The Same Sex Marriage Cases

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Obergefell. v. Hodges, . Tanco. v. Haslam & . DeBoer. v. Snyder. History and Background. Presented by Scott Hickman: Mr. Hickman . practices in the areas of employment law and business dispute . ID: 606135 Download Presentation

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The Same Sex Marriage Cases




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Presentations text content in The Same Sex Marriage Cases

Slide1

The Same Sex Marriage Cases

Obergefell

v. Hodges,

Tanco

v. Haslam &

DeBoer

v. Snyder

Slide2

History and Background

Presented by Scott Hickman: Mr. Hickman

practices in the areas of employment law and business dispute

resolution at

Sherrard

& Roe, PLC.

His practice primarily involves assisting businesses involved in litigation or other dispute resolution, often representing employers in employment

matters. A graduate of Vanderbilt University Law School, Mr. Hickman was on the legal team that represented the plaintiffs in

Tanco

v. Haslam.

Slide3

Marriage Equality in Tennessee

Tenn. Code Ann. § 36-3-113

“AN ACT To amend Tennessee Code Annotated, Title 36, Chapter 3,

relative to same sex marriages

and the enforceability of

such

marriage contracts.” 1996 Tenn. Pub. Acts 1031 (emphasis added).

Tenn. Const. art. XI, § 18

“The . . . relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state”; and “[i]f another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state

by the provisions of this section

, then the marriage shall be void and unenforceable in this state.” (emphasis added).

Slide4

Marriage Equality in Tennessee

Genesis of Lawsuit

The Plaintiffs

Dr. Valeria

Tanco

and Dr.

Sophy

Jesty

Army Reserve Sergeant First Class

Ijpe

DeKoe

and Thomas

Kostura

Matthew Mansell and

Johno

Espejo

Recognition Only Case

Adverse Effects of Non-Recognition

Rights and Obligations

Need for Preliminary Injunction

Slide5

Marriage Equality in Tennessee

District Court Opinion

“[

D]

efendants

offer arguments that other federal courts have already considered and have consistently rejected, such as the argument that notions of federalism permit Tennessee to discriminate against same-sex marriages consummated in other states, that

Windsor

does not bind the states the same way that it binds the federal government, and that Anti–Recognition Laws have a rational basis because they further a state’s interest in procreation, which is essentially the only “rational basis” advanced by the defendants here

.”

Slide6

Marriage Equality in Tennessee

Issues Raised on Appeal

Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to

due process

under the Fourteenth Amendment by depriving them of their constitutionally-protected liberty interests in their existing marriages and burdening their exercise of the freedom to marry.

Whether Tennessee’s anti-recognition laws violate Plaintiffs’ right to

equal protection

of the laws under the Fourteenth Amendment by excluding all legally married same-sex couples from the protections and obligations of marriage on the basis of their sexual orientation and gender in order to treat same-sex couples and their children unequally

.

Whether Tennessee’s anti-recognition laws impermissibly burden Plaintiffs’ constitutionally protected

right to interstate travel

.

Slide7

Marriage Equality in Tennessee

Plaintiffs’ Positions

Exception to General Rule

Tennessee

has long applied the rule that “a marriage valid where celebrated is valid everywhere

.”

Due Process

(1) the fundamental right to

marry; and

(2)

the fundamental right to privacy and respect for an existing marital

relationship.

Equal Protection

Windsor

Gender Classification

Lack of Rational Basis

Interstate Travel

Slide8

Marriage Equality in Tennessee

Defendants’ Positions

Rational Basis

Plausible reason

Irrelevant whether plausible reason motivated

decision-maker

How does recognition further any of the state’s goals

?

Costs state $ to subsidize marriage

Can only conclude that legislation was

rational

– how get 80% of the population to act

irrationally

Plaintiffs misread the holding of

Loving

Baker v. Nelson

Slide9

Marriage Equality in Tennessee

Defendants’ Positions

No fundamental right implicated

Heightened Scrutiny does not apply

Slippery Slope

Role of Courts

Constitution presumes that even improvident decisions will eventually be rectified by the democratic

process

Change happens in long term – not what claimants can do for themselves in near term, it is what can be done for others in long

term

What has been done in these states to go through the democratic process

?

Slide10

Marriage Equality in Tennessee

Legal Environment Prior to Sixth Circuit Argument

21 cases (all) found an Equal Protection violation.

12 found a Due Process violation.

