Five deputy county clerks in Rowan County, Kentucky — the scene of the first major courthouse battle over a conflict between the Supreme Court’s view on same-sex marriage and religious objections to it —  told a federal judge that they will start issuing marriage licenses to same-sex couples on Friday morning.  They did so after the judge sent the county clerk herself to jail for contempt of court, and threatened her deputies with the same fate.

But even the judge conceded that those licenses, if issued,  may not be valid, although he refused to decide that issue and left it to the lawyers for the same-sex couples to confront.  The question of legality of new licenses came up during a series of hearings throughout the day Thursday in U.S. District Judge David L. Bunning’s court in Ashland, but did not get resolved and will linger.

With County Clerk Kim Davis in jail, under the judge’s order that she had illegally broken his order to end her “no marriage licenses” policy as a way of obeying her religious views against same-sex marriage, the dispute will be moving forward on several points and could return to the Supreme Court on at least some aspects.  Her lawyers said they will be appealing her contempt punishment, and they have two other appeals pending in lower courts.

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Five federal judges, breaking ranks with a rising number of their colleagues on the federal courts of appeals, predicted on Thursday that the federal health care law’s birth-control mandate ultimately will fall, when tested in the Supreme Court by non-profit religious groups.

The five are members of the U.S. Court of Appeals for the Tenth Circuit — one of six federal courts at that level which have upheld the Affordable Care Act’s requirement that contraceptive services must be made available for free, despite religious protests by non-profit colleges, hospitals, and charities.  This unanimity led the Obama administration to urge the Supreme Court this month to pass up a series of appeals that have been reaching the Justices this summer.

Yesterday’s conflicting development came as the Tenth Circuit split seven to five in refusing to rehear en banc several challenges filed by non-profit groups — including one of the best-known cases, filed by a group of Denver-based nuns, the Little Sisters of the Poor.

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Facing the prospect that Texas could soon have only ten sites throughout the state where women may seek abortions — a reduction from more than forty two years ago, a group of clinics and doctors has asked the Supreme Court to overturn two key parts of a 2013 law adding new restrictions on the procedure.  The petition (found here) is being filed by mail, so it has not yet been docketed.

In late June, the Supreme Court blocked the two new provisions, but that order will expire if the Justices do not grant full review of the case in the coming new Term.  A decision in June by the U.S. Court of Appeals for the Fifth Circuit to uphold most of the law is now on hold until the Justices complete work on the case.

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Thursday round-up

By on Sep 3, 2015 at 8:01 am

Briefly:

  • In her column for The New York Times, Linda Greenhouse discusses what she describes as a new phenomenon of conservative judges taking a broader approach to standing, as well as what role that phenomenon might play in Fisher v. University of Texas at Austin and Spokeo v. Robins, two cases that will be before the Court this Term.
  • At The Volokh Conspiracy, Jonathan Adler discusses the refusal by Kim Davis, a Kentucky county clerk, to issue marriage licenses to same-sex couples even after the Court declined to stay a federal judge’s ruling ordering her to do so. He contends that, although “Davis cites her religious conscience as the excuse for her intransigence,” “she is wrong to do so.  That’s not only my view, but the view of no less than Justice Antonin Scalia.”
  • In an article at Public Discourse, Joel Alicea argues that the just-ended Term “witnessed an important intellectual shift among the conservative justices: an increasing willingness to rethink the Court’s jurisprudence regarding the power of federal agencies.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Event announcement

By on Sep 2, 2015 at 10:14 am

On September 30, the American University Washington College of Law Program on Law and Government and the Law and Government Society will host a panel discussion on the upcoming Supreme Court Term.  Speakers will include Elizabeth Wydra of the Constitutional Accountability Center and Jenny Roberts, Steve Vladeck, and Steve Wermiel of the Washington College of Law.  More details are available on the law school’s website.

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Two years ago, an Alabama county succeeded in persuading the Supreme Court to strike down a major part of the federal Voting Rights Act, easing that county’s legal duties considerably, but a federal appeals court has now decided that — in one sense —  it did not actually win.

That is, the outcome in Shelby County v. Holder in 2013 did not justify giving Shelby County a right to have its attorneys’ fees paid by the federal government — the losing side, the U.S. Court of Appeals for the District of Columbia Circuit ruled on Tuesday.

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A federal district court judge in Kentucky on Tuesday ordered a contempt-of-court hearing on Thursday for the county clerk who continued to refuse to issue any marriage licenses, including to same-sex couples.  Judge David L. Bunning told Rowan County Clerk Kim Davis and all six of her deputies to be in court in Ashland for the hearing.

The judge acted shortly after lawyers for four same-sex couples formally asked that Davis be held in contempt, and that the judge impose significant and escalating fines to compel her to obey an earlier court order to end her “no-marriage-licenses” policy.  They did not ask that she be jailed.  The attorneys filed that plea soon after the clerk and her deputies again refused license requests by same-sex couples, even though the Supreme Court on Monday had refused to protect her from performing that function of her office.

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Tuesday round-up

By on Sep 1, 2015 at 9:52 am

Yesterday the Court granted an application by former Virginia governor Bob McDonnell to stay out of prison until the Court rules on his appeal.  Lyle Denniston covered the order for this blog, with other coverage coming from Richard Wolf of USA Today. Continue reading »

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Without any sign of dissent, the Supreme Court on Monday evening passed up its first chance to act decisively on the rising religious freedom protest against same-sex marriage.  In a one-sentence order, the Court refused a Kentucky county clerk’s plea for protection from having to issue marriage licenses, including licenses for same-sex partners, to which she objects as a matter of faith.

The Court’s denial order put into effect an order by a federal trial judge in Ashland, Ky., requiring Rowan County Clerk Kim Davis to give up her no-licenses policy.   District Judge David L. Bunning had issued the order to implement the Supreme Court’s decision in Obergefell v. Hodges after the state’s governor ordered all county clerks to give official permission to gay and lesbian couples to wed. Continue reading »

 
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Event announcement

By on Aug 31, 2015 at 4:32 pm

On September 2 at 1 p.m., the State & Local Legal Center will host a webinar on decisions from the past Term which will require local governments to make changes to stay in compliance with the law.  Lisa Soronen will lead the discussion.  More information is available on the Center’s website.

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