NYTimes takes on Utah’s no-gay-marriage arguments
January 13th, 2014
The New York Times takes on the arguments (three, so far) presented by the state of Utah as to why their ban on same-sex couples marrying is a legitimate state interest. It’s quite funny. Here’s their take on the second argument:
In the Supreme Court, state officials changed tack. They pressed a different argument, one built on a contested premise.
“A substantial body of social science research confirms,” the brief said, “that children generally fare best when reared by their two biological parents in a loving, low-conflict marriage.”
Lawyers for the couples challenging Utah’s ban on same-sex marriage responded that the assertion “is not true.” For evidence, they cited “the scientific consensus of every national health care organization charged with the welfare of children and adolescents,” and listed nine such groups. The view of the groups, the challengers said, “based on a significant and well-respected body of current research, is that children and adolescents raised by same-sex parents, with all things being equal, are as well-adjusted as children raised by opposite-sex couples.”
Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.
Luxembourg to get marriage equality this year
January 13th, 2014
The Grand Duchy of Luxembourg, a nation a bit smaller than Rhode Island tucked into the corner where France, Germany, and Belgium come together, has been a likely candidate for marriage equality. With a gay Prime Minister, a gay Deputy Prime Minister, about 85% approval, and a mostly-Catholic populace, the question has not been whether this nation will adopt equality, but when. Now it appears that the answer is ‘this year’. (Wort)
Luxembourg Justice Minister Félix Braz announced on Wednesday that the government would vote on the bill this summer and, if approved, it could mean wedding bells for same sex couples before the end of the year.
The Grand Duchy’s Lesbian, Gay, Bisexual and Transgender (LGBT) community welcomed the news.
“We’re very happy about this decision of the new government. We thought initially it could be re-filed again for another couples of months or even years, due to the fact that it might be that the government judges other points on the political agenda more important than this law, ” said LGBT Rosa Lëtzebuerg Asbl president, Gabriele Schneider, adding: “We are indeed very happy to see that it is one of the important points on the agenda of the government continuing working on the law and vote all the necessary steps to have filed it during the year 2014.
The bill had been proposed in 2010 by the previous administration but when power shifted it was delayed as other items took higher priority. Luxembourg currently has a weak couple recognition system similar to the old French PACS.
Indiana to consider marriage ban bill today
January 13th, 2014
Today legislators in Indiana are scheduled to vote on a bill to put a marriage ban into the state constitution. It is likely the last time that a state will undertake such an effort.
In a sign that the public’s appetite for institutionalized discrimination is waning, this bill is facing uncertainty, despite Republicans holding majorities in both houses.
The problem is that for the amendment to be brought about, identical language must be approved by two consecutive legislatures and then approved by popular vote and, in their arrogance, the 2010 legislature went into full ‘ban everything’ mode.
Only a marriage between one man and one woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.
Now the ‘no marriage, no civil unions, no other-state recognition, no employment benefits, no nothing, never’ approach seems heavy-handed and cruel. And many moderates and business leaders are warning that such an approach makes the state appear oppressive and hostile, neither of which are good for business.
Left with a start over or risk it choice, Legislative leaders are trying to have it both ways. Starting over would mean that the likelihood of passage of anything would be much lower in four years. And risking it runs the chance of defeat, which would almost certainly be seen as a sign that the nation has tired of anti-gay amendments.
So instead they are trying to “explain” the second half of the amendment language. (News Sentinel)
“I think it’s very advisable to have an expression of legislative intent that accompanies HJR 3 (the proposed amendment),” Bosma said last week. “There are valid questions raised about the second sentence of the amendment.
“It seemed to make a lot of sense to address the issues, but still make it quite clear that civil unions are not allowed — which is the substantially similar or identical language to marriage — and define it as a man and a woman, but remove these concerns people validly are raising in most cases.”
