CHRISTINE M. FLOWERS: People have spoken and Supreme Court should listen

John Roberts cut through the semantics and the florid prose about "dignity" when he said this to one of the attorneys arguing in favor of same-sex marriage: "You're not seeking to join the institution. You're seeking to change what the institution is."

And there, my friends, you have the critical question: is marriage a large-tent institution that embraces many different variations of "devotion" (and therefore gays and lesbians are only asking to enter under the tent,) or is it a solemn petrified edifice that must be remodeled, stone by stone, to accommodate the wishes of a newly-empowered minority.

When you put it that way, you understand what is really at stake.

It's common to hear opponents of same-sex marriage described as bigots, religious zealots or inhabitants of the "wrong side of history," as if we were walled up behind Check Point Charlie in East Berlin. There is this sense of inevitability on the part of gay marriage advocates, to the point that they can sometimes even show sympathy for those of us who insist on traditional definitions. I've had conversations where my enlightened interlocutor will smile sadly, tilt her head as if dealing with a confused child and figuratively pat me on the head as if I were Cindy Lou Who and she was sending me off to my bigoted bed with a glass of milk.

The attendant sigh says "she'll learn."

Actually, "she" has been learning a lot of things lately, particularly in the wake of the conscience law controversy in Indiana last month. Hopefully, the justices on the high court have been studying up as well, particularly when it comes to that crash course in societal bullying.

John Roberts wasn't explicit, but it's clear he was referring to what happened in his native Hoosier state when he observed that gay and lesbian couples are trying to impose their conception of marriage on a pre-existing institution, changing it beyond recognition. Attorney General Donald Verilli also realized what was happening when, in response to a question about what impact the universal legalization of gay marriage would have on a religious school's right to deny teacher housing to a gay couple, he delivered the equivalent of a sophisticated "uh, um" and failed to provide a legitimate answer.

That's what usually happens when marriage equality advocates are faced with the blunt question: "What do you do if someone doesn't want to bake you a cake?" or in more general terms, how does your concept of equality square with someone else's sense of freedom?

Before the Indiana dust up, proponents of same-sex marriage tried to make it seem as if legalization of these unions was simply a matter of due process and equal protection, or as Justice Anthony Kennedy likes to trill in his Rod McKuen-like majority decisions, "dignity." But when it comes to the dignity of people who object to gay unions on religious or moral grounds, they are dismissed as bigots. The rainbow flags come out, CNN marches into the street to find the most aggrieved and photogenic victims and, poof!, a governor is reduced to blathering apologies about offending a minority whose political clout far outweighs its size.

I'm actually glad this happened so close in time to these critical oral arguments on same-sex marriage, because it provides a blueprint for the justices of how we arrived at the point where two men marrying each other became an undeniable civil right, and speaking out against it became hate speech.

This is the classic modus operandi of those who seek change by all costs, even through intimidation. The advocates for marriage equality (clever term) are well-versed in that practice which was perfected by feminists of the Roe v. Wade era. They could not find an actual "right" to abortion in the constitution, and so they switched their focus and started talking about the "dignity" of women while at the same time, minimizing the dignity of the unborn child. At some level, it was a fabulous success. Abortion became legal at a national level.

But anyone who has been a warrior on the bloody battlefield of abortion rights over the past four decades knows how Roe kept the debate alive, because we who think judges shouldn't usurp the voice of the people on these crucial issues refused to go gentle into that nihilistic night.

I'm predicting that will be the case if the justices rule in favor of the same sex advocates. Frankly, if you asked a majority of Americans, they'd have no problem with giving same sex couples all of the legal rights and privileges (and headaches) conveyed by traditional marriage. By nature, we tend to be an egalitarian population that rewards fair dealing.

But we don't like to be told by a few men and women in black robes that, because we disagree with the frenetic wave of change orchestrated by a motivated minority, we are bigots. As Justice Roberts said, "People feel very differently about something if they have the chance to vote on it than if it's imposed on them by the courts."

If the high court chooses to reward the loudest voices with a right that simply does not exist at either common law or in the reverent folds of the constitutional fabric, they can rest assured that there will be battles waged by those who refuse to capitulate in someone else's version of "dignity."

They could be people of faith. They could be atheists with a devotion to constitutional integrity. Or they could simply be people who prefer the stability of a great stone edifice to the wind-whipped flimsiness of a fragile tent.

Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News. Readers may send her email at cflowers1961@gmail.com.

Read more here: http://www.sunherald.com/2015/05/02/6205471/christine-m-flowers-people-have.html?fb_action_ids=10205669671455006&fb_action_types=og.comments#storylink=cpy

SCOTUS Denies Request from Alabama Officials to Block Gay Marriages; Weddings to Begin Imminently

The Supreme Court has denied a request for an extension of the stay of the 11th Circuit ruling striking down the state's gay marriage ban which expires this morning.

The SCOTUS vote was 7-2 with Scalia and Thomas dissenting.

Gay couples are already lining up at courthouses around Alabama and weddings will begin imminently.

