The Volokh Conspiracy Archive

A new article by Prof. Sheldon Bernard Lyke; the abstract:

In an era where diversity often takes center stage, the conversation
around true equality for vulnerable minorities remains pressing. This essay
explores the concept of implementing gay quotas as a pathway to not only
increasing representation but also redefining the legal framework for
equality. The implementation of quotas for lesbian, gay, and bisexual (LGB)
individuals presents an opportunity to address disparities within educational
institutions and workplaces directly. By setting a standard for inclusion,
these quotas could help ensure that sexual minorities have equitable access
to opportunities, ultimately fostering a more diverse and inclusive
environment. Moreover, the legal challenges arising from such policies
could prompt courts to establish more explicit standards for equal protection
related to sexual orientation, creating lasting change.

This essay critiques the current political strategies and Supreme Court
decisions that have led to a muddled landscape for equality, particularly for
sexual orientation. It argues that the focus on diversity as a means of
inclusion has distracted from true equality, especially in the context of race
and sexual orientation. The Supreme Court's inconsistent application of
equal protection principles in cases involving sexual orientation has led to
unclear legal standards. This essay also discusses ongoing discrimination
and harassment faced by LGB individuals in the workplace. Implementing
LGB quotas could push courts to clarify their stance on equal protection for
sexual orientation, thereby setting important legal precedents.

I don't support such proposals, but I thought it was worth noting. For an example of an attempt to implement preferences for "LGBTQIA" in a guaranteed minimum income pilot project in West Hollywood, see this post.

I was also curious about a subject that the article doesn't seem to touch on, which is how the program administrators would determine who is gay, lesbian, or bisexual; I therefore e-mailed Prof. Lyke, asking,

If such a quota is instituted, how can an institution determine whether someone is indeed eligible? Say, for instance, that an applicant says that she is bisexual, because she has been attracted both to men and to women. To be sure, she may publicly appear to be heterosexual—she may be married to a man, for instance—but I take it that this is entirely consistent with bisexuality. Would she have to certify (perhaps under penalty of perjury?) that she is in fact in some measure attracted to women? Would she have to certify that she has in the past had some sort of sexual contact with women?

Litigants often file "petitions for certiorari" asking the U.S. Supreme Court to review a case, or particular questions within the case. The overwhelming number of cases that reach the Court through such petitions. And occasionally one hears someone joking that a concurring or dissenting opinion in a court of appeals decision is the judge's own petition for certiorari: What that means is that the judge is pointing out that the court of appeals' rule is either incorrect or in conflict with other courts', and is hoping that when the losing litigant petitions for certiorari, the Court will read that dissent and perhaps be encouraged to grant the petition and review the case.

But it turns out that federal appellate judges (as few as a two-judge majority on a court of appeals panel) can themselves ask the Supreme Court to review a question, though technically the procedure is called a "certification" rather than a petition. Here's the federal statute, 28 U.S.C. § 1254:

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

Supreme Court Rule 19 further elaborates on this.

To be sure, in practice the Court almost never agrees to hear such certified questions; the last time it did that was in 1981, in Iran National Airlines Corp. v. Marschalk Co. Inc. Here's a 2009 opinion (U.S. v. Seale) in which Justices Stevens and Scalia urged the Court to accepted a certification, but unsuccessfully:

Various departments and programs at UCLA are sponsoring a talk by Rutgers professor Noura Erakat styled Revisiting Zionism as a Form of Racism and Racial Discrimination. And given Erakat's record, "Revisiting" means "Endorsing the Notion that Zionism is a Form of Racism." There are two commentators on her talk. There is no pretense of academic debate here, each of them is ideologically sympatico.

To be blunt, this is antisemitic propaganda disguised as an academic talk. It's the 2025 equivalent of reconsidering whether Jews really bake the blood of Christian children into matzah. Like the blood libels of old, it's a libel invented and spread (in this case by the USSR) to justify mass violence against Jews. For those interested in the origins of the libel and why it's antisemitic in both its origins and intent, see the addendum below.

