Next week at #SCOTUS: Three big days (M, W, Th) of opinions decided at or just after 10AM EDT/9AM CDT/7AM PDT
#SCOTUS opinion days next week: Monday, Wednesday, Thursday. Opinions at 10a each of those days. There are 11 remaining opinions expected.— Chris Geidner (@chrisgeidner) June 20, 2014
Big 5 cases at #SCOTUS left: Sebelius v. Hobby Lobby Quinn v. Harris ABC v. Aereo McCullen v. Coakley NLRB v. Noel Canning— Justin Gibson (@JGibsonDem) June 19, 2014
Expect Sebelius v. Hobby Lobby to be decided last, on either Thursday or Monday, June 30th.
Todd Starnes being his usual homophobic self.
ALERT: #SCOTUS will decide the fate of LGBTQ rights and marriage equality tomorrow.
Tomorrow is the last #scotus day. Same-sex marriage. History.— SCOTUSblog (@SCOTUSblog) June 25, 2013
My p/ds: DOMA’s definitely done, while Prop 8 will either be struck down in some fashion (California-only most likely) or punted. #SCOTUS— Justin Gibson (@JGibsonDem) June 25, 2013
ALERT: #SCOTUS has added a decision day, and it is tomorrow. Also, another one will likely be tacked on later this week
Expect at least 1 of the 3 major remaining cases to be announced tomorrow. Which one will it be? Section 5 of the Voting Rights Act, DOMA, or Prop 8?
Also, there will most likely be another SCOTUS day added on (most likely Thursday).
During oral arguments this morning, U.S. Supreme Court Chief Justice John Roberts appeared to at least entertain the argument by House Republicans that gays and lesbians are too politically powerful for constitutional protection.
Roberts suggested that gays and lesbians must be “politically powerful” because politicians are “falling all over themselves” to endorse gay marriage, according to a tweet by Mother Jones’ Adam Serwer. The brief by Paul Clement, who represented the House of Representatives in defending DOMA, had reasoned that gays and lesbians are winning political battles and “have the attention of lawmakers,” an absurd claim since the “power” assertion is factually inaccurate, and because such an argument would also cancel out protections for racial minorities and women.
Roberts and his fellow conservatives also expressed concern over the White House’s decision not to defend the Defense of Marriage Act, with Kennedy calling it “very troubling” and Justice Antonin Scalia criticizing the Justice Department’s “new regime.”
By contrast, several of the court’s liberal justices expressed alarm over the impact of DOMA’s actual deprivation of federal marriage benefits on gays and lesbians, with Justice Ruth Bader Ginsburg calling the rights left for married couples after DOMA “skim milk” and questioning, “What kind of marriage is this?” Justice Elena Kagan, meanwhile, pointed to evidence from a House of Representatives report that lawmakers passed DOMA with improper motives. Justice Anthony Kennedy, the likely swing vote, repeatedly expressed a different concern with DOMA — that it impinged on state definitions of marriage.
H/T: Think Progress
The Supreme Court will hear arguments Tuesday morning on California’s Proposition 8 — a case that could settle the national debate over marriage equality once and for all.
Or it could throw it back to the political realm for a series of lengthy battles across the dozens of states that have yet to permit same-sex couples to marry.
The case, Hollingsworth v. Perry, is about whether California’s ban on gay marriage, adopted by voters in 2008, violates the Constitution’s guarantee of equal protection under the law. The lawsuit was brought by Kristin Perry and Sandra Stier, who in May 2009 were denied a marriage license because they were a same-sex couple. Represented by über-lawyers Ted Olson and David Boies, they want the justices to recognize a constitutional right to marry. If a majority of the Court agrees, it would wipe out all state bans on gay marriage.
Alternatively the justices could reach a narrow ruling that strikes down just Prop 8 on the particulars and perhaps some other state bans on marriage equality — while leaving other bans intact. One possible route for the court would be to say states may not take away same-sex marriage rights after they have granted them, as California did prior to the passage of Prop 8.
The defenders of Prop 8 — ProtectMarriage.com, which spearheaded the original ballot initiative — argue that marriage should be left to states. If the justices agree, Prop 8 (and other gay marriage bans) would be upheld and proponents of gay marriage would face a state-by-state battle to overturn existing bans.
