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Posts for October, 2014

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.

Idaho on temporary stay

Timothy Kincaid

October 8th, 2014

While Nevada has joyfully cued the violins and baked the cakes, Governor Butch Otter in Nevada Idaho seems to have won a delay in his state’s implementation of marriage equality. The Butch Otter has appealed to the United States Supreme Court and the justice responsible for granting stay in the Ninth Circuit, Anthony Kennedy, has so granted. (Reuters)

U.S. Supreme Court Justice Anthony Kennedy on Wednesday temporarily blocked an appeals court ruling that struck down Idaho’s gay marriage ban.

The brief order issued by the court said that gay marriage supporters should file a response to the state’s emergency request by 5 p.m. EDT (2100 GMT) on Thursday. The court will then decide whether to issue a more permanent stay. In the meantime, gay marriages in Idaho will not be able to proceed.

This may be but a formality until such time as briefs are filed and reviewed. And while this is disappointing and infuriating, part of our legal system is to allow all parties the right to be heard.

UPDATE: I should point out that the stay (should it be granted further life than tomorrow at 5 pm) is until the Ninth Circuit rules en banc – a larger group of judges – on the matter.

Idaho Marriages May Begin Today But Governor Seeks Stay

Jim Burroway

October 8th, 2014

Ada County (Boise) Clerk Chris Rich told the Idaho Statesman that he’s ready to begin issuing marriage licenses to same-sex couples when the courthouse opens at 8 a.m. MDT. Rich said that he was acting on instructions from the Idaho Attorney General’s office, which told him to continue issuing licenses “until he hears otherwise.”

That was last night. Early this morning, Idaho Gov. Butch Otter filed a motion with the Ninth Circuit Court of Appeals seeking a stay of the court’s ruling that struck down Idaho’s marriage equality ban as unconstitutional:

“Each same-sex marriage performed will be contrary to the interests of the state and its citizens in being able to define marriage through ordinary democratic channels,” wrote Thomas C. Perry, counsel for the governor, in one of three filings this morning.

A stay would allow the state to seek a review by the entire 9th Circuit Court of Appeals of Tuesday’s ruling by a three-member panel. Perry wrote the state is also prepared to press the matter before the United States Supreme Court.

Whether marriages will actually begin in Idaho this morning is anybody’s guess right now.

Nevada marriages start on Wednesday

Timothy Kincaid

October 8th, 2014

Nevada’s Gov. Sandoval (R) and Attorney General Cortez Masto (D) issued a joint statement that the state will not be taking any further action on the matter and that marriage licenses will be available midday Wednesday.

The state ceased defending the ban several months ago.

The Best Line In All of Legaldom

Jim Burroway

October 7th, 2014

The Ninth Circuit’s ruling (PDF: 238 KB/43 pages) that struck down marriage bans in Idaho and Nevada included this gem on page 21:

Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adultcentric and less child-centric.12

No, that sentence isn’t it. It’s that tiny little 12 at the end of it, referring to the best damn footnote in all of legaldom:

12 He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Ninth Circuit adds Nevada and Idaho before the dust even settled

Timothy Kincaid

October 7th, 2014

marriage 2014

As a consequence of yesterday’s denial of certiorari from the Supreme Court on marriage equality cases, we’ve all predicted that West Virginia, North Carolina, South Carolina, Wyoming, and Kansas would be next. But before judges could even consider, much less issue, rulings on the unconstitutionality of anti-gay marriage bans in those states, the Ninth Circuit has ruled on two more.

Idaho and Nevada have now been added to the marriage equality total.

This is not exactly a shock. After observing the questions presented at the appeals hearing, all pundits agreed that the conclusion was foregone.

Idaho’s ruling overturning their ban – which was fiercely opposed by Gov. Butch Otter (tee-hee) – was upheld. Nevada’s ruling allowing the ban – which was not given support by the state – was reversed.

