Ari Ezra Waldman Hub




Marriage at the Supreme Court 2.0: Framing the Debate

Scotus

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...

Continue reading "Marriage at the Supreme Court 2.0: Framing the Debate" »


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

Scotus

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...

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


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.

***

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.


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...

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


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

Scotus

BY ARI EZRA WALDMAN

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...

Continue reading "Don't Worry That We Didn't Hear from the Supreme Court Today" »


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

BY ARI EZRA WALDMAN

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.


Trending



Towleroad - Blogged