The “odd couple” pairing of the two groups — similar to Ted Olson and David Boies’ leadership in fighting California’s Proposition 8 and Virginia’s similar ban — is not new. They’ve filed joint briefs opposing the bans in most of the recent marriage challenge appeals, including in the Prop 8 case. In Friday’s filing, however, they made two new arguments — both of which could have an impact beyond the marriage landscape.
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"The ... decisions seem to be setting the court up to issue earth-shaking rulings on voting rights, abortion and marriage equality in the heat of the next presidential election season," says Doug Kendall, president of the Constitutional Accountability Center. "In the name of prudence, the court is arranging to put itself at the center of the 2016 political maelstrom."
Legal scholars and courts have been wrangling for more than a year over whether the National Security Agency's collection of millions of Americans' phone records — a program first disclosed to the public by former NSA contractor Edward Snowden in 2013 — violates those protections. Some legal experts disagree over whether the record collection even qualifies as a search or seizure, and, if it does, whether collecting those records is "unreasonable" or requires a warrant. In a recent Intelligence Squared U.S. debate, two teams of constitutional law experts, including CAC Chief Counsel Elizabeth Wydra, faced off on the motion "Mass Collection of U.S. Phone Records Violates The Fourth Amendment." In these Oxford-style debates, the team that sways the most people to its side by the end is the winner.
While I don't think that it will take 19 more years for nationwide marriage equality, every day that gay men and lesbians are denied their constitutional rights and suffer the harms that follow is one day too many. So my joy today is tempered by the sadness of knowing that, for so many gay men and lesbians in this country, marriage equality is still a constitutional promise not yet fulfilled.
CAC's Elizabeth Wydra appeared on FOX News Channel to discuss the U.S. Supreme Court's decision not to hear marriage equality cases on the first day of the new Term.