Long View: Why SCOTUS’ Same-Sex Marriage Decision Was Only Proper Option
No matter which side of the issue youâ€™re on, the Supreme Courtâ€™s decision to reject the seven same-sex cases that had been submitted to the court was the only proper option.
Under normal circumstances, the loser of a case at the state level might appeal that ruling to the appellate level, as happened when Utahâ€™s Judge Shelby ruled Utahâ€™s ban on same-sex marriages were unconstitutional and the state appealed to the 10th Circuit Court. If the circuit court takes the case and rules the same way, the loser has the option to appeal the case again to the U.S. Supreme Courtâ€”again, as happened in the case over Utahâ€™s Amendment 3. The Supreme Court then decides whether or not to take the case and either uphold or override the lower courtsâ€™ rulings.
But in the same-sex marriage cases, things worked different. It wasnâ€™t just the Utah case the Supreme Court was looking at, it was seven different cases from states around the country. And in each of those cases, the appellate courts overseeing them all ruled that denying same-sex couples their right to get married is unconstitutional.
Seven identical rulings. Thatâ€™s an unusually huge (and historic) body of rulings for the Supreme Court to be presented with.
Could SCOTUS have taken up the case? Yes. But because the high court oversees the entire country, their rulings have much wider impacts than do state or appellate courts. If SCOTUS had upheld the lower courtsâ€™ rulings, it would have automatically legalized same-sex marriages nationwide. Same thing if they had overturned the lower courts, it would have effectively banned same-sex marriage in all states that havenâ€™t legalized same-sex marriage through their legislatures.
Until an appellate court rules in favor of a ban on same-sex marriage (if that ever happens), the Supreme Court has no motivation to take up the case. Itâ€™s all about the process, and we have no doubt that the Justices will allow the remaining cases (thereâ€™s at least one in every single state that still has a ban in place) to move through the system at their own pace, allowing each judge to make their own decision.
So while some on both sides of the issue may be lamenting the courtâ€™s decision not to act, there really was no other proper option.
Marriage equality should be legal, period. And I’m sure I would be making a different argument if there weren’t a case pending in every non-marriage equality state. But with all those cases going, this way may take a bit longer but it makes it a virtual impossibility that it will ever be reversed.
Image by Stephen Luke via FlickrÂ
Follow me on Twitter @EricEthington
Eric EthingtonÂ has been specializing in political messaging, communications strategy, and public relations for more than a decade. Originally hailing from Salt Lake City, he now works in Boston for a social justice think tank. Ericâ€™s writing, advocacy work, and research have been featured on MSNBC, CNN, Fox News, CNBC, the New York Times, The Telegraph, and The Public Eye magazine. Heâ€™s worked as a radio host, pundit, blogger, activist and electoral campaign strategist. He also writes atÂ NuanceStillMatters.com
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Trump Lawyer’s ‘Critical Evidence’ Will Help DOJ Make Decision to Charge ‘Without Significant Delay’: Former Prosecutor
Donald Trump‘s attorney Evan Corcoran, who allegedly directed another Trump attorney to draft the false statement claiming all classified and sensitive documents had been returned, has been ordered to testify before a grand jury and hand over documents and records to Special Counsel Jack Smith in the Mar-a-Lago classified documents criminal investigation.
Trump appealed U.S. District Judge Beryl Howell’s decision ordering Corcoran to testify and hand over documents, including handwritten notes. The Appeals Court in light speed mode, rejected Trump’s appeal.
Corcoran will be testifying before the grand jury on Friday, CNN reports.
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One former top DOJ official, Brandon Van Grack, says the “Special Counsel is about to get access to the most critical evidence in the case. Should allow DOJ to make a charging decision without significant delay.”
He did not define what “without significant delay” means in terms of days, weeks, or months.
Van Grack served at Main Justice for eleven years, including as a lead prosecutor in Special Counsel Robert Mueller’s Russia investigation, and later, as the Chief of the DOJ’s Foreign Agents Registration Act (FARA) Unit.
