Hello all!

I've been fortunate enough to secure a reasonably free and flexible day today and wanted to come back in and do a Q&A I promised to some folks on my past AMAs. I'm in and out of the office today so the answers may come a little slower than normal but I will do my best to answer all the questions. I'm happy to focus on questions surrounding same sex marriage but also happy to answer any other Qs that come up. As with my other AMAs, I'll do my best to post updates with my availability and any developments.

Quick Background:

I'm a lawyer living and working in DC. My pet love my whole life has been the Constitution and constitutional law. I do not work as a constitutional lawyer for my day job, but I do write academically and colloquially about areas of constitutional law. I've worked in a public interest firm doing constitutional litigation in the past, so I can do some Q&A about how that process works but I no longer actively litigate.

My areas of specialization are the First Amendment and legislative procedure. Within the First Amendment I know mostly speech/press/election law issues and legislative procedure is all about our federal legislative system (so everything from item-line veto to the filibuster) are what I love to talk and write about.

I have a general knowledge of most other constitutional provisions, including the issues surrounding same sex marriage, so ask away - I'll be as accurate as possible (and will point you to more knowledgeable folks if I can't answer your questions).

One caveat that I give in all my AMAs - I'm not great on national security law. I know the basics on issues of military tribunals, jurisdictional issues, war powers, and executive privilege but questions of indefinite detention, torture, GITMO, and drone strikes are pretty foreign to me. I highly recommend the Lawfare Blog for all national security law related interests. The writers there are fantastic and unbelievably knowledgeable.

One more caveat - I'm happy to dig in to the 2nd Amendment but will warn in advance that I'm not fluent in it. I can discuss the decisions that set the rules but most folks want me to make arguments and, while I can throw together law school quality arguments, I'd hardly call myself an authority, so take any answers to 2A questions with a grain of salt. Happy to talk about the constitutionality of gun control legislation as I see it, but again, I'm not an authority on this one.

Past AMAs

Constitution Day Q&A: http://www.reddit.com/r/IAmA/comments/1011p3/happy_constitution_day_to_celebrate_the_225th/

Obamacare Decision Day Q&A: http://www.reddit.com/r/politics/comments/vqncg/iama_constitutional_lawyer_verified_here_to/

First Q&A: http://www.reddit.com/r/politics/comments/v6mxy/iama_constitutional_lawyer_here_to_clarify/


Nothing contained herein is or should be construed as legal advice. This is purely informational and made for educational purposes. I'm here because I believe educating people about our system is the best way to engage folks in protecting and improving the system. I'm not here to be your lawyer, nor could I legally give you advice even if I wanted to.

Also, I do my absolute best to keep my politics out of my commentary and my answers. Where I am giving an opinion or my interpretation, I will note it as best I can. The law, like many things, has many interpretations - some good, some bad. Opinions on case law are diverse and I'm not here to present a single truth, in fact I will do my best to display the diversity of opinion around particular areas of law.


For those of you who don't care what I have to say but want some general info about the cases being argued this week, here are some good primers/resources.

NY Mag Primer

NPR Primer

Washington Post Primer

Transcripts and Oral Argument Audio for Prop 8


Here are the oral argument recordings and transcripts from the DOMA case today. I'll be in and out the rest of the day and Ill be listening to these arguments. Answers may come sporadically but I will do my best to get to most of the Qs I miss tonight. Keep 'em coming!


Sorry my answers were intermittent the second half of the day, had a work project come up. Just answered a few more questions and am heading to bed. Thanks for all the Qs and I will check back in tomorrow to answer any stragglers. Otherwise, see you on decision day in June!


I'm back and catching up with questions so ask more if you have them. Here is some good reading from SCOTUSBlog I recommend on the SSM cases.

The Relationship Between DOMA & Prop 8

DOMA as a states’ rights problem? Today’s oral argument in Plain English

Argument recap: DOMA is in trouble

Comments: 424 • Responses: 73  • Date: 

Scarytoilethair48 karma

What are your personal views on prop 8, and does that effect your legal views?

ConstitutionalLawyer121 karma

My personal views are pro marriage equality, so I'm not a fan of Prop 8 or DOMA.

In terms of it affecting my legal views, not really. I think DOMA is an open and shut case. I don't think there's any questions that it is unconstitutional for a multitude of reasons and I am 100% confident that it will get struck down.

Prop 8 is a MUCH more complicated issue. First off, it's a state situation, which is further complicated by it being a ballot initiative rather than a duly passed law. I think the CA Supreme Court made the correct legal decision in upholding Prop 8.

Whether Prop 8 falls under federal/14th Amendment principles is a question of much debate. I think it does because I believe homosexuality should be treated as an immutable characteristic at least to the same extent sex is (intermediate scrutiny). This would make laws enforcing discriminatory institutional practices much more difficult to defend. But that's my view - homosexuals are not currently a protected class for legal purposes, despite the fact of them getting pseudo-protected status in past cases.

I think Prop 8 will be struck down but I don't think the Supreme Court will do it directly - instead they'll probably just punt and not answer the question, leaving the 9th Circuit's ruling in place, invalidating Prop 8 in CA and throughout the 9th Circuit. Other circuits could uphold a similar proposition from another state, which would probably bring the issue back to SCOTUS and force a decision.

gsxr29 karma

Does it bother you that SCOTUS can punt issues and not answer them? I'm an IT guy that enjoys listening to their decisions and it always pisses me off when they refuse to make a choice. You'RE THE HIGHEST COURT IN THE LAND MAKE A CHOICE!!!!!!

ConstitutionalLawyer96 karma

It drove me crazier when I was younger but I understand it better now. The Court is a generally conservative institution (in the sense that it doesn't like rocking the boat, not its political leanings). If it has the option to let the lower courts and states figure it out, it will usually take that option.

The reasoning is justified by the same reason you cite - because it is the final court in the land. Any decision it makes can have drastic impacts on everyone - far more drastic than a single state or single circuit could have. In an effort to avoid unnecessary disturbances when an issue is still being debated (no circuit split, etc) the Court will generally say come back in a few years once you have some more solid information.

Yes, its extremely frustrating for individuals invested in single issues but the argument can be made that it is a minimally intrusive approach that, in the aggregate, provides greater stability to our legal system.

