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Tuesday round-up

Yesterday’s coverage included further reports and commentary on the aftermath of the Court’s landmark same-sex marriage rulings. Writing for this blog, Lyle Denniston reports on the latest developments in California in the wake of Hollingsworth v. Perry, in which the Court held that the supporters of Proposition 8 lacked standing to appeal the district court’s order striking down California’s ban on same-sex marriage.   Yesterday the California Supreme Court rejected a request by the proponents of Proposition 8 to order county clerks to stop issuing marriage licenses to same-sex couples pending resolution of a dispute over the extent to which Proposition 8 remains applicable (if at all). In an op-ed for Reuters, Richard Hasen predicts that the constitutionality of state bans on same-sex marriage will return to the Court sooner than Adam Liptak predicts in his book, To Have and To Uphold, and he cautions that “if the [next] case reaches the Supreme Court while [Justice] Kennedy remains the deciding vote, it is anyone’s guess whether red state same-sex marriage bans will bite the dust or whether federalism will win the day yet again.”  At The American Prospect, Kent Greenfield considers the argument that recognizing same-sex unions will lead to allowing bigamy and incest. He argues that “[a]s a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related” and that “[i]f we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.”

Other coverage looks ahead to some of the cases on next Term’s docket. Yesterday this blog launched its online symposium on National Labor Relations Board v. Noel Canning, in which the Court will consider the constitutionality of the president’s recess appointments to the NLRB. One contributor, Victor Williams, urges the Court to consider “[t]he extreme need for finality in federal appointments [and] either broadly determine Noel Canning to be nonjusticiable . . . or fully reach all the merits to both reaffirm the executive’s recess appointment power and invalidate Senate confirmation holds and filibusters requiring unconstitutional supermajority cloture votes.” Michael Herz predicts that the decision is not likely to break down along standard ideological lines because, although “[t]his particular dispute is highly politically charged[,] . . . the legal rule that will emerge from the decision will favor neither Democrats nor Republicans as such.” Kali posted the full list of contributors here. Lyle summarized the issues in the case last week in a “Made simple” post.


  • At Cato at Liberty, Ilya Shapiro and Trevor Burrus discuss Mariner’s Cove Townhomes Association v. United States, a case asking the Court to weigh in on “whether community association fees are compensable property” for purposes of the Fifth Amendment’s Takings Clause; Cato filed an amicus brief in support of certiorari yesterday.
  • In an op-ed for the Baltimore Sun, Michael Wein contends that last September’s decision in Tennant v. Jefferson County Commission, in which the Court upheld a state’s redistricting plan against a challenge that it violated the principle of “one person, one vote,” may provide residents of the District of Columbia residents with a way to vote in federal elections.

Disclosures: 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 Hollingsworth v. Perry; The firm’s Kevin Russell was among the counsel on an amicus brief filed by former senators in support of Edith Windsor in United States v. Windsor.

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] so that we can consider it.

Recommended Citation: Sarah Erickson-Muschko, Tuesday round-up, SCOTUSblog (Jul. 16, 2013, 9:57 AM),