If the justices pick any of these seven same-sex marrage cases, the impact could be huge.
Yet these victories are complicated by the lack of a national legal standard on gay marriage: For now, it remains a state-level question. But that could change if the US Supreme Court steps in. Last week, the high court announced that it will review a package of seven gay-marriage cases from five states in late September when it chooses which cases to consider in their 2014-2015 term.
Legal experts say it’s likely that the court will hear at least one of the cases. “I think they’re going to take a case,” says Dale Carpenter, a professor of civil liberties law at the University of Minnesota law school. “The only question is which one. They know whichever they take, it’s going to be momentous.”
This cluster of cases centers on two key questions: All seven ask SCOTUS to consider whether a state law limiting marriage to a union between a man and a woman violates the 14th Amendment. Six of the seven cases also raise the question of whether states must recognize same-sex marriages performed in other states."I think they’re going to take a case. They know whichever they take, it’s going to be momentous."
The Supreme Court ruled on two landmark gay marriage cases in 2013: Hollingsworth v. Perry, which overturned California’s Proposition 8, and US v. Windsor, which invalidated the Defense of Marriage Act. But neither weighed in on the constitutionality of same-sex marriage bans, leaving the choice to allow gay marriage up to each individual state. If the court takes one of these new cases, it’s likely that its decision will have a broad and more definitive impact. “Should they decide that the 14th Amendment actually protects the rights of same-sex marriage, that would have the effect of being binding on the federal government,” says Jane Schacter, a professor at Stanford Law School.
The cases before the court involve the 14th Amendment’s guarantees to equal protection under law and due process. If the high court rules that it is a violation of either promise for one state to deny a marriage license to a same sex couple, then it would become unconstitutional for any state to do so. Any state that failed to comply with the ruling, Carpenter elaborates, “would face immediate lawsuits—a complete waste of time and money.”
It’s anyone’s guess which case (or cases) SCOTUS may choose. The justices will choose between three Virginia cases, and one each from Utah, Indiana, Oklahoma, and Wisconsin. Ted Olson and David Boies, the attorneys on one of the Virginia cases, successfully argued Hollingsworth v. Perry last year. The attorney on one of the other Virginia cases is Paul Smith, who has argued multiple cases before SCOTUS, including Lawrence v. Texas in 2003, which struck down state sodomy laws. Carpenter says that the cases from Utah, Indiana, or Wisconsin might prove the most comprehensive choices for the court. “Utah, Indiana, and Wisconsin involve the marriage issue and the recognition issue and the state attorney generals are fully defending those laws. You have all the elements together in those cases,” he says. “The Supreme Court might want to just take a very clean case in which you’ve got the state squarely taking the position and defending its law.”
The Supreme Court could take multiple cases or all of them. It could also consolidate cases, something the court has done in the past with hot-button issues. (For example, 1954’s landmark Brown v. Board of Education combined six desegregation cases.) “All these plaintiffs want to be the chosen one,” says Schacter. “But it wouldn’t surprise me at all if they take more than one case.”
Here’s a closer look at all seven cases being considered by the court, and what’s at stake in each:
1. Herbert v. Kitchen (Utah): SCOTUS briefly dealt with this case earlier this year. In December 2013, a federal district court struck down Utah’s ban on same-sex marriage. Weddings began immediately. In January, the high court issued a temporary stay, putting a halt to marriages while the state’s appeal was considered. In June, the 10th Circuit Court of Appeals upheld the lower court’s ruling that the state’s same-sex marriage ban was unconstitutional.
2. Smith v. Bishop (Oklahoma): First filed in 2004, this case originally sought both to overturn Oklahoma’s ban on same-sex marriages and to recognize marriages performed in other jurisdictions. In January, a district court judge ruled that the state’s ban is unconstitutional, but dismissed the portion of the lawsuit addressing marriages from other states, ruling that the plaintiffs lacked standing. Both sides appealed to the 10th Circuit Court of Appeals, which affirmed the district court on both counts. In its appeal to SCOTUS, the state of Oklahoma isasking the court to rule exclusively on the marriage question.
3. Bogan v. Baskin (Indiana): This case began as three separate suits filed on behalf of a widow and 11 couples. Several plaintiffs have same-sex marriage licenses from other states that are unrecognized in Indiana. In June, a district court judge consolidated the suits into Baskin, and struck down the state’s ban on gay marriage. He did not stay the decision, allowing marriage licenses to be issued immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.
4. Walker v. Wolf (Wisconsin). In February, the American Civil Liberties Union filed this case on behalf of eight same-sex couples, three of whom had married in other places. In March, a district court judge denied the state’s requests to dismiss the case. In June she ruled in favor of the plaintiffs, overturning Wisconsin’s ban on same-sex marriage. Her ruling was unclear on whether marriages could begin or not: Still, clerks in some cities began marrying couples immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court’s decision.
