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Breaking News: US Supreme Court Issues Historic Marriage Equality Ruling

Friday, June 26th, 2015

Freedom to Marry - Marriage Equality

Today, on the anniversaries of the Windsor and Lawrence V. Texas rulings that advanced LGBT equality, the US Supreme Court issued its long expected ruling on marriage equality.

In a 5-4 decision, the Court found that sexual orientation is covered under the 14th amendment. Justice Kennedy was the swing vote, as many expected.

The ruling means that marriage equality is basically legal immediately in all 50 states, including the 13 stragglers. While there will inevitably be some foot dragging in some states, the fight is basically over.

Marriage equality events will be held across the country today to celebrate. Our partner Marriage Equality USA has a list:

wedding dayMark and I stood together at the top of the stairs on city hall to get married on March 11th, 2005, only to see the state Supreme Court wipe away our marriage.

We married again on November 1st, 2008, just three days before the passage of Prop 8. This time, things were different – it was the anti-gay law that was wiped away, not our marriage.

Now couples like us in every state in the nation now have the freedom to marry.

It’s a beautiful day.

US Supreme Court’s Marriage Equality Non Decision: Analysis

Tuesday, October 7th, 2014

Gay Wedding

The newswires are thick with reports about and analysis of the Supreme Court’s action yesterday (or lack of action). Here are some of the analyses from the web.

Chris Johnson at The Washington Blade looks at the possible reasons the Justices might have had for passing on a case at this time:

Jon Davidson, legal director for Lambda Legal, during a conference call with reporters, pointed to wide consensus among the courts that bans on same-sex marriage are unconstitutional. “It’s total speculation, but my speculation would be they decided that there was unanimity among the federal courts of appeal, and virtual unanimity among all the federal courts and almost all the state courts,” Davidson said. “Since the Windsor decision, it is clear that same-sex couples have a constitutional right to marry. There was therefore no need for them to step in at the moment.” That would be consistent with well-publicized remarks that U.S. Associate Justice Ruth Bader Ginsburg made weeks ago at a Minnesota Law School in which she reportedly said there’s “no need for us to rush” to take up marriage unless the U.S. Sixth Circuit Court of Appeals issues a decision upholding bans on same-sex marriage, which would cause a split among the circuit courts.

NPR runs down a list of questions about the Court and marriage equality, including:

The justices are said to be looking for the “best vehicle” to serve as a test case. What would such a case look like — and is one in the legal pipeline? The court had plenty of good vehicles that it chose not to drive this time. There were seven cases to choose from, with good lawyers, clear facts and clean disagreements. But the court decided to keep its nose out of the controversy for now, and as long as the lower courts of appeal agree on the result in these cases, there is little pressure on the court to intervene. Moreover, many experts said Monday that by staying out of the issue, the court was sending a clear message to the lower courts that they were doing the right thing.

Buzzfeed’s Chris Geidner looks at Justice Kennedy’s end-game:

On Monday, the court decided not to take up seven cases involving bans on same-sex couples’ marriages. The decision advanced Kennedy’s two main interests in a significant way — and set the course for achieving marriage equality in 50 states. The court increased human dignity, as understood and detailed by Kennedy in a trio of gay-rights cases that began in 1996. As Kennedy most famously put it in the middle of those cases, the Constitution’s founders knew that “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.” Those three cases struck down an anti-gay amendment in Colorado in Romer v. Evans, struck down sodomy laws in Lawrence v. Texas in 2003, and culminated — at least, for now — in the 2013 decision striking down part of the Defense of Marriage Act in United States v. Windsor.

Could the non-decision make marriage equality an election issue? Trudy Ring at the Advocate considers it:

Republicans, however, don’t seem to want to discuss the issue; the chance to vote for such ballot initiatives brought conservative voters to the polls 10 years ago, but now opposition to marriage rights is more a political liability than an advantage in many regions of the country. “This was something the party largely hoped to avoid talking about and that’s why they’ve been silent,” Republican strategist Ford O’Connell told The Hill. “Some of these Republicans in these purple states are finding themselves in a bind. In some cases it could put some Democrats on their heels but if you look at the totality of it, this is not a great situation for Republicans.”

