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What's Happening at the Supreme Court Right Now

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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.

***

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.


Ruth Bader Ginsburg On Hobby Lobby, Congress, and Why She Has No Plans to Retire Anytime Soon

In a new and rare interview, Supreme Court Justice Ruth Bader Ginsburg spoke with Elle Magazine, sharing her thoughts on a variety of topics.

Bader-ginsburg-306Much of the interview dealt with women's rights, specifically abortion. In the aftermath of Hobby Lobby, Ginsburg speculates that things have gotten "about as conservative as [they] will get." She notes that women having to cross state lines is not a new phenomenon, and that this policy is detrimental to the lower class. The Justice says people will eventually realize the folly of the policy — that "it makes no sense as a national policy to promote birth only among poor people."

This wasn't even the sharpest of Ginsburg's quips on the topic. In response to whether the country will become more progressive on women's rights, the aspiring diva pulled out some less-than subtle shade of her own:

I think it will, when we have a more functioning Congress..

But Ginsburg's best answer of the interview all came when she was asked whether she plans to step down to assure that President Obama will be able to appoint a liberal judge. Ginsburg balked:

Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can.

That clears things up nicely. Read the full interview excerpt HERE, where the Justice waxes eloquent on family, Antonin Scalia, and what she hates about the term "activist judge."


Which Marriage Equality Case Will the Supreme Court Take, If Any?

BY LISA KEEN

SupremesThe U.S. Supreme Court could announce as early as Tuesday (September 30) which marriage equality case –or cases— it will accept for review this session. But, while the Court has seven marriage equality cases to choose from during its private working conference Monday (September 29), it may not choose any of those seven for review.

“If there’s no disagreement [among the circuits], then the Supreme Court has the option of not taking any case for a period of time,” said Roberta Kaplan, who represented plaintiff Edith Windsor in landmark Supreme Court case that struck down the key provision of the Defense of Marriage Act last year.

Justice Ruth Bader Ginsburg made just that point in remarks September 16 at a University of Minnesota Law School forum. Her host asked Ginsburg to comment generally on marriage equality cases before the high court and discuss whether she thinks the court will and should take a case “as soon as possible.”

Ginsburg“So far, the federal courts of appeal have answered the question the same way – holding unconstitutional the ban on same-sex marriage,” said Ginsburg. “There is a case now pending before the Court of Appeals for the Sixth Circuit. Now, if that court should disagree with the others, then there will be some urgency in the courts for taking the case. But when all the courts of appeal are in agreement, there’s no need for us to rush to step in. It remains to be seen what the Sixth Circuit would rule, when it will rule. Sooner or later, yes, the question will come to the court....”

Her comments attracted attention from Supreme Court observers because the court had been rather quick to put the seven cases on its list for discussion at its first big “long” conference. But Ginsburg was basically voicing what many such observers already know: The Supreme Court is more keen on taking appeals when there’s a disagreement among the circuits.

So far, four appeals courts have ruled such marriage bans unconstitutional: the Ninth (in last year’s Proposition 8 case), the Tenth (Utah and Oklahoma), the Fourth (Virginia), and the Seventh (Wisconsin and Indiana). Another Ninth Circuit panel heard oral arguments September 8, in cases challenging bans in Hawaii, Nevada, Idaho, and Oregon, but it widely expected to find once again that the bans are unconstitutional.

But a three-judge panel of the Sixth Circuit U.S. Court of Appeals heard arguments August 6 in cases from Kentucky, Michigan, Ohio, and Tennessee, and it seemed to signal it was prepared to uphold state bans on marriage for same-sex couples. That would create a conflict, but the panel has not yet released its opinion. If there was anything unusual about Ginsburg’s comments last week, it was that she expressed, very diplomatically, the widespread impression that the Sixth Circuit is likely to uphold the bans.

