Tag Archives: oral arguments

On the record: Quotes from the Supreme Court hearing on marriage equality

Excerpts from arguments before the Supreme Court on April 28 about whether states must allow same-sex couples to marry and whether states must recognize gay marriages performed in other states:

Chief Justice John Roberts, on the institution of marriage: “You’re not seeking to join the institution, you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”

Justice Anthony Kennedy: “The word that keeps coming back to me in this case is millennia, plus time. … This definition (of marriage) has been with us for millennia. And it’s very difficult for the court to say `Oh well, we know better.'”

Roberts, to the proponents of gay marriage: “If you prevail here, there will be no more debate. I mean, closing of debate can close minds, and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”

Mary Bonauto, representing same-sex couples: “In terms of the question of who decides, it’s not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.”

Justice Samuel Alito, to supporters of gay marriage: “Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?”

Solicitor General Donald Verrilli, representing the federal government: “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”

Kennedy: “Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.”

John Bursch, representing states that ban same-sex marriage: “If this court ensconces in the Constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1 percent change … is many, many children.”

Justice Elena Kagan:

“It’s hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

Roberts: “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

Roberts, on the question of forcing states that ban same-sex marriage to recognize those unions formed in other states:

“It’d simply be a matter of time until they would in effect be recognizing that within the state, because we live in a very mobile society and people move all the time. In other words, one state would basically set the policy for the entire nation.”

Douglas Hallward-Driemeier, representing same-sex couples: “These petitioners have built their lives around their marriages, including bringing children into their families, just as opposite-sex couples have done. But the non-recognition laws undermine the stability of these families, though the states purport to support such stability.”

Joseph Whalen, associate solicitor general for Tennessee: “Tennessee, Ohio, Kentucky and other states with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other states have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition, and then to suggest that other states that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the state’s ability to self-govern.”

U.S. Supreme Court sets date for marriage arguments

UPDATED: The U.S. Supreme Court is set to hear arguments on four marriage equality cases on April 28.

Plaintiffs’ briefs in support of marriage equality were filed on Feb. 27. Next, briefs from the states defending anti-gay marriage bans will be filed on March 27, followed by plaintiffs’ responses on April 17. 

The filing schedule puts the high court on track to hear oral argument in the cases — DeBoar v. Snyder from Michigan, Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee and Bourke v. Beshear from Kentucky — on April 28, with a decision due in late June.

Already a series of friend-of-the-court briefs have been filed, the most recent from the American Bar Association, which urges the justices to rule that the Equal Protection Clause of the 14th Amendment requires a state to issue marriage licenses to same-sex couples.

The ABA’s amicus brief supports the Michigan and Kentucky cases for marriage equality and is based on the ABA policy adopted as early as 1973 that advocates for the elimination of discrimination based on sexual orientation. Five years ago, the 400,000-member ABA adopted a policy urging the elimination of legal barriers to same-sex marriage.

“ABA members who represent same-sex couples know from experience the numerous obstacles same-sex couples face in ordering their affairs and providing security for themselves and their children in the most basic aspects of life: parenting, dealing with sickness and old age, paying taxes, passing on a legacy to their heirs and the myriad other legal and practical issues,” the brief states. “Although lawyers can sometimes counsel their clients on ways to avoid or limit the effects of (marriage bans), they know from experience that no legal ‘work-around’ can cure the discriminatory effects that necessarily result when a state denies formal recognition of a same-sex couples’ commitment through marriage.”

Alabama showdown

The day the national bar association filed the brief, the Alabama Supreme Court put a stop to probate judges issuing marriage licenses to gay couples. It was the latest development in a showdown between the state and federal courts in a Southern state famous for showdowns on civil rights matters. 

The state supreme court, led by right-wing Chief Justice Roy Moore, ordered probate judges to stop issuing licenses weeks after a federal judge overturned the state’s ban on gay marriage.

The state’s highest court said it’s order would stand until the U.S. Supreme Court ruled on the issue.

