News

marriage amendmentEarlier this week, State Senate President Phil Berger and former House Speaker Thom Tillis filed a petition for review at the U.S. Supreme Court, asking the justices to overturn the October decisions by federal district court judges in North Carolina rejecting the state’s same-sex marriage ban.

The federal court rulings followed the July decision by the 4th U.S. Circuit Court of Appeals in Bostic v. Schaefer, overturning a similar Virginia ban.

Tillis and Berger then intervened in two North Carolina cases for purposes of appeal after state Attorney General Roy Cooper refused to move forward, saying that the courts had now settled the question.

A third district court judge in North Carolina has also rejected the state’s marriage ban, but did not allow the lawmakers to intervene for purposes of appeal. That case, along with the two now before the nation’s highest court, is winding its way through the Fourth Circuit but is not part of the petition for review.

In October, the nation’s highest court refused to take several appeals overturning state marriage bans, likely because at that time all of the underlying decisions reached the same conclusion and no circuit split existed.

Since then, though, the Sixth Circuit has upheld bans in Kentucky, Michigan, Ohio, and Tennessee, creating the necessary split of authority on the issue.

The justices have been considering petitions for review in cases out of each of those states and may decide as early as this Friday which, if any, they will take. If they do hear any of the appeals, argument will likely be in April with a decision expected near the end of the term in late June.

Notably, the justices did refuse on Monday to take a case out of Louisiana which, like the North Carolina cases, had not yet been reviewed by the circuit court of appeals.

As SCOTUSblog’s Lyle Denniston notes:

The Court’s denial of review in the Louisiana same-sex marriage case is not a reliable indicator of the Court’s current interest in the authority of the states to ban same-sex marriage. The couples in the Louisiana case had asked the Court to bypass the U.S. Court of Appeals for the Fifth Circuit, and take on the case without waiting. The Justices’ response probably indicates a desire not to intrude into the review by the Fifth Circuit, which held a hearing on the Louisiana case, and two others, just last Friday. The Court seldom chooses to bypass appeals courts, although it clearly has the authority to do so.

State Rep. Tim Moore, sworn in as the new House Speaker yesterday, will now take the place of Tillis in the petition. Moore has long opposed gay marriage and has said that he and his Republican colleagues “owe it to the voters” to take all steps to uphold the state’s ban.

Recent polling shows, however, that most state residents now favor gay marriage.

The petition, though filed on January 9, was not docketed by the court until Tuesday. Read it in full here.

News

As same-sex marriage bans continue to fall in the courts, states on the losing side of the battle are finding themselves on the hook for attorneys’ fees incurred by proponents of marriage equality, to the tune of more than $800,000 thus far, according to Zoe Tillman in this National Law Journal post.

And requests for millions more are still pending in cases making their way through the appellate courts, Tillman notes.

In the cases pending here, the requests themselves have been put on hold while appeals play out.  State Senate President Phil Berger and former House Speaker Thom Tillis intervened in those cases to appeal district court judgments overturning the state’s same-sex marriage ban, following the Fourth Circuit’s ruling on a similar ban in Virginia in Bostic v. Schaeffer.

But several of the attorneys in the Bostic cases are recovering fees.  Says Tillman:

After the Fourth Circuit declared Virginia’s marriage ban unconstitutional, officials reached fee agreements with the plaintiffs’ lawyers. Virginia will pay $60,000 to lawyers in Harris v. Rainey, a class action joined with another case, Bostic v. Rainey, on appeal. A spokesman for the attorney general’s office said the terms of an agreement with the Bostic lawyers were still being finalized.

In Harris, Jenner & Block worked with the ACLU of Virginia and Lambda Legal. Attorney fees will go to the nonprofit lawyers. In Bostic, Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner were co-lead counsel. Olson argued in the Fourth Circuit. Representatives from Gibson Dunn and Boies Schiller declined to comment about fees.

 

 

News
(Source:  Freedomtomarry.org and Mic via Vox.com)

(Source: Freedom to Marry and Mic via Vox)

Color the state of Florida red in the maps above, as a state court judge in Miami-Dade County today allowed gay and lesbian couples to marry there.  The judge’s action followed an August 21 federal court ruling striking down the state’s same-sex marriage ban, a decision which the U.S. Supreme Court subsequently refused to stay.