17 struck down a ban on same-sex marriage.

12 struck down a marriage recognition ban.

13 found a violation of the fundamental right to marry.

5 found a violation of the fundamental right to remain married.

6 found that classifications based on sexual orientation were subject to heightened scrutiny.

None found that the Equal Protection clause was violated because a same-sex marriage ban drew a classification based on sex.

12 found that even under rational basis, the ban was unconstitutional.

4 found a ban unconstitutional after applying intermediate scrutiny, and 6 after applying strict scrutiny (based on fundamental right).

14 courts rejected “tradition” as a state interest

.

14 courts rejected “responsible procreation” as a state interest.

15 courts rejected “optimal parenting” as a state interest.

11 courts rejected the “democratic process” as a state interest.

7 courts found the bans were impermissibly based on animus

Slide11

Marriage Equality in Tennessee

6

th

Circuit Majority Opinion

Framework for Constitutional Thinking

1972 case of

Baker v. Nelson

Limited Effect of

Windsor

Oct 6 Cert Denials Not Meaningful

No Fundamental Right –

Loving

No Animus – Not Enacted out of Hostility

Rational Basis Only Review

Regulation of sex between men and women

State’s desire to wait and see before “changing”

Up to Voters

Slide12

Marriage Equality in Tennessee

6

th

Circuit Dissenting Opinion

Separation of Powers and Fundamental Role of Courts

Real Harm; not an Abstraction

Rejection of any Rational Basis

Irresponsible Procreation Basis

Concern for Children

Drew on Factual Record

Review of Decisions from Other Circuits

Baker

is Dead Letter Law

Same Arguments Advanced in

Loving

Slide13

Marriage Equality in Tennessee

ISSUES PRESENTED IN SUPREME COURTIssue 1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? Issue 2: Does the Fourteenth 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?

13

Slide14

Marriage Equality in Tennessee

HOLDING: Judgment REVERSED, 5-4. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined. Scalia, J. filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

14

Slide15

Marriage Equality in Tennessee

The opinion seems to go out of its way not to state a standard of scrutiny. “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality . . . . Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." (Page 22.)

15

Slide16

Marriage Equality in Tennessee

Majority Opinion Rationale:1. Marriage is a Fundamental Right2. Violation of Equal Protection to extend only to opposite sex couples3. If marriage is a fundamental right, then marriages must be recognized

16

Slide17

Role of History: Majority Opinion

"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."

17

Slide18

Fundamental Right

(1) the right to personal choice in marriage is "inherent in the concept of individual autonomy"; (2)  a "two-person union [is] unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.

18

Slide19

Analysis of Children

"This is not to say that the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State."

19

Slide20

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. . . . [The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Majority Conclusion

20

Slide21

Kennedy Majority Opinion Haiku

Hark! Love is love, and

love

is love is love is love.

It

is so ordered.

By

Daniela

Lapidous

, “The SCOTUS Marriage Decision, in Haiku”

http://www.mcsweeneys.net/articles/the-scotus-marriage-decision-in-haiku

Slide22

The Dissents

Slide23

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.

(Picture from Getty)

Slide24

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.

at 1-2

(U.S. June 26, 2015) (Roberts, C.J., dissenting).

“But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”

Id. at

2

“The majority’s decision is an act of will, not legal judg­ment. The right it announces has no basis in the Consti­tution or this Court’s precedent.”

Id. at

3

“The majority today neglects that restrained conception of the judicial role.”

Id. at 3

Slide25

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of mar­riage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

Id. at 3

Slide26

HISTORY OF MARRIAGE

“(M)

arriage

between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”

Id. at 4

“It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.”

Id. at 5

 

DUE PROCESS CLAUSE

Roberts

accepted substantive due process,

by

which fundamental rights

 are protected through

the Due Process Clause,

but warned it has been misused over time to expand perceived fundamental rights.

Id. at 10-15

  Roberts stated that no prior decision had changed the core component of marriage, that it be between one man and one woman;

Id. at 16;

consequently, same-sex marriage bans did not violate the Due Process Clause.

Id. at 15-17

RIGHT TO PRIVACY

Roberts also rejected the notion that same-sex marriage bans violated

a right to privacy,

because they involved no government intrusion or subsequent punishment.

