Following the Fifth Circuit's oral arguments in Alliance for Hippocratic Medicine v. FDA, this brief commentary examines the relationship of Judge Matthew Kacsmaryk’s trial court opinion to the possible stirrings of a conservative Christian rule of law. Recognizing that the Supreme Court's Dobbs opinion formally rejected those prospects, this piece nevertheless asks what the Court may soon do in the case, if the Fifth Circuit doesn't reverse, given existing secular and politically liberal rule-of-law conventions.

Marc Spindelman, Stirrings of a Conservative Christian Rule of Law, The American Prospect (May 29, 2023), https://prospect.org/justice/2023-05-29-stirrings-conservative-christian-rule-of-law/.

Photo by Maria Oswalt on Unsplash.

This brief commentary assesses the national implications of Florida’s anti–diversity, equity, and inclusion legislation, HB 999. At a time when race-based affirmative action cases are again before the Supreme Court, this move by social conservatives in one state legislature could provide a blueprint for courts to “Florida-ize” the nation by intervening against race-conscious, equity-oriented thinking in American higher education.

Marc Spindelman, Sunsetting Racial Justice in the Sunshine State and Florida-izing the Nation, The American Prospect (Mar. 10, 2023), https://prospect.org/justice/2023-03-10-race-legislation-florida-supreme-court/.

Photo by Daniel A. Varela, Miami Herald.

This brief commentary engages state-level constitutional amendment efforts to counter the Supreme Court's Dobbs ruling. It urges reformers to consider a sex equality approach to state constitutional amendments (and interpretation), given the benefits of such an approach over autonomy-focused rivals presently advancing in different jurisdictions.

Marc Spindelman, Countering Dobbs: A sex equality approach by states could protect abortion rights, and then some, The American Prospect (February 21, 2023), https://prospect.org/health/countering-dobbs/.

Photo by Anna Sullivan on Unsplash.

The Dobbs majority repeatedly promised that its elimination of constitutional abortion protections “unequivocally” didn’t “cast doubt on” pro-LGBTQ constitutional decisions, but its conservative constitutionalism and disregard for past rulings made it risky to rely on assurances that LGBTQ marriages and families are safe. In 303 Creative v. Elenis, the Court has a chance to redeem its word by protecting LGBTQ equality again. I argue, however, that if bets are right and the case yields new First Amendment free-speech exemptions to Colorado’s public accommodations law, the Court will squander the chance.

Marc Spindelman, The 'Dobbs' Promise Gets Tested at the Supreme Court, The American Prospect (December 1, 2022), https://prospect.org/justice/dobbs-promise-gets-tested-at-the-supreme-court/.

Photo by J. Scott Applewhite, Associated Press

This brief commentary takes up the question of what Dobbs v. Jackson Women's Health might mean for women's and other people's Fourteenth Amendment sex equality rights. Minimally, it suggests, Dobbs portends next-gen but old-school biology- or nature-based limits on the Supreme Court's constitutional sex equality doctrine. It also scrubs Dobbs to uncover the prospect found in its text that the Court, post-Dobbs, has set the conceptual foundations for mounting an even deeper challenge to existing constitutional sex equality rules, on the theory that cis women are not a "discrete and insular minority," a position whose doctrinal consequences were suggested, and recommended, by Justice Antonin Scalia more than a quarter century ago in his then-lone dissent in United States v. Virginia.

Marc Spindelman, Dobbs’ Other Dangers: Dobbs and Women's Constitutional Sex Equality Rights, Nat’l L.J. (August 1, 2022), https://www.law.com/nationallawjournal/2022/08/01/dobbs-other-dangers-dobbs-and-womens-constitutional-sex-equality-rights/.

Photo by Micaela Parente on Unsplash.

The seeds of unraveling a host of gender-based protections are present in the draft opinion.

This brief commentary takes a close critical look at Justice Samuel Alito's draft opinion for the Supreme Court in Dobbs v. Jackson Women's Health Organization in order to see what it may mean for--and do to--cis women's constitutional sex equality rights--rights which have been consistently and robustly protected for more than a half century, according to Fourteenth Amendment Equal Protection Clause demands.

Marc Spindelman, What Dobbs Means for Women’s Equality, The American Prospect (June 20, 2022), https://prospect.org/justice/what-dobbs-means-for-womens-equality/.

Photo by Gayatri Malhotra on Unsplash.

While most legal commentators believe the battle over abortion is about to shift decisively from the Supreme Court to state legislatures, recent legislative developments are spotlighting the prospect that conservative religious pro-life state lawmakers won’t so easily let the Court leave the field. Extreme pro-life legislation that threatens pregnant women’s lives and health, the sexual choices of all Americans, and the boundaries between church and state may force a continuing role on the Court. Dobbs v. Jackson Women's Health will crucially preview the Court’s attitudes toward those threats.

