Equal Protection, Faculty Blog, Federal Courts, Fourteenth Amendment, Friedman, Judicial Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.” The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

4th Amendment, criminal law, Criminal Procedure, Faculty Blog, Fourth Amendment, Friedman

Faculty Blog: Recent Supreme Court Term: Los Angeles v. Patel

Students in constitutional law come to learn what seasoned constitutional lawyers know: many cases implicating the Constitution do not turn on the document’s text. Which is not to say the text isn’t important, just that, in certain areas of constitutional law, the doctrinal tests the court has devised to implement textual commands often take precedence over the words themselves. Consider the Fourth Amendment, as demonstrated by the recent decision in Los Angeles v. Patel, involving the scope of protection afforded business records. The case concerned a challenge to a Los Angeles ordinance that compelled hotel operators to keep records containing specified information provided by guests, and to make these records available to police officers “for inspection” on demand. The law made the failure to make the records available for inspection punishable by up to six months in jail and a $1,000 fine.