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Equality news round-up: New Ohio lawsuit, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ohio state seal– At the Tenth Circuit Court of Appeals, the officials defending Oklahoma’s and Utah’s same-sex marriage ban submitted letters (here and here) to the court citing the recently-decided Supreme Court case Schuette v. BAMN. Both letters argue that the case supports their positions on the law. The Court upheld a state’s ban on affirmative action, and the two letters point to language in the opinion about letting the people decide. The plaintiffs are likely to respond to the letters.

– The United Church of Christ is challenging North Carolina’s same-sex marriage ban. You can read the complaint here.

– A poll shows that 61% of Coloradans are in favor of marriage equality.

– A new lawsuit has been filed this morning in Ohio, challenging the state’s marriage equality ban. The complaint is here. The case has been assigned to a judge appointed by President George W. Bush.

Thanks to Kathleen Perrin for these filings

56 Comments

  • 1. Michael Grabow  |  April 30, 2014 at 8:22 am

    Tomorrow will be two weeks from when the hearing on Arkansas was held. Judge Chris Piazza said he would deliver a verdict by then.

  • 2. Thomas  |  April 30, 2014 at 8:24 am

    A nice try, but like all the "the people should decide" arguments I don't think it can trump the 14th amendment. Affirmative action is I believe one, among possibly others, remedy for past discrimination not a right in and of itself. Marriage the courts seem to say is a right and thus subject to the equal protection and due process clauses of the constitution.

  • 3. Ragavendran  |  April 30, 2014 at 8:27 am

    Finally! A lawsuit in Ohio challenging the full ban! What took them so long? I thought they should follow Kentucky's lead and intervene in Henry so the same judge would preside over the case. Also, why just a TRO and not a preliminary injunction?

    Regarding Schuette, our side can respond with a barrage of quotes that favor us as well. But this might well give Kelly some much needed ammunition if he chooses to dissent in Kitchen and Bishop. And, bottom line – there was no fundamental right violation at stake, was there? So Schuette cannot interfere here with any due process claim!

  • 4. Rose  |  April 30, 2014 at 8:38 am

    I would agree with you….though we all understand why Affirmative Action was needed in it's early days, we also know that one minority group CAN'T have preferential treatment based solely on just one's race……..and the other issue is that a "RIGHT" , more specifically a Fundamental right CAN NOT be voted on by the people that TARGET'S one specific minority group like Gays and Lesbians in my opinion and the Courts have consistently agreed on that…….if because of the Michigan win regarding an Affirmative Action initiative, both Utah and Oklahoma should prevail……..our Marriage Equality fight just got set back years…….hopefully that's NOT the case!!!

  • 5. Ragavendran  |  April 30, 2014 at 8:52 am

    A curious motion to intervene in Kentucky's Love case was filed by one Chris Sevier, who seeks to marry his computer. Here is the Judge's response (denied, of course).

  • 6. davep  |  April 30, 2014 at 9:33 am

    These letters are nothing to be concerned about. The Supreme Court has indeed ruled that marriage is a right, and a fundamental right, many times. The opposition lawyers are just padding their billable hours with these types of letters.

  • 7. Brenton  |  April 30, 2014 at 9:39 am

    That was…very, very strange.

  • 8. sfbob  |  April 30, 2014 at 10:14 am

    If you read the entire motion to intervene (go ahead, I dare ya), you'll see it is the sort of thing that might have been better as a post on some right wing fundie website.

    "Marriage is a Biblical concept."

    "Sexual orientation didn't exist as a class until Obama said it did."

    I presume it cost some money to prepare and file that brief; evidently some people need assistance in managing their finances.

  • 9. Chris M.  |  April 30, 2014 at 10:33 am

    Well, you could make the case that Schuette is a fundamental rights violation: a violation of the right to participate in the political process on equal terms, somewhat analogous to Romer. The amendment banning the consideration of race in admission to public universities makes it impossible for a minority group to lobby elected officials, the regents of the university, to enact a policy in their favor. And that is a disability that is not inflicted on other groups, let's say, residents of the Upper Peninsula, or alumni, or graduates of certain high schools, if they sought preferential treatment for their group.

  • 10. Michael Grabow  |  April 30, 2014 at 10:43 am

    I'm glad to see he and his computer have reconciled since the lawsuit against Apple.

  • 11. Eric  |  April 30, 2014 at 10:47 am

    But, unlike the non-protected classes you list, race is a protected class. Laws can't favor one race over another on the basis of race alone.

