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Posts for April, 2015

Supreme Court Audio from Today’s Oral Arguments Now Available — Updated With Reactions

Jim Burroway

April 28th, 2015

The Supreme Court has posted audio of today’s marriage oral arguments. The first question investigates whether bans against same-sex marriage violate the Constitution of the United States. You can listen below, or click here to download the file as MP3, Windows Media, or RealAudio.

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The second argument pertains to whether states are obligated under the U.S. Constitution to recognize a same-sex marriage that was lawfully obtained in another state. You can listen below, or click here to download the file.

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UPDATES:

Transcripts for both questions have also been posted at the above links.

Buzzfeed’s resident self-described law dork Chris Geidner summarizes it all this way:

A 5-4 vote in favor of same-sex couples’ marriage rights appears to be the most likely outcome, although Chief Justice John Roberts’ vote shouldn’t be counted out.

But SCOTUSblog’s Kevin Russell weighs whether a compromise ruling might be in the works:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

On the other hand, Justice Kennedy’s near silence in the second argument suggests that he did not think that the second question was likely all that important. The only significant question he asked was something like “if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn’t that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?”

Robert Barnes and Fred Barbash at the Washington Post wondered about the split-the-baby scenario as well:

If states are forced to recognize same sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same sex marriage settled in as the national norm. It would effectively allow “one state” or a minority of states, to “set policy for the nation.”

At the same time, the Roberts’ line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same sex marriages within their borders.

But back to the possibility of striking the bans outright, we’ve often looked at Justice Kennedy as the critical swing vote. But is Chief Justice John Roberts another possible swinger? Greg Stoher and Mark Drajem at Bloomberg found his questioning worth noting:

Chief Justice John Roberts directed the bulk of his questions at same-sex marriage proponents during the argument. Although Roberts voted against gay rights two years ago, marriage advocates hold out hope of winning his vote this time.

“If you prevail here, there will be no more debate,” Roberts told Mary Bonauto, the lead lawyer arguing in favor of same-sex marriage rights. Shutting off debate “can close minds.”

He added, “people feel very differently about something if they have a chance to vote on it.” Roberts also said the “fundamental core of the institution is the opposite-sex relationship.”

The chief justice shifted course later, suggesting he was open to joining an opinion that didn’t focus on sexual orientation and instead struck gay-marriage bans as unconstitutional gender discrimination.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts said. “Why isn’t that a straightforward question of sexual discrimination?”

Texas’ truly stupid anti-equality proposal

Timothy Kincaid

April 27th, 2015

Representative Cecil Bell Jr., one of Texas’ good ol’ boy Republicans, has a game plan as to how the Lone Star State is going to thwart the ruling of the Supreme Court of the United States on same-sex marriage.

Passed by the House State Affairs committee on April 22, the bill would prohibit Texas from using state or local funds to license or recognize same-sex marriages. Even if a court issued “an order requiring the issuance or recognition of a same-sex marriage license,” the bill states, officials would be barred from spending any money to do so.

Now suppose that the state passes this bill and SCOTUS rules for equality, as expected. What would Bell’s bill do?

First, it would not keep things as usual in Texas. Or certainly not for long.

When confronted by an obligation to provide same-sex couples with equal access – but to do so without spending extra funds – I expect that clerks will respond differently. Some will laugh at Bell’s bill, noting that state legislation does not outrank the US Constitution.

Others, maybe most, will just shut down shop until the courts toss this nonsense. Yay, Bell, marriage for no one. That’ll show them.

And there will undoubtedly be some brave soul with little brains and lots of faith who will proudly wave their flag of bigotry and defy the courts. But this will be a violation of civil rights as determined by the US Supreme Court. Which means the active involvement of the Justice Department. And federal judges. And sanctions. And maybe even jail.

And sure Bell will “win” if winning means grandstanding, and “martyrs”, and causing a stink. And, yes, people will hate each other and dig in their heels, and life will be less comfortable for everyone.

But marriage equality is coming to Texas. And there is nothing that Cecil Bell Jr. can do to stop it.

Marriage bans disadvantage gay voters and candidates

Timothy Kincaid

April 27th, 2015

A compelling argument for equality focused on an erea that I hadn’t noticed: (NY Daily News)

Under federal law, it’s illegal to make a political contribution in the name of someone else or using someone else’s money. This anti-corruption law is specifically designed to preempt individuals who seek to dishonestly circumvent contribution maximums by making a donation under another name.

Married couples are the exception to this rule. Most states — including all four states with marriage bans before the Supreme Court — extend to a husband and wife their own contribution limits, even if only one spouse brings income into the marriage. But committed same-sex couples living in states where their marriage is not recognized do not enjoy the same spousal exemption.