Id. at 17-18

EQUAL PROTECTION CLAUSE

Addressing

the Equal Protection Clause,

Roberts stated that same-sex marriage bans did not violate the clause “because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’”

Id. at 24

Slide27

OTHER CONCERNS

“The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that ‘it would disparage their choices and diminish their personhood to deny them this right.’”

Id. at 19

POLYGAMY: “Indeed, from the standpoint of history and tradi­tion, a leap from opposite-sex marriage to same-sex mar­riage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

Id. at 20

“What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ ‘better informed understanding’ of ‘a liberty that remains urgent in our own era.’”

Id. at 25

“When decisions are reached through democratic means

, some

people will inevitably be disappointed with the re­sults. But those whose views do not prevail at least

know that

they have had their say, and accordingly are—in

the tradition

of our political culture—reconciled to the

result of

a fair and honest debate. In addition, they can gear

up to

raise the issue later, hoping to persuade enough on

the winning

side to think again.” “But today the Court puts a stop to all that.”

Id. at 26

“Hard questions arise when people of faith

exercise religion

in ways that may be seen to conflict with the new right to same-sex marriage.”

Id. at 28

Slide28

Roberts Dissent Haiku

I

support you all

No

, really, I do, but this

Isn’t

our problem

.

By

Daniela

Lapidous

, “The SCOTUS Marriage Decision, in Haiku”

http://www.mcsweeneys.net/articles/the-scotus-marriage-decision-in-haiku

Slide29

Justice Scalia, with whom Justice Thomas joins, dissenting.

Photo courtesy of www.christianpost.com

Slide30

Scalia Dissent

Joins

Chief Justice Roberts’ dissent in full, but “write[s] separately to call attention to this Court’s threat to American Democracy.” (p.

1.)

General theme of dissent is that the majority exceeds the bounds of the role of the judiciary, infringing upon legislative power, the sovereignty of the states, and Americans’ freedom to govern

themselves

Attacks

majority opinion on two primary grounds:

1) Judicial activism (separation of powers and federalism);

and

2

) “Hubris” of majority

Slide31

“So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 Million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” (p. 2.)“And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.” (p. 6.)

Scalia Dissent

- Judicial Activism – In General

Slide32

“Regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (p. 3 (citing U.S. v. Windsor, 570 U.S. ____, ____ (2013) (slip op., at 16) (internal quotation marks and citation omitted).)“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” (p. 4.)“We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.” (p. 4.)The prohibition on defining marriage as an institution consisting of one man and one woman “is a naked judicial claim to legislative -- indeed, super-legislative -- power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” (p. 5.)

Scalia Dissent

- Judicial Activism –

Separation of Powers and Federalism

Slide33

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” (p. 6-7 (internal citations omitted).)“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” (p. 9.)“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. . . . With each decision of ours that takes from the People a question properly left to them -- with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court -- we move one step closer to being reminded of our impotence.” (p. 9.)

Scalia Dissent

-

“Hubris” of Majority

Slide34

Scalia Dissent Haiku

You’re not a poet,

Kennedy

. And by the way,

Democracy’s

dead.

By

Daniela

Lapidous

, “The SCOTUS Marriage Decision, in Haiku”

http://www.mcsweeneys.net/articles/the-scotus-marriage-decision-in-haiku

Slide35

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

Supreme Court Justice Clarence Thomas addressed the Federalist Society in Washington in 2007. Photo: AP/Charles

Dharapak

Slide36

Focus on Due Process, Not Equal Protection

The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States

largely based on a constitutional provision guaranteeing

due process

” before a person is deprived of his “life, liberty, or property.”

(p. 2)

The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 19. Despite the “synergy” it finds “between

th

[

ese

] two protections,” ante, at 20,

the majority clearly uses equal protection only to shore up its substantive due process analysis

, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition.

(p. 3 n.1)

Slide37

“Liberty” Protected by the Process Means “Locomotion”

As used in the Due Process Clauses, “liberty” most likely refers to “the

power of loco-motion

, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct;

without imprisonment or restraint

, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.

(p. 4)

1215 Magna Carta (1964 Translation & Commentary)

1225 Magna Carta (1797 Commentary)

1721 Treatise (Henry Care)

1797 Commentary (Sir Edward Coke)

1769 Commentary (William Blackstone)

1776: Framers

m

odified Magna Carta language

State Court decisions pre-14

th

Amendment “almost uniformly” construed liberty to refer only to freedom from physical restraint

1890 Treatise (Shattuck)

14

th

Amendment (“If the Fifth Amendment uses ‘liberty’ in this narrow

sense, then the Fourteenth Amendment likely does as well.”)

