Constitutional Law Class Notes 3/16/04

Two things: What about gay marriage? What’s the status under the Fourteenth Amendment and the Equal Protection Clause of laws like the Ohio DOMA? This is a HOT TOPIC! Does the text of the Equal Protection Clause say anything about gay marriage? If the text of the Constitution doesn’t resolve this question, where should a judge look? Should the judge look at original intent? What about the fact that statutes against interracial marriage are now unconstitutional? Does that change the meaning or understanding of the Equal Protection Clause? If the Court can abandon original intent with respect to some issues, then why can’t the Court abandon original intent with respect to other issues, like gay marriage?

Second: People who believe that the Court should not be guided by narrowly understood original intent argue that you shouldn’t look to what the authors of the Fourteenth Amendment thought about any specific problem. Instead, you should look to the fact that the drafters wanted to add a general principle to the Constitution. If there is a gap between contemporary understanding of that general idea and the original and specific understanding of the idea, the Court should adopt the general principle. Recall that at the time of the adoption of the Fourteenth Amendment, the galleries in Congress were segregated. It is clear that the authors of the Fourteenth Amendment didn’t mean to render segregation unconstitutional. But maybe they misdrafted the amendment in some sense and did more than they specifically intended to do.

If the Court has one conception of the general idea but it is at odds with what a large segment of the people believe, then what should the Court do? Should the Court follow its own understanding of equality and equal protection, or should it be guided by the views of the American people in general?

More on the VMI case

How does the Court apply intermediate scrutiny in this case? Why is it that Virginia loses under intermediate scrutiny? Why is Virginia incapable of justifying the existence of VMI under this test?

Virginia tries to argue that VMI is just one school of many, and there are lots of other schools that aren’t single-sex. They want to say that it would support diversity to have one school that isn’t coed. Why does the Court feel that this diversity interest doesn’t work to argue for the existence of VMI? Why is the existence of VMI an inappropriate means of advancing the interest of diversity?

Why doesn’t VMI further diversity? VMI is a male-only institution. They don’t allow women. Say you’re a woman and you want to go to VMI. There’s no other place that you could go! The Court says that this is male preference, not diversity.

Virginia also set up a female counterpart to VMI at Mary Baldwin, and the Court found that it wasn’t close enough.

The lesson of this case is that the Court is extremely suspicious of any attempt to respond to a history of segregation with a creation of an alternative rather than integration.

Nguyen v. Immigration and Naturalization Service

This was a closely divided decision, 5-4. Basically, this case involved a rule that if you’re born overseas and your mother is an American citizen, then the child gets American citizenship. But if the father is an American citizen, it’s not automatic. This is facial gender discrimination in the law. It’s argued that paternity can be proved. But the majority finds that the law isn’t meant to be exclusionary. To the majority, the law didn’t have the same feel as the law in the VMI case. The Court gives the federal government more leeway over immigration law than it gave the state of Virginia over domestic policy.

What about the policy of citizen soldiers?

Suppose there is a school district in Ohio that thinks it would be better educational practice to have a single-sex option for middle school girls especially in regard to math class. What if this is challenged by boys who want a boys-only math class?

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