Gay Marriage Backers Win Supreme Court Victory

Pooja Mandagere, left, and Natalie Thompson outside the Supreme Court following the 5-4 ruling by the court Friday. Credit Doug Mills/The New York Times

Pooja Mandagere, left, and Natalie Thompson outside the Supreme Court following the 5-4 ruling by the court Friday. Credit Doug Mills/The New York Times

WASHINGTON — In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a right to same-sex marriage.

Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.

The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.

Justice Kennedy said gay and lesbian couples had a fundamental right to marry.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”

“It would misunderstand these men and women to say they disrespect the idea of marriage,” Justice Kennedy said of the couples challenging state bans on same-sex marriage. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice John G. Roberts Jr., in a dissent joined by Justice Antonin Scalia and Clarence Thomas, said the Constitution had nothing to say on the subject.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

In a second dissent, Justice Scalia mocked Justice Kennedy’s soaring language.

“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”

As Justice Kennedy finished announcing his opinion, several attendees seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.

Justice John Paul Stevens, who retired in 2010, was on hand for the decision and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced.

Supporters of same-sex marriage gathered outside the Supreme Court on Friday. Credit Doug Mills/The New York Times

Supporters of same-sex marriage gathered outside the Supreme Court on Friday. Credit Doug Mills/The New York Times

As in earlier civil rights cases, the Supreme Court had moved cautiously and methodically, laying careful judicial groundwork for a transformative decision.

As late as October, the justices ducked the issue, refusing to hear appeals from rulings allowing same-sex marriage in five states. That decision delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.

Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The court did not agree to resolve the issue for the rest of the nation until January, in cases filed by gay and lesbian couples in Kentucky, Michigan, Ohio and Tennessee. The court heard extended arguments in April, and the justices seemed sharply divided over what the Constitution has to say about same-sex marriage.

Lawyers for the plaintiffs said their clients had a fundamental right to marry and to equal protection, adding that the bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.

The Obama administration, which had gradually come to embrace the cause of same-sex marriage, was unequivocal in urging the justices to rule for the plaintiffs.

  Source:  The New York Times, “Gay Marriage Backers Win Supreme Court Victory.” by Adam Liptak, June 26, 2015

Gay Marriage Arguments Divide Supreme Court Justices

Supporters of same-sex marriage gathered in front of the Supreme Court on Tuesday as the justices prepared to hear arguments on the issue. Credit Stephen Crowley/The New York Times

Supporters of same-sex marriage gathered in front of the Supreme Court on Tuesday as the justices prepared to hear arguments on the issue. Credit Stephen Crowley/The New York Times

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.

Crowd Awaits Gay Marriage Arguments. Publish Date: April 28, 2015. Photo by Olivier Douliery/Getty Images.

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

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court's decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

Robert Povilat, left, and Milton Persinger celebrated the U.S. Supreme Court’s decision not to stop same-sex marriages in Alabama. The couple were in line to be the first same-sex couple married in Mobile, Ala. Credit Dan Anderson/European Pressphoto Agency

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.

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

Same-sex couples waited for the Jefferson County courthouse doors to open on Monday in Birmingham. Credit Hal Yeager/Associated Press

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.)

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.

FILE – In this June 26, 2013, file photo, gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. The justices might have to decide to jump in at their closed-door conference on Friday, Jan. 16, 2015, if they want to resolve the legal debate over gay marriage in the next few months. The justices would hear the case in April, the last month for oral arguments before the next term begins in October. (AP Photo/J. Scott Applewhite, File)

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

The Supreme Court Is Likely To Set Up The Same-Sex Marriage Showdown On Friday

Getty Images/Alex Wong

Getty Images/Alex Wong

On Friday, the Supreme Court justices will be meeting to decide whether to hear a case — or multiple cases — challenging a ban on same-sex couples’ marriages.

This will be the second time the justices have considered whether to take any of the cases out of Kentucky, Michigan, Ohio, and/or Tennessee. When they did so on Jan. 9, they took no action on those cases, instead re-listing them for discussion on Friday.