The opposition has pointed out specific situations in which this bill would hurt lives of people in Indiana, such as partners of employees at the state colleges. Which, based on the history of other states going for the “no, no, no, no” approach is true.
The legislative leaders are hoping that by “explaining”, they can confuse the issue enough that the voters will somehow overlook the problems that the bill would bring and the image of their state as the final Hate State. But the business community is not on board and moderates are not letting the leaders get by with such a flimsy card game.
Today is the first test in whether the social conservatives have sufficient grasp on the legislature so as to push the bill through. (abc57)
The amendment vote falls in the hands of the Indiana House Judiciary Committee, a panel of just 13 lawmakers.
All 4 Democrats on the committee are expected to vote it down, but they’ll still need at least 3 of the Republicans to join them in order to defeat the amendment.
If the party is smart, they will kill this bill in committee, promise to bring it back again, and then lose it in the shuffle. The odds are that they will instead taint the image of their party and their state and plop this steaming pile of animus and self-righteousness into the laps of the voters.
You can watch the hearing here.
So far opponents have included gay Republicans, business groups and chambers of commerce. Actually, some pretty hard-hitters from our side. All either hard-core Republican activists or high-level businesses integral to the economy.
Perhaps one of the most unusual arguments from a very conservative attorney is that because the second sentence is so ambiguous, then the courts will make all future decision and not the legislature.
Legislator just ate up ADF’s representative by asking for an example of what the second sentence would prohibit. She kept trying to say it would not effect benefits, but couldn’t say what it would do. And the silly girl said “I can say with certainty” only to have it pointed out to her that her assertions disagree with history and have no weight.
The Judiciary Committee has adjourned and the vote has been delayed.
Feds will recognize Utah marriages
January 10th, 2014
In another twist in the Utah marriage battle, the Federal Government has weighed in on the legality of the nuptials performed in Utah’s marriage window. (NYTimes)
The Obama administration on Friday said that it would recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.
“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Mr. Holder said in the video. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”
This should not be seen as an affront to Utah. It is completely consistent with something that the state’s Attorney General said on Wednesday: (Fox13)
“I want to be clear that we are not saying those marriages are invalid,” Reyes said in an interview Wednesday with FOX 13. “However, as a state we cannot recognize those marriages.”
Reyes insisted that by refusing to recognize the marriages, the state was not effectively invalidating the unions by pointing to other states that recognize same-sex marriages.
“It’s not invalidating it in the same way that if they went to Hawaii, they could potentially apply for benefits there based on the marriage that took place. They can’t be recognized (here),” he said. “There is a very fine distinction, but a very important distinction based on those two things.”
It does, however, help force the hand of the courts a bit. To find that these marriages are invalid and had “never occurred” would be to cause a flood of confusion and administrative nightmares.
Hundreds of couples will be filing Federal income tax returns as married couples, there are likely even some who have made legal changes to their names and who will – by the time of the decision – have signed legal documents or established credit as married couples, and even some may have moved to states in which their marriages are fully recognized and may have availed themselves of state services.
Utah’s rather odd ruling about married couples
January 8th, 2014
On December 20, 2013, Judge Richard Shelby determined that the anti-gay marriage laws of the State of Utah were in violation of the equal protections clause of the United States Constitution. And, as Shelby refused to grant a stay, same-sex marriages began immediately.
The state requested that the Tenth Circuit Court of Appeals grant a stay, and their request was denied. Finally, a request to the US Supreme Court resulted in a stay of Shelby’s ruling, but about 1,000 same-sex couples had married by the time that county clerks were instructed to deny new applicants for marriage licenses.
Now the state has issued instructions on how state services are to treat the married couples. It is a most inelegant decision:
Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.
Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.
In addition to being awkward and placing same-sex couples in extreme legal confusion, this may have been a strategic misstep on the part of the state. It places Utah in the position of treating people in exactly the same situation (same-sex couples married under Federal authority) in disparate ways.
