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Tomorrow the Court will hear arguments in Armstrong v. Exceptional Child Center.  The specific dispute in the case is whether the state’s Medicaid reimbursements should be invalidated under a provision of federal law, 42 U.S.C. § 1396a(a)(30)(A).  But the question underlying that dispute has implications far beyond Medicaid.  Continue reading »

One way or the other, the Supreme Court’s ruling this June in the same-sex marriage cases will make history.  The plaintiffs seem sure to win the narrower claim that one state must recognize a same-sex marriage license validly issued in another.  They probably will also win the sweeping claim that bars to same-sex marriage are unconstitutional.  But the outcome of that broader issue is way less certain.  And if the plaintiffs lose, gay-rights advocates will look back at the way these cases were litigated with regret.

The social movement towards marriage equality has been significantly lawyer driven.  The roots of that effort date back many years in lower-profile efforts that both established the relevant legal doctrine and shaped public perception of same-sex couples.  A team of attorneys led by Ted Olson and David Boies built on those essential efforts by filing a challenge to California’s Proposition 8 – prohibiting same-sex marriage in California – in the spring of 2009.

When they filed that case, there was at most, in my opinion, a single vote on the Supreme Court to accept their claim of a constitutional right to same-sex marriage.  No court of appeals had ever accepted such a claim.  There also was relatively little momentum towards legislative action in the great majority of states.  The Supreme Court generally decides cases within a range of options that reflect conventional wisdom and what American society is prepared to accept.  So the conventional wisdom at that time was that, for at least another decade, same-sex couples could not hope to achieve more than a recognition of a right to enter into civil unions.

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Monday round-up

By on Jan 19, 2015 at 9:04 am

The Court is not in session today because of the Martin Luther King, Jr., holiday.  But before they left for the holiday weekend, the Justices made big news with the announcement that they would review the challenges to a decision by the U.S. Court of Appeals for the Sixth Circuit upholding four states’ bans on same-sex marriage.  Coverage of that decision comes from this blog’s Lyle Denniston,  Nina Totenberg of NPR (also here), Jess Bravin of The Wall Street Journal (who has a second story for the Journal as well), Jaclyn Belczyk of JURIST, Richard Wolf of USA Today, and the Associated Press (via The Gainesville Sun).  Commentary and analysis of Friday’s order come from Richard Socarides of The New Yorker, Ilya Shapiro at Forbes, Garrett Epps of The Atlantic, Kenneth Jost of Jost on Justice, Steve Sanders at ACSblog, Steven Mazie at The Economist’s Democracy in America blog, Brianne Gorod and Judith Schaeffer at The New Republic, Chris Geidner at BuzzFeed, Rick Hasen at his Election Law Blog, and Arthur Leonard at his eponymous blog.  At Time, Sam Frizell looks at what five Justices on the Court have written or said about the same-sex marriage issue.        Continue reading »

Posted in Round-up

At 11 a.m. Tuesday, the Supreme Court is scheduled to hold one hour of oral argument on the solicitation of campaign donations by judicial candidates, in the case of Williams-Yulee v. Florida Bar.  Arguing for the candidate will be Andrew J. Pincus of the Washington, D.C., law office of Mayer Brown LLP, and for the Florida Bar will be Barry Richard of the Tallahassee law office of Greenberg Traurig P.A.   Each will have thirty minutes of time.


Since the 1830s, Americans have been claiming a role for themselves as voters in the naming of judges for their courts.  The obvious lesson, early on and now, is that citizens trust themselves to handle that task fairly and trust that the judges who are chosen that way will do the job impartially.

In modern times, some uncertainty has crept in about those assumptions, especially as the cost of elections has escalated, including the price of running for a judgeship.  Former Justice Sandra Day O’Connor has made a new career in retirement of leading a public charge against judicial elections.

If campaign money is a threat to judicial impartiality, but the First Amendment is understood to treat political money as speech, how far can states go to regulate it?  The Supreme Court is no stranger to the abiding controversy over money in politics, and takes that up again this week in a Florida judicial election case.

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This week at the Court

By on Jan 18, 2015 at 12:01 am

On Monday the Court was closed in observance of the federal holiday.

On Tuesday the Court issued additional orders from its January 16 Conference. No new cases were granted and there were no new CVSG’s. Last Friday the Court released an initial set of orders from the January 16 Conference granting all four same-sex marriage petitions and four other petitions. Lyle’s post on those orders is here. The Court also issued two opinions on Tuesday, Holt v. Hobbs and Teva Pharmaceuticals USA v. Sandoz. On Wednesday the Court issued three opinions: Gelboim v. Bank of America Corp.Hana Financial, Inc. v. Hana Bank, and Department of Homeland Security v. MacLean.

