Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Posts for January, 2015

Apply nightly

Timothy Kincaid

January 13th, 2015

renewed hope

At first glance, I immediately thought of Restored Hope Network, the anti-gay ex-gay group that arose after Exodus International closed up shop. But, sadly for Restored Hope, wrinkles are easier to fight off than one’s inherent orientation.

South Dakota’s marriage ban ruled unconstitutional

Timothy Kincaid

January 12th, 2015

marriage 2015

dark purple – marriage equality
light purple – marriage equality in part of the state
pink – marriage equality stayed
yellow – federal ruling for discrimination
red – appellate ruling for discrimination

A federal judge has ruled, on summary judgement, that marriage is a fundamental right and that the ban on same-sex marriage in South Dakota violates the Equal Protections clause of the US Constitution. (Sun Times)

U.S. District Judge Karen Schreier on Monday issued a summary judgment in favor of the six couples who filed the lawsuit. The federal complaint challenges both South Dakota’s ban on gay marriage and its refusal to recognize marriages of same-sex couples who legally wed in other states.

Judge Schreier stayed the ruling pending appeal, at least in part because the Eighth Circuit has not heard or ruled on a marriage equality case. The Eighth Circuit also includes:

Iowa – marriage equality due to a state supreme court ruling.
Minnesota – marriage equality as the result of legislation after the voters rejected a constitutional ban
Missouri – in November two judges ruled for marriage equality and did not stay their rulings. However these did not necessarily apply across the state, resulting in a few counties and the city of St. Louis issuing same-sex marriage licenses.
Arkansas – in November a federal judge ruled for marriage equality. That ruling is stayed pending appeal.
Nebraska – to the best of my knowledge, no cases have yet been ruled on.
North Dakota – to the best of my knowledge, no cases have yet been ruled on.

The plaintiffs have indicated that they will appeal the stay.

SCOTUS drops Louisiana appeal

Timothy Kincaid

January 12th, 2015

Among the marriage case appeals under consideration last Friday was Robicheaux v. George, in which U.S. District Judge Martin Feldman had found that the state of Louisiana had a “legitimate interest” in prohibiting same-sex couples from marrying. The plaintiffs appealed to the Fifth Circuit Court of Appeals, but also appealed to the Supreme Court to hear the case before the circuit court decision.

The Supreme Court has now announced that it will not be hearing Robicheaux at this time. This is likely not detrimental to the cause of marriage equality, as the case was heard last week by the Fifth Circuit, and nearly all observers predict that the ruling will be overturned by that court.

SCOTUS has also announced that the four cases in which the Sixth Circuit upheld discrimination will be considered at their conference this Friday. As it stands, if any marriage cases are taken up by the court this year, it will be those in which laws singling out gay people for exclusion have been upheld.

Ninth Circuit slaps down Butch Otter

Timothy Kincaid

January 10th, 2015

Idaho Governor Butch Otter has had his hat handed back to him. Again.

Otter’s defense of the state’s anti-gay marriage laws hasn’t gone well. He lost in federal court. He lost on appeal at the Ninth Circuit. And the Supreme Court is not considering whether to hear Idaho’s appeal. On October 10th of last year, Justice Kennedy lifted the last stay and marriages have been occurring since.

But it seems that Otter hasn’t met Captain Obvious. So, in what appears to be a pointless effort, he appealed to the Ninth Circuit to hear his case en banc (by a larger panel of judges).

Yeah… no.

He did get the support of three judges, O’Scannlain, Rawlinson, and Bea, but,

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.

The single MOST important thing to Rep. Bill Hayes

Timothy Kincaid

January 9th, 2015

Bill hayesMeet Bill Hayes.

Hayes is the Representative to the Ohio House of Representatives from the 71st District, a rural chunk of dirt between Columbus and Cleveland. And he holds his Republican values with pride (candidate site)

Bill is “Rock Solid” on

  • Smaller Government
  • Protection of the Unborn
  • Lower Taxes/Less Spending
  • Gun rights
  • Quality Education
  • Securing Our Borders

But though he left if off the list, there is one value, one singular issue, which is more important than any of these. So important, in fact, that Bill Hayes wrote a letter to the Newark Advocate editor to explain how this issue trumps all others.

Here’s Bill telling us why he isn’t endorsing fellow Republican Senator Rob Portman:

I am very much in line with the Senator on many, in fact most, issues such as his conservative approach to fiscal matters, the 2nd amendment, health care, education, school prayer, and most family issues.