Just_For_Da_Lulz22 karma

Fellow lawyer here. I felt the same way when I was younger--SCOTUS should always decide the issues presented--but after entering law school, my opinion definitely changed for the reasons you mentioned.

ConstitutionalLawyer72 karma

Further proof that law school ruins everything.

ReDJeLLo_11 karma

As a mildly hungover second semester 1L I can vouch for the fact that law school ruins absolutely everything.

ConstitutionalLawyer59 karma

Mildly? You're doing it wrong.

compson110 karma

I can't believe they granted cert to the Prop 8 case. It makes so little sense.

ConstitutionalLawyer15 karma

Only take 4 to grant, sometimes 3 with a 4th vote given traditionally as a nicety.

Then again, not addressing it leaves the 9th Circuit alone, which would cause an equally confusing uproar. I honestly think they are more interested in the standing issue than the merits for this one. But yes, I was surprised that they took it as well.

DoctorBurger7 karma

So SCOTUS is like Yoda, deferring to a decision already made by a Jedi Knight, so as to not create a disturbance in the force?

ConstitutionalLawyer59 karma

Something something Jedi mind meld something something.

Scarytoilethair11 karma

Thank you for answering my question and thanks for the AMA, I hope you stay with it and don't let the haters scare you away...

ConstitutionalLawyer21 karma

No worries, glad I could answer your question.

WaywardWit5 karma

What value if any should be given to the fact that California (as a state) treats homosexuality as a class worthy of more substantial (when compared to federal standards) protection?

ConstitutionalLawyer16 karma

Persuasive value but certainly not binding. The briefs note it and I'm sure the justices consider it but 1 state out of 50 (hell, even 20 states out of 50) is hardly a mandate to rule a certain way.

Personally, I think its heading in that direction but I don't think the Court is anywhere close to making it official. Then again, the Court went from nothing to intermediate on issues of sex in under a decade, so it's possible.

Longhorn24244 karma

After reading the DOMA case from the 2d Circuit Court of Appeals, it appears that the court had to reclassify sexual orientation as a quasi-suspect class warranting intermediate scrutiny in order to rule DOMA as Unconstitutional in violation of the EPC. While there is precedent for reclassification, one factor is the political powerlessness of the class, and the court failed to recognize gays as one of the most politically powerful groups in the country. The parade of sports players having to make public apologies for saying F****t during a game should be proof positive enough of that fact. And in reality, gays are actually less discriminated against than ever before in history, so the reclassification seems rather tardy.

So, given that the 2d Circuit had to basically rewrite prior Constitutional law to expand the coverage of the EPC, how can you say that it is an open and shut case? Surely you cannot believe that DOMA fails rational basis scrutiny?

ConstitutionalLawyer7 karma

I think DOMA does fail rational basis scrutiny, but that's way more personal opinion than legal reality.

That said, all gay rights cases at the SCOTUS level have gotten "rational plus" - rational in name, intermediate in practice. I don't think the Court will redefine the way the 2nd Circuit did. I think the Court will say it fails rational, while again applying rational plus as they did in Romer and Lawrence.

DOMA also violates the full faith and credit clause on its face - though no court has wanted to jump in that fire yet.

I agree that SCOTUS won't reclassify sexual orientation - its a bit early in the process for that, but I don't think they'll apply true rational basis either. Kennedy is the swing on that (I don't think it will be 5-4 but assuming it is) and he wrote Lawrence. Wouldn't expect him to switch up on this one.

houinator26 karma

How do you see North Dakota's proposed Personhood Ammendment affecting the constitutionallity of Roe v Wade, especially in light of this line from the majority opinion in Roe v Wade: "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." (referring to the 14th ammendment).

ConstitutionalLawyer37 karma

Passing a law that says personhood is X does not establish personhood for purposes of the federal court's analysis under the 14th Amendment. SCOTUS still has to look at it in the context of the whole country. Simply declaring something is true does not make it true or constitutional (as we're seeing in Prop 8). I do think the debate will be much more interesting with that amendment in place but I'm not sure how it will shape up until it hits court (which should be plenty soon).

The legal fight over the ND law will likely focus on whether it places unconstitutional burdens on a woman's right to obtain an abortion. I don't think (and this is just me) that it will hit the underlying element of personhood and will rather just focus on the abortion test set forth in Casey, which is whether a law places a substantial burden on the ability to obtain an abortion.

skirlhutsenreiter25 karma

What about the standing issues in the two cases? If the court accepts that prop 8 backers have standing, then couldn't any voter have standing to challenge anything? Or is there a potential middle ground on the issue I'm not seeing?

ConstitutionalLawyer67 karma

Standing, for those who don't know, is the legal doctrine that says you have to have a reason (generally that you suffered a demonstrable harm) to bring the case. In an oversimplified example - if Bob punched Ted while he was across the street from Mary, Ted can sue Bob but Mary can't because she didn't suffer any harm.

The standing issues are similar yet different in the two cases. Generally, when laws are challenged, the state has standing to defend them since the state would be harmed if the law were invalidated.

In the DOMA case, the Obama Administration said they won't defend the law. The House of Representatives took over the defense and brought it to SCOTUS. The debate will be over whether the House has sufficient standing to defend the case in Court. While this issue can be debated I don't think there's much issue with the House taking over since they passed the law and they, theoretically, suffer a similar harm to the executive branch should the law be invalidated.

Prop 8 is a waaaaay more difficult question, primarily because Prop 8 was a ballot initiative and NOT a duly passed law. If the California legislature had passed Prop 8, you'd have a question similar to the one in DOMA (in which the outcome is probably that the legislative branch has the same standing the executive branch would), but a ballot initiative is one theoretically proposed and passed by "the people" and not any single entity.

The "couldn't any voter defend anything if they allow standing here" question is the exact issue the Justices hammered all parties on yesterday. "Taxpayer standing" (I pay taxes, therefore I am harmed by my taxes going to something I don't like, so I can sue) is something the Court has effectively done away with over the years for that exact reason - because anyone challenging anything for any reason simply because they tangentially participate in the process would overload the system and is not an effective way to address the issue.

The folks arguing FOR Prop 8 argued that not allowing the people to represent themselves when the state refuses to defend a ballot initiative gives the state a trump card that invalidates the whole point of ballot initiatives. If a state can choose to not defend a law passed by the people, thereby effectively nullifying the law, what's the point of ballot initiatives? Similarly, giving the state authority to appoint someone to defend it gives the state power to appoint someone they know will do a poor job, etc.

