DENVER, CO – JUNE 26: Stephanie Santorico, left, and her wife, Diane Santorico celebrate moments after they married on the west steps of the Colorado State Capitol during a rally celebrating the Supreme Court’s ruling giving same-sex couples the right to marry nationwide. June 26, 2015. (Photo by Andy Cross/The Denver Post)
A proposed ballot initiative filed Thursday would redefine same-sex marriages in Colorado as civil unions. A second initiative would allow wedding-related businesses opposed to gay marriage to hire a contractor to serve the couples.
Dave Montez, the executive director of One Colorado, the state’s largest advocacy group for gay rights, said the initiatives are an attempt to undo the Supreme Court decision.
“This initiative is an unnecessary attempt to radically redefine all marriages in Colorado in order to undermine the Supreme Court’s recent decision,” he said. “Even before last week’s Supreme Court decision, the 37 states that already had marriage equality had proven that when loving, committed, gay couples share in the freedom to marry, families are helped and no one is hurt.”
He added, “The freedom to marry is a precious, fundamental right that belongs to all.”
Both ballot questions were filed by Gene Straub and D’Arcy Straub, both of Littleton. D’Arcy Straub is a lawyer. He could not be reached Friday, and his voice message said he was on a mountain-climbing trip. Gene Straub did not immediately return a phone call.
State Rep. Dominick Moreno, D-Commerce City, said the point of the gay marriage amendment is moot.
“I think this is more of a political statement than anything,” said Moreno, who serves on the Colorado House Lesbian, Gay, Bisexual and Transgender Caucus. “You can’t override the Supreme Court, especially at the state level.”
Montez called the proposal “mean-spirited, vague and poorly written.”
“Allowing business owners to refuse service to customers whom they dislike, or disapprove, will open a can of worms and make it more difficult to enforce Colorado’s laws that ensure businesses are open to everyone,” he said.
The proposed constitutional amendment states, “A marriage is recognized as a form of religious expression of the people of Colorado that shall not be abridged through the state prescribing or recognizing any law that implicitly or explicitly defines a marriage in opposition or agreement with any particular religious belief.”
Any same-sex couple married before the proposed amendment takes effect or in another state would have their relationship redefined as a civil union, which carries some but not all of the legal rights of marriage.
The proposed change to state law on weddings would require the state to maintain a list of businesses willing to provide services to LGBT couples, so that those opposed could contract with them.
“That doesn’t change anything,” Moreno said. “You’re still treating people differently based on who they are.”
Legislation that resulted from two Denver-area bakers refusing to make cakes — a refusal by a baker to make cake for a gay couple, and another baker who refused to make an anti-gay cake — prompted a bill in the last legislative session to allow bakers or others to refuse service if the request violated their religious values.
The Straubs are scheduled to meet with the state Legislative Council staff on July 16 at the state Capitol to review the language of the proposals.
“Gay marriage,” as a term, is dead, and we should all stop using it. Ditto for “same-sex marriage.” As of Friday, June 26, with the majority decision in Obergefell v. Hodges, the Supreme Court ruled that marriage is a right for all Americans and there aren’t two different kinds. Generations will grow up calling marriage, whether between two men, two women or a man and a woman, the same thing: marriage. That’s a great and amazing effect of the ruling, and the implications are enormous for young people, who won’t see any delineation in the future.
But this is also where things get very complicated and even dangerous, and where we have to pay attention more than ever. When anti-equality conservatives can’t blatantly use bigotry or even name a group they’re targeting because of a profound cultural shift in favor of acceptance, they resort to the dog whistle. And we’ve seen this time and again around issues of race and gender as voting rights, affirmative action, and pay equity are attacked using coded language, while the more naked bigotry still plays out on the streets in the form of violence that coded language and symbols often still embolden.
“Religious liberty” is one term we’ve seen enemies of equality trotting out as code for the supposed threat of LGBT rights. I watched them testing it out over the past several years at gatherings like the Conservative Political Action Conference and the Values Voters Summit. It will be a mantra moving forward, and they’ll surely come up with more.
