* A unanimous Seventh Circuit panel, in an opinion by Judge Posner, just struck down Wisconsin and Indiana’s bans on same-sex marriage. The result isn’t surprising in light of the blistering benchslaps delivered by Judge Posner at oral argument, but the timing is faster than usual (for a federal appellate opinion in a high-profile case, not for the prolific Posner). [BuzzFeed]
* Bad news for Cahill Gordon: the Third Circuit just revived a fraud case against the high-powered firm and one of its clients, a unit of BASF. [WSJ Law Blog]
* And badder news for BP: a federal judge just concluded that the oil giant was grossly negligent in connection with the 2010 Gulf of Mexico oil spill. [New York Times]
* Freshfields gets fresh talent, adding former Wachtell partner Mitchell Presser and former Skadden partner James Douglas to its ranks. [American Lawyer]
* The dean of Seton Hall Law, Patrick Hobbs, will step down from the deanship at the end of the current academic year. Congratulations to Dean Hobbs on a long and successful tenure. [South Orange Juice]
* And congratulations to John Grisham and Jason Bailey, winners of, respectively, the 2014 Harper Lee Prize for Legal Fiction and the 2014 ABA Journal/Ross Short Fiction Contest. [ABA Journal]
* Brittany McGrath, Brooklyn Law class of 2014, RIP. [TaxProf Blog]
This week, a Louisiana court became the first federal district court to uphold a state ban on same-sex marriage since the U.S. Supreme Court’s decision in U.S. v. Windsor. Judge Martin Feldman of the Eastern District of Louisiana granted the state’s motion for summary judgment in Robicheaux v. Caldwell. Finding that the claims of same-sex couples did not implicate a fundamental right triggering heightened scrutiny of the state law, he applied rational basis review to the challenge. Judge Feldman rejected arguments that sexual orientation warrants intermediate or heightened scrutiny based on the Supreme Court’s ruling in Windsor, as well as Equal Protection arguments against the Louisiana ban based on sex discrimination.
“Many states have democratically chosen to recognize same-sex marriage,” he writes. “But until recent years, it had no place at all in this nation’s history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. There is simply no fundamental right, historically or traditionally, to same-sex marriage.”
American attitudes about LGBT people have changed. The fight for same-sex marriage has come far, fast. African Americans, women, disabled people, and members of other disenfranchised groups should envy the speed with which the LGBT community has achieved so much success. Not only have laws changed, but popular moral sensibilities have changed as well. In 2008, opposing marriage equality would put you in the company of most California voters. In 2014, expressing moral opposition to homosexuality can get you in big trouble. You can even face retroactive stigma — Brendan Eich, the former CEO of Mozilla who was ousted in 2014 because of his support of California’s Prop 8 in 2008, can attest to that.
As we mentioned in Morning Docket and on Twitter, yesterday’s Seventh Circuit arguments weren’t fun for the defenders of Wisconsin and Indiana’s same-sex marriage bans. The three judges, especially Judge Richard Posner, were tough — very tough.
Chris Geidner of BuzzFeed, a leading chronicler of marriage-equality litigation, described the proceedings as “the most lopsided arguments over marriage bans at a federal appeals court this year.” Ian Millhiser of ThinkProgress called it “a bloodbath.”
That’s no exaggeration. Let’s check out the specifics….
At the end of August, the New Mexico Supreme Court ruled in Elane Photography v. Willock that a Christian wedding photographer violated the New Mexico Human Rights Act (NMHRA) when it refused to photograph a lesbian couple’s commitment ceremony. (New Mexico does not currently permit same-sex marriage, though all the parties and the court frequently refer to the ceremony as a wedding.) This week, one of the parties in a similar controversy in Oregon, Sweet Cakes Bakery, announced that it would be closing shop, citing its opposition to baking wedding cakes for same-sex couples.
Elane Photography argued that it did not violate the NMHRA but, if it did, this application of the law violated the photography business’s Free Speech and Free Exercise rights under the First Amendment. The court disagreed, writing that “when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.”
Personally, I’d vote for same-sex marriage if I lived in a state considering such laws. Polygamy too, for that matter. If you are listening for a full-throated defense of traditional, heterosexual marriage to the exclusion of state recognition of any other arrangement, you won’t hear it here. I’m inclined to support religious understandings of traditional marriage, but I’m libertarian enough to let everyone — straight, gay, or otherwise — suffer through the headaches of having the government divide your assets when you get divorced.
