FANTASY SUPREME COURT LEAGUE:
THE 2015 SEASON
A One-Hour Webinar Covering:
General Education
Presented by:
Sean Carter
CA Bar# 200356
OVERVIEW
In this unique presentation, Sean Carter humorously recaps significant
cases of the last term. After receiving the facts of each case, you will
compete with lawyers from across the country by attempting to remember
the outcome and “vote spread” of each case.
In this recap of the 2014-2015 term (or “season”), we will examine
the Supreme Court’s decision cases involving:
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Criminal prosecutions for cyber threats
Discrimination against pregnant workers
Limits on judicial campaign solicitations
Religious attire accommodations in the workplace
Obamacare’s individual mandate
Limits on displaying the Confederate flag
The legality of same-sex marriage
The use of legal injection drugs
TIMED AGENDA
FANTASY SUPREME COURT LEAGUE
(GENERAL EDUCATION)
0:00-0:02
Introduction
A.
Brief overview of the current term
B.
Explanation of the rules for Fantasy Supreme Court League
0:02-0:08
Case #1: Elonis v. U.S. (Online threats)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:08-0:14
Case #2: Young v. UPS (Pregnancy discrimination)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:14-0:20
Case #3: Williams-Yulee v. Florida Bar (Judicial campaign
solicitations)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:20-0:26
Case #4: EEOC v. Abercrombie & Fitch (Religious accommodations
in the workplace)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:26-0:32
Case #5: King v. Burrell (Obamacare; Tax Credits)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:32-0:38
Case #6: Walker v. Texas Sons of Confederate Veterans (Free speech;
Confederate Flag)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:38-0:44
Case #7: Obergefell v. Hodges (Same-sex marriage)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
3.
4.
Concurring opinions
Dissenting opinions
Long-term implications of ruling
0:44-0:50
Case #8: Glossip v. Gross (Capital Punishment; Lethal Injection)
A.
Facts of the Case
B.
Lower court decisions
C.
Oral arguments
1.
Audio snippets
D.
Attendee predictions
E.
Ruling
1.
Majority opinion
2.
Concurring opinions
3.
Dissenting opinions
4.
Long-term implications of ruling
0:50-0:55
Review of term statistics
A.
Total cases heard
1.
Affirm/reversal ratio
a.
By circuit
B.
Justice stats
1.
Questions during oral arguments
2.
Opinion authored
3.
5-4 decisions
4.
Correlation between justices
5.
Most Valuable Justice award
C.
Lessons
0:55-0:60
Q&A and Conclusion
ABOUT THE SPEAKER
Sean A. Carter graduated from Harvard Law School in 1992. He was a corporate
securities lawyer in private practice in large law firms in Boston and Los Angeles serving
clients such as GNC, the Boston Beer Company, Experian, Safelite Auto Glass, J. Crew
and many others. In 2000, he accepted a position as in-house counsel for a publiclytraded financial institution, at which he remained until October 2002.
Since that time, Mr. Carter has been a full-time lecturer, columnist, and legal
commentator. His written have appeared in the Los Angeles Times, the Los Angeles
Daily Journal, the ABA e-Report and on numerous blogs and websites, including
Findlaw.com. He has been a guest on numerous radio programs across the country as
well as online legal media outlets, such as The Legal Broadcast Network.
In addition, Mr. Carter delivers more than 100 MCLE presentations each year on topics
such as legal ethics, professionalism, the elimination of bias, substance abuse prevention,
constitutional law, etc. He has spoken for state and local bar associations, law firms, law
schools and corporate in-house legal departments in more than 30 states. Here is a partial
list of organizations that have engaged him to give MCLE presentations.