  • 12. Lynn E  |  April 30, 2014 at 10:53 am

    I was going to ask if this is the same man. If I remember correctly, he was warned about frivolous arguments and wasting the Court's time. But I guess if your Apple Computer doesn't protect you from online porn, you end up with a lot of free time.

  • 13. Dann  |  April 30, 2014 at 11:48 am

    We are fighting for EQUAL RIGHTS not SPECIAL or PREFERENTIAL RIGHTS. By denying gays and lesbians the RIGHT to marry is a crystal clear violation of the 14th amendment of the United States Constitution. This has nothing to do with affirmative-action!

  • 14. skrekk  |  April 30, 2014 at 11:50 am

    In fact the Schuette case directly undermines the bigots' argument since in essence it's saying that when a state chooses to treat people equally the courts shouldn't intervene, but when a state treats people unequally on an otherwise irrelevant trait like race then it becomes worthy of judicial review.

  • 15. DrPatrick1  |  April 30, 2014 at 12:02 pm

    "And that is a disability that is not inflicted on other groups…"

    This requirement, as noted in Romer, is to compare if the disability is applying within a group differently than without the group. That is to say, GLBT's should not be excluded from access to the voters through referendums while Straight people retain their access. Saying a university cannot use affirmative action, also means they cannot favor whites either. It doesn't mean they can't favor gathering their students from various areas around the state, or make zip code preferences that would favor students who come from disadvantaged neighborhoods. Racial groups are not disadvantaged relative to each other (under this ruling).

  • 16. Rose  |  April 30, 2014 at 12:44 pm

    Oh Brother…….and this person is considered sane…….umm, NOT!!!

    I would have love to seen the Judge's reaction when reading this………my guess is he probably thought WTF???

  • 17. Ragavendran  |  April 30, 2014 at 5:21 pm

    News from Wisconsin: http://www.jsonline.com/news/statepolitics/judge-

    News from the Vatican: http://www.slate.com/blogs/xx_factor/2014/04/30/p

  • 18. Zack12  |  April 30, 2014 at 8:58 pm

    http://hamptonroads.com/2014/04/gay-marriage-ban-
    The lawyers defending the gay marriage ban in VA have already cited the ruling from last week's AA ruling in Michigan as to why the judges should keep the ban in place.
    Sad to say but given some of the language used in the ruling, they could have a stronger argument then they did a couple of weeks ago.
    I still think it will fail as many people view AA and gay marriage in different lights but this IS something that will be used going foward.

  • 19. Tim  |  April 30, 2014 at 10:29 pm

    The same ruling is also being used by the pro-equality side. I don't have the exact quotes now but many have been made on this site and the Prop 8 Trial Tackers Facebook page. It helping marriage equality may be a sliver lining of the ruling.

  • 20. Zack12  |  April 30, 2014 at 11:19 pm

    I've seen that as well. You take what you want out of the ruling.
    I'll say this in that I don't think one has to do with the other.
    As several legal pundits in MI have noted, Judge Friedman had no qualms going after AA and yet ruled differently when it came to same sex marriage.
    I have a feeling that it what Kennedy and Breyer will do as well.

  • 21. Rose  |  April 30, 2014 at 11:37 pm

    Though I know I SHOULDN'T be concerned regarding the AA ruling out of Michigan having ANY affect on our Marriage Equally fight……..I am a little nervous with 3 different States trying to use that ruling to there advantage……..and even though the 2 are NOT related……..I can see where the States are trying to use it because both issues were voted on by the people……this is where I believe that the question that needs to get asked of SCOTUS is if Marriage is truly a FUNDAMENTAL RIGHT…..is it ONLY fundamental if the individuals involved are of the opposite-sex or is it fundamental regardless of gender make-up? Otherwise the AA ruling COULD come back and bite our fight on the azz……..as it is trying to being used right now!!!

  • 22. Margo Schulter  |  May 1, 2014 at 12:41 am

    Both the fundamental nature of the right of marriage, and the fact that marriage bans discriminate according to a gender classification, distinguish such bans from the issue of a State’s decision not to use affirmative action programs.

    Judge Holmes of the Tenth Circuit spelled this out (thank you, Ragavendran, for two great transcripts!) when he drew an obvious parallel with Loving v. Virginia: The Virginia miscegenation statute used a racial classification to decree who may or may not marry whom, calling for strict scrutiny; so why shouldn’t a statute using a gender classification to make the same decision be subject to intermediate scrutiny?