“Even as nationwide marriage equality is on the horizon, the Alabama Supreme Court is determined to be on the wrong side of history,” said Shannon Minter, legal director of the National Center for Lesbian Rights and the attorney for the same-sex couples challenging Alabama’s ban.

Same-sex couples can legally marry in 37 states and the District of Columbia.

People’s brief

More than 200,000 people signed the People’s Brief, a friend-of-the-court brief circulated by the Human Rights Campaign and filed with the U.S. Supreme Court in support of marriage equality.

HRC said citizens in 50 states signed the document written by attorney Roberta Kaplan, who successfully argued before the Supreme Court against the Defense of Marriage Act. 

“Each and every signature on this brief … is a piece of evidence that this country is ready for marriage equality,” said HRC president Chad Griffin. “Through this historic document, the American people, LGBT and allies alike, are standing shoulder to shoulder to insist on fairness for all.”

Edith Windsor, the plaintiff in the Supreme Court case that cleared the way for federal recognition of same-sex marriages, was the first to sign.

— Lisa Neff

Legal standing questions unlikely to derail Supreme Court arguments on ACA

Despite questions about four challengers’ legal right to bring their lawsuit, the U.S. Supreme Court probably will not be deterred from deciding whether millions of people covered by the health care overhaul are eligible for the subsidies that make their insurance affordable.

The court will hear arguments in early March over whether the health law allows people in states without their own insurance markets to receive federal tax credits that reduce coverage costs. The number of uninsured could rise by 8 million if the subsidies disappear, two independent think tanks have estimated.

The challengers, who live in Virginia, object to being forced to get insurance or pay a penalty. If the subsidies were not available, they would not pay a penalty for failing to be insured because even the cheapest health plan would be too costly, according to sworn statements they filed in 2013.

But the Wall Street Journal reported that two are Vietnam veterans who probably could obtain health care through the Department of Veterans Affairs, meaning they would not be affected by the subsidies issue. The newspaper and Mother Jones reported that a third plaintiff lived in a motel at the time that her address and age were used to calculate the cost of insurance. She now lives elsewhere in the state.

The fourth is a substitute school teacher in Richmond who said she could not recall how she became involved in the case.

The Competitive Enterprise Institute, an anti-regulatory group, is paying for the legal challenges and recruited the four.

The right to get into court on an issue is known as standing.

“The important thing is there has to be someone in the case who is actually injured by the law,” said Tara Grove, a law professor at the College of William and Mary in Williamsburg, Virginia. “That is what determines whether the court has jurisdiction.” It takes just one person who has been harmed to keep a lawsuit alive, Grove said.

The Obama administration or the justices could ask lawyers for the challengers to address the questions that have been raised about the four. The Justice Department contended that two would have earned too little to be subject to the penalty, but lower courts rejected that argument. The administration did not challenge the presence of any of the four at the Supreme Court.

The court could raise the topic on its own. But given its decision to take up the health law even in the absence of the usual requirement that lower courts be divided on an issue, several legal experts doubted the plaintiffs’ situations would derail the case.

“For a test case, these are not the best people one could put forward. It’s hard for them to demonstrate that they’ve had an actual injury,” said Robert Dudley, a professor of government and politics at George Mason University in Fairfax, Virginia.

But the court creates its own rules on whether it can reach a decision in a case, Dudley said. “I can cite the rules, but it’s up to the court and the court will often take some very shaky cases because an issue is important. I honestly think this won’t affect the court much,” he said.

Questions about a party’s standing seem to become important at the Supreme Court only when a majority is unwilling to settle an issue or the court is unable to produce five votes for any particular outcome. In 2013, the challenge to California’s Proposition 8 same-sex marriage ban foundered on the issue of standing. The result left in place a lower court ruling holding that the ban was constitutional.

Jonathan Adler, a law professor who helped formulate the challenge to the subsidies, said efforts to sink the case over questions about the plaintiffs fit with the desire of the administration and health law supporters to delay a resolution of this case. Adler said they believe that it becomes harder to undo the tax credits the longer people receive them. “It would surprise me if the information in the affidavits wasn’t true and there was suddenly any problem for all the plaintiffs in this case,” Adler said.