5, 6, and 7. Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (Virginia): These three cases are different iterations of a suit filed in July 2013 by plaintiffs Timothy Bostic and Tony London, who seek to get married in Virginia. Carol Schall and Mary Townley joined the case in September 2013. They were legally married in California in 2008, but their union is not recognized in the Old Dominion. This has made it impossible for Schall to formally adopt her own daughter. In February, a district court judge ruled on all three cases, concluding that the state’s laws barring in-state gay marriages and prohibiting recognition of out-of-state marriage licenses is unconstitutional. In July, the 4th Circuit Court of Appeals affirmed the lower court’s ruling. A fourth case, Harris v. Rainey, a class action suit, has been incorporated into Rainey v. Bostic.
To date, four federal circuit court rulings in cases from five states have been appealed to the Supreme Court of the United States
UPDATE: Today the Supreme Court scheduled marriage equality cases from all five states for consideration at its Sept. 29 private conference. The nine justices will meet that date to consider a large number of case requests that have come before them this summer. There’s no guarantee as to whether the Court will take up a case or cases, or put the issue off for a later conference.
Yesterday state officials in Indiana and Wisconsin formally petitioned the Supreme Court of the United States for writ of certiorari (here and here), asking the highest court in the nation to hear their appeals of circuit court rulings striking down their states’ marriage bans. The plaintiffs challenging the bans filed responses to those petitions (here and here), urging the justices to take up their cases and decide the issue of marriage equality nationwide once and for all.
One hilarious, albeit insulting, tidbit from Indiana’s petition to the court takes issue with the Seventh Circuit’s assertion that state marriage bans target gays and lesbians for unfair discrimination. The state’s response?
“The [marriage ban] itself makes no mention of sexual orientation, and as the case record in this case amply demonstrates, homosexuals often do marry members of the opposite sex in Indiana.”
Basically, gay people can legally marry in Indiana – as long as it’s to someone of the opposite sex. So technically there’s no discrimination happening.
To date, federal appeals court rulings in marriage cases out of Utah, Oklahoma, Virginia, Indiana and Wisconsin have been appealed to the Supreme Court. The Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case. “I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” Ginsburg said. “If a case is properly before the court, they will take it.”
The Court announces cert decisions as part of an orders list, which is generally released on the Monday morning after the Justices’ private conference. The opening conference for the October 2014 term is Monday Sept. 29th, meaning that Monday Oct. 6th is likely the earliest day for a possible announcement.
To learn more about the cases pending before the Supreme Court and the dozens of others working their way through the courts across the country, visit AmericansForMarriageEquality.org.
BREAKING.: Mormons, Catholics, & Evangelicals Ask SCOTUS To Uphold Utah Gay Marriage Ban [TW: Anti-LGBT Bigotry & Discrimination, Homophobia]
The above-named religious groups have filed an amicus brief asking the Supreme Court to uphold Utah’s ban on same-sex marriage. Via the Associated Press:The religious groups urged the Supreme Court on the basis of tradition and religious freedom to uphold a state’s right to disallow gay and lesbian couples to wed. “Legal uncertainty is especially burdensome for religious organizations and religious believers increasingly confronted with thorny questions,” the brief says. “Is their right to refrain from participating in, recognizing or facilitating marriages between persons of the same sex, contrary to their religious convictions, adequately shielded by the First Amendment and other legal protections? Or is further legislation needed to guard religious liberties in these and other sensitive areas?” Last month, attorneys for three Utah gay and lesbian couples formally asked the U.S. Supreme Court to take Utah’s appeal of a favorable gay marriage ruling.
The brief is relatively short. Equality Case Files has the full filing.
In July, two Republican judges on the United States Court of Appeals for the District of Columbia Circuit handed down a decision defunding much of the Affordable Care Act (ACA). This effort to implement Sen. Ted Cruz’s (R-TX) top policy priority from the bench was withdrawn on Thursday by the DC Circuit, and the case will be reheard by the full court — a panel that will most likely include 13 judges. In practical terms, this means that July’s judgment cutting off subsidies to consumers who buy insurance plans in federally-operated health exchanges is no more. It has ceased to be. It is, in fact, an ex-judgment.
The reason why this matters is because the plaintiffs in this lawsuit, known as Halbig v. Burwell, are hustling to try to convince the GOP-dominated Supreme Court to hear this case, where they no doubt believe that they have a greater chance of succeeding than in the DC Circuit, as a majority of the active judges in the DC Circuit are Democrats. The Supreme Court takes only a tiny fraction of the cases brought to their attention by parties who lost in a lower court — a study of the Court’s 2005 term, for example, found that the justices granted a full argument to only 78 of the 8,517 petitions seeking the high Court’s review that term. The justices, however, are particularly likely to hear cases where two federal appeals courts disagree about the same question of law.
