Views of marriage by state

From the Public Religion Research Institute

One couple marries in Texas

And the AG immediately attempts to void their marriage. My God they hate us. 

 Ken Paxton, the newly elected Republican Attorney General for the State of Texas, has just filed a motion with the State Supreme Court to officially declare a same-sex marriage performed at the direction of a county judge null and void. Suzanne Bryant and Sarah Goodfriend married in front of the Travis County courthouse Thursday morning, after one county judge struck down the Texas same-sex marriage ban, and after another county judge ordered a county clerk to issue the license.

Goodfriend is battling ovarian cancer, leading the judge to grant the order.

No sooner had the couple, together over 30 years, been legally married, than AG Paxton announced the marriage was "void." Later, he announced he was "seeking to void the marriage license issued due to the erroneous judicial order."

Alabama!

The Supreme Court denied a stay in Alabama so that the decision stands, and marriages are to begin today.  Proudly anti-gay judge Roy Moore is calling on the state to defy the federal courts.  There's a history of that in Alabama, as Memeographs reminds us.

ALABAMA!

Chris Geidner:

“ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are hereby DECLARED to be unconstitutional because they violate they Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. The defendant Luther Strange, in his capacity as Attorney General for the State of Alabama, is hereby ENJOINED from enforcing those laws.”

Additionally, Granade provides no stay in her ruling, nor does she provide any discussion of whether a stay was considered. Without a stay, the ruling goes into effect immediately — meaning Granade’s intention appears to be that same-sex couples can marry in Alabama immediately.

FLORIDA

Over 70% of Americans now live in states with Marriage equality.  Tomorrow, the SCOTUS may decide to take up the issue in conference discussing the appeals brought before it, particularly the 6th circuit.  There's a good summary of the SCOTUS cases here.

Despite the ever more desperate screams of the opponents, polls indicate that  56% of Americans approve of legalizing same sex marriage, including 41% of Republicans. 

This is almost over. 

No marriages in Mississippi yet

I know, Mississippi, right? 

The Federal District Court over turned the MS anti-equality law on the 25th, but today the 5th circuit denied the effort to combine this with the TX and LA cases scheduled to be heard in January, although they fast-tracked the schedule  They also stayed the marriages.

But these words from the opinion are great:

In reviewing the arguments of the parties and conducting its own research, the court determined that an objective person must answer affirmatively to the following questions:

• Can gay and lesbian citizens love?
• Can gay and lesbian citizens have long-lasting and committed relationships?
• Can gay and lesbian citizens love and care for children?
• Can gay and lesbian citizens provide what is best for their children?
• Can gay and lesbian citizens help make their children good and productive citizens?
• Without the right to marry, are gay and lesbian citizens subjected to humiliation and indignity?
• Without the right to marry, are gay and lesbian citizens subjected to state-sanctioned prejudice?

Answering “Yes” to each of these questions leads the court to the inescapable conclusion that same-sex couples should be allowed to share in the benefits, and burdens, for better or for worse, of marriage.

ThinkProgress also notes the poor argument that equality should be left up to the democratic process :

[Judge] Reeves was not compelled by the idea that the law should wait for people to come around, citing a 2011 survey that found that nearly half of Mississippi Republicans still oppose interracial marriage. “If the passage of 50 years has had such negligible impact on the public’s opinion of interracial marriage in the Deep South,” he wrote, “it is difficult to see how gay and lesbian Mississippians can depend on the political process to provide them any timely relief.” 

Kansas and South Carolina

We added Kansas and South Carolina this week...at least, technically, although they are still kicking and screaming.  Here's the map from ThinkProgress.

So, who's left?

A Federal Judge in Mississippi heard a case this week.

The 5th Circuit (TX, MS and LA) and 11th circuit (FL, AL, GA) have cases moving up from the states. Cases are pending in SD, ND, and NE and AR;  these haven't had federal rulings yet or circuit decisions.  MO is (like KS and SC) trying to resist the circuit ruling that applies.  In  Puerto Rico  the case  may be moving up to the 1st circuit.  (All the states in the 1st have already got marriage equality.)