It is highly unlikely that a stay will be issued. Same sex couples in those states (and casino chapels and Elvis impersonators) can now rejoice.

So now added to the ‘just until the papers are filed’ category are:

Alaska
Arizona
Montana

(and probably Guam and the Northern Mariana Islands)

Colorado makes 25 – half of US States have marriage equality

Timothy Kincaid

October 7th, 2014

marriage 2014

Yesterday the state of Colorado began offering marriage licenses to same-sex couples under the determination that the denial of certiorari in the Tenth Circuit substantively applied the circuit court’s ruling about the unconstitutionality of anti-gay marriage bans to all states in the circuit.

They also took the step of requesting that the Tenth Circuit dismiss Colorado’s appeal of a district judge’s ruling on their own ban. Today the court dismissed their appeal and marriage equality became official.

Colorado became the 25th state (along with the District of Columbia) to have marriage equality.

In the next couple of days or weeks, that number will swell to 30, as other states in the Fourth and Tenth Circuit are so directed by federal judges, likely by means of summary judgment.

Missouri to recognize out-of-state marriage

Timothy Kincaid

October 6th, 2014

On Friday, state Judge J. Dale Youngs ruled that Missouri must recognize same-sex marriages conducted in other states in which such marriages were legal. (SLTrib)

A Kansas City judge ruled Friday that the marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state.

The ruling affects more than 5,400 Missouri couples who were married in places where same-sex marriages are legally recognized, including states such as Illinois and Iowa.

Following today’s decision by the SCOTUS not to issue certiorari in same-sex marriage cases, the Missouri Attorney General issued a statement that the state will not appeal the state court marriage recognition ruling. Missouri borders Iowa, Oklahoma, and Illinois, all of which now offer same-sex marriage.

GOP response to lack of certiorari

Timothy Kincaid

October 6th, 2014

Today the Republican Party quickly responded to the decision by the US Supreme Court to deny certiorari to marriage equality appeals with the following:

.
.
.
.
.
.

Silence, echoing silence is all that can be heard from party leaders.

As Jim has shown, the usual voices of the anti-gay extremists have been loud in condemnation. But where are RNC Committee Chairman Reince Preibus? Surely this merits a moment of his time.

And as for House Majority Leader John Boehner… well perhaps he’s too busy to comment today. He’s on his way to San Diego to raise money for a gay GOP congressional candidate.

Sure they may both say something about the denial of cert. They may even remind us that they “personally uphold the traditional definition of marriage” or something of the sort. But gone are the days of blistering retort or angry denunciation.

And that, as much as anything, is a sign that while the fighting isn’t over, we’ve already won.

Where things stand on marriage

Timothy Kincaid

October 6th, 2014

marriage 2014

Dark purple: marriage equality
Light purple: covered by today’s denial of certiorari
Red: everything but the name domestic partners

It’s now become difficult to keep track of the states which have equality, those who kinda sorta may, and those who today do not. The current marriage position is as follows:

First Circuit

All states in the First Circuit have marriage equality either through legislative action or state court rulings:

* Maine
* New Hampshire
* Massachusetts
* Rhode Island

(Puerto Rico is within the First Circuit but is not directly impacted by today’s ruling)

Second Circuit

All states in the Second Circuit have marriage equality through legislative action:

* Connecticut
* New York
* Vermont

Third Circuit

* Delaware has marriage equality through legislation
* New Jersey has marriage equality through state court ruling
* Pennsylvania has neither marriage nor other recognition nor is it directly impacted by this decision. marriage equality through a federal court ruling that was not appealed by the state.

Fourth Circuit

* Maryland has marriage equality through legislation
* The Fourth Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and Virginia has marriage equality through today’s denial of certiorari
Three states are but a legal formality from marriage equality:
* West Virginia
* North Carolina
* South Carolina

Fifth Circuit

The Fifth Circuit has not yet ruled on marriage equality appeals.

