Historic Injunction for Marriage Equality in Texas

Today, U.S. District Judge Orlando Garcia ruled that Texas’ ban on marriage for lesbian and gay couples is unconstitutional in the lawsuit brought by Cleopatra DeLeon, Nicole Dimetman, Vic Holmes and Mark Phariss who were represented by the law firm Akin Gump. The ruling is stayed pending appeal, meaning marriages will not occur immediately in the state. Human Rights Campaign (HRC) President Chad Griffin issued the following statement:

“This injunction sends a powerful message that gay and lesbian Texans are being harmed everyday by inequality, and that these plaintiff couples who we’re proud to call members of the HRC family are very likely to succeed in striking down Texas’ ban on marriage equality. This is a historic day in the heart of the South, and I can’t stress enough how important it is to move quickly until loving couples in all 50 states feel the full reach of this victory for equality.”

The Texas ruling comes on the heels of a year-long string of electoral, judicial and legislative victories for marriage equality.  Recently the New Mexico Supreme Court and federal district judges in Virginia, Utah, Oklahoma, Ohio and Kentucky have ruled in favor of marriage for lesbian and gay couples.

texas-marriageequalitynews-blog450

Source: HRC Blog, “Historic Injunction for Marriage Equality in Texas,” February 26, 2014 by Paul Guequierre

 

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BREAKING: Nine same-sex couples file suit against Colorado same-sex marriage ban

Nine Colorado same-sex couples seeking to marry in the state filed suit today in Denver District Court, with the claim that being denied a marriage license on Feb. 18 in Denver was a violation of their rights.The lawsuit argues that the state’s ban on same-sex marriage, passed to the Colorado Constitution by voters in 2006 as Amendment 43, is prohibited by the U.S. Constitution’s Equal Protection Clause. This lawsuit comes on the heels of favorable rulings in Utah, Oklahoma and most recently Virginia, striking those states’ laws limiting marriage to opposite-sex couples.

The lawsuit identifies Gov. John Hickenlooper and Denver County Clerk and Recorder Debra Johnson as defendants, since both of them are responsible for upholding the existing state law in their jurisdictions, though both Hickenlooper and Johnson personally support extending marriage to lesbian and gay couples.

Neither the plaintiffs nor their lawyers are speaking to media today.

One of the couples in the lawsuit is Arvada couple Wendy and Michelle Alfredsen, whose family has been previously covered in Out Front. The text of the lawsuit states, “Despite believing that these laws are unconstitutional, defendant Johnson, in her official capacity and through her authorized deputy, refused their marriage license application because they are both women. Wendy and Michelle wish to marry in the state of Colorado where they live, and they and their child have been harmed by Colorado’s refusal to allow them to do so.”

While this is not the first litigation challenging Colorado’s law limiting marriage to opposite-sex couples, it is the first case to do so on such a scale and with such open backing of Colorado LGBT advocacy and policy groups. Five LGBT advocacy organizations in Colorado — One Colorado, the GLBT Community Center of Colorado, the ACLU of Colorado, the Colorado GLBT Bar Association and the Faithful Voices Coalition, released a joint statement in conjunction with the lawsuit.

From the press release:

Dave Montez, Executive Director of One Colorado:

“Just like thousands of other loving, committed couples across Colorado, the courageous plaintiffs who brought forth today’s case simply want to take care of their families and make a lifelong promise to the person they love. We share their goal of achieving marriage equality as quickly as possible, but we also want to ensure that victory endures – which means creating a climate where all Coloradans are free to live openly in their own communities. There’s a difference between having a civil union or marriage license and feeling comfortable enough to put a picture of your spouse on your desk at work. So as this issue moves toward resolution – either by our courts or at the ballot box – it’s critical that we keep building public support for the freedom to marry by talking to Coloradans about why marriage matters to our families. And One Colorado is proud to be doing that work right now, in every corner of our state.”

Nathan Woodliff-Stanley, Executive Director of ACLU of Colorado:

“The American Civil Liberties Union has been working for decades to secure marriage equality throughout the country, including here in Colorado. Over the past few years and especially the last few months, we’ve seen an astonishing and welcome shift toward Americans embracing equality and the freedom to marry. As the country progresses, Colorado’s marriage ban increasingly places our state at a competitive and moral disadvantage. We recognize the courage and resolve of these couples and their attorneys as they pursue, through the courts, the freedom to marry that all Coloradans deserve. And as advocates for full equality, we will continue to facilitate the important conversation across our state about why all families deserve the full dignity and protection that only marriage can provide.”