Slide38

Entitlements

Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been

able to cohabitate and raise their children in peace

. They have been able to

hold civil marriage ceremonies

in States that recognize same-sex marriages and

private religious ceremonies

in all States. They have been able to

travel freely

around the country, making their homes where they please. . . .

Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. . . .Nor have the States prevented petitioners from

approximating a number of incidents of marriage

through private legal means, such as wills, trusts, and powers of attorney.

Instead, the States have

refused to grant them governmental entitlements

. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely

because of

the government. They want, for example, to receive the State’s

imprimatur

on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of .liberty” that the Framers would have recognized.

(p. 11).

Slide39

John Locke & “Negative Liberty”

The founding-era understanding of liberty was heavily influenced by

John

Locke

[’s] . . . writings “on natural rights and on the social and governmental contract” . . . . Locke described men as existing in a

state of nature, possessed of the “perfect freedom

to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security.

(p. 7) (citation omitted)

The founding-era idea of

civil liberty as natural liberty

constrained by human law necessarily involved

only those freedoms that existed outside of government

. As one later commentator observed, “[L]

iberty

in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is,

freedom

from

, not freedom

to

, freedom from a number of social and political evils, including arbitrary government power.”

(p. 9) (citation omitted)

As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.”

(p. 11)

Slide40

Collateral Damage & Religious Liberty

The majority’s

inversion of the original meaning of liberty

will likely cause collateral damage to other aspects of our constitutional order that protect liberty.

(p. 13).

As a general matter, when the States act through their

representative governments or by popular vote

, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree.

See

Locke §98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws).

(p. 14)

Aside from undermining the political processes that protect our liberty, the majority’s decision

threatens the religious liberty

our Nation has long sought to protect.

(p. 14)

Slide41

Thomas Dissent Haiku

Liberty” – this word,

I

do not think Locke means what

You

think it means. Sigh.

By

Daniela

Lapidous

, “The SCOTUS Marriage Decision, in Haiku”

http://www.mcsweeneys.net/articles/the-scotus-marriage-decision-in-haiku

Slide42

Justice Alito, with whomJustice SCALIA and Justice Thomas joins, dissenting.

Supreme Court Justice Samuel Alito Photo by Getty Images

Slide43

“Liberty” in the Due Process Clause Does Not Protect Same-Sex Marriage

“`Liberty’ in the Due Process Clause of the Fourteenth Amendment only protects those rights that are “deeply rooted in this Nation’s history and tradition.’ The right to same-sex marriage is not among those rights

.’ (2).

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental

.” (3).

Slide44

Traditional Understanding of Marriage

“[The majority’s] understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” This is the position the States defending their right to ban same-sex marriage are taking, and it is a valid one. (4

)

Justice Alito recognizes that the tie between marriage and procreation has frayed, for example that 40% of all children in the U.S. are born to unwed women. Regardless the States seeking to ban same-sex marriage have not given up on the traditional understanding of the purpose of marriage.

Slide45

Dire Warning

“Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage

.”

“If

a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims

.”

Consequences – marginalization of people with traditional values (e.g. Kim Davis)

Slide46

Alito Dissent Haiku

“Happiness is not

the

point of marriage, fools. It’s

BABIES

,” he whispered.

By

Daniela

Lapidous

, “The SCOTUS Marriage Decision, in Haiku”

http://www.mcsweeneys.net/articles/the-scotus-marriage-decision-in-haiku

Slide47

Panel Discussion Moderated by Steve Anderson

Bill Harbison

Bill Harbison works primarily in the areas of corporate law and trusts and estates. He also handles litigation in those same practice categories.

Mr. Harbison graduated 

cum laude from Harvard Law School and received his bachelor’s degree with highest honors in English from the University of North Carolina at Chapel Hill. He is a member of Phi Beta Kappa.  He currently serves as President of the Tennessee Bar Association and is a past President of the Nashville Bar Association in addition to numerous bar and civic activities.

