emotionally …

Punishing Bias: An Examination Of The Theoretical Foundations Of Bias Crime Statutes, Anthony M. Dillof

Law Faculty Research Publications

No abstract provided.