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Reagan Appointee Vindicates Marriage Equality

Marriage equality advocates could hardly have picked a better panel of appeals judges than the panel that heard and decided challenges to same-sex marriage bans in Indiana and Wisconsin. David Hamilton, an Obama appointee, and Ann Williams, a Clinton appointee, could form a two-vote majority regardless who the third judge was.

But the third judge was Richard Posner. Posner was a liberal early in his career, clerking for the great liberal Supreme Court Justice William Brennan and working in the Lyndon Johnson administration under Solicitor General Thurgood Marshall. His politics turned conservative in reaction to what he regarded as the excesses of the late ’60s. Ronald Reagan appointed Posner to the federal Court of Appeals for the Seventh Circuit in 1981.

On the bench, Judge Posner established himself as a pragmatic and independent thinker and a judicial scholar. He is critical of the “war on drugs” and favors legalization of marijuana possession and use; he has been sympathetic to women’s right to choose; and he has characterized judicial rulings against the rights of prisoners as treating prisoners “as a type of vermin, devoid of human dignity and entitled to no respect.”

Posner’s prolific writing, combining hard-headed pragmatism, plain language, and an aversion to fads and trends, earned him wide admiration. A 2000 study found that Posner was the most often cited legal scholar of all time, with nearly twice as many citations as whoever came in second.

In recent years, Judge Posner has found himself at odds with Republican orthodoxy. In 2012, in his characteristically blunt manner, he told Nina Totenberg, “I’ve become less conservative since the Republican Party started becoming goofy.”

The Posner-Williams-Hamilton panel heard oral arguments on the Indiana and Wisconsin same-sex marriage cases on Tuesday, August 26. Last Thursday, just six work days later, the panel issued its decision: a unanimous 40-page demolition of legal opposition to marriage equality. The opinion was written by Judge Posner – as the senior member of the panel, he presumably got to decide who wrote the decision, and he assigned it to himself.

The decision is classic Posner. It has no footnotes and no section headings – two of the genetic markers of the inbred style of modern legal and judicial writing. The writing is blunt and direct, and the vocabulary is not high-fallutin’. The decision engages in no tortured discussion of legal arcana like the applicable standard of scrutiny; it engages in no angels-on-the-head-of-a-pin parsing of precedents. It is a straightforward discussion whether the legal reasoning opposing marriage equality makes sense. The decision does not require legal training or scholarship to understand; it is clear that Posner wanted to write something that any educated American could read and understand. The most demanding paragraph in the entire decision renders a layman-level summary of the thinking of John Stuart Mill, to make the point that simply being offended by someone else’s action is insufficient to make that action illegal.

My favorite passage in the decision comes at the end of Posner’s consideration of Indiana’s argument that marriage is limited to opposite-sex couples in order to protect children born from unintended pregnancies. The protection takes the form of a carrot-and-stick approach. Where a pregnancy and birth are unintended, Indiana tries to push the parents into marriage by refusing to give any legal significance or economic benefit to the relationship between the parents. And when procreating parents marry, Indiana rewards them with recognition and benefits. Same-sex couples can’t produce unintended births, so there is no need for Indiana to push them to marry, nor to reward them for marrying, since neither will promote the welfare of unintended children.

Posner toys with Indiana’s argument, and with Indiana’s responses to criticisms of its arguments, for a few pages, then brings down the boom:

“In other words, Indiana’s government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents – model citizens really – so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

This is probably the first time I’ve seen the phrase “unwanted children by the carload” in a judicial opinion, and probably the first time I’ve seen “go figure”; it is certainly the first time I’ve seen them in the same paragraph, and that paragraph is a door-slamming conclusion to Judge Posner’s point.

Posner then ices the cake, if you’ll pardon the mixaphor, by noting a study that shows that in both Indiana and Wisconsin, same-sex couples are far more likely to adopt children than opposite-sex couples are. In other words, same-sex couples are looking after the welfare of unwanted children at a rather greater rate than opposite-sex couples are, even though it is only opposite-sex couples that create unwanted children. Accepting Indiana’s argument that children are better off if their parents, biological or adoptive, are married, Posner leads the reader to the realization that allowing same-sex marriage furthers the very purpose that Indiana claims for disallowing same-sex marriage. QED: it makes no sense.

