5 Things To Look At In Supreme Court Oral Arguments Tomorrow (4/28/15)

Huffpost decided to write about 5 things that we should look at arguments tomorrow so I decided to add some of my own commentary

(http://www.huffingtonpost.com/adam-winkler/five-things-to-look-for-i_b_7151292.html)

1.      Justice Kennedy—Kennedy is the swing vote and has written every single legal LGBT victory, from Romer in 1996 Lawrence in 2003 and Windsor in 2013 the kinds of questions he asks will give some indication of what his line of thought could be. Yet, we should be cautious as in the case of the Affordable Care Act it was upheld and many court watchers thought that it was sure to be struck down

2.      Baker v Nelson—In 1972 the Supreme Court summarily dismissed an Equal Protection challenge to MN marriage law for “want of federal question” which meant that they didn’t feel a federal challenge wasn’t necessary. Next, this was before Romer, Lawrence and Windsor which has shown that Baker v Nelson isn’t specifically controlling because these cases show that there have been doctrinal developments to the contrary which weaken Baker as court precedent. The court may not explicitly address this, but it has been constantly stated in many of the other court rulings like Bostic that Baker doesn’t control the cases at hand. Also Morse v Republican Party says that “a summary dismissal is a slender reed on which to base future decisions” Further, I know there is a case that said that the right to marry includes marrying the partner of your choice

3.      The Standard of Review—The right to marry is a fundamental right so it might get a more rigorous standard of review. Yet there are some things they have to look at

Suspect classification. A class of individuals that have been historically subject to discrimination. Any statute that makes a distinction between individuals based on any of the suspect classifications (i.e. alienage, race) will be subject to a strict scrutiny standard of review before the Supreme Court.

• To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result
• Intermediate (Serve an important government objective, and be substantially related to achieving the objective.)
• Rational: The government has no legitimate interest in the law or policy; or there is no reasonable, rational link between that interest and the challenged law.

It all depends on what the Court will say: The method of review will probably be rational basis unless the court does in fact establish that gay people are a suspect class

4.      The Second Question—The Recognition Factor. If there is a fundamental right to marry, then is that fundamental right violated when interstate travel is concerned? Many times, a state will honor a marriage from MO in KS in the event that say, the couple moves to KS for work or something else. If the court recognizes that yes, the right is fundamental the next question is just about moot. I would rather see them say that no state can refuse to give Full Faith and Credit to that marriage. If this is the case, then S2 of DOMA would instantly be overturned

5.      Originalism—A lot of people often tell us that the Founders never fathomed gay people wanting to get married, neither could they fathom interracial marriages or other kinds of challenges they would’ve been more specific. However when we look at the 14^th Amendment it was made to give equal protections to both black and white similarly situated persons, no state shall deny equal protection of the laws. Some might state that the original intent was black and white but in 1954 the Supreme Court said that Mexicans and I’ll further say Hispanic people were covered under the Amendment. We’ll hear a lot of people say that it’s okay to treat different things differently but the same “logic” failed in the Loving case. An article at Slate.com said it best

6.      (http://www.slate.com/blogs/outward/2015/04/10/a_brilliant_originalist_argument_for_marriage_equality.html?wpsrc=fol_tw)

Laws that outlaw marriage equality, of course, exemplify class-based legislation: By outlawing same-sex marriage, the government has targeted a class of people and disadvantaged them based on their identity. South Carolina is correct that the 14^th Amendment’s framers didn’t foresee the equal protection clause’s application to gay people. But it’s not really accurate to say that these men didn’t intend their amendment to apply to new minorities. Few legislators in 1866 could have predicted the emergence of gays (or, for that matter, women) as fully participating members of society—as citizens, in a word. Luckily for us, they intentionally wrote an amendment that spoke in extremely broad terms that, by their plain text, protect classes today who were barely recognized as people 150 years ago. That, at least, is the originalist theory in support of marriage equality—one that makes South Carolina’s cherry-picked history lesson look an awful lot like pretext for bigotry.

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