The second problem with the Attorney General’s decision is that in many ways this closely mirrors the Proposition 8 scenario. In Hollingsworth v Perry, the Ninth Circuit found that you cannot grant rights to a group of people and then take those rights away. Here the state granted specific rights to married same-sex couples and then swooped in and took those specific rights away. And while the Ninth Circuit decision does not create precedent in the Tenth Circuit, it nevertheless will be given consideration.
Had Utah simply said, “if you got married, you are married; if you didn’t, you are not”, that would have been a clean and simple ruling. But by taking a “we will not give you one iota of protection that we haven’t already processed” stance, the state demonstrates a significant degree of hostility. And by doing so, they have strengthened both our argument that the banning of same-sex marriage is rooted in animus and our call for heightened scrutiny in legal decisions.
Chilean civil unions bill passed by Senate
January 8th, 2014
In August 2011, conservative Chilean President Sebastian Pinera fulfilled a campaign promise by proposing a civil unions bill. At that time he pledged to the bills passage by the end of his administration, March 2014.
Now movement has begun on the passage of the bill. (Santiago Times)
In its first session of 2014, Congress took a significant step for gay rights when the Senate approved legislation on same-sex civil union, as emotional supporters cheered and evangelical opponents held up banners with biblical messages aimed at lawmakers from the stands of the upper house.
Senators voted in favor of the Life Partner Agreement (AVP) late Tuesday evening with 28 votes in favor, six against and two abstentions. The bill will now pass to a constitutional assembly before returning to Congress on Jan. 20.
The country’s leading LGBTQ organization hailed the outcome as significant step toward passing a law which “the majority of the country” wants.
Incoming Socialist President-Elect Michelle Bachelet has promised support for a marriage bill.
Martinez not supporting proposed NM marriage amendment
January 7th, 2014
Gov. Susana Martinez said at a news conference Monday that she won’t push for a constitutional amendment to ban gay marriage in New Mexico in the upcoming legislative session.
Asked whether that meant she wouldn’t push for the Legislature to pass a measure like Sen. Bill Sharer’s Senate Joint Resolution 6, Martinez responded, “It’s the law of the land. The Supreme Court has spoken.”
In truth, Martinez is probably delighted at her good fortune. Martinez knows that marriage equality is an unavoidable eventuality but that advocacy on either side by a moderate Republican has either a short term or long term price tag.
Before the state Supreme Court ruled that same-sex couples could marry, she mostly avoided the controversy by saying that any change in the marriage law should be brought about by a vote of the people and changed the subject. But now that the courts have brought about marriage equality – without any political cost to Martinez – she sees the contentious issue in her rear view mirror and is stepping on the gas.
SCOTUS issues Utah stay (Updated)
January 6th, 2014
The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.
The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.
UPDATE from Jim B: Here’s the U.S. Supreme Court order (PDF: 27KB/1 page):
HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
Marriages entered into thus far are still in effect. There just won’t be any new ones for a while. Lyle Denniston at SCOTUSblog speculates that “The order appeared to have the support of the full Court, since there were no noted dissents,” but “The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.”
The Tenth Circuit Court of Appeals will continue with its expidited review of the lower court decision. Brief submittals occur between January 27 and February 25. No date has been set for oral arguments.
Utah man starves himself to oppose equality
January 3rd, 2014
Trestin Meacham has convinced himself that the State of Utah could get rid of gay marriages by simply declaring the Federal Judge’s decision null. Although the Supreme Court has ruled many times that states cannot nullify decisions that fall under the US Constitution (the Supremacy Clause), Meacham insists otherwise.
And the erstwhile Constitutional Party candidate has vowed not to eat until Utah nullifies Judge Shelby’s ruling, subsisting only just water and “an occasional vitamin”.
I’m not sure that I believe Meacham. He says he’s lost 20 pounds since the decision, but he’s still up walking around and that seems a bit suspect to me. Twelve days without food is a very very long time.
