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Posts for October, 2014

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.

Marriage at the top of the world

Timothy Kincaid

October 14th, 2014

barrow weddingsAlthough Alaska state law requires a three day wait, Magistrate Mary Treiber waived the requirement and allowed two lesbian couples to marry. Which is a pleasant little story.

But perhaps more interesting is where this happened, the town of Barrow.

Barrow is the northernmost city in the United States, lying above the Arctic Circle and just 1,300 south of the North Pole. The population is less than 5,000.

Congratulations, ladies.

(ktuu.com)

FL’s AG Bondi asks state supremes to rule

Timothy Kincaid

October 13th, 2014

Florida Attorney General Pam Bondi (R) has been defending her state’s ban on same-sex marriage in a way that has infuriated anti-gay activists. She simply refuses to make wild claims about how evil gays are going to destroy society or how states have really really good reasons – totally not bigoted reasons – for keeping Teh Ghays away from marriage.

Instead, she argues that the state has the right to set marriage laws for themselves.

In July, Monroe County Circuit Judge Luis Garcia found that argument lacking. He further found that the wacky amicus briefs arguing that gay marriage would just ruin everything for everyone were evidence that anti-gay laws are based in animus. In July, Miami-Dade Circuit Judge Sarah Zabel found the same.

This was followed by Federal Judge Robert Lewis Hinkle who found the ban unconstitutional in Federal Court.

Here’s where things get a bit interesting.

Bondi appealed the federal decision to the Third Circuit Court of Appeals. She also appealed the state decisions at the Florida Supreme Court. The plaintiffs were urging the Florida State Supreme Court to hear the case expeditiously, but Bondi requested that they hold off on ruling until the US Supreme Court took up one of the appeals that were before it, either the Fourth, the Seventh or the Tenth.

But SCOTUS chose not to hear any of those appeals. And today Bondi took a surprising step. (Miami Herald)

In a startling move Monday night, Florida Attorney General Pam Bondi asked the Florida Supreme Court to decide once-and-for-all whether same-sex couples can marry in the Sunshine State.

“That is unquestionably an important issue, and the Plaintiffs, the State, and all citizens deserve a definitive answer,” Bondi’s office wrote in a 6 p.m. filing to the Florida Supreme Court. “Until recently, the issue was squarely before the United States Supreme Court, and it appeared that a definitive answer was coming. … Unfortunately, the United States Supreme Court decided not to answer the question.”

Bondi’s “once and for all” language suggests that she expects an outcome that would withhold further review. In other words, it appears that Bondi thinks that the decisions will be upheld and the ban will be found unconstitutional. And it also appears that the state court is the quickest way for this to be accomplished.

The decision requires approval by the US Circuit Court. But it now seems ever more likely that marriage equality will come for Florida sooner rather than later.

Nevada anti-gay group accuses Ninth Circuit of rigging the system

Timothy Kincaid

October 13th, 2014

In my professional life I work in a legal environment. And over time I have observed that one sure-fire way to guarantee that you will be treated harshly is to accuse a judge of impropriety. Even if a judge has made a clerical error, attorneys will go out of their way to not appear to be critical, following the first rule of litigation: ‘don’t piss off the judge’.

Which makes an appeal by Nevada’s Coalition for the Protection of Marriage particularly interesting. In asking that the Ninth Circuit reconsider it’s marriage ruling by an en mass hearing, they adopted a fascinating strategy: accuse the Ninth Circuit of rigging the results.

Further — en banc review is regrettably necessary to cure the appearance that the assignment of this case to this particular three-judge panel was not the result of a random or otherwise neutral selection process. Troubling questions arise because a careful statistical analysis reveals the high improbability of Judge Berzon and Judge Reinhardt being assigned to this case by a neutral selection process. The attached statistical analysis, Exhibit 3, explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Case — the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme).

We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious. But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State. A hearing before an impartial tribunal is, after all, a central pillar of what our legal tradition means by due process of law, and the means of selecting the tribunal certainly implicates notions of impartiality. Measures have been put in place by this Court to assign judges through a neutral process. But in this case the appearance is unavoidable that those measures failed. En banc review is necessary to ensure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral.

Yeah… that’s not going to end well for them.

Updated marriage map

Timothy Kincaid

October 13th, 2014

marriage 2014

Dark Purple – marriage licenses issued to same-sex couples
Light Purple – states in circuits which have ruled for marriage equality
Pink – recognizes legal marriages conducted elsewhere

It is now possible to drive from Chicago to LA without ever becoming “not married” along the way.

Meanwhile in Arizona

Timothy Kincaid

October 10th, 2014

From AZCentral.com

U.S. District Court Judge John Sedwick issued an order Thursday night stating he believes this week’s appellate court ruling that declared Idaho and Nevada’s marriage restrictions unconstitutional applies to Arizona as well. The U.S District Court of Appeals for the 9th Circuit said Tuesday that Idaho and Nevada’s marriage restrictions violated couples’ rights to equal protection under the 14th Amendment.

Sedwick, an Alaska judge who often helps pick up Arizona cases, gave the parties in two lawsuits challenging Arizona’s law until Thursday to file briefs arguing how the 9th Circuit decision does or does not apply.

