With rumors flying about Justice Anthony Kennedy's imminent retirement, and with Justice Ruth Bader Ginsburg determined to hang-on through the Trump Administration, an interesting same-sex case involving a wedding cake has made its way to the SCOTUS.

The case, Masterpiece Cakeshop -v- Colorado Civil Rights Commission, pits gay rights against religious freedom. An otherwise amiable cake shop owner was sued under Colorado's public accommodation law when it refused to accommodate a same-sex couple's request for a gay-themed wedding cake. The shop owner's refusal was based on his sincerely held religious beliefs against gay marriage.

We've seen these cake cases percolating through the legal systems of various states for the past half decade. This one from Colorado was just recently granted certiorari by the SCOTUS after a lengthily delay.

Asserting his First Amendment right to freedom of religion, the shop owner and petitioner, who characterizes himself as a "cake artist", claims that the Colorado law is unconstitutional to the extent that it forces him to accommodate customers in the violation of his religious beliefs. The lower court decision of the Colorado Court of Appeals held that the baker illegally discriminated against a gay couple under the Colorado law.

SCOTUS denied a similar petition for cert three years ago and watchers of the High Court, seeing the extended delay in acting on the petition, anticipated another rejection from the SCOTUS. Surprisingly, the Court granted certiorari and the case will be argued this fall, with a decision on the merits expected next spring.

The case received the four votes required to grant certiorari. This fall, it will be interesting to see how the newly-configured Court will handle this civil rights dispute. Depending on the judicial fates of Justices Kennedy and Ginsburg, President Trump may have the opportunity to bolster the conservative wing of the High Court.

Meanwhile, these gay-themed cake cases are gaining traction within our culture. Currently, a play in Los Angeles, "The Cake", has adopted the theme of these cases: pitting a shop owner against gay customers who ask the owner to do something with which the owner disagrees on moral and religious grounds.

With all that we have swirling around Washington at the moment, some of our legal friends have already commented on this post that SCOTUS has way more on its plate than to decide this case. On the other hand, religious beliefs run deep and affect our souls.

So, we will do what we always do here at the Law Blogger: keep you posted...

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Post #598

Texas Justice John Devine

If you are like us here at the Law Blogger in our post-Obergefell world, you may be thinking that the battle for marital equality was resolved a bit too swiftly and easily. Well, hold onto your hat because here comes the fall-out.

Disputes over how far the newly-minted marital equality right should go will likely be fought in the equal protection context. A plethora of state and local laws are on the books -or will be passed in the upcoming years- that are designed to limit marital equality.

For example, Justice John Devine of the Texas Supreme Court wrote a strong dissenting opinion last week in an application for leave to appeal, stating that while marriage is a fundamental constitutional right, spousal benefits for [same-sex] married employees are not.

His dissent arose in a case that challenged a City of Houston charter provision that provided for spousal benefits to same-sex couples despite a state law prohibiting such benefits. Apparently, the law has not been wiped-off-the-books yet in Texas despite the SCOTUS Obergefell ruling.

The plaintiffs in the Texas lawsuit sought to enjoin the City of Houston from granting spousal benefits to employees with a same-sex spouse that were married in any state other than Texas. The trial court granted a temporary injunction against the city but the intermediate appellate court reversed on the basis of Obergefell.

While the Texas Supreme Court declined to grant leave for further appeal, Justice Devine had this to say about the appellate judges deciding the case:

Without substantial discussion or analysis, the court of appeals assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses.

Justice Devine interprets Obergefell narrowly, opining that so long as a state law does not prohibit a same-sex couple from marrying, it can discriminate against such couples in any number of other ways. According to Justice Devine, laws affecting our fundamental rights receive "strict scrutiny" on appellate review; laws that do not impact a fundamental right are given more deference on review.

The analysis bleeds into the debate about the roles of the various branches of government: making laws, enforcing the laws, and interpreting laws. In this case, the question posed is: whether there is a legitimate state interest in classifying married couples by their gender in the context of government employee benefits.

In his dissenting opinion, Justice Devine points to the legitimate governmental interest in procreation as a basis for upholding the Texas law. He states:

Consider the State’s interest in encouraging procreation. The State may well have believed that offering certain benefits to opposite-sex couples would encourage procreation within marriage. After all, benefits such as health insurance provide financial security as couples decide whether to have a child. An opposite-sex marriage is the only marital relationship where children are raised by their biological parents. In any other relationship, the child must be removed from at least one natural parent, perhaps two, before being adopted by her new parent(s). This does not diminish any child’s inherent dignity, a fact the City presumably recognizes by extending benefits to their employees’ children regardless of the employees’ marital status. But it does explain why the State might choose to direct resources to opposite-sex couples. 