* In February a federal judge ruled that Texas’ marriage ban is unconstitutional. That ruling has been appealed but not heard. It is on stay.
* Judge Martin Feldman ruled that Louisiana’s marriage ban is just hunky-dory, becoming the first federal ruling for inequality since the Supreme Court’s ruling on Windsor. That ruling has been appealed but not heard.
* There has not been a ruling about the constitutionality of Mississippi’s ban in federal court.

Sixth Circuit

The Sixth Circuit has heard argument on marriage equality appeals but has not yet ruled. Pundits believe this court to be split with one opponent of equality, one supporter, and one justice who did not indicate his inclination. Marriage is on stay in this circuit.

* In February, a federal judge ruled that Kentucky’s marriage ban is unconstitutional.
* A ruling in Ohio found that bans on recognition of out of state same-sex marriages is unconstitutional.
* In March, a federal judge ruled that Michigan’s marriage ban is unconstitutional.
* In Tennessee, a state judge ruled that Tennessee could engage in unequal treatment of its citizens. No federal judge has ruled.

Seventh Circuit

* Illinois has marriage equality through legislative action.
The Seventh Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and two states have marriage equality through today’s denial of certiorari
* Indiana
* Wisconsin

Eighth Circuit

In 2006, the Eighth Circuit ruled that Nebraska’s constitutional amendment prohibiting same-sex marriage did not violate the US Constitution. That ruling, which came before Windsor and was based primarily on the Baker case, was not appealed to the Supreme Court.

* Iowa has marriage equality through state court ruling.
* Minnesota has marriage equality through legislation (driven by popular vote).
* In May a federal judge ruled that Arkansas’ marriage ban is unconstitutional. That ruling has been appealed but not heard. It is on stay.
* Last Friday, a state judge ruled that Missouri’s marriage ban on recognition of out-of-state same-sex marriage is unconstitutional. There does not yet appear to be a stay and the case is in a bit of limbo. Two other federal cases are in process.
* Nebraska has no ruling before the Appeals court.
* In North Dakota a case has been filed but not yet heard.
* In South Dakota a case has been filed but not yet heard.

Ninth Circuit

Several states have marriage equality by means of judicial or legislative decision (or some combination thereof):

* California
* Hawaii
* Oregon
* Washington

* In 2012, prior to Windsor, a federal judge upheld Nevada’s constitutional amendment banning same-sex marriages (the state has everything-but-the-name Domestic Partnerships). However, after the Ninth Circuit found that anti-gay laws are subject to heighten scrutiny, the Governor and the Attorney General pulled all state support for the ban, leaving it to be argued by a right-wing fringe group. It is clear that the Ninth Circuit will rule favorably.

* Also before the court was Idaho, defending their ban, which had been found unconstitutional by a federal judge in May.

* Alaska has been sued, but the case has not yet been heard in federal court.
* Arizona has two cases working their way through state court.
* Montana has no constitutional ban on marriage equality. However, the legislative ban constitutional ban on same-sex marriage has been challenged by as (as of yet unheard) case filed in federal court.

Tenth Circuit

* New Mexico has marriage equality through state court determination.
The Tenth Circuit has ruled that same-sex marriage bans are a violation of the US Constitution. That ruling did not receive a hearing before the high court and two states have marriage equality through today’s denial of certiorari:
* Oklahoma
* Utah

* The Attorney General in Colorado has announce that due to today’s inaction, Colorado will begin issuing marriage licenses.
* A case is working it’s way through the courts in Kansas. However, it is but a formality before the ban is found unconstitutional.
* Wyoming does not have a constitutional ban on equality, but it has a legislative ban. Some efforts to change the law have been unsuccessful. However, it is but a formality before the ban is found unconstitutional.

Eleventh Circuit

* Alabama has been sued, but the case has not yet been heard in federal court.
* In August, a federal judge found Florida’s ban on equality to be in violation of the US Constitution. The case is stayed and appeal has not yet been heard.
* Georgia has a constitutional ban on equality and I do not believe that there is a federal case pending. a federal court case has been filed challenging that ban. It has not yet been heard.