GOV. BUTCH OTTER ASKS SCOTUS TO DELAY MARRIAGE CONSIDERATION UNTIL IT HEARS FROM IDAHO

Idaho Governor Butch Otter filed an amicus brief today asking the U.S. Supreme Court to delay consideration of same-sex marriage until it hears from Idaho as he believes the case would be the "best vehicle" by which the Court could resolve “the marriage-litigation wave in all respects," theSpokesman-Review reports:

Otter lists several reasons why he thinks Idaho’s case is the “best vehicle” for the whole same-sex marriage issue to be decided. Among them: Idaho’s includes both the question of in-state marriages and recognition of out-of-state marriages; it would test the 9th U.S. Circuit Court of Appeals’ application of a heightened standard of scrutiny for discrimination based on sexual orientation; it brings up religious liberty issues; and Idaho officials, unlike those in many states, have mounted a vigorous defense of their ban on gay marriage.

Otter’s legal brief cites “the enormous societal risks accompanying a genderless-marriage regime,” and says, “Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and economically when reared in an intact home by both biological parents.”

Attorneys Gene Schaerr and Tom Perry, lawyers for Otter, filed the brief in five marriage cases before the Supreme Court challenging rulings by the U.S. Appeals Court for the SixthCircuit (Idaho is in the Ninth Circuit).

SCOTUSblog's Lyle Denniston explains:

It was in that form because Idaho has not formally appealed to the Justices, while it awaits the rehearing plea it has pending at the Ninth Circuit.

Adding:

As of now, the Court has five pending cases on the same-sex marriage issue. Four are petitions challenging a ruling by the U.S. Court of Appeals for the Sixth Circuit, upholding marriage bans in four states (Michigan, Ohio, Tennessee, Kentucky). The fifth case is from Louisiana, seeking review of a federal judge’s ruling upholding a ban in that state. 

The Louisiana case is now scheduled for the Justices’ first look at the next Conference, on January 9, according to a scheduling note Wednesday on the Court’s electronic docket. That docket also indicated that the four petitions from the Sixth Circuit are being handled as a group, although they have not yet been distributed to the Justices. There is one more date on which the cases could be sent to the Justices for consideration on January 9: next Tuesday.

Otter wants the Court to wait for Idaho's appeal before deciding which cases to hear, and then add Idaho's case to the review process.

By Letting Weddings Start In Florida, The Supreme Court Just Made It Clear That Marriage Equality Is A Done Deal

On the surface, it seems like just one more piece of really good news. On Friday night, the Supreme Court refused to stop marriage equality in Florida, which means that weddings can start on Jan. 6. That’s a big deal for a lot of reasons: Florida is one of the most populous states without marriage equality, same-sex marriage is now officially in place in the South (following the Carolinas, and the inevitability of marriage equality is now stronger than ever. It’s also a thumb in the eye for Florida Attorney General Pam Bondi, the thrice-married Republican who has made a career out of blocking marriage equality (and concomitantly making incredibly dopey statements).

But the ruling goes far beyond Florida. The Supreme Court just essentially signaled that marriage equality is a settled issue.

In this case, at issue before the court was a request to put a hold on the awesome ruling by Judge Robert Hinkle that struck down Florida’s marriage ban. Usually, such requests are submitted to the Supreme Court justice responsible for the region. This time, however, the entire court considered the request for a stay. And in a telling action, only two justices–Antonin Scalia (of course) and Clarence Thomas–would have taken the request.

That means seven justices let marriage equality take effect in Florida, including two–Chief Justice John Roberts and Samuel Alito–who dissented from the Supreme Court’s Windsor ruling.

Now, it’s entirely possible that Roberts and Alito saw the request as a narrow legal issue that the Court had no reason to get involved with. But in general they’re not especially willing to place legal reasoning above political ideology. Apparently, they don’t object to marriage equality on legal principle, or at least not enough to try to stop it in its tracks. If they wanted to take a stand, this would have been the chance. Instead, they took a pass.

Which is a pretty strong signal that the majority feels that the issue is largely settled. Because there are conflicting rulings, the Court will have to weigh in on the issue at some point. They have a chance to take it up again next month, having punted earlier this fall. 

But there can be little doubt what the ultimate ruling will be, particularly after the Florida ruling. There are only 14 states remaining now that ban marriage equality (although marriage is on hold in six states due to appeals). By the time the Supreme Court finally weighs in, it will be anti-climactic.

Even Pam Bondi knows when she’s defeated. In a statement she said she won’t try to stop marriages from starting. Heaven knows, she’s started a few of her own already.

Unions Just Got A Big Legal Victory Handed To Them By… Clarence Thomas?

In writing the opinion of Integrity Staffing Solutions Inc. vs. Busk et. al, Justice Clarence Thomas clearly was not thinking about handing unions a powerful new tool for unionizing. Instead he was thinking about how it was fine for any company to restrain and employee for hours each week without any compensation. But, in his wording, he may have just struck down right-to-work laws nationwide without realizing it.

These arguments are properly presented to the employer at the bargaining table, see 29 U.S.C., 254(b)(1), not to a court in an FLSA claim.

Per this section of US Code, the issue of a workplace retaining an employee without compensation for hours each week is one which must be handled in negotiations between the employer and the employee, their agent or their collective bargaining representative. This statement, as simple as it is, has a lot of weight behind it due to the nature of the case behind it. By retaining the full text of the Fair Labor Standards Act (FLSA), combined with this decision, the entire workplace dynamic for collective bargaining just changed overnight.

The case itself involves contractors at an Amazon warehouse facility, who can take considerable time each day to go through security checkpoints in order to leave their jobs. The warehouse itself is not unionized, and Amazon is firmly against unions.

