Law Links: Supreme Court will Consider Gay Marriage Cases Next Year

The Supreme Court has announced that it will consider two cases involving Gay Marriage to be argued in March and decided in the summer of 2013.

CBS News:

The Defense of Marriage Act (DOMA), passed by Congress and signed by President Clinton in 1996, prohibits federal recognition of same-sex marriages. Both the First and Second Circuit Court of appeals have struck down a provision of the law denying federal benefits, like Social Security benefits or the ability to file joint tax returns, to same-sex couples legally married. Because of these lower court rulings, DOMA has been declared unconstitutional in some regions of the country but not others -- an issue the Supreme Court now has a chance to rectify by reviewing the Second Circuit decision.

The court will also consider California's Proposition 8, the ballot initiative banning same-sex marriage that voters passed in 2008. Prop. 8 passed after the California Supreme Court granted same-sex couples the right to marry, putting California voters in the unique position of taking away rights granted by the court. After Prop. 8 passed, a federal court followed by the Ninth Circuit Court of Appeals said Prop. 8 was unconstitutional.

The high court is expected to hear arguments in both cases in March and issue rulings over the summer.

From USA Today:

"It's been our belief all along that the ultimate fate of Proposition 8 will be in the hands of the Supreme Court," said Andrew Pugno, general counsel for the advocacy group ProtectMarriage, which sought the high court's intervention.

"I fully believe that this court's going to come down on the side of freedom and equality," said Chad Griffin, president of the Human Rights Campaign, which fights for gay, lesbian, bisexual and transgender rights.

. . . Even if the court sides with gays and lesbians, opponents of same-sex marriage say it won't end the debate.

"The majority of Americans who have voted to protect marriage as the unity of a man and a woman are never going to go away," said Brian Brown, president of the National Organization for Marriage. A Supreme Court ruling in favor of same-sex marriage, he said, "would launch a national culture war."

From Reuters

Meeting in private on Friday at their last weekly conference before the court's holiday recess, the justices considered requests to review seven cases dealing with same-sex relationships. Five of them were challenges to the federal marriage law, one to California's gay marriage ban and another to an Arizona law against domestic partner benefits.

The court had been widely expected to take up at least one of the challenges to the federal marriage law, given that two federal appeals courts had found the law unconstitutional. Less clear was what the court would do with the California gay marriage ban.

"Taking both a states' rights case like Prop 8, and a case involving Congress's authority in the DOMA ... suggests that the court is ready to take on the entire issue, not just piecemeal it," said Andrew Pugno, a lawyer for the individuals defending California's gay marriage ban.

The Blog of Legal Times

"I had thought the Court would take it in stages instead of doing DOMA and Perry at the same time," said Paul Smith of Jenner & Block, who had assisted in another DOMA challenge pending before the justices. On the DOMA grant of review, he added, "The arguments are pretty much the same in all the cases. It makes sense in some ways to have a decision below from the court of appeal."

Professor Douglas NeJaime of Loyola Law School, Los Angeles called the combination of grants in Perry and Windsor "really interesting" and added, "It's really hard to know exactly what the justices are thinking. Windsor is the DOMA case that presents the heightened scrutiny question and it was raised in Perry but the Ninth Circuit didn’t go there. The justices could be interested in saying its time to say sexual orientation classifications merit heightened scrutiny."

On the other hand, NeJaime said, "They could be prepared to split the difference and say a federal law like DOMA that denies recognition to valid state law marriages is unconstitutional, but not be prepared to find that states can't prohibit marriage themselves."

A third possibility, according to NeJaime, is that the justices will find both Prop 8 and DOMA Section 3 unconstitutional under the Constitution's lowest scrutiny—rational basis review.

Law Links ~ SCOTUS: Filming the Cops, Gay Marriage, Facebook Copyright, Jindal and School Vouchers

I'm starting a new weekly feature called "Law Links" to alert readers to legal actions here and around the world. This has always been an interest of mine, and even more-so now that my daughter is a new attorney who just passed the Bar Exam and is in court every day.

SCOTUSBlog Gears Up for Supreme Court Rulings Next Week

Editor's Note: On Tuesday, December 4, we expect one or more opinions at 10 a.m. We will be live blogging.
On Friday, the Court has granted two new cases, Mutual Pharmaceutical Co. v. Bartlett (12-142) and Association for Molecular Pathology v. Myriad Genetics, Inc. (12-398 ). The Court did not act on the same-sex marriage cases. Additional orders are expected Monday at 9:30.

