Bump, set, spike: SCOTUS and same-sex marriage

Same-sex marriage: Official Supreme Court portrait 2012

Front row: Justices Clarence Thomas and Antonin Scalia, Chief Justice John Roberts, Justices Anthony Kennedy and Ruth Bader Ginsburg; Back Row: Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito, Jr., and Elena Kagan

In a 5-4 decision today in Windsor v. United States, the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). Section 3 reads:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

The federal government will now not define the word marriage, but will accept the states’ various, and conflicting, definitions.

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Here comes the 800 lb. gorilla: SCOTUS and gay marriage

SCOTUS and gay marriage: Official portrait, Roberts Court, 2010

Front row: Justices Clarence Thomas and Antonin Scalia, Chief Justice John Roberts, Justices Anthony Kennedy and Ruth Bader Ginsburg; Back Row: Justices Sonia Sotomayor, Stephen Breyer, Samuel Alito, Jr., and Elena Kagan

This Friday afternoon the U.S. Supreme Court will consider 10 different petitions seeking review of lower court decisions on same-sex marriage. Nobody will be in the room except the nine justices–no law clerk, no court reporter, not even a guard. But I’d love to be a fly on the wall because it’s going to be a tactical battle par excellence.

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Friday round-up

Official SCOTUS portraitHere are a few interesting articles and videos I’ve run across lately. Most of them are hard news: a few, not so much.

The Supreme Court ruled Wednesday on an important case for freedom of religion. In Case #3 on my Top Ten List of SCOTUS cases this term, Hosanna-Tabor v. EEOC, the Court held–in a decision that was, amazingly, 9-0–that:

The Establishment and Free Exercise Clauses of the First
Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

In plain English, the First Amendment’s guarantee of religious freedom means that churches can pick–and fire–their ministers as they choose, without government interference, even if the case might ordinarily fall under the purview of employment discrimination laws.

Here is a fairly quick summary of and commentary on the decision from The Anchoress (Elizabeth Scalia, no relation to Hizzoner). Here is a long and meaty one from Lyle Denniston at SCOTUSblog.

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SCOTUS Top Ten List, part 9: Should Justice Kagan recuse herself from hearing Obamacare?

Number One on my Top Ten List of upcoming Supreme Court cases is, of course, Obamacare. If you missed my earlier posts on the subject:

  • here’s some background, including info on the four specific issues the Court will rule on;
  • here’s the skinny on the argument about whether Justice Thomas should recuse himself from the case;
  • and next time (sorry, no link for that one yet) we’ll read the tea leaves and talk about What It All Means.

But first, let’s look at the other recusal issue: Justice Kagan’s last job.

Official portrait of Justice Elena Kagan

Justice Elena Kagan (The Oyez Project)

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SCOTUS Top Ten List, part 7: Obamacare

And so it comes down to this.

The most important debate in our country this year, perhaps this decade, won’t be any of the endless presidential debates. It won’t occur in Congress or the media. You and I will never know the details.

On March 30th, the Supreme Court of the United States will gather in private to discuss and vote on legal challenges to the Patient Protection and Affordable Care Act (PPACA).

It’s a case that could easily finish transforming us from a republic with a federalist system of checks and balances to an oligarchy in which a handful of D. C. bureaucrats can regulate every aspect of our lives.

And it will most likely all come down to the vote of one man–Justice Anthony Kennedy–in a 5-4 decision on the constitutionality of two specific aspects of the law.

Official portrait Justice Anthony Kennedy

Justice Anthony Kennedy (The Oyez Project)

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SCOTUS Top Ten List, part 6: same-sex marriage

We’ve been working through a Top Ten List of Supreme Court cases to watch this year. Here are cases #8-10#6-7#5#4 and #3.

And that brings us to (drum roll, please) . . .

2. Perry v. Brown (sometimes still called by its original title, Perry v. Schwarzenegger).

two men holding a marriage certificate and embracing

San Francisco City Hall, June 17, 2008 (CCL: Bart Vis)

When I started this list, I penciled in Perry at #2. It’s now clear that it’s not going to get to SCOTUS this term. I’m still going to talk about it, though, because it’s still coming, and it’s still going to be a blockbuster when it gets here.

Background:  Eleven short years ago, the Netherlands became the first jurisdiction in history to give same-sex couples the legal right to marry. Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2008), Sweden (2009), Portugal (2010) , Iceland (2010) and Argentina (2010) have since followed suit.

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SCOTUS Top Ten List, part 5: Freedom of religion

caricature of Justice Kagan

Justice Elena Kagan (CCL)

With the announcement this week that SCOTUS will indeed rule on Obamacare this term, I’m eager to talk about that.

If you’re just joining us, I’ve been working through a Top Ten List of cases to watch at the Supreme Court this year. After years of a docket weighted toward corporate cases, the high court’s docket this year is filling up with cases dealing with freedom of speech and religion, and personal and states’ rights, that could change the landscape for decades to come.

And then, of course, there’s Obamacare.

But first, let’s talk about freedom of religion.

(If you want to play catch-up on the Top Ten List, here are cases #8-10, cases #6-7, case #5, and case #4.)

And now, without further ado, I bring you Number Three . . .

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

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