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The Marriage Equality Cases Before the US Supreme Court

Friday, January 30th, 2015

US Supreme Court ColorLast time, we spoke about the importance of framing the case through the Questions Presented. I argued that despite some concern, the two questions posed in the Supreme Court’s order do not indicate that the justices are looking for a way out. They are ready to rule. Before we discuss the substance on which the justices will rule, let’s review the four cases that will decide the marriage equality question.

This matters because not all cases are fungible. Some come with better facts, others come with messy complications; some come with sympathetic plaintiffs, others have unfortunate optics. Especially when it comes to appellate review, the record on appeal can even tilt the outcome of the case. Plus, the cases are fun to talk about at nerdy cocktail parties.

Bourke v. Beshear is the Kentucky case and it was one of the earlier (though not the earliest) post-Windsor pro-equality decisions from a federal district court. It is about both the right to have a valid out-of-state marriage recognized in a home state and Kentucky’s own in-state ban. The judge, the Honorable John G. Heyburn, relied heavily on Windsor and found that Kentucky’s marriage laws discriminated against gay persons in violation of the Equal Protection Clause as applied to the states. Using rational basis review — the lowest form of scrutiny that only requires a rational connection between a law and a legitimate government objective — the court said there was no rational reason to treat gays this way. He struck down the anti-recognition law.

Authored By Ari Ezra Waldman – See the Full Story at Towleroad.com

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New Poll Shows 7% of LGBT Community Opposes Marriage Equality

Wednesday, January 28th, 2015

titleAn interesting new poll shows that a small sliver of the US LGBT population opposes marriage equality.

The Washington Post reports:

A new chart from Pew, based on 2013 data, shows that 7 percent of LGBT Americans said they oppose same-sex marriage. And another 18 percent said they favor it, but that they didn’t feel strongly. Perhaps most striking, 39 percent of the LGBT community said the marriage fight was taking focus off other issues of import to them.

Opposition to gay marriage in the LGBT community, such as it exists, is driven by three groups: LGBT blacks, LGBT Republicans, and bisexual Americans.

While 12 percent of the black LGBT community opposed gay marriage, nearly one in five (19 percent) Republicans did, too. Only 45 percent of LGBT Republicans said they strongly favored gay marriage — the lowest of any group. Fifty-eight percent of LGBT blacks said they strongly favor it.

FT_15.01.23_LGBT-2

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A Best-Case, Worst-Case Look at the Supreme Court’s Options

Monday, January 26th, 2015

US Supreme Court Color

In just a few months, the U.S. Supreme Court will hear oral argument in four marriage equality cases, and while it’s impossible to accurately predict how the nine justices may rule, it’s also impossible to avoid speculating. This much is certain: Whatever the court decides will be the most important turning point ever seen in the marriage equality battle — and will radically alter the lives of millions of people.

What Exactly Will the Court Decide?

The court is going to focus on two questions, asking attorneys on both sides to address the inquiries with the merits of their individual cases. Those questions are:

Does the Constitution require states to issue licenses to same-sex couples?

Does the Constitution require states to recognize out-of-state marriage licenses from jurisdictions with marriage equality?

These questions may seem straightforward, but the court’s answer could be (and probably will be) more than just a yes or no. When the justices rule, a complex decision could settle those questions while also providing detailed guidance for future litigation. That’s one reason why it’s so hard to predict: there are an infinite number of ways the justices can answer even the simplest of questions.

Authored By Matt Baume – See the Full Story at The Advocate

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Marriage Equality Round-Up – US Supreme Court Edition

Saturday, January 17th, 2015

US Supreme Court Color

There’s a lot going on around the US Supreme Court’s decision to take five marriage equality cases from the Sixth Circuit. Here’s a wrap-up of the current news and analysis

USA: The hearing will be held in April. full story

USA: The ACLU looks at where we’re at and how we got here. full story

USA: Time Magazine looks at the court’s options in the case. full story

USA: Lambda Legal asks “what happens if we lose?” full story

USA: New Now Next profiles the couples in the four cases. full story

USA: Just like the last time, it probably all comes down to Justice Kennedy. full story

USA: Not so fast, says the New Republic – Chief Justice Roberts may have a role to play too. full story

USA: Time also looks at the Supreme Court’s own history with the issue. full story

USA: Garrett Epps at The Atlantic looks at the odds. full story

USA: Time recaps what five of the Justices have written or said about marriage equality in the past. full story

