[EL] Same Sex Marriage

Sat Jan 17 13:13:09 PST 2015

Not sure why we're discussing it on this list, but since Rick "opened the door," I offer my thoughts on the Court's formulation of the SSM QPs here:

http://www.forbes.com/sites/ilyashapiro/2015/01/17/did-supreme-court-telegraph-its-ultimate-ruling-on-gay-marriage/

Ilya Shapiro
Senior Fellow in Constitutional Studies,
Editor-in-Chief of the Cato Supreme Court Review
Cato Institute
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Washington, DC  20001
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ishapiro at cato.org<mailto:ishapiro at cato.org>
Bio/clips: http://www.cato.org/people/shapiro.html
Twitter: www.twitter.com/ishapiro<http://www.twitter.com/ishapiro>
SSRN: http://ssrn.com/author=1382023

Cato Supreme Court Review:  http://www.cato.org/supreme-court-review

Watch our 2014 Constitution Day Conference - Supreme Court Review/Preview:  http://www.cato.org/events/13th-annual-constitution-day

See me defend the right to keep and bear arms on the Colbert Report:  http://www.colbertnation.com/the-colbert-report-videos/340923/july-08-2010/automatics-for-the-people---ilya-shapiro---jackie-hilly
 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<mailto: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<mailto: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

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