However, as a matter of conscience I do not concur with his position that loving homosexual couples should be permitted to “marry”. That view requires me to redefine my strongly held religious view on the institution of “marriage”, a view that, because of conscience, I cannot support and that does not allow me to endorse the senator’s candidacy due to the influence my endorsement may have on others.

I think that when Rep. Hayes runs for re-election he should just leave off all that stuff about guns and smaller government. After all, the truly important thing to Hayes is stopping gay people from getting married.

No SCOTUS marriage announcement today

Timothy Kincaid

January 9th, 2015

The Supreme Court met today to determine which cases they will accept this year. Among those in consideration were the marriage cases from the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) and Louisiana.

The Louisiana case (which was also heard this morning in the Fifth Circuit Court of Appeals) is one of the few since the Windsor case in which a federal judge has ruled against equality. The Sixth Circuit is the only appellate court, to date, to rule in favor of anti-gay bans on marriage.

There was some expectation that the Supreme Court would release it’s decision to hear one or all of these cases today. However, no such decision has been announced.

This does not mean that the court will not hear any of these cases. Further announcements will be made Monday and could be made any time before the end of the month. The possible outcomes of today’s deliberation could be:

  • That none of the cases are heard. This would leave the nation divided as to whether the US Constitution allows legislation and state constitutional provisions designed to disadvantage gay citizens and deny them equal status under the law. This is unlikely.
  • That one or all of the cases are heard. This would result in another argument before SCOTUS which would probably answer the question once and for all. Marriage equality supporters predict that the court would rule that anti-gay laws are disallowed by the either the Due Process or Equal Protections provision of the US Constitution (or both).
  • That the court reverses the ruling of the Sixth Circuit outright. While this is not terribly likely, it would be very fitting in that it would treat bigotry with the same measure of cavalier distain that it treated equality 44 years ago in the Baker case.

Fifth Circuit looks promising

Timothy Kincaid

January 9th, 2015

Today the Fifth Circuit Court of Appeals is hearing argument on three marriage equality cases, separately, one from each of Louisiana, Texas, and Mississippi. First in line was Robicheaux vs Caldwell, the case from Louisiana.

The Fifth Circuit panel consists of two Reagan appointees (Jerry Smith and Patrick Higginbotham) and an Obama appointee (James Graves). It was known, going in, that Smith was not sympathetic with the notion that gay people hold the same constitutional rights as heterosexuals and that Graves favored equality. The wild card was Higginbotham.

We cannot, of course, know the outcome until it is determined and announced. However observers are reporting good news from the Louisiana hearing. Higginbotham joined Graves in expressing skepticism towards the arguments presented by the state and those who were there are predicting victory.

UPDATE: the oral arguments have been made available here

Bill Donohue: Charlie Hebdo Had It Coming

Jim Burroway

January 8th, 2015

The Catholic League’s Bill Donohue — okay, who am I kidding; Donohue is the entire “league” — has decided to throw his two francs in on yesterday’s bombing:

Bill Donohue

Those who work at this newspaper have a long and disgusting record of going way beyond the mere lampooning of public figures, and this is especially true of their depictions of religious figures. For example, they have shown nuns masturbating and popes wearing condoms. They have also shown Muhammad in pornographic poses.

While some Muslims today object to any depiction of the Prophet, others do not. Moreover, visual representations of him are not proscribed by the Koran. What unites Muslims in their anger against Charlie Hebdo is the vulgar manner in which Muhammad has been portrayed. What they object to is being intentionally insulted over the course of many years. On this aspect, I am in total agreement with them.

Stephane Charbonnier, the paper’s publisher, was killed today in the slaughter. It is too bad that he didn’t understand the role he played in his tragic death. In 2012, when asked why he insults Muslims, he said, “Muhammad isn’t sacred to me.” Had he not been so narcissistic, he may still be alive. Muhammad isn’t sacred to me, either, but it would never occur to me to deliberately insult Muslims by trashing him. …Madison was right when he said, “Liberty may be endangered by the abuses of liberty as well as the abuses of power.”

Donohue threw in the obligatory bone that the violence in Paris “must be unequivocally condemned.” But then he adds, “But neither should we tolerate the kind of intolerance that provoked this violent reaction.” So let’s do the math: 23 words to condemn the violence, 254 to justify it. That pretty much sums it up.