Clarence Thomas just put into a court decision that workplace issues involving compensated time must be handled in negotiations, the cornerstone of collective bargaining and unions, and not the courts. By blocking the courts, but with FLSA itself upheld This also means that companies can no longer fail to engage in negotiations, relying upon the courts to handle such matters – the Supreme Court just ordered them to the bargaining table. Tactics to block unionizing now can, and will be considered unconstitutional per this decision.

Laws like Right-To-Work, where an employee can avoid joining a union, now no longer can apply in the way intended. The Supreme Court just ordered people to the bargaining table, the Union representative, with but a few short words.

Ted Olson: SCOTUS Has Passed The 'Point Of No Return' On Gay Marriage

Former solicitor general Theodore Olson, the Republican lawyer who argued Bush v. Gore and the challenge to California’s Proposition 8, says the Supreme Court through action and inaction this month passed “the point of no return” on same-sex marriage.

“I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed,” he said in an interview. “To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.”

This month, the high court let stand without explanation appeals court rulings permitting gay marriage in five states. In an interview with The New Yorker published last week, President Obama said he believes it is a constitutional right but endorsed the court’s incremental approach.

Olson disagrees with that, saying the Supreme Court should take a case and affirmatively endorse marriage as a constitutional right. “I think the thing he overlooks …(is) that there are people in 18 states of the United States that don’t have this fundamental right that he has just announced that he believes in.”

I Have a Few Words for Justice Antonin Scalia and His Ignorance About the Separation of Church and State

I’m not really sure if there are many people walking this planet who I have such utter disdain for as I do Supreme Court Justice Antonin Scalia. He’s an arrogant blowhard who has no business on our Supreme Court. But there he’s been for nearly three decades, since Ronald Reagan appointed him in 1986.

He’s a big reason why I’ve advocated that Supreme Court Justices should have limits on how long they can sit on the bench. It’s absurd to think that a justice could be appointed and rule for several decades. Not only that, but it’s nearly impossible to remove one from their position. They’re not elected and have almost no system of checks and balances. For all intents and purposes, they’re a group of nine dictators that wield power over the United States and there’s almost nothing Americans can do about it.

Well, during Scalia’s time on the Supreme Court he’s made it pretty clear that his personal views drive his interpretation of our laws. Not our actual Constitution. He’s often ruled against cases that sought to protect civil rights, women’s rights, equality for women and minorities.

In other words, he’s nothing more than a radical right-wing conservative wearing a robe. He defines what it means when someone uses the term “activist judge.”

Take for instance his recent comments where he essentially pissed all over our First Amendment, claiming that religion should be favored over secularism.

Scalia: Marriage Cases Coming "Soon"

Via the Wall Street Journal:

A coy Supreme Court Justice Antonin Scalia fielded questions about marijuana legalization and same-sex marriage and defended the role of religion in public life during a visit to Colorado on Wednesday. After giving a speech against the concept of an evolving Constitution, Justice Scalia at the University of Colorado was asked by a high school student about Colorado becoming the first state to allow recreational-pot sales, according to the Associated Press. The justice was also asked when we’ll find out if the high court will take up the question of whether state same-sex marriage bans are constitutional. “I know when, but I’m not going to tell you,” he reportedly replied, getting a big laugh from the audience. “Soon! Soon!” he added.

During his response to the marijuana question, Scalia noted that federal laws trump state laws. Dare we hope that he keeps that in mind when it comes to marriage? Naw.

What happens if the U.S. Supreme Court rejects same-sex marriage cases?

The fastest and surest path to marriage for same-sex couples in some parts of the United States would be for the Supreme Court to surprise everyone and decline to get involved in the issue right now.

A decision by the justices to reject calls from all quarters to take up same-sex marriage would allow gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia and Wisconsin to begin getting married almost immediately. Rulings in their favor have been put on hold while the Supreme Court considers their cases.

And if the high court leaves those rulings in place, same-sex couples almost certainly would win the right to marry in six other states in short order because those states — Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming — would be bound by the same appeals court decisions.

That would bring to 30 the number of states where same-sex marriage is legal, plus the District of Columbia.

Yet almost everyone who follows the issue for a living or otherwise thinks the Supreme Court will step in and decide gay marriage cases this term. The cases were on the agenda when the justices met in private Monday to decide new cases to hear this term. The court could announce a decision as early as this week.

If the court were to reject the appeals, it would leave untouched the laws in the other 20 states that still enforce same-sex marriage bans.

“Winning in some places is better than not,” said Evan Wolfson, founder and president of Freedom to Marry. “But it still falls far short of the full protection that Americans deserve.”

Both sides in the dispute also say the justices have an obligation to settle an issue of such national importance, not abdicate that responsibility to lower court judges. Opting out of hearing the cases would leave those lower court rulings in place.

Justice Ruth Bader Ginsburg appeared to be addressing that concern when she said in July that the court would not duck the issue, as it did for years with bans on interracial marriage.

Yet more recently, at a forum in Minnesota, Ginsburg suggested the court might refrain from taking any action unless an appeals court were to uphold a same-sex marriage ban, which would create a split among appeals courts that typically triggers Supreme Court review.

Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases. Judges in the Cincinnati-based 6th Circuit who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco who are considering Idaho and Nevada restrictions on marriage.

If it doesn’t take one of the cases immediately, the court could still set them for argument in time for a decision in June 2015. It takes just four of the nine justices to vote to hear a case, but it takes a majority of at least five for an eventual ruling.