Marc Spindelman, Dobbs' Dilemma: Why Justice Brett Kavanaugh's Ideal of "Scrupulous Neutrality" in Dobbs is a Pipe Dream, Nat’l L.J. (March 31, 2022), https://www.law.com/nationallawjournal/2022/03/31/dobbs-dilemma/.

This brief commentary takes a close look at Mississippi’s originalist arguments in Dobbs v. Jackson Women’s Health. It shows how Mississippi’s originalism—with its attack on the right to abortion and the general constitutional right to privacy—would destabilize, if not immediately eliminate, well-established constitutional rights protecting sexual freedoms, like contraceptive and intimacy rights, including for heterosexuals. The work notes how the Dobbs Court may attempt to distinguish abortion from other intimacy rights, flags some problems that may arise for the Court if it does, and then traces how a pro-life, originalist decision in Dobbs may galvanize political efforts already afoot legally to reckon with, and rein in, the Supreme Court’s powers.

Marc Spindelman, Mississippi's Originalism: Dobbs v. Jackson Women's Health and the Attack on Sexual Freedom, The American Prospect (October 19, 2021), https://prospect.org/justice/mississippis-originalism/.

Photo: Ken Lund, via Wikimedia Commons.

On June 17, 2017, a small group of queer Black trans protesters and allies blocked my hometown’s pride parade. The plan was to “silently block[] the [Stonewall Columbus Pride] parade for seven minutes to hold space for Black and brown queer and trans people.” The seven minutes corresponded to the seven bullets police officer Jeronimo Yanez fired at Philando Castile at close range, killing him, an act Yanez was charged for, but acquitted of the day before Columbus Pride. Nothing like those seven bullet minutes passed before Columbus police swiftly and forcefully stopped the protest, arresting “four Black queer and trans folks” on various charges. Those arrested became famous as the “Black Pride 4.”

Marc Spindelman, LGBTQIA+ Pride, 2022: The Story of the Columbus, Ohio #BlackPride4, Five Years On, JOTWELL (June 20, 2022) (reviewing Zane McNeill & Kyra Smith, Whose Pride Is This Anyway? The Quare Performance of #Black Pride4, in The Palgrave Handbook of Queer and Trans Feminisms in Contemporary Performance 203 (T. Rosenberg, et al., eds., 2021)), https://equality.jotwell.com/lgbtqia-pride-2022-the-story-of-the-columbus-ohio-blackpride4-five-years-on/.

Photo: Columbus police forcibly move a group of Black queer and trans protesters and allies disrupting the 2017 Pride parade.

Marc Spindelman, Anti-Abortion "Heartbeat Bill" Unlikely to Withstand Court, Cincinnati Enquirer, Apr. 24, 2011.

Photo by Hush Naidoo on Unsplash.

This article is adapted from a talk that was publicly delivered on Tuesday, March 31, 2020, as part of “COVID-19: A Virtual Up-to-the-Minute Discussion of the Pandemic’s Impact So Far,” sponsored by The Ohio State University’s College of Public Health. It reflects on lessons from law students in the early, uncertain days of the COVID-19 pandemic.

Marc Spindelman, COVID-19 and Law: Mutual Aid, Civic Friendship, and the Bad Man, Medium.com, go.osu.edu/medium (May, 25, 2020).

Photo by CDC on Unsplash.

Marc Spindelman, Protecting Suicide and Hurting Women, Legal Times, May 27, 2002, at 51.

Photo by Marcelo Leal on Unsplash.

Marc Spindelman, Ohio Court Redefines the Future for Gays, Lesbians, The Plain Dealer, August 16, 2007, at B9.

Photo: Dan Konik, Statehouse News Bureau.

Marc Spindelman, The Honeymoon’s Over, Legal Times, June 12, 2006, at 66.

Reprinted in Kelly Barth, Issues on Trial: Domestic Violence (2008).

Photo by Anthony Delanoix on Unsplash.

Marc Spindelman, The Year of Assisting Death: Report on Oregon’s Assisted-Suicide Law Paints Too Rosy a Picture, Legal Times, Mar. 22, 1999, at 22.

Reprinted as Death Be Not Proud: Overstating the Success of Oregon's Assisted Suicide Law Serves Neither Its Detractors Nor Its Proponents, Law.com, Mar. 25, 1999, available online at https://www.law.com/almID/900005513677/.

Photo via CreativeCommons

Marc Spindelman, Reliance on Public Opinion is Misplaced, Legal Times, Mar. 25, 1996, at 23.

Photo by Olga Kononenko on Unsplash.

Marc Spindelman, Case Threatens Male Supremacy, Legal Times Oct. 6, 1997, at S38.

Photo by Clyde Thomas on Unsplash