and glad that I will again be teaching government (among other things) come August.
A major part of my approach to teaching government is to connect students with what is happening in the world around them.
It is hard to imagine a week richer than this for material on class discussion.
From the Congress, we have the combination of the Senate passing a sweeping immigration reform bill and the Speaker effectively saying it is DOA.
From the Supreme Court we have a wealth of decisions, not merely the blockbusters on Prop 8, DOMA, and Voting Rights Act, but also on the ability of corporations to force people to binding arbitration and an expanded notion of the takings clause of the 5th Amendment. And of course, there are the ongoing issues about Snowden, Freedom of the Press, the Espionage Act, and related.
Let me offer some observations of how rich class discussions could be.
I will be teaching in Maryland. We have traveled an interesting path on marriage equality. Back when the issue first arose, Maryland passed one of the first state laws defining marriage as between a man and a woman. Then as we progressed further into the 21st Century, efforts were made at marriage equality. At first it passed one house of the legislature but not the other. Then it passed the legislature but was put on the ballot by initiative, where it passed this past November and is now in effect. In the interim, Maryland had agreed to recognize same-sex marriages contracted in other states. So we can see normal legislative process, application of Full Faith and Credit under the US Constitution, and initiative and referendum. We can also discuss how attitudes change over time, and why.
I had taught in a majority black district and school, but in a community that was very liberal including on social issues, with a student organization supporting Lesbians, Gays, Bis, and Transgenders. I will be teaching in a community that is somewhat more conservative, more heavily white, and working and lower middle class. My former school had many out gay students. I do not know what I will encounter, but this is still an important discussion to have.
Given the initiative process, there would be lots of issues to discuss on both DOMA and on Prop 8, including beyond the obvious ones.
- should a state that has an initiative process have some mechanism to allow defense of initiatives passed by the voters to be defended if the state government does not want to on grounds of the government's belief the action is unconstitutional? There was no doubt about the lack of standing for the proponents of Prop 8 to be in an Article III Court. But I note that Anthony Kennedy, whom I believe would have upheld the the 9th Circuit finding the proposition unconstitutional, wanted to hear the Prop 8 case particularly because he wanted to defend the initiative process. I note the Pundit Roundup mentions a constitutional law professor in favor of marriage equality who thinks similarly, and that would be an interesting discussion - pointing out where sometimes parts of our legal and constitutional structure are incomplete and/or contradictory.
- what is the current status of someone legally same-sex married in Maryland who moves to Alabama or Virginia? Are they entitled to Federal benefits under marriage? As Scalia pointed out in his dissent, that is not clear from the opinion of the Court (although I think most would argue they are). Must a state recognize under state law the rights that pertain? The case explicitly did not address that, as Kennedy's opinion shows. But what of someone in the military, or involuntarily transferred by an employer? What about property rights, child custody issues, hospital visitations, the right to make medical decisions? I can imagine that we are going to quickly have to wrestle with these issues, and the courts might have to do so on an expedited basis. This allows one to note the history of Roe v Wade, which was heard on an expedited basis, first by a 3-judge District Court panel, and then directly to SCOTUS. That opens up for students to consider the time usually taken to resolve legal issues, and why in some cases it becomes important for Courts to act more quickly.
- why did Kennedy not address any further issues? Here the issue in Windsor was her rights with respect to Federal law, specifically on taxes. It was possible to resolve her case without ruling more broadly, and in fact the court record does not demonstrate full litigation of other issues, but there is a clear implication. THere are some parallels that might be looked at, specifically Brown v Board, where Warren made clear the Court was prepared to overturn Plessy, but since it could resolve the current cases without doing so, did not.
- use of equal protection clause by Kennedy: in 14th Amendment it applies only to state. This takes us back to several things
-- in his opinion for the Court in Lawrence, Kennedy had only relied on due process. O'Connor had in her concurrence raised equal protection, which one can argue provides a broader basis. What are implications of Kennedy doing this?
-- prior to Bolling v Sharpe, the DC schools case paralleling the Brown cases, the Supreme Court had never applied the Equal Protection Clause against Federal action. How did Warren do this? Why? What are the implications?
- in DOMA, what tools are available to the Federal government still to apply against states and localities that are discriminating against groups of voter? Kennedy in oral arguments had raised questions about both Section 2 and Section3. Section 2 only allows action AFTER, which can be difficult. But Section 3 allows courts to opt in jurisdictions that had not previously been covered under Section 4, the same way that jurisdictions could argue that they should be able to be selected out because of the corrections they had made. How might these work with respect to some of the laws and redistricting now going into effect? If the map of Section 4 has been eliminated, meaning no one is currently covered, is Section 3 still in effect? This was not litigated per se in the case.
It may sound like this is getting into legal weeds. Perhaps. But it also enables students to considere implications of various kinds of governmental and political action. It points out why one's participation can make a difference. It can help them understand that battles for equality and fairness are never completely over. It might even make a difference of where some of them choose to attend college or live, knowing the attitude of that community on certain issues.
And I have not even gotten to Wendy Davis!!! Now, that might be Texas, but opens the door to consideration of a lot of issues
- federal filibuster
- is there a filibuster in Maryland? In county or local government? Why or why not? Is the filibuster inherently undemocratic?
If nothing else, that my mind works this way, that my immediate reaction is to think of how I can use the current events in the classroom, demonstrates that my having kept my user name was appropriate.
I view so many things as teaching opportunities.
I wish I were in a classroom right now.
I look forward to getting back there in August.