Hacked?

The normally staid SCOTUSblog fired out some interesting tweets last night.

SCOTUSblog Is Live-Blogging

SCOTUSblog will be live-blogging shortly.

SCOTUSblog On The DOJ's Brief

Lyle Denniston writes at SCOTUSblog:

The brief was limited to defending same-sex marriage under an “equal protection” standard, leaving unmentioned the other constitutional argument that some challengers to state bans have made: that marriage is a fundamental right that cannot be closed to such couples, a “due process” argument.

The government’s new filing, signed by U.S. Solicitor General Donald B. Verrilli, Jr., and other Justice Department officials and staff lawyers, sought to persuade the Court to embrace a constitutional test that this administration has been pressing for some time in gay rights cases.

It called for what is known as “heightened scrutiny” — the middle level of three ascending tests for judging claims that laws discriminate on the basis of a forbidden personal trait. The easiest standard to meet is “rational basis,” and the toughest is “strict scrutiny.”

Under the middle level, a law that is challenged as discriminatory can be upheld only if it serves an “important government objective” and its terms are “substantially related” to such a policy goal.

In a series of decisions in recent years that have added to gay rights, the Supreme Court has never specified an explicit standard for use in the field of sexual orientation. At times, it has seemed to adopt something like “rational basis-plus,” but it has never given a specific definition of the test or tests it has used.

Hit the link for more analysis.

SCOTUSblog: No Alabama News Tonight

UPDATE: And no word this weekend either.

The U.S. Supreme Court is not expected to rule through the weekend on a request by Alabama lawyers to block gay marriage, the court's deputy clerk told attorneys late Friday afternoon. That would clear the way for U.S. District Judge Callie V.S. "Ginny" Granade's ruling striking down the state's same-sex marriage ban to take effect Monday. That is the day she set after ruling on Jan. 23 that the Marriage Protection Act and the Sanctity of Marriage Amendment violate the U.S. Constitution's due process and Equal Protection clauses.

The 11th U.S. Circuit Court of Appeals on Tuesday refused to extend the "stay" Granade issued beyond Feb. 9. The U.S. Supreme Court was Alabama's last chance to stop gay marriages. David Kennedy, an attorney for plaintiffs Kim McKeand and Cari Searcy in Mobile, said he expects same-sex marriage licenses to be issued first thing Monday morning. He said it is somewhat unusual that the high court would not rule one way or the other since the justices of issued rulings on request to delay gay marriages from beginning in other states.

SCOTUSblog On Marriage Momentum

Lyle Denniston writes for SCOTUSblog:

A second state — Louisiana — told the Supreme Court on Tuesday that the Justices should consider taking on the constitutional dispute over same-sex marriage without waiting further. It is important, the state said in urging prompt review of a federal judge’s decision upholding Louisiana’s ban on such marriages, that the Court examine the dispute in a broad context to reach all of the issues.

With the filing of Louisiana’s views, paralleling the suggestion for early review made by Michigan in another case, the Supreme Court now has two new cases nearly ready for early consideration, perhaps in time for a final decision before the end of the current Term. Other cases on the issue are pending, but if the Court waits for all of the filings to be submitted in all of the cases, that could slow the process.

If the Court does move now to review any of the new appeals, Louisiana — like Michigan — wants its own ban on same-sex marriages upheld, its new filing made clear. But, at this stage, the two states have stressed the importance of advancing the controversy toward a final resolution by the only court with authority to do that, in a case or cases which lay out the issues that will shape the outcome.

Five cases are now before SCOTUS: Louisiana and all four states under the jurisdiction of the Sixth Circuit (Ohio, Michigan, Kentucky, and Tennessee.) Yesterday South Carolina asked the Fourth Circuit to hold off on hearing their appeal while they petition SCOTUS. That appeal has not yet been filed.

SCOTUSblog On Michigan

Lyle Denniston writes for SCOTUSblog:

The same-sex marriage constitutional controversy reached the Supreme Court on Monday in its simplest form, testing the constitutionality of a state’s denial of a right to marry for same-sex couples. That is the sole issue raised in a new petition filed by a Michigan lesbian couple who want to marry and want the right for both parents to adopt their three children. Michigan denies both. As has happened with other cases that have reached the Court on the controversy, the lawyers for the Michigan couple contended that their case was the ideal one for review. Among other reasons, they noted that this is the one case in the group that was fully tried, developing a factual record during a nine-day trial in a Detroit federal courtroom.

With a total of four petitions filed in the six cases decided by the Sixth Circuit — the Ohio and Kentucky petitions are both joint filings in two cases — the stage is now set for the cases to be submitted to the Justices, as soon as state replies are filed in some or all of the cases. It thus appears that the cases have arrived at the Court in time — if review is, indeed, granted — to be heard and decided in the Court’s current Term. To be heard and decided before the Justices complete this Term in late June or early July, the cases would have to be ready for the Justices to consider by mid-January. With the current split among federal appeals courts, it would be most surprising for the Court to refuse to hear any of this round of cases. It is up to the Justices to accept or deny each or all of the petitions.

Michigan, it could all be up to you. And remember what the original judge in that case said: "The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration."

