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16 Million Americans Just Gained the Freedom to Marry

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By Matt Baume

More than sixteen and a half million Americans gained marriage equality last week, with decisive victories in Oregon and Pennsylvania. We have brand new lawsuits in the last few states that needed one. And the National Organization for Marriage has suffered even more losses this week.

Couples are getting married right now in Pennsylvania. Judge John E. Jones III issued an emphatic ruling last week, overturning the state’s marriage ban on the basis of due process and equal protection. Jones wrote, “The right Plaintiffs seek to exercise is not a new right, but is rather a right that these individuals have always been guaranteed by the United States Constitution.” Former Senator Rick Santorum had a role in last week’s victory: he endorsed Judge Jones for confirmation twelve years ago.

Governor Tom Corbett has decided not to appeal the Pennsylvania decision, which means this victory is final. But incredibly, the National Organization for Marriage has claimed that it may attempt to intervene in the case. This is, in fact, not possible. The case is over. We’ve won. NOM simply does not have a role here.

They’re also irrelevant in Oregon. Last week Judge Michael McShane overturned that state’s marriage ban, and Oregon declined to appeal. NOM tried to intervene less than two days before oral argument, and was denied. Even though marriage has now begun in Oregon, NOM is still appealing to the 9th Circuit for permission to intervene, but they’re unlikely to succeed. Last year the US Supreme Court ruled in AFER’s case that the Prop 8 proponents had no standing to appeal, and NOM’s standing in the Oregon case is even weaker.

Marriage is here to stay in Pennsylvania and Oregon. And it’s also been strengthened in Utah. There was a window in December and January during which couples could marry. And last week Judge Dale A. Kimball ruled that the state must honor the licenses that it issued. Judge Kimball is a teacher at Brigham Young University and an active member of the Mormon Church.

We’re down to just one state with an unchallenged marriage ban: North Dakota. And soon that state may get a lawsuit as well. Last week four couples sued Montana over its ban, and six couples sued South Dakota. Now several couples in North Dakota are preparing to file a lawsuit of their own.

A Judge in Texas has ruled that a lawsuit there should remain on the slow track. A federal judge overturned the state’s marriage ban in February, and an appeal is now pending before the fifth circuit. Both sides have asked for an expedited schedule, but that was denied last week. With oral arguments yet to be scheduled, it could be months before we get a Texas decision.

A new survey from Gallup shows national support for marriage continuing to climb. This is the forty third national survey to show support over fifty percent. This week also marks four years since the last time our opponents polled with a majority.

And finally this week, an expensive lesson for NOM. Investigators for the Maine Ethics Commission have recommended a fine of over $50,000, the largest ever imposed, for NOM’s refusal to disclose donors to a ballot measure in 2009. The Commission will meet on Wednesday of this week to consider that recommendation. NOM will likely also be required to finally disclose those donors, which should make for some fun reading.

42 Comments

  • 1. grod  |  May 27, 2014 at 10:30 am

    Tomorrow am NOM v Maine: http://www.maine.gov/ethics/meetings/2014/2014_05

  • 2. Keith  |  May 27, 2014 at 3:23 pm

    Hoping we all will hear more positive news from the courts this week!

  • 3. David ROH  |  May 27, 2014 at 4:18 pm

    My crystal ball predicted a decision about Utah and Oklahoma from the Tenth Circuit to be handed down the Friday before the long weekend. Said crystal ball is solid black and drilled for three finger holes, so I was not surprised that it was wrong.

    But like you, I hope the courts will give us more great news this week and throughout June.

    Based on the Loren C. Dunn memos and the LDS documents published by Mother Jones, karma demands that Kitchen v. Herbert is the ruling that goes to the head of the line. Utah state government officials are required by the local political reality to pander to religionist extremists (unless they want said extremists to support some candidate even more far-reich-wing nutty than themselves). So there is absolutely NO chance that Utah will not take the appeal all the way to SCOTUS.

  • 4. Whistleblower  |  May 27, 2014 at 4:57 pm

    NOM just filed a motion with SCOTUS to stay marriages in OR. Hmmm? Did NOM forget the Prop. 8 Case where the fact pattern was the same and SCOTUS found no standing when state officials refuse to defend/appeal a law that has been declared unconstitutional be a federal judge.

  • 5. ABC  |  May 27, 2014 at 4:58 pm

    I can't find the petition; they represent a county clerk.

  • 6. Rose  |  May 27, 2014 at 5:02 pm

    I just read that the Wisconsin State Supreme Court has declined to hear a case regarding their ban on Marriage Equality…….can anyone confirm this?

  • 7. davep  |  May 27, 2014 at 5:07 pm

    I was not aware that the state Supreme Court could do that. Where do you read it?

  • 8. StraightDave  |  May 27, 2014 at 5:18 pm

    http://www.twincities.com/localnews/ci_25845150/w
    http://www.jsonline.com/blogs/news/260831871.html

    The plaintiffs filed directly with Sup Ct, bypassing lower courts, so no surprise. Nevertheless, there were 2 dissenting votes, which bodes well in the long run.