Supporters of the law said questions about the plaintiffs make a broader point about the case.

“To me, what all this confirms is that people who weren’t really affected by the statute are bringing ideologically and politically based claims that will substantially affect millions of other people. This is the use of the courts as a political forum,” said Robert Weiner, a former Justice Department official who was deeply involved in the 2012 Supreme Court case that upheld the law.

There’s nothing unusual about interest groups on the right and the left driving suits and seeking plaintiffs willing to be the faces of a court fight, Grove said. “You know courts are influenced to some degree by the facts of the case,” she said. “It’s just good lawyering to make sure you have clients who are sympathetic.”

On the Web…

Filing in health care case: http://tinyurl.com/ks86nmr 

Oral arguments set in John Doe appeal

Oral arguments in the appeal of a federal judge’s ruling halting an investigation into Gov. Scott Walker’s recall campaign and other conservative groups have been set for Sept. 9, exactly two months before the Republican stands for re-election.

The 7th U.S. Circuit Court of Appeals set the date.

No charges have been filed against Walker or anyone else as a result of the investigation, which began in secret in 2012 but has since been largely revealed through court filings and other public statements.

Prosecutors have said in court filings that they are looking into allegations of illegal campaign activity involving Walker’s campaign, Wisconsin Club for Growth, the state chamber of commerce and conservative groups during the 2011 and 2012 recalls.

Special prosecutor Francis Schmitz described what he called a “criminal scheme” by Walker to evade campaign fundraising and coordination laws, according to a document written in December but made public in June. An attorney for Schmitz subsequently said Walker was not a target of the probe and that document laid out a legal theory, but that no determination had been made to bring any charges.

Walker, a potential 2016 candidate for president, has said repeatedly he did nothing wrong and that his political opponents, including Democratic challenger Mary Burke, are slandering him by referring to his involvement in an alleged “criminal scheme.”

Under Wisconsin law, third-party political groups are allowed to work together on campaign activity, but barred from coordinating that work with actual candidates. The Wisconsin Club for Growth has argued the prohibition does not apply to it because it does not specifically tell people how to vote or run ads with phrases like “vote for” a certain candidate.

U.S. District Judge Rudolph Randa, in his May ruling halting the investigation, agreed with that argument and found that the probe was a violation of the group’s free speech rights.

The state court judge overseeing the probe, known as a John Doe, quashed prosecutors’ requests for subpoenas in January, also effectively halting the investigation.

David Rivkin, attorney for Wisconsin Club for Growth, said he was pleased with the date being set. An attorney for prosecutors, Sam Leib, did not immediately return a message seeking comment. 

Oral arguments in Wisconsin, Indiana marriage cases set for Aug. 26

UPDATED: The Aug. 13 hearing set for the oral argument in the Wisconsin marriage equality case was canceled.

The new hearing date is Aug. 26.

A notice from the court on July 25 said, “It is ordered that this case be orally argued on Tuesday, August 26 … in the Main Courtroom, Room 2721 of the United States Court of Appeals for the Seventh Circuit, 219 S. Dearborn St., Chicago, Illinois, at 9:30 a.m.”

The notice limited each party to 20 minutes.

Represented by the ACLU, same-sex couples challenging Wisconsin’s ban on gay marriages had objected to the state’s request that the full 7th Circuit Court of Appeals hear arguments in the case. The ACLU said that would delay the appeal and put a burden on the court without any benefit.

The court has now denied Wisconsin’s petition for an initial hearing en banc, as well as denied the petition for a hearing by the full panel of the court that came from Indiana. The notice from the court, also released on July 25, said a majority of the judges in regular service had voted to deny an initial hearing en banc. 

Federal judges have struck down bans in both Wisconsin and Indiana. The 7th Circuit Court of Appeals consolidated the cases. Oral argument had been scheduled for Aug. 13, but the court has canceled that session and rescheduled the arguments for Aug. 26.

