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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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SCOTUS Likely to Decide to Take Marriage Equality Case Tomorrow


As Towleroad has reported, the justices of the U.S. Supreme Court will meet in private tomorrow - January 9 - to consider, among other things, whether to grant a hearing in the marriage equality cases out of the Sixth Circuit and Louisiana. If you recall, the Sixth Circuit decided in November to uphold bans on the freedom to marry in an opinion that is word-for-word out of the conservative movement's playbook.

Although we cannot be sure that the Court will decide to take the case at this particular meeting -- there are many cases on the docket and there is a limit to how long the justices will sit there -- there is a strong likelihood that the Court will ultimately hear the case and decide, finally, that bans on gay marriage are unconstitutional.

There are several factors suggesting the Court will take the Sixth Circuit cases:


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Why Marriage Equality in Florida Is a Sign of Good Things to Come


When last we spoke, the freedom to marry had just been handed a setback: the Sixth Circuit let stand marriage discrimination laws in Ohio, Michigan, Kentucky and Tennessee. Over the holiday season, though, we took many steps forward in defiance of that egregious and wrongheaded appellate court opinion: Marriage equality officially came to Montana and South Carolina. And although she tried every trick in her book, Florida Attorney General Pam Bondi could not stop the arc of justice from sweeping ashore in the Sunshine State.

The arrival of marriage freedom in Florida is particularly notable because of how it happened.

BondiIn Florida, a federal district court judge ruled in August that the state's marriage ban was unconstitutional; the judge stayed his decision until January 5, 2015. The Republicans running the state wanted to delay as much as possible as they appealed the judge's ruling to the 11th Circuit Court of Appeals. But neither the district court nor the circuit court would grant the state a stay beyond January 5. So, Attorney General Bondi asked the Supreme Court. The Court said no, with only Justice Scalia and Thomas willing to issue the stay.

Note the difference between South Carolina and Montana, on the one hand, and Florida on the other. South Carolina is under the jurisdiction of the Fourth Circuit, which declared Virginia's marriage ban unconstitutional some time ago. Montana is in the Ninth Circuit, which made a similar decision in Idaho's case in October. Because marriage equality was just steps away from all the other states in those jurisdictions as a result of the appellate court decisions, the Supreme Court declined to issue a stay in the South Carolina case.

Florida is in the Eleventh Circuit, which has not had occasion to rule on a gay marriage case. So the Supreme Court's refusal to grant a stay and to allow marriages to start in Florida was a stronger pro-equality signal than denying a stay in South Carolina.


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Sixth Circuit Lets Gay Marriage Bans Stand in OH, MI, TN, and KY: Legal Analysis, Part 1



Reading the Sixth Circuit's opinion permitting states to ban same-sex marriage is a cognitively dissonant experience: the opinion isn't really about gays, marriage, or gay marriage. It is, as the dissent notes, an "engrossing TED talk" on political philosophy or democracy. It is, in other words, a magician's misdirection.

The Sixth Circuit's conservatives do not want us to realize that what they just did is tear away equal and fundamental rights from real committed, loving couples, many of whom are raising children. Rather, they want us to think that they were hamstrung by their humble roles and the narrow confines of their judicial charges. Well, they can't fool us and they won't fool Justice Kennedy.

In a meandering opinion riddled with rhetorical questions rather than reasoned legal analysis, Judge Sutton (above, middle) argues, essentially, that he cannot affirm the unconstitutionality of bans on same-sex marriage because he is handcuffed by three things: Baker v. Nelson, the limited role of the judiciary and the Constitution, and eons and eons of social tradition. His language suggests, not too convincingly, that he would jump at the chance to allow gays to marry if he were a voter or a legislator. But as a judge, sitting in an intermediate appellate court inferior to the Supreme Court, he can't. He just can't.

