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Filed under: Windsor

Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions

By Scottie Thomaston

The U.S. Supreme Court declined to review more LGBT rights cases yesterday.
The U.S. Supreme Court declined to review more LGBT rights cases yesterday.

Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.

Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.

First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.

The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.

Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.

Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.

In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.

June 27, 2013

Live Q&A on the Supreme Court’s Prop 8 and DOMA decisions featuring attorneys Shannon Minter and Chris Stoll from NCLR

By Scottie Thomaston, Jacob Combs, and Adam Bink

1:06ET: We will be opening the chat about 10 minutes before it starts, which is in about ten minutes from now. Until then, the chat feature will remain closed. Hope to see you all there soon!

Attorneys Shannon Minter and Chris Stoll from the Nation Center for Lesbian Rights (NCLR) join us here today for a live chat on the Supreme Court’s decisions in the challenges to Section 3 of the federal Defense of Marriage Act and California’s Prop 8. They have graciously agreed to be around to answer all questions you may have on what the Court said about marriage equality and federal recognition of same-sex couples. Readers can post your questions into the chat (you won’t need an account) and we will moderate the discussion, posting questions there for Shannon and Chris to answer.

Live Q&A on Prop 8, DOMA decisions with EqualityOnTrial and NCLR

EqualityOnTrial will have more in depth coverage later today on the marriage cases after the live discussion ends. Stay tuned!

June 26, 2013

Prop 8, DOMA decisions to be announced at Supreme Court tomorrow morning

By Scottie Thomaston

The U.S. Supreme Court will decide the Prop 8 and DOMA cases by the end of June
The U.S. Supreme Court will decide the Prop 8 and DOMA cases tomorrow

Today, the Court released all opinions except for the two marriage cases, and one other outstanding case. After the Justices finished speaking from the bench, the Chief Justice announced that tomorrow morning at 10AM ET, the Court will convene for its last day of the Term, in which it will release all remaining opinions. After that, they’ll adjourn for the summer and won’t appear in Court again until October. No one can say with absolute certainty that any of the cases due to be released tomorrow won’t be rescheduled for a rehearing next Term, but it seems highly unlikely. Tomorrow, those who want to know what the Court decided in the Prop 8 and DOMA cases should tune in, as EqualityOnTrial will cover the final day as we have the past few weeks.

Significantly, this means that the two marriage equality decisions will be handed down on June, 26, 2013, the ten year anniversary of the Supreme Court’s landmark decision in Lawrence v. Texas in 2003, striking down bans on same-sex intimacy as a violation of the Due Process Clause of the 14th Amendment. (The anniversary of the Stonewall Riots in 1969 is a few days after that.) In his opinion for the Court, Justice Kennedy wrote:

[T]he Court [has] reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.
[…]
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

Now the Court faces the question of just how much autonomy LGBT people have in matters related to marriage and procreation. Will they hold that the state can deny them this autonomy to enter into a marriage they wish? Will they say the federal government can channel people into heterosexual relationships by refusing to recognize their same-sex marriages? We’ll know more tomorrow, but it is just worth noting that the Court isn’t issuing the two marriage decisions in a vacuum.

Importantly, the Court decided a landmark case today that affects people of color and LGBT people, and those who share both identities. The Court issued its opinion in Shelby County v. Holder, the challenge to the constitutionality of the 1965 Voting Rights Act, which is seen as the most successful civil rights law in our nation’s history. The Act was passed to prohibit racial discrimination in voting, because after the 15th Amendment, states and local jurisdictions got more and more creative about discriminating on the basis of race to prevent non-white people from exercising their right to vote. Section 5 of the Act authorizes the Justice Department to “preclear” any change to elections in several jurisdictions covered by a formula which is a part of the Act. This means that wherever there is a long history of noted discrimination in voting, any tampering with election procedures is viewed as suspect and possibly related to racial discrimination, so the federal government has to review it. Most changes are allowed to go forward; only a small number are challenged.

Section 4 is the actual formula to determine which jurisdictions should seek preclearance. The Court today struck down Section 4 as unconstitutional, partly because it was written in the 1960s and the Court suggests that Congress should come up with an updated formula.

This decision is momentous and groundbreaking; it eliminates a bedrock of election law that was incredibly successful in preventing states from keeping non-whites from voting. The decision also affects LGBT people in a lot of ways. First, and most obviously, it affects LGBT people who aren’t white and it affects LGBT disabled people. It will be harder for LGBT people of color and those with mobility issues to get to the polls, or to seek valid photo IDs, or to comply with whatever election laws are written and imposed in the future. (The Justice Department recently began challenging photo ID laws under the Voting Rights Act.)

