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
Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied
BIRMINGHAM, Ala. — Amid conflicting signals from federal courts and the chief justice of Alabama’s Supreme Court, some Alabama counties began granting marriage licenses to same-sex couples on Monday in a legal showdown with echoes of the battles over desegregation in the 1960s.
In major county seats like Birmingham, Montgomery and Huntsville, gay couples lined up outside courthouses as they opened, and emerged smiling, licenses in hand, after being wed by clerks or by the judges themselves.
At the Jefferson County Courthouse here, Judge Michael G. Graffeo of Circuit Court officiated, at times tearfully, at the civil wedding of Dinah McCaryer and Olanda Smith, the first to emerge from the crowd of same-sex couples who lined up Monday morning. “I now pronounce Olanda and Dinah are married spouses, entitled to all rights and privileges, as well as all responsibilities, afforded and placed upon them by the State of Alabama,” Judge Graffeo said.
But in the small town of Troy, all was quiet at the Pike County Courthouse, where Judge Wes Allen of Probate Court, like his counterparts in some other counties, had decided that rather than issue licenses to same-sex couples, he would not grant marriage licenses to anyone. “We don’t have any appointments, and we have a sign up saying that we aren’t issuing any licenses at this time,” he said.
On Sunday night, the state’s chief justice, Roy S. Moore, sent an order to county Probate Court judges, telling them not to issue the licenses, in defiance of a Federal District Court ruling that is being appealed by the state. But on Monday morning, the United States Supreme Court refused to stay the District Court order pending the outcome of that appeal.
Chief Justice Moore’s position on the balance of federal and state power has deep resonance in a region with a history of claiming states’ rights in opposition to the federal government, and in a state where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.
In his order to probate judges, Justice Moore cited the state constitutional amendment prohibiting gay marriage, approved by 81 percent of voters in 2006, and said that he, as chief administrator of the state courts, has authority over the probate courts. In interviews, he has argued that the state courts are not bound by the federal court’s order; in 2003, he refused to obey a federal court order to remove a Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building in Montgomery, though it was moved over his objections.
Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that in the same-sex marriage case, the federal judge, Callie V. Granade, an appointee of President George W. Bush, had instigated a grave breach of law. The result has been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government, playing out at Alabama’s courthouses.
As the weddings went ahead across much of the state, some Alabama officials lamented the Supreme Court decision, which denied a request by the Alabama attorney general to extend a hold on same-sex marriage. Judge Granade ruled in January that the Alabama ban was unconstitutional, but she put a hold on her order until Monday to give the state time to appeal.
”I regret the Supreme Court’s decision not to stay the Federal District Court’s ruling until the high court finally settles the issue this summer,” Attorney General Luther Strange, who had filed the motion, said in a statement. “In the absence of a stay, there will likely be more confusion in the coming months leading up to the Supreme Court’s anticipated ruling on the legality of same-sex marriage.”
Here in Jefferson County, Judge Alan L. King of Probate Court said he had no hesitation, despite the Sunday night order on marriage licenses from Chief Justice Moore.
”At the end of the day, it’s still a very simple legal analysis: You’ve got a federal court order,” Judge King said in an interview as he watched the couples line up, near a white ribbon and red balloons.
He added: “This is a happy day for all of these couples, and if you can’t be happy for people, then I’m sorry. If someone can’t understand the joy and happiness of others, then I don’t know what else I can say.”
Monday’s marriages came despite a dramatic show of defiance toward the federal judiciary, announced in Chief Justice Moore’s order.
“Effective immediately, no probate judge of the State of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent” with the Alabama Constitution or state law, Chief Justice Moore wrote in his order late Sunday.
Chief Justice Moore rose to national prominence in the early 2000s when he defied a federal judge’s order to remove a Ten Commandments monument from a Montgomery building and was subsequently ousted from his post leading the high court.He staged a political comeback, became chief justice again in 2013, and has in recent weeks said that Alabama’s probate judges are not bound by a federal trial court’s decisions. His argument has deep resonance in a place where a governor, George Wallace, stood in a doorway of the University of Alabama in 1963 in an unsuccessful bid to block its federally ordered integration.
Although much has changed from Wallace’s era, Chief Justice Moore had used a series of strongly worded letters and memorandums to insist that Judge Granade, an appointee of President George W. Bush who joined the federal bench in 2002, had instigated a grave breach of law.
The result had been a legal and cultural debate rife with overtones of history, closely held religious beliefs and a chronically bubbling mistrust of the federal government that was expected to play out at Alabama’s courthouses Monday.
