The issues are pretty much identical. Here is the District Court’s reasoning in the California case (this is the Court’s summary of the plaintiffs’ position, which the Court endorses):

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to marry the person of one’s choice is a fundamental right protected by the Due Process Clause and…Proposition 8
violates this fundamental right because: 1. It prevents each plaintiff from marrying the person of his or her choice; 2. The choice of a marriage partner is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1…Proposition 8 violates the Equal Protection Clause because it: 1. Discriminates against gay men and lesbians by denying them a right to marry the person of their choice whereas heterosexual men and women may do so freely; and 2. Disadvantages a suspect class in preventing only gay men and lesbians, not heterosexuals, from marrying.

For the record, Prop. 8 does not prevent gay men and lesbians from marrying. All it does is restrict them to marrying people they’d prefer not to marry. With that in mind, it should now be very easy to write the forthcoming Title VII decision. All that’s necessary is to alter a phrase here and there:

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.”…
The freedom to hire the person of one’s choice is a fundamental right protected by the Due Process Clause and … Title VII
violates this fundamental right because: 1. It prevents each plaintiff from hiring the person of his or her choice; 2. The choice of an employee is sheltered by the Fourteenth Amendment from the state’s unwarranted usurpation of that choice…

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” US Const Amend XIV, § 1. According to plaintiffs, Title VII violates the Equal Protection Clause because it: 1. Discriminates against bigots by denying them a right to hire the person of their choice whereas non-bigots may do so freely; and 2. Disadvantages a suspect class in preventing only bigots, not non-bigots, from hiring.

(In fact Title VII does not prevent bigots from hiring any more than Prop 8 prevents homosexuals from marrying, but I’m trying to maintain a strictly parallel structure here.)

Of course Title VII interferes with the hiring decisions of many people who are not bigots, but on the Prop 8 precedent, the effect on bigots should be sufficient to invalidate the law.

Also of course, bigots are held in considerably greater disregard than homosexuals, at least in the circles that I prefer to travel in. But equally of course, the Fourteenth Amendment is designed specifically to protect the rights of people who are held in great disregard.

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In the videotaped sentencing hearing, which you can see in its entirety below, the judge seems bemused by the prosecutors’ choices but unmoved by the defense attorney’s attempt to raise a constitutional objection. The defense attorney, not entirely unreasonably, pretty much loses it.

Michelle Lyn Taylor is now serving a life sentence and will have her first shot at parole ten years from now. Does this strike any of you as reasonable?

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The number of “unauthorized aliens” in Arizona at any given moment is estimated as just under a half million—about the same as the number of Jews in New Jersey. Over half the text of the Arizona law is devoted to penalizing employers who hire these people. Now suppose for a moment that the New Jersey legislature were to pass a bill penalizing anyone who hires a Jew. Would Professor Kobach defend this law, as he does Arizona’s, by pointing out that it doesn’t require anyone to carry a driver’s license?

The anti-immigration hysterics keep warning us that foreigners want to come over here and exploit our welfare system. The insincerity of that stance is exposed whenever, as in Arizona, its proponents set out to prevent those very same foreigners from coming here and working.

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The book in question is The Trial Proceedings of the International Criminal Court by the Israeli law professor Dr. Karin N. Calvo-Goller. According to the reviewer the main part of the book “simply restates the…relevant parts of the ICC Statute.” This rehashing, he adds, is particularly unproductive since a large part of the volume consists of a reprint of the Statute itself.

The author, Dr. Calvo-Goller, disagrees, and has instigated a case of criminal libel against the editor, Professor Weiler. According to Dr. Calvo-Goller:

[The] review…contains false factual statements which the author of the review, a professor of criminal law, could not reasonably believe to be true. Professor Weigend’s review is libellous. It may cause harm to my professional reputation and academic promotion.

Dr. Calvo-Goller also contends that the review is an insult to those who took the time to read and comment on earlier drafts of her book. And she notes that the very same book received a positive review from Judge Kai Ambos, who, she pointedly observes, she has never met.

Dr. Calvo-Goller (who is, after all a law professor) concedes in a letter to Professor Weiler that she is aware of the extent of freedom of expression under the First Amendment to the Constitution of the United States. (Professor Weiler teaches at NYU, well within the boundaries of that country.) However, she notes, “the extent of that freedom ends where its exercise damages the reputation of an individual.”

Professor Weiler responded at great length to Dr. Calvo-Goller’s letter, and to a follow-up letter, defending the good faith and integrity of the reviewer, rejecting the notion that a critical book review constitutes an insult to advance readers, observing that it is not uncommon for a single book to receive both negative and positive reviews, and suggesting that the question of what constitutes a “rehash” might be a matter at least partly of opinion and not of clearcut fact. He invited Dr. Calvo-Goller to respond on the website and passed on her objections to the original reviewer with an invitation to read them and modify his review, an invitation which was not accepted. A year later, Professor Weiler was summoned to appear before a French Examining Judge, and his criminal trial was set for June 25.

Professor Weiler has invited letters of indignation and support to be sent to EJIL.academicfreedom@gmail.com, preferably via attachments on letterhead indicating your affiliation. He has also requested scanned or digital copies of book reviews which are at least as critical as the one in question so as to illustrate that this kind of thing happens all the time.

Tomorrow, I’ll tell you about the book review I’m about to scan.

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Eight out of nine justices (plus retired Justice Sandra Day O’Connor) ignored Turkewitz’s inquiry about what would happen if a secession case were to reach the Supreme Court. Rather astonishingly, however, Justice Scalia responded with the following letter, which Turkewitz’s brother Eric posted on his blog this week:

Now, as Eric Turkewitz observes, Scalia (not for the first time) might be expressing a minority opinion here. By coincidence, exactly the same question was discussed just a week ago over at the Volokh Conspiracy, where Eugene Volokh suggests that a 144 year old military victory could well be considered something short of a definitive resolution of a constitutional issue.

A grateful hat tip to Jon Shea, who called my attention to this remarkable story in a comment to an earlier post.

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