Supreme Court denies stay in Kentucky clerk bid to refuse marriage licenses

In a significant blow to those who seek to use a free exercise of religion argument to discriminate against same-sex couples seeking to marry, U.S. Supreme Court on Monday evening denied an emergency request to stop enforcement of a federal district court order that a Kentucky county clerk resume issuing marriage licenses.

In a significant blow to those who seek to use a free exercise of religion argument to discriminate against same-sex couples seeking to marry, U.S. Supreme Court on Monday evening denied an emergency request to stop enforcement of a federal district court order that a Kentucky county clerk resume issuing marriage licenses.

The one-sentence order indicates Justice Elena Kagan, who oversees such requests for cases out of the Sixth Circuit U.S. Court of Appeals, referred the matter to the full court. No justice indicated dissent to the denial of her request, suggesting the religious freedom argument may have a difficult challenge once it reaches the high court.

Attorneys for Rowan County Clerk Kimberly Davis filed their request Friday after being denied the stay by the Sixth Circuit.

Davis still has an appeal before the Sixth Circuit. She is challenging a preliminary ruling in August by a federal district court judge. In a lawsuit filed by the ACLU, U.S. District Court Judge David Bunning (an appointee of President George W. Bush) issued a preliminary injunction ruling prohibiting Davis from continuing her “no marriage licenses” policy, saying it was also unconstitutional.

Davis had ordered her office to stop issuing marriage licenses to any couple –straight or gay— after the U.S. Supreme Court, in June, struck down state bans on marriage for same-sex couples. Davis said it was against her religion to acknowledge marriages between same-sex partners and noted that all marriage licenses issued by the county must carry her signature.

“Expressly to avoid disparate treatment of any couple and ensure that all individuals and couples were treated the same, Davis suspended the issuance of all marriage licenses in Rowan County,” stated the petition to the Supreme Court. “….She instructed all deputy clerks to stop issuing marriage licenses because

licenses are issued on her authority, and because every license requires her name to appear on the license as the authorizing person.”

Davis describes herself as an Apostolic Christian. According to the denomination’s website, “The New Testament grants believers liberty. However, it also instructs us to not allow our liberty to become a stumbling block for a weaker brother. Since Apostolic Christians are an interconnected brotherhood, we are encouraged to curtail our individual freedoms to benefit the local and national church family.”

The conservative Liberty Counsel group is representing Davis in

Miller v. Davis, the lawsuit the ACLU initiated on behalf of couples in Rowan County who were refused marriage licenses under Davis’ “no marriage licenses” policy.

Miller v. Davis is believed to be the first lawsuit in the country to test the argument of some same-sex marriage opponents that their First Amendment right to freedom to exercise religion trumps the right of same-sex couples to the 14th Amendment guarantees of equal protection and due process of the law.

In its plea for a stay, the Liberty Counsel stated that Davis “holds an undisputed sincerely-held religious belief that marriage is a union between a man and a woman, only. Thus, in her belief, SSM is not, in fact, marriage. If a SSM license is issued with Davis’ name, authorization, and approval, no one can unring that bell. That searing act of validation would forever echo in her conscience…. If Davis’ religious objection cannot be accommodated…then elected officials have no real religious freedom when they take public office.”

Because the Supreme Court denied Davis’ request for a stay, Davis will now have to decide Tuesday whether to continue in her job while she appeals the merits of the preliminary district court ruling.

Supreme Court upholds health insurance subsidies critical to people with HIV

The U.S. Supreme Court, in a 6 to 3 decision, upheld the right of the federal government to provide health care insurance subsidies to people with low income in states that have chosen not to participate in the Affordable Care Act by setting up insurance “exchanges.”

The decision, written by Chief Justice John Roberts, is a big political victory for the Obama administration and a big relief for people with low incomes, including many people with HIV.

The U.S. Supreme Court, in a 6 to 3 decision Thursday, upheld the right of the federal government to provide health care insurance stethoscopesubsidies to people with low income in states that have chosen not to participate in the Affordable Care Act by setting up insurance “exchanges.”

The decision, written by Chief Justice John Roberts, is a big political victory for the Obama administration and a big relief for people with low incomes, including many people with HIV. Lambda Legal, Gay & Lesbian Advocates & Defenders, the National Center for Lesbian Rights joined briefs to the court urging it to uphold the subsidies.

The Supreme Court did not rule Thursday on whether states can ban same-sex couples from marrying, but it is scheduled to release its last five decisions of the session tomorrow and Monday.

The decision, King v. Burwell, upheld a decision from the Fourth Circuit U.S. Court of Appeals that said the federal government’s subsidies to people with low incomes in all 50 states was consistent with the intent Congress had in passing the Affordable Care Act (ACA).

Lambda, Gay & Lesbian Advocates & Defenders, and other LGBT groups filed a brief urging the Supreme Court to uphold the lower court decision. The brief led by Lambda said that withholding the subsidies from people in the states that did not participate in ACA would “lead to an absurd and catastrophic public health result, especially in the context of HIV….”

Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined the Chief Justice in the majority opinion.

Justice Antonin Scalia wrote the dissent, which was joined by Justices Clarence Thomas and Samuel Alito.

President Obama signed the Affordable Care Act into law in 2010 with the aim of providing health care insurance for all citizens. One aspect of the law required states to create health insurance “exchanges” through which citizens could do comparative shopping and find coverage they could afford. If states decided against creating their own exchange, the law provided for the federal government to set up an exchange for citizens in those states.

The ACA also provided for the federal government to provide subsidies for citizens with low incomes through the exchanges. Opponents of the ACA challenged those subsidies, saying the law meant them to be provided only through state-established exchanges, not through federal exchanges. A conflict arose over the law’s stipulation that the subsidy depended in part on whether the “applicable taxpayer” sought insurance through “an Exchange established by the state….” In writing the regulations to implement the ACA, the Internal Revenue Service said the subsidies were available to a taxpayer who enrolled through “an Exchange,” whether it was established by the state or the federal government.

The majority said “State Exchanges and Federal Exchanges are equivalent….”

“If a State chooses not to follow the directive in [the ACA] that it establish an Exchange, the Act tells the Secretary [of Health and Human Services] to establish ‘such Exchange.’ And by using the words ‘such Exchange,’ the Act indicates that State and Federal Exchanges should be the same,” wrote Chief Justice Roberts.

Justice Scalia called that conclusion “absurd” because “The Secretary of Health and Human Services is not a State.”

Scott Schoettes, HIV Project Director for Lambda, called the majority decision “great news,” saying it protects “access for all” to health insurance, “including people living with HIV who are low-income, rural, southern, Black, and were—before the Affordable Care Act—largely uninsured.”

“No one should be put at greater risk to the ravages of HIV simply because they live in one of the 34 states choosing not to set up its own health insurance exchange,” said Schoettes. Lambda noted that, when ACA was enacted in 2010, “only 17 percent of people living with HIV had private health insurance.” Schoettes said that, while Lambda doesn’t have statistics on the change since ACA, “we know that it has increased substantially, because we know that there are lots of people enrolled through the exchanges today that were not previously able to obtain private health insurance.”

The brief noted that the rate of uninsured LGBT adults with low income went down by eight percentage points during the first year of ACA enrollment.

Our draft of LGBT history counts. Please help keep LGBT news organizations alive with a contribution.

Abercrombie case: LGBT and evangelicals on the same side

It is a rare occasion when LGBT legal activists find themselves on the same side of a case as the conservative Christian Legal Society and the National Association of Evangelicals. It is also rare to find LGBT legal activists on the same side as conservative Justice Antonin Scalia and his fondness for hewing to the original explicit language of a law.

But so it was with EEOC v. Abercrombie & Fitch June 1, when the U.S. Supreme Court ruled that an employer cannot escape federal law’s requirement to accommodate a job applicant’s religious practices by claiming the applicant never told the employer about his or her religious practices.

It is a rare occasion when LGBT legal activists find themselves on the same side of a case as the conservative Christian Legal Society and the National Association of Evangelicals. It is also rare to find LGBT legal activists on the same side as conservative Justice Antonin Scalia and his fondness for hewing to the original explicit language of a law.

But so it was with EEOC v. Abercrombie & Fitch June 1, when the U.S. Supreme Court ruled that an employer cannot escape federal law’s requirement to accommodate a job applicant’s religious practices by claiming the applicant never told the employer about his or her religious practices.

The case did not involve an LGBT person, but it did involve a scenario with which LGBT job applicants are familiar: where an employer quietly presumes something about the applicant based on the applicant’s appearance and then denies the applicant a job based on that suspicion.

In this case, the employer made a presumption based on a piece of attire. The case involved a woman who applied for a job at a national clothing chain store. Because the young woman, Samantha Elauf, is Muslim, she wore to the interview a black hijab, a headscarf that many Muslim women wear in response to the Qu’ran’s directive that women cloak their sexuality in public.

During her job interview with Abercrombie & Fitch for a sales rep position, Elauf did not speak about her religion, and her interviewer did not ask about it. But after the interview, the interviewer asked an Abercrombie district manager whether the woman’s headscarf would violate the company’s “look policy” against sales reps wearing caps and the color black.

The interviewer said she told her supervisors that Elauf was Muslim, but the district manager said he had no knowledge that Elauf wore the scarf for religious reasons. The district manager instructed the interviewer to reject Elauf for the job. And a friend of Elauf’s who worked at the store told her she was rejected for the position because of her hijab.

Elauf sought help from the the U.S. Equal Employment Opportunity Commission (EEOC), which filed suit against Abercrombie, saying it had violated Title VII of the Civil Rights Act of 1964. In relevant part, the Act says, “It shall be an unlawful employment practice for an employer to fail or refuse to hire …any individual…because of such individual’s …religion….” It also prohibits employers from classifying applicants because of their religion in order to disadvantage them.

Title VII also prohibits discrimination based on race, color, sex, and national origin, but not based on sexual orientation or gender identity. However, in a 1989 decision, Price Waterhouse v. Hopkins, the Supreme Court said Title VII covered discrimination based on “sex stereotyping.” And the EEOC has been accepting complaints of discrimination based on a person’s sexual orientation or gender identity as potential Title VII claims.

Abercrombie argued that it rejection of Elauf couldn’t be in violation of Title VII because it never had “actual knowledge” that Elauf wore her black headscarf for religious reasons. The 10th Circuit U.S. Court of Appeals agreed. The National Center for Lesbian Rights joined a brief filed by the American Jewish Committee that criticized the 10th Circuit opinion as a sort of “Don’t ask, don’t tell” approach “for any employer who wants to engage in intentional hiring discrimination based on religion.”

“Rewarding such willful or pretended ignorance (or worse) is the antithesis of how Title VII is meant to work,” said the brief.

In an online essay, Gregory Nevins, employment fairness program specialist for Lambda Legal, explained why his group filed a brief on Elauf’s behalf. First, he said, Lambda was concerned the Supreme Court might issue “an overly broad ruling, extolling the primacy of workers’ religious rights, because many employees have cried religious discrimination when disciplined for actions harassing and even menacing to their coworkers, including LGBT workers.”

But Lambda’s brief also argued that Title VII simply does not include any language that gives an employer a pass on accommodating an employee’s religious practices by claiming the employee never told the employer about his or her religion.

Lambda said it has seen a “disturbing tendency” by the lower courts to dismiss certain Title VII claims –including many by LGBT workers— by creating new “rules and prerequisites” that are not in the language of Title VII. In the 10th Circuit’s case, the new rule was that an employee or applicant had to inform the employer of their religious practices and work out some potential accommodation in advance.

But in an 8 to 1 decision (with only Justice Clarence Thomas dissenting), the Supreme Court said Abercrombie violated Title VII when it failed to hire Elauf because it suspected she was Muslim and that she would likely seek accommodation at work for her religious beliefs.

The decision, authored by Scalia, said, “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

“An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive,” wrote Scalia. “Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

And the 10th Circuit’s approach of requiring an employer have “actual knowledge” of an employee or applicant’s religious practices, said Scalia, is simply not in the text of Title VII that Congress enacted.

“I’m very happy about the decision,” said Lambda’s national legal director Jon Davidson. Lambda’s brief, noted Davidson, “made the point emphasized by Justice Scalia that courts should not add language to Title VII that Congress did not enact in order to achieve what courts may think is a desirable result.”

Meanwhile, LGBT groups are awaiting other Supreme Court decisions this month, including:

* Obergefell v. Hodges, an appeal challenging a Sixth Circuit decision that upheld state bans on same-sex couples marrying; and

* King v. Burwell, an appeal challenging a Fourth Circuit decision upholding the federal government’s tax subsidies to people with low incomes in all 50 states to buy health coverage. Lambda, Gay & Lesbian Advocates & Defenders, and other LGBT groups filed a brief urging the Supreme Court to uphold the lower court decision. It noted that the subsidies have a “significant impact” on fighting HIV and that limiting those subsidies would have a “devastating public health” impact on people of color.

