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Posts for October, 2014

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.

The sweetest story

Timothy Kincaid

September 18th, 2014

There is nothing I don’t love about this story. (Des Moines Register)

For so long, their love was not public. But when the news broke about their Sept. 6 wedding, their story was spread across the Internet and social media. In one week, decades of silence ended. They had never before talked to anyone about their relationship.

“In all those 72 years, no one said anything about it, either negative or positive,” said Vivian, 91, sitting across the dining hall table from Nonie, 90, on Wednesday at a Davenport retirement community where they have lived since 1987.

Go read it.

Is Arizona Next?

Jim Burroway

September 16th, 2014

Last Friday, Federal District Court Judge John W. Sedwick issued a partial ruling which ordered the state to recognize a gay couple’s marriage after one of the partners died last summer. The state is now required to list the couple as having been married on the death certificate.

The case involves more than a dozen gay and lesbian couples seeking to overturn Arizona’s ban on same-sex marriage, and a ruling on the larger issue hasn’t come down. But Lyle Denniston at SCOTUSBlog thinks this early ruling tells us that Judge Sedwick is about to strike Arizona’s ban:

Judge Sedwick, who usually sits in Anchorage, Alaska, but is doing temporary duty to handle civil cases in Phoenix, cited a string of other federal court rulings striking down state prohibitions on same -sex marriage, and he commented on “the absence of any persuasive case law to the contrary.” He then added that the surviving partner in this case “is likely to prevail” in his challenge before the judge.

Because that claim is part of a broader case before the judge, involving one lawsuit filed in January and a separate case filed in March and proceeding jointly before him, his remarks were a strong indication that a 2008 state constitutional amendment and two state laws against same-sex marriage probably are going to be nullified.

A huge factor weighing against Arizona’s ban is that it is in the Ninth Circuit, which requires the more demanding “heightened scrutiny” test. Judge Sedwick has already denied the state’s claim that it doesn’t apply for this case in last week’s ruling.

Thanks for clarifying

Timothy Kincaid

September 10th, 2014

The opponents of equality have vociferously insisted that they hold no animus to gay people in their efforts to deny marriage to same-sex couples. No, it’s for the children, to encourage heterosexual marriage, to send a message of paternal bonding, to encourage parentage of accidental babies, and to channel procreation into socially advantageous structures but never, ever, ever is it animus towards gay people.

No sirree.

Except, of course, that absolutely everyone knows that the primary motivation for the opposition to same-sex marriage is an objection to same-sex couples being perceived or recognized as socially, legally, or morally equivalent to opposite-sex couples. It is, and always has been, based in a desire to hold heterosexuals out as superior to homosexuals and to firmly continue that message and social position.

And perhaps nothing makes so honest an admission of that motivation than an amicus brief filed in support of the state of Utah in it’s appeal to the decision by the Tenth Circuit Court of Appeals that their anti-gay marriage laws violate the US Constitution.

But first the back-story.

Fancher Hard

David Fancher and Paul Hard met in Montgomery, Alabama, in 2004. Six years later, in May 2011, they married on a beach in Massachusetts. Less than three months later Fancher was dead, the consequence of a traffic accident caused by an overturned truck.

Fancher and Hard had tried to protect their family with such wills and other legal documents as they could. Nevertheless, Hard was subjected to indignity at the hospital and later at the funeral home. But no indignity mattered so much as Alabama state law which disallows anyone who isn’t “next of kin” to receive compensation from a wrongful death. And the state of Alabama specifically disallowed David Fancher’s husband from being next of kin.

Earlier this year, Hard sued the state and asserted that the ban on recognizing same-sex marriages legally conducted in another state were in violation of several provisions of the US Constitution and that he is legally entitled to half of the settlement. However, his mother-in-law, Pat Fancher, contacted Judge Roy Moore’s Foundation for Moral Law to defend her claim on the money.

But, it’s not just all about the money. And though Alabama is in the Eleventh Circuit, the Foundation for Moral Law has filed a brief arguing just why it is that Utah’s anti-gay laws (and thus Alabama’s) should be vindicated by the Supreme Court.

