Associate Professor Aaron Caplan presents on "Don't Ask, Don't Tell" at Georgetown University Law Center

Associate Professor Aaron Caplan spoke at Georgetown University Law Center on November 17, 2010 as part the conference titled "The Future of Don't Ask, Don't Tell". View the video. Caplan is co-counsel for Major Margaret Witt, an Air Force nurse who recently won reinstatement to the military after being discharged for her sexual orientation. The decision in her case established the important legal principle that the U.S. Constitution gives heightened judicial scrutiny to government actions that interfere with one's ability to form intimate relationships (including same-sex relationships). More information on the Witt litigation is available at the ACLU of Washington's website.

Election Hangover: The Real Legacy of Bush v. Gore

By Professor Rick Hasen

Professor Rick Hasen recently wrote this jurisprudence essay, which was published by Slate. It begins:

What's the central legacy of Bush v. Gore, which has its 10th anniversary next Sunday? Republicans see the Supreme Court stopping a lawless recount, while Democrats see a lawless court stopping a legitimate recount. Ten years later, commentators like Jeffrey Toobin protest that Bush v. Gore brought dishonor on the Court. But the Supreme Court's public legitimacy has not suffered.

The real lesson of the Florida fiasco (not merely Bush v. Gore) is about something else: the undermining of the public's faith in the fairness of American elections. This has triggered an ongoing war over their administration.

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With reading and accessing WikiLeaks documents, some law to consider

By Professor David Glazier

There has been significant discussion over the past week about potential consequences of downloading and sharing WikiLeaks documents classified by the U.S. government, ranging from schools' cautions to their students about potential job consequences to government agencies restricting access or discussion. One thing missing from most of this discussion is the relevant law. It does not seem to be widely understood that the public exposure of these documents does NOT declassify them. WikiLeaks can disclose classified information, but it cannot declassify it. As a matter of law these documents retain the original classification assigned to them until such time as an executive branch official with legal authority to alter the classification formally does so, or until the period of time established for them to remain classified has expired. (Many classified documents will be marked with a specified duration for their classification). While it may seem like government agencies endeavoring to limit access to the WikiLeaks site or public discussion of the documents by their employees are engaging in politically motivated censorship, it is in fact consistent with their obligations to enforce the law.

The reason that the fact that these documents continue to be classified really matters is federal espionage law, particularly 18 U.S.C. sec. 793. Most subsections of that statute contain a mens rea requirement that the perpetrator intends or has reason to believe that the information they are accessing or distributing "is to be used to the injury of the United States." I would contend that a citizen accessing information online for the purpose of informing themselves about what the U.S. government has been doing does not satisfy this requirement and could not reasonably be prosecuted under those sections. It is not hard to see, however, that those responsible for leaking the information to WikiLeaks, and potentially those responsible for posting it--knowing it would almost certainly be accessed by foreign governments and groups with interests inimical to those of the U.S. might reasonably be prosecuted under these sections. But the way U.S. espionage law currently reads, any American who simply retains or forwards any of these documents could also find them self violating federal law.

The specific legal provision of most concern is subsection (e) of 18 U.S.C. sec. 793, which reads (with some omissions simply for clarity):

Perry oral argument wrap-up: All three judges interested in the narrow case of California

By Associate Professor Doug NeJaime

Associate Professor Doug NeJaime wrote about the potential implications of Perry v. Schwarzenegger in a post last week. He live-Tweeted today's oral arguments.

While the first hour of oral argument in Perry focused on the question of standing, the second hour moved on to the meat of the case: the substantive merits regarding Prop. 8 and same-sex couples' right to marry. And here all three judges seemed genuinely interested in a narrow framing of the case--as one about whether California has a legitimate interest in taking away the label "marriage" from lesbian and gay Californians while leaving intact a comprehensive domestic partnership regime that provides the rights and benefits of marriage. In other words, can the Ninth Circuit rule that Prop. 8 is unconstitutional without directly impacting marriage restrictions in other states? Indeed, even Judge Smith, the most conservative judge on the panel, pointedly asked Charles Cooper, attorney for the Prop 8 proponents, whether one can find that California lacks a rational basis for the law without also finding that other states lack a rational basis for their marriage bans.

This narrow framing does not appear to be the plaintiffs' strategy of choice. They have consistently argued that lesbians and gay men enjoy a fundamental right to marry under the federal Due Process Clause and that classifications based on sexual orientation should (like race) be subject to strict scrutiny under the federal Equal Protection Clause. Yet various amici have been pushing a more limited framing of the case. The judges appear to have taken these arguments seriously, pressing the lawyers on the complexities of the California-specific reading. Although Ted Olson, arguing for the plaintiffs, maintained his position in favor of a more sweeping ruling, he nonetheless indulged the judges' interest in the more limited reading and set out a compelling argument that Prop. 8 fails a less searching level of scrutiny. And Terry Stewart, representing the City of San Francisco, argued forcefully that the Ninth Circuit could find Prop. 8 invalid under rational basis review because it constitutes nothing more than a classification for its own sake.

The panel's intense focus on the California-specific reading of the case made Romer v. Evans, the U.S. Supreme Court decision invalidating Colorado's Amendment 2, especially central to the argument. And, perhaps unsurprisingly, it was Justice Kennedy who wrote for the majority in that case. The Ninth Circuit panel, or at least Judges Reinhardt and Hawkins, may be preparing to craft a decision favorable to same-sex couples that relies explicitly on Justice Kennedy's earlier reasoning. This would deliver the issue to the U.S. Supreme Court in a way that allows Justice Kennedy to continue where he left off in Romer.

If this less sweeping, more California-centric understanding of the case prevails at the Ninth Circuit, the U.S. Supreme Court would be directly presented with a way to rule in favor of lesbian and gay equality while leaving intact the discriminatory laws of the majority of states. The bigger question of a nationwide right to marry for same-sex couples would continue to wait for its day in court.

Do states have human rights?

By Professor Cesare Romano

This is Professor Cesare Romano's second dispatch from the Conference of the Parties of the Climate Change Convention and Kyoto Protocol in Cancun. Romano reported from the conference last week.

Something that happened in Cancun, at the Conference of the Parties of the Climate Change Convention and Kyoto Protocol (COP/MOP), made me wonder whether and to what extent states enjoy the same human rights individuals do.

To cut a rather long story short, virtually all major modern multilateral environmental treaties are endowed with a body and a procedure to ensure states' compliance with their obligations under the agreement. These are the so-called "non-compliance procedures."

The UNFCCC and Kyoto Protocol have a non-compliance body, made of independent experts, and a procedure to handle cases of non-compliance. Recently, Croatia was found in violation of certain of its obligations by the Compliance Committee's Enforcement Branch. In Cancun, Croatia raised a very interesting question. Namely, it argued that it had a right to appeal the Enforcement Branch's report, asking the matter to be referred to the plenary COP/MOP.

Marriage equality's road to the Court

By Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.

Ninth Circuit overturns murder conviction based on perjured informant testimony

By Professor Alexandra Natapoff

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. L.A. Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and strigent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial.

Read the complete posting.