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YALE LAW SCHOOL
Fall Term 1997 Examination
Constitutional Law
January, 1998
(Self-Scheduled-- Twenty Four Hours)
Professor Balkin
Instructions
1. This examination consists of three essay questions.
Each has equal weight in determining your grade. Your answers
to the three questions combined should total no more than
6,000 words.
2. Please read each question carefully and pay attention to what you
are being asked to do.
3. If anything about a question is ambiguous, decide what you think
is meant, tell me what you think is meant, and answer the question
accordingly. No reasonable resolution of an ambiguity will be
penalized. If you need to assume additional facts in order to answer
a question, state what those facts are and how they affect your answer.
4. You may either type your exam (which I prefer) or use blue books.
If the latter, please use a separate blue book for each
question. Mark the number of the question on the front of the
blue book. If you need more than one blue book for a question,
that is fine, but indicate on each blue book which question it
answers and in what order it is to be read. Write on only one side of
the page. Skip every other line. The easier your answer
is to read, the more appeal it will have when it is viewed at 2:00 in
the morning.
5. Think before you write. Organize your answer. You get
extra points for clarity and succinctness. You get penalized
for an answer which is disorganized and confusing.
6. This exam is open book.
7. Good luck.
Question One
In response to litigation challenging its marriage laws, the
Confusion State Legislature passed a new marriage statute that
allowed same sex couples the same rights to marry as currently
enjoyed by opposite sex couples. In response, the United States
Congress passed the We're Really Serious This Time Defense of
Marriage Act of 1998. The Act has two parts. The first part stated
that no marriage license may be issued in any state and no marriage
may be legally recognized in any state unless the marriage was
contracted "between a man and a woman." The Act further
requires state officials to refuse to issue marriage licenses to any
couple other than "a man and a woman."
The second part of the Act withdrew all federal subsidies for state
programs providing prenatal care, state supported marriage counseling
programs, and state programs for preventing domestic abuse, unless
(1) state governments pass laws stating that legal marriages will
only be recognized "between a man and a woman," and (2)
state officials enforce such rules in the issuance of marriage
licenses. The terms "man" and "woman" were not
defined in either part of the statute.
Shortly thereafter, the State of Confusion passed the Comprehensive
Marriage Act of 1998, defining marriage as "a solemn agreement
between a man and a woman." The Act then proceeded to offer the
following definitions:
For purposes of this Act
(1) "man" means a person who
(a) is genetically identified as male,
(b) who has male sex organs,
(c) or who appears to be male.
(2) "woman" means a person who
(a) is genetically identified as female,
(b) who has female sex organs,
(c) or who appears to be female.
The Act further provides that the decision whether a person is a man
or a woman is to be judged by the local authority issuing the
marriage license. Persons who disagree with the local authority's
decision may bring an action in state court seeking to prove their
sexual identity according to the definitions set forth in the statute.
After the passage of the Comprehensive Marriage Act of 1998, local
officials within the State of Confusion issued four marriage licenses:
(1) The first license was issued to a gay couple consisting of
two males where one partner arrived at the license bureau dressed as
a woman.
(2) A second license was awarded to a person identifying
himself as male and another person who claimed to be a hermaphrodite
with some male and some female sex organs.
(3) A third license was awarded to a woman and to a person
identifying himself as male and who claimed he had male sex organs,
but who also stated that he had an XYY chromosome instead of an XY pair.
(4) A fourth license was awarded to a man and to a person who
identified herself as female and dressed as a female but who also
admitted that she used to be a man before taking a course of hormone
treatments and undergoing sex change surgery.
Upon hearing of that officials in the State of Confusion had issued
marriage licenses in these cases, the U.S. Department of Health and
Human Services announced that the State of Confusion was in violation
of the We're Really Serious Act and that the Department would
immediately withdraw all funding for the relevant programs mentioned
in the Act to the State of Confusion. The State of Confusion then
informed the four couples that their marriage licenses were invalid.
The couples then brought an action in federal court challenging the
constitutionality of the We're Really Serious Act of 1998 and the
Comprehensive Marriage Act of 1998 both facially and as applied to
their cases. The state of Confusion, in turn, sued the Secretary of
Health and Human Services claiming that the We're Really Serious Act
of 1998 was unconstitutional.
Discuss the constitutional issues raised by the litigation. For
purposes of this question you may assume that between them the State
of Confusion and the four couples seeking marriage licenses have
standing to raise all constitutional issues that may be involved.
Question Two
Most (but not all) of the materials we have read in this course have
involved interpretations of the Constitution by members of the United
States Supreme Court. On the other hand, we have repeatedly seen that
judicial interpretations of the Constitution tend to respond to large
scale changes in political climate and to the demands of successful
social movements.
To what extent is this descriptive claim-- to the extent that it is
accurate, which it may not always be-- also a normative claim about
the proper role of judges in a constitutional democracy? In other
words, to what extent should judges interpreting the
Constitution pay attention to and deliberately attempt to respond to
large scale changes in political climate or to the growth and
ascendance of new social movements as a justification for how they
interpret the Constitution?
In the alternative, is the proper approach-- as Justice Kennedy
suggested in his interview with our small group-- to ignore existing
public opinion and decide cases purely on the basis of sound
constitutional principles and good legal analysis? Could one defend
this approach-- although Justice Kennedy himself did not suggest this
possibility-- on the grounds that such a deliberate attempt to
separate law from politics might result in a much more faithful
reflection of the political mores of one's time than any conscious
attempt to respond to political consensus could?
Please construct an essay answering these questions, drawing on
historical examples and cases we have studied in this class.
Question Three
This question has two parts.
(1) Please answer the following multiple choice question:
The United States Constitution has been amended
(a) fewer than twenty-six times.
(b) twenty-six times.
(c) twenty-seven times.
(d) more than twenty-seven times.
(e) none of the above.
(2) Write an essay explaining and defending your answer to part (1),
drawing on historical examples and legal materials we have studied in
this class.
END OF EXAMINATION
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