Two hours after the divided DC Circuit panel released its opinion attempted to defund Obamacare, a unanimous panel of the Fourth Circuit upheld the health subsidies that are at issue in Halbig. Thus, so long as both decisions remained in effect, Supreme Court review was very likely. Now that the full DC Circuit has vacated the two Republican judges’ July judgement, Supreme Court review is much less likely.
Although it is possible that the full DC Circuit could agree with the two judges who voted to cut off health subsidies to millions of Americans, this outcome is unlikely. The plaintiffs’ arguments in this case are weak and are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.
The litigants seeking to undermine Obamacare through this lawsuit — Oklahoma Attorney General Scott Pruitt (R), who filed a brief supporting the plaintiffs in this case, admitted in a Wall Street Journal op-ed that the purpose of this lawsuit is to cause “the structure of the ACA” to “crumble” — waged a two front effort trying to convince the full DC Circuit not to vacate their two GOP colleagues’ decision. The first half of this effort was a brief the plaintiffs filed with in the DC Circuit urging the full court to give the case a miss — although the argument raised in this brief is rather unusual. In essence, it broke down to three claims:
- This case is really important. And potentially very disruptive. According to the Halbig plaintiffs, “continued uncertainty” over whether Obamacare will be defunded “is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending.”
- If the full DC Circuit agreed to hear the case, however, that “would cause delay without providing any certainty,” because the Supreme Court may ultimately decide to take the case.
- Thus, the DC Circuit must not near this case, and it must “proceed immediately” to a “final resolution by the Supreme Court.”
On the surface, this argument may have some appeal, but it collapses upon a fairly minimal amount of scrutiny. It would indeed be disruptive if much of the Affordable Care Act were defunded, and the existence of this lawsuit does raise some uncertainty over whether or not that will happen. It would be even more disruptive, however, if President Obama were deposed because the Supreme Court held that he was born in Kenya, or if the federal tax code were held unconstitutional, or if people could immunize themselves from the law by declaring themselves “sovereign citizens.” If the mere fact that a plaintiff raises a potentially disruptive legal argument were grounds for removing all obstacles to immediate Supreme Court review, then the Court’s docket would be clogged with cases brought by birthers, tax protesters and sovereign citizens.
The reason why this doesn’t happen is that the justices typically use the lower courts as a mechanism to screen the few cases raising issues that are difficult enough to warrant Supreme Court review from the vast bulk of cases that do not. This is one reason why the justices tend to hear cases where two courts of appeals disagree — because that disagreement is a sign that the case is sufficiently challenging that it requires a definitive ruling from the nation’s highest Court. When the full DC Circuit announced they would rehear the case, by contrast, that was an indication that the two Republicans who blocked the subsidies may be outliers who reached an idiosyncratic result in an easy case. The fact that all six of the other judges who have considered the Obamacare subsidies have also upheld them also lends credence to this view.
Perhaps recognizing that their legal arguments against further DC Circuit review were not likely to carry the day, Obamacare’s opponents turned to the conservative press to litigate their case in the media. A full hearing by a federal appeals court, what is known as an “en banc” hearing, is an unusual proceeding. But the Federal Rules of Appellate Procedure provide for en banc review when a case “involves a question of exceptional importance.” The plaintiffs in this case admit that “[t]here is no doubt that this case is of great national importance” in their most recent brief to the court — so they actually admit that this case warrantsen banc review.
Additionally, the official commentary on the federal rule dealing with en banc hearings explains that “[i]ntercircuit conflict is cited as one reason for asserting that a proceeding involves a question of ‘exceptional importance,’” so that is a second reason why this case was a prime candidate for en banc review.
Yet you would never guess these facts if you read the conservative Wall Street Journal’s opinion page, which claims that “if the D.C. Circuit rehears the case en banc, it would be a sharp break from history.” Nor would you learn it from the National Review, which suggests that “the recent D.C. Circuit panel decision on Obamacare exchange subsidies in Halbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard for en banc review.” Or if you read the Volokh Conspiracy, a popular libertarian legal blog read by many judges and their law clerks, which claims that “the bar on en banc rehearing in the D.C. Circuit has been higher than the bar for certiorari in the Supreme Court.”
The subject of how a federal appeals court should handle the purely discretionary question of whether or not they wish to rehear a particular case rarely makes national headlines. Nor do opinion writers of any kind normally dive into arcane rules of federal appellate procedure. It is difficult to read the conservative media’s protests regarding en banc review as anything other than an attempt to paint the court’s decision to rehear the case as a partisan decision — rather than what it is, a decision that is clearly consistent with the federal rules governing these circumstances. Indeed, the Wall Street Journal op-ed quoted above it quite explicit in its claim that a decision to grant an en banc rehearing would be a partisan decision — “Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality.”
