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Posts for November, 2014

And the purple grows

Timothy Kincaid

November 20th, 2014

marriage 2014

As Jim has let us know, we now can add Montana to the states in which one can legally marry their same-sex partner. Also, the Supreme Court has denied a stay in South Carolina and marriages there have begun.

We are now up to 36 states (plus the District of Columbia) in which there is marriage equality (purple).

There are four states in which federal courts have ruled for marriage equality but which are within the Sixth Circuit Court of Appeals, the only appeals court in which the bans on same-sex marriage have been upheld (red).

The remaining states are in circuits in which an appellate court has not ruled and, in some cases, in which neither a federal nor state court has yet heard the marriage question.

In Texas and Arkansas, federal courts have ruled for equality but the ruling is stayed pending appeal. In Florida, a pro-equality ruling is stayed until January. In Louisiana, a federal judge ruled for exclusion and a state judge ruled for equality (but under the federal, not state constitution).

Marriage Equality Has Finally Arrived To Big Sky Country (Updated)

Jim Burroway

November 19th, 2014

Federal District Judge Brian Morris has issued a ruling striking down Montana’s ban on same-sex marraige. His reason for doing so was simple and straight-forward. It all comes down to Latta v. Otter, in which the Ninth Circuit Court of Appeals upheld a lower court’s ruling which found Idaho’s marriage equality ban unconstitutional. The U.S. Supreme Court declined to review the Ninth’s ruling, which makes the Ninth’s ruling binding on all courts with the Ninth Circuit. (Update: jutta is right in the comments; my memory was faulty. Neither Latta nor any other case from the Ninth Circuit has gone to the U.S. Supreme Court. The Ninth’s ruling in Latta, absent a successful challenge, is nevertheless binding on all courts within the Ninth Circuit.) Montana is in the Ninth Circuit, so that pretty much settles the question for Montana (PDF: 76KB/18 pages)

…Defendants argue that Latta misinterprets these Supreme Court cases and arrives at the erroneous conclusion that Baker no longer serves as binding precedent. This Court has reviewed the analysis in Latta and agrees that Baker no longer precludes consideration of challenges to the constitutionality of laws that prohibit same-sex marriage. Nevertheless, even if the Court disagreed with the analysis in Latta, that analysis represents “binding authority” that “must be followed unless and until overruled.” …

…The Ninth Circuit in Latta analyzed laws in Idaho and Nevada that imposed nearly identical prohibitions on same-sex marriages as the laws in Montana. Latta determined that these Idaho and Nevada laws discriminate on the basis of sexual orientation. Latta, *3. Montana’s laws that ban same-sex marriage likewise discriminate on the basis of sexual orientation….

…The decision in Latta to apply heightened scrutiny to classifications based on sexual orientation, as developed in SmithKline, represents binding precedent. Hart, 266 F.3d at 1170. This Court must evaluate Montana’s ban on same-sex marriage using the heightened scrutiny analysis. …

You get the idea. References to Latta appear thirty-five times in Judge Morris’s ruling. He basically could have phoned this one in: “Go look up Latta.” There’s nothing legally original to this ruling, but it is nice to see Judge Morris add his own thoughts on the subject:

Plaintiffs who challenge these Montana laws that ban same-sex marriage come from diverse points across Montana. They hale from communities large and small – Butte, Great Falls, Helena, Bozeman, Billings, Charlo, and Philipsburg. Plaintiffs come from families that have lived in Montana for generations and from recently arrived families. They represent different walks of life that range from public employees, to military veterans, to retail managers, to marketers, to health care workers. They spend their free time engaged in activities that thousands of Montana families enjoy. These couples recreate in the beautiful outdoors that Montana offers. They cheer for their favorite teams at local sporting events. They practice their faiths freely as guaranteed by our Constitution.

And like many families in Montana, some of these same-sex couples raise children. … These families want for their children what all families in Montana want. They want to provide a safe and loving home in which their children have the chance to explore the world in which they live. They want their children to have the chance to discover their place in this world. And they want their children to have the chance to fulfill their highest dreams. These families, like all of us, want their children to adventure into the world without fear of violence; to achieve all that their talent and perseverance allows without fear of discrimination; and to love themselves so that they can love others. No family wants to deprive its precious children of the chance to marry the loves of their lives. Montana no longer can deprive Plaintiffs and other same-sex couples of the chance to marry their loves.

The ruling goes into effect immediately, although the state’s Republican Attorney General Tim Fox has already announced that he intends to file a futile yet costly appeal. Hey Timothy! Where’s the map?

Kansas marriages begin

Timothy Kincaid

November 12th, 2014

marriage 2014

Dark purple – marriages now may occur
Light Purple – states are in circuits which have found for marriage equality
Red – the Sixth Circuit has upheld the bans on equality in these states

The state of Kansas has run out of measures by which to prevent the issuance of marriage licenses to same-sex couples. The Supreme Court just chose to deny stay in their latest appeal. Only two justices, Scalia and Thomas indicated a desire to have the judicial ruling overturning Kansas’ anti-gay marriage ban put on hold until heard by the highest court.

