Category Archives: Law: Con Law: Marriage


The New York Times has an obituary today of one of those unintentional American heroes, Mildred Loving, one of the plaintiffs in Loving v. Virginia, the case 1967 decision in which the US Supreme Court struck down state miscegenation laws as a violation of the Due Process and Equal Protection clause of the Constitution.

As the NYT story notes, last year on the 40th anniversary of the Supreme Court's decision, Ms. Loving (could there ever be a more aptly named plaintiff?) issued a statement in support of gay marriage.

Ms. Loving's death is moment to reflect on how ordinary people can influence major changes. It's also a reminder of how different today's Supreme Court is from that of 1967. The decision for the Lovings was unanimous. Does anyone actually think we'd be better off today if the 1967 court had ruled differently?

Some choice quotes from the Supreme Court's 1967 opinion, ripped slightly out of context as the 14th amendment, like all the civil war amendments, was understood to be first and foremost about ensuring black Americans full citizenship:

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.”

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Posted in Law: Con Law: Marriage | 1 Comment

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don’t know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don’t know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don’t tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don’t currently have plans to publish on it in law journals.

But here’s an exception to my rule, this time on a subject I know I don’t know well: family law (and its criminal law counterpart). It’s just that I’m curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn’t mention the constitutional implications at all, nor it seems does much of the blog commentary, and I’d like to know why. (Just keep in mind as you read this that I’m prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn’t recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

In the so-called “Defense of Marriage Act” Congress purported to exercise its authority under the Full Faith and Credit Clause…to allow states to deny any credit to out-of-state marriages between same-sex couples. But–even assuming that this statute conforms to the Full Faith and Credit Clause (I’m dubious)–it’s clear that the DOMA doesn’t apply here. So what is Nebraska’s authority for denying the validity of the Kansas marriage? Is it ‘public policy’? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don’t have the same constitutional right to marry as adults, and this trumps the adult’s right not to be prosecuted for marital sex?

I’m presume there’s some good reason why the couple’s defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it’s not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

Posted in Law: Con Law: Marriage, Law: Constitutional Law, Law: Criminal Law | 18 Comments

Hamdi Wins

Enemy Combatants Can Challenge Detentions. Reuters (via Washington post) reports:

The Supreme Court ruled Monday that an American captured overseas in President Bush's war on terrorism cannot be held indefinitely in a U.S. military jail without a chance to contest the detention.

Key points from the summary (the opinion isn't online yet):

  • Four justices (only four???) say due process rights requires that a citizen held in the United States as an enemy combatant must be given “a meaningful opportunity” to contest the case for his detention before a neutral party. [From this summary, this could mean anything, including much less than a real trial.]
  • “Two more justices agreed that the detention of American citizen Yaser Hamdi was unauthorized and that the terror suspect should have a real chance to offer evidence he is not an enemy combatant.” I have no idea what that means — is that more or less of a hearing?
  • Presumably that means three Justices would let the government lock up Yaser Esam Hamdi — in the brig for more than two years and only recently allowed to see a lawyer with military eavesdroppers present and a censored list of subjects (e.g. lawyer couldn't ask if he'd been tortured) — and throw away the key based on their unsupported word that he deserved it. No trial, no arraignment, no lawyer, no rights.

But there's no substitute for reading the opinions; they should be available soon.

Update: The New York Times has a totally different spin saying “Supreme Court Partially Sides With Bush on American Detainee Case” with the majority opinion by O'Connor with Rehnquist and Breyer; with Souter and Ginsburg writing the concurrence. That would be 5-4? Only it's hard to imagine Stevens not siding for the detainee if Rehnquist and Breyer did. (But see flag burning…)

Posted in Civil Liberties, Law: Con Law: Marriage | 5 Comments

Supreme Court Decides Padilla This Week

Most of the big cases I mentioned last week remain to be decided. That means they will be decided this week, maybe today.

I think that the Padilla case is so important that I almost titled this item “Supreme Court to decide if this is still a free country”. I am an optimist about big things, although not always about small, and something of a patriot, so I persist in the belief that the Supreme Court will get this one right. Just about all the lawyers I talk to agree, although no one thinks it will be the 9-0 vote that it deserves to be. Estimates cluster at 6-3 or 7-2.

If we're wrong in our predictions, and it goes badly, it's time to raise hell, or we will be remembered as the generation that let the American Experiment go sour.

Posted in Law: Con Law: Marriage | 1 Comment

Western Civilization, RIP

Fafblog! the whole worlds only source for Fafblog, pens an obituary for Western Civilization:

Western Civilization. Born 3500 B.C. in early Mesopotamian city-states, Western Civilization developed numerous complex systems of political governance, conquered most of the inhabited world, and invented the hot air balloon, the nuclear bomb, and the ice cream cone. Died May 17, 2004, of a gay agenda in a Massachusetts court house. It is survived by isolated anarchist survivalist camps and nomadic bands of flesh-eating zombies.