The outcome is difficult to predict. Even though the national political tide is turning rapidly in favor of equality, and although swing Justice Anthony Kennedy has a gay rights streak, some court watchers doubt that the most conservative Supreme Court since the 1930s would leap ahead of most states on the issue and enshrine a right to marry. On the other hand, some lower court decisions point to a victory for same sex couples in California, if not other states as well. (The Obama administration recently championed a constitutional right for gays to marry.)
Alternatively, the justices could determine that the case lacks standing because California has refused to defend the law, and send it back to the lower courts to try again. This is less likely given that the Court agreed to take up two major gay marriage cases back to back.
The Tuesday oral arguments on Prop 8 will be followed Wednesday by arguments on the constitutionality of the Defense of Marriage Act, the 1996 law that prohibits federal recognition of gay marriage and denies benefits to legally married same sex couples.
The NYT infographic on how SCOTUS could rule on DOMA and Prop 8.
WASHINGTON (AP) — The Supreme Court won’t hear an appeal of a decision upholding a century-old ban on corporate campaign contributions in federal elections.
The high court on Monday refused to hear an appeal from William P. Danielczyk Jr. and Eugene R. Biagi, who wanted the courts to say the ban violates corporations’ free-speech rights.
A federal judge agreed with them, but the 4th U.S. Court of Appeals in Richmond, Va., overturned that decision. The Supreme Court’s 2010 Citizens United decision struck down a prohibition against corporate spending on campaign activities by independent groups but left untouched the ban on direct contributions to candidates.
This comes one week after the justices decided to hear a challenge to limits on how much an individual can give to political campaigns. In that case, an Alabama man argues that it’s unconstitutional to stop a donor from giving more than $46,200 to political candidates and $70,800 to political committees and PACs.
Shaun McCutcheon says he accepts that he can only give $2,500 to a single candidate but says he should be able to give that amount to as many GOP candidates as he wants.
The justices will hear that case later this year.
Supporters of the Voting Rights Act are painting a bleak picture of what it would mean for the rights of minority voters if the Supreme Court were to strike down the landmark 1965 law’s Section 5, which requires state and local governments with a history of disenfranchising minority voters (i.e. mostly in the south) to receive preclearance from the Justice Department or federal court before changing laws that affect voting.
“Broadly speaking, if we didn’t have Section 5 we would find that minority voters are in many places around the covered jurisdictions will have their ability to equally participate in the political process severely compromised,” Julie Fernandes, a civil rights activist and former deputy assistant attorney general at the Justice Department’s Civil Rights Division, said this week. “We’ll see a lot more of the diluting tactics that we used to have.”
The Supreme Court hears oral arguments Wednesday in Shelby County v. Holder, the most serious challenge to Section 5 of the Voting Right Acts in the nearly 50 years since its enactment. The liberal-leaning Center For America Progress held a briefing with reporters in advance of the Supreme Court hearing where experts, including Fernandes, made the case for the validity and necessity of Section 5. Nervous that their side will face five very skeptical justices at oral arguments, they described the part of the law as critical to protecting minority voters’ rights.
Fernandes warned that certain states and municipalities would be free to enact laws that dilute the African-American and Latino vote — such as a return to “at-large” elections where all of the voters vote for all of the seats and racially-oriented redistricting in Congress, county commissions, sheriff elections and police juries.
“I think that we will see that African Americans and Latinos in particular, but in some places Native Americans, will just not have equal political power,” she said. Fernandes pointed in particular to Alabama, where the Shelby County case originated, and other southern states.
Texas State Rep. Trey Martinez Fischer (D), also at the CAP briefing, argued that the outcome would be systematic efforts in certain state and local governments to marginalize, disenfranchise and even intimidate minority voters.
“Even for those who do persevere, who register and engage in the process, you’re starting to see an increase in voter purges and secretaries of state taking a more active role in maintaining their voting lists,” he said. “You see the voter intimidation tactics of folks … going into minority communities and intimidating poll workers. … So these are things that I think you’ll see more of.”
Keep the VRA and Section 5!
H/T: Sahil Kapur at TPM
In a major case next spring, the Supreme Court will consider whether it’s constitutional for the federal government to refuse to recognize same sex marriage, as multiple lower courts have decreed.
The justices have several options on how to come down in the Windsor v. United States challenge to Section 3 of the 1996 Defense of Marriage Act, which denies federal benefits to gay couples that are legally married in their states.