The Court’s decision impacts people who are transgender in an even more drastic way. Since it eliminates the formula for coverage, people who are transgender who live in formerly covered jurisdictions will have a harder time challenging odious voter ID restrictions. And in some places, like Tennessee, state law says your gender is what was determined at birth and can’t be changed on your ID. Without the federal government’s ability to challenge voting restrictions in this way, individuals would be expected to bring their own challenges, and poorer, disabled, and elderly people may have a more difficult time doing so. Generally speaking, statistics have shown that LGBT people, and especially LGBT people of color, are poorer than most others and have less recourse when their rights are violated. The Court’s decision exacerbates these issues.

Congress can, of course, fix the formula anytime they want to take it up. There will likely be a major push to do so at some point by minority rights organizations.

Tomorrow, we’ll have the remainder of the decisions and we’ll know what the Court plans to do with Prop 8 and DOMA. As usual, EqualityOnTrial will be reporting back as soon as we have news.

1 Comment June 25, 2013

Supreme Court issues five opinions, but no marriage cases; more are expected tomorrow morning

By Scottie Thomaston

Supreme Court building
Supreme Court building

The Supreme Court issued five more cases today, without releasing its opinions in the marriage cases. Chief Justice Roberts announced today, after the release of opinions concluded, that they will issue more opinions tomorrow at 10AM Eastern Time.

Usually, all opinions in argued cases are released by the end of June. This is because, traditionally, the Court likes to have all opinions released by the Fourth of July, and also because the Justices leave for vacation and other engagements, sometimes outside of the United States, in early July. That said, there’s no rule requiring the Court to be finished or to release all opinions. In theory, it could go on longer, or the Court could schedule some cases to be reheard next Term. Neither of those situations seem likely, but they’re possible.

Since there were eleven outstanding cases going into today’s proceedings, there are now six remaining, including the challenge to Section 5 of the Voting Rights Act, as well as the challenges to Section 3 of DOMA and California’s Prop 8. The Court did issue its only other decision in the March sitting, meaning that the only remaining cases from March are the marriage cases.

Generally, Court-watchers are speculating that everything will be wrapped up on Thursday of this week. SCOTUSBlog reports, from their live blog for today, that the Chief Justice usually announces when the final day of opinion releases will be, on the second-to-last day. He didn’t make the announcement today, so it’s likely that tomorrow won’t be the last day the Court will issue decisions this week. Beyond that, we have no information on which days they’ll issue more, until the announcement tomorrow. It’s not unheard of for the Court to release six opinions in a single day, but given that there is traditionally an announcement and today there was not, it’s more likely that the remaining cases, including the controversial ones, will be divided up over at least two days.

The Court did decide a significant outstanding case: Fisher v. University of Texas at Austin. This was the highly anticipated affirmative action case. The decision was 7-1, and didn’t address the constitutionality of affirmative action; it simply sent the case back and told the lower court to apply strict scrutiny, the form of judicial scrutiny used for racial classifications, more rigorously. But this was the only one of the “big” cases, at least in terms of mainstream media appeal. We may see opinions in controversial cases divided up on different days, given what happened today, or we may not. No one has access into the Court’s deliberations, but we can speculate given the small number of remaining days for opinions.

As usual, EqualityOnTrial will report back tomorrow with more information.

June 24, 2013

Supreme Court issues five opinions; marriage cases still pending

By Scottie Thomaston

The U.S. Supreme Court will decide the Prop 8 and DOMA cases by the end of June
The U.S. Supreme Court will decide the Prop 8 and DOMA cases by the end of June

The Supreme Court released five opinions this morning, but they did not release the decisions in the marriage cases, United States v. Windsor, and Hollingsworth v. Perry. There are at least two more schedule dates for the release of opinions: this Thursday, June 20, and next Monday, June 24. In addition, the Court could add extra days next week, possibly Wednesday and Thursday, but they won’t announce the extra days until the end of this week. As things stand now, there are fourteen remaining opinions and two more scheduled release dates.

