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Posts for March, 2015

Alabama marriage carnival goes on

Timothy Kincaid

March 19th, 2015

bama

Since our last update, the marriage situation in Alabama has continued to whirl and twirl to a wild caliope tune.

Mobile County Probate Judge Davis, having been told by the Alabama Supreme Court that he was not exempt from their order to discriminate against same-sex couples, turned back to Federal Judge Granade. He noted that the plaintiffs in the case have all gotten married now, and requested that she put a stay on her order so as to keep him from having to defy one court or the other.

Judge Granade didn’t let him off the hook. She said, no dear, it’s isn’t much good that you’ve issued the licenses if the state won’t recognize them. And really you haven’t given me any reason why my ruling shouldn’t be upheld, so go on now and do what you’ve been told.

So Davis is refusing to issue marriage licenses to anyone.

But his problems didn’t stop there. Part of the marriage lawsuit was driven by Cari Searcy, one of the plaintiffs, desire to adopt the child that she and Kim McKeand had raised since birth. Alabama doesn’t allow second-parent adoption, but now that she’s married to the mother, she should be eligible.

But the state is refusing to recognize the marriage so Davis tried to enact partial compliance. He issued an interlocutory decree granting Searcy temporary parental rights but said he would not rule on the adoption itself until after the Supreme Court made it’s decision.

Searcy’s attorneys then sued Davis for failure to follow the order of the Federal Judge. But Davis used this to his advantage. He noted that he’s now a party to the suit and therefore no longer impartial and recused himself from the review of the adoption and asked the Alabama Supreme Court to give him a replacement for the case.

But, Searcy’s attorneys claim, a change in 2001 would have the replacement made by the presiding circuit judge. The matter is unclear because there is uncertainty whether the 2001 change applies to probate judges. This will undoubtedly delay the adoption further.

Meanwhile, Judge Granade has made her first ruling on the request by plaintiffs to add additional plaintiffs and to make the case class action. Attorney General Luther Strange had argued that too much time had passed, but Granade didn’t buy that.

She ruled that the case could be amended to allow additional plaintiffs and defendants.

There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second amended complaint (Doc. 76) is hereby GRANTED.

However, she did not rule on whether the case would be made class action.

Thus, although the court may dismiss class allegations “[w]here it is facially apparent from the pleadings that there is no ascertainable class,” …, the court finds that the Plaintiffs in this case have alleged adequate facts to support a potential class claim and the court will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.

Grenade has given Strange until March 23rd to tell her why “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages” is an ill-defined class definition.

It seems rather unlikely that Strange will convince Judge Granade that this class of people is vague and ill-defined. And it seems rather likely that Judge Granade will determine that her ruling applies to all such couples. This will eliminate all ambiguity about the extent and scope of the Federal ruling and may set the state on course for a showdown with the Federal government.

And then we will see what the Alabama Supreme Court has to say.

Presbyterians support marriage equality

Timothy Kincaid

March 17th, 2015

presbyterian logoCongratulations to the members of the Presbyterian Church (USA). (NYTimes)

After three decades of debate over its stance on homosexuality, members of the Presbyterian Church (U.S.A.) voted on Tuesday to change the definition of marriage in the church’s constitution to include same-sex marriage.

The final approval by a majority of the church’s 171 regional bodies, known as presbyteries, enshrines a change recommended last year by the church’s General Assembly. The vote amends the church’s constitution to broaden marriage from being between “a man and a woman” to “two people, traditionally a man and a woman.”

Although not all presbyteries have voted, the lopsided two-thirds results to date are sufficient to ensure the endorsement of the change.

They join Metropolitan Community Church (MCC), the United Church of Christ (UCC), the Episcopal Church, and the Evangelical Lutheran Church in America as major denominations that now support marriage equality.

There are also a number of independent or smaller churches that value equality. The United Methodist Church does not allow for marriage equality primarily due to Asian and African voters in the international denomination, but the church body in the US is in open revolt and has mostly ceased trying to punish the growing number of ministers who flout the policy.

