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Posts for January, 2015

GracePointe Church endorses equality

Timothy Kincaid

January 30th, 2015

gracepointe

GracePointe church in Franklin, TN, (a Nashville suburb) is an evangelical church with most of the beliefs of a typical evangelical in the South. It has a healthy sized congregation of 800 to 1,000 on Sundays and is best known as the church Carrie Underwood and her family attend.

They have long been somewhat supportive of gay congregants, but after three years of reflection the pastor has decided that “somewhat supportive” is not enough. (Time)

“Our position that these siblings of ours, other than heterosexual, our position that these our siblings cannot have the full privileges of membership, but only partial membership, has changed,” he said, as many in the congregation stood to their feet in applause, and other sat in silence. “Full privileges are extended now to you with the same expectations of faithfulness, sobriety, holiness, wholeness, fidelity, godliness, skill, and willingness. That is expected of all. Full membership means being able to serve in leadership and give all of your gifts and to receive all the sacraments; not only communion and baptism, but child dedication and marriage.”

This may be one of the first evangelical megachurch – at least in the South – that has taken this stand.

It can’t have been an easy decision and Pastor Stan Mitchell has to be aware that this is a divisional issue and attendance will drop. But hopefully others will be attracted by a message of inclusiveness.

Marriage in South America

Timothy Kincaid

January 28th, 2015

south america marriage

dark purple – marriage equality
light purple – civil unions
pink – common law marriage recognition

Rome gets civil unions

Timothy Kincaid

January 28th, 2015

ROMA COLOSSEO. FOTO © MARTINA CRISTOFANIFrom Gazetta del sud

The latest move in Italy’s contentious gay marriage debate came on Wednesday as the Rome city council approved the establishment of a civil union register. At the same time, the council passed an amendment saying that same-sex marriages contracted abroad are to be automatically transcribed into the newly created civil union register. “We approved an amendment allowing for gay marriages contracted abroad to be automatically added to Rome’s civil unions register,” said city council member Irma Battaglia from the leftwing Left Ecology Freedom (SEL) party.

Italy, strongly influenced by the Catholic Church, is one of the decreasing number of European nations to have no recognition whatsoever for same-sex couples. There’s no reaction yet from the Vatican, a separate nation existing entirely within the borders of Rome, but it appears to neither have burst into flame nor melted away.

Second Alabama case for equality

Timothy Kincaid

January 27th, 2015

That radical leftist (Sen. Sessions supported and George W. Bush nominated) activist Judge Granade has struck again, pushing her militant agenda in favor of shoving the Equal Access and Due Process provisions of the US Constitution down the throat of good decent folk who just want society to clearly distinguish between upstanding citizens and, ahem, them.

Accordingly, the court hereby ORDERS that the Alabama Attorney General is prohibited from enforcing the Alabama laws which prohibit same-sex marriage. This injunction binds the defendant and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit same-sex marriage.

As in Saturday’s ruling, Judge Granade has given the state 14 glorious days free of equality in which to appeal her ruling.

Stay placed on Alabama marriages

Timothy Kincaid

January 25th, 2015

marriage 2015

dark purple: marriage equality
light purple: marriage equality in parts of the state
pink: marriage equality on stay
yellow: discrimination upheld on state level
red: discrimination upheld on circuit level

Late Sunday, Judge Grenade has placed a fourteen day hold on her ruling that the Alabama ban on same sex marriages was in violation of the US Constitution. This is to give the state time to appeal and to request a longer stay from either the Eleventh District Court of Appeals or the United States Supreme Court.

The Eleventh Circuit has already refused to stay the Florida ruling, paving the way for marriages to begin there. And SCOTUS has denied all recent requests for stay. So it is not very likely that Alabama can delay marriage equality beyond February 8th.