Online …

Follow U.S. marriage equality developments on Twitter @eqcf on Facebook at www.facebook.com/EqualityCaseFiles.

Charlie Crist files legal brief supporting marriage equality in Florida

Former Florida Gov. Charlie Crist, who is again running for the office in November, has filed a friend-of-the-court brief in support of marriage equality in the state.

Crist filed the brief in Pareto v. Ruvin, which is set for a hearing on July 2 before Judge Sarah Zabel in the Eleventh Judicial Circuit Court in Miami. 

Zabel will hear from attorneys who filed a lawsuit in January on behalf of six same-sex couples and Equality Florida Institute. The lawsuit argues that Florida’s laws barring same-sex couples from marriage violate the U.S. Constitution by denying them the legal protections and equal dignity that having the freedom to marry provides.

Crist filed an amicus brief, which is a brief filed by someone who is not a party to the litigation, but who believes that the court’s decision may affect its interest.

“As former governor, and as someone who previously supported this measure, Charlie Crist’s words matter a great deal,” said Nadine Smith, CEO of Equality Florida. “He has taken the same journey the majority of Floridians have taken in realizing that this ban serves no purpose but to disparage and discriminate against gay couples and our children.”

In the brief, Crist stated that as a former governor and attorney general who previously supported the ban, he is in a unique position to provide the court a perspective on why it is wrong, harmful to Florida and harmful to gay couples and children who are denied the protections only marriage provides. 

Crist said in a news release, “In just the last six years, our society has evolved and moved past the prejudices rooted in our past. Further, science has uniformly reached the conclusion that heterosexual marriages are just as valued and revered as they have ever been; and children raised by gay and lesbian parents fare just as well as kids raised in straight families.

“Thus, with the arc of history now, in fact, bending toward justice, this issue of marriage equality will almost certainly not even be an issue for the children and grandchildren of this State. But it is still the duty of those in the present to recognize that the legitimacy of government depends upon its willingness to fairly, transparently, and equitably administer the law. That goal is frustrated by denying an entire class of citizens equality in the institution of marriage simply because of who they are and whom they love.”

Crist is among the fast growing majority of Floridians, 57 percent currently, who have come to support full marriage equality.

In filing, he joins the mayors of Orlando and Miami Beach, who filed amicus briefs earlier this week on behalf of their cities including arguments on how lifting the ban alleviates hardships for same-sex couples and provides numerous benefits for citizens and employees to live in a non-discriminatory environment.

Crist was a Republican when he served as governor. He ran as an independent for the U.S. Senate. He has since become a Democrat.

Wisconsin Supreme Court to hear domestic partnership challenge Oct. 23

The Wisconsin Supreme Court is scheduled to hear oral arguments on Oct. 23 on whether the state’s domestic partner registry is unconstitutional.

The registry grants same-sex couples some legal rights.

Members of a Christian right wing group, the Wisconsin Family Action, filed a lawsuit in 2010 alleging the registry violates a 2006 state constitutional amendment banning gay marriage or anything substantially similar.

Lambda Legal, representing Fair Wisconsin and five same-sex couples, is defending the registry against the challenge.

“The domestic partnership law in Wisconsin is without question constitutional. The limited protections provided by domestic partnerships are a far cry from the significant rights, benefits and responsibilities associated with marriage. To suggest that that the two types of relationships are impermissibly similar is an antigay stretch of the imagination,” Lambda senior staff attorney Christopher Clark said in a statement.

A state appeals court upheld the registry last year, noting married couples enjoy many rights that registrants don’t.

Last week, the ACLU of Wisconsin filed a friend of the court brief supporting the registry and Lambda. 

“The idea that domestic partnerships violate Wisconsin’s anti-marriage amendment is ridiculous,” said Larry Dupuis, ACLU of Wisconsin legal director. “Domestic partnerships don’t create a legal status that is identical or even remotely similar to marriage.”

The court is expected to hear oral arguments on Wednesday afternoon in Madison.

Supreme Court rejects push to revive anti-sodomy law

The Supreme Court began its new term on Oct. 7, turning away hundreds of appeals.

