John Roberts Hub

Marriage at the Supreme Court 2.0 Analysis: Why a Sex Discrimination Ruling is No Victory At All


J_robertsDuring oral argument in Obergefell v. Hodges, the same-sex marriage case, Chief Justice John Roberts asked an important, substantive question that had some commentators scratching their heads. The plaintiffs' lawyer had just made the argument that bans on gays marrying amounts to discrimination on the basis of sexual orientation. Then, the Chief Justice said:

I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

In a way, he's right. Sue can marry Joe because she's a woman; Tom can't marry Joe because he's a man. That's sex discrimination. And although this seems pretty obvious, the argument got scant attention in the volumes of briefs before the Court in Obergefell and was raised only a few times during the post-Windsor onslaught of cases over the last two years.

That is not to say that the sex discrimination argument is entirely foreign to the marriage equality movement. Indeed, as Northwestern Law Professor Andrew Koppelman and George Mason Law Professor Ilya Somin noted in their Obergefell amicus brief, some of the first generation of marriage equality cases relied on a sex discrimination rationale. And if his question is any indication of his ultimate opinion -- a dubious correlation, however -- the Chief Justice could be another vote in favor of marriage equality.

Perhaps most gay couples yearning to marry don't care how we get to a nationwide freedom to marry, just as long as we get there in the end. After all, a win is a win is a win. But a sex discrimination argument would be like winning a battle because the enemy engaged in a strategic retreat: it is not only unsatisfying, it doesn't answer the ultimate question of who wins the war. It leaves gay persons without necessary constitutional protections and opens us up to myriad forms of discrimination. Arguing that gay marriage bans are examples of sex discrimination is a half truth: they may be discriminating on the basis of sex, but they absolutely discriminate on the basis of sexual orientation, as well. To ignore the latter just because the former is a little easier offers tacit approval for antigay discrimination.

I tease out the sex discrimination argument, explain why it should be discarded, and speculate on how the argument could play out in June, AFTER THE JUMP...

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South Carolina Attorney General Alan Wilson Asks SCOTUS Chief Justice John Roberts to Stay Gay Marriage Ruling: READ

6a00d8341c730253ef01901defb276970b-800wiSouth Carolina's Attorney General Alan Wilson, who has long been entrenched in his battle against attempts to end the state's discriminatory ban on same-sex marriage, is seeking a stay of U.S. District Judge Richard Mark Gergel's ruling that struck down the Palmetto state's marriage ban as unconstitutional from none other than U.S. Supreme Court Chief Justice John Roberts. Just yesterday, the Fourth Circuit Court of Appeals denied a similar appeal made by Wilson. Now, as BuzzFeed reports, all eyes turn to Roberts and whether the 6th Circuit's move to uphold same-sex marriage bans and the subsequent appeals by plaintiffs in those cases will sway Roberts to intervene:

Since the justices turned down five states’ requests on Oct. 6 to take a marriage case appeal — including a decision from the 4th Circuit striking down Virginia’s marriage ban — the justices have, on three occasions, turned down requests to issue stays of lower court rulings during appeals. This includes one, in Kansas, since the 6th Circuit Court of Appeals upheld four other states’ bans.

Now, however, with requests in from the plaintiffs in those four states’ cases asking the Supreme Court to take one or more of the appeals and resolve the question, Wilson is hoping that he can get a stay issued from the court to stop the trial court ruling from going into effect Thursday.

Specifically, South Carolina is asking the chief justice to grant a stay pending appeal because, the filing asserts, the 4th Circuit Court was wrong in its decision in the case challenging Virginia’s marriage ban, Bostic v. Schaefer, which the Supreme Court let stand on Oct. 6.

Same-sex marriage is set to begin Thursday at noon in South Carolina should a stay not be granted.

Read the appeal filed by Wilson, AFTER THE JUMP...

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Supreme Court to Decide Stay Request for Fourth Circuit's Virginia Gay Marriage Ruling


Chief Justice John Roberts, who’s responsible for stay requests for the Fourth Circuit Court of Appeals, has agreed to allow the Supreme Court to decide whether or not a stay is justified in the Virginia gay marriage case.

The Fourth Circuit, which struck down the Virginia's ban on same-sex marriage late last month, originally denied county clerk Michèle McQuigg's request to stay the ruling. This led to McQuigg and the anti-gay Christian legal firm representing her, Alliance Defending Freedom, to ask the Supreme Court to intervene.

The New Civil Rights Movement reports:

Acknowledging the request, Chief Justice John Roberts has ordered information to be filed by Monday at 5:00 PM. The Court could have granted the stay as requested, refused to grant the stay, or ignored the request and not responded. The Supreme Court has granted every stay request in a same-sex marriage case since its DOMA ruling last year.

This week, the Fourth Circuit confirmed that marriages in Virginia could begin next Thursday. That still holds, unless the Supreme Court rules otherwise -- which is likely.

Stay tuned.