Sparring continues among appeals courts as Supreme Court puts off marriage cases another week

The U.S. Supreme Court put off until at least this Friday (January 16) a decision on whether it will hear appeals challenging a Sixth Circuit U.S. Court of Appeals ruling that said states can ban same-sex couples from marrying. Meanwhile, three judges of the Ninth Circuit issued a blistering dissent against the full appeals courts refusal to hear appeals from Idaho and Nevada, and a three-judge panel at the Fifth Circuit heard arguments from challenges to three state bans on Monday.

The U.S. Supreme Court put off until at least this Friday (January 16) a decision on whether it will hear appeals challenging a Sixth Circuit U.S. Court of Appeals ruling that said states can ban same-sex couples from marrying.

It did so while announcing that it would not hear a similar appeal against Louisiana’s ban on same-sex marriage –a ban that was argued before the Fifth Circuit on Monday.

Meanwhile, on Friday, January 9, the full Ninth Circuit U.S. Court of Appeals refused –with one blistering dissent— to review challenges to a three-judge panel’s decision that such bans in Idaho and Nevada are unconstitutional. And a federal district court judge in South Dakota on Tuesday of this week declared that state’s ban unconstitutional.

While the other developments are important, all eyes this week were on the U.S. Supreme Court and whether it would –as most legal observers expect—grant appeals seeking to overturn bans in the four Sixth Circuit states Kentucky, Michigan, Ohio, and Tennessee.

The court made no mention of the cases on its orders list, issued Monday, but later said the cases were scheduled for the justices’ next private working conference this Friday.

Because the Sixth Circuit is the only circuit, thus far, to have declared state bans on same-sex couples marrying to be constitutional, many believe the Supreme Court will feel compelled to take up the cases and settle the conflict among circuits. The Fourth, Seventh, Ninth, and Tenth circuits have declared such laws unconstitutional, saying they deny same-sex couples their constitutional rights to due process and equal protection.

Early indications suggest a majority of the justices will also find such bans unconstitutional but, without a Supreme Court ruling, bans will be allowed to continue in some states but not in others. In addition to the four Sixth Circuit states, bans are still operating in 13 states.

In one of those states, South Dakota, a federal district judge, Karen Schreier (a Clinton appointee) ruled Monday that the state ban is unconstitutional. An impromptu poll by the Argus Leader newspaper found 81 percent of 5,285 website readers disagreed. And state Attorney General Marty Jackley said he would appeal to the Eighth Circuit, which has yet to rule on the issue.

The Ninth Circuit has ruled on the issue, multiple times, and announced January 9 that it would not have the full appeals court hear yet another appeal from Idaho and Nevada. Attorneys representing Idaho argued that a full appeals court hearing was warranted because of the “significant long-term harms” allowing same-sex couples to marry will have on “Idaho and its citizens, especially the children of heterosexuals.” The brief claimed that male-female couples with children are “less likely” to engage in child abuse, neglect, and divorce, and that allowing same-sex couples to marry “undermines the ‘marital maxculinity’ norm because it suggests that society no longer needs men to form well-functioning families or to raise happy, well-adjusted children.”

A group supporting bans on same-sex marriage appealed Nevada’s case, saying the three-judge panel who ruled the law unconstitutional last year was biased in favor of same-sex marriage.

Only three judges of the Ninth Circuit (appointees of Reagan, Clinton, and George W. Bush) issued a dissent to the full Ninth Circuit’s refusal to hear the appeals. They said the full appeals court should have heard the appeals because the issue is “exceptionally important” and the U.S. Supreme Court has not yet decided the issue. The three claimed that, while the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, those bans were racially motivated and “no such discrimination is implicated here.” And they argued that the Supreme Court’s ruling in 2013 –that the Defense of Marriage Act was unconstitutional—put “emphasis on the unprecedented federal intrusion into the states’ authority over domestic relations,” an emphasis that would argue for upholding state bans on same-sex marriage.

In New Orleans on Monday, a Fifth Circuit panel heard arguments in three cases from three states: Louisiana (Robicheaux v. Caldwell), Texas (DeLeon v. Perry), and Mississippi (Campaign for Southern Equality v. Bryant). The Louisiana case was also on a list of same-sex marriage cases to be discussed by the U.S. Supreme Court justices Friday in a private conference.

While Texas and Mississippi filed appeals to defend their state bans, Lambda Legal filed the appeal against Louisiana’s ban. The federal district court judge in the Louisiana case (President Reagan appointee Martin Feldman) was the only one –our of 46 federal district court judges to rule on such bans around the country—to find the ban constitutional.

Louisiana’s ban, unlike the others, was upheld by a federal district court judge.

The Fifth Circuit three-judge panel included James Graves Jr. (appointee of President Obama), Patrick Higginbotham and Jerry Smith (both appointees of President Reagan).

Lambda Legal’s National Marriage Project Director, Camilla Taylor, argued against the Louisiana ban. She noted that the Supreme Court has previously struck down a Louisiana marriage law for violating equal protection (one designating the husband as the “head and master” over community property). She disagreed with Louisiana’s contention that the national debate over marriage for same-sex couples is reason enough to preclude courts from reviewing the constitutionality of such laws. And she said the ban discriminates on both sexual orientation and sex.

Obama appointee Graves asked Taylor whether it would be “legally inconsistent” to rule that Louisiana has to recognize marriage licenses obtained by same-sex couples in other states but that it can refuse to issue licenses to same-sex couples in Louisiana.

Taylor said yes, citing Loving v. Virginia, and said the arguments Louisiana proffered for denying marriage licenses and denying recognition of out-of-state licenses are the same and are “legally insufficient.”

Attorney Stuart Duncan, arguing for Louisiana, said states are allowed to ban marriages based on things like age and blood relationship, and it should be able to do so regarding same-sex marriage.

Sixth Circuit GOP judges: Why not let the voters decide who gets to marry?

The three-judge panel of the Sixth Circuit U.S. Court of Appeals seemed to signal pretty clearly where they’re headed on the six marriage equality lawsuits they heard arguments in Wednesday: toward the first federal appeals ruling to undo lower court rulings that held state bans on marriage for same-sex couples to be unconstitutional.

The three-judge panel of the Sixth Circuit U.S. Court of Appeals seemed to signal pretty clearly where they’re headed on the six marriage equality lawsuits they heard arguments in Wednesday:  toward the first federal appeals ruling to undo lower court rulings that held state bans on marriage for same-sex couples to be unconstitutional.

The judges at the August 6 hearing in Cincinnati included one appointee of President Clinton: Martha Craig Daughtrey, 72; and two appointees of President George W. Bush: Jeffrey Sutton, 53, and Deborah Cook, 62.

The Democratic appointee Daughtrey was unabashed in her expressions of skepticism over the reasons the states proffered for justifying the exclusion of same-sex couples. But the two Republican appointees gave repeated voice to various justifications for the bans.

Republican Cook, for instance, had relatively little to say or ask during the unusual three-hour, four-state, six lawsuit proceeding. But when she did speak, she seemed to be feeding lines to the attorneys arguing in support of the marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

Example: when Michigan Solicitor General Aaron Lindstrom seemed unable to extract himself from a tough line of questioning from Judge Daughtrey. Daughtrey pressed Lindstrom to explain why Michigan allows male-female couples who don’t procreate to marry but doesn’t allow same-sex couples to do marry even when some of them have children.

“Isn’t it a little hypocritical then to allow people to marry who can’t procreate but prevent same-sex partners from marrying?” asked Daughtery. Lindstrom said “not at all,” but then added only that opposite sex couples have a fundamental right to marry.

Cook interrupted saying, “You would acknowledge that there are … important benefits to the state beyond procreation, I should think … the benefits and responsibilities attendant to marriage seem to bear on the question we’re addressing here—is whether or not those matter to a state that says, as Virginia did, saying ‘We have no interest in licensing adult love’.”

Later, Daughtrey pushed back on Lindstrom’s claim that allowing same-sex marriage would lead to a society in which there would be no support for the contribution of fathers.

“Do you honestly think that’s what’s happened in the states where same-sex marriage is now valid?” asked Daughtrey. Lindstrom said it was “too early to tell,” being only 10 years into the history of allowing same-sex couples to marry in some states. Daughtrey noted that a large percentage of states have marriage equality “and it doesn’t look like the sky has fallen in.” Again, Lindstrom said it was “too early to tell.”

Cook soon jumped in.

“Isn’t it your point, Mr. Lindstrom, that it’s disparaging the vote of the citizens of Michigan?” Lindstrom quickly accepted the point.

Republican Sutton, at 53, the youngest of the three judges, seemed initially to find the marriage bans “a little harder to justify,” given “modern conceptions of marriage as being more about love and commitment.” But he quickly changed his tune when Carol Stanyar, the attorney for the Michigan plaintiffs, presented her argument. Then, Sutton trotted out the unusual position that a 1972 summary dismissal of Minnesota’s refusal to grant a gay male couple a marriage license –in Baker v. Nelson—could require the appeals panel to uphold the bans by other states.

“Aren’t we stuck with Baker?” asked Sutton.

Stanyar said no, “it was a different time” and the Supreme Court’s rulings subsequent to Baker have been “totally inconsistent with Baker” and strongly suggest the high court would no longer take the same position today. She also noted that “every court in the country” that has ruled on state marriage bans has found Baker does not apply.

In addition to his unusual interest in Baker, what stood out as most important to Sutton was his repeated posits that the “best way” for the LGBT community to achieve equality for its relationships is through “the democratic process.” Although same-sex couples are looking for concrete benefits of marriage, he said that many of the briefs filed by plaintiffs in the case emphasized the respect and dignity that are bestowed on relationships called marriage.

“And if respect and dignity are critical, or the key elements here –maybe this is just something I’m missing but—I would have thought the best way to get respect and dignity is through the democratic process,” said Sutton. “Forcing one’s neighbors, co-employees, friends to recognize that these marriages …deserve the same respect as in a heterosexual couple. It’s just funny to me why the democratic process, which seems to be going pretty well –you know, nothing happens as quickly as we might like—but I’m just curious how you react to that point.”

Stanyar replied that the Michigan amendment banning same-sex couples from marrying “gutted the democratic process in Michigan.”

“Voters can no longer appeal to their legislators,” said Stanyar. “Second, the usual deference to the legislative process evaporates if there’s a reason to infer antipathy….And there are plenty of reasons to infer antipathy here.”

Sutton wouldn’t give up. He said that, if the issue was put before Michigan voters again, “it would certainly be a different vote and it might be a different outcome, even today.”

Stanyar noted that to get a measure on the ballot takes thousands of signatures and millions of dollars.

“It’s very cost prohibitive for a disfavored minority to be doing that,” said Stanyar.

“But it’s all about changing the hearts and minds, which I have to believe is one of the key goals,” said Sutton, interrupting. “Isn’t it worth the expense?”

Stating the obvious, Stanyar replied, “Fundamental constitutional rights may not be submitted to popular vote.” When Sutton persisted still, she put the point even more bluntly,  “This court doesn’t have the luxury of dodging a constitutional challenge.”

Sutton persisted, bringing the point up again with other attorneys in other ways. With long-time civil rights attorney Al Gerhardstein, who was representing plaintiffs in one of the Ohio cases, Sutton said, “Isn’t the first question whether a state can decide for its own purposes … whether to recognize same-sex marriage? And if it decides it’s not going to do that for now, and if the U.S. Constitution permits that choice, I guess it seems really odd to me that [the state] can be told” to recognize a marriage license obtained by a same-sex couple in another state.

Gerhardstein noted that, historically, the recognition of marriages from other states has been “transportable.” It’s not about whether a certain state must define marriage a certain way, said Gerhardstein, it’s about “if you have a pattern and practice over time that you’re only changing because of the type of people that now participate in marriage….”

“It is unprecedented that Ohio would say to a whole group of people who are married in another state, we’re not going to accept you as people that we will recognize as married here,” said Gerhardstein.

Cook interjected that the couples who married in other states and then moved to Ohio were “well aware” that they were moving into a state where their marriages were not recognized.

“They got married because they’re in love,” said Gerhardstein. “…They do expect their marriage will be transportable. That’s a reasonable expectation.”

Sutton jumped back in to note that the democratic process is “working very quickly” in favor of same-sex couples.

“The ultimate role of the federal courts is to keep states from denying the liberty to certain citizens,” said Gerhardstein. “And here, when you’ve got citizens who have a liberty interest –their marriage already exists … and they’ve got children and those children deserve to have two parents and the state is now saying that, because of our commitment to [the democratic process], we’re just going to say no to you and we’re just going to wait for you to come up with $7 million and reverse our constitutional amendment. The reality is that these rights are very, very profound….This can’t be just subject to vote.”

Whatever decision the Sixth Circuit panel comes back with –and some may argue that the questions and comments a judge makes on the bench are not necessarily illustrative of how they are leaning—it will affect all four of the states in that circuit. If the panel does reverse the six lower court decisions, the it will represent the marriage equality movement’s first court loss since 2012 when a federal judge in Nevada ruled against same-sex couples in Sevcik v. Sandoval. And whatever the decision, it will almost certainly be appealed to the U.S. Supreme Court where cases from two other circuits –the Tenth and the Fourth—are either already there or about to be filed.

A Sixth Circuit appeal –particularly if it is a loss for same-sex couples—could potentially make a more attractive vehicle for the Supreme Court’s ultimate decision on the issue. The loss or denial of the right to marry becomes an injury to a party that requires the high court’s attention.

