July 2, 2015

Love Wins, America Loses

America is 239 this year. It’s a great place if you ask me. I haven’t been to a lot of places outside of the United States, but I’ve been to enough to know that this is the greatest place on the planet to live. I’m grateful every day that I somehow landed here when I was born.

A couple years ago I did a post about America and how lawyers were great defenders of freedom, especially Justice Kennedy on the Supreme Court.  One of the quotes I shared at the time from his Prop8 dissent was: “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.”

Apparently Justice Kennedy forgot this when he wrote his majority opinion in Obergefell v. Hodges essentially making same-sex marriage legal nationwide. As Chief Justice Roberts notes in his dissent: “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

The Justice Kennedy of 2013 agreed with that statement. Instead, the Justice Kennedy of 2015 thinks that his opinion is now more important than that of the people. His opinion is not based on any precedent whatsoever. Now, don’t get me wrong, the Court has always found new implied, fundamental rights (i.e. right to privacy, right to travel, etc.) under a Fourteenth Amendment Substantive Due Process Analysis. The problem is that they completely abandoned any principles that they typically adhere to. As Justice Kennedy said himself “One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.” As Justice Roberts points out, there are specific guidelines the Court adopted to protect the Court from subverting the democratic process. After emphasizing the importance of judicial restraint in these types of situations, Roberts explains that “[o]ur precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

Roberts points out the legal and logical flaws in the Majority’s Due Process analysis and sums it up by saying “The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now.”

Roberts also shows the flaws in the Court’s Equal Protection Clause analysis by saying that “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions….In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”

As both Roberts and Scalia point out, this is worrisome for a democratic society. With one opinion and five votes, half of the state’s marriage laws were invalidated. This is despite the recognition by Justice Kennedy two years ago that “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” Apparently no more. The debate that was occurring at ballot boxes across the country is now ended. If this case sets the precedent that five people can end the democratic process on a particular issue, as Justice Roberts points out, “Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”

In a lot of ways this has been a long time coming. Alexander Hamilton warned about the danger of the numeration of specific rights in the Constitution in The Federalist Papers.  I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.” Essentially, Hamilton was saying that the Constitution itself is a Bill of Rights to let the people govern themselves and protect them from the Government depriving them of liberty.

Justice Thomas sums it up well in his dissent in Obergefell, as he rejects the only real argument that the Majority makes in favor of its decision: dignity. “The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity….Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.” We are all children of God and that indeed does give us inherent worth.

Regardless of where you are on the issue, the Court’s ruling is worrisome. Religious freedom is on the attack. If you support traditional marriage, you are a hater. A bigot. Intolerant. The court essentially agrees with that by not even mentioning or recognizing religious freedom in its opinion. The irony is that many states have protecting religious freedoms when legalizing same-sex marriage through the democratic process. In so doing, the Court and society as a whole has forgotten the definition of tolerance. “A fair, objective, and permissive attitude toward those whose opinions, beliefs, practices, racial or ethnic origins, etc., differ from one's own.” By not accepting the other side’s view, they are showing their intolerance. It’s a two way street. We will have to see how this one plays out, but it does not look good.

Our system is founded on the rule of law, and this decision provided neither predictability nor stability regarding any sound legal theory. It was nice prose and sounded good. I mean who can object to Kennedy’s closing statement sounding good. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” What the Justice Kennedy of 2015 forgets is that it wasn’t for him to decide what the definition of Marriage is. That is for the people to govern themselves. For as he said himself “The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.” 

May 4, 2014


I have had a lot of great professors during law school, but only one fits the bill of e pluribus Unum. I've had Prof. Drobac 4 of the six semesters of law school. She was my first year contracts professor, as well as my family law and sexual harassment law professor. She wrote the textbook on sexual harassment law. I think that is cool because I can actually say I took a class from someone who wrote the textbook on that subject.

The reason I like her mainly is that she doesn't take herself too seriously. She has a doctoral degree from Stanford, but still likes to have fun. The margins of my notebooks from her classes are filled with one liners that crack me up. One time she lectured while eating a donut. It was fantastic.

I also like her because her exams are the fairest of them all. She doesn't try to hide the ball from you and she tells you upfront what she is looking for on her exam. She also has a rubric that she distributes after the fact to show you what she expected. No law school professor typically ever does that. You really can't ask for anything more and I've been relatively successful on them, which helps her likability factor.

The interesting part in all of this is that she is a flaming liberal. Almost completely opposite of where I stand. Her motto is "I will march in the streets for your right to march in the street" for points of view that she doesn't agree. She practices what she preaches. Even though she clearly supports same-sex marriage, she did the best job of any professor representing both sides of the issue, which I appreciated.

