Archives – November, 2012
By Scottie Thomaston
Today’s order list, just released, is here. No word on the ten gay rights petitions.
The Supreme Court held its conference today and the ten gay rights petitions were on the list of cases they were considering taking up for full review. However, SCOTUSBlog’s Twitter account says no action was taken on the petitions today:
It is unclear why December 7 is the most likely day the Court will announce its decision on whether it will take up challenges to Prop 8 and Section 3 of the Defense of Marriage Act. This is a developing story and Prop 8 Trial Tracker will have more details soon.
At this point, any prediction about where the same-sex marriage cases stand at the Court is subject to serious error. The Court does not explain inactions, so silence can mean many alternative possibilities. The Court, though, does tend to follow fairly fixed patterns of activity. The announcement of grants on Friday is usually linked to a desire to get enough cases put on the decision docket to fill the next openings in the argument calendar. As of this morning, the Court still had eight slots open for argument during the March session. By announcing grants this afternoon, the Court gave counsel a few more days to prepare briefing in the two newly granted cases.
132 CommentsNovember 30, 2012
By Jacob Combs
Maryland Attorney General Doug Gansler announced yesterday that same-sex couples in the state will be allowed to marry starting on the first day of the new year, adding in a 19-page opinion on the matter that clerks may begin issuing marriage licenses to couples on Dec. 6, the Washington Blade reported. Any licenses issued before January 1 may not take effect until that date, Gansler said.
Because January 1 is a state holiday and most clerks’ offices will be closed on that day, previous speculation had held that marriage licenses under Maryland’s new law, which was uphold by a popular vote in the November election with a 52-48 percent margin, would not be effective until 6 a.m. on January 4. (Maryland law holds that marriage licenses are not valid until 6 a.m. on the second calendar day after they are obtained by a couple from a clerk’s office.)
“We think it is a thorough and well-reasoned opinion,” David Rocah, staff attorney for the ACLU of Maryland, said. “We expect that, in line with the opinion, county clerks throughout the state will quickly begin accepting applications for marriage licenses, and will start issuing the licenses after December 6, with a January 1 effective date. There are many people who have literally waited a lifetime to get married, and they should not have to wait any longer than necessary after Dec. 31 to do so.”
In his opinion, Gansler wrote that same sex-couples who have entered in civil unions in other states or jurisdictions can marry in Maryland. Maryland has recognized out-of-state marriages since February, when Attorney General Gansler announced
that the state would immediately begin recognizing such unions.
1 CommentNovember 30, 2012
By Jacob Combs
On Wednesday, the Second Circuit granted a motion filed by the Obama Administration seeking to suspend the briefing schedule in the Pedersen v. OPM case challenging the constitutionality of the Defense of Marriage Act pending possible Supreme Court review of the case. If the Supreme Court does not takes up the case, the court ordered Wednesday, the parties must file their briefs in the following 14 days; if the Supreme Court takes up the case, the parties will consult with the court’s attorneys (and, if necessary, the court itself) to reach an agreement holding the case in abeyance.
In July, a district court judge in Connecticut ruled in favor of the plaintiffs and declared DOMA unconstitutional. The plaintiffs filed a petition for Supreme Court review (which the Obama Administration later did as well) and asked the Second Circuit to expedite its proceedings in the case, which it refused to do.
The Pedersen DOMA challenge is one of several pending before the Supreme Court, which will consider in a conference today whether it will hear all, some or none of the DOMA challenges in its current term. Another challenge, out of New York, was considered by the Second Circuit, which ruled 2-1 in October that DOMA is not constitutional, relying upon the more searching form of constitutional review known as heightened scrutiny. That challenge, called Windsor v. USA, will also be considered during today’s conference by the Supreme Court, which could announce which cases it will be hearing as early as today.
6 CommentsNovember 30, 2012
By Jacob Combs
Like Scottie did when writing his excellent post breaking this news earlier tonight, I’ve only just had the opportunity to quickly read the decision, but I wanted to point out a few items I found noteworthy.
Although Judge Robert Jones argues that Baker precludes the plaintiffs in Sevcik from making an equal protection claim (an argument that can be convincingly contradicted), he nevertheless makes an equal protection analysis for the purposes of sparing the circuit court the need to remand the case if it disagrees with him on Baker. In this analysis, he comes to some very big conclusions.
First, Judge Jones argues that “although the distinction [in marriage] the State has drawn … largely burdens homosexuals, the distinction is not by its own terms drawn according to sexual orientation.” This, he reasons, is because marital laws are the same for all Nevadans regardless of sexual orientation: for example, both gay and straight men can marry women and are prohibited from marrying men. In this light, there is no equal protection violation at all.
In my reading, Judge Jones essentially gives the plaintiffs a pass on this, writing, “under the conception of the distinction drawn by the State as being between homosexual and heterosexual persons, the Court would apply rational-basis scrutiny” [emphasis mine]. Remember, this is something the judge is doing for a hypothetical Ninth Circuit panel that disagrees with him on the Baker question, not because he necessarily agrees there is an equal protection claim at all. To me, it seems that Judge Jones really believes his own remarkably facetious statement that laws which prohibit same-sex couples from marrying do not create any distinctions based on sexual orientation.