North Carolina marriage ban struck down – UPDATED

Timothy Kincaid

October 10th, 2014

marriage 2014

From WYFF4:

A federal judge in North Carolina has struck down the state’s gay marriage ban, opening the way for the first same-sex weddings in the state to begin immediately.

U.S. District Court Judge Max O. Cogburn, Jr., in Asheville issued a ruling Friday shortly after 5 p.m. declaring the ban approved by state voters in 2012 unconstitutional.

Which brings the total to 29 plus the district of Columbia.

UPDATE –

The ruling may only apply to two counties. This is NOT the case that everyone has been watching, the one in which the GOP is seeking to fight the Fourth Circuit’s ruling.

This is a case brought by the United Church of Christ which argued that denying their ability to perform same-sex marriages was a violation of their religious freedom.

UPDATE –

For now, it looks like the ruling applies to the whole state.

Kennedy lifts Idaho stay

Timothy Kincaid

October 10th, 2014

marriage 2014

Dark Purple – states with marriage equality
Light Purple – states in which the circuit court has ruled same-sex marriage bans to be a violation of the US Constitution

On Wednesday, Justice Kennedy temporarily stayed the Ninth Circuit’s ruling overturning Idaho’s ban on same-sex marriages. He allowed Governor Butch Otter time to submit reasoning on why a permanent stay should be applied while the Butch Otter appealed the Ninth’s decision to the Ninth en banc, to the Supreme Court, or to the almighty power of an angry and avenging deity.

The Butch Otter argued that the Ninth incorrectly applied heightened scrutiny and that Baker v. Nelson holds precedent and that he damn well didn’t like the ruling.

Kennedy said, “Meh”. The temporary stay has been lifted. Marriage equality comes to Idaho.

Marriage finally starts in Nevada

Timothy Kincaid

October 9th, 2014

For reasons unknown, the injunction reversing the lower court ruling is sitting on Judge James Mahan’s desk. He doesn’t have a lot of leeway in response; he can sign it or … well, considering a mandate has been issued, that’s his only option. And the circuit court ordered that this injunction be issued “promptly”.

So far, Mahan has not done so.

However, the District Attorney for Carson City (the state capital) is tired of waiting. He has authorized the clerk to issue marriage licenses to same-sex couples.

Word of this will get out and either a local couple will apply before the office closes or else – should Mahan continue to delay and the Clark County clerk not follow Carson City’s lead – someone will drive all night from Las Vegas to be in Carson City first thing in the morning.

UPDATE - Finally, around 5:00 pm, Judge Mahan issued the injunction and marriage licenses have now been issued to same-sex couples.

NOM’s record

Timothy Kincaid

October 9th, 2014

Just for some perspective:

When the National Organization for Marriage was formed to oppose marriage equality in 2007, only two one state, Massachusetts and Connecticut, offered marriage licenses to same-sex couples. Today, seven years later, 27 states along with the nation’s capital offer marriage equality.

NOM was helpful in passing four state-based constitutional bans on same-sex marriages:

* California – has marriage equality
* Arizona – is in the Ninth Circuit and should have equality shortly
* Florida – ban has been found unconstitutional and is on appeal in the Eleventh Circuit
* North Carolina – is expected to issue marriage licenses quite soon

West Virginia now to issue marriage licenses – UPDATED

Timothy Kincaid

October 9th, 2014

marriage 2014

Dark purple – states which have marriage equality
Light purple – states in which the circuit court has ruled for equality but which have not yet been ordered to provide marriage equality

West Virginia Attorney General Patrick Morrissey (R) has determined that as a result of the Supreme Court’s denial of Fourth Circuit certiorari, the state’s same-sex marriage ban is unconstitutional. The state will begin issuing marriage licenses to same-sex couples.

Also in Nevada, the remaining supporters of the ban, the Coalition for the Protection of Marriage has pulled it’s request for a stay (it had joined with Idaho’s Butch Otter in calling for an en banc hearing). This would, I believe, clear the state to begin issuing marriage licenses as well.

UPDATE – Governor Earl Ray Tomblin (D) of West Virginia has directed the state agencies to comply with marriage equality. In Nevada, word is that the first same-sex marriages will occur today.

UPDATE - county clerks in Nevada are waiting on the federal judge to issue the injunction.

The judge in the case, Robert C. Jones, decided that there was no way that he could possibly personally sign an order allowing same-sex marriage so he recused himself. Interestingly he did not disclose his strong bias when he heard the case nor admit that he could not possibly find for the plaintiffs and did not recuse himself at that time. Judge Jones’ choice to hear a case over which he could only find one conclusion is the most obvious example of judicial activism which I’ve ever observed.

The result is that the case had to be reassigned and now the state awaits the replacement judge’s signature. Legal advocates insist that this signature is not strictly needed, but the state appears to want it’s I’s dotted and T’s crossed.

UPDATE - the first marriage has occurred in West Virginia.

Couples are anxiously awaiting the signature of the judge in Nevada. No one knows what is taking so long.