Bar Associations
11th Circuit Judicial Conference
Advocates' Society (Canada)
Akron Bar Association
Alabama State Bar
Alabama Courts
Alameda County Bar
Alaska Bar Association
American Bar Association
American Bankruptcy Institute
American Board of Trial Advocates
American College of Trial Lawyers
ACTL New Jersey
State Bar of Arizona
Arkansas Bar Association
Association of Corporate Counsel
Association of So Cal Defense Counsel
Atlanta Bar Association
Bar Association of Southern Illinois
Bar Association of St. Louis
Bleckley Inn of Court
California Bankruptcy Forum
CA Society for Healthcare Attorneys
State Bar of California
Center for American and Internatl. Law
Charlotte Estate Planning Council
Chattanooga Bar
Cincinnati Bar Association
Collier County Bar
Colorado Bar Association
Connecticut Defense Lawyers Assoc
Continuing Education of the Bar
Dade County Bar
Dallas Bar
Dayton Bar Association
Dekalb County Bar
Defense Research Institute
Erie County Bar Association
Federal Bar Association
Florida Bar
Foothills Bar Association
Georgia Assoc of Crim. Def. Lawyers
State Bar of Georgia
Hillsborough County Bar Association
Hispanic Bar Assoc of Orange County
Houston Bar Association
Idaho State Bar Association
Illinois State Bar Association
Illinois ICLE
Indiana State Bar Association
Inn of Court - Shreveport
International Assoc of Gaming Advisors
International Assoc of Holistic Lawyers
International Society of Barristers
J. Franklyn Bourne Bar Association
Kansas Association of Defense Counsel
Kentucky Bar Association
Larimer County Bar (CO)
Lex Romano
Los Angeles County Bar Association
Louisiana Assoc of Defense Counsel
Maine Bar Association
Memphis Bar Association
State Bar of Michigan
Minnesota CLE
Missouri Association of Trial Attorneys
Missouri State Bar
Montana Assoc of Crim. Def. Lawyers
Montgomery County Bar Association
Nashville Bar Association
National Association of Bar Executives
Natl Network of Estate Planning Attys
Nebraska Assoc of Defense Counsel
State Bar of Nevada
New Hampshire Bar Association
New Hampshire Trial Lawyers Assoc
New Jersey ICLE
State Bar of New Mexico
New York State Bar Association
Ohio State Bar Association
Oklahoma Bar Association
Orange County Bar Association
Orange County Trial Lawyers Assoc
Oregon State Bar
Ottawa County Bar Association
Pennsylvania Bar Association
Pennsylvania Bar Association
Pennsylvania Bar Institute
Philadelphia Bar Association
Riverside County Bar
Salmon P Chase Inn of Court
Shreveport Bar Association
South Carolina Bar
Southeast Bar Association
Southern Law Network
State Bar of Texas
TX Assoc of Civ Trial and App
Utah State Bar
Virginia CLE
Virginia State Bar
Washington State Bar
Washoe County Bar
WealthCounsel
W San Bernardino County Bar Assoc
Wichita Bar Association
State Bar of Wisconsin
Law Firms
Akin Gump
Alston & Bird
Armstrong Teasdale
Arnstein & Lehr
Atkinson, Andelson, Loya, Ruud et al
Balch & Bingham LLP
Baker & Hostetler LLP
Baker, Manock & Jensen
Benesch, Friedlander, Coplan & Aronoff
Best, Best & Krieger
Brown & McCarroll
Cummins & White
Dickstein Shapiro
Drew Eckl & Farnham, LLP
Farella Braun + Marella
Finnegan
Fredrikson & Byron
Friedemann & Goldberg
Fisher & Phillips
Gibson Dunn & Crutcher
Hall Estill
Heller Ehrman
Henderson Franklin
Jones Day
King & Spalding
Kring & Chung
Larkin Hoffman Daly & Lindgren
Lewis Brisbois
Lionel Sawyer & Collins
Littler Mendelson
Looper Reed & McGraw
McDermott Will & Emery
McDonald Hopkins
McDonnell Boehnen et al
McGlinchey Stafford
Morgan Lewis & Bockius
Motley & Rice
Moore & VanAllen
Manatt Phelps
Perkins Coie
Quarles & Brady
Randick O'Dea & Tooliatos
Resources Law Group
Robins Kaplan Miller & Ciresi
Sheppard Mullin
Smith Gambrell & Russell
Sterne Kessler
Sutherland Asbill & Brennan
Troutman Sanders
Corporations
American Online
ARAG Insurance Group
Arizona Counties Insurance Pool
Boeing
Clorox
CVS Caremark Corporation
First Data
Health Management Association
Johnson Bank
Marathon Oil
New Century Mortgage
Sun Healthcare
Taco Bell
Xerox Corporation
Law Schools
Arkansas Little Rock
Brigham Young University
Thomas M. Cooley
Cumberland
Drake University
Florida State University
Georgia State University
Howard University
Loyola Marymount (LA)
North Carolina Central University
University of Houston
Washburn University
Widener University
Government Agencies
TN Administrative Office of the Courts
AL Administrative Office of the Courts
County Counselors of Kansas
Georgia State Board of Worker's Comp
Missouri Public Defender System
Riverside City Attorneys Office
San Bernadino District Attorneys Office
Professional Associations
Assoc of Continuing Legal Education
Assoc of Legal Administrators
Legal Marketing Association
Natl Org of Home & Life Guar Assocs
Los Angeles Paralegals Association
Orange County Paralegals Association
FANTASY SUPREME COURT
LEAGUE: 2015 EDITION
Sean Carter
Humorist at Law
Lawpsided Seminars
3620 N Paseo Del Sol
Mesa, AZ 85207
Phone: (480) 262-2653
sean@lawhumorist.com
www.lawhumorist.com
Sean Carter
Humorist at Law
Lawpsided Seminars
Mesa, Arizona
Sean Carter is the founder of Lawpsided Seminars, a company devoted to solid legal continuing
education with a healthy dose of laughter.