The chief justice’s misgivings speak to widespread concerns here about federal overreach and same-sex marriage in Alabama, where about 81 percent of voters in 2006 supported a constitutional amendment banning gay nuptials. Few here doubt the force of Chief Justice Moore’s belief that Judge Granade’s orders hold only “persuasive authority,” and not binding power, on Alabama judges.
“My guess is, that is actually the way Roy Moore sincerely understands the federal-state relationship,” said Joseph Smith, a judicial politics expert at the University of Alabama. “He’s also an elected politician, and he knows who his constituency is.”
Despite Chief Justice Moore’s protests, some analysts see parallels between his arguments now and those Wallace advanced in his own time.
“It’s a very similar strain of ideology: the state’s rights, resisting the national tide, resisting liberal movements in policy,” Dr. Smith said.
Some legal scholars say that the chief justice may be correct in his interpretation of the immediate scope of the federal court’s rulings and how they apply to the probate judges. But his eagerness in pronouncing his views unnerved some in Alabama who feared that it might stir local judges to resist Judge Granade.
“I don’t want to see judges make the same mistakes that I think were made in this state 50 years ago, where you have state officials not abiding by federal orders,” said Judge Steven L. Reed of Montgomery County, who added, “The legacy always hangs over us until we show that we’re beyond it.”
For many here, it is unsurprising that Chief Justice Moore emerged as a strident voice in a social debate after the dispute about the Ten Commandments display, known as “Roy’s Rock,” forced him from power.
“Unfortunately, sometimes it makes for very good politics here to be seen as opposing federal intervention, whether it’s from a court or a federal agency,” said David G. Kennedy, who represents two women involved in a case that prompted Judge Granade’s decision. “The situation here is that this is not federal intervention. It’s not federal intervention at all. What it is, is a federal court declaring what same-sex couples’ rights are under the federal Constitution.”
Source: NY Times, “Same-Sex Marriages Proceed in Alabama as State Judge’s Order Is Defied,” FEB. 9, 2015 (reporting from New York.)
Federal judge strikes down Alabama’s same-sex marriage ban
A federal judge in Mobile on Friday struck down Alabama’s constitutional ban on same-sex marriage, ruling that a woman could not be denied her desire for a second-parent adoption of a 9-year-old boy whom she has helped raise since birth.
U.S. District Judge Ginny Granade ruled that the Alabama Marriage Protection Act and the amendment that later enshrined it in the state constitution both were unconstitutional.
“It’s amazing. I was not expecting it at all (on Friday). Happy, happy news. I kind of expected them to sit on it because of the Supreme Court,” said Cari Searcy, one of the plaintiffs. “It’s so encouraging that we got a positive ruling from our home state.
“Love did win,” she added.
David Kennedy, an attorney for Mobile residents Searcy and Kim McKeand, praised the ruling.
“We’re obviously quite pleased with it,” he said. “It was the ruling that, frankly, we expected.”
The Alabama Attorney General’s Office indicated it would continue to fight the case. Late Friday, attorneys filed papers in court asking the judge to put the decision on hold.
“We are disappointed and are reviewing the Federal District Court’s decision,” spokesman Mike Lewis said via email. “We expect to ask for a stay of the court’s judgment pending the outcome of the U.S. Supreme Court’s ruling which will ultimately decide this case.”
Other challenges pending
It is the first of several pending same-sex marriage cases in Alabama to be ruled on. The decision adds to a growing list of decisions across the country in favor of same-sex marriage.
“Careful review of the parties’ briefs and the substantial case law on the subject persuades the Court that the institution of marriage itself is a fundamental right protected by the Constitution, and that the State must therefore convince the Court that its laws restricting the fundamental right to marry serve a compelling state interest,” Granade wrote in her 10-page order.
If Grande agrees to put the case on hold, Searcy will have to wait until the high court rules before she can become a legal parent to the boy. If the judge refuses, than Searcy could begin that process immediately.
Kennedy said his interpretation is that same-sex couple also would be able to marry statewide.
An attorney for April Brush and Ginger Aaron, the plaintiffs in one of the Alabama same-sex marriages that has yet to be decided, predicted a similar outcome.
“It’s so exciting. Precedence from the same state should have a compelling impact on our case in the Northern District,” said the attorney, Wendy Brooks Crew. “This judge clearly recognizes that family is family and that marriage is a fundamental right to all Americans – black, white, gay or straight and there is no compelling state interest to say otherwise.”
The judge’s ruling comes as the U.S. Supreme Court prepares to hear arguments in a same-sex marriage case that supporters and opponents, alike, hope will settle the question once and for all.