‘Bama Supremes er at it agin

Timothy Kincaid

March 11th, 2015

bama

Remember when the Supreme Court of the State of Alabama declared that they and they alone know what is in the US Constitution and ordered all counties in the state to stop issuing marriage licenses to same sex couples? Well, at the time, they made one tiny temporary exception.

They told Probate Judge Davis that he needed to get back to them about whether he thought that he was under any obligation to perform the tasks that Federal Judge Granade had ordered him to do.

And Davis, not being a complete lunatic nor wishing to be held in contempt, requested that he be exempted from the state court’s orders. Yeah, like that was going to happen! (WSFA)

The probate judge sought an 11-day extension to comply with the court’s order motion and on March 9 advised the court that he should not be included in the March 3 order because it would require him to violate a federal district court order.

The Alabama Supreme Court denied Davis’ request saying his concern was without merit.

“Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser,” the justices wrote, “and he makes no showing that that order has any continuing, binding effect on him as to any marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested.”

I rather suspect that if Judge Granade was not pissed off already, this might have done it. And the ‘Baba Supremes may well discover that her idea of “without merit” is quite different from the one the good ol’ boys have.

Oklahoma may be getting out of the marriage business

Timothy Kincaid

March 10th, 2015

Governments love control. That’s a given.

So while many people – right, left, or center – have exclaimed, “the government get out of the marriage business, anyway!”, I’ve mostly ignored those cries as impractical. But by a vote of 67 to 24, the Oklahoma House of Representatives has voted to do just that.

HB 1125 removes all references to issuing marriage licenses and instead allows a provision by which the officiant of a marriage files a certificate after the fact informing the state that a legal marriage has occurred (and those who don’t wish for an officiant can file a common-law marriage affidavit). In this way, such county clerks or other public employees as don’t wish to issue licenses that offend their faith won’t have to issue any licenses at all.

Currently the marriage certificate is the final step in the process. And that would remain the same. Except that the certificate, once recorded and certified, is returned to the couple as their legal proof of marriage.

It’s not completely clear why receiving and documenting the certificate is less offensive to a clerk than issuing a license, but perhaps it’s a matter of filing the record of an event rather than issuing a license which is a form of permission.

Or, though unlikely, perhaps this whole fight has caused the Republicans in Oklahoma to ponder on some of the supposed small-government positions that they like to spout and ask themselves why it is that a couple should have to ask the state for permission to marry in the first place.

Interestingly, the law omits any ‘male-female’ requirements and the certificate has signature spaces for “first spouse” and “second spouse”. It does continue restrictions on under-age marriage.

The bill now goes to the state Senate and, if passed, would go into effect November 1, 2015.

Libertarians on Equal Protections

Timothy Kincaid

March 10th, 2015

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.

Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

Latest marriage poll

Timothy Kincaid

March 10th, 2015

In the latest NBC/WSJ poll, US support for marriage equality reaches new heights

Q35 Do you favor or oppose allowing gay and lesbian couples to enter into same-sex marriages? (IF “FAVOR” OR “OPPOSE,” ASK:) Would you say that you strongly (favor/oppose), or just somewhat (favor/oppose)?

38 Strongly favor
21 Somewhat favor
9 Somewhat oppose
24 Strongly oppose
2 It depends
6 Not sure

And just in case the anti-gays think this means they are winning:

Marriage graph_Page_2

More on the amicus briefs

Timothy Kincaid

March 7th, 2015

The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included

Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.

Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.

Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.

Alabama attorneys petition for class action on marriage case

Timothy Kincaid

March 6th, 2015

The attorneys who won their case against Alabama’s anti-gay marriage ban have gone back to Judge Granade and requested that the case be made a class action, impacting all same-sex couples who wish to marry.

Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.

Whatcha gotta say about that, Roy Moore?