Mindy Barton, Legal Director of the GLBT Community Center of Colorado:

“The GLBT Community Center of Colorado has been supporting equality for gays and lesbians in this state for almost four decades. As this litigation moves forward, we are proud of the plaintiffs and their attorneys for standing up to show that no one should be treated differently just because of who they are and who they love. In parallel with these efforts, we know it’s vital to keep doing the important work of educating the public and talking to the people of Colorado about why marriage matters to all loving, committed couples – gay and straight alike. And The Center remains dedicated to having that important statewide conversation.”

Kyle Velte, President of the Colorado GLBT Bar Association:

“As an organization comprised of LGBT attorneys and focused on equality, it is inspiring to see this litigation filed. We recognize that litigation is one of several ways to achieve full marriage equality in this state, and we applaud the courage of the attorneys and plaintiffs – some of whom are members of our Association – as they move forward in this important legal fight.”

Jeremy Shaver, Spokesperson for the Faithful Voices Coalition, a coalition comprised of 215 faith leaders and 60 faith-based organizations in support of marriage equality: 

“As people of faith, we believe in the Golden Rule – to treat others as we would want to be treated. In light of the litigation filed today, it is important to remember that freedom means freedom for everyone, and none of us should be treated differently just because of who we are. We believe marriage is best defined by love, commitment, and the ability to protect your family – and that is why we support the freedom to marry for gay and lesbian couples across our state.”

Source: “BREAKING: Nine same-sex couples file suit against Colorado same-sex marriage ban,” By February 19, 2014 | 1:26 pm, (Updated: February 19, 2014 | 3:37 pm)

 

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One Colorado’s V-Day Marriage Equality Video!

VIDEO: This Valentine’s Day, we are helping to spread the love by talking about why marriage matters to our families! Personal stories like the ones in our video below — highlighting loving, committed couples here in Colorado — are part of an important conversation that we need to be having with Coloradans in every corner of our state.

One Colorado’s V-Day Marriage Equality Video!

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Victory in Virginia: Federal court rules on marriage equality

VA-Ruling-Win

The Federal District Court ruled that Virginia’s marriage ban violates the U.S. Constitution. It said that loving couples like our plaintiffs, Tim Bostic & Tony London and Carol Schall & Mary Townley are entitled to the same basic rights and protections as every other American.

This is a monumental victory—for Virginia and our country—and the first of its kind for a state in the South.

While the decision will not go into effect immediately—it has been stayed pending appeal—this is a great cause for celebration.

Read the Decision

Source: AFER, Marriage News Blog, “Victory in Virginia: Federal court rules on marriage equality”, February 13, 2014

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Kansas House passes bill allowing refusal of service to same-sex couples

(CNN) — Denying services to same-sex couples may soon become legal in Kansas.

House Bill 2453 explicitly protects religious individuals, groups and businesses that refuse services to same-sex couples, particularly those looking to tie the knot.

It passed the state’s Republican-dominated House on Wednesday with a vote of 72-49, and has gone to the Senate for a vote.

Such a law may seem unnecessary in a state where same-sex marriage is banned, but some Kansas lawmakers think different.

They want to prevent religious individuals and organizations from getting sued, or otherwise punished, for not providing goods or services to gay couples — or for not recognizing their marriages or committed relationship as valid.

This includes employees of the state.

The politics

The law claims to protect the rights of religious people, but gender rights advocates such as Equality Kansas are dismayed.

“Kansans across the state are rightly appalled that legislators are spending their efforts to pass yet another piece of legislation that seeks to enshrine discrimination against gay and lesbian people into law,” state chairwoman Sandra Meade said.

“HB 2453 is a blatant attempt to maintain second-class citizen status for taxpaying gay and lesbian Kansans.”

Despite the blowback, its chances of passing seem pretty good.

Republicans dominate the state’s Senate and Gov. Sam Brownback is a conservative Christian known for taking a public stand against same-sex marriage.