It’s even more unbalanced when a gay candidate runs for office. Her spouse is limited to contributions, just as if she were a stranger, while her opponent can use his wife’s funds as if they were his own.

When marriage equality heads to the Supreme Court, we’ll hear arguments loudly advocating for the supposed states’ rights to settle the marriage debate outside of the courtroom.

This approach places faith in our political system without realizing that the existing same-sex marriage bans hampers the democratic process. In the absence of equal spousal exemptions to campaign finance laws, gay and lesbian men and women are less able to participate politically as donors and as candidates. And as a result, an already marginalized group is further disenfranchised.

This you must see

Timothy Kincaid

April 24th, 2015
YouTube Preview Image

Civil Unions bill signed in Chile

Timothy Kincaid

April 13th, 2015

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From the Washington Blade

Chilean President Michelle Bachelet on Monday signed a bill into law that will allow gays and lesbians in the South American country to enter into civil unions. “The civil union law is a vindication in the struggle for sexual diversity rights,” said Bachelet during the signing ceremony that took place at the Presidential Palace in Santiago, the Chilean capital.

The bill passed the Chilean Congress in January and then went for review before the nation’s Constitutional Court.

Currently there are lawsuits for full marriage equality before the Inter-American Court of Human Rights. Bachelet’s administration is not opposing the lawsuits.

What the Bible says to Christian cake bakers

Timothy Kincaid

April 8th, 2015

wedding cake

Personally, I don’t think that bakers and photographers should be compelled to offer their services to anyone they don’t like. We’ve had that discussion many times here at Box Turtle Bulletin and though I understand the arguments of those who wish to compel discrimination out of existence, my libertarian streak just doesn’t let me get there.

Frankly, there are people who I prefer not associate with or provide with services. And I respect that they may feel the same.

That being said, these angry Christians who are furious about bakers having to serve gay couples seem not to have read their Bible or believe the words of Jesus. Because the recorded words of Jesus himself tell you what to do when you are sued to bake a cake.

Matthew 5:38-42:
“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. And if anyone wants to sue you and take your shirt, hand over your coat as well. If anyone forces you to go one mile, go with them two miles. Give to the one who asks you, and do not turn away from the one who wants to borrow from you.

So what would Jesus say to Baronelle Stutzman and the other Christian bakers who fear that by baking a wedding cake for a gay couple they are then condoning immoral lifestyles? Even if they think gay people are evil? It’s not very ambiguous:

If anyone wants to sue you and force you to bake a wedding cake, bake them cupcakes as well.

But, of course, that only applies to followers of Jesus. So Stutzman and her ilk may not find it relevant.

Alabama marriage carnival goes on

Timothy Kincaid

March 19th, 2015

bama

Since our last update, the marriage situation in Alabama has continued to whirl and twirl to a wild caliope tune.

Mobile County Probate Judge Davis, having been told by the Alabama Supreme Court that he was not exempt from their order to discriminate against same-sex couples, turned back to Federal Judge Granade. He noted that the plaintiffs in the case have all gotten married now, and requested that she put a stay on her order so as to keep him from having to defy one court or the other.

Judge Granade didn’t let him off the hook. She said, no dear, it’s isn’t much good that you’ve issued the licenses if the state won’t recognize them. And really you haven’t given me any reason why my ruling shouldn’t be upheld, so go on now and do what you’ve been told.

So Davis is refusing to issue marriage licenses to anyone.

But his problems didn’t stop there. Part of the marriage lawsuit was driven by Cari Searcy, one of the plaintiffs, desire to adopt the child that she and Kim McKeand had raised since birth. Alabama doesn’t allow second-parent adoption, but now that she’s married to the mother, she should be eligible.

But the state is refusing to recognize the marriage so Davis tried to enact partial compliance. He issued an interlocutory decree granting Searcy temporary parental rights but said he would not rule on the adoption itself until after the Supreme Court made it’s decision.

Searcy’s attorneys then sued Davis for failure to follow the order of the Federal Judge. But Davis used this to his advantage. He noted that he’s now a party to the suit and therefore no longer impartial and recused himself from the review of the adoption and asked the Alabama Supreme Court to give him a replacement for the case.

But, Searcy’s attorneys claim, a change in 2001 would have the replacement made by the presiding circuit judge. The matter is unclear because there is uncertainty whether the 2001 change applies to probate judges. This will undoubtedly delay the adoption further.

