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The Marriage Equality Cases Before the US Supreme Court

Friday, January 30th, 2015

US Supreme Court ColorLast time, we spoke about the importance of framing the case through the Questions Presented. I argued that despite some concern, the two questions posed in the Supreme Court’s order do not indicate that the justices are looking for a way out. They are ready to rule. Before we discuss the substance on which the justices will rule, let’s review the four cases that will decide the marriage equality question.

This matters because not all cases are fungible. Some come with better facts, others come with messy complications; some come with sympathetic plaintiffs, others have unfortunate optics. Especially when it comes to appellate review, the record on appeal can even tilt the outcome of the case. Plus, the cases are fun to talk about at nerdy cocktail parties.

Bourke v. Beshear is the Kentucky case and it was one of the earlier (though not the earliest) post-Windsor pro-equality decisions from a federal district court. It is about both the right to have a valid out-of-state marriage recognized in a home state and Kentucky’s own in-state ban. The judge, the Honorable John G. Heyburn, relied heavily on Windsor and found that Kentucky’s marriage laws discriminated against gay persons in violation of the Equal Protection Clause as applied to the states. Using rational basis review — the lowest form of scrutiny that only requires a rational connection between a law and a legitimate government objective — the court said there was no rational reason to treat gays this way. He struck down the anti-recognition law.

Authored By Ari Ezra Waldman – See the Full Story at Towleroad.com

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Marriage Equality Round-Up – US Supreme Court Edition

Saturday, January 17th, 2015

US Supreme Court Color

There’s a lot going on around the US Supreme Court’s decision to take five marriage equality cases from the Sixth Circuit. Here’s a wrap-up of the current news and analysis

USA: The hearing will be held in April. full story

USA: The ACLU looks at where we’re at and how we got here. full story

USA: Time Magazine looks at the court’s options in the case. full story

USA: Lambda Legal asks “what happens if we lose?” full story

USA: New Now Next profiles the couples in the four cases. full story

USA: Just like the last time, it probably all comes down to Justice Kennedy. full story

USA: Not so fast, says the New Republic – Chief Justice Roberts may have a role to play too. full story

USA: Time also looks at the Supreme Court’s own history with the issue. full story

USA: Garrett Epps at The Atlantic looks at the odds. full story

USA: Time recaps what five of the Justices have written or said about marriage equality in the past. full story

USA: Prop 8 attorney David Boies thinks marriage equality will win out at the Court. full story

USA: Attorney General Eric Holder says he will file a brief with the Court in favor of marriage equality. full story

USA: While announcing the Court’s decision to take the cases, Fox News anchor Shepard Smith slammed the “continuing discrimination” by states that are still fighting same-sex marriage full story

USA: Steve Sanders at ScotusBlog looks at the issue of “animus” in the state bans and the upcoming decisions. full story

USA, Michigan: The plaintiffs here say they are in awe that the Court has decided to take up their case. full story

USA, Texas: Neel Lane, attorney the plaintiffs in the Texas marriage equality case, is calling on the three judge panel to issue a ruling even though the Supremes have now taken four marriage equality cases. full story

USA, Alaska: Attorney General Craig Richards said he would suspend his hopeless appeal of the decision striking down the state’s ban while the Supremes consider the issue. full story

Supreme Court Marriage Equality Case Conference Analysis

Saturday, January 10th, 2015

US Supreme Court ColorAs you know, the justices of the Supreme Court met in private today to discuss, among many other things, whether to take any of the marriage equality cases out of the Sixth Circuit.

If you recall, the Sixth Circuit upheld bans on the freedom to marry, making it the only federal appellate court in the post-Windsor world to do so. The plaintiffs in the various cases on appeal — from Michigan, Ohio, Kentucky, and Tennessee — appealed and asked the Supreme Court to take their cases and reverse the appellate court. The justice considered those petitions in conference today. But we didn’t get an order granting or denying review. That’s ok.

1. The justices had a lot to discuss. In addition to the other petitions waiting on the docket, they not only had to decide whether to take a marriage equality case, they had to decide which case to take. There are several, each with unique nuances that may make them better for review. Normally, the Supreme Court wants the cleanest case: the most straightforward facts, no procedural hurdles, clear legal questions. There is strategy involved here, too.