Mr. Carter graduated from Harvard Law School in 1992. His ten years of legal practice focused
on corporate securities and mergers and acquisitions. During this time, he represented such
clients as GNC, Experian, The Boston Beer Company, Homeside Lending, Safelite Auto Glass,
J. Crew and many others, before eventually serving as in-house counsel to a publicly-traded
finance company.
In 2002, Mr. Carter left the practice of law to pursue a career as the country’s foremost Humorist
at Law. Since then, Mr. Carter has crisscrossed the country delivering his Lawpsided Seminars
for state and local bar associations, law firms, in-house corporate legal departments and law
schools. Each year, he presents more than 100 humorous programs on such topics as legal ethics,
stress management, constitutional law, legal marketing and much more.
Mr. Carter is the author of the first-ever comedic legal treatise -- If It Does Not Fit, Must You
Acquit?: Your Humorous Guide to the Law. His syndicated legal humor column has appeared in
general circulation newspapers in more than 30 states and his weekly humor column for lawyers
appeared in the ABA e-Report from 2003 to 2006.
Finally, Sean lives in Mesa, Arizona with his wife and four sons.
Fantasy Supreme Court League: 2015 Edition
CASE #1: ELONIS v. UNITED STATES
(Criminal Threats; Social Media)
Hearing Date: December 1, 2014
Opinion Date: June 1, 2015
In 2010, Anthony Elonis’ wife left him, taking their two young daughters with her.
Shortly thereafter, he began to post lyrics from popular rap songs on Facebook, many of these
lyrics depicting violence. Before long, Elonis was posting violent rap lyrics of his own creation,
many of which discussed harming his ex-wife. Ultimately, he was fired from his job at an
amusement park because of his postings. In fact, two of his posts (one about firing a mortar
launcher into his wife’s home and a second about shooting up a kindergarten class) earned him a
visit from the FBI. After this visit, Elonis posted about the encounter on Facebook, suggesting
that he had strapped a bomb to his body and would have detonated it if he had been arrested.
This post prompted a return visit by the FBI, at which time he was arrested and charged with
violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate
commerce. He was convicted in sentence to nearly four years in prison.
On appeal to the Third Circuit, Elonis argued that his Facebook posts were protected as
free speech under the 1st Amendment because they did not constitute “true threats” as defined by
the Supreme Court in Virginia v. Black. In that case, the Supreme Court invalidated a conviction
under a law that made it a crime to burn on a cross on another’s property or in a public place. In
its decision, the Court ruled that cross burning or other symbolic speech could not be prohibited
in the absence of a “true threat,” which it defined as “those statements where the speaker means
to communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.”
Nevertheless, the Third Circuit upheld Elonis’ conviction. In doing so, it agreed with a
majority of circuit courts that have ruled that a person knowingly communicates a threat in
violation of 18 U.S.C. § 875(c) when a reasonable person would foresee that the statement would
be seen by the recipient as a serious expression of an intention to inflict bodily harm, regardless
of the speaker’s “true” intention.
Did the Supreme Court agree with the Third Circuit?
_
Yes, the Supreme Court affirmed, ruling that the objective
“reasonable person” test should be employed in these cases.
_
No, the Supreme Court reversed, ruling that the defendant’s
subjective intent is determinative in the making of a threat.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #2: YOUNG v. UPS
(Employment Discrimination; Pregnancy)
Hearing Date: December 3, 2014
Opinion Date: March 25, 2015
In 2006, Peggy Young requested a leave of absence from her job as a delivery driver for
the United Parcel Service (UPS) in order to undergo in vitro fertilization. The procedure was
successful and Young became pregnant. During her pregnancy, doctors advised her to not lift
more than 20 pounds while working. UPS’s employee policy requires drivers to be able to lift up
to 70 pounds. Young requested to be transferred to “light duty” during the remainder of her
pregnancy. However, UPS refused, and since Young had already used all her available
family/medical leave, she was forced to take an extended, unpaid leave of absence (without
medical coverage).
