Fourteenth Amendment Commons^™

Homosexuality In High School: Recognizing A Student's Right To Privacy, Bari Nadworny

St. John's Law Review

(Excerpt)

This Note argues that high school officials disclosing information about a student's sexual orientation without the student's permission is a violation of the student's constitutional right to informational privacy. Part I examines the Supreme Court's informational privacy jurisprudence. This Part also examines the circuit court opinions that have contributed to the law in this area regarding personal sexual matters. Part II examines the current split of authority between the Third Circuit Court of Appeals, which has held that such a privacy right exists, and the Fifth Circuit Court of Appeals, which has held that it does not. Part III …

No Country For Old Men?: The Non-Preclusive Effect Of The Age Discrimination In Employment Act On § 1983 Age Discrimination Claims, Lauren Tauro

St. John's Law Review

(Excerpt)

This Note argues that the ADEA should not be interpreted to preclude § 1983 constitutional claims for age discrimination in employment. Part I of this Note discusses the history and development of the statutory schemes that provide protection for employees against age discrimination in the workplace: § 1983 of the Civil Rights Act and the ADEA. Part II reviews relevant case law explaining the arguments for and against § 1983 preclusion to illustrate the interaction between § 1983 and the ADEA. Finally, Part III provides an equitable approach for courts to use to analyze § 1983 claims for age …

Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green

William & Mary Bill of Rights Journal

Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …

Perspectives On Marriage Equality And The Supreme Court, The Editors

Fordham Law Review

    On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, one of the most significant civil rights decisions in recent years. For many of our generation, the Court’s conclusion that same-sex couples enjoy the constitutional right to marry simply confirmed deeply held beliefs about the importance of marriage equality and inclusion for all. We recognize, however, that for American society more broadly, the decision has evoked strong feelings on both sides of the marriage equality debate. For some, Obergefell delivered a unique gift that was unimaginable even a few decades ago: the ability of same-sex couples to …

Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau

Fordham Law Review

    By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

    This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Hail Marriage And Farewell, Ethan J. Leib

Fordham Law Review

    My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

    Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

Identity As Proxy, Lauren D. Sudeall

Vanderbilt Law School Faculty Publications

As presently constructed, equal protection doctrine is an identity- based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection's current use of identity as proxy leads to a number of problems, including difficulties in defining identity categories; the tendency to privilege a dominant-identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can …

The Future Of Confession Law: Toward Rules For The Voluntariness Test, Eve Brensike Primus

Michigan Law Review

Confession law is in a state of collapse. Fifty years ago, three different doctrines imposed constitutional limits on the admissibility of confessions in criminal cases: Miranda doctrine under the Fifth Amendment, Massiah doctrine under the Sixth Amendment, and voluntariness doctrine under the Due Process Clauses of the Fifth and Fourteenth Amendments. But in recent years, the Supreme Court has gutted Miranda and Massiah, effectively leaving suspects with only voluntariness doctrine to protect them during police interrogations. The voluntariness test is a notoriously vague case-by-case standard. In this Article, I argue that if voluntariness is going to be the framework for …

Functionally Suspect: Reconceptualizing "Race" As A Suspect Classification, Lauren Sudeall Lucas

Michigan Journal of Race and Law

In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For …

Substantive Due Process For Noncitizens: Lessons From Obergefell, Anthony O'Rourke

Michigan Law Review First Impressions

The state of Texas denies birth certificates to children born in the United States—and thus citizens under the Fourteenth Amendment—if their parents are undocumented immigrants with identification provided by their home countries’ consulates. What does this have to do with same-sex marriage? In a previous article, I demonstrated that the Supreme Court’s substantive due process analysis in United States v. Windsor is particularly relevant to the state’s regulation of undocumented immigrants. This Essay builds on my earlier analysis by examining United States v. Obergefell’s applications outside the context of same-sex marriage. Obergefell’s due process holding, I argue, can …

Testimony On Oklahoma Civil Asset Forfeiture Reform, Stephen Henderson

Other Faculty Publications

I am grateful for the opportunity to speak to you today about Senate Bill 838 and the reform of Oklahoma’s civil asset forfeiture. I am a professor of law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure. I have experience achieving consensus solutions in contested areas of law, most notably in the six years I spent drafting a new set of ABA Criminal Justice Standards, and I know that change is rarely easy. No matter the topic and whatever the status quo, there is sure to be someone who feels it is …

Book Review: Psychiatric Justice, Alice M. Batchelder

Akron Law Review

In an era in which extensive judicial emphasis has been placed on "due process of law" in criminal proceedings, both in the federal courts and in the state courts, Dr. Szasz's book serves as a jarring reminder that in at least one vital area of the concept of due process, much remains to be done. The emerging definition of due process has enunciated the rights guaranteed the individual by the Fourth, Fifth, Sixth, and Fourteenth Amendments; and viewed within that framework, this book, although published in 1965, remains particularly timely, for Szasz, speaking as a psychiatrist, endeavors to demonstrate how …

The Reed Case: The Seed For Equal Protection From Sex-Based Discrimination, Or Polite Judicial Hedging?, John P. Murphy Jr.

Akron Law Review

Reed is yet another example of how the Equal Protection Clause may be used to strike down state statutes which embody arbitrary classifications that are neither fairly nor substantially related to the object of the statute, and which bring about the invidious discrimination that is repugnant to the Fourteenth Amendment. It must stressed that the outcome of Reed is clearly commendable in terms of justice. What is troublesome is the fact that one may contend that the Supreme Court hedged, perhaps avoided, an excellent opportunity in which to expand the constitutional scope of the Equal Protection Clause. Reed afforded the …

The Uneasy Partnership: The Balance Of Power Between Congress And The Supreme Court In Interpretation Of The Civil War Amendments, Emil Lippe Jr.

Akron Law Review

The basic thesis of this article is that the enforcement clauses of the thirteenth,' fourteenth, 2 and fifteenth 3 amendments have imposed strong affirmative duties upon the United States Congress and the Supreme Court. These duties, due to their very nature, must be exercised in tandem with each other toward the overall goal of the Civil War Amendments: the guarantee that the civil rights of no American be denied him on the basis of race, color, or previous condition of servitude. In addition, a special type of constitutional stare decisis operates to prevent both branches from contracting the rights guaranteed …

Student Rights Under The Due Process Clause . . . Suspensions From Public Schools; Goss V. Lopez, Glenn W. Soden

Akron Law Review

IN ADDRESSING ITSELF to the constitutionality of Section 3316.66 of the Ohio Revised Code,' the United States Supreme Court in Goss v. Lopez has ruled for the first time upon the extent to which the rights of students are to be protected under the due process clause of the fourteenth amendment in conjunction with any disciplinary removal from a public school. By its action the Court has tacitly undertaken to lift the cloud on student rights which has existed under the common law doctrine of in loco parentis, and interpose procedural safeguards upon any decision of school officials to deprive …

Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski

Akron Law Review

"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …

Automobile Guest Statute; Unconstitutional; Equal Protection; Due Process; Right To Seek Legal Redress; Primes V. Tyler, Margaret Fuller Corneille

Akron Law Review

IN JULY 1975, the Supreme Court of Ohio in the case of Primes v. Tyler' joined a small but growing number of states' which have declared automobile guest statutes' unconstitutional. The circumstances of the Primes case are similar to those encountered in countless other suits brought by injured guest passengers since the Ohio guest statute was enacted in 1933.' George Primes, III and Donald G. Tyler were members of an informal golf group which shared a car pool arrangement. Tyler, driving for the car pool, was involved in an automobile accident in which Primes, a passenger, was injured. Primes brought …

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.