I will bet that we will have 50-state marriage equality by the summer of 2016.  I think it is possible that the Supremes will hold off on a case this year.

A quiet earthquake for marriage equality

When from out of the blue
And without any guide,
You know what your decision is....
Which is not to decide
          "On the Steps of the Palace", Stephen Sondheim

The Supreme Court today denied certiori to seven different cases involving marriage equality.  By denying cert, the court essentially says that the decisions from the lower courts stand.  This may be because those lower courts all agreed with each other, and have been falling all over themselves to find for equality.  Without a disagreement between the lower courts, there's not a conflict that requires the Supreme Court to solve.  This suits the Court, which prefers to let trends get hammered out by the states before taking a step.  

So this decision not to decide brings marriage to Virginia, Indiana, Wisconsin, Oklahoma, and Utah.

I know, Utah.  Right?  (After what they did to us in CA it's hard not to enjoy this....)

But wait, there's more! 

The decisions came from the 4th, 7th, and 10th circuit courts of appeal, which means that other states that still have bans in those circuits are also affected, giving a total of 11.  

• 4th: Virginia , West Virginia, North Carolina, and South Carolina.
• 7th:Wisconsin, Indiana 
• 10th: Utah, Oklahoma, Wyoming, Colorado, and Kansas as well.

THinkProgress gives us the map.  Potentially 30 states will have equality, and 60% of the population.

It is possible (or even likely) that one of the remaining circuits will uphold a marriage ban, as those circuits tend to have more conservative judges.  And that may be the case that the Supreme Court eventually takes.

As always, the most detailed information can be found at Scotusblog.

Streak ends, as it must

A federal judge in Louisiana finds rational basis in supporting that state's marriage ban because, well, incest.  From THink progress:

Political operatives seeking to cast aspersions on Feldman’s approach to gay rights will find a lot to work with in his opinion. At one point, he describes being gay as one of several “lifestyle choices” a person can make. At another point in his opinion, he compares same-sex marriage to marriage between “aunt and niece,” “aunt and nephew,” or “father and child.” He also likens marriage equality to polygamous marriages.

He also seems a little confused about the 14th amendment, which is not limited to issues of race.  This one will head up to the 5th circuit for appeal.

Meanwhile, in this first of --what, 30?-- decisions on our side, the fundies are rejoicing with their dehumanizing, hate-filled rhetoric.

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.

Kentucky

ThinkProgress:

[Judge] Heyburn took particular exception to a “disingenuous twist” added to the state’s argument this time, referring to Gov. Steve Beshear’s (D) claim that it’s too expensive to allow same-sex couples to marry. “These arguments,” he wrote, “are not those of serious people,” calling them “at best illogical and even bewildering.” He could think of “no other conceivable legitimate reason” for Kentucky’s laws banning same-sex marriage. 

In his conclusion, Heyburn spoke directly to those who objected to his previous decision this year. “In America,” he implored,” even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted.” “Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree… hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.”

The decision has been stayed.

Meanwhile in Indiana....

Also from ThinkProgress

U.S. District Court Judge Richard L. Young, a Clinton appointee, ruled Wednesday that Indiana’s state law banning same-sex couples from marrying or having their marriages from other states recognized is unconstitutional. The ruling takes effect today, though will likely be stayed as rulings in other states have been. 

According to Young, “It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love.” He expects that, “in time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage — not a same-sex marriage.”

“These couples, when gender and sexual orientation are taken away,” he concluded,” are in all respects like the family down the street. The Constitution demands that we treat them as such.”

Meanwhile in Utah....

From ThinkProgress:

In the first federal appellate level consideration of same-sex marriage since the Supreme Court overturned the Defense of Marriage Act last year, the 10th Circuit has agreed with the lower court that Utah’s ban on same-sex marriage is unconstitutional. In a 2-1 decision, the panel ruled that the Constitution guarantees that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as it is recognized by persons who wish to marry a person of the opposite sex.” 

The ruling was immediately stayed, recognizing that the Supreme Court had stayed thedistrict court’s original ruling earlier this year.

