What's the Supreme forecast?

We've seen a remarkable string of federal court decisions impacting marriage equality in states with anti-equality laws or constitutional amendments.  But for the majority of those cases, there is a stay in place that prevents people from getting married, until the appeals process plays out.  So there are a lot of cases percolating.

To remind you, and for our foreign readers (if there are any), state laws can be challenged in the state court system,which will only consider issues relevant to the state constitution, or in the  federal court system, under federal constitutional law.  For example, in California's case, the state supreme court reluctantly found that under the California Constitution, Prop8 was legal.  A separate suit was then brought in federal court arguing that it was illegal under the US constitution.  That was heard by the district court, and the 9th circuit court of appeal.

That's what finally went to the Supreme Court, where it was overturned on a technicality because the state declined to appeal, and the only  appellants (the opponents of marriage equality) were a private group that lacked standing. Incidentally, that situation has led to equality in Oregon and Pennsylvania, where the state declined to challenge the ruling and private parties were found to lack standing.  (It's worth reminding people that there is no legal obligation to appeal a court decision. )

The Supreme Court doesn't have to hear any case. Typically, one big driver of them choosing to hear a case is if there is a disagreement in the lower courts.  For example, if the 9th circuit finds for marriage equality, while the 6th does not.  That can only be remedied by the SCOTUS. And that may happen, as court-watchers are betting that the case before the more conservative 6th circuit will find against marriage equality.

Of course, regardless, the losing sides in any of these cases can appeal all the way up to the SCOTUS, as long as they have standing. Right now, the Utah case is closest to making a SCOTUS appeal, since they've been through the circuit. The Oklahoma case is also on track.  The Virginia case may also make an appeal.  Each of these is in a different circuit, and each provides a slightly different twist to the question.  From Equality on Trial,

In the Virginia case, the fervor of the ban is unmatched—not only does its ban deny marriage to same-sex couples, but it also seeks to deny them from acquiring any of the rights of marriage through other means, such as civil unions or domestic partnerships. The plaintiffs, two couples, each represent one aspect of the ban’s two-pronged scope: the denial of both in-state marriage licenses as well as out-of state marriage licenses. 

In the Utah case, the defendants’ case relies more heavily on the claim that the state is being deprived of its right to define marriage, “disenfranchising” millions of its voters. Because the Constitution doesn’t define marriage, and the Supreme Court only deems the “right to marry” as a fundamental right, Utah claims that it has been delegated the right to define what “marry” means. The defendants claim that the Tenth Circuit’s ruling undermines democracy, and the federal system. 

In the Oklahoma case, more emphasis is placed by the defendants on the suspect nature of same-sex parenting. They note the uneasiness of young adults who don’t know their biological parents, or are conceived through sperm donation, though arguments from the other side rebut these claims as largely unfounded, while conflict in the social science community over that issue has also provided little evidence for the claim.

But the court doesn't HAVE to take any of those cases, unless it sees a question it must answer.

 If it does decide to take a marriage case next term (which it probably will), it will be able to pick and choose which one.

Lyle Denniston tells us,

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29. That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. 

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away. The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete. The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term. 

There will be plenty of time, though, to get a case before the Court for decision during the new Term. If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June.

Update: Waiting in Virginia

Never let it be said that state elections "don't matter". In Virginia, which has such a harsh anti-gay policy that I call it the State of Hate, there has been a complete change since the election of Democratic Governor and Attorney General. They are marriage equality supporters for one. However, the AG is defending the law as it stands. So far, the 4th Circuit has found against the marriage ban, and refused to stay their order further. The marriage opponents have appealed to SCOTUS for a stay. THe AG agrees, because he doesn't want the on-again off-again spectacle of Utah or other states.

The 4th circuit falls under the responsibilities of Chief Justice John Roberts. It's widely assumed that he will continue the stay, since the Supremes also stayed the marriages in Utah. We'll know today. In any case, we'll almost certainly be seeing the Court take up marriage equality in their next session (starts in October).

Update: and, as expected, the stay is granted. No marriages in Virginia this week.

VIRGINIA?!

Box Turtle Bulletin fills us in:

While I was sleeping, Federal District Judge U.S. District Court Judge Arenda L. Wright Allen found Virginias constitutional amendment banning marriage equality and the recognition of same-sex marriages from other states as a violation of the due process and equal protection clauses of the U.S. Constitution. 

Virginia’s same-sex marriage ban is considered one of the most sweeping bans in the country. It’s only fitting, then, the Judge Allen’s ruling is similarly sweeping.  

From the opinion:

Justice has often been forged from fires of indignities and prejudices suffered. Our triumphs that celebrate the freedom of choice are hallowed. We have arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect. 

Almost one hundred and fifty four years ago, as Abraham Lincoln approached the cataclysmic rending of our nation over a struggle for other freedoms, a rending that would take his life and the lives of hundreds of thousands of others, he wrote these words: “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. “ 

The men and women, and the children too, whose voices join in noble harmony with Plaintiffs today, also ask for fairness, and fairness only. This, so far as it is in this Court’s power, they and all others shall have. [Emphasis in the original]

More from Think Progress

IOKIYAR, or when does a VA Attorney General have to defend a law?

The conservatives are up in arms because the new Attorney General of Virginia,  Mark Herring, refuses to defend the state's cruel anti-gay union law.  The AG considers it unconstitutional.

Never fear, the law will be defended by the Usual Suspects, thanks to several clerks also named in the suit. In fact, arguments were heard yesterday.

Let's have a quote from the Virginia A/G:

“I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained [in a debate], “I will not defend it. My first obligation is to the Constitution and the people of Virginia.”  (source)

Oops .... I'm sorry.