The justices took the bench just past 10 a.m. on the first Monday in October, even as much of the rest of the government was coping with a partial shutdown.

Among the appeals denied on Oct. 7 was Virginia Attorney General Ken Cuccinelli’s request to review a federal appeals court ruling that threw out the state’s ban on oral and anal sex. Ten years ago, the Supreme Court struck down the Texas anti-sodomy law in a case involving two adults. Cuccinelli said the sodomy ban should remain when applied to sex between a minor and an adult.

The new term may be short on the sort of high-profile battles over health care and gay marriage that marked the past two years, but the court has taken cases on campaign contributions, housing discrimination, government-sanctioned prayer and the president’s recess appointments. Abortion, contraceptive coverage under the new health care law and cellphone privacy also may find their way onto the court’s calendar.

Several of those cases ask the court to overrule prior decisions – bold action in an institution that relies on the power of precedent.

“There are an unusual number of cases going right to hot-button cultural issues and aggressive briefing on the conservative side asking precedents to be overruled,” said Georgetown University law professor Pamela Harris, who served in President Barack Obama’s Justice Department.

The campaign finance argument on Oct. 8 was the first major case on the calendar. The 5-4 decision in the Citizens United case in 2010 allowed corporations and labor unions to spend unlimited sums in support of or opposition to candidates, as long as the spending is independent of the candidates. The new case, McCutcheon v. Federal Election Commission, challenges the overall limits on what an individual may give to candidates, political parties and political action committees in a two-year federal election cycle. The $2,600 limit on contributions to a candidate is not at issue.

Among other top cases already set for review:

• Greece, N.Y., a suburb of Rochester, is asking the court to uphold its practice of opening town council meetings with a prayer, despite an appeals court ruling that found the invocations a violation of the First Amendment because they almost always were Christian prayers.

• Mount Holly, N.J., is defending a plan to demolish and redevelop a rundown neighborhood against claims that it discriminates because it disproportionately affects African-American and Latino residents. At issue is whether there also must be an intent to discriminate under federal housing law.

• Michigan is fighting to preserve a constitutional amendment that bans the use of racial preferences in education after a federal appeals court ruled that the constitutional ban is itself discriminatory. This case does not involve the viability of affirmative action, but rather whether opponents of racial preferences can enshrine that ban in the state constitution.

• Massachusetts is defending a law that creates a 35-foot buffer zone at abortion clinics to limit protesters’ ability to interact with patients. The court upheld a buffer zone law in Colorado in 2000.

There are many challenging bans and restrictions against same-sex marriage, including several that could reach the Supreme Court in 2014, including challenges to state constitutional amendments against same-sex marriage, state law prohibiting businesses from discriminating against same-sex couples and California’s law barring the use of so-called “ex-gay” therapy on minors.

For the record: Reaction to the Prop 8 arguments

Reaction to the Supreme Court oral arguments on Proposition 8, to the March 27 oral arguments on the Defense of Marriage Act and to the widespread push for marriage equality in the United States:

Openly gay U.S. Rep. Mark Pocan, D-Wis.: “The Supreme Court has an unparalleled opportunity … to move our country closer to our founding ideals of equality for all. …I am hopeful the court will reflect the rising momentum of support for marriage equality and vote to strike down these discriminatory laws that treat LGBT couples as second-class citizens. It has become increasingly evident that supporters of marriage equality have the country and the Constitution on our side.”

David Boies, attorney for the American Foundation for Equal Rights: “We had a thoughtful hearing. We appreciate the court’s attention to this issue. It’s now in the hands of the Supreme court. It’s been a long journey here over the past three and a half years, and we are all greatly encouraged by the imminent decision. The remarkable thing that happened in there is that there was no attempt to defend the ban of gay and lesbian marriage – all that was discussed in there is whether this should be decided at the state level. But our federal constitution grants fundamental rights to all Americans.”

Baltimore Raven Brendon Ayanbadejo: “We’re not going to stop until everyone can marry the person they love. We’re not only strengthening the family unit and the communities with marriage equality, we’re strengthening America. At the end of the day – love is always going to win the game.”

