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The Meaning of the Pledge of Allegiance

By Wilson Huhn Published: May 27, 2012

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.

It is appropriate this weekend to remember not only our fallen soldiers but what they fought for and why they defended us and our way of life.

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Another California Federal Court Rules DOMA Unconstitutional

By Wilson Huhn Published: May 26, 2012

Two days ago Judge Claudia Wilken of the United States District Court for the Northern District of California issued a decision in Dragovich v. Geithner striking down DOMA as unconstitutional. This is the third federal district court to come to the same conclusion.

In the last two years two other federal district courts have ruled that DOMA is unconstitutional. In 2010 Judge Joseph Tauro struck down DOMA in Gill v. Office of Personnel Management, 699 F.Supp.2d 374 (D.Mass. 2010). The First Circuit Court of Appeals heard oral argument in Gill on April 4, 2012. On February 22, 2012, Judge Jeffrey S. White reached the same result in Golinski v. Office of Personnel Management (N.D. Cal. 2012). Golinski has been scheduled for oral argument before the Ninth Circuit Court of Appeals in September, 2012. My earlier posting on the Golinski case may be accessed here.

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2011-2012 Supreme Court Term: Court's Decision in Astrue v. Capato (Equal Protection)

By Wilson Huhn Published: May 22, 2012

The Supreme Court issued a decision yesterday in the case of Astrue v. Capato, No. 11-159. The case mainly involved a question of statutory interpretation, but the outcome was influenced by a constitutional consideration.

Robert and Karen Capato were married in 1999. Robert was diagnosed with esophageal cancer and concerned that the treatment would leave him sterile he had his sperm frozen. When his health improved, he and Karen conceived a child naturally. But his health then deteriorated, and Robert died in March 2002. Several months later Karen underwent in vitro fertilization, and bore twins eighteen months after Robert's death. See Bill Mears, CNN, Justices deny benefits for child conceived after death of parent (May 21, 2012)

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Catholic Institutions and Private Business File Lawsuits Over Birth Control Mandate

By Wilson Huhn Published: May 21, 2012

Dozens of Roman Catholic institutions in eight different states filed suit against the federal government today challenging the constitutionality of the requirement that employers provide birth control coverage to their employees. In this they joined by a private employer who filed a similar suit in a Missouri two months ago. The plaintiffs all contend that the the federal mandate violates their right to religious freedom. Furthermore, the Missouri legislature has reportedly enacted a statute authorizing employers not to cover contraception or sterilization services.

Here are links to some of the news stories reporting this development:

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Whale Hunting Continues

By Wilson Huhn Published: May 20, 2012

The Japanese continue to flout the international ban on whale hunting under the guise of "scientific research." See World Society for the Protection of Animals, After the ban, whaling continues.

On March 6 of this year it was reported that the anti-whaling organization Sea Shepherd Conservation Society had brought whale hunting to a close for 2012. Nick Perry of 3 News (New Zealand) quoted Paul Watson, the President of Sea Shepherd, to the effect that they had found the Japanese "factory ship" and had disrupted hunting using laser beams and flares fired from the Sea Shepherd ship the Bob Barker. Sea Shepherd claims 2012 Japanese whale hunt over.

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Strategy of Creating Racial Backlash Against Marriage Equality Backfires: NAACP Board Endorses Same-

By Wilson Huhn Published: May 19, 2012

Six weeks ago it was revealed that in 2009 the National Organization for Marriage had developed a detailed secret plan to "exploit" racial tensions in the United States in order to "drive a wedge between gays and blacks." See Wilson Huhn, NOM's "National Strategy for Winning the Marriage Battle" Appeals to Racial, Ethnic, Religious, and Political Divisions (March 27, 2012). Today the Board of Directors of the NAACP voted to officially support marriage equality for gay and lesbian couples. See ABC News, NAACP Backs Same-Sex Marriage as Civil Right (May 20, 2012); Charlie Joughlin, Human Rights Campaign, NAACP Board Endorses Marriage Equality (May 19, 2012); Steve Kilar, Baltimore Sun, NAACP Votes to Support Same-Sex Marriage (May 19, 2012).

Our entire society is in transition on this issue. It is not only the President whose views have "evolved" on this question. Mine have, as have the views of the majority of the American people. We are gradually becoming more tolerant - more accepting - more willing to celebrate the unique potential of every human being.

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Are Boards Implicated When Traders Lose $[3] Billion? (Part 2)

By Prof. Padfield Published: May 19, 2012

You can find my promised response to Prof. Bainbridge here.

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McCain and Whitehouse Support Campaign Finance Reform, Oppose Citizens United

By Wilson Huhn Published: May 19, 2012

 Rachel Leven at The Hill reports that Senators John McCain (R-AZ) and Sheldon Whitehouse (D-RI) have filed an amicus brief with the Supreme Court urging the Court to review and overturn its decision in Citizens United.


Leven quotes the Senators' brief as stating:

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Are Boards Implicated When Traders Lose $3 Billion?

By Prof. Padfield Published: May 18, 2012

I'm a bit tardy in passing on the post I put up on that topic last Saturday, which you can find here.

Stephen Bainbridge responded here.