Earlier this week TPM gamed out the potential outcomes on Proposition 8, the other big same sex marriage case the Court decided to hear regarding whether states like California can outlaw gay marriage.
Here’s how legal experts say they might rule in the unrelated DOMA case, which deals with federal law.
1) Strike Down DOMA
The Court could determine that Section 3 of the Defense of Marriage Act violates the Constitution’s guarantee of equal protection for all under the law. In that scenario, gay couples in states like Massachusetts and Maine would begin to receive federal perks for married couples such as retirement and tax benefits.
The reach of such a decision would be important for future gay marriage battles.
2) Uphold DOMA
The majority of justices could find Section 3 of DOMA valid under the Constitution. That would enshrine a status quo where gay married couples in states where same sex marriage is legal are treated differently than their straight counterparts under federal law.
Along with being denied tax and Social Security survivor benefits, gays would continue to not have the ability to sponsor foreign spouses for legal immigration status, as straight married couples are permitted to do.
The Supreme Court could potentially dismiss the case on procedural grounds. The case is unusual in that the Obama administration — the designated defendant for a federal law — has refused to vouch for DOMA. House Republicans retained counsel to defend the law. The justices may decide that the case was not properly defended and remand it to the lower courts to try again.Eventually, however, the case is likely to find its way back to the Supreme Court.
The Supreme Court will take up a challenge next spring to California’s Proposition 8, the 2008 ballot measure which amends the state’s constitution to hold that “only marriage between a man and a woman is valid or recognized in California.”
The outcome could range from requiring all states to accept gay marriage or decreeing such bans constitutional. The justices could also dodge the issue. Here are the different ways the ruling could go.
All Gay Marriage Bans Are Struck Down
This is the outcome desired by the challengers, represented by über-lawyers Ted Olson and David Boies: a sweeping decision that decrees all bans on gay marriage unconstitutional under the equal protection clause.
That would strike down laws in several dozen states prohibiting gay marriage. It would be a dramatic, far-reaching step by any reckoning that would ultimately put the Supreme Court on the right side of history but turn it into a piñata among conservatives in the short-run.
Prop. 8 Is Overturned
The Supreme Court may find Prop. 8 unconstitutional, but limit the ruling to the particulars of the case, legalizing same sex marriage in California without requiring it in other states.
Prop. 8 Is Upheld
The high court may decree Prop. 8 constitutional, affirming a status quo where states have the freedom to determine whether or not to recognize same sex marriage.
The Court has an escape route from making a definitive ruling altogether: “The justices could rule that the case was not defended by the right party and remand the controversy to the lower courts,” wrote Winkler.
h/t: Sahil Kapur at TPM
The United States Supreme Court will review the decision by the 9th U.S. Circuit Court of Appeals that struck down Proposition 8, a 2008 law which banned gay marriage in California.
The appeals court’s ruling issued was issued in February and found the law unconstitutional.
The court will also hear challenges to the Defense of Marriage Act.
h/t: Huffington Post
The Supreme Court is expected to soon dive into the battle over gay marriage.
The Court will meet on Friday to decide whether or not to consider the constitutionality of the Defense of Marriage Act — the 1996 law that bars federal recognition of same sex marriage. It will announce next week the cases it has decided to consider, and experts see few reasons why DOMA won’t be among them.
Two federal appeals courts have invalidated Section 3 of DOMA, which bars federal benefits for same sex couples, as a violation of equal protection under the Constitution. In a rare move for the executive branch, the Obama administration is pushing the Supreme Court to overturn the federal law and angling against implementing parts of it.
“The Supreme Court simply has to take a DOMA case,” said Adam Winkler, a constitutional law professor at UCLA. “It’s extremely rare for the Court to allow lower courts to strike down a federal law on such an important issue without weighing in.”
Brian Fitzpatrick, a professor at Vanderbilt University School of Law who formerly clerked for Justice Antonin Scalia, said, “I think the DOMA cases are probably on the higher end of the spectrum because the lower courts have struck down an act of Congress.”
Of the 10 gay marriage cases on the high court’s menu, eight of them deal with DOMA.
If the Court declines to render a final judgment, Winkler explained, “federal law will apply differently depending on where people live. Traditionally, the Court works hard to avoid such a lack of uniformity. It could also create a bureaucratic nightmare for the federal government, which will have to give benefits to some gay couples but not others.”