The high court surprised many observers in October when it declined to hear appeals from a number of states. At the time, every appellate court that had considered the issue had ruled in favor of same-sex plaintiffs.
But the Sixth U.S. Circuit Court of Appeals in Cincinnati overturned lower court rulings in favor of same-sex marriage in Kentucky, Ohio, Michigan and Tennessee in November. The Supreme Court announced last week that it would review that case.
Granade, an appointee of former President George W. Bush, wrote that she considered the arguments of the Sixth Circuit but found more persuasive the legal reasoning of four other appellate courts in favor of same-sex marriage. She rejected Alabama’s argument that it has a legitimate interest in protecting ties between children and biological parents.
“The Attorney General does not explain how allowing or recognizing same-sex marriage between two consenting adults will prevent heterosexual parents or other biological kin from caring for their biological children,” the judge wrote. “He proffers no justification for why it is that the provisions in question single out same-sex couples and prohibit them, and them alone, from marrying in order to meet that goal.”
Granade wrote that if anything, the state’s same-sex marriage ban detracted from its stated goal of providing the optimal environment for children. The children of same-sex parents are “just as worth of protection and recognition” by the state as the children of heterosexual parents, she wrote.
“In sum, the laws in question are an irrational way of promoting biological relationships in Alabama,” the ruling states.
Searcy and McKeand sued last year after Mobile County Probate Judge Don Davis, citing the state’s gay marriage ban, rejected Searcy’s adoption petition. They had been legally married in California.
Both sides in the case agreed that the petition would have been granted as a matter of routine if Searcy and McKeand had been a heterosexual married couple.
Kennedy, the women’s lawyer, said he would ask Granade not to stay the ruling so that his clients can follow through with the adoption immediately.
“Justice delayed is not really something we’re interested in,” he said. “We’re of the opinion that our clients have been waiting for a very long time.”
National, local reaction
Granade’s ruling drew cheers from gay marriage supporters nationally and in downtown Mobile and jeers from opponents.
“Judge Granade’s ruling today affirms what we already know to be true – that all loving, committed Alabama couples should have the right to marry,” Human Rights Campaign Legal Director Sarah Warbelow said in a prepared statement. “As the U.S. Supreme Court prepares to hear a landmark case on marriage equality, today’s ruling joins the dozens and dozens of others that have recognized that committed and loving gay and lesbian couples deserve equal treatment under the law.”
Ben Cooper, chairman of Equality Alabama, said in a statement that he was thankful the state’s “irrational” marriage law had been struck down.
“I am positive with this landmark decision there will be many questions,” he stated. “Yet opportunities now to reinforce and bring Alabama among its fellow states where equality is undeniably a reality.”
I am positive with this landmark decision there will be many questions. Yet opportunities now to reinforce and bring Alabama among its fellow states where equality is undeniably a reality.
At the Flip Side, the gay bar on South Conception Street in Mobile, many patrons welcomed the news.
Bob Brunson, the bartender, called the ruling “an awesome thing” and said he knows the couple personally.
“We’ve fought this battle for so many years,” Brunson said. “I think it’s incredible and very exciting, one step closer to equal rights.”
Dewayne Kemp, 42, called the decision a step forward.
“It’s just a matter of time,” he said. “It’s going to happen when the U.S. Supreme Court votes it in. I don’t look to Alabama or Mississippi or Louisiana to vote it in.”
Alabama House Speaker Mike Hubbard, R-Auburn, blasted the ruling.
“It is outrageous when a single unelected and unaccountable federal judge can overturn the will of millions of Alabamians who stand in firm support of the Sanctity of Marriage Act,” he said in a prepared statement. “The Legislature will encourage a vigorous appeals process, and we will continue defending the Christian conservative values that make Alabama a special place to live.”
Source: Al.com, “Federal judge strikes down Alabama’s same-sex marriage ban,” By January 23, 2015 at 5:56 PM, updated January 24, 2015 at 7:33 AM
Updated at 6:07 p.m. with comments from Searcy, Kennedy and the Attorney General’s Office. Updated at 7:05 p.m. with additional reaction to the ruling and at 7:30 p.m. with comments form Wendy Brooks Crew. Updated at 9:44 p.m. to embed the judge’s written order.
Reporters Kent Faulk and Casey Toner contributed to this report.
High court to hear gay marriage cases in April
WASHINGTON (AP) – Setting the stage for a potentially historic ruling, the Supreme Court says it will decide whether same-sex couples nationwide have a right to marry under the Constitution.