SCOTUSblog On Kansas

Lyle Denniston writes at SCOTUSblog:

The Court has issued a series of orders in same-sex marriage cases over the past eleven months, but the Kansas order marked the first time that members of the Court had recorded dissents. Justices Antonin Scalia and Clarence Thomas noted only that they would have granted the delay sought by the Kansas attorney general. Kansas officials had attempted to show that their case was different from others that the Supreme Court had chosen to leave undisturbed, arguing that the federal judge’s order was an invalid attempt to second-guess a Kansas Supreme Court order delaying the issuance of same-sex marriages. The federal judge had rejected that claim, but it may have been the one that drew the implied support of Justices Scalia and Thomas. The state still has an appeal pending at the U.S. Court of Appeals for the Tenth Circuit, but that has little promise, because that appeals court has struck down bans in two other states in its region — Oklahoma and Utah. The Supreme Court refused to review those Tenth Circuit rulings on October 6. The Kansas ban is almost identical to those in other states.

SCOTUSblog On The Sixth Circuit

Lyle Denniston writes at SCOTUSblog:

The challengers in the cases in the four states of the Sixth Circuit now have two legal options: First, they can ask the full Sixth Circuit bench (the en banc court) to reconsider their cases. If it does so, the panel decision released Thursday would be wiped out and the en banc court would start fresh. The loser at that level could then seek Supreme Court review.

Second, the challengers can now move directly to the Supreme Court; they do not have any legal obligation to seek further review in the Sixth Circuit. If they take that path, it would be up to the Justices to decide whether to review the Sixth Circuit’s ruling, and it would take the votes of only four of the nine Justices to agree to hear the case.

One argument for going directly to the Supreme Court has already been made, by advocacy groups and lawyers on both sides of this constitutional controversy: that is, that now is the time to get the constitutional issue resolved, once and for all.

If the challengers wait until the Sixth Circuit went through en banc review (assuming that option were granted), the issue almost certainly would not reach the Supreme Court for consideration in the current Term. Other courts of appeals are considering the issue, but they are moving more slowly and thus almost certainly would not decide their cases in the current calendar year.

If a case is filed with the Justices soon, by contrast, it could be heard and decided before the Justices complete this Term early next summer. Any case that the Justices accept for review by mid-January almost certainly would be decided in the current Term.

The ACLU has already announced that they will appeal the Ohio case directly to SCOTUS.

SCOTUSblog: Arizona's Ban Likely To Fall

Lyle Denniston writes at SCOTUSblog:

A federal judge in Phoenix has taken an initial step toward allowing same-sex marriage in that state, indicating that he is likely to strike down the state’s ban when he rules on it soon. Senior U.S. District Judge John W. Sedwick, overseeing two cases involving some fifteen gay and lesbian couples, ruled Friday on only one part of that case, but left little doubt where his overall review was heading. In his fourteen-page order, he ruled that state officials must treat a gay couple as having been married when one of the partners died this summer. Thus, the death certificate must show that they were married at that time, according to the decision. In the course of that ruling, though, the judge offered a range of observations that seem sure to doom Arizona’s ban when he does confront that issue directly.

And then it will be stayed.

SCOTUSblog On 9/29 Conference

Lyle Denniston writes at SCOTUSblog:

It has taken only a little over a year for the same-sex marriage issue to return to the Court, with the focus solely on state bans, and lawyers on both sides of the controversy have been moving very rapidly to get the issue prepared for the Supreme Court after lower courts had expedited their review. In none of the seven petitions that the Court will be examining is anyone involved resisting Supreme Court review. The Court’s own staff also has moved with dispatch. Some of the seven petitions that will go to the Justices late this month were filed just the day before they were distributed to the Justices — almost unheard of at the Court.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens. The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking. There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings. Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term. Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

Denniston adds that if any case is granted cert by January, a ruling would be expected by "next summer."

SCOTUSblog: Supremes Could Announce Marriage Case As Soon As Today

Lyle Denniston wrote yesterday at SCOTUSblog:

With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file. Along with the two new filings, the Court has awaiting it individual petitions on the issue from Oklahoma and Utah and three from Virginia. In all of the cases, both sides and a lengthening list of “friends of the Court” have agreed that the Court should take on the constitutional controversy now. The Court may indicate as early as tomorrow which of the seven cases, if any, will be considered by the Justices at their first Conference of the new Term, on September 29.

Taken together, the seven cases raise both of the constitutional questions that have arisen in lower courts in a wave of decisions over the past fifteen months: do states have the authority to refuse to allow gay and lesbian couples to marry, and do they have the authority to refuse to recognize same-sex marriages performed for their residents in other states. The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now.

Denniston notes that federal appeals courts have not yet split on either of the issues cited above.

SCOTUSblog: The Court Has Given No Clear Signal On Taking Any Marriage Case

Lyle Denniston writes at SCOTUSblog:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times. While it has done little to explain those actions, it has sent some signals about its thinking. Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review. And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing. The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

The Court actually has said very little in the nearly fourteen months since its five-to-four decision in United States v. Windsor – the ruling that did not deal with state power to ban same-sex marriage but is being widely interpreted by most lower courts as if it had very much to do with that. It has not granted any cases on the validity of a state ban, and it has not even hinted — at least not reliably — at what it might eventually decide on the point.

Read the full essay.

We'll Find Out Together

It's worth pointing out that the collective moment all of LGBT America is about to share would not have been technologically possible not too long ago. Sure, there's been live TV - but you could only scream back at your set. Today we get to share the moment and react to each other worldwide in real time. And whatever the outcome, huge props to the team at SCOTUSblog for their flawless work in streaming the play-by-play to all of us. In case there was any doubt as to their position, here's a photo just posted to their Twitter feed.