U.S. Rep. Gwen Moore, D-Wis.: “As we continue to work towards a more perfect union, we must insure that our union includes all people, no matter their gender, race, ethnicity – or as in these cases – sexual orientation. It is my sincere hope that the Supreme Court comes to see throughout these arguments the unconstitutionality of both California’s Prop. 8 and the Defense of Marriage Act and rule in favor of inclusion and not exclusion.”

Openly lesbian U.S. Sen. Tammy Baldwin, D-Wis.: “This week, the U.S. Supreme Court will listen to arguments in cases that will decide whether our country becomes more equal, not less. The court will decide whether gay American citizens can continue to be discriminated against simply because of who they love. On Wednesday, I look forward to being a witness to history as I am excited to have a chance to attend the U.S. Supreme Court proceedings. With these two historic cases, America’s highest court will have an opportunity to reflect the progress we have all witnessed across our country. They will have an opportunity to reaffirm our founding belief that all Americans are created equal under the law.” 

Skater Johnny Weir-Voronov: “Today’s the day. Everyone deserves the same rights as their parents, coworkers, friends and enemies. We shall rise up.”

Actress Alyssa Milano: “Changed my profile picture and header in support of marriage equality. Feel free to do the same!”

Model Cindy Crawford: “This week the #SupremeCourt will hear two cases on marriage equality. I say it’s #Time4Marriage! Join me and speak out for #equality.”

U.S. Sen. Jay Rockefeller, D-W.Va.: “Like so many of my generation, my views on allowing gay couples to marry have been challenged in recent years by a new, more open generation.”

U.S. Sen. Mark Warner, D-Va.: “I support marriage equality because it is the fair and right thing to do. Like many Virginians and Americans, my views on gay marriage have evolved, and this is the inevitable extension of my efforts to promote equality and opportunity for everyone.”

Actor-activist Rob Reiner: “Today is a historic day for all those who believe in freedom and equality. After more than four years of working our case through victories at the federal District and Circuit courts, we finally had an opportunity today to present our arguments in support of marriage equality for gay and lesbian Americans before the highest court in the land. This case has always been about the love shared by two individuals and about the central promise from our nation’s founding that all men are created equal and are endowed with inalienable rights, including the pursuit of happiness.”

New Organizing Institute executive director Ethan Roeder: “Marriage equality is one of the great civil rights issues of our time, and something our community of organizers cares about deeply.”

Human Rights Campaign president Chad Griffin: “There’s a lot to celebrate given that we’ve reached the tipping point on marriage equality. Families all over this country from coast to coast, in red states and in blue, believe in basic fairness and the freedom to marry the person you love. The right to marry the person you love has been upheld by the court 14 times in its history. It’s a fundamental part of who we are as Americans.”

U.S. Rep. Xavier Becerra, chair of the House Democratic Caucus: “We have reached a defining moment in our historic march for progress. What the Supreme Court will hear this week is what lower courts have already affirmed – no American should be denied equal protection under the Constitution. I believe history is on our side and our calls for justice will ultimately result in a victory for equality. Let’s continue our progress so that we uphold our most basic principles for all.”

Supreme Court audio of the Prop 8 arguments

The U.S. Supreme Court on March 26 heard oral arguments in the challenge to California’s constitutional amendment – Proposition 8 – barring same-sex couples from marrying in the state.

Cameras are not permitted in the courtroom. But shortly after the arguments, the court released audio from the day’s proceedings, as well as a transcript.

The court also will release audio of the oral arguments in the Defense of Marriage Act case, which will be heard on March 27.

The justices are expected to vote on the cases at the end of this week. However, decisions aren’t expected until the end of June – which also is Pride time around the world.

Same-sex couples can marry in the District of Columbia and nine states – Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington.

Thirty states ban same-sex marriage in their constitutions and 10 states ban same-sex marriage by legislative act. New Mexico is the only state where the law is silent on the issue.

On the Web…


A transcript also is available: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144a.pdf