Thursday, September 25, 2014

Which case to take?

Since the Supremes will be deciding whether to take a marriage equality case on Monday there is a lot of speculation on what the court will do and more speculation on what factors will play into that decision. Here's another take on that by Lisa Keen. I'm linking to her article in the blog Towleroad though I also saw it printed in Between the Lines. My summary of some of what she wrote:

When the marriage equality cases from Michigan, Ohio, Kentucky, and Tennessee were before the 6th Circuit back at the beginning of August (Sheesh! What's taking you guys so long?) some people saw signals during oral arguments that those particular judges wanted to uphold the state bans on same-sex marriage. That would show a conflict between the 6th Circuit and the other Circuits who have ruled so far. And that is a big reason for the Supremes to take one of the seven current cases before them. Ruth Bader Ginsberg has said as much. So perhaps they'll wait until the 6th Circuit issues its ruling.

If the Supremes decline to hear one of those cases the stays that prevent their implementation must be removed. That would mean all of the states in the 4th, 7th, 9th, and 10th Circuits – another dozen – would automatically get legal same-sex marriage. It seems unlikely the Supremes would do that.

There are seven cases before the Supremes. Which case – if any – does the court take? Each comes with baggage. The 9th Circuit case has a related question of level of scrutiny (the amount of needed justification for a law) that is appropriate. The 10th Circuit case out of Utah may mean looking at that state's history of polygamy. Out of the 4th Circuit there are parallels to the ban on interracial marriage. The 7th Circuit case also deals with timing because one of the plaintiffs is seriously ill. Perhaps the best one is the Utah case in which the state is the defendant to avoid the snags of the Calif. case in which the Supremes declared the defendants had no standing. Beyond that the cases are almost identical, so it doesn't matter much which one the Supremes take.

Related news:

A state judge has declared the Louisiana ban on same-sex marriage to be unconstitutional. That's in contrast to a federal judge who already declared it to be just fine with him.

Ruth Bader Ginsberg was interviewed by Jessican Weisberg of Elle magazine. Part of the interview is online (one must buy the paper magazine for the full text). The online part is still worthwhile – there are some juicy bits. One in particular: Ginsberg is asked why not retire and let Obama appoint her successor? Alas, under the current political reality Obama couldn't get confirmation for anyone Ginsberg would like to see on the court. She also discusses the term "activist judge" and her thoughts on women's rights. As for abortion, current GOP restrictions only apply to poor people – women who aren't poor can always get an abortion even if the clinic is several states away. So, "It makes no sense as a national policy to promote birth only among poor people."

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