KaplanKaplan (right) thinks Ginsburg’s remarks are a strong indication that the Court is more likely to accept a case from a circuit that disagrees with the others – either the Sixth or the Fifth circuit. The Sixth Circuit decision could be released any day now; the Fifth, which covers Texas, Louisiana, and Mississippi, recently gave the state of Texas an extension of time (until October 10) to file its final brief in Perry v. DeLeon.

If the Supreme Court declines to review one of the pending marriage cases this session, said Kaplan, it would have to lift the stays currently in place. “Then marriages between gay couples could happen in a whole bunch of new states,” she said. That would enable same-sex couples to get married in 12 additional states: Utah, Wyoming, Colorado, Kansas, and Oklahoma in the Tenth Circuit; Virginia, North Carolina, South Carolina, and West Virginia in the Fourth Circuit; and Wisconsin and Indiana, in the Seventh Circuit. Added to the 19 states that already enable same-sex couples to marry, and the count will stand at 31 and the District of Columbia.

That seems unlikely.

So, if and when it takes a case, does it matter which marriage equality case the Supreme Court accepts? Does it change the prospects for the decision if it takes a case where the ban has been upheld? Does it matter whether the attorneys arguing the case are seasoned veterans before the Supreme Court?

TribeConstitutional law legend Laurence Tribe (right), the Harvard law professor who argued against state bans on same-sex sexual activity in the 1986 Bowers v. Hardwick case, says, “It could matter in a large number of ways” but he was “disinclined to speculate about (it) at this point.”

Lambda senior attorney Jenny Pizer offered some ideas. Though she and others agree the “core arguments will be very similar regardless of which case or cases the Supreme Court takes,” Pizer noted that there can be interesting and important ancillary arguments.

“For example, if the Ninth Circuit rules as many anticipate and invalidates the marriage bans ...the Supreme Court would have the heightened scrutiny for sexual orientation classifications question presented more squarely because that is currently the law of the circuit,” said Pizer. “If they take the Baskin [case] out of [Indiana in] the Seventh, there are issues of emergency relief in the context of serious illness that might influence the Court's analysis and timing. If they take Bostic out of Virginia, there could be a strong temptation to talk more about the historical parallel [with the ban on interracial marriage, in Loving v. Virginia]. And I have to wonder if the same would be true if they were to take [the] Kitchen [case] out of Utah, given the unique history of that state's marriage laws [and polygamy].”

MinterShannon Minter, legal director for the National Center for Lesbian Rights, noted that state officials are “vigorously” defending the ban in the Utah case, in which NCLR and Gay & Lesbian Advocates & Defenders are helping represent plaintiff couples. The Supreme Court might favor such a case to avoid any procedural snag like it faced in the California Proposition 8 case, which was appealed by a third party which lacked legal standing to file the appeal.

Lambda Legal’s national Legal Director Jon Davidson said attorneys for all the cases think their case is a particularly good vehicle for review, but said, “The questions presented for review are essentially the same in all these cases.”

As for whether it matters if seasoned Supreme Court attorneys present the arguments for plaintiff couples, Tribe and others said it probably doesn’t matter.

“As long as they’re sufficiently ‘seasoned’ not to make any ridiculous concessions or to overreach in any foolish ways,” said Tribe, “this is not the kind of case in which counsel’s arguments are likely to make much difference.”

“There are slight issues in terms of whether a state’s attorney general is defending the law, but other than that,” said Kaplan, “the legal arguments and the plaintiff facts are virtually identical” in all seven cases.

Evan Wolfson, head of the national Freedom to Marry group and a participant in the early marriage cases, agreed.

“All of the cases that have reached the Court present compelling stories from the plaintiffs, and all are in good hands with strong lawyer teams. Each lawyer, of course, would like to be the one who gets to stand before the Court, but the reality is that, whichever case the Court chooses and whichever lawyers are the lead, it is the strong collective presentation we will make together -- on top of the friend-of-court briefs, the rulings from the more than 30 wins below, and the records and arguments the justices have already considered last year -- that will matter.”