    And here Justice Ginsburg’s opinion, writing for the Court, in United States v. Virginia, 518 U.S. 515, 531 (1996), very relevantly observes: “Parties who seek to defend gender-based government action must demonstrate an `exceedingly persuasive justification’ for that action.”

    So when Judge Holmes commented that if the level of scrutiny was anything higher than basic rationality (the standard for usual economic legislation), then Utah would evidently lose, he was stating what is, among other things, a logical deduction from United States v. Virginia.

  • 23. SeattleRobin  |  May 1, 2014 at 12:58 am

    The whole thing is wacko and there are so many things wrong with his arguments it's downright funny, but he doesn't even seem to grasp that his starting point immediately undermines anything else he has to say. His claim is that he and his (porn-filled) computer were denied a marriage license for the SOLE reason they aren't one man and one woman. (Just like the plaintiffs.) I think it's safe to say that was not the sole reason.

  • 24. Thomas  |  May 1, 2014 at 7:37 am

    The thing which most amazed me were the endless citations of instances in which someone married some object or non-human being. Where does one go to find this information? Of course there may be a website devoted to exactly this. The insane industry of some of these nuts is a cause for wonder.

  • 25. Dann  |  May 1, 2014 at 8:08 am

    The whole AA thing is just a "fly in the ointment". Similar to that of the anti-ssm bigots who try to get judges to recuse themselves for being gay. This too shall pass!

  • 26. Ragavendran  |  May 1, 2014 at 4:27 pm

    Letter from the Court Clerk issued today says he needs more time:

    Dear Counsel: Judge Piazza has asked me to notify you that he would like to take an additional week to consider the case law, briefs of parties, and arguments of counsel. He feels confident that he will have a ruling for the parties no later than Friday, May 9th. On the day that the ruling is to be filed, this office will contact the attorneys of record to inform them that the order is prepared. Furthermore, we will advise the attorneys of a more specific time-frame when the order will be filed and accessible on the Pulaski Clerk's website.

  • 27. Rose  |  May 1, 2014 at 10:57 pm

    You probably are right, but it just seems as this is like a shiny new penny to them and it's just frustrating.

  • 28. TKinSC  |  May 2, 2014 at 3:16 am

    And indeed it is. And it is open to anyone who wants it. Just because gays and lesbians (by definition) don't want it doesn't mean they are being discriminated against or denied the right to it, and it doesn't mean they have a right to a distortion of the very term to fit their sexual/romantic proclivities.

  • 29. TKinSC  |  May 2, 2014 at 3:22 am

    Really? I bet the clerk was like "You're a man, but your computer is not a woman. Application denied."

  • 30. TKinSC  |  May 2, 2014 at 3:23 am

    Gays and lesbians already have the right to marry, in all 50 states. No state asks your sexual orientation on a marriage license application.

  • 31. TKinSC  |  May 2, 2014 at 3:30 am

    The two questions are distinct, but the AA ruling bolsters the states' case here, IMO.

    I'm not SCOTUS of course, but based on their precedent I would answer your question by saying marriage IS a fundamental right, but that marriage by its very definition (and certainly the only kind that SCOTUS has ever talked about as being fundamental) involves s man and a woman.

  • 32. Valquiria  |  May 2, 2014 at 5:13 am

    And a tax on tampons affects everyone who happens to menstruate, whether they be male or female.

  • 33. JayJonson  |  May 2, 2014 at 6:47 am

    I agree, Dann. While it is possible that some district judge or even a conservative Circuit Court panel might attempt to misconstrue the AA ruling, they can't get around Justice Kennedy's caveat in Windsor: while states get to regulate a number of aspects of marriage, they cannot do so at the expense of the constitutional rights of their citizens. The fact that Justice Kennedy wrote both the Schuette and the Windsor decisions indicates that his chief concern is with the individual rights of citizens to be free of discrimination on the basis of race, gender, and sexual orientation.

  • 34. KarlS  |  May 2, 2014 at 7:06 am

    Do the letters Fuck Off And Die mean anything to you, knuckledragger?

  • 35. JWinKY  |  May 2, 2014 at 8:36 am

    Computers, dogs and minor children can not offer informed consent to sign a legal document like a civil marriage license. No slippery slope.

  • 36. JWinKY  |  May 2, 2014 at 9:00 am

    The logic of that argument was foreclosed in Loving about 45 years ago. The limited right to marry any other non-white is not that same as the universal right to marry another consenting adult.

  • 37. KarlS  |  May 2, 2014 at 10:26 am

    It looks to me like he has decided…to keep looking for a way to avoid deciding.