Meanwhile, Judge Granade has made her first ruling on the request by plaintiffs to add additional plaintiffs and to make the case class action. Attorney General Luther Strange had argued that too much time had passed, but Granade didn’t buy that.

She ruled that the case could be amended to allow additional plaintiffs and defendants.

There being no substantial reason to deny leave to amend, the court must allow the amendment. Accordingly, Plaintiffs’ motion for leave to file a second amended complaint (Doc. 76) is hereby GRANTED.

However, she did not rule on whether the case would be made class action.

Thus, although the court may dismiss class allegations “[w]here it is facially apparent from the pleadings that there is no ascertainable class,” …, the court finds that the Plaintiffs in this case have alleged adequate facts to support a potential class claim and the court will not engage in a detailed and rigorous analysis of the class claims until all of the current parties have had the opportunity to oppose or support the motion for class certification.

Grenade has given Strange until March 23rd to tell her why “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages” is an ill-defined class definition.

It seems rather unlikely that Strange will convince Judge Granade that this class of people is vague and ill-defined. And it seems rather likely that Judge Granade will determine that her ruling applies to all such couples. This will eliminate all ambiguity about the extent and scope of the Federal ruling and may set the state on course for a showdown with the Federal government.

And then we will see what the Alabama Supreme Court has to say.

Presbyterians support marriage equality

Timothy Kincaid

March 17th, 2015

presbyterian logoCongratulations to the members of the Presbyterian Church (USA). (NYTimes)

After three decades of debate over its stance on homosexuality, members of the Presbyterian Church (U.S.A.) voted on Tuesday to change the definition of marriage in the church’s constitution to include same-sex marriage.

The final approval by a majority of the church’s 171 regional bodies, known as presbyteries, enshrines a change recommended last year by the church’s General Assembly. The vote amends the church’s constitution to broaden marriage from being between “a man and a woman” to “two people, traditionally a man and a woman.”

Although not all presbyteries have voted, the lopsided two-thirds results to date are sufficient to ensure the endorsement of the change.

They join Metropolitan Community Church (MCC), the United Church of Christ (UCC), the Episcopal Church, and the Evangelical Lutheran Church in America as major denominations that now support marriage equality.

There are also a number of independent or smaller churches that value equality. The United Methodist Church does not allow for marriage equality primarily due to Asian and African voters in the international denomination, but the church body in the US is in open revolt and has mostly ceased trying to punish the growing number of ministers who flout the policy.

‘Bama Supremes er at it agin

Timothy Kincaid

March 11th, 2015

bama

Remember when the Supreme Court of the State of Alabama declared that they and they alone know what is in the US Constitution and ordered all counties in the state to stop issuing marriage licenses to same sex couples? Well, at the time, they made one tiny temporary exception.

They told Probate Judge Davis that he needed to get back to them about whether he thought that he was under any obligation to perform the tasks that Federal Judge Granade had ordered him to do.

And Davis, not being a complete lunatic nor wishing to be held in contempt, requested that he be exempted from the state court’s orders. Yeah, like that was going to happen! (WSFA)

The probate judge sought an 11-day extension to comply with the court’s order motion and on March 9 advised the court that he should not be included in the March 3 order because it would require him to violate a federal district court order.

The Alabama Supreme Court denied Davis’ request saying his concern was without merit.

“Davis has made no showing that he was, or is, the subject of any previously entered federal court order other than the one issued in Strawser,” the justices wrote, “and he makes no showing that that order has any continuing, binding effect on him as to any marriage-license applicants beyond the four couples who were the plaintiffs in that case and who already have received the relief they requested.”

I rather suspect that if Judge Granade was not pissed off already, this might have done it. And the ‘Baba Supremes may well discover that her idea of “without merit” is quite different from the one the good ol’ boys have.

Oklahoma may be getting out of the marriage business (Updated)

Timothy Kincaid

March 10th, 2015

Governments love control. That’s a given.

So while many people – right, left, or center – have exclaimed, “the government get out of the marriage business, anyway!”, I’ve mostly ignored those cries as impractical. But by a vote of 67 to 24, the Oklahoma House of Representatives has voted to do just that.

HB 1125 removes all references to issuing marriage licenses and instead allows a provision by which the officiant of a marriage files a certificate after the fact informing the state that a legal marriage has occurred (and those who don’t wish for an officiant can file a common-law marriage affidavit). In this way, such county clerks or other public employees as don’t wish to issue licenses that offend their faith won’t have to issue any licenses at all.

Currently the marriage certificate is the final step in the process. And that would remain the same. Except that the certificate, once recorded and certified, is returned to the couple as their legal proof of marriage.

