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“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
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Posts for July, 2014

Florida marriage ban ruled unconstitutional

Timothy Kincaid

July 17th, 2014

lmgarcia
In the first of a pair of marriage lawsuits, Huntsman v. Heavilin, a Florida county court has found that the ban on same-sex marriage violates the US Constitution. The ruling applies only to Monroe County. (Miami Herald)

Monroe County Circuit Judge Luis Garcia overturned Florida’s 2008 constitutional gay-marriage ban on Thursday, and ordered that two Key West bartenders be allowed to wed but not before Tuesday.

Aaron Huntsman and William Lee Jones, who met at a gay pride celebration and have been a couple for 11 years, sued Monroe County Clerk Amy Heavilin in April for a marriage license. Their case mirrors a similar suit in Miami-Dade County, in which six same-sex couples and LGBT advocacy group Equality Florida Institute sued County Clerk Harvey Ruvin for the right to marry.

Judge Garcia found the law in violation of both the Due Process and the Equal Protections provisions of the US Constitution. Additionally, noting that “Where a court suspects animus towards a disadvantaged group a more meaningful level of review is warranted”, Garcia illustrated the animus present in this case.

Fascinatingly, the judge turned to the amicus briefs provided by those opposing equality, specifically to Dr. Judith Reisman, to illustrate their own animus. (Ruling)

The court finds that despite the Amici Curiae assertion that there is no evidence of animus towards homosexuals by the proponents of the Florida Marriage Protection Amendment (FMPA), there is ample evidence not only historically but within the very memorandum of law filed by the Amici Curiae. For example, the affidavits of Dr. Reisman, filed by the Amici Curiae, for the proposition that, “a law encouraging homosexual behaviors appears to increase HIV risk and negative health outcomes and thus creates a danger both to the individual engaging in these behaviors as well as society as a whole.” The Amici Curiae also claims that homosexuality is not the result of biology, genetics or nature, but that in fact it is a choice that is naturally subject to change and within the control of the individual. (See page 20-21 of Amici Curiae memorandum.) The Amici Curiae’s memorandum paints a picture of homosexuals as HIV infected, alcohol and drug abusers, who are promiscuous and psychologically damaged and incapable of long term relationships or of raising children. (Pages 29-39). They contend, “the personal, social and financial costs of these homosexual-specific health problems concern not just those who engage in homosexual activity, but also the larger community of citizens who help provide services and who must bear part of the burden imposed by the health challenges. It is eminently rational for the voters of Florida to seek to minimize the deleterious effect of these conditions on public health, safety and welfare by affirming that marriage in Florida remains the union of one man and one woman.” (Page 39). The court finds that animus has been established by the plaintiffs and that the heightened rational basis test is appropriate.

Also, following an amusing trend, Garcia quoted Scalia on the matter.

Justice Scalia in his dissent in Lawrence v. Texas stated, “Preserving the traditional institution of marriage … is just a kinder way of describing the State’s moral disapproval of same-sex couples,” which is obviously not a legitimate purpose for the unequal treatment.

One of the more interesting side observations in this case is that while Florida Attorney General Pam Bondi expressed her intent to defend the law – and received considerable criticism for doing so – her defense has been so minimal as to infuriate the supporters of inequality.

After the hearing, [Liberty Counsel's Matt] Staver seemed outraged that Tanenbaum spoke for about five minutes at each of the South Florida hearings, and never actually argued in favor of the gay marriage ban.

Staver said [Florida Assistant Attorney General Adam] Tanenbaum’s boss, Florida Attorney General Pam Bondi, “is giving only window dressing to the Florida Marriage Amendment.”

It appears that the State’s sole argument was that states have the right to set marriage law for themselves.

Judge Garcia was appointed in 2000 by former Governor Jeb Bush.

Croatia passes partnership law

Timothy Kincaid

July 15th, 2014

Croatian coast
Things have been a bit of a roller coaster for the gay citizens of Croatia, the nation comprising much of the coastline across the Adriatic Sea from Italy.

Last July Croatia joined the European Union, after passing a non-discrimination law. Almost immediately, a government commission proposed a referendum to ban marriage equality. And in December 2013, the electorate declared their support for discrimination by a two-thirds vote (though with a very low voter turnout).