I’ve seen too many self-assured articles in recent days claiming that the battles over abortion rights and even gun rights can’t be compared to the battle over gay marriage in discussing how things will proceed. Marriage as a right for gays, these arguments contend, will end as a debate, because opponents can’t claim that a right of another is infringed upon by it, or that there’s any harm to anyone else, as they do with abortion (pointing to the fetus or the woman herself) or gun rights (pointing to gun owners).
But I’ve found these arguments to be naïve and, more so, apples-and-oranges comparisons, particularly when they imply that the battle over LGBT rights and acceptance itself is finished while the battle over women’s rights continues. Yes, marriage as a right itself cannot be chipped away at or restricted in the way abortion has been. That’s true even though we’re seeing judges and clerks resisting marriage equality in these first days after the ruling. Every couple — gay, lesbian, bisexual or straight — must be able to marry after the high court’s ruling, and this will work its way out. States and localities that have resisted are already falling in line.
But just because gays and lesbians have the right to marry, does that mean that a particular county clerk or judge must perform it if it offends his or her religious convictions, and if that couple could go to some other clerk who would officiate over their wedding? A few weeks ago North Carolina legislators said “no” and passed a billoverriding the governor’s veto, allowing public officials to opt out of performing certain marriages based on their religious beliefs. The law doesn’t mention gays or gay marriage, but it allows discrimination based on “sincerely held religious objection.” Sure, this can’t apply to federally and state-protected groups, such as people of certain faiths or races, but LGBT people are not a protected group, federally or in the state of North Carolina, so the question is open. On the same day Michigan’s GOP governor signed a law allowing state-funded adoption agencies to turn away gay couples — who now have the right to marry in the state — based on the agencies’ religious beliefs. Again, the law doesn’t name gays and lesbians as a group, but clearly it was meant to apply to them, especially since it can’t apply to other protected groups, and gays and lesbians aren’t protected in Michigan.
And how do gays and lesbians actually get those protections in the 29 states where they don’t have them, even in pro-gay localities in those states where they might find support, since there are no federal protections? Well, Arkansas, for one, made that pretty difficult, passing a law last spring that anti-gay forces saw as a model, a law that doesn’t allow cities or towns to pass anti-discrimination ordinances protecting any group that doesn’t already have statewide protections. Again, the law doesn’t single out gays as a group; it uses wording that could allow it to stand up in court. These are the ways that anti-gay conservatives will continue to attempt to inhibit or restrict LGBT rights. And I’m sure they’re crafting others right now.
Justice Kennedy’s powerfully written majority decision in Obergefell, like those decisions he’s written in the past that support gay rights, doesn’t make it clear just how far-reaching the marriage decision is with regard to other rights, even as it talks much about dignity and equal protection under the law. As constitutional scholar Adam Winkler and others have noted, the court did not use “heightened scrutiny,” the highest standard with regard to discrimination, in its decision, though doing so would have done much to insure that cases that seek to sanction anti-LGBT discrimination aren’t even brought to court. Kennedy’s decision will likely be interpreted in a variety of ways by lower court judges, including those who want to allow for discrimination in the name of “religious liberty.”
The Hobby Lobby decision, which Kennedy joined, should give us all pause, as the court is far from abandoning the notion that discrimination based on religion is allowable. As Paul Waldman noted, Kennedy, in his marriage equality decision, referenced religious liberty, again with words that are open to interpretation:
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
That means the rights of gay, lesbian, bisexual and transgender people beyond marriage will continue to be fought in the courts — including back at the Supreme Court, where we hope Justice Kennedy, if he hasn’t been replaced by a more conservative justice appointed by a Republican president, will be clearer on the issue, and in the state legislatures and Congress.
And we’ve got to stop the apples-and-oranges comparisons between abortion rights and LGBT rights. Abortion is just one among many rights that women have obtained, but one that is and has been in contention for a long time, as is pay equity, rape culture and others. But issues like suffrage or anti-discrimination protections for women are not. It’s unlikely that we’ll see any attempt to take away the vote for women anytime soon, just as it’s unlikely that marriage equality will ever go away now that it’s here. The fact is that women and minorities have secured some rights that are here to stay — different for each group — while other rights are still elusive or being stripped away. There is always a backlash to equality, and it could last a very long time, as bigotry doesn’t die easily. Like every group, LGBT people have to remain vigilant.
