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The judge in two of the same-sex marriage cases pending in North Carolina  issued an order this afternoon requiring the parties to file reports within 10 days, detailing how the court should proceed in light of the U.S. Supreme Court’s refusal to review a Fourth Circuit decision rejecting Virginia’s same-sex marriage ban as unconstitutional.

Saying that it appeared that the couples challenging the state’s marriage ban were entitled to a preliminary injunction blocking the enforcement of that ban, U.S. District Judge William  L. Osteen Jr. asked the parties in Fisher-Borne v. Smith and Gerber v. Cooper to provide him with additional information needed to bring the cases to a close:

In light of the foregoing, this court orders that the parties file a status report, without argument, detailing the following matters: (1) whether the parties agree with this court’s suggestion as to the effect of [the Fourth Circuit decision] on this case as set out herein; (2) whether any discovery is required as to either of these cases prior to proceeding to summary judgment; (3) what issues remain for resolution by this court in each of these cases with respect to the challenged adoption laws; and (4) what the parties suggest in terms of additional briefing on any remaining issues.

Two other same-sex marriage cases are pending in federal court here:

General Synod of the United Church of Christ v. Cooper, filed in federal court in Charlotte on behalf of same-sex couples and four national religious denominations – the United Church of Christ, the Alliance of Baptists, the Association of Welcoming and Affirming Baptists and the Central Conference of American Rabbis – in addition to Episcopalian, Jewish and Baptist clergy from across North Carolina. The same-sex couples are seeking the freedom to marry and the clergy are seeking the religious freedom to perform wedding ceremonies for such couples.

McCrory v. Cooper, filed in March in federal court in Asheville by two women who’ve been together for more than 25 years and were legally married in New York in 2013.

No court action has occurred in those cases yet following today’s Supreme Court rulings.

Tomorrow morning, representatives from the American Civil Liberties Union of North Carolina, Equality North Carolina, and plaintiffs challenging North Carolina’s marriage ban will speak at a press conference in Raleigh about what the U.S. Supreme Court decision means for same-sex couples seeking the freedom to marry in North Carolina.

The press conference will be held at 10 a.m. at the LGBT Center of Raleigh, 324 S Harrington St, Raleigh, NC 27603

 

 

News

Gay marriage 3As reported, the ACLU will immediately file papers asking the federal judge handling same-sex marriage cases here to invalidate the state’s ban and allow marriages to go forward.

For quick context on the the Supreme Court’s inaction today and what it means in North Carolina and elsewhere, see this VOX explainer.

And for more detail, read this post by Lyle Denniston at SCOTUSblog on how the ruling will unravel in affected states and what’s on the horizon that might push the Supreme Court to take a marriage equality case and rule on the issue.

As they say on the live blog, here’s Lyle:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court.   Almost no one had expected that to happen.

It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact.  Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.

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First decision: Koontz v. St. Johns River Water Management District, a takings case. In a 5-4 decision written by Justice Samuel Alito, Florida is reversed. Kagan dissents, joined by Breyer, Ginsburg and Sotomayor

Second decision: Adoptive Couple v. Baby Girl.  Again by Justice Alito, and a victory for the adoptive parents, a loss for the biological father.  The holding: Assuming for the sake of argument that the biological father is a parent under the Indian Child Welfare Act, neither of the two sections at issue bars the termination of his parental rights.

Third decision:  Voting Rights Act — Shelby County v. Holder. In a 5-4 decision, Chief Justice John Roberts writes: “Section 4 of the Voting Rights Act is unconstitutional. Its formula can no longer be used as a basis for subjecting jurisdictions to preclearance.”

The Court further holds, though, that:

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.

Per scotusblog, here’s the Shelby decision in plain English:

Today the Court issued its decision in Shelby County v. Holder, the challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. That portion of the Act was designed to prevent discrimination in voting by requiring all state and local governments with a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures, no matter how small. In an opinion by Chief Justice John Roberts that was joined by Justices Scalia, Kennedy, Thomas, and Alito, the Court did not invalidate the principle that preclearance can be required. But much more importantly, it held that Section 4 of the Voting Rights Act, which sets out the formula that is used to determine which state and local governments must comply with Section 5’s preapproval requirement, is unconstitutional and can no longer be used. Thus, although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.