The Seventh Circuit thus joined the Fourth and Tenth Circuits in striking down states’ same-sex marriage bans. Indiana and Wisconsin immediately promised appeals to the Supreme Court, joining appeals already filed from Oklahoma, Utah and Virginia. It is likely that other federal appeals courts will speak before the Supreme Court rules. The Sixth Circuit heard argument in a bracket of cases from Kentucky, Michigan, Ohio and Tennessee on August 6, and the Ninth Circuit is scheduled to hear arguments in cases from Hawaii, Idaho and Nevada on Monday. The Fifth Circuit briefing in a challenge to Texas’s ban on same-sex marriage will be completed this month.

The Supreme Court will convene its first conference of the 2014 – 2015 term on September 29. None of the cases from Oklahoma, Utah and Virginia is scheduled for consideration at that conference. I would expect that the Court will not be in any hurry to decide which, if any, of the marriage equality cases it will consider. Instead, I think the Court will try to wait for more decisions from the courts of appeals.

Although it takes only four justices to decide to consider a case, I think all or almost all of the justices will vote to consider marriage equality this term. The issue is front and center, legally and politically, and the Court would be much more ridiculed than praised if it tried to duck the issue, even among marriage equality advocates. That means we’ll have a Supreme Court decision on same-sex marriage, probably at the very end of the term next June.

 

Don’t Do Stupid Stuff

Westerners tend to think of China as an East Asian country, but China stretches far west into Central Asia. China’s western border abuts five Central Asian “stans”: Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan and Pakistan. The westernmost province of China, the Xinjiang Uighur Autonomous Region, is largely populated by a Turkic people known as Uighurs.

Uighurs have a long history in Central Asia, including the eighth-to-ninth century Uighur Khaganate, or Empire, that reached as far west as the Caspian Sea, and two successor kingdoms that were not finally vanquished by the Mongols until the 1390s. Early Uighurs converted from ancient religions to Buddhism, then very gradually converted to Islam over 700 years beginning in the tenth century. The Uighurs fell under Chinese control over the course of the last imperial Chinese dynasty, the Qing.

Uighurs repeatedly rebelled against Chinese rule, winning at least nominal independence once in 1933, and once in 1944 – the latter time with Soviet backing, lasting five years until Mao Zedong’s victory over the Nationalists in 1949. Uighur unrest continued under Chinese Communist rule, although no longer with Soviet support. The unrest has occasionally become violent, always violently suppressed by the Chinese government.

China has long tried to dilute the Uighur population by encouraging ethnic Han to resettle in Xinjiang. This week, the Chinese government went farther: the government announced a program of cash payments and other incentives to encourage marriages between Uighurs and Han. The stated purpose of the program is to calm inter-ethnic tensions, but from the Uighur point of view it must look like the purpose is to wipe out Uighur ethnicity.

The short of it is that the Uighurs are an ethnic group with a proud history and a distinctive identity, a minority in a country whose official policy includes suppressing them. Those circumstances would radicalize pretty much anyone. Sure enough, Uighurs have formed pan-Islamic, pan-Turkic, and Uighurstan independence movements.

Uighurs are concentrated in the Tarim Basin in the southwest of the province; therefore the bulk of the Uighur people live closer to Kabul, Islamabad and even Tehran than to Beijing. The westernmost edge of Xinjiang is actually closer to Syria than to Beijing.

Twenty-two Uighurs found themselves among the 568 detainees at Guantanamo Bay. Most were accused of being members of the Uighur independence movement who underwent training at an Al Qaeda camp, but fled the camp when the United States bombed it in 2001.

None of the 22 Uighurs expressed animosity toward the United States, but only toward China, and none wanted to return there. Apparently all were determined not to be enemy combatants and they were ultimately transferred to Albania, Bermuda, El Salvador, Palau, Slovakia and Switzerland. Neither the harsh conditions nor the long duration of the Uighurs’ confinement at Guantanamo was acceptable, given that none of them was ever prosecuted. They can’t have gone away with any great fondness for the United States.

There have been persistent reports of Uighurs fighting alongside Syrian rebels, and those reports have a certain credibility. Uighurs are Sunni Muslims, so might well be motivated to oppose the Syrian Alawite regime. But just as important, China is among the Syrian government’s chief backers, so opposing Bashar al-Assad could be seen as opposing China.