Marriage goes state-wide in Florida

Timothy Kincaid

January 6th, 2015

marriage 2014

dark purple – marriage equality states
light purple – marriage in some counties, the state is still fighting
pink – we have won in federal court but the rulings are stayed on appeal to the Circuit court
orange – we have lost in federal court and are appealing to the Circuit court
red – we have lost in the Circuit court and are appealing to the Supreme Court

The stay has lifted across the state of Florida and all 67 counties have joined Miami-Dade in issuing marriage licenses to same-sex couples.

Congratulations to all.

They’re Marrying In Miami

Jim Burroway

January 5th, 2015

That’s Miami-Dade Circuit Court judge Sarah Zabel, lifting her stay of a July ruling finding Florida’s ban on same-sex marriages unconstitutional. And so thirty-eight years after Anita Bryant raised her ugly puss and six years after 62% of Florida voters agreed to write shameful discrimination into their state constitution, the first same-sex marriages are taking place in Miami:

Karla Arguello and Cathy Pareto are the first same-sex couple to marry in Florida (Source).

Karla Arguello and Cathy Pareto are the first same-sex couple to marry in Florida (Source).

Weddings began around 1:30 p.m., less than three hours after Circuit Judge Sarah Zabel lifted the legal stay she had placed on her sweeping July decision declaring the ban discriminatory.

Two of the six couples who had sued — Catherina Pareto and Karla Arguello of Coconut Grove, and Jeff and Todd Delmay of Hollywood — were the first to be married, by Zabel herself.

Jeff and Todd Delmay become Florida's second same-sex couple to marry. (Source)

Jeff and Todd Delmay become Florida’s second same-sex couple to marry. (Source)

Judge Zabel overturned Florida’s ban as Miami-Dade Circuit Court judge, which makes her ruling binding only in Miami-Dade. Her stay expired today. Tonight at midnight, Federal District Judge Robert L. Hinkle’s stay of his ruling that Florida’s marriage equality ban was unconstitutional expires, which opens up same-sex marriage statewide tomorrow.

Congratulations Luxembourg

Timothy Kincaid

January 2nd, 2015

In June, the Luxembourg Parliament voted by a large margin in favor of marriage equality. Yesterday that law went into effect.

Heartfelt congratulations to the tiny nation and its people.

Judge clarifies Florida ruling; anti-gays remain dishonest

Timothy Kincaid

January 2nd, 2015

marriage 2014

In August of 2014, U.S. District Judge Robert L. Hinkle found that Florida’s ban on same-sex marriages violated the provisions of the US Constitution. He placed a stay on his ruling until appeals (and requests for further stays) could be filed with higher courts. No extended stays were granted and Judge Hinkle’s stay expires today on Monday, January 5th.

Washington County Clerk Lora Bell’s requested that Judge Hinkle direct her as to whether this ruling applies only to the plaintiffs, and the state Attorney General asked whether the ruling applied to all county clerks. Yesterday Judge Hinkle provided clarification regarding those to whom his ruling applied.

Hinkle’s order was slightly nuanced and illustrates the care that judges go through to apply not only the spirit of the law, but its technical structure and authorities. There are three major points in what he said

The technical response

In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants.

Because there were no other parties in the lawsuit and because it was not a class action lawsuit, the rules of the court do not compel this clerk to issue licenses to any other couples.

The real response

Then the judge followed with the clencher:

But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

In other words, Hinkle is saying, “I’m not the one compelling you to issue this license. The US Constitution compels you to do so. So hell yes! Follow the law!”

The threat

And he preceded this by “clarifying” what would happen to those county clerks who decided that Hinkle’s ruling doesn’t apply to them and that they could just ignore the US Constitution’s protections.

History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

Hinkle warned them that if they want to be obstructionist, additional plaintiffs could sue, the case could become a class action, it could be determined by preliminary injunction (almost immediately), and the cost of all of this will come out of that clerk’s budget. In synopsis, Hinkle said that his ruling may be followed by all courts to all same-sex couples. Further, while it could be technically ignored, this is merely a short-term defiance of the US Constitution and an expensive one, at that.