Pooja Mandagere, left, and Natalie Thompson outside the Supreme Court following the 5-4 ruling by the court Friday. Credit Doug Mills/The New York Times
WASHINGTON — In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a right to same-sex marriage.
Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.
The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.
Justice Kennedy said gay and lesbian couples had a fundamental right to marry.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”
“It would misunderstand these men and women to say they disrespect the idea of marriage,” Justice Kennedy said of the couples challenging state bans on same-sex marriage. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Chief Justice John G. Roberts Jr., in a dissent joined by Justice Antonin Scalia and Clarence Thomas, said the Constitution had nothing to say on the subject.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
In a second dissent, Justice Scalia mocked Justice Kennedy’s soaring language.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”
As Justice Kennedy finished announcing his opinion, several attendees seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.
Justice John Paul Stevens, who retired in 2010, was on hand for the decision and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced.
Supporters of same-sex marriage gathered outside the Supreme Court on Friday. Credit Doug Mills/The New York Times
As in earlier civil rights cases, the Supreme Court had moved cautiously and methodically, laying careful judicial groundwork for a transformative decision.
As late as October, the justices ducked the issue, refusing to hear appeals from rulings allowing same-sex marriage in five states. That decision delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.
Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.
The court did not agree to resolve the issue for the rest of the nation until January, in cases filed by gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee. The court heard extended arguments in April, and the justices seemed sharply divided over what the Constitution has to say about same-sex marriage.
Lawyers for the plaintiffs said their clients had a fundamental right to marry and to equal protection, adding that the bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.
The Obama administration, which had gradually come to embrace the cause of same-sex marriage, was unequivocal in urging the justices to rule for the plaintiffs.
Supporters of same-sex marriage gathered in front of the Supreme Court on Tuesday as the justices prepared to hear arguments on the issue. Credit Stephen Crowley/The New York Times
WASHINGTON — The Supreme Court justices on Tuesday clashed during arguments on whether there is a constitutional right to same-sex marriage. The session is the last public step before a decision that will resolve one of the great open questions in modern constitutional law.
Until recently, the court has been cautious and halting in addressing same-sex marriage, signaling that it did not want to outpace public support and developments in the states. Now, though, a definitive decision will probably be handed down in about two months.
At the start of Tuesday’s arguments, Chief Justice John G. Roberts Jr. said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”
Justice Anthony M. Kennedy, who many consider the likely swing vote on the case, weighed in with skepticism as the advocates for gay marriage made their case. He said the definition of marriage “has been with us for millennia.”
“It’s very difficult for the court to say, ‘Oh, we know better,’ ” he said.
Justice Antonin Scalia echoed Justice Kennedy’s concerns about the weight of history and the relatively recentness of gay marriage. About halfway through Mary L. Bonauto’s argument for the recognition of a right to same-sex marriage, Justice Scalia asked whether she knew of “any society prior to the Netherlands in 2001 that permitted same sex marriages?” He repeated Justice Kennedy’s observation that the definition of marriage as between a man and a woman has been in effect “for millennia.”
Later, when the lawyer for the opponents of gay marriage began arguing, Justice Stephen G. Breyer forcefully questioned why states should be able to exclude gay people from marriage. “Marriage is open to vast numbers of people,” he said, adding that same-sex couples “have no possibility to participate in that fundamental liberty. And so we ask why.”
Several of the more liberal justices also pressed the opponents of gay marriage to say how, exactly, extending marriage to same-sex couples could harm heterosexual couples who want to marry.
Justice Ruth Bader Ginsburg was particularly blunt on that point. “You are not taking away anything from heterosexual couples” if the state allows gay couples to marry,” she said.
Justice Sonia Sotomayor seemed equally unpersuaded, asking how denying marriage to same-sex couples strengthens marriage for heterosexual couples.
John J. Bursch, the lawyer for the opponents of same-sex marriage, argued in response that if people no longer believe that “marriage and creating children have anything to do with each other,” there will be more children born out of wedlock, which he said is a problem for society.