“The announcement from a panel of three judges in the appeals court – less than a day after Trump sought to put Corcoran’s testimony on hold – adds momentum to the special counsel investigation as it seeks to secure evidence that could make or break a federal criminal case against Trump,” CNN explains. “The Justice Department has successfully argued in court that prosecutors have enough evidence that Trump’s interactions with the lawyer were part of a possible crime that they can pierce the confidentiality of the conversations between the two.”
‘National Security Implications’: Former DOJ Official Speculates on Ruling Ordering Trump Attorney to Hand Over Docs
A former top Dept. of Justice official says a federal judge’s expedited ruling ordering an attorney for Donald Trump to testify against his client before a grand jury and hand over documents very well may be related to “national security.”
U.S. District Judge Beryl Howell ruled that DOJ Special Counsel Jack Smith had successfully made the case Donald Trump may have committed a crime, via his attorneys, in his classified documents case. That finding allowed her to invoke the crime-fraud exception, and order Trump attorney Evan Corcoran to testify before the grand jury investigating the ex-president’s unlawful retention and refusal to return hundreds of classified documents.
Former FBI General Counsel Andrew Weissmann, who also worked for Special Counsel Robert Mueller and headed the DOJ’s Criminal Fraud Section, Wednesday afternoon on MSNBC said it’s possible Judge Howell’s expedited decisions were related to national security.
Tuesday night Judge Howell ordered DOJ to provide information by 6:00 AM Wednesday.
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Trump appealed Howell’s ruling, and Wednesday afternoon the Appeals Court denied his appeal related to the documents, Politico reports.
“I’ve never seen anything that quick. It’s very hard to know why. I have to say, to me, when I think about what can be a plausible reason– and this is pure speculation – is that there must be something in the papers that gave the judges concern about national security implications, because it’s such a short timeframe.”
“The reason this is a bombshell is you could end up with Evan Corcoran as a key, fundamental witness against Donald Trump in an obstruction of justice case and a false statements case,” Weissmann adds.
According to Politico, Wednesday’s appeals court ruling “effectively permits the Justice Department to circumvent Trump’s attorney-client privilege after a lower-court judge found that the documents likely contain evidence of a crime.”
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This article was updated to correctly spell Andrew Weissmann’s last name.
RIGHT WING EXTREMISM
Trump Appeals After Judge Agrees With Special Counsel on Crime-Fraud Exception and Requires His Attorney to Testify
Donald Trump’s attorneys have appealed a ruling that requires one of his lawyers to testify before a grand jury investigating his unlawful removal, retention, and refusal to return classified documents from the White House.
Attorneys for the Special Counsel “said there is evidence of a deliberate effort not to turn over all the material covered by the subpoena,” The Washington Post reports, citing people familiar with the matter.
U.S. District Judge Beryl Howell had reportedly agreed with Special Counsel Smith that there is sufficient evidence proving Donald Trump may have committed a crime via his attorneys, and ruled his attorney must testify before a grand jury. The ruling, which was not made public, was handed down Friday night, NBC News reported Wednesday afternoon.
Judge Howell “ruled in favor of applying the ‘crime fraud’ exception to Trump’s attorney-client privilege and ordered Trump lawyer Evan Corcoran to testify before the federal grand jury.”
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Trump’s attorneys have already appealed the ruling.
“People familiar with the matter said an appeals panel has already begun reviewing the decision, after Trump’s lawyers appealed,” The Washington Post adds. “The extraordinarily quick timeline suggests that the judges — all nominated by Democratic presidents — intend to rule swiftly.”
Trump could take his case all the way to the Supreme Court, but The Post says it’s “not clear he would have a much better chance of success there.”
According to an NBC News report from October, Corcoran directed another Trump attorney, Christina Bobb, to sign the letter claiming a thorough search of Mar-a-Lago had been made and all classified or “sensitive” documents had been returned. That was proven untrue after federal agents, executing a search warrant, recovered hundreds of documents with classified markings.
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