If a rationale-basis review is used -rather than strict scrutiny- then Justice Davis thinks the Texas law prohibiting employment benefits to same-sex spouses passes constitutional muster. Is he following the law handed down by the United States Supreme Court, or his own personal convictions?

Fortunately, the SCOTUS decisions in both Obergefell and Windsor contain robust equal protection components that require states to provide the same benefits to same-sex couples as they do for heterosexual couples.

This type of challenge to the variety of gender-based state and federal laws can be expected to take a quarter century to play out in the courtrooms across the country. In this case, the dissent, written by a justice -a married father of six- who was sued in 2004 for refusing to remove a painting of the Last Supper from his courtroom, expresses a personal conviction; it is not a statement of the law.

As this civil rights struggle continues, we will continue to report on the battles.

Post #556

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Our readers know this blog has covered the marital equality civil rights struggle over the past 8-years. Although the SCOTUS definitively ruled on the issue in the Obergefell v Hodges decision, the struggle continues.

In the wake of Obergefell -cloaking marital equality with constitutional Due Process protections- a crop of state laws have been proposed collaterally challenging the High Court's ruling. Mississippi comes to mind, with its recently enacted House Bill 1523.

The new law essentially creates a work-around to the constitutional ban on state laws that proscribe marital equality, same-sex marriage and same-sex adoption. This statute allows government employees -including, presumably, state judges- businesses and social workers to invoke their personal religious beliefs in declining to sanction, say, a same-sex marriage or adoption.

Referencing the pluralism inherent in Mississippi's Religious Freedom Restoration Act of 2014, the statute's preamble acknowledges the inherent conflict between marital equality and religious freedom. Here is the pertinent language contained in the new law:

Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 3 of this act. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.

The statute also provides a cause of action against the state for those aggrieved. Amazingly, this law sailed through both state houses in February and Republican Governor Phil Bryant, a vocal proponent of religious liberty, signed the bill into law last Tuesday.

Legal challenges to the statute cannot be far behind. Indeed, the preamble to the statute invokes these inchoate lawsuits destined for Mississippi courtrooms.

We here at the Law Blogger believe these lawsuits, filed both against the state as provided in the act, and those challenging the constitutionality of the new law, will be immediate.

Post #534

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Since 2009, this law blog has tracked marriage equality and its attendant same-sex civil rights movement. This movement swept the nation, culminating in a pair of SCOTUS opinions -Obergefell [2015] and Windsor [2013].

As he has done in several past dissents, Justice Scalia puts forth a vehement opposition to same-sex marriage in Obergefell, and since writing his dissent in that case, has spoken formally, openly, and often. His message: there is no textual or historical basis for the majority's ruling that laws and government policies must be gender neutral.

Justice Scalia believes that the thread of same-sex marriage decisions is the most glaring example to date of the SCOTUS doing "whatever it wants". He seems most troubled by the fact that the marital equality decisions are contrary to the religious beliefs of a significant portion of the citizenry. Such decisions are for the elected legislators -not for an un-elected committee of lawyers wearing robes- according to Scalia.

In his recent public comments on the landmark SCOTUS decision, Scalia has radicalized himself, even among conservative legal scholars. Speaking before law students at Georgetown, he equated, perhaps sarcastically, child molesters to homosexuals. To be precise, Scalia said there is no principled basis on which to distinguish the two "minority" groups. The implication is that, like "homosexuals", child molesters will be the next group to seek protected status under the constitution.

Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago, one of the most cited jurists of the 20th Century, -and like Justice Scalia, a legal conservative- takes Scalia to task for his comments in a well-read NYT editorial. In the piece, Posner seems most concerned about Scalia's declaration that post-Obergefell, American democracy is dead.

Judge Posner is also troubled by Scalia's assertion that 9 un-elected lawyers, cloaked in robes, should not be the brain-trust behind such important matters as marital equality or any civil rights struggle for that matter. Judge Posner also uses Scalia's own logic against him, pointing out that Scalia does not hesitate to vote for invalidating state laws or legislation that contravene the First Amendment, or some of his pet federalism-related clauses of the U.S. Constitution.