At the end of the day, I'm grateful for J-Dro. My first year of law school was tough, in many respects, but also grade wise compared to where I was at at BYU. Because I did so well in her class I realized that I could be successful at law school. My grade in first year Contracts helped me realize that if J-Dro thought I could do it, then I could. It was a pleasure being taught by J-Dro. I will miss her.

Civil Practice Clinic

The past two semesters I've had the chance to be in a clinical course that gets you actual cases and the opportunity to do real legal stuff. I got to become a Certified Legal Intern which means that I've taken more than 45 credits and Professional Responsibility and have a supervising attorney watching what I do. This basically lets me be a real attorney as long as I have a supervising attorney signing off on things.

Prof. Hagan was my supervising attorney and she was fantastic. She did a good job of letting you have complete control. Even when I didn't know what to do, she would force me to figure out what to do. Really good at knowing exactly what to say. She also taught us basic skills that every attorney needs to know (i.e. how to be a lawyer).

We have this really cool workspace in the Law School that is basically its own separate law practice.

The cases we take are pro bono. That means that we don't charge for our services and we help those individuals who can't afford to pay for legal services. It is very rewarding and I learned a lot in the process. My busiest case was a landlord/tenant case where the landlord didn't give back the security deposit. It was interesting because it was an appeal of small claims decision. To make a long story short, after a three year legal battle I was able to get my client her security deposit back. It was really rewarding. I got to attend a hearing, write a motion for summary judgment and deal with an unresponsive attorney. Stuff that happens on a regular basis in the real legal word. If you ever go to law school, make sure you take a clinic.

April 30, 2014

The Bluebook

Whenever you write scholarly, academic papers you always have to use citations using the proper format. There is MLA. APA. Chicago/Turabian (preferred by the BYU Poli-Sci department). Despite the existence of these great citation systems somewhere along the line, legal academics decided to come up with their own citation system. Basically a bunch of students at Columbia, Harvard, Yale and UPenn were bored one day and decided to come up with a bunch of rules.

So many rules with so many different distinctions for the most useless things. They also use small caps a lot. I got real friendly with this book during the writing of my law review note. I don't understand why we just can't use one of the other standard citation systems. Anyway, just another oddity of law school.

Take Home Finals

Law school finals are the worst thing in the world. First, in most classes it is your only grade. So everything is riding on that. Second, they throw everything and kitchen sink at you to figure out. My first final this year was a take home final. Most of the time take home exams are better because you typically have a longer period to take them and you can take them whenever and just submit them via the internet. They are also open note, so you don't have to worry about memorizing anything.

My final in Environmental Compliance and Enforcement only allowed two hours to take the exam. He wanted us to do 40 multiple choice and 20 + short answer. It was brutal, but the important thing is that it is over. Only one more final to go on Friday!

April 27, 2014

The Talk

In the Church of Jesus Christ of Latter-day Saints at its Sunday worship services members of the Church get to give talks. It's not just a pastor giving a sermon, but rather members of the congregation giving talks about various Gospel topics. It's just everyday men and women giving their insights about different topics. I really like it because everyone has unique insights about Gospel topics. Today, I had the opportunity to address my congregation. I was assigned to talk on one of the talks at the most recent General Conference. I gave mine on Elder Zwick's address entitled "What do you think?"


When I moved to Indy I really didn’t know anything about it. One of the most important questions when you move to a place is where you go grocery shopping. During undergrad I just went where my roommates were going since I didn’t have a car. If Owen was driving, I went to Smiths. If Mike, then Maceys. When I moved here I had a few options including Kroger and Marsh. I found out Kroger actually owns Smiths so I decided to go with that.

I really like Kroger for a few reasons.

  1. 1.       You can use your smith’s card there so I never had to get a new card.
  2. 2.       You earn points that get you discounts on gas. Given the expensive price of gas these days that really makes a difference.
  3. 3.       Most of the time, when they have things on sale they are cheaper than Walmart.
  4. 4.       They reward loyalty. Since I have shopped with them for so long, they now send me coupons in the mail that are very impressive, most of the time they include free coupons or five dollar off coupons. The mail coupons are also specifically tailored to me based on what I buy. They also have a free Friday digital coupon that you can use as well.

The most important reason though is because Kroger is willing to go to places that other low cost retailers aren’t. If you go to the rough parts of Indianapolis you will not find any Walmarts or Targets. Besides Kroger, you find a lot of Family Dollar and Dollar Generals. I think those stores are overpriced and take advantages of the poor people in the surrounding neighborhoods. Kroger is the only reasonable choice. They also give back to the community and hire people from there as well. That’s why I’m all about Kroger!