Constitutional Law – Page 18 – Marquette University Law School Faculty Blog

Marquette Students Study Comparative Law in Germany

Post author:Edward A. Fallone
Post published:July 27, 2015
Post category:Constitutional Law International Law & Diplomacy Marquette Law School Public

This is week Two of the Summer Session in International and Comparative Law, taking place in Giessen, Germany. Pictured to the left are my students in the class on Comparative Law. They come from Mexico, Peru, Senegal, Brazil, Zimbabwe, Spain, Moldova, Vietnam, the Slovak Republic and, yes, even Wisconsin. Along with my co-teacher, Thilo Marauhn from Justus Liebig University here in Germany, we have been comparing the constitutional systems of the United States and Germany, and also contrasting the quasi-constitutional structure of the European Union. It may not look like it in the photo, but we are certainly having a great deal of fun.

Other classes this session include International Economic Law & Business Transactions, The Law of Armed Conflict, and International Intellectual Property Law. The faculty come from the United States, Germany, Lithuania, and Great Britain. The faculty are all experts in their fields and, judging from our dinner tonight, we all share an appreciation of German beer.

The Initial Appeal of Chief Justice John Roberts’ Dissent in Obergefell v. Hodges

Post author:Lisa A. Mazzie
Post published:July 8, 2015
Post category:Civil Rights Constitutional Interpretation Constitutional Law Human Rights Judges & Judicial Process Legal History Political Processes & Rhetoric Public

Rainbows abounded on the morning of Friday, June 26, 2015, when the United States Supreme Court held 5-4 that same-sex couples have a constitutional right to marry and a right to have their legal marriages recognized in every state.

The Court’s decision in Obergefell v. Hodges was not unexpected. The divide in the Court, too, was not unexpected: Justice Anthony Kennedy wrote the majority opinion for himself, Justice Stephen Breyer, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Sonia Sotomayor.

(An interesting side note: Justice Kennedy, a 1988 Reagan nominee, has authored all four of the major SCOTUS cases on lesbian, gay, bisexual, and transgender (LGBT) rights: Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and now Obergefall v. Hodges. As well, three of those cases were handed down on June 26—Lawrence on 6/26/03; Windsor on 6/26/13; Obergefell on 6/26/15).

When I first read the Obergefell decision, I found myself skeptical. Make no mistake: I fully agree with and welcome the holding. However, I was concerned about the Court’s reasoning. My first thought, upon reading the opinion, was to wonder why the Court did not base its holding more on the Equal Protection Clause, like Judge Richard Posner did in his opinion in Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014). That seemed to me to be the easiest argument. There is simply no compelling justification for the State to distinguish between opposite-sex and same-sex couples when it comes to marriage.

So, when I got to Chief Justice John Roberts’ dissent, it initially made some sense to me, and I could envision its appeal to many others.

The Problem with Justice Thomas’s Dignity Argument

Post author:Anna High
Post published:July 2, 2015
Post category:Constitutional Law Judges & Judicial Process Public U.S. Supreme Court

Justice Thomas, in his fervent dissent to the Supreme Court’s decision to invalidate same-sex marriage bans, has some interesting things to say about the concept of dignity. His view of human dignity is that it is innate and therefore inalienable: “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.”

The punchline, of course, is that the majority’s reasoning, which relies heavily on a Constitutional reading that sees dignity at the heart of liberty and the Due Process Clause, is flawed – gays and lesbians are not deprived of dignity (and therefore liberty) by their inability to marry, because “the government cannot bestow dignity, and it cannot take it away.” Essentially, Justice Thomas says, as long as the state leaves me alone, my liberty and dignity are intact.

Justice Thomas’s invocation of slavery and internment to illustrate his qualms about the dignity argument arguably undermines the moral force of his point. Moreover, it rests on a narrow and theoretical concept of dignity.