Alabama ban overturned

Timothy Kincaid

January 23rd, 2015

This just in:

If anything, Alabama’s prohibition of same-sex marriage detracts from its goal of promoting optimal environments for children. Those children currently being raised by same-sex parents in Alabama are just as worthy of protection and recognition by the State as are the children being raised by opposite-sex parents. Yet Alabama’s Sanctity laws harms the children of same-sex couples for the same reasons that the Supreme Court found that the Defense of Marriage Act harmed the children of same-sex couples. Such a law “humiliates [ ] thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Windsor, 133 S.Ct. at 2694. Alabama’s prohibition and non-recognition of same-sex marriage “also brings financial harm to children of same-sex couples.” id. at 2695, because it denies the families of these children a panoply of benefits that the State and the federal government offer to families who are legally wed. Additionally, these laws further injures those children of all couples who are themselves gay or lesbian, and who will grow up knowing that Alabama does not believe they are as capable of creating a family as their heterosexual friends.

For all of these reasons, the court finds that Alabama’s marriage laws violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

As yet, there doesn’t appear to be a stay on the ruling.

UPDATE: Wikipedia has the following:

On the recommendation of Senators Jeff Sessions and Richard Shelby, Granade was nominated to the United States District Court for the Southern District of Alabama by President George W. Bush on September 4. 2001 to a seat vacated Alex T. Howard, Jr. retired from Federal Judicial Service in senior status. Granade was confirmed by the Senate on February 4, and received her commission on February 12, 2002.

Yum! That irony is deeeeelicious!

Two Americas Watch

Jim Burroway

January 17th, 2015

A tweet from HRC’s Chad Griffin:

U.S. Supreme Court to Hear Four Marriage Cases

Jim Burroway

January 16th, 2015

The U.S. Supreme Court has agreed to hear the four marriage cases in which the Sixth Circuit turned back an effort to bring marriage equality or marriage recognition in Kentucky, Michigan, Ohio and Tennessee. According to today’s order: (PDF: 43KB/2 pages) the Court intends to keep the arguments focused on two narrow questions:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Lyle Denniston at SCOTUSblog believes that oral arguments may take place in late April with a final ruling “probably in late June.” He adds:

Although the Court said explicitly that it was limiting review to the two basic issues, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

South Dakota’s marriage ban ruled unconstitutional

Timothy Kincaid

January 12th, 2015

marriage 2015

dark purple – marriage equality
light purple – marriage equality in part of the state
pink – marriage equality stayed
yellow – federal ruling for discrimination
red – appellate ruling for discrimination

A federal judge has ruled, on summary judgement, that marriage is a fundamental right and that the ban on same-sex marriage in South Dakota violates the Equal Protections clause of the US Constitution. (Sun Times)

U.S. District Judge Karen Schreier on Monday issued a summary judgment in favor of the six couples who filed the lawsuit. The federal complaint challenges both South Dakota’s ban on gay marriage and its refusal to recognize marriages of same-sex couples who legally wed in other states.

Judge Schreier stayed the ruling pending appeal, at least in part because the Eighth Circuit has not heard or ruled on a marriage equality case. The Eighth Circuit also includes:

Iowa – marriage equality due to a state supreme court ruling.
Minnesota – marriage equality as the result of legislation after the voters rejected a constitutional ban
Missouri – in November two judges ruled for marriage equality and did not stay their rulings. However these did not necessarily apply across the state, resulting in a few counties and the city of St. Louis issuing same-sex marriage licenses.
Arkansas – in November a federal judge ruled for marriage equality. That ruling is stayed pending appeal.
Nebraska – to the best of my knowledge, no cases have yet been ruled on.
North Dakota – to the best of my knowledge, no cases have yet been ruled on.

The plaintiffs have indicated that they will appeal the stay.

Ninth Circuit slaps down Butch Otter

Timothy Kincaid

January 10th, 2015

Idaho Governor Butch Otter has had his hat handed back to him. Again.

Otter’s defense of the state’s anti-gay marriage laws hasn’t gone well. He lost in federal court. He lost on appeal at the Ninth Circuit. And the Supreme Court is not considering whether to hear Idaho’s appeal. On October 10th of last year, Justice Kennedy lifted the last stay and marriages have been occurring since.

But it seems that Otter hasn’t met Captain Obvious. So, in what appears to be a pointless effort, he appealed to the Ninth Circuit to hear his case en banc (by a larger panel of judges).

Yeah… no.

