Why ‘Gay Marriage’ Is Dead but the Battle Just Became Much Bigger
“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.
Michelangelo Signorile’s new book, It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality, is published by Houghton Mifflin Harcourt.
Source: The Huffington Post Blog, “Why ‘Gay Marriage’ Is Dead but the Battle Just Became Much Bigger,” by Michelangelo Signorile, Gay Voices Editor-at-Large, Posted: 07/07/2015 12:47 pm EDT | Updated: 2 hours ago
Gay Marriage Arguments Divide Supreme Court Justices
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.
Source: The New York Times, “Gay Marriage Arguments Divide Supreme Court Justices,” APRIL 28, 2015
Winning the battle | Local gay couples tie knot after long wait for equality
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.
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.
Source: The Durango Herald, “Winning the battle | Local gay couples tie knot after long wait for equality,” By Mary Shinn Herald staff writer, Article Last Updated: Monday, December 08, 2014 10:34pm
BREAKING: Missouri Judge Rules for Marriage Equality
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.”
Judge orders marriages of Missouri gay couples wed legally elsewhere to be recognized here
The ruling affects more than 5,000 gay couples in Missouri. Read more
St. Louis gay couples argue it is fundamental right to have their marriages recognized
A judge in Kansas City heard arguments on a similar case last week. Read more
Judge to rule ‘as quickly as possible’ in Missouri same-sex marriage case
The case is the first of three working through courts in Missouri. Read more
Battle over same-sex marriages in St. Louis headed to court
Four weddings at City Hall set up test cases to challenge state’s constitutional ban, but more licenses won’t be issued until the courts decide. Read more
Fight for same-sex marriage in Missouri mirrors efforts across country
A lawsuit seeks recognition of marriages, not ban of the gay unions.Read more
32 States Ask SCOTUS to Rule on Marriage Equality
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.”
View Massachusetts et al Amicus Brief
Source: Bilerico Project, “32 States Ask SCOTUS to Rule on Marriage Equality,” Filed By John M. Becker | September 05, 2014 9:30 AM
Marriage Discrimination Struck Down Again in Indiana
The Honorable Richard Young — the U.S. district judge in Indiana who struck down that state’s ban on same-sex marriage in June — has done it again.
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.
To read a copy of the order, please Bowling v. Pence District Court ruling.
North Carolina Attorney General Will Not Defend State’s Marriage Ban
Following today’s historic ruling from the U.S. Court of Appeals for the Fourth Circuit, North Carolina Attorney General Roy Cooper announced that he would stop defending the state’s marriage equality ban.
Today’s ruling applies to the entire Fourth Circuit, which includes North Carolina, Maryland, South Carolina, Virginia and West Virginia. There are currently two cases in North Carolina challenging the state’s marriage ban.
In remarks earlier today, North Carolina Attorney General Roy Cooper said:
After reviewing the 4th Circuit decision and consulting with attorneys here, I have concluded that the State of North Carolina will not oppose the cases moving forward. In addition, the State of North Carolina will acknowledge the 4th Circuit opinion that marriage is a fundamental right and that our office believes that the judges are bound by this 4th Circuit decision.
In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable. Since the US Supreme Court ruled in the Windsor case, all the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.
Attorney General Cooper’s announcement follows a sweeping ruling from the Fourth Circuit Court of Appeals that determined that strict scrutiny review dictates that marriage bans are unconstitutional on the basis of both equal protection and due process.
