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“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…”
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Posts for January, 2015

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.

Breaking news: box of rocks will run for presidency in 2016

Timothy Kincaid

December 10th, 2014

The box of rocks has been silent for the past two years after winning no votes in the 2012 GOP presidential primary. A spokesman for the box explained that most people just think the box is dumb and there’s not much use in debating the point.

But now we hear that Rick Santorum will be running again for the Republican nomination, and he’s proved time and again to be dumber than a box of rocks. So far, he’s off to a great start. (WaPo)

Reflecting on how a presidential campaign could be different this time around, Santorum said: “We’re just obviously in a better place right now. Our message will be a lot more focused this time than it was last time.”

Well, obviously!

For now the box is not responding; but the spokesman assures us that if Santorum runs again then the box of rocks will reignite it’s campaign, and the box is sure to benefit by comparison.

The People We’ll Never Reach

Rob Tisinai

December 8th, 2014

What I say:

My husband and I went to a gay charity event for L.A. Children’s Hospital, and it was lovely to see all the clothes and toys this group of good people had brought to the party.

What they hear:

My SatanSatanSatan! and I went to a SatanSatanSatan! for L.A. Children’s Hospital and it was lovely to see all the clothes and toys this SatanSatanSatan! had brought to the SatanSatanSatan!

Bonus distortion:

More proof that homosexuals (SatanSatanSatan!) are obsessed with children.

No Christmas nuptials for Mississippi

Timothy Kincaid

December 4th, 2014

Alas, before the stay issued by Judge Carlton Reeves expired on his ruling overturning Mississippi’s ban on same-sex marriage, the Tenth Fifth Circuit Court of Appeals extended the stay. So there will be no same-sex marriages in that state this year.

However, the wait is not interminable. The Tenth Fifth Circuit is scheduled on January 9th to hear oral arguments on similar rulings from Texas (favorable) and Louisiana (unfavorable). Assuming it makes its determination shortly thereafter, it is likely that this ruling will also apply in short order to Mississippi.

Marriage in Florida in January?

Timothy Kincaid

December 3rd, 2014

Florida couples, set your calendars.

In July, Miami-Dade Circuit Judge Sarah Zabel found that the state’s ban on same-sex marriage was a violation of the US Constitution. That ruling was put on hold until July January 5, 2015, in order to give the state time to appeal.

The state appealed to the Eleventh Circuit Court of Appeals and also asked that the circuit court extend the stay on the ruling until such time as the appeal could be heard and determined.

Equality Florida is now reporting:

The 11th Circuit U.S. Court of Appeals has denied the state’s motion to extend the stay, which means Judge Hinkle’s stay expires end of day on January 5th and marriages begin!

The state may now request an extension of the stay from the Supreme Court. Barring that unlikely event, marriages will begin in the first week on the new year in the Sunshine State.

Federal judge finds Missouri ban unconstitutional

Timothy Kincaid

November 7th, 2014

A few days ago a state judge found Missouri’s anti-gay marriage ban to be a violation of the US Constitution. The ruling is under appeal at the state Supreme Court, but is not stayed in the interim.

Today a federal judge, Ortrie D Smith, has come to the same conclusion.

Smith has stayed the Federal ruling until it passes appeal, but the state ruling continues to allow for marriage licenses to be issued. There is some uncertainty as to whether the state ruling applies to the entire state, but at present those Missouri couples wishing to marry may get their license in St. Louis and have it recognized throughout the state.

In Other News — Sun Rises, NOM Takes Credit

Jim Burroway

November 5th, 2014

NOM puffs its chest over yesterday’s elections:

“Marriage won an overwhelming victory last night,” said Brian Brown, president of NOM. “In red states and blue, candidates who supported marriage as the union of one man and one woman won election and those who didn’t were rejected by voters. The Republican Party should take note that their nominees who favored gay ‘marriage’ were opposed by NOM and they were resoundingly defeated.”

A Prediction

Rob Tisinai

November 4th, 2014

A hundred years from now, Christians will proudly recall how they fought for LGBT rights at the beginning of the 21st Century, and if anyone reminds them of Christian opposition to our equality, they will reply, “But that was a FALSE Christianity!” So it happened with slavery, so it will happen with gays.

Welcome Out, Tim Cook

Jim Burroway

October 30th, 2014

Tim CookThe fact that he’s gay is probably one of the worst kept secrets — if, indeed, it ever was a secret. The Apple CEO has rarely spoken about anything other than Apple. Unlike his predecessor, Steve Jobs, whose persona and that of Apple’s was one and the same, Tim Cook has always been one to stand back and keep the focus on Apple and its products. That probably won’t change a whole lot, but this morning, in an essay for Businessweek, Cook removed whatever wisps of ambiguity that may still be out there:

While I have never denied my sexuality, I haven’t publicly acknowledged it either, until now. So let me be clear: I’m proud to be gay, and I consider being gay among the greatest gifts God has given me.

Being gay has given me a deeper understanding of what it means to be in the minority and provided a window into the challenges that people in other minority groups deal with every day. It’s made me more empathetic, which has led to a richer life. It’s been tough and uncomfortable at times, but it has given me the confidence to be myself, to follow my own path, and to rise above adversity and bigotry. It’s also given me the skin of a rhinoceros, which comes in handy when you’re the CEO of Apple.

The world has changed so much since I was a kid. America is moving toward marriage equality, and the public figures who have bravely come out have helped change perceptions and made our culture more tolerant. Still, there are laws on the books in a majority of states that allow employers to fire people based solely on their sexual orientation. There are many places where landlords can evict tenants for being gay, or where we can be barred from visiting sick partners and sharing in their legacies. Countless people, particularly kids, face fear and abuse every day because of their sexual orientation.

I don’t consider myself an activist, but I realize how much I’ve benefited from the sacrifice of others. So if hearing that the CEO of Apple is gay can help someone struggling to come to terms with who he or she is, or bring comfort to anyone who feels alone, or inspire people to insist on their equality, then it’s worth the trade-off with my own privacy.

Earlier this week, Cook was in his home state of Alabama where he was being inducted into the Alabama Academy of Honor. In his acceptance speech, he challenged Alabama for its slowness to grant equality to everyone: “As a state, we took too long to steps toward equality. We were too slow on equality for African-Americans. We were too slow on interracial marriage, and we are still too slow for the equality for the LGBT community.”

Arizona edges closer to equality

Timothy Kincaid

October 16th, 2014

Today was the deadline for parties to submit their briefs arguing whether or not the Ninth’s Circuit’s ruling on marriage equality applies to the state of Arizona. Attorney General Tom Horne seems to concede that it does. (AZCentral)

The state’s brief argument concedes that the 9th Circuit ruling would apply to Arizona, but says Sedwick should wait to issue his ruling until the 9th Circuit issues a mandate. The mandate is essentially a technical document telling the courts to go forward with the opinion. The 9th Circuit issued a mandate within hours of its original ruling but withdrew it so Idaho could appeal. That appeal is concluded but the 9th Circuit has not yet reissued the mandate.

Plan your Brokeback marriage

Timothy Kincaid

October 16th, 2014

Wyoming, home of the fictional Brokeback Mountain, may get marriage equality as early as Monday. (Casper Star Tribune)

Acknowledging his order could have grave consequences if incorrect, U.S. District Judge Scott W. Skavdahl plans to issue an order by Monday in a case that could legalize same-sex marriage in Wyoming.

The judge said he would consider the arguments and examine a few more issues before making a decision because “the impact of this court’s ruling if incorrect” could have grave consequences. Skavdahl said he would issue his ruling by 5 p.m. Monday.

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