Jay Alan SekulowJay Alan Sekulow is Chief Counsel for the American Center for Law and Justice (ACLJ), a law firm and educational organization that focuses on constitutional law.  He is also Chief Counsel of the European Centre for Law and Justice (ECLJ).  A nationally recognized and respected defender of constitutional freedoms, Sekulow has assembled one of the most prestigious law firms in the nation.  Founded in 1990, the ACLJ focuses on constitutional law. Mr. Sekulow received his Ph.D. from Regent University, with a dissertation on American Legal History, is an honors graduate of Mercer Law School, where he served on the Mercer Law Review, and an honors graduate of Mercer University. 

Scott Hickman

Scott Hickman practices in the areas of employment law and business dispute resolution. His practice primarily involves representing employers in employment matters, as well as assisting and advising them on day-to-day employee relations.

Mr. Hickman graduated from the Vanderbilt University Law School, where he was the Senior Managing Editor of the Vanderbilt Law Review and was a member of the Vanderbilt Moot Court Board. Prior to attending law school, Mr. Hickman received a Master of Divinity from the Southern Baptist Theological Seminary in Louisville, Ky., and graduated 

summa cum laude

 with a bachelor’s degree in history from Tennessee Technological University.

Slide48

Legal Ramifications and Issues Arising Post-Decision

Slide49

Summary

Obergefell v. HodgesLong-held Constitutional right to marriage.“Marriage” has a legal meaning.Little legal justification why same-sex couples should not be included in the legal definition of “marriage.”Constitutional definition of “marriage” includes same-sex couples.

Broad Considerations

There are social and religious understandings/definitions of marriage.

Should the law be limited to those? Why or why not?

Nucleus of benefits available to married couples.

Slide50

“Equal Protection” Issues

Obergefell

decided under the “Due Process Clause” of the 14

th

Amendment.

Equal Protection was only given “lip service” in the

Obergefell

Opinion

Not analyzed in any substantive way

Supreme Court’s decision

did not

create a protected class for same-sex couples or homosexual individuals.

State Law v. Federal Law?

Is it possible to fire Steve for marrying Dan over the weekend?

Slide51

“Equal Protection” Issues

Craig v. Masterpiece Cakeshop, Inc., 2015 WL 4760453.Colorado bakery refused to provide wedding cake to same-sex couple.State law claim because Colorado’s Constitution provides broader protection for same-sex couples than the Federal Constitution (i.e. homosexuals & same-sex couples are a protected class.)Would there be a cause-of-action in Tennessee?

Slide52

“Religious Protection” Issues

If you’re a pastor, rabbi, priest, etc.? NO CHANGE. (Retain your right of refusal.)

Practitioner? May be implications.

Tennessee Clerks who resigned as a result of the

Obergefell

Decision

Decatur County Clerk Gwen Pope and two employees, Sharon Bell and Mickey

Butler.

Slide53

“Religious Protection” Issues

Kim Davis case(s)KY clerk refused to issue marriage license because she would have to issue them to same-sex couplesHeld in contempt of court and imprisoned for 10 days for refusal to obey a court orderReleased because marriage licenses given & Plaintiff’s issue resolved

Slide54

“Religious Protection” v. Ethical Obligations

Bumgardner v. Bumgardner, Case No. 14- 0626.“The conclusion reached by this Court is that Tennesseans have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage, and, thereby, at minimum, contested divorces.” - Hamilton County Chancellor Jeffrey Atherton

Subject Matter

Jurisdiction???

“With the U.S. Supreme Court having defined what must be recognized as a marriage, it would appear that

Tennessee's

judiciary must now await the decision of the U. S. Supreme Court as to what is

not

a marriage, or better stated, when a marriage is no longer a marriage. The majority' s opinion in

Obergefell

, regardless of its patronizing and condescending verbiage, is now the law of the land, accurately described by Justice Scalia as a naked judicial claim to legislative— indeed, super-legislative— power."

Obergefell

, 135 S. Ct. at

2629 (Scalia

, J., dissenting).”

Slide55

Ethical Obligations

“An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” Rule 10, Tennessee Code of Judicial Conduct, Preamble

RULE

2.1 Giving Precedence to the Duties of Judicial Office

“The

duties of judicial office, as prescribed by law, shall take precedence over a judge’s personal and extrajudicial activities

.”

- Rule 10,

Tennessee Code of Judicial Conduct

RULE

10B: DISQUALIFICATION OR RECUSAL OF A JUDGE; FILING AND DISPOSITION OF MOTIONS AND APPEAL

.

- The Supreme Court of the United States

Slide56

Retroactivity

Who’s married and who’s not? When did they become legally married? Common law implications?When a married individual dies without a will?


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