Law school dean to the Supreme Court: This love affair is over

After nearly four decades as a lawyer and 30 years teaching would-be lawyers, and after writing a leading textbook on constitutional law and helping establish a law school, and after standing before the justices five times on behalf of his clients, Erwin Chemerinsky has fallen out of love with the Supreme Court.

His break-up note runs for 342 pages and is called “The Case Against the Supreme Court.” The book makes its regretful message clear at the very beginning:

“We should realize that this is an emperor that truly has no clothes. For too long, we have treated the Court is if they are the high priests of the law, or at least as if they are the smartest and best lawyers in society.”

His conclusion? “The court has frequently failed, throughout American history, at its most important tasks, at its most important moments. This is not easy for me to conclude or to say.”

Erwin Chemerinsky, dean of U.C . Irvine's new law school, is photographed in his office at the Irvine campus on August 18, 2009. (Robert Lachman/Los Angeles Times)

In an interview, Chemerinsky, 61, an unapologetic liberal and dean of the law school at the University of California at Irvine, seems a bit surprised at himself.

“My nature is to be very optimistic and upbeat,” he says. Indeed, he has a reputation for trenchant and clear scholarship about the court. And his personal demeanor is unfailingly polite and soft-spoken; he is the kind of man who praises an interviewer’s questions.

He says there is nothing personal about his critique of the current court and that all of the justices are “incredibly talented individuals.”

But the justices could be forgiven for thinking that should be taken with a grain of salt.

Chemerinsky testified against Justice Samuel A. Alito at the justice’s confirmation hearings. He wrote last spring that Justice Ruth Bader Ginsburg should resign so that President Obama could appoint her successor. He told Justice Stephen G. Breyer he should be the next to pack up.

He criticizes Justices Antonin Scalia and Clarence Thomas in the book. He smacks Chief Justice John G. Roberts Jr. and Justice Sonia Sotomayor for comments each made at their confirmation hearings that he says perpetuates a myth that judges simply apply the law to the tough cases that come before them, rather than acknowledging their ideological differences and biases.

“Speaking of justices as umpires ignores the tremendous discretion the Supreme Court, and often the lower courts, have in deciding the cases before them,” Chemerinsky writes.

“John Roberts and Sonia Sotomayor should be ashamed of themselves for giving the American people such a misleading impression of what justices do.”

Chemerinsky says he worried from the outset that his book would be “criticized as a liberal’s whining that the Court’s decisions have not been liberal enough.”

Indeed, he says, the liberal Warren Court did not go far enough. Conservative reviewers of his book point out that he highlights the controversy of Bush v. Gore, but never analyzes the reasoning behind Roe v. Wade.

Chemerinsky reaches into history to discuss cases in which he says liberals and conservatives should agree the court did not live up to its obligation to protect individuals against discrimination and the tyranny of the majority:Dred Scott’s denial of citizenship to slaves and their descendants; Plessy v. Ferguson’s embrace of “separate but equal”; Korematsu v. United States’ approval of the internment of Japanese Americans during World War II.

He acknowledges that he moves into more controversial territory when he gets to the current court (“Is the Roberts Court Really So Bad?” is the title of one chapter.) He finds it too deferential to government and beholden to business at the expense of consumers.

Chemerinsky breezes past the cases in which liberals have prevailed on the Roberts court and dwells on what he sees as its conservative misfires.

The court, he says, always has made mistakes. He opens the book with a decision from 1927 in which the court allows the forced sterilization of “imbeciles” and concludes with a ruling four years ago in which conservatives and liberals were unanimous in dismissing a lawsuit from the family of a prisoner who died because of negligent medical care.

Liberal criticism of the court is hardly new. Chemerinsky separates himself, though, from those who question the value of judicial review. It is the only hope for the kind of clients he frequently represents, he says.

He proposes reforms instead: merit selection committees for judges, more candor in the confirmation process and — most significantly — term limits for the justices. Changing their life tenure to defined terms would require a constitutional amendment, Chemerinsky acknowledges.

He endorses a plan favored by other academicians for 18-year terms. That would allow every president an equal chance to nominate to the court and reduce the stakes of each vacancy. Chemerinsky notes that both liberals and conservatives have advocated for such a change.

“If [Texas Gov.] Rick Perry (R) and I agree, likely many others will, too,” he writes.

Chemerinsky says he had some “trepidation” about writing such a critical book and adds that he certainly is not saying the court has failed in its historic mission any more than the executive branch or Congress have failed in theirs.

He remains convinced that “the law is the most powerful tool for social change” and says he hoped his criticism will spur a conversation about the court, not undermine its credibility.

“I’m not one who believes the court’s legitimacy is fragile,” he says.

As for the justices themselves, he says, none will find his criticisms surprising, nor does he believe they will hold it against him if he happens to again find himself in front of the mahogany bench.

Besides, he says , he lost his last two cases there unanimously.

“How much worse could it get?” he asks with a laugh.

ALABAMA: Christian Group Calls For Elena Kagan & Ruth Bader Ginsburg To Recuse Themselves From Marriage Cases

Via press release: 

Kayla Moore, President of the Montgomery-based Foundation for Moral Law, today called upon U.S. Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg to recuse themselves from a case involving same-sex marriage because each of these Justices has personally performed a same-sex marriage. "Justice Kagan's actions are especially improper," Ms. Moore said, "because she performed this same-sex marriage while a case concerning same-sex marriage is pending before the Supreme Court. The State of Utah has filed a petition for writ of certiorari asking the Court to consider an appeal from a 10th Circuit decision invalidating Utah's prohibition against same-sex marriage. The Foundation for Moral Law has filed an amicus brief supporting Utah's petition. By performing same-sex marriages, Justices Kagan and Ginsburg have clearly indicated how they will vote in Utah's case."

