Supreme Court

  • April 30, 2015
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.

    With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.

    In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.

    The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month.  Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.

    After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.

  • April 30, 2015
    Guest Post

    by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.  It originally appeared in the National Law Journal.

    Love and commitment have nothing to do with marriage.  So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples.  Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.

    The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable.  Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases.  Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.

    The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws.  There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out.  Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption.  And no state, Justice Stephen Breyer noted, favors biological children over adoptive children.  Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage.  As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

  • April 29, 2015
    Guest Post

    by Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund. Follow her on Twitter @Sifill_LDF.

    Yesterday, as the U.S. Supreme Court heard oral arguments about whether states can exclude gays and lesbians from the benefits of marriage, the crisis in Baltimore flooded the airwaves and brought renewed attention to long-simmering issues of racial justice. While the two issues might seem worlds apart, the often-overlooked truth is that both come down to the fundamental question of whether we as a nation take seriously the responsibility to confer equal dignity upon every citizen.

    It is Justice Anthony Kennedy who has elevated the principle of human dignity in a series of rulings. In a 2003 decision that decriminalized “homosexual conduct,” Justice Kennedy stressed that adults must “retain their dignity as free persons.” When the Court eliminated the death penalty for children, a majority led by Kennedy explained that the U.S. Constitution “reaffirms the duty of the government to respect the dignity of all persons.”  In a 2013 decision striking down the so-called Defense of Marriage Act, Kennedy’s opinion emphasized the principle that gays and lesbians “occupy the same status and dignity” as heterosexuals.  Yesterday, at oral argument, Kennedy again raised this concern, stressing that the whole purpose of marriage is “enhancing the dignity of both the parties.”

    Yet it is not only Justice Kennedy.  In 1954, the Court in Brown v. Board unanimously struck down segregation in schools, precisely because it engendered a “feeling of inferiority as to [students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”  In upholding the Civil Rights Act of 1964, the Court stressed “the personal dignity” of individuals who seek to access public accommodations on an equal basis.

    Most relevant to marriage equality, dignity has animated the NAACP Legal Defense Fund and its litigation dating back to the 1960s case of Loving v. Virginia.  Loving involved a married, interracial couple who were dragged out of bed by police in the middle of the night, hauled to jail, and eventually exiled from the state for 25 years in return for a suspended one-year jail term.  Not coincidentally, Virginia charged the Lovings with violating “dignity of the Commonwealth.”  LDF argued that this was unconstitutional and violated the fundamental right to marry and the justices unanimously agreed.  Building upon Loving, LDF filed a brief last month in the Supreme Court underscoring that “all persons yearn and deserve to be treated with equal dignity and respect, both individually and as married couples.”

  • April 29, 2015
    Guest Post

    by Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and the Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Nothing in the almost two and a half hours of oral arguments altered my prediction that at the end of June 2015 the Supreme Court will hold that state laws prohibiting same-sex marriage deny equal protection to gays and lesbians. The only question is whether it will be 5-4 or 6-3 to declare unconstitutional laws prohibiting marriage equality and whether the opinion will be written by Chief Justice John Roberts or Justice Anthony Kennedy.

    Why the certainty of this prediction? To begin with, the states that are defending their bans on same-sex marriage – Kentucky, Michigan, Ohio, and Tennessee –failed to articulate any legitimate justification for their laws. In reality, the laws prohibiting same-sex marriage stem from a moral condemnation of homosexuality, but the Supreme Court has been explicit that it will not accept such a justification for laws discriminating against gays and lesbians.

    So the states are trying to defend their laws by stressing tradition and the historic definition of marriage as being between a man and a woman. But a tradition of discrimination is not an acceptable reason in the courts for continuing to discriminate. In 1967, in Loving v. Virginia, the Supreme Court declared unconstitutional a state law that prohibited interracial marriage. Such laws had existed throughout American history, even in California until the 1940s. But the Court rightly gave no deference to this tradition and rejected the argument that the definition of marriage should be left to the political process.

    The primary argument made by the states is that marriage is linked to procreation and that only opposite sex couples can procreate without artificial assistance. Michigan, for example, declares in its brief:   “Separating marriage from procreation dramatically changes the state’s interest in the institution. . . .  It is the state’s interest to encourage opposite-sex couples to enter into a permanent, exclusive union within which to have and raise children that motivates state marriage laws.”

  • April 29, 2015
    Guest Post

    by Janson Wu, Executive Director, Gay & Lesbian Advocates & Defenders (GLAD). Wu is a recipient of ACS's David Carliner Public Interest Award.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    On April 28, I sat in the U.S. Supreme Court to watch Mary Bonauto argue for the freedom to marry for all same-sex couples across our nation.  Her opening argument rang as true today as 12 years ago, when Mary won the Goodridge case, making Massachusetts the first marriage equality state:

    "The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If a legal commitment, responsible and protection that is marriage is off limits to gay people as a claim, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

    As the Executive Director of Gay & Lesbian Advocates & Defenders (GLAD) where Mary has worked for 25 years, I was proud to witness Mary stand in front of the nine justices to argue for the equal dignity and humanity of LGBT people.  Over the course of the argument, which included passionate and articulate performances by U.S. Solicitor General Donald Verrilli and Doug Hallward-Driemeier (who argued the question of recognition of out-of-state marriages), the debate over our equal worth as citizens and as people never felt more substantial.