Bloomberg: A Free Market Fix for the Copyright Racket

Even as digital technology has made reproducing, remixing and repurposing creative works easier -- with potentially enormous benefits for consumers and producers of new works -- the monopoly privileges of copyright have expanded. The result is a bizarre combination of rampant copyright violations, frequent encroachment on legitimate fair use, suppression of new technologies and business models, and the ever-present threat of draconian penalties.

Ars Technica: Supreme Court Backs 7th Circuit Over Filming Police

The United States Supreme Court rejected a request from a Chicago-area prosecutor to review a recent ruling that the First Amendment protects a right to record the actions of police officers as they perform their public duties.
. . . The Supreme Court's decision to let the Seventh Circuit's ruling stand is a victory for the American Civil Liberties Union of Illinois, which spearheaded the case. The ACLU's chapter in Massachusetts also had success vindicating a First Amendment right to record the actions of public officials. The First Circuit Court of Appeals ruled police violated the rights of a Boston man when they arrested him for using his cell phone to record the arrest of a suspect. In March, the city agreed to pay $170,000 to settle his civil rights lawsuit.

Louisiana Judge Rules Against Bobby Jindal's School Voucher Program

The Associated Press said that (Judge) Kelley’s 39-page ruling concluded that the voucher program violates provisions in the state constitution regarding the Minimum Foundation Program, or MFP, which determines how public schools are funded. “The MFP … was never meant to be diverted to private educational providers,” Kelley’s ruling said.
What Jindal’s team has been doing is implementing a voucher program, potentially the country’s largest, as a result of a new law that in part allows the state to offer vouchers to more than half of its students, or some 450,000 students. About 10,000 have applied, with most of the slots given to Christian schools, some of which didn’t really have the resources to handle the influx. They also use curriculum that promotes Young Earth Creationism, the belief that Earth is no older than 10,000 years old — and that human beings lived alongside dinosaurs — despite definitive scientific consensus that it is billions of years old.

Wired: Magical Copyright Hoax Debunked by Facebook

A silly copyright notice is sweeping Facebook . . . with users attaching pseudo-legalese to their status updates in a misguided effort to prevent Facebook from owning or commercially exploiting their content. The notice incorrectly implies that Facebook has recently changed the copyright provisions of its user agreement. It then unnecessarily asserts a user’s copyright over his Facebook posts (you retain such copyright without posting a notice) and cites the “Berner Convention,” an irrelevant international treaty properly spelled “Berne Convention.” The notice then instructs Facebook to get written permission to make commercial use of the user’s content, which is pointless as Facebook users agree to let the social network make money off their posts when they sign up for the service.
Popular hoax-debunking site Snopes addressed this copyright notice in the spring and updated their refutation today. Also, Facebook has taken the further step of putting out a statement of its own:

There is a rumor circulating that Facebook is making a change related to ownership of users’ information or the content they post to the site. This is false. Anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. They control how that content and information is shared. That is our policy, and it always has been.

Court in Ohio Restores Early Voting

This is great news for the Obama Administration, who filed the lawsuit against Ohio and Secretary of State Jon Husted. Judge Peter Economus ruled that the state had no good reason for closing the polls that last weekend before the election. Yay!

Interesting side-note about Judge Economus:

Judge Economus and his father, who immigrated to America in 1916, were featured in a segment of "Gasoline Alley," a nationally syndicated comic strip. The theme of the comic emphasized the spirit of America and the naturalization process that we all hold dear. Judge Economus and his wife, Marie, have three daughters and three granddaughters.

How nice that he is playing a role in making the vote more accessible, too!

Reuters Story

Ohio, a prized swing state in the November6 presidential election between Obama and Republican Mitt Romney, allows voting in person to begin on October 2. But the state cut off early balloting on the Friday before Election Day, except for members of the military, saying that would prevent fraud and give election boards time to prepare for voting.

In granting a preliminary injunction, U.S. District Judge Peter Economus wrote that lawyers for Ohio's Republican Secretary of State Jon Husted failed to "articulate a precise compelling interest" in establishing a Friday deadline for non-military voters.

"On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day -- a right previously conferred to all voters by the state -- outweighs the state's interest in setting a 6 p.m. deadline," Economus wrote.