This is the second week of the January sitting; the Justices are scheduled to hear oral arguments in four cases. On Friday the Justices will meet for their January 23 Conference.


Larry Joseph serves as outside counsel to the Eagle Forum Education and Legal Defense Fund.

In an amicus brief filed in support of neither party in DeBoer v. Snyder, a client (the Eagle Forum Education & Legal Defense Fund) asked the Court to add an additional Question Presented on federal courts’ jurisdiction to hear these marriage controversies in the first place: “Whether a ‘domestic-relations exception’ to federal jurisdiction deprived the lower federal courts of subject-matter jurisdiction over this litigation?” With that background, the Court’s order that “[t]he parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions” could be read to foreclose the briefing of non-merits issues such as jurisdiction that the parties did not raise in their petitions. If that reading is correct, the order seems to reject the longstanding rule that jurisdictional issues go to the very power of appellate courts to hear a case and thus can be raised at any time – or sua sponte – even for the first time on appeal. Continue reading »

William N. Eskridge Jr. is the John A. Garver Professor of Jurisprudence at Yale Law School.

The Supreme Court’s decision to grant review of the four petitions challenging marriage exclusions for lesbian and gay couples in Michigan, Ohio, Kentucky, and Tennessee comes as no surprise.  The Sixth Circuit’s decision upholding the discriminations in DeBoer v. Snyder was in direct conflict with recent decisions from the Fourth, Seventh, Ninth, and Tenth Circuits.  Will the Court strike down the marriage discriminations in those states and recognize a constitutional right to marriage equality for lesbian, gay, bisexual, and transgender (LGBT) persons and their chosen partners?

Twenty years ago, in The Case for Same-Sex Marriage, I laid out what are now the standard doctrinal arguments for striking down such marriage exclusions:  because such laws deny a despised minority a fundamental civil right, they are questionable discriminations requiring strong public justification; because LGBT persons form marriages and families for the same kinds of reasons straight persons do, the prevailing justifications are inadequate.  In the twenty years since that book, more lawyers and judges have come to the view that sexual or gender orientation is a suspect ground for denying fundamental rights (including marriage), while the diminished band of the exclusion’s defenders has raised and then abandoned one justification after another.  Continue reading »

David B. Cruz is a Professor of Law at the University of Southern California Gould School of Law.

On the eve of the Martin Luther King, Jr. Day weekend, the Supreme Court has granted review in all four cases from the Sixth Circuit where same-sex couples were denied the right to marry or to have their lawful marriages recognized.  Couples from Ohio, Tennessee, Michigan, and Kentucky have in a manner of speaking asked the Court, “will you marry us?”  (No invocation of polygamy intended, though we can probably expect some briefs filed opposing the couples to raise that issue.)  By granting their cert. petitions, after having denied review from other court of appeals decisions ruling in favor of marriage equality and having denied stays sought by losing states in various suits brought by same-sex couples, the Court has basically responded, “quite possibly.”  While an individual on bended knee would be quite disappointed not to receive an unequivocal “yes” in answer to a proposal, the norms for cert. petitions are markedly different from those for marriage proposals.  The Supreme Court only infrequently rules on the merits of cases summarily, without full briefing and oral argument. Continue reading »

Petition of the day

By on Jan 16, 2015 at 10:15 pm

The petition of the day is:


Issue: Whether a court can pivot liability for a priest's failure to report certain communications to public authorities on the court's own determination of whether those communications constitute “confession per se,” or whether it must respect the church's own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication.

Steve Sanders teaches constitutional law, constitutional litigation, and family law at the Maurer School of Law, Indiana University Bloomington.

Were the thirty-one state constitutional bans against same-sex marriage enacted between 1998 and 2012, including four the Court decided Friday to review, the products of constitutionally repugnant “animus” – that is, a desire to disparage or injure gays out of fear, misunderstanding, or dislike?  Or, do they represent, as Judge Jeffrey Sutton maintained in the opinion for the Sixth Circuit that is now before the Court, a benign, even admirable, initiative by “people of good faith,” endowed with a “Burkean sense of caution,” to validate a “long-existing, widely held social norm”?  Who are we, Judge Sutton asked, to “indict” millions of voters who supported these mini-DOMAs?  Continue reading »

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