Brownback has already praised the bill in an interview with a local newspaper.

“Americans have constitutional rights, among them the right to exercise their religious beliefs and the right for every human life to be treated with respect and dignity,” he told The Topeka Capital-Journal.

The details

HB 2453 is titled “An act concerning religious freedoms with respect to marriage” and covers many bases.

It reads, in part: “No individual or religious entity shall be required by any governmental entity to do any of the following, if it would be contrary to the sincerely held religious beliefs of the individual or religious entity regarding sex or gender:

“Provide any services, accommodations, advantages, facilities, goods, or privileges; provide counseling, adoption, foster care and other social services; or provide employment or employment benefits, related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.”

Anyone who turns away a gay couple not only can’t face a civil suit, but if anyone tries to sue, they could get nailed with the other side’s legal fees.

There are some small concession in the bill to gay couples.

If an employee at a nonreligious or government business refuses to serve a gay or lesbian couple for religious reasons, the manager is obligated to find another employee who will oblige.

It also explicitly says that the law does not authorize discrimination against anyone, including clergy, who performs or supports same-sex unions.

The trend

The Kansas bill would seem to buck the trend.

Laws approving same-sex marriage have recently passed in many parts of the United States, bringing the total number of states where it is legal to 17. Add to that the District of Columbia.

Worldwide, 16 other countries (and parts of Mexico) also have laws allowing same-sex marriage and domestic partnerships. Most of the nations are in Europe and South America.

Judge rules Kentucky must recognize same-sex marriages

Nevada stops defending ban against same-sex marriage

STORY HIGHLIGHTS
  • Gay and lesbian couples in Kansas may be refused service more often
  • A bill protects individuals, groups and organizations that turn them away for religious reasons
  • It “seeks to enshrine discrimination,” rights group leader says
  • If one employee refuses to serve, the employer must ask others to

Source:  “Kansas House passes bill allowing refusal of service to same-sex couples,” By Ben Brumfield and Dana Ford, CNN, updated 7:59 AM EST, Thu February 13, 2014

CNN’s Sonya Hamasaki contributed to this report.

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Kentucky ban on gay marriages from other states struck down by federal judge

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Greg Bourke, right, and Michael Deleon have filed a federal lawsuit asking for Kentucky to recognize same sex marriages. July 26, 2013 / Scott Utterback/The Courier-Journal

In a ruling that could open the door to gay marriage in Kentucky, a federal judge on Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.

U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.

Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs … are vital to the fabric of society … assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”

Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”

MORE | Bluegrass Poll says Kentucky attitudes shifting on gay marriage

MORE | Like us on Facebook, join the discussion about this story

Citing the U.S. Supreme Court’s ruling throwing out the Defense of Marriage Act, Heyburn struck down the portion of Kentucky’s 2004 constitutional amendment that said “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”

The suit asked only that Kentucky be required to recognize gay marriages performed elsewhere; it is unclear whether the ruling also opens the door to allowing gay couples to get married in Kentucky, which the state’s constitution forbids.

The plaintiffs’ lawyers say they believe it may, while the Kentucky Attorney General’s Office, which defended the case, is reviewing that question, spokeswoman Allison Martin said.

Heyburn did not rule that Kentucky must allow gay marriages to be performed in the state.In a 23-page ruling, Heyburn said Kentucky’s sole justification for the the amendment was that was it was “rationally related to the legitimate government interest of preserving the state’s institution of traditional marriage.”

But Heyburn noted that over the past 40 years, the U.S. Supreme Court has refused to allow mere tradition to justify marriage statutes that violate individual liberties, such as the ban on interracial marriages that was once the law in Virginia, Kentucky and other states.

Heyburn also rejected the arguments of the Family Foundation of Kentucky — that recognizing same-sex marriages would undermine the fundamental role of marriage in ensuring procreation.

Heyburn said there is no requirement that opposite-sex couples agree to procreate to get married.

He also said “no one has offered any evidence that recognizing same-sex marriages will harm opposite-sex marriages.”

Responding to the ruling, Martin Cochran, an analyst for the Family Foundation of Kentucky, said in a news release that it “nullifies the right of Kentucky to determine policies regarding marriage” and that “Kentucky marriage policy will now be dictated from places like Boston and San Francisco.”

