FedSoc Blog

The U.S. Department of Justice announced today that it will no longer defend the constitutionality of the Defense of Marriage Act, the Blog of Legal Times reports.

Attorney General Eric Holder sent a letter to Congress detailing the shift in policy, stating that President Obama has determined that DOMA, which defines marriage for federal purposes as an institution between a man and a woman, does not pass constitutional muster.

Gay rights groups swiftly reacted to support the DOJ's decision. Paul Smith, a partner at Jenner & Block who works as counsel with Gay & Lesbian Advocates & Defenders, said of the shift:

There was only one right answer. When you examine the law and which groups need heightened protection under the equal protection clause, you realize that sexual orientation is one of those kinds of discrimination that is suspect. There really was no way for them to defend Section 3 of DOMA because the law doesn't serve any purpose other than to stigmatize persons.

The decision affects cases pending in courts around the country, and it has some experts suggesting that members of Congress will step in to defend the law if the White House will not.

There are two ACLU stories on conscience in the news recently, with the organization both demanding that the Obama Administration force Catholic hospitals to perform abortions over their religious objections and, yesterday, celebrating its victory in securing conscientious objector status for a Naval Academy graduate.

Megan McCardle has an article in The Atlantic responding to some comments she received regarding a previous piece she wrote on alleged bias against conservatives in academia.

While she acknowledges that mere underrepresentation of conservatives in academia does not necessarily mean bias is present, McCardle offers several different explanations for the underrepresentation and explains why she finds some of these explanations more plausible than others. For instance, she writes that unconscious personal discrimination and institutional bias are possible causes, whereas the argument that conservatives do not seek to join the hiring pool for various reasons is much less possible.

The problem with this conservative-liberal disparity, McCardle argues, is that, among other things, it can taint the image of academia in the eyes of the general public and, because it does not encourage dissenting voices within academic institutions, it causes scholarship to be worse.

The Federalist Society has published a new paper in its New Federal Initiatives Project (NFIP) series on whether the Obama Administration will use a new interpretation of federal law regarding religious discrimination when it awards federal grants. Click here to check it out.

TaxProf Blog has a post linking to an article by Malcolm Gladwell on the algorithm the U.S. News & World Report uses to rank law schools and how some subtle changes in this algorithm can create some real changes in the results. Gladwell focuses on affordability, a factor he says the U.S. News rankings do not take into account. Click here to view the results.

U.S. Supreme Court Associate Justice Samuel Alito will be speaking at the Rosewood Sand Hill Hotel in an event sponsored by the Federalist Society's Silicon Valley Lawyers Chapter on Friday, March 11, 2011, at 12 PM. Click here for more details and to register for the event.

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The Hill's Floor Action Blog reported yesterday that Rep. Christopher Murphy of Connecticut is introducing a bill that would require Supreme Court Justices to reveal why they choose to recuse themselves from cases and would result in the Supreme Court developing a method under which parties could request that the Court determine whether a Justice has a conflict of interest.

Rep. Murphy is introducing the legislation in the wake of allegations from some groups that Justices Scalia and Thomas had conflicts of interest in the Citizens United case last year. He argues that it will not create an "undue burden" on the Justices and would result in increased transparency in proceedings before the Court.

The FrumForum had a story yesterday about the successful effort by libertarians in Canada to beat back regulations that were choking their ability to hold their annual Liberty Summer Seminar. The effort marks an important step forward in the efforts of the Canadian Constitution Foundation to bring small-government public interest litigation to Canadian courtrooms.

The Washington Post has a story today on a case in which the U.S. Supreme Court just heard oral arguments, Skinner v. Switzer, where a man convicted of murdering his girlfriend and her two developmentally disabled sons was denied the opportunity to have DNA found at the scene tested. The Supreme Court stayed his execution and agreed to take the case a mere 45 minutes before he was scheduled to be executed by lethal injection.

The article focuses on the question of whether there is any harm in simply testing the DNA evidence before these cases arise. Jurisdictions have conflicting rules about when testing is permitted; had Skinner been convicted of the murder in Dallas, TX, instead of Gray County, TX, prosecutors probably would have already ordered the testing.

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The Blog of Legal Times had a post yesterday discussing a recent "Smart on Crime" report on reforms to the criminal law, some of which are supported by a broad range of groups from Heritage to the ACLU. Click here to read the post.

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On January 19, the Supreme Court announced its decision in Harrington v. Richter, holding that the Antiterrorism and Effective Death Penalty Act applies when state court relief is denied without a statement of reasons and that the state court's decision on a claim of ineffective assistance of counsel was not an unreasonable application of clearly established federal law.

To discuss the case, we have D. Scott Broyles, who is an Assistant Professor at Charlotte School of Law.

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John Tierney wrote this article in the New York Times Tuesday detailing how Jonathan Haidt, a University of Virginia social psychologist, has determined that there is bias in the social psychology community against conservatives, noting at a recent conference that conservatives were underrepresented among his audience "by a factor of more than 100."

Dr. Haidt argues that a reason for such underrepresentation is that the fight for civil rights unified liberals and the academy throughout the 1960s, causing academics to unite around certain sacred values and form a "tribal-moral community" from which conservatives were excluded. This situation has since made it difficult for conservative social psychologists to reveal their political views to their colleagues, both in informal settings and in their scholarship. 

Dr. Haidt encouraged his fellow psychologists to focus on "shared science" rather than "shared morality" and to become more accepting of their colleagues with different ideologies.

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On January 19, the Supreme Court announced its decision in NASA v. Nelson. Assuming for the sake of argument (but not deciding) that the prospective employees did have a constitutional right of informational privacy, the Court held that the challenged portions of the government’s background check did not violate such a right.

To discuss the case, we have Richard J. Peltz, who is a professor at the William H. Bowen School of Law.

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The Citizenship Clause of the 14th Amendment states that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." But what is the proper interpretation of this clause? What does it mean to be "subject to the jurisdiction thereof"? To what extent can states seek to control or alter birthright citizenship?

Dr. John C. Eastman of Chapman University School of Law and Hon. James C. Ho of Gibson, Dunn & Crutcher LLP debate these and other questions in this podcast.

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In a recent Wall Street Journal op-ed, Eric Rassbach and Ashley McGuire make the case that the U.N.'s annual "defamation of religions" resolution provides cover to the 47 member-states of the Organization of the Islamic Conference as justification for their existing blasphemy laws.

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