Uighurs fighting against Assad is one thing. To discredit Uighur activists, the Chinese government has been actively promoting the idea that Uighurs are fighting with ISIS. The fact that Chinese credibility is dubious on this point doesn’t necessarily mean that the accusation is incorrect. ISIS is Sunni, as is Al Qaeda and several others of the more violent Islamist groups in the Middle East. It’s no great leap to imagine alienated Uighurs looking to violent solutions to their suppression.

The world is complicated. We’re fighting ISIS, and so is Assad, who we want to surrender power. We’re aiding moderate Syrian rebels who are also trying to overthrow Assad. ISIS and the moderate rebels both want to overthrow Assad but are also fighting each other. Shiites backed by Iran are fighting ISIS, but we don’t trust Iran and we think Iran is trying to develop nuclear weapons. We also don’t trust Iraq, whose ruling Shiite party we would like to be more inclusive; but Iraq is also fighting ISIS. All of the above hate Israel, one of our closest allies. China backs Assad, and condemns ISIS, but treats its Uighur minority badly.

This ain’t tic-tac-toe. In this game, a move that seems small and unimportant now might be revealed 30 moves later to have been disastrous. Toward one end of the spectrum of outcomes is ouster of Assad by moderate rebels, pluralized Iraqi government, neutered ISIS, de-nuclearized Iran, and democratic China. Somewhere toward the other end of the spectrum is a war of all against all from Egypt to Iran and from Turkey to Iraq, the destruction of Israel, and the deaths of millions.

It shouldn’t be controversial to say that care is called for. Let’s don’t do stupid stuff.

 

I Spy

In May 2013, Edward Snowden took a leave of absence from his job at Dell, where he was contracted to work at the National Security Agency offices in Hawaii. He told his employers he was going to the mainland United States for epilepsy treatment, but instead he flew to Hong Kong, arriving on May 20.

Snowden took with him, and released, electronic copies of some 1.7 million classified documents, including documentation of massive NSA surveillance programs, foreign and domestic. The legality of the domestic surveillance programs remains in doubt, with two federal trial-level courts dividing on the question, and no appellate rulings to date.

The NSA’s foreign surveillance programs do not raise American constitutional questions – the American constitution does not apply to foreigners living abroad. But those programs do raise political and international relations questions.

Among the more embarrassing revelations from the Snowden documents about foreign surveillance was the long-time tapping of German Chancellor Angela Merkel’s cell phone. Reuters characterized Merkel’s reaction as “frosty”:

“It’s not just about me but about every German citizen. We need to have trust in our allies and partners, and this trust must now be established once again…. I repeat that spying among friends is not at all acceptable against anyone, and that goes for every citizen in Germany.”

In Merkel’s outrage, there was an edge of Captain Renault being shocked, shocked at the gambling going on in this establishment. And sure enough, the Times reported yesterday on German spying against its NATO ally, Turkey. Now it’s the Turks’ turn to be shocked, shocked, although I’m sure there are Turks working undercover in capital cities across Europe and the Middle East.

Caught up in the spying against Turkey were conversations by then-Secretary of State Hillary Clinton, talking to Kofi Annan following his mission to Syria, and a conversation of Clinton’s successor, John Kerry, during negotiations between Israel and Palestine. Kerry lodged a complaint with the German government, although he had the grace to do so quietly, without the public bombast.

Chancellor Merkel denied that German spying on Turkey violated her rule against friends spying on friends, because her condemnation of American spying came “in a recognizable context.”

Well, that certainly explains it.

 

August 6 in the Sixth Circuit

On Wednesday, August 6, at 1:00 p.m., a three-judge panel of the federal Court of Appeals for the Sixth Circuit will convene in the Sixth Floor West courtroom of the Potter Stewart Courthouse in Cincinnati. The judges will hear marriage equality arguments in six cases from all four states within the Sixth Circuit – Kentucky, Michigan, Ohio and Tennessee. The judges on the panel are Martha Craig Daughtrey, a Clinton appointee, and Jeffrey Sutton and Deborah Cook, both George W. Bush appointees.