This is a new practice by the court over the past year or so, re-listing cases they are considering taking once before accepting a case, called granting a writ of certiorari.

The justices did, however, deny an attempt by same-sex couples in Louisiana to have the Supreme Court hear their case before the appeals court — which heard their appeal on Jan. 9 — decided on the appeal.

Now, however, they are faced with choosing whether they will hear one or more of the four other cases — a decision that will foretell whether the justices intend to resolve the question of bans on marriage for same-sex couples nationwide by this June.

How did the justices get here?

In 2013, the Supreme Court declared the Defense of Marriage Act’s ban on recognizing same-sex couples’ marriages to be unconstitutional. The court also dismissed an appeal of a challenge to California’s Proposition 8 marriage ban on a technicality.

In striking down DOMA’s ban on federal recognition of same-sex couples’ marriages in Edith Windsor’s case on June 26, 2013, however, the justices opened the floodgates for marriage equality.

Just short of six months later, on Dec. 20, 2013, a federal judge in Utah declared the state’s ban unconstitutional. U.S. District Court Judge Robert Shelby refused to put his ruling on hold during the appeal, same-sex couples began marrying, and 2014 began with 18 states that allowed same-sex couples to marry. The Supreme Court eventually stepped in on Jan. 7, 2014 to stop marriages from proceeding while the case was appealed.

A year later, more than double as many states had marriage equality, with same-sex couples marrying in all of 35 states and in parts of two more.

Edie Windsor, left, and Roberta Kaplan speak onstage during the Pioneer’s Speakers Series at Paramount Screening Room at the Viacom Building on October 16, 2014 in New York City. Getty Images for Logo TV/Brad Barket

Marriage, marriage, everywhere.

The remarkable pace was the result of an unprecedented number of nearly unanimous opinions striking down state bans from Alaska to Wyoming to Florida and almost everywhere in between. For a time, in fact, it was only the one district court judge in Louisiana who upheld a state’s ban.

Several federal appeals courts began to weigh in over the summer of 2014, with Utah and Oklahoma’s bans being struck down by the 10th Circuit Court of Appeals and then Virginia’s ban being struck down by the 4th Circuit Court of Appeals. The 7th Circuit Court of Appeals followed, striking down Indiana and Wisconsin’s bans.

The rulings in those states were on hold, though, until the Supreme Court announced on Oct. 6, 2014, that it would not be accepting any of the states’ appeals. The appeals court rulings would stand, and the bans had come to an end in those five states. Marriage equality spread to other states within those circuits, and the 9th Circuit Court of Appeals announced that it, too, was striking down bans — now in Idaho and Nevada.

Nevada officials were done fighting, but Idaho officials wanted to appeal the issue further. They asked the Supreme Court to keep the ruling on hold — as the justices had done with the first batch of cases. Now, though, things were different. The Supreme Court, after a short delay, denied Idaho’s request — giving no reasoning for their decision but sending ripples throughout the country.

More judges struck down more bans.

Then, on Nov. 6, the 6th Circuit Court of Appeals broke the streak, upholding the bans in Kentucky, Michigan, Ohio, and Tennessee.

Judge Jeffrey Sutton, joined by Judge Deborah Cook, reversed the district court decisions in all four states — setting up the Supreme Court showdown that is likely to be announced on Friday.

Earlier in the year, Justice Ruth Bader Ginsburg had told people to keep an eye on the 6th Circuit ruling, noting that there would be more urgency for the Supreme Court to take a case if there was a circuit split — in other words, if the appeals courts disagreed on the issue.

Until the 6th Circuit ruling, the appeals courts were in agreement; after, a circuit split was created. In the weeks that followed, the plaintiffs in the various cases asked the Supreme Court to grant certiorari and hear their appeal.

April DeBoer, left, and Jayne Rowse, are challenging Michigan’s ban on same-sex couples’ marriages. Getty Images/Bill Pugliano

What are the justices going to do?