But, since Utah isn’t going to go with his wacky hypotheses, I guess he’ll either he’ll break his fast, be institutionalized, or die.
Plaintiffs ask SCOTUS not to stay Utah decision
January 3rd, 2014
Supreme Court Justice Sonia Sotomayor should ignore Utah’s request for a temporary ban on gay marriages, attorneys representing gay couples argued in a Friday morning filing.
“Forcing same-sex couples and their families to wait and hope for the best during the pendency of this appeal imposes an intolerable and dehumanizing burden that no family should have to endure,” James Magleby and Peggy Tomsic, attorneys at Magleyby and Greenwood argued in the filing.
It isn’t certain when Sotomayor will respond or if she will instead take the stay request to the full court.
One of the reasons that the State of Utah gave for seeking the stay (and one of their arguments as to why they assert they would win on appeal) is that same-sex marriage is one of them there newfangled gadgets and not “deeply rooted in the nation’s history and tradition.” Which reminds me of this paraphrase of Nathaniel Hawthorne:
Tradition sometimes brings down truth that history has let slip, but is oftener the wild babble of the time, such as was formerly spoken at the fireside and now congeals in websites.
Utah files stay request with SCOTUS
December 31st, 2013
The State of Utah has now requested that the Supreme Court halt the ongoing issuance of same-sex marriage licenses that have been occurring since their ban on same-sex marriage was ruled unconstitutional by federal Judge Richard Shelby (that wascally wepublican “activist judge”).
In papers filed Tuesday with Justice Sonia Sotomayor, the state asked her to overturn court decisions to let the marriages go forward. Sotomayor handles emergency requests from Utah and other Rocky Mountain states. She can act by herself or get the rest of the court involved.
As the stay request was filed hours before the New Year holiday, I’m curious to see what argument they made to convince Sotomayor that the federal judges in the Tenth Circuit abused their discretion.
Push for equality in Navajo Nation
December 30th, 2013
The Navajo Nation is a semi-autonomous territory slightly larger than West Virginia occupying portions of northeastern Arizona, southeastern Utah, and northwestern New Mexico. About 175,000 Navajo live there, along with some Paiute and Hopi.
Aljazeera discusses an effort to bring marriage equality to the nation.
Alray Nelson, founder of the Coalition for Navajo Equality, says he wants the Navajo Nation to respect gay relationships like two of the states that surround its territory — New Mexico, where gay marriage was legalized this month, and Utah, where it was recently ruled legal but faces a mounting appeal.
“There’s no organized faction against this, like in the fight (for) Proposition 8 in California,” said Nelson, 27, whose organization is seeking to make tribal legislators review a 2005 tribal ban on gay marriage early next year.
Two more Mexican states have same-sex marriages
December 30th, 2013
Mexico’s position on marriage equality is a convoluted one. Same-sex marriages may be conducted in Mexico City and in the state of Quintana Roo, but are recognized across the nation.
One state bans same-sex marriage, a few others offer civil unions, and the rest are in a sort of flux.
A year ago the Mexican Supreme Court ruled that same-sex couples have the civil right of marriage. However, the amparo process is not that of a single universal decision; rather, it speaks specifically to each case and, absent any contrary decisions, eventually and cumulatively gains the weight of law.
Now two more states have contributed to that on-going process, Jalisco and Chihuahua (ai!). From CNN Mexico (with a miserable Google translation)
Zaira de la O and Martha Sandoval will give you the “I do” before a judge in Jalisco on Saturday, becoming the first gay couple in a civil marriage in this state.
The Jalisco Civil Code does not provide for marriage between same sex couples get married but after the fourth Civil District Judge Material, granted them under.
and Diario (equally bad translation)
Accompanied by family and friends, Marco Quiroz and Jaime Villaseñor Gándara Salcido, were married on Friday at 18:00 in the city of Chihuahua. Judge who married in the Registry Office of Chihuahua, explained that because District judge ordered an injunction that marriage promoted by the parties and by the authority conferred by the State, the said united in marriage. “With all the rights that the law gives them, but also with all the obligations that it provides for married “both nodded at each word judge and became the first same-sex marriage in the state of Chihuahua.
