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Posts for March, 2015

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.

Alabama Supremes’ response undermines Judge Roy Moore

Timothy Kincaid

February 12th, 2015

In an article titled “Alabama Supreme Court punts on request for ‘clarification’ of Roy Moore’s marriage order”, AL.com reports that the Alabama Supreme Court has rejected a request.

The Alabama Supreme Court on Wednesday dismissed a request by Mobile County Probate Judge Don Davis to clarify Chief Justice Roy Moore’s order instructing probate judges to ignore a federal court ruling allowing same-sex marriage.

And, indeed, they have. The jurists other than Moore (who recused himself) refused to provide any answer as to whether Davis and the other probate judges must follow Judge Grenade’s ruling and provide marriage licenses to same-sex couples.

However, AL.com’s next paragraph seems to contradict their headline.

The justices wrote that they do not have the authority to address the question.

That is not a neutral position. That is not a view that says, “Gee, we don’t know.”

The implications are clear and Davis, along with the other county officials, should be bright enough to see them. If the Alabama State Supreme Court does not have the authority to direct probate judges not to issue marriage licenses to same-sex couples, then surely the Chief Justice, acting alone, lacks any prerogative to do so.

Alabama probate judges block 50 “traditional” marriages per day

Timothy Kincaid

February 11th, 2015

In 2013 (the last year available) there were 37,789 marriage licenses issued. Which averages to about 150 licenses per business day. All of them “traditional” marriages between a man and a woman.

Currently, about 35% of Alabama residents live in counties in which the probate judges have refused to issue marriage licenses to anyone, gay or straight. So some 50 or so ‘traditional’ marriage licenses are being denied per day.

For the life of me, I don’t see how this benefits anyone.

Alabama Governor not standing in the doorway

Timothy Kincaid

February 10th, 2015

Governor Bentley of Alabama opposes marriage equality. However, he too sees comparisons between the behavior of his state today and that of 50 years ago and he has no intention of taking up the mantle of former Alabama Governor George Wallace. (Talking Points Memo)

Gov. Robert Bentley, a Republican and a Southern Baptist, said he believes strongly that marriage is between one man and one woman, but that the issue should be “worked out through the proper legal channels” and not through defiance of the law.

The governor noted that Alabama is about to be in the spotlight again with the 50th anniversary of the Voting Rights Act of 1965, which was passed after civil rights marchers were attacked and beaten in Selma, Alabama — events chronicled in the Oscar-nominated movie “Selma.”

“I don’t want Alabama to be seen as it was 50 years ago when a federal law was defied. I’m not going to do that,” Bentley said in an exclusive interview with The Associated Press.

“I’m trying to move this state forward.”

Understanding the probate judges in Alabama – UPDATED

Timothy Kincaid

February 9th, 2015

Same-sex marriages are being conducted today in Alabama. But about half of the state’s counties have probate judges (an elected position which administers marriage licenses) who refuse to issue same-sex marriage licenses. They state that neither Alabama law nor any judicial ruling requires that they do so.

They are technically correct.

A very similar situation nearly occurred in Florida. There some county clerks were either uncertain as to their obligations or were playing games. And so Judge Hinkle issued a clarification in which he laid out the difference between the results of a lawsuit and the consequences of a constitutional ruling.

He noted that no clerk who has not been a party to a lawsuit is compelled to act as the result of a ruling. His order did not name them and so failing to act accordingly was not contempt of court.

However, he pointed out that something larger and greater than his ruling did compel them to act: the Constitution of the United States. And those who wanted to continue to act in defiance of the Constitution could be held liable for both the civil and financial consequences of doing so.

At that point, the Florida clerks took his direction and issued marriage licenses irrespective of gender.

Judge Grenade, in Alabama, used Judge Hinkle’s same wording in response to the same question. She noted that it was not her ruling but the Constitution that compelled equality.

But, unlike in Florida, probate judges have decided that (in the words of Washington County Probate Judge Nick Williams) they “aren’t worried about following the U.S. Constitution.”

So they are playing the “my name isn’t on that order” game. Being elected politicians in a state that does not value the Equal Protections clause of the Constitution, they are seeking to gain election value by defying the nation’s guiding document. And damn the cost (or inconvenience to them homosexuals)!

Equality advocates have been caught flat-footed. Some have tried to sue for contempt, failing to note that they have to have a ruling in their favor against that particular probate judge. Proper legal procedure is not a terribly difficult process, but it has to be followed.