Ginsburg stirred further concern September 16 when she told a Minnesota audience that if the Sixth Circuit rules that states may prohibit same-sex marriage, "there will be some urgency" because that would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, but if the Sixth Circuit falls in line with other rulings there will be "no need for us to rush." Ms. Moore said Justice Ginsburg's comments were improper because "they not only tip the Court's hand as to how she will vote, but they also constitute a warning to lower courts that they had better rule in favor of same-sex marriage or the Court will step in and reverse them, and the words 'no need for us to rush' imply that she was speaking not only for herself but for the rest of the court. Litigants, lawyers, and the American public can have no confidence in the Court's impartiality unless Justices Kagan and Ginsburg recuse themselves from same-sex marriage cases."

Kayla Moore, NOT incidentally, is the wife of Alabama Supreme Court Chief Justice Roy Moore, who was reelected last year after being booted from that job in 2003 for refusing to remove a Ten Commandments monument from the courthouse grounds. Kayla Moore assumed the group's presidency when its founder, her husband Roy Moore, returned to the bench. Roy Moore has posted the above press release to his Facebook page.

UPDATE: Moore is deleting your comments. Keep him busy tonight!

Brian Brown: SCOTUS Will Totally Rule Against Gay Marriage Because Louisiana

"Oh, you didn’t hear much about the Louisiana decision? No surprise. Here’s what happened. U.S. District Court Judge Martin Feldman, following extensive briefing and argument, ruled that the U.S. Constitution does not prohibit the state of Louisiana from defining marriage solely as one man and one woman, nor refusing to recognize so-called same-sex marriages performed elsewhere. He found that the state had several valid reasons for having adopted this position, which was approved by 78 percent of its voters. One reason, Feldman wrote, was to encourage children to be raised by their mother and father in an intact family. Another was to ensure that any change in such a foundational issue as marriage should only be considered via the democratic process and not be judicially imposed. [snip] We’re probably 10 months away from the Supreme Court issuing a definitive ruling on whether defining marriage in state law solely as the union of one man and one woman violates the Constitution. When that ruling comes, many people will once again be shocked that the 'inevitable' didn’t happen because they hadn't heard much about Feldman and his prescient ruling in Louisiana." 

- Hate group leader Brian Brown, writing for US News & World Report.

Ginsburg: SCOTUS Won't Take A Marriage Case Until Appeals Courts Disagree

Supreme Court Justice Ruth Bader Ginsburg today confirmed what many analysts have theorized when she said that marriage equality will likely not be heard in her court until federal appeals courts disagree on the issue. That hasn't happened yet, but Ginsburg advised a Minnesota audience to therefore keep an eye on the Sixth Circuit. Via the Associated Press:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court's timing. She said "there will be some urgency" if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. She said if the appeals panel falls in line with other rulings there is "no need for us to rush." Ginsburg didn't get into the merits of any particular case or any state's gay marriage ban, but she marveled at the "remarkable" shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. "Having people close to us who say who they are - that made the attitude change in this country," Ginsburg said at the University of Minnesota Law School.

The Sixth Circuit heard multiple marriage cases on August 4th. Most analysts concluded that the decision will be a split in either direction. As many have predicted, we'll likely have to lose at the Sixth Circuit (or elsewhere) in order to finally get back in front of SCOTUS. The Court is scheduled to consider cases from five states (where we won) on September 29th.

Justices Scalia And Thomas Might Be Impeached After Democrats Introduce Bill

Justice Roberts is adamant that the justices can police themselves, in spite of evidence to the contrary. And,

“Without buy-in from Roberts, any attempt, even by Congress, to require the justices to give themselves a written code of ethics is probably a tough sell. The new bill, if it could even pass through the full Congress (also doubtful), could set off an epic separation of powers battle between the two branches of government.”

Liberals have pushed Justice Clarence Thomas to recuse himself from hearing the health care case, since his wife protested against the legislation and raised money to contest it.

Much of the Supreme Court’s caseload comes from:

• Challenges to federal statutes or 
• Government policies that the solicitor general must defend 
• And the court frequently seeks governmental discretion regarding whether a case is ready to be reviewed.

Given that there are only nine justices, when one of them recuses him or herself the result is an “evenly divided court” that will not “create a national precedent” and will not the “lower-court ruling in place.”

Both Thomas and Scalia have been criticized for their conservative Republican affiliations. They have attended multiple Republican donors events, many sponsored by the ever- present Koch brothers. For example there was the meeting at Palm Springs of “a secretive network of Republican donors”, organized by Koch Industries “longtime underwriter of libertarian causes.”

Professor of law at Northwestern University Steven Lubet teaches Legal Ethics courses and says,

“There is nothing to prevent Supreme Court justices from hanging out with people who have political philosophies.”

But the Koch event was not just a bunch of buddies hanging out. It was a “twice a year” political meeting “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.”

And we do not know what Thomas and Scalia did for Koch. Given the Kansas brothers’ history of intense “political involvement. Legal ethicists are urging for more disclosure.”