Don't let Judge Sutton's rhetoric fool you. Behind the gloss of reasonable-sounding respect for the dignity of gay persons lies the same odious discrimination we have been hearing from the rump of the radical right still apoplectic that two men or two women can marry.

GinsburgThe upshot of this opinion is that it is Justice Ginsburg's trigger for when she thought the Supreme Court might take up a marriage equality case: the Sixth Circuit has just upheld bans on same-sex marriage. Now we are on a track to return to the Supreme Court where we may get a substantive holding on marriage equality. Expect an appeal request to be filed quickly, and expect the Supreme Court to take the case. We may even get a decision in June, on the anniversary of Windsor.

This is the first in a series of columns on the Sixth Circuit's decision; there are just too many pieces to this opinion to cover at once. Stay tuned to Towleroad over the next few days for special in-depth coverage and analysis.

Let's begin with a general summary of Judge Sutton's primary motivating point, AFTER THE JUMP...

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Marriage Equality and the Court: What Happened in Puerto Rico?



In a decision that willfully ignored the prevailing wisdom of most of the federal judiciary, a judge in Puerto Rico recently tossed a lawsuit challenging the island's ban on gays marrying. The judge did not expressly uphold the constitutionality of the ban; rather, he granted PR's motion to dismiss the lawsuit. Either way, the case is headed for appeal at the First Circuit Court of Appeals. This case adds a little texture to the Supreme Court's refusal to take seven marriage equality cases, bringing an end to marriage discrimination in much of the country. But do not expect Puerto Rico to derail our forward march.

2_circuitsPuerto Rico is not just an LGBT-friendly locale in the Caribbean; it's also a territory of the United States under the jurisdiction of the First Circuit. That court also includes Maine, New Hampshire, Massachusetts, and Rhode Island and, as such, it has not had the opportunity to weigh in on the constitutionality of a state ban on same-sex marriage since Windsor because, like the Second and Third Circuits, all its states are marriage equality states. That is, except for Puerto Rico.

Into this mix walked several Puerto Rican same-sex couples, represented by Lambda Legal, who want to get married and who have been watching from the sidelines as bans topple like dominoes in the states. After they filed their lawsuit, the state's response was to ask the judge to dismiss the lawsuit for, among other things, lack of jurisdiction.

A motion to dismiss is not unusual. In fact, motions to dismiss or motions for summary judgment are two tools used often to decide cases without having to go through the complexities, expense, and uncertainties of a trial. Even this particular argument wasn't rare. But although the motion may not have been unusual, the judge's decision was, at least in a post-Windsor world.

I summarize the court's ruling and explain why the judge was utterly and completely wrong, AFTER THE JUMP...

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Nationwide Marriage Equality: Why We Might Not Even Need the Supreme Court



Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case.

We have marriage rights in Washington, Oregon, California, New Mexico, Minnesota, Illinois, Iowa, Maryland, Delaware, Pennsylvania, New York, New Jersey, Connecticut, Rhode Island, Massachusetts, New Hampshire, Vermont, Maine, Utah, Oklahoma, Wisconsin, Indiana, Virginia, and the District of Columbia. The Ninth Circuit just declared the bans on marriage equality in Idaho and Nevada unconstitutional. Both states will have to comply in short order. Since there is no reason to stay those cases given the Supreme Court's recent denials of review, we will soon have marriage equality in at least 32 states! 

The Supreme Court has denied review in cases out of the Fourth, Seventh, and Tenth Circuits. That leaves marriage equality lawsuits  on appeal at the Fifth (the Texas case) and Sixth (the Michigan case). Marriage equality is almost a sure bet in, at least, the entire Ninth Circuit now.

At some point, the conventional wisdom says, all these cases will lead back to the Supreme Court.

Not necessarily. Looking at the map and our string of marriage equality victories, I wonder whether we will need the Supreme Court at all. A nationwide freedom to marry could be a fait accompli without five justices of the Supreme Court.

I make the argument AFTER THE JUMP...

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