 

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The Court this morning released decisions in five of the eleven cases still awaiting disposition, and will return with more tomorrow morning and at least one more day after that.

The first decision was Vance v. Ball State, on the “superior liability” rule in sexual harassment cases. In a 5-4 vote, the Court upholds the 11th Circuit.  Justice Samuel Alito writes for the majority, Ruth Bader Ginsburg for the dissent — joined by Stephen Breyer, Sonia Sotomayor and Elena Kagan. From scotusblog:

Regarding Vance, the Supreme Court had previously made a distinction between discrimination by “supervisors” and discrimination by mere co-workers. Specifically, a company is automatically liable for any discrimination by a supervisor; it is liable for co-worker discrimination only if the victim complains about it to management and the management does nothing to stop it. So by restricting who counts as a supervisor, the Court has handed employers a victory.

Second was Mutual Pharmaceuticals v. Bartlett,  also written by Justice Alito. In a 5-4 decision reversing the 1st Circuit, the Court holds that design defect claims under state law that turn on the adequacy of a drug’s warnings are preempted by federal law. Justice Breyer dissents, joined by Justice Kagan, and Justice Sotomayor dissents, joined by Justice Ginsburg.

Third was U.S. v. Kebodoeux. In a 7-2 decision written by Justice Breyer, the Court reverses the Fifth Circuit. The case involves the Sex Offender Registration and Notification Act (SONRA), which requires federal sex offenders to register in the States where they live. Here, the defendant was convicted of a sex offense, but had already served his sentence and been discharged when SONRA was enacted. The question in the case was whether Congress had the power to enact SONRA’s registration requirements and apply them to an offender who had already completed his sentence when SONRA was enacted. The Court holds that Congress had that power under the Necessary and Proper Clause.

Affirmative action, in Fisher v. University of Texas, was next.  In a 7-1 opinion by Justice Kennedy, the Court reverses the Fifth Circuit on narrow grounds and sends the case back to have the UT affirmative action policy assessed under a strict scrutiny standard.  Justice Kagan was recused. Justice Ginsburg was the lone dissenter.  Justices Scalia and Thomas have concurring opinions.

The final opinion today was UT Southwestern v. NassarIn a 5-4 decision by Justice Kennedy,the Court holds that Title VII retaliation claims must be proved according to traditional principles of “but for” causation, not the lesser causation standards stated in the law. Justices Ginsburg, Breyer, Sotomayor and Kagan dissent. In her dissent, Ginsburg takes on the majority in both this case and in  Vance, saying that “both decisions dilute the strength of Title VII in ways Congress could not have intended. . . . Today, the ball again lies in Congress’ court to correct this Court’s wayward interpretations of Title VII.”

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While the justices of the Supreme Court did not hand down decisions yesterday in any of the still-pending big cases (affirmative action, voting rights, marriage equality), they did tip their hand a bit — showing, as Andrew Cohen says in this Atlantic piece, just how sharply divided they are ideologically.

And what they revealed does not bode well for those decisions yet to come in the next ten days, as well as some coming in later terms.

Discussing the court’s decision in Alleyene v. U.S., Cohen said:

Long after folks forget about this case and this ruling and the role of juries in criminal sentencing procedure they may remember the extraordinary exchange between Justice Alito and Justice Sonia Sotomayor over a case (Roe v. Wade) and a topic (abortion rights) that have nothing to do with the Sixth Amendment.

The two justices scrapped over the concept of stare decisis – the doctrine which posits that the Court should overturn its own precedent only in exceptional circumstances.

In a snarky dissent, Justice Alito issued a warning to the Court about creating a “precedent about precedent that may have greater precedential effect than the dubious decision on which it relies.” “The Court ought to be consistent in its willingness to reconsider precedent,” Justice Alito wrote. “If [Harris] can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases.” He might as well have written Roe v. Wade in the margins of his text.

This in turn was too much for Justice Sotomayor. In a concurrence, she forcefully made the case for respecting Roe v. Wade precedent even as she was voting to overturn it.