But later that month the government proposed a ‘life partnership’ registry, and now that legislation has passed. (Ansamed)

La Croazia si è unita oggi ai Paesi che riconoscono le unioni civili tra le coppie dello stesso sesso, garantendo alle coppie gay e lesbiche tutti i diritti delle coppie sposate, con l’eccezione dell’adozione dei figli, e definendo queste unioni come una forma di vita famigliare.

Il Parlamento di Zagabria ha approvato oggi con 89 voti a favore, giunti dai banchi dei partiti di centro-sinistra e liberali che formano la coalizione di governo la Legge sulle unioni civili tra le coppie omosessuali, modellata in maggior parte su quella tedesca. Contro hanno votato 16 deputati di destra e centro-destra, che non si oppongono alla necessità di regolare le coppie omosessuali, ma considerano questa legge troppo liberale.

Google Translate:

Croatia has today joined the countries that recognize civil unions between same-sex couples, granting gay and lesbian couples all the rights of married couples, with the exception of the adoption of children, and defining these unions as a form of family life.

The Parliament in Zagreb today approved with 89 votes in favor, came from the banks of the parties of the center-left and liberals who form the ruling coalition the Law on civil unions between same-sex couples, modeled in most of the German. 16 deputies voted against right-wing and center-right, which is not opposed to the need to regulate same-sex couples, but consider this law too liberal.

One of the complications which the community had faced was a Constitutional requirement that the State ‘protect the family’. Lawmakers got around that problem by defining life partnerships to be a form of family.

Obama Administration to Argue Against State Marriage Bans Before Supreme Court

Jim Burroway

July 15th, 2014

Over the weekend, Attorney General Eric Holder announced that the Justice Department will urge the U.S. Supreme Court to uphold lower court rulings which have struck down bans against same-sex marriage in more than twenty states:

If the Supreme Court agrees to hear any of those cases, the Justice Department will file a brief with the court that “will be in support of same-sex marriage,” Holder said in a rare interview, sitting down with ABC News’ Pierre Thomas.

Holder said the brief would be “consistent with the actions that we have taken over the past couple of years.” The Justice Department has refused to defend the Defense of Marriage Act, which defines marriage as between a man and a woman, and its legal efforts to extend federal benefits to same-sex couples have been successful.

Holder called the battle for marriage equality “a defining civil rights challenge of our time.”

Last week, the Attorney General’s office for the state of Utah announced that it would take its appeal of a lower court ruling striking down the state’s same-sex marriage ban straight to the U.S. Supreme Court rather than ask for an en banc hearing before the entire Tenth Circuit. A three-judge panel of the Tenth Circuit in June upheld a Federal District Court’s ruling which declared Utah’s ban against same-sex marriage unconstitutional.

Hearing on Florida marriage lawsuit today

Timothy Kincaid

July 2nd, 2014

New Times

Eleventh Judicial Court Judge Sarah Zabel will preside over the case of Pareto v. Ruvin in a hearing scheduled for 4 Wednesday afternoon.

The suit looks to overturn Florida’s ban on same-sex marriage, which was added to the state constitution in 2008. According to Equality Florida, the six couples’ motion asserts that Florida’s marriage ban cannot stand in light of last year’s U.S. Supreme Court ruling that the federal “Defense of Marriage Act” violates the federal constitutional guarantees of equal protection and due process.

Florida Equality is livetweeting

At least one marriage in Indiana will be recognized

Timothy Kincaid

July 2nd, 2014

amy and nikiLast Wednesday, Federal District Judge Richard Young ruled that Indiana’s ban on same-sex marriages violates the due process and equal protection clauses of the US Constitution. After several marriages took place, on Friday the Seventh Circuit Court of Appeals stayed the ruling until appeal can be heard.

The status of the marriages that took place in the interim is uncertain. But one couple’s marriage has caught the attention of the courts and merited special treatment.

Earlier this year, before determining the constitutionality of the law, Judge Young had made an emergency ruling on the marriage of one couple, Amy Sandler and Niki Quasney. Quasney has been fighting ovarian cancer for five years and may not be able to continue the battle until after the legal process has been completed.

