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As we report below the US Supreme Court has decided to hear another legal challenge to the Affordable Care Act.

You can read the details of the lawsuit in our earlier post, but some context is important. This new fight focuses on subsidies extended to individuals and families earning less than 400 percent of the federal poverty level who purchase private insurance. For these families subsidies are available to make insurance plans more affordable. In North Carolina about 91 percent of people purchasing Affordable Care Act plans received subsidies. Of those, the average cost of insurance is $81 per month.

News coverage of the Supreme Court’s move, coming just before open enrollment is set to start, is sure to cause confusion. In the short term it is critical to remember that the subsidies are still in place and everyone should proceed to shop for insurance without worrying about the political winds.

In the long term it is difficult to know what this case will mean for the law. The challenge is absurd, but that doesn’t give us any hint at how the Supreme Court Justices will vote. Read More

News

Supreme courtYesterday in a 2-1 decision the 6th U.S. Circuit Court of Appeals in Ohio became the first federal appeals court to uphold a state ban on same-sex marriage. In doing so, it created the split among federal circuits needed to get a marriage equality case before the U.S. Supreme Court.

The justices already considered a flurry of cases early in the term — including one from the Fourth Circuit — but declined to take any up for review. Although they gave no reason, many experts suspected that the lack of any circuit split at that time was at least one reason for their refusal. Justice Ruth Bader Ginsburg said as much in public comments.

But the Sixth Circuit decision now directly conflicts with federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits.

“Now there is a split, and it is a stark one,” SCOTUSblog’s Lyle Denniston wrote :

In one sweeping decision, the Sixth Circuit has given all of the states in its geographic region a victory for their bans on both initial marriages of same-sex couples and official recognition of such marriages performed outside of the couples’ home states.  By contrast, other federal courts have nullified identical bans in thirteen states just over the past few months, with the prospect that the number would soon rise to sixteen — for a total of thirty-five states, plus Washington, D.C., allowing such marriages.

A number of options now exist for parties to get a marriage case before the high court, Denniston explained later —  including asking for a direct review of the Sixth Circuit case, a review of an appeals court decision that has not yet gone to the Supreme Court (the Ninth Circuit, for example), or a review of a case pending in an appeals court.

The first option — review of the Sixth Circuit case — is the best and most likely, Denniston said, for these reasons:

Among those three options, Option 1 might have the most promise of gaining Supreme Court review because the Sixth Circuit’s decision is the one that broke the pattern, because it involves an array of cases from four states, raising the constitutionality of bans on both new same-sex marriages and the official state recognition of out-of-state same-sex marriages, because it was written by a highly respected court of appeals judge (Jeffrey S. Sutton), because it brought a stirring dissent by another well-regarded jurist (Senior Circuit Judge Martha Craig Daughtrey), and because the opinions swept across all of the issues that have been raised in case after case — even the rather obscure question whether a refusal to recognize an out-of-state same-sex marriage violates the constitutional right to travel, and the emotional question of whether a death certificate for a same-sex spouse who has now died should show that there was a surviving spouse.

And indeed lawyers in that case  have already indicated that they will move quickly, with the hope they’ll get the nod on review and then get the case on the calendar in time for argument and an opinion before the term ends in June.

Commentary

Mike Meno of the ACLU of North Carolina issued the following statement in response to the announcement this morning by the U.S. Supreme Court that would not take up the appeals of various circuit court decisions upholding marriage equality:

U.S. Supreme Court today announced it would not review appeals court rulings in seven states, including one from Virginia by the Fourth Circuit Court of Appeals, striking down state bans on marriage for same-sex couples. The decision means that all of those rulings stand, and the states in their jurisdiction must comply with the law and recognize the freedom to marry for same-sex couples.

North Carolina is one of five states in the Fourth Circuit. The Supreme Court’s announcement means that all states in the Fourth Circuit, including North Carolina, are bound by the Fourth Circuit’s ruling that struck down Virginia’s ban on marriage for same-sex couples.