In 2013, the justices ducked the question that they will now consider. At the time, however, just 12 states and the District of Columbia allowed gay and lesbian couples to marry. Similarly, the court in October refused to hear appeals from rulings allowing same-sex marriage in five states.
That decision immediately expanded the number of states with same-sex marriage to 24, up from 19. The number has since grown to at least 36, and more than 70 percent of the nation lives in states that allow same-sex marriage.
The justices might have been content to remain on the sidelines. But a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati, forced their hand. The Sixth Circuit upheld same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee, saying that voters and legislators, not judges, should decide the issue.
Anita Blanchard, left, and Diane McMullin prepare dinner in their Durango home. They say they have been married in their hearts for 21 years. They were finally able to sign legal paperwork Oct. 9 to make it official.
Marriage equality has been decades in the making for local same-sex couples, but when it came to Colorado in October, they met the news with surprise and excitement.
Chris Gonzalez, left, and Nancy Fritz, hold a marriage license they got in October at the La Plata County Clerk & Recorder’s Office. JERRY McBRIDE/Durango Herald
The U.S. Supreme Court declined to hear appeals on same-sex marriage bans in five states Oct. 6, opening the door to gay marriage in Colorado.
Across the country, the scales seem to be tipping in favor of marriage equality. Same-sex marriage is legal in more than 30 states with judges striking down bans in Mississippi and Arkansas at the end of November.
In Texas, the county clerk for the San Antonio area said he was ready to start issuing licenses Wednesday, pending a decision by the judge for the western district of the state, according to the San Antonio Express-News.
The national trend toward equality for gay couples is one locals appreciate.
“I think we’re winning the battle little by little,” said Patrick Valentine, who legally married his partner Oct. 8.
In May 2013, civil unions for same-sex couples became legal across Colorado.
“It was a step up, and it was good. It was not the same as getting married,” said Chris Gonzalez, who married her partner of 16 years in October.
Gonzalez and her wife, Nancy Fritz, went to the La Plata County Clerk & Recorder’s Office to get the paperwork for their marriage license Oct. 22. But when they entered the building, they got so excited at the prospect of finally being married that they signed the paperwork on the spot. It felt like a miracle, they said.
“We didn’t think we would ever see it,” Fritz said.
Durango residents Anita Blanchard and Diane McMullin said they have been married in their hearts for 21 years and signed the legal paperwork Oct. 9 to make it official in the eyes of the state. After decades of commitment, they were happy to have the same legal protections as straight couples.
“It has been a hard road when you look back on it,” McMullin said.
She realized that she was different as a child and later feared being kicked out of a rental home or losing her job because of her orientation.
It wasn’t until 1991, when she was in her early 50s, that she felt truly comfortable being open with everyone about her orientation.
“That’s a long time to hide something,” McMullin said.
The next year, she fought a state constitutional amendment, which would have prevented people in the lesbian, gay, bisexual and transgender community from claiming they were discriminated against, among other things.
Blanchard and McMullin said they were heartened when the amendment failed in La Plata County. The law passed statewide, but was later blocked by the courts.
They have long felt at home here. Even in the 1970s, Blanchard felt as though she had found allies in Durango.
Other local couples had very different personal journeys. Gonzalez and Fritz realized that they were gay after failed marriages.
For Gonzalez, it was simple.
“I would never marry a man again,” she said.
Fritz had an epiphany at a Parents, Families and Friends of Lesbians and Gays meeting. She decided to go after her daughter came out as a lesbian. Sitting there seeing a loving lesbian couple, something changed within her.
Two years later, she met Gonzalez, and the connection seemed natural.
“We understand each other better because we’re both women,” she said.
Valentine, who has been with his husband, Lawrence Broadway, for 15 years, had a similar experience. Until he was 50, he tried to live what he thought was an upstanding heterosexual life and worked at a major corporation.
“There was no place to come out without being ostracized,” he said.
When he came out, he found life far more refreshing. Now, years later, he sees the country shifting toward enshrining full equality.
“It’s time for everyone to have a share at a piece of the happiness pie,” he said.
