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What's Happening at the Supreme Court Right Now

Scotus

BY ARI EZRA WALDMAN

The justices of the Supreme Court are meeting right now to discuss a slew of petitions for hearings. There are seven such petitions on marriage equality cases from Oklahoma, Indiana, Utah, Wisconsin, and Virginia.

Regular Towleroad readers will recall our review of these cases here (discussing the Tenth Circuit decision declaring Utah's ban unconstitutional), here (discussing a similar decision about Virginia's ban at the Fourth Circuit), here (discussing the "Posner treatment" that lawyers for Indiana and Wisconsin got at the Seventh Circuit), and here (discussing the Seventh Circuit decision). 

Even though these cases are "ripe" -- the legal term for "ready" -- for review and even though both sides of all seven cases agree that the Supreme Court should take the case, do not expect the Court to take any of the cases today.

Supreme CourtThere are several reasons the Court may take at least one case:

First, everyone wants it. Freedom to Marry has an ongoing campaign urging the Court to take a marriage equality case and end marriage discrimination nationwide. Anti-gay and pro-equality attorneys filed briefs urging the Court to take their cases, both sides confident they can win. And that does not always happen. Generally, the party that wins in the appellate court is rarely inclined to have a higher court review the decision. Here, many people think it has to happen.

Second, all the decisions are stayed pending Supreme Court review. Every day that passes without a Supreme Court decision is another day in which gay couples face discrimination even though several federal appellate courts have said that the discrimination is unconstitutional, wrong, and must go. The orders stemming from those decisions are on hold pending a final word from the Supreme Court.

Third, these cases pose all the issues. Sometimes, the Court will decline to take a case because the case before it does not raise all the issues or because a quirk at the lower court prevents it from making a complete decision. It happens quite a bit: Imagine a criminal case where an attorney fails to make an objection or a defendant concedes a question of law. If that happens, an appellate court can rarely address those controversies. Here, all issues are in play, including heightened scrutiny.

There are, however, many more reasons why the Court may not take a case just yet.

First, there is no circuit split. Every appellate court to hear a marriage equality case has decided against the ban, declaring them all unconstitutional. Sure, the Seventh Circuit did it in flamboyant, unanimous fashion, but that's just icing. The Supreme Court most often takes cases when there is a disagreement between the circuits. Here there is none. And, a decision at the Eighth Circuit from before the Supreme Court decided Windsor does not count. There has been intervening case law that could impact the decision and, as such, the Eighth Circuit decision does not create a circuit split.

Second, there are several other cases pending. We have cases in the Ninth Circuit and, more importantly, in the Sixth Circuit. The Sixth Circuit hearing, which we discussed here, did not give us obvious clues as to its outcome. One judge seemed inclined to vote against the ban, another judge was in favor of discrimination. A third judge, a George W. Bush appointee and a conservative, is more of a wild card. If the Sixth Circuit goes against marriage equality, that would create a circuit split and would force the Supreme Court to act.

Third, there may be no need for the Supreme Court. If the Sixth Circuit goes with its sister courts -- an eventuality made more likely when someone as conservative and well-respect as Judge Posner eviscerated all anti-equality arguments -- there still will be no circuit split. The Ninth Circuit will decide its cases shortly, and will very likely strike down the bans. A couple of circuits are left, but it is not clear any of them will push the Court to act.

GinsburgFourth, Justice Ginsburg wants to wait. In a talk at the University of Minnesota, the dean of the Court's liberal wing suggested that she was inclined to wait for the Sixth Circuit (and perhaps other circuits) to act. There is no rush, she said. The Court will act when it is necessary.

Waiting might also be a good thing for the marriage equality journey in the long run. The longer we wait, the more federal circuit victories we can rack up, proving to wary conservative justices that the American consensus has emerged. Few -- maybe Justices Scalia and Thomas -- are going to want to stand in the way of that.

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Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

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 pursuing 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.


Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis

BY ARI EZRA WALDMAN

BerzonA soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

Judge Stephen Reinhardt, a Carter-appointee and liberal leader of the appellate courts, was joined by Judge Berzon, a sharp-minded progressive appointed by President Clinton, and Judge Robert Gould, another Clinton appointee, in a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

Yesterday's hearing reminded us how far we have really come. Some of the arguments and much of the tone were different this time around. The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

A summary and analysis follows AFTER THE JUMP...