The Foundation has an interest in this case because it believes that this nation’s laws should reflect the moral basis upon which the nation was founded, and that the ancient roots of the common law, the pronouncements of the legal philosophers from whom this nation’s Founders derived their view of law, the views of the Founders themselves, and the views of the American people as a whole from the beginning of American history at least until very recently, have held that homosexual conduct is immoral and should not be sanctioned by giving it the official state sanction of marriage.

Well, thanks for clarifying that for us.

Yes, we’ve always knows that your objections to equality have no real rational reason or purpose. We’ve always understood that it is your religious beliefs that have justified truly vile behavior to others. We’ve been clear from the start that this has nothing to do with the smoke screens thrown up by state and advocacy group attorneys and everything to do with punishing gay people for their own existence.

But it’s nice to see it there so starkly in print.

Croatia gets first civil union

Timothy Kincaid

September 6th, 2014

Croatian coast

Last December, the populace of Croatia, a very Catholic nation, voted to limit marriage to opposite sex couples. But in July the legislature passed a bill creating civil unions, providing same sex couples with nearly all the same rights as marriage.

Now the first such civil union has been conducted. (rtl)

Le premier couple gay s’est uni en Croatie en vertu d’une loi adoptée à la mi-juillet qui aligne les droits des unions homosexuelles et hétérosexuelles, sauf en matière d’adoption des enfants, a annoncé un groupe de défense des droits des homosexuels.

“Ce soir, une page de l’histoire a été écrite à Zagreb (…) la première union civile a été conclue”, a annoncé tard vendredi 5 septembre le groupe de défense des droits des homosexuels Pride sur sa page Facebook. “Bonne chance et meilleurs voeux aux mariés”, a ajouté Pride sans fournir de précisions, à l’exception d’une photocopie partielle du document scellant l’union.

Google Translate:

The first gay couple is united in Croatia under a law passed in mid-July that aligns the rights of homosexual and heterosexual , except in the Adoption of Children, said a group of Advocacy homosexuals.

“Tonight, a page of history was written in Zagreb (…) the first civil union was completed,” announced late Friday, 5 September the advocacy group for gay rights Pride on his Facebook page . ” Good luck and best wishes to the married , “he added without elaborating Pride, with the exception of a partial photocopy of sealing the union.

Seventh Circuit slaps down gay marriage bans

Timothy Kincaid

September 4th, 2014

Well that was quick!

Just last week Justices Williams, Hamilton, and Posner heard oral argument as to why the states of Wisconsin and Indiana could ban marriage between same-sex couples without violating their constitutional rights. Today they’ve released their ruling and, to no one’s surprise, they unanimously agree that anti-gay marriage bans are unconstitutional.

They didn’t exactly pull punches.

Our pair of cases is rich in detail but ultimately straight-forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

The justices found that a ‘more than reasonable basis” review was required because discrimination against a minority makes a law “constitutionally suspect”. Nevertheless, not even a rational basis was provided.

They found that these laws violate the equal protections promises of the constitution and, as it was unnecessary, chose not to prove other possible violations.

Interestingly, the court seemed to find merit in the theories that homosexuality is a form of natural selection by which a small percentage of a population is not naturally procreative, thus freeing that subgroup to provide supplemental care for the children of procreative relatives. This may speak to the motivation of Posner’s repeated questions about the harm to children adopted by same-sex couples.

And it forms much of the ruling:

Married homosexuals are more likely to want to adopt than unmarried ones if only because of the many state and federal benefits to which married people are entitled. And so same-sex marriage improves the prospects of unintended children by increasing the number and resources of prospective adopters. Notably, same-sex couples are more likely to adopt foster children than opposite-sex couples are.

Also, the more willing adopters there are, not only the fewer children there will be in foster care or being raised by single mothers but also the fewer abortions there will be. Carrying a baby to term and putting the baby up for adoption is an alternative to abortion for a pregnant woman who thinks that as a single mother she could not cope with the baby. The pro-life community recognizes this.

I love the reference to the pro-life community. It’s reminding them that their biases are hurting themselves as well.

Finally, they concluded:

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation. As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

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