Of course, Erakat has a First Amendment right to say antisemitic things, and people, in general, have a right to invite her to do so. But look at who is sponsoring her talk. The English Department? The David J. Epstein Program in Public Interest Law and Policy? The Asian American Studies Department?

Even if one wanted to be generous and argue that this is a legitimate academic talk rather than essentially inviting Nick Fuentes in leftist drag, why are departments and programs with no obvious academic connection to Zionism or "Palestine" sponsoring this talk, other than to direct university resources to support Erakat's point of view?

University administrators should not be permitting this. As David L. Bernstein and I recently wrote:

For rather obvious reasons, academic departments should be ideologically neutral and thus should not take a position on political issues. As subunits of the university, departments have no claim to academic freedom. University policy should prohibit academic departments from taking stands on issues of public import. A related issue is university departments hosting controversial speakers. In general, universities should tread lightly in regulating speakers. However, we believe that university administrators can step in when the event the department wishes to sponsor is political rather than academic in nature….

Political groups on campus organized by students or faculty have the right to engage in such activity. But academic departments are not supposed to be political. Perhaps more important, unlike, for example, a student pro-Palestinian group, academic departments are subunits of the university administration, and their actions represent the university. University administrators therefore can and should order departments not to expend university funds on events that primarily serve political rather than academic purposes. Administrators may follow the lead of Wake Forest president Susan Wente. She instructed Wake Forest departments to cancel their October 7, 2024, lecture by Rabab Abdulhadi, who had praised Islamic terrorists and had organized an event where her students could make posters that said, "My Heroes Have Always Killed Colonizers."

I reserve judgment as to whether Erakat's speech qualifies under a loose definition of an academic talk, but I am quite certain that it does not qualify as an academic talk within the field of English or Asian American Studies (which, admittedly arbitrarily, does not include the Middle East). UCLA should be especially sensitive to departments sponsoring antisemitic events far afield from their academic missions, given that its under federal investigation for cultivating an antisemitic environment.

Finally, what's up with UCLA Law School? In addition to the Epstein program (directed by Sunita Patel), the Critical Race Theory program (directed by LaToya Baldwin Clark, and which apparently does not apply critical theory to antisemitism, at all) is sponsoring the talk, as is, ironically, the Promise Institute for Human Rights (directed by Catherine Sweetser), which apparently doesn't believe that Jews are among those who deserve human rights. Dean Michael Waterstone really needs to clean house.

ADDENDUM

First, a definition: Zionism, historically, is support for a Jewish national home within the historic Land of Israel. Zionism succeeded in 1948, in that a Jewish national home was established, the State of Israel. Zionism today means supporting the continued existence of the State of Israel as a Jewish national home. With that framework, there is an extremely wide range of opinions among "Zionists" ranging from extreme liberals to chauvinistic extremists.

On Friday evening, Judge Andrew Oldham of the Fifth Circuit delivered the Barbara K. Olson Memorial Lecture at the National Lawyer's Convention.

I discussed his remarks in my new column at Civitas Outlook. Here is an excerpt:

The world of 2025 is different from the world of 1985. This change raises an inevitable question: Should the Federalist Society, the venerable debating society, also change? This was the theme of Judge Andrew S. Oldham's remarks at the Barbara K. Olson Memorial Lecture. Judge Oldham's speech challenges two FedSoc orthodoxies. First, he asks if the organization should remain, as it always was, a debating society. Second, he questions the merits of expanding the tent to attract more people. He rejects the "libertarian instinct to debate all things" and "focus[] on the big tent" as helping us "los[e] focus on the principles that motivated all of this in the first place." Indeed, Oldham worries that "Big Tentism could turn FedSoc into a right-of-center bar association" where people come to "see and be seen."

At the core of both challenges is Judge Oldham's solemn commitment that originalism provides "clear and objective answers" and that originalists, including FedSoc, should do more to acknowledge those truths. And once the right answer is settled, Oldham would say, there is no reason to debate further. Instead, we should go forth and apply those principles.