The first rule of the Supreme Court is that there are, basically, no rules for the Supreme Court. The court can reverse prior decisions, and the court’s policies and practices can change if the justices so desire it. As a result of this, it’s difficult to know what the justices are going to do at any given moment.

With that giant caveat, the justices most likely are going to decide on Friday to take one or more cases for review this term — which would mean a decision would be expected by the end of June.

The pace and pure number of all of the cases making their way up the chain have, effectively, forced the justices’ hands on the matter. Even if they had hoped in 2013, by dismissing the California Prop 8 challenge, to put off the issue for another four or five years, the issue came back to them far more quickly than that. Even if they had hoped this past October, by denying certiorari in cases where the bans had been struck down, to put off the issue until next term, the 6th Circuit decision came quickly enough to bring the issue up to the justices a second time this term.

This time, there is no good way for the justices to dodge the issue. And, while the justices could keep re-listing the cases until it forces them into the next term, such a move seems unlikely given the current climate.

Assuming the justices are going to take at least one of the cases, they also must decide which one they will take.

The four cases in which plaintiffs are seeking certiorari are not the same.

In Michigan, a full trial was undertaken in response to April DeBoer and Jayne Rowse’s challenge, who are seeking to be married in Michigan. This case is, in simpler terms, a marriage case.

In Ohio and Tennessee, on the other hand, the plaintiffs are seeking recognition of same-sex couples’ marriages granted by other states. In Ohio, James Obergefell is seeking recognition of his marriage to John Arthur on Arthur’s death certificate. Other plaintiffs in Ohio, including Brittni Rogers and Brittani Henry, are seeking recognition of their marriage on their children’s birth certificates and for other purposes. In Tennessee, plaintiffs, including Valeria Tanco and Sophy Jesty, are seeking recognition of their marriages for a wide variety of purposes. The Tennessee plaintiffs also challenge whether Tennessee’s recognition ban violates their right to interstate travel.

In Kentucky, meanwhile, some plaintiffs, including Timothy Love and Lawrence Ysunza, challenge the state’s marriage ban while other plaintiffs, including Gregory Bourke and Michael Deleon, challenge the marriage recognition ban.

If the justices are looking to the lawyers to help them decide which case to take — an issue examined at length in a recent blockbuster Reuters report — then the Kentucky plaintiffs’ addition of Stanford Law School’s Jeffrey Fisher to their legal team and the Tennessee plaintiffs’ help from Ropes and Gray’s Douglas Hallward-Driemeier could be a bonus for their teams.

On the other hand, there are national LGBT advocacy group lawyers on all four cases, in addition to local counsel, many of whom have significant experience with LGBT legal issues: Gay & Lesbian Advocates & Defenders’ Mary Bonauto is helping with the Michigan plaintiffs; Lambda Legal and the ACLU are assisting with the Ohio plaintiffs; National Center for Lesbian Rights lawyers are on the Tennessee plaintiffs’ case; and the ACLU is also helping with the Kentucky plaintiffs.

If the justices want the simplest case, with the most detailed record, in order to resolve the issue, the Michigan marriage case would be the case to take. If the justices want a single legal team that would present clear facts about both marriage and marriage recognition claims, then Kentucky is the way to go. Finally, the justices could take some combination of the four cases, either consolidating the cases to be heard as one, letting the lawyers figure out how argument time will be split, or hearing cases in succession.

In any event, after Friday’s conference, if a decision is made to take one or more cases, the decision is expected to be announced that afternoon.

There is a slight — but unlikely — possibility that the court could wait until Tuesday, Jan. 20, to announce whether it will be hearing a case, but that is unlikely. Usually, at this point in the court’s term, such an announcement would be expected Friday afternoon.

Then, if a case is accepted, the timeline starts for the filing of briefs by both sides and by outside parties, and arguments would be set — likely in April.

Finally, a decision would be expected before the court adjourns for its summer recess — usually by late June.

