Andrew Ferguson’s current feature essay in The Weekly Standard “The ‘Science’ of Same-Sex Marriage” considers the unique brief filed by Leon Kass and Harvey Mansfield in the Proposition 8 case that is now before the Court. Also discussed by Nelson Lund, the brief’s counsel of record, in Wednesday’s Wall Street Journal, the Kass-Mansfield brief does not engage in direct advocacy on behalf of the California law that bans same sex marriage in that state. Rather, the brief purports only to demonstrate that social science claims made in support of a radical departure from the principles of Western marriage law are quite inconclusive and are contrary to statements put forward by researchers and organizations like the American Psychological Association.
The Supreme Court will soon pronounce upon the constitutionality of California's Proposition 8, which amended that state's constitution to prohibit same-sex marriage, and the federal Defense of Marriage Act that was enacted into law in 1996 under then President Bill Clinton. This conversation with Ryan Anderson, co-author with Sherif Girgis and Robert George of the recently published What is Marriage?, engages the philosophical argument that there is a natural form to marriage which has been instantiated by the western legal tradition in various ways. This lively conversation debates the most basic questions on this subject in a serious and respectful…
This is an interesting article about the lawyers in the California lawsuit claiming that the U.S. Constitution requires same sex marriage. Ted Olson (and David Boies) argued that it does. Chuck Cooper argued that it does not. The article talks a bit about how Olson and Cooper are both conservatives and both headed the Office of Legal Counsel during the Reagan Administration. I worked for both of these men. I served under Cooper in the Office of Legal Counsel and then worked for Olson at Gibson, Dunn & Crutcher. Both are excellent lawyers and not surprisingly demanding bosses. The article portrays them differently. …
Noah Feldman is a Harvard Law Professor and the author of a popular book on the Supreme Court, but his recent column is extremely problematic for two reasons.
First, Feldman makes the following claim about Supreme Court caselaw:
In 2005, in Gonzales v. Raich, the Supreme Court held that Congress could make it a crime to use medical marijuana even when the drug was home-grown by the user, was not sold, and did not move in interstate commerce. The key precedent was the 1942 case of Wickard v. Filburn, which presented almost the same facts and reached the same conclusion regarding the production of wheat for home use. (Wickard was also the central case cited by Chief Justice John Roberts when he cast the deciding vote to uphold the Affordable Care Act last June. As much as conservative justices might regret Raich, there is no way Roberts would undercut his controversial vote to accommodate potheads.)
But as Mike Ramsey points out, this claim in the parentheses is clearly mistaken:
Look at that parenthetical closely. Surely anyone who’s paying attention knows that (a) Wickard was a commerce clause case; (b) in the health care case (NFIB v. Sebelius) Chief Justice Roberts voted to uphold the Affordable Care Act’s individual mandate under the federal government’s taxing power, not the commerce power; and (c) Roberts joined Justices Scalia, Kennedy, Thomas and Alito to say that Congress did not have power to enact the individual mandate under the commerce clause.
A quick look at Sebelius confirms that, in fact, Roberts (naturally) did not even cite Wickard (much less make it the “central case cited”) in the section of his opinion upholding the Affordable Care Act under the taxing power (Section III.B). Roberts did cite and discuss Wickard in his commerce clause analysis (Section III.A), but that was to distinguish it and to refuse to uphold the Act on the strength of Wickard. In sum, Professor Feldman’s suggestion that Roberts upheld the Affordable Care Act under Wickard is flatly wrong.