on Mar 1, 2013 at 9:15 am
Yesterday evening, the Obama administration filed its long-awaited amicus brief in Hollingsworth v. Perry, the challenge to California’s Proposition 8. The brief urges the Court to rule that that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment because the state is simultaneously extending all of the “substantive rights and responsibilities of marriage” to same-sex domestic partners but refusing to allow them to be legally married. Although this argument would apply immediately to the eight states in total (including California) that currently recognize broad civil union and domestic partnership protection of this type but do not recognize same-sex marriage, the brief did not go so far as to explicitly endorse a federal constitutional right to same-sex marriage.
Coverage of the brief and analysis thereof comes from Lyle at this blog, Amy (in Plain English) at this blog, Greg Stohr of Bloomberg, Nina Totenberg of NPR, Pete Williams of NBC News, John Schwartz and Adam Liptak of The New York Times, Jess Bravin of The Wall Street Journal, Robert Barnes of The Washington Post, Christi Parsons and David Savage of the Los Angeles Times, Julie Pace and Mark Sherman of the Associated Press, Lawrence Hurley and David Ingram of Reuters, Gabrielle Levy of UPI, Bill Mears of CNN, Bob Egelko of the San Francisco Chronicle, Ariane de Vogue of ABC News, Richard Wolf and David Jackson of USA Today, Cheryl Wetzstein of The Washington Times, Roll Call, Chris Geidner of Buzzfeed, Ryan Reilly at The Huffington Post, Kyle Balluck at The Hill, Josh Gerstein of Politico, Michael Doyle of McClatchy Newspapers, and Jeremy Leaming of ACSblog. Additional commentary comes from the editorial board of The New York Times, Mark Tushnet at Balkinization, and Miranda Leitsinger at NBC News. [Disclosure: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in this case.]
Other coverage continued to focus on some of the other amicus briefs filed in Hollingsworth and United States v. Windsor, the challenge to the federal Defense of Marriage Act. On Wednesday, over two hundred companies filed an amicus brief in Windsor, telling the Court that DOMA harms relationships between employers and their employees and imposes serious compliance burdens on their administrative and financial structures. Coverage of the brief comes from Erik Eckholm at The New York Times, Erica Ryan at NPR, and Andrew Ross at The San Francisco Chronicle. Coverage of the amicus brief filed earlier this week by fifteen states, also urging the Court to strike down DOMA, comes from Ryan Reilly at The Huffington Post and Lornet Turnbull at the Seattle Times. At this blog, Marty Lederman covers the states’ brief in Windsor as well as the amicus brief filed by the state of California in Hollingsworth , which opposes Proposition 8 on both justiciability and substantive grounds. JURIST has additional coverage of California’s brief in Hollingsworth. Miranda Leitsinger at NBC News has additional coverage of the brief filed in Hollingsworth by many prominent conservatives, urging the Court to strike down Proposition 8 (Sarah also featured this brief in Tuesday’s round-up). Writing at Cato@Liberty, Ilya Shapiro summarizes the amicus brief filed in Hollingsworth by the Cato Institute and the Constitutional Accountability Center, in support of marriage equality under the Fourteenth Amendment. Karen McVeigh at The Guardian covers several of these, and other, briefs in the cases. At this blog, Tom notes that the Justices will consider the motion for divided argument in Windsor at their Conference this morning and discusses what he describes as the “real prospect that, although the Court has expressed significant interest in the standing of the petitioners in the case, that question is not poised to receive a full-throated, adversarial presentation.”
Wednesday’s oral argument in Shelby County v. Holder, the challenge to Section 5 of the Voting Rights Act, also dominated the news. This blog featured post-argument commentary on the case from Roger Clegg, Ellen Katz, and Abigail Thernstrom, as well as an academic highlight by Amanda Frost that focuses on Akhil Amar’s recent essay online at the Harvard Law Review. Professor Amar argues that the justifications for Section 5 of the Voting Rights Act are intimately related to the justifications for Section 5 of the Fourteenth Amendment, and that “Section 5 (of the VRA) is constitutionally proper, appropriate, and proportional, under the very same constitutional principles that legitimated section 5 (of the Fourteenth Amendment) itself.” Additional coverage of Wednesday’s oral argument comes from Joan Biskupic at Reuters, Tom Curry at NBC News, Sahil Kapur at Talking Points Memo, and Mary Troyan at the Montgomery Advertiser (h/t Rick Hasen). Charlie Savage at The New York Times considers the consequences if Section 5 is struck down or “otherwise gut[ted]” by the Court. Commentary comes from Amy Davidson at The New Yorker, Jeffrey Toobin at CNN, The Economist’s Democracy in America blog, J. Gerald Hebert and Armand Derfner at the Campaign Legal Center blog, and Amanda Becker at Roll Call.
- Jonathan Macey of this blog and Walter Olson at Cato@Liberty analyze Wednesday’s opinion in Gabelli v. Securities and Exchange Commission, in which the Court rejected the SEC’s interpretation and held that the five-year statute of limitations during which the SEC may seek civil penalties for securities fraud against investment advisors begins not when the fraud is discovered, but when it occurs.
- At Verdict, Vikram Amar reviews Tuesday’s decision in Clapper v. Amnesty International USA, holding that attorneys and human rights and media organizations who believe that they are surveillance targets under a global wiretapping law lack Article III standing to challenge the Act.
- For this blog, Ronald Mann analyzes Tuesday’s opinion Marx v. General Revenue Corporation, in which the Court held that defendants prevailing in Fair Debt Collection Practices Act lawsuits may be awarded costs under the Federal Rule of Civil Procedure 54(d)(1) even when the suit was not brought in bad faith and for harassment purposes.
- Writing at the Reuters News & Insight blog, Andrew Longstreth covers Wednesday’s oral argument in American Express Co. v. Italian Colors Restaurant, in which the Court is considering whether the Federal Arbitration Act permits the judicial invalidation of arbitration agreements on the ground that they fail to permit class arbitration of federal-law claims.
- At Cato@Liberty, Jim Harper discusses Tuesday’s oral argument in Maryland v. King, in which the Court is considering whether Maryland’s practice of collecting and analyzing DNA from individuals who are arrested and charged with serious crimes, but who have not yet been convicted, violates the Fourth Amendment.
- Steve Vladeck writes at Lawfare about an amicus brief filed by the National Association of Criminal Defense Lawyers in support of certiorari in United States v. Behenna, in which the Court would consider the availability of the right of self-defense of servicemembers in combat zones.