He did get the support of three judges, O’Scannlain, Rawlinson, and Bea, but,

The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration.

Marriage goes state-wide in Florida

Timothy Kincaid

January 6th, 2015

marriage 2014

dark purple – marriage equality states
light purple – marriage in some counties, the state is still fighting
pink – we have won in federal court but the rulings are stayed on appeal to the Circuit court
orange – we have lost in federal court and are appealing to the Circuit court
red – we have lost in the Circuit court and are appealing to the Supreme Court

The stay has lifted across the state of Florida and all 67 counties have joined Miami-Dade in issuing marriage licenses to same-sex couples.

Congratulations to all.

Judge clarifies Florida ruling; anti-gays remain dishonest

Timothy Kincaid

January 2nd, 2015

marriage 2014

In August of 2014, U.S. District Judge Robert L. Hinkle found that Florida’s ban on same-sex marriages violated the provisions of the US Constitution. He placed a stay on his ruling until appeals (and requests for further stays) could be filed with higher courts. No extended stays were granted and Judge Hinkle’s stay expires today on Monday, January 5th.

Washington County Clerk Lora Bell’s requested that Judge Hinkle direct her as to whether this ruling applies only to the plaintiffs, and the state Attorney General asked whether the ruling applied to all county clerks. Yesterday Judge Hinkle provided clarification regarding those to whom his ruling applied.

Hinkle’s order was slightly nuanced and illustrates the care that judges go through to apply not only the spirit of the law, but its technical structure and authorities. There are three major points in what he said

The technical response

In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants.

Because there were no other parties in the lawsuit and because it was not a class action lawsuit, the rules of the court do not compel this clerk to issue licenses to any other couples.

The real response

Then the judge followed with the clencher:

But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

In other words, Hinkle is saying, “I’m not the one compelling you to issue this license. The US Constitution compels you to do so. So hell yes! Follow the law!”

The threat

And he preceded this by “clarifying” what would happen to those county clerks who decided that Hinkle’s ruling doesn’t apply to them and that they could just ignore the US Constitution’s protections.

History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

Hinkle warned them that if they want to be obstructionist, additional plaintiffs could sue, the case could become a class action, it could be determined by preliminary injunction (almost immediately), and the cost of all of this will come out of that clerk’s budget. In synopsis, Hinkle said that his ruling may be followed by all courts to all same-sex couples. Further, while it could be technically ignored, this is merely a short-term defiance of the US Constitution and an expensive one, at that.

Attorney General Pam Bondi issued a ‘proceed at your own risk’ statement, indicating that she will not be participating in any efforts to defy the judge:

Following significant public confusion about the federal-court injunction, the court today granted the clerk of court’s request for clarification. In the order, the court specified that the injunction does not require a clerk to issue licenses to same-sex couples other than the plaintiffs, but the court stated that “a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.” Attorney General Bondi’s statement is as follows:

“This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed.”

The law firm advising the Florida Association of Court Clerks and Comptrollers had, before the clarification, advised counties not to follow the ruling. Yesterday they issued an advisory opposite of their earlier opinion and recommended that clerks offer licenses. “Judge Hinkle’s order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs’ fees and costs,”

But the anti-gay activists are saying something quite else. Florida Family Policy Council (who’s sister group Florida Family Action filed a nutcase lawsuit trying to stop marriages) had this to say:

“Judge Hinkle’s ruling is being widely misinterpreted. It clearly says that only the clerk Washington County is required to issue a marriage license and only to the two persons in that case. Judge Hinkle has no jurisdiction outside of the Northern District of Florida to bind any clerk outside of North Florida. Clerk’s outside of North Florida are required to obey the current law and are still subject to all the penalties of a first-degree misdemeanor for violating it,” said John Stemberger, president and general counsel of the Florida Family Policy Council.

Liberty Counsel proclaimed “Victory in Federal Court

In a highly anticipated ruling to clarify an August preliminary injunction in the federal case Brenner v. Scott, the district judge agreed with Liberty Counsel that the injunction does not require Florida clerks of court outside Washington County to issue marriage licenses to same-sex couples on January 6. Indeed, the new order clarifies that the injunction is limited to the plaintiffs in the case, expressly holding, “The preliminary injunction now in effect thus does not require the [Washington County] Clerk to issue licenses to other applicants.”

