constitutional law

SCOTUSBlog's Lyle Denniston reports on the details of the Ninth Circuit's ruling that ended bans on same-sex marriage in Idaho and Nevada and will likely control the fate of the bans in Alaska, Arizona, and Montana: "First, all three judges on the panel joined in an opinion by Circuit Judge Stephen Reinhardt finding that the Idaho and Nevada bans violate the constitutional guarantee of same-sex couples to be treated the same legally as opposite-sex couples.  Second, Judge Reinhardt issued a separate opinion, for himself only, saying he would also strike down those bans under the Constitution’s Due Process Clause, arguing that the right to marry is a fundamental guarantee and that gays and lesbians have a right to share in that right. Third, Circuit Judge Marsha S. Berzon, in a separate opinion only for herself, said she would have also struck down the bans on the premise that they discriminate on the basis of gender."

 

Robert Barnes, writing in the Washington Post, says the possibility of a landmark ruling for same-sex marriage and LGBT rights is looming large over the Supreme Court's upcoming term. A ruling in favor of same-sex marriage "could serve as a surprising legacy of an otherwise increasingly conservative court," Barnes notes. Justice Anthony M. Kennedy, who has authored the most important decisions in protecting the rights of LGBT Americans, likely would be the swing vote in that decision.

Barnes also notes that the court could take up challenges to state laws restricting access to abortion and challenges to the federal subsidies for consumers who bought health insurance on federally run Affordable Care Act exchanges.

The U.S. Supreme Court will be meeting in conference Monday to consider whether to take up the issue of same-sex marriage, writes U.S. News and World Report's Tierney Sneed: "The petitions come from four separate decisions out of three different U.S. Courts of Appeal on cases emanating from five different states."

Garrett Epps, a constitutional law professor, said the Supreme Court isn't likely to take up the issue until a circuit court of appeals upholds a ban on same-sex marriage, leading to a split among intermediate federal appellate courts.

Also at issue is whether bans should be rejected on equal protection or due process grounds: "Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination."

The Missouri Supreme Court has struck down a $500,000 cap against some punitive damages, the Kansas City Star's Mark Morris reports. The court ruled in the case of a $1 million verdict awarded to a woman defrauded by a car dealer: "The Supreme Court restored the judgment because [the plaintiff] had filed her claim as a common law fraud, which has existed in Missouri since the first state constitution was written. Because of that, the legislature cannot limit a jury’s ability to set punitive damage amounts, the court ruled in a unanimous decision," Morris further reports. The cap remains in place for causes of action created by the legislature but not for those developed through the common law before the 1820 adoption of Missouri's first constitution.

SCOTUSBlog's Lyle Denniston reports that the Supreme Court will look at the same-sex marriage cases in which governmental officials are seeking to have their bans on same-sex nuptials restored. The court will have a conference on the cases September 29, Denniston reports: "Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both." Some of the cases also asks the justices to specify a standard for scrutinizing the constitutionality of laws that implicate LGBT rights, Denniston adds.

According to Food Safety News, U.S. District Court Judge B. Lynn Winmill has allowed parts of a challenge to Idaho's ag-gag law to proceed, including a claim that it violates the First Amendment: "'Laws that restrict more protected speech than necessary violate the First Amendment,' Winmill wrote. 'Because this question of whether section 18-7042 burdens more speech that necessary remains unanswered, the court will not dismiss (Animal Legal Defense Fund’s) First Amendment claim.'"

The Seventh Circuit ruled today that Indiana's and Wisconsin's bans on same-sex marriage are unconstitutional, the Associated Press reports. Judge Richard Posner, writing for the court, opined that “'the challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously,'” the Wisconsin Gazette reports.

Yesterday, U.S. District Judge Martin Feldman, who sits in Louisiana, became the first judge to rule that a state-level ban on same-sex marriage was constitutional, the AP also reports. According to the news wire, Feldman opined that "gay marriage supporters failed to prove that the ban violates equal protection or due process provisions of the Constitution. He also rejected an argument that the ban violated the First Amendment by effectively forcing legally married gay couples to state that they are single on Louisiana income tax returns. Furthermore, states have the right to define the institution of marriage, Feldman wrote."

Earlier this month, a Tennessee state-court judge likely became the first in the country to uphold a state's ban on same-sex marriage since the U.S. Supreme Court struck down the federal Defense of Marriage Act as unconstitutional, according to Daily Kos. The ruling came in the case of a same-sex couple who got married in Iowa and seek to get divorced in Tennessee. The judge opined that the definition of marriage '“should be the prerogative of each state. That neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens.”'

Florida's ban on same-sex marriage was struck down today by Florida Circuit Judge Luis M. Garcia, the Associated Press reports. Garcia characterized the issue as one of equal protection for a powerless minority: "'Whether it is ... when Nazi supremacists won the right to march in Skokie, Illinois, a predominantly Jewish neighborhood; or when a black woman wanted to marry a white man in Virginia; or when black children wanted to go to an all-white school, the Constitution guarantees and protects ALL of its citizens from government interference with those rights."

Florida's ban prohibited both same-sex marriages and domestic partnerships, the AP reports.

 

After a Colorado state judge ruled that the state's same-sex marriage ban is "hanging on by a thread," at least three counties have been issuing marriage licenses to same-sex couples, the Associated Press reports.

In one decision, Adams District Judge C. Scott Crabtree ruled Wednesday that the ban violates the U.S. Constitution's equal protection clause and the arguments in support of the ban about protecting family and promoting the procreation of children are just a "'pretext for discriminating against same-sex marriages,'" Fox 31 out of Denver reports. Some counties were already issues licenses after the 10th U.S. Circuit Court of Appeals threw out Utah's ban on same-sex marriage, Fox 31 also reports.

In another decision, Boulder District Judge Andrew Hartman allowed the Boulder County Clerk to continue issuing marriage licenses to same-sex couples, The Daily Caller reports. Hartman opined that that the ban is "'hanging on by a thread and the court must presume that it remains valid.'"