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.

Marriage Equality Map - Sept 2014

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.

Indiana State Flag

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.

Source: Bilerico,“Marriage Discrimination Struck Down Again in Indiana,” Filed By John M. Becker | August 19, 2014 6:45 PM

Judges weigh 4 states’ same-sex marriage 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.

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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.

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Associated Press writers Lisa Cornwell and Dan Sewell contributed. Follow Amanda Lee Myers on Twitter at https://twitter.com/AmandaLeeAP

Source:  AP, “Judges weigh 4 states’ same-sex marriage cases,” by Amanda Lee Myers and Brett Barrouquere, Published: August 6, 2014

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.

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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.

 

 

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 Posted: 07/21/2014 6:03 pm EDT Updated: 1 hour ago

DoJ would support same-sex marriage at Supreme Court, Eric Holder says

US Attorney General Eric Holder speaks during a press conference at the US Justice Department in Washington on June 30, 2014. SAUL LOEB/AFP/Getty Images

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.”