When the Seventh Circuit stayed Judge Young’s marriage rulings, it put Sandler’s and Quasney’s marriage back in limbo. But, as did Young, the Appeals Court has recognized the severity of the situation and made exception. (IndyStar)

The U.S. 7th Circuit Court of Appeals has ordered the state to recognize the same-sex marriage of one Hoosier couple.

Tuesday’s ruling came at the request of Amy Sandler and Niki Quasney, who is terminally ill. They are among the couples who had filed lawsuits earlier this year challenging the state law than bans same-sex marriage and the recognition of gay marriages conducted legally in other states.

A three-judge panel from the federal appeals court in Chicago ordered the unique recognition for the Munster couple a day after it announced plans to expedite the appeal of U.S. District Judge Richard Young’s ruling last week that found Indiana’s ban unconstitutional.

This is an act of mercy. But it also tells us something of the mind of the court.

Yesterday’s ruling gives a clear indication that at least this panel of judges expects that marriage equality has proven its merits and will prevail at the Circuit Court level.

I am also beginning to wonder if the Supreme Court will even hear the matter of marriage. Should all of the Circuit Courts come to identical conclusion, which seems increasingly likely, there would be no legal conflict nor perhaps a need for SCOTUS to take up the issue.

Nevada marriage hearing set

Timothy Kincaid

July 1st, 2014

Reno Gazette-Journal

A federal appeals court says it will consider Nevada’s gay marriage ban on Sept. 8.

The 9th Circuit Court of Appeals in San Francisco has scheduled 20 minutes of oral arguments in the case of Beverly Sevcik v. Brian Sandoval. The court will also hear arguments that morning over similar cases in Idaho and Hawaii.

You may recall that Attorney General Cortez Masto and Governor Sandoval have pulled all state defense of the marriage ban, leaving only the Coalition for the Protection of Marriage to argue the case.

Another Marriage Ban Bites the Dust

Jim Burroway

July 1st, 2014

Kentucky!

A federal judge today ruled that same-sex couples have a right to marry in Kentucky.

“In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted,” U.S. District Judge John G. Heyburn II wrote to invalidate Kentucky’s constitutional amendment banning gay marriage.

…Heyburn upheld the right to marry today, but put his ruling on hold pending a decision by a higher court. Heyburn rejected the only justification offered by lawyers for Kentucky Gov. Steve Beshear — that traditional marriages contribute to a stable birth rate and the state’s long-term economic stability.

“These arguments are not those of serious people,” he said.

Judge Heyburn, who was appointed to the bench in 1992 by President George H.W. Bush on Sen. Mitch McConnell’s (R-KY) recommendation, ruled that Kentucky’s ban violates the Equal Protection clause of the U.S. Constitution. Earlier this year, the same judge ruled that the state of Kentucky must recognize the validity of same-sex marriages performed in other states.

The full ruling is here. Judge Heyburn begins by observing the near-unanimity of prior court decisions in the wake of Windsor but explains why, unlike most other Federal judges, he chose not to rule on Due Process grounds:

Since the Supreme Court’s landmark decision in United States v. Windsor, 133 S.Ct. 2675 (2013), every federal court to consider state bans on same-sex marriage and recognition has declared them unconstitutional. Most of these courts have done so under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. This Court’s opinion differs in that it does not determine whether Kentucky’s laws interfere with a fundamental right. The Court’s chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.

He explains that a bit further

Although many courts have discussed the Equal Protection and Due Process Clauses in tandem, ultimately, this Court sees this case as more clearly about the imposition of a classification than about the contours of a due process right. The constitutional question is whether a state can lawfully exclude a certain class of individuals, i.e. homosexual persons, from the status and dignity of marriage. The Court will resolve Plaintiffs’ claims solely on equal protection grounds.