Estonia recognizes same-sex couples

Timothy Kincaid

October 9th, 2014

Estonia

Estonia is the northernmost of the Baltic states with about the same population and half the land mass as Maine. Bordered by Latvia and Russia (it’s a former soviet country), it does not have a strong history of support for its gay and lesbian residents.

However, Estonia appears to be taking steps towards Western Europe and away from Russia and her satellites. (ABC)

In Estonia, lawmakers voted 40-38 vote to approve a partnership act that recognizes the civil unions of all couples regardless of gender. Twenty-three lawmakers were absent or abstained in the third and final reading of the bill.

The new law will gives those in civil unions — heterosexual or gay — almost the same rights as married couples, including financial, social and health benefits provided by the government and legal protection for children. It does not give adoption rights for couples in such unions but does allow one partner to adopt the biological child of the other.

It comes into force in January 2016, after it has been signed by President Toomas Hendrik Ilves who supported the bill.

This is likely disappointing to Scott Lively who made Estonia, along with Russia, Poland, Lithuania, Latvia, Ukraine and Belarus, a target for his exportation of anti-gay activism.

Kennedy lifts Nevada stay

Timothy Kincaid

October 8th, 2014

Judge Kennedy has just lifted the stay on the Nevada portion of the Ninth Circuit’s mandate to implement their ruling on marriage equality.

Confused? You’re not alone.

But what this means is that Nevada will likely begin issuing marriage licenses to same-sex couples this afternoon.

What a Mess (Updated)

Jim Burroway

October 8th, 2014

The Ninth Circuit really stepped into it when, to everyone’s surprise, it preemptively issued a mandate requiring Idaho and Nevada to begin issuing marriage licenses to same-sex couples after ruling that those marriage bans were unconstitutional. As I understand it, mandates like this are typically a last resort act, issued after the winning parties went back home and were unsuccessful in getting the legal entities there to implement the Appeals Court ruling.

In Idaho’s case, that would have meant going to Ninth Circuit panel that issued the stay and ask it to rescind it. That would have given lawyers for Idaho’s Gov. Butch Otter a chance to have their day in court, lodge their intention to appeal and argue that the stay should remain in effect. Otter wasn’t given that day in court, and so it’s pretty easy to see why Kennedy would have slapped the Ninth for short-circuiting the process and overturn the mandate.

As for Nevada, the ordinary path would have been for lawyers for same-sex couples to go back to Federal District Judge Robert C. Jones and petition him to order state officials to begin granting marriage licenses to same-sex couples. Jones had upheld that state’s ban on same-sex marriage in 2012. Jones ordinarily would have had two options. He could have issued the order, or he could have refused to do so. The second option would have seemed unlikely, since the State of Nevada had already said that they weren’t going appeal. But if he had refused to issue such an order, then that ordinary path would have had those lawyers go back to the Ninth to ask for a mandate.

But because the Ninth issued its preemptive mandate on its own initiative, county clerks across Nevada were preparing to begin issuing marriage licenses this morning. But then, Idaho Gov. Otter’s lawyers went to Kennedy to get the mandate overturned, and since the Ninth Circuit combined the two cases into a single mandate “for purposes of disposition,” Kennedy’s overturning of Idaho’s mandate also meant that he overturned Nevada’s mandate as well. Which means that Nevada same-sex couples this morning suddenly found themselves subject to the whims of an Idaho governor, all because the Ninth Circuit’s brash action — and because the Ninth found it too bothersome to type up two separate papers instead of one.

So now the Nevada lawyers were back doing what they ordinarily would have done anyway. They went to Judge Jones and asked him to enforce the Ninth Circuit’s ruling overturning his 2012 ruling and striking down Nevada’s marriage equality ban. Remember those two options I said he had? I left out a third option, the one that he ultimately took: he recused himself this morning and referred the case to the district’s chief judge for reassignment.

Update: Marriages are back on in Nevada.

Justice Kennedy Halts Marriages In Idaho (And Maybe Nevada)

Jim Burroway

October 8th, 2014

In a very surprising move in a week of surprises, Justice Anthony Kennedy stayed (PDF: 40KB/1 page) the Ninth Circuit Court of Appeals’ mandate requiring Idaho to begin granting marriage licenses to same-sex couples. The stay is “pending further order of the undersigned or of the Court” and orders lawyers for same-sex couples to file a response by 5:00 Thursday.

There are a couple of things to think about here. Narrowly, there’s some speculation about whether there was a procedural error when the Ninth combined the Idaho and Nevada cases when it issued its mandate requiring the two states to begin issuing marriage licenses. The fact that Kennedy’s order referenced both the Nevada and Idaho cases may be a possible hint. But more broadly, while the Supreme Court on Monday decided to turn away cases in five states, it doesn’t mean that a sixth state doesn’t still have a right to appeal. Who knows? Maybe Idaho just might have those compelling arguments that the other cases somehow lacked. I doubt it, but it’s still their legal right to give it a shot.

While Kennedy acted on a request from Idaho, it’s unclear whether his order affects marriages in Nevada as well. Nevada already announced that they would not be seeking an appeal.

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