Tag Archives: Jane Fraytet

Court to Review Gay Marriage Laws this April


In a Charlotte School of Law blog published on November 18, 2014, the question was raised as to whether the U.S. Supreme Court would review America’s gay marriage laws this year?  The U.S. Supreme Court has since agreed to review four lower Court cases on the subject.  Specifically, the Court will address the following questions:

  1. Does the 14th Amendment require a state to license a marriage between two people of the same sex?
  2. Does the 14th Amendment require a state to recognize a marriage between 2 people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The Charlotte Observer said on January 17, 2015 that the consolidated cases to be heard this spring will be from the 6th Circuit Court of Appeals and the cases are from the following states: Kentucky, Michigan, Ohio and Tennessee.

The petitions for writs of certiorari were granted to the following cases from the 6th Circuit Court of Appeals:

  1. OBERGEFELL v. HODGES - Ohio Docket No. 14-556
  2. TANCO v. HASLAM  – Tennessee
  3. DEBOER v. SNYDER - Michigan, 14-1341, 2014 BL 314380 (6th Cir. Nov. 06, 2014) Copy of Appeals Court decision which was appealed to the U.S. Supreme Court. 
  4. BOURKE v. GREGORY - Kentucky

A copy of the full Opinion from the 6th Circuit Court of Appeals can be found at http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf

(The case that was appealed to the U.S. Supreme Court from the 6th Cir. Court of Appeals).

U.S. Law Week summarized the opinions of both the majority Judges and the one Dissenting Judge from the 4th Circuit Court of Appeals in their November 11, 2014 edition of. U.S. Law Week written by Kimberly Robinson.

Below are excerpts from Ms. Robinson’s published article:

 Same-Sex Marriage Bans Upheld in Sixth Circuit Appeals Court Opinion (excerpts with Analysis) provided by Kimberly Robinson

Regardless of when—or if—the Supreme Court does agree to hear the case, the Sixth Circuit’s divided decision makes it the first federal appeals court to uphold a state same-sex marriage ban since the Supreme Court’s landmark decision in United States v. Windsor, 81 U.S.L.W. 4633, 2013 BL 169620 (U.S. June 26, 2013).

Writing for the majority in the Sixth Circuit’s 2-1 decision, Judge Jeffrey S. Sutton said that the issue is “not whether American law will allow gay couples to marry; it is when and how that will happen.”

The court detailed the claims brought by the 16 gay and lesbian couples, noting that all the suits “seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides?”

The court concluded that the matter is reserved for the “less expedient, but usually reliable, work of the state democratic processes,” rather than for federal courts.

The judiciary’s role is limited to the question of whether the 14th Amendment prohibits “a State from defining marriage as a relationship between one man and one woman,” the court said, not “whether gay marriage is a good idea.”

After applying rational basis review, the court answered that question in the negative.

“A dose of humility makes us hesitant to condemn as unconstitutionally irrational a view of marriage shared not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States,” the court said.

In particular, the court said that the states could justify their bans on the procreative purpose of marriage.

“By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States created an incentive for two people who procreate together to stay together for purposes of rearing offspring,” the court said.

“That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring.”

The appeals court also upheld Ohio, Kentucky and Tennessee laws that prohibited recognition of same-sex marriages validly entered into in other jurisdictions.

Judge Deborah L. Cook joined the majority opinion.

Betrayed Oath?

Dissenting, Judge Martha Craig Daughtrey criticized what she called the majority’s “false premise—that the question before us is ‘who should decide.’ ”

“In the main, the majority treats both the issues and the litigants here as mere   abstractions,” she said.

“Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win ‘the hearts and minds’ of Michigan, Ohio, Kentucky, and Tennessee voters to their cause.”

Daughtrey also appeared to accuse the two judges who signed on to the majority opinion of betraying their judicial oath, saying: “More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to ‘administer justice without respect to persons’ to ‘do equal right to the poor and to the rich,’ and to ‘faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States.’ ”

“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

A follow-up blog will be posted once the U.S. Supreme Court has issued its opinion which should be sometime between April and June this year.

