We are live-blogging from the Court this morning. Join us.
After much anticipation, this morning at 10 a.m. the Court will hear two-and-a-half hours of oral arguments in the challenges to state bans on same-sex marriage. I previewed the case in Plain English (in Part I and Part II), with other coverage coming from Nina Totenberg of NPR, who has posts previewing the case and one on the amicus briefs that have filed, Greg Stohr of Bloomberg News, Jess Bravin of The Wall Street Journal (subscription required), and David Savage of the Los Angeles Times, who describes Justice Kennedy as “poised to be the crucial vote in deciding whether gay marriage will be a constitutional right nationwide.” Richard Wolf of USA Today reports on the road to the Court for the same-sex marriage issue and profiles Mary Bonauto, one of the lawyers who will argue on behalf of the plaintiffs tomorrow. Continue reading »
The petition of the day is:
Issue: Whether San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes is any more constitutional than the District of Columbia's invalidated effort to do the same.
Two years ago, the Supreme Court issued its decision in United States v. Windsor. By a vote of five to four, with Justice Anthony Kennedy joining the Court’s four more liberal Justices to form a majority, the Court struck down a provision of the federal Defense of Marriage Act that defined marriage, for purposes of over a thousand federal laws and programs, as a union between a man and a woman. In Windsor, the Court made clear that it was not deciding whether states can prohibit same-sex marriages. But – as I explained in the first part of my preview of tomorrow’s oral arguments in the same-sex marriage cases – lower courts around the country quickly began to rely on the decision in Windsor to strike down state bans on same-sex marriage, and the plaintiffs have done the same in their efforts to convince the Supreme Court to rule in their favor.
So it may come as a bit of a surprise that the Court’s ruling in Windsor also plays a starring role in the arguments made by Tennessee, Michigan, Ohio, and Kentucky to defend their bans on same-sex marriage. The heart of the Court’s decision in Windsor, the states emphasize, was that the states have traditionally defined and regulated marriage. And just as the Court in Windsor determined that the Defense of Marriage Act must fall because it stood in the way of a decision by New Yorkers that same-sex couples should be treated the same as their opposite-sex counterparts, a decision by the Supreme Court for the plaintiffs would overturn a decision by the residents of these four states that marriage should be reserved for opposite-sex couples. Because each state is its own independent entity, they insist, they don’t have to allow same-sex marriages or recognize same-sex marriages that take place outside their state just because some other states have opted to do so. Continue reading »
April DeBoer and Jayne Rowse have lived together for ten years, own a home together, and have three children. Laws in Michigan, where they live, prevented them from jointly adopting their children, so DeBoer adopted one child on her own, while Rowse adopted the other two. This also means that Rowse can’t cover DeBoer’s child on her health insurance, and vice-versa. And if one of them were to die, the other would not automatically get custody of her children. So the two women want to get married – but they can’t, because Michigan laws specifically prohibit them from doing so.
In 2013, James Obergefell married John Arthur, his partner of more than twenty years, on a tarmac at an airport in Maryland, which permits same-sex marriage, where they had flown in a medically equipped plane because Arthur was battling ALS. After Arthur died a few months later, Obergefell filed a lawsuit, seeking to be recognized as Arthur’s spouse by the state of Ohio, where the pair lived and he still lives – so that, for example, his name will appear on Arthur’s death certificate as his spouse. Continue reading »
Today, the Court heard argument in Kingsley v. Hendrickson, a case about excessive force claims raised by pre-trial detainees. The basic question is whether a subjective or objective standard should govern these claims, but the Court spent a significant amount of the argument just trying to identify the practical ramifications of this choice. At times, it seemed that the Court was trying to choose between clarifying the fundamental principles in this area and simply dispensing with the case at hand on narrow doctrinal grounds. At the end of the argument, the result seemed uncertain.
For the better part of twenty years, the jurisdiction of the federal courts of appeals to review different decisions by the Board of Immigration Appeals (BIA) has been something of a minefield. That morass returns to the Court on Wednesday in Mata v. Lynch, the final oral argument of the current Term. But whereas the question presented in this case – whether courts of appeals have jurisdiction to review the BIA’s denial of an immigrant’s motion to reopen his removal proceedings based upon a claim that his original counsel was ineffective – may sound difficult, not even the federal government is defending the Fifth Circuit precedent at issue (which answered that question in the negative and thereby created a ten-to-one circuit split). Thus, the last hour of argument before the Justices until October may be entirely anticlimactic – and not just because of the contrast with the other cases the Court is set to hear this week. Continue reading »