The Most Momentous Supreme Court Non-Decision Ever Made

Jim Burroway

October 6th, 2014

EqualityChart

With today’s Supreme Court non-decision, about 53% of all Americans now live in jurisdictions with marriage equality. That’s twenty-four states and the District of Columbia. Indiana, Oklahoma, Virginia, Wisconsin and Utah will open their clerk offices to same-sex couples as soon as the various Federal District Courts go through their formalities. Those formalities are already out of the way in Colorado, Oklahoma, Virginia and Utah. Things are happening so fast I wouldn’t be surprised if Indiana gets the go-ahead before I finish writing this post. Meanwhile, you can expect that Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming will follow suit any day now, since they too are now bound by the decisions already handed down in the in the 4th Circuit, 7th Circuit, and 10th Circuit Courts of Appeals.

The biggest wild card remains the Sixth Circuit, which heard oral arguments last August in a Michigan challenge to that state’s constitutional amendment banning same-sex marriage. That court also heard oral arguments from four other states — Ohio, Kentucky and Tennessee — challenging those states’ bans on recognizing legal marriages from out of state. If the Sixth Circuit goes all contrarian and upholds any of those bans, then we could expect the issue to be dropped once again at the Supreme Court’s footsteps.

And to think that barely over a decade ago, our relationships were still criminalized in fourteen states.

Now, it’s possible that the three-judge panel in Cincinnati may rule against marriage equality. It’s also conceivable that a three-judge panel in the Fifth, Eighth and Eleventh Circuits could uphold a same-sex marriage ban in, say, Louisiana, for example.

But if one did, it seems much more likely that the entire circuit would step in for an en banc decision. But even if that didn’t happen, then sure, maybe an anti-equality decision could conceivably make its way to the U.S. Supreme Court. But by then, some two-thirds or more of all Americans are likely to be living in marriage equality states. Would the Supreme Court go back and overturn all of that? That now seems preposterous. Today’s non-decision is the new law of the land.

SCOTUS allows marriage wins

Timothy Kincaid

October 6th, 2014

fireworks

The Supreme Court of the United States has just denied certiorari to the appeals by states from three circuit districts. (ABC)

The Supreme Court cleared the way Monday for an immediate expansion of same-sex marriage by unexpectedly and tersely turning away appeals from five states seeking to prohibit gay and lesbian unions. The court’s order effectively makes gay marriage legal in 30 states.

Without comment, the justices brought to an end delays in same-sex marriages in five states— Indiana, Oklahoma, Utah, Virginia and Wisconsin.

In addition to those five states, in which marriage equality will immediately become law, the other non-marriage states within those circuits are but a formality away. Filing for equality in federal court in states within the Fourth, Seventh, and Tenth districts should result in an immediate favorable decision for West Virginia, North Carolina, South Carolina, Colorado, Kansas, and Wyoming.

The question of the constitutionality of anti-gay marriage bans generally has not yet been determined. SCOTUS could take up other districts’ appeals should they reach the court.

However, it should be noted that the decision to grant or deny certiorari is not a majority vote. It takes but four justices to decide that a court will hear an appeal. This suggests that either the conservative end of the court is hoping to wait for an appeal that better fits their opposition, or (despite long supposition otherwise) there are not four justices on the Supreme Court that oppose marriage equality and find it’s prohibition to be within the confines of constitutional enactment by the states.

The denial of cert to the three districts is not, as I noted, immediately determinative on the other districts. However, it does provide strong legal precedent – unless and until the court indicates otherwise – leaving it difficult for district judges to conclude gay marriage bans have constitutional merit. And, though it is no longer given much attention, it completely invalidates Baker v. Nelson as an argument for precedent.

At this point, it looks promising that marriage may soon come to all states.

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