Young sued UPS and claimed she had been the victim of gender- and disability-based
discrimination under the Americans with Disabilities Act (“ADA”) and the Pregnancy
Discrimination Act (“PDA”). However, the district court dismissed her lawsuit after concluding
that UPS’ decision was not based on her pregnancy, but rather a standard company policy that all
drivers be able to lift 70 pounds. Furthermore, since pregnancy is not a “disability,” the district
court concluded that she could not bring a claim under the ADA either. The Fourth Circuit
affirmed.
In her appeal to the Supreme Court, Young points out that UPS does make
accommodations for drivers who can’t meet the requirements of the job in other instances. For
instance, if an employee is injured on the job, he may be assigned to light duty. In other cases
where a driver loses his federal driver’s certificate due to a failed medical exam (or even a DUI),
that driver may be given other duties. However, UPS refuses to make similar accommodations
for pregnant employees.
Did the Supreme Court agree with Fourth Circuit?
_
Yes, the Supreme Court affirmed, ruling that UPS’ policy
is not based on pregnancy or disability, but an rather
objective job requirement that applies to all drivers.
_
No, the Supreme Court reversed, ruling that UPS’
accommodations to other drivers with other medical
conditions require it to make accommodations for pregnant
drivers.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #3: WILLIAMS-YULEE v. FLORIDA BAR
(Judicial Campaigns; Free Speech)
Hearing Date: January 20, 2015
Opinion Date: April 29, 2015
In 2009, Tampa lawyer Lanell Williams-Yulee sent out a letter announcing that she was
running for county court judge in Hillsborough County, Florida. The letter asked for
contributions of as much as $500 to fund her campaign. And despite the fact that the letter did
not result in a single donation, it did result in the Florida Bar filing a complaint against WilliamsYulee for violating a rule prohibiting judicial candidates from personally soliciting campaign
funds.
In her defense, Williams-Yulee argued that the Florida Bar rules violated the 1st
Amendment’s protections of free speech. After all, in order to uphold a content-based restriction
on free speech, the state must have a compelling government interest and the restriction must be
the least intrusive way of serving that interest.
Williams-Yulee claimed that while the government has a compelling interest in
preventing the appearance of bias and corruption in its judiciary, the restriction in question does
not accomplish this goal because it only prohibits soliciting monetary donations from lawyers.
However, a lawyer who donates her time to a judicial campaign may have just a strong of a claim
to favoritism from the judge upon her election to office. Likewise, the Florida Bar rule could be
more narrowly tailored to only prevent direct solicitations, which pose a much greater
opportunity for undue influence and corruption than a form letter sent out to thousands of
lawyers. In the end, the Florida Supreme Court was not persuaded by these arguments and
issued a public reprimand to Williams-Yulee.
Did the Supreme Court agree with the Florida Supreme Court?
_
Yes, the Supreme Court affirmed, ruling that Florida may
continue to place restrictions on a judicial candidate’s
ability to solicit contributions from lawyers.
_
No, the Supreme Court reversed, ruling that these
restrictions do not meet the compelling interest and/or least
restrictive means tests for constitutionality.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #4: EEOC v. ABERCROMBIE & FITCH
(Title VII; Dress Codes; Religious Observances)
Hearing Date: February 25, 2015
Opinion Date: June 1, 2015
In 2008, 17-year-old Samantha Elauf applied for a sales job at an Abercrombie & Fitch
(“Abercrombie”) Store in Tulsa, Oklahoma. The local management team refused to hire Elauf
because she wears a religious scarf – a hijab – as part of her Muslim faith. Abercrombie believes
that its sales are enhanced if each of its employees has a ”preppy look.” As a result, its dress
code does not permit head coverings of any kind.
The EEOC concluded that Abercrombie discriminated against Elauf on the basis of
religion by refusing to hire her. Under Title VII, the 1964 federal civil rights law banning
workplace discrimination, it is illegal to hire or fire an individual, or take other employment
against them, based on that person’s religion. Under a 1972 amendment to Title VII, religion is
defined as all aspects of religious observance and practice, and the employer must make an effort
to accommodate that individual unless the employer can show that doing so would impose an
undue hardship on its business. As a result, it brought a case against Abercrombie in federal
district court. The district judge sided with the EEOC and ruled that Abercrombie was required
to provide Elauf with an accommodation from its rule against head coverings.