Ohio Attorney General Mike DeWine said in a statement that he would appeal the ruling.

My previous posts about Ohio's voter suppression:

Ohio's Secretary Husted Fires Democratic Officials
True the Vote Poll Watchers are Dangerous Vigilantes
State Senator Nina Turner D-Ohio On Fire Over Voter Suppression
Ohio's Racist Voting Agenda on Display

Ohio's Secretary Husted Fires Democratic Officials

Earlier today, I wrote about Jon Husted and his connections to Tea Party group "True the Vote":
True the Vote Poll Watchers are Dangerous Vigilantes

And now comes the news that Husted has decided to fire the two Democratic officials from Montgomery County who stood up to him and extended early voting on the weekends.

But Husted has lots of other irons in the fire to contend with, and we can only hope some legal action eventually will stop this one-man-band who is misusing his power as Secretary of State.

From the Toledo Blade

— A new federal court ruling preventing the state from enforcing a law that disqualifies provisional ballots, the ballots of last resort, when a voter shows up at the right multi-precinct polling place but casts his vote at the wrong precinct table due to poll worker error. Mr. Husted is expected to appeal the decision.

—A pending decision in a lawsuit filed by President Obama’s re-election campaign seeking to reopen the final days before the election to early in-person voting by all voters, not just military members and their families. That three-day window was closed under a law passed last year.

—A lawsuit filed last week by backers of a voter referendum on a GOP-enacted state elections law overhaul that Republicans have since repealed. The suit seeks to force the referendum on the Nov. 6 ballot and to kill Mr. Husted’s early voting directive in the meantime as an illegal reenactment of a portion of that now defunct law.

Unfortunately, conservatives think he isn't doing enough, and are demanding he purge the voter rolls so even more suppression can happen. I bet he goes along with this one - just a hunch.

— The promise of a new lawsuit by a group calling itself Judicial Watch to force Mr. Husted to purge voter registration rolls to reflect what it characterizes as discrepancies with U.S. Postal Service records. It has already filed similar suits in other states.

Sign the Petition asking Husted to Reinstate Early Voting Hours in Ohio

The Voting Nightmare in Pennsylvania

This story keeps getting worse. I'm losing sleep over it because the whole thing is diabolical and shouldn't be happening in the United States.

The Voter ID Law was upheld yesterday by a Republican judge who saw no harm in disenfranchising hundreds of thousands of voters. The next thing to do is appeal to the Pennsylvania Supreme Court which is deadlocked 3-3, Dem against Republicans. Time is of the essence, but there just seems to be no answer.

CNN Political Ticker Report:

Commonwealth Court of Pennsylvania Judge Robert Simpson issued an order on Wednesday saying there was no constitutional reason to stop the law from taking effect. In his opinion, however, he wrote that he had "sympathy" for the witnesses.

The coalition, however, seeks to appeal the law in the State Supreme Court, requesting that the court hear the case on an expedited basis because the election is less than three months away.

The ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia, the Advancement Project and the law firm of Arnold & Porter filed the appeal jointly.

"The fight in this case could go on after the election. Judge Simpson's ruling was on the request for a preliminary injunction. There could still be a hearing for a final injunction," said the ACLU of Pennsylvania in a statement.

On the same day as that ruling - no coincide - the State of Penn decided to drop a plan to allow online absentee voter registration.

Talking Points Memo

A spokesman for the Department of State said county elections officials told the agency that implementing the new online initiatives as well as voter ID requirements was too much to handle less than three months before the election.

*sigh* I've lived half a century and I just can't believe this is happening in every presidential election.

"You Better Stop, Hey, What's that Sound?
Everybody Look What's Going Down."

Pennsylvania Voter ID Law Upheld

I'm sad about this . . .

Philadelphia Inquirer Story

Even before Commonwealth Court Judge Robert E. Simpson Jr. released his decision, lawyers on both sides of the case had pledged to appeal the ruling.

A petition to the Pennsylvania Supreme Court is expected within days, if not hours. More legal briefs and courtroom arguments are expected. Others have been eyeing a parallel challenge in federal court.

Simpson denied a request for a preliminary injunction blocking the state from implementing the law, which requires voters to show state-issued identification before casting ballots.

Opponents complained the new law will unfairly bar as many as 1 million Pennsylvanians from the polls. Supporters say it was necessary to cut down on election fraud.

