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)

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

Newlyweds and their friends toast to their recently completed wedding ceremonies at St. Louis City Hall on Wednesday, June 25, 2014. Four same-sex couples were married in separate ceremonies on Wednesday. Photo By David Carson, dcarson@post-dispatch.com

Newlyweds and their friends toast to their recently completed wedding ceremonies at St. Louis City Hall on Wednesday, June 25, 2014. Four same-sex couples were married in separate ceremonies on Wednesday. Photo By David Carson, dcarson@post-dispatch.com

Denying Missouri’s gay couples the opportunity to marry is unconstitutional, a judge ruled this afternoon.

As a result, St. Louis Circuit Judge Rex Burlison said in his decision, marriage licenses can be issued throughout Missouri beginning today.

“The Court finds and declares that any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes, is legally entitled to a marriage license,” Burlison wrote.

He said that the Missouri Constitution violates the Equal Protection Clause and Due Process Clause of the 14th Amendment to the U.S. Constitution.

Burlison’s ruling comes more than four months after four couples were married at St. Louis City Hall, even though there is a 10-year-old state constitutional amendment defining marriage as between one man and one woman.

The act of defiance, choreographed with the support of Mayor Francis Slay and then-Recorder of Deeds Sharon Carpenter, led Attorney General Chris Koster to file an injunction preventing more marriage licenses from being issued to same-sex couples.

It’s the second major victory in the state for same-sex marriage. Last month, a Kansas City judge ruled that marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state. The decision by Circuit Judge J. Dale Youngs was the first by any judge affirming same-sex marriage in Missouri. That ruling affected more than 5,400 Missouri couples.

In both cases, an attorney from Koster’s office defended the state constitution. Koster supports same-sex marriage but said he has a legal responsibility to defend Missouri law. However, after losing the Kansas City case, Koster declined to appeal, saying the state is obligated to honor contracts entered into other states.

“Missouri’s future will be one of inclusion not exclusion,” Koster said. It was not immediately clear, however, whether Koster would appeal today’s ruling. Gay rights advocates expect Koster will ask the Missouri Supreme Court to make a final ruling.

“This is a positive move forward for loving same-sex couples in the City of St. Louis,” said Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri. “It is also a win for families throughout Missouri as another discriminatory obstacle is lowered.”

St. Louis City Counselor Winston Calvert said issuing the four marriage licenses in June “pushed the envelope on behalf of families throughout the State of Missouri who now can enjoy the dignity, stability, and security of a legal marriage.”

In arguments before Burlison on Sept. 29, Calvert told the judge that marriage is a fundamental right of all citizens, but the constitutional amendment “categorically denies that right to an entire class of people.”

The landscape of same-sex marriage has changed dramatically since June 2013. That’s when the U.S. Supreme Court struck down a key part of the Defense of Marriage Act.  That ruling allowed gay couples who live in states where their marriages are legally recognized to receive the same federal benefits as married opposite-sex couples.

Then last month, the Supreme Court rejected appeals from five states seeking to preserve their bans. There are now 32 states plus the District of Columbia that issue marriage licenses to same-sex couples.

Marc Solomon, national campaign director for Freedom to Marry, said Burlison’s ruling “is very much consistent with the way judges have been ruling around the country since the Supreme Court took up the issue.”

The ruling today marks 49 successful challenges to same-sex marriage laws across the country, compared to three losses, Solomon said.

“There has just been incredible momentum,” he said.

On Wednesday afternoon, St. Louis Recorder of Deeds Jennifer Florida began issuing marriage licenses to same-sex couples. Lilly Leyh and Sadie Pierce were first in line.

“Hi. I would like to buy a marriage,” Pierce said to a cashier at the recorder’s office.

Leyh and Pierce said they knew the judge had the case under consideration. When they heard about the ruling they rushed to St. Louis City Hall to get a license. Leyh, 25, and Pierce, 27, met while studying at Washington University.

“We were really hoping this would happen,” Leyh said.

The normally staid and quiet recorder’s office took on a celebratory tone as more couples arrived on late Wednesday afternoon.  A banner reading “First in Marriage” and “#ShowMeMarriage” was hung on an office wall this afternoon. Mayor Francis Slay appeared alongside several other well-wishers to congratulate them.

“We acted because it was the right thing to do,” said Slay, who has gay siblings. “Cities are strengthened by their families. I want St. Louis to be the sort of diverse and open place in which all families – gay and straight – choose to live, be creative, and build businesses. This is a human rights issue, a quality of life issue, and an economics issue. Judge Burlison certainly got it right.”

Florida said issuing marriage licenses to gay couples was a moment she had been anticipating.

“We’ve been given the green light to begin issuing marriage licenses so all can marry the person they love.”

Judge orders marriages of Missouri gay couples wed legally elsewhere to be recognized here

The ruling affects more than 5,000 gay couples in Missouri. Read more

St. Louis gay couples argue it is fundamental right to have their marriages recognized

A judge in Kansas City heard arguments on a similar case last week. Read more

Judge to rule ‘as quickly as possible’ in Missouri same-sex marriage case

The case is the first of three working through courts in Missouri. Read more

Battle over same-sex marriages in St. Louis headed to court

Four weddings at City Hall set up test cases to challenge state’s constitutional ban, but more licenses won’t be issued until the courts decide.  Read more

Fight for same-sex marriage in Missouri mirrors efforts across country

A lawsuit seeks recognition of marriages, not ban of the gay unions.Read more

Source: St. Louis Dispatch, “Judge rules that gay marriage ban in Missouri is unconstitutional,” 37 minutes ago  • 

Judge rules against Kansas same-sex marriage ban

A federal judge has ruled against the ban on same-sex marriage in Kansas.