The cases involved in the Sixth Circuit appeal encompass six lawsuits in four states: Kentucky (Bourke v. Beshear and Love v. Beshear), Michigan (DeBoer v. Snyder), Ohio (Henry v. Himes and Obergefell v. Himes), and Tennessee (Tanco v. Haslam).

Three-judge panels of three previous circuits have each voted 2 to 1 that the state bans were unconstitutional: the Ninth Circuit (a California case, Brown v. Perry, in February 2012), the Tenth Circuit (a Utah case, Herbert v. Kitchen, on June 25 this year and an Oklahoma case, Bishop v. Oklahoma, on July 18 this year), and the Fourth Circuit (two Virginia cases, Bostic v. Schaefer and Harris v. McDonnell, on July 29 this year).

The California decision, striking down Proposition 8, was left intact by the U.S. Supreme Court in June 2013 after the high court said the party that appealed the decision did not have legal standing to do so (in part because the appellants had not suffered an injury). That decision, in Perry, triggered more than 70 similar lawsuits in every state in the country that banned equal rights to marriage for same-sex couples. These cases are all percolating through the federal (and some state) court system and one or more of them could very well be heard in the upcoming 2014-15 session, with a decision being issued by June.

Recordings of the Sixth Circuit proceeding can be heard on the court’s website.

SpeedReadQ.com relies on your support. Please chip in.

Fourth Circuit panel votes 2 to 1 to strike Virginia’s same-sex marriage ban

It was clear from the oral argument that two out of three of the judges on a Fourth Circuit U.S. Court of Appeals panel would vote on opposite sides concerning the constitutionality of Virginia’s ban on same-sex marriage. The question was how the third judge would vote. That question was answered Monday: He voted against the ban.

It was clear at oral argument that two out of three of the judges on a Fourth Circuit U.S. Court of Appeals panel would vote on opposite sides concerning the constitutionality of Virginia’s ban on same-sex marriage. The question was how the third judge would vote. That question was answered Monday: He voted against the ban.

In fact, that third judge, Judge Henry Floyd, an appointee of President Obama who was recommended to the bench by Republican U.S. Senator Lindsey Graham, wrote the majority opinion. He was joined by Judge Roger Gregory, a recess appointee of President Clinton who was reappointed by President George W. Bush and became the first African American member of the Fourth Circuit bench.

The 2 to 1 decision in Bostic v. Schaefer marks the third federal appeals panel to vote 2 to 1 to strike down a state ban on same-sex couples marrying. The first time the Ninth Circuit in Brown v. Perry from California; the Supreme Court subsequently allowed the district court declaration that Proposition 8 is unconstitutional to stand on a procedural issue. The second was the Tenth Circuit in Kitchen v. Herbert, on Utah’s ban; that case will soon deliver a petition to the Supreme Court for review.

Attorneys for the two clerks who defended the Virginia ban are expected to file a petition either with the full Fourth Circuit or go, as Utah did, directly to the Supreme Court. The panel decision has been stayed for 21 days to given same-sex marriage opponents time to file an appeal.

As in the other federal panels, two judges on the Bostic case panel said the ban violates the U.S. constitution’s guarantees of equal protection and due process.

The majority held that the Supreme Court’s decisions in Lawrence v. Texas (2003, striking down state laws banning same-sex sexual intimacy) and U.S. v. Windsor (2013, striking down the key portion of the federal Defense of Marriage act, “indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships.”

“We therefore have no reason to suspect that the Supreme Court would accord the choice to marry someone of the same sex any less respect than the choice to marry an opposite-sex individual who is of a different race, owes child support, or is imprisoned. Accordingly, we decline the Proponents’ invitation to characterize the right at issue in this case as the right to same-sex marriage rather than simply the right to marry,” wrote Floyd.

The majority said it did not mean to suggest that every law “which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.” But it said Virginia’s ban “significantly interferes“ with the fundamental right to marry and that all the justifications for the ban fail. (Note: This paragraph has been corrected from its original.)

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Floyd in his conclusion. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

In dissent, Judge Paul Niemeyer, an appointee of President Reagan (to the district court) and President George H.W. Bush (to the Fourth Circuit) seemed to hold onto a position he seemed to signal during oral argument, supporting the marriage ban. Niemeyer said marriages between same-sex couples are not the same as between men and women and not fundamental.

“[S]ame-sex marriage is a new notion that has not been recognized ‘for most of our country’s history’,” he wrote. “Moreover, the majority fails to explain how this new notion became incorporated into the traditional definition of marriage except by linguistic manipulation.”

“It is true that same-sex and opposite-sex relationships share many attributes, and, therefore, marriages involving those relationships would, to a substantial extent, be similar…..But there are also significant distinctions between the relationships that can justify differential treatment by lawmakers….

“Because there exist deep, fundamental differences between traditional and same-sex marriage, the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of “the right to marriage.”

The Bostic decision affects not only the two couples who pressed the Bostic case with the help of the Ted Olson-David Boies team, it also affects a separate lawsuit in another Virginia federal court. That case, brought by Lambda Legal and the ACLU, represented an estimated 14,000 same-sex couples who want to marry in Virginia or have their out-of-state marriage license recognized by Virginia.

Legal activists call Hobby Lobby decision ‘radical’ and will require vigilance to protect LGBT equality

Some LGBT legal activists say today’s decision in a U.S. Supreme Court religious exemption case amounts to a “dangerous and radical departure from existing law that creates far more questions than it answers.”

Saying it is not providing a “shield for employers who might cloak illegal discrimination as a religious practice,” a 5 to 4 majority of the U.S. Supreme Court ruled today (June 30) that a federal law may not require a closely held commercial employer to provide health insurance coverage for contraception if that employer claims that to do so violates his or her personal religious beliefs.

Some LGBT legal activists say today’s decision in a U.S. Supreme Court religious exemption case amounts to a “dangerous and radical departure from existing law that creates far more questions than it answers.”

Saying it is not providing a “shield for employers who might cloak illegal discrimination as a religious practice,” a 5 to 4 majority of the U.S. Supreme Court ruled today (June 30) that a federal law may not require a closely held commercial employer to provide health insurance coverage for contraception if that employer claims that to do so violates his or her personal religious beliefs.

The opinion in the Hobby Lobby cases, written by Justice Sam Alito, also states that the decision applies only to a federal mandate that employers provide coverage for contraception and does not necessarily apply to coverage for other medical services to which some employers might raise religious objections.

Leading the dissent, Justice Ruth Bader Ginsburg called Alito’s opinion “startling.”

Shannon Minter, legal director for the National Center for Lesbian Rights, called it a “dangerous and radical departure from existing law that creates far more questions than it answers.”

“Thankfully, however, the majority recognized that even under its sweeping new rule, corporations cannot rely on claims of religious liberty to evade non-discrimination laws,” said Minter. “That limitation is extremely important and means that employers cannot exploit today’s decision to justify discrimination against LGBT people or other vulnerable groups, but we will need to be vigilant to make sure that principle is respected and enforced.”

Gary Buseck, interim executive director for Gay & Lesbian Advocates & Defenders, said he was reassured by a concurring opinion from Justice Anthony Kennedy. In that concurrence, Kennedy said he does not believe the majority opinion has the breadth that the dissent claims it does.

Jenny Pizer, senior counsel at Lambda Legal, said the majority opinion “disregards decades of case law that drew a protective line between free religious expression and religious dominance of others.”

“It is a radically dangerous decision that invites more misguided actions contrary to essential protections for employees, customers and the public,” Pizer said. “It is imperative that the U.S. Congress amend the federal Religious Freedom Restoration Act to withdraw the blessing the Court mistakenly has given these companies to impose their beliefs on working women.”

While Pizer, too, took some comfort from the majority’s statement that the ruling applies only to the contraception mandate, she said “recent mistreatment of LGBT people in employment and other commercial settings still makes this extremely troubling.”

“A business owner’s religious objection to a worker’s same-sex spouse or a customer’s LGBT identity is not acceptable grounds for discrimination,” said Pizer. “It is more important than ever that states and Congress enact strong, clear nondiscrimination protections for LGBT people.”

Justice Kennedy joined Alito’s decision, as did the court’s most conservative members, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, also joined Alito’s decision.

The court’s more liberal justices joined Ginsburg’s dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Breyer and Kagan also joined for a separate dissent.

Alito said the federal regulations prepared by the Department of Health and Human Services to implement the Affordable Care Act violates the Religious Freedom Restoration Act. That Act, passed in 1998, prohibits the federal government from imposing a “substantial burden” on a person’s religious beliefs unless that burden is tailored narrowly to address a compelling governmental interest. While the majority concedes that the ACA regulations regarding contraception serve a compelling governmental interest, it believes “There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.”

The decision says closely held corporations –owned by a small group or family— should be treated the same as “religious non-profit corporations” when the owners have religious objections to contraceptive coverage.

“We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs’,” wrote Alito. “…HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.”

“…In any event,” wrote Alito, “our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”

But Ginsburg and the dissent say the Alito “startling breadth” of Alito’s decision “holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Ginsburg says the majority “forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill….By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations.”

As for the majority’s claim that there was “no evidence that any significant number of employers” have sought exemption on religious grounds, Ginsburg wrote, “Hobby Lobby and Conestoga surely do not stand alone as commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.” She cited a number of cases, including the Elane Photography v. Willock case which the Supreme Court recently denied a petition to hear. In that case, a wedding photographer refused a lesbian couple who sought photography service for their wedding.

Nan Hunter, a Wiliams Institute Senior Scholar as well as a Georgetown Law professor, said the decision itself is “carefully limited to the particular context of contraception and health insurance.”
“But what Justice Ginsburg is worried about – and I share her concern – is that a host of other possible claims for exemptions by for-profit businesses are simply left undecided,” said Hunter. “The examples of discrimination that she cites, as well as the possibility of religious employers discriminating against LGBT workers, are left to another day, but the Court establishes no principles that would preclude such actions. The camel’s nose is well under the tent.”

The highly anticipated decision came in the cases of Burwell v. Hobby Lobby Stores (formerly Sebelius v. Hobby Lobby) and Conestoga Wood v. Burwell –-cases that did not involve any LGBT-related health coverage. But the decision is seen as having potential impact on whether employers might be able to cite religious beliefs to deny services of particular interest to LGBT people, such as alternative insemination, HIV preventive care, and gender reassignment treatments.

In both cases, the owners of large commercial stores were challenging the implementing regulations for the Affordable Care Act. Those regulations require employer health plans to provide women on their plans with the “full range” of “contraceptive methods.” ACA regulations allow an exemption for “religious employers” and “religious non-profit organizations that have religious objections to providing coverage for some or all contraceptive services.” And they define “religious employer” as a “non-profit organization described in the Internal Revenue Code provision that refers to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order.”

The two stores challenging the regulations included Hobby Lobby Stores and Mardel. Hobby Lobby is a national chain of arts and craft supply stores; Mardel is an affiliated chain of Christian bookstores. Both stores, employing over 13,000 people, are owned by five people (referred to as The Greens) who excluded contraceptive coverage from the health plans, saying contraception goes against their religious belief that life begins “when sperm fertilizes an egg.”

Attorneys for the Greens argued that the 1993 Religious Freedom Restoration Act prohibits government from “substantially burden[ing] a person’s exercise of religion” unless it needs to do so to address a “compelling governmental interest” and is applied in the “least restrictive” way.

The Tenth Circuit U.S. Court of Appeals ruled for the Hobby Lobby-Mardel, saying that, under the Restoration Act, The Greens count as “persons exercising religion” and that requiring them to provide contraceptive coverage does “compromise their religious beliefs.”

HHS argued the beliefs held by the owners of the two companies do not justify an exemption for the companies to a “generally applicable law that regulates only those corporations and not their individual owners.”

The second case before the Supreme Court, Conestoga Wood v. Sebelius, is essentially the same, except that HHS won that case in the Third Circuit Court of Appeals.

The Conestoga Wood company is represented by the Alliance Defending Freedom, which has been involved in pressing a number of lawsuits opposing equal treatment of same-sex couples with marriage licenses. In its brief, the Alliance argues that the ACA is “requiring private citizens to buy contraceptive insurance coverage for other citizens.” Their arguments often echo those used to defend recent efforts to pass bills in various states to allow citizens to discriminate based on various categories (including race, sexual orientation, and gender identity).

“Because citizens exercise religion in every area of their lives,” wrote the Alliance in its brief to the high court, “this Court has recognized that individuals may exercise religion in business and that citizens may join together to exercise religion through corporations.”

A family of Mennonite Christians operates Conestoga Wood in Lancaster, Pennsylvania, employing 950 people making doors and cabinets. The family believes it is immoral to take a human life, including through abortion. The company filed suit, asking for an injunction to avoid the contraception requirement. The Third Circuit identified Conestoga as a “for-profit secular corporation” and said such corporations “cannot engage in religious exercise.”