Newlyweds and their friends toast to their recently completed wedding ceremonies at St. Louis City Hall on Wednesday, June 25, 2014. Four same-sex couples were married in separate ceremonies on Wednesday. Photo By David Carson, firstname.lastname@example.org
Denying Missouri’s gay couples the opportunity to marry is unconstitutional, a judge ruled this afternoon.
As a result, St. Louis Circuit Judge Rex Burlison said in his decision, marriage licenses can be issued throughout Missouri beginning today.
“The Court finds and declares that any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes, is legally entitled to a marriage license,” Burlison wrote.
He said that the Missouri Constitution violates the Equal Protection Clause and Due Process Clause of the 14th Amendment to the U.S. Constitution.
Burlison’s ruling comes more than four months after four couples were married at St. Louis City Hall, even though there is a 10-year-old state constitutional amendment defining marriage as between one man and one woman.
The act of defiance, choreographed with the support of Mayor Francis Slay and then-Recorder of Deeds Sharon Carpenter, led Attorney General Chris Koster to file an injunction preventing more marriage licenses from being issued to same-sex couples.
It’s the second major victory in the state for same-sex marriage. Last month, a Kansas City judge ruled that marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state. The decision by Circuit Judge J. Dale Youngs was the first by any judge affirming same-sex marriage in Missouri. That ruling affected more than 5,400 Missouri couples.
In both cases, an attorney from Koster’s office defended the state constitution. Koster supports same-sex marriage but said he has a legal responsibility to defend Missouri law. However, after losing the Kansas City case, Koster declined to appeal, saying the state is obligated to honor contracts entered into other states.
“Missouri’s future will be one of inclusion not exclusion,” Koster said. It was not immediately clear, however, whether Koster would appeal today’s ruling. Gay rights advocates expect Koster will ask the Missouri Supreme Court to make a final ruling.
“This is a positive move forward for loving same-sex couples in the City of St. Louis,” said Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri. “It is also a win for families throughout Missouri as another discriminatory obstacle is lowered.”
St. Louis City Counselor Winston Calvert said issuing the four marriage licenses in June “pushed the envelope on behalf of families throughout the State of Missouri who now can enjoy the dignity, stability, and security of a legal marriage.”
In arguments before Burlison on Sept. 29, Calvert told the judge that marriage is a fundamental right of all citizens, but the constitutional amendment “categorically denies that right to an entire class of people.”
The landscape of same-sex marriage has changed dramatically since June 2013. That’s when the U.S. Supreme Court struck down a key part of the Defense of Marriage Act. That ruling allowed gay couples who live in states where their marriages are legally recognized to receive the same federal benefits as married opposite-sex couples.
Then last month, the Supreme Court rejected appeals from five states seeking to preserve their bans. There are now 32 states plus the District of Columbia that issue marriage licenses to same-sex couples.
Marc Solomon, national campaign director for Freedom to Marry, said Burlison’s ruling “is very much consistent with the way judges have been ruling around the country since the Supreme Court took up the issue.”
The ruling today marks 49 successful challenges to same-sex marriage laws across the country, compared to three losses, Solomon said.
“There has just been incredible momentum,” he said.
On Wednesday afternoon, St. Louis Recorder of Deeds Jennifer Florida began issuing marriage licenses to same-sex couples. Lilly Leyh and Sadie Pierce were first in line.
“Hi. I would like to buy a marriage,” Pierce said to a cashier at the recorder’s office.
Leyh and Pierce said they knew the judge had the case under consideration. When they heard about the ruling they rushed to St. Louis City Hall to get a license. Leyh, 25, and Pierce, 27, met while studying at Washington University.
“We were really hoping this would happen,” Leyh said.
The normally staid and quiet recorder’s office took on a celebratory tone as more couples arrived on late Wednesday afternoon. A banner reading “First in Marriage” and “#ShowMeMarriage” was hung on an office wall this afternoon. Mayor Francis Slay appeared alongside several other well-wishers to congratulate them.
“We acted because it was the right thing to do,” said Slay, who has gay siblings. “Cities are strengthened by their families. I want St. Louis to be the sort of diverse and open place in which all families – gay and straight – choose to live, be creative, and build businesses. This is a human rights issue, a quality of life issue, and an economics issue. Judge Burlison certainly got it right.”