It appears that there are four more couples in Chihuahua who wish to marry. If I understand the process correctly (and I don’t claim to), if each is granted an ampara, marriage equality becomes law in that state.
NYT profiles Utah’s “activist judge”
December 30th, 2013
The New York Times has run an informative, though not particularly thorough, article about Judge Robert Shelby, the Federal judge who found that the state of Utah’s ban on same-sex marriage violated the US Constitution.
He had been a combat engineer in the Persian Gulf conflict and was, according to state voter records, a registered Republican. Senator Orrin G. Hatch, a seven-term Utah Republican, recommended him for a federal judgeship, calling him an experienced lawyer “with an unwavering commitment to the law.” Senator Mike Lee, a Tea Party Republican, said that Mr. Shelby was “pre-eminently qualified” and predicted he would be an outstanding judge.
He was active in the state and local bar associations, and was a leader in a group that mentors young trial lawyers. But he largely stayed out of the spotlight and away from politics. In 2010, he and his wife gave a $50 contribution to a Republican candidate for the State Legislature — the only political donation found in state and national campaign-finance databases.
Former colleagues said they did not know his religious background. The judge did not respond to emails and a phone call requesting an interview.
Utah’s SCOTUS appeal is delayed
December 26th, 2013
The next step for the State of Utah in their quest to halt same-sex marriages is to appeal to the Supreme Court for a stay on enforcing Judge Richard Shelby’s ruling overturning the state’s constitutional amendment banning marriage equality. But while I expected that to happen immediately this morning, it seems that there will be a delay. (fox13)
A spokesman for the Utah Attorney General’s Office told FOX 13 the office is not expected to file an emergency request with the U.S. Supreme Court to halt same-sex marriage licenses from being issued “for a few days.”
The state had said Tuesday it would file a request with U.S. Supreme Court Justice Sonia Sotomayor, after the 10th U.S. Circuit Court of Appeals in Denver rejected the request. On Thursday, attorney general’s spokesman Ryan Bruckman said the office was coordinating with outside counsel before proceeding.
Having finally recognized that they are completely inept and that they have bungled every step of the way, the state is now seeking to craft a request that will speak to the concerns of the Supreme Court justices.
But after a week of equality and a thousand marriages, getting a stay may be increasingly difficult with each day that passes.
Why the Tenth denied stay
December 25th, 2013
As important as the fact that the Tenth Circuit denied the state of Utah’s request for stay from Judge Shelby’s ruling that the state’s gay-marriage ban is unconstitutional, is the reason they did so.
A stay pending appeal is governed by the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted; (3) the absence of harm to opposing parties if the stay is granted; and (4) any risk of harm to the public interest. Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir.2001); 10th Cir. R. 8.1. The first two factors are the most critical, and they require more than a mere possibility of success and irreparable harm, respectively. Nken v. Holder, 556 U.S. 418, 434-35 (2009).
Having considered the district court’s decision and the parties’ arguments concerning the stay factors, we conclude that a stay is not warranted.
In other words, the Tenth Circuit looked primarily at two things. They asked themselves if the state was likely to succeed on appeal and found the answer to be “no”. And they took the state’s chief argument for stay – that allowing marriages now will harm the gay people who will only have their marriages reversed later – and said “we don’t think so.”
We don’t know why the Court delayed responding until so late in the day. It may be that they made efforts to determine or ponder the general feeling of the other circuit members. But even if not, considering that the two judges considering stay, Holmes and Bacharach, are among the conservative members of the Tenth Circuit, this may bode well for the appeal.