Lambda Legal and two other groups filed a friend-of-the-court brief in the two cases, saying they agree with the Obama administration that the ACA’s contraception coverage mandate “serve[s] compelling interests in public health and gender equality.” Allowing these commercial employers to claim a religious exemption, said Lambda, “would open the door to increased use of religion to deny LGBT persons, those with HIV, and other vulnerable minorities equal compensation, health care access, and other equitable treatment in commercial interactions.”

Joining Lambda in the brief were the Gay and Lesbian Medical Association and AFL-CIO group Pride at Work.

The National Center for Lesbian Rights and the National Gay and Lesbian Task Force signed onto a brief filed by the National Women’s Law Center.

U.S. Reps. David Cicilline (D-RIs.), Mark Pocan (D-Wisc.), and Mark Takano (D-Calif.) joined a brief signed by 91 members of the U.S. House.

First federal appeals court panel weighs in; finds Utah’s ban unconstitutional

A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a 2 to 1 decision Wednesday, upholding a district court decision that Utah’s ban on marriage for same-sex couples is unconstitutional.

scales

The decision came in Herbert v. Kitchen included an immediate stay of its enforcement pending the state’s anticipated appeal to the full circuit bench.

It is the first ruling from a federal appeals court and, thus, is the closest to being appealed to the U.S. Supreme Court, where most legal observers expect the validity of statewide bans against marriage licenses for same-sex couples will be decided in about a year.

Utah officials have until September 23 to exercise a rarely used option of appealing the panel decision directly to the U.S. Supreme Court.

“The Tenth Circuit’s decision states that Utah couples will not be able to marry until after the Supreme Court decides whether to review the case,” noted Shannon Minter, legal director for the National Center for Lesbian Rights, which participated with private attorneys in Utah to mount the challenge to Utah’s ban.  “If the Supreme Court decides to review the case, couples will not be able to marry until after the Supreme Court issues its decision.”

But Lambda Legal’s national legal director Jon Davidson notes that, while Kitchen is likely to be the first same-sex marriage ban case to be filed with the Supreme Court post-U.S. v. Windsor, “the Court does not have to take the first case to reach it.”

“By the time the Court decides whether or not to accept review in Kitchen, it may well also have a petition from a decision” in the Fourth, Sixth, and Ninth circuits. The Fourth Circuit case, led by Ted Olson and David Boies with the American Foundation for Equal Rights, was argued shortly after the Kitchen appeals case was argued. The Sixth Circuit will hear arguments in five cases, including one from Lambda, in August. And the Ninth Circuit will hear arguments in three cases in September.

“I would not be concerned if it were the Kitchen case that is the case the Supreme Court hears,” said Davidson. “It was been well-briefed and argued, with excellent lawyering by Peggy Tomsic, her firm (Magleby & Greenwood), and NCLR.

unique approach

“What struck me immediately upon reading the opinion was the 10th Circuit’s decision to avoid dealing with the question whether sexual orientation discrimination requires heightened scrutiny,” said New York Law School Professor Arthur Leonard, editor of Lesbian/Gay Law Notes.  “They avoided it entirely by treating this as a fundamental rights case.  Fundamental rights cases always get strict scrutiny, whether they arise in a pure due process context or whether they involve an equal protection claim.”

Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, said the fundamental right/strict scrutiny route might be a little “riskier” than another approach to analyzing the law. He said “the fundamental rights terrain has not been a favorite of the Supreme Court in recent times.”

“And applying strict scrutiny to gay people seems like something they have been carefully avoiding – as in not wanting to speak about standard of review for sexual orientation at all,” said Buseck. “But that said, perhaps it is perfect for the Supreme Court because the fundamental right to marry is very cabined – only marriage and does not arguably set up some inevitability in the law around sexual orientation classifications. Given that lots of folks think the Court is ready to create marriage equality nationally because they now see that it is acceptable to the people and the courts, perhaps this is a great one-off where they don’t have to worry about what else it does for gay people.”

Jon Davidson, legal director for Lambda Legal, explained, the Tenth Circuit applied strict scrutiny –the toughest judicial standard of review—on Utah’s ban “based on its conclusion that Utah’s marriage ban violated a fundamental right – the fundamental right to marry.”

“Strict scrutiny applies in three circumstances:  (1) on a due process claim, where a fundamental right is infringed; (2) on an equal protection claim, where one group is being treated unequally in access to a fundamental right; or (3) when a suspect classification is being utilized to treat one group differently than others,” said Davidson. “The Tenth Circuit applied strict scrutiny based on the first two grounds (fundamental right to marry, and unequal denial to same-sex couples of access to that fundamental right). It did not address whether sexual orientation is a suspect classification or whether such discrimination is otherwise entitled to heightened judicial scrutiny.”

 The appeals panel’s vote

Judges Carlos Lucero (a Clinton appointee) and Jerome Holmes (a George W. Bush appointee) voted to uphold the district court’s ruling that the Utah ban is unconstitutional.

Judge Paul Kelly (an appointee of President George H.W. Bush) concurred on a procedural matter (legal standing) but dissented on the key issue. Kelly is the panel’s most conservative member.

The majority reliance on Windsor

Judge Carlos Lucero wrote the majority’s 65-page opinion. Not surprisingly, he referred frequently to the U.S. Supreme Court’s decision last June to strike a key section of the Defense of Marriage Act (DOMA) in U.S. v. Windsor.

“…The drafters of the Fifth and Fourteenth Amendments ‘knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” wrote Lucero. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’

“…A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court [opinion in Kitchen] eloquently explained, ‘it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.’ Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized.”

The majority opinion made frequent references to the impact of the Supreme Court’s decision in Windsor, striking DOMA. For instance, noting that Utah had argued that its laws banning same-sex couples from marrying “merely define marriage within its borders,” the majority said Windsor demonstrated that a provision of a law labeled a “definition” is not immune from constitutional scrutiny.

The majority referenced many other Supreme Court decisions, too, including the 1996 landmark decision in U.S. v. Virginia where the court said it was a violation of equal protection rights to deny women the ability to attend Virginia Military Institute.

“Whether a state has good reason to exclude individuals from the marital relationship based on a specific characteristic certainly comes into play in determining if the classification survives the appropriate level of scrutiny,” wrote Lucero. “…A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.”

The majority also cited Bowers v. Hardwick, the 1986 decision that upheld state laws banning intimate relations between consensual same-sex adults and its 2003 decision in Lawrence v. Texas, which said such bans were unconstitutional.

“The Court’s rejection [in Lawrence] of the manner in which Bowers described the liberty interest involved is applicable to the framing of the issue before us,” wrote Lucero. “There was clearly no history of a protected right to ‘homosexual sodomy,’ just as there is no lengthy tradition of same-sex marriage. But the Lawrence opinion indicates that the approach urged by appellants is too narrow. Just as it was improper to ask whether there is a right to engage in homosexual sex, we do not ask whether there is a right to participate in same-sex marriage.

The majority characterized Utah’s proffered reasons for banning same-sex couples from marrying as relying on “a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.”

“Same-sex marriage must be banned, appellants argue, because same-sex couples are not naturally procreative,” noted Lucero. “But the state permits many other types of non-procreative couples to wed.”

“Only same-sex couples, [Utah officials] claim, need to be excluded to further the state’s interest in communicating the link between unassisted biological procreation and marriage. As between non-procreative opposite-sex couples and same-sex couples, we can discern no meaningful distinction with respect to [Utah officials’] interest in fostering biological reproduction within marriages. The Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’ Extending the benefits and protections of a civil society to some but not all similarly situated families violates this critical guarantee.”

An historic dissent weighs in

In writing a 21-page dissent to the majority opinion, Judge Paul Kelly earned the distinction of becoming the first federal judge post-Windsor to say that a state ban on same-sex couples marrying is constitutionally sound.

Kelly said he would not analyze Utah’s ban as impinging on a fundamental right to marry because “for centuries, ‘marriage’ has been universally understood to require two persons of opposite gender.”

He said he would scrutinize Utah’s ban with simple rational basis. On that basis, he said, he would accept the law as “rationally related to (1) responsible procreation, (20) effective parenting, and (3) the desire to proceed cautiously in this evolving area.”

While the Supreme Court has recognized a fundamental right to marriage, wrote Kelly, “every decision vindicating that right has involved two persons of the opposite gender.”

Kelly said that “requiring every state to recognize same-gender unions —contrary to the views of its electorate and representatives— turns the notion of a limited national government on its head.”

Roberta Kaplan, who was Edith Windsor’s primary counsel in the Windsor DOMA challenge, said she thought the dissent was “very tempered and deliberately so.

“The world in which people felt free to vent in ways  and talk about gays as different from everybody else are over. But she was not surprised at the overall results.

“I said last summer at an HRC dinner, that Windsor was the functional equivalent of the Battle of Normandy,” said Kaplan, referring to the pivotal battle in which Allied forces fought their way onto the European continent to begin the effort to win back territory seized by the Germans in World War II. “It was, for a whole bunch of reasons. I just didn’t think we’d get through the rest of Europe so quickly.”

June 26: An historic date marking victories that almost didn’t happen

Three important U.S. Supreme Court decisions have made June 26 the most historic date on the LGBT civil rights movement’s calendar. But the powerful impact of two of those decisions has almost obscured the fact that they were narrow victories.

Anthony Kennedy
Anthony Kennedy

June 26 is the most historic date on the LGBT civil rights movement’s calendar. It is the day in 2003 when the U.S. Supreme Court ruled that states could not enforce laws prohibiting same-sex adults from having intimate relations. It is the day in 2013 when a Supreme Court procedural ruling enabled same-sex couples to marry in California. And it is the day in 2013 when the Supreme Court ruled that the federal government could not deny married same-sex couples the same benefits it provides to married male-female couples.

While the decision that allowed couples in California to marry provided important momentum to the marriage equality movement, the decisions in the 2003 Lawrence v. Texas and 2013 U.S. v. Windsor cases are undeniably the most important Supreme Court decisions ever issued on LGBT-related matters. Lawrence brought a crashing end to the longstanding presumption by society and the law that gays were “deviate” and should be singled out for disfavor.

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres,” wrote Justice Anthony Kennedy for the 6 to 3 majority in Lawrence.

“…The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

And it was Justice Kennedy who wrote the 5 to 4 majority decision in Windsor last year, striking the key provision of the federal Defense of Marriage Act (DOMA) that barred every federal entity from treating married same-sex couples the same as married heterosexual couples for the purpose of any federal benefit.

“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group,” wrote Kennedy in Windsor. “….DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

“….DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” wrote Kennedy. “This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects…. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Kennedy’s words in both Lawrence and Windsor have been repeated in numerous court decisions since. And the powerful influence of words and decisions has almost obscured the fact that they were narrow victories.

In Lawrence, Kennedy wrote for just five of the six justices who considered sodomy laws to be unconstitutional; while Justice Sandra Day O’Connor provided a sixth vote in concurrence with the judgment, she did not join Kennedy’s opinion to the extent that it overruled the 1986 decision in Bowers v. Hardwick (which had upheld state sodomy laws). O’Connor said she would simply strike Texas’ law on equal protection grounds. (“Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.”)

In Windsor, Kennedy wrote for just five justices. One of those five, Elena Kagan, had been on the bench for only two and a half years and apparently had to recuse herself from a similar DOMA challenge that had reached the high court sooner because she likely discussed it while serving as Solicitor General. If the court had taken that first case, Gill v. Office of Personnel Management, the court likely would have rendered a tie vote and DOMA would still be in effect in most states.

Often forgotten, too, is the enormous influence the sitting president had on the impact of each decision.

The administration of President George W. Bush took no action in 2003 to see that the Lawrence decision was quickly and thoroughly respected by various federal programs, such as the military’s “Don’t Ask, Don’t Tell” law banning openly gay servicemembers. It continued enforcing the ban that had been approved by a Congress that pointed to sodomy laws to justify its hostile treatment of gays. Bush said nothing about the Lawrence decision and the White House press secretary brushed it off as a “state matter.” Then, in 2004, Bush spoke in support of a Congressional bill that sought to ban marriage for same-sex couples.

In contrast, President Obama spoke out quickly in support of the Supreme Court’s decision in Windsor and ordered his administration “to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

Legal activists responded differently following both decisions, too. LGBT legal activists were still wary of mounting lawsuits that would wind up in front of the Supreme Court. Even as late as 2009, they thought it was “too early” to put another issue to a vote at the Supreme Court.

But following the Windsor decision last year, legal activists filed more than 70 lawsuits in short order, challenging state laws in 30 states that banned marriage for same-sex couples.

Prior to the Windsor decision, 12 states and the District of Columbia allowed same-sex couples to marry. One year later, 18 states and D.C. have marriage equality and another 14 states have had courts declare their bans on same-sex couples marrying unconstitutional.

Prior to the Windsor ruling, 18 percent of the U.S. population lived in states with marriage equality. Today, not counting Wisconsin or Pennsylvania (whose bans are still subject to appeal), 39 percent of the population lives in marriage equality states.

U.S. Deputy Assistant Attorney General Pam Karlan shared with DOJ Pride attendees earlier this month some of her memories of having clerked for Supreme Court Justice Harry Blackmun in 1986 when he authored the dissent to the court’s Bowers v. Hardwick decision, upholding state laws prohibiting private consensual sex between same-sex adults. Karlan said she suggested to Blackmun that the majority opinion was resting on “an unexamined assumption that gay people were different in a way that permitted denying them” the right to intimate relations. When Blackmun wrote his dissent, she said, he made a subtle change to her suggested language, saying the majority opinion was based “on the assumption that homosexuals are so different from other citizens….”

