Commentary continues on the challenges to state bans on same-sex marriage, in which the oral arguments are now less than two weeks away. Writing for this blog, Lyle Denniston continues his series previewing the oral arguments with a post on the amicus briefs filed in support of the challengers. Writing for The Economist’s Democracy in America blog, Steven Mazie previews the challengers’ arguments in the first of two posts on the cases, while at First Things Hadley Arkes contends that “[t]he strongest argument made by the proponents of same-sex marriage just happens to be the source of the strongest leverage against their position.” And at BuzzFeed, Chris Geidner notes that presidential candidate Hillary Clinton has not indicated how she believes the Court should rule. Continue reading »
This is the third 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 couples’ challenge to the states’ bans, including the brief filed by the federal government. The final post will cover the briefs supporting the states’ bans. The first two articles in this series covered the briefs filed by the challengers and the four states defending their bans, respectively.
When the Supreme Court takes on a high-profile case, it immediately creates a wide constituency of people and organizations that will be affected, directly or indirectly. And each of those may add to the flood of legal briefs that their lawyers file — so-called “amicus” or “friend-of-the-Court” briefs. If the Court policed its own rules more tightly, many of those might not be welcome.
The rules specify that amicus briefs should “bring to the attention of the Court relevant matter not already brought to its attention by the parties.” Such a filing, it goes on to say, “may be of considerable help to the Court.” But it adds, if a brief does not “serve this purpose,” it will be a burden on the Court, and “its filing is not favored.” Continue reading »
The petition of the day is:
Issue: Whether a discrepancy between a vehicle's color and the color indicated by the license tag attached to the vehicle, when viewed through an officer's experience that such discrepancy is indicative of a license plate being switched between vehicles in violation of Florida's criminal law, establishes reasonable suspicion for an officer to perform a temporary detention under the Fourth Amendment.
The oral arguments in the challenges to state bans on same-sex marriage are now just two weeks away. Writing for this blog, Lyle Denniston continues his series previewing the oral arguments with a post on the briefs filed by the states defending the bans. An amicus brief filed in support of the states by “same-sex attracted men and their wives” drew commentary from Mark Joseph Stern, who at Slate contends that “[t]here are a lot of terrible arguments against same-sex marriage, but this may be the worst,” and coverage from Curtis M. Wong at The Huffington Post. At Balkinization, David Gans discusses originalism and same-sex marriage, arguing that the “Framers made a conscious decision to write the Fourteenth Amendment as a broad guarantee of equality for all, preventing majorities in the states from discriminating against any person or group of persons.” Continue reading »
This is the second 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 of the four states in defense of their state bans. At the oral argument on April 28, John J. Bursch of Lansing, Michigan, a special assistant attorney general and the state’s former solicitor general, will argue for the states on their power to forbid same-sex couples to marry. He will have forty-five minutes of time. Joseph F. Whalen of Nashville, an associate state solicitor general, will argue for the states on their power to refuse to recognize existing same-sex marriages. He will have thirty minutes. The first post in this series, discussing the couples’ views, can be read here. Later posts in the series will review the filings of the amici on both sides — including the brief of the federal government, supporting the couples’ challenge to the bans.
America’s state governments have never seen anything like this: one of their most cherished traditions, going to the very core of their power as states, overwhelmed by a cultural revolution that swept the nation in less than two years. On June 26, 2013, when the Supreme Court decided the case of United States v. Windsor, same-sex couples could legally marry in nine states plus Washington, D.C. In the twenty-two months since then, they have gained that right in twenty-seven more states — by court decision in twenty-two, and by passage of new state laws in five.
When the Supreme Court next week takes up what could be the decisive chapter in this constitutional saga, four states will urge the Justices to restore traditional state control over marriage laws, and begin the process of undoing at least some of the court rulings since Windsor.
The petition of the day is:
Issue: Whether Martinez v. Ryan modified the longstanding rule that a habeas petitioner must show “actual prejudice” in order to excuse the procedural default of a claim of ineffective assistance of counsel.
Coverage and commentary continue to focus on the upcoming oral arguments in the challenges to state bans on same-sex marriage. At this blog, Lyle Denniston has the first of a four-part series previewing the oral arguments; the first post looks at the briefs filed by the same-sex couples in Kentucky, Michigan, Ohio, and Tennessee challenging those states’ laws. In USA Today, Richard Wolf profiles Jim Obergefell, the lead plaintiff in the Kentucky case, recounting how a “mild-mannered real estate broker and art collector . . . bec[a]me the poster child for the gay rights movement’s nationwide effort to legalize same-sex marriage.” Relatedly, Chris Johnson of the Washington Blade reports that a group opposing same-sex marriage has asked the Court to review a decision by the Ninth Circuit invalidating Nevada’s ban on same-sex marriage. Continue reading »
This is the first 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 of the couples who are challenging the state bans. At the oral argument on April 28, Mary L. Bonauto of Boston, the civil rights project director for Gay & Lesbian Advocates and Defenders, will argue for the couples on the issue of state power to forbid same-sex couples to marry, and Douglas Hallward-Driemeier of the Washington office of Ropes & Gray LLP, will argue for the couples on the issue of state power to refuse to recognize existing same-sex marriages. Each will have thirty minutes of time. Later posts in this series will cover the state governments’ defenses of their bans, the arguments of amici supporting the couples, and the arguments of the amici supporting the state bans. The federal government, which filed a brief in the case as an amicus supporting the couples, will take part in the hearing on the marriage ban question but not on the recognition issue; its brief will be reviewed along with those of other amici on that side.
Gay rights advocates have been pressing in the courts for the right to marry since the early 1990s, beginning with a test case in Hawaii, Baehr v. Lewin. Although they won a temporary victory in that case, that was later taken away, and the first lasting victory for them did not come until 2003, when the highest state court in Massachusetts established a marriage right under that state’s constitution.
With the Supreme Court assembling on April 28 to hear four combined cases on the issue, there are now thirty-six states in which same-sex couples may legally marry. Lawyers for the couples involved in those four cases will be asking the Court to open marriage nationwide to all such couples — that is, to nullify the bans still in effect in fourteen states, and to preserve the victories that have been won in federal courts, most of which have come in the past twenty-two months. The victories already won in state courts, state legislatures, and state ballot measure elections are not at issue.
On Friday the Justices will meet for their April 17 Conference. Oral arguments will resume on April 20.
The petition of the day is:
Issue: Whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, in order to establish prejudice the defendant must show that but for counsel’s errors he would not have pleaded guilty and would have insisted on going to trial (as this Court, all twelve federal circuits, and virtually all the states hold), or whether the defendant must also show that had he gone to trial he would have been acquitted (as the Indiana Supreme Court persists in holding).