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A December to Remember: NSA Surveillance and Same-Sex Marriage

Hello, readers, and welcome to 2014, where everything is made up and the points don’t matter! Just kidding, we aren’t living in an episode of “Whose Line Is It Anyway?”, though there have certainly been some surreal judicial moments throughout the past month. In case you missed the madness, here’s a recap for you…

First, on December 16, a federal court judge ruled the National Security Agency’s telephone surveillance unconstitutional. Judge Richard Leon, of the U.S. Court of Appeals for the District of Columbia Circuit, held that the “NSA program which collects information on nearly all telephone calls made to, from, or within the United States” violates the Fourth Amendment. This amendment guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Judge Leon went farther than accusing the NSA of violating “unreasonable search and seizure,” though; he also argued that “the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks” (from Politico), and likened the data collection to something out of George Orwell’s 1984. He “issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to [Larry] Klayman [the lawyer who brought the suit] and one of his clients,” but then stayed the order “to allow for an appeal.”

Fast forward to December 27, when Judge William H. Pauley III from the U.S. District Court for the Southern District of New York complicated matters by ruling that the NSA phone surveillance was, in fact, legal. Pauley began his opinion by explaining that expanded telephone surveillance might have helped the NSA catch Khalid al-Mihdhar, one of the hijackers in the 9/11 attacks, and explained why the surveillance was constitutional, writing, “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” Both he and Justice Leon addressed the 1979 Supreme Court case Smith v. Maryland,  which “the Obama administration has used to underpin [the NSA] program” (from NPR): Pauley held, “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” while Leon thought that “advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling” (from the New York Times).

Due to the fact that there are two separate lawsuits for the same issue—one brought in D. C. by Larry Klayman, and one brought in New York City by the American Civil Liberties Union—and the Department of Defense’s appeal of Judge Leon’s decision on January 3, it seems that the question of “NSA phone search constitutionality” will soon come before the Supreme Court. These two cases will move to the appellate court level, and if those two decisions differ, it is almost certain that the Supreme Court will take on some form of these lawsuits leveled against the NSA. Whether all of this takes place before June 1, 2015, the date on which Section 215 of the Patriot Act, which authorizes the NSA surveillance program, expires is another problem.

Our next court kerfuffle came in the form of same-sex marriage: on December 20, Judge Richard Shelby declared Utah’s ban on same-sex marriage unconstitutional. Then, on December 23, he “denied a request by the state that sought to halt gay marriage until the appeals process plays out.” As a result, same-sex couples who then got married in Utah were legally wed… until January 6, when the Supreme Court imposed a stay on Judge Shelby’s decision. Unfortunately, the Supreme Court’s stay “reinstates the state ban and will keep it intact until after a federal appeals court has ruled on it” (from SCOTUSblog), putting an end (for now) to same-sex marriage in Utah.

950 marriage licenses were issued to same-sex couples between December 20 and January 6, but “it is unknown how many of them actually got married before the Supreme Court acted on [January 6],” and the State of Utah will not recognize these marriages until legal matters are settled. However, on January 10, U.S. Attorney General Eric Holder confirmed that “the Obama administration will recognize as legal, for purposes of federal rights and benefits, the… same-sex marriages that were performed under a federal judge’s ruling that the state’s ban was unconstitutional” (from SCOTUSblog). Therefore, at this point in time, same-sex couples who were married in Utah between December 20 and January 6 are granted federal rights and benefits, but not rights and benefits exclusive to the State of Utah. The case now advances to the U.S. Court of Appeals for the Tenth Circuit, but it is unclear whether any decisions will be made in time to take this issue to the Supreme Court before its current term ends in June.

A similar situation might arise in Oklahoma, where just yesterday (January 14), Judge Terence C. Kern of the U.S. District Court for the Northern District of Oklahoma ruled that the state’s ban on same-sex marriage was unconstitutional. Judge Kern ruled that “the state’s constitutional amendment barring same-sex marriage violated the federal constitution,” explaining that the ban was “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit,” and that the ban was “based on ‘moral disapproval’ and [did] not advance the state’s asserted interests in promoting heterosexual marriage or the welfare of children.” The decision does not take effect immediately, though, and an appeal to the Tenth Circuit is already in the works, meaning that there was not a window of opportunity for same-sex couples in Oklahoma to get married. As the Utah case will be decided before the Oklahoma case by the Tenth Circuit,  we will just have to wait and see what happens for same-sex couples in both of these states. And stay tuned to this channel—the second half of the Supreme Court’s term has some important cases on the docket, and “The Courts” will provide you with insight and analysis until the final opinions are released!

Image Credit: Phil RoederInside the United States Supreme CourtCC BY 2.0

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.