“In making those changes, Justice Blackmun was doing two things,” said Karlan. “First, he was emphasizing that gay people are citizens – that is, true members of our national community. But second, and just as importantly, he was rejecting the idea that there is an ‘us’ for straight people – and that gay people are somehow a ‘them.’ And he was laying the groundwork for an understanding that the central constitutional claim is not just one about liberty; it is about equality as well.”

Judge dismisses most of NOM lawsuit against IRS over disclosure to HRC

A federal district court judge on June 3 dismissed most of a lawsuit by the National Organization for Marriage that claimed an employee of the U.S. Internal Revenue Service deliberately leaked a confidential tax document from NOM to the Human Rights Campaign. But the judge said the IRS may bear some responsibility for the legal expenses NOM incurred as a result of its error in releasing confidential data and said that issue could go to trial.

A federal district court judge on June 3 dismissed most of a lawsuit by the National Organization for Marriage that claimed an employee of the U.S. Internal Revenue Service deliberately leaked a confidential tax document from NOM to a political opponent, the Human Rights Campaign. Judge James Cacheris (a Reagan appointee) said NOM failed to provide any evidence that the disclosure was deliberate and politically motivated; but, he said the IRS may bear some responsibility for the legal expenses NOM incurred as a result of that error and said that issue could go to trial.

The case was NOM v. IRS in the U.S. District Court for the Eastern District of Virginia, in Alexandria. Cacheris held a hearing on the matter May 29 and issued his decision five days later.

Tax-exempt organizations, including NOM, must file annual reports (called 990 forms) with the IRS, including a Schedule B document that lists donors who have contributed $5,000 or more to the organization. The 990 Forms are available to the public as a means of evaluating the financial health and practices of organizations seeking contributions.

According to various court records, an openly gay employee of Bain & Company, a former employer of 2012 Republican presidential candidate Mitt Romney, contacted the IRS in January 2011, identified himself as a member of the media, and requested a copy of NOM’s 990 form for the years 2007 and 2008. Meisel’s request was forwarded to IRS clerk Wendy Peters and, within the month, the forms were sent to Meisel, including the names and addresses of donors that is normally redacted. Meisel then forwarded the 2008 form to HRC’s then campaign media director Kevin Nix. And Nix forwarded the form to a Huffington Post reporter who published an article noting that an Alabama political action committee associated with Romney made a $10,000 contribution to NOM.

Gay activist Fred Karger used the information to file a complaint with the California Fair Political Practices Commission, alleging NOM had violated state laws but, as Judge Cacheris notes, NOM was “absolved” of those allegations.

NOM filed suit last October, charging IRS with unlawful disclosure of confidential tax information, but attorneys for the IRS said Peters simply forgot to redact the personal information when she complied with a public information request. It filed the lawsuit in the wake of highly publicized accusations that some IRS offices had delayed giving tax-exempt status to some organizations that had names suggesting they were engaged in political activities and, therefore, not eligible for tax-exempt status. While most of the publicity surrounded organizations with conservative terms –such as Tea Party—in their names, various investigations and reports determined that the offices also gave extra scrutiny to groups with terms like “progressive” and “medical marijuana” in them, too.

An investigation by the Treasury Inspector General for Tax Administration last year indicated that the IRS had applied “inappropriate criteria” in reviewing applications for tax-exempt status.

But Judge Cacheris said NOM failed to present any evidence to support its contention that the IRS clerk willfully disregarded the law, and he said evidence provided by the government “compel[s] the conclusion that Peters accidentally forwarded an unredacted copy” of NOM’s 990 Schedule B.

“The evidence is unrefuted that Peters did not know Meisel or have any connection to the HRC when she disclosed the information,” wrote Cacheris. “Furthermore, NOM has failed to produce a shred of proof that anyone at the IRS altered or obscured” the documents to cover up the error.

However, the judge found that the IRS mistake was the proximate cause of actions taken by Meisel, HRC, and others, creating some responsibility for IRS for the legal expenses NOM incurred as a result of the disclosures.

“The Government’s position that it is not responsible, as a matter of law, for the costs associated with the subsequent misuse of NOM’s confidential taxpayer information is untenable on the facts presented,” said Cacheris. Cacheris said this issue alone –what damages the government might be required to pay for NOM’s legal expenses as a result of the error– can go to trial. A NOM press release indicates the trial date has been set for June 30.

THREE-MINUTE POWER READ: If you don’t have time to browse the web every day, sign up for SpeedReadQ.com. It’s free and provides a daily three-minute read on national LGBT news in politics and law. 

Oregon becomes number 18, as openly gay judge rules ban is ‘completely irrational’

Oregon on Monday became the 18th state to allow same-sex couples to marry, bringing to 39 percent, the population of the U.S. now living in marriage equality states.

The Oregon ban on same-sex couples marrying was struck down by a ruling from U.S. District Court Judge Michael McShane Monday at noon PDT, effective immediately.

 

Oregon on Monday became the 18th state to allow same-sex couples to marry, bringing to 39 percent, the population of the U.S. now living in marriage equality states.

The Oregon ban on same-sex couples marrying was struck down by a ruling from U.S. District Court Judge Michael McShane Monday at noon PDT, effective immediately.

The lawsuit’s lead plaintiff couple, Deanna Geiger and Janine Nelson, became Oregon’s first same-sex couple to be married following McShane’s ruling. According to the Oregonian newspaper, the couple, which has been together for 31 years, were married in the Multnomah County building in Portland just minutes after the ruling was issued.

In Geiger v. Kitzhaber, McShane, an openly gay appointee of President Obama, said the Oregon ban is “beyond the ambit of Windsor,” a case many previous federal judges have cited in striking down the bans. In U.S. v. Windsor, the U.S. Supreme court last June struck down the key provision of the federal Defense of Marriage Act (DOMA). That provision, Section 3, prohibited the federal government from recognizing same-sex marriages for any federal purpose or benefit.

But, like 11 federal judges before him, McShane said the Oregon ban violates the rights to equal protection and due process granted by the U.S. Constitution. And using the lowest level of judicial review –rational basis—McShane said barring same-sex couples from marrying “is utterly arbitrary and completely irrational.”

Oregon ACLU Executive Director David Fidanque said he believes McShane’s use of the lowest level of review “insulates” the decision from being overturned should the Ninth Circuit eventually overturn a three-judge panel ruling calling for heightened review when evaluating laws that treat people differently based on sexual orientation. In January, a Ninth Circuit panel in SmithKline v. Abbott, ruled that the U.S. Supreme Court’s decision in U.S. v. Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” But at least one Ninth Circuit justice has asked that the full Ninth Circuit review that decision.

Unlike in a number of other states, in Oregon, the governor and the attorney general have agreed that the ban is unconstitutional; they have stated that they would not appeal a decision striking the ban and would enforce such a ruling immediately. However, the National Organization for Marriage, a group devoted to preventing same-sex couples from marrying, has appealed to the Ninth Circuit U.S. Court of Appeals to overturn a May 15 ruling by McShane that denied NOM intervenor status to defend the Oregon ban in court.

On Monday, a three-judge panel of the Ninth Circuit denied NOM’s request for an emergency stay in the Oregon case, Geiger v. Kitzhaber. It was the same three-judge panel that last week issued a temporary stay of a federal judge’s decision in Idaho, striking down that state’s ban, in Latta v. Otter. Oregon’s Democratic Governor John Kitzhaber, through his Attorney General Ellen Rosenblum, submitted a brief in opposition to the emergency stay. The state’s brief noted that, unlike in Idaho, in Oregon, “no party to the litigation challenging Oregon’s same-sex marriage ban is seeking to stay the proceedings.”

“Nor does any party to the litigation intend to appeal,” said the brief. “To the contrary, Oregon officials are prepared to follow the court’s directives and counties stand ready to begin issuing marriage certificates to same-sex couples otherwise qualified to marry….”

Oregon now joins 17 other states and the District of Columbia in allowing same-sex couples the same right to marry as male-female couples. Bans in 12 additional states have been declared unconstitutional by lower courts –all but one (Arkansas) is federal— and all are on appeal. With Oregon, more than 124 million people now live in states where marriage equality is the law; that is 39.4 percent of the U.S. population.

In McShane’s 26-page opinion, he like other judges, acknowledged that he does not expect his decision to be “the final word” on same-sex marriage, but he said he doesn’t see society going down a “slippery slope that will have no moral boundaries.” He urged people with such fears to “look less to the sky to see what might fall; rather, let us look to each other…and rise.”

McShane, 52, was confirmed by the U.S. Senate just 14 months ago. In his opinion, he shared growing up “in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin.”

“I remember that one of the more popular playground games of my childhood was called ‘smear the queer’ and it was played with great zeal and without a moment’s thought to today’s political correctness,” wrote McShane. “On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a ‘millennia of moral teaching,’ the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Even today, I am reminded of the legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says, ‘Dad…that is so gay.’”

“…I believe that, if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families,” said McShane. “Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment, we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.”

The Oregonian reported that many couples had already lined up outside the Multnomah County building in Portland Monday when the decision was issued. Many had obtained licenses weeks ago.

Misha Isaak, one of the attorneys for the plaintiff couples challenging the Oregon ban, noted that the Oregon decision comes two days after the 10th anniversary of the Goodridge v. Department of Public Health decision in Massachusetts, as well as his own 10th anniversary with his husband.

THREE-MINUTE POWER READ: If you don’t have time to browse the web every day, sign up for SpeedReadQ.com. It’s free and provides a daily three-minute read on national LGBT news in politics and law. 

Fourth Circuit clash over Virginia ban: Whose children must the state protect with marriage laws?

The Fourth Circuit U.S. Court of Appeals hearing Tuesday was, as Judge Paul Niemeyer characterized it, just one step along the way to an eventual U.S. Supreme Court ruling on whether states, like Virginia, can ban same-sex couples from marrying. But it was a dramatic 70-minute clash between lawyers and judges on both sides of marriage equality.

 

The Fourth Circuit U.S. Court of Appeals hearing Tuesday was, as Judge Paul Niemeyer characterized it, just one step along the way to an eventual U.S. Supreme Court ruling on whether states, like Virginia, can ban same-sex couples from marrying. But it was a dramatic 70-minute clash between lawyers and judges on both sides of marriage equality.

While court observers expect to hear arguments stated forcefully from attorneys representing each side of a conflict, they were witness, in Schaefer v. Bostic, to an unusual display of passionate views from two of the three judges at the panel hearing in Richmond.

In one corner: Niemeyer, an appointee of President Reagan (to the district court) and President George H.W. Bush (to the Fourth Circuit). He expressed concern that allowing same-sex couples to marry could lead to polygamy or a man marrying his daughter. He said that every person in the world comes from a male-female relationship and that, because same-sex couples can’t have children, they don’t need the protection of marriage laws, just some sort of “parallel” to marriage. He rejected the idea that the Supreme Court’s rulings in Romer v. Evans, Lawrence V. Texas, and U.S. v. Windsor –about “orientation and so forth”– have any relevance to deciding the constitutionality of Virginia’s ban. And, though he warned that one “shouldn’t pin my questions as to any position” he might hold, he stated fairly emphatically that the key meaning of the Supreme Court’s striking down of the Defense of Marriage Act (DOMA) in Windsor was its recognition of the states’ right to define marriage.

In the other corner: Judge Roger Gregory, a recess appointee of President Clinton who was reappointed by President George W. Bush and became the first African American member of the Fourth Circuit bench. Gregory countered that, while states have certain authority, they “can’t trample” the U.S. Constitution. He rebuffed an assertion that the government needs to define marriage to encourage opposite sex couples to marry and have babies, saying it sounded like a “totalitarian system where people are baby makers and you get married for the interest of the state.” And he derided an attorney’s attempt to claim Virginia’s marriage law was to protect the biological children of male-female couples; if the state is interested in protecting children, he asked, how can it ignore that same-sex couples have children and that some male-female couples adopt children.

In the metaphorical middle: Judge Henry Floyd, an appointee of President Obama who was recommended by Republican U.S. Senator Lindsey Graham. Floyd had little to say and ask. But he did say he thinks the “main thrust” of the Supreme Court’s ruling in Windsor “isn’t all that clear.” And he seemed to wrestle with what level of judicial scrutiny should be applied in determining whether Virginia’s ban on same-sex marriage passes constitutional muster.

The case before the panel was brought by two clerks, appealing a decision in February by U.S. District Court Judge Arenda Wright Allen (Obama appointee). Allen, like three federal judges before her and seven since, ruled that Virginia’s ban violates the equal protection and due process guarantees of the U.S. Constitution.

Constitution v. the people

Attorney David Oakley represented Norfolk clerk George Schaefer who refused to issue marriage licenses to the same-sex couple plaintiffs. Alliance Defending Freedom attorney Austin Nimocks represented Fairfax clerk Michele McQuigg, who sought intervenor status after Virginia Attorney General Mark Herring announced he would not defend the ban because he had determined it is unconstitutional.