And from the conclusion:

I'll close by noting a certain irony. FedSoc chose to invite Judge Oldham to deliver the Olson lecture, likely without knowing what he would discuss. Judge Oldham walked to the podium and laid down what I see as an existential challenge to FedSoc's core commitment to debate. But rather than settling that issue with a clear right-or-wrong answer, Judge Oldham instead started a new debate. And this will not be a debate for the sake of debating.

I thank Judge Oldham for making us think all more deeply about what FedSoc is, and ought to be.

11/12/1975: Justice William O. Douglas resigns.

Tonight, the Court extended the administrative stay in Rollins v. RI Council of Churches for 48 hours. This order blocks the TRO that required the Trump Administration to immediately pay out billions for the Supplemental Nutrition Assistance Program (SNAP). Justice Jackson dissented from the extension of the administrative stay, and from the application altogether.

The order used an unusual locution:

The application for stay presented to Justice Jackson is referred to the Court.

Do you see it? The order uses the passive voice. I could only find a handful of entries on the Supreme Court's docket with this construction, and none in the modern era.

By contrast, usually the structure is that the Circuit Justice affirmatively refers the application to the full Court.

Just last week, the order in Trump v. Orr provided:

The application for stay presented to Justice JACKSON and by her referred to the Court is granted.

The order in Boyd v. Ivey provided:

The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied.

There were thousands of hits with this structure: "and by him referred" or "and by her referred."

What do we make of the use of the passive voice in Rollins? Is it possible that Justice Jackson would have summarily denied the application, and did not refer it to the Court? Did the Chief Justice, or the majority of the Court, override Jackson's decision, and involuntarily refer it to the Court?

I would note that Justice Jackson's earlier orders in this case were a bit unusual. Her administrative stay would "terminate forty-eight hours after the First Circuit's resolution of the pending motion, which the First Circuit is expected to issue with dispatch." I don't recall seeing a forty-eight hour clock. Jackson also required the Solicitor General to file a supplemental brief the same day, and the Council's response was due at 8:00 a.m. the following day.

I wonder if the Court was not consulted with this strange briefing schedule, and then decided to just override Jackson? So much can be inferred from the passive voice.

From yesterday's Eleventh Circuit decision by Judge Stanley Marcus, joined by Judges Jill Pryor and Britt Grant, in Watson v. Kingdom of Saudi Arabia:

This violent and tragic case arose out of a shooting rampage involving Royal Saudi Air Force ("RSAF") Second Lieutenant Mohammed Saeed Al-Shamrani … at Pensacola Naval Air Station … on December 6, 2019. The shooting resulted in [three deaths and serious injuries to many others] ….

[W]e agree that most of the Plaintiffs' [survivors' and victims' families'] claims were properly dismissed for lack of subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act, and the Justice Against Sponsors of Terrorism Act …. {These claims fail either because they fall within discretionary functions that are immune from suit; they are based on acts of omission; they are based on tortious acts committed by Al-Shamrani that did not fall within the scope of his employment; they did not proximately cause the Plaintiffs' injuries; or, finally, they do not establish a prima facie breach of contract claim.} …

However, one group or bundle of the Plaintiffs' claims-those based on the theory that the Kingdom had been grossly negligent in vetting, hiring, and sending Airman Al-Shamrani to the United States—is facially sufficient to survive the jurisdictional attack … because they are based on a series of acts of commission (rather than acts of omission) taken by the Kingdom … that rose to the level of gross negligence under Florida law….

The Amended Complaint tells us that the shooter, Mohammed Saeed Al-Shamrani, was a Second Lieutenant in the RSAF and a member of al Qaeda in the Arabian Peninsula ("AQAP"). He was also a citizen, resident, employee, and agent of the Kingdom of Saudi Arabia. In 2012, Al-Shamrani became active on Twitter, using an account that bore his first and last name and that was easily traceable to him. By 2015, Al-Shamrani allegedly was following religious extremist and hardline clerics on Twitter, and his Twitter account showed evidence of radicalization and the expression of violent anti-American sentiments. Al-Shamrani also allegedly contacted operatives from AQAP by this time.