Source: HRC Blog, “North Carolina Attorney General Will Not Defend State’s Marriage Ban,” July 28, 2014 by Hayley Miller, Digital Media Associate
Federal Court Issues Strict Scrutiny Marriage Ruling on Basis of Equality Protection, Due Process
In a historic first, today the U.S. Court of Appeals for the Fourth Circuit issued a sweeping ruling affirming the February 2014 decision from U.S. District Judge Arenda L. Wright Allen in Bostic v. Schaefer that the amendment to the Virginia Constitution barring marriage for same-sex couples violates the U.S. Constitution, and further determining that strict scrutiny review dictates that marriage bans are unconstitutional on the basis of both equal protection and due process. In a 2-1 decision authored by Judge Henry F. Floyd and joined by Judge Roger L. Gregory, the court declared in its ruling that:
We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
On page 39 of the decision, the majority opinion confirmed that, “nder both the Due Process and Equal Protection Clauses, interference with a fundamental right warrants the application of strict scrutiny.”
“The Fourth Circuit has affirmed that equality is not just a California value, or a New York value – it’s a fundamental American value,” said Human Rights Campaign (HRC) president Chad Griffin. “No state should have the right to enforce this type of discriminatory amendment that singles out thousands of loving couples for unfair treatment, simply because they are gay or lesbian. As we’ve seen with an undefeated string of federal court rulings over the last year from judges appointed by both Democrats and Republicans, the U.S. Constitution is on the side of equality and justice for all Americans – not just some.”
Today’s ruling applies to the entire Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia. This is the third appeals court ruling striking down state marriage bans in just one month. Last week the U.S. Court of Appeals for the Tenth Circuit struck down Oklahoma’s same-sex marriage ban. The Tenth Circuit issued a similar decision on June 25th in a case out of Utah, ruling that statutes or amendments to state constitutions banning marriage equality are unconstitutional. Both rulings were stayed and the Utah Attorney General has already indicated the state will appeal its decision to the U.S. Supreme Court.
The defendants in Virginia now have the option to request an enbanc appeal before the full bench of the Fourth Circuit, which decides whether or not to grant that request. They may also bypass an enbanc session and appeal directly to the U.S. Supreme Court.In July of 2013, Tim Bostic and Tony London went to the Norfolk Circuit Court Clerk’s office to obtain a marriage license, but they were turned away because of Virginia’s ban on marriage equality. Soon after, the couple filed a lawsuit in the U.S. District Court for the Eastern District of Virginia. They are joined in the case by Mary Townley and Carol Schall, whose legal California marriage isn’t recognized by their home state of Virginia. The plaintiffs are represented by attorneys Ted Olson and David Boies on behalf of the American Foundation for Equal Rights (AFER). Olson and Boies also successfully represented the plaintiffs in Hollingsworth v. Perry challenging California’s Proposition 8 – a case that was ultimately heard by the U.S. Supreme Court.
In March of 2014, attorneys from Lambda Legal and the ACLU were permitted to intervene in the Bostic case on behalf of all Virginia’s same-sex couples, including their clients in another case challenging the state’s marriage ban – Harris v. Rainey.
A three-judge panel of the Fourth Circuit heard argument in this case on May 13, 2014. Judge Paul V. Niemeyer was appointed to the Fourth Circuit by President George H.W. Bush in 1990. Judge Roger L. Gregory was first appointed by President Bill Clinton in 2000, and later re-appointed by President George W. Bush in 2001, making him the first African-American judge to serve on the Fourth Circuit. Judge Henry F. Floyd was appointed in 2011 by President Barack Obama.
There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico. Cases from ten other states are currently pending before four federal appeals courts. The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction. In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court. Since the Supreme Court’s historic marriage rulings last year, there have been 19 consecutive federal court decisions that bans on marriage equality are unconstitutional. These rulings have come from judges appointed by both Democrat and Republican presidents.
The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal.