Continue reading "Ninth Circuit Panel Eviscerates What's Left of Anti-Equality Arguments: A Summary and Analysis" »


Posner-ed at the 7th Circuit: Appellate Court Issues First Unanimous Marriage Equality Decision

BY ARI EZRA WALDMAN

PosnerIt took 9 days for Judge Richard Posner to write his unanimous opinion striking down the marriage equality bans in Indiana and Wisconsin. And you can see the tone of the decision in one of its more pointed sentences:

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

It wasn't long ago that marriage equality cases were achingly long affairs. Judges would have to pay homage to the deeply held opinions on both sides and recognize that many people vehemently disagree. But to Judge Posner, the cases are straight-forward.

It also wasn't long ago that we were debating whether being gay is an immutable characteristic. Even our progressive allies were not staking out ground on this subject, instead deciding cases without entering the minefield of heightened scrutiny. To Judge Posner, it's a throwaway line.

And it wasn't long ago that conservatives were making the "promiscuous heterosexual" argument to any judge who would listen. To Judge Posner, it doesn't pass the laugh test.

We expected a win at the Seventh Circuit. My colleague and distinguished law professor Dale Carpenter had a similar perspective. But few could have imagined the grand slam Judge Posner penned over the last few days.

A brief summary and analysis follows AFTER THE JUMP...

Continue reading "Posner-ed at the 7th Circuit: Appellate Court Issues First Unanimous Marriage Equality Decision" »


Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion

BY ARI EZRA WALDMAN

FeldmanLouisiana Federal Judge Martin Feldman, a Reagan appointee, has upheld Louisiana's ban on marriage equality in a haphazard opinion remarkable only for its outdated language and subtly hateful rhetoric. Falling into traps we teach law students to avoid, Judge Feldman finds marriage equality as suspect as fathers marrying their daughters and improperly narrows the scope of the case to seeking a "right to same-sex marriage" rather than just "marriage." He suggests that being gay is a "lifestyle choice" and states that such a "choice" is butting heads with the democratic process, something he seems to think is infallible and beyond reproach.

Judge Feldman gets it wrong. The fight for marriage equality is a fight for marriage, not anything special or different than what opposite-sex couples enjoy. Being gay is not a choice and loving someone of the same sex is not a "lifestyle choice": it is love, it is human nature. And permitting gays to marry does not open the door to incestuous marriages, bestial marriages, or polyamorous unions. That kind of slippery slope argument doesn't pass the laugh test. Countless jurisdictions have made the decision to allow gays to marry, a legal policy decision that has no negative health or cohesion effects on society, without improperly permitting marriages that could be damaging to those involved and to children.

Judge Feldman is not the first judge to uphold a ban. He is not even the first to uphold a ban in the post-Windsor era. He is, however, the first federal judge to uphold the constitutionality of a state ban on marriage equality since Windsor, which complicates marriage's journey through the federal courts. The decision today does not necessarily mean the Supreme Court will have to take one or several marriage equality cases; Judge Feldman could still be overturned by the Fifth Circuit. But it does have several effects:

(1) it makes a circuit split, a key reason the Supreme Court takes cases, more likely;

(2) it provides some measure of legitimacy to anti-equality forces by giving them a victory and resurrecting their outdated and hateful language; and

(3) it denies very real rights to very real families struggling in Louisiana.

I break down some of the more distasteful elements of the decision and provide some context, AFTER THE JUMP...

Continue reading "Federal Judge Gets It Wrong, Upholds Marriage Discrimination in Louisiana in Strange, Hateful Opinion" »


Anti-Equality Forces Get 'the Posner Treatment' at Seventh Circuit Hearing

BY ARI EZRA WALDMAN

Posner, Richard 08-10By now you have heard that the attorneys representing Indiana and Wisconsin got a shellacking from the famous Reagan-appointee, Judge Richard Posner. Sean brought us 7 classic outtakes from Judge Posner's questioning, but even those barely scratch the surface of what it must have been like. As someone who has had the privilege (and dread) of arguing before Judge Posner, as well as admiring him from afar, quoting his work, and disagreeing with some of his scholarship, I can say that this is just Posner being Posner. A brilliant scholar with strong views who's been around a long time, he does not suffer fools, whether those fools are seeking millions of dollars in damages or challenging the constitutionality of a ban on gays marrying. Do not think Judge Posner's obvious frustration with the anti-equality attorneys is evidence of a particular love of marriage equality, something he still calls "homosexual marriage," after all. This is how he would approach anyone who comes to him with a stupid argument.

