Record on Appeal

SCOTUS Makes Marriage Equality the Law of the Land

Today, here, the United States Supreme Court issued a decision in Obergefell v. Hodges, holding that same-sex couples have a fundamental constitutional right to marry.  In so holding, the Court overturned the Sixth Circuit's decision and unified the law on marriage equality:  "The Court now holds that same-sex couples may exercise the fundamental right to marry."  Op. at 22. 

Some selected quotes:

"This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples."

"The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation."

"But while Lawrence [v. Texas] confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty." 

"The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."

"These considerations lead to the conclusion 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, in this decision, holds same-sex cou- ples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." 

The Hawaii Supreme Court's decision in Baehr v. Lewin, the first in the nation to conclude that it was unconstitutional to deny same-sex couples the right to marry, is cited on page 8 of the SCOTUS decision.

The opinion (5-4) was authored by Justice Kennedy.

The Appellate Record, December 2013

The December 2013 edition of The Appellate Record, the official newsletter of the Hawaii State Bar Association's Appellate Section, includes articles on the use of bullets in legal briefs and an overview of the current United States Supreme Court term:

The Appellate Record - December 2013

Anniversary!

The Law Office of Rebecca A. Copeland, LLC celebrates its anniversary today!

Rebecca has practiced appellate law for twelve years.  She is licensed in Hawaii, Texas, the United States Supreme Court, the Ninth Circuit Court of Appeals, and the Fifth Circuit Court of Appeals.  She represents appellate clients in state and federal courts in Hawaii and Texas.  Rebecca also serves as a "law lawyer" for attorneys throughout the country.

For more about Rebecca, visit her LinkedIn Profile here and her firm's Facebook page here.

As always, the latest news and tweets from Record on Appeal are available on Twitter @recordonappeal.

Mahalo!

Ninth Circuit Court of Appeals Practice Guide

Last month, the HSBA Appellate Section unveiled its Federal Appellate Practice Manual.  The Manual includes sections on filing appeals, motions practice, staying the lower court proceedings, briefing, oral arguments, post-decision matters, and more.  Ninth Circuit Judge Richard Clifton contributed to the briefing and oral argument chapters.  The Manual focuses on federal practice in both the Ninth Circuit and the United States Supreme Court.

The Appellate Section Manual is available here.

On October 18, 2013, the Appellate Lawyer Representatives of the Ninth Circuit released a similar Practice Guide.  According to the Ninth Circuit, "[e]ven seasoned appellate lawyers may benefit from [the] new publication[.]"  The Practice Guide includes sections similar to those in the HSBA Appellate Section Manual.

For more information on the Practice Guide, the press release is here, and the Guide itself is available here

SCOTUS Issues Opinions in Prop 8 & DOMA Cases

This morning, the United States Supreme Court issued its opinions in the cases involving California's Proposition 8 (a case we've covered extensively on this blog) and the Defense of Marriage Act.  There will be much commentary to come from many sources, but below is a brief summary of each opinion:

Hollingsworth v. Perry (Prop 8): the Proponents of Prop 8 do not have standing to appeal the district court's order that Prop. 8 is unconstitutional.  Standing in this case is a question of federal, not state law. Thus, the California Supreme Court's decision that Petitioners had standing cannot contravene federal law to the contrary. Petitioners do not have standing because they have no role in the enforcement of Prop 8 and have no personal stake in defending its enforcement.  The opinion was written by Chief Justice Roberts and is available here.

United States v. Windsor (DOMA): the Defense of Marriage Act is unconstitutional. The Act constitutes a deprivation of equal liberty protected by the Fifth Amendment. The Act injures a class of people that New York (in recognizing valid same-sex marriages) seeks to protect which violates basic due process and equal protection principles. DOMA's principal effect is to identify and make unequal a subset of state-sanctioned marriages, and forces couples to live as married for state purposes but unmarried for federal purposes. The opinion was written by Justice Kennedy and is available here.