Now that the DC Circuit has ignored these attempts to scare them off with accusations of partisanship, this case no longer meets the usual criteria for Supreme Court review.
The Obama administration has issued a new set of rules to provide contraceptive access to women whose employers object to their insurance plans covering birth control, which is required under the Affordable Care Act.
The new policies are intended to fill gaps left by two Supreme Court moves: The landmark Hobby Lobby decision saying contraceptive coverage violated the religious liberty of a for-profit corporation, and a preliminary order in Wheaton College v. Burwell. With today’s regulations, employees of for-profit corporations like Hobby Lobby will be able to access an “accommodation” where the insurer directly provides the cost-free coverage with no financial involvement by the employer. That accommodation was originally limited to religiously-affiliated nonprofits like Little Sisters of the Poor; houses of worship are fully exempt.
For nonprofits like Wheaton College that object to even that accommodation – which involves them signing a form to their insurer – the Obama administration has created a new accommodation to the accommodation. (Yes, it gets complicated.)
“The rules, which are in response to recent court decisions, balance our commitment to helping ensure women have continued access to coverage for preventive services important to their health, with the Administration’s goal of respecting religious beliefs,” Health and Human Services Secretary Sylvia Burwell said.
For the non-profits that object to the form – arguing that signing it triggers the very birth control coverage they oppose – the new rule allows those employers to write to HHS directly, instead of filling out the form. The Supreme Court first suggested the letter-writing option, and so far the litigants have accepted it. But there was some dispute among legal scholars before about whether the letter would result in actual coverage for the women who worked at those companies. The new rule clarifies that it does.
HHS is also seeking comment on exactly how to structure its accommodation for for-profit companies like Hobby Lobby, which is only one of 193 corporations that have sued for an exemption from covering contraception.
In June, the Supreme Court ruled that the Affordable Care Act’s rule that all insurance plans cover contraception without a co-pay as preventative care was a burden on the religious freedom of Hobby Lobby and other “closely held” companies. (That decision now guides courts considering other companies with objections to some or all forms of contraception.) The majority opinion, written by Justice Samuel Alito, said the government failed to show it had pursued the least restrictive way of getting women contraceptive coverage, and as proof pointed to the non-profit accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations.”
A few days later, when asked to prevent Wheaton College, one of the nonprofits suing over the accommodation, from having to fill out the accommodation form to their insurer while their litigation proceeded, a majority of Justices said Wheaton could write a letter instead. Justice Sonia Sotomayor, in a fierce dissent signed by the other two female Justices, accused the court of going back on its word in Hobby Lobby, writing, “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened … does not make it so.”
At the time, Wheaton hailed the letter-writing option as a victory, but it’s far from clear that the new accommodations will mollify all of the plaintiffs now that it’s clear the end result will be women getting no-cost contraception.
In July, after the government signaled it would issue the new rules announced today, Lori Windham, Senior Counsel for the Becket Fund, which represents Wheaton College and several other nonprofit litigants, said, “This is just the latest step in the government’s long retreat on the HHS Mandate. It is at least the seventh time in three years that the government has retreated from its original, hard-line stance that only “houses of worship” that hire and serve fellow believers deserve religious freedom.” Windham did not say whether the letter-writing option would ultimately be satisfactory, but said, “We are encouraged that the government is reviewing its policies.”
At oral argument for Hobby Lobby, Justice Sotomayor asked the company’s attorney, Paul Clement, “Will your clients claim that filling out the form, if – you’re saying they would claim an exemption like the churches have already?” She was referring to the case of the Little Sisters of the Poor, which like Wheaton College is a religiously-affiliated nonprofit that had sued for an exemption, saying the accommodation was not enough. The Supreme Court had told the Little Sisters it could write a letter to HHS instead of filling out the form.
Clement’s reply was cagey. “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that. But it’s important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn’t be a problem with that.”
Indeed, Marty Lederman, a professor at Georgetown Law School who has written extensively about the contraceptive cases, wrote in July of the letter option, “I think it is likely that most of those organizations will not be satisfied: They will argue that such a ‘fix,’ too, violates their rights under RFRA, because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage.”
In other words, the legal fights against the Obama administration over contraceptive coverage aren’t going anywhere anytime soon.
Here is what Greve said at a 2010 conference hosted by the conservative American Enterprise Institute, where Greve is an adjunct scholar, as The New York Times's Linda Greenhouse reported this week:“This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don’t care who does it, whether it’s some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States.”