  • 38. Margo Schulter  |  May 2, 2014 at 11:25 am

    When Justice Kennedy asked last year about the well-being of all the children parented by same-sex couples in California, and then wrote about the well-being of such children in New York and other states in Windsor, he was recognizing that marriage can be a powerful institution for transmitting cultural and human values from generation to generation. That transcends any narrow focus on the ability of two partners to engage in conventional biological procreation — a test, of course, that would rule out lots of heterosexual marriages, as Justice Kagan neatly observed in oral argument.

  • 39. Margo Schulter  |  May 2, 2014 at 11:40 am

    For a classic case about the “real meaning” and intent of a law under the Equal Protection Clause, see Yick Wo v. Hopkins (1886). Here there was a law supposedly to regulate laundries with a noticeable impact on certain people thus prevented from carrying on their businesses, “all of whom happen to be Chinese subjects.” The Court wrote of this discrimination, “[T]he conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong….” A fascinating ancestor of Romer!

  • 40. Ragavendran  |  May 2, 2014 at 12:40 pm

    Exactly. In fact, I loved today's response of the Sevcik counsel to this, when the Coalition for the Protection of Marriage wrote a letter claiming that Schuette supports their cause:

    Intervenor claims that Schuette endorses the notion that the people of Nevada had
    an absolute right, unreviewable by the Courts, to enshrine Nevada’s ban on marriage for same-sex couples in the state constitution. But it remains a foundational principle that state laws—including state marriage laws—must comply with federal constitutional guarantees, United States v. Windsor, 133 S. Ct. 2675, 2691 (2013), and Schuette does not alter that. Schuette involved a challenge to the political process by which restrictions on government efforts to promote racial diversity were adopted, not the enactment’s underlying constitutionality. 2014 U.S. LEXIS 2932, at *33 (holding that the “constitutional validity” of the voters’ “choices regarding racial preferences is not at issue here”). Plaintiff Couples do not raise any political process claim here, challenging instead the underlying validity of Nevada’s prohibition on marriage for same-sex couples. In those circumstances, voter approval does nothing to inoculate a law from federal constitutional requirements, as Schuette itself recognizes. Id. at *39 (observing that the Court’s decision is consistent with the principle that when the underlying law injures racial minorities, “the Constitution requires redress by the courts.”). Moreover, should the Ninth Circuit wish to consider the political process by which Nevada’s ban on marriage for same-sex couples was adopted, the plurality in Schuette and the dissenting justices in the case concurred that political process arguments remain viable, id. at *39-40, *129, but the majority and concurring justices in the case rejected that the doctrine had been violated given the nature of the constitutional amendment at issue in the case, which the Court distinguished from measures that directly harm members of a minority group, as here. Id. at *39-40, *42.

    The punchline cited above, from Page 13 of Kennedy's opinion:
    Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here.

    Moreover, Kennedy also stresses this on PAGE ONE of the slip opinion:
    This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences.

    This precludes any relation to the same sex marriage cases, because the constitutional validity of those choices IS at issue.

    In the same manner though, and this is perhaps only me nitpicking, Kennedy also expressly said in Windsor that "this opinion and its holding are confined to those lawful marriages," meaning marriages legally performed in other states. So, if one goes with a literal interpretation of Kennedy's writing, then he is saying, "use this opinion of mine only to secure marriage recognition in all states, but not for the right to marry." This issue came up during the last two minutes of oral argument in Kitchen, where the State's attorney brought this up, and Judge Lucero countered that by saying that that didn't preclude recognition of out-of-state marriages, and then compared it to Dred Scott. (The attorney then simply punted, deferring the blame to DOMA Section 2, which wasn't being challenged.)

  • 41. davep  |  May 2, 2014 at 4:30 pm

    Looks like you haven't been paying attention. Not only is marriage a right, but it is the right to marry the consenting person that you choose to marry. It is a fundamental component of a person's capacity for autonomous self-determination for their own life, and it may not be infringed upon by the state unless doing so is necessary and advances a states interest.

    Your "argument" is no different from the tactic used by racists in the Loving trial: "They can marry, they just have to marry someone of the same race, like everybody else!!" they cried. And the court made it clear that their "argument" was nothing but specious wordsmithing. There is no states interest served by a law that targets a group of people whose marriages are disfavored by others, and requires them to abandon the person they wish to marry and marry someone they don't wish to marry just to access the protections of civil marriage.

    Instead of parroting old debunked rhetoric, try reading the rulings in these recent trials and if you find an error in the evidence or the arguments, come on back and tell us all about it. We'll wait.