Law professor at New York University [NYU] Stephen Gillers said,

U.S. Supreme Court Will Consider Marriage Equality In Five States

The U.S. Supreme Court will consider as many as five statewide challenges to marriage bans in its upcoming private conference, the first of its new session.

The court will decide whether to weigh in on petitions from Indiana and Wisconsin, Oklahoma, Utah, and Virginia,The Wall Street Journal reports. Meetings to decide the court's schedule begin September 29 in a private conference. After that conference, the justices will then add those cases they decide to hear to the docket for the upcoming term, which begins October 6.

Court-watchers have anticipated — even predicted — that the court would take up at least one of the cases for review in a process known as granting writ of certiorari. If the court takes on all of those cases, then ultimately rules in favor of marriage equality, more than 65 million Americans could find themselves living in states where same-sex couples would have the right to marry.

“The State of Utah and the plaintiff couples agree that it is important the Supreme Court take this case and settle the constitutional questions at stake, questions that matter so much to the families we represent and to so many others across the country,” Peggy Tomsic of the Salt Lake City law firm Magleby & Greenwood P.C. said in a statement Wednesday. Tomsic is one of the attorneys representing the same-sex couples in the Utah case.

“It is time to end the legal bans that keep committed couples from standing up and making the unique pledges of marriage to each other — pledges that would allow their families protection and security everywhere in this country,” said Mary Bonauto of Gay and Lesbian Advocates and Defenders.

In each of the cases before the Supreme Court, federal appellate courts have already decided in favor of marriage equality. As The Advocate's Matt Baume explained this week, that means if the Supreme Court upholds those rulings, the decisions would also apply to the neighboring states in that circuit.

For example, in the Fourth Circuit, the Virginia victory would apply to Maryland, North Carolina, South Carolina, and West Virginia. Maryland has had marriage equality since 2013. If the Supreme Court upholds the decision of the Tenth Circuit, striking down Utah and Oklahoma's marriage bans, those victories would apply to Colorado, Kansas, New Mexico, and Wyoming. New Mexico embraced marriage equality late last year. The remaining states in the 10th Circuit have about 8.7 million residents.

If the court rules in favor of marriage equality in all of these cases — or allows the current rulings from lower courts to stand — an additional 65 million Americans would live in states with full marriage equality. Currently, roughly 137 million people, or 44 percent of U.S. inhabitants, live in a state with marriage equality.

What If the Supreme Court Doesn't Take a Marriage Case?

Consensus from Supreme Court watchers is fairly unanimous: The justices will take up at least one marriage equality case when they return for their upcoming session. With litigation proceeding in over 30 states, and in the last month, a few contradictory rulings, it would be unthinkable for the court to avoid the issue.

But what if the unthinkable actually happened, and the Supreme Court decided not to hear any of the marriage cases before it?

It's hard to imagine, but the court could choose to deny a writ of certiorari for the petitions currently pending and anticipated over the next few months. If it did so, the impact would be immediate and huge.

The most significant effect would be the lifting of stays in states where marriage bans have been overturned. Courts had imposed those stays pending final resolution of the cases at the Supreme Court as a last resort. Without that last resort, pro-marriage equality rulings would become the law of the land in Oklahoma, Utah, Virginia, Wisconsin, and Indiana.

Those states alone would account for a massive surge in the number of Americans in marriage equality states. The population of those states adds up to a little over 27 million people.

But it wouldn't stop there. The victories in those states were at the appellate circuit level, which means the rulings would become precedent in neighboring states encompassed by the circuit as well. The pending cases in states like North Carolina and West Virginia wouldn't simply vaporize. They would still have to move through the courts and exhaust all opportunities for rehearing. But with the strong victories permanently enshrined into federal precedent, the chances of success for any antigay litigation would be slim. State officials would be likely to follow the lead set in Oregon and Pennsylvania, where officials simply stopped defending anti-gay laws after courts found them unconstitutional.

In the Fourth Circuit, the Virginia victory would apply to Maryland, North Carolina, South Carolina, and West Virginia. Maryland has had marriage equality since 2013, but the residents of those other states — more than 16 million people — would gain the freedom to marry.

In the Tenth Circuit, the Utah and Oklahoma victories would apply to Colorado, Kansas, New Mexico, and Wyoming. New Mexico has also had marriage since 2013. The remaining states have about 8.7 million inhabitants.

Those two circuits would account for approximately 52 million people living in states that could newly embrace the freedom to marry.

What's more, the Ninth Circuit is preparing to rule on marriage equality as well. Oral arguments, heard Monday, went well for the legal team from Lambda Legal and the National Center for Lesbian Rights, so a favorable ruling could be forthcoming.

If the Ninth Circuit ruled in favor of marriage equality, and if the Supreme Court declined a petition for certiorari, then that victory would cover Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Several of those states already have marriage equality, but the ones that don't account for 12.6 million residents.

In that situation, it's hard to predict how quickly the cases would be resolved. Courts might wish to rule swifly, so that the urgent matter could be settled. But parties could prolong the litigation by trying to petition the Supreme Court in different states.

But with all of those states combined, in the next few months, the Supreme Court could, in effect, legalize same-sex marriage for about 65 million Americans. 

Currently, roughly 137 million people, or 44 percent of U.S. inhabitants, live in a state with marriage equality. Should the Supreme Court deny cert to cases in the Fourth, Ninth, and Tenth Circuits, the proportion of Americans living in a state with marriage equality would increase to about 64 percent.