Misinterpretation is definitely going on. But it isn’t by the Attorney General, the law firm advising the clerks, or the newspapers. To see this as a “victory” for anti-gay forces requires a special kind of blinders and more than a little willingness to deceive oneself and others.

Irrespective of the declarations by anti-gays, the end result will be that starting tomorrow on Tuesday, many counties will be granting marriage licenses to same sex couples. Others may not do so immediately, and they engage in a costly and futile legal entanglement before they, too, do so.

This doesn’t mean smooth sailing. Already some clerks have changed their policies to discontinue all marriage ceremonies conducted by the clerk or at the courthouse – be they same-sex or opposite-sex – based on their religious beliefs that whatever else you do, you must never treat your neighbor how you wish to be treated. But that is likely to be only a minor inconvenience as clergy step in to fill that role.

For all practical purposes, marriage equality has finally come to Florida.

Astonishingly stupid lawsuits from Florida Family Action

Timothy Kincaid

December 30th, 2014
John Stemberger

John Stemberger

As we discussed, last night the plaintiffs and the state of Florida filed briefs in response to Washington County Clerk Lora Bell’s inquiry as to whether Judge Hinkle’s ruling re same-sex marriage applied only to one couple or to all clerks in the state. The plaintiffs argued that the ruling is state-wide and the Attorney General did not disagree.

It is almost certain that Judge Hinkle will clarify that his ruling applies to all members of the state infrastructure in any role they play in issuing, processing, recording, or otherwise dealing with marriage licenses and the rights, obligations, and benefits which derive from them.

But Florida Family Action, an anti-gay advocacy group, is predicting otherwise. And they are now suing those mayors and county clerks which have affirmatively announced that they will issue licenses to same-sex couples or participate in their marriages.

Because they are idiots.

Florida Family Action (FFA) announced today the filing of two lawsuits against three elected officials in Central Florida who have made clear public statements of their intentions to defy Florida law and either issue same-sex marriage licenses or officiate over same-sex marriage ceremonies on or after January 6, 2015.

John Stemberger, president of the Florida Family Action organization issued the following statement regarding the lawsuits:

“All three of these officials have shown great contempt and disrespect for the rule of law and are behaving irresponsibly and unprofessionally. The federal court decision is clear that it only applies narrowly to the two plaintiffs and only in Washington County. Elected officials must be held accountable to the law and to the constitution they have sworn to uphold. Part of the reason for the recent landslide mid-term election was the utter disregard and insolence shown by President Obama for the rule of law which is now infecting so many other politicians across America. Respect for law must be restored or else legitimacy in government as an institution will diminish at an even greater rate. Ultimately, if these local officials continue in this same reckless pattern of behavior, they could easily face the same fate as so many other politicians did who are now retired as a result of the last election.”

Stemberger seems to be unaware that you file lawsuits in real courts with real judges, not in the court of public opinion. Or, for that matter, that supporting equality is likely to be a political advantage for these elected officials.

He also seems unaware that judges are very very busy people with tight schedules and they hate it when you waste their time with frivolous lawsuits.

But he may soon learn that.

Florida: “Dunno, Judge, you tell me.”

Timothy Kincaid

December 30th, 2014

florida
The fate of same-sex marriage in Florida has been subjected to a bit of a circus. No so much as some states, such as Idaho, Kansas, or Missouri, but still Florida has had its fair share of confusion.

Part of the issue is that there are two courts in which the state’s ban was found, state court and federal court, both ruling on whether the marriage ban violates the US Constitution.

In July, Monroe County Circuit Judge Luis Garcia found that the ban violated the both the Due Process and the Equal Protections provisions of the US Constitution. The state had not put on a particularly stiff defense, merely arguing that the state had the right to set its own laws; Attorney General Pam Bondi did not attend, sending an assistant DA who spoke for about five minutes.

A week later, Miami-Dade Circuit Judge Sarah Zabel found the same thing. Both rulings were appealed to the Florida State Supreme Court.