~Jane Fraytet~

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Will the U.S. Supreme Court Review America’s Gay Marriages Laws? — Part II


Earlier in 2014, I said I would do a follow-up blog on whether the U.S. Supreme Court would grant Cert to any of the petitions they had received dealing with state marriage laws. As everyone knows, the U.S. Supreme Court chose not to address the issue of gay marriage because the Courts of Appeals had agreed on the issue.

Our local paper here in Charlotte, North Carolina, The Charlotte Observer, published an article in their editorial pages recently predicting how the Supreme Court would rule if they decided to settle the issue of same-sex marriage for everyone.

The U.S. Court of Appeals for the Sixth Circuit dealt a startling blow to homosexuals last week when it upheld same-sex marriage bans in Kentucky, Tennessee, Michigan and Ohio. But as difficult as the setback surely is for same-sex couples in those four states, it is probably temporary, and it comes with a larger benefit for other states, including North Carolina.


To see the full editorial article, click here.


Part III will be written when the dusts settles – sometime between now and June 2015.

~Jane Fraytet~

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Library Event – October 8 – Navigating the New LexisAdvance: Nuts & Bolts Lecture

lexis advance

Click here to register on OrgSync to reserve your spot now!

October 8, 12:15-1:00pm

October 8, 1:15-2:00pm

October 8, 6:15-7:00pm

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The U.S. Supreme Court Has Been Asked By 32 States to Settle the Issues Surrounding Gay Marriage


Thirty-two states that either allow gay marriage or have banned it have asked the U.S. Supreme Court to settle these issues once and for all. The Associated Press reported that the following states have asked the Supreme Court to address the gay marriage laws that differ from state-to-state: Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a “morass” of lawsuits, but didn’t urge the court to rule one way or another.

Lyle Denniston, a reporter for SCOTUSblog, posted on September 10, 2014 that same-sex marriage cases were set for an early review by the U.S. Supreme Court. In fact, the Court has set September 29 for a private conference to discuss same-sex marriage and to review the seven petitions it has received on gay marriage.

Listed below are the seven petitions the Court has received and from which states they came:

  1. Herbert v. Kitchen (Utah) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Utah-same-sex-marriage-petition-8-5-14.pdf
  2. Smith v. Bishop (Oklahoma) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Oklahoma-Smith-petition-8-6-14.pdf
  3. Rainey v. Bostic (Virginia) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Virginia-ssame-sex-marriage-pet.-8-8-14.pdf
  4. Schaefer v. Bostic (Virginia) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Virginia-Schaefer-petition-8-22-14.pdf
  5. McQuigg v. Bostic (Virginia) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/McQuigg-petition-8-29-14.pdf
  6. Bogan v. Baskin (Indianna)http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/14-277-baskincert.pdf and
  7. Walker v. Wolf (Wisconsin) http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/14-278-pet.pdf

Will the U.S. Supreme Court Review Any of America’s Gay Marriages Laws?

Sometime after September 29, 2024, I will write a follow-up blog detailing which, if any, of the above listed petitions were granted Cert by the U.S. Supreme Court.

~Jane Fraytet~

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In Alice Corp. v. CLS Bank, the Court Limits Software Patents, but Does Not Eliminate Them


The US Supreme Court ruled against Alice Corporation, the owner of the patent in dispute.

A New York Times article published on June 19, 2014 said that the trial court had invalidated Alice’s patents, stating that the patent holder had only recited abstract concepts. The trial court’s decision was effectively affirmed by the United States Court of Appeals for the Federal Circuit when it issued seven separate opinions, none of which commanded a majority, thus not issuing clear guidance and direction for software patent protection.

Adam Liptak of the N.Y. Times stated that the Court of Appeals decision for the Federal Circuit in the Alice Corp. v. CLS Bank International summarized that the use of Alice’s computer software was not unique, but was simple business software – considered “a building block of the modern economy”, but not deserving patent protection.

According to the US Supreme Court, adding the use of a computer added nothing.

Stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility,”  and because the petitioner’s system and media claims add noth­ing of substance to the underlying abstract idea, we hold that they,  too are patent ineligible under §101.

Charlotte Law students, staff and faculty can use their library barcode to view these two BNA articles for a more complete summary of this U.S. Supreme Court patent case decision:

~Jane Fraytet~

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