And there’s more! The justices also had to decide how to craft the legal question they will review. In every petition for certiorari at the Court, the parties frame the legal question they say the Court must address. As any lawyer (or story teller) will tell you, how you frame the question is a big deal: it could tip the entire case in one direction. The justices have to decide whether to take the legal question as framed by a party or to change it to their liking or to take it and add questions they want answered. That kind of grant happens often.

Authored By Ari Ezra Waldman – See the Full Story at Towleroad.com

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Supreme Court Could Choose a Marriage Equality Case Tomorrow

Sunday, September 28th, 2014

US Supreme Court ColorTomorrow is the first day the US Supreme Court could actually choose a case or cases in the marriage equality fight this year.

NBC News reports:

The justices, who will meet in a closed-door conference on Monday, will consider whether to hear any of three same-sex marriage lawsuits during the next term, which officially starts Oct. 6. If they decide to review one or more of the cases, a ruling could be reached by July on whether same-sex marriage must be allowed nationwide. If they choose not to hear the cases, the decision would allow gay nuptials in the ten states covered by the three lawsuits. The court could also wait for a circuit court to disagree with the others and support the state bans. The justice have until January 2015 to make their decision. Both opponents and supporters of gay marriage predict that the justices will hear at least one of the cases.

Which case do you think they will take, if any? Utah, Oklahoma, or Virginia?

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Will the US Supreme Court Pick a Marriage Equality Case Monday?

Thursday, September 25th, 2014

US Supreme Court ColorWill the US Supreme Court take up one (or more) of the marriage equality cases that have been appealed to it? They may decide Monday.

The Washington Blade reports:

For the first conference of its upcoming term on Monday, the court has docketed five cases seeking marriage equality for which petitions for certiorari have been filed: Kitchen v. Herbert, the Utah case; Bishop v. Smith, the Oklahoma case; Bostic v. Schaefer, the Virginia case; Wolf v. Walker, the Wisconsin case; and Baskin v. Bogan, the Indiana case. It takes a vote of four justices out of the nine to grant certiorari (or decide to take up a case) for any particular case. Most observers expect the Supreme Court to take up one or more of the cases to decide an issue with such nationwide importance as marriage equality, but justices are under no obligation to take up a case and may well hold off on a decision until a later conference.

Do you think the Court will take a case now, or wait?

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US Supreme Court Will Look at All 7 Pending Marriage Equality Cases

Thursday, September 11th, 2014

US Supreme Court bwThe US Supreme Court has asked the petitions be ready for all seven marriage quality cases that have reached the court.

Scotus Blog reports:

Matching the speed of lawyers and lower courts in handling the same-sex marriage controversy, the Supreme Court on Wednesday set the stage for its first look at all of the pending cases, when the Justices assemble on September 29 for a private Conference. Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session. There is, of course, no certainty that they will act on any or all of them at that point, but the option is there. With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term… Together, the petitions raise two constitutional questions: do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states? In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

Another set of cases before the Sixth Circuit could be decided soon.

Towleroad.com reports:

…the Supreme Court could have more cases headed its way very soon. Many are focsued on 4 pending cases before the 6th Circuit Court of Appeals, a court some legal analysts suspect is more likely than others to uphold marriage bans: “If that happens, it’s a virtual certainty that the Supreme Court would step in and resolve the disagreement.”

The cases awaiting Supreme Court consideration on 9/29 are from Indiana, Oklahoma, Utah, Virginia, and Wisconsin.

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US Supreme Court Could Choose a Marriage Equality Case As Early As Today

Wednesday, September 10th, 2014

US Supreme Court ColorThe US Supreme Court could decide to take one or more of the marriage equality cases as early as today, or they could wait as long as January to decide.

ScotusBlog reports:

With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file. Along with the two new filings, the Court has awaiting it individual petitions on the issue from Oklahoma and Utah and three from Virginia. In all of the cases, both sides and a lengthening list of “friends of the Court” have agreed that the Court should take on the constitutional controversy now. The Court may indicate as early as tomorrow which of the seven cases, if any, will be considered by the Justices at their first Conference of the new Term, on September 29… If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.

My totally uneducated guess is that they’ll make us wait for a while.

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Which Marriage Equality Case Will the Supreme Court Take (If Any)?

