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The Other SCOTUS Case We Should Care About

By KELLAN BAKER and KATIE KEITH

Edited by ARI EZRA WALDMAN.

Healthcare.gov_aapiThere is another Supreme Court case that matters to the LGBT community. Last week, the justices met to hear arguments in King v. Burwell, and to decide, once again, the fate of the Affordable Care Act.

Health reform may not seem like an equality issue, but it is. We are more likely to benefit from the law because we’re more likely to be low-income, uninsured, and discriminated against in the health care system. But the Affordable Care Act is already working for our community by addressing these gaps: between 2013 and 2014, the uninsured rate for low- and middle-income LGBT people fell from 34 percent to 26 percent. And, of those who purchased coverage through the marketplace, 48 percent are paying less than $100/month in premiums. Although LGBT people are still disproportionately likely to be uninsured, the law is having a significant positive impact—just ask our friends Aurora in Houston or Robbie in Nashville.

So what is at issue in King v. Burwell? The petitioners—vocal opponents of the Affordable Care Act—claim that the Internal Revenue Service (IRS) misinterpreted a four-word phrase in the Affordable Care Act to incorrectly offer health insurance subsidies to eligible Americans in every state. They claim that subsidies should only be available to people purchasing coverage through a marketplace “established by the state.” Since 34 states are relying on the federal government to operate their marketplaces, the petitioners argue that subsidies should not be available in those states. If they succeed, millions of people—including an estimated three-quarters of a million LGBT people, according to data analyzed by the Center for American Progress and the Williams Institute—will lose access to financial assistance that can help them afford health insurance. As a result, a decision in King v. Burwell that eliminates these subsidies has the potential to wreak havoc on the lives of millions of newly insured Americans and destabilize state insurance markets across the country.

We’ll discuss the arguments, what to expect, and the impact of the decision AFTER THE JUMP...

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Marriage At the Supreme Court 2.0: The Cases

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BY ARI EZRA WALDMAN

This article is one in a multipart series leading up to a future Supreme Court decision on marriage equality. The Court has granted review of four marriage cases from the Sixth Circuit and a decision may be handed down at the end of June. Between now and then, Towleroad will break down the cases step by step. Today's topic: The Cases.

Last 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.

CONTINUED, AFTER THE JUMP...

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Marriage at the Supreme Court 2.0: Framing the Debate

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BY ARI EZRA WALDMAN

This article is one in a multipart series leading up to a future Supreme Court decision on marriage equality. The Court has granted review of four marriage cases from the Sixth Circuit and a decision may be handed down at the end of June. Between now and then, Towleroad will break down the cases step by step. Today's topic: The Questions Presented.

Let's start at the very beginning. When the Supreme Court agreed to hear four marriage equality cases out of the Sixth Circuit, it issued an order that included two legal questions for the parties to answer. 

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 called "questions presented," and they frame the discussion in the parties' briefs and at oral argument. Petitions for writs of certioari at the Court have to include questions presented: they are the hooks that tell the justices that there is a live legal question of great importance that they must address. That said, the justices can adopt these questions, alter them, add or subtract from them, or deviate from them in any way.

This has led to quite a bit of chatter about what these particular questions mean for the argument. Adam Liptak of the New York Times suggested that the Court included Question 2 as a way to avoid a broad, nationwide pro-equality holding. It's a neat conjecture, one that is sure to keep the press abuzz. However, there are exactly zero reasons to believe Mr. Liptak is correct. Nothing nefarious or sneaky is going on. The Court is ready to rule on the freedom to marry. This is evident both from the questions presented and the Court's actions over the last several months.

I explain, AFTER THE JUMP...

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

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BY ARI EZRA WALDMAN

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.

CONTINUED, AFTER THE JUMP...

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

BY ARI EZRA WALDMAN

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.

Q.E.D.

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

BY ARI EZRA WALDMAN

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.

CONTINUED, AFTER THE JUMP...

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