9th Circuit Reinstates Gay Nurse’s Challenge to “Don’t Ask, Don’t Tell”

The US military's "Don't Ask, Don't Tell" policy is in the news again. An article in the NY Times reports that the 9th Circuit has reinstated a lawsuit filed by Major Margaret Witt, an Air Force nurse, which challenges the policy on substantive due process grounds. Maj. Witt served in the Air Force for two decades, received several medals and was featured in the service’s promotional materials.

While in the Air Force, Major Witt shared a life with a woman not affiliated with the military for six years in Spokane, Wash., about 250 miles from the base to which she was assigned. Although the women kept their relationship private, it appears that a neighbor “called up and said there are these lesbian women living in a house here and one of them is in the Air Force and you should know that.”

After an investigation and military hearing, Major Witt was discharged. She then filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday in Witt v. Department of Air Force, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.

Only two years ago the US Supreme Court dealt with the Don't Ask Don't Tell policy when it upheld the constitutionality of the Solomon Amendment which withdrew federal funds from schools that do not allow military recruiters equal access to on campus interviewing. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR), the court decided that law schools' and law faculties' First Amendment free speech rights were not violated by the Solomon Amendment (10 U.S.C. § 558) because law schools and faculties remain free to voice their opposition to the military's discriminatory DADT policy.

Episode 027 - Conversation with Law Business & Finance Society Members

Episode 027 - Conversation with Law Business & Finance Society Members.mp3

In this pod cast, we listen to Mark Guiliano (Class of 2010 and President of the Brooklyn Law Business & Finance Society), Josephine Vella (Class of 2009 and a Society member) and Pamela Haahr of Bloomberg as they discuss how students at BLS are making use of the library’s pilot program with Bloomberg. Bloomberg.com is among the top five most-trafficked financial sites on the Web, In addition to market analysis, BLS students can also access Bloomberg Law ™, the legal, regulatory and compliance news and research platform of Bloomberg.

Mark and Josephine discuss the history of the Law Business & Finance Society which was formerly the Investment Club. The pod cast discusses the upcoming Investopedia game which the Society is hosting this summer. Investopedia Stock Simulator is a stock market game that is like a fantasy sports pool for investing, simulating the experience of trading in the stock market. June 1 is the last date to register for the Investopedia game run by the Brooklyn Law Business & Finance Society.

California Supreme Court Overturns Gay Marriage Ban

JURIST reports that, on Thursday, the Supreme Court of California issued an opinion in In re Marriage Cases overturning a state ban on same-sex marriage. The 4-3 ruling held that the ban violated protections on the right to "form a family relationship" in the California Constitution. California becomes the second state after Massachusetts to recognize same-sex marriage. In 2003, the Supreme Judicial Court of Massachusetts ruled in Goodridge v. Dept. of Public Health that the state "deny the protections, benefits and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." In 2006, the NY Court of Appeals in Hernandez v. Robles decided that New York law does not permit same-sex marriage and that there is no constitutional right to same-sex marriage.The topic remains a hotly debated issue as religious and conservative groups oppose gay rights advocacy groups who seek to gain the benefits of marriage for same sex couples.

The BLS Library has extensive material in its collection on the topic including these monographs published since the US Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003).

Same-sex marriage and the Constitution / Evan Gerstmann
Cambridge ; New York : Cambridge University Press, 2008 2nd ed
KF539 .G47 2008 Main

America's struggle for same-sex marriage / Daniel R. Pinello
Cambridge ; New York : Cambridge University Press, 2006
HQ1034.U5 P55 2006 Main


Same-sex marriage : the cultural politics of love and law / Kathleen E. Hull
Cambridge, UK ; New York : Cambridge University Press, 2006
HQ1033 .H85 2006 Main



Same-sex marriage : the legal and psychological evolution in America / Donald J. Cantor
Middletown, Conn. : Wesleyan University Press, c2006
HQ1034.U5 S245 2006 Main


The lesbian and gay movements : assimilation or liberation? / Craig A. Rimmerman
Boulder, Colo. : Westview Press, c2008
HQ76.8.U5 R58 2008 Main

Queers in court : gay rights law and public policy / Susan Gluck Mezey
Lanham, Md. : Rowman & Littlefield Publishers, c2007
KF4754.5.Z9 M49 2007 Main

Courting equality : a documentary history of America's first legal same-sex marriages / text by Patricia A. Gozemba and Karen Kahn ; photographs by Marilyn Humphries
Boston : Beacon Press, c2007
HQ1034.U5 G69 2007 Main

Gay marriage : for better or for worse? : what we've learned from the evidence / William N. Eskridge, Jr., Darren R. Spedale
Oxford [England] ; New York : Oxford University Press, 2006
K699 .E85 2006 Int'l.


