This is the final post in a four-part series on the written arguments that have been filed in the same-sex marriage cases at the Supreme Court. This post covers the briefs filed by individuals and organizations supporting the states’ authority to control the definition of marriage, and, in particular, to prohibit same-sex marriage. The first three articles in this series covered the briefs filed by the challengers, by the four states defending their bans, and by the amici supporting the challengers, including the federal government.
Taken as a whole, the sixty-six legal briefs filed in defense of the four states’ bans on same-sex marriage show evident signs of trying mainly to satisfy Justice Anthony M. Kennedy. There is a studied effort among many of these amici not to disparage the gains that the gay rights community has made in the law, gains that usually have come from Kennedy’s singular influence, while at the same time foreseeing a dire future for traditional opposite-sex marriage and to state sovereignty if the institution is opened by judicial decree to gays and lesbians.
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The petition of the day is:
Issue: Whether there is a Fourteenth Amendment substantive due process right to avoid a prolonged pretrial detention caused by a police officer's failure to disclose evidence that is “strongly indicative of innocence”; or, where there has been no trial and conviction, and thus no violation under Brady v. Maryland, whether pretrial deprivations of liberty are governed by the Fourth Amendment.
The question for the Court in McFadden v. United States, scheduled for oral argument next Tuesday, is not whether the court of appeals below got it wrong – even the government concedes that it did. No, the question for the Court on Tuesday is, instead, what is the right answer. And the mind-bending intricacies of mens rea doctrine raised by the case are likely to lead the Court into nuanced and difficult-to-understand questions – and ultimately to division. (Recall the mens rea arguments and divided opinions in Rosemond v. United States last Term.)
The mens rea required for a federal narcotics prosecution is deceptively simple: 21 U.S.C. §841(a) provides that “it shall be unlawful for any person knowingly … to distribute … a controlled substance” (my emphasis). But because the criminalization of controlled substances is controversial in many quarters, and the penalties are viewed by some as harsh – and because the human appetite for psychotropic substances seems inexhaustible — every legal nuance tends to be hard-fought in a narcotics prosecution case. Thus it is with Section 841 mens rea: what exactly does the government have to prove a defendant “knew,” in order for a jury to convict? The exact chemical formula of the substance distributed? That the substance is actually on the statutory list? That the substance is a “narcotic” drug? Or just that he was distributing something people enjoy consuming? (Which, as alcohol demonstrates, can’t be the case.) Continue reading »
For Monday morning’s re-argument in Johnson v. United States, the Justices have posed their own Question Presented: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague.” When the Supreme Court directs the parties to answer such a question after struggling with a case for two months (it heard the first set of oral arguments in November and ordered re-argument in January), many would say that the handwriting is on the wall. However, the federal government’s supplemental brief presents as strong a case as one can imagine for answering the new question in the negative. And at oral argument on Monday morning, the federal government is likely to make clear that it – and the statute – will not go down without a fight. Continue reading »
Court-related coverage and commentary continue to focus on the oral arguments eleven days from now in the challenges to state bans on same-sex marriage. At the Constitutional Accountability Center’s Text and History Blog, David Gans addresses (and disputes) the idea that “conservatives have been bullied” in the same-sex marriage cases, while in the Boston Globe Lisa Keen discusses the amicus brief filed in the case by Massachusetts. At Constitutional Law Prof Blog, Ruthann Robson summarizes all of the amicus briefs filed in the case. Continue reading »
The petition of the day is:
Issue: Whether Federal Rule of Civil Procedure 60(b)(5), which requires a moving party to show a significant change in factual conditions or law that renders continued enforcement of a judgment detrimental to the public interest, permits shifting the burden to the non-moving party to justify the original judgment.
At its Conference on April 17, 2015, the Court will consider petitions seeking review of issues such as the pleading standards under the Fair Labor Standards Act, the validity of redistricting plans in North Carolina, and the filing period for a constructive discharge claim under federal employment discrimination law.
This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.
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As part of our expanded coverage of this month’s oral arguments in the challenges to state bans on same-sex marriage, we are pleased to present this post by Michael Klarman on the history of the same-sex marriage movement and, more broadly, on how constitutional law evolves in the United States.
With support for gay marriage continuing to grow, in 2008 high courts in California and Connecticut ruled in its favor. However, the California decision was quickly overturned by Proposition 8, which passed by a margin of about five percentage points.
Six months after this bitter defeat, same-sex marriage took an enormous leap forward. Within a few weeks in the spring of 2009, the Iowa Supreme Court and three legislatures in New England – those of Vermont, New Hampshire, and Maine – embraced a right to same-sex marriage.
But efforts to legalize same-sex marriage encountered additional roadblocks soon thereafter. In Maine, voters vetoed the same-sex marriage law in November 2009 by roughly fifty-three to forty-seven percent. In Iowa, where a Democratic-controlled state legislature refused to permit a referendum on a state marriage amendment, voters in 2010 recalled three justices whose retention elections were converted into a virtual referendum on same-sex marriage. These were the first justices defeated for retention in the state’s fifty-year history of retention elections. Continue reading »
Although the oral arguments in the challenges to state bans on same-sex marriage are now less than two weeks away, yesterday’s big news came from Chief Justice John Roberts, who reported for jury duty in Maryland (but was not selected). Dan Morse and Robert Barnes of The Washington Post have the story.
Turning to the same-sex-marriage issue, this blog featured the first in a two-part series by Michael Klarman on the history of the same-sex marriage movement. In The Salt Lake Tribune, Jennifer Dobner reports that a “Mormon couple in a mixed-orientation marriage are objecting to their inclusion in a U.S. Supreme Court case filing because it argues that legalized gay marriage would demean the marriages of couples like themselves.” In the free times, Eva Moore reports on the amicus brief filed by South Carolina in support of the states; the brief argues that the Fourteenth Amendment, “which promises equal protection to all people, doesn’t guarantee a right to same-sex marriage.” At Time, Zeke Miller and Haley Edwards report that, in anticipation of a possible ruling striking down the state bans on same-sex marriage, conservative activists are “tak[ing] on a central tenet of modern American politics: that the Supreme Court has the final say on what is the law of the land.” And at Talking Points Memo, Sahil Kapur reports that newly announced presidential candidate Hillary Clinton “appears to have shifted her view toward a full embrace of marriage equality. Her new position? Marriage should be a constitutional right for same-sex couples.” Continue reading »
The petition of the day is:
Issue: Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.