Judge Heyburn acknowledged that “the most difficult part of the equal protection analysis here is determining the proper standard of review.” For heightened scrutiny, which places to burden of proof on the state to show that its action against a suspect class is narrowly tailored to further a legitimate government interest. If the action interferes with a fundemantal right, then gay people qualify as a suspect class, then strict scrutiny applies. But if gay people are simply being singled out for special treatment for other reasons, then they may qualify for quasi-suspect class requiring heghtened scrutiny. While Loving v. Virgina and other court cases identified marriage as a fundamental right, Judge Heyburn found that when the U.S. Supreme Court had the opportunity to extend that fundamental right to gay people in Windsor, it decliend to do so:

If the inquiry here is viewed as a contours-of-the-right question, holding that the fundamental right to marry encompasses same-sex marriage would be a dramatic step that the Supreme Court has not yet indicated a willingness to take. Further, it is a step that is unnecessary to the ultimate result in this action. Given the current posture of relevant constitutional jurisprudence, this Court finds caution here a more appropriate approach to avoid overreaching in its own constitutional analysis.

He did however rule that gay people constitute a quasi-suspect class, based on four factors identified by the Supreme Court: 1) historical discrimination, 2) ability to contribute to society, 3) immutable defining characteristics, and 4) politiacl powerlessness.

Historical discrimination against homosexual persons is readily apparent and cannot reasonably be disputed. Further, the Court cannot think of any reason why homosexuality would affect a person’s ability to contribute to society. No court has concluded otherwise. The remaining two factors, immutability and political powerlessness, are slightly less straightforward.

As to immutability, the relevant inquiry is not whether a person could, in fact, change a characteristic, but rather whether the characteristic is so integral to a person’s identity that it would be inappropriate to require her to change it to avoid discrimination. Accord Wolf, 2014 WL 2558444, at *28; see also Griego v. Oliver, 2014-NMSC-003, 316 P.3d 865, 884 (N.M. 2013). For example, strictly speaking, a person can change her citizenship, religion, and even gender. Legislative classifications based on these characteristics nevertheless receive heightened scrutiny because, even though they are in a sense subject to choice, no one should be forced to disavow or change them. That is, these characteristics are “an integral part of human freedom” entitled to constitutional protection, as is sexual expression. Lawrence, 539 U.S. at 577. …

Finally, the Court finds that homosexual persons are “politically powerless” within the constitutional meaning of this phrase. In discussing this factor, the Second Circuit noted: “The question is not whether homosexuals have achieved political influence and success over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful discrimination.” Windsor, 699 F.3d at 184. Indeed, if the standard were whether a given minority group had achieved any political successes over the years, virtually no group would qualify as a suspect or quasi-suspect class. A more effective inquiry looks to the vulnerability of a class in the political process due to its size or political or cultural history. See Wolf, 2014 WL 2558444, at *29. Under this inquiry, Kentucky’s laws against homosexual persons are “Exhibit A” of this powerlessness.

With gay people identified as a quasi-suspect class, Judge Heyburn ruled that the state of Kentucky was burdened with proving that its same-sex marriage ban is substantially related to an important governmental objective. And here’s where we get to the really juicy part, because Judge Heyburn then went on to say that Kentucky’s ban on same-sex marriage would not even stand up to any level of scrutiny. “Rational basis review, while deferential, is not ‘toothless,’” Heyburn noted, before tearing into the state’s “illogical and even bewildering” attempts to justify Kentucky’s marriage ban:

The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation- based arguments have not succeeded in this Court, see Bourke, 2014 WL 556729, at *8, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.

These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1291 (N.D. Okla. 2014) (“Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non- procreative couples) are included.”). The Court finds no rational relation between the exclusion of same-sex couples from marriage and the Commonwealth’s asserted interest in promoting naturally procreative marriages.

The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence” are at best illogical and even bewildering. These arguments fail for the precise reasons that Defendant’s procreation argument fails.

Numerous courts have repeatedly debunked all other reasons for enacting such laws. The Court can think of no other conceivable legitimate reason for Kentucky’s laws excluding same-sex couples from marriage.

The State tried to anticipate one anti-gay argument that courts elsewhere have slapped down by asserting that just because oppposite-sex couples may not be able to procreate or may chose not to, doesn’t mean that it can’t deny marriage licenses to same-sex couples because they can’t procreate. Judge Heyburn agreed that this inconsistency doesn’t automatically fail a rational-basis rule. “However, that Kentucky’s laws do not deny licenses to other non- procreative couples reveals the true hypocrisy of the procreation-based argument,” he countered.