On the other side, the argument is that you can't simply let anyone defend a law they voted for because A) too many people and B) they have no legal obligation to the state. Let's say I decided to defend Prop 8 and ran up $300 MILLION in legal fees, who pays? What if I argue the case poorly and a decision sets a precedent that costs the state BILLIONS down the road? Those opposing Prop 8 standing argue that because there is no accountability, the Court should not allow folks to defend the ballot initiative just because they have an interest in it. The argument is that the alleged harm (seeing a law you voted for invalidated) is too tangential and difficult to prove to allow for standing.

Most experts that I've read feel that the Justices won't have 5 votes for anything on the question of standing (meaning the case basically never happened and the 9th Circuit opinion will stand). If they do get 5 votes, the standing question will be the most important part of the ruling for legal rules and procedures moving forward. Because it could potentially be so huge, I suspect the Justice won't get 5 votes to endorse any one option.

cmptrnerd69 karma

Thank you for this reply. I think the issue of standing in this case is just as interesting and important as the same sex marriage issue. Could you link to some of the expert's columns/blogs/etc... that you've read on the issue?

If the justices rule that the defenders of prop 8 don't have standing are there any other groups that might be able to argue that they do?

cmptrnerd66 karma

that even if the proponents lacked the right to defend the initiative, a state official who doesn’t want to perform same-sex marriage would have such a right.

Interesting quote from the Chief Justice. Being required to enforce a law you disagree with is enough standing to challenge the law in court. So all the proponents of prop 8 would have to do would be to find someone that didn't want to perform a gay marriage, get two same-sex people to attempt to be married by this person, and we go through this whole process over again?

ConstitutionalLawyer8 karma

One Justice does not a majority make, but yes, if what CJ Roberts said was the holding, that's exactly what would happen.

The difference would be that Prop 8 wouldn't exist at the time, so the challenge would be to the existing law that legalized same sex marriage. It would be a totally different case with a totally different issue that would have very different outcomes (no change to outlaw gay marriage, for example).

strmnorm17 karma

I appriciate your ama. It has been a good read so far. Since you're here I've been wanting to ask where is it constitutional to not allow athiests to run for office? know of a few states that do this (Texas for example)

ConstitutionalLawyer44 karma

Laws on the books don't mean laws being enforced. Such laws are relics of a bygone era - nobody could ever enforce them today. If they did, the law would get struck down extremely quickly. Goofy laws like that are the vestigial organs of our legal system.

strmnorm12 karma

Ok, good news then.

Since we have laws that we are confident is unconstitional, why is there no people ( that I know of) cleaning out the law books? The constition as well as the laws arround it are already a maze difficult to decifer. Why have garbage laws to fill it up even more?

ConstitutionalLawyer37 karma

Standing. I can't sue to get a law thrown out unless I'm harmed by it. If a law is never enforced, nobody is ever harmed.

As for elected officials doing cleaning out of old laws, relevant legislatures and congressmen are too busy to deal with it.

Gravy-Leg__11 karma

Do you think police should be able to search cell phone contents without a warrant when a person is placed under arrest?

ConstitutionalLawyer28 karma

Me, personally? Absolutely not. I believe it to be an unconstitutional search and seizure under the 4th Amendment that requires a warrant to be lawful.

Whether SCOTUS shares that opinion, I'm not so sure.

aforu10 karma

After reading some of this AMA and much of BolshevikMuppet's excellent commentary in another related thread, it strikes me that the common sense of justice that an ordinary intelligent person has does not lend itself towards understanding the procedure that takes place in one of these cases. In other words, the specifics of Prop 8 case is not strictly about 'Should gay people be allowed to get married,' though the public discourse certainly centers on that topic. It seems like most of the cynicism and anger about the country, laws, lawyers, the Supreme Court, etc, stem from convoluting a discussion about the content that people actually care about, like what should people be able to do or what would be best for them, with what the court actually cares about, like what is constitutional for a state to do based on standing, scrutiny, classification, etc., regardless of how good the law actually is for anyone. Can you identify, and hopefully clarify the misconceptions that most people seem to have about how the Supreme court, and perhaps the law in general, actually works?

Edit: Like this would be a good one: "Discrimination, legally, is allowable so long as it is justified. The level of justification required depends on the group that is being discriminated against and the nature of the discrimination."

ConstitutionalLawyer4 karma

There's an encyclopedic tome of books I'd have to write to even scratch the surface on that question . I'll try and come back to this later tonight when I have some free time to try and answer it but more specific questions would help.

Also, where is BolshervkMuppet? He was fantastic.

max_nukem9 karma

Does the Controlled Substance Act have a constitutional basis that trumps the 10th amendment? I don't see how the federal government can use their authority over states rights to regulate marijuana, or any other drug, within their own borders.

ConstitutionalLawyer30 karma

They did it by way of the commerce clause. The drug trade, even the illegal drug trade, has an effect on interstate commerce, which Congress is allowed to regulate. Accordingly, because they're allowed to regulate it, they have trump and pre-empt the state laws that would otherwise be protected under the 10th Amendment.

Gonazales v. Raich is the most recent case on point for that issue.

max_nukem7 karma

Thanks, that explains a lot. Does that mean that the Feds can do nothing to citizens that grow their own for personal consumption as long as the state they reside in allows it?

ConstitutionalLawyer27 karma

You'd think so, but no.

A case called Wickard v. Filburn decided in 1942 held that even an individual who is doing something exclusively for their own consumption, in the aggregate with other similar individuals, has an impact on commerce and therefore the federal government can regulate it.

So in your example, marijuana growth for personal consumption, in the aggregate, affects commerce, so Congress gets a say.

TeslaIsAdorable13 karma


ConstitutionalLawyer22 karma

So if at some point Congress decides to tax vegetables, I'm no longer allowed to grow my own without a permit, even if I'm consuming them myself?

Yes. The limiting factor is the voice of the electorate being grumpy about it, not Congress' legal authority to do it.

Once you take drugs out of it, it just seems rather silly.

Many people would agree with you.

gigadude3 karma

Do you think the recent ruling on obamacare challenges the constitutional basis for using the commerce clause to support the controlled substances act?