And that is the greatest take away from the Seventh Circuit marriage equality hearings: the arguments against us are just stupid, and everyone appears to get that.

Let's start with Judge Posner, who seemed to relish the opportunity to inject some sanity into Wisconsin's and Indiana's arguments. He repeatedly said things like, "So you don't have an answer to that?" or "How can you brief it if you don't know anything about it," in response to Wisconsin's inability to support its arguments that heterosexuals would stop marrying if gays could, or "You don't seem to have any reasons" for banning gays from marrying, or, as Sean noted yesterday, "You don't have any sort of empirical or even conjectural basis for your law." Judge Posner followed that one with a little snark: "Funny." Mic drop.

CONTINUED, AFTER THE JUMP...

Continue reading "Anti-Equality Forces Get 'the Posner Treatment' at Seventh Circuit Hearing" »


Marriage Equality Goes Before the 7th Circuit: A Preview

SeventhBY ARI EZRA WALDMAN

Marriage equality gets another hearing before another federal appellate court this morning. Before an as-yet-to-be-named three-judge panel of the Chicago-based Seventh Circuit Court of Appeals, gay and lesbian couples in Indiana and Wisconsin will argue that, as the district courts stated below, the states' bans on gay marriage are unconstitutional. The states' two Republican administrations will argue that gays and lesbians should not be included in the fundamental right to marry and that it is the states' best interest to ban gays from marrying. These arguments are tired, old, and have been rejected many times.

But although the weight of legal arguments and a string of legal victories are on our side, the Seventh Circuit poses an uncertain challenge for several reasons.

First, the panel. We will not know the panel until just a short time before oral argument begins. In previous previews of marriage equality cases before appellate courts, we were able to discuss the political leanings of the judges. We discussed that in the Fourth Circuit and in the Sixth Circuit. And although political affiliation is not always a perfect indication of how a judge will decide a ruling, the knowledge informs us. As a former appellate attorney, I made sure that at least part of my legal strategy reflected the decision histories and tendencies of the judges on the panel. I could never do that in the Seventh Circuit outside of a few on the fly preparations before oral argument.

We do know that 10 of the 14 judges (including senior judges with a lighter case load) on the Seventh Circuit were appointed by Republican presidents. But we also know that (a) many Republican judges have written eloquent marriage equality decisions and (b) some of the Republican-appointed judges on the Seventh Circuit defy traditional conservatism. The famous Judge Richard Posner, for example, is a scion of the law and economics movement and he does not necessarily toe a socially conservative line. For example, Judge Posner has been sympathetic to the pro-choice movement.

WoodWe also know that Judge Diane Wood, a Clinton-appointee and liberal scholar, is now the chief judge, but that does not necessarily matter for panel assignments. The Seventh Circuit's staff executive determines panels using a very simple matrix of 3 judge combinations. Judges learn their panels weeks, if not months in advance; we hear about it the day of.

Second, the arguments. Indiana's central argument is that banning gays from marrying is in the best interest of the state because the state needs to encourage opposite-sex couples to marry and have children within the marital relationship. We've heard that argument before and it is simply laughable. There is no way that banning one group from marrying actually encourages a totally different group to not just marry but also to have kids while married. Plus, gay couples have children, too. I cannot imagine judges like Posner and Frank Easterbook, another law and economics scholar, seeing any legitimacy to the supposed "incentive" for heterosexuals to marry in Indiana's argument.

Third, the history. We won more than 30 cases in a row after the Supreme Court's decision in Windsor. Remarkably, we lost one in Tennessee just two weeks ago, a decision I will write about presently. But the Seventh Circuit is looking at the cases before it in the context of a federal judiciary that, so far, has been overwhelmingly favorable to marriage equality. The judges will see it below them -- in the many district court decisions overturning bans in states across the country -- and above them -- in the Supreme Court's decision in United States v. Windsor. It is hard to see the appellate panel ignoring this context. Neither Judge Posner nor Judge Easterbrook, nor, for that matter, any of the senior judges, are likely to want to be remembered for going against the full weight of an unstoppable tide toward marriage equality in the federal courts.

We will know more once we hear the panels.

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Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

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 pursuing 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.


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