The quote seems particularly revealing in the wake of the Halbig lawsuit, which most dismissed as a legal long shot until a federal appeals court ruled in its favor last month. It could now head to the Supreme Court, putting the law’s fate in the hands of the nation’s highest court for the second time since its passage.
It was considered a long shot because almost everybody who was there at the time — reporters, legislators and accountants — agreed that the rationale behind the lawsuit was absurd. The challengers argued that Congress had always meant to prohibit subsidies on the federal exchange, which would now strip more than 4 million people of financial help. The evidence — aside from some admittedly poor drafting — seemed negligible to non-existent in many observers’ eyes.
Those advancing the lawsuit, and some of their allies in the conservative media, have contorted their own understanding of the law into something that seems unrecognizable to those who spent months creating and covering it. It has left a number of liberal commentators baffled. But in the context of Greve’s professed vendetta against Obamacare, it makes a bit more sense.
One other comment from Greve during that 2010 panel seems particularly prescient. Back then, the individual mandate was the top legal target for those seeking to stop Obamacare. But Greve encouraged opponents, even before the Supreme Court upheld the mandate in 2012, to focus on “bits and pieces” of the law to stop it. And now, what many regard as a typo or poor drafting threatens to undo Obamacare.
"I think this is the right way to go," Greve said, "to concentrate on bits and pieces of this law beyond the mandate."
h/t: Dylan Scott at TPM
The Latest Attack on Labor, From The Group That Brought Us ‘Harris v. Quinn’ - Working In These Times
On the heels of its recent Supreme Court victory in Harris v. Quinn, the National Right to Work Committee and Legal Defense Foundation (NRTW) has initiated a bold new attack on unions.
In a recent fundraising appeal sent on August 10, the president of both organizations wrote that Harris “was just the beginning,” and that fair share provisions (or, as he called them, “forced dues”) were only “part of the problem.” Now, having succeeded in imposing a right-to-work model for home healthcare workers across the country, NRTW is gunning after a much greater and unexpected target: exclusive representation.
One of the bedrock principles of American labor law is exclusive representation, whereby a union represents all the workers in a bargaining unit after it shows majority support by the workers. In a new case filed on behalf of a few Minnesota home care workers, Bierman v. Dayton, NRTW is now arguing that a union elected by the majority of workers should not be permitted to represent anyone that does not choose to join.
Last week, I wrote about a new positive experiment in members-only unionism at Volkswagen, which does not follow the exclusive representation model. If it is successful, Bierman v. Dayton would transform all public-sector unions into forced members-only unions, opening the door to a radical reconfiguration of public labor organizations.
In Minnesota, 26,000 home health care workers are currently voting by mail-in ballot whether to elect SEIU as their union. Those ballots are due by August 25. In its first maneuver of Bierman v. Dayton, NRTW filed for a preliminary injunction to invalidate the state law that authorized these workers to vote for a union—in other words, an exclusive representative—to bargain with the state. Expedited oral arguments were held on Tuesday, and on Wednesday afternoon the federal judge denied NRTW’s request for an injunction.
This early loss was to be expected, as NRTW is mounting a novel legal argument that runs counter to decades of labor and constitutional law. And NRTW’s litigation strategy generally includes repeated early losses as its representatives work their way through the judicial circuits to the Supreme Court.
NRTW’s argument in Bierman is not unprecedented, either. The group, whose mission is “is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs,” included a similar measure in its brief to the Supreme Court in Harris v. Quinn. However, after Justice Sotomayor challenged the NRTW attorney on whether the group truly intended to radically challenge a core principle of American labor law, he backed off the argument.
Now, after having secured a major win in Harris, the Bierman case represents the next step in a multi-pronged attack on public-sector unions, which appears to be directed toward the goal of stripping from all public-sector workers the right to organize and bargain collectively.
So far, most First Amendment challenges to public-sector unions have relied on the argument that membership, or any required payments of any fees, is the equivalent of forced association or compelled speech. However, in Bierman, NRTW is relying on the Petition Clause, which provides the right “to petition the government for a redress of grievances.” According to this argument, a free rider who has benefitted from union representation but refused to pay any fees—a circumstance made possible under Harris v. Quinn—would have suffered constitutional harm by having the union bargain on her behalf.
Through this attack on exclusive representation, NRTW is almost certainly trying to diminish unions’ strength. Seattle University School of Law professor Charlotte Garden points out that a members-only system might lead some states to simply revoke the right to bargain collectively.
“Members-only bargaining might create a level of complexity that some public employers aren’t willing to deal with, leading states to eliminate public-sector bargaining altogether,” she says.
“For example, imagine a situation in which groups of employees within a single job classification voted for representation by several different unions that all demanded separate bargaining,” she continues. “That could create conflict among the employees and instability in the workplace that public employers were simply unwilling to deal with. States might then decide the best way forward was simply to eliminate collective bargaining.”