There are many ways to read this decision. Perhaps the likeliest is that seven justices agree that the court is unlikely to rule with the Sixth Circuit that states may prohibit gay citizens from sharing the same access to civil proceedings as heterosexual citizens. Also, that only two justices are so vehemently anti-gay as to spitefully wish to force gay Kansans to wait for their day of equality.

Personally, I think it also suggests that this may not be a 5-4 decision when it is finally decided.

Meanwhile, also today a federal judge ruled that South Carolina’s anti-gay ban violates the constitution. He has placed a temporary stay until the 20th for that state to request a more permanent stay from either the Fourth Circuit or the Supreme Court. Based on the Kansas decision, it is safe to assume that such a stay will not be granted.

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.

ACLU To Appeal Sixth Circuit Decision Straight to the U.S. Supreme Court

Jim Burroway

November 6th, 2014

Chase Strangio, staff attorney for the ACLU Lesbian Gay Bisexual and Transgender Project, has announced that they will bypass an en banc review and appeal today’s Sixth Circuit decision directly to the U.S. Supreme Court:

“This decision is an outlier that’s incompatible with the 50 other rulings that uphold fairness for all families, as well as with the Supreme Court’s decision to let marriage equality rulings stand in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. It is shameful and wrong that John Arthur’s death certificate may have to be revised to list him as single and erase his husband’s name as his surviving spouse. We believe it’s wholly unconstitutional to deny same sex couples and their families access to the rights and respect that all other families receive. We will be filing for Supreme Court review right away and hope that through this deeply disappointing ruling we will be able to bring a uniform rule of equality to the entire country.”

Meanwhile, this dissent of today’s decision, written by Sixth Circuit Judge Martha Daughtrey, caught my eye. She denounced the majority’s opinion which refused to recognize the judiciary’s responsibility for guaranteeing the rights of all Americans (PDF: 309KB/64 pages):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams

She also wonders aloud:

These four cases from our sister circuits provide a rich mine of responses to every rationale raised by the defendants in the Sixth Circuit cases as a basis for excluding same-sex couples from contracting valid marriages. Indeed, it would seem unnecessary for this court to do more than cite those cases in affirming the district courts’ decisions in the six cases now before us. Because the correct result is so obvious, one is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same-sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens. Perhaps that is the case, but it does not relieve the dissenting member of the panel from the obligation of a rejoinder.

Sixth Circuit upholds anti-gay marriage bans

Timothy Kincaid

November 6th, 2014

marriage 2014

In a 2-1 decision, the Sixth Circuit Court of Appeals has upheld the state constitutional bans on marriage of the states of Kentucky, Michigan, Ohio, and Tennessee. Writing for the majority, Judge Jeffrey Sutton said:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

This determination ignores the fact that when animus in present, a minority cannot become the “hero of it’s own stories” as they lack the ability to win in the “customary political processes”. When confronting Goliath on the field of political battle, the only stone in David’s sling is that of judicial protection. Judge Sutton would have David face the giant with no stones at all.

This is, of course, not the end of the story.

It is likely that the plaintiffs will ask for an en banc review and, if they do not prevail in that venue, will appeal to the Supreme Court.

State judge throws out Missouri anti-gay marriage ban – Updated

Timothy Kincaid

November 5th, 2014

St. Louis Post-Dispatch:

Denying Missouri’s gay couples the opportunity to marry is unconstitutional, a judge ruled this afternoon.

As a result, St. Louis Circuit Judge Rex Burlison said in his decision, marriage licenses can be issued.

“The Court finds and declares that any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes, is legally entitled to a marriage license,” Burlison wrote.

He said that the Missouri Constitution violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.

Last month the courts found that marriage conducted outside of Missouri must be recognized by the state. The Attorney General did not appeal. It is unclear whether he will appeal this decision.

UPDATE:

The language seems to suggest that this applies only to St. Louis.

UPDATE:

The Attorney General has appealed the decision to the state Supreme Court. However, he has NOT requested a stay while under appeal. Marriage licenses are being distributed in St. Louis.

And Kansas makes 33

Timothy Kincaid

November 4th, 2014

marriage 2014

Kansas is in the Tenth Circuit, which has ruled anti-gay marriage bans unconstitutional. The Supreme Court opted not to hear an appeal to that ruling, which establishes that states within the Tenth Circuit are bound by the Appeals Court’s ruling.

Same-sex couples requested that the federal courts direct Kansas to begin issuing marriage licenses to same-sex couples, and now a federal judge has done so. (Topeka Capital-Journal:)

Judge Daniel Crabtree, in a written ruling, granted a preliminary injunction that had been sought by the ACLU of Kansas on behalf of two lesbian couples who had been denied marriage licenses in Sedgwick and Douglas counties. The injunction will prevent the state from enforcing the ban on same-sex marriage found in the Kansas Constitution.

