[EL] Same Sex Marriage

Sat Jan 17 07:27:57 PST 2015

W/r/t recognizing out-of-state marriages, the Court only granted on the
question of whether the 14th Amendment requires it -- it did not grant on
any Article IV question.

On Sat, Jan 17, 2015 at 9:39 AM, John Tanner <john.k.tanner at gmail.com>
wrote:

> As to question 2, doesn’t the Full Faith and Credit clause fully resolve
> the issue?
>
>
> On Jan 17, 2015, at 12:55 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>     Read Seth Waxman’s SCOTUS Brief for Arizona Redistricting Commission
> <http://electionlawblog.org/?p=69716>
> Posted on January 16, 2015 9:48 pm <http://electionlawblog.org/?p=69716>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here
> <http://electionlawblog.org/wp-content/uploads/arizona-commission-brief.pdf>
> .
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69716&title=Read%20Seth%20Waxman%E2%80%99s%20SCOTUS%20Brief%20for%20Arizona%20Redistricting%20Commission&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>      “When Can a Judge Ask, ‘Write Me a Check’?”
> <http://electionlawblog.org/?p=69714>
> Posted on January 16, 2015 4:50 pm <http://electionlawblog.org/?p=69714>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Garrett Epps
> <http://www.theatlantic.com/politics/archive/2015/01/when-can-a-judge-ask-write-me-a-check/384606/>
> on *Williams-Yulee.*
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69714&title=%E2%80%9CWhen%20Can%20a%20Judge%20Ask%2C%20%E2%80%98Write%20Me%20a%20Check%E2%80%99%3F%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, judicial
> elections <http://electionlawblog.org/?cat=19>, Supreme Court
> <http://electionlawblog.org/?cat=29>
>      “Tycoon dough: The ultimate electoral martial art”
> <http://electionlawblog.org/?p=69712>
> Posted on January 16, 2015 3:55 pm <http://electionlawblog.org/?p=69712>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Larry Noden and Daniel Weiner
> <http://blogs.reuters.com/great-debate/2015/01/16/tycoon-dough-the-ultimate-electoral-martial-art/>
>  for Reuters Opinion.
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69712&title=%E2%80%9CTycoon%20dough%3A%20The%20ultimate%20electoral%20martial%20art%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>
>      “Jeb Bush’s Decision To ‘Actively Explore’ 2016 Run Allows Him To
> Avoid Super PAC Rules” <http://electionlawblog.org/?p=69709>
> Posted on January 16, 2015 3:52 pm <http://electionlawblog.org/?p=69709>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Paul Blumental
> <http://www.huffingtonpost.com/2015/01/16/jeb-bush-super-pac_n_6487380.html>for
> HuffPo:
>
> When former Florida Gov. Jeb Bush (R) waded into the 2016 presidential
> race
> <http://www.huffingtonpost.com/2014/12/16/jeb-bush-president_n_6333658.html>
>  in December, he did so with some awkward wording. He stated that he
> would “actively explore the possibility of running for President of the
> United States.”
>
> This hedged language on the part of a politician whose father and brother
> have each served in the White House could represent some hesitation on
> Bush’s part as to whether he wants to run. But, it’s also convenient
> phrasing to provide Bush with a legal loophole permitting him to avoid
> numerous campaign finance regulations and to raise money and coordinate
> with his very own personal super PAC — at least until he officially
> declares he is done exploring possibilities and commits to a run.
>
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69709&title=%E2%80%9CJeb%20Bush%E2%80%99s%20Decision%20To%20%E2%80%98Actively%20Explore%E2%80%99%202016%20Run%20Allows%20Him%20To%20Avoid%20Super%20PAC%20Rules%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>
>      Has #SCOTUS Stacked the Deck Against Gay Marriage in How It Has
> Framed the Question? <http://electionlawblog.org/?p=69702>
> Posted on January 16, 2015 12:53 pm <http://electionlawblog.org/?p=69702>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The Supreme Court’s decision
> <http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf> to
> hear the gay marriage cases today came accompanied by some strange
> rephrasing of the questions presented:
>
> The cases are consolidated and the petitions for writs of certiorari are
> granted limited to the following questions: 1) Does the Fourteenth