In an ironic twist, however, many labor advocates have also called for a revision of the rules on exclusive representation.
SUNY Buffalo Law School professor Matthew Dimick, who has written widely about some of the problems with the system of exclusive representation, explains to In These Times, “Since the representative of the bargaining unit is almost always chosen by some majoritarian process, there is always a danger that exclusive representation carries with it a suppression of minority interests and points of view.”
He notes that in the past, this has led to people already in positions of power using the union to further their agendas. “Historically,” he says, “the biggest problem has been ignoring or even suppressing racial minority interests.”
Others have argued that it is unfair to expect unions to represent those who choose to pay nothing.
Even so, though, if states were to adopt NRTW’s argument in Bierman, the next step for anti-union groups would likely be to argue that the Constitution prohibits bargaining with even a members-only union—a devastating move for the labor movement in both the private and public sectors. Though this argument may currently seem extreme and untenable, so did the argument that NRTW raised and dropped in Harris, only to pick up again in Bierman.
BREAKING: #SCOTUS puts #MarriageEquality on hold in Virginia.
BREAKING: Barring a last-minute stay by #SCOTUS, marriage equality is coming to Virginia next week. #VA4M
Without Supreme Court action, Virginia could start same-sex marriages next week: http://t.co/WP91WqWUIj— Vox (@voxdotcom) August 13, 2014
BREAKING: Fourth Circuit declines to stay Virginia #marriage ruling. Marriages can begin in Virginia on Monday unless SCOTUS grants a stay.— HumanRightsCampaign (@HRC) August 13, 2014
President Barack Obama hinted at the possibility of an upcoming vacancy on the Supreme Court Monday during a fundraiser for Senate Democrats.
Speaking to a group of donors to the Democratic Senatorial Campaign Committee on a break from his vacation in Martha’s Vineyard, Obama said he needs Democrats to hold a majority this year to fill vacancies to the high court.
“What’s preventing us from getting things done right now is you’ve got a faction within the Republican Party that thinks solely in terms of their own ideological purposes and solely in terms of how do they hang on to power,” Obama said. “And that’s a problem. And that’s why I need a Democratic Senate. Not to mention the fact that we’re going to have Supreme Court appointments, and there are going to be a whole host of issues that many people here care about that are going to be determined by whether or not Democrats retain the Senate.”
It was not the first time Obama has tied the Supreme Court to the midterm elections, but it was the first time Obama has explicitly suggested there would be a vacancy in his final years. Two of the Court’s left-leaning justices, Ruth Bader Ginsburg and Stephen Breyer, 81 and 75 respectively, have been facing calls from Democrats to step aside before Obama leaves office in 2017 to ensure that their seats remain occupied by liberals in the event Republicans regain the White House.
Ginsburg brushed aside calls for her retirement last month in an interview with Yahoo News’ Katie Couric. “All I can say is that I am still here and likely to remain for a while,” she said. Ginsburg has twice been treated for cancer while on the bench.
Obama successfully nominated Justices Elena Kagan and Sonia Sotomayor to the Supreme Court in his first two years in office. If Democrats lose the Senate this November, Obama would find it nearly impossible to get a Supreme Court nominee with a liberal bent confirmed.
A White House spokesperson said Obama did not have a specific vacancy in mind Monday. “The President’s comments were meant to convey the important role the Senate would play in the event of a Supreme Court vacancy,” the spokesperson said. “They were not in reference to a specific vacancy.”
"The nation looks to this Court to answer the question presented here."
WASHINGTON — Following on the heels of Utah officials and an Oklahoma clerk, Virginia Attorney General Mark Herring on Friday asked the Supreme Court to hear a case challenging the constitutionality of his state’s ban on same-sex couples’ marriages.
What distinguishes Herring’s filing is that his is the first request to the Supreme Court by a party that backs the position of same-sex couples that the ban is unconstitutional.
Of the reason for hearing the claim, Herring, represented by Virginia Solicitor General Stuart Raphael, argues that the Supreme Court should accept certiorari in the case because “[t]he question presented is vital to a large population of same-sex couples, to their children, and to their fellow Americans who believe that discriminating against gay people is both unfair and unconstitutional. They may fairly call this ‘the defining civil rights issue of our time.’”
Michèle McQuigg, the clerk of the circuit court in Prince William County, also has said that she will be filing a certiorari petition in the Virginia case. Like the clerk in Oklahoma, McQuigg is represented by the Alliance Defending Freedom, a conservative legal group.
Source: Chris Geidner for Buzzfeed Politics
"Voters will more vulnerable this November than they have been in decades."