None of the three judges are especially well known, which is par for federal judges below the Supreme Court. Judge Daughtrey came to the federal bench from the Tennessee courts, where she was the first woman to serve on the Tennessee Supreme Court. She appears to have a somewhat liberal background, and in fact some Republicans opposed her nomination to the federal bench because they regarded her as a death penalty opponent.

Judge Sutton came from private practice in Ohio. He was a controversial nominee, confirmed by a close Senate vote in 2003. He has made something of a name for himself by writing conservative majority opinions for the court when it sits “en banc” – meaning the entire court, not just a three-judge panel. On the other hand, Judge Sutton was the first Republican-appointed judge to vote to uphold the Affordable Care Act’s individual mandate.

Judge Cook came from the Ohio judiciary, where she had a reputation for siding with corporate interests. Her federal judicial career has been largely free of controversial decisions. One exception was an interesting Fourth Amendment case in which she sided for the defendant and ruled for suppression of evidence seized from the defendant’s illegally rented hotel room.

I’ve previously observed that the party of appointment of a federal judge has not been a useful predictor of the judge’s vote in a marriage equality case after United States v. Windsor, when the Supreme Court struck down the Defense of Marriage Act. The pro-equality organization Freedom to Marry counts 28 marriage equality wins and no losses since Windsor.

Still, a three-judge panel with two George W. Bush appointees on it, from an appeals court dominated by conservatives, will test that theory.

The Sixth Circuit Court of Appeals will be the third court of appeals to hear marriage post-Windsor equality cases.  The Tenth Circuit struck down same-sex marriage bans in Oklahoma and Utah this summer, staying both rulings pending Supreme Court review. The Fourth Circuit heard arguments in a challenge to Virginia’s same-sex marriage ban in May, but hasn’t ruled yet.

The Seventh Circuit will hear arguments on August 13, in cases coming from Wisconsin and Indiana. And the Ninth Circuit has arguments scheduled for September 8 in cases from Idaho and Nevada, plus a technical appeal in a case from Hawaii, which legislatively adopted marriage equality last year.

*          *          *

UPDATE:  Not two hours after I posted this, the Fourth Circuit issued a 2 – 1 ruling against Virginia’s same-sex marriage ban. As the Tenth Circuit had before it, the Fourth Circuit majority found that restrictions on the fundamental constitutional right to marry are subject to “strict scrutiny,” the most demanding standard of constitutional review; and concluded that a ban on same-sex marriage cannot survive that standard.

The majority opinion was written by Judge Henry Floyd, an Obama appointee. He was joined by Judge Roger Gregory, a George W. Bush appointee. In dissent was Judge Paul Niemeyer, a George H. W. Bush appointee. Two federal courts of appeals have now spoken, and both have ruled in favor of marriage equality.

Boat People

In April 1975, as the North Vietnamese and Viet Cong closed in on Saigon, President Gerald Ford called together key officials of his administration and asked them to plan and implement an evacuation of Americans, South Vietnamese who had worked with Americans, and others from Saigon. Ultimately about 138,000 Vietnamese were evacuated, and about 130,000 of them were resettled in the United States.

Resettlement camps were set up at four military bases around the country, one of them at Fort Indiantown Gap, not far from my home town. The refugees were resettled from the military bases to all 50 states. I remember that my little town suddenly had more Vietnamese restaurants than movie theaters.

The Communist Vietnamese government initially engaged in what was called a “velvety transition.” But before long, the government started sending mass numbers of South Vietnamese to “re-education camps,” worked vigorously to stamp out all vestiges of private enterprise, and cracked down on dissent. People began to flee.

Flight escalated to exodus: in September 1978, a ship named the Southern Cross unloaded more than 1,200 Vietnamese people on an Indonesian island. The peak of the exodus was June 1979, when 59,000 Vietnamese people landed on southeast Asian shores – the Philippines, Indonesia, Malaysia, Hong Kong, Thailand, and other countries.

Although many of the initial wave of refugees traveled on large ships, southeast Asian nations started refusing landing to those larger vessels, leading subsequent waves of refugees to evade authorities by using small, overcrowded, dangerously leaky boats. The refugees became known as “boat people.”

The United Nations convened an international conference to deal with the refugee crisis, and, in July 1979, the United States and other western countries agreed to increase the number of refugees they would accept. In just four years, 623,000 Vietnamese refugees were re-settled in western countries, the majority coming to the United States, Australia, France and Canada.