  • 9. Dr. Z  |  May 27, 2014 at 5:25 pm

    NOM claims to represent a county clerk as one of their members. But only that clerk could make the motion; furthermore, they would have to be acting in their official capacity as clerk, not in their personal capacity as a member of NOM. Finally, Li and Kennedy vs Oregon determined that a county clerk cannot speak on behalf of the State of Oregon in the interpretation of marriage law.

    Game, set, match.

  • 10. davep  |  May 27, 2014 at 5:29 pm

    Ah, of course, got it. I was thinking this was an appeal.

  • 11. Bruno71  |  May 27, 2014 at 5:31 pm

    Or in other words, NOM is LYING about having a county clerk as a member. Otherwise that clerk would step forward.

  • 12. ABC  |  May 27, 2014 at 5:32 pm

    And have protestors at his door and be called horrible things just like Brendan Eich? We all know it would happen. Roe v. Wade had an anonymous plaintiff.

  • 13. davep  |  May 27, 2014 at 5:39 pm

    The risk of being called names has never been a valid justification for remaining anonymous in a trial like this. The courts have already made that quite clear, and have reaffirmed this just recently when NOM tried to intervene in another case.

  • 14. Nyx  |  May 27, 2014 at 6:53 pm

    Court stopping Montgomery County Pennsylvania Register of Wills D. Bruce Hanes from issuing same-sex marriage licenses has been lifted by the Pennsylvania Supreme Court.
    http://www.philly.com/philly/news/breaking/201405

  • 15. Japrisot  |  May 27, 2014 at 7:00 pm

    She was anonymous because the statute at issue criminalized the procedure and proceeding publicly would have exposed her to investigation and possibly prosecution. I think that is distinguishable from taking a position on a Fourteenth Amendment issue in ongoing litigation.

  • 16. Klaus  |  May 27, 2014 at 7:39 pm

    Freedom of speech does not just apply to radical anti-gay activists.

  • 17. Rose  |  May 27, 2014 at 7:54 pm

    Sorry Dave…….it was in an article posted on another blog site……….and thank you StraightDave for posting a link!!!

  • 18. Dr. Z  |  May 27, 2014 at 8:12 pm

    They might be telling the telling the truth (hey there's a first time for everything) about having a clerk as a member, but it doesn't matter. Only a county clerk acting in their official capacity can make a motion to intervene.

  • 19. Jae  |  May 27, 2014 at 9:44 pm

    I think this is noteworthy.
    My guess is the Feds are saying to the States SSM are Families and will be counted as Families. We can't have two classes of Families. It makes me think of some of the oral Arguments in VA case as being separate relationships. This to me says no they will be treated as families.
    Thoughts http://news.yahoo.com/us-census-count-same-sex-sp

  • 20. Pat  |  May 28, 2014 at 5:30 am

    This just in: GREEN LIGHT FOR SAME-SEX MARRIAGE IN LUXEMBOURG

    "The Luxembourg parliament's legal affairs committee on Wednesday gave the green light for bill n°6172A, granting marriage and adoption to same-sex couples. (…) The bill is now ready to pass to parliament for a vote, which is expected after the Pentecost holidays and before the summer. (…) Luxembourg will be the ninth EU member state to introduce same-sex marriage, following legislation in the Netherlands, Belgium, Spain, Sweden, Portugal, Denmark, France and the UK. " http://www.wort.lu/en/politics/chamber-of-deputie

    Adding Iceland and Norway (which are not part of the EU), Luxembourg will then become the 11th European country with marriage equality. Although it's probably not right to fully count the UK, as they do in the article, since Northern Ireland and other UK territories do not yet have marriage (some territories of the Netherlands and Denmark also don't have marriage equality yet, but they represent a far smaller percentage of the country's population).

  • 21. SPQRobin  |  May 28, 2014 at 6:29 am

    Damn, you were faster than me 😛

    The expected vote count in Parliament is 57-3. All parties except the conservative ADR are in favor.

  • 22. JayJonson  |  May 28, 2014 at 6:43 am

    I think it is cowardly that no written explanation was given.

  • 23. M.-  |  May 28, 2014 at 6:56 am

    Woww! That's really good news! Thaks a lot, Pat! ..And thanks to you too SPQRobin for the complimentary info!
    Just one more question please: What are the "Pentecost holidays" and when do they finish? (I'd like to know the specific date fo a possible vote)

  • 24. Ragavendran  |  May 28, 2014 at 7:06 am

    During June, I think we can expect favorable rulings from Wisconsin in the Wolf case, Kentucky in the Love case, and Indiana in at least one of multiple cases (especially Baskin). And, assuming they are ready by then, it would be fitting for the Tenth/Fourth circuits to release their opinions during the last week of June on the Windsor anniversary.

  • 25. Ragavendran  |  May 28, 2014 at 7:08 am

    Here is the petition, thanks to Kathleen, from the Prop 8 Trial Trackers page: http://www.scribd.com/doc/226689424/NOM-Applicati

  • 26. Zack12  |  May 28, 2014 at 7:09 am

    They are elected officials. Of course they're cowards.