On appeal, the Tenth Circuit disagreed, ruling in a split decision that Title VII requires
that employers have explicit, verbal notice of a job applicant’s religious needs that may conflict
with company policy, so that the employer has “particularized, actual knowledge” that the
applicant follows a specific faith practice and will need an accommodation for it. Because Elauf
did not provide that information about her faith practices, Abercrombie did not violate Title VII
in refusing to hire her.
Did the Supreme Court agree with the Tenth Circuit?
_
Yes, the Supreme Court affirmed, ruling that the burden is
on the prospective employee to request a religious
accommodation from an employer.
_
No, the Supreme Court reversed, ruling that the burden
should be on the employer to inquire as to the employee’s
need for an accommodation.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #5: KING v. BURWELL
(Obamacare; Tax Credit Subsidies)
Hearing Date: March 4, 2015
Opinion Date: June 25, 2015
In 2010, Congress passed the Affordable Care Act (“Obamacare”). The Act provides for
the establishment of “Exchanges,” through which individuals can purchase competitively-priced
health care coverage. Critically, the Act provides a federal tax credit to millions of low- and
middle-income Americans to offset the cost of insurance policies purchased on the “Exchanges
established by the State.”
Each state was given an opportunity to set up its own Exchange under the Act and the 16
states (and the District of Columbia) did so. The remaining 34 states, including Virginia, elected
to not set up their own Exchanges, resulting in the federal government doing so on behalf of their
citizens. While on its face, the premium tax credit could be seen to only apply those taxpayers in
the 16 states with “Exchanges established by the States”, the IRS has promulgated regulations
making the premium tax credits available to residents of all states.
The effect of this ruling is to make some taxpayers subject to the individual mandate
provisions of Obamacare that they otherwise would have avoided for reasons of unaffordability.
With the aid of these tax credits, residents of states with federally-run Exchanges can now afford
to purchase health plans and must do so or pay a tax penalty.
A group of Virginia residents challenged the IRS rules in federal district court, arguing
that the IRS exceeded its rule-making authority under the Administrative Procedure Act. By
ignoring the requirement that the taxpayer be enrolled in a health plan “through an Exchange
established by the state,” the IRS acted in an “arbitrary and capricious” manner. However, the
district court disagreed, finding that the statute, as a whole, clearly evinced Congress’ intent to
make the tax credits available nationwide. The Fourth Circuit affirmed.
Did the Supreme Court agree with the Fourth Circuit?
_
Yes, the Supreme Court affirmed, allowing tax credits for
persons enrolled in state-run and federal-run Exchanges.
_
No, the Supreme Court reversed, denying tax credits to
those persons in states with federal-run Exchanges.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #6: WALKER v. TEXAS DIVISION, SONS OF
CONFEDERATE VETERANS
(First Amendment; Confederate Flags)
Hearing Date: March 23, 2015
Opinion Date: June 18, 2015
In Texas, nonprofit organizations may apply to create their own specialty license plates.
These applications are approved by the Texas DMV Board, which may refuse an application “if
the design might be offensive to any member of the public.”
In 2009, the Texas Sons of Confederate Veterans (the “SCV”) submitted an application
for its own specialty plate. The proposed plate featured the SCV logo, which is a Confederate
battle flag framed on all four sides by the words “Sons of Confederate Veterans 1896.” A faint
Confederate flag also appears in the background of the proposed plate. The Board submitted the
proposed design for public comment and received many objections from the public. As a result,
the Board denied SCV’s application, stating, in part:
“The Board . . . finds it necessary to deny [Texas SCV’s] plate design application,
specifically the confederate flag portion of the design, because public comments
have shown that many members of the general public find the design offensive,
and because such comments are reasonable.”
SCV filed a lawsuit, asserting that the Board’s decision to deny its application violated
SCV’s rights to free speech. However, the federal district court dismissed SCV’s 1st Amendment
claims on the grounds that: (1) the specialty license plate program was a nonpublic forum; (2) the
Board’s rejection of Texas SCV’s plate “was a content-based restriction on speech, rather than a
viewpoint-based limitation”; and (3) the content-based regulation was reasonable. On appeal,
the Fifth Circuit reversed, ruling that the Board’s rejection was actually viewpoint-based because
it was based solely on a determination that some members of the public might find it offensive.