Oakley called the lower court decision a “broad and sweeping” opinion that represents a “dramatic departure from existing law.” He relied heavily on the argument that “states have the near exclusive right” to define and regulate marriage. But he also argued that, when an issue is the subject of an important public debate, courts should defer to the “democratic process and fundamental rights of the voters.” It was “demeaning” to Virginia voters, he said, to ignore their wishes, as expressed in the 2006 vote.

In 2006, he noted, 57 percent of voters approved the ban. (Oakley did not mention that the latest poll showed 50 percent of Virginians now favor allowing same-sex couples to marry compared to 43 percent who oppose.)

Oakley said the governmental interest in defining marriage is to “steer the procreative potential of opposite sex couples toward the notion of marriage in order to protect the children.”

“Protect the children?” asked Gregory. “Sounds like a totalitarian system where people are baby makers and you get married for the interest of the state.” If the governmental interest concerns procreation, he asked, why doesn’t Virginia ban 90-year-old people from marrying.

“You can’t,” said Oakley, “because there’d be no way to constitutionally put a procreation requirement on marriage.” Oakley then reiterated a point often used by attorneys arguing for same-sex marriage bans: that only with opposite sex couples is there the potential for “accidental” pregnancy and thus the need to encourage marriage and protect children.

Oakley also tried to argue that “same-sex marriage” does not qualify as a fundamental right because it is not “deeply rooted” in America’s history and tradition. When he noted that only in recent years have same-sex couples been able to marry and that only 17 states permit it, Gregory interjected, “Same thing was true in Loving,” referring to the landmark decision in Loving v. Virginia, in which the Supreme Court struck down laws in Virginia and other states prohibiting interracial marriage.

To that, Oakley pointed to the marriage of Pocahontas and John Rolfe in colonial Virginia, noting that interracial marriage was not prohibited in the early 1600s. (He did not mention that neither was marriage between same-sex couples.)

‘They can’t produce children’

The Alliance’s Nimocks said the Fourth Circuit must decide whether the U.S. Constitution or its people get to decide who can marry. He, too, emphasized marriage as a “child-centered” institution. And he argued that the fact that the U.S. Supreme Court did not, in its Windsor ruling, recognize the fundamental right of same-sex couples to marry, that is clear evidence the high court does not consider same-sex couples to have a fundamental right to marry.

Gregory challenged Nimocks to explain why, if marriage is “child centered” to benefit and protect children, the state would deny benefits and protections to the children of same-sex parents.

“Why does Virginia want to rip that embracement from the child?” pressed Gregory.

Nimocks didn’t answer that question but simply stated that the law reflects Virginia’s policy that a child is best raised with both a mother and a father.

“You agree that same-sex couples can have children?”

“Not in the same way,” said Nimocks.

Gregory sounded incredulous.

“What difference does it make? Children are children,” said Gregory. He noted that male-female couples who adopt children have children in a way that is different from male-female couples who procreate. He said Nimocks’ argument seemed disingenuous “if you care about children.”

Children came up quickly when Ted Olson, lead attorney for the two plaintiff couples, spoke and Niemeyer took him on. Olson started by saying that states cannot single out a class of people for disfavor under the law based on their sexual orientation or the gender of the person they seek to marry.

How about a nice parallel track?

At first, Niemeyer offered that “it’s in furtherance of the stability of society to recognize the union of same-sex couples and to provide them the same economic benefits and to give them the recognition to raise the dignity of the relationship.”

But he said it “doesn’t make sense” to call both male-female relationships and same-sex relationships “marriage.” Same-sex couples, he said, “can’t create the same family unit that has been recognized through history” because, he said, they can’t produce children.” Calling a same-sex relationship “marriage,” he said, is “playing with the language.”

Olson noted that many of the same arguments against same-sex marriage were raised against interracial marriages, too, citing the Loving case. But Niemeyer immediately interrupted him, saying that Loving was about racial discrimination. Olson noted that the Supreme Court had held Loving to be about marriage, too. He cited 14 different cases in which the Supreme Court discussed the fundamental right to  marriage. Niemeyer interrupted again, this time asking whether allowing same-sex marriage wouldn’t lead to a place where a man “could marry six wives or his daughter.”

“No,” said Olson, explaining that courts have recognized that there are “overwhelming societal reasons” for prohibiting polygamy and incestuous relationships. When Niemeyer asked whether the government could force a man and woman to marry, Olson said the government has never used procreation as a requirement for marriage.

“No, you’ve got that exactly backwards,” said Niemeyer, interrupting again. “They’ve never said that. They’ve said that marriage is the driving force for the family….The idea is to support this unit….That’s what Virginia is doing.”

Niemeyer repeatedly referred to same-sex relationships as “new” and “just appeared 30 years, 40 years ago,” acknowledging, as Oakley did not, that the first gay couples sought to marry in the 1970s.

“You cannot make that union the same as the union that is talked about in the Supreme Court cases,” said Niemeyer.

“It is the same,” said Olson. “…You’re saying my clients have a second-class relationship….Their children are demeaned by that.”

Niemeyer said he thought same-sex couples could have a relationship that is “parallel” to male-female marriage “with less attributes.”

Olson quickly replied that “damage is being done” to same-sex couples and their children by such second-class treatment.

Niemeyer said that should be an argument left to the legislature.

Olson said it’s a matter for the courts to determine whether laws violate the guarantees of equal protection and due process of the Constitution.

‘A rose is a rose is a rose’

Next up was James Esseks, director of the ACLU’s national LGBT Project. The ACLU and Lambda Legal have a class action lawsuit challenging the ban in a different federal district court in Virginia. The judge in their case, Harris v. Rainey, put the matter on hold pending a ruling from the Fourth Circuit in Schaefer v. Bostic. So the ACLU and Lambda sought intervenor status. Olson’s team initially opposed their request because they did not want to divide up the time any further (the Virginia solicitor general was granted part of Olson’s 30 minutes). But the court granted the motion to intervene.

“Once it did, we consolidated our efforts, divided time on a mutually acceptable basis and worked together on the argument strategy including a joint (all three of us) moot court last Friday,” said Olson Wednesday. “And, I thought our contributions complemented one another pretty well.”

Esseks noted that the Harris case represents about 14,000 same-sex couples in Virginia.

He urged the court to recognize the “enormous similarities” between the Virginia ban and the key provision of DOMA, which the Supreme Court struck down. Both define marriage as being between only male-female couples, he said, and “the purpose is similar.”

That’s when Judge Floyd said it was his “sense in reading Windsor that the main thrust in DOMA was the federal government getting involved in a very important relation that was the domain of state.”

“But that isn’t all that clear,” he added.

Virginia’s Solicitor General Stuart Rafael sought to make a distinction that few others have: that the case is about the “right to marriage, not to same-sex marriage.”

“What’s new,” he said, “is our relatively recent recognition of gay people.”

Whatever the Fourth Circuit’s eventual ruling, it will affect all the states in that circuit, which are Virginia, North Carolina, South Carolina, and West Virginia. And whatever the panel’s ruling, it will be appealed, first to the full circuit court bench and then to the U.S. Supreme Court.

Only one other federal appeals court has heard arguments on a lawsuit challenging a statewide ban on same-sex marriage since the Supreme Court issued its rulings striking DOMA and allowing a district court ruling to stand that struck down California’s ban on same-sex marriage. The latter was based, not on the constitutionality of the ban but on the lack of legal standing for the appeal. The Tenth Circuit last month heard cases from two states –Utah and Oklahoma—bringing challenges to those states bans.

WAS THIS ARTICLE TOO LONG? Let us know at editor@keennewsservice.com. And make sure you’ve signed up for SpeedReadQ.com. It delivers short summaries of major stories like this in a daily three-minute read to your e-mail box. 

Utah marriage cases cued up before the Tenth Circuit today, and next week

The Tenth Circuit U.S. Court of Appeals today will become the second federal appeals court to tackle the question of whether statewide laws banning same-sex couples from marrying violate the U.S. Constitution. A three-judge panel will scrutinize the decision last December that held the state constitution’s definition of marriage as being only between “a man and a woman” is not permissible under the U.S. Constitution.

scalesThe Tenth Circuit U.S. Court of Appeals today will become the second federal appeals court to tackle the question of whether statewide laws banning same-sex couples from marrying violate the U.S. Constitution.

The Denver-based court will hear oral arguments today at 10 a.m. MDT in the Utah same-sex marriage case Herbert v. Kitchen.

By order of the court, there will be no audio or video recording, broadcasting, photography, blogging, tweeting, emailing or any other broadcast mechanism or wireless communication anywhere in the courthouse during oral arguments. The court says an audio recording of the proceeding will be available on the court’s website “an hour or two” after adjournment.

In that crowded courtroom, a three-judge panel will scrutinize the decision last December of U.S. District Court Judge Robert Shelby (an Obama appointee). Shelby ruled that the state constitution’s definition of marriage as being only between “a man and a woman” is not permissible under the U.S. Constitution. He said the law’s prohibition of same-sex couples marrying violates the due process and equal protection guarantees of the U.S. Constitution. He said the ban denies gay and lesbian citizens their “fundamental right to marry and, in doing so, demean[s] the dignity of these same-sex couples for no rational reason.”

While this case is the first to reach a federal appeals court since the Ninth Circuit heard Brown v. Perry in 2012, it is just one of almost a dozen that have reached the federal appeals level. They are spread across five circuits. The Utah Kitchen case is a pacesetter at the moment. And here’s a look at the players in today’s hearing:

The judges: The three-judge panel tasked with hearing the appeal includes two Republican and one Democratic appointee.

Judge Paul Kelly (an appointee of President George H.W. Bush) is considered conservative. Judge Carlos Lucero (a Clinton appointee) is considered liberal. But both judges voted with the majority at the Tenth Circuit in the Hobby Lobby v. Sebelius case. They said the owners of the retail store were allowed, under the federal Religious Freedom Restoration Act and the First Amendment free exercise clause, to cite their religious beliefs in order to deny contraceptive services in their health plans under the Affordable Care Act.

Judge Jerome Holmes (a George W. Bush appointee) is the wild card. He was recused from the Hobby Lobby case. He was one of two judges in the Tenth Circuit to deny an emergency request from the state of Utah to stay a district court decision pending appeal. They said a stay was “not warranted.”

The attorneys: Attorneys for the two parties in the case – the state of Utah and the plaintiff couples—have 30 minutes each to present their arguments.

Peggy Tomsic, a lawyer at the private Salt Lake City firm of Magleby & Greenwood, will be presenting arguments for the plaintiff couples. According to the Salt Lake City Tribune, Tomsic asked her life partner Cindy Bateman to marry her shortly after Shelby issued his decision. She and her law firm partner Jim Magleby (straight and married) are known for taking on large, complicated cases. Most recently, they won a $134 million award against PacificCorp, one of the leading utility companies on the west coast.

Gene Schaerr, who was hired by the state attorney general’s in January specifically to lead Utah’s defense of the marriage ban, will argue for the state and Governor Gary Herbert. Schaerr resigned his partnership at a private law firm to become Special Assistant Attorney General for Utah. In a memo to his firm upon his departure, Schaerr said he was leaving to “fulfill what I have come to see as a religious and family duty: defending the constitutionality of traditional marriage in the state where my church is headquartered and where most of my family resides.” Schaerr has been a sometimes contributor to the Mormon magazine Meridian, including an article urging opposition to a marriage equality ballot measure in Maryland in 2012.

The plaintiffs: The three plaintiff couples are Derek Kitchen and Moudi Sbeity, who have not yet married; Laurie Wood and Kody Partridge, who married in Utah during the brief window of opportunity this year; and Kate Call and Karen Archer, who obtained a marriage certificate in Iowa.

The organizer behind the lawsuit is Mark Lawrence, director of Restore Our Humanity, a group established specifically to mount this lawsuit. According to a profile in the Salt Lake City Tribune, Lawrence, an information technology specialist who lives with his parents to care for his father who has Alzheimer’s, was inspired by the Proposition 8 lawsuit to tackle something similar here.

After Thursday’s hearing, the 10th Circuit has also scheduled oral arguments in another marriage equality case: Bishop v. Smith out of Oklahoma. That will be on April 17.

On May 12, the Fourth Circuit U.S. Court of Appeals will hear oral argument in Bostic v. Schaeffer, a case led by Ted Olson and David Boies for the American Foundation for Equal Rights and a team of attorneys against Virginia’s ban.

The Sixth Circuit has four marriage equality appeals pending before it, and one of those, Michigan, just asked the court to skip over the three-judge panel phase and go directly to a full “en banc” review. If the Sixth Circuit agreed, that could enable the Michigan case to reach the U.S. Supreme Court before Utah. But getting to the high court first does not guarantee the justices will choose that case to decide the issue at stake in all these cases: whether states can deny same-sex couples the right to marry.

For a weekday morning digest of the day’s most important news, sign up for SpeedReadQ.com. It’s free.

Supreme Court hearing on religious exemptions seems “deeply worrisome”

The implications of two U.S. Supreme Court cases argued Tuesday for LGBT people and for laws that seek to prevent discrimination against LGBT people were a big part of the political discourse Tuesday afternoon. Jenny Pizer, director of Lambda Legal’s Law and Public Policy program, said her sense of how the arguments went is “deeply worrisome.”