No action from Tenth Circuit
December 24th, 2013
As we slide into the final hours before the Christmas holiday, the Tenth Circuit remains closed-lipped about whether or not there will be a stay of Judge Shelby’s ruling. In the meanwhile, county clerks continue to issue marriage licences to same-sex couples, including several clerks who had refused to do so yesterday.
I’m curious as to the delay in announcing their decision. Decisions released in the afternoon before a holiday tend to get little attention and I wonder if this is a consideration (judges are, to some extent, politicians).
My wild hope is that the Tenth Circuit will refuse the stay based on the state’s inability to show any likelihood of winning the appeal. It’s a lot to hope for. But the timing couldn’t be better; by the time anyone pays attention, it will be a week down the road.
Meanwhile in Virginia…
December 23rd, 2013
A federal judge allowed a challenge to that state’s marriage ban move forward (wtvr)
A federal court denied a motion from the Staunton Circuit Court Clerk today seeking dismissal of a lawsuit challenging Virginia’s ban on marriage for same-sex couples.
The court today also removed the governor as a named defendant in challenging the case but is allowing it to continue with the other two defendants. They are listed as Staunton Circuit Court Clerk Thomas Roberts, and Janet Rainey, the state registrar of vital records.
December 23rd, 2013
As you know, Judge Shelby refused to issue a stay to his ruling. And while he didn’t exactly call the state officials idiots, he did politely point out that is was their own fault that no stay was considered on Friday. (QSaltLake)
[State's attorney] Lott gave the example of then-District Judge Vaughn Richard Walker deciding to stay his ruling at the same time he ruled against California’s Proposition 8.
Shelby explained the difference between what happened in that court and why it didn’t happen in this court.
“There was no motion for a stay pending when I made my ruling,” he said. “When Judge Walker ruled, the plaintiffs had filed a motion to stay the ruling in case it didn’t come down their way.”
There was no such motion filed by the State of Utah before Shelby made his ruling.
“I had no authority to rule on a temporary stay,” he explained.
By the time that the state came in to ask for a stay, they were no longer protecting the status quo. Now the rules of the game had shifted and marriage was the status quo.
So the state has now requested that the Tenth Circuit issue a stay, and the courts gave the plaintiffs (our side) until 5:00 to file a brief as to why no stay should be granted. Unlike the DA’s office, it is highly likely that the arguments were prepared long ago and only needed to me amended to take on the ‘status quo’ arguments.
Meanwhile, today is the day that Governor Herbert decided to appoint a new State Attorney General. The previous Attorney General resigned in November in a corruption scandal and the marriage filings were conducted by acting Attorney General Brian Tarbut.
Interesting side note, acting Attorney General Brian Tarbut had been the commander of the Utah State National Guard having worked his way up the rank. Also in the Utah State National Guard for eight years, leaving about the time that Tarbut assumed control, was Robert Shelby, the judge in this case.
It is impossible to predict whether the Tenth Circuit will now grant the state a stay. Nor do we know when it is that they will decide.
However, we do know that they will be considering “the factors that must be established to be entitled to a stay pending appeal.” In other words “this is controversial and we don’t like it” will not be sufficient for these judges. It is expected that they will need to be convinced that the state has a good chance of winning and that if no stay is granted that the state will be harmed.
But irrespective of the stay or whether the ruling is reversed, It is estimated that around 800 couples have married on Friday and today.
And those who refused to issue licenses may find that obstinance is not always a winning trait. After being denied a license by a lesbian couple, the County Clerk of Utah County has been sued. Should a stay be granted and this couple were unable to get a license elsewhere, he may find himself with a rather serious civil rights lawsuit on his hands; there is no confusion whatsoever about whether an un-stayed ruling by a federal judge should be followed.
Shelby denies stay
December 23rd, 2013
The state will now go back to the Tenth Circuit and ask them to stay the ruling pending appeal. They have said “no” twice, but those denials were based on procedure (a court can issue an emergency stay outside of ordinary procedure – they chose not to). It is difficult to know how the Appellate Court will respond to the third request.