Introduction:
Adam Smith and Steve Jones were married in Iowa, two years ago while on vacation in Des Moines. Smith is self-employed as a writer and currently lacks health insurance while Jones works for the State in the Department of Transportation. After returning to their home in Bismarck, ND, they wanted to be recognized as a married couple and file their state income taxes as a married couple, filing jointly. Also, Smith has been diagnosed with terminal cancer and Jones wishes to use his health insurance plan to get medical care and wants to be able to visit Smith in the hospital because of his spousal rights and next of kin status.
As of now, North Dakota's constitution defines marriage as consisting "only of the legal union between a man and a woman. No other domestic union, however denominated, may be recognized as a marriage or given the same or substantially equivalent legal effect.” Jones and Smith state that this is in violation of their Fourteenth Amendment right to equal protection of the laws and their Ninth Amendment rights to privacy. The question presented to the court is should Adam Smith and Steve Jones be legally and publicly recognized as a married couple in North Dakota after their marriage two years ago in Des Moines, Iowa?
Issues to consider:
North Dakota law defines who is able to get married. The state's laws concerning the marriage contract are contained in North Dakota Century Code Chapter 14-03. Section 14-03-01 defines marriage as "a personal relation arising out of a civil contract between one man and one woman to which the consent of the parties is essential. . . . A spouse refers only to a person of the opposite sex who is a husband or a wife."
The North Dakota law is very similar to the Federal Defense of Marriage Act (also known as DOMA) signed into law by President Clinton in 1996.
DOMA was challenged in court, and in June of 2013, the Supreme Court ruled on it in the case of United States v. Windsor. The Court's ruling was limited in scope, but it struck down DOMA, while leaving it up to the States to decide what they wanted to do about gay marriage. This article from The Washington Post will give you some information about the decision. Here is an editorial from the New York Times about the decision.
The files for US v. Windsor are pre-highlighted for you here on the class portal. Combined they add up to 77 pages, but if you only focus on what I've highlighted it is less than half of that.
A lawsuit similar to our fictional one recently happened in Pennsylvania, resulting in the legalization of same-sex marriage in the Commonwealth. You can read about the local impact of that decision in this article from the Times-Leader.
This blog post, entitled "Why Justice Kennedy's DOMA Opinion Has Its Unique Legal Structure" is an interesting overview.
You might also want to read this article from Slate, which asked if the Court's gay marriage rulings were our generation's Brown v. Board of Education.
While you are at Slate's site, please read the following opinion articles:
You might also want to read the North Dakota resources from the organization "Freedom to Marry" and this memo from the North Dakota Legislature about marriage regulations.
It would be a good idea to get a sense of where gay marriage is legal, and to "read the Court's signals" on this issue. Note that the preceding link was written before the Court decided not to hear futher same sex marriage cases this term.
On Thursday, November 6th, the
Sixth Circuit Court of Appeals upheld state bans on same-sex
marriage in Kentucky, Michigan, Ohio and Tennessee. You
might want to read this summary article from the New
York Times and, perhaps, read
the actual opinion.
Roles:
Judges:
A&S Lawyers:
ND Lawyers:
Tasks:
Preparation for the simulation will begin on Tuesday, November 4th when we will draft the legal teams. You will have the entire class periods of November 5, 6, 7, 10, 11, and 12 to work on this case. As in our previous simulations, you will want to spend a good amount of the time reading, taking notes and making sense of the material.
By the end of class on Friday, November 7th the legal teams should have decided which 2-3 members will do the actual speaking. You must notify me by then.
All non-speaking lawyers will have until the end of class on Monday, November 10th to submit a 2 page (minimum) paper to me in the form of an amicus curiae ("friend of the Court") brief. Here is a helpful article (written the same year as Windsor) describing the recent popularity of amici briefs. In your brief you will need to state the facts of our case, explain the current status of federal and state law and refer to any real-world cases that might relate to our simulation. Finally, you will need to recommend a way for the court to vote in the Adam & Steve case. You will write this brief as though you are representing a specific group of people. Here is an example of some of the amici briefs that were filed in the Windsor case and here are ALL of the amici briefs filed in the related Hollingsworth case--you might use these as a source for ideas.
I will expect both sides to have their presentations ready to go by Wednesday, November 12th (a history Test Priority Day). As I did last time, I will listen to both presentations and give feedback.
Our final simulation will take place on Thursday, November 13th. In the simulation itself, the lawyers for both sides will have 8 minutes (minimum) and 10 minutes (maximum) to present, followed by 5 minutes of questioning by the judges. Hopefully, there will be time for the judges to arrive at a verdict by the end of the class.
By the start of class on Thursday, November 14th the judges will have submitted their written opinions in the case and the lawyers will have submitted their individual feedback.