More importantly, the imperfect line-drawing argument assumes incorrectly that the Court bases its ruling on a comparison between same-sex couples and other non-procreative couples. On the contrary, this Court bases its ruling primarily upon the utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest. Any relationship between Kentucky’s ban on same-sex marriage and its interest in procreation and long-term economic stability “is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, 473 U.S. at 446.

Judge Heybourn concluded his ruling by noting both reaction to his earlier ruling requiring Kentucky to recognize same-sex marriage performed outside the state and the evolving legal landscape since his earlier decision:

Since this Court’s Bourke opinion, the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry. …With this opinion, this Court joins their company.

Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.

The Court’s holding today is consistent with Bourke, although it requires different relief. The ability to marry in one’s state is arguably much more meaningful, to those on both sides of the debate, than the recognition of a marriage performed in another jurisdiction. But it is for that very reason that the Court is all the more confident in its ruling today.

What Does the Hobby Lobby Decision Mean For LGBT People?

Jim Burroway

June 30th, 2014

Today, the United States Supreme Court ruled that Hobby Lobby and other closely held corporations and family-owned businesses may not be compelled under the Affordable Care Act (ACA) to provide contraception coverage as part of their employees’ health plan if doing so would violate the company’s sincerely-held religious beliefs under the Religious Freedom Restoration Act (RFRA). I can sort of understand how a family that owns a family-owned business can hold strong religious beliefs, but I’m still unclear how that applies to public corporations, not matter how closely owned it may be. (Did Hobby Lobby’s corporate charter have to undergo baptism by immersion, or would sprinkling do?) But at any rate, that is now the law of the land, and it has LGBT-rights advocates on edge because it may be an opening toward allowing companies to deny spousal benefits to same-sex couples, whether it is health benefits, medical leave, etc. It will probably take several more lawsuits and several more rulings before we have a clearer picture of how broad or narrow this ruling will actually turn out to be. Writing for the majority, Justice Samuel Alito tried to cage the ruling this way (PDF: 512KB/95 pages):

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

The federal government has expressed its compelling interest in prohibiting racial discrimination through the Civil Rights Act of 1964 and several other laws promulgated by Congress and regulations by the Executive branch. Some states have anti-discrimination laws that cover sexual orientation, and a subset of those also cover gender identity. Those laws may provide some protections at the state level since the RFRA applies only to federal law, but it remains an inconsistent patchwork that varies state to state. Meanwhile, Congress has long failed to pass the Employment Non-Discrimination Act and prior anti-discrimination proposals dating back to the 1970s. In fact, several LGBT-rights organizations are now dropping their support for ENDA because it would provide broad religious-based exemptions similar to the Arizona “Religious Freedom” bill that Gov. Jan Brewer vetoed this year. So since the federal government has not identified discrimination on the basis of sexual orientation or gender identity as a compelling interest, it would seem to me that LGBT people will be made particularly vulnerable because of this decision. The principle dissent, written by Justice Ruth Bader Ginsburg, agrees:

Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc ., 256 F. Supp. 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, 377 F. 2d 433 (CA4 1967), aff ’d and modified on other grounds, 390 U. S. 400 (1968); In re Minnesota ex rel. McClure, 370 N. W. 2d 844, 847 (Minn.1985) (born-again Christians who owned closely held, for profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” (internal quotation marks omitted)), appeal dismissed, 478 U. S. 1015 (1986); Elane Photography, LLC v. Willock, 2013–NMSC–040, ___ N. M. ___, 309 P. 3d 53 (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. ___ (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine . . . the plausibility of a religious claim”?

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” Ibid. The Court, I fear, has ventured into a minefield by its immoderate reading of RFRA.

I think it’s noteworthy that Alito addressed the first objection in Ginsburg’s dissent concerning racial discrimination, but not the other examples. SCOTUSblog noticed that omission as well:

With respect to implications for other kinds of religious-based discrimination, the Court writes that racial discrimination in hiring will not be permitted under RFRA because “The Government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal.” Note that this leave open the question of whether the Government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation.

Former Arizona AG op-ed in support of equality

Timothy Kincaid

June 25th, 2014

Grant Woods, a Republican, was the Attorney General of Arizona from 1991 through 1999. Today he shares his views with the Arizona Republic:

I had the honor of serving as Arizona’s attorney general from 1991 to 1999. If I were serving in that role today, I would make the case that our state’s ban on same-sex marriage is unconstitutional.

