Dissenting justices&#39; views on second question in Obergefell Obergefell v. Hodges was a recent case in which the Supreme Court ruled that same-sex marriage was a constitutional right. The Court considered two questions: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 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-of-state? The Court ruled 5-4 that the answer to both question is yes (a yes answer to the first question essentially makes the second question moot). Each of the four dissenting justices (Alito, Roberts, Scalia, and Thomas) wrote an opinion. Is there any indication (for example, from their opinions) of how the dissenting justices would have voted on the second question?
From Roberts' dissenting opinion: Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. (The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.) In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage.
I guess the meat of your question is: If a city enacts an unconstitutional ordinance, can it evade judicial review by repealing the ordinance and arguing for mootness once the judicial proceeding reaches to a point of potential disadvantage, and reenacting the same or a very similar ordinance once the judicial proceeding is dismissed? I don't know where the bright line is (maybe SCOTUS hasn't drawn a clear line yet), but at least there has been a case in which the SCOTUS rejected the mootness argument by a city that repealed the ordinance at issue during appeal: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). Two parts of the city's ordinance were at issue: (1) the language of "connections with criminal elements" and (2) "the age restriction." On appeal, the Fifth Circuit declared (1) unconstitutional but upheld (2). The city then repealed (1) and, on appeal to the SCOTUS, argued that the issue of (1) was moot. The mootness argument was rejected. The rejection argument was very short as presented in section I of the majority opinion: It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise, rather than the existence, of judicial power. [Footnote 10] In this case, the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated. [Footnote 11] The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding. Footnote 11 might be a critical fact in rejecting the mootness argument: Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20. Therefore, I think, if a city repeatedly employs your proposed strategy, the SCOTUS is unlikely to declare the case moot. EDIT: As pointed out by "Just a guy", the mootness part of City of Mesquite is about voluntary cessation, which is a kind of strategy concomitant with mootness arguments. Voluntary cessation does not moot the case unless "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199 (1968). But the point of this answer is not on voluntary cessation in general. It is in the context of intervening legislation. A voluntary intervening legislation is usually sufficient to moot a case (e.g., Massachusetts v. Oakes, 491 U.S. 576 (1989)), but it was not so in City of Mesquite -- that's why it is different from most similar voluntary cessation cases, and resembles more closely to the NYC gun control case. Perhaps because it is a city (and was thus less burdened to reenact the same or a similar ordinance than a state legislature), perhaps because it had declared its intention to reenact, perhaps both. None of these might be controlling precedents. But, City of Mesquite and the state legislature cases like Oakes (because the NY state legislature also acted), are probably at least close ones in the jurisprudence of the SCOTUS at this point of time.
The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court.
The relevant law for you is ORC 4705.07. (A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law. (This is a prime example of legal language that cannot be interpreted on the basis of rules of English -- the issue is the meaning of "that person"). This does not prohibit you from giving an opinion as to what the law is, which is a right protected under the First Amendment. You would be in trouble if you said "This is my advice as a lawyer". Section 2 b.t.w. says that only the Supreme Court (of Ohio) can determine if a person has committed an act on their don't-do-it list. Rule 7 pertaining to their procedure is here. Section 2 therein enumerates the relevant categories, which fall under the categories "rendering of legal services for another" and "Holding out to the public or otherwise representing oneself as authorized to practice law in Ohio", which is what the statute says.
See section II B of the opinion. On page 13: On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. The analysis of whether it was really that bad follows, ending on page 16. The first paragraph of that analysis describes the reasoning quite well, however: To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The analysis also considers that the Commission's reasoning in this case was inconsistent with its reasoning in &quot;the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.&quot; Those cases concerned bakers refusing orders for &quot;cakes depicting anti-gay marriage symbolism.&quot; It then says that the ruling of the Colorado Court of Appeals, which upheld the Commission's ruling as permissible &quot;because of the offensive nature of the requested message,&quot; was improper because &quot;it is not, as the [Supreme] Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.&quot;
The religious freedom argument has no legs following Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. With respect to the "involuntary servitude", this was dealt with in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). The engagement of Federal power relied on the interstate commerce clause but the current case, as a state law matter, does not need to do this. Basically, by voluntarily providing the goods/service to the public, they agree that they will provide it in accordance with the law governing that kind of commerce. They are free to not provide it to anyone but if they choose to supply it they must supply it to everyone (subject ti normal rules of commerce like the customer actually paying etc.).
Double jeopardy does not apply to different offences [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb... The Supreme Court has held that it means what it says - murder and rape are different offences and so the double jeopardy clause is not triggered. However, if an offence requires that the same elements (or a subset of them) be proved, then they are the same offence. So, for example, both murder and rape normally incorporate the elements of common assault - a person acquitted of either murder or rape cannot subsequently be charged with common assault. Further, the principle of res judicata applies to criminal cases as well as civil cases. Therefore any fact or issue of law that was decided in the first trial cannot be reagitated in the second.
Yes, there is indeed a conflict, often described as a balancing act. Similarly, the principle of free speech protected by the First Amendment requires that the public tolerate lies in political rhetoric, and hateful public speech and insults, but can be balanced against an individual's interest in reputation in a libel case. See Near vs Minnesota and NY Times vs Sullivan for leading cases on this issue. There is also tension between the right of a newspaper to report on a current criminal case again under the First Amendment, and the defendant's Sixth Amendment right to a fair trial before an unbiased jury, which might be influenced by newspaper publicity. In these and similar situations, there is no way to fully serve both protected interests, and courts must strike a balance and prefer one right over another, or find some compromise. In the 5th vs 6th situation, courts have mostly favored the 5th. That is, the court will not require a witness to give up the right not to self-incriminate, and usually will not grant a defendant an acquittal because desired testimony is unavailable. It might be that a defendant expected to rely on the testimony of a witness who has since died, or has fled the country and cannot be brought before the court. The sixth does not and cannot assure perfect justice, and the courts do not attempt to make it do so. In the situation described, the defendant may compel the witness to appear and be asked the relevant questions. The jury will hear the answer, and may assume what it would have been without the invocation of the Fifth. The defendant's lawyer can try to find a question that the witness will answer, and can argue that the refusal to answer is consistent with a not-guilty verdict. That is all that the courts provide. When the prosecution calls a witness, knowing or having good reason to know that the witness will invoke the 5th on more or less every relevant question, the US Supreme Court in Namet v. United States 373 U.S. 179 (1963) has held that this may be error requiring overturning the conviction. This was confirmed and expanded in Douglas v. Alabama 380 U.S. 415 (1965). But neither of these are relevant when the defense calls the witness.