© 2014 Keen News Service. All rights reserved.


Ruth Bader Ginsburg Hints At Supreme Court Marriage Action, Talks Divadom

20358_300277480177_1707557_nOn Tuesday, Justice Ruth Bader Ginsburg dropped some hints about the Supreme Court's plan of action on the issue of gay marriage. In a talk at the University of Minnesota Law School, the Justice said people should look to the Sixth Circuit Court of Appeals as an indicator for when the Supreme Court will address marriage equality.

The AP reports:

[Ginsburg] said 'there will be some urgency' if [the Sixth Circuit] allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. She said if the appeals panel falls in line with other rulings there is 'no need for us to rush.'

Ginsburg also noted what she described as a "remarkable" shift of public opinion on gay people, and she gave her theory on why this is, saying: "Having people close to us who say who they are — that made the attitude change in this country." 

It wasn't only shoptalk during Ginsburg's appearance, as she let her hair down and showed the audience her playful side. She touched on her friendship with Antonin Scalia, joking about her plans for a comic opera entitled "Scalia/Ginsburg."

The audience really fell out when Ginsburg put the "supreme" in "Supreme Court" by sharing her true dream job:

If I had any talent God could give me, I would be a great diva.

Yaaas, RBG, yaaas.


Pivotal Supreme Court Order Used To Defend Gay Marriage Bans Losing Support

McConnell_(l)_and_Baker_(r)_apply_for_marriage_license_19700518

A growing number of lower-court judges tasked with reviewing the Constitutionality of states’ bans on same sex marriage are reconsidering a pivotal order issued in Baker v. Nelson, a 1972 Supreme Court case. Baker, a case challenging a state’s ability to legally limit marriage to opposite sex couples, was initially heard by the Minnesota Supreme Court before being rejected and appealed to the United States Supreme Court. The Warren E. Burger-led Supreme Court dismissed the appeal, citing a “want of a substantial federal question,” effectively giving legal merit to Baker’s ruling.

Baker has been used widely by opponents of same sex marriage as a legal precedent reflecting the then-Court’s views on gay marriage. Speaking to the lawyers defending California’s gay marriage ban, Ruth Bader Ginsberg expressed her doubts about Baker, citing the ways in which society and the court have changed,

“The Supreme Court hadn’t even decided that gender-based classifications get any kind of heightened scrutiny," she said at the time. “And the same-sex intimate conduct was considered criminal in many states in 1971, so I don’t think we can extract much in Baker v. Nelson.”

When taken in account, Baker automatically guides courts to decisions affirming bans because the Supreme Court’s refusal to hear Baker’s appeal acts as an affirmation of the original Minnesotan Supreme Court’s ruling. More and more, however, the Supreme Court’s move to strike down the Defense of Marriage Act is being read as a broad consensus that Baker is a chunk of legal history that needs to be dealt with.

“These cases demonstrate that, since Baker, the Court has meaningfully altered the way it views both sex and sexual orientation through the equal protection lens,” Circuit Judge Henry Ford wrote to the Washington Post. “The Supreme Court’s willingness to decide Windsor without mentioning Baker speaks volumes regarding whether Baker remains good law.”


Ginsburg: SCOTUS Will Decide Gay Marriage Case By 2016 or Sooner

GinsburgIn an interview with The Associated Press, Justice Ruth Bader Ginsburg said she expects a same-sex marriage case to be heard and decided by the highest court in the land by June 2016, possibly even a year earlier.

Attitudes have changed swiftly in favor of same-sex marriage, which is now legal in 19 states and the District of Columbia, Ginsburg said in her wood-paneled office on the court's main floor.

She predicted that the justices would not delay ruling as they did on interracial marriage bans, which were not formally struck down until 1967.

"I think the court will not do what they did in the old days when thye continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Earlier this year, Ginsburg called Edie Windsor 'such a well-chosen plaintiff'


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