ConstitutionalLawyer3 karma

No because there was no 5 Justice majority for anything concerning the commerce clause. The decision saw the ACA as a levied tax through Congress' taxing power, not a regulation through their commerce power, so it would have no impact on the CSA.

hrichardson8 karma


ConstitutionalLawyer15 karma

Yes. It was very surreal.

mojoSOdopes7 karma

This is one of the best AMAs I have ever witnessed in action. Well-written, responses on responses on responses, and quick ones at that. Thanks so much for your time.

ConstitutionalLawyer5 karma

Happy to help.

EvilTech51507 karma

Lets talk in practical terms here. Marriage for heterosexuals has been on the decline for decades. This means less divorces, and less money for the divorce lawyers.

Now gays, most of them are dual income no kids, which means fewer snarls in the form of custody battles, and a quicker payout for a divorce settlement.

Really in the end, the supreme court needs to think of the lawyers. If they can't make money from divorces, what are they to do ? Defend violent meth heads, and deranged bath salts abusers who sliced someone up ? Or get by on preparing wills for baby boomers at $180 a pop(yawn).

What say you to all this ?

ConstitutionalLawyer32 karma

I should buy a boat.

RobbieGeneva7 karma

If DOMA is proved unconstitutional, that would automatically kill prop 8, right? ALSO, why do we have to wait until June to hear their decision?

ConstitutionalLawyer30 karma

No. DOMA and Prop 8 are not related whatsoever. DOMA asks the question of whether the federal government can discriminate against same sex couples for purposes of tax/benefit treatment. Whether the federal government has to recognize same sex marriages that occur in states where it is legal is the question before the Court.

If the Court says DOMA is illegal, that doesn't affect Prop 8 because Prop 8 concerns whether a state ballot initiative that outlaws gay marriage is constitutional under the 14th Amendment's equal protection clause. DOMA can be illegal and Prop 8 can be legal - they are two different legal issues.

RobbieGeneva6 karma

Thanks. Confusing, but thanks :-) Which one is more important for legalizing gay marriage?

ConstitutionalLawyer23 karma

If the Court goes above and beyond in Prop 8, they could declare that these types of constitutional amendments are unconstitutional because gays are a protected class under the Constitution. That would invalidate ALL existing state amendments banning gay marriage and prohibit any from ever being passed.

That is highly highly highly unlikely to happen.

They can do a similar thing in the DOMA case but that is even less likely since the Court rarely goes beyond the question and the question is "is DOMA constitutional?" If the answer is no, that doesn't make the opposite of DOMA constitutional, it just means that DOMA is no longer kosher.

In terms of policy wise, which is better for legalizing gay marriage - depends on who you ask. Assuming things go as I expect (punt on Prop 8, nullifying it, and striking down DOMA), the DOMA decision, since it will force the federal government to recognize same sex couples married in states where it is legal.

Blue_Collar5 karma

So if DOMA gets ruled unconstitutional then can homosexuals get married in states with gay marriage while residing in states without and still have their marriage federally recognized?

ConstitutionalLawyer18 karma

Yes. Federally recognized but not state recognized.

RobbieGeneva4 karma

WOW. So that would be such good news! I heard something about not knowing the answers until June? Or did I misinterpret something?

ConstitutionalLawyer6 karma

June is right.

agentsoapbox3 karma

Follow-up question: Isn't one of the consequences of DOMA that it denies the full faith and credit clause to homosexual couples? As it stands, I can get married to a woman (I'm a man) in virginia, and I'm still married when I come home to florida. But I can't get married to a man in Iowa and and still be married in Florida.

Wouldn't overturning DOMA be a defacto defeat of Prop 8 since in effect, people can get married in Washington on the weekend and just come back home?

compson14 karma

OP will probably get to this, but the full faith and credit issue is not before the court on this go-round.

IMO, this is the real DOMA issue, but as usual if the court can avoid making sweeping changes to law ("All marriages are good in every state."), then they will. ("DOMA is unconstitutional because Equal Protection.")

ConstitutionalLawyer10 karma

It's not before the Court but they can certainly decide to address it if they want. I think the full faith/credit clause IS the dispositive issue here and I'm personally blown away that courts have refused to address it. But again, that's just me.

PresidentRoostervelt6 karma

Care to speculate on the outcome? How do you think the court will rule?

ConstitutionalLawyer12 karma

Again - just my thoughts:

Prop 8? Don't know. Probably punt in one way or another. Listening to argument, it was hard to see any consensus. I don't think they'll reach the merits, either deciding it on jurisdictional grounds or failing to come to any agreement.

DOMA? Struck down. Think this one is pretty easy.

EnclosedInfinity6 karma

What is the argument for the constitutionality of Prop 8 and DOMA? I have heard the old argument "because it isn't what God wants," but that should be disregarded because of separation of church and state. So if we get rid of that argument, what is the constitutional argument for the legitimacy of Prop 8 and DOMA?

ConstitutionalLawyer10 karma

Discrimination, legally, is allowable so long as it is justified. The level of justification required depends on the group that is being discriminated against and the nature of the discrimination.

The arguments presented to justify this set of policies (check out the transcripts, briefing, and oral arguments to see/hear them made) were that the state has an interest in promoting procreation, male/female child rearing environments, etc.

JasonStrydor6 karma

What's your favorite beer?

grocket5 karma

Do you wish it went more like this? I do.

ConstitutionalLawyer10 karma

The Onion gets Justice Ginsburg like no other organization in the world.

stringrbelloftheball4 karma

Recent supreme court ruling involving using police dogs at a front door now requiring a warrant.

Can you please explain it to me like I'm 5?

Thanks for the AMA

ConstitutionalLawyer13 karma

Police officers cant bring a drug dog to your door without a warrant to search the house.

The problem arose when a drug dog came up to a house, alerted for drugs, and police used the alert as probable cause to search. SCOTUS said you need a warrant to bring the dog.

tomzilla12344 karma

What's the average amount of time between SCOUTUS hearing arguments on a case and presenting their decision? I imagine this could vary wildly, but I'm curious how soon we might be able to expect a ruling on prop 8 or DOMA.

ConstitutionalLawyer14 karma

It does vary. Expect rulings on these cases in late June.

obscurethestorm4 karma

Can you tell me what the stance on states voting on marriage was when it was decided that interracial marriage would be allowed? I'm at school (coincidentally about to go to Constitutional Law class) and am crediting from my phone. Wouldn't the same standard from then apply to now? If not, why? Thanks for doing this AMA!