It’s not completely clear why receiving and documenting the certificate is less offensive to a clerk than issuing a license, but perhaps it’s a matter of filing the record of an event rather than issuing a license which is a form of permission.

Or, though unlikely, perhaps this whole fight has caused the Republicans in Oklahoma to ponder on some of the supposed small-government positions that they like to spout and ask themselves why it is that a couple should have to ask the state for permission to marry in the first place.

Interestingly, the law omits any ‘male-female’ requirements and the certificate has signature spaces for “first spouse” and “second spouse”. It does continue restrictions on under-age marriage.

The bill now goes to the state Senate and, if passed, would go into effect November 1, 2015.

UPDATED: This bill appears to have been sent off to a committee to die in March.

Libertarians on Equal Protections

Timothy Kincaid

March 10th, 2015

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.

Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

Latest marriage poll

Timothy Kincaid

March 10th, 2015

In the latest NBC/WSJ poll, US support for marriage equality reaches new heights

Q35 Do you favor or oppose allowing gay and lesbian couples to enter into same-sex marriages? (IF “FAVOR” OR “OPPOSE,” ASK:) Would you say that you strongly (favor/oppose), or just somewhat (favor/oppose)?

38 Strongly favor
21 Somewhat favor
9 Somewhat oppose
24 Strongly oppose
2 It depends
6 Not sure

And just in case the anti-gays think this means they are winning:

Marriage graph_Page_2

More on the amicus briefs

Timothy Kincaid

March 7th, 2015

The plethora of amicus briefs have now been filed encouraging the US Supreme Court to find that anti-gay marriage bans violate the Equal Protections and Due Process provisions of the US Constitution. They included

Mayors for the Freedom to Marry. This brief was signed by the 229 mayors from the nation’s largest cities to tiny burgs, from cities with vastly different racial, religious, and cultural heritage, by Republicans and Democrats, along with several dozen towns that signed on.

Corporations. Leaders of the nation’s largest corporations circulated a brief which garnered support from the Who’s Who of business. Most of the names you would expect to see – such as Apple, Microsoft, Target and Wells Fargo – are there. But also included in the 379 names are some less obvious supporters like Alcoa, New England Patriots, and ConAgra Foods.

Project Right Side. Ken Mehlman circulated the brief obtaining support from Republicans, Libertarians and other conservatives. Among the 300-plus signatures are some expected names: Massachusetts Governor Charlie Baker, Senator Susan Collins, and Congresswoman Ileana Ros-Lehtinen. Other names were less expected, such as Meg Whitman, who did not support equality while running for California Governor in 2010, Andrea Saul, Mitt Romney’s press secretary, and Former Michigan Attorney General Mike Cox, the guy who hired Andrew Shirvell. They range from longtime supporters to newly evolved to some I assumed were foes of equality.

Alabama attorneys petition for class action on marriage case

Timothy Kincaid

March 6th, 2015

The attorneys who won their case against Alabama’s anti-gay marriage ban have gone back to Judge Granade and requested that the case be made a class action, impacting all same-sex couples who wish to marry.

Specifically, Plaintiffs seek: (a) a declaration that Alabama’s prohibition of marriage for same-sex couples violates the Due Process and Equal Protection Clauses of the United States Constitution; (b) a declaration that Alabama’s refusal to recognize the marriages of samesex couples under state law violates the Due Process and Equal Protection Clauses of the United States Constitution; and (c) a temporary restraining order and/or preliminary injunction, as well as a permanent injunction, (i) preventing Defendant Class members from denying Plaintiffs and Plaintiff Class members the right to marry, (ii) directing Named Defendants Davis and Russell and the members of the Defendant Class to issue marriage licenses to all same-sex couples who otherwise satisfy the qualifications for marriage under Alabama law; and (iii) directing Defendants to recognize for all purposes the marriages of all same-sex couples validly entered into pursuant to marriage licenses issued in Alabama or any other jurisdiction at any time.

Whatcha gotta say about that, Roy Moore?

Eighth Circuit stays Nebraska ruling

Timothy Kincaid

March 5th, 2015

Washington Blade

Without explanation, the court announces in a two-page order it has stayed pending appeal a decision by U.S. District Judge Joseph Bataillon against Nebraska’s prohibition on same-sex marriage, which was set to take effect at the start of next week.

The court has included Nebraska into the joint hearing they are having for rulings lifting bans in Arkansas, South Dakota and Missouri.

Directing the clerk to expedite briefing in the case, the court announces that oral arguments for all three lawsuits will take place in Omaha on May 12.

Which is between the time that the US Supreme Court will hear arguments (April 28) and the time that the high court issues its ruling in June.

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