constitutional law

Last week, the Italian Court of Cassation ruled that there is nothing in that country's constitution to require that same-sex couples get marriage rights, The Washington Blade's Michael K. Lavers reports. But the court said that lesbian and gay Italians do have the right to a "'protective'" law to ensure they have the same rights as other unmarried couples.

A federal judge has ordered an Alabama probate judge not to deny marriage licenses to same-sex couples anymore, the Montgomery Advertiser's Brian Lyman reports. The probate judge closed his marriage-license bureau after Alabama Chief Justice Roy Moore on Sunday ordered probate judges not to issues licenses to same-sex couples. U.S. District Judge Ginny Granade struck down Alabama's constitutional and statutory bans on same-sex matrimony, and the stay on her order was lifted Monday. At the close of the business day, 19 counties were not issuing marriage licenses, and 25 had closed their bureaus altogether.

U.S. District Judge Jeffrey White of the Northern District of California has ruled that a group of AT&T customers haven't been able to show they have standing to show that their Fourth Amendment rights were violated by alleged surveillance of all of their Internet communications, The Recorder's Ross Todd reports. Even though a retired AT&T technician Mark Klein reports that the the company's Internet traffic is routed to a secret room controlled by the government, the judge "found that Klein could not establish 'the content, function, or purpose of the secure room at the AT&T site based on his own independent knowledge' and that lawyers challenging the program under the Fourth Amendment hadn't offered enough admissible evidence to support standing."

Alabama Chief Justice Roy Moore has ordered a ban on same-sex marriage licenses, even though a federal judge in Alabama has found the state's ban on same-sex nuptials unconstitutional, the Montgomery Advertiser's Brian Lyman reports. The stay on the federal court decision is set to expire today. The chief justice argued that federal district and appellate courts had no binding authority on state courts, Lyman reports. What effect Moore's orders will have is still unclear. 

There's been an interesting debate going on the Volokh Conspiracy this week on whether there is an originalist case for a right to same-sex marriage (originalism being the theory of constitutional interpretation that the U.S. Constitution should be viewed through the lens of what the public at the time, or, alternatively, what Founding Fathers or the framers of later constitutional amendments, intended about the constitution). Orin Kerr argues there is no serious case under the theory of originalism for same-sex marriage. He notes that there have been originalist arguments that reason that the 14th Amendment recognizes the principles of freedom and equality, equal treatment in marriage choices, rejection of caste legislation or rejection of sex discrimination, and that same-sex marriage laws violate those principles. But Kerr says none of the theories seem to be based on "specific constitutional text as it was understood by the public at the time of its enactment."

U.S. District Judge Callie V.S. Granade issued an order clarifying her ruling that Alabama's bans on same-sex marriage violate the equal protection and due process protections in the 14th Amendment, the Washington Blade's Chris Johnson reports. The clarification came after the Alabama Probate Judges Association issued a non-binding order saying the decision only applies to the plaintiffs before Granade, and the judge's order implies that the ruling has universal effect in Alabama.

On Friday, US District Judge Callie V.S. Granade ruled that Alabama's constitutional ban on gay marriage violated the due process and equal protection clauses of the federal Constitution's 14th Amendment, Christian Science Monitor's Jessica Mendoza reports.

SCOTUSBlog's Lyle Denniston reports that South Dakota's ban on same-sex marriage was struck down today. U.S. District Judge Karen E. Schreier applied the highest constitutional test--strict scrutiny--after finding that marriage is a fundamental right that must be open to gays and lesbians. The judge also rejected the argument that federal courts have no jurisdiction over domestic relations, Denniston further reports.

The Associated Press reports that Ohio is changing the two-drug cocktail it uses in executions after it was administered to an "inmate who repeatedly gasped and snorted during a troubling 26-minute execution."  The inmate's children are suing the state, arguing their father endured needless pain and suffering.

Instead, the state is going to use thiopental sodium, but that drug is no longer readily available in the United States.

Same-sex marriage bans in Texas, Louisiana and Mississippi got a cool reception during oral arguments before the 5th Circuit yesterday, Bloomberg's Daniel Lawton and Andrew Harris reports. A Louisiana judge upheld that state's ban, while Texas and Mississippi judges rejected bans on same-sex marriage in their states. Having listened to a recording of the arguments involving Louisiana so far, the judges indeed were very skeptical of the government's arguments in favor of keeping that state's ban intact.