“If a state like Utah were ever to legalize polygamy, Kentucky would be forced to recognize it under this decision,” Cothran added.

Cothran said Kentucky voters will be disappointed with the practical effects of this decision. “This decision puts Kentucky voters on notice that if their reasons for defining marriage as between a man and a woman don’t correspond with the political ideology of liberal judges, their votes don’t count.”

The suit was filed on behalf of Gregory Bourke and Michael Deleon of Louisville, who were married in Ontario, Canada, in 2004; Jimmy Meade and Luther Barlowe, who live in Bardstown and were lawfully married in Davenport, Iowa, in 2009; Randell Johnson and Paul Campion, who live in Louisville and were married in Riverside, Calif., in 2008; and Kimberly Franklin and Tamera Boyd, who live in Cropper and were married in Stratford, Conn., in 2010.

The complaint also named their children.

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Kentucky Ruling is the Latest Sign of Growing Marriage Equality Momentum

Today, Kentucky became the latest state to have its ban on marriage equality ruled unconstitutional by a federal judge, and the case will soon join others based in Utah, Nevada, Ohio and Oklahoma at the appellate level.

U.S. District Court Judge John G. Heyburn II ruled that Kentucky ’s marriage amendment violates the constitutional principal of equal protection and that the Commonwealth cannot refuse to recognize valid same-sex marriages conducted in other states. The judge, who was appointed to the bench by President George H. W. Bush, sided with four plaintiff couples who had legally married elsewhere before seeking state recognition in Kentucky.

In light of the news, HRC President Chad Griffin issued the following statement:

“Today, this nation took another bold step toward its fundamental constitutional principles of equal justice under the law. This amendment is unconstitutional, and we believe the only true solution to the injustice faced by these plaintiffs is full marriage equality. We hope all parties act swiftly and fairly to allow all loving and committed Kentucky couples the opportunity to marry in the state they call home.”

This new marriage ruling is not final and is likely to be appealed, joining other federal court cases in Utah, Nevada, Ohio and Oklahoma—all of which are currently at the appellate level. This week, the Attorney General in Nevada withdrew that state’s defense of its marriage ban in a case currently pending before the U.S. Court of Appeals for the Ninth Circuit. A new ruling is expected soon in a federal marriage case in Virginia (Bostic v. Rainey).

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Source: HRC Blog, February 12, 2014

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Eric Holder to accord more recognition to same-sex couples

Holder will formally institute the new policies in a memo he will sign on Monday. | AP Photo
Holder will formally institute the new policies in a memo he will sign on Monday. | AP Photo

Attorney General Eric Holder plans to announce added recognition for same-sex married couples Saturday, vowing to treat same-sex spouses just like opposite-sex spouses in court proceedings, prison visitation and law-enforcement benefit programs even in states that don’t recognize same-sex marriages, a Justice Department official said.

In a speech to a gay rights group in New York, Holder will promise that Justice Department lawyers will respect spousal privilege for same-sex couples in court proceedings and that officials will award full benefits to same-sex spouses of police officers and other public safety personnel killed in the line of duty.

“In every courthouse, in every proceeding, and in every place where a member of the Department of Justice stands on behalf of the United States — they will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law,” Holder is to tell a Human Rights Campaign dinner, according to excerpts of his speech released in advance.

(WATCH: Eric Holder: U.S. to recognize Utah same-sex marriages)

“The department will recognize that same-sex spouses of individuals involved in civil and criminal cases should have the same legal rights as all other married couples – including the right to decline to give testimony that might incriminate their spouse. The government will not object to an individual in a same-sex marriage invoking this right on the ground that the marriage is not recognized in the state where the couple lives,” Holder plans to say.

Federal prisoners who have a same-sex spouse will also be treated just as those with opposite-sex spouses, according to the expected announcement.

“Federal inmates in same-sex marriages will also be entitled to the same rights and privileges as inmates in opposite-sex marriages. This includes visitation by a spouse, inmate furloughs to be present during a crisis involving a spouse, escorted trips to attend a spouse’s funeral, correspondence with a spouse, and compassionate release or reduction in sentence based on the incapacitation of an inmate’s spouse,” Holder’s prepared remarks say.