The justices said Friday they will review an appellate ruling that upheld bans on same-sex unions in four states.
The case will be argued in April and a decision is expected by late June.
Kentucky, Michigan, Ohio and Tennessee are among the 14 states where gay and lesbian couples are not allowed to marry.
The number of states that permit same-sex marriage has nearly doubled in three months as a result of federal and state court rulings. The justices’ decision last October to turn away same-sex marriage appeals allowed some of those rulings to take effect. Florida last week became the 36th state to issue marriage licenses to same-sex couples.
The court is extending the time it usually allots for argument from an hour to two-and-a-half hours. The justices will consider two related questions. The first is whether the Constitution requires states to issue marriage licenses to same-sex couples. The other is whether states must recognize same-sex marriages performed elsewhere.
The appeals before the court come from gay and lesbian plaintiffs in Kentucky, Michigan, Ohio and Tennessee. The federal appeals court that oversees those four states upheld their same-sex marriage bans in November, reversing pro-gay rights rulings of federal judges in all four states.
Ten other states also prohibit such unions. In Arkansas, Mississippi, Missouri, South Dakota and Texas, judges have struck down anti-gay marriage laws, but they remain in effect pending appeals. In Missouri, same-sex couples can marry in St. Louis and Kansas City only.
Louisiana is the only other state that has seen its gay marriage ban upheld by a federal judge. There have been no rulings on lawsuits in Alabama, Georgia, Nebraska and North Dakota.
Source: The Associated Press (AP), “High court to hear gay marriage cases in April,” by Mark Sherman,Jan 16 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
Kansas Supreme Court Allows More Gay Marriages
The Kansas Supreme Court has cleared the way for additional gay marriages in the state.
The court on Tuesday evening lifted its hold on marriage licenses to same-sex couples in Johnson County. The justices last month blocked such licenses while reviewing a petition from Kansas Attorney General Derek Schmidt.
But the Kansas court did not address whether the state’s ban on gay marriage is constitutional. It said it wouldn’t consider the issue until the federal courts resolve a lawsuit filed month on behalf of two lesbian couples.
The U.S. Supreme Court last week told the state it couldn’t continue enforcing its gay-marriage ban while the ACLU’s lawsuit makes its way through the federal courts.
Since then, gay couples have been getting married in some, but not all Kansas counties.
Source: The Associated Press, “Kansas Supreme Court Allows More Gay Marriages,” TOPEKA, Kan. — Nov 18, 2014, 6:29 PM ET
Tennessee Plaintiffs Appeal Sixth Circuit Ruling to the U.S. Supreme Court
Today National Center for Lesbian Rights (NCLR), attorneys Abby Rubenfeld, Maureen Holland, and Regina Lambert, and the law firms of Sherrard & Roe PLC and Ropes & Gray LLP requested the Supreme Court of the United States hear their case.
The Sixth Circuit Court of Appeals overturned lower court rulings that struck down state marriage bans in Kentucky, Michigan, Ohio and Tennessee. This was the first time a federal appeals court ruled against marriage equality after four other federal appeals courts upheld district court rulings that the bans are unconstitutional.
“The court of appeals’ holding not only denies recognition to petitioners’ own marriages and families, but also establishes a “checkerboard” nation in which same-sex couples’ marriages are dissolved and reestablished as they travel across the country,” the plaintiff couples stated in the request. “That is the antithesis of the stability that marriage is supposed to afford.”
Earlier today, Lambda Legal, the ACLU and private firm Gerhardstein & Branch also petitioned the Supreme Court of the United States for a writ of certiorari, the formal request that the Court review its cases challenging Ohio’s constitutional ban on marriage equality.
Source: HRC Blog, “Tennessee Plaintiffs Appeal Sixth Circuit Ruling to the U.S. Supreme Court,” November 14, 2014 by Maureen McCarty, HRC Associate Director of Digital Media
Federal Judge Blocks Kansas’s Ban on Marriage Equality
BREAKING: With the stay lifted, same-sex couples in Kansas can begin applying for marriage licenses immediately. (November 12, 5:45 p.m. EST)
[On November 4, 2014], U.S. District Judge Daniel Crabtree issued a preliminary injunction in Marie v. Moser, ordering Kansas to stop enforcing its discriminatory ban on marriage for same-sex couples. Judge Crabtree granted the state’s request for a stay, so no marriages will begin until 5:00pm CST on November 11.