Finally, Judge Posner takes Scalia's public commentary to its logical conclusion: the abandonment of proper judical review. Posner has a good point here; one of the primary roles of the SCOTUS, at least since the 1803 Marbury v Madison decision, is to conduct rigorous judicial review of the myriad pieces of legislation that the many many legislatures and legislators dream-up.

Over time, legislators of every stripe imaginable are elected into the legislatures of our country; some of whom have been bit with a special kind of fever. We here at the Law Blogger sleep better at night knowing that their work-product must withstand judicial review relative to the U.S. Constitution.

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Post #510

For the past two years, conservative legislators have been proposing a tricky piece of legislation in response to the marriage equality civil rights movement. The First Amendment Defense Act, which has across-the-board Republican support, would, among other things, bar the federal government from taking any discriminatory action against those who oppose same-sex marriage on religious grounds.

For example, if this bill was enacted, someone like Kim Davis could have used it as a shield in her federal court contempt proceedings when she refused to issue a marriage license to same-sex couples. Essentially, this proposed law would negate the anti-discrimination laws that are already on the books and it would use federal tax dollars to do so.

The scope of the proposed legislation would also include protections for private companies. This increases the potential for discrimination against gays and lesbians in the work force.

Although this bill has no real chance of passing Congress -even if it did, President Obama would veto the measure- there are state versions out there already on the books in Indiana and Arkansas. The swift passage of marriage equality in state legislatures across the country, and via the SCOTUS in two recent landmark decisions, does not mean same-sex marriage is now accepted in the traditional households of the nation.

To be sure, there will be struggles ahead for gays and lesbians relative to their new-found marriage equality. We here at the Law Blogger have predicted that the Obergefell decision, while a good start, has merely signaled a new-era where the entrenched opposition to marriage equality will rear its head in the workplaces, schools and governments throughout the land.

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Since the SCOTUS made marriage equality a fundamental constitutional right in June, a handful of judges in Ohio have refused to perform civil wedding ceremonies. One judge in particular, Toledo Municipal Judge C. Allen McConnell, cited his deeply held personal Christian beliefs when refusing to marry a non-traditional couple.

Another Ohio judge now simply refuses to perform any wedding ceremonies. His position is that by refusing to perform this function of his job, he is at least treating all individuals in the same manner.

This has led to the issuance of a judicial ethics opinion from Ohio's Board of Professional Conduct. In sum, the opinion says that judges must follow the laws when executing their judicial functions and that they must do so impartially, without bias or prejudice, keeping their own personal views out of the process.

The ethics opinion states:

Judges are further advised that personal, moral, or religious beliefs should not be a factor ... and to be aware of the impact that a decision to decline to perform all civil marriages may have on the public’s perception of the judiciary.

This language suggests that simply refusing to perform a sanctioned function, i.e. marriages, is not a solution.

There will be many other instances in the courthouses, schools and workplaces across the country where marriage equality is not accepted by those in charge.  If you have experienced discrimination in this manner, contact our law firm to discuss your options.

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SCOTUS Justices Roberts & Kennedy

Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:

(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 

Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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Legal Scholar Lyle Denniston

Batman will probably show-up again; Spiderman has been crawling the marble steps seeking attention; and various flag-waving, placard-touting groups in support of and opposed to marriage equality have been a fixture along First Street in Washington D.C. over the past several weeks. As June evaporates, the Supreme Court's final day for this session, Monday, fast approaches.

There is a rare sense of growing anticipation surrounding the Supreme Court building as the Court gets ready to announce its last few decisions of the term.  Of all the cases argued before the SCOTUS this term, only 5 remain undecided, including the DeBoer same-sex marriage and adoption consolidated cases.

We here at the Law Blogger think the High Court will issue the decision this morning when their penultimate session begins at 10:00 am.

Lyle Denniston of SCOTUSBlog no doubt already has his analysis at the ready; he's probably just waiting for an opinion to read before posting to his well-read blog. The two issues the Court will likely resolve today in deciding the DeBoer case are: whether states have power to ban same-sex marriages; and whether states must recognize same-sex marriages from other states.

Currently, marriage equality is the law in 36 states. All of the state laws banning same-sex marriage in the remaining 14 states are under constitutional challenge.