As Supreme Court Justice Anthony Kennedy wrote in the Windsor decision, DOMA’s ban on same-sex marriage “violates basic due process and equal protection principles.” I agree with the Supreme Court ruling and believe the same law and principles apply to Arizona’s ban.

Also in agreement are the judges who have struck down marriage bans in other states. For example, Judge John E. Jones III, a Republican appointed by President George W. Bush, wrote in his decision striking down Pennsylvania’s ban, “Some of our citizens are made deeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibition constitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection.”

Equality is not only our founding principle, but also the core of the political and legal convictions of Americans across the political spectrum. Throughout our history, Americans, both famous and forgotten, have fought to ensure that we live up to our ideals.

Meanwhile down in Louisiana

Timothy Kincaid

June 25th, 2014

Today Judge Martin Feldman (a Reagan appointee) was expected to rule on whether same-sex marriages conducted in other states should be recognized by the state of Louisiana. He did not. Rather, he said that he wanted to determine whether the state could ban same-sex marriages at all. (nola)

After hearing more than an hour of argument, only on the question of whether Louisiana must recognize same-sex marriages from other states, Feldman told attorneys and a packed courtroom he wants to address the pending legal questions in one ruling, rather than decide the disputes in a “piecemeal” fashion. That means attorneys must file more legal briefs with the court during the next month. Feldman might hear oral arguments.

Sue Collins endorses marriage equality

Timothy Kincaid

June 25th, 2014

sue collins
Senator Susan Collins (R – Maine) has announced that she supports marriage equality. (Bangor Daily News)

“A number of states, including my home state of Maine, have now legalized same-sex marriage, and I agree with that decision,” Collins said in response to a question from the BDN.

This shocks exactly no one. Collins has been a long-time ally of the community and was instrumental in overturning the ban on open service in the military.

She joins only three other GOP Senators in openly supporting marriage equality: Senators Rob Portman of Ohio, Mark Kirk of Illinois and Lisa Murkowski of Alaska. It is, nevertheless, an important addition and a step in the long road of changing the position of the Republican Party.

It will be interesting to see the response. I suspect the usual loons in the anti-gay special interest groups will whine, but I’m betting that no one in the party leadership is in anyway critical of Sen. Collins.

We are winning. Today was a good day.

Boulder Colorado starts issuing marriage licenses

Timothy Kincaid

June 25th, 2014

Utah is not, of course, the only state impacted by the decisions of the Tenth Circuit Court of Appeals. Also in the Tenth Circuit are Colorado, Kansas, New Mexico, Oklahoma, and Wyoming.

And the Boulder County Clerk and Recorder, Hillary Hill, has decided that this decision gives her the authority to act. (Fox 31)

“Because 10th Circuit decisions are binding in the State of Colorado, the precedent established by Kitchen v. Herbert is applicable to the same-sex marriage ban contained in the Colorado Constitution,” said a statement from the Clerk and Recorder’s Office.

“Couples across Colorado have been waiting a long time to have their right to marry the person they love recognized,” said Hall in a statement. “I want to act immediately to let them carry out that wish.”

The decision of the Tenth Circuit was stayed, and likely the move by Hall will be halted. But it will be fascinating legal drama in the meanwhile.

Add Indiana to the list

Timothy Kincaid

June 25th, 2014

KWQC

U.S. District Judge Richard Young ruled Wednesday that the state’s ban violates the U.S. Constitution’s equal-protection clause in a mixed ruling involving lawsuits from several gay couples.

Details are a bit sketchy so far, but the ruling is here.

Update: Here are the details.

Methodists reinstate Schaefer

Timothy Kincaid

June 24th, 2014
Rev. Frank Schaefer with his son Tim

Rev. Frank Schaefer with his son Tim

Last year a regional court of the United Methodist Church expelled Frank Schaefer from ministry.

Schaefer was a pastor of a small church in rural Pennsylvania when he officiated at his son’s wedding to another man. He didn’t make a big statement about it, and no one seemed to know or care until years later. But right before the statute of limitations on violations of the church rules ran out, a disgruntled parishioner complained to his Bishop and Schaefer was brought on trial.

