The Ninth Circuit\u27s \u3ci\u3ePerry\u3c/i\u3e Decision and the Constitutional Politics of Marriage Equality

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.” Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him

Post-Enactment Legislative Signals

Statutory interpretation, considered from the perspective of positive political theory, yields a number of iconoclastic conclusions. A model suggesting that judges pay attention to legislative history is argued to not present a robust positive theory of the Rehnquist Court\u27s decisions

Distinguishing the “Truly National” From the “Truly Local”: Customary Allocation, Commercial Activity, and Collective Action

This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. These approaches are unworkable in light of the frequency with which the federal government and the states regulate the same subject matter in our world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. These problems are evident in the way that some federal judges invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of health insurance and health care are not of exclusive state concern, and it is impossible to lose—or to win—a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state. Nor is it most important what the answer is. More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective action approach to Article I, Section 8. My primary purpose in this Essay is to clarify the jurisprudential stakes in adopting one method or the other and to identify the problems that advocates of each approach must address

Super-Statutes

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes

Analysis of the Einstein sample of early-type galaxies

The EINSTEIN galaxy catalog contains x-ray data for 148 early-type (E and SO) galaxies. A detailed analysis of the global properties of this sample are studied. By comparing the x-ray properties with other tracers of the ISM, as well as with observables related to the stellar dynamics and populations of the sample, we expect to determine more clearly the physical relationships that determine the evolution of early-type galaxies. Previous studies with smaller samples have explored the relationships between x-ray luminosity (L(sub x)) and luminosities in other bands. Using our larger sample and the statistical techniques of survival analysis, a number of these earlier analyses were repeated. For our full sample, a strong statistical correlation is found between L(sub X) and L(sub B) (the probability that the null hypothesis is upheld is P less than 10(exp -4) from a variety of rank correlation tests. Regressions with several algorithms yield consistent results

Star forming regions in gas-rich SO galaxies

The first results of an H alpha imaging survey of HI rich SO galaxies, which were searched for HII regions and other sources of emission, are presented. The charge coupled device H alpha interference filter images were made of 16 galaxies. Eight of these galaxies show evidence for on-going star formation, one has nuclear emission but no HII regions, and the remaining seven have no emissions detected within well defined upper limits. With the exception of one notably peculiar galaxy in which the emission from HII regions appears pervasive, the HII regions are either organized into inner-disk rings or randomly distributed throughout the disk. A few of these galaxies are found to be clearly not SO's; or peculiar objects atypical of the SO class. Using simple models star formation rates (SFRs) and gas depletion times from the observed H alpha fluxes were estimated. In general, the derived SFRs are much lower than those found in isolated field spiral galaxies and the corresponding gas depletion time scales are also longer