on Dec 14, 2012 at 9:03 am
The Court’s grant of certiorari last week in United States v. Windsor, in which the Court will consider the constitutionality of the federal Defense of Marriage Act, and in Hollingsworth v. Perry, in which the Court will consider the constitutionality of California’s Proposition 8, continue to receive the majority of media attention. Bloomberg View argues that in granting certiorari in both cases, the Court will chose “what kind of progress to accept” – incremental state-by-state change or broad national change. At Constitution Daily, Lyle acknowledges the apprehension felt by same-sex couples as the Court considers these cases, noting that “[p]aying attention, keeping up, and making sure that one’s own voice is heard can make waiting perhaps a bit more tolerable.” And at The Originalism Blog, Michael Ramsey and Mike Rappaport discuss the standing issue in the cases. Ramsey affirmatively argues that there is no standing in Windsor, while Rappaport provides more background on originalist understandings of standing doctrine, suggesting that these factors may weigh in favor of a finding of no standing in Windsor.
Other coverage discussed the same-sex marriage cases in the context of Fisher v. University of Texas at Austin, in which the Court is considering whether the Equal Protection Clause of the Fourteenth Amendment permits the University of Texas to consider race in its undergraduate admissions process. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented the American Association of Law Schools as amicus curiae in this case.] Greg Stohr at Bloomberg covers both cases and notes the possibility that the Court may grant same-sex marriage rights while ending university affirmative action. At Slate, Richard Kahlenberg presents one way in which the Court might do this, focusing on the vote of Justice Kennedy in arguing that “the very reasoning that could guide Kennedy to support marriage equality may bolster his decision to curtail race-based affirmative action.”
Coverage also examines Wednesday’s motion filed with the Court by opponents of the 2012 National Defense Authorization Act, which Cormac covered in yesterday’s round-up. The filing asks the Court to vacate the Second Circuit’s stay of the district court’s injunction against the application of the law’s indefinite detention provision, Section 1021(b)(2). JURIST and Lawfare have coverage of the filing.
- At Business Insider, Aleksi Tzatzev considers the potential ramifications of the Court’s decision to grant certiorari last Friday in Federal Trade Commission v. Watson Pharmaceuticals, Inc., in which it will consider whether reverse payment agreements are permitted under federal antitrust law.