Same Sex Marriage; The Battle Continues

July 13, 2015

GOP Texas Judge Will Only Marry Same-Sex Couples If They Sign a Form Saying He’d Rather Not is the headline from a short report by Caitlin Cruz for Talking Points Memo. Denton County Judge James DePiazza told a television station

It’s my personal belief that individuals who want to conduct a marriage ceremony understand my convictions. If it was me, I would prefer to have someone who was in agreement with me.

I’m suspect Judge DePiazza’s religious beliefs form the basis for his position. I’ll allow for the possibility that he just wants a defense against someone who runs to his Religious Right in the next election, claiming he’s a bad man for marrying “those people.” One way or another,

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Obergefell v. Hodges

June 27, 2015

In Obergefell v. Hodges, No. 14-556, the U.S. Supreme Court held that

… the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. … and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.

The Court divided 5-4 along the

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Same-Sex Marriage Oral Argument Report*

April 29, 2015

Obergefell v. Hodges, No. 14-556 is now at issue, which means the Court has before it all of the written and oral arguments it will read and see. There’s a lots of post-argument writing out there. Here’s some of what I read which resonated.

Amy Howe blogs In Plain English for SCOTUSblog. Her piece, No Clear Answers on Same Sex Marriage, written within hours of the oral argument, lays out the issues and alignments very well. Also from SCOTUSblog is A view from the Courtroom, Same-Sex Marriage Edition by Mark Walsh. Mr. Walsh writes in the present tense, from soon before the oral argument until Chief Justice Roberts states: “The case is submitted.” Not a ton of

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Same-Sex Marriage, Re-revisited

April 27, 2015

Oral argument in Obergefell v. Hodges, No. 14-556 (and related cases) happens on Tuesday, April 28, 2015. Obergefell is one of the parties in the Sixth Circuit cases which created the circuit split on same-sex marriage, providing the Supreme Court with a reason to take up the subject. (I wrote about this subject on November 17—Same Sex Marriage in Michigan, Ohio, Kentucky, and Tennessee: An Analysis of DeBoer v. Snyder—and again in DeBoer v. Snyder: An Update on January 19, 2015.)*

The Court will consider whether: (1) the Fourteenth Amendment require a state to license a marriage between two people of the same sex; and (2) the Fourteenth Amendment require a state to recognize a marriage between

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Cake and Cosmology

April 9, 2015

Woody Woods, my friend and law professor back in the day, shared Cake and Cosmology earlier in the week. Rod Dreher, who wrote the piece for The American Conservative, has serious conservative credentials. Cake and Cosmology further developed my thinking about the obligation to do business with people with whom we disagree, and I’m betting it’ll have you thinking more about this issue, too.

Mr. Dreher posits a situation in which you’re a Christian baker, sharing a neighborly relationship with a gay couple. Should you: (a) bake a birthday cake for one of the neighbors; (b) bake a cake for a wake when one of the neighbors dies; and (c) bake a wedding cake, after the neighbors tie

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Standing to Sue/The Supremacy Clause

February 16, 2015

In all lawsuits, plaintiffs must have standing to sue. In federal court there must be:  (a) a controversy which falls within the ambit of cases the federal courts can hear; and (b) a plaintiff suffering from or having the potential to suffer a real and direct injury. Without these two conditions you can’t sue.

Further, standing is necessary when a suit gets filed and during the entire process. If the risk of a direct injury when you sued goes away—because, for example, your status changes or a law you are complaining about gets repealed—your suit cannot go forward.

So standing has become an issue in King v. Burwell, the case challenging Obamacare subsidies. Here’s Cristian Farias at New

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