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Posts for October, 2014

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.

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 Eleventh 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

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