Attorney General Pam Bondi issued a ‘proceed at your own risk’ statement, indicating that she will not be participating in any efforts to defy the judge:

Following significant public confusion about the federal-court injunction, the court today granted the clerk of court’s request for clarification. In the order, the court specified that the injunction does not require a clerk to issue licenses to same-sex couples other than the plaintiffs, but the court stated that “a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.” Attorney General Bondi’s statement is as follows:

“This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed.”

The law firm advising the Florida Association of Court Clerks and Comptrollers had, before the clarification, advised counties not to follow the ruling. Yesterday they issued an advisory opposite of their earlier opinion and recommended that clerks offer licenses. “Judge Hinkle’s order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs’ fees and costs,”

But the anti-gay activists are saying something quite else. Florida Family Policy Council (who’s sister group Florida Family Action filed a nutcase lawsuit trying to stop marriages) had this to say:

“Judge Hinkle’s ruling is being widely misinterpreted. It clearly says that only the clerk Washington County is required to issue a marriage license and only to the two persons in that case. Judge Hinkle has no jurisdiction outside of the Northern District of Florida to bind any clerk outside of North Florida. Clerk’s outside of North Florida are required to obey the current law and are still subject to all the penalties of a first-degree misdemeanor for violating it,” said John Stemberger, president and general counsel of the Florida Family Policy Council.

Liberty Counsel proclaimed “Victory in Federal Court

In a highly anticipated ruling to clarify an August preliminary injunction in the federal case Brenner v. Scott, the district judge agreed with Liberty Counsel that the injunction does not require Florida clerks of court outside Washington County to issue marriage licenses to same-sex couples on January 6. Indeed, the new order clarifies that the injunction is limited to the plaintiffs in the case, expressly holding, “The preliminary injunction now in effect thus does not require the [Washington County] Clerk to issue licenses to other applicants.”

Misinterpretation is definitely going on. But it isn’t by the Attorney General, the law firm advising the clerks, or the newspapers. To see this as a “victory” for anti-gay forces requires a special kind of blinders and more than a little willingness to deceive oneself and others.

Irrespective of the declarations by anti-gays, the end result will be that starting tomorrow on Tuesday, many counties will be granting marriage licenses to same sex couples. Others may not do so immediately, and they engage in a costly and futile legal entanglement before they, too, do so.

This doesn’t mean smooth sailing. Already some clerks have changed their policies to discontinue all marriage ceremonies conducted by the clerk or at the courthouse – be they same-sex or opposite-sex – based on their religious beliefs that whatever else you do, you must never treat your neighbor how you wish to be treated. But that is likely to be only a minor inconvenience as clergy step in to fill that role.

For all practical purposes, marriage equality has finally come to Florida.

Congratulations Scotland

Timothy Kincaid

December 30th, 2014

edinburgh

It’s been nearly 270 years since my forebears left their ancestral home and sailed to the new world. So any relatives I may have in Scotland are very distantly related.

Nevertheless, a hearty congratulations to all the Scottish Kincaids, and all other Scots on this, their first day of marriage equality.

Astonishingly stupid lawsuits from Florida Family Action

Timothy Kincaid

December 30th, 2014
John Stemberger

John Stemberger

As we discussed, last night the plaintiffs and the state of Florida filed briefs in response to Washington County Clerk Lora Bell’s inquiry as to whether Judge Hinkle’s ruling re same-sex marriage applied only to one couple or to all clerks in the state. The plaintiffs argued that the ruling is state-wide and the Attorney General did not disagree.

It is almost certain that Judge Hinkle will clarify that his ruling applies to all members of the state infrastructure in any role they play in issuing, processing, recording, or otherwise dealing with marriage licenses and the rights, obligations, and benefits which derive from them.

But Florida Family Action, an anti-gay advocacy group, is predicting otherwise. And they are now suing those mayors and county clerks which have affirmatively announced that they will issue licenses to same-sex couples or participate in their marriages.

Because they are idiots.

Florida Family Action (FFA) announced today the filing of two lawsuits against three elected officials in Central Florida who have made clear public statements of their intentions to defy Florida law and either issue same-sex marriage licenses or officiate over same-sex marriage ceremonies on or after January 6, 2015.