USA: Prop 8 attorney David Boies thinks marriage equality will win out at the Court. full story

USA: Attorney General Eric Holder says he will file a brief with the Court in favor of marriage equality. full story

USA: While announcing the Court’s decision to take the cases, Fox News anchor Shepard Smith slammed the “continuing discrimination” by states that are still fighting same-sex marriage full story

USA: Steve Sanders at ScotusBlog looks at the issue of “animus” in the state bans and the upcoming decisions. full story

USA, Michigan: The plaintiffs here say they are in awe that the Court has decided to take up their case. full story

USA, Texas: Neel Lane, attorney the plaintiffs in the Texas marriage equality case, is calling on the three judge panel to issue a ruling even though the Supremes have now taken four marriage equality cases. full story

USA, Alaska: Attorney General Craig Richards said he would suspend his hopeless appeal of the decision striking down the state’s ban while the Supremes consider the issue. full story

New Survey: 62% of Americans Support Marriage Equality

Sunday, January 4th, 2015

titleA new Rand survey shows a surprising bump in marriage equality support in the US.

Newsweek reports:

On Oct. 5, 2014, the Supreme Court announced that it would not review several federal appeals courts decisions against bans on same-sex (“gay”) marriage, which effectively meant same-sex marriage would be legal in 24 states. Following this announcement, one set of questions we asked focused on people’s attitudes toward the legalization of gay marriage. We first asked whether they favored legalizing or prohibiting gay marriage, then we asked if they thought the legality of gay marriage should be decided by each state, for all states based on the U.S. Constitution, or if they were unsure… Overall, the majority of the country supports the legalization of gay marriage: 62.4 percent.

Overall, 54.9% thought the issue should be decided Federally, not on a state by state basis, and support was also higher in states that had marriage equality before 10/5/14, when the US Supreme Court’s non decision opened the door for more than a dozen new marriage equality states.

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F.D.A. to Lift Lifetime Ban on Blood Donations by Gay Men in 2015

Tuesday, December 23rd, 2014

bloodThis just in from The New York Times:

The Food and Drug Administration announced on Tuesday that it would scrap a decades-old lifetime prohibition on blood donation by gay and bisexual men, a change that experts said was long overdue and could lift the annual blood supply by as much as 4 percent. The F.D.A. enacted the ban in 1983, early in the AIDS epidemic. At the time, little was known about the human immunodeficiency virus, which causes the disease, and there was no quick test to determine whether somebody had it. But science and the understanding of H.I.V. in particular has advanced in the intervening decades, and on Tuesday the F.D.A. acknowledged as much, lifting the lifetime ban but keeping in place a more modest block on donations by men who have had sex with other men in the last 12 months. In a statement, the agency said it had carefully examined and considered the scientific evidence before changing the policy. It said it intended to issue a draft guidance detailing the change in 2015.

So you’ll still have to wait 12 months without having sex to donate. But it’s a step in the right direction.

USA, Pennsylvania: Marriage Equality Support Jumps, New Poll Says

Tuesday, December 23rd, 2014

titleMarriage equality support in Pennsylvania has almost doubled in the last ten years, a new poll says.

McCall.com reports:

More than six in 10 Pennsylvanians say they support same-sex marriage, showing a dramatic reversal of views in the commonwealth over the past decade. The finding is part of a new Morning Call/Muhlenberg College poll, which surveyed 500 Pennsylvanians during late November and early December. Asked if they believe marriages between gay and lesbian couples should be legally recognized and granted the same rights as traditional marriages, 62 percent of respondents said yes, 32 percent said no, and 6 percent were undecided. Those figures were inverted when the college’s pollsters asked about the issue in 2004, when only one state, Massachusetts, recognized marriages of gay or lesbian couples. At that time, 35 percent of Pennsylvanians said they supported legalizing same-sex marriage and 54 percent were opposed.

It’s amazing to see support crack the 60% level. I’d love to see some new polling out of the few states that still don’t recognize marriage equality.

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Supreme Court Grants 24 Hour Stay in Kansas Marriage Equality Case

Tuesday, November 11th, 2014

Justice Sonia SotomayorSame-sex couples in Kansas will have to wait little bit longer before they can get married, after Justice Sonia Sotomayor granted a short stay in the marriage equality case.