Holder will formally institute the new policies in a memo he will sign on Monday, an official said.

(Also on POLITICO: Gay-marriage backers start campaign)

In his speech, Holder also plans to draw direct parallels between the movement to guarantee civil rights for African-Americans five decades ago and the present drive to end discrimination against gays and lesbians.

“As all-important as the fight against racial discrimination was then, and remains today, know this: my commitment to confronting discrimination based on sexual orientation runs just as deep,” the attorney general is to say, drawing a comparison once highly controversial in the black community. “Just like during the civil rights movement of the 1960s, the stakes involved in this generation’s struggle for LGBT equality could not be higher.

“Then, as now, nothing less than our country’s commitment to the notion of equal protection under the law was on the line. And so the Justice Department’s role in confronting discrimination must be as aggressive today as it was in Robert Kennedy’s time. As Attorney General, I will not let this Department be simply a bystander during this important moment in history,” Holder plans to say.

Holder has been involved with many of the Obama administration’s boldest moves on gay rights.

In 2011, Holder announced — after consulting with President Barack Obama — that the Justice Department would not longer defend the federal law barring federal benefits for same-sex married couples: the Defense of Marriage Act. The Supreme Court struck the measure down as unconstitutional last year on a 5-4 vote.

Just last month, Holder declared that the federal government would recognize the marriages of more than 1,000 couples married in Utah after a federal judge struck down that state’s gay-marriage ban. The Supreme Court stayed the judge’s order a little more than two weeks later, ending the issuance of new marriage licenses to same-sex couples.

However, the ruling left more than 1,000 couples in limbo, prompting Holder’s announcement that the federal government will recognize those couples for tax and employee benefit purposes.

Source: Eric Holder to accord more recognition to same-sex couples,” By: Josh Gerstein, Politico, February 8, 2014 02:00 PM EST

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Lawyers Olson and Boies want Virginia as same-sex marriage test case

The legal team that overturned California’s ban on same-sex marriage is targeting Virginia to launch another challenge aimed at convincing the Supreme Court that gays and lesbians have a constitutional right to marry no matter where they live.

The American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

Bill O’Leary/The Washington Post) - Attorneys Theodore Olson, left, and David Boies depart the Supreme Court after no decision in the Defense of Marriage Act case on June 24.
Bill O’Leary/The Washington Post) – Attorneys Theodore Olson, left, and David Boies depart the Supreme Court after no decision in the Defense of Marriage Act case on June 24.

It is one of dozens of lawsuits filed across the nation by same-sex marriage activists who say they feel emboldened by the Supreme Court’s decisions in June that overturned the federal Defense of Marriage Act (DOMA) that forbade recognition of same-sex marriages and separately allowed such unions to resume in California.

Despite the victories, the justices stopped short of finding that the Constitution requires that gays and lesbians be allowed to marry and left the matter, for now, to the states.

There are dozens of lawsuits filed in state and federal courts in 18 states, according to the Human Rights Campaign, and on Friday, a state judge in New Jersey ruled same-sex marriages must be allowed there. Gov. Chris Christie (R) is appealing.

But the ultimate goal is the recognition of a constitutional right, such as when the Supreme Court struck down Virginia’s ban on interracial marriages in the 1967 Loving v. Virginia decision.

The addition of Olson and Boies to a case in Norfolk willprobably bring more attention to the challenges to Virginia’s ban on same-sex marriages. The state’s voters in 2006 amended the state constitution to ban such marriages, as well as civil unions, and to forbid recognition of unions performed elsewhere. Thirteen states, including Maryland, plus the District of Columbia, allow gay marriage.

Olson said AFER was invited to join the case by attorneys for the plaintiffs, Norfolk residents Timothy Bostic and Tony London, whose marriage application was turned down, and Carol Schall and Mary Townley, who have a 15-year-old daughter and whose marriage in California is not recognized by the commonwealth.

Virginia is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.

“The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” Olson said.

Olson and Boies, who were opposing counsel in the 2000 Supreme Court showdown in Bush v. Gore, received enormous attention when they teamed up to challenge California’s Proposition 8, which was passed by voters in 2008 to stop the same-sex marriages that the state’s high court had authorized.

The result was a full trial before U.S. District Judge Vaughn R. Walker, who ruled that the California ban violated the Constitution’s guarantee of equal protection.

