constitutional law

Republican-red Indiana is seeking to ban same-sex marriage in its constitution; lawmakers must approve the proposed constitutional amendment a second time before sending it to voters, the Associated Press reports. But "polls have shown increasing numbers of Indiana voters oppose a constitutional ban even though most still oppose gay marriage," the AP reports. Moreover, at least two lawmakers who voted for the amendment in 2011 now say they won't vote for it again.

 Opponents cite the amendment for a proposed ban on civil unions and employee benefits for same-sex couples.

While there has been a lot of celebration of Judge Leon's opinion that the National Security Agency's collection of telephone metadata likely violates the federal Constitution, Just Security's Steve Vladek argues that the district judge faces being reversed by the D.C. Circuit on his holding that the plaintiffs’ Administrative Procedure Act "claim (challenging the metadata program on statutory grounds) is precluded by section 215 itself."

The result? "Then that will bring the statutory question to the fore–for the Court of Appeals to either decide as a matter of first impression or send back to Judge Leon," Vladek writes. "And if, as many (including me) believe, the program can’t be reconciled with the statute, then we’ll end up in the same place (the program in its present form will be enjoined), without ever having to answer the thorny and far more far-reaching Fourth Amendment question concerning twenty-first century expectations of privacy in metadata."

Carnegie Endowment for International Peace analyzes the new constitution proposed for Egypt (another constitution was just adopted in 2012). The proposals include:

* The Egyptian military would get enshrined as a branch of government unto itself;

* While it's typically a good thing for the judiciary to have autonomy, the Egyptian judiciary, "which strongly supported the military takeover" from the elected Muslim Brotherhood, won independence in the constitutional draft;

* The Supreme Constitutional Court, which decides constitutional issue, would get the right to appoint its own chief justice.

The new constitution is slated for a referendum in January. In July, the Egyptian military overthrew Egypt's president Mohamed Morsi, the first president to be elected since the removal of former president Hosni Mubarak.

U.S. District Court Judge Robert J. Shelby of the District of Utah heard oral arguments yesterday on a lawsuit challenging that state's ban on same-sex marriage, the Salt Lake Tribune reports. Shelby said the constitutionality of the ban will turn on whether the copules are "seeking a new right or establishing access to an existing, fundamental right to state-sanctioned marriages," The Tribune further reports.

State attorneys argue that the plaintiffs are seeking to establish a new right and the ban should get rational basis scrutiny "to determine if Utah’s law promotes a legitimate government interest in supporting responsible procreation and the 'gold standard' of two biological parents for child rearing," according to The Tribune.

In contrast, the plaintiffs’ attorney "advocated a heightened-scrutiny standard, which would recognize same-sex couples as an unprotected class such as racial minorities or women."

In the view of state attorneys, the lawsuit is aimed at establishing a new right, one that no other federal court has recognized. In the view of attorneys representing the plaintiffs, it is about gaining access to the fundamental right to chose whom to love and marry.

The Honolulu Star Advertiser reports on a state legislator who argues a 1998 state constitutional amendment did not only allow legislators to decide whether to authorize or ban same-sex marriage--but altogether prevented elected representatives to expand marriage to same-sex couples. "State Rep. Bob McDermott has filed a new motion in state Circuit Court looking to invalidate the state's new law legalizing such marriages," the newspaper reported. However, the judge held that the 1998 amendment "did not restrict the Legislature's separate authority -- under Article III, Section 1 of the state Constitution -- to enact laws that define marriage," the newspaper further reported.

The Associated Press reports on a new lawsuit in Texas federal court challenging that state's constitutional ban on same-sex marriage. They want a court-ordered injunction against the enforcement of state law. The plaintiffs argue that the ban on same-sex marriage cannot even survive the lowest level of constitutional scrutiny: whether the government has a rational basis for the ban.

The Roanoke Times has this profile on Timothy Bostic and Tony London, who are suing to challenge Virginia's ban on same-sex marriage. They told the newspaper they decided to challenge the ban because they want to get married in the state in which they live: "When other states began changing their marriage laws, London and Bostic briefly considered getting married out of state. 'We did discuss it, but why would we go to Iowa to get married and come home and not be married?' Bostic said," The Roanoke Times further reported.

Their lawyers attorneys Theodore Olson and David Boies, who successfully litigated California’s Proposition 8 case.

The West Virginia Attorney General is seeking to intervene in a federal lawsuit challenging West Virginia's ban on same-sex marriage in order to defend the constitutionality of the state law, The Herald-Dispatch of Huntington, West Virginia, reports. The plaintiffs allege that their constitutional rights to equal protection and due process are being violated by the ban.

Four same-sex couples are seeking a preliminary injunction against Tennessee's ban on same-sex marriage and recognizing same-sex unions from other states, according to the Associated Press. The couples argue the ban violates their constitutinal rights to due process and equal protection, the AP also reported.

Lawyer Adam White writes in the Des Moines Register that federal judicial nominees aren't entitled to get a vote in the Senate. This has been a Democratic-party complaint after Republican senators once again blocked some of President Obama's judicial nominees. White points out, however, that the federal constitution doesn't require action by the Senate on judical nominees. "So if the Senate does not 'owe' all judicial nominations an up-or-down majority vote, then how does the Constitution resolve disputes between the president and the Senate over the Senate’s failure to vote on nominations?" White asks. "Simply put, the Constitution doesn’t resolve those disputes."