John Stemberger, president of the Florida Family Action organization issued the following statement regarding the lawsuits:

“All three of these officials have shown great contempt and disrespect for the rule of law and are behaving irresponsibly and unprofessionally. The federal court decision is clear that it only applies narrowly to the two plaintiffs and only in Washington County. Elected officials must be held accountable to the law and to the constitution they have sworn to uphold. Part of the reason for the recent landslide mid-term election was the utter disregard and insolence shown by President Obama for the rule of law which is now infecting so many other politicians across America. Respect for law must be restored or else legitimacy in government as an institution will diminish at an even greater rate. Ultimately, if these local officials continue in this same reckless pattern of behavior, they could easily face the same fate as so many other politicians did who are now retired as a result of the last election.”

Stemberger seems to be unaware that you file lawsuits in real courts with real judges, not in the court of public opinion. Or, for that matter, that supporting equality is likely to be a political advantage for these elected officials.

He also seems unaware that judges are very very busy people with tight schedules and they hate it when you waste their time with frivolous lawsuits.

But he may soon learn that.

Florida: “Dunno, Judge, you tell me.”

Timothy Kincaid

December 30th, 2014

florida
The fate of same-sex marriage in Florida has been subjected to a bit of a circus. No so much as some states, such as Idaho, Kansas, or Missouri, but still Florida has had its fair share of confusion.

Part of the issue is that there are two courts in which the state’s ban was found, state court and federal court, both ruling on whether the marriage ban violates the US Constitution.

In July, Monroe County Circuit Judge Luis Garcia found that the ban violated the both the Due Process and the Equal Protections provisions of the US Constitution. The state had not put on a particularly stiff defense, merely arguing that the state had the right to set its own laws; Attorney General Pam Bondi did not attend, sending an assistant DA who spoke for about five minutes.

A week later, Miami-Dade Circuit Judge Sarah Zabel found the same thing. Both rulings were appealed to the Florida State Supreme Court.

In August, U.S. District Judge Robert L. Hinkle also found that the state’s ban violated the equal protection and due process provisions of the US Constitution. Attorney General Bondi appealed the ruling to the Eleventh Circuit Court of Appeals.

She then made a request of the state Supreme Court: that it not make a ruling until the Supreme Court of the United State took on one of the many marriage cases before it.

At that time it was a common expectation that SCOTUS would announce in October which case/s it would hear. But to pretty much everyone’s surprise, the court said that it would not be reconsidering any of the pro-gay rulings from the Fourth, Seventh, and Tenth Circuits.

In response Attorney General Bondi asked the Florida State Supreme Court to not continue waiting but instead to decide the issue for the state in due haste. I’m not sure why it was that the Florida Court did not respond (this story is a bit convoluted), but it has not acted.

Which brings us to the federal case, the ruling by Judge Hinkle.

When Hinkle found that the ban violated the US Constitution, he placed a temporary stay on the ruling so that the state could appeal and so that higher courts could put in place a permanent stay, should they wish. That stay expires on January 5th.

Florida requested that the Eleventh Circuit extend the stay until the appeal was heard. It was denied. They requested that SCOTUS extend the stay. It was denied. So on January 6th, same-sex marriages will be allowable in Florida.

The question is, however, to what extent.

The legal counsel for the county clerks association sent a letter telling the clerks that the ruling only applied to the county in which the plaintiffs in that case live. Anti-gay activists demanded that not only was it just one county, but that it was also only just for the one couple.

So the county clerk in Washington County, a small sparsely populated county on the Florida panhandle, asked the judge, “what do I do?”. Judge Hinkle gave the various parties until midnight last night to file their views on the matter.

The judge’s opinion on the scope of his ruling was pretty clear in his order requesting input. He didn’t exactly call the clerk an idiot in so many words, but it was implied.

The counsel for the couples filed a brief yesterday in which they argued that Hinkle’s ruling applied to all the state.

Attorney General Bondi’s brief was a bit more circumspect. Bondi didn’t give an opinion about what the scope of the ruling should be, choosing instead to let the judge do that. She noted that the wording of the original order may not explicitly include all of the state’s county clerks but requested that the judge just tell her what he meant.

This Court is best situated to determine the reach of its own order.

If the Court intends the injunction to have effects beyond those that appear on its face, or beyond the interpretation of the Brenner plaintiffs’ counsel, the Court may wish provide appropriate clarification.

In other words, ‘Judge, I don’t think your order says what you want it to say, so please give me some language that tells me what to do’.

I don’t think the judge’s position is going to change. So we should expect ‘clarifying language’ to be released shortly and that same-sex marriages will be legal throughout the state a week from today.

Newer Posts | Older Posts