I don’t remember any great American popular resistance to accepting Vietnamese refugees, either in 1975 or in the 1979 to 1982 period. I remember public officials expressing compassion – in particular, I remember the Republican governor of Iowa, Robert Ray, remarking to the effect of, “we are all boat people,” invoking America’s immigrant heritage, as well as the desperate circumstances of many of our immigrant ancestors.

In an important respect, our country has changed for the worse since the 1970s. Central American children are coming to our southern border in search of safety. Boys and girls as young as seven years old are traveling unaccompanied 1,500 miles or more to get away from gang warfare and other violence, coming to our border in hopes of saving their lives.

Their numbers are not huge – at last count, 52,000 kids had arrived since the wave began in 2012. That is almost exactly the number of American orphans adopted by American families each year; the total number of adoptions by American families per year is about 120,000. Ironically, many American families looking to adopt travel to the very same countries that these kids are fleeing, especially Guatemala.

The waves of Vietnamese refugees were perhaps more closely and obviously connected to American actions than the Central American refugees are. But make no mistake: American actions in Central America are far from blameless, including specifically as it relates to this refugee crisis. At one time or another, American interests made most Central American countries into banana republics. We installed or backed autocrats, we exploited people and resources, and we sent arms or even soldiers.

In 2008, we enacted a law that provided for an asylum hearing before deportation of any child from a country not bordering the United States. We enacted that law in reaction to child trafficking, one of the most despicable practices every concocted by humans.

But now it has become inconvenient to house and feed children while they wait for their hearings. So the cry has gone up to repeal the 2008 law. The cry has gone up to deport these children now, to refuse them entry at the border, to send them back into the desert they crossed to get here. The cry has gone up: “What part of ‘illegal’ don’t you understand?”, as if children need legal justification to flee for their young lives.

Many of the people letting loose these cries wave the American flag, surely one of the most insulting invocations of patriotism in recent history. Many of these folks also invoke Jesus Christ – the same Jesus Christ who demanded that his disciples “let the little children come to me”; who preached that if a man forces you to walk one mile with him, you should walk with him a second mile, and if a man steals your coat you should also give him your shirt.

Other than Native Americans, we all immigrated from somewhere else. “The law is the law” makes a nice slogan, but it also makes a convenient substitute for thought and an excuse for appalling callousness. We are indeed all boat people. Let the little children come to us.

Let the Little Children Come to Me

Murrieta, California, takes its name from two Basque sheep ranchers, the brothers Esequial and Juan Murrieta, who bought and worked 52,000 acres of meadow land in the late 1800s, roughly half-way between Los Angeles and San Diego.

Murrieta enjoyed a boomlet from 1882 to 1935, the lifetime of Murrieta’s passenger rail service, as tourists came to visit nearby hot springs. After rail service ended, Murrieta was a sleepy small town, housing just 2,200 residents as late as 1980. Then Interstate 15 was built right through Murrieta, and the population topped 100,000 by 2010.

Now a small city, Murrieta remains a conservative bastion, known for its anti-gay, anti-immigrant, anti-Muslim views. The population is 55 percent non-Hispanic white and 26 percent Hispanic, with significant African-American and Asian-American minorities. As close as it is to the Mexican border, and with California’s liberal policies on immigration, the non-Hispanic white population no doubt concerns itself about shrinking to minority status.

Murrieta is home to the Calvary Chapel Bible College, an unaccredited institution founded by the  late evangelical pastor Chuck Smith. Smith was one of those who attributed the 9/11 attacks to divine revenge for America’s tolerance of homosexuality and abortion.

Earlier, Smith had predicted that the world would end with the second coming of Christ, before the end of 1981. On the very last day of the year, New Year’s Eve 1981, Calvary Chapel held a service for the congregation to await the fulfillment of Smith’s prophecy. Of course, 1982 checked in right on schedule, but as it is ever with false prophets, Smith continued unhumbled for 30 more years.

The recent surge of unaccompanied children illegally crossing into the American southwest has been widely reported. Children caught illegally immigrating are treated differently than adults; deportation of unaccompanied children is too cruel even for American immigration policy.