Posted in Law: Con Law: Marriage | Leave a comment

Polarization Works Two Ways

Over the years, I have been involved in a number of local political campaigns, albeit none recently, and there's nothing like doing retail politics to meet a lot of regular decent folks, most of whom have a lot of good sense. It gives you some faith in the basic long-run reasonableness of the nation (although that faith sometimes gets shaken during periods of martial enthusiam).

And that's why I think there's a decent chance that the Bush-Rove plan to polarize America will backfire. Consider South of the Suwannee, a blog that never struck me as at all radical:

Haven't I Heard All This Before? What if President Eisenhower had advocated a constitutional amendment to overturn the Supreme Court's “overreaching” in Brown v. Board of Education? His advocacy would not have been based on any racial prejudice, but that the desegregation of American society by judicial fiat denied the electorate to have its say through the legislative process. He might have said, regretfully, “On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse.”

Farfetched? Hardly. I vividly remember the “Impeach Earl Warren” billboards that dotted the highways throughout the South, and the politicians whose opposition to civil rights was couched in terms of the South's “traditions.” I also remember my grandfather stating his belief that the real goal of integration was legalized miscegenation.

Fortunately for America, Ike resisted the call for radical reaction to the Supreme Court's decision and subsequent event proved him right. Contrast that restraint with President Bush's call for a constitutional amendment to defend marriage.

I didn't start out being in favor of marriage for gay couples — and there may be some valid reasons to go slow in this process. But most of the arguments I have read seem to be based either on religious proscribtions, vague calls to preservation of traditions, or advocacy of seizing an opportunity to reign in out-of-control judges.

I've been married (to the same woman) for over three decades, and have a recently-married offspring and another who might not be that far away from “tying the knot.” I cannot see that allowing gay marriages threaten my or my children's relationships. On the other hand, a constitutional amendment does threaten a number of citizens and demeans one of our most significant civil documents.

I think, I hope, that there's a lot of that around.

Posted in Law: Con Law: Marriage | Leave a comment

Same-Sex Marriage Suit Filed In Florida

I'd be happy to see a well-crafted lawsuit with the right sort of photogenic plaintiffs that might help find a right to same-sex marriage in the Florida Constitution. I've got some doubts, however, whether the suit filed earlier today by lead plaintiffs wearing T-shirts advertising their business is the one to do it. Especially as it appears that many of the supposed plaintiffs may not be aware that they are part of the case.

Pair files suit, challenging Florida ban on gay marriage — Gay couple James Stewart, 61 and Wayne Clark, 54, of Dania Beach, filed suit Wednesday in Broward County against the state of Florida for not recognizing their application to get married to each other.

“We are human beings, American citizens with the same rights as anyone,” said Stewart, facing a phalanx of television news cameras. “We pay our taxes and we're here to say to the Bush administration [who is proposing a constitutional ban on gay marriage], you can't decide who we can marry.”

The couple, who have been together for 10 years and wore matching black T-shirts advertising their piano bar act, hired attorney Ellis Rubin Tuesday afternoon. Their suit follows by one day an announcement by President Bush that he advocates a constitutional ban on gay marriage.

Stewart and Clark went to three Broward bars Tuesday night and collected 175 signatures of patrons who support the suit.

Presumably some of those people were unaware that they had signed their names to a lawsuit, Rubin conceded. He said he would remove anyone's name who asked.

They went to bars and asked people to sign in support??? They didn't screen the people to find out what their circumstances were? They outed them without even explaining to them what was going on? Rubin put their names in as plaintiffs — claiming to act as their lawyer — when the people were not even aware of his aim (or of the asserted attorney-client relationship)??? If that's true, it would seem a grave breach of basic professional ethics.

Wait a minute. Rubin. Ellis Rubin. That wouldn't be this Ellis Rubin, would it? The guy who tried (and failed) to sell a jury on the 'television intoxication defense'? And then years later tried the Internet intoxication defense? But that's also the same Ellis Rubin who went to jail rather than breach a rule of professional ethics.

Although none of the articles I can find address this issue, I assume this lawsuit is based on Art. I, sec. 2 of the Florida Constitution,

Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

I don't know enough about the history of this clause to have a view as to how well it will sustain the claim, although I wouldn't have thought that Flordia as a whole was that fertile a grounds for civil rights of any sort (South Florida is not typical of the state). What concerns me is that the early reports about this lawsuit seem rather ominous, both for what they say about the ethics of the people running it, and the amount of preparation they've put into it. Which is a shame, as bad lawyering makes bad law easy. Difficult civil rights cases need the patient preparation that Thurgood Marshall brought to the NAACP, not grandstanding.

And there's more, which suggests to me that this isn't the sort of carefully crafted lawsuit with model plaintiffs that a smart lawyer would choose to mount what can only be an uphill attack.

Continue reading

Posted in Law: Con Law: Marriage | 5 Comments