There a jury of 13 pastors found him guilty of “conducting a ceremony that celebrates same-sex unions” and “disobedience to order and discipline of the Methodist Church.” They sentences him to a 30 day suspension, and insisted that he promise to never officiate at same-sex weddings again.

But Schaefer has two more gay children and refused to promise to reject their future marriages, and so he was defrocked.

This didn’t actually decrease Schaefer’s ministry. He was invited by serve in a quasi-pastoral role by the Los Angeles Diocese and has been in much demand around the country as a guest minister in Methodist (and other) Churches who wished to show support for inclusion and equality.

And Schaefer has never agreed that his action was contrary to the spirit of his faith. Nor has he taken the ruling lying down. Schaefer appealed the decision to a higher Methodist court, insisting that a failure to promise is not a punishable offense. The court agreed (NYTimes)

A United Methodist Church appeals committee — a nine-member panel made up of laypeople and clergy members — said Tuesday that it had decided to overturn the ouster of the Rev. Frank Schaefer, who with three gay children and a determination to celebrate their relationships has become an unexpected champion of gay men and lesbians in church life.

The panel deemed the defrocking to be an illegitimate effort to punish Mr. Schaefer for his refusal to promise not to preside at another same-sex wedding.

The decision is likely less based in the language of the Book of Order and more in the increasing refusal of American Methodists to be held to the anti-gay votes of international members of the global denomination. And it does suggest that at some point the US’ second largest Protestant denomination was schism.

The next assembly of the United Methodist Church is in 2016. Supporters of gay equality will push hard for a change in the denomination’s rules, and conservatives will continue to rally support from Asia and Africa in hopes of holding to anti-gay positions. It seems increasingly unlikely that anyone can stand outside the debate or not select sides. And irrespective of the outcome, a separation seems likely.

As for Schaefer, now that he has been “refrocked” he will be serving as pastor of a UMC church in Santa Barbara, California.

Ninth Circuit confirms heightened scrutiny

Timothy Kincaid

June 24th, 2014

In January, a drug pricing dispute between GlaxoSmithKline and Abbott Laboratories had an unexpected consequence; as part of its ruling, the Ninth Circuit Court of Appeals determined that laws which discriminate on the basis of sexual orientation are to be held to heightened scrutiny. This was based on principles implied – though not directly stated – in the Windsor ruling.

What this means in layman’s terms is that any law which discriminates against gay people is viewed askance, and the lawmakers need to bring a damned good reason as to why it doesn’t violate the US Constitution’s promise of fairness and equal treatment. Something tangible and provable and measurable. Things like “promoting the family” or “tradition” or fears about what might possibly happen are simply not going to fly anymore.

And there are few laws which can stand up to such scrutiny, certainly not the vague and ambiguous assertions presented in opposition to marriage equality. In fact, based on the decision, the Republican Governor of Nevada ceased defending that state’s anti-gay marriage ban, finding the conclusion to be pre-determined and any further defense to be a waste of public resources.

Noting the importance of this ruling, Abbott Laboratories, the losing party in the lawsuit, announced that they would not appeal, fearing that the Supreme Court might reverse this decision. They preferred a multi-million dollar loss rather than risk a hasty overruling.

This seemed to have sealed the decision for all western states, those in the Ninth Circuit.

However, in a rare move, one of the justices on the Ninth Circuit challenged the Court’s ruling. Justice Diarmuid O’Scannlain called for an en banc ruling, a hearing by eleven of the circuit’s 45 judges, to determine whether indeed the idea that anti-gay discrimination merits heightened scrutiny could be found in the Windsor ruling.

And now the results are in. The majority of the justices on the Ninth Circuit upheld the court’s ruling. In fact, only two went on record as agreeing with Justice O’Scannlain.

This appears to mean that the issue is – for the time being – determined. Within the Ninth Circuit, anti-gay laws must meet a higher level than most laws. And, in practical terms, this pre-determines the Ninth’s response to appeals to rulings overturning anti-gay marriage bans.

It may be a matter of hearing, but based on heightened scrutiny, it is nearly impossible for anti-gay legislators, lawyers, or activists do defend such bans.

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