Complaint here. [pdf] Various plain­tiffs married to or formerly married to and now widowed by persons of the same sex under Massachusetts law after Goodridge filed suit in the United States District Court for District of Massachusetts yesterday (case no. 1:2009cv10309) directly chal­lenging the consti­tu­tion­ality of § 3 of the Federal Defense of Marriage Act, Pub L. No. 105–199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7) under implied equal protection afforded by the 5th Amendment’s Due Process Clause. (For those who aren’t aware, the “Equal Protection Clause” under which equal protection chal­lenges are most often raised is part of [ . . . ]

Read the Rest...

June is always an exciting time at 1 First Street NE. The Justices always like to take their time on very important cases, which means they often get announced at the very end of the term. This week is the last week before the Justices leave for their three-​​​​month summer vacation, so it is time to announce all the big decisions that are still pending. One of the cases announced today, Kennedy v. Louisiana, asked the court whether it was consti­tu­tional, under the 8th Amendment, to put a man to death for raping a young child. Louisiana had a statute that provided for death [ . . . ]

Read the Rest...

Gus Van Horn mentions the diffi­culty of arguing against the government’s use of behavior-​​​​modifying tech­niques in mixed-​​​​government contexts: Unfortunately, everyone is so used to the government owning the roads ... that few so much as bat an eye when they hear of the government looking for ways to psycho­log­i­cally manip­ulate people into doing its bidding. Indeed, in this limited context, it is hard to argue produc­tively against the government taking advantage of such knowledge about human perception. As a law student, this topic has caused me a great deal of concern over the past few months. I have wanted to write something about [ . . . ]

Read the Rest...

I am opposed to gay marriage, but I am also opposed to straight marriage. I also oppose bans on gay marriage. But read the whole thing, because it is more compli­cated than that. Marriage is a package deal. Break up the package, and the answers become clear. Marriage combines a constel­lation of legal oblig­a­tions in contract (concerning property, intestacy, finances, parenting, medical decision-​​​​making, &c.) with a set of priv­i­leges* conferred by the state under various mandates and enti­tlement schemes. If we get rid of all the ille­git­imate, welfare-​​​​state junk asso­ciated with marriage, all we are left with is a complex, legit­imate two-​​​​party† contract. As it stands now [ . . . ]

Read the Rest...