UPDATE

This post has been updated to clarify the Supreme Court’s dismissal of California’s Proposition 8 appeal. Jan. 15, 2015, at 12:44 a.m.

Source: BuzzFeed, “The Supreme Court Is Likely To Set Up The Same-Sex Marriage Showdown On Friday,”  posted on Jan. 14, 2015, at 10:25 p.m, 

 

U.S. Supreme Court denies stay; same-sex marriage in Florida begins Jan. 6

Attorney Stephen Rosenthal, left, explains to the media the real-life consequences of the federal court ruling as Tony Lima, executive director of SAVE, and same-sex couple, Carlos Andrade and husband, Christian Ulvert, right, stands near by. ACLU held a press conference in reaction a federal district court ruling the state's same-sex marriage ban is unconstitutional on Thursday, Aug. 21, 2014. CARL JUSTE MIAMI HERALD STAFF

Attorney Stephen Rosenthal, left, explains to the media the real-life consequences of the federal court ruling as Tony Lima, executive director of SAVE, and same-sex couple, Carlos Andrade and husband, Christian Ulvert, right, stands near by. ACLU held a press conference in reaction a federal district court ruling the state’s same-sex marriage ban is unconstitutional on Thursday, Aug. 21, 2014. CARL JUSTE MIAMI HERALD STAFF

Same-sex marriage will begin Jan. 6 in Florida — the U.S. Supreme Court on Friday evening denied Florida Attorney General Pam Bondi’s request to Justice Clarence Thomas that he extend a stay preventing the state from recognizing the marriages of eight gay and lesbian couples.

“The application for stay presented to Justice Thomas and by him referred to the Court is denied,” the Supreme Court announced Friday night, allowing Florida to become the 36th state, plus the District of Columbia, to recognize same-sex marriage.

In a statement Friday night, Bondi conceded: “Tonight, the United States Supreme Court denied the State’s request for a stay in the case before the 11th Circuit Court of Appeals. Regardless of the ruling, it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage. Nonetheless, the Supreme Court has now spoken, and the stay will end on Jan. 5.”

The case, however, isn’t over. Legal arguments haven’t been heard before the 11th Circuit, which hasn’t ruled on the merits of the case.

Also still unresolved: whether clerks in the state’s 67 counties will adhere to the federal court ruling that declared Florida’s gay-marriage ban unconstitutional. The law firm representing the clerks’ association has warned them they could be in violation of Florida law if they issue same-sex marriage licenses before the U.S. Supreme Court settles the issue.

What was clear Friday night is that the Supreme Court refused to extend U.S. District Court Judge Robert L. Hinkle’s stay allowing same-sex marriage to be recognized in Florida on Jan. 6.

“The Supreme Court ruled 7-2 in favor of allowing the injunction to go into effect after Jan. 5,” said attorney Stephen F. Rosenthal of the Miami law firm Podhurst Orseck, who is working with the ACLU of Florida in the case of eight same-sex couples and a Fort Myers widow seeking to have their out-of-state marriages recognized in Florida.

Said Howard Simon, executive director of the ACLU of Florida: “I’m hoping this was Bondi’s last stand. Congratulations to all the people we represented and our great legal team in this historic victory.”

In March, LGBT-rights group SAVE and eight same-sex couples who married elsewhere in the United States sued Florida to recognize their unions: Sloan Grimsley and Joyce Albu of Palm Beach Gardens; Lindsay Myers and Sarah Humlie of Pensacola; Chuck Hunziger and Bob Collier of Broward; Juan Del Hierro and Thomas Gantt Jr. of Miami; Christian Ulvert and Carlos Andrade of Miami; Richard Milstein and Eric Hankin of Miami; Robert Loupo and John Fitzgerald of Miami; and Denise Hueso and Sandra Jean Newson of Miami.

“We’re exhilarated. We’re over the moon. We’re so excited not just for us but for every other couple,” Milstein, a law partner at Akerman in Miami, said Friday night. “We’re beside ourselves. This is so exciting, so great.”