  • 42. davep  |  May 2, 2014 at 4:32 pm

    As soon as your computer becomes sentient and gains the ability to comprehend and agree to commit to the legal responsibilities of civil marriage, you'll have an argument. Obvious troll is obvious. Yawn.

  • 43. JustMe  |  May 2, 2014 at 4:37 pm

    "but it is the right to marry the consenting person that you choose to marry."

    No its not. It didnt come to this country that way, and it sure is not that way today.

  • 44. davep  |  May 2, 2014 at 4:38 pm

    If that nonsense about 'the very definition' were true, it would be impossible for same sex couples to marry regardless of the law. Yet every time a state removes the unnecessary restriction from it's laws, these couples can and do legally marry with no problem at all. The pointless restriction in the law itself was the only thing preventing them from doing so. There is nothing inherent in them being the same sex which prevents this.

    And feel free to check the current versions of Webster's Dictionary and the Oxford Dictionary and many others, which now include reference to same sex couples in the definition of the word "marriage". These couples are just as legally married as other couples.

  • 45. JustMe  |  May 2, 2014 at 4:39 pm

    A 15 year old can consent to a marriage proposal, but still needs the permission of their parents to marry.

  • 46. davep  |  May 2, 2014 at 4:43 pm

    An 'appeal to tradition' fallacy? Really? You think we determine if a law complies with our Constitution based on whether that law would have been allowed over two hundred years ago?

    And in case you didn't notice, it IS this way today, in a rapidly growing number of jurisdictions. Well over a third of Americans already live in a state that allows same sex couples to legally marry.

  • 47. davep  |  May 2, 2014 at 4:46 pm

    instead of you two just whining over and over with your tired old NOM bumper sticker rhetoric, do yourself a favor and read the rulings. Find out WHY the laws against same sex marriage are being repealed in state after state all across the country. You might actually learn something. And if you are so sure there's a valid argument against same sex marriage, check those trial records, see if your 'argument' survives scrutiny, and if it does, tell us about it. And be sure to tell all of those lawyers who are trying to defend those laws because they can't come up with a valid argument).

  • 48. Ragavendran  |  May 2, 2014 at 6:32 pm

    Does anyone know if there has been an appeal in Henry, the Ohio marriage recognition case, to the Sixth Circuit? It has been nearly three weeks since the decision (and nearly a month after he announced how he is inclined to decide), and still no activity on PACER at the appellate level. Judge Black's stay pending appeal is only valid if there is an appeal, no? According to FRAP Rule 4, they only have 30 days from the day the judgment was entered, meaning until May 14, to file an appeal. Otherwise, they concede defeat, and the stay expires, right?

  • 49. Ragavendran  |  May 2, 2014 at 6:59 pm

    The North Carolina lawsuit's First Amendment claims could be tossed out, going by this article.

  • 50. DaveM  |  May 2, 2014 at 7:12 pm

    Ragavendran,

    The 6th keeps a list of filings and case statuses at http://www.ca6.uscourts.gov/daysheet/daysheet.htm

    No sign of Henry v. Himes. Though Obergefell is awaiting panel assignment.

  • 51. Schteve  |  May 5, 2014 at 5:19 am

    Nah, the computer just wouldn't sign the paperwork.

  • 52. Ragavendran  |  May 5, 2014 at 11:23 am

    Update: He also filed a motion to intervene in Kitchen last week. Judges Kelly, Lucero and Holmes denied the motion today without comment.

  • 53. Zack12  |  May 5, 2014 at 11:33 am

    http://nashvillecitypaper.com/content/city-news/m
    This guy has a doozy of a history.

  • 54. DaveM  |  May 7, 2014 at 12:03 pm

    Still nothing on Henry v. Himes, only 1 week to go.

    Also, filings due today in 3 of the pending CA6 cases – Love (Bourke), Tanco, and DeBoer… Someone planning to post these when available?

  • 55. The dark side of common s&hellip  |  May 7, 2014 at 11:45 pm

    […] Equality news round-up: New Ohio lawsuit, and more So when Judge Holmes commented that if the level of scrutiny was anything higher than basic rationality (the standard for usual economic legislation), then Utah would evidently lose, he was stating what is, among other things, a logical deduction from … Read more on Equality on Trial (registration) […]

  • 56. DaveM  |  May 10, 2014 at 4:50 am

    Appeal filed in Henry v. Himes, reports the Dispatch. I can't find a copy of the Notice of Appeal, but it might be on PACER.
    http://mobile.dispatch.com/coldispatch/db_338961/

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