#11 Class--Marriage and Sexuality 4-2-12

4-2-12

Lecture # 11: Law & Social Policy: Family & Marriage

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1. Readings: none


2. Summary of Class #10: War Powers

In the first class we examined the Power of the People; the second, the Power of the Judiciary; the third the Power of the Legislature; the fourth the Power of the Executive Branch in the fifth we reviewed social, political and governance themes and issues treated by Tocqueville in his classic work, Democracy in America. The sixth class concerned the Death Penalty, the seventh class considered Race. In the Eight we covered libel, the Ninth Corporate Political Activity and the last class, the Tenth, we reviewed War Powers. Here’s what we’ve learned:

The ‘war powers’ class brings us to a new place----The invitation for conflict about the scope, operation and meaning of the war power is built into the constitution itself. Article I of the Constitution gives Congress the power to declare war but Article II makes the president the commander in chief. Our textbook writer says this feature of the constitution is an invitation to struggle over control and conduct of war. The judiciary has rarely intervened in the struggle mainly because of the political question doctrine—that doctrine declares off limits judicial review of issues that are essentially political decisions.
What is the evolutionary process by which laws come to reflect changing social policies (short of outright amendment to the law or adoption of new statues)? What’s the algebraic equation, what are the metrics, how do we track it, measure it, quantify it? The substantive lectures on the death penalty, libel, school segregation, corporate political activity, war powers, marriage are not the text—they are the footnotes to the text, illustrations of the various METHODS by which changing social policies impacted the law. Here is a list:

1. Judicial review (interpretation by its very nature is an evolutionary process). When a court is guided by broad principles, constitutional principals, change is built into the model. Examples:
2. The 8th Amendment, evolving standard of decency. Example: the death penalty. This was relatively easy concept for us to grasp. Changing mores are actually consulted to reach a result. The process is direct, deliberate and open although the steps may be open to contention (for example, whether foreign law or the opinions of experts is a legitimate consideration).
3. Racial separation in public education presented a more difficult challenge. Here the conduct that would be disapproved of was actually authorized by law. So social science was used to prove that the law’s requirement of equality could not be met through separation. Science, or more particularly social science, was used
4. Unlike the death penalty case where the was in place a constitutional concept to deal with the change in social policy or the race cases where science was used to give new meaning to old language, the libel case was somewhat of a blank slate. The defamation case didn’t fit any specific provision and there was no helpful legislative history; in fact, what little history was available was not helpful because private tort cases didn’t seems to involve state action. So here the social policy was reflected in overarching purposes of free speech and the important role it plays in democracy. Perhaps we might say the result was ‘necessary’ to vindicate broader values.
5. We learned the ‘commerce clause’ was the legislative entre into new fields and, if you will, new ways of thinking; that ‘cruel and unusual punishment’, ‘due process of law’ and ‘equal protection’ of the law were the concepts that allowed judicial review to enter new fields and new ideas about the law, justice and social policy.


3. Summary of Class #11: Sexuality and Marriage

Tonight we consider something new: FUNDAMENTAL RIGHTS. Unlike the death penalty cases that invoked an evolving standard of decency or the school segregations cases that used social science to define the parameters of equal protection of the law or the laws of necessity and implication to animate the meaning of free speech in the libel context and war powers, the issues regarding marriage and sexuality are no where mentioned in the constitution---we’re dealing with a blank slate.


4. Student Assignments Class # 11 Family & Marriage

Lecture #11: Family
[April 2, 2012]
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.
It is the very essence of democratic government that the power of the majority should be absolute. –Tocqueville 287
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Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) (Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868

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Assignments for Class #11:  Marriage, Procreation and Sexual Orientation
1.    Meyer v. Nebraska 262 U.S. 390 (1923). JOSH PORTER
2.    Loving v. Virginia 388 U.S. 1 (1967). NATHAN BATEY
3.    Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003). BRANDI
MELVIN (Can’t attend).
4.    Buck v. Bell 274 U.S. 200 (1927).  BRAD CORBIN (Can’t attend).
5.    Skinner v. Oklahoma 316 U.S. 535 (1942). ZAC RICHARDS
6.    Bowers v. Hardwick 478 U.S. 186 (1986). SARA THOMSON
7.    Romer v. Evans 517 U.S. 620 (1996). LU JESSEE
8.    Lawrence v. Texas 539 U. S. 558 (2003). JASMINE HARDIN
9.    Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual
Orientation” pp.807-809. LAUREN REYNOLDS
10.  Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and
cases cited in Section 10.2.1 on Defense of Marriage Act and California’s
Proposition 8) (Give special thought to whether the executive branch can refuse
to defend a congressional law);Section 10.3 “The Right to Procreate” pp. 829,
833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868. CHRIS ROBERT