The Supreme Court has announced that it will be hearing both of the major gay-rights cases it was considering this term. Facing constitutional scrutiny are key provisions of the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages performed in the states, and California's Proposition 8, which banned same-sex marriage in the state. When combined with the major affirmative-action and voting-rights cases the court will also be handing down this term, this could be the most consequential Supreme Court term in decades.
The 1938 Fair Labor Standards Act (FLSA), which ushered in many of the worker protections we enjoy today, was a major progressive victory. But as the century that followed it shows, it was by no means the end of the struggle to get workers treated fairly. Employers, aided by conservatives in the executive and judicial branches, have often found ways of ensuring these laws are not fully enforced. Symczyk v. Genesis Healthcare Corp., which the Supreme Court considered yesterday at oral argument, presents another case in which conservatives on the Supreme Court might erect a barrier making FLSA harder to enforce.
Yesterday, the Eighth Circuit Court of Appeals issued a stay blocking the Obama administration's requirement that employer health-insurance plans cover contraception. The related suit was filed by Frank O'Brien, a Roman Catholic business owner who claimed that the mandate violated his rights under the free exercise clause of the First Amendment.
A powerful man sleeping with a younger woman outside the bounds of matrimony may not be uncommon, but when revealed, it inevitably produces a scandal. In the case of the adultery revelations about former CIA Director David Petraeus, however, the banal, tawdry sex scandal is masking a much deeper one. A great deal of intimate personal information has been revealed to the public based on an FBI investigation, despite a rather notable lack of underlying activity that can plausibly be called criminal. There's no particular reason anybody but David Petraeus's wife should care about his sexual improprieties, but we should all care about how easy it is for government officials and employers to invade the privacy of online communications.
Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional—criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the "countermobilization myth"—that is, the idea that victories won through the courts produce unique amounts of political backlash that make them counterproductive. The remarkable wave of success for LBGT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar, remains somewhat ambivalent about the use of litigation to advance same-sex marriage. But ultimately, it provides a powerful case that in the right circumstances, litigation can be an effective tool for social reform.