Emory Law Journal Online

Volume 63

Unhinging Same-Sex Marriage From the Constitutional Canon: The Search for a Principled Doctrinal Framework

Anthony Michael Kreis

63 Emory L.J. Online 1 (2014)

Time and again, the Supreme Court has reinforced the bedrock principle that marriage is a fundamental right. However, when it has significantly extended that right to expand the constitutional freedom to marry, the Court has not relied upon the type of analysis advocated by Justices Scalia and Alito in its recent case, United States v. Windsor. This Essay highlights the improper formulation and application of the Due Process Clause in the dissenting opinions in Windsor through the lens of the Courtís decisions on prisonersí marriage rights and interracial couplesí marriage rights. The Essay concludes that the framework endorsed by Justices Scalia, Thomas, and Alito is an impermissible, stark departure from precedent that would introduce an element of subordination into the substantive due process doctrine. [Continue reading]

Response to The Law of the Body by Meredith M. Render

E. Richard Gold

63 Emory L.J. Online 11 (2014)

Despite the positive aspects of her article, Professor Gold invites Professor Render to either elaborate or simplify her argument regarding a "law of the body."  Intended as constructive criticism of an article that seeks to move into novel space, Professor Gold's comments focus upon the following: (a) the theoretical foundations of the proposed property right; (b) the practical implications of the definition of the subject-matter of the right; and (c) to Professor Render's invocation of social norms in support her argument. [Continue reading]

Patient Autonomy, Physician Obligation, and State Licensing Authority in The Constitutional Right Not to Kill: A Response to Professor Mark L. Rienzi

Jessica L. Roberts

63 Emory L.J. Online 1 (2014)

Professor Roberts posits that Professor Rienzi argues so convincingly in favor of a constitutional right not to kill that he perhaps proves too much. In this critique, Professor Roberts argues that Professor Rienzi's well-crafted article remains silent on a point of substantial import: Who would exercise such a right and under what circumstances? Or put differently, when has the state compelled one person to kill another? [Continue reading]