That makes 36 states now where same-sex marriage is legal, including North Carolina, which followed suit after the 4th U.S. Circuit Court of Appeals in Richmond overturned Virginia’s marriage ban in July 2014 — a decision that was binding here and in all other states in the circuit.

Another nine states have court rulings pending appeal.

Against that backdrop, the U.S. Supreme Court will consider petitions for review from five states — Tennessee, Louisiana, Ohio, Michigan, and Kentucky — at conference on January 9, and it is likely that the court will take at least one, given that conflicting decisions have now been issued by federal courts of appeal.

Read the Vox update on where each state stands here, and read more from Freedom to Marry on the cases pending before the Supreme Court here.

News

In a unanimous decision released today, the 4th U.S. Circuit Court of Appeals has blocked enforcement of the state’s pre-abortion ultrasound law, finding that it violates the First Amendment rights of physicians who provide abortions.

Here’s how U.S. District Judge Catherine Eagles described the law in her lower court decision overturning it:

The patient must lie on an examination table where she either (i) exposes the lower portion of her abdomen, or (ii) is naked from the waist down, covered only by a drape. Depending on the stage of pregnancy, the provider (i) inserts an ultrasound probe into the patient’s vagina, or (ii) places an ultrasound probe on her abdomen.

The provider must display the images produced from the ultrasound “so that the pregnant woman may view them.” Providers must then give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers sued state officials in federal court in Greensboro in late September 2011, contending that the ultrasound requirements intruded upon the patient-physician relationship and amounted to compelled speech in violation of the First Amendment right to free speech.

The doctors argued that the ultrasound provision required them to convey the state’s message of discouraging abortion and encouraging childbirth, which they would not have delivered absent a patient’s consent.

In response, state officials argued that in requiring doctors to perform the ultrasound and convey accurate and truthful information about the fetus, they were well within the confines of permissible state regulation of the medical profession.

Judge Eagles temporarily blocked the ultrasound provision of the Act and then in January of this year permanently struck it down.

Applying principles underlying the First Amendment right to free speech, Eagles found that to the extent the Act required physicians to deliver information in support of the state’s philosophic and social position, it was impermissible content-based regulation.

Alternatively, the judge found that if the provision was intended to advance a substantial state interest in regulating health care, it did not pass muster, especially given that the patient did not have to listen and could take steps to avoid hearing the message.

The three judges on the Fourth Circuit agreed with Eagles.

Writing for the court, U.S. Circuit Judge J. Harvie Wilkinson III said:

Though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent. . . .  As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far — requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient — markedly depart from standard medical practice.

Other aspects of the Requirement are equally unusual. As described above, informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. . . This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina. Informed consent has not generally been thought to require a patient to view images from his or her own body, much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert[] her eyes.”  Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening.The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation. Though the state is plainly free to express such a preference for childbirth to women, it is not the function of informed consent to require a physician to deliver the state’s preference in a setting this fraught with stress and anxiety.

Read more on the case here.

Read the full decision here.

News

It took close to a year from the date of argument,  but as expected by many the state Supreme Court today handed down its decision upholding the 2011 redistricting plan.

The justices voted along party lines in the 4-2 opinion in Dickson v. Rucho, with Justice Robert Edmunds writing the opinion for the majority.

Justices Cheri Beasley and Robin Hudson joined in dissent, holding that the case should go back to the three-judge panel that initially decided the case.

Justice Robert Hunter did not participate in the case.

The high court had not handed down any written decisions since August — with 37 cases pending for a ruling as of yesterday — but today caught up a bit with 22 opinions.

In Dickson, the majority found that the General Assembly was justified in using race to redraw the state’s congressional and legislative voting districts after the 2010 census, to the extent necessary to avoid liability under the Voting Rights Act.  With respect to the 26 districts drawn for that purpose though, the state was obliged to narrowly tailor the redistricting. Read More