Lawyers on both sides of Kansas gay marriage debate agree: Courts are closing in on bans

"At public debate Tuesday in Lawrence about gay marriage's legality in Kansas, a local attorney and Indiana's solicitor general predictably shared little common ground. But where they did come to agreement was where future court decisions would come down on the matter.

The consensus: It doesn't look good for states defending same-sex marriage bans.

. . . 

Constitution Day program to address same-sex marriage

Wednesday, October 15, 2014

LAWRENCE — The Dole Institute of Politics at the University of Kansas and KU School of Law will welcome guest speakers Tom Fisher and Roberta Kaplan, and moderator Stephen McAllister, for the 2014 Constitution Day program “Same-sex Marriage – Constitutional Right or the State’s Decision.” This program will explore U.S. Supreme Court cases surrounding the issue of same-sex marriage.

The event will take place at 7:30 p.m. Tuesday, Oct. 21. The event is free and open to the public.

The panelists will discuss the state of constitutional law regarding same-sex marriage, the arguments in favor of and against the recognition of a constitutional right to same-sex marriage, the Supreme Court’s decision not to hear several recent decisions on this issue, and the likely future direction of litigation and the law.

Recent refusal to rule by the Supreme Court on cases in Indiana, Oklahoma, Utah, Virginia and Wisconsin seeking to keep same-sex marriage bans in place has cleared the way for same-sex unions in those states. This development has increased the current number of states allowing same-sex marriage to 19.

“The topic is obviously very timely,” said Barbara Ballard, Dole Institute associate director. “Additionally, the representation of both sides highlights the process of constitutional law that we celebrate with this program each year.”

The annual Dole Institute Constitution Day program features attorneys or practitioners on opposite sides of timely constitutional issues who will discuss specific cases, as well as the constitutional law more generally. Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will moderate this year’s discussion between Fisher and Kaplan.

“I am pleased we will be able to host speakers who have both been involved in the recent litigation at the highest level,” McAllister said.

Thomas Fisher is the solicitor general for Indiana, acting as the chief litigation policy adviser to the attorney general and providing oversight of state and federal litigation. A two-time recipient of the National Association of Attorneys General Best Brief Award for excellence in U.S. Supreme Court brief writing, Fisher has argued three times before the court, most recently in 2008 when he successfully defended Indiana's voter ID law in Crawford v. Marion County Election Board and persuaded the court to permit states to require mentally ill criminal defendants to have trial counsel in Indiana v. Edwards. He has also argued significant Indiana constitutional law cases involving abortion regulations, same-sex marriage, toll road leasing, educational funding and attorney general authority over charitable trusts.

Fisher has taught as an adjunct professor at Indiana University Maurer School of Law and is a frequent speaker at a variety of continuing legal education forums. Prior to joining the Attorney General’s Office, Fisher worked in private practice in Indianapolis and Washington, D.C., and clerked for Judge Michael S. Kanne of the U.S. Court of Appeals for the Seventh Circuit.

Roberta Kaplan is a partner in the litigation department of law firm Paul Weiss, New York office, with extensive experience representing a diverse group of clients on high-profile matters ranging from stock recommendations, mutual funds, credit regulations, data confidentiality and constitutional rights. She has been selected as one of “The 100 Most Influential Lawyers” and one of the top “40 Under 40” lawyers in the United States, as well as a 2013 “Litigator of the Year” by The American Lawyer and 2013 "Lawyer of the Year" by Above the Law. She was ranked as number 5 in this year's "Politico 50." Kaplan has also been profiled in a documentary produced by the PBS MAKERS series.

Kaplan successfully argued before the United States Supreme Court on behalf of her client Edith Windsor in United States v. Windsor, the landmark Supreme Court case. In Windsor, the nation's highest court ruled that a key provision of the Defense of Marriage Act violated the U.S. Constitution by barring legally married same-sex couples from enjoying the wide-ranging benefits of marriage conferred under federal law.

The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics.  It is located on KU’s west campus and, in addition to the Robert J. Dole Archive & Special Collections, offers free public programming with world-renowned guest speakers on a variety of topics that intersect politics, as well as opportunities for students of all ages. 

For more information on this or any Dole Institute events, visit www.doleinstitute.org or call (785) 864-4900. The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics. It is located on KU’s west campus next to the Lied Center.

 

The Challenge of Defining Rape

Ian Urbina wrote:

"States across the country are trying to figure out how to address the problem of sexual assault more effectively, and more often than not, they are looking to redefine the scope of sexual misconduct.

. . . 

With an effort also underway by the American Law Institute to reconsider when an assault becomes rape, some legal experts predict that changes to criminal laws in many states may not be far off.

. . . 

ACLU, Kansas attorney general go to court over gay marriage

Brad Cooper and Bryan Lowry wrote: 

"The assault on same-sex marriage bans zeroed in on Kansas on Friday with a new legal challenge that could clear the way for gay marriage in yet another state.

