Ruth Bader Ginsburg Hub




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'


The Most Dangerous Line in the Supreme Court's Hobby Lobby Ruling

AlitoBY ARI EZRA WALDMAN

The most dangerous line in the Supreme Court’s recent decision in Burwell v. Hobby Lobby doesn’t come until page 46. It reads as follows:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

That doesn’t sound too bad; indeed, it is probably one of the few statements in Justice Alito’s opinion that many of us would endorse.

Its danger, particularly to the LGBT community, rests in what is not said.

As we have discussed at length, Hobby Lobby allowed a family-run, for-profit arts and crafts company to deny its female employees access to certain contraception simply because that contraception violates the religious beliefs of the company owners.

GinsburgJustice Ruth Bader Ginsburg’s dissent cautioned that the Court was opening a door to allow anyone to use the pretext of religion to opt out of antidiscrimination or public accommodations laws. Justice Alito’s response was to deny the charge, arguing that where the government has a compelling interest in preventing discrimination, as it does in preventing discrimination on the basis of race, the Hobby Lobby exemption would not succeed.

But what happens when the government does not have that “compelling interest”?

Justice Alito chose a convenient example to respond to Justice Ginsburg’s concern. Most people agree that discrimination on the basis of race is not just bad, but absolutely anathematic to our constitutional tradition. But no one in the Court’s five-justice conservative majority has ever said that the state has a compelling interest to prevent discrimination on the basis of sexual orientation or gender identity. Even Justice Kennedy, the author of the Supreme Court’s three gay rights decisions, has carefully declined to declare that antigay discrimination merits heightened scrutiny or that the government has a compelling interest to permit gays to marry. We might believe that the same compelling interest that gives the state the power to prevent discrimination on the basis of race gives the state the same power to prevent discrimination on another status that has nothing to do with an individual’s ability to contribute to society—namely, sexual orientation or gender identity. But there are many judges out there who are not yet there. Congress isn’t even there yet.

CONTINUED, AFTER THE JUMP...

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Handsome Guitar Player Sing-Splains Ruth Bader Ginsburg's Hobby Lobby Dissent: VIDEO

Screenshot 2014-07-01 12.44.40

In 2009, YouTuber Jonathan Mann made a name for himself with his “Song A Day” challenge. Over the years, Mann has mined the minutiae of his everyday life and current events for song ideas, but his 2007th song is perhaps his most clever, collaborative effort.  “Ginsberg’s Hobby Lobby Dissent,” is exactly what you think it is, and it’s amazing. Rather than putting a heavy spin on Justice Ginsberg’s scathing 35-page dissent to yesterday’s 5-4 decision in Hobby Lobby’s favor, Mann decided to just sing it more or less outright.

Watch Jonathan Mann belt out RBG’s dissent, AFTER THE JUMP...

Continue reading "Handsome Guitar Player Sing-Splains Ruth Bader Ginsburg's Hobby Lobby Dissent: VIDEO" »


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