by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Happy New Year from Text & History! While we and many others were away enjoying the holiday break, a number of events occurred around the country that implicate several different provisions of the Constitution, including some lesser known but hardly insignificant portions of the text. Americans may take a vacation, but the Constitution never does. Here’s a recap:

• The Exclusion Clause — Can the Senate Bar Blago’s Appointee?

Ignoring calls that he not exercise his power under state law to appoint someone to fill Barack Obama’s Senate seat, embattled Illinois Governor Rod Blagojevich on December 30 named former state Attorney General Roland Burris to finish Obama’s senatorial term. This brought an immediate promise by Senate leaders not to seat Burris, a plan that garnered approval from the President-elect. Although some seem to be taking it for granted that the Senate can bar Burris, does it really have that power?

Article I, Section 5, Clause 1 of the Constitution provides that “Each House shall be the judge of the elections, returns, and qualifications of its own members.” At least in a literal sense, there would seem to be no issue of “elections” and “returns” here, so if the Senate is to turn Burris away under this Clause, it appears, again at least literally, that it could only do so pursuant to its right to judge the “qualifications” of its members. But what does that word mean?

Well, back in the 1960s, the House of Representatives refused to seat New York Congressman Adam Clayton Powell, who had been reelected even though a House subcommittee found that Powell had misappropriated congressional funds. Powell sued, and in a 1969 opinion by Chief Justice Earl Warren in Powell v. McCormack, the Supreme Court held that under Article I, Section 5, Clause 1, “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” That is, the constitutionally specified qualifications of age, citizenship, and residency.

No one has suggested that Roland Burris lacks any of those “qualifications” for membership in the Senate. Thus, with Burris fighting for Obama’s seat, and Senate leaders determined not to let him have it, it’s not clear exactly how all this will play out. One thing does seem pretty clear, however — the controversy over whether Burris will be able to take a seat in the Senate is only just beginning. (For a more detailed analysis of the constitutional questions involved, see Lyle Denniston’s post on Scotusblog here.)

And who said that examining relatively obscure constitutional text isn’t fascinating?

• The Full Faith and Credit Clause to the Rescue

Speaking of constitutional provisions that aren’t exactly on most people’s tongues . . . the Full Faith and Credit Clause — hardly a household name — recently provided a very welcome holiday present to a gay male couple and their adopted son. In 2006, Oren Adar and Mickey Smith adopted a baby boy in New York through an order of adoption duly entered by a New York family court. Because the boy had been born in Louisiana, Adar and Smith asked that state for an amended birth certificate for their son listing them as the boy’s legal parents. The new document was necessary among other reasons because without the birth certificate, Smith had been having difficulty obtaining health insurance coverage for the boy under his employer’s policy.

Louisiana, however, refused to issue an amended birth certificate, even though Louisiana law requires that when a child born in Louisiana has been adopted in another state, Louisiana must issue an amended birth certificate to the adoptive parents upon presentation of the adoption decree. According to the Louisiana Attorney General, because that state does not allow unmarried parents to adopt, it was not required to recognize the New York adoption decree.

Adar and Smith brought suit in federal court in Louisiana. Represented by Lambda Legal, the parents argued that Louisiana’s refusal to recognize the New York adoption decree violated the Full Faith and Credit Clause of the Constitution (Art. IV, Sec. 1), which requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (Emphasis added.) Louisiana, however, argued that the state should be exempt on public policy grounds from giving “full faith and credit” to an out-of-state adoption decree that Louisiana itself would not grant.

In an opinion issued on December 22, federal district court Judge Jay Zainey — a George W. Bush appointee — rejected the state’s argument as contrary to “the long history of precedent regarding full faith and credit of [court] judgments.” Adar v. Smith, 2008 WL 5378130, *4 (E.D. La. Dec. 22, 2008). Quoting the Supreme Court, Judge Zainey wrote that one state’s obligation to recognize the judgments of another state is “exacting.” Id. (quoting Baker v. General Motors Corp., 522 U.S. 222, 233 (1998)). Judge Zainey therefore granted summary judgment to Adar and Smith and ordered Louisiana to issue an amended birth certificate for their son. No word yet on whether Louisiana intends to appeal.

• He’s Baaaack . . . Michael Newdow Challenges “Alteration” of the Presidential Oath

Michael Newdow, perhaps best known for his unsuccessful efforts to have the courts strike the phrase “under God” from the Pledge of Allegiance, has also been on another quest — to keep presidential inaugurations free of government-sponsored prayer. In 2001, shortly after George W. Bush’s first inauguration, Newdow filed a lawsuit in federal court seeking a declaration that the prayer delivered by clergy during the ceremonies violated the Constitution; he filed a similar suit before President Bush’s second inauguration in an effort to bar prayer at that event. Newdow lost those cases on standing grounds, the courts holding that prayer during the inauguration did not and would not cause Newdow to suffer the concrete “injury” necessary for him to have standing to sue. (The second court also held that Newdow, having lost the first case on standing grounds, was also precluded from raising the same matters again.)

Michael Newdow, however, is not one to give up easily. With Barack Obama’s inauguration only weeks away, Newdow is back in court. On December 30, Newdow filed yet another lawsuit challenging government-sponsored religious expression at a presidential inauguration. This time, however, besides seeking to bar government-sponsored prayer at the event, Newdow is also asking the court to declare that Chief Justice John Roberts, who will administer the oath of office to Barack Obama, cannot add “so help me God” at the end of the oath, a practice that reportedly has existed since the inauguration of FDR. Newdow argues that the official administering the presidential oath has no authority to alter the oath, which is spelled out in the Constitution. Article II, Section 1 states that the president, before entering the office, “shall take the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’”

As interesting as it would be for a court to determine the merits of this textual argument, it’s a pretty safe bet that no court will do so. It seems far more likely that this case will suffer the same fate as Newdow’s other inaugural challenges — tossed out for lack of standing. (Those standing rulings, by the way, have some troubling implications, but that discussion is far beyond the scope of this post.) Newdow himself is under no illusions about the likely fate of his latest lawsuit. “I have no doubt I’ll lose,” he said last week.