Page 38-39 of Perry v. Brown

The law clerks at the 9th Circuit are having too much fun.

We need consider only the many ways in which we encounter the word “marriage” in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “will you enter into a registered domestic partnership with me?”

Groucho Marx’s one-liner, “marriage is a wonderful institution… but who wants to live in an institution?” would lack its punch if the word “marriage” were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “marriage is neither heaven nor hell, it simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized important and permanence of the marriage relationship. Had Marilyn Monroe’s films been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is not different. The name “marriage” signifies the unique recognition that society gives to harmonious, loyal, enduring and intimate relationships.”

Via Perry v. Brown.

Radiolab: Mutants — They’re Just Like US!

Radiolab did a fantastic story on the 2003 decision which “legally” settled the debate as to whether mutants are humans, featured here previously. Kudos to Abumrad and Krulwich for giving this story the context of the meddling lawyers who started this whole fracas and Brian Singer, director of X-Men, who elucidates on the birth of the X-Men franchise during the Civil Rights Movement.

Via WNYC.

Affordable Care Act Winning 3-2

On Tuesday another Federal District judge upheld the Affordable Care Act of 2010 against charges that Congress acted outside its commerce clause powers. This brings the five-ruling total to three rulings in favor of the laws constitutionality and two rulings against.

In other news, the Justice Department has effectively extended federal benefits to same-sex couples, after President Obama declared the Defense of Marriage Act unconstitutional.

From the NY Times.

Read Judge Kessler’s 02/22/11 opinion upholding Obamacare (Congress acting within commerce clause powers).

Is the Health Care Law Unconstitutional?

“Under the Due Process Clause, no Supreme Court decision since 1935 has struck down any state or federal legislation for infringing economic liberties, and any such action would be radically inconsistent with current constitutional doctrine.” –Professor Mark Hall of Wake Forest Law School

Prof. Hall is referring to the last statute to be struck down under the 5th or the 14th amendments, A.L.A. Schechter Poultry Corp. v. United States (1935). Two years later, the Supreme Court upheld Congress’ authority under the commerce clause in West Coast Hotel v. Parrish (1937). In that case, Congress sought to set a minimum wage for women which the Plaintiff claimed went beyond the regulatory power given to Congress by the commerce clause, which provides that Congress may pass any law so long as it is regulating economic activity interstate commerce.

The question of the day is whether it is within Congress’ authority to pass a law which, in part, requires U.S. citizens to purchase health insurance under the Patient Protection and Affordable Care Act. Odds are it will. Recent cases where the Supreme Court ruled Congress overstepped it’s authority include U.S. v. Lopez (a guns near schools case) and U.S. v. Morrison (striking down the Violence Against Women Act as not affecting interstate commerce). The difference in those two cases was drawing a connection between the legislation’s effect and economic activity was tenuous at best, something the Court was unwilling to stomach.

Here, though, requiring citizens to purchase health care is clearly within the scope of the commerce clause as it clearly affects interstate commerce. Similarly, requiring South Dakota residents to own guns also affects interstate commerce. The difference? Rep. Hal Wick is proving his point backwards.

Via the NY Times.

Read Judge Steeh’s 10/7/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Moon’s 11/13/10 opinion upholding Obamacare (Congress acting within commerce clause powers).

Read Judge Hudson’s 12/13/10 opinion excising Obamacare in part (Congress exceeded regulatory powers under commerce clause).

Read Judge Vinson’s 1/31/11 opinion striking down Obamacare in whole (Congress exceeded regulatory powers under commerce clause).

The Last Time the Third Amendment was Invoked

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Custer County Action Ass’n v. Garvey, 256 F. 3d 1024 (10th Cir. 2001). The property Petitioners sought to protect was the airspace above their land. As the court extrapolated through a slippery slope argument, Petitioners would have the United States military seek consent from every individual or entity owning property over which military planes might fly, and then design its training exercises to utilize only that airspace for which permission was granted, or else risk Third Amendment liability. The 10th Circuit court was unwilling to extend this kind of Third Amendment protection:

Judicial interpretation of the Third Amendment is nearly nonexistent. The crux of any such claim, however, is whether the nature of the asserted property interest falls “within the ambit of the Third Amendment’s proscription against quartering troops ‘in any house, without the consent of the Owner.'” Engblom v. Carey, 677 F.2d 957, 961-62 (2d Cir.1982). Citing Engblom v. Carey, Petitioners argue that “[b]ecause a private party has rights to the airspace above his or her property … the United States military may not appropriate such property interests during peacetime without the property owners’ consent.” This argument borders on frivolous.

Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982), is the only significant challenge based on the Third Amendment since the Constitution was ratified in 1788. During a strike by New York prison guards, National Guardsmen were brought in as scabs to serve in their stead. Striking prison guards were removed from employee housing to make room for the National Guardsmen. Some of those evicted prison guards filed suit alleging violation of the Third Amendment. Ultimately, the majority held for the government — no Third Amendment violation. Though, the court did provide a test for all future Third Amendment violations.