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Thursday, June 27, 2013

Where does the marriage equality movement go next?

Supporters of marriage equality are rightly ecstatic over yesterday's events and it might have been the best they could have hoped from this Court in a single term. But when the ecstacy recedes, the movement is faced with a fundamental question--what do we do now, since the one thing SCOTUS did not do was end the discussion once and for all.

As Marty Lederman notes, on  August 2, there will be marriage equality in D.C. and 13 states--California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island, Vermont, and Washington. If the theory is that SCOTUS wants a critical mass of states to adopt marriage equality before (a la Loving) it pulls the outliers along via the Fourteenth Amendment, more states probably are needed. So what states should the movement target? Presumably, if pursuing popular means (legislation or ballot proposals), you look to "blue" states. But where? Illinois, is an obvious choice (Democratic governor, large Democratic majorities in both houses, Obama's home state), but a bill to give same-sex couples the right to marry was recently held back because it did not have the votes. New Jersey is also blue, although it has a Republican governor, as do Pennsylvania and Wisconsin. Plus, those states, like Michigan, have a bit too much of a conservative streak. Oregon? Colorado?

And should the focus be on the legislatures and voters or on the courts? As the Slate piece cited above notes, the popular momentum from last November seems to have slowed a bit (perhaps because there are no states that are obvious candidates). And maybe yesterday's events signal that federal litigation is now a better strategy than it was a few years ago, helped by the district court opinion in Perry and strong language in Windsor? If so, in what states and in what circuits? Do you target Illinois or Wisconsin and hope you get Posner on the panel? Do you target Pennsylvania or New Jersey hoping, where the Third Circuit has more Democratic appointees  and something of a right-friendly reputation?  A judge in the District of Nevada upheld that state's voter-approved (twice) prohibition; when the plaintiffs appealed, the ballot proponents then tried to get SCOTUS to hear the case directly. Yesterday, SCOTUS declined. So that case goes back to the Ninth Circuit, where I imagine (hope?) the Ninth Circuit to invalidate the prohibition. Does SCOTUS immediately take that case for next term (as Justice Scalia predicted in his Windsor dissent)?

Posted by Howard Wasserman on June 27, 2013 at 04:54 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink

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Comments

What does the term "marriage equality" mean? It is a term I had not seen till recently.

Posted by: Elmo | Jun 27, 2013 9:33:00 PM

A lot of people are so ecstatic about the supreme courts decision but they are far from their ultimate goal of marriage equality.

Posted by: Bruce D. | Jun 28, 2013 4:06:03 PM

The anti-DOMA ruling was cited by a court that blocked a law limiting certain benefits to married persons.

http://media.mlive.com/news_impact/other/ruling.pdf

Posted by: Michael Ejercito | Jun 28, 2013 11:41:59 PM

A Ninth Circuit ruling that strikes down Nevada's marriage law would foreclose arguments before a district court or appellate panel that California's Proposition 8 is consistent with the Constitution. (This is significant because many state agencies, such as the Franchise Tax Board, Board of Equalization, not to mention myriad local agencies, are not employed or have a formal agency relationship with defendants and the Perry ruling does not apply to them.)

Posted by: Michael Ejercito | Jun 29, 2013 10:26:46 AM

The next cases involving challenges to state marriage amendments, where briefing is complete, are,


Bishop v. United States, No. 04-848 (N.D. Okla.)

In Re Marriage of J.B. and H.B., No. No. 11-0024 (Tx. Sup. Ct.)

I expect those courts to order supplemental briefing in light of Windsor.

Posted by: Michael Ejercito | Jul 2, 2013 10:33:36 AM

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