What Will The Supreme Court’s Marriage Choice Be?

Today the justices of the U.S. Supreme Court met in a private closed door session to consider which  which cases to take and decide from the thousands of petitions for certiorari that have been filed with the Court.  Among those petitions for certiorari are a number of gay marriage case on appeal from  various U. S. Courts of Appeal all of which to date have invalidated state bans on same sex marriage.  Numerous bloggers and pundits have been speculating and "reading the tea leaves" as to what cases, if any the justices will pick to decide. The justices have numerous options before them and at this point, no one can say with absolute assurance what will occur.  However, should the Court decline to take any of the marriage case appeals, it will have to by default affirm the decisions of the Courts of Appeal and, if that is the result, release the current stays of the lower court rulings.  Doing absolutely nothing is, in effect, not an option.  They either take the appeal or they by default affirm the lower court ruling.  This latter course would as a result make gay marriage legal in the states within the applicable Court of Appeals districts.  A piece in The New Yorker has as good of an examination of the situation as any.  Here are highlights:

Legal shifts, especially in constitutional rights, often develop in the Supreme Court at a glacial pace, the magnitude of change perceptible only in hindsight.  That is no longer true of marriage equality. On Monday, the Court considers whether to hear one or more cases during its upcoming term that would determine the issue in all fifty states. History is in motion.

The court’s first preliminary conference of the term is a closed-door session at which only the Justices are present, and during which they choose which cases to decide of the thousands of petitions for certiorari, or consideration, they receive each year. The Justices will field requests by parties in five gay-marriage cases from states in three of the nation’s thirteen circuits. In the order in which they were filed (and the timing may be significant), the cases are from Utah (Herbert v. Kitchen), Oklahoma (Smith v. Bishop), Virginia (Rainey v. Bostic;, Indiana (Bogan v. Baskin), and Wisconsin (Walker v. Wolf). If the Court decides on Monday to begin the process of hearing a case this term, we may know about it this week, and a decision would almost certainly come by early next summer, or sooner.

For now, there is intense focus on whether the court will take a case, and which one will it be.

The case from Utah was filed first, and that could give it precedence. The District Court ruling was also the first to rely heavily on Windsor. A number of prominent lawyers have recently joined the plaintiff’s legal team . . . . 

In the case from Virginia, the plaintiffs have a number of prominent lawyers on their side, too. They include, most consequentially, Ted Olson and David Boies, who led the case against Prop 8. Their fifty-state strategy in the Prop 8 case was much criticized by the gay-rights legal establishment at the time. That such a victory is now within reach may, without a grant of certiorari in their Virginia case, be cold comfort for the pair. Olson is also a former Republican solicitor general and has a number of friends among the Justices, who know his commitment to the issue. There is another point of resonance: the Supreme Court case that ended laws banning interracial marriage was Loving v. Virginia, and another case from the same state may be seen as an appropriate bookend. Other prominent gay-rights attorneys have also entered the Virginia case, including a number who have filed their own petitions. Among them are Paul M. Smith, who argued Lawrence v. Texas, which struck down anti-gay sodomy laws and laid the theoretical ground for Windsor, and lawyers from the American Civil Liberties Union and Lambda Legal.

Or they may wait for a ruling against same-sex marriage from an appellate court. Justice Ruth Bader Ginsburg, speaking recently at the University of Minnesota Law School, suggested that without a ruling against same-sex marriage there was “no need for us to rush to step in.” (But she added, “Sooner or later, yes, the question will come to the Court.”) Such a ruling may soon come from the Sixth Circuit, which has heard arguments in, but not yet decided, a group of same-sex marriage cases from Michigan, Ohio, Tennessee, and Kentucky.

The veteran Supreme Court observer Linda Greenhouse recently commented, “It would come as no great surprise if the Supreme Court takes a pass this term. All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand.”

The hope this week is that the Supreme Court will be tempted not to wait.

For those of us in Virginia, if the court rejects the appeal of Rainey v. Bostic, and by default affirms the ruling of the 4th Circuit, then marriage in Virginia could become legal even sooner than next summer.  On the other hand, should the Court take up the appeal from the 4th Circuit, then hopefully by next summer the Marshall-Newman Amendment will be on the trash heap of history where it belongs.

Ruth Bader Ginsburg: Why I Can’t Resign Now

In some respects one of the most important aspects of presidential elections in America is the power of the president to nominate appointees to the U.S. Supreme Court.  But that power of appointment is not unlimited.  Nominees still must pass approval by the U.S. Senate.  Something that is not as assured as it once was given the non-stop obstruction of today's Congressional Republicans.  A piece in Politico looks at Justice Ruth Bader Ginsburg's explanation of why she will not retire for as long as possible.  Here are article excerpts:

Supreme Court Justice Ruth Bader Ginsburg is pushing back against suggestions that she should soon retire, saying President Barack Obama would be unable to get a justice like her through the Senate.

“Who do you think President Obama could appoint at this very day, given the boundaries that we have?” the 81-year-old justice told Elle Magazine in an interview excerpt released Tuesday. The wide-ranging interview portrays Ginsburg — seen as a member of the court’s liberal wing — as attuned to the dynamics in Congress and some of the greater political and social discussions in the U.S.