ConstitutionalLawyer7 karma

I don't know it off the top of my head but I'll see if I can look it up later.

In terms of the distinction - the argument is that race is fundamentally distinct from sexual orientation legally. Race is an "immutable characteristic." Sexual orientation, as far as the law is concerned, is not. Hence the different standards and levels of scrutiny.

vomitfreesince934 karma

What would have to happen for the SCOTUS to recognize homosexuality as an immutable characteristic? What is the likelihood they would? After all, this isn't an issue state courts can handle, is it?

ConstitutionalLawyer9 karma

States can do it independent of the Court. Places like California already have.

If SCOTUS recognized homosexuality as an immutable characteristic, sexual orientation would become a protected class meaning that it would receive heightened scrutiny. This would make pretty much all laws discriminating on the basis of sexual orientation at the federal and state level, from regulations to constitutional amendments, unconstitutional. It would nullify all marriage prohibitions currently existing (once the appropriate cases made their way through the systems) and prohibit any from being written (again, with some challenges necessary here and there).

I don't think SCOTUS is anywhere close to being ready to do that but I do think (personal opinion) that it will happen eventually.

vomitfreesince933 karma

Wow, from what you're saying, it sounds like defining homosexuality as an immutable characteristic should really be the main goal of this case and all similar ones. Thanks for the response.

ConstitutionalLawyer5 karma

It is and proponents have argued it as such - doesn't mean the judges will listen or act on it though since its not necessary to reach a decision.

bradthe3 karma

Do you/ Have you studied any other nations constitution? I'm currently studying constitutional law at university and find it fascinating! have you studied the UK's constitution and seen how different it is?

ConstitutionalLawyer5 karma

The UK doesn't have a Constitution, so its pretty different. Yes, I took some courses in comparative constitutional law while in law school - it was a fun intellectual exercise but it wasn't something that particularly interested in me.

dickiefresh3 karma

Maybe a long shot but.... What you do is my dream job. I majored in Poli Sci, currently work in a law firm, and am applying to law school this fall for the fall of 2014. My goal is to be a defense lawyer, civil rights attorney, maybe work for the ACLU, something along those lines. I believe way too many people have their lives used and abused because they just don't know any better.. but anway..

Any tips/advice to get into this career? Law schools to look at, jobs to take, really just anything. I am super interested in it, its really all I've ever wanted to do. Any insight could help. This comment is kind of all over the place, sorry I'm really intrigued but busy at work.

ConstitutionalLawyer7 karma

Shoot me a message and we can chat about this over time since I probably won't get to this in sufficient detail today.

libertyindeath3 karma

In the opening round of questioning yesterday (regarding standing), Justice Ginsberg asked whether SCOTUS has ever granted standing to proponents of ballot initiatives.

At issue here is whether the litigants have sufficient concrete and particularized injury; stake in the outcome beyond merely ideological interest; whether they adequately represent an aggrieved party; and other prudential concerns related to standing.

So, what about that? I recognize that Lujan, Richardson, and other precedent limit standing in this way. But, here we're speaking of the general interest of the voting populace that their will, experssed through ballot measures, come into law. No single proponent of a ballot measure has a "proprietary interest" (Ginsberg words) in the enforcement of their ballot measures... but in that, the prudential limits on standing produce a counter-majoritarian and even anti-democratic ring to it.

I personally think Prop 8 is archaic and objectionable, and I hope my state soon recognizes a full right of marriage to any couple who wishes for it. But, I'm more concerned about the right of ballot access as a means of petitioning and redressing government.

Without federal standing to review/ enforce state ballot questions - and since the acts themselves would not have the imprimatur of Congress authorizing a suit - the aggrieved plaintiff would be caught in the very state courts which may be subject to the political factions which are his ideological rivals.

I don't see an easy way out of this standing issue, unless the Court recognizes limited standing with ballot questions arising from states. This would open a "public interest" avenue for the federal courts which does not now exist, even for those organizations to which I'm sympathetic.


ConstitutionalLawyer6 karma

This is really the fascinating question for me as well and you do a fantastic job of presenting it - thanks for the write-up!

I agree with your reasoning on why they have to find standing to protect the ballot process but I don't think there is any way out, much less an easy way.

This conundrum is the #1 reason I think the Court will fail to find a majority for anything. I simply don't see a standing answer they can all agree to here and bunch of 3-4 judge opinions won't do any harm either. It's obviously an issue they're going to have to address eventually but I don't think they'll do it now. The Court is loathe to recognize new standing, even in a limited context, but this is an issue that has to be addressed since leaving it with no standing means exactly what you argued - that the ballot initiative is subject to the whims of the executive and made completely irrelevant.

FranzVonSoxhlet3 karma

Re California - it seems like they are a victim of their own laws by having the amendment passed by the people. Which leads me to ask my question:

Can a constitutional amendment really be unconsitutional? What would happen if a state or the federal government hypothetically ratified an amendment like "Everyone must say that their favorite color is blue when asked" which clearly violates the first amendment. Could that amendment be declared unconstitutional?

ConstitutionalLawyer9 karma

State constitutional amendments can absolutely violate the federal constitution and be struck down.

Federal constitutional amendments will be read not to conflict with other amendments, so in your example it would be understood not to violate the First Amendment, since we wrote it knowing full well what the First Amendment protects and our passing it means we all agree it doesn't protect that.

StellaNeedleman2 karma

What are your thoughts on Millbrook v. United States? Do you think this decision may finally bring about prison reform? How far do you think this decision will reach?

ConstitutionalLawyer5 karma

Not familiar enough with Millbrook to give an answer but considering the decision was just handed down today, I'd say its way too soon to tell.

saltandvinegar12 karma

This is probably an an easy question to answer, but in the simplest terms could you point out to me what makes these issues unconstitutional? I believe it is, and I personally think it violates peoples 1st amendment rights, but I'd like a better understanding of why it's so. Thanks!

ConstitutionalLawyer11 karma

14th Amendment Equal Protection Clause.

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

The argument is that the state is denying equal protection by prohibiting homosexuals explicitly from utilizing certain state benefits (marriage license, tax breaks, etc)

douggold112 karma

What exactly is the Supreme Court examining with the Prop 8 case -- the ballot initiative itself or the CA state constitution? By that I mean, are they examining whether or not the ballot initiative was constitutional to exist in the first place, or since the initiative passed and changed the CA state constitution, are they examining whether or not the state constitution's new content is acceptable under the US constitution. And isn't it strange either way? Is there a precedent for either?