Eighth Circuit stays Nebraska ruling

Timothy Kincaid

March 5th, 2015

Washington Blade

Without explanation, the court announces in a two-page order it has stayed pending appeal a decision by U.S. District Judge Joseph Bataillon against Nebraska’s prohibition on same-sex marriage, which was set to take effect at the start of next week.

The court has included Nebraska into the joint hearing they are having for rulings lifting bans in Arkansas, South Dakota and Missouri.

Directing the clerk to expedite briefing in the case, the court announces that oral arguments for all three lawsuits will take place in Omaha on May 12.

Which is between the time that the US Supreme Court will hear arguments (April 28) and the time that the high court issues its ruling in June.

Mark your calendar, we’re going to court

Timothy Kincaid

March 5th, 2015

The Supreme Court of the United States has announce that it will hear arguments on the constitutionality of same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee on April 28th at 10:00 am (EST).

We will want to pay close attention to the direction of the questions as that may give us a hint as to the outcome.

I’m still betting on a 6 to 3 positive ruling.

Alabama weddings screech to a halt

Timothy Kincaid

March 4th, 2015

bamaThe members of the Alabama Supreme Court appear to think that the state is not subject to federal rulings and apparently believes that they, not the federal judicial system, are the final word on applying the Due Process and Equal Protections provisions of the US Constitution.

Some of the anti-gay probate judges, along with anti-gay activist groups, sued in state court to have same-sex marriages stopped. The state Supreme Court responded:

As it has done for approximately two centuries, Alabama law allows for “marriage” only between one man and one woman. Alabama probate judges have a ministerial duty not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.

In other words, it doesn’t matter in the slightest that the Alabama law has been found by a federal judge to be a violation of the US Constitution. Nor does it matter that the Eleventh Circuit Court of Appeals did not grant a stay, finding it unlikely that this ruling will be overturned. Nor is it relevant that the Supreme Court of the United States also refused to stay the ruling, making its intentions clear.

Nope. Neither Judge Granade nor the judges on the Eleventh Circuit Panel not the Justices of the Supreme Court know what is “in the United States Constitution”. No sirree. ‘Bama knows better.

So they’ve ordered the stop of all same-sex marriage licenses.

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples.

And not just the specific counties sued.

Further, and pursuant to relator Judge Enslen’s request that this Court, “by any and all lawful means available to it,” ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this Stateother than the named respondents and Judge Davis are joined as respondents in the place of the “Judge Does” identified in the petition.

Now there is one possible exception. Because Judge Granade specifically ordered Mobile County Probate Judge Davis to issue marriage license to four couples, the Alabama Supreme Court has not yet ordered him to stop. Rather, they demand that he come back and tell them whether he thinks that Granade’s ruling only extends to those four couples. Cuz unlike their rulings, federal rulings are limited only to the specific appellants.

So all the counties have stopped issuing marriage licenses to same-sex couples. Including Mobile County which has closed its offices.

Of course no one, inside the state or outside, thinks this has anything to do with law, justice, or constitutionality. This is merely arrogance and animus on the Alabama court’s part.

Every now and again the good ol’ boys down there seem to need to remind the world that when it comes to matters of equality and civil rights, ‘Bama ain’t having it.

Slovenian Parliament votes for marriage equality

Timothy Kincaid

March 3rd, 2015

europe

dark green = marriage equality
light green = other partner recognition

From rvtlo.si (as translated by Google for those who don’t read Slovene)

Members with 51 votes in favor and 28 against endorsed the amendment of the Law on Marriage and Family Relations Act, which equates homosexual and heterosexual communities.

Amending Act, proposed by the United Left, was given the green light. Same-sex couples will be given the opportunity to marry and all rights and obligations arising therefrom, such as legal, economic and social – as it has so far had a marriage or cohabitation of two people of different sexes. Among them is the ability to adopt children.

