The Federalism Project

American Enterprise Institute

In the Courts

Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive.  

State Rules and Homosexual Rights

California Supreme Court Annuls Gay Marriages

Lockyer v. Lewis  

August 2004

Lockyer v. Lewis takes a pass on whether the California constitution permits (or rather, mandates) same-sex marriage. The decision considers, instead, the narrow issue of whether local officials (read: the San Francisco mayor) can engage in their own free-wheeling constitutional interpretation. Answer, no. They must wait until the California Supreme Court engages in their own.

Won't be long now: the validity of California's one-man, one-woman marriage law (Proposition 22) is working its way through the lower courts. 

Does Florida's Ban on Homosexual Adoption Violate  Federal Constitutional Rights?

No: Lofton v. Department of Children and Family Services 

January 2004

According to the 11th Circuit, recent federal court opinions vindicating homosexual rights (Lawrence, Romer) do not effect state bans on homosexual adoption. Adoption is unique business: "because of the primacy of the welfare of the child, the state can make classifications (here) that would be constitutionally suspect in other areas." Adoption is a privilege, not a right, so state laws limiting access need only have a rational basis (here, that gay parents adversely effect little one's well being). The Court admits that scientific evidence of harm might not be entirely convincing, but it has no interest in entering the political thicket. When the legislature finds evidence favoring gay adoptive parents, it can jolly well change its mind.



Commerce Clause 

 Can the Feds Reach State Medical Marijuana Laws through the Commerce Clause?

No: Raich v. Ashcroft  

December 2003

California's Compassionate Use Act (1996) allows the cultivation and use of marijuana for medicinal purposes. It is in direct conflict with the federal Controlled Substances Act, which classifies pot as an illegal article of commerce. While, normally, state law would be squelched in this showdown, the Ninth Circuit decided to keep it standing. The CSA is a commerce clause law, and, according to the judges, it goes beyond Congress' commerce clause powers to enact it.. 

The Ninth Circuit, it seems, has developed a taste for Lopez: marijuana legalized under California's law has an intrastate, noncommercial character since it is used for personal medical purposes. "The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity," at least after the Rehnquist Court's recent rulings.

Live by the sword, die by the sword: we are, in some ways, impressed. California should be encouraged to develop her own moral regime and look after the health and safety of her citizens. But, as Judge Beam points out in dissent, this is not an easy case: it's difficult to distinguish it from Wickard, some of the activity in question here seems economic, and similar laws now permitted in other states will certainly create an aggregate effect (compare this to the homemade guns and porno cases, below, and make your own conclusions). Too bad a political accommodation couldn't have been reached with the DEA that would have avoided this showdown. 

decision here

Commerce and Home-Made Machine Guns

United States v. Robert Wilson Stewart  

November 2003

It is clear, to federal court judges, that Congress may regulate firearms that are sold in interstate commerce. Here, the a 9th Circuit panel took up a finer question: does the same power apply to do it yourself projects? Mr. Stewart's possession, at issue, was a homemade job from a kit (please, don't try this at home), and thereby never moved through channels of commerce. Judge Alex Kozinski, writing for a three judge panel, declined the commerce clause- expanding invitation. 

But what about the fact that some parts of the gun came from out of state? "At some level, of course, everything we own is composed of something that once traveled in commerce," he explains, "this cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless."

But what about substantial effects? Surely the homemade gun effects gun sales, in some way? The Judge declined, by way of Wickard v. Filburn. "By crafting his own guns and working out of his own home, Stewart functioned outside the commercial gun market. His activities obviously did not increase machinegun demand. Nor can we say that Stewart’s homemade machineguns reduced overall demand. Unlike wheat, for example, which is a staple commodity that Filburn would probably have had to buy, had he not grown it himself, there is no reason to think Stewart would ever have bought a machinegun from a commercial source, had he been precluded by law from building one himself."

Viva la petite revolution.

decision here

1st Amendment

State Law, Federal Law, and Public Religion

In August 2004, the first district court of appeal of Florida released Bush v. Holmes, its much-awaited school voucher decision. Judge Van Nortwick, writing for a 2-1 panel, ruled that the states' Opportunity Scholarship Program--which provides scholarships for students in failing schools to be used toward secular or religious alternatives--violates the state constitution. Article I's "no aid" provision means no aid, the Judge explained; if Floridians don't like it they should change their constitution.

While this opinion is a disappointment from the perspective of  school choice, the majority opinion is respectful, and even admiring, of Zelman v Simmons-Harris, the 2001 Scotus case upholding Ohio school choice. According to Judge Van Nortwick, vouchers pose no threat to the federal Constitution; states may embrace them, or reject them, according to their own policy preferences. That a more mediated, federalism-friendly view of the establishment clause is being accepted by state judges is an encouraging development. 

Less encouraging, perhaps, is the court's refusal to take the free exercise clause seriously in this context. It is a real question whether the clause prohibits anti-religious state discrimination, in the guise of "no aid" amendments--and not one Judge Van Nortwick has much interest in . While the Federalism Project agrees with the Judge that states should be given some 'play in the joints' (ala last Term's Locke v Davey) when deciding whether or not to benefit religion, we remind that there is something distinctly unconstitutional about rank discrimination. 

decision here