  • 27. SPQRobin  |  May 28, 2014 at 7:12 am

    Pentecost… know the name and know that it's a holiday, but I don't know anything about what all the Christian holidays mean (Wikipedia has a lot of info :p).

    The Parliament's calender can be found on http://chd.lu/wps/portal/public/CalendrierDesSean… -> a vote is likely on one of June 17/18/19 and else in the first two weeks of July. The yellow dates are plenary sessions.

  • 28. Ragavendran  |  May 28, 2014 at 7:22 am

    Another update on A.L.F.L. v. K.L.L., the same-sex divorce case where the Texas Fourth Court of Appeals directed a lower court to vacate its order that ruled on the constitutionality of Texas law without official notice to the Texas AG. While this order came down ten days ago, the memorandum opinion and dissent that constituted the 2-1 decision were filed this morning. In summary, the majority held that the lower court's order had to be vacated due to its procedural failure to observe the rule that the AG must have been given the opportunity to defend Texas law and his due process rights have thus been deprived. The dissent points to a previous opinion by the Court of Criminal Appeals that concluded that the portion of Texas law that requires notice to be given to the AG itself is an unconstitutional violation of the separation of powers.

    The "real parties of interest" (either or both of A.L.F.L. and K.L.L.) have now petitioned the Fourth Court of Appeals for an en banc reconsideration of this decision, and briefing is underway.

  • 29. M.-  |  May 28, 2014 at 7:28 am

    Thank you VERY much for the prompt and official info, Robin!

  • 30. Dr. Z  |  May 28, 2014 at 7:36 am

    Isn't this the case that found that, having made SSM illegal in Texas, the voters created a suspect class of the children of same-sex couples then unconstitutionally deprived them of their rights under federal law? I thought that was an interesting and novel line of attack on Texas' DOMA law.

  • 31. Ragavendran  |  May 28, 2014 at 7:54 am

    Yup – that's the one.

  • 32. Michael Scott  |  May 28, 2014 at 8:11 am

    Loved that little dig at Santorum. I notice that NOM in its blog posts consistently highlights any time a justice who rules in favor of marriage equality was appointed by Obama but conveniently leaves out any mention when it was Bush or Reagan.

  • 33. Pat  |  May 28, 2014 at 8:18 am

    Pentecost (or Whitsun) is a holiday taking place 50 days after Easter (i.e. this year, on June 8th). Since it's a Sunday, the following Monday is off in many European countries including Austria, Belgium, Cyprus, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Romania, most of Switzerland, Ukraine as well as some parts of Africa. Surprising that you haven't heard about it since you're European :)

  • 34. Keith  |  May 28, 2014 at 10:05 am

    Any word as to whether the donor list has been released yet?

  • 35. DrHeimlich  |  May 28, 2014 at 10:25 am

    The panel has voted unanimously to fine NOM $50,250 and force them to reveal their donor list:
    http://www.kjonline.com/news/Maine_election_panel

    NOM has already said they will refuse to comply:
    https://twitter.com/fredkarger/status/47167649928

  • 36. sfbob  |  May 28, 2014 at 10:42 am

    So then they'll be held in contempt. And then the state will pursue a judgement against them. And then NOM will go to the Supreme Court. Who will turn them down. At some point someone at NOM is gonna find that their attorneys are no longer admitted to the state bar or the Supreme Court bar.

  • 37. sfbob  |  May 28, 2014 at 10:46 am

    Oh I'm sure it's just an oversight. Just like when Fox News identifies indicted Republican congressmen as Democrats.

  • 38. SeattleRobin  |  May 28, 2014 at 4:55 pm

    I think there's a chance there actually is a clerk. However, I expect that it went down something like this:

    NOM contacts all 100 members in the state asking them about their jobs.

    Bingo they find a clerk!

    Unfortunately, the clerk is like, "Don't drag me into this, man. I gave you money, but that's as far as I'm goin, it's not worth it."

    NOM says, "What if we promise to keep you anonymous?"

    Clerk says, "Fine, whatever, man. Just don't contact me again."

  • 39. Michael Grabow  |  May 28, 2014 at 6:28 pm

    Houston
    http://m.thenewcivilrightsmovement.com/thenewcivi

  • 40. DaveM  |  May 29, 2014 at 7:02 am

    Plaintiffs in Love v. Beshear file their rebuttal in Judge Heyburn's court, trashing the "legitimate interest in procreation" stand asserted by KY.
    I have the doc from PACER, where could I toss it? Doc # is 3:13-cv-00750-89.

  • 41. Richard Weatherwax  |  May 29, 2014 at 7:52 am

    Considering the makeup of the current Supreme Court, it is possible that NOM might win this battle, but it would be an empty victory. NOM is still losing the war.

  • 42. ebohlman  |  May 29, 2014 at 9:10 am

    NOM's already tried to go to the SCOTUS once before on campaign-finance issues, and was denied cert.

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