MSNBC reports:

With just over 24 hours to go until a ruling striking down Kansas’ same-sex marriage ban was due to take effect, Justice Sonia Sotomayor on Monday granted an emergency request for a stay from the state’s Republican Attorney General Derek Schmidt. The stay might not last long; Sotomayor, the justice assigned to the 10th Circuit (which has jurisdiction over Kansas,) granted the request “pending receipt of a response, due on or before Tuesday, November 11, 2014, by 5 p.m. ET.” “She’s granted what sounds like a 24-hour stay,” said Tom Witt, executive director of Equality Kansas, to msnbc. “It’s real hard to say what’s going to happen next.”

Kansas lawyers cited the 6th Circuit ruling five times in their stay application, according to the Associated Press, in an attempt to convince the justices that the issue was not yet settled nationally and should be put on hold until the high court rules. That logic has worked in the past, with the Supreme Court granting stays in similar cases out of Utah and Virginia.

We’re not sure what wonderful new arguments the state is going to come up with to try to preserve its ban. But ultimately, it may make little difference, as weddings could not have began today anyway since clerks’ offices are closed for Veterans Day.

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There’s No Guarantee the Supreme Court Will Take Another Marriage Equality Case

Monday, November 10th, 2014

US Supreme Court Color

Now that a dissident federal appeals court has upheld same-sex marriage bans in four states, legal commentators say intervention by the U.S. Supreme Court — to resolve the conflicts among lower courts and set a uniform constitutional standard on the right to marry — is very likely. But it’s not inevitable.

The court faced another set of conflicting lower-court rulings on marital rights in 1955. The issue then was interracial marriage. When Virginia’s highest court upheld the state’s ban on whites marrying nonwhites — seven years after the California Supreme Court had become the nation’s first state to strike down a prohibition on interracial marriage — the ruling was appealed to the U.S. Supreme Court, which under Chief Justice Earl Warren had declared school segregation unconstitutional the previous year. The court’s rules at the time required it to accept and decide such cases if they involved constitutional rights. But the justices found a way to sidestep the Virginia case, heeding the advice of Justice Felix Frankfurter that another incendiary racial decision could result in “thwarting or seriously handicapping the enforcement” of the school desegregation ruling. It wasn’t until 1967, in another Virginia case, that the court finally declared bans on interracial marriage unconstitutional, overturning laws in 16 states.

“The court chose to wait until national opinion was clearly on its side,” R. Richard Banks, a constitutional law professor at Stanford Law School, said Friday. “In the same-sex marriage context, it seems clear which way we’re moving. … The court might be content to let things percolate for another year, or two or three. Then there might be more support for a judicial ruling than there is now.”

Authored By Bob Egelko – See the Full Story at SFGate

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Comparing the Sixth Circuit Marriage Equality Ruling to The Others

Sunday, November 9th, 2014

Gay WeddingThe AP has a great breakdown of the Sixth Circuit marriage equality smack down versus earlier cases.

CBS Detroit reports:

Breaking ranks with rulings from other federal courts, the 6th U.S. Circuit Court of Appeals panel in Ohio upholds gay marriage bans in four states, including Michigan, saying the courts aren’t the right place to legalize gay marriage. Here’s a look at some key passages and how they compare to previous federal rulings:

1. Children

The Latest: The 6th Circuit ruling says that limiting unions to being only between a man and a woman is a view shared “not long ago by every society in the world, shared by most, if not all, of our ancestors, and shared still today by a significant number of the States. People may not need the government’s encouragement to have sex or “propagate the species,” it says, but may need encouragement to “create and maintain stable relationships within which children may flourish.”

“Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children,” the opinion says. “May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result?”

The judges acknowledge that gay and lesbian couples are equally capable of being in loving, committed relationships and effectively raising children. But those facts don’t mean states must suddenly believe gay marriage bans violate the constitution, the opinion says.

Earlier Rulings: The San Francisco-based 9th Circuit said the proposition that children suffer in same-sex households “reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand.”

The Denver-based 10th Circuit scoffed at the attempts by Utah and other states to use procreation as a justification for gay marriage bans. In a majority opinion written by Judge Carlos Lucero, the court pointed out that adoptive parents and opposite-sex couples who rely on assistance to get pregnant aren’t denied the right to marry. They said they don’t buy the contention that same-sex couples are inferior parents.

It’s a great breakdown – read the whole thing.

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