When the SCOTUS began its term in October, it did not elect to review any of the then-pending same-sex marriage cases that had percolated through the federal courts of appeal. Then the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order striking down Michigan's state laws banning same-sex adoptions and marriages.

In upholding the state law bans, the Sixth Circuit bucked a national trend among the federal appellate circuits which had until then uniformly ruled in favor of recognizing marriage equality. So the SCOTUS granted certiorari and today is the moment of truth on this constitutional issue.

Once the Court issues its decision, we will review and distill the opinion and provide our readers with our take on this important civil rights issue.

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Last week, in a country-wide referendum, Ireland legalized same-sex marriage by a convincing 62% of the heavy voter turn-out across the Emerald Isle. Of the 19 countries that have marital equality, Ireland stands alone in legalizing same-sex marriage via voter referendum.

The result was somewhat surprising considering that Ireland is overwhelmingly Catholic and only recently [1993] decriminalized homosexuality.

The Vatican's Secretary of State, Cardinal Pietro Parolin, presumably speaking on behalf of the Prelate, equated the vote to a defeat, not only of Christian values, but for humanity as a whole. The result of this referendum will, of course, continue to widen the chasm between Ireland and the Holy See.

The result of the referendum in Ireland is also unusual to the extent that wherever there is marital equality, it comes about through litigation or some form of civil rights struggle; rarely through an old fashioned plebiscite.

Here in the United States, for example, 39 states have legalized same-sex marriages; usually as the result of civil rights law suits challenging state laws that prohibit same-sex marriage. Next month, the SCOTUS is expected to decide Michigan's DeBoer case along with the companion cases arising from the United States Sixth Circuit Court of Appeals decision upholding state law bans on same-sex marriages and adoptions.

The DeBoer case could come down to the swing vote of Justice Anthony Kennedy, an Irish Catholic. Obviously, we would not expect the Justice to be swayed by events completely unrelated to the case. To us here at the Law Blogger, however, it does seem ironic that as Justice Kennedy writes his opinion on this civil rights case, events that involve the head of his church and the land of his forefathers focus the world's attention on the issue of marriage equality.

The SCOTUS decision in the DeBoer case is expected by the end of the term in late June. Stay tuned.

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Justice Anthony Kennedy

Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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Public opinion on the hot-button issue of same-sex marriage is divided into roughly two same-sized camps with proponents barely having the edge according to most opinion polls. Since 2009, this law blog has described the topic as the civil rights issue of our time.

Next week, a Michigan lawyer from a mid-sized law firm will be arguing the much-anticipated same-sex marriage case for the State of Michigan. Attorney John J. Bursch, now a partner at Warner Norcross & Judd, will present the state's arguments as the respondent in the DeBoer case. He will not do so on behalf of his law firm, however, as they declined to take the case. Mr. Bursch will appear as a Special Assistant Attorney General.

Let's not forget that a brief time ago, Bursch was the Solicitor General of the State of Michigan, serving as Attorney General Bill Schuette's litigator-in-chief. In this position, he argued 8 times before the SCOTUS in two short years and has been before the Michigan Supreme Court no less than 17 times.

Then he moved-on to private practice where he is the co-chair of Warner Norcross' appellate section. Bursch is the principal author of the Michigan Supreme Court publication Guide for Counsel and a chapter author of the Michigan Appellate Handbook. We should also mention his law firm's excellent law blog, One Court of Justice, to which Bursch, no doubt, makes regular weighty contributions for the firm.

When he takes the podium to face the 9 justices in the same-sex marriage and adoption case, he joins historic luminaries such as John Adams [who represented British soldiers accused of murder] Clarence Darrow [who also represented unpopular murderers of his day], John W. Davis [also prolific before the SCOTUS, and who argued in favor of segregated schools] and Paul D. Clement [who lost the same-sex Windsor case in 2012] by arguing a position most legal scholars believe is not on the right side of history.

In so championing the same-sex marriage ban, Bursch may not have the backing of his law firm, but he does have some intellectual reinforcements. A near record 64 amicus briefs have been filed in support of banning same-sex marriage.

After the oral arguments next Tuesday morning, a decision in the landmark case is expected toward the end of June. If past practice is any guide, the justices, some of whom are expected to write separately in what may become a "plurality" decision, will work on their separate opinions right up to the wire, releasing the opinion(s) just before the conclusion of the Court's session.