From the opinion:

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

and

As the Constitution endures, persons in every generation can   invoke its principles in their own search for greater freedom.” Id. at 579. 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 eloquently explained, “it is not the Constitution that has changed, but the   knowledge of what it means to be gay or lesbian.” Kitchen, 961 F. Supp. 2d at 1203.   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.

And Oregon. Prophetic words from the decision

...and a district judge has found that Oregon's marriage ban, which was undefended, is unconstitutional.  It's a beautiful opinion.  

My decision will not be the final word on this subject, but on this issue of marriage I am stuck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in thee plaintiffs nothing more or less than our own families. 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.

Where will all this lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: let us look less to the sky to see what might fall; rather, let us look to each other…..and rise. 

and....Arkansas?

Arkansas Times:

Circuit Judge Chris Piazza today invalidated the Arkansas ban on same-sex marriage and recognition of marriages legally entered by same-sex couples in other states.

An appeal is expected. The judge did not stay his ruling, though the state probably can be expected to request a stay. Reaction was quick, with Republican politicians first out of the box to decry the ruling.

Offices have closed so no marriages (yet).  A stay is requested.

From the ruling:

The Arkansas Supreme Court applied a heightened scrutiny and stnrck down as unconstitutional an initiated act that prohibited unmaried opposite-sex and sarne-sex couples from adopting children. The exclusion of same-sex couples from marriage for no rational basis violates the fundamental right to privacy and equal protection as described in Jegley and Cole, supra. The difference between opposite-sex and same-sex families is within the privacy of their homes.

This case is in state, not federal court. The ban on marriage passed with 75% of the vote.

A busy week in equality

Arizona's attempt to facilitate discrimination against LGBT people came perilously close to passing, before being vetoed last night by Gov. Brewer.  While many of the similarly-worded "okay to discriminate" laws have not made it, there are still a number in play.

Yesterday also saw another federal judge strike down an anti-marriage amendment, this time in Texas.  As is usual, there was an immediate stay pending appeal, so no one's getting married just yet, but this is the latest in a line of federal district courts applying the logic of the Windsor case.  So now, we've had rulings in Oklahoma, Virginia, Utah, and Texas.

The delicious thing about these cases is that Justice Antonin Scalia so often has provided the words.

From the HuffPo:

[Judge Garcia] chose to quote from Scalia's dissent in the landmark 2003 case Lawrence v. Texas, which struck down the state's anti-sodomy law....

In explaining why tradition alone can't form a rational basis for a law, Garcia pointed to Scalia's argument in the 2003 dissent that the phrase "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples." 

And in explaining why the biological ability of many opposite-sex couples to procreate doesn't justify denying equal rights to same-sex couples, Garcia cited Scalia, too. 

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," Scalia wrote at the time. 

Other judges have pointed at Scalia's words in his dissent to Windsor.

 Scalia wrote in that dissent that he believed the majority's logic would inevitably lead to other judges striking down same-sex marriage bans.

And in Kentucky....

From the HuffPO:

A federal judge has ruled that Kentucky must recognize same-sex marriages performed in other states, striking down part of the state ban. 

In 23-page a ruling issued Wednesday, U.S. District Judge John G. Heyburn II concluded that Kentucky's laws treat gay and lesbians differently in a "way that demeans them." The constitutional ban on same-sex marriage was approved by voters in 2004. The out-of-state clause was part of it. 

This doesn't address marriages IN Kentucky, but says they can't discriminate against people like me who are legally married in another state.

Fundy wingnut head explosions in three....  two....

update:  more from the New Civil Rights Movement:

[Judge] Heyburn said that while ‘religious beliefs … are vital to the fabric of society … assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons,’” the Courier-Journal reports.

New suit in WI takes on "marriage evasion"

Following up on yesterday's post, here's another facepalm.

Many LGBT people travel to states where marriage is legal to tie the knot.  Thanks to the fall of DOMA, marriage now accrues federal rights and benefits.  It's hard to return to a state that doesn't recognize them, but at least they have some protections.

But in Wisconsin, that's illegal. They have a statute  making it a crime for a gay couple to get married somewhere else.  And now, someone is going to litigate.