Of course, it's very unlikely that the Supreme Court would simply deny the marriage petitions out of hand. It's more likely that the justices would hold on to the petitions for a while before deciding which one — or ones — to take.

The first opportunity for them to make that decision is rapidly approaching: September 29 marks the court's first conference of the new session.

Corporations To SCOTUS: Uneven Marriage Laws Are Burdening Our Business

Thirty major corporations have filed an amicus brief asking the Supreme Court to hear AFER's challenge of Virginia's same-sex marriage ban. On the list: Amazon, CBS, Deutsche Bank, eBay, Intel, General Electric, Levi Strauss, Nike, Oracle, Pfizer, Staples, Target, and Viacom. In general, the brief argues that the nation's uneven patchwork of marriage laws places an undue burden on corporations. An excerpt:

Amici include technology, materials, financial services, pharmaceutical, apparel, and entertainment companies; hoteliers and restaurateurs, service providers, consultants, and designers. Amici all share a desire to attract and retain a talented workforce. We are located or operate in states across the country, some of which recognize marriages of those of our employees whose spouses are of the same sex, and others that prohibit marriages between same-sex couples and refuse to recognize existing same-sex marriages. This dual and continuously shifting regime uniquely burdens amici. This legal uncertainty exposes us, as employers, to unnecessary cost, risk, and administrative complexity. In addition, this irresolution hampers our efforts to recruit and retain the most talented workforce possible, placing us at a competitive disadvantage. Our success depends upon the welfare and morale of all employees, without distinction. The burden imposed by inconsistent state laws of having to administer complicated schemes to account for differential treatment of similarly situated employees creates unnecessary confusion, tension, and ultimately, diminished employee morale.

List of the companies:

Gay marriage: Which case will the Supreme Court choose?

It's getting so you can't tell the potential Supreme Court cases on same-sex marriage without a scorecard.

When the justices sit down for their first fall conference Sept. 29, they will consider the initial requests from states to review decisions striking down gay-marriage bans. Unless they quickly agree to hear one or more cases, those petitions won't be the last.

Lawyers on both sides predict the justices will act soon to decide the issue by next June. That makes it likely they will choose from among the three cases pending. Some of the nation's premier Supreme Court advocates, sensing history in the making, have signed on to represent gay couples or state officials.

"The issue is moving so fast," says John Bursch, a former Michigan solicitor general defending Utah's gay-marriage ban. "People want an answer soon, and I think the court is going to want to give it to them."

Here's the betting line:

UTAH: As the first case decided by a federal district judge and an appeals court panel after the Supreme Court's rulings in June 2013 in favor of gay marriage, Herbert v. Kitchen is the front-runner.

Arguments for: State officials back the ban, guaranteeing a vigorous defense. Former acting U.S. solicitor general Neal Katyal, who has argued 21 cases before the court, has joined the gay couples' legal team, along with Mary Bonauto, who won the nation's first same-sex marriage lawsuit in Massachusetts in 2003.

More than 1,000 couples got married before the district court decision was stayed by the Supreme Court in January, leaving them in a marital limbo that the justices might feel compelled to resolve, having created it themselves.

Among the plaintiffs are couples who want to marry; who were married before the district court ruling was blocked; and who want their Iowa marriage recognized in Utah. That covers all the bases. "This court's resolution of the question presented can mark the end of marriage litigation in all respects," the state's brief says.

Arguments against: There are few, leading most prognosticators to predict Utah's will be one of the cases chosen, if not the only one. "We're not trying to bump out anyone else," Katyal says.

OKLAHOMA: The state has played second fiddle to Utah since January. District and appeals court rulings against the state's gay-marriage ban came a month later; the Supreme Court petition was filed a day later.

Arguments for: The state's gay-marriage ban is particularly stringent; it's a crime to issue a marriage license, and no one has tied the knot. The case, Smith v. Bishop, is being pursued by the court clerk for Tulsa County — someone who actually issues marriage licenses. Stanford Law School professor Jeffrey Fisher, a veteran of 23 high court cases, is arguing for same-sex marriage rights.

Arguments against: The case has had procedural problems on its way to the Supreme Court and is left with only one couple as plaintiffs; the issue of recognizing marriages performed in other states isn't included. It dates back to 2004, a 10-year history the high court might want to avoid. And it comes from the same 10th Circuit as Utah, which could work against Oklahoma if the justices choose more than one case.

VIRGINIA: Same-sex marriage cases in the Old Dominion are unique, giving the justices clear reasons to prefer or reject them.

Arguments for: This is the state of Loving v. Virginia, the 1967 case that struck down state bans on interracial marriage. Its gay-marriage ban is one of the toughest, prohibiting civil unions and blocking the state from recognizing marriages performed elsewhere.

Former U.S. solicitor general Theodore Olson and David Boies, the conservative-liberal tag team that represented California's same-sex couples at the Supreme Court last year, are back for another try. Olson has argued 60 cases at the high court.

The case decided by district and appeals courts, Rainey v. Bostic, includes the lesbian parents of a teenager, which presents the issue of how gay couples' children are treated. The case has been joined with a separate class-action lawsuit filed on behalf of all Virginia's gay couples.

"It would be the kind of case that would resolve a number of outstanding legal issues," state Attorney General Mark Herring says.