Gay marriage and democracy : equality for all / R. Claire Snyder
Lanham, Md. : Rowman & Littlefield Publishers, c2006
HQ1034.U5 S58 2006 Main

The place of families : fostering capacity, equality, and responsibility / Linda C. McClain

Cambridge, Mass. : Harvard University Press, 2006

HQ536 .M412 2006 Main

Cause lawyers and social movements / edited by Austin Sarat, Stuart A. Scheingold

Stanford, CA : Stanford Law and Politics, 2006

KF299.P8 C38 2006 Main

Same sex, different states : when same-sex marriages cross state lines / Andrew Koppelman

New Haven, Ct. : Yale University Press, c2006

KF539 .K67 2006 Main

Out of the closets & into the courts : legal opportunity structure and gay rights litigation / Ellen Ann Andersen

Ann Arbor : University of Michigan Press, c2005

KF4754.5 .A93 2005 Main

Courts, liberalism, and rights : gay law and politics in the United States and Canada / Jason Pierceson

Philadelphia, PA : Temple University Press, 2005

KF4754.5 .P54 2005 Main

The long arc of justice : lesbian and gay marriage, equality, and rights / Richard D. Mohr

New York : Columbia University Press, c2005

HQ76.3.U5 M643 2005 Main

The case for gay rights : from Bowers to Lawrence and beyond / David A.J. Richards

Lawrence, Kan. : University Press of Kansas, c2005

KF4754.5 .R525 2005 Main

The future of gay rights in America / edited by H.N. Hirsch

New York : Routledge, 2005

KF4754.5 .F88 2005 Main

Same sex relationships : from 'odious crime' to 'gay marriage' / Stephen Cretney

Oxford ; New York : Oxford University Press, 2006

KD771 .C74 2006 Int'l.

Supreme Court Parody of Gilbert & Sullivan

Legal Times reports that John Barrett of St. John’s University School of Law in NY recently found a parody of a song from The Mikado written by Chief Justice William Rehnquist in 1953 in the papers of Justice Robert Jackson at the Library of Congress. Barrett’s article A Rehnquist Ode on the Vinson Court (Circa Summer 1953), Green Bag 2d, Vol. 11, p. 289 (2008) is available at SSRN. The full text of the parody for all you fans of Gilbert & Sullivan is here.

PARODY: Tune, Pish Tush’s solo from Act I of Mikado
(“Our great mikado, virtuous man, etc.”)

Our Great Chief Justice, Virtuous Man
When He to Rule Our Court Began
Resolved to try
A plan whereby
The Judges might be steadied

So he decreed with stern portent
That who thereafter did dissent
Unless he had the Chief’s consent
Would forthwith be beheaded

This hard decree, of such import
Caused great dismay throughout the court
Verbose and mum, and smart and dumb
Were equally affected

The judges who by F.D.R.
Had come to lord it o’er the bar
Took great offense
At this pretense
By one whom Harry’d selected

Now Stanley Reed evades the ban
In about the only way he can
“Without a label
No one is able
To tell if I’m dissenting”

And Bill and Hugo wrote the Chief
“It is our most considered belief
Your rule has taint
of prior restraint
To it we’re not consenting”

Felix too was up in arms
When Fred stood fast against his charms
“My weekly speech
Should rightly reach
The ears of errant lawyers”

R.H.J. the Chief embraced
“With this restriction on me placed
With Shay and you
I’ll now pursue
The vagaries of baseball.”

Federal Lawsuit Challenges War in Iraq

A press release issued by Rutgers University announced the filing today (May 13) of a law suit, New Jersey Peace Action v. George W. Bush, in the Federal District Court in Newark, NJ challenging the legality of the war in Iraq. The plaintiffs include a group called New Jersey Peace Action and two leaders of the New Jersey chapter of Military Families Speak Out (MFSO), an anti-war organization of people with relatives or loved ones currently serving in the military in Iraq. The Rutgers Law School/Newark Constitutional Litigation Clinic filed the suit seeking a Declaratory Judgment that the preemptive war against Iraq by President Bush in 2003 violated Article I, Section 8 of the US Constitution, which assigns to Congress the power to Declare War. Half a dozen Rutgers Law School students have been working with Prof. Frank Askin and his colleagues in the past academic year studying the issues and preparing the law suit.