“The Supreme Court’s decision means that the freedom to marry for same-sex couples must be recognized here in North Carolina without delay,” said Chris Brook, legal director of the American Civil Liberties Union (ACLU) of North Carolina. “We are asking the district court here in North Carolina to immediately issue a ruling striking down North Carolina’s unconstitutional and discriminatory ban on marriage for same-sex couples. Every day that gay and lesbian couples in North Carolina are denied the ability to marry the person they love places their families and children in legal and financial jeopardy. The time has come to end this unfair treatment once and for all and to let our American values of freedom and equality apply to all couples.”

The ACLU and ACLU of North Carolina Legal Foundation have filed two federal lawsuits challenging North Carolina’s ban on marriage for same-sex couples, both in the U.S. District Court for the Middle District of North Carolina in Greensboro. The first, Fisher-Borne, et al., v. Smith, was filed in July 2013 as an amended complaint to a 2012 lawsuit challenging North Carolina’s ban on second parent adoptions on behalf of six families across the state headed by same-sex couples. On April 9, 2014, the ACLU filed a second federal lawsuit, Gerber and Berlin, et al., v. Cooper, on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, the Gerber plaintiffs are asking the court to take swift action.

The ACLU has asked the judge in those cases to quickly overturn North Carolina’s marriage ban in light of a July ruling from the U.S. Court of Appeals for the Fourth Circuit that found Virginia’s similar marriage ban unconstitutional.

To date, the ACLU has legal challenges to marriage bans pending in 13 states.

News

Supreme courtThe Supreme Court issued its first order list of the term this morning, with no decision yet on the seven pending same-sex marriage petitions.

The Court did take 11 new cases though, including a housing discrimination case out of Texas, a redistricting case out of Arizona and a campaign finance case out of Florida.

The housing case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., raises the question of whether disparate impact claims can be asserted under the Fair Housing Act.  It is the third such case the Court has taken in the past three years. The two previous cases settled before the justices could rule on the “disparate impact” question — Mt. Holly in 2013 and  Magner v. Gallagher in 2012.

The redistricting case, Arizona State Legislature v. Arizona Independent Redistricting Commission, involves that state’s use of a commission (as opposed to its legislature) to adopt congressional districts.

And the campaign finance case, Williams-Yulee v. The Florida Bar, asks whether a state judicial conduct rule prohibiting judges from personally soliciting campaign funds violates the First Amendment.

As  Adam Liptak noted in Sunday’s New York Times, writing about judges on the campaign trail:

Thirty of the states that elect judges ban such personal requests. Every state supreme court to address the bans has said they are justified by the need to protect the integrity of the judiciary and public confidence in the judicial system.

But federal appeals courts are split on the issue. Four of them, collectively covering 23 states, have struck down solicitation bans. In May, for instance, the United States Court of Appeals for the Ninth Circuit, in San Francisco,struck down Arizona’s ban, at least as applied to candidates for judicial office who are not yet judges.

This is not a concern in North Carolina, however, because the code of judicial conduct here expressly allows judges to personally solicit campaign funds.

Uncategorized

Ian MillhiserIt looks like we’ll have a sizable crowd, but some seats still remain for Thursday’s NC Policy Watch Crucial Conversation luncheon: The State of the U.S. Supreme Court with Ian Millhiser of the Center for American Progress.

Millhiser is the Senior Constitutional Policy Analyst for the Center for American Progress and the Justice Editor for the Center for American Progress Action Fund. His work focuses on the Constitution and the judiciary. Ian previously was a Policy Analyst and Blogger for ThinkProgress, held the open government portfolio for CAP’s Doing What Works project, and was a Legal Research Analyst with ThinkProgress during the nomination and confirmation of Justice Sonia Sotomayor to the United States Supreme Court.

Don’t miss the opportunity to hear from this knowledgeable and important voice at this critical time.

When: Thursday, August 21, at noon — Box lunches will be available at 11:45 a.m.

Where: *(NOTE—NEW LOCATION)* The North Carolina Association of Educators Building, 700 S. Salisbury St. in Raleigh. This location features on-site parking.

Cost: $10, admission includes a box lunch.

Click here to register

Questions?? Contact Rob Schofield at 919-861-2065 or rob@ncpolicywatch.com

- See more at: http://www.ncpolicywatch.com/2014/08/11/crucial-conversation-the-state-of-the-u-s-supreme-court-with-ian-millhiser-of-the-center-for-american-progress/#sthash.TdgPmivj.dpuf