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.

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.

Utah for Marriage (Video Sunday)

Let it stand! (Video Sunday)

There have been rallies to support marriage in Utah.  This youngster, aged 12, testified movingly about his two moms.

Utah can't make up its mind

From the NY Times, a review of the shifting, incoherent arguments that Utah is trying to oppose marriage equality:

The state’s first argument, made before Judge Robert J. Shelby of the Federal District Court in Salt Lake City, was that “the traditional definition of marriage reinforces responsible procreation.” ... 

Judge Shelby agreed, saying the argument was true as far as it went. Encouraging marriage would make it more likely that the children of heterosexual couples would have parents who were married. 

But there was no reason, the judge went on, to think that allowing same-sex couples to marry would change that. To the contrary. By forbidding gay and lesbian couples from marrying, he wrote, “the state reinforces a norm that sexual activity may take place outside of marriage.”

Hmmm, not so effective.  So, they cited discredited studies to argue that children "do better" with opposite sex parents.  When the lawyers on the equality side pointed out that every national health care organization involved in the welfare of children disagrees,

Utah responded that it would not be swayed by “politically correct trade associations,” referring to, among others, the American Academy of Pediatrics, the American Medical Association and the American Psychiatric Association. “We are not ruled by experts,” the state’s brief said.

Okay then.  

Still not giving up on children,

“By holding up and encouraging man-woman unions as the ‘preferred’ arrangement in which to raise children,” the state said, “the state can increase the likelihood that any given child will in fact be raised in such an arrangement.” 

Judge Shelby had rejected the argument as illogical and counterproductive. Utah’s ban on same-sex marriage, he wrote, “does not make it any more likely that children will be raised by opposite-sex couples.” But it certainly demeans and humiliates the thousands of children being raised by same-sex couples in the state, he said.

Now, another shift:

“The state does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting,” the state said. 

But, drawing on Supreme Court decisions endorsing the value of diversity in deciding who may attend public universities, the state now said it was pursuing “gender diversity” in marriages. “Society has long recognized that diversity in education brings a host of benefits to students,” the brief said. “If that is true in education, why not in parenting?” 

Is it just me that finds this completely illogical?

The problem they all have is that no marriage equality statute has anything to do with raising children.

First of all, there is no requirement for fecundity in marriage.  We have already decoupled child bearing and marrying.

Second, lots of gay couples already have children.  And they aren't going to stop having children just because they are denied marriage.

Third, gay people aren't suddenly going to go steal children of unsuspecting straights just because they get a marriage license.

As we saw in the Prop8 case, there are really no good arguments that the opponents of equality can make that don't involve their own view of religion.

Utah Marriages will be federally recognized

Even if Utah won't recognize them, the Fed will (considering that they were legally entered into at the time).  From Equality on Trial quoting Atty General Eric Holder:

In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds,” Holder says. 

In the coming weeks, Holder pledges to coordinate with other branches of the federal government to ensure federal benefits are flowing to same-sex couples who wed in Utah.

Utah governor attempts to stuff marriages back in the bottle

From the NY Times:

The fortunes of 1,300 newlywed same-sex couples in Utah were thrown into turmoil on Wednesday after the governor’s office announced that it would not recognize their marriages while it presses its legal efforts to limit marriages to one man and one woman... 

Utah is now treading onto relatively untested legal ground. In 2004, the California Supreme Court voided 4,000 same-sex marriages that had been granted in San Francisco that year, saying that the unions were prohibited under state law. 

But four years later, the same court struck down those restrictions as unconstitutional. Thousands of gay Californians were then able to wed before state voters approved Proposition 8, which limited marriage to opposite-sex partners. The same-sex couples who had previously exchanged vows retained their rights....

The state’s decision also does not invalidate any same-sex marriages. Instead, said Mr. Miller, the chief of staff, it effectively suspends them in place, freezing benefit applications or other petitions for legal protections.