ConstitutionalLawyer9 karma

SCOTUS has no power over state law or state constitutions. The question is whether Prop 8 violates the FEDERAL constitution (14th Amendment).

What do you mean is there precedent for either? There are plenty of cases where the Court has struck down state laws/amendments as unconstitutional. In 2003, they struck down a Texas sodomy law that banned gay sex because it violated the federal constitution (http://en.wikipedia.org/wiki/Lawrence_v._Texas). In 1996, they struck down a state ballot initiative that discriminated against homosexuals in Colorado (http://en.wikipedia.org/wiki/Romer_v._Evans) - so it definitely has happened in the context of gay rights.

Same sex marriage? That's a new one.

douggold111 karma

By precedent for either I meant to ask...

  1. ...if there's a difference between ballot initiatives and a legislature passing a law in regards to SCOTUS' ability to look at them. Isn't a ballot initiative a form of direct democracy, and therefore something superior to a legislative law? Or am I completely making that up?

  2. ...I don't recall the specifics but I remember there was a reason why the backers of Prop 8 specifically wrote it to change the CA state constitution, which obviously not all ballot initiatives do. So I was wondering if the fact that, after Prop 8 passed, forbidding gay marriage was part of the CA state constitution had any relevance for SCOTUS.

  3. What happens if a state adds something to their constitution that conflicts with the US constitution?

ConstitutionalLawyer6 karma

  1. Ability to look at them? No. Ballot initiatives that are passed become laws so they are treated as laws. The reason Prop 8 is such an issue is because the government, whose job it is to protect/enforce laws, said they weren't going to. The law itself is within SCOTUS' purview.

  2. Doesn't matter. Any law that is alleged to violate the federal Constitution can be reviewed by SCOTUS. SCOTUS can't rule that the amendment violates California law/constitution, only CA Supreme Court can do that (and they did and upheld Prop 8). SCOTUS rules based on federal law/constitution.

  3. SCOTUS knocks it down. States can be MORE protective (make it harder for government to infringe on a right) but they cannot be LESS protective (make it easier for government to infringe on a right). SCOTUS reviews to make that call as the high court for all federal issues.

BlinkBlink92 karma

On the 2nd amendment. People call me nuts for bringing this up, same people who get up in arms aboult the "gov trying to take away their guns". But.

I at the moment can not pass a medical background check for a fire arms ID permit. This is because I had been in treatment for depression through my teens. Now as an adult I am on Paxil and Adderal For ocd and adhd. Basicly I hand in an application and I am instantly flag. How can that not be consideried Discrimination. I put this in the same terms as the gay marrige issue. Since being gay is not a choice neither is Depression ocd adhd or anything.

ConstitutionalLawyer8 karma

Discrimination is perfectly legal when the government can meet its burden to justify that discrimination. The level of burden depends on the class of person being discriminated against.

In your case, individuals with a mental health history are not a suspect class, so the analysis goes through rational basis review, which ask whether the government has any reasonable justification for the discrimination and that the discriminatory law is related to a government interest. This standard is pretty much a rubber stamp that lets the government do whatever it wants.

The government would simply argue that it has an interest in making sure that individuals with mental health issues don't get access to firearms and a mental background check is a reasonably way for them to do so. That's about all it would take for almost any court to uphold the discrimination.

maxstolfe2 karma

As a sophomore in college transferring from community to a university this fall, I've been looking more and more at constitutional law as a major. I love politics and history, but I fear it's going to be too time consuming and expensive.

These, are my questions (dun dun):

How do you feel about your job?

How has home life been affected? My sister and her husband (one's civil and the other is matrimonial) are both lawyers and, suffice to say, home life has a taken a serious toll.

What colleges would you recommend in the north east that are worth a look?

Not to get into your personal finances, but is the loan debt worth the career path?

I have many dreams in my life, from media to politics to education, so do you think it would be worth it for a degree as heavy as that? (I'm not trying to ask for life advice, I'm just trying to gauge how I should be spending my time.)

I know I have more questions, but that's all I can think of right now. Thank you very much!

ConstitutionalLawyer3 karma

So, constitutional law isn't an undergrad major for me, its a legal degree + academic work and work experience. You need to be a lawyer to do what I did/do so I'm not sure I can accurately answer your questions. Assuming you mean becoming a lawyer, my answers are as follows.

Feel about my job?

It was a bit slow for me when I litigated so I left to pursue more active/engaging work. I loved the work but it was all memos and briefs and very little person to person interaction, which I needed.

Home life

Varies wildly depending on location, firm, job. My significant other and I are both lawyers. Hours can vary from 50-100+ hours a week. We make it work and there hasn't been much of a toll but both sides have to be ok with work being potentially all consuming for weeks on end.


No idea on college recs - study what you are interested in undergrad, there is no degree that makes you more or less marketable to a law school.

Loan debt worth it?

Depends on the school and career track you hope for. Is going to a T14 law school worth it? I can't imagine a situation where I would say no, just for the networking. Going to the #50 law school with plans to work as a public defender? Maybe worth rethinking.

I paid for much of school but still walked away with over $100k in debt. It made it tough. Would I do it again? Probably, but its NOT a golden ticket by any stretch of the imagination. Take a serious look at employment opportunities and what they pay before committing.

Worth the degree?

I think the degree is absolutely worth it. It may be worth waiting to see if NY makes a 2 year option available for law school (I'd say absolutely do that). I came in not expecting to litigate, I just wanted the degree and paradigm shift. I got it and I'd do it again. I ended up doing a little litigation work but eventually moved away from it. I don't think a legal education can hurt you - its a question of whether the cost is worth it.

okjetsgo2 karma

If DOMA is repealed, can you comment on the impact this might have for same-sex binational married couples who are either in the US or currently living abroad due to DOMA? Thanks for your AMA.

ConstitutionalLawyer3 karma

If they got married in a state where same sex weddings are legal, they will be recognized by the federal government as legally married.