Arguments against: Herring, a Democrat elected last November, refused to defend the ban and has argued against it. That's what California officials did in last year's Supreme Court case on Proposition 8; the justices ultimately ruled that those defending the gay-marriage ban lacked standing. In Virginia, it leaves the task to two court clerks represented by private lawyers, including the conservative Alliance Defending Freedom.

"I don't think you want constitutional law being made by default," says John Eastman, a law professor at Chapman University and chairman of the National Organization for Marriage.

OTHER STATES: Six cases from Ohio, Michigan, Kentucky and Tennessee were consolidated at the 6th Circuit Court of Appeals this month, and a ruling could come before the Supreme Court convenes this fall. Cases from Indiana and Wisconsin were heard at the 7th Circuit on Tuesday. Appeals from Idaho and Nevada are scheduled before the 9th Circuit early next month. Still more cases are in the pipeline, including from Texas; the 5th Circuit would be most likely to rule against gay marriage and create a split among appeals courts.

Arguments for: The justices might want to hear and benefit from additional appeals courts. That could include important opinions by Judges Jeffrey Sutton in the 6th Circuit and Richard Posner in the 7th, where a three-judge panel appears headed toward the first unanimous judgment against state bans.

Arguments against: Even if the justices don't wait for more rulings before scheduling a case, they are certain to get the benefit of them before they rule. Waiting to choose a case for Supreme Court review would leave states and same-sex couples in limbo — possibly until the 2015 term.

MULTIPLE CASES: When an issue is of paramount importance, the court frequently grants more than one case. The leading example: Brown v. Board of Education (1954), which combined cases from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. This year, the court heard two cases on the new health care law's "contraception mandate" and two on cellphone privacy.

Arguments for: More cases offer more plaintiffs to consider, more arguments to present and more advocates at the lectern. "Given all of these permutations, this may be a situation in which a belt-and-suspenders approach – that is, granting multiple cases – is the most prudent course," says the Oklahoma couple's brief seeking Supreme Court review.

Arguments against: Simplicity. The court doesn't always believe more is better. Faced with multiple choices challenging the federal Defense of Marriage Act, it chose Edie Windsor's case in New York and no other — then issued a landmark decision that forced the government to recognize same-sex marriages.

NONE OF THE ABOVE: If the federal circuit courts continue to rule in favor of same-sex marriage, the justices could just sit on their hands and let groups of states go that way gradually.

Arguments for: Why impose a verdict from on high? All states in the 1st and 2nd Circuits already allow gay marriage. Lifting the stays in the 4th and 10th Circuits would continue the trend.

Arguments against: It could take years before all 11 circuits have acted, and they might not go the same way. The country would be divided, leaving some gay couples without the rights and benefits enjoyed by others. And the issue of same-sex marriage would lack the imprimatur of the Supreme Court — whichever way it rules.

VIRGINIA: State AG Mark Herring To Ask SCOTUS To Review Fourth Circuit Ruling

Last week the Alliance Defending Freedom announced that they will file an appeal with the US Supreme Court over the Fourth Circuit Court's overturn of Virginia's same-sex marriage ban. Their appeal will be filed on behalf of the Prince William County clerk. Today Democratic Virginia state Attorney General Mark Herring announced that he will also ask SCOTUS to review the Fourth Circuit's decision.

Herring’s office said it planned to make its filing seeking a Supreme Court review on Friday. “I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard,” Herring said in a statement. On Monday, the plaintiffs in the case challenging Virginia’s same-sex marriage ban said they wanted a federal appeals court to allow gay marriages to occur before the U.S. Supreme Court can rule on the issue. “The right to marry is fundamental, and thus Virginia’s marriage prohibition irreparably harms plaintiffs-appellees — and all gay men and lesbians in the commonwealth — each day that it remains in force,” attorneys for two gay couples challenging the law wrote in a Monday court filing.

Read Herring's full press release.

Ruth Bader Ginsburg: Supreme Court Will Take A Gay Marriage Case – Suggests Decision Date

Ruth Bader Ginsburg says the Supreme Court will not "duck" same-sex marriage. The 81-year old Associate Justice (all Supreme Court Justices are technically Associate Justices, except for the Chief Justice) told the AP today that she expects the Court to take a case and decide it no later than June of 2016, or possibly earlier. She did not specify which case, although it's assumed it will be one (or several, possibly) of the many dozen making their way through the nation's court system now.

The AP reports that Ginsburg "said attitudes have changed swiftly in favor of the right of same-sex couples to marry."

In August of last year, Ginsburg became the first sitting Supreme Court justice to officiate at a same-sex wedding. She married Michael M. Kaiser and John Roberts (no relation to the Chief Justice) in Washington, D.C. 

“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 told the Washington Post at the time.

In October of last year, retired Justice Sandra Day O'Connor also officiated at a same-sex wedding. She married a couple together for 36 years, Jeffrey Trammell and Stuart Serkin.

Jean Podrasky, an LGBT activist, the cousin of Chief Justice John Roberts, and an occasional contributor to The New Civil Rights Movement, last year on these pages wrote of Ginsburg's siding with the majority to "toss out" the Prop 8 case on standing, allowing the lower court's ruling to stand.

"I truly believe that Justice Ruth Bader Ginsburg knew exactly what she was doing by siding with throwing the case out on standing," Podrasky wrote. "I think her idea was for us to slowly win over public approval before making same-sex marriage legal nationwide, to allow us to win state by state through the legislative process or the ballot box, and later to have the Supreme Court rule on this again in a couple of years."

Those "couple of years" seem to be coming up quickly.