We Have Met the Other and He Is Us (Law Professors)

In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21).

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Housing Discrimination in New Berlin?

The current controversy regarding “affordable housing” in New Berlin illustrates the weakness of federal law regarding housing discrimination based on socioeconomic class.

By way of backdrop, New Berlin is a suburb southwest of Milwaukee on the eastern edge of Waukesha County.  When a developer came forward with plans for low-cost rental housing in New Berlin, some members of the City’s largely white, bourgeois population expressed opposition.  New Berlin’s Plan Commission then hastily nixed the affordable housing idea.  This led in turn to an investigation by the United States Department of Justice’s Civil Rights Division. 

I anticipate the investigation will not lead to legal action.  No information has emerged suggesting New Berlin’s actions were explicitly aimed at racial or ethnic minorities, and this is significant when federal law is applied.  The federal Fair Housing Act, for example, was enacted with race and ethnicity rather than socioeconomic class in mind.  In addition, while race is surely a viable basis for an equal protection argument under the Fourteenth Amendment, socioeconomic classifications are not “suspect” and therefore can be justified with a conventional claim of rationality.

Has New Berlin engaged in housing discrimination by excluding affordable housing and the poor and working-class people who might rent such housing?  It appears that the dominant ideology as re-packaged by the federal law offers little help when facing exclusionary practices geared to socioeconomic status.  Under the law, the United States has no class.

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Legal Legitimization: Recent Court Cases and the LGBTQ Reality



Lately, courts all across the country have been standing up to religious (or sometimes what’s called “moral”) bias against the LGBTQ community. In one way, it is not surprising that there have been so many recent cases, because such bias is a pervasive part of the legal reality members of LGBTQ community face on an everyday basis. Nonetheless, theses sorts of court decisions seem to be, at this particular moment in time, flying out the doors of courthouses all over the country. I’ll take a moment to hit some of the high points before getting down to the real question: does it even matter?

In March of this year, a federal judge held that a lesbian teen’s First Amendment rights had been violated when the Itawamba County School District refused to allow her to bring a female date to the prom. The district had banned same-sex couples at the prom in the past, but Constance McMillen implored them to make an exception. The district refused, and McMillen, represented by the ACLU, sued them on First Amendment grounds. The federal judge agreed that her rights had been violated but refused to grant her request that the school still sponsor a prom to which she could bring a female date.

In another federal case, in July, the United States District Court for the District of Columbia ruled that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Section 3 reads as follows:

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