I thought I'd pass along an item I came across in the 1856 reminiscences of a Philadelphia lawyer (David Paul Brown, The Forum, or, Forty Years Full Practice at the Philadelphia Bar, vol. 1, p. 365), a book I was looking at for an entirely different purpose. The author is offering what he sees as an interesting anecdote about U.S. Supreme Court Justice Bushrod Washington, President Washington's nephew; the question related to the death penalty, not just (as in the more recent family pardon controversy) a lesser felony sentence, but I thought it still provided an interesting perspective, agree with it or not.

Mr. Stockton inquired, "Have you seen the account of the melancholy position in which Governor Desha, of Kentucky, has been placed by the crime of his son?" "It is a sad affair," said the Judge. "But," rejoined Stockton, "the worst of it is, that the son, having been convicted, the Governor, his father, must now decide between signing the death-warrant or a pardon." "And that, you consider a difficulty?" said the Judge. "Certainly," replied the interlocutor; "Why, I would like to know, now, what you, an upright, impartial, and inflexible judge, would do in such a case?"

On July 26, 2024, a cert petition was filed in Veneno v. United States. The Petitioner asked the Court to overrule United States v. Kagama, a precedent that established Congress's "plenary" powers over Indian tribes. The government promptly waived its response on August 8, 2024, I think in an effort to get it into the long conference. The Court requested a response on August 20, 2024. After four extensions, the SG filed its opposition on November 20, 2024.

The petition then entered what I've called docket purgatory. On December 5, 2024, it was scheduled for the January 10, 2025 conference. The case was then rescheduled seventeen times, with the last reschedule coming on June 10, 2025. The case was then distributed to the long conference on September 29, 2025, but no action was taken. The case was relisted three more times.

Finally, on November 10, 2025, the Court put the petition out of its misery, and denied cert. Justice Gorsuch wrote a dissent, which was joined by Justice Thomas.

It seems that Justice Gorsuch spent about eight months trying to get more votes for certiorari, but came up empty handed. By the time the case went to the long conference, it became clear no one else would join, so Gorsuch prepared his dissent from denial.

There is an extended discussion of the discovery doctrine, which most law students read about in Property class.

Next, and leaving the Constitution behind, the Kagama Court gestured to the European doctrine of discovery. 118 U. S., at 381–382. But our Constitution makes no mention of that doctrine. Nor, at least as conceived by the Marshall Court shortly after the Nation's founding, does the doctrine imply plenary federal power over internal tribal affairs. As that Court put it, even after the European "discovery" of North America, Tribes remained "distinct, independent political communities retaining their original natural rights,"with only "the single exception" that they could have no "intercourse with any other European potentate than the first discoverer." Worcester, 6 Pet., at 546, 559 (emphasisadded). From this, one might glean that the discovery doctrinemeant one European nation could assert certain exclusive "rights" of intercourse with Tribes as "against all other European" claimants. R. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict Over the Management of Indian Affairs, 69 B. U. L. Rev.329, 332, n. 6 (1989). Perhaps, too, the doctrine meant that a private party could not buy tribal land without approval from the relevant European national authority. Johnson's Lessee v. McIntosh, 8 Wheat. 543, 604–605 (1823). But even on its own terms, the Marshall Court appreciated, the discovery doctrine did nothing to strip Native American Tribes of "the rights which belong to self government." Worcester, 6 Pet., at 580; see also K. Richotte, The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U. S. Constitution 26–27 (2025); N. Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 208–210 (1984).*

*Even as articulated by the Marshall Court, the discovery doctrine leaves much to be desired. If "discovering" a land is enough to secure certain rights over it, one might wonder why Native Americans hadn't obtained those rights over their lands long before Europeans arrived. As one commentator had already asked by the time of the Nation's founding: "If sailing along a coast can give a right to a country, then might the people of Japan become, as soon as they please, the proprietors of Britain"? R. Price, Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America 23 (1776) (emphasis deleted).

During the tariff case, Justice Gorsuch asked Neal Katyal a question about the Indian Commerce Clause. I could tell this issue was on his mind.