Cases pending before federal appeals courts:
- DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]
- Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit set for August 6]
- Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit set for August 6]
- Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit set for August 6]
- Henry v. Himes, Ohio [Arguments at the Sixth Circuit set for August 6]
- DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit set for August 6]
- Wolf v. Walker, Wisconsin [Arguments at the Seventh Circuit set for August 26]
- Baskin v. Bogan, Indiana [Arguments at the Seventh Circuit set for August 26]
- Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 8]
- Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September]
- Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit set for September 8]
- Burns v. Hickenlooper, Colorado [Argument date at the Tenth Circuit not set]
Cases petitioned or likely to be petitioned to the U.S. Supreme Court:
- Kitchen v. Herbert, Utah [Tenth Circuit struck down marriage ban June 25]
- Bishop v. United States, Oklahoma [Tenth Circuit struck down marriage ban July 18]
- Bostic v. Schaefer, Virginia [Fourth Circuit struck down marriage ban July 28]
Same-sex couples can legally marry in 19 states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman. For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org
GOP Rep. David Jolly Comes Out In Support Of Gay Marriage
GOP Rep. David Jolly (Fla.) announced his support of gay marriage Monday in a statement to the Washington Post.
While Jolly said he personally believes in traditional marriage because of his Christian faith, he thinks the government should support both traditional and same-sex marriages. He also noted his support of Monroe County Circuit Judge Luis Garcia’s decision to order the county’s officials to begin issuing marriage licenses to gay couples last week.
“But as a matter of Constitutional principle I believe in a form of limited government that protects personal liberty,” Jolly said. “To me, that means that the sanctity of one’s marriage should be defined by their faith and by their church, not by their state. Accordingly, I believe it is fully appropriate for a state to recognize both traditional marriage as well as same-sex marriage, and therefore I support the recent decision by a Monroe County Circuit Judge.”
Garcia refused to allow gay couples to marry on Monday, citing an appeal by Florida Attorney General Pam Bondi. The AP reports:
Garcia initially ruled marriage licenses could be issued in Monroe County beginning Tuesday to gay couples. But that was blocked by an automatic stay triggered when Republican Attorney General Pam Bondi immediately filed notice that the state will appeal.
Bondi’s office filed papers later Monday urging Garcia to keep the stay in place and preserve the status quo until all appeals are sorted out and Garcia agreed. That means no gay marriages can take place while Garcia’s original ruling is reviewed by the Miami-based 3rd District Court of Appeal, which could take weeks or months to issue a decision.
Jolly, who won the special election to fill the seat left vacant by the late Rep. Bill Young in March, is the eighth current Republican member of Congress to support gay marriage, according to the Washington Post.
Source: The Huffington Post, “GOP Rep. David Jolly Comes Out In Support Of Gay Marriage,” By Paige Lavender, Posted: 07/21/2014 6:03 pm EDT Updated: 1 hour ago
DoJ would support same-sex marriage at Supreme Court, Eric Holder says
If the Supreme Court decides to hear a case on same-sex marriage, the Department of Justice will file a brief urging the court to uphold the rights of gay couples to wed, Attorney General Eric Holder said in an interview that aired Sunday.
The possibility that the high court could soon decide the controversial issue at the federal level became more likely at the end of last year when a federal appeals court struck down a ban on same-sex marriage in Utah. That decision was stayed pending an appeal, but rather than making his case before the circuit court again, Utah’s attorney general took the argument directly to the Supreme Court, asking the justices to weigh in on the issue. Several other appeals courts across the country have heard similar cases that could also make their way to the High Court.
The Supreme Court could decide not to hear the case or to postpone it, but if they take it up, Holder told ABC’s “This Week” that the Justice Department will “file something…in support of same-sex marriage.”
“I think we will file a brief that is consistent with the actions we have taken over the past couple of years,” Holder said. He noted that the government stopped defending the Defense of Marriage Act, a 1996 law banning federal recognition of same-sex marriages that was struck down last year by the Supreme Court, and that the federal government has begun extending federal marriage benefits to same-sex couples.
“We are proud of what we have done,” Holder said. “When you have differentiations that are made on the basis of sexual orientation, they should be subject to heightened scrutiny. That being the case, I think a lot of these measures that ultimately will come before the Court will not survive a heightened scrutiny examination.”
Holder, who has been President Obama’s attorney general since the administration assumed power in 2009, recently described the fight for gay rights as the “defining civil rights challenge of our time.”