Those who opposed the effort are promising a referendum. There does not yet appear to be clarity on the effective date of the act.

And Nebraska falls

Timothy Kincaid

March 2nd, 2015

US District Judge Joseph Bataillon has ruled that Nebraska’s ban on same-sex marriage violates the US Constitution.

Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens. The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court. With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children. Unfortunately, this law inhibits their commendable efforts.

For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender.

It’s interesting that Judge Bataillon noted that the majority of married couples do not presently have children in the home. I hadn’t really thought of that.

The judge has given the state a week to appeal.

IT IS ORDERED that all relevant state officials are ordered to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.

IT IS FURTHER ORDERED that this order will be effective on Monday, March 9, 2015, at 8:00 a.m. CDT

It is uncertain whether the Eighth Circuit will stay the ruling pending appeal. However, should they fail to do so, it is highly unlikely that the Supreme Court will issue a stay.

This leaves only North Dakota and Georgia without a federal ruling on the unconstitutionality of anti-gay marriage bans.

Alabama Presbyterians vote for marriage equality

Timothy Kincaid

February 12th, 2015

Alabama Presyterians

In a rather timely decision, the central Alabama presbytery of the Presbyterian Church (USA) has voted to endorse changes in the church rules that would allow them to conduct same-sex marriages. (AL.com)

The Presbytery of Sheppards and Lapsley, a central Alabama group of churches affiliated with the Presbyterian Church (USA), voted 75-39 Thursday in favor of approving gay marriages.

They became one of about 38 presbyteries nationwide that have voted in favor of gay marriage, with 14 voting against. The change to the 1.8-million-member denomination’s official stance will become official if 86 of the 171 presbyteries vote in favor.

Now the Presbyterian Church is nowhere as dominant in Alabama as the Southern Baptists. But news like this does go a long way to dilute the But God Says! and Attack on Christianity! messages upon which anti-gay Christian rely so heavily.

Ironically, some of the supportive Presbyterians looked a bit askance at the impromptu ceremonies conducted this week.

Webster said he prefers that gay marriage in the church follow a protocol of the couple being members in a church and seeking pre-marital counseling before being married in a sacred ceremony in a church.

“It seemed frivolous and impetuous,” Webster said. “We would have dealt with it more seriously, with church members in the context of a church community. For us, it’s a worship service.”

And perhaps that’s one of the ways in which we know that society is on the road to full acceptance, when levels of establishment feel that you should follow the prescribed order, just like everyone else!

Mobile County Alabama ordered to issue marriage licenses

Timothy Kincaid

February 12th, 2015

On Monday, Judge Carrie Grenade’s stay was lifted and marriage equality came to Alabama. But not to all of the state.

Alabama Supreme Court Chief Justice Roy Moore ordered (apparently on his own imagined authority) and order commanding probate judges to refuse service to same-sex couples. Some probate judges followed Moore’s order and flouted the law, issuing marriage licenses to opposite sex couples but not same sex couples. And some chose to not issue licenses to anyone, citing conflicting orders.

Mobile County Probate Judge Don Davis was one who froze all marriage licenses. On Monday, he was sued by same-sex couples in Mobile County who wish to marry.

Today Judge Grenade specifically ordered Davis to open his office and issue marriage licenses to both opposite-sex and same-sex couples. (AL.com)

A federal judge in Mobile on Thursday ordered Mobile County Probate Judge Don Davis to start granting marriage licenses to gay couples, and he immediately took steps to do just that.

Less clear is whether other probate judges, who are not defendants in either case considered Thursday, would alter their position in the face of a new ruling by Granade. Marshall, the legal director for the American Civil Liberties Union of Alabama, said he believes most probate judges will take their cues from Granade’s new order. For those who continue to resist, he said, same-sex marriage advocates will file new lawsuits naming them as defendants.

This will, undoubtedly, result in most probate judges issuing licenses. But I suspect some will be recalcitrant and fight tooth and toenail.

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