Fitzpatrick does however see a conceivable scenario in which the Court opts not to take up DOMA. Here’s what that would mean: the conservative justices would conclude they don’t have the votes to uphold DOMA, and the liberals would prefer not to risk losing the possible swing vote of Anthony Kennedy, since the lower courts have given them their desired outcome anyway. So the Court declines to hear any DOMA cases, meaning the appellate rulings would stand, giving liberals what they want for now but putting off a supreme judgment on the issue.
Of the other two same sex marriage cases the Court may consider: one involves California’s Proposition 8, the ballot measure passed in 2008 which amends the state’s constitution to ban recognition of same sex marriages; another deals with an Arizona law that, like DOMA, restricts benefits for same sex unions.
Prop 8 isn’t seen as a prime candidate for Supreme Court review, partly because it covers a narrow range of issues. If denied, the lower court’s ruling overturning it would stand.
“If the Court doesn’t take this case,” said Winkler, “it is a big win for gay rights because marriage will soon be legal again in the nation’s most populous state.”
The nine judges of the US Supreme Court will decide next week whether to consider the constitutionality of same-sex marriage – a keenly awaited choice that will have far-reaching implications for thousands of legally married gay couples across the United States.
Activists are hoping that shifting public opinion on the issue, most recently demonstrated by election-day victories in all four states where same sex-marriage measures were on the ballot, will convince the judges to take on the issue.
Up for decision is a set of cases relating to the Defense of Marriage Act (Doma), a 1996 law which states that every time any federal law refers to marriage, it means only that between a man and a woman. Same-sex couples who are legally married in one of nine states or Washington DC are thus denied the benefits or opportunities afforded by marriage to opposite-sex couples.
Five federal courts have ruled that Doma is unconstitutional. The Supreme Court could decide to take on one or more of these cases. The judges will also decide whether to consider an appeal from supporters of California‘s Proposition 8, a voter-approved amendment to the state constitution which seeks to ban same-sex marriage. Another petition before the justices relates to the state of Arizona, which is seeking to revive a state law that is similar to Doma.
Four Supreme Court justices must agree a case in order for the court to take it. They can take up all of the measures before them, none of them or some. The justices are expected to announce a decision on 30 November.
Advocates of marriage equality are hoping that the tide of public opinion that has been demonstrated by polls over this year will persuade the justices to strike down Doma. Last year, the Obama administration decided not to defend the law in court, believing it to be unconstitutional.
Brian Moulton, legal director of Human Rights Watch, a marriage-equality group, said that the election-night victories had underlined the need for a Supreme Court decision on Doma, because of the growing number of couples who will be affected by a federal law that discriminates against them.
Moulton said: “The number of couples who are married at the state level who will not be recognised because of Doma will get bigger and bigger, so the scope of the problem will grow. That might influence the question of whether to resolve the issue.”
More controversial, he said, was the question of whether the justices decide to take on Proposition 8. It is exclusive to California, so it is less likely the justices will take it up. Both a federal trial court and the Ninth Circuit Court of Appeals have ruled Proposition 8 unconstitutional. However, the Ninth Circuit found that it was the unique circumstances of California that made adopting Proposition 8 a violation of the US constitution.
If, as many predict, the justices decline to consider an appeal from supporters of Proposition 8, same-sex couples would again be permitted to marry in California, as was the case for a few months in 2008 before the passage of the proposition. Because of the size of the state, such a decision would at a stroke dramatically boost the number of gay couples in the nation who would be able to legally marry.
Nejaime said that the court had several options regarding Proposition 8, including upholding it along the narrow focus of the Ninth Circuit ruling. “If they went behind the Ninth Circuit, we would only have same-sex marriage in states that already have domestic partnerships or civil union. The broadest ruling would be to say all of the states where same-sex marriage is not allowed is unconstitutional – but I don’t think the court is ready to go there.”
If the justices decide not to take the case, California could begin issuing marriage licences within days.
h/t: The Raw Story
Earlier this year, Josh Gerstein noted, “In a political system where even the most trivial issues trigger partisan rancor, the Voting Rights Act has stood for several decades as a rare point of bipartisan consensus. Until now.”
That’s true. On Capitol Hill,Republican hostility towards the Voting Rights Act has reached levels unseen in decades, and an even more serious threat to the law’s future now looms at the U.S. Supreme Court.
Given the current makeup of the high court, it’s not unreasonable to think there are five conservative votes for weakening the landmark civil rights law.