My presumption is that eventually the correct paperwork will be filed. Federal judges – either Judge Grenade or others – will rule against a few specific probate judges in a few specific counties and slap their wrist with legal fees. And then all the others will fall in line.

Should any probate judge fail to do so, I suspect that they will be hit with very large penalties for defying the authority of the federal judiciary.

It may take a few days or weeks, but it’s a done deal.

UPDATE

Mobile County Probate Judge Don Davis has now been sued. This time the proper request appears to have been included:

Plaintiffs hereby respectfully requests [sic] that this Court enter an Emergency Injunction commanding the Defendants to issue the marriage licenses guaranteed by the Constitution as interpreted by this court.

Alabama Gov will not go after judges who follow Fed ruling

Timothy Kincaid

February 9th, 2015

Last night, Alabama State Supreme Court Chief Justice Roy Moore issued a pronouncement instructing the state’s probate judges to ignore the Federal Court ruling, the Eleventh Circuit’s response, and the refusal of stay by the Supreme Court of the United States and to instead follow his demands.

After four and a half pages of “whereas” statements, Moore declared the following:

NOW THEREFORE, IT IS ORDERED AND DIRECTED THAT:

To ensure the orderly administration of justice within the State of Alabama, to alleviate a situation adversely affecting the administration of justice within the State, and to harmonize the administration of justice between the Alabama judicial branch and the federal courts in Alabama:

Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

Should any Probate Judge of this state fail to follow the Constitution and statutes of Alabama as stated, it would be the responsibility of the Chief Executive Officer of the State of Alabama, Governor Robert Bentley, in whom the Constitution vests “the supreme executive power of this state,” Art. V, § 113, Ala. Const. 1901, to ensure the execution of the law. “The Governor shall take care that the laws be faithfully executed.” Art. V, § 120, Ala. Const. 1901. “‘If the governor’s “supreme executive power” means anything, it means that when the governor makes a determination that the laws are not being faithfully executed, he can act using the legal means that are at his disposal.'” Tyson v. Jones, 60 So. 3d 831, 850 (Ala. 2010) (quoting Riley v. Cornerstone, 57 So. 3d 704, 733 (Ala. 2010)).

In other words, if you issue marriage license in accordance with the Federal ruling, the Governor’s gunna gitcha. He’s going to, well we’re not sure what, but he’ll gitcha.

And then Moore began posting on his Facebook page encouraging people to call the Governor and request that he go get those law-breaking Federal-court-ruling-followers.

To which Governor Bentley has now responded, “I may be a bigot, but I’m not as bat-poop crazy as that lunatic Roy Moore.” Well, not exactly in those words, of course:

I am disappointed that a single Federal court judge disregarded the vote of the Alabama people to define marriage as between a man and woman. I agree with the dissenting opinion from U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia when they stated, ‘Today’s decision represents yet another example of this Court’s cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds.’ This issue has created confusion with conflicting direction for Probate Judges in Alabama. Probate Judges have a unique responsibility in our state, and I support them. I will not take any action against Probate Judges, which would only serve to further complicate this issue. We will follow the rule of law in Alabama, and allow the issue of same sex marriage to be worked out through the proper legal channels.

Poor, poor Pat

Timothy Kincaid

February 9th, 2015

Pat Fancher is having a horrible day.

You see, despite her last minute desperate efforts, the state of Alabama has just recognized the marriage between her son David and Dr. Paul Hard.

And now poor, poor Pat is not going to get the total sum of the settlement for her son’s wrongful death. Instead that immoral homosexual will receive what is legally his share. She’s lost her fight and she’s shown herself to be an evil woman, all for nothing.

Marriage map

Timothy Kincaid

February 9th, 2015

marriage 2015

dark purple – marriage equality states
light purple – marriage equality in some counties in the state
pink – marriage equality ruling on stay
yellow – federal judge ruled against equality
red – circuit court ruled against equality

Anti-gays anemically protest at Alabama Capitol

Timothy Kincaid

February 8th, 2015

alabamaprotest

There are about 4.9 million people in Alabama. And, in honesty, most of them probably do not support civil and legal equality for gay people.

But they aren’t exactly in an uproar about the fact that same-sex marriages are starting tomorrow morning. (WSFA)

The Sanctity of Marriage Alabama group held a rally on the steps of the Alabama State Capitol Building on Saturday. Group leaders say that nearly 175 individuals showed up to show their support for the group.

Nearly 175 individuals showed up. Wow. More than that showed up at the West Hollywood gym on Tuesday night to play dodgeball. Seriously.

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