Further, in determining the level of constitutional scrutiny to apply to the statutes in question, Judge Jones writes that “public acceptance and legal protection from discrimination has increased enormously for homosexuals,” going so far as to argue that “any such disabilities [that is, due to discriminatory treatment] with respect to homosexual have been largely erased since 1990.” The simple existence of the Defense of Marriage Act defies this statement, for myriad reasons–let alone the other obstacles that LGBT Americans continue to face despite the great strides that our community has made in the last 20 years.
Judge Jones goes on to write that “anti-homosexual messages are rare in the national informational and entertainment media”–presumably he was fortunate enough to miss pastor Rick Warren compare same-sex attraction to other feelings that people simply shouldn’t act on, such as “get[ting] angry and … punching a guy in the nose” this very week in a conversation with CNN’s Piers Morgan. He argues that gays are not politically powerless, and makes the somewhat astonishingly claim that for any group to be regarded as such requires that their “chances of democratic success be virtually hopeless.”
Perhaps most distressingly, Judge Jones’s opinion adopts lock, stock and barrel the anti-gay canard that marriage equality would somehow scare straight couples into deciding not to get married:
“Should that institution [civil marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined,7 leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”
It’s important to remember that Judge Jones had scheduled oral argument in the Sevcik case for this past Monday to allow both sides to address the merits of the case (and specifically the question of the precedence of Baker v. Nelson but abruptly and without any explanation cancelled such arguments in a late September order. As I wrote after a preliminary hearing in the case in August, Judge Jones seemed especially eager to move the case quickly to the Ninth Circuit, telling attorneys for both sides, “It makes sense to get this decided and off with the circus train.”
Although I think Judge Jones probably should have kept his initial oral argument hearing, I think he’s going to get his wish: this one’s definitely going to the Ninth Circuit, and it’s hard to believe that court (unless the case gets a very conservative panel) won’t take issue with at least some, if not a great deal, of Judge Jones’s reasoning. In a press release distributed after the decision today, Lambda Legal wrote, “This is not the end of this fight. We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.”
35 CommentsNovember 29, 2012
By Scottie Thomaston
A federal district court judge in Nevada has ruled against same-sex couples in Nevada seeking access to marriage. Sevcik v. Sandoval is a legal challenge to Nevada’s constitutional regime with respect to same-sex couples, filed by Lambda Legal. The state allows same-sex couples to have most of the rights and benefits associated with marriage but denies them and only them use of the word marriage. The plaintiffs in this case say that denying them marriage violates the equal protection of the laws.
The judge disagreed, writing that the 1972 summary dismissal in Baker v. Nelson forecloses the issue. He suggested a broad reading of Baker (which concerned an equal protection challenge based on gender), writing that “The equal protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages. Although the judge found that the amendment does indeed draw a dividing line between two groups and that “for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based”, he applied the most lenient form of judicial review for equal protection challenges, rational basis review, where “a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”” Under this standard, he wrote, “[t]he protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest.” Thus there is no violation of the Equal Protection Clause.
Regarding the allegation that Nevada’s constitutional regime denying gays and lesbians marriage rights is based on animus toward the group, he wrote, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”
The judge’s ruling against the plaintiffs was anticipated after he expressed skepticism about their case at the initial hearing. As we reported:
Judge Jones seemed skeptical in general about allowing any such expert testimony, saying that to do so would require him to sit “as a legislature” (14). ”This area you’re talking about,” he said, “is so broad it’s across the entire United States. You’re asking them to summarize thousands of incidences.” Attorneys, he said, should tell courts what the law is, and he specifically questioned the course of action taken by Judge Vaughn Walker in the Prop 8 case in California with regard to allowing expert opinion on the changing shape of marriage in the United States and the difficulties faced by LGBT individuals.
An attorney for the state of Nevada raised the point that there are currently several petitions pending with the Supreme Court on the issue of marriage equality and the Defense of Marriage Act, to which Judge Jones responded, “It makes sense to get this decided and off with the circus train.” In particular, Judge Jones noted that the Ninth Circuit’s decision in the Prop 8 case, in which it singled out the fact that California had extended and then withdrawn equal marriage rights from gay and lesbian couples, differentiated that case from Sevcik, since Nevada had never extended such rights.
The case will likely be appealed to the Ninth Circuit Court of Appeals.
h/t Kathleen for this filing
53 CommentsNovember 29, 2012
By Scottie Thomaston
– The legislature in Illinois could take up marriage equality in 2013. Lambda Legal and the ACLU, along with plaintiffs in the marriage equality cases filed by the two groups, met with legislators urging them to pass a marriage law.
– SCOTUSBlog is doing a four part series on the gay rights issues currently in front of the Supreme Court. Here are parts one and two.
– The American Constitution Society blog suggests that Windsor v. USA makes the best vehicle for Supreme Court review.
– Bloomberg News reports on Friday’s conference at the Supreme Court where they will decide whether to hear challenges to Prop 8 and Section 3 of DOMA.
– Business Insider writes about Baker v. Nelson, a 1972 case that could be an impediment to marriage equality in the courts.
1 CommentNovember 29, 2012