The case, Hollingsworth v. Perry, reached the Supreme Court last term. But the justices did not rule on the constitutional question, instead finding that those who were appealing Walker’s ruling did not have the legal standing to bring the challenge. Same-sex marriages resumed in the state almost immediately.

Olson said he did not anticipate a trial in the Norfolk proceedings before U.S. District Judge Arenda Wright Allen, but the record from California “is a great foundation for us which we can convey into the federal courts in Virginia.”

This Virginia case is also attractive because it is moving quickly, at the state’s request. A second challenge, filed in the Western District of Virginia, is on a slower track.

Although Virginia’s constitutional amendment was easily approved, recent polling shows a majority of residents favor legalizing same-sex marriage. But Republicans who control the state’s political leadership and legislature are opposed, and removing the constitutional amendment would be difficult.

The constitution can be amended by voters only after a constitutional convention or if a proposed amendment is passed twice by the General Assembly, with an election occurring between the two votes.

While the Perry decision was important to Californians, the court’s 5-to-4 DOMA ruling in U.S. v. Windsor provides same-sex marriage supporters with the most hope. Even dissenting Justice Antonin Scalia said that while the decision purported to support state rights, it provided a road map for challenges to state bans.

The Norfolk complaint makes extensive use of Justice Anthony M. Kennedy’s majority opinion that DOMA “places same-sex couples in an untenable position” and “humiliates” the children raised by such couples.

The lawsuit compares the Virginia ban with Kennedy’s finding that “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

The Windsor decision “created a sense of urgency,” said Dale Carpenter, a University of Minnesota law professor who has studied the issue, especially because polling did not indicate the kind of public backlash as other court rulings that granted gay rights.

Since the decisions, Justice Ruth Bader Ginsburg has officiated at a same-sex marriage, and last week former president George H.W. Bush was one of the witnesses for the marriage of a lesbian couple in Maine.

Sarah Warbelow, state legislative director of the Human Rights Campaign, said: “We had an opportunity to see where the Supreme Court was standing on the issue, and I think attorneys are increasingly confident that the court is ready to take up the whole nine yards.”

Suits have been filed across the country, many by the American Civil Liberties Union, and another leader in the race back to the Supreme Court might come from Pennsylvania. It has no constitutional prohibition and the Democratic attorney general has said she thinks the state law banning same-sex marriage is unconstitutional.

But some supporters of same-sex marriage fear the suits are coming too fast. The justices turned down the chance to find a constitutional right to marry only months ago, and Kennedy’s opinion in Windsor also contained his caution that “history and tradition” give states the right to define marriage.

After giving the victories, the slim Supreme Court majority might favor letting the political process, rather than the judicial, take the lead.

Olson is unmoved by that theory.

“I’m not going to get into the justices and what they each said and what Justice Scalia said,” Olson said. “Given what was said in DOMA [decision] and given the record we made in California and given what we’re going to establish in Virginia, we’re going to be able to persuade a majority of the court that this is the right thing.”

Source: The Washington Post, January 24, 2014

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Virginia to fight same-sex marriage ban

Jahi Chikwendiu/Post - Virginia Attorney General Mark Herring believes the state’s ban on same-sex marriage is unconstitutional.
Jahi Chikwendiu/Post – Virginia Attorney General Mark Herring believes the state’s ban on same-sex marriage is unconstitutional.

Virginia Attorney General Mark R. Herring will announce Thursday that he believes the state’s ban on same-sex marriage is unconstitutional and that Virginia will join two same-sex couples in asking a federal court to strike it down, according to an official close to the attorney general with knowledge about the decision.

The action will mark a stunning reversal in the state’s legal position on same-sex marriage and is a result of November elections in which Democrats swept the state’s top offices. Herring’s predecessor, Republican Ken Cuccinelli II, adamantly opposes gay marriage and had vowed to defend Virginia’s constitutional amendment banning such unions, which was passed in 2006 with the support of 57 percent of voters.

Herring, too, had voted against same-sex marriage eight years ago, when he was a state senator. But he has said that his views have changed since then and that on Thursday he will file a supportive brief in a lawsuit in Norfolk that challenges the state’s ban, said two people familiar with his plans.