Florida said issuing marriage licenses to gay couples was a moment she had been anticipating.
“We’ve been given the green light to begin issuing marriage licenses so all can marry the person they love.”
WASHINGTON — The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.
In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.
In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.
The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”
“As I would read their briefs,” Mr. Campbell said of his dueling adversaries, “I would write in the margin: ‘that’s an implicit dig at this case’ and ‘that’s a dig at that case.’ ”
Evan Wolfson, the president of Freedom to Marry and one of the architects of the political and legal push for same-sex marriage, said there would be plenty of glory to go around should his side prevail. A victory, after all, he said, would be the culmination of a joint effort that was decades in the making.
“Every attorney in the world, it seems, is now eager to be the one that stands before the court in the freedom to marry case, but what really counts is the compelling collective presentation we will all make, no matter which case it is,” Mr. Wolfson said.
The lawyers challenging the same-sex marriage bans are confident they will win in the Supreme Court, which is why they have all urged the justices to hear their cases even though they had won in the lower courts.
The justices will consider whether to hear one or more of the cases at their first private conference of the new term, on Sept. 29, and they may announce their choice or choices in the following weeks. If they do, they could hear arguments this winter and announce a decision by June.
The arguments for and against same-sex marriage are by now familiar to the justices, who considered but sidestepped them in a case from California last year.
Theodore B. Olson, a former United States solicitor general in the administration of George W. Bush, argued that case for the challengers of the California ban, and he is now one of the lawyers challenging Virginia’s ban. As before, he is joined by David Boies, his adversary in Bush v. Gore, the 2000 decision that delivered the presidency to Mr. Bush.
On the phone the other day, Mr. Olson listed the reasons to pick his case. It includes a class action, he said. It presents not only the issue of the right to marry but also that of whether states must recognize same-sex marriages performed elsewhere.
Virginia, he pointed out, was home not only to several of the giants who wrote the Constitution but also to Mildred and Richard Loving, who successfully challenged the state’s ban on interracial marriage in Loving v. Virginia in 1967.
“It’s pretty potent stuff,” he said of his case’s connection to another civil rights movement.
Mr. Olson was quick to add that the ultimate goal was victory, whatever the vehicle. “We have great respect for the lawyers in the other cases,” he said, “and we would be quite supportive of them if that’s what the justices want to do.”
Mr. Smith told the justices that “the collective experience of counsel” in the two Virginia challenges mattered, as their groups “have litigated every major gay rights case decided by this court” from 1996 on.
Independent observers said a second case, from Utah, is the leading candidate. “Maybe if they want to be neutral they’ll pick Utah just because they were first,” said Roberta A. Kaplan, who successfully argued last year’s challenge to a key provision of the federal Defense of Marriage Act.
The Utah case, Herbert v. Kitchen, No. 14-124, was the first to strike down a state marriage ban after Ms. Kaplan’s victory. It is also much less complicated than the one from Virginia, which features threeseparatepetitions from government officials seeking review of the appeals court’s ruling. One of the petitions, from the state’s attorney general, seeks to have the ban overturned. The others, from court clerks, seek to have it upheld.
There are two sets of plaintiffs, too. Mr. Olson represents two gay couples. Mr. Smith represents a class of gay couples who seek to marry.
By contrast, lawyers in the Utah case told the court, their case has “just one set of plaintiffs and one set of respondents.”
But Mr. Olson’s brief, in Rainey v. Bostic, No. 14-153, said the complications in his case were a virtue, as “all sides of this important issue would be vigorously represented.” The class-action aspect of the case, he added, would mean “there is no risk that this case would become moot — due, for instance, to the unforeseen end of a couple’s relationship — during the pendency of this appeal.”
“The obvious thing about the Utah case is that it is being defended by state officials,” said Shannon P. Minter, a lawyer with the lesbian rights center. “It’s a very clean vehicle.”
Still, he added, “we’re long past the point where it would matter which case or which lawyer.”
Ms. Bonauto agreed. “Our case is an appropriate case,” she said. “All of the cases are appropriate cases.”