Did the Supreme Court agree with the Fifth Circuit?
_
Yes, the Supreme Court affirmed, ruling that the state may
not restrict the display of the confederate flag solely on the
grounds that some members might find it offensive.
_
No, the Supreme Court reversed, ruling that the confederate
flag is such an obvious symbol of hatred and vitriol that the
state can prohibit its display on state-issued license plates.
Vote Spread: _____
Points: ______
Total: ______
Fantasy Supreme Court League: 2015 Edition
CASE #7: OBERGEFELL v. HODGES
(Same sex marriage; State Recognition)
Hearing Date: April 28, 2015
Opinion Date: June 26, 2015
This is one of four cases (the others are Tasco v. Haslam, DeBoer v. Snyder and Bourke
v. Beshear) all dealing with the issue of same-sex marriage. In particular, the questions proposed
by these cases are:
1)
Does the Fourteenth Amendment require a state to license a marriage between
two people of the same sex?
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-ofstate?
Despite the rulings in U.S. v. Windsor and Hollingsworth v. Perry in 2013, the issue is far
from settled on a federal basis. For one, while the Windsor case invalidated the provisions of
DOMA that defined “marriage” as strictly between one man and woman, the Supreme Court did
not create a more expansive definition in its place. Instead, it decided that the federal
government did not have the right to define marriage and that it should defer to the judgments of
the various states in this regard. Ironically, in these cases, the Supreme Court is being asked to
wade into the fray and decide that, on a nationwide basis, no state may restrict its definition of
“marriage” to just one man and one woman.
Secondly, the court is being asked to decide if a state’s failure to recognize a marriage
lawfully performed in another state is a violation of the 14th Amendments guarantee of equal
protection under the law. In doing so, the court may have to actually decide the level of scrutiny
to apply to laws that discriminate on the basis of sexual orientation. To date, the Supreme Court
has been reticent to establish a standard of review (strict scrutiny, intermediate scrutiny or
rational basis) and has instead decided these cases on narrower grounds.
How will the Supreme Court rule on Question #1?
_
It will invalidate all same-sex marriage bans as
unconstitutional.
_
It will allow each state to decide the question for itself.
How will the Supreme Court rule on Question #2?
_
It will require all states to recognize same-sex marriages
lawfully performed in other states.
_
It will allow each state to decide for itself whether to
recognize such marriages.
Fantasy Supreme Court League: 2015 Edition
CASE #8: GLOSSIP v. GROSS
(Cruel and Unusual Punishment; Lethal Injections )
Hearing Date: April 29, 2015
Opinion Date: June 29, 2015
For many years, the State of Oklahoma utilized a three-drug lethal injection protocol
comprised of sodium thiopental, pancuronium bromide, and potassium chloride. Since 2010, the
State of Oklahoma has been unable to obtain sodium thiopental for use in executions. And
although it was able, for a short time, to obtain and utilize an alternative barbiturate,
pentobarbital, during executions, that drug has also become unavailable for use in executions. In
early 2014, the State of Oklahoma decided to use midazolam hydrochloride (midazolam) as the
first drug in its execution “cocktail.”
On April 29, 2014, Oklahoma attempted to execute its first prisoner using midazolam as
part of the lethal injection execution protocol. While ultimately successful, the execution was a
procedural disaster because the midazolam was not correctly injected into the prisoner’s veins.
As a result, he began to move and talk during the administration of the remaining drugs. In the
wake of this debacle, Oklahoma revised its execution protocols to include four different drug
protocols, one of which would still include midazolam.
On June 25, 2014, the four plaintiffs, along with seventeen other Oklahoma death row
inmates sought preliminary injunctions to halt their upcoming executions, alleging, among other
things: (1) Oklahoma’s use of midazolam violates the 8th Amendment prohibition against cruel
and unusual punishment; and (2) Oklahoma’s new protocols constituted an “ever-changing array
of untried drugs of unknown provenance, using untested procedures” and as a result, the state
was engaging in “a program of biological experimentation on captive and unwilling human
subjects.” The district court declined their requests. The Tenth Circuit affirmed the district
court.
Did the Supreme Court agree with the Tenth Circuit?
_
Yes, the Supreme Court affirmed, ruling that the use of
midazolam is permitted unless it presents a clear risk of
severe pain in comparison to another proven and readily
available alternative;
_
No, the Supreme Court reversed, finding that midazolam
has not proven its efficacy in preventing severe pain in
executions.
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