Heard today at the Supreme Court in oral arguments in GEO Group, Inc. v. Menocal, a case about derivative federal contractor immunity, where I filed an amicus brief:

"it is clear from the Court's reasoning and Professor Volokh does a great job explaining this in his amicus brief…"

Today, the Supreme Court refused to hear Davis v. Ermold, a case in which the plaintiff sought to get the Court to overrule Obergefell v. Hodges, the historic 2015 ruling striking down laws banning same-sex marriage. There were no recorded dissents.

Some in the media and the LGBT rights community worried that the Court would take the case and reverse Obergefell. Most informed observers believed otherwise. See my August post explaining why, which built on an analysis by my Cato Institute colleague Walter Olson.

Davis, a former Kentucky county clerk was jailed for six days in 2015 after refusing to issue marriage licenses to a gay couple, claiming she had a constitutional religious liberty right to do so. She was appealing a jury verdict against her for a total of $360,000 in emotional damages and attorneys fees. Her argument for overturning Obergefell was appended to this extremely weak religious liberty claim. I summarized the reasons why the claim is weak in my earlier post on this case:

Davis claims that government officials have a First Amendment right to refuse to issue marriage licenses to couples they disapprove of on religious grounds. It's worth noting, here, that some people have religious objections to interracial marriages and interfaith marriages, among other possibilities. Does a clerk with religious objections have a constitutional right to refuse to issue a marriage license to an interracial couple or to one involving an intermarriage between a Jew and a Christian? The question answers itself….

In the private sector, I think there often is a First Amendment free speech or religious liberty right to refuse to provide services that facilitate same-sex marriages, as with bakers who refuse to bake a cake for a same-sex wedding, website designers who refuse to design a site for such a wedding, and so on…

Public employees engaged in their official duties are a very different matter. They are not exercising their own rights, but the powers of the state. And the services they provide are often government monopolies to which there is no alternative.

In a June post on the tenth anniversary of Obergefell, I explained the great benefits of that decision, why it reached the right result (even though I also believe it should have used different reasoning), and why it is likely to prove durable. Maybe the Court will yet prove me wrong on the latter point. But it was never going to happen in the Davis case.

There are plenty of genuine threats to liberty and equality in these difficult times. We should focus on them, not on mirages like this dog of a case.

I haven't seen it cited anywhere (presumably because it's not on Westlaw or Lexis), and I don't believe I've seen other antebellum case like this from Pennsylvania, either. It's Commonwealth v. Crause, 3 A.L.J. 299, 303 (Pa. Ct. Oyer & Terminer 1846). Crause shot and killed a man who had unjustifiably attacked him; the court ultimately opined that this wasn't justifiable self-defense, because the attack didn't threaten serious harm (not a controversial legal principle at the time):

He [the decedent] had inflicted a blow upon his person. He had made no attempt upon his life. He used no weapon nor had he any weapon about him. There was no apparent danger of loss of life or of great bodily harm. There was no attempted felony upon his person, nor was there any threatened. The deceased was caught by one of the persons present. Those present in the house had interposed to prevent further violence upon the person of the prisoner. Where then was the necessity, this urgent necessity to take his life? The necessity must be a necessity founded in his own safety. It did not exist.

But the court also made opined that the defendant's being armed didn't by itself show that he was guilty of "willful, deliberate and premeditated" (and therefore first-degree) murder, partly based on the right to bear arms:

I just made a new Esperanto film, which I've submitted to an Esperanto film festival (the 7th American Good Film Festival). (It's really short: under five minutes long. And don't worry: it has English subtitles.) It's called "Nova Espero," or "A New Hope."

My kids helped make it (and two have acting roles), and my thirteen-year-old son Mark did the video editing and most of the filming. You might remember my past Esperanto films, "Mesaĝo en botelo" ("Message in a bottle") and "Honesta homo" ("An honest person").

I'm embedding the film below, but most importantly, please click through to YouTube and "like" ("thumbs-up") the video there: "audience favorite" gets a special prize in this film festival! Voting only lasts a week, so please do it now.