Herring will say that Virginia has been on the “wrong side” of landmark legal battles involving school desegregation, interracial marriage and single-sex education at the Virginia Military Institute, one official said. He will make the case that the commonwealth should be on the “right side of the law and history” in the battle over same-sex marriage.

He has not informed Republicans in Richmond about his plans; an uproar is likely. GOP lawmakers have worried that Herring would change the state’s position — such decisions are up to the attorney general — and have contemplated legislation that would allow them to defend the law in court.

The attorney general thinks that is unnecessary, the official said. The clerks of the circuit court in Norfolk and Prince William County are defendants in the suit, and both are represented by independent counsel.

Janet Rainey, the state registrar of vital records, is also a defendant. Although she and Herring will urge the court to strike down the ban, she will continue to enforce it until the courts act.

The move in Virginia is part of a quickly changing legal landscape reshaped by the Supreme Court’s rulings in two cases on same-sex marriage in June.

In one, U.S. v. Windsor, the court voted 5 to 4 to find unconstitutional a key part of the Defense of Marriage Act, which withheld federal recognition of same-sex marriages performed where they are legal and denied federal benefits to those in such unions.

In the other, it allowed to stand a federal judge’s opinion that California’s Proposition 8, which bans same-sex marriage, was unconstitutional. The court ruled that the case was not before it in a way that allowed a ruling on the merits.

The justices sidestepped a critical question: whether state bans on same-sex marriage violate the Constitution’s guarantees of equal protection and due process.

But federal judges in Utah and Oklahoma have said that the reasoning used by the court majority meant that constitutional amendments in those states banning same-sex unions cannot stand. Gay marriages took place in Utah, but both decisions are now stayed pending appeal.

The highest courts in New Jersey and New Mexico have held that gay couples have the right to be married there. The District of Columbia and 17 states — including Maryland but not counting Utah and Oklahoma — now allow such unions.

The Obama administration took a position similar to Herring’s when it announced it would not defend DOMA, which Congress passed in 1996 and President Bill Clinton signed into law. Attorney General Eric H. Holder Jr. joined the legal challenge against the key part of the law, and House Republicans hired a lawyer in an unsuccessful bid to save it.

Similarly, Democratic attorneys general in other states have said they think their bans are unconstitutional. Democrats in California refused to defend Proposition 8. And last summer, Pennsylvania Attorney General Kathleen Kane bowed out of challenges to her state’s law.

Herring, whose race against Republican Mark D. Obenshain was so close it was not decided until Dec. 18, has been in office just two weeks. But he faced a tight deadline in deciding whether to change the state’s legal position.

U.S. District Judge Arenda L. Wright Allen has scheduled oral arguments for Jan. 30 in the Norfolk case. It received a jolt of attention last fall when lawyers Theodore B. Olson and David Boies, who brought the federal challenge of Proposition 8, announced that they were joining the plaintiffs’ side.

In addition, the American Civil Liberties Union is challenging the Virginia ban in a federal suit in Harrisonburg. That case is not as far along.

Virginia has been a particularly appealing place for a challenge by supporters of gay rights because of the Supreme Court’s 1967 decision in Loving v. Virginia, which struck down laws against interracial marriage. Those who support same-sex unions often draw a parallel.

Herring will make the same point, according to a person who has seen the brief he will file. The state will say that Loving upheld the fundamental right to marriage, not the right to interracial marriage. The question at stake now, the brief states, is not a right to same-sex marriage but whether the fundamental right to marriage can be denied to “loving couples based solely on their sexual orientation.”

Democrats are sensitive to charges that it is Herring’s duty to defend Virginia’s law regardless of whether he agrees with it. They point out that Cuccinelli refused to defend one of then-Gov. Robert F. McDonnell’s education reforms in court, saying he believed that the legislation (for state takeovers of failing schools) was unconstitutional.

Herring also will say that the state’s law will be defended in the Norfolk challenge. Norfolk clerk George E. Schaefer is represented by a private lawyer paid by the state’s Department of Risk Management. Prince William clerk Michèle B. McQuigg, who asked to intervene in the case, is represented by the conservative legal group Alliance Defending Freedom.

Source: By Robert Barnes, The Washington Post, January 22, 2014

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