From Think Progress:

Voting rights advocates plan to appeal the case to the Pennsylvania Supreme Court, which will likely issue its own ruling before the November election. There is currently an even 3-3 split between Democrats and Republicans on the Court; the 7th Justice, Republican Joan Orie Melvin, is under suspension because of an unrelated corruption scandal.

Since Simpson ruled to uphold the law, Democrats will need one crossover vote to win a majority and strike down the law. Chief Justice Ronald Castille, a moderate Republican from Philadelphia, is most likely to side with the Democrats.

The federal Justice Department is also looking into whether Pennsylvania’s voter ID complies with federal law.

Immigration Ruling "Big Win" for Obama, Scalia & AZ - Not So Much

Editor Tom Goldstein of the SCOTUS Blog calls the Immigration Ruling a "Big Win" for Obama Administration in discussion with Andrea Mitchell on MSNBC.

I think the Administration has to be very happy with the decision in the Arizona immigration case. They clearly won with respect to three of the four provisions of the very tough Arizona immigration law and it was basically a tie on the fourth. They didn't lose. The Supreme Court saying that on the ask for your papers provision, they didn't know enough about how the statute would be applied to know whether it was constitutional or not and they would have to wait to decide that question. They made pretty clear that you could ask for immigration papers if you had a reasonable cause if you weren't going to hold people for too long just to check their immigration status. So it does uphold that principle which is very important to a lot of Conservatives who favor the law that you can ask about the status but beyond that, it was a big win for the Obama Administration.

Visit msnbc.com for breaking news, world news, and news about the economy

Wall Street Journal Law Blog also has a great interview with Professor Peter Spiro of Temple University,an expert on immigration law, talking about the Arizona Immigration Law Ruling:

Hi, Peter. Thanks for taking the time. After reading over the opinion, what’s your immediate takeaway?

Well, it’s a split decision in that both sides got a bit of what they wanted. But in my view, it’s really only nominally a split decision. I think it’s mostly a victory for opponents of the law.

...*snip*...

Remind us again what 2(B) enabled the federal government to do, if you would.

Sure. That portion allows state authorities to ask someone to show his or her immigration papers if the officer has a reasonable suspicion that the person might be here illegally.

But 2(B) really doesn’t have any teeth, at least not in the way other provisions of the law do. 2(B) allows state officials to call [the U.S. Immigration and Customs Enforcement agency] and say ‘hey, we think someone’s here illegally.’ But ICE doesn’t necessarily have to do anything in response to the state’s call.

And that’s part of why I really think this is mostly a win for the law’s opponents. Two of the three provisions that were struck down outright did have teeth — they allowed the state to put an alien in jail.

And 2(B) could be struck down later?

Right. The court ruled on the facial challenge to the law. But it’s kicking back to the lower courts the issue of whether the law is constitutional in the ways in which it gets applied. For now, we’ll have to allow those to work their way through the court system

...*snip*...

Justice Antonin Scalia, one of three dissenting justices, read a fairly scathing statement from the bench. What did you make of this?

It struck me as so much crying in the wilderness, to be honest. His view is pretty jurisprudentially extreme, and I think it could likely be the last time that Scalia gets to weigh on in immigration issues during his court tenure.

But I think a broad takeaway here is that on a court divided such as this one is, it’s Justice Kennedy who calls the shots.

The Supremes Rule on Immigration, Juvenile Parole, and Montana Corporations

Wow - news is still coming in after an intense morning.
You can read my collection of Pre-Ruling Tweets at Snark Amendment

No Health Care Ruling today ~ we must wait till Thursday. *sigh*

Today they ruled on three things:

1. Juveniles cannot be given life in prison without parole. Good all around.

2. The Court refused to hear an appeal from the State of Montana about corporations buying elections, therefore they upheld their previous Citizen's United decision. That's good for Mitt Romney, because as he says "corporations are people, my friends." But the decision will only get the Democratic base more fired up.

3. The biggest deal today - they threw out most of Arizona's state immigration law, except for the right to check someone's papers under "reasonable suspicion." Sheriff Joe Arpaio will be so happy about that, but it's also a win for the Obama Administration because Arizona lost everything else.