(I don't think you can "like" a YouTube video when you watch it on this blog: click on the title at the top of the video to open it in YouTube.)

Thanks to Catie Neilson, the host of this year's festival, and Alex Miller, former vice president of Esperanto USA and indefatigable longtime film festival organizer. Click here to see the full set of films submitted to the festival. (Alex also organizes the local Atlanta Esperantist scene—if you find Esperanto interesting and are in the Atlanta area, let me know and I'll hook you up.)

Esperanto is the most popular of the constructed languages (and has been around longer than Klingon, Elvish, and High Valyrian), is extremely easy to learn, and is even easier to learn these days now that there's an Esperanto course on Duolingo. (Back in 1997-98, I had to learn it using a book. Now, I've finished the Esperanto and Klingon courses on Duolingo.) This film features Ludwik Zamenhof, the guy who founded the language in the 1870s-80s. Next year's world congress will be in Graz, Austria.

And remember, please click through to YouTube and "like" my video (and spread the word)!

From today's opinion dissenting from denial of certiorari in Veneno v. U.S. by Justice Gorsuch, joined by Justice Thomas:

Petitioner asks us to grant review in this case to reconsider United States v. Kagama (1886). Kagama helped usher into our case law the theory that the federal government enjoys "plenary power" over the internal affairs of Native American Tribes. It is a theory that should make this Court blush. Not only does that notion lack any foundation in the Constitution; its roots lie instead only in archaic prejudices. This Court is responsible for Kagama, and this Court holds the power to correct it. We should not shirk from the task.

As "sovereign and independent states," Native American Tribes have governed their internal affairs "from time immemorial." Worcester v. Georgia (1832). Among the sovereign powers Tribes have always enjoyed is the power to redress crimes involving their own peoples. Reflecting as much, a great many Tribes today have courts, not wholly unlike those found in States and counties across the country, open to render justice when one tribal member commits an offense against another on tribal land.

In the Major Crimes Act of 1885, the federal government sought to curtail these traditional sovereign tribal powers. There, Congress effectively wrote its own Indian criminal code, directing that tribal members who commit certain major crimes against other tribal members within "Indian country" may be tried and punished in federal court. Kagama.

The Act may not have completely displaced tribal criminal-justice authorities. Even so, the law surely represented a sweeping assertion of federal power, one that would be unthinkable elsewhere in the United States. Yes, of course, Congress may adopt a variety of criminal laws consistent with its "limited" and "enumerated" powers under the Constitution. McCulloch v. Maryland (1819). But, no, Congress does not enjoy some "general right to punish" crimes of its choosing "within … the States" however and whenever it pleases. Cohens v. Virginia (1821). Our Constitution "withhold[s] from Congress" that kind of "plenary police power." United States v. Lopez (1995).

The Volokh Conspiracy

"Gay Quotas"

Federal Appellate Judges Can Petition the Supreme Court to Review a Question

Institutional Antisemitism at UCLA and Especially its Law School

New In Civitas: Judge Andrew S. Oldham's Barbara K. Olson's Memorial Lecture

Today in Supreme Court History: November 12, 1975

Open Thread

Oh SNAP! Did KBJ Not Refer Rollins To The Full Court?

Lawsuit Against Saudi Arabia Over Al-Shamrani Mass Shooting at Pensacola Naval Air Station Can Go Forward, in Part

Nothing New Under the Sun, Part 2713, Here as to Family Pardons

Today in Supreme Court History: November 11, 1975

Open Thread

After Nearly One Year, SCOTUS Denies Cert In Vehicle To Overrule Kagama

Heard Today at the Supreme Court…

Supreme Court Refuses to Hear Case Seeking to Overturn Obergefell

Seemingly Unknown Antebellum Pennsylvania Case Briefly Mentioning the Right to Keep and Bear Arms

"Nova Espero" ("A New Hope"), a Short Film in Esperanto

Open Thread

Doctrine of Federal "Plenary Power" over "Internal Affairs of Native American Tribes" "Should Make This Court Blush"

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