Still, using anti-discrimination laws to mandate that all businesses operating as public accommodations provide services to same-sex couples’ weddings sounds like an unnecessary imposition on the sincere religious beliefs of others — and a great way to end up with lousy wedding photos….
* Justice Ruth Bader Ginsburg was chatty this week. In terms of same-sex marriage, the Notorious R.B.G. thinks “[t]he court handled both of those cases just the way they should have.” [Bloomberg]
* And just like a mean girl, Ruthie’s claws were out. After calling the Roberts Court “one of the most activist courts in history,” she offered comments on Justice Samuel Alito’s eye-rolling. [New York Times]
* Don’t cry for Argentina, the truth is it never respected you. After losing an appeal at the Second Circuit, the country has vowed to defy any of the court’s rulings with which it doesn’t agree. [Reuters]
* Texas takes the bull by the horns: the state’s Supreme Court will consider if it has the power and jurisdiction to grant gay divorces despite the fact that it bans gay marriage. [Houston Chronicle]
* “I have a temperament that doesn’t adapt well to politics. It’s because I speak my mind so much.” Joaquim Barbosa, chief justice of Brazil’s highest court and one of the most influential lawyers in the world (according to Time), isn’t afraid to tell it like it is. [New York Times]
* Since she was already acquitted of the murder of Meredith Kercher, Amanda Knox (fka Foxy Knoxy) will not be returning to Italy for her retrial. That would be as silly as admitting to participation in orgies. [CNN]
* Following a settlement on undisclosed terms, the suit filed against Paula Deen has been dismissed. It’s too bad that the Baroness of Butter’s career sunk like a spoiled soufflé in the process. [Businessweek]
* New York’s AG filed a $40M suit against Donald Trump, a rich man who can’t afford a decent hairstylist and allegedly makes students at Trump University weep with his “bait-and-switch” tactics. [NBC News]
Or at least his laptop. After a conservative state court judge in Kentucky wrote an op-ed for the local paper arguing that the Supreme Court’s recent rulings on gay marriage didn’t affect the definition of marriage under Kentucky law, a retired federal judge called him on the carpet.
* Former Patriots TE Aaron Hernandez arrested. In other news, that Patriots offense was killing people last year. [NBC News]
* Elie appeared on HuffPo Live to explain how today’s rulings changed his marriage. [Huffington Post Live]
* For all the role-playing game nerds out there, a guide to the SCOTUS alignments. I’m not sold that Scalia isn’t “Lawful Good” and Alito “Chaotic Good,” but the point remains. [It's a Great Life If You Don't Weaken]
* Aaron Zelinsky has a solution for the Supreme Court’s decision to strike down the VRA formula — force every jurisdiction to adhere to Section 5 preclearance. That would make way too much sense. [Concurring Opinions]
* This judge makes important observations about rodent control. Or at least some clerk slipped footnote 5 in because Caddyshack deserves more legal citation. Unfortunately it does not conclude with, “By Order of this Court, We’re All Gonna Get Laid.” Opinion below…
Looking at my notes from today’s United States v. Windsor argument on DOMA at the U.S. Supreme Court, “$Q” is everywhere. That’s my shorthand for “money quote.” The merits part of the argument was $Q after $Q, moments that made an impact, in some cases if only to show where a justice might be headed.
Here are five. Look forward to bringing you more in-depth analysis of the argument in the next couple of days.
Yesterday, the Supreme Court heard arguments on California’s Proposition 8. Today, they’re hearing oral arguments about the Defense of Marriage Act. If you didn’t already know that, you’ve reached the wrong website, Brazzers is thataway.
High-profile Supreme Court cases attract large numbers of protesters who congregate on First Street, and yesterday was no different. Honestly, I don’t know why. I guess seeing gay people in drag humping each other makes for good television. I guess filming some dour-looking woman who appears to be locked in a loveless, frumpy marriage is a fine way to establish the “conservative” side of the argument. That stuff may work on your average “I must find out where my people are going so I can lead them” Congressperson. But I’m positive that nine unelected judges appointed for life who think this “institution” of gay people loving each other in committed relationships is “newer than cellphones” don’t give a damn about the shenanigans on the courthouse steps.
If these protests are useful, they’re useful to make a point to the media and those watching from home about the issues at play. Towards that end, a group of five law students staged a protest that really added something to the discussion here that even most talking-head court watchers didn’t bring up. Of course, it’s a point that went way over the heads of at least 90 percent of the television audience…
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