That wasn't a quote from (Democrat) Mark Herring, but from his (Republican) predecessor, Ken Cuccinelli.

Apparently, it's okay to refuse to defend a law that you consider unconstitutional if you are a Republican A/G.  It's just a problem if you are a democrat.

The stench of hypocrisy....

(More from ThinkProgress)

Dream Team Boies and Olson to take on Virginia

I have often called Virginia the "State of Hate" because they not only ban marriages between same-sex couples, they also ban civil unions, recognition of any marriages, and indeed, any civil efforts to provide relationship protection like employer-benefits, etc. 

"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia." (Source)

The Prop8-AFER dream team of powerhouse attorneys Ted Olson and David Boies are going to take on Virginia.  Although they won their Prop 8 case, it was on a technicality that only applied to California.  Their goal is to achieve marriage equality nation wide.  From the WaPo:

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

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

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

Of course, there is a risk.

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

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

Olson is unmoved by that theory. 

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

Let us remember that George Bush senior recently was a witness at a same sex marriage, and Supreme Court Justice Ginsberg has officiated at two weddings.  Slowly, surely.....

Virginia, the State of Hate

As I have commented before, Virginia is a state of hate. Not sufficient is a bar to gay unions, Virginia actually has a law invalidating any private legal contracts intended to give couples any protections. (I remain deeply puzzled how this can be legal under equal protection laws.)

Now, under the rule of a new Governor and Attorney General, Virginia is going after GLBT people with even greater intent. Not satisfied with the status quo, the new Governor, Bob McDonnell, announced that he would not continue an executive order barring discrimination against GLBT state workers. Attorney General, Ken Cuccinelli,a known hater, next announced that the state universities in Virginia were not allowed to have anti-discrimination statutes nor benefits for GLBT partners. In the competitive world of higher education, this means that they have just shot themselves in the foot for recruiting and retaining of students and faculty.

You see, it's not just GLBT students and faculty who are affected, but anyone who believes in diversity and humane values. And that means a lot of straight students and faculty will see Virginia as a place incompatible with their beliefs. Academics are idealists. It's why, after our years of advanced training, we are willing to be paid relatively little to do what we do. THere's a reason we call it "liberal arts".

So Cuccinelli has just made it clear to academics and students that Virginia is an unwelcoming and backward state. And he has made it clear to people already there, that they are not welcome. The best faculty will be the ones with choices. Time for other universities to take a look and start cherry picking.

As the WaPo editorialized,

These schools have been havens for inclusive policies that often go hand-in-hand with academic freedom. It's sad and telling that as one of his earliest acts in office, the attorney general would actively reach out to enable discrimination.

Gov McDonnell today reversed himself, but only superficially, by issuing a relatively weightless executive directive in

a bid to quell a controversy over discrimination and the state's power to prevent it.

The directive appears to counter both the governor's prior order and the legal advice of Attorney General Ken Cuccinelli, who recently sent public colleges a letter arguing the institutions lacked the authority to include sexual orientation in their anti-discrimination policies.....

He turned to the U.S. Constitution to argue that gays are already protected. The 14th Amendment's Equal Protection Clause, he wrote, prevents discrimination "based on factors such as one's sexual orientation."

Problem is, of course, he used a weightier executive ORDER to rescind the coverage. This is window dressing. As I've said before, Virginia's hate is the last gasp is a dying world view. But it is vicious and venomous none-the-less.

Should we settle for civil unions?

Should we settle for civil unions?

There was a story in the AP last week questioning whether the GLBT community should focus on getting civil unions rather than on marriage.

In the weeks since Maine voters handed the gay marriage movement its 27th electoral defeat in five years, other activists have voiced similar qualms about making marriage their main goal. Gay rights leaders have insisted that anything less than full marriage equality is unacceptable, but some are asking whether the uncompromising strategy has forestalled interim steps that could improve the lives of gay men, lesbians and their families.

At some level this makes sense; what does it matter what you call it? HOWEVER, what we know is that it matters. Here are my reasons:

1) Civil unions (or domestic partnerships; DPs) vary widely from state to state in the rights and protections they provide, from WA and CA where they are supposed to be "just like marriage" to other states where their coverage is incomplete.

2) In fact, even in those states where they are supposed to be complete, they aren't. In CA you don't even get a DP in the same way; a $20 notary form is not the same as a marriage license and personal interview. There are numerous stories about legally registered partners STILL being denied health care access. If you are a state employee, your DP is not covered by the state long-term insurance plan. You have to litigate every single piece of coverage to be sure they are the same. This is why in NJ a commission found that civil unions are NOT the same, and the only remedy is civil marriage.

3) DPs and Civil Unions don't cross state lines or international boundaries. They only exist within the state for state law.

4) I resent like hell the notion that I have to "earn" my rights by some sort of probationary period. "Maybe when they see that the sky doesn't fall," people say. Well, the laboratory of Massachusetts shows that marriage equality has no ill effects on the society at large. I am not a 2nd class citizen and I don't have a 2nd class relationship.

5) The bad guys aren't any happier with DPs. Look what they did in WA: they tried to defeat a law that gave generous provisions to DPs, "marriage in all but name", and they almost succeeded. In Nevada and elsewhere, Republicans have opposed civil union laws. Indeed, they are so eager to outlaw any benefits, that in Virginia you can't even draw up a private contract protecting your partner.

"A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited." It goes on to add that any such union, contract or arrangement entered into in any other state, "and any contractual rights created thereby," are "void and unenforceable in Virginia."

Virginia is not for lovers. It's a state of hate.

The fact is, it isn't about the name of "marriage" or the concept of "marriage". It's about any recognition of our partnerships and families.

So, no, we shouldn't settle for civil unions. Separate but equal in this country is only separate, never equal.