Marth T. Moore at USA Today sees the ruling as having more of an impact on the 2016 elections:

Don’t expect political fallout from the Supreme Court’s action, or inaction, on same-sex marriage — at least not before next year when presidential campaigns get fully into gear. In this fall’s midterm elections, the issue isn’t likely to surge to prominence as a result of the court allowing to stand lower court rulings upholding gay marriage — even in the closely contested Senate and governor’s races in states immediately affected by court’s actions… Races are turning on local issues and the qualities of the candidates, said former Democratic National Committee spokesman Hari Sevugan. Same-sex marriage isn’t on the ballot, “nor is there a readily identifiable proxy on the ballot.” Impact on races from the Supreme Court action? “I don’t see it.”

Rachel Maddow takes a stab at the whole thing:

On her show last night, Rachel Maddow took a look at the path that led to yesterday’s decision (or lack thereof) and what may have motivated it. She wondered, since it only takes 4 votes for the Supreme Court to decide to hear a case, why didn’t the anti-gay marriage wing of the Court (Chief Justice Roberts and Justices Scalia, Alito and Thomas) want to take the opportunity to try and reverse some of the “damage” done by United States v. Windsor (a case in which all 4 justices dissented)? Could there be a Machiavellian motive at play?

There are still 20 states with bans on marriage equality. Brad Heath at USA Today looks at what’s next in those states.

The court’s decision leaves unchanged 20 state laws blocking same-sex unions. Each is already under legal attack, facing challenges in state or federal court, and sometimes both. Challenges to marriage bans already have reached a handful of state appeals courts and in the federal Fifth, Sixth, Ninth and Eleventh circuit appeals courts. Some of those judges had been waiting to see what the Supreme Court would do. The court’s instruction Monday was: Proceed.

Stephen Colbert played for laughs, welcoming his “government-mandated-life-partner”:

After hearing Jeffrey Toobin tell Wolf Blitzer that it’s “inevitable the rest of the country will follow” the states that have adopted gay marriage, Stephen Colbert thanked his wife Lorraine “for 25 good years” and welcomed his new husband and welcomed his new “government-mandated life partner Roger Cornsworth.” Still, Stephen is “pumped to the gavels” for the start of the Supreme Court session and takes a look at the rise in influence of “friend of the court”, or amicus briefs, which were cited by SCOTUS 124 times from 2008 to 2013.

There is still one way we could lose, in the long run. Paul Waldman speculates:

It involves a Republican winning the White House in 2016 and a liberal justice retiring, to be replaced by a conservative. This isn’t some remote possibility. We have no idea what the election of 2016 will be like, and while as a liberal you probably think that the current crop of Republican contenders are a bunch of bozos, people thought that about any number of people who ended up winning the White House (see Bush, George W.). As of now, Ruth Bader Ginsburg is 81, Stephen Breyer is 76, Sonia Sotomayor is 60, and Elena Kagan is 54. Any one of them could retire for any number of reasons. And once President Rand Paul appoints Ted Cruz to take that retiree’s place, things look very different.

But Andrew Sullivan at the Dish sees the mountaintop

But we see also in this remarkable, unlikely transformation the possibility of something much different: that human beings can put aside fear and embrace empathy, can abandon prejudice in favor of reality, can also see in themselves something they never saw before: an enlargement of the circle of human dignity… I cherish America, a place where this debate properly began, a place where the opposition was relentless and impassioned, a country which allowed a truly democratic debate over decades to change minds and hearts, where the Supreme Court guided, but never pre-empted, the kind of change that is all the more durable for having taken its time. Know hope.

Will Sixth Circuit Be First to Rule Against Marriage Equality?

Saturday, August 9th, 2014

Sixth Circuit

Andrew Sullivan collects some of the views from pundits who see a possible end to the winning streak for marriage equality in the courts.

The Dish reports:

At one rather awkward point, Sutton launched into a strange monologue about the gay rights movement’s tactics, one that seemed barely tethered to the merits of the case at hand:

I would’ve thought the best way to get respect and dignity is through the democratic process. Forcing one’s neighbors, co-employees, friends, to recognize that these marriages, the status deserves the same respect as the status in a heterosexual couple. … If the goal is to change hearts and minds … isn’t it worth the expense? Don’t you think you’re more likely to change hearts and minds through the democratic process than you are through a decision by five justices of the U.S. Supreme Court?

These words should be very unnerving for supporters of same-sex marriage. Don’t come to us with your demands for equal protection and fundamental rights, Sutton implied; take your case to the voters instead. Being a legal stranger to your spouse and child isn’t so bad, he suggests, that you need to turn to the federal courts for relief.