Just over a year after the Supreme Court ruled that the nation has made so much progress on voting rights that key legal protections are no longer needed, a coalition of civil rights groups released a report documenting hundreds of voter discrimination and suppression cases. The organizations also called on Congress to rewrite the gutted section of the Voting Rights Act.
“Voters will more vulnerable this November than they have been in decades,” said Barbara Arnwine, Executive Director of the Lawyers’ Committee for Civil Rights Under Law, in a conference call with reporters. “Contrary to the Supreme Court’s assertion, voter discrimination is still rampant, and states continue to implement voting laws and procedures that disproportionately affect minorities.”
The report, released this week on the 49th anniversary of the signing of the Voting Rights Act, counted 332 cases in the last two decades in which voters successfully sued for violations of their voting rights, or when the U.S. Department of Justice blocked a state or county’s attempt to change their voting laws in an unconstitutional way. They counted another ten instances in which aggrieved voters settled out of court.
Tellingly, the majority of the violations happened in a small handful of states — Texas, Georgia, Louisiana and Mississippi, with South Carolina close behind — that were covered by the very Voting Rights Act formula that the Supreme Court ruled outdated and unconstitutional. As a result of the Court’s Shelby County decision, the Justice Department may no longer deploy federal observers to the formerly covered states to deter and report race-based voter suppression. The civil rights advocates that the loss of this federal monitoring program will result in “a substantial increase in voter intimidation.”
Dolores Huerta, a longtime civil and labor rights activist who organized farmworkers with Cesar Chavez, told reporters the study indicates another trend she called “appalling.”
“As the Latino community grows in numbers and their influence grows in the political process, discrimination also seems to be growing,” she said. “It is sad to see how legislation and practices have continued unabated against people of Latino descent.”
Huerta and others involved in the National Commission on the Voting Rights said their research found that modern day voter suppression takes a variety of forms, and not all of them have received the kind of media and political attention garnered by controversial gerrymandering and voter ID laws.
Huerta pointed to states that disenfranchise former felons after they have served out their sentences, or charge them hefty fines to have their voting rights restored. Arnwine also mentioned dozens of documented violations involving the local government’s failure to provide ballots and information in other languages, which they are required to do by law.
Vice-Chair Leon Russell of the NAACP added: “When I attended hearings [on voting rights] in Florida and Mississippi, we saw continuing barriers to equal participation. We saw long lines created intentionally, either by not having enough polling places in certain areas, or not having enough machines at those places. Some counties in Florida even got rid of bathrooms at the polls, which makes it harder not just for people with disabilities, but for everyone.”
The report comes on the heels of another study debunking the main justification used for passing many of the controversial voting laws in question: fraud.
Harvard Professor Justin Levitt surveyed more than a billion votes cast in general, primary, special, and municipal elections across the US from 2000 through 2014, and found only 31 credible instances of voter impersonation. And many of those 31 were never confirmed and prosecuted.
Source; Alice Ollstein for ThinkProgress
Virginia Attorney General Mark Herring announced Tuesday he will ask the U.S. Supreme Court to hear Virginia's same-sex marriage suit.
RICHMOND, VA (WWBT) -
Virginia Attorney General Mark Herring announced Tuesday he will ask the U.S. Supreme Court to hear Virginia’s same-sex marriage suit.
Herring says he plans to file the petition Friday to “definitively settle the constitutional issues for the Commonwealth and the rest of the country.” Utah filed an appeal with the U.S. Supreme Court earlier Tuesday.
A filing Tuesday in the 4th Circuit Court of Appeals requested the Court stay its mandate pending the Supreme Court’s decision whether to hear the case.
Click here to read the full ruling: http://ftpcontent4.worldnow.com/wwbt/PDF/20140728%20BosticOpinion.pdf
"Throughout this case, I have fought for the fundamental rights of Virginians and the quickest possible resolution," said Attorney General Herring. "I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard. This case has moved forward at an incredibly swift pace, and I look forward to a final resolution that affirms the fundamental right of all Virginians to marry."
Virginia’s General Assembly approved the same-sex marriage ban in 2005 and it was ratified into law by 57 percent of voters in 2006.
Attorney General Mark Herring has sided with same-sex marriage advocates, however both sides have conceded the final decision likely will be made in the Supreme Court.
The law is being challenged by Timothy Bostic and Tony London, a Virginia Beach couple, as well as Carol Schall and Mary Townley from Chesterfield.
Bostic and London have been in a relationship since 1989 and have lived together for more than 20 years. They applied for a marriage license in Norfolk in July 2013, but were denied by the clerk of court.
Schall and Townley have been together since 1985, have a child together and were legally wed in California in 2008.
Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester also joined the suit.
Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act, according to the Associated Press, however those rulings remain in various stages of appeal.