I imagine that if they were married abroad, they'd have to get the marriage validated in a state where it is currently legal but that is just speculation - I don't know the actual answer off the top of my head.

bhaller2 karma

How would I go about trying to generate and pass a law outlawing divorce (as it does irreparable harm to many)?

elechi2 karma

I have a question to ask you:

In cases of decisions like these, do you ever think the Supreme Court would ever change it's majority decision if a similar case was brought before it? (Assuming, of course, that they'd hear that sort of case again.)

ConstitutionalLawyer9 karma

No case or precedent is ever set in stone. Could the Court change Kelo? Absolutely. Will a Court change it? Depends on the Court an the case that they hear.

Do I personally think this Court would change their view on it? No, because swing voter Kennedy was in the Kelo majority.

The thing with Kelo is that the state side response to it was so powerful (most states have laws that say Kelo does not apply here), its unlikely to become an issue of that scale again - meaning the Court is unlikely to take it. Contrary to popular opinion, the Court doesn't seek out controversial cases to take - if they can avoid a topic, they absolutely will. The fact that Kelo was so recent also makes it less likely that we'll see a change to it anytime soon.

elechi1 karma

Thank you for the response. And what legality could the states possible offer to usurp power from a supreme court's decision? Is that really possible, or just hyperbole posturing?

ConstitutionalLawyer10 karma

States are forbidden from being LESS protective of constitutional rights than the federal government - they can absolutely be more protective of individual rights.

A law that makes a government taking more difficult under Kelo is ok at the state level because it restricts the government rather than infringes on individual rights.

elechi2 karma

If that's true, how does the states (Virginia, Texas, North Dakota) additional anti-abortion laws made in recent years stand merit? If you functionally make it impossible to get an abortion in the state you reside in, could you still be considered upholding Roe v. Wade?

ConstitutionalLawyer6 karma

No and several of those cases are making their way through the system as we speak. Drawing the line on "substantial burden" IS abortion law, so they're fighting it out and well see where the judiciary stands as the fights get to higher and higher court levels.

SwooshySymbol2 karma

First, thanks for the AMA. I'm an undergraduate studying political science and economics. I hope to pursue law school after I graduate next May; I find constitutional law to be, from what little I know, the most intellectually stimulating legal field.

As regards legislative process, can you forsee any future revival of legislative "innovation" similar to the legislative veto provisions at issue in INS v. Chadha or the line-item veto act that was invalidated in Clinton v. New York?

ConstitutionalLawyer6 karma

Innovation? Sure. Constitutional innovation? Less likely. Most of the "innovation" I expect one would see would come internally with respective House/Senate rules. Because the Constitution gives the houses of Congress effectively free reign over how they conduct their business, the fixes will come from there since the Court gets little say (outside maintaining a broad concept of representative government).

I think Chadha was pretty final in its holding - I can't imagine a situation that would get the Court to reverse course on that (same with Clinton).

atomicavox2 karma

If SCOTUS decides to side step Prop 8 and not rule on it...does that mean it goes to the decision of the lower courts? Being which they ruled Prop 8 violates/goes against California's Constitution? Thank you for your time & this AMA.

ConstitutionalLawyer10 karma

Yes. If SCOTUS fails to come to consensus (5 Justice majority) or punts (standing/jurisdictional decision saying they can't hear it) the lower court opinion stands.

Basically, unless SCOTUS says Prop 8 is constitutional and overturns the 9th Circuit (a low likelihood outcome), Prop 8 will be invalidated.

KKIaptainKen2 karma

I am not a Constitutional lawyer so, as a rule of thumb, I often look at things in a "follow the money" sort of way. So lets talk about money.

Do you think that many people in state and federal government are against same sex marriage but are OK with "domestic partnerships" because of things like inheritance (where spouses almost always get the most by default,) Social Security survivor benefits and Veterans survivor benefits will go to a non-traditional spouse? Federal GI insurance? There must be other state and federal programs that include provisions for a "wife or husband," the gender of whom is assumed but not specified.

ConstitutionalLawyer5 karma

This is personal opinion but no, I think most of the opposition to SSM is moral/religious in nature.

The financial aspects are very hard to make an argument for legally (pro Prop 8/DOMA folks have been doing a very poor job of it so far at least). This is exactly how sex become a protected class, arguing over access to benefits. The Court basically said that "efficiency" or administrative proceedings, etc is insufficient to justify institutional discrimination.

I think DOMA will be the bellwether more than Prop 8 in the sense, since it will mandate that the feds have to recognize same sex couples legally married. The institutional momentum shift that will cause will make moving the legal argument forward at the state level much easier.

thisismyvoice2 karma

How is the Chief Justice selected? It's obviously not SC tenure, as CJ Roberts has only been on the court for about 7 years and there are other justices with 20+ years.

Thanks for the AMA!

ConstitutionalLawyer5 karma

Selected to fill the position by the President. The President can select a sitting Justice to fill the role or select someone else to fill it.

thisismyvoice2 karma

Wow. I could see that creating some resentment. Is it just a matter of when the CJ retires and the sitting President has the ability to install a CJ that he/she thinks will ideologically align with them? Perhaps a chance for the President to politically influence the court for future decades by choosing someone of a younger age?

ConstitutionalLawyer6 karma

Yep. Roberts was super young when he was appointed to replace Rehnquist. CJs are usually NOT promoted from within though, so its not really a surprise or an issue.

thatEMSguy1 karma

When will the Supreme Court make a decision?

ConstitutionalLawyer3 karma

Whenever they want. Probably June.

Marylandman1011 karma

I am thinking about minoring in constitutional law, what courses would I take to do so? (I know this doesn't have to do with doma)

ConstitutionalLawyer1 karma

Assuming you mean an undergraduate degree (can't minor/major in something at law school) then it depends on the courses offered by your school. I'd recommend speaking to the relevant adviser as they'll know far more about what they school offers than I will.

ecacn61 karma


ConstitutionalLawyer3 karma

Not missing anything, your argument is the same as the one presented - both being infertile was just the example they picked to discuss.

agsa851 karma

Do u believe a new constitutional amendment would have to be issued if the fed govt wishes to grant same sex-marriage throughout the country? My basis for this question is that the 14th amendment wasnt enough to grant women's suffrage; this required a new (19th) amendment. Also, is marriage considered a fundamental right by the Supreme court?

ConstitutionalLawyer1 karma

Not necessarily. Recognizing sexual orientation as a protected class would probably be enough.