Last week, the Court released decisions mostly on cases argued in April. Today, there were some April and January cases, but there were two from the March sitting. Justice Breyer issued his second majority opinion from that sitting, while Justice Scalia issued his first. As EqualityOnTrial reported previously, there were ten cases argued in March, so with observers suggesting that majority opinions tend to be evenly distributed among Justices for each sitting, that would mean a Justice has two opinions for March. It now appears that Justice is Stephen Breyer. Justices Kennedy and Alito have yet to write a majority opinion for March, and the Chief Justice has not written one, either. There are three cases left from March: the two marriage cases, plus Mutual Pharmaceutical v. Bartlett. Assuming the pattern holds and everyone gets a majority opinion (and to be sure, any speculation about an opinion’s authorship is pure speculation until it is issued) we may see two different authors in the Prop 8 and DOMA cases. It could be reasonably assumed that Justice Alito won’t have a majority opinion in either case, which would leave Justice Kennedy and Chief Justice Roberts.

As usual, we’re following developments at the Court and we’ll be here Thursday morning to report on which cases are decided that day.

One note: on some previous opinion release dates, including today, there have been several reports noting that Ted Olson and other lawyers involved in the marriage cases are at the Court awaiting opinions. The lawyers in these cases only receive notice that a case has been decided after the decision is issued, so no lawyer involved has any advance knowledge; anyone who shows up at the Court is likely doing so to find out if their case is among the ones decided any given day.

June 17, 2013

Supreme Court to issue more opinions next Monday, Thursday

By Scottie Thomaston

Associate Justice Anthony Kennedy (AP Photo)
Associate Justice Anthony Kennedy (AP Photo)

The Supreme Court has said that next Monday and Thursday more opinions in argued cases will be released. There are nineteen outstanding ones. As usual, we won’t know which opinions are ready until then; the standard practice is that the Court releases opinions when they are finished, and only then. There’s no reason to believe they are just holding some opinions. Given the days left in the term (which Court watchers expect will end on Thursday, the 27th) the Court could release at least four opinions at a time until the end.

The Court hasn’t said which days it will release opinions in the last week of June, but this week they issued opinions on Monday and Thursday, and next week it’s the same schedule. Assuming that schedule holds, we would see opinions Monday, the 24th, and Thursday, the 27th. Without official notice, of course, this is speculation, but it’s based on past history as well. Either way, we could get the opinions in the marriage cases next Monday or Thursday. The following week still seems the most likely but with nineteen opinions left there will be a flurry of them coming out and the Court may decide they are ready.

Since none of the opinions yesterday were from the March sitting, there are still five outstanding cases from that sitting. Five decisions have already been released (the four moderates each have one majority opinion, and Justice Thomas has one as well.) As we wrote previously, the Court likes to distribute its majority opinion assignments evenly, so Chief Justice Roberts and Justices Alito, Scalia, and Kennedy will likely have one of the remaining opinions, with one Justice writing two of them. (As we have written, speculation on opinion assignments shouldn’t be taken as definitive; we don’t know for certain who will write a majority opinion until it’s handed down.) But it would seem unlikely that one of the moderates would write a majority opinion in one of the marriage cases, based on the fact that they’ve already written one, and the fact that in order to get a fifth vote, they would need a more conservative member of the Court to join the majority; a Justice who is conservative may not want to join a far reaching opinion written by a more liberal Justice. One other note: majority opinion authors can change; it’s rare, but sometimes views change and Justices leave the majority. This could complicate the opinion drafting process if it were to happen. But there are several reasons an opinion may take a long time to draft, including that a case (like the DOMA case) may require decisions on several legal issues.

If the marriage cases aren’t released next week, one interesting thing to keep tabs on is whether any are from the March sitting. According to SCOTUSBlog’s statistics, the March cases still awaiting decisions are Arizona v. The Inter Tribal Council of Arizona, Inc., Mutual Pharmaceutical Co. v. Bartlett, and Federal Trade Commission v. Actavis. At least in terms of opinion distribution, if one of those are released it will give Court watchers a better idea of whether the Court is diving majority opinions evenly for that sitting, or whether they are more randomly given out.

The oldest opinions still awaiting a decision are Fisher v. University of Texas at Austin (October sitting) and Vance v. Ball State University (December sitting). Those seem more likely to be released before the marriage cases simply because the latter cases were argued in late March.

As always, we won’t have definitive answers until the decisions come down. The Court is infamously secretive, there are rarely any leaks, and even the dates the Court schedules to release opinions won’t be known until the Court is ready for people to know.

2 Comments June 14, 2013

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