Constitutional Adjudication and Social Division – A Judicial Perspective

I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights.

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What Did an Ex-Girlfriend, a School District Resident, and a Company Share in Common? A Round-Up of First Amendment Cases Distinguishing “Content-Based” from “Content-Neutral” Speech Restrictions

Constitution & GavelIt’s not every day that a boyfriend-girlfriend spat results in a First Amendment challenge.

The Fourth District Court of Appeals in Florida recently reviewed an appeal from an ex-girlfriend who was prevented from telling all by her ex-boyfriend’s temporary restraining order (TRO). Vrasic v. Leibel (2013 WL 85412). After they broke up, the ex-girlfriend created a website to pre-sell a book about their relationship. She also posted an excerpt containing defamatory statements about him. A lower court granted the ex-boyfriend’s demand for a TRO. The Court of Appeals reversed to the extent that the TRO prevented even defamatory speech on the theories that it was a content-based prior restraint on speech and that the proper remedy is an action for damages.

When analyzing First Amendment free speech challenges, courts first decide if the speech restriction is “content-neutral” or “content-based.” This threshold distinction drives whether a government restriction of speech deserves more exacting scrutiny by courts. The government is unlikely to prevail where the restriction is content-based. But content-neutral restrictions are less problematic and are often permissible.

Deciding if a restriction is content-based or content-neutral is a tricky matter. A content-based restriction will usually target speech directly, while a content-neutral one will affect speech only incidentally. Because the assessment is fact-specific, a review of recent cases making this determination may be the best way to shine a light on the distinction.

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Time to Finally Pass the Equal Rights Amendment?

Equal-Rights-Amendment-imageIn 1776, as the founders were meeting to form the new government for the nation that would become the United States of America, Abigail Adams wrote to her husband John Adams and asked him “to remember the ladies” while drafting the governing documents.  She continued,

[B]e more generous and favorable to them than your ancestors [have been].  Do not put such unlimited power into the hands of husbands. . . . [I]f particular care and attention is not paid to the ladies we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

Quoted in Susan Gluck Mezey, Elusive Equality:  Women’s Rights, Public Policy, and the Law 5 (2011) (internal citations omitted).

John Adams responded, “I cannot but laugh . . . .” Id. To Mr. Adams, this was the first he’d heard of women’s possible discontent with the status quo.  “[Y]our letter was the first intimation that another tribe, more numerous and powerful than all the rest were grown discontented.” Id. For whatever “power” that Mr. Adams suggested that women had, it clearly wasn’t enough, for the new Declaration of Independence and Constitution failed to give any express (or even implied) rights to women.

Mrs. Adams responded to her husband, “I cannot say that I think you are very generous to the ladies; for whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist on retaining an absolute power over wives.” Id.

Continue ReadingTime to Finally Pass the Equal Rights Amendment?
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