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Michigan Attorney General Bill Schuette filed a brief with the United States Supreme Court yesterday laying out Michigan's official position on the constitutional question of whether states can ban same-sex marriage. The response brief was filed in the April DeBoer case, currently pending at the SCOTUS and scheduled for oral arguments on April 28th.

Readers of this blog know that we have consistently supported same-sex marriages and adoptions, posting favorable editorials since 2009 when the first federal case arose in California, and tracking the issue ever since.  That said, the AG really lands some compelling points in Michigan's brief.

The issue, as framed by the SCOTUS and now amplified by the Michigan Attorney General, is whether states are required to license same-sex marriages; and whether states must recognize same-sex nuptials performed in another state.

The Michigan AG asserts that in a democratic society, it is offensive to have un-elected federal jurists deciding such important intimate issues that have been resolved by a local electorate. Further, the AG asserts that the United States Constitution is silent on the question of marriage thus, to fashion such rules by federal judicial fiat demonstrates "a lack of faith in democracy" which comes at a high cost to all of our fundamental rights.

Of course, it is the fundamental right of Due Process and self determination that constitutes the flip side of that argument.  Like in the Loving v Virginia decision from the 1960s -endorsing interracial marriages- the DeBoer case once again focuses the SCOTUS on whether certain rights, such as the right to select whom to marry, regardless of race or gender, are so fundamental that no state or federal law can interfere.

The scheduled oral arguments at the end of April truly will be historic. We here at the Law Blogger see this as the civil rights issue of our time.

As often stated by Michigan Attorney General Bill Schuette, the sooner the High Court decides this issue, the better, for everyone.

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Chief Justice Roy Moore

In the 1960s, Alabama earned a special place in U.S. history. Now, they're at it again; this time in the context of the same-sex civil rights movement.

Chief Justice Roy Moore, from his re-acquired seat on the Alabama Supreme Court, has issued a letter to each of the state's 68 probate judges, instructing [warning] them to follow state law, and to disregard a federal ruling that struck Alabama's state constitutional ban on same-sex marriage. In Alabama, marriage licenses are issued by probate judges.

Now ole Justice Moore, oft-described as a legal "firebrand", has a penchant for making headlines. A devout Baptist, West Point graduate, and Vietnam veteran, he garnered national headlines for himself when he ordered a set of gigantic granite tablets of the 10-Commandments installed in Alabama's Judicial System building. [They were removed by federal court order as was Justice Moore, by a judicial ethics panel; but he was re-elected in 2012.]

On the upside of the good justice's recent act, it does focus legal scholars [and federal jurists] on the precise nature of federalism and the supremacy clause in the 21st Century. Can a state judge contravene a ruling from the federal court on an issue of constitutional law? We here at the Law Blogger believe the answer is "no". Justice Moore, on the other hand, does not believe that the definition of marriage should be left to federal judges.

Justice Moore's letter of instruction to the lower courts caused confusion in the Alabama courts this week. Marriage licenses were issued to same-sex couples by the probate judges in the larger cities of Birmingham and Montgomery. Most probate judges in the other counties, however, declined to issue licenses to gay couples while others refused to issue licenses to any couple until the matter is sorted out. In one case, lawyers for a gay rights group unsuccessfully attempted to hold a probate judge in federal contempt of court.

On an interesting procedural note, the SCOTUS has declined to get involved; like the 11th Circuit Court of Appeals, the High Court did not issue a stay pending a review on the merits of the federal judge's decision. Usually, as here in Michigan, a federal ruling that nullifies a state's constitutional provision is stayed pending a full appellate review.

At what point do the citizens of a particular state get to decide their own fate, either through state legislation or via a state constitution? In the case of Alabama, the constitutional ban on same-sex marriage was approved by 81% of the vote back in 2006. Yet, as in the case of slavery, education and interracial marriage, are there some constitutional standards that just cannot be breached no matter how loud the local voices?  Is this one of those issues?

That is what the Supreme Court is going to decide in June. Stay tuned and we'll bring it to you right here.

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They finally did it on their own terms, but the SCOTUS has granted certiorari in the DeBoer Same-Sex adoption case, and the consolidated marriage cases coming from the other states in the 6th Circuit Court of Appeals [Ohio, Kentucky and Tennessee].  Unlike most granted petitions -where the issue(s) to be presented to the High Court are framed by the petitioner- the order granting certiorari in DeBoer included the Court's own version of the two questions it will now consider:

• Does the 14th Amendment require a state to license a marriage between two people of the same sex?

• Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The briefing is already underway and will likely include a host of amicus curiae contributions; oral arguments, a whole two and a half hour's worth, will take place in April, the last month for argument, with a decision to follow toward the end of the Court's term in June.

It is now well-known, but worth repeating, that each of the 14 states that persist in banning gay marriage have their state laws under some form of appellate review. When finally decided, the SCOTUS same-sex adoption and marriage cases will affect the status of this handful of holdouts, as well as provide some certainty, one way or the other, to the other 36-states that do not proscribe same-sex marriage or adoptions.

Some legal scholars opine that the SCOTUS, in fashioning the issues as they have, is appropriately focused on the two core constitutional issues that need deciding in these post-modern-day civil rights cases. Other legal scholars posit, on the other hand, that the High Court has again left open a path, as in the Windsor case, that stops short of outright requiring states to issue same-sex marriage licenses.

As Michigan Attorney General Bill Schuette says repeatedly, the sooner SCOTUS decides these issues the better.

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Last fall, when U.S. District Court Judge Bernard Friedman struck Michigan's state law ban on same-sex marriage and adoption as unconstitutional, dozens of county clerks' offices had their counters ready to issue marriages licenses to same-sex couples.  Some 300 couples were issued marriage licenses the very next day before the Sixth Circuit Court of Appeals stayed the decision pending appeal, swiftly closing the door on the issuance of additional marriage licenses to same-sex couples.

This appellate stay placed these presumably valid same-sex marriages in a legal limbo.  Enter the ACLU, who sued to enjoin the State of Michigan to recognize the marriages.  The case was assigned to federal judge Mark Goldsmith who ruled yesterday that any same-sex couple that was issued a marriage license has a valid marriage that now must be recognized by the state.

Judge Goldsmith's ruling comes a day before legal scholars predict that the SCOTUS, in their case conference this morning, may decide to grant certiorari in the April DeBoer case and the other consolidated cases from the Sixth Circuit; the only appellate circuit to uphold the constitutionality of state law bans on same-sex marriage.

Interestingly, Judge Goldsmith's decision plays on a Bible verse in upholding the validity of the marriage licenses issued by the county clerks. His decision states that, "under these circumstances, what the state has joined together, it may not put asunder."

Constitutional considerations aside, the judicial math was simple in this case: once a marriage license is issued by an arm of the state, Judge Goldsmith ruled that the state cannot withdraw the status it has granted.  To rule otherwise, said Goldsmith, would "catastrophically undermine the stability that marriages seeks to create", to say nothing of the damage done to the principle of certainty in the law.

No word from the Michigan Attorney General or the Governor whether it will appeal Goldsmith's decision. Meanwhile, the SCOTUS could advance the agenda today with an order granting the petition for certiorari in the consolidated DeBoer cases.

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SCOTUS Chief Justice John Roberts

Last Friday, the SCOTUS conducted an important chambers conference to decide whether to grant certiorari this term to the consolidated appeals in the DeBoer case.  April DeBoer's case was consolidated with other cases from Ohio, Kentucky and Tennessee, and Sixth Circuit Judge Jeffrey Sutton reversed federal district court judges that invalidated state law same-sex marriage and adoption bans.

A ruling from the High Court on this petition could come by the end of the week. Then, the cases could be argued this term, which goes through most of June.

Here is a good analysis of Judge Sutton's decision from a Huffington Post law blogger; and here is Lyle Denniston's [SCOTUSBlog] take on the judicial conference:

The release of orders on Friday had been eagerly awaited across the country, because the Court, at its private Conference, was scheduled to take its first look at the new round of cases on state power to ban same-sex marriage.  The Court’s next chance to issue any order on those cases will be at 9:30 a.m. Monday, with the release of a lengthy list of actions on new cases.  If no action on the five marriage cases comes then, the cases are likely to be rescheduled for a Conference next Friday.

Meanwhile, the costs to the various states in their largely unsuccessful challenges to the same-sex marriage civil rights movement, and their equally unsuccessful attempts to enforce state law same-sex marriage bans, are mounting.  Attorney fee petitions are slowly collection across the country seeking reimbursement for the legal costs of striking the state law bans.

The price tag is the the millions and will surely increase over the next few years.  Who do you think should pay this price: the taxpayers or the litigants?

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