Saturday, August 23rd, 2014

US Supreme CourtThis past month, lawyers from Utah, Oklahoma, and Virginia petitioned the U.S. Supreme Court to consider reviewing three federal appellate court decisions that struck down the states’ respective bans on same-sex marriage. If the Supreme Court chooses not to hear the cases, then the appellate courts’ decisions will stand, effectively legalizing same-sex marriage in the states that fall within the jurisdiction of those two circuits (the 4th Circuit includes Virginia, Maryland and the Carolinas, while the 10th Circuit includes Utah, Oklahoma, Colorado, Kansas, New Mexico, and Wyoming).

However, should the Supreme Court choose to hear one or more of the cases, which it likely will, a definitive ruling on same-sex marriage will be in store, either enforcing the remaining 31 states’ bans on same-sex marriage, or overturning them and disallowing any new bans to be instituted.

The question at hand in each case is whether or not the state’s ban violates the U.S. Constitution, specifically the Due Process and Equal Protection Clauses located in Section 1 of the Fourteenth Amendment. There are a few crucial debates that stem from this question.

Authored By Chris Dietz – See the Full Story at Equality on Trial

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USA, Virginia: Marriage Equality Cases Joined, Expedited at Fourth Circuit

Tuesday, March 11th, 2014

VirginiaThe two marriage equality cases in the state have been combined, and the ACLU and Lambda Legal were allowed to intervene in the case.

SDGLN reports:

The Fourth Circuit Court of Appeals today granted the American Foundation for Equal Rights (AFER) motion for an expedited briefing schedule in Virginia’s marriage equality case, Bostic v. Schaefer (formerly Bostic v. Rainey). The court also granted the plaintiffs in a parallel case, Harris v. Rainey, permission to intervene on the side of plaintiffs in Bostic v. Schaefer, a case filed by the ACLU and Lambda Legal. AFER officials were worried that the intervening request would delay proceedings, but that fear is apparently unfounded.

“We are pleased the court granted our motion to intervene because the Bostic appeal could decide the fate of not only both couples involved, but also the entire class of more than 14,000 same-sex couples in Virginia whom we represent,” said Greg Nevins, counsel in Lambda Legal’s Southern Regional Office based in Atlanta. “We are still waiting for a decision in the Harris case, but allowing the Harris class to intervene in the Bostic case allows the two cases to be consolidated on appeal without delaying or disrupting either case. We want the freedom to marry to come to lesbians and gay men in Virginia as swiftly as possible.”

Briefs are due from the defendants by 3/28, and from the plaintiffs by 4/11. Oral arguments are tentatively scheduled for the week of 5/12 – we could have the decision this summer.

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USA: Supreme Court May Take On More LGBT Rights Cases This Session

Tuesday, October 8th, 2013

US Supreme CourtIs the US Supreme Court set to make more history this session on LGBT rights?

Lisa Keen at Keen News Service reports:

Meanwhile, there are other gay-related cases with the potential to come before the Supreme Court this session -some in follow up to the marriage equality cases, some within the ongoing clash over whether one can claim a right to discriminate against LGBT people by designating that discrimination as part of one’s exercise of religious freedom. Elane Photography v. Vanessa Willock out of New Mexico is one of a growing number of lawsuits pitting the constitutional right to free exercise of religion against state laws prohibiting discrimination based on sexual orientation.

Another gay-related case that could soon be seeking Supreme Court review is Pickup v Brown, which tests the constitutionality of California’s newly passed law to ban “sexual orientation change efforts” (reparative therapy) for persons under the age of 18. A lower court judge had granted a preliminary injunction against the law going into effect, but, on August 29, a three-judge panel of the Ninth Circuit U.S. Court of Appeals reversed that injunction, saying the law “is neither vague nor overbroad, and does not violate parents’ fundamental rights.”

And Keen speculates that another marriage equality case could reach the Court in the near future:

The farthest along and most likely to reach the Supreme Court first is one by Lambda Legal out of Nevada. That case, Sevcik v Sandoval, was dismissed at the federal district court level but Lambda has an appeal pending before the Ninth Circuit U.S. Court of Appeals and briefing closes on or two weeks after November 18. A second lawsuit, Jackson v Abercrombie, against Hawaii’s ban on same-sex marriage, has final briefs due to the Ninth Circuit on December 23 or two weeks thereafter. Depending on how quickly the Ninth Circuit moves on the cases, they could potentially be appealed to the Supreme Court this session but they would likely be heard next session.

Either one of these cases could theoretically open up the rest of the country to full marriage equality, basically overnight.

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