Two lesbian couples – one from Wichita and another from Lecompton – challenged the state’s ban in federal court Friday afternoon.

The lawsuit capped a topsy-turvy day that began with the state’s first same-sex marriage in Johnson County.

It ended when the state Supreme Court temporarily stopped the county from issuing any more licenses to gay couples.

Same-sex marriage remains in limbo in Kansas

Brad Cooper wrote:

"A Johnson County judge directed the district court clerk this week to issue marriage licenses to same-sex couples without fear of being prosecuted under Kansas law.

. . . 

The status of same-sex marriage in Kansas shifted quickly this week, but it appears still unsettled.

'You can go ahead and get a marriage license,' cautioned University of Kansas law professor Richard Levy. 'But if you do that, you may run the risk that the order under which you got your license is declared invalid.'"

 

Johnson County green-lights gay marriage in Kansas; Douglas County to continue denying applicants

"The chief judge of the Johnson County District Court issued an order Wednesday clearing the way for same-sex couples to get married in that county. But a constitutional law professor at Kansas University said it's still not clear that such marriages would be valid under Kansas law.

. . . 

But because the Supreme Court did not directly rule on the issue — it declined to hear the appeals of five similar cases from various judicial circuits — some experts say courts in other states have not been given clear direction on how to proceed.

In strip-club case, typically closed records were released, GOP tipped off

Karen Dillon wrote:

"The Legislature closed those records to the public more than 30 years ago, and if members of the public want incident reports and investigative files, they typically have to sue to get them. The cases can be expensive: Some have cost $25,000 or more.

So media law experts found it 'amazing' when they learned that Montgomery County Sheriff Robert “Bobby” Dierks released investigative files from 1998 last month with just a records request.

Professor with extensive Supreme Court experience to share highlights from career serving KU and Kansas

Wednesday, October 01, 2014
 
LAWRENCE – Kansas Solicitor General Stephen McAllister will share his experiences arguing before the U.S. Supreme Court and other career highlights during his inaugural lecture as the E.S. & Tom Hampton Distinguished Professor of Law at the University of Kansas.

McAllister is set to deliver “The Supreme Court and Kansas: A (Solicitor) General Talk about Studying, Teaching and Serving the Law” at 5:30 p.m. Monday, Oct. 6, at Alderson Auditorium in the Kansas Union. The lecture is free and open to the public.

A Kansas native, McAllister earned degrees from KU and its law school before clerking first for Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit and then for Supreme Court Justices Byron R. White and Clarence Thomas. He worked for Gibson, Dunn & Crutcher in Washington, D.C., before returning to KU to join the law faculty in 1993.

McAllister served as dean of the law school from 2000-2005, and he currently teaches constitutional law, civil rights actions, state constitutional law and torts. He has written on a wide variety of constitutional topics, including affirmative action, capital punishment, federalism, freedom of speech, the powers of Congress, sex offender laws and Supreme Court history.

During his years at KU, McAllister has served a number of Kansas Attorneys General and the Kansas Legislature as a legal adviser and litigator, beginning with his work on the sex offender civil commitment case (Kansas v. Hendricks) that went to the Supreme Court in 1996, and continuing through today as he prepares for Oct. 14 arguments at the Supreme Court in the case of Kansas v. Nebraska and Colorado, a dispute over water in the Republican River Basin. In between, he has worked on cases involving a variety of constitutional issues, including the death penalty, the Fifth Amendment privilege against self-incrimination, school finance and freedom of speech.

McAllister’s Supreme Court advocacy has resulted in two Best Brief awards presented by the National Association of Attorneys General. In November 2010, the Supreme Court appointed McAllister to brief and argue in defense of the judgment in a case called Bond v. United States after the United States decided it would not defend the lower court’s ruling. 

McAllister has played a role in bringing several Supreme Court justices to KU and Kansas, and he persuaded two justices to teach in the law school’s summer program in Turkey. In 2013, McAllister and his family spent two weeks with Justice Clarence Thomas and his wife in Innsbruck, Austria, where Thomas and McAllister co-taught a course.

McAllister assumed the Hampton professorship in September 2013. The E.S. & Tom W. Hampton Professorship was established in 1985 by the family, law firm and friends of Salina lawyers E.S. and Tom W. Hampton. E.S. Hampton was a 1929 graduate of the law school and senior partner at Salina firm Burch, Litowich and Royce. His son Tom graduated from KU Law in 1959 and joined his father’s practice. The professorship honors the Hamptons’ legacy and aims to attract and retain quality faculty at KU Law.

New partnership for KU program to help prisoners who otherwise might not receive legal representation

"According to national statistics 2 to 5 percent of innocent people can be incarcerated. This week a University of Kansas program announced a partnership with the Midwest Innocence Project, to help those people in jail and shouldn't be, get out.

Former University of Kansas Law Professor Paul E. Wilson founded the Defender Project in 1965, bringing students and staff together to help prisoners who otherwise might not receive legal representation.

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