How soon will the court rule? And if it does rule against marriage equality, will this help to create incentive for the US Supreme Court to step in?

Find more articles and gay wedding resources.

Analysis of the Tenth Circuit Utah Marriage Equality Decision

Wednesday, July 2nd, 2014

Utah MapTo regular Towleroad readers, Judge Lucero’s opinion holding Utah’s ban on same-sex marriage unconstitutional reads like so many other equality rulings in the post-Windsor world. But the June 25th decision is still remarkable and unprecedented. Kitchen v. Herbert did not just say banning gays from marrying is unconstitutional. Rather, it said the law is unconstitutional specifically because of Windsor.

The opinion has all the trappings of many of the district court decisions that preceded it. First, the Court addressed the standing of the parties (the Governor and Attorney General of Utah) to appeal. I won’t spend any time on that section except to say, they do have standing. Second, the court dispatched the Baker v. Nelson canard. As courts have argued countless times in the last 4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.

But the way the Baker argument got resolved was new. Utah, which was represented in Court by my old boss at Winston & Strawn LLP, Gene Schaerr, argued that the very principles of federalism and the separation between the federal government’s role and the role of state governments that were reaffirmed in Windsor mandate that the Tenth Circuit hold to the Baker dismissal. In other words, Utah was acknowledging that the world has changed since 1971, a concession that the Prop 8 proponents and those supporting the Virginia gay marriage ban have refused to make. However, despite those cataclysmic changes, Utah argued that Windsor reminds us of the danger of the federal government intruding into the exclusive realms of the state. Therefore, since marriage is traditionally a state issue, the federal judiciary should stay out of a state’s decision to discriminate against gays in that exclusive state matter.

Authored By Ari Ezra Waldman – See the Full Story at

Find more articles and gay wedding resources in Utah.

An Historic Marriage Equality Anniversary

Thursday, June 26th, 2014

Rainbow Supreme Court

Today is the one year anniversary of the Windsor and Prop 8 decisions from the US Supreme Court, as well as the 11 year anniversary of the Lawrence v. Texas case.

And they were all very close calls, a fact that’s easy to forget now, looking back.

Keen News Service reports:

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.

Over at Time, Stuart Armstrong II looks at the impact the DOMA ruling had on LGBT finances:

The Supreme Court’s ruling last year on the Defense of Marriage Act has had a momentous impact on financial planning for lesbian, gay, bisexual, and transgender couples. But the momentous impact has little to do with the case at issue. The focus of the landmark case, United States v. Windsor, was an estate tax issue. Given that it takes millions of dollars in assets to trigger federal estate taxes, hardly any Americans are subject to them. Yet the decision allowing for federal recognition of same-sex marriages has a major influence on the day-to-day financial lives of LGBT couples — not just the high-net-worth ones — affecting everything from income taxes to Social Security benefits.

And James Esseks at The Advocate looks at Windsor’s other effects:

…with a year’s hindsight, it’s clear that Windsor signaled more than just the end of DOMA, it also propelled us on an accelerated journey toward the freedom to marry nationwide.

In just the last year, Windsor has helped create incredible momentum for the freedom to marry:

– We’ve won six new marriage states since June 2013, bringing us to 19 states plus Washington, D.C., where gay couples can marry.

– Now 44 percent of the country lives in a freedom-to-marry state, up from 18 percent just a year ago.

– Polls show a clear majority nationwide supports marriage for same-sex couples.

– We’ve won 21 court rulings for marriage since Windsor, including two just yesterday (one from a federal appeals court covering Utah and another from a federal trial court in Indiana), and we’ve lost an incredible record on a “culture war” issue in the courts.

– There are now over 80 marriage equality cases pending in state and federal courts across the country, including in every state that doesn’t allow same-sex couples to marry and in seven federal appeals courts.

So happy birthday, US vs. Windsor – and we hope we’ll have a lot more to celebrate when you turn two.

Find more articles and gay wedding resources.

Utah Appealing Marriage Recognition Decision

Thursday, June 5th, 2014

Utah MapNever one to give up without a fight, Utah Gov. Gary Herbert and Attorney General Sean Reyes appealed the decision saying the government had to recognize the weddings of same sex couples married in the brief window of legality.