Supreme Court Denies Request From Virginia's Ken Cuccinelli To Stay Ruling On Sodomy Law

Ken Cuccinelli
Previously, this past March, the Fourth Circuit U.S. Court of Appeals in Richmond issued a ruling that declared the state of Virginia's Crimes Against Nature Law to be unconstitutional, citing the decision issued by the U.S. Supreme Court in 2003 during Lawrence v. Texas. The state's blatantly anti-gay attorney general, Ken Cuccinelli, took it upon himself to appeal the decision to the U.S. Supreme Court. The court has yet to decide whether it will hear the appeal. In the meantime, however, Cuccinelli submitted a request for a stay, postponing the Fourth Circuit Court's decision until after the appeal. 

This past Friday, according to the Washington Blade, Chief Justice John Roberts, acting on behalf of the entire court, denied Cuccinelli's request. The Supreme Court is expected to announce its decision of whether or not to hear the case either later this year or in early 2014. Until then, Virginia's "Crimes Against Nature Law" will remain un-enforcable. 

The Fourth Circuit Court's decision comes after attorneys attempted to place William Scott MacDonald, a 47-year-old man, behind bars for soliciting oral sex from a 17-year-old girl. Since no sexual acts actually took place, the state attempted to use its "Crimes Against Nature Law" to do the job. Cuccinelli and others argue that the U.S. Supreme Court's decision during Lawrence v. Texas does not apply in cases where one of the (potential) participants is a minor and the other is an adult. The Fourth Circuit Court disagreed, saying that "while the Lawrence decision prohibited Virginia from applying the sodomy law in cases of consensual sex with someone between 15 and 18, it did not prevent the state legislature from enacting laws banning all sex between adults and people in that age range."

Gay Cousin of Chief Justice John Roberts to Get Married

The gay cousin of chief justice John Roberts is getting married now that Roberts sent Prop8 back to California, effectively re-legalizing same-sex marriage in the state.

J_robertsReports Talking Points Memo:

When the Supreme Court heard the oral arguments for and against the constitutionality of DOMA this March, Chief Justice John Roberts probably noticed a familiar face in the crowd — his openly gay cousin, Jean Podrasky.

At the time, Podrasky found the arguments difficult to hear, and a little nerve-racking, no doubt in part because Podrasky was engaged to be married to her partner, and stuck in limbo until the Court issued its decision on California’s Proposition 8.

Now that the ruling is in, Podrasky says that the magnitude of the ruling overwhelms whatever personal disagreements she has with her cousin, who signed on with the minority view that DOMA should be upheld.

“I am so excited. I am absolutely overwhelmed,” Podrasky told me in a phone interview Wednesday.

Podrasky said she had a difficult time listening to the Prop8 proceedings due to the "disconcerting" questions that Roberts asked.

She's unsure as to whether she's going to invite him to the wedding, because she hasn't made a guest list yet.

Seven Takeaways from Marriage Week at the Supreme Court


SupremesFor three hours over two days, the Supreme Court discussed the freedom to marry. The justices asked questions about the law of the love after recent polling showed that 58 % of Americans, and a slew of moderate-to-conservative politicians, supported equality. This trend caught the attention of an unusually ascerbic Chief Justice, who said that leaders were "falling over themselves" to support gay rights. His convenient ignorance of the litany of burdens and discriminations we face every day, his insensitivity and willful ignorance of the plight of sexual minorities, and Roberta Kaplan's inadequate response to his flippancy should not damper the euphoric feeling that what happened this week was historic. The freedom to marry had a hearing at the Supreme Court, where the shallowness of discrimination was laid bare for the world to see. As we await favorable decisions in June, the world is a different place today than it was on Monday.

Many media are making conclusions about the end of DOMA, a narrow standing decision in the Prop 8 case, and the end of the culture wars with a victory for gay rights. Some of these predictions may turn out to be right, but we can't know that and it misses the true legal and political lessons from the last two days.

Having already offered detailed summaries and initial analysis of the Prop 8 (Part 1 and Part 2) and DOMA hearings (Part 1 and Part 2), I would like to take a step back and think more broadly. Here are the seven takeaways from Marriage Week at the Supreme Court.

1. The bench was "hot," asking lots of questions, but don't read too much into those questions.

Just because a justice asks a question critiquing one side's argument does not necessarily point to his or her ultimate decision. Judges play the devil's advocate for many reasons other than preening. If these cases were so open and shut, there would be no need for briefs, reply briefs, and oral argument; neither side ever has a perfect case. Therefore, the justices need to probe the logical, legal, and policy problems, not only to help them decide the case but also to determine the best way to decide the ultimate question. Oral argument questions are also just as much about persuading colleagues as challenging attorneys. Justice Ginsburg may have thought of something that the Chief Justice missed, or vice versa; Justice Sotomayor's demand that Paul Clement give her a single reason for discriminating against gay couples, and his inability to do so, may have worried the Chief and Justices Kennedy and Alito about siding with an impossibly weak argument.


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