From the U.S. Supreme Court Collection
From the U.S. Supreme Court Collection

Nobody spoke about recent efforts to circumvent laws protecting LGBT from discrimination by claiming religious motivations; nobody pointed out that people with religious objections to contraception often have religious objections to alternative insemination for lesbians and condom distribution for safe sex education.

But the implications of two U.S. Supreme Court cases argued Tuesday for LGBT people and for laws that seek to prevent discrimination against LGBT people were a big part of the political discourse Tuesday afternoon.

Observers of Tuesday’s oral arguments over giving religious exemptions from the Affordable Care Act to for-profit corporations all agreed the decisions will likely come down to how Justice Anthony Kennedy votes.

Sebelius v. Hobby Lobby Stores and Conestoga Wood v. HHS are lawsuits brought by the owners of for-profit commercial enterprises (not religious institutions). One owns a furniture making enterprise; the other owns both an arts and craft store and a bookstore (the latter selling Christian-oriented books).

The company owners object to the ACA’s requirement that employer health plans cover contraception.

Jenny Pizer, director of Lambda Legal’s Law and Public Policy program, said it was “no accident” that the three female justices prodded Paul Clement, the attorney representing the companies, about how allowing for-profit corporations to take a religious exemption from ACA could lead to them seeking religious exemptions to non-discrimination laws.

Pizer said the votes of Justice Kennedy and Justice Stephen Breyer, both frequently supportive of equal protection for LGBT people, were not really predictable from the arguments.

But she said her sense of how the arguments went is “deeply worrisome.” She said her sense is that the court may give certain for-profit companies –those closely held by families or small groups of people (also known as S-corporations)— the ability to claim the same sort of religious exemption to ACA that is currently afforded to religious institutions.

“If they say any for-profit can claim religious [exemptions], obviously, that’s very bad,” said Pizer. “If they say only S-corporations can have a religious exemption, that’s less bad, but it’s still bad.”

“There are an awful lot of family-owned businesses,” said Pizer.

Most of the discussion in the media yesterday focused on the possibility of a ruling in favor of the for-profit corporations that could lay the groundwork for at least two slippery slopes: one where corporations would seek exemptions from more and more medical services, and one where they would seek exemptions from more and more laws.

In a discussion on MSNBC’s Now with Alex Wagner Tuesday afternoon, California state senate candidate Sandra Fluke said companies could try to avoid paying for such things as HIV treatments “and, beyond that, to the level of what other laws could a corporation say, ‘We don’t need to comply with that because our owners have a personal objection.’ We’ve seen owners of corporations object to a whole list of non-discrimination laws…[protecting the] LGBTQ community [and] the civil rights movement in the past….”

Pizer noted that one of the female justices suggested that a ruling in favor of Hobby Lobby and Conestoga could “open up religious objections to the entire U.S. Code.”

Edith Windsor’s attorney Roberta Kaplan, on MSNBC’s Ronan Farrow Daily, said there have been efforts in the past for corporations to argue that they “didn’t want to pay Social Security or honor minimum wage or child labor laws on the grounds of religious beliefs.”

“But the court has said they have to follow laws of general application,” said Kaplan. “The implications” of the court ruling otherwise in this case, she said, “would be profound.”

A transcripts of the arguments is available at the Supreme Court website.

For a weekday morning digest of the day’s most important news, sign up for SpeedReadQ.com. It’s free.

Sixth Circuit stays Michigan until Wednesday; hundreds already married

The Sixth Circuit U.S. Court of Appeals issued a stay at 5 p.m. Saturday of a district court decision Friday that struck down Michigan’s ban on same-sex couples marrying. Meanwhile, hundreds of same-sex couples married before the stay was issued. The appeals court is expected to render its decision on the stay Wednesday.

michigan_sealThe Sixth Circuit U.S. Court of Appeals issued a stay at 5 p.m. Saturday of a district court decision Friday that struck down Michigan’s ban on same-sex couples marrying, but hundreds of couples had already married by that time.

Michigan’s first marriage of a same-sex couple took place just after 8 a.m. Saturday morning in Mason, just south of Lansing, Michigan. The couple was Marsha Caspar and Glenna DeJong, both in their 50s, who have been together for 27 years.

The Detroit Free Press reported that at least four other counties had office hours on Saturday and issued marriage licenses to same-sex couples. In Oakland County, the paper said, a line stretched out the door when the office opened at 9 a.m., and marriages were being performed in auditoriums and hallways.

At least some of the rush was fueled by the knowledge that Michigan Attorney General Bill Schuette filed an emergency order Friday evening seeking a stay of U.S. District Court Judge Bernard Friedman’s ruling that the Michigan Marriage Amendment was unconstitutional.

In issuing its stay Saturday, the Sixth Circuit said the stay would remain in place until Wednesday, March 26, so there could be “a more reasoned consideration of the motion to stay.” Plaintiffs attorney Dana Nessel said attorneys have not been alerted to provide oral argument so she assumes the appeals court will make its decision Wednesday based on briefs due Tuesday at noon.

Nessel said the plaintiff couple, April DeBoer and Jayne Rowse, opted not to seek a marriage license Saturday, noting that to do so at this point in the litigation, they could lose legal standing to pursue an appeal if the Sixth Circuit overturns the district court decision.

“Our clients have decided to get married when they can legally stay married,” said Nessell, “and their marriage cannot be deemed illegitimate.”

A federal judge in Detroit ruled Friday that Michigan’s ban against same-sex couples marrying violates the couples’ constitutional rights to equal protection.

Michigan marks 9th win in post-Windsor federal court challenges

A federal judge in Detroit ruled Friday that Michigan’s ban against same-sex couples marrying violates the couples’ constitutional rights to due process and equal protection.

The Michigan decision, from U.S. District Court Judge Bernard Friedman (a Reagan appointee) falls squarely in line rulings from federal district court judges in eight other states in the past year since the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) with U.S. v. Windsor.

schuette_billA federal judge in Detroit ruled Friday that Michigan’s ban against same-sex couples marrying violates the couples’ constitutional rights to equal protection.

The Michigan decision, from U.S. District Court Judge Bernard Friedman (a Reagan appointee) falls squarely in line rulings from federal district court judges in eight other states in the past year since the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) with U.S. v. Windsor. The other eight are all on appeal to their various courts of appeal. Some suggest the Michigan case, DeBoer v. Michigan, may have a better chance at reaching U.S. Supreme Court appeal because, unlike the others, it involved a two-week-long trial.

Friedman issued the DeBoer ruling two weeks after hearing closing arguments in the trial that gave the state of Michigan a chance to establish a rationale for banning same-sex couples from marrying.

Judge Friedman said he found the testimony from the state’s star witness, California sociologist Mark Regnerus, to be “entirely unbelievable and not worth of serious consideration.” He said he was unable to accord the testimony of three other state witnesses with “any significant weight,” because it was “largely unbelievable” and represents “a fringe viewpoint that is rejected by the vast majority of their colleagues across a variety of social science fields.”

Michigan Attorney General Bill Schuette filed an emergency request for a stay of Friedman’s decision and an appeal of the decision to the Sixth Circuit U.S. Court of Appeals.

Human Rights Campaign President Chad Griffin said the Michigan decision shows that the “momentum for marriage equality is undeniable.”

DeBoer v. Michigan started out as a lawsuit to challenge a state law barring unmarried couples from adopting. April DeBoer and longtime partner Jayne Rowse were seeking to adopt three children they had been raising together. But while hearing arguments in that case last year, Judge Friedman suggested the plaintiffs amend their lawsuit to challenge the law barring same-sex couples from marrying.

The Tenth Circuit will hear oral arguments in a case from Utah Utah v. Kitchen, on April 10.

Earlier this month, the Ninth Circuit U.S. Court of Appeals removed the Nevada and Hawaii consolidated cases from the court’s calendar for April 9 in San Francisco.

Yesterday, the Fourth Circuit U.S. Court of Appeals scheduled oral arguments in two lawsuits challenging Virginia’s ban on same-sex couples marrying. The American Foundation for Equal Rights case, Bostic v. Virginia, and the ACLU-Lambda case, Harris v. Virginia, will be heard May 13.

Like Michigan, the other four cases –from Kentucky, Tennessee, Texas—are just arriving at their respective circuit courts.

Interesting factoid: From 1996 to 1999, one of Judge Friedman’s law clerks was Judith Levy, the lesbian recently confirmed by the U.S. Senate to serve on the Detroit federal court. Levy was sworn into office at the Detroit courthouse on the same day Friedman issued his decision in the DeBoer case.

For a weekday morning digest of the day’s most important news, sign up for SpeedReadQ.com. It’s free.

Lambda and others weigh in on ‘religious employers’ at Supreme Court

The U.S. Supreme Court will hear two cases next week that test the degree to which employers may use their personal religious beliefs to deny certain health coverage for employees. Neither case involves any LGBT-related health coverage; but the decisions in both may affect whether employers will be able to cite religious beliefs to deny such services as alternative insemination and gender reassignment.

The U.S. Supreme Court will hear two cases next week that test the degree to which employers may use their personal religious beliefs to deny certain health coverage for employees. Neither case involves any LGBT-related health coverage; but the decisions in both may affect whether employers will be able to cite religious beliefs to deny such services as alternative insemination and gender reassignment.

The cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood v. HHS, involve employers asserting religious beliefs as grounds for denying health insurance coverage for birth control. Both take issue with the Affordable Care Act. Hobby Lobby challenges the ACA implementing regulations that require employer health coverage plans provide women on their plans with the “full range” of “contraceptive methods.” Those regulations also authorize an exemption for “religious employer” and “religious non-profit organizations that have religious objections to providing coverage for some or all contraceptive services.”

“A religious employer,” noted HHS’s brief to the Supreme Court, “is defined as a non-profit organization described in the Internal Revenue Code provision that refers to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order.”

Hobby Lobby Stores and Mardel are two stores challenging the regulations. Hobby Lobby is a national chain of arts and craft supply stores; Mardel is an affiliated chain of Christian bookstores. Both stores are owned by five people (referred to as The Greens) who excluded contraceptive coverage from the health plans for their combined 13,372 employees, saying contraception goes against their religious belief that life begins “when sperm fertilizes an egg.”

The Hobby Lobby-Mardel owners filed the lawsuit, arguing that the 1993 Religious Freedom Restoration Act prohibits government from “substantially burden[ing] a person’s exercise of religion” unless the need to do so addresses a “compelling governmental interest” and is applied in the “least restrictive” way.

The Tenth Circuit U.S. Court of Appeals ruled for the Hobby Lobby-Mardel, saying they do count, under the Restoration Act, as “persons exercising religion” and that requiring them to provide contraceptive coverage does “compromise their religious beliefs.”

HHS is appealing, saying the beliefs held by the owners of the two companies do not justify an exemption for the companies to a “generally applicable law that regulates only those corporations and not their individual owners.”

The second case before the Supreme Court on Tuesday, March 25, Conestoga Wood v. Sebelius, is essentially the same, except that HHS won that case in the Third Circuit Court of Appeals.

The Conestoga Wood company is represented by the Alliance Defending Freedom, which has been involved in pressing a number of lawsuits opposing equal treatment of same-sex couples with marriage licenses. In its brief, the Alliance argues that the ACA is “requiring private citizens to buy contraceptive insurance coverage for other citizens.” Their arguments often echo those used to defend recent efforts to pass bills in various states to allow citizens to discriminate based on various categories (including race, sexual orientation, and gender identity).

“Because citizens exercise religion in every area of their lives,” wrote the Alliance in its brief to the high court, “this Court has recognized that individuals may exercise religion in business and that citizens may join together to exercise religion through corporations.”

The family of Mennonite Christians Norman and Elizabeth Hahn operate Conestoga Wood in Lancaster, Pennsylvania, employing 950 employees making doors and cabinets. The family believes it is immoral to take a human life, including through abortion. Their health plan for employees excluded contraception. The company filed suit, asking for an injunction to avoid the contraception requirement. The Third Circuit identified Conestoga as a “for-profit secular corporation” and said such corporations “cannot engage in religious exercise.”

What LGBT groups say

Lambda Legal and two other groups filed a friend-of-the-court brief in the two cases, saying they agree with the Obama administration that the ACA’s contraception coverage mandate “serve[s] compelling interests in public health and gender equality.” They also argue that allowing commercial enterprises, such as the Hobby Lobby Stores and Conestoga Wood, to be vested with religious protections could be harmful.

“[C]orporate entities do not hold religious beliefs and do not engage in worship,” states the Lambda brief. And paying for health coverage “is not exercise of religion.”

“This Court should reject the Companies’ demands for exemption from rules that protect employees’ ability to make for themselves ‘the most intimate and personal choices a person may make in a lifetime,’” including “decisions concerning intimate adult relationships….”

Allowing these commercial employers to claim a religious exemption, said Lambda, “would open the door to increased use of religion to deny LGBT persons, those with HIV, and other vulnerable minorities equal compensation, health care access, and other equitable treatment in commercial interactions.”