Marriage is a fundamental right, this was recognized in Loving v. Virginia in 1967.

Hootinger1 karma

Is going to a non T-14 law school really worth it?

ConstitutionalLawyer3 karma

Depends on what you want to do and where you want to do it. It certainly can be but is far less of a sure thing compared to 10 or even 5 years ago.

Wazowski1 karma

Seems like a ton of analysts were shocked by the Affordable Heathcare Act ruling last year. What was your reaction at the time?

ConstitutionalLawyer6 karma

Equally shocked. The outcome wasn't as big a surprise as the reasoning (though still not what I expected). The reasoning came completely out of left field for me.

bromley11 karma

Do you fear that the current administration is ignoring the constitution and making a push to abolish the right to bear arms?

-a law grad in canada (where i wish we were lucky enough to have a real bill of rights)

ConstitutionalLawyer2 karma

No. Restricting certain kinds of firearms is pretty far away from "abolishing the right to bear arms" on the continuum.

Birdman_Harvey1 karma

Have you ever had (or heard of) any good Third Amendment cases? I only know of one.

ConstitutionalLawyer3 karma

I don't think its ever reached SCOTUS - I only know the Engblom case from the 80's and that was only 2nd Circuit I think.

nullsub1 karma

General question: I've listened to Nina Totenberg's recounts of Supreme Court proceedings for a while, and I'm always a bit mystified by one particular type of reasoning that shows up here and there.

In my (admittedly naive) view, SCOTUS is responsible for interpreting the the constitutionality of different legal events or documents. Why, then, do they spend so much time asking about the possible repercussions of their finding on one side or another? Shouldn't they be making the judgment based on an interpretation of the constitution's actual contents?

In other words, why does it matter what effect the decision on prop 8 might have on traditional values or on the ideal of the institute of marriage? Analogously, why does it matter what effect the decision on Roe v Wade has on mortality rates of mothers or the real impact on impoverished communities? Why does the court even consider arguments about the upshot from Citizens United?

To be clear: I'm asking just about the line of reasoning. I'm fairly sure I don't have a strict constructionist position, because I've studied language for a long time and I'm not so naive as to assume that there is such a thing as the objective meaning of a sentence. My issue is that, where there are disagreements between the justices on the interpretation of the words on a page, shouldn't the debate be carried out by defending one interpretation or another, and nothing else?

This could obviously lead to some harmful and undesirable consequences, but doesn't that just mean that the constitution is broken in some way and needs to be amended?

ConstitutionalLawyer2 karma

In a vacuum, you're right, SCOTUS should look at issues on a case by case basis. However, we don't live in a vacuum and they don't work in a vacuum so they have to take into consideration the policy impacts of their rulings. Their job is to maintain the judiciary and consistency of our legal system - sometimes that can influence the nature of a decision.

Also, often the government presents an argument alleging its interests to justify laws - there the Court is absolutely within its purview to inspect the potential impact of the argument they are making to see if it meshes.

Put another way - think of SCOTUS as a political institution charged with maintaining our legal systems consistency and fairness over time.

Bigred5031 karma

What do you think of the recent headlines (saw it first on reddit, don't know the link sorry) that a police officer can use a drug sniffing dog as grounds for a search warrant if it detects drugs outside your house. The idea that an officer can stop by and just say the dog hinted at something and use that for a warrant is appalling. If I find the article I'll be sure to link it!

ConstitutionalLawyer6 karma

You're thinking of Jardines, decided yesterday. It actually said that cops CAN'T do that. They need a warrant to bring a dog to your door.

xvolvox1 karma

What are some of the things we need to know about when recording police officers.

ConstitutionalLawyer3 karma

Check your relevant state laws, this is not an issue that has been addressed at the federal level.

xaudionegative1 karma

Is there a reason why there are no laws in place to prohibit a religious institution, or an institution from another state, to donate money to a campaign for another states proposition. I could understand an entity being able to donate to a national campaign, but why is an institution, like the Mormon Church, allowed to fund the campaign for a California state proposition while being based in Utah?

ConstitutionalLawyer2 karma

Same reason there are no laws banning you or I donating to campaigns - First Amendment.

Muaddibisme1 karma

I feel that DOMA and Prop8 can't possibly be legal. I am not entirely sure how any argument gets past these two statement. I would love your input here.

1) I am yet to hear an argument against same-sex marriages that isn't directly based on a religious argument. No matter how christian our country is, the constitution directly forbids the creation of law based on religion. How is this not struck down as un-constitutional just because of that? Wouldn't the first requirement before defending DOMA or Prop8 be to show that it is not a religious argument? (which it is)

2) Beyond federal anti-discrimination laws, many states have created laws that specifically prohibit discrimination based on sexual orientation, including California. Additionally several courts have judged that existing anti-discrimination laws apply to sexual orientation even when it is not stated. However Prop 8 directly discriminates against sexual orientation. Disregarding the label of marriage, a union of 2 people does create a joint legal entity that as its own privileges such as tax incentives. How is it that the government is allowed to discriminate based on sexual orientation when no one else can? Shouldn't they be following the same laws they put into place for everyone else?

For those who do defend he right to discriminate against homosexuals... Its fine with me that you think homosexuality is 'icky' but it will never disappear. No law will stop people from having sex with whoever they want. You can look at areas where homosexuality is met with death. In those places homosexuality still exists. If the very real threat of death is not enough to stop people from expressing their homosexuality, nothing will be. Its time for you to grow up and tolerate those around you who are different. You don't to like it, you don't have to participate, you just need to not be a dick. Humanity has gone too far forward to start walking backwards now.

ConstitutionalLawyer4 karma

  1. See my response elsewhere in this thread about the government's interest in promoting child birth, healthy child raising environments, etc.

  2. Prop 8 isn't a law, its a constitutional amendment, so that makes it a little weightier and more difficult to deal with in that sense. The government is prohibited from discriminating against individuals based on sexual orientation - but the CA constitution trumps that law on the question of SSM. Hence, the issue.

Pooppaws1 karma

When do you think we would have an answer from the court? Time frame?

ConstitutionalLawyer1 karma

Late June. Probably on the last week or two of their session.

DeeeezNuuuutz4200 karma

Is weed ever going to be legal or am I going to be considered a criminal forever?

ConstitutionalLawyer14 karma

That's going to be a decision for the legislative and executive branches more so than for the courts.