Naturally, the only ones who will benefit will be the lawyers:

The American Civil Liberties Union of Utah announced Thursday that it is planning litigation against the state of Utah for putting recognition of same-sex marriages on hold after theSupreme Court issued a temporary stay. 

The ACLU called for plaintiffs on Wednesday, and got "overwhelming interest" from couples who were married before the stay was granted.

"We have a great pool and we are working through that, and plan to bring litigation that will protect all marriages, whether the couples are named plaintiffs or not," the ACLU said in a statement.....= 

While Utah put recognition of same-sex marriages "on hold," its decision to do so did not invalidate marriage licenses already issued to gay couples. 

Reyes clarified this distinction to Fox 13 News Salt Lake City. 

"I want to be clear that we are not saying those marriages are invalid," he said. "However, as a state we cannot recognize those marriages."

Marriages stayed in Utah

THe SCOTUS has issued a stay, pending appeal to the 10th circuit.  

How Utah's AG allowed marriages to take place (video)

Why are same sex couples able to get married in Utah?  By comparison, when Judge Vaughn Walker in the 9th circuit found that Prop8 was unconstitutional, he immediately stayed his decision.  That's because the guys on the other side filed pre-emptively for a stay pending appeal.

Seems that Utah's AG's office is in a bit of a mess, and they....forgot to do that.

Rachel maddow:

What's happening in Utah (video Sunday)

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.

Legalizing Discrimination in Utah

From the Salt Lake City Trib, a discussion of a representative who things religious liberty is a valid reason for discrimination. We no longer link to the SLC Trib.

What's happening in Utah?

The Salt Lake Tribune reports that support for gay rights has climbed over 11 %, and 2/3 favor employment protections, hospital protections, and inheritance rights. But they still oppose civil unions and marriage.

Kissing in Utah

IS there a new sensitivity afoot? There seem to be a lot of gay folks getting arrested for exchanging a kiss.Most recently, a gay couple was arrested for kissing in front of the LDS temple. The plaza they were walking through was ceded by Salt Lake City to the LDS church, so it is private property.

According to the AP, the men say they simply kissed. The Mormon security guards claim much more:

...church officials contend their behavior was lewd.

"There was much more involved that a simple kiss of the cheek," Farah said in a statement Friday. "They engaged in passionate kissing, groping, profane and lewd language, and had obviously been using alcohol."

Hmmm, this reminds me of the Fort Worth assault, where the police said that there was lewd behavior and groping that provoked them to slam a man into a wall, while the witnesses say there was no such thing. Because of course, you know those gay people can't keep from having sex in the streets, and "gay panic" is still an excuse. However

The men have said they were walking home from a nearby concert and cutting through the plaza on their way home.

A police report said they sat down for a kiss and were approached by a pair of church security guards, who asked them to leave because their behavior was "unwanted."Both were handcuffed and Aune was pinned to the ground.

THat doesn't sound like sex in the streets to me.

Of course on private property, the LDS has the right to regulate behavior. Even if it is a double standard that allows displays of affection between straight couples but not gay. However, throwing them to the ground seems a bit much.

So there was a kiss-in to protest, which predictably brought the counter-protesters out.

[A]bout 100 people gathered to stage a "kiss-in" to protest the treatment of two gay men cited for trespassing July 9 after they shared a kiss on the plaza owned by The Church of Jesus Christ of Latter-day Saints. Both gay and straight couples exchanged kisses during the protest.

Demonstrators were greeted at the south entrance by a group of protesters carrying large signs that denounced homosexuality, prompting a heated verbal exchange.

Police say no one was arrested or cited, despite a large group exchanging kisses by a reflecting pool at the plaza's center.

With the eyes of the world on them, they decided not to throw them to the ground for en masse handcuffing and arrest. Good choice.

REmember, Utah is actually moving backwards on gay rights. Yay, Mormons.

Not.

So look for a kiss-in opportunity near you: GLBT and straight allies, all are welcome to pucker up.

Update San Diego had a kiss in at the Mormon temple on Weds.