Joining Lambda in the brief were the Gay and Lesbian Medical Association and AFL-CIO group Pride at Work.

The National Center for Lesbian Rights and the National Gay and Lesbian Task Force signed onto a brief filed by the National Women’s Law Center.

U.S. Reps. David Cicilline (D-RIs.), Mark Pocan (D-Wisc.), and Mark Takano (D-Calif.) joined a brief signed by 91 members of the U.S. House.

Marty Lederman, a Georgetown Law professor and regular contributor to scotusblog.com, tackled the potential impact of the Hobby Lobby and Conestoga cases on such things as the “religious freedom” bills that have been springing up in Arizona, Mississippi, and other state legislatures. Lederman said the eventual decisions are likely to have a “profound effect upon how other courts treat state and federal [Religious Freedom Restoration Act, RFRA] claims in the commercial sector going forward.”

“If the Court were to hold that RFRA requires an exemption in these cases—and were to hold, in particular, in the case brought by a very large for-profit employer, that the law substantially burdens plaintiffs’ religious exercise and that the government lacks a compelling interest in denying religious exemptions—that would be a groundbreaking departure from the judiciary’s (and Congress’s) historical practice, one that could pave the way for claims for ‘myriad exceptions flowing from a wide variety of religious beliefs’ (Lee) by commercial enterprises with respect to many other statutes, including nondiscrimination requirements, zoning regulations, taxes, and so on.”

The Supreme Court will hear oral arguments in the cases on March 25.

Federal judge says Texas marriage ban ‘demeans’ gays for ‘no legitimate reason’

A federal judge in San Antonio, Texas, ruled Wednesday that Texas’ ban on same-sex marriage violates the U.S. Constitution and demeans the dignity of gay couples “for no legitimate reason.”

texas_flagA federal judge in San Antonio, Texas, ruled Wednesday that Texas’ ban on same-sex marriage violates the U.S. Constitution and demeans the dignity of gay couples “for no legitimate reason.” Judge Orlando Garcia then granted two plaintiff couples’ request for an injunction barring the state from enforcing the ban. But, like federal district court judges in Virginia and Utah, Garcia stayed his ruling pending appeal of the case to the federal appeals level.

The Garcia ruling was in DeLeon v. Texas, in which two same-sex couples challenged the state’s statutory ban and its state constitutional ban on marriages for same-sex couples. One couple had married in Massachusetts and sought recognition in Texas; the second couple sought to marry in Texas.

Texas Attorney General Greg Abbott announced immediately that his office would appeal the decision to the Fifth Circuit U.S. Court of Appeals. He expressed optimism that the bans would prevail on appeal.

“The U.S. Supreme Court has ruled over and over again that States have the authority to define and regulate marriage,” said Abbott. “The Texas Constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”

Texas Republican Governor Rick Perry was more defiant, saying, “it is not the role of the federal government to overturn the will of our citizens.”

“The 10th Amendment guarantees Texas voters the freedom to make these decisions,” said Perry, “and this is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box. We will continue to fight for the rights of Texans to self-determine the laws of our state.”

Supporters of marriage equality were, naturally, happy.

“This ruling is one more step toward the inevitable end of official discrimination by the state of Texas,” said Rebecca Robertson, legal director for ACLU-Texas. “Gay and lesbian couples want the same thing as other loving couples — to stand before family and friends and declare their lifetime commitment to each other, and to enjoy the same recognition and protection for their families that only marriage can bring. We applaud the judge’s preliminary ruling, but we also recognize that there is a great deal of hard work to do to bring full equality to every Texan.”

Judge Garcia and at least five other federal judges to rule on state bans of marriage for same-sex couples in the past eight months have all cited the U.S. v. Windsor decision by the U.S. Supreme Court. In that decision, the nation’s highest court said the federal government cannot refuse to recognize a valid marriage license from a state. Garcia noted that lower courts must apply that ruling “and decide whether a state can do what the federal government cannot—discriminate against same-sex couples.”

As if anticipating Perry’s reaction, Judge Garcia said, in the conclusion of his decision, that “Today’s Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United State Constitution and Supreme Court precedent.”

“Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).”

Garcia (a Clinton appointee) ruled that the Texas bans violate the guarantees of due process and equal protection of the U.S. Constitution.

A federal judge in Michigan began hearing testimony Tuesday in a lawsuit challenging Michigan’s ban on allowing same-sex couples to marry.

Olson lauds Virginia judge’s ‘eloquent’ decision, expresses confidence on appeal

A federal judge in Norfolk, Virginia, today struck down the state’s ban on same-sex couples marrying but stayed the execution of her order, that the state stop enforcing the law, pending appeal to the Fourth Circuit U.S. Court of Appeals.

The decision marks the first time a judge in a southern state has struck down a ban on same-sex couples marrying. Whatever the Fourth Circuit’s decision, it will apply to Virginia, North Carolina, South Carolina, Maryland, and West Virginia.

virginia_sealA federal judge in Norfolk, Virginia, today struck down the state’s ban on same-sex couples marrying but stayed the execution of her order, that the state stop enforcing the law, pending appeal to the Fourth Circuit U.S. Court of Appeals.

The decision marks the first time a judge in a southern state has struck down a ban on same-sex couples marrying. Whatever the Fourth Circuit’s decision, it will apply to Virginia, North Carolina, South Carolina, Maryland, and West Virginia.

“Equality isn’t something that happens just up north,” said American Foundation for Equal Rights executive director Adam Umhoefer, at a press conference Friday morning.

Judge Arenda Wright Allen (an Obama appointee) opened her 41-page decision with a quote from a book by Mildred Loving, the African American woman who, with her white husband, won a lawsuit striking down bans against interracial couples marrying.

“We made a commitment to each other in our love and lives, and now had the legal commitment, called marriage, to match. Isn’t that what marriage is?” wrote Loving in Loving for All.

In an eloquent, history-laden opinion, Allen acknowledged that a “spirited and controversial debate is underway” regarding same-sex couples marrying, but added, “Our Constitution declares that ‘all men’ are created equal. Surely this means all of us.”  She said the ban violates the rights to due process and equal protection and deprives same-sex couples of the fundamental freedom to choose to marry.

“Although steeped in a rich, tradition- and faith-based legacy, Virginia’s Marriage Laws are an exercise of governmental power,” wrote Allen. “For those who choose to marry, and for their children, Virginia’s laws ensure that marriage provides profound legal, financial, and social benefits, and exacts serious legal, financial, and social obligations. The government’s involvement in defining marriage, and in attaching benefits that accompany the institution, must withstand constitutional scrutiny. Laws that fail that scrutiny must fall despite the depth and legitimacy of the laws’ religious heritage.”

The case, Bostic v. Virginia, was argued by Ted Olson, David Boies, and a team supported by the American Foundation for Equal Rights which pressed the successful challenge against California’s statewide ban, Proposition 8.

The decision was dated 9 p.m. Thursday but entered into the record Friday, February 14, Valentine’s Day. At a press conference in Norfolk Friday morning, plaintiff Tim Bostic read from the decision an excerpt from a letter by President Lincoln in 1860 regarding the need to end slavery: “It can not have failed to strike you that these men ask for just. . . the same thing—fairness, and fairness only. This, so far as in my power, they, and all others, shall have.”

Casey Mattox, senior counsel for the Alliance Defending Freedom which represented a northern Virginia county clerk who intervened in the case to defend the ban, was out of the office today and could not be reached for comment.

Alliance Defending Freedom Senior Counsel Byron Babione said the court’s ruling “interferes with the right of Virginians to determine the future of marriage in their state and raises serious constitutional issues.” He said the Alliance is discussing “our next steps” with their client.

And Family Research Council leader Tony Perkins called the decision “another example of an arrogant judge substituting her person preferences for the judgment of the General Assembly and 57 percent of Virginia voters.”

Interestingly, however, judges have struck down only eight of the 21 state and D.C. bans since 2004. Nine of the reversals were done by legislatures, three by voters, and one by a combination of court and legislature. Three of the eight court decisions finding state bans unconstitutional are pending review by federal appeals courts and, along with many other lawsuits, are expected to find their way to the U.S. Supreme Court for a final decision.

Virginia Attorney General Mark Herring, who took office in early January and decided the ban was unconstitutional and that his office would not attempt to defend it, called the decision “a victory for the Constitution and for treating everyone equally under the law.”

Judge Allen examined the Virginia ban using “strict scrutiny,” the highest level of judicial review, because it infringed upon the fundamental right to marry. Laws violating fundamental rights can pass constitutional muster only if they are narrowly drawn to serve a compelling state interest.

Virginia Governor Terry McAuliffe released a statement Friday morning, applauding the decision. And while he said he would continue to enforce the ban as long as it is “on the books,” he considers the decision “a significant step forward in achieving greater equality for all of our citizens.”

In a telephone call with reporters Friday morning, attorney Ted Olson praised the “eloquent” and “beautiful” decision written by Judge Allen, saying it should be read by every American.

“Judge after judge after judge has determined we cannot any longer withhold the fundamental right to marriage and the right to be treated equally,” said Olson. “We feel confident in outcome of this case” on appeal, ultimately to the U.S. Supreme Court.

Olson said he thinks the Supreme Court was constrained by the Proposition 8 case because of an issue involving standing. But he said the high court could take up the merits on any of the several dozen cases percolating through the federal court system now as soon as next session.

Tim Bostic and Tony London have been together for 24 years; Mary Townley and Carol Schall have been together for nearly 30 years, and have a teenage daughter Emily.

Schall remarked that the decision being issued on Valentine’s Day has many special meanings for her. She noted that Virginia’s marketing motto has for many years been, “Virginia is for Lovers,” and that she and Townley celebrated their 29th anniversary this week.”

“The steady march toward equality continues today with this historic decision,” said Joshua Block, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “Support for the freedom to marry has seen an amazing increase in the past few years, and we will continue to work to ensure that all couples have access to the dignity and protection that only comes with marriage.”

The ACLU and Lambda Legal have teamed up in another federal court challenge to Virginia’s ban. That case, Harris v. Virginia, is in the Western District federal court in Harrisonburg and is proceeding as a class action suit on behalf of all same-sex couples in Virginia who wish to marry.

Holder announcement scrutinized

U.S. Attorney General Eric Holder told a Human Rights Campaign audience in New York Saturday that, beginning Monday, he “will – for the first time in history – formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.” But there have been some mixed assessments of how big this news really is.

U.S. Attorney General Eric Holder told a Human Rights Campaign audience in New York Saturday that, beginning Monday, he “will – for the first time in history – formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.” But there have been some mixed assessments of how big this news really is.

Holder said his new policy is a response to the U.S. Supreme Court’s ruling last June in U.S. v. Windsor. Many of the federal government’s agencies have issued new regulations in response to that ruling, striking down the key provision of the Defense of Marriage Act (DOMA).

Holder said the new policy would have “important, real-world implications for same-sex married couples that interact with the criminal justice system.” Specifically, he noted same-sex spouses would now have the same rights as spouses in heterosexual marriages not to testify against their spouse in a civil or criminal trial. Same-sex couples will be able to file bankruptcy jointly. Federal prisoners with same-sex spouses will be eligible for visits from their spouses, escorted trips to attend their spouse’s funeral. And public safety officers with same-sex spouses will receive the same benefits as their heterosexually married peers.

The mainstream media reportedly the news widely. HRC President Chad Griffin called it a “landmark announcement” that “will change the lives of countless committed gay and lesbian couples for the better” and has “more profound” effects in the long-term.

Jon Davidson, legal director for Lambda Legal, says the announcement is “quite significant.”

“It instructs all government attorneys to respect all marriages of same-sex couples, regardless of the laws of their state of residence to argue for recognition of their marriages for all purposes,” says Davidson.

But Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders, says the “substance” of the announcement was less impressive. Many of the benefits touted as part of the new policy were already in place “and the other items are good but certainly not far-reaching.”

While there is important “symbolism” in the announcement, said Buseck, “bankruptcy was a done deal several years ago; and the other items are good but certainly not far-reaching.”

In June 2011, the largest federal bankruptcy court in the United States ruled in re Balas that DOMA violates the equal protection guarantee of the U.S. Constitution. In a strongly worded decision, the 20 judges participating in the decision ruled unanimously “there is no valid governmental basis for DOMA.” By then, Holder had already advised the courts that the DOJ would not defend DOMA, and House Speaker John Boehner decided not to appeal the decision.

“It seems like Holder is spinning it as his agency – DOJ – coming on board with respect for our married couples and adopting a place of celebration rule,” said Buseck. “I didn’t immediately see it as a big deal that DOJ was somehow officially coming on board with the general trend post-Windsor.  But perhaps I am not giving them enough credit.”

In his other remarks Saturday night, Holder told the Human Rights Campaign fundraiser audience in New York City, that he thinks the struggle for LGBT civil rights has reached “a new frontier in the fight for civil rights.”

“This is no time to rest on our laurels,” said Holder. “This is no time to back down, to give up, or to give in to the unjust and unequal status quo.  Neither tradition nor fear of change can absolve us of the obligation we share to combat discrimination in all its forms.  And, despite everything that’s been achieved, each of us has much more work to do.”