On April 10, the ACLU amended its complaint by adding another plaintiff: Arlene Goldberg of Fort Myers, whose wife, Carol Goldwasser, died March 13. Goldberg and Goldwasser had been partners for 47 years. They moved from the Bronx to Florida in 1989 and married in New York in October 2011. Hinkle ordered Goldwasser’s death certificate to be amended from single woman to married, opening the door for Social Security death benefits.

The ACLU suit eventually was consolidated with a similar federal case involving two couples in North Florida, one already married in Canada and the other wanting to wed.

On Aug. 21, Hinkle of Tallahassee ruled in favor of the couples, throwing out the gay-marriage ban in Florida’s Constitution — approved by 62 percent of voters in 2008 — calling it “an obvious pretext for discrimination.” He stayed his ruling until Jan. 5, giving Bondi time to appeal.

Bondi appealed the case to the 11th Circuit Court of Appeals in Atlanta, which has jurisdiction over Florida, Georgia and Alabama. The appeal hasn’t been heard, but on Dec. 3, three 11th Circuit judges denied Bondi’s request to extend the stay. Bondi this week turned to Thomas, who oversees the 11th Circuit. On Friday night, the high court issued a two-sentence denial of Bondi’s request, noting that justices Thomas and Antonin Scalia would have granted it.

According to the ACLU, once the stay is lifted, Florida must recognize all same-sex marriages performed out of state.

“Every same-sex couple that has been married in another state or another country will have their marriage recognized, and they will qualify for the benefits with marriage: health insurance, pensions, all the practical benefits that come with marriage,” Simon said. “That will happen 12:01 on Jan. 6.”

Also, same-sex couples will now be eligible for Social Security benefits, which are dependent on state laws, Simon said.

“We expect public officials in all of Florida’s 67 counties to understand the significance of this development and look forward to full implementation of Judge Hinkle’s decision across our state,” ACLU of Florida attorney Daniel Tilley said in a statement.

Still not known: Which Florida clerks will issue marriage licenses to gay and lesbian couples.

Top law firm Greenberg Traurig, which represents the Florida Association of Court Clerks, has advised them that only the clerk in Washington County, in rural North Florida — named in Florida’s federal gay-marriage lawsuit — would be bound by Hinkle’s ruling. All other Florida clerks who are not parties in the lawsuit could face “a misdemeanor of the first degree, punishable by imprisonment of not more than one year and a fine of not more than $1,000” if they went ahead and married same-sex couples, according to Greenberg Traurig.

Just before the Supreme Court ruled on the stay Friday night, Greenberg Traurig’s Miami-based co-president, Hilarie Bass, told the Miami Herald that the firm supports same-sex couples’ right to marry but made its recommendation to clerks based on Florida law.

South Florida clerks have been vague as to whether they would issue licenses to same-sex couples beginning Jan. 6.

Monroe County Clerk Amy Heavilin has said she wants to be the first clerk in Florida to marry a gay couple, according to spokesman Ron Saunders.

“I’m sure she’d be open to being a historic clerk,” Saunders said. “Amy Heavilin has personally approved us staying open longer than normal hours, and she will be the one to perform the ceremony.”

Broward Clerk Howard Forman has said his Fort Lauderdale office is ready to go. “There’s a lot of pent-up demand,” he said.

Miami-Dade Clerk Harvey Ruvin says he will issue licenses if directed by the court.

“It is unfortunate that this change is happening in a confusing, inconsistent and somewhat frustrating manner, causing pain and loss of patience for many of our citizens,” Ruvin said in an email Wednesday to Palm Beach Clerk Sharon R. Bock. “In my view, our only option is to remain hopeful that the COURTS will resolve that confusion in a timely manner.”

Source: Miami Herald, “U.S. Supreme Court denies stay; same-sex marriage in Florida begins Jan. 6,” By Steve Rothaus, 12/19/2014 7:12 PM, 12/20/2014 8:45 AM

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