According to Askin, the Complaint relies on the annals of the 1787 Constitutional Convention, where the Founders deliberately denied to the president the power to wage war except in response to a sudden attack when Congress did not have time to act. The complaint cites a 19th Century Supreme Court ruling in Bas v. Tingy, 4 U.S. 37, (1800) holding that an all-out, or "perfect," war could only be declared by Congress, but Congress could authorize the president to wage a quasi, or "imperfect," war under strict limits as to scope and duration without a full-scale Declaration, as they did during the quasi-war with France from 1798 to 1800. Bas v. Tingy was the first major US Supreme Court test of the meaning of the power to wage war. It arose during President John Adams' administration when the nation found itself in an undeclared sea war with France in the course of which one of our merchant ships had been captured by the French and then retaken by an American public armed ship. The case involved a suit by the owner of the merchant ship who challenged a 1799 law authorizing an award of half the value of his ship and cargo to a public armed ship that had retaken it from an enemy. The plaintiff argued that there was no declaration of war between the United States and France and that France could not be an enemy. The owner of the public armed ship of course took the opposite view.
The Supreme Court agreed with the owner of the public armed ship dismissing the contention that America and France were not at war because of the absence of a declaration. In Bas v. Tingy, the Supreme Court expanded the concept of constitutionally permissible war to include imperfect war. The next major test of the war powers cam in The Prize Cases, 67 U.S. 635 (1862) where the court shrank the concept of war to include blockades that occurred before the Civil War. The effect of this case was to restrict even further Congress' exclusive franchise to declare or authorize it (as in Bas v. Tingy).

The Complaint acknowledges that earlier law suits challenging U.S. military actions without a Congressional Declaration since the end of World War II have failed in the lower federal courts. The Supreme Court has never held that the president may wage an all-out war against a sovereign nation in the absence of such a Declaration. The plaintiffs in this case face an uphill battle given the history concerning constitutional war powers. The federal courts will likely choose not to intervene, claiming that the disagreement between the president and Congress is a political question. Nonetheless, this will be litigation worth following.

A Firm Grows in Brooklyn

Weil, Gotshal & Manges LLP, one of the largest law firms in the world, announced this week that it will expand its Manhattan headquarters in the former GM Building on 5th Avenue by opening a new office in Downtown Brooklyn's MetroTech Center. The space in 15 MetroTech, within walking distance of BLS, is one of the newest buildings within the MetroTech Commons and a major presence in the Downtown Brooklyn area. The office will house several of the firm's staff groups, including employees in Information Systems, Finance and Operations.

Weil Gotshal is a global law firm of approximately 1,300 lawyers, including over 300 partners. In addition to its New York headquarters, it has offices in Austin, Boston, Budapest, Dallas, Frankfurt, Hong Kong, Houston, London, Miami, Munich, Paris, Prague, Providence, Shanghai, Silicon Valley, Warsaw, Washington DC and Wilmington. Its move to downtown Brooklyn is scheduled for August and is the first for a major law firm.

MetroTech Center spans ten blocks of Downtown Brooklyn between Flatbush Avenue and Jay Street and is located near many of the borough's cultural institutions, including Brooklyn Law School. An article in New York Lawyer (reprinted from an article by Brian Baxter in The American Lawyer) states that “rates in the GM Building run about $120 per square foot while comparable space in Brooklyn costs between $35 and $45.” The proposed Atlantic Yards development project in downtown Brooklyn is serving as a magnet for businesses to relocate to the area.

Law Day, U.S.A., 2008

Fifty years ago, President Dwight D. Eisenhower issued Proclamation 3221 designating May 1, 1958 as Law Day – USA, the first time that Law Day was recognized in the US. The origins of Law Day go back to 1957, when Charles S. Rhyne, President of the American Bar Association (ABA) envisioned a special day to celebrate the American legal system. The idea arose at the height of the Cold War when most countries celebrated May Day or International Workers Day on May 1. Law Day was created to counterbalance these celebrations which were perceived as communist. The issuance of presidential proclamations recognizing Law Day has continued every year since 1958. A complete list of these proclamations with links to the Code of Federal Regulations pages for them is available at the Law Library of Congress page on Law Day.

Brooklyn had a prominent role in the history of Law Day as it was Brooklyn-born Rep. Emmanuel Cellar, Chairman of the House Judiciary Committee, who introduced H. J. Res. 32 which Congress passed as Pub. L. 87-20. Law Day is currently codified in the US Code at 36 U.S.C. §113.

Each year, Law Day events and programs are planned by bar associations throughout the country. This year, the ABA has selected “The Rule of Law” as the theme for the 50th anniversary of Law Day. Today the White House issued a proclamation to recognize “the fundamental role that the rule of law plays in preserving liberty in our Nation and in all free societies”. Interestingly, pursuant to 36 U.S.C. 119, the White House also recognized today, the first Thursday in May, as the National Day of Prayer.