Ari Ezra Waldman Hub

It's On! Supreme Court Will Hear Marriage Equality Cases: An Early Analysis



As widely expected, the Supreme Court decided to hear four marriage equality cases out of the Sixth Circuit. Cases from Michigan, Ohio, Kentucky, and Tennessee will be consolidated into one omnibus marriage hearing over 2 1/2 hours. With the order issued today, the briefing schedule has the parties' briefs due between February and April. That means that the Court could issue a decision by the end of June 2015.

Unlike the last time the Court heard a case challenging a state ban on marriage equality (the Prop 8 case), the Court does not appear likely to sidestep the central issue. The "questions presented" for the hearing are as follows:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

These are the legal questions at the heart of the marriage equality movement. They should be squarely addressed in this case.

This post begins a series of analyses and reports on the case, which will be rolled out as the case unfolds over the next couple of months.

For now,the first of several initial considerations as we take the next step in this journey.


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Why There Should Have Been No Stay in Today's South Dakota Marriage Ruling


HdakotaAs Towleroad reported, we can put South Dakota in the marriage equality win column. The decision, which you can read here, reads like many of the other pro-equality orders from district courts over the last two years:

First, marriage is a fundamental right;

Second, the Supreme Court has said so many times;

Third, that fundamental right has been denied to same-sex couples;

Fourth, the state has no compelling reason to override such a basic and important right in our democracy.

Therefore, the state's ban on same-sex marriage is unconstitutional.


SchreierWhether U.S. District Judge Karen Schreier (pictured) took the fundamental rights approach above or the equal protection approach some other courts have chosen -- gay marriage bans treat same-sex couples differently from opposite-sex couples for no good reason and are, therefore, a violation of the guarantee of equal rights -- the result is the same.

The result in the South Dakota case also resembled many of the other district court cases from almost every other state in that implementation of the order was stayed pending appeal.

This used to be standard practice. Judges have been staying their marriage equality rulings since Judge Walker decided that Proposition 8 was unconstitutional back in August, 2010. Back then, it seemed like the safe way to go. We were, after all, breaching new ground.

It no longer makes any sense, not after the Supreme Court refused to grant a stay in Florida pending appeal. As I argued previously, the Court's refusal to extend the stay beyond January 5, 2015 was special because it was the first time the Court let stand a pro-marriage equality decision in a jurisdiction where the appellate court (11th Circuit, in this case) had not yet spoken. Everywhere else, in South Carolina, for example, or in Idaho, the Court let marriage equality go into effect because the Fourth and Ninth Circuits, respectively, had spoken. 

South Dakota is in the Eighth Circuit, which has not had occasion to decide a marriage equality case in the post-Windsor world. Therefore, with respect to the stay, South Dakota is just like Florida: a state with a pro-equality federal district court decision that should not be stayed even though the superior circuit court has not yet spoken.

It is a shame the stay was put into effect. The judge was probably just being cautious. But her caution extends the hours of discrimination and second-class citizenship for thousands of gay men and women.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

5th Circuit Likely to Strike Down Gay Marriage Bans: An Analysis of the Hearing


HigginbothamThere are several great summaries out there about what happened yesterday at the Fifth Circuit, which heard marriage equality appeals from Texas, Louisiana, and Mississippi. Among others, I recommend the summaries from Chris Johnson at the Washington Blade and Chris Geidner at Buzzfeed. I would like to go one step deeper. I have listened to the audio from the oral argument (as you can too, here). As with other oral arguments, I find the most insightful indication of how a judge is leaning is not the number of questions asked or to which lawyer he asks more, but the language and tone of those questions. I found that especially true with Judge Higginbotham (pictured, right) on Friday.

When analyzing oral arguments, I always caution that any connection between a judge's questions and his or her ultimate decision is purely speculative. There are court-watchers who do studies about these things. But my reports on marriage equality hearings at the Fourth, Sixth, Seventh, Ninth, and Tenth Circuits, not to mention at the Supreme Court, suggest that we can draw conclusions. On all the metrics, it looks like marriage equality will win the day at the Fifth Circuit.

First, I will discuss those metrics. Then I will discuss where we go from here.


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Don't Worry That We Didn't Hear from the Supreme Court Today



As 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.

Why you shouldn't worry, AFTER THE JUMP...

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Robbie Kaplan Argues for the Freedom to Marry at 5th Circuit Today: What To Watch For


KaplanRoberta Kaplan, the Paul Weiss attorney who was Edie Windsor's attorney, is in New Orleans to argue for marriage equality at the Fifth Circuit. The cases on appeal come from Texas, Mississippi, and Louisiana, the last of which, by the way, has a case under simultaneous consideration for Supreme Court review. In Texas and Mississippi, federal judges struck down marriage discrimination laws as unconstitutional; in Louisiana, a startlingly wrongheaded and overtly antigay opinion upheld that state's ban. The Fifth Circuit is the next stop.