A federal judge has ruled against the ban on same-sex marriage in Kansas.

As voters headed to the polls for Election 2014, a federal judge on Tuesday ruled against the ban on same-sex marriage in Kansas.

In a 38-page decision, U.S. District Judge Daniel Crabtree, an Obama appointee, issued a preliminary injunction against the enforcement on Kansas law prohibiting of marriage rights for same-sex couples. The injunction is warranted, Crabtree writes, because of legal precedent and because state officials defending the law haven’t made a sufficient case they would prevail in court.

“Because Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution,” Crabtree writes. “Accordingly, the Court grants plaintiffs’ request for preliminary relief and enters the injunction described at the end of this Order.”

A temporary stay was included as part of the decision, so same-sex couples won’t be able to in Kansas until 5 pm Central Time on Nov. 11, unless defendants sooner inform the court they won’t seek an appeal before the U.S. Tenth Circuit Court of Appeals.

The litigation filed before the court was filed by the American Civil Liberties Union of Kansas to compel the circuit to confirm to judicial precedent enacted the Tenth Circuit rulings against same-sex marriage bans in Utah and Oklahoma, which lie within the same circuit as Kansas.

According to the Williams Institute at the University of California, Los Angeles, the ruling opens to door to marriage for an an estimated 4,009 cohabiting same-sex couples in Kansas. An estimated 22 percent of these couples are raising nearly 1,750 children in their homes.

The decision comes on the heels of a hearing on Friday on the matter of issuing a preliminary injunction in the case. According to the Associated Press, the state urged the judge not to block the state from enforcing the ban until a decision from the Kansas Supreme Court, which is scheduled to hold hearings on a related case on Nov. 6, but the ACLU maintained further delay would harm same-sex couples in Kansas. At the conclusion of the hearing, Crabtree said he would decide whether to issue a preliminary injunction in the case “as quickly as we can.”

Kansas prohibition on marriage rights for same-sex couples, known as Kansas Proposed Amendment 1, was ratified at the ballot as part of the state constitution by 70 percent of the vote. Gov. Sam Brownback and Attorney General Derek Schmidt defended the law in court against litigation and campaigned on those efforts ahead of Election Day in Kansas.

Source: Washington Blade, “Judge rules against Kansas same-sex marriage ban,” by Chris Johnson |  November 4, 2014

Ted Olson: ‘Point of no return’ on gay marriage passed

Ted Olson was Solicitor General of the United States during the period 2001-2004. Photo: Jack Gruber, USA Today

Ted Olson was Solicitor General of the United States during the period 2001-2004. Photo: Jack Gruber, USA Today

 

WASHINGTON — Former solicitor general Theodore Olson, the Republican lawyer who argued Bush v. Gore and the challenge to California’s Proposition 8, says the Supreme Court through action and inaction this month passed “the point of no return” on same-sex marriage.

“I do not believe that the United States Supreme Court could rule that all of those laws prohibiting marriage are suddenly constitutional after all these individuals have gotten married and their rights have changed,” he said in an interview on Capital Download. “To have that snatched away, it seems to me, would be inhuman; it would be cruel; and it would be inconsistent with what the Supreme Court has said about these issues in the cases that it has rendered.”

This month, the high court let stand without explanation appeals court rulings permitting gay marriage in five states. In an interview with The New Yorker published last week, President Obama said he believes it is a constitutional right but endorsed the court’s incremental approach.

Olson disagrees with that, saying the Supreme Court should take a case and affirmatively endorse marriage as a constitutional right. “I think the thing he overlooks…(is) that there are people in 18 states of the United States that don’t have this fundamental right that he has just announced that he believes in.”

Waiting for the process in lower courts to open the door to gay marriage in all 50 states “would not be good enough because it’s not now,” Olson said on USA TODAY’s weekly video newsmaker series. “When will that happen? And how much misery and how much suffering do individuals in this country have to experience before that happens?”

Given his Republican credentials, Olson has been an unlikely champion in the gay-marriage movement. He served in the Justice Department as assistant attorney general in the Reagan administration and solicitor general in the George W. Bush administration. He was the lead attorney facing Democratic counterpart David Boies in the landmark Bush v. Gore case that finally settled the 2000 election and argued theCitizens United v. Federal Election Commission that changed campaign finance law.

In 2009, he and Boies joined forces to challenge California’s ban on same-sex marriage. Just five years later, the number of states permitting couples of the same gender to marry has exploded from three to 32. Two-thirds of Americans now live in states that allow gay marriage.

“We never thought it would move this fast,” Olson says, attributing the change in legal status and public opinion both to “the work of a lot of lawyers” and the actions by individuals in Hollywood and across the country who have “revealed their sexual identity and told their story.”

Last week, a U.S. District Court judge in Puerto Rico dismissed a challenge to a law there that limits marriage to one man and one woman, but Olson predicts that decision will be overturned by the Appeals Court. He notes that a closely watched case before a three-judge panel in the 6th Circuit of Ohio could go either way, with Judge Jeffrey Sutton as the apparent swing vote.

“He’s a conservative and it’s possible that he might rule in favor of sustaining the prohibition,” Olson says. But if that happens, “all of the judges on the Circuit, I think, would come out the other way.”

At age 74, Olson has argued 61 cases before the Supreme Court, on issues ranging from the First Amendment to the separation of powers. He says he doesn’t think about his legacy: “I hope that I will have a few more years left.” But he adds that his work on gay marriage “is the legal accomplishment that I think will always mean the most to me.”

Source: USA Today, “Ted Olson: ‘Point of no return’ on gay marriage passed,” by Susan Page, 6:42 a.m. EDT October 27, 2014