The litigation seeks not only to overturn the state’s 2006 constitutional amendment barring same-sex marriage, but also to enjoin state official from enforcing a “marriage evasion law” prohibiting couples — gay and straight — from going elsewhere to marry if the marriage would be prohibited in the state. 

The penalties of violating the marriage evasion law in Wisconsin, which is the only state to have such a statute, include up to $10,000 in fines and nine months in prison. 

... 

The marriage evasion law is particularly problematic for same-sex couples in Wisconsin because the Obama administration in most cases has elected to recognize same-sex marriages even if the state doesn’t recognize them — provided these couples are able to marry in a jurisdiction that allows it. 

John Knight, a staff attorney with the American Civil Liberties Union’s LGBT project, called the marriage evasion law a “Catch-22″ for same-sex couples living in Wisconsin who want to marry. 

“Wisconsin is unique in that sense, and so we think that argument particularly exemplifies the harm or the animus toward same-sex couples in some parts of the country,” Knight said.

How can that be considered anything other than rawest animus?

State update

Virginia:

Following a seismic political shift in Virginia, the new attorney general has concluded that the state's ban on gay marriage is unconstitutional, and on Thursday he joined a lawsuit challenging it. 

Attorney General Mark R. Herring says in a brief filed in federal court in Norfolk that marriage is a fundamental right and the ban is discriminatory. 

Virginia, widely considered a battleground state in the nationwide fight to grant same-sex couples the right to wed, is siding with the plaintiffs who are seeking to have the ban struck down, a spokesman for Attorney General Mark Herring said in an email to The Associated Press.

 Florida:
The "pro-marriage" group may actually be a shell group trying to defeat equality's chances.

The timing of Brito’s idea was so inopportune, and its execution has been so lackluster, that some wonder if this might be a stealth campaign, secretly launched by anti-LGBT forces, and engineered to fail on purpose. An alternate explanation might be that this tax-exempt campaign could have been created to funnel some of its supposed $6 million of donations into revenue at Brito’s political consulting business, MYami Marketing, Incorporated.

Indiana:
Despite opposition from groups and companies including Eli Lily, the Republican dominated committee wants to regress Indiana and discriminate against its gay residents. The lies they tell....

The Indiana House Elections and Apportionment Committee voted 9-3 along party lines Wednesday evening to advance House Joint Resolution 3, a constitutional amendment banning same-sex marriage. It also passed a bill that expresses legislative intent in regards to how the amendment should be enforced. House Speaker Brian Bosma (R) assigned the amendment to this committee on Tuesday after it seemed like the Judiciary Committee might not approve it. The amendment now advances to the House floor.
....
The Indiana General Assembly previously approved the amendment in 2011. It must now be approved again during this legislative session before it can advance to voters for approval. 

Marriagei n UTAH?

Unexpectedly, a federal district judge has rule in favor of equality in Utah. From the decision:

Rather than protecting or supporting the families of opposite-sex couples, Amendment 3 perpetuates inequality by holding that the families and relationships of same-sex couples are not now, nor ever will be, worthy of recognition. Amendment 3 does not thereby elevate the status of opposite-sex marriage; it merely demeans the dignity of same-sex couples. And while the State cites an interest in protecting traditional marriage, it protects that interest by denying one of the most traditional aspects of marriage to thousands of its citizens: the right to form a family that is strengthened by a partnership based on love, intimacy, and shared responsibilities. The Plaintiffs’ desire to publicly declare their vows of commitment and support to each other is a testament to the strength of marriage in society, not a sign that, by opening its doors to all individuals, it is in danger of collapse.

Remarkably, he didn't stay the decision, so couples have rushed out to get married.

The Governor is not happy.  Nor is the Mormon church.

An appeal has been filed, and a request for a stay is expected. Whether the marriages will remain intact or be annulled?  well....we pre-Prop8 couples have been there, done that.  Ours were "grandfathered in" after Prop H8.  Good luck, brothers and sisters!

UTAH?

Update:  excellent analysis from Think PRogress here.