However, marriages will not begin immediately. Crabtree stayed the injunction until 5 p.m. on Nov. 11.

The state has a week to appeal Judge Crabtree’s decision, which – by all accounts – would be a waste of time and state resources. Should they inform him earlier that they will not appeal, the stay will be lifted at that time.

The odds are that Governor Sam Brownback will happily waste the taxpayers’ money on a futile attempt to appeal so as to grandstand on the issue. However, as the election is today, it’s possible that he’ll not see any political value to foolish, time-consuming, wasteful, quixotic efforts and will allow couples to marry sooner than next Tuesday.

Wyoming marriage ban overturned – UPDATED

Timothy Kincaid

October 17th, 2014

marriage 2014

Judge Scott W. Skavdahl gave himself until Monday to rule on the unconstitutionality of Wyoming’s ban on same-sex marriages. However, he must have found a few minutes in his schedule, so he released his ruling today. (Chris Geidner)

A federal judge has declared that Wyoming cannot deny marriage licenses to same-sex couples.

U.S. District Court Judge Scott Skavdahl put his ruling on hold until Oct. 23 to provide time for government officials to attempt an appeal if they wish. The ruling could go into effect sooner if government officials inform the court that they do not plan to appeal the decision.

And government defendants may well inform the court of their intention not to appeal. (Star Trubune)

Republican Gov. Matt Mead said the state shouldn’t appeal the same-sex marriage ruling due from U.S. District Judge Scott W. Skavdahl.

Mead spoke on the issue Thursday night during a Wyoming PBS debate in Riverton. Mead is seeking re-election Nov. 4.

“The answer is no, I don’t think we should appeal the ruling,” he said.

Should Mead and the other three office holders named in the suit notify the court, then Skavdahl will lift the stay and marriages will begin.

UPDATE - One of the four defendants, Debra K. Lathrop, in her official capacity as Laramie County Clerk, has informed the court that she has no intention of appealing. The three remaining defendants are:

Matthew H. Mead, in his official capacity as the Governor of Wyoming
Dean Fausset, in his official capacity as the Director of the Wyoming Department of Administration and Information
Dave Urquidez, in his official capacity as the Administrator of the State of Wyoming Human Resources Administration

UPDATE – Mean has announced that the state will not appeal the decision and that the Attorney General will file notice with the court. This likely encompases the other members of his administration.

I suspect that the filing and lifting of stay will not come before Monday.

Supreme Court denies Alaska’s request for stay

Timothy Kincaid

October 17th, 2014

marriage 2014

Dark Purple – states with marriage equality
Light Purple – states in circuits in which marriage equality has been ruled.
Pink – states that recognize legal marriages from other places

The US Supreme Court has denied Alaska’s request for a stay. Marriage is now equal in 31 states plus the District of Columbia.

Marriage equality comes to Arizona

Timothy Kincaid

October 17th, 2014

U.S. District Court Judge John Sedwick has issued his opinion as to whether or not Arizona’s ban on same-sex marriage is in violation with the US Constitution. And, to no one’s surprise, he found it unconstitutional.

Sedwick did not issue a stay. Yesterday, Attorney General Tom Horne filed a brief which basically conceded the plaintiff’s position. So it seems unlikely that Horne will either appeal the decision or petition the Ninth Circuit for a stay.

UPDATE: Horne is not appealing nor asking for a stay.

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.

Alaska gets two day stay

Timothy Kincaid

October 15th, 2014

The State of Alaska asked for a stay to its marriage ruling. And by astonishing odds, two of the Ninth Circuit’s most conservative judges, Diarmuid O’Scannlain and Jay Bybee, were on the three judge panel deciding the matter. O’Scannlain and Bybee were two of the three judges who would have given Proposition 8 an en banc hearing.

However, things were different this time around.

Bybee sided with judge Marsha Berzon in denying stay at the Ninth Circuit level and in issuing a temporary two day stay for the state to appeal to the Supreme Court in hopes of getting a more permanent stay.

Which means that marriages will not begin first thing tomorrow in The Last Frontier, but rather at noon on Friday.

Ron Hart on marriage

Timothy Kincaid

October 14th, 2014

I seldom read something on Christian Post and do anything but shudder. Today I chuckled:

Neither government nor citizens should waste time and energy trying to keep two loving, consenting, committed people from a public acknowledgment of their union. If we were to have a law against allowing a subset of our country to marry, it should be directed squarely at the Kardashians.

Is a couple of lady gym teachers with three cats and a joint checking account really a threat? Are two guys living in a once-blighted neighborhood that becomes gentrified with fixed-up homes and where, before you know it, bistros and bakeries pop up, a problem? How is that damaging to America? Who else is going to adopt twin Chinese girls? Madonna and Angelina Jolie can’t take them all.

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