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Cleveland-Marshall College of Law to Host Panel Discussion on "Crisis in the Courts"

By Prof. Padfield Published: May 18, 2012

On Thursday, May 31, from 11:30 to 2:00, the Cleveland-Marshall College of Law will be hosting a panel discussion (with free Ohio CLE credits) entitled:

Crisis in the Courts: The New White House Push on Judicial Confirmations and the Vacancy Rate's Impact on Justice

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Is the Supermajority Requirement for Cloture Constitutional?

By Wilson Huhn Published: May 16, 2012

Senate Majority Leader Harry Reid wants to abolish the rule that requires 60 votes to achieve the passage of legislation. Manu Raju, Politico, Harry Reid: Reform the Filibuster. Some commentators are arguing that the supermajority requirement to bring cloture to a filibuster is inconsistent with the text and the intent of the Constitution.


Yesterday Ezra Klein of the Washington Post posted Is the filibuster unconstitutional? Klein concludes that the rule requiring 60 votes to choke off debate is a violation of the Constitution because the framers clearly intended for a simple majority of each House to be able to enact legislation. Klein draws his arguments and conclusions from a 2011 article by Emmet J. Bondurat published in the Harvard Journal on Legislation entitled The Senate Filibuster: The Politics of Obstruction. Klein and Bondurat rely principally upon the Federalist Papers in which both James Madison and Alexander Hamilton not only disapproved but denounced any requirement for a supermajority of Congress to enact legislation.

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Spring 2012 Constitutional Law II Exam: Freedom of Expression: Statute Prohibiting Bullying

By Wilson Huhn Published: May 15, 2012

 Over the next few days I'll post the questions from my Spring 2012 Constitutional Law II exam. The first one up involves the constitutionality of a Connecticut statute requiring school districts to prohibit bullying at school. I added a criminal penalty and a couple of hypothetical fact situations. What do you think? May this law be constitutionally applied to the children in question?


Here's one of the questions I asked my students on a portion of the spring semester exam:

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Who Would Be on Your All-Time NBA Team?

By Wilson Huhn Published: May 14, 2012

If you could pick any NBA player from any time period for each position, who would make your team?

The “top 50” all-time lists are crammed with centers and relatively devoid of guards. Here are my picks for the top four players ever at each position, in order:

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President Obama Announces Support for Marriage Equality for Same-Sex Couples

By Wilson Huhn Published: May 9, 2012

 Rick Klein at ABC News reports that President Barack Obama has announced his support for the right of gay and lesbian couples to be permitted to marry. The President made this announcement in an interview with Robin Roberts of ABC.

The President's remarks will have no immediate legal effect. Federal law (the Defense of Marriage Act) does not recognize same-sex marriages as lawful even for couples married in states that permit same-sex marriage, and the President has promised to continue to enforce DOMA until it is repealed or overturned by the courts.

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Would an Executive Order Banning Discrimination on Basis of Sexual Orientation Be Constitutional?

By Wilson Huhn Published: May 8, 2012

Gay rights groups have strongly criticized President Obama for refusing to issue an Executive Order banning employment discrimination on the basis of sexual orientation by federal contractors. In my opinion, the President could issue an order prohibiting government agencies from discriminating on the basis of sexual orientation. However, I believe that the President lacks the authority to prohibit discriminatory action by private businesses that are under contract with the government.

On September 24, 1965, President Lyndon Johnson issued Executive Order 11246 prohibiting discrimination on the basis of race, gender, or religion by any agencies of the federal government as well as any companies doing business with the federal government. Gay rights advocates have encouraged President Barack Obama to broaden Order 11246 to add sexual orientation to the list, thus prohibiting companies receiving federal funding from discriminating against gays and lesbians.

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Sovereignty, Citizenship, and the Right to Vote

By Wilson Huhn Published: May 8, 2012

 The Declaration of Independence sets forth the fundamental principles that this country stands for. All persons are created equal. All persons have certain inalienable rights. And all just powers of government are derived from the consent of the governed. From these premises it follows that every citizen has an equal right to vote. The law must not invade these sacred principles. Unfortunately a number of laws diminish, discourage, or disqualify citizens from voting. These laws violate the fundamental principles of democracy and individual sovereignty.


The Declaration states:

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Do women only deserve to be the CEO at 3% of Fortune 500 companies?

By Prof. Padfield Published: May 6, 2012

Some thoughts on the here.

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Matthew Vines' Biblical Exegesis on Same-Sex Relationships

By Wilson Huhn Published: May 5, 2012

For a balanced, thoughtful, and gentle analysis of the six biblical passages thought to condemn same-sex relations, please read or view Matthew Vines' The Gay Debate: The Bible and Homosexuality

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Changes in Gender Equality in My Lifetime

By Wilson Huhn Published: May 4, 2012

 No-one older than 60 needs to read this post. You already know how different our society is from when we were young.

So I'm 62, and when I was a little boy ...

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The 2012 Property Law Poetry Contest Winner!

By Brant T. Lee Published: May 1, 2012

Property Law is a required two-course sequence for first-year law students at the University of Akron. These students are with me for the entire first year of law school. On the last day of class each year, I hold a poetry contest. The assignment is to write a poem that captures the year in Property Law. This year's winner was "Nothing But a P Thang.

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