Kansas was the only remaining state within the jurisdiction of the Tenth Circuit Court of Appeals, which ruled earlier this year that bans on marriage equality violate the U.S. Constitution. Those rulings were allowed to stand when the Supreme Court of the United States declined to hear the cases on appeal, paving the way for marriage equality to become law in all states within the Tenth Circuit where marriage bans were still in effect – Colorado, Wyoming and now, Kansas.
“Kansas’ same-sex marriage ban does not differ in any meaningful respect from the Utah and Oklahoma laws the Tenth Circuit found unconstitutional,” Judge Crabtree writes. “Because Tenth Circuit precedent is binding on this Court, Kitchen and Bishop dictate the result here.”
The state now has the option to appeal today’s order to the Tenth Circuit, which has already ruled such marriage bans unconstitutional.
With Kansas, 33 states will have marriage equality. Congratulations to the plaintiff couples, the ACLU and all those working to secure marriage equality nationwide in America!
Source: HRC Blog, “Federal Judge Blocks Kansas’s Ban on Marriage Equality,” November 4, 2014 by Charlie Joughin
A look at how courts differ on gay marriage
Rev. Katie Hotze-Wilton signs a Missouri marriage license after performing a marriage ceremony for April Dawn Breeden and her long-time partner Crystal Pearis Wednesday, Nov. 5, 2014, at City Hall in St. Louis. St. Louis Circuit Judge Rex Burlison overturned Missouri’s ban on gay marriage on Wednesday saying the law is unconstitutional. (AP Photo/Jeff Roberson)
Breaking ranks with rulings from other federal courts, the 6th U.S. Circuit Court of Appeals panel in Ohio upheld gay marriage bans in four states, saying the courts aren’t the right place to legalize gay marriage. Here’s a look at key passages and how they compare to previous federal rulings:
1. ON CHILDREN
THE LATEST: The 6th Circuit ruling says that limiting unions to being only between a man and a woman is a view shared “not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States.”
People may not need the government’s encouragement to have sex or “propagate the species,” it says, but they may need encouragement to “create and maintain stable relationships within which children may flourish.”
“Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children,” the opinion says. “May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result?”
The judges acknowledge that gay and lesbian couples are equally capable of being in loving, committed relationships and effectively raising children. But those facts don’t mean states must suddenly believe gay marriage bans violate the constitution, the opinion says.
EARLIER RULINGS: The San Francisco-based 9th Circuit said the proposition that children suffer in same-sex households “reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand.”
The Denver-based 10th Circuit scoffed at the attempts by Utah and other states to use procreation as a justification for gay marriage bans. In a majority opinion written by Judge Carlos Lucero, the court pointed out that adoptive parents and opposite-sex couples who rely on assistance to get pregnant aren’t denied the right to marry. They said they don’t buy the contention that same-sex couples are inferior parents.
2. ON POLYGAMY
THE LATEST: The 6th Circuit ruling suggests making gay marriage legal could open the door for others such as polygamists to claim their unions also constitute legal marriage.
“There is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot,” it says. “If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage.”
EARLIER RULINGS: The 10th Circuit rejected the “slippery slope” argument that contends legalizing gay marriage would lead to acceptance for polygamy. “Unlike polygamous or incestuous marriages, the Supreme Court has explicitly extended constitutional protection to intimate same-sex relationships,” the ruling said.
3. ON STATES’ RIGHTS
THE LATEST: States should be able retain authority to define marriage as between a man and woman to ensure the incentive to stay together for their children remains, the 6th Circuit opinion says.
“That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring,” it says.
EARLIER RULINGS: In its June ruling striking down Utah’s gay marriage ban, the 10th Circuit dismissed as “wholly illogical” the notion that states allowing gays to wed could somehow undermine traditional marriage. Judge Carlos Lucero wrote for the majority. “We may not deny them relief based on a mere preference that their arguments be settled elsewhere.”
4. ON THE SUPREME COURT
THE LATEST: The 6th Circuit makes note that the U.S. Supreme Court’s decision on Oct. 6 to turn away appeals from five states seeking to prohibit gay and lesbian unions does not end the debate on the constitutionality of gay marriage bans.
“A decision not to decide is a decision not to decide,” Circuit Judge Jeffrey Sutton wrote.
EARLIER RULINGS: Other appeals courts have agreed that the high court has not given clear guidance on the issue. About the Supreme Court’s ruling in June 2013 that overturned part of a federal ban on gay marriage, the 10th Circuit wrote: “While Windsor is the only Supreme Court case concerning same-gender marriage, it simply did not decide the issue of state prohibitions on same-gender marriages.”
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.”