In the interview, she suggested that Senate Republicans would likely block any potential nominee like her.

“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the oldest member of the high court said. “[A]nybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” later adding that she can “do the job full steam.”

Tuesday’s excerpt focused largely on the court’s conservative shift in recent years and Ginsburg’s disappointment with its rulings on women’s issues.

When asked why the court has become “very conservative” on women’s rights, Ginsburg singled out a particular justice.

“To be frank, it’s one person who made the difference: Justice [Anthony] Kennedy,” she said, the justice often seen as the court’s swing vote given the court’s relatively entrenched liberal and conservative camps of four justices each. Ginsburg said that since upholding Roe v. Wade, Kennedy has been largely responsible for the upholding of several abortion restrictions.

When asked which decisions she thinks will be considered most significant 50 years from now, Ginsburg pointed to June’s ruling in Burwell v. Hobby Lobby, in which the court said corporations could use religious exemptions to avoid paying for contraception coverage under the Affordable Care Act.

“Well, I think 50 years from now, people will not be able to understand Hobby Lobby,” said the justice, who wrote a blistering dissent in the case.

Imposing Religion on Workers

In addition to the presence of a well educated population, one of the reasons that religion has withered in Western Europe is because the memory of the excesses of religion in the past are still remembered.  Wars of religion, the special rights granted to the Church and general behavior that was the antithesis of true Christian conduct soured the populace on a political-religion merger that generally worked against the interest of the majority and favored a powerful elite.  As often seems to be the case, America - and conservatives in particular - never learn from history or the experiences of others.  A main editorial in the New York Times looks at yesterday's horrific Supreme Court ruling that now allows employers to impose their religious beliefs on workers, the majority of whom likely hold contrary beliefs.  One can only hope the blow back is swift and extreme.  Here are excerpts:

The Supreme Court’s deeply dismaying decision on Monday in the Hobby Lobby case swept aside accepted principles of corporate law and religious liberty to grant owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.

It was the first time the court has allowed commercial business owners to deny employees a federal benefit to which they are entitled by law based on the owners’ religious beliefs, and it was a radical departure from the court’s history of resisting claims for religious exemptions from neutral laws of general applicability when the exemptions would hurt other people.

[T]he immediate effect, as Justice Ruth Bader Ginsburg noted in a powerful dissent, was to deny many thousands of women contraceptive coverage vital to their well-being and reproductive freedom. It also invites, she said, other “for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.” 

Nothing in the contraceptive coverage rule prevented the companies’ owners from worshiping as they choose or advocating against coverage and use of the contraceptives they don’t like.

Mr. Alito’s ruling and a concurrence by Justice Anthony Kennedy portray the decision as a narrow one without broader application, like denying vaccine coverage or job discrimination. But that is not reassuring coming from justices who missed the point that denying women access to full health benefits is discrimination.

Perhaps the owners of Hobby Lobby should recall what happened to high church clerics in the Place de la Concorde in Paris and those who demanded special rights based on religion.   Similar lessons come from the Spanish Civil War when many clerics suffered for the Church's abuse of the majority in favor of the few.  Demanding special rights sometimes leads to extreme consequences.

Justice Ginsburg To Officiate At Same-Sex Wedding

Expect the far right and the Christofascists to foam at the mouth at this news: Justice Ruth Bader Ginsburg will become the first Supreme Court justice to officiate at a same-sex marriage today. Kudos for Ginsburg who truly understands that religious based bigotry of all kinds - be it anti-gay or anti-Semitic or anti-Muslim - has no place in the nation's civil laws.  It is always ironic to me that those on the far right who scream the loudest about religious liberty are always the ones leading the charge to deprive others of their Constitutional right to freedom of  - and from - religion.   As always, the hypocrisy is mind numbing.  Here are highlights from The New Civil Rights Movement on the nuptials that Ginsburg will preside over:

Justice Ruth Bader Ginsburg will become the first Supreme Court justice to officiate at a same-sex marriage on Saturday. The 80-year old jurist who is considered the head of the progressive wing of the Court will marry Michael M. Kaiser and John Roberts (ironically, no relation to the Chief Justice). Roberts is an economist, and Kaiser is the president of Washington, D.C.’s Kennedy Center for the Performing Arts, where the ceremony will be held.

Calling it a “gala wedding” that “brings together the nation’s highest court and the capital’s high society,” the Washington Post reports the wedding “will mark a new milepost in recognition of same-sex unions.”

Ginsburg seemed excited during a recent interview about being the first member of the court to conduct such a ceremony and said it was only a logical next step.

“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg said.

She added: “It won’t be long before there will be another” performed by a justice. Indeed, she has another planned for September.

Ginsburg and Kaiser are close friends. She is perhaps the Supreme Court’s most ardent supporter of the fine arts, especially opera. Kaiser has been at the helm of the Kennedy Center since 2001 and is an internationally recognized expert in arts management and one of Washington’s most civic influential leaders.

“I can’t imagine someone I’d rather be married by” than Ginsburg, Kaiser said in an interview.