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Marriage at the Supreme Court 2.0: Framing the Debate

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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...

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Bobby Jindal and Ted Cruz Want to Enshrine Anti-gay Discrimination in the U.S. Constitution

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Louisiana Governor Bobby Jindal said today he supports Sen. Ted Cruz' proposed amendment to the U.S. Constitution that would enable states to continue outlawing gay marriage regardless of any future Supreme Court ruling on the issue, Talking Points Memo reports:

ABC's "This Week' host George Stephanopoulos asked Jindal if he backed former Arkansas Gov. Mike Huckabee's (R) remark that states should just ignore a Supreme Court ruling legalizing gay marriage.

"I believe that marriage is between a man and a woman. My faith teaches me that, my Christian faith teaches me that," Jindal responded. "If the Supreme Court were to throw out our law, our constitutional amendment -- I hope they wouldn't do that -- if they were to do that, I certainly will support Ted Cruz and others that are talking about making an amendment in the congress and D.C., a constitutional amendment to allow states to continue to define marriage."

Washington Blade reported Wednesday on Cruz' renewed call for a constitutional amendment to stop marriage equality:

“I’m a constitutionalist. From the beginning of this country, marriage has been a question of the states, and we should not have the federal government, or unelected judges, setting aside the policy judgment of the elected legislatures and imposing their own instead.” 

As he announced in October, Cruz told the Blade he still intends to introduce a constitutional amendment that would prohibit judges from overturning state laws on marriage, but suggested courts already lack the authority to rule in favor of marriage equality. 

“Because, as I said, I’m a constitutionalist,” Cruz said. “If a state chooses to adopt gay marriage, that’s within its constitutional authority to do so, but if it chooses not to, if it chooses traditional marriage, that is also within its constitutional purview. Part of the genius of the framers of our Constitution was allowing for the now 50 states to be laboratories of democracy, to adopt and reflect different policy choices state by state.” 

Earlier today, we reported on Jindal's prayer rally held at LSU over the weekend that featured a variety of self-proclaimed prohets, doomsday sayers, and anti-gay nuts. 


Obama: 'I'm Hopeful the Supreme Court Comes to the Right Decision' on Gay Marriage: VIDEO

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Speaking to internet star GloZell Green at the White House yesterday as part of a series of interviews done by YouTube personalities, President Obama was asked whether he thinks he'll see nationwide marriage equality while still in office.

He replied, in part:

The Supreme Court now is going to be taking on a case, my hope is that they go ahead and recognize what I think the majority of people in America now recognize which is that two people who love each other and are treating each other with respect and aren't bothering anybody else, why would the law treat them differently? There's no good reason for it. So as a consequence, I'm hopeful the Supreme Court comes to the right decision, but I will tell you, peoples' hearts have opened up on this issue. People know that treating folks unfairly, even if you disagree with their lifestyle choice, they're not bothering you. Let them live their lives and under the law they should be treated equally and as far as me personally, just to see all the loving gay and lesbian couples that I know who are great parents and great partners, the idea that we wouldn't treat them like the brothers and sisters that they are, that doesn't make any sense. 

Other topics in the GloZell interview included the Sony hack, police profiling, Cuba, and Obama's legacy. GloZell also had a funny flub towards the end accidentally referring to Michelle Obama as the President's "first wife." Obama humorously responded, "Do you know something I don't know?"

You can watch the full interview, as well as the other two by YouTube stars Bethany Mota and Hank Green, AFTER THE JUMP...

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Federal Judge Halts Challenge To North Dakota Same-Sex Marriage Ban Until SCOTUS Rules

A lawsuit challenging North Dakota's ban on same-sex marriage has been put on hold by a federal judge until the Supreme Court rules on whether there exists a constitutional right to marry. The AP reports:

NdU.S. District Chief Judge Ralph Erickson filed an order Tuesday staying the case brought by seven same-sex couples in June. The lawsuit challenges both North Dakota's ban on gay marriage and its refusal to recognize the marriages of same-sex couples who legally wed in other states.

Last week the Supreme Court announced that it will decide whether same-sex couples have a right to marry everywhere in America under the Constitution.

If you haven't already done so, check out our legal editor Ari Ezra Waldman's analysis of the Supreme Court's decision to take up the four cases challenging bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee HERE.


AFA Demands Justices Kagan and Ginsburg Recuse Themselves From SCOTUS Gay Marriage Case

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The American Family Association (AFA), known for its vehement and vitriolic opposition to gay rights, has demanded that Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg (a.k.a. Notorious R.B.G.) recuse themselves from the Court's review of the 6th Circuit Court of Appeals' decision to uphold same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee because both justices have officiated at same-sex weddings:

“Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it.”

AFA followed its statement with an "Action Alert" to its members, calling on them to write to their members of Congress, "urging them to remind members of the nation’s highest court of their charge to maintain impartiality."

The weddings in question were officiated by Kagan in September of 2014 and by Ginsburg in August of 2013


Rachel Maddow On SCOTUS And Gay Marriage: ‘A Sense Of Inevitability Can Be A Dangerous Thing’ - VIDEO

Rachel

On Friday night, Rachel Maddow dug into the decision by the Supreme Court to hear 4 cases tackling whether states have the right to ban same-sex marriage. As our legal editor Ari Ezra Waldman pointed out in his analysis of this decision, the Court seems to be leaning towards recognizing a nationwide freedom to marry. And indeed, momentum seems to be on the side of marriage equality. Since the 2013 SCOTUS ruling on DOMA, we have gone from having only 20% of the U.S. population living in states that allow same-sex marriage to 70% (see GIF below). However, for all the talk of momentum, Rachel Maddow wonders, what if the inevitable is not so inevitable? 

Watch her contemplate this question, AFTER THE JUMP…

Marriage

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