Angry scalia dissent to kennedy opinion on az sb 1070. Scalia makes harsh attack on obama dream act order at #scotus.
— Jeffrey Toobin (@JeffreyToobin) June 25, 2012

Read Scalia's Dissenting Opinion on Arizona Here (PDF)

Washington Post Story:

The Supreme Court on Monday rejected much of Arizona’s controversial immigration law, but upheld other provisions, giving a partial victory to the Obama administration.
The court ruled that Arizona cannot make it a misdemeanor for immigrants to fail to carry identification that says whether they are in the United States legally; cannot make it a crime for undocumented immigrations to apply for a job; and cannot arrest someone based solely on the suspicion that the person is in this country illegally.
However, the court let stand the part of the law that requires police to check the immigration status of anyone they detain, if there is “reasonable suspicion” that the person is unlawfully in the United States. Even there, though, the justices said the provision could be subject to additional legal challenges.

CNN ~ Court to Arizona: You Went Too Far

"The national government has significant power to regulate immigration," Justice Anthony Kennedy wrote in the majority opinion, adding that "Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermined federal law."
Provisions struck down included:
-- Authorizing police to arrest immigrants without warrant where "probable cause" exists that they committed any public offense making them removable from the country.
-- Making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government identification.
-- Forbidding those not authorized for employment in the United States to apply, solicit or perform work. That would include immigrants standing in a parking lot who "gesture or nod" their willingness to be employed.
Justice Antonin Scalia, writing for the minority, argued the court's ruling encroached on Arizona's sovereign powers.
"If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state," Scalia wrote in the dissent backed by Justices Samuel Alito and Clarence Thomas.

About the Montana ruling, Via UPI:

The challengers to the Montana law, a small group of non-profits and corporations, told the U.S. Supreme Court in their petition that the riot of independent spending following Citizens United is irrelevant.
The Supreme Court majority said there was little difference between the struck-down federal law and the Montana law.
"In Citizens United vs. Federal Election Commission, this court struck down a similar federal law, holding that 'political speech does not lose First Amendment protection simply because its source is a corporation ...,'" the Supreme Court majority said in a per curiam, or unsigned, opinion, Monday. "The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does."
Justice Stephen Breyer, joined by the court's three other liberals, dissented.

No More Juveniles Serving Life Without Parole

The high court on Monday threw out Americans' ability to send children to prison for the rest of their lives with no chance of ever getting out. The 5-4 decision is in line with others the court has made, including ruling out the death penalty for juveniles and life without parole for young people whose crimes did not involve killing.
The decision came in the robbery and murder cases of Evan Miller and Kuntrell Jackson, who were 14 when they were convicted.

Breaking Tonight ~ Dept. of Justice Sues State of Florida

Unbelievable. Today I wrote a post about Governor Scott of Florida refusing to comply with the Department of Justice request to stop purging and instead trying to sue Homeland Security for more voter records to purge.
And tonight, Think Progress is reporting that the Department of Justice is striking back with a lawsuit of their own. The letter is fascinating and lectures Governor Scott once again about the purpose of the National Voter Registration Act that protects the rights of individual voters over the rights of the states.
Letter Here on Scribd
Also from Talking Points Memo

Last Friday, June 8th, the ACLU also filed a lawsuit against the State of Florida on behalf of some voters mistakenly placed on the purge list. From the Palm Beach Post:

The ACLU, the Lawyers’ Committee on Civil Rights Under Law and the law firm of Weil, Gotshal & Manges asked a three-judge panel in Tampa to stop Secretary of State Ken Detzner from continuing the scrub until the Justice Department decides whether it is permissible.
. . . Murat Limage, a Haitian-American U.S. Citizen, and Pamela Gomez, who is a Dominican-American Hispanic U.S. Citizen, brought the suit along with Mi Familia Vota Education Fund, a non-profit organization dedicated to working with the Latino/Hispanic community to increase civic participation. Both Gomez and Limage are registered to vote in Hillsborough County.
Haitian-born Murat Limage, one of the plaintiffs in the case, registered to vote after becoming a naturalized citizen two years ago. Limage was one of the more than 2,000 voters who received written notice from local elections officials notifying him that he “may not be a U.S. citizen,” the lawsuit reads.

According to the lawsuit, Limage provided his U.S. passport and other citizenship documents to the Hillsborough County elections office but has not yet received confirmation that he will be allowed to vote.
“When I received the letter saying that they had information that I may not be a citizen, I was concerned that someone was taking away my citizenship,” Limage said in a press release announcing the lawsuit today. “I’m an American which means I can vote and that’s all I want to do.”

DOJ Letter to Florida 6:11:2012