The justices will also consider cases from Indiana, Oklahoma and Wisconsin. In the Oklahoma case, the challengers are represented by Jeffrey L. Fisher, a law professor at Stanford who won a unanimous ruling in June requiring the police to get warrants to search the cellphones of people they arrest.
Mr. Fisher devoted 11 of his brief’s 32 pages to showing that his case was the right choice — or at least that it should be in the mix.
His case, Mr. Fisher wrote, presented only the straightforward question of whether Oklahoma must allow same-sex marriages to be performed in the state. “Some of the plaintiffs from the Utah and Virginia cases, by contrast, raise another claim,” he wrote, that of whether states must recognize marriages performed elsewhere.
Mr. Fisher assured the justices that they would receive “full and focused briefing and argument” on the core issue if they picked his case, Smith v. Bishop, No. 14-136.
Mr. Olson drew the opposite conclusion from the same set of facts. Hearing the Virginia case, he told the justices, would “enable the court to resolve all aspects of the marriage-equality question in a single opinion without leaving lingering questions and uncertainty for lower courts, states and the American public.”
On this, at least, the lawyers in the Utah case agreed. “Piecemeal review risks that litigation will drag on for years,” they wrote.
Yesterday, on the heels of the Judge Richard Posner’s brilliant pro-marriage equality ruling out of the 7th Circuit Court of Appeals, attorneys general from 32 states — three out of every five states in the country — filed two separate briefs with the U.S. Supreme Court urging the justices to rule on same-sex marriage.
The AP reports:
Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a “morass” of lawsuits, but didn’t urge the court to rule one way or another.
Massachusetts Attorney General Martha Coakley wrote that the experience of her state — the first to legalize the freedom to marry — proves that marriage equality strengthens the institution of marriage and helps families. Signing on to Massachusetts’s brief were the marriage equality states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Pennsylvania, Vermont, and Washington.
Colorado’s brief, which was joined by Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia and Wisconsin, says that only the Supreme Court can resolve the question of marriage equality. It also claims, according to the AP, that “without a Supreme Court decision, states defending bans could be liable for huge legal bills from future lawsuits if they are overturned.”
This afternoon, Judge Young sided with the plaintiffs in Bowling v. Pence, the last remaining same-sex marriage case in Indiana. The plaintiffs sued to force the state to recognize their legal same-sex marriages performed elsewhere.
Young ordered the state to stop enforcing all Indiana laws preventing same-sex couples from equal treatment in marriage, allow married same-sex couples to file joint tax returns, and provide the same benefits and services to married same-sex couples as it does to married opposite-sex couples.
Young also reinstated Mike Pence, the state’s Republican governor, as a defendant in the case after previously removing him. Judge Young notes that he initially took Pence off the case because of the governor’s repeated claims that he lacks the authority to control the enforcement of Indiana’s ban on same-sex marriage recognition, and because no law existed explicitly granting the governor such authority.
However, Judge Young writes, actions taken by Pence after the initial ruling reveal that the governor’s position was a “bold misrepresentation”: “Since that time, the Governor issued memoranda, through his attorney, and did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law.”
These actions, Young says, prove that Pence is indeed a proper party to the case.
Judge Young stayed today’s order until the Seventh Circuit Court of Appeals rules in the case, or in any of the other Indiana marriage equality cases.
CINCINNATI (AP) – Three federal judges weighing arguments in a landmark gay marriage hearing Wednesday peppered attorneys on both sides with tough questions, with one judge expressing deep skepticism about whether courts are the ideal setting for major social change and another saying the democratic process can be too slow.
Gay marriage supporters rally on Fountain Square, Wednesday, Aug. 6, 2014, in Cincinnati. Three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati are set to hear arguments Wednesday in six gay marriage fights from four states, Kentucky, Michigan, Ohio and Tennessee. (AP Photo/Al Behrman)
The judges in the 6th U.S. Circuit Court of Appeals considered arguments in six cases from Michigan, Ohio, Kentucky and Tennessee, setting the stage for historic rulings in each state that would put more pressure on the U.S. Supreme Court to decide the issue once and for all. Wednesday’s hearing was the biggest so far on the issue.
The cases pit states’ rights and traditional, conservative values against what plaintiffs’ attorneys say is a fundamental right to marry under the U.S. Constitution.