LGBTQ nation reports:

Utah Gov. Gary Herbert and state Attorney General Sean Reyes, both Republicans, filed the appeal Wednesday, sending the case to the Denver-based 10th Circuit Court of Appeals. In May, U.S. District Judge Dale Kimball said Utah’s decision to freeze benefits for gay couples put them in an unacceptable legal limbo regarding adoptions, child care and custody and medical decisions, among other issues. “These legal uncertainties and lost rights cause harm each day that the marriage is not recognized,” Kimball wrote. He delayed implementation of his ruling for 21 days to give Utah officials time to appeal.

So the couples will have to wait, again, until someone finally forces the state to grudgingly recognize their marriages.

Find more articles and gay wedding resources in Utah.

Homophobic Colorado Bakery Loses Case

Saturday, May 31st, 2014

Gay Wedding CakeThe bakery in Colorado that refused to make a cake for a gay couple’s wedding lost an appeal yesterday.

LGBT Weekly reports:

Today, the Colorado Civil Rights Commission upheld administrative law judge Robert N. Spencer’s ruling that Masterpiece Bakery in suburban Denver could not turn away lesbian, gay, bisexual and transgender (LGBT) people seeking to purchase goods. Judge Spencer ruled in December of 2013 that the bakery would face fines if they continue to discriminate against customers based on their sexual orientation. The bakery owner appealed the decision to the full state Civil Rights Commission, which upheld Judge Spencer’s decision. Colorado law prohibits public accommodations, including businesses like Masterpiece Cakeshop, from refusing service to customers based on their sexual orientation or gender identity.

There’s a difference between freedom of religion and freedom of an individual for-profit business owner to discriminate.

Find more articles and gay wedding resources in Colorado.

National Organization for Marriage May Try to Intervene in Pennsylvania Marriage Equality Case

Thursday, May 22nd, 2014

NOM LogoComing off their failed attempt to intervene in the Oregon marriage equality case, NOM is thinking of trying to intervene in the Pennsylvania marriage equality case too.

On Top Magazine reports:

The National Organization for Marriage (NOM) on Wednesday announced it was considering whether to intervene in a federal case challenging Pennsylvania’s ban on gay marriage. With Wednesday’s announcement that Pennsylvania Governor Tom Corbett – who has said he’s personally opposed to marriage equality – would not pursue an appeal in the case, Pennsylvania became the 19th state, in addition to the District of Columbia, to allow gay couples to marry.

Will they be sent away again with their tail between their legs?

Find more articles and gay wedding resources in Pennsylvania.

National Organization for Marriage Runs to Appeals Court to Block Oregon Marriage Equality

Monday, May 19th, 2014

NOM LogoThe National Organization for Marriage isn’t done with Oregon, despite having its demand to be allowed to intervene thrown out last week by federal Judge Michael McShane.

The stealthy bastards have just filed a demand with the Ninth Circuit to stay the upcoming decision (due at noon). Oregon United for Marriage Tweeted:

BREAKING: NOM files an appeal w/ the 9th circuit & requests a stay. We’ll keep you updated w/ more info!

Not sure why they expect to be taken seriously here, as they HAVE NO STANDING in this case. It’s a hail mary pass.

Find more articles and gay wedding resources in Oregon.

What Did the Supreme Court Want Windsor to Mean For State Bans?

Friday, January 17th, 2014

US Supreme CourtSome of our readers have pointed in the comments recently to the Slate piece published by Mark Joseph Stern yesterday titled-provocatively-“Judge Strikes Down Oklahoma’s Gay Marriage Ban, Calls Supreme Court’s Bluff.”

As readers of this site likely already know, a federal district court judge on Tuesday ruled that Oklahoma’s marriage equality ban is unconstitutional, staying his decision pending future higher court rulings but setting the stage for another equal marriage appeal before the Tenth Circuit, which is currently considering another pro-marriage equality ruling out of Utah.

Judge Kern’s 68-page ruling is thorough and persuasive, and also a little unusual: he praises the plaintiff same-sex couples for their tenacity in pursuing the lawsuit over the last decade (it was filed in late 2004), and in the same breath as he dismisses one of the couple’s legal complaints for lack of standing, he quotes Harriet Beecher Stowe, no less: “[N]ever give up, for that is just the place and time that the tide will turn.”

Authored By Jacom Combs – See the Full Story at Equality on Trial

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