The Supreme Court on Friday afternoon spared the state of Utah, temporarily, from having to officially recognize some 1,300 same-sex marriages that were performed last winter.  In a two-sentence order, without noted dissent, the Justices put on hold a federal judge’s ruling in May requiring the state to validate those marriages.

This marked the second time the Justices have stepped in to put on hold a federal court ruling in favor of same-sex marriages in Utah.  The delay ordered Friday will be in effect until the U.S. Court of Appeals for the Tenth Circuit rules on the state’s claim that those marriages did not have full legal status when performed.  The state’s lawyers have called them “interim marriages.”  The Tenth Circuit, however, has already given a strong hint that the state’s appeal is likely to fail.

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Moving on to another state’s ban on same-sex marriage, the U.S. Court of Appeals for the Tenth Circuit on Friday for a second time struck down such a measure — this time, a constitutional prohibition in Oklahoma.  That followed its earlier ruling nullifying a ban in Utah — a case that is headed to the Supreme Court later this year.

The Oklahoma case is the longest-running same-sex-marriage lawsuit in the federal courts; it was originally filed in November 2004.  The same Tenth Circuit panel that ruled against the Utah ban in a recent split decision divided again, two to one, in barring enforcement of the Oklahoma ban.  Although the Oklahoma ban was nullified, the panel put its ruling on hold to allow an appeal in that case to the Supreme Court.  The Utah decision is on hold for the same reason.

While the majority ruled against the Oklahoma marriage ban itself, as requested by a couple seeking to marry, it dismissed an already-married couple’s plea to require the state to recognize their California marriage of six years ago.  The couple lacked a legal right (“standing”) to pursue that challenge because of procedural flaws in their lawsuit, the Tenth Circuit ruled; on that point, the panel was unanimous.

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UPDATED Thursday 8:35 p.m.  Acting quickly to protect same-sex marriages that they argued are fully legal, four Utah couples urged the Supreme Court not to put their marriages on hold while the state seeks to undo them in a court appeal.  It would be both unconstitutional and unprecedented in U.S. history, they argued, to undo a marriage that was entirely valid when performed, regardless of whether Utah’s ban on such marriages is ultimately struck down or upheld.  The filing of the response clears the way for the Court to act on the plea by state officials for an order postponing any duty for the state to recognize some 1,300 same-sex marriages performed last winter.  The couples’ response was filed hours in advance of a Friday morning deadline.  State officials may file a reply.


Arguing that a federal judge in Utah has attempted an end-run around the Supreme Court, top state officials in Utah urged the Court on Wednesday evening to spare the state from having to recognize now some 1,300 same-sex marriages performed last winter.  This is the first of two new moves that Utah will be making in the Court to prevent such marriages in the state, at least until the Supreme Court has the last word on the controversy.

Within coming weeks, the same officials will be filing a petition asking the Court to answer the basic constitutional question of states’ power to forbid gay and lesbian marriages.  The filing Wednesday was focused on a separate but related argument:  that Utah should not have to officially recognize at this time the marriages that were performed during a window of legal opportunity at the end of last year.  It referred to those as “interim marriages.”

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UPDATED 9:33 p.m.  State officials have now filed a formal notice that they will appeal this ruling to a higher state court, and that apparently has the legal effect of delaying the decision’s effective date.


The still-unbroken string of court rulings over the past year striking down state bans on same-sex marriage reached Florida on Thursday — at least in Monroe County, the local government that covers the Florida Keys on the state’s southern tip.  The fourteen-page ruling by a state trial judge is to go into effect in that county next Tuesday.

Circuit Judge Luis M. Garcia of Tavernier found that the Florida ban, approved by voters of the state in 2008, violated federal constitutional guarantees of due process and legal equality.  The measure had won approval at the polls by a margin of about sixty-two percent to thirty-eight percent.

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Sherlock Holmes plea denied

By on Jul 17, 2014 at 4:41 pm

Supreme Court Justice Elena Kagan refused on Thursday afternoon to block a federal appeals court ruling against continued copyright protection for fictional detective Sherlock Holmes, for any stories about him that have entered the public domain.  Kagan acted without even asking for a response from an author who is preparing a new Holmes anthology, and she gave no explanation for her denial of a stay.  The blog’s earlier post on the case is here.



Law school, clerking for Judge J. Edward Lumbard of the U.S. Court of Appeals for the Second Circuit, and how not getting an ACLU fellowship was a good way to start a career.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

Posted in Everything Else

Ruling that the Supreme Court has not barred all use of race in choosing the entering class of students at state universities and colleges, a federal appeals court on Tuesday upheld — for a second time — the admissions policies at the University of Texas in Austin.  The two-to-one decision by the U.S. Court of Appeals for the Fifth Circuit followed the Supreme Court’s return of the case of rejected white applicant Abigail Fisher for a focused new look at the need for a race factor.

Ms. Fisher’s lawyers said that they planned a new appeal to challenge this latest decision against her challenge to the university’s current admission plan.  The lawyers did not specify whether they would return directly to the Supreme Court or instead first attempt to get a new review by the full Fifth Circuit sitting en banc.

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Memoirs_of_Sherlock_Holmes_1894_Burt_-_Illustration_2Are Sherlock Holmes and Dr. Watson still under a legal cloak (or cape, if you will) of copyright law?  The Supreme Court may have to solve that mystery, to decide a new legal plea filed Tuesday by the estate of Sir Arthur Conan Doyle, the Scottish creator of that fictional detective and his far less colorful companion.

The estate has been attempting to block a California lawyer and Holmes fancier, Leslie S. Klinger, from publishing a new book about the two characters unless he is willing to get a license from the estate and pay a fee.  The U.S. Court of Appeals for the Seventh Circuit rejected the estate’s copyright claim, calling it “quixotic.”  The new filing at the Court, including the Seventh Circuit’s ruling as an appendix, has been docketed as 14A47, and can be read here.

At this point, the Doyle estate is only seeking a delay of the Seventh Circuit’s ruling, until it can file a petition for review of the decision itself.  The Seventh Circuit refused a stay on July 9.  But to deal with the application, the Court will have to decide whether the legal claim has any chance of ultimately succeeding and decide who might be hurt if a stay is, or is not, issued..

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To hear this audio story featuring Kristi Remington, John Elwood, and Deepak Gupta, click the audio player above.


Kali Borkoski:  On June 26, the Court announced its decision in National Labor Relations Board v. Noel Canning, holding that three of the president’s recess appointments to the NLRB were unconstitutional.

Ordinarily, the Constitution requires the president to obtain the advice and consent of the Senate – traditionally in the form of a confirmation hearing and then a vote — before senior government officials and federal judges can take office.

There is an exception, however:  The Constitution empowers the president to act without the Senate’s input to “[f]ill vacancies that may happen during the recess of the Senate, by granting Commissions which shall expire at the end of the next Session.”

U.S. Senate Chamber

U.S. Senate Chamber 1873

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October arguments, day by day

By on Jul 14, 2014 at 6:28 pm

The Supreme Court on Monday released the calendar of oral arguments for the sitting that begins October 6 — the first public session of the new Term.  A highlight of this sitting will be the argument on October 7 in Holt v. Hobbs, giving the Court another opportunity to rule on claims of religious freedom.

Following the jump is the day-by-day listing, with a summary of the issues at stake.  Arguments begin each day at 10 a.m.; each case is scheduled for one hour.

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