While questions and comments from two of the judges all but gave away how they’ll rule, one in favor of gay marriage and one opposed, Judge Jeffrey S. Sutton vigorously challenged some of each side’s assertions.
Sutton repeatedly questioned attorneys for the same-sex couples whether the courts are the best place to legalize gay marriage, saying that the way to win Americans’ hearts and minds is to wait until they’re ready to vote for it.
“I would have thought the best way to get respect and dignity is through the democratic process,” said Sutton, a George W. Bush nominee. “Nothing happens as quickly as we’d like it.”
Judge Martha Craig Daughtrey, a Bill Clinton nominee, said that historically, courts have had to intervene when individual constitutional rights are being violated, such as overturning state laws against interracial marriage and giving women the right to vote, pointing out that the latter took decades.
“Do you have any knowledge of how many years I’m talking about, going into every state, every city, every state board of elections, for 70 years?” she said. “It didn’t work. It took an amendment to the Constitution.”
Besides, gay marriage already is legal in more than a quarter of the states, and “it doesn’t look like the sky has fallen in,” Daughtrey said.
Constitutional law professors and court observers say that the 6th Circuit could be the first to uphold statewide bans on gay marriage following an unbroken string of more than 20 rulings in the past eight months that have gone the other way.
They point to Sutton, the least predictable judge on the panel. In 2011, he shocked Republicans and may have derailed his own chances to advance to the U.S. Supreme Court when he became the deciding vote in a ruling that upheld President Barack Obama’s health care law.
If the 6th Circuit decides against gay marriage, it would create a divide among federal appellate courts and put pressure on the U.S. Supreme Court to settle the issue in its 2015 session. The panel did not indicate when it would rule.
Attorneys for each state defended their marriage bans, arguing that any change should come from voters and that same-sex marriage is too new to be considered a deeply rooted, fundamental right.
“The most basic right we have as a people is to decide public policy questions on our own,” said Michigan’s solicitor general, Aaron Lindstrom.
Leigh Latherow, hired by Kentucky Gov. Steve Beshear, told the judges that the state has an economic interest in encouraging heterosexual marriage, which can lead to procreation. And Tennessee Associate Solicitor Joseph Whalen said Tennessee’s law barring recognition of out-of-state gay marriages ensures children are born into a stable family environment.
Attorneys for the same-sex couples said marriage is fundamental for everyone and should not be decided by popular votes.
“These rights are very, very profound,” said Al Gerhardstein, a Cincinnati civil rights attorney representing the Ohio plaintiffs. “A marriage is a significant thing. It’s solemn. It’s precious. This can’t be just subjected to a vote.”
Carole Stanyar, who represents the same-sex Michigan plaintiffs, bemoaned the often slow pace of the democratic process and said she doesn’t see such a change coming to her state any time soon.
“In my state, nothing is happening to help gay people,” she said.
Outside the courthouse, advocates held up banners and signs urging marriage equality. Jon Bradford, 26, of Covington, Kentucky, wore a wedding dress, and his partner, Matt Morris, wore a top hat and formal shirt.
“It’s to make a statement, really,” Bradford said. “We want to be married.”
He said they were hopeful the court will rule in favor of same-sex marriage.
“One day, it’s going to happen,” he said. “You can’t stop love.”
About a dozen opponents prayed the rosary outside the courthouse.
“I’m just praying for God’s will to be done,” said Jeff Parker, 53, from the Cincinnati suburb of Madeira.
Gay marriage is legal in 19 states and the District of Columbia. Other states’ bans are tied up in courts.
Two federal appeals courts have ruled in favor of gay marriage – one in Denver in June and another in Richmond, Virginia, last week. On Tuesday, Utah appealed one of those rulings, asking the U.S. Supreme Court to take up the case and uphold its ban. Oklahoma followed suit Wednesday.
The 6th Circuit is the first of three federal appeals courts to hear arguments from multiple states in coming weeks. The 7th Circuit in Chicago has similar arguments set for Aug. 26 for bans in Wisconsin and Indiana. The 9th Circuit in San Francisco is to take up Idaho’s and Nevada’s bans Sept. 8.