> Amendment require a state to license a marriage between two people of the
> same sex? 2) Does the Fourteenth Amendment require a state to recognize a
> marriage between two people of the same sex when their marriage
> was lawfully licensed and performed out-of-state? A total of ninety minutes
> is allotted for oral argument on Question 1. A total of one hour is
> allotted for oral argument on Question 2. The parties are limited to filing
> briefs on the merits and presenting oral argument on the questions
> presented in their respective petitions.
>
> The first question presented is quite odd. Rather than ask about an equal
> right of gays and lesbians to marry same sex partners, it asks about the
> right of the *states *to deny same sex marriage licenses. This not only
> phrases it as an equal protection type claim, but of course leaves open the
> possibility that states could get out of the marriage business entirely.
> This perhaps takes away issues related to the due process rights of same
> sex couples, and perhaps keeps the court from getting into questions about
> heightened scrutiny for sexual orientation discrimination.
>
> The framing of these questions apparently differ from the way the
> questions were presented in all of the petitions, which raises the question
> of why were they rewritten (with an accompanying direct order—I’ve not seen
> that before—admonishing the parties to stick with discussing these
> questions presented). This strikes me as the handiwork of the Chief
> Justice, perhaps looking for a way to have as narrow a win for same sex
> couples as it is possible to achieve. That is, if the Chief calculates that
> Kennedy and the liberals are going to reverse the Sixth Circuit no matter
> what, perhaps this is a way to have that majority write as narrow an
> opinion as possible, one that even the Chief could possibly join (hedging a
> bet against historical trends?).
>
> This is of course speculation. Perhaps Justice Kennedy wanted the question
> framed in this odd way (though his earlier gay rights opinions do not
> suggest he would be averse to deciding the issue as to the rights of gay
> couples (and derivatively their children). But the delay in issuing today’s
> order, the deliberate reframing of the question, and the admonition to the
> parties to stick with the issues means something was afoot.
>
> UPDATE: I’ve heard from a few people that the admonition related more to
> the fact that some of the petitions presented only one of these two issues,
> and the parties should each address only the one they’ve gone up on. That
> seems plausible.
>
>
> [This post has been updated.]
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69702&title=Has%20%23SCOTUS%20Stacked%20the%20Deck%20Against%20Gay%20Marriage%20in%20How%20It%20Has%20Framed%20the%20Question%3F&description=>
>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>      “Florida’s Ban on Direct Solicitation Has Significant Implications
> for Due Process” <http://electionlawblog.org/?p=69700>
> Posted on January 16, 2015 10:01 am <http://electionlawblog.org/?p=69700>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Kate Berry
> <http://www.brennancenter.org/blog/florida%E2%80%99s-ban-direct-solicitation-has-significant-implications-due-process>
>  for the Brennan Center:
>
> In “A Minor Measure with Major Benefits before the Supreme Court?,”
> attorney Bob Bauerquestions
> <http://www.moresoftmoneyhardlaw.com/2014/12/minor-measure-major-benefits-supreme-court/>
>  whether Florida’s rule prohibiting judicial candidates from personally
> soliciting campaign contributions can both be minor in scope and yield
> significant benefits. Bauer’s skepticism elides the fact that two distinct
> rights are at stake –– Florida’s rule imposes only a minor restriction on
> First Amendment speech, but it provides crucial due process protections.
>
>  <share_save_171_16.png>
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D69700&title=%E2%80%9CFlorida%E2%80%99s%20Ban%20on%20Direct%20Solicitation%20Has%20Significant%20Implications%20for%20Due%20Process%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, judicial
> elections <http://electionlawblog.org/?cat=19>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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