But it is not too cruel for Murrieta, California. As facilities have filled, and conditions deteriorated, federal officials have begun flying and busing children to facilities elsewhere. Buses carrying 300 illegal immigrants to Murrieta were blocked Tuesday by a mob of white, flag-waving Murrietans, evidently with the full support of Murrieta’s elected leaders. In the showdown between the mob and the buses, the mob won, and the buses turned around and headed off to San Diego.

There were counter-protesters on hand, an ethnically mixed crowd preaching love and care for the children, contrasting starkly with the all-white anti-immigrant protesters, faces blazing with hate, waving the Red, White and Blue.

I obviously have no idea whether any of the protesters expected the second coming of Christ in 1981, or expect it still, but I do think many of them could pay more attention to the words of Christ his first time around.

It’s one thing for a country of immigrants to give hostile treatment to adults who come here looking for a better life. But people who want our government to stop children at our border and send them back into the desert have lost something important: they have lost empathy; they have lost compassion. Let the little children come to us.

 

The Tenth Shall Be First

The federal Court of Appeals for the Tenth Circuit today rejected Utah’s prohibition against same-sex marriage. After a long series of federal trial-level decisions rejecting same-sex marriage bans, this was the first federal appellate court ruling on the question since the Supreme Court struck down the Defense of Marriage Act last June. The name of the case is Kitchen v. Herbert.

The decision was not unanimous. Judge Paul Kelly, a George H.W. Bush appointee, would have upheld the same-sex marriage ban. Judges Carlos Lucero, a Clinton appointee, and Judge Jerome Holmes, a George W. Bush appointee, out-voted Judge Kelly.

In addition to Utah, the Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. New Mexico already permits same-sex marriage, so today’s decision makes no change there. Even in the other five states, change will have to wait – the court stayed its ruling pending possible review by the U.S. Supreme Court.

The losing defendants, the governor and attorney general of Utah, have 90 days to ask the Supreme Court to consider the case. Opposition papers are then due 30 days later. The Court can decide whether to hear the case any time after that.

Although public opinion in Utah has shifted dramatically this year, and even the Mormon church has softened its opposition, a majority still oppose same-sex marriage. Therefore, unlike Pennsylvania’s Republican Governor Tom Corbett, who chose not to appeal when his state’s marriage ban was struck down, I expect that Utah’s Republican Governor Gary Herbert will appeal.

But I don’t think the Supreme Court is going to be in any hurry to consider this case. Justice Anthony Kennedy, in his majority opinion in the DOMA case, promised that the DOMA decision did not pre-determine the outcome of the same-sex marriage issue. In his dissenting opinion, Justice Antonin Scalia pilloried that disclaimer, and of course Justice Scalia was right. I think Justice Kennedy is going to want to have more than one court of appeals decision on his side before he goes there.

In any event, the Supreme Court often decides to get involved only where there is a “conflict in the circuits” – meaning different outcomes from different federal courts of appeals. Cases are already pending in five other courts of appeals – for the fourth, fifth, sixth, seventh and ninth circuits. I would expect the Supreme Court to put the Kitchen v. Herbert decision on hold for awhile, to see how some of the other courts of appeals rule.

I’ve argued that a short delay in Supreme Court review would be in the interests of marriage equality. The Court tends to enter into the big social issues only as the country is nearing consensus. I’ve pointed out that the Court did not strike down bans on interracial marriage until only 16 states still had them, and did not strike down sodomy laws until only 14 states still had them. As of now, 31 states still ban same-sex marriage.

Another Tenth Circuit case, from Oklahoma, was argued on April 17. A Virginia case was argued in the Fourth Circuit Court of Appeals on May 13. Cases from four states will be argued on August 6 in the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee. And an Idaho case is tentatively scheduled for argument in the Ninth Circuit during the week of September 8. State court litigation is also pending in a number of states.

Today’s decision was a little on the fast side for federal appeals courts – only 76 days from argument to decision. If some of the other cases take longer to decide, it could easily be January or February before the Supreme Court decides whether to consider the same-sex marriage issue. At that point, it may not be possible to get briefing done and argument scheduled in time for a decision before the Court adjourns for the summer of 2015. That would put the decision off to the the 2015 – 2016 session, which I think at least several justices will want to do, and which I think will enhance the chances for success.

 

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