U.S. Supreme Court – Page 13 – Marquette University Law School Faculty Blog

Supreme Court Roundup Part One: Obergefell v. Hodges

Post author:Edward A. Fallone
Post published:October 5, 2015
Post category:Civil Rights Constitutional Interpretation Constitutional Law Judges & Judicial Process Marquette Law School Public U.S. Supreme Court

Today marks the beginning of the United States Supreme Court’s 2015-2016 Term, and coincidentally it also marked my participation in an annual event at the Marquette University Law School entitled “Supreme Court Roundup.” Along with Cato Institute Scholar and Supreme Court expert Ilya Shapiro, I was invited by the Law School Chapters of the Federalist Society and the American Constitution Society to share my perspective on three cases from the Supreme Court’s docket last year. The cases we discussed included Obergefell v. Hodges (the “Gay Marriage case”), King v. Burwell (the “Obamacare case”) and Yates v. United States (the “fish case”). Thanks to the law students for the invitation and a special thank you to Mr. Shapiro for his participation. What follows are my prepared remarks on the Obergefell case.

I call this case “Thurgood Marshall’s Revenge.”

In Obergefell v. Hodges, the Supreme Court held that state laws denying marriage licenses to same sex couples violated the Equal Protection Clause of the United States Constitution.

Justice Kennedy’s majority opinion in Obergefell is notable for what it does not talk about. The majority opinion does not rely upon the theory that marriage is a fundamental right and that therefore state laws infringing upon the right to marriage must be subjected to strict scrutiny. Nor does the majority opinion rely upon the theory that homosexuals are a suspect class, thereby subjecting state laws that treat homosexuals different than heterosexuals to strict scrutiny under the Equal Protection Clause.

The methods by which the Court has traditionally determined whether to apply heightened standards of review to legislative acts – strict scrutiny, intermediate scrutiny, heightened rational review – are what are known as “heuristic devices.” These are artificial aids to problem solving. The Constitution does not use the phrases “strict scrutiny” or “suspect class,” but by creating artificial rules that group cases under these headings, the Supreme Court has developed a methodology for defining the outer boundaries of state policing over individual freedom.

Instead of using the Obergefell case as an opportunity to develop and clarify how the concepts of strict scrutiny and suspect class inform the Court’s interpretation of the Constitution, the majority opinion simply ignores these heuristic devices altogether. In doing so, the majority seems to be belatedly embracing the view of Justice Thurgood Marshall in a 1973 dissenting opinion.

Revisiting the Treatment of Unpaid Internships Under the Fair Labor Standards Act

Post author:Christopher Guthrie
Post published:September 29, 2015
Post category:Labor & Employment Law Public U.S. Supreme Court

The extent to which the Fair Labor Standards Act (FLSA) applies to internships and other similar training programs was one of the cutting edge legal issues argued during last spring’s Jenkins Honors Moot Court Competition. In the months since the Jenkins Competition concluded, both the Second Circuit and the Eleventh Circuit have issued rulings that clarify the legal issues addressed in the Jenkins Competition. The treatment of interns under the Fair Labor Standards Act is once again making news.

The fictitious respondent in the Jenkins Competition was a law student who participated in an unpaid internship at a large, for-profit law firm. As part of this program, the student primarily worked on pro bono matters under the supervision of a senior attorney. The student was also able to participate in a mock trial and attend weekly training lunches. However, the student also volunteered to work on a number of projects that were not attached to any pro bono cases or training. They were more of an administrative or secretarial nature. After an unceremonious dismissal from the program (which was the basis for another claim in the case), the law student brought a suit against the firm, claiming that she was owed compensation for the work she did under her summer internship program because she qualified as an employee under the FLSA. The law firm, as one would expect, challenged this assertion, claiming that the student fell under the “trainee” exception carved out by the Supreme Court in Walling v. Portland Terminal Co. (1947).

The Court in Walling clearly meant to provide an opportunity for individuals to be trained without pay by a for-profit business in an industry the individual hoped to enter later. In its ruling, the Court ruled that the FLSA’s definition of an employee as someone who is “suffer[ed] or permit[ed] to work” was “obviously not intended to stamp all [working] persons as employees.” The Court saw the benefit of internship programs for both those seeking to be trained as well as the businesses seeking to develop their future workforce; classifying all such individuals as employees under the FLSA, and thus requiring payment, would limit training opportunities and hurt both groups. The problem with the Court’s ruling in Walling is that it did not establish a clear test for determining whether an individual is an intern or whether she is an employee covered by the protections in the FLSA.

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.

Newer Posts

Older Posts