SCOTUS: Federal Funding Cannot Compel A Belief Outside the Scope of the Government Program

The United States Supreme Court issued a First Amendment decision today in  related to the issue of whether the First Amendment is violated by a requirement I the “United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003” that precludes funds available under the Act from being used by organizations that do not have an explicit policy opposing prostitution (under a related provision, funds may not be used to promote or advocate the legalization or practice of prostitution).

 The Alliance for Open Society International is a nongovernmental organization that receives funds under the Act, but has chose to remain neutral on the issue of prostitution. The Second Circuit Court of Appeals held that the “Policy Requirement” of the Act – the provision requiring opposition to prostitution – violated the Alliance’s freedom of speech. 

SCOTUS affirmed, holding that by compelling a condition of federal funding an affirmation of a belief that by its nature cannot be confined within the scope of the Government, the Policy Requirement violated the First Amendment.

According to the court, “[b]y demanding that funding recipients adopt – as their own – the Government’s view on an issue of public concern, the condition by its very nature affects protected conduct outside the scope of the federally funded program.” Slip. Op. at 12 (citation and quotation marks omitted).

The court’s full opinion is available here.

 For more commentary on the opinion, visit Scotusblog.com here.

The Other Supreme Court Case on the Definition of Marriage: DOMA In Trouble

Fellow bloggers at SCOTUSblog have this to say after oral arguments heard today in United States v. Windsor:

"If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence."

For the full post, go here.

To listen to the oral arguments, go here.

To read the transcript, go here.

Dog Sniff in Curtilage of Home is Fourth Amendment Search

"That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred."  Florida v. Jardines (March 26, 2013).

Today (perhaps overshadowed by the Prop. 8 oral arguments), the United States Supreme Court held that a dog sniff of "the curtilage" of a person's house (that area immediately surrounding the house) is a search under the Fourth Amendment.  The Court explained that although an officer may approach a home and knock on the door (just as a Girl Scout or trick-or-treater may do), "introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else." 

According to the Court:  "The government’s use of trained police dogs to investigate the home and its immediate surroundings is a'search' within the meaning of the Fourth Amendment."  Slip. Op. at 10.  The Court's decision affirmed a decision by the Florida Supreme Court that held evidence of narcotics obtained by virtue of the search must be excluded for lack of probable cause. 

To read the full opinion, go here.

Intel on United States Supreme Court's Potential Prop 8 Decision

Here's an overview of information available on the oral arguments heard today by the United States Supreme Court.

Go here to read the transcript or here to listen to the arguments.

SCOTUS blog has a couple interesting recaps here and here.

Tom Goldstein, at SCOTUS blog, has this prediction on the court's decision (not expected until June):

"The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail.  He was deeply concerned with the wisdom of acting now when in his view the social science of the effects of same-sex marriage is uncertain because it is so new.  He also noted the doubts about the petitioners’ standing.  So his suggestion was that the case should be dismissed.

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms.  First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing.  That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8.  Another case with different petitioners (perhaps a government official who did not want to administer a same-sex marriage) could come to the Supreme Court within two to three years, if the Justices were willing to hear it.

Second, the Court may dismiss the case because of an inability to reach a majority.   Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him.  Others on the left may agree.  That ruling would leave in place the Ninth Circuit’s decision."

 

Why Do Attorneys Join the United States Supreme Court Bar?

This blogger is quoted in an article released today by the Associated Press written by reporter Jessica Gresko on the topic of why attorneys become members of the United States Supreme Court Bar.

Ms. Gresko's opinion on the reason is clear from the article:  vanity.  

My interview lasted an hour.  My personal opinion wasn't one of vanity (at least not personally, particularly since I am an active practicing appellate attorney), but she did ask me if some attorneys thought of the membership as a trophy.  I personally became a member out of necessity in order to assist with the writing and filing of a brief on behalf of a client.  

Nevertheless, I think her premise holds some accuracay particularly for those who will never appear before the court (either on briefs or for oral arguments).

Here is a link to the article:  For lawyers, the Supreme Court bar is vanity trip