Same-sex marriage is currently legal in the District of Columbia and 19 states. In all, the AP counts more than 70 cases filed in the remaining 31 states prohibiting same-sex marriage.
"This Court should grant the petition and answer, once and for all, the important question presented."
Utah officials on Tuesday asked the Supreme Court to hear an appeal of the case challenging the state’s ban on same-sex couples’ marriages — the state’s last chance to uphold its ban and a case with nationwide implications.
After losing at the trial court in December 2013 and in the 10th Circuit Court of Appeals in June, the request to the Supreme Court is the only option remaining for Gov. Gary Herbert and Attorney General Sean Reyes, who are defending the ban.
If the court hears the case, the justices could issue a definitive, nationwide ruling on whether the many state same-sex marriage bans being challenged across the country are constitutional or not.
The Supreme Court, however, need not take the case. The process of seeking a writ of certiorari filed on Tuesday is the way of asking the court, which mostly gets to pick and choose which cases it wants to hear, to hear their case.
In the filing, Herbert and Reyes — represented by John J. Bursch, the former Michigan Solicitor General who has become a go-to conservative Supreme Court litigator since leaving that role; Gene Schaerr, a DC lawyer who left his role as a partner at Winston & Strawn to represent the state in the case; and state attorneys — gave the court eight reasons to take its case. Notably, although Schaerr argued the case at the 10th Circuit, Bursch is listed as the counsel of record in Tuesday’s filing.
The request comes despite the fact that one of the main reasons the court takes a case — a so-called “circuit split” that happens when different courts of appeals reach conflicting decisions on a matter — does not exist among the courts to have decided marriage cases since the Supreme Court’s decision striking down part of the Defense of Marriage Act in June 2013.
Nonetheless, Utah argues that the Supreme Court should hear its appeal because: (1) the court is “familiar” with the case because of the stay proceedings that were considered by the court, (2) state officials are “united” in defending the ban, (3) lower courts ruled that the state’s laws “were not based on animus,” (4) the “fundamental rights” questions are clearly presented, (5) the case involves both marriage and marriage recognition claims, (6) there are no standing issues at play in the case, (7) there is “no need to let the issue percolate even more,” and (8) the harm in waiting to resolve the issue is significant, “regardless of which side prevails.”
The plaintiffs in the case will now respond to the “cert petition,” as will outside parties who wish to share their view with the court.
Clerks in Oklahoma and Virginia already have said that they, too, will be asking the court to hear appeals that they lost in the 10th Circuit and 4th Circuit, respectively.
The Supreme Court is not expected to take any action on the petitions before they return to begin their new term in late September. At the same time, however, they are not require to act then. In 2012, for example, the justices did not act on requests relating to DOMA or California’s Proposition 8 marriage amendment until December of that year.
Read the Supreme Court filing:
Source: Chris Geidner for Buzzfeed LGBT
Supreme Court Justice Ruth Bader Ginsburg says the nation’s highest court will definitely take a same-sex marriage case, and she suggests when the country will know the future of marriage equality.
Ruth Bader Ginsburg says the Supreme Court will not “duck” same-sex marriage. The 81-year old Associate Justice (all Supreme Court Justices are technically Associate Justices, except for the Chief Justice) told the AP today that she expects the Court to take a case and decide it no later than June of 2016, or possibly earlier. She did not specify which case, although it’s assumed it will be one (or several, possibly) of the many dozen making their way through the nation’s court system now.
The AP reports that Ginsburg “said attitudes have changed swiftly in favor of the right of same-sex couples to marry.”
In August of last year, Ginsburg became the first sitting Supreme Court justice to officiate at a same-sex wedding. She married Michael M. Kaiser and John Roberts (no relation to the Chief Justice) in Washington, D.C.
“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg told the Washington Post at the time.
In October of last year, retired Justice Sandra Day O’Connor also officiated at a same-sex wedding. She married a couple together for 36 years, Jeffrey Trammell and Stuart Serkin.
Jean Podrasky, an LGBT activist, the cousin of Chief Justice John Roberts, and an occasional contributor to The New Civil Rights Movement, last year on these pages wrote of Ginsburg’s siding with the majority to “toss out” the Prop 8 case on standing, allowing the lower court’s ruling to stand.
"I truly believe that Justice Ruth Bader Ginsburg knew exactly what she was doing by siding with throwing the case out on standing," Podrasky wrote. ”I think her idea was for us to slowly win over public approval before making same-sex marriage legal nationwide, to allow us to win state by state through the legislative process or the ballot box, and later to have the Supreme Court rule on this again in a couple of years.”
Those “couple of years” seem to be coming up quickly.
If Justice Ginsburg’s words are true, expect a major marriage equality case to be decided at SCOTUS no later than June 2016.
h/t: David Badash at The New Civil Rights Movement