The Fifth Circuit Court of Appeals, which covers just the three states involved in these marriage equality cases, is a conservative court: it has more judges appointed by Republican presidents than Democrats. But, as we know, that does not always signal an anti-gay opinion. Judge Posner, who wrote a breathtaking pro-equality decision at the Seventh Circuit, was appointed by President Reagan.

President Reagan also appointed two of the judges on the Fifth Circuit panel: Patrick Higginbotham and Jerry Smith. The third judge, James Graves, is an Obama appointee. I must admit that I don't know much about his background. Judge Graves was the only African-American judge to serve on the Mississippi Supreme Court during his tenure and he spent most of career in public service in Mississippi. A short review of some of his decisions in Mississippi reveal few controversial views. His opinions are well-reasoned.

Judge Smith has been a reliable conservative -- read: right wing conservative -- for much of his time on the federal bench. Judge Higginbotham, however, is a bit of a wild card. In fact, he reminds me, in certain ways, of Judge Posner.

Both are well-respect in the judiciary and among court watchers and lawyers. I never argued in front of him, but several colleagues did and they spoke of him as fair and not always an automatic supporter of our corporate clients. Judge Higginbotham's name was floated as a possible alternative that Senate Democrats would be willing to confirm if President Reagan withdrew Judge Robert Bork's nomination to the Supreme Court (the seat would ultimately go to Justice Kennedy). More recently, he upheld the University of Texas's affirmative action plan. His opinions may not offer the same doctrinal coherence as Judge Posner's: Judge Posner is a brilliant economic mind whose decisions focus on efficiency, practicality, and individual freedom. But he is not beholden to one political party.

Also, they have both said similar things about the conservative tilt of the judiciary. Posner is famously frustrated with Republicans in politics and Republican judges on the bench, many of whom he says are too radical on the right. Judge Higginbotham also gave an interview suggesting that the court has moved away from him since he arrived: he was once considered a conservative; now, compared to others, he isn't.

Judge Higginbotham is the swing vote. He is a moderate and his opinions appear reasonable. I would watch his questions.

Stay tuned to Towleroad for more analysis. Good luck, Robbie!


Follow me on Twitter and on Facebook.

Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

SCOTUS to Consider 6th Circuit Marriage Equality Cases: What To Watch For



Today, the Supreme Court is meeting in private to decide what cases on its docket it will hear.

Among the many cases on the docket are a handful of marriage equality cases out of Tennessee, Michigan, Ohio, Kentucky, and Louisiana. The first four of those states are under the jurisdiction of the Sixth Circuit, which, in November, became the first federal appellate court in the post-Windsor era to uphold the constitutionality of state bans on the freedom to marry. As I have argued, that opinion was not just wrong on the law, it was an abdication of the judicial role. The case out of Louisiana is there because a district court judge upheld that state's ban in a decision that doesn't even pass the laugh test. Both parties to the case decided to skip over an appellate court decision and go right to the Supreme Court.

The requests before it are called "petitions for a writ of certiorari," or, literally, a request for an order from a higher court (SCOTUS) to review a lower court (intermediate appellate court) decision. The petitions look like, sound like, and are sometimes as long as regular substantive briefs, and they make many of the substantive arguments the parties will make at trial. A minimum of 4 justices are required to grant a writ. Granting the writ does not say anything about how the Court will decide: a justice can vote to hear a case because he or she agrees or disagrees with the decision below. Also, bear in mind that there are many cases on the Court's docket; the justices do not always get to all of them. If we don't hear immediately about an order granting a hearing, do not fret. It may mean that there were too many cases to consider in one meeting.

Notably, the Court rarely takes cases. In 2012, there were 8,806 cases on its docket. It granted review in 93 of them. That comes out to almost exactly 1% of cases.

Many considerations go into a decision to hear a case. Circuit splits and confusion in the law weigh heavily on the Court, but any law professor and practitioner will tell you that the Supreme Court does not always do a good job clarifying the law. The Court's recent decision in ABC v. Aereo, which concerned the online streaming television company, is a good example of a decision that did not really clarify much of anything. Some scholars think Windsor falls into that category.

In any event, the Supreme Court takes cases when it wants to and it rarely, if ever, explains its reasoning for a grant or a denial. Court watchers and insiders have written books about the process. But none of them are in the room; only the justices are there. The bottom line is the Supreme Court has almost limitless leeway in determining its docket.


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