In August, U.S. District Judge Robert L. Hinkle also found that the state’s ban violated the equal protection and due process provisions of the US Constitution. Attorney General Bondi appealed the ruling to the Eleventh Circuit Court of Appeals.

She then made a request of the state Supreme Court: that it not make a ruling until the Supreme Court of the United State took on one of the many marriage cases before it.

At that time it was a common expectation that SCOTUS would announce in October which case/s it would hear. But to pretty much everyone’s surprise, the court said that it would not be reconsidering any of the pro-gay rulings from the Fourth, Seventh, and Tenth Circuits.

In response Attorney General Bondi asked the Florida State Supreme Court to not continue waiting but instead to decide the issue for the state in due haste. I’m not sure why it was that the Florida Court did not respond (this story is a bit convoluted), but it has not acted.

Which brings us to the federal case, the ruling by Judge Hinkle.

When Hinkle found that the ban violated the US Constitution, he placed a temporary stay on the ruling so that the state could appeal and so that higher courts could put in place a permanent stay, should they wish. That stay expires on January 5th.

Florida requested that the Eleventh Circuit extend the stay until the appeal was heard. It was denied. They requested that SCOTUS extend the stay. It was denied. So on January 6th, same-sex marriages will be allowable in Florida.

The question is, however, to what extent.

The legal counsel for the county clerks association sent a letter telling the clerks that the ruling only applied to the county in which the plaintiffs in that case live. Anti-gay activists demanded that not only was it just one county, but that it was also only just for the one couple.

So the county clerk in Washington County, a small sparsely populated county on the Florida panhandle, asked the judge, “what do I do?”. Judge Hinkle gave the various parties until midnight last night to file their views on the matter.

The judge’s opinion on the scope of his ruling was pretty clear in his order requesting input. He didn’t exactly call the clerk an idiot in so many words, but it was implied.

The counsel for the couples filed a brief yesterday in which they argued that Hinkle’s ruling applied to all the state.

Attorney General Bondi’s brief was a bit more circumspect. Bondi didn’t give an opinion about what the scope of the ruling should be, choosing instead to let the judge do that. She noted that the wording of the original order may not explicitly include all of the state’s county clerks but requested that the judge just tell her what he meant.

This Court is best situated to determine the reach of its own order.

If the Court intends the injunction to have effects beyond those that appear on its face, or beyond the interpretation of the Brenner plaintiffs’ counsel, the Court may wish provide appropriate clarification.

In other words, ‘Judge, I don’t think your order says what you want it to say, so please give me some language that tells me what to do’.

I don’t think the judge’s position is going to change. So we should expect ‘clarifying language’ to be released shortly and that same-sex marriages will be legal throughout the state a week from today.

SCOTUS marriage decision looms

Timothy Kincaid

December 23rd, 2014

The Supreme Court has scheduled January 9, 2015, as the date on which to consider whether to hear appeals in five marriage cases. The states from which these cases originate are Tennessee, Kentucky, Ohio, Michigan and Louisiana.

In Louisiana a federal judge ruled to uphold the anti-gay marriage ban, and the other four are in the Sixth Circuit, where the appeals court overturned federal judges who had ruled for equality.

We will not know until next month whether SCOTUS will hear any marriage appeals, but if they do so, it will only be those which are requesting that marriages be allowed. In other words, the court has not scheduled for hearing any appeals which could reverse a state’s current practice of allowing same-sex marriage.

I think that this, when taken with past appeal and stay decisions, may suggest a predisposition on the part of the court to move in the direction of equality.

However, the court has also illustrated a lack of willingness to rule directly on the issue. And this brings up another possibility – though probably not a likely one.

On January 9th – or some point thereafter – the court could take steps to reverse the Sixth Circuit decision without taking up appeal. They could return the cases from Kentucky, Tennessee, Ohio and Michigan to the Sixth Circuit Court of Appeals with instruction that the court more carefully consider or weigh some aspect of the case.

But whichever direction they go, it now seems encouraging that next month will prove to be a rather big step (likely forward) in the marriage movement.

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