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Equality news round-up: Colorado news and Alabama marriage case updates, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

– The county clerk in Boulder, Colorado, will have to stop issuing marriage licenses to same-sex couples after the state supreme court ordered a halt to issuance of those licenses pending the outcome of the appeal of the state court challenge to the ban.

– Meanwhile, in federal court, Colorado officials are asking the Tenth Circuit Court of Appeals to issue a stay pending appeal in the federal case brought against the state’s ban. Same-sex couples won a preliminary order against the ban, pending the outcome of the full appeal.

– In Alabama, the parties to one case challenging the state’s refusal to recognize same-sex marriages performed out of state, Searcy v. Bentley, have held a planning conference. They’ve proposed that dispositive motions (such as a motion for summary judgment) be filed by October 15, and the final brief would be due December 15.

– A state judge in Wyoming has chosen not to put a challenge to the state’s same-sex marriage ban on hold.

Thanks to Equality Case Files for these filings

58 Comments

  • 1. Ragavendran  |  July 30, 2014 at 11:12 am

    Excellent Slate article that reveals the supposedly "animus-free" anti-gay arguments for what they truly are:

    "In developing them, anti-gay activists began with a conclusion—gay people don’t deserve the rights that we straight people have—then worked backward, camouflaging each prejudiced premise with a supposedly neutral talking point. Under any kind of scrutiny, these theories instantly fall apart, revealing their bigoted, constitutionally impermissible core."

    "gay marriage opponents have backed themselves into the corner they’ve always dreaded. They can’t give up their quest now—but they’re barred from citing the explanations that they truly believe, deep down, to be correct. The result is the current tailspin of idiocy, a shifting argument with rootless standards roaming from rationale to rationale in a desperate attempt to find shelter from the storm of progress swirling around it. It’s a pathetic display, but not an unpleasant one to witness. Stripped of all logic and reason, the argument against gay marriage has been reduced to gibberish. Enjoy the babbling while it lasts."

    http://www.slate.com/blogs/outward/2014/07/29/arg

  • 2. brandall  |  July 30, 2014 at 11:22 am

    Very long, but deep Dale Carpenter (Washington Post) article on animus as it applied in Windsor and how it should be applied in any future ME cases. It uses Holmes in Bishop.
    http://www.washingtonpost.com/news/volokh-conspir

  • 3. DoctorHeimlich  |  July 30, 2014 at 11:38 am

    Yes, this is thoughtful and well-written. The final sentence is the key takeaway in my mind:

    Gay-marriage advocates would be well-advised to consider at least the possibility that Justice Kennedy will want to know whether animus is the best explanation for why same-sex couples continue to be excluded by many states from making the basic to decision to marry.

  • 4. Christian0811  |  July 30, 2014 at 12:04 pm

    Easy enough to answer: The ads run in support of the amendments and statutes during the course of the passage of the referendums and the records of debate in the legislatures which referred the amendments to their respective ballot boxes are very closely resembled to the passage of Amendment 2 (1993) of Colorado which was stricken based in no small part on the fact it was sponsored by socially instituted notions of homophobia. Or antigay animus.

    With deference to the intents of the populace and legislators in creating the amendments and statutes, it becomes abundantly obvious that animus, or, better yet, hatred is why same-sex couples are held from marriage rights in 30 states.

  • 5. RnL2008  |  July 30, 2014 at 12:49 pm

    Nice piece, thanks:-)

  • 6. hopalongcassidy  |  July 30, 2014 at 12:53 pm

    I will donate a thousand bucks to the favorite charity of anyone who can diagram that sentence. Sheesh. 😉

  • 7. Eric  |  July 30, 2014 at 1:05 pm

    Superstition is the best explanation for why any LGBT persons are excluded from anything.

  • 8. brandall  |  July 30, 2014 at 1:34 pm

    AR: Minor update – Arkansas Supreme Court takes up same-sex marriage suit

    Wright v. Arkansas decided 5/9/14. Licenses were issued until the stay by the State SC.
    http://www.thv11.com/story/news/local/2014/07/30/

  • 9. Steve  |  July 30, 2014 at 1:36 pm

    As said, the only reason it may not be the best idea is because judges tend to be cowards who are too afraid to call Christians and especially politicians what they are.

  • 10. DoctorHeimlich  |  July 30, 2014 at 1:51 pm

    Oh, I agree it wouldn't be wise to put all the eggs in the animus basket. But we've all seen how cases are briefed and argued. Each side tries to offer multiple ways of reaching the conclusion they advocate. It's like a battlefield with multiple fallback positions:

    * Marriage is a fundamental right, subject to strict scrutiny. Same-sex couples are seeking that very same right.
    (…but if you don't go for that…)
    * Sexual orientation should trigger heightened scrutiny under equal protection.
    (…but if you don't go for that…)
    * The justifications offered for marriage bans fail even under rational basis.

    Certainly there is a risk in arguing animus. That term triggers resentment in many at being branded a bigot, and that response may be reason enough NOT to argue animus forcefully. I suspect many of the lawyers arguing this case have done that analysis and decided not to risk it.

    But I also think the article was astutely pointing out that in the three major gay rights cases, Kennedy's opinions all seemed to turn on finding animus. So it's certainly worth at least considering whether a "line of defense" should be established there.

  • 11. FredDorner  |  July 30, 2014 at 2:06 pm

    I'll be interested to see how they rule. My understanding is that the court is surprisingly liberal.

  • 12. Bruno71  |  July 30, 2014 at 2:21 pm

    If I'm not mistaken, some of them are up for election this November. This could be politicized to an even greater degree than usual in these cases.

  • 13. brandall  |  July 30, 2014 at 2:23 pm

    It took them almost 3 months to accept the case. At that pace, they won't have a decision until after November.

  • 14. FredDorner  |  July 30, 2014 at 2:33 pm

    The same could be said of the Iowa judges who unanimously ruled for marriage equality while knowing full well that it would adversely impact their chances to survive the upcoming retention vote.

    Of course the Arkansas judges might look to that as a lesson, but I have faith in most judges to do what they think is right.

  • 15. BobxT  |  July 30, 2014 at 2:41 pm

    This seems to be a key point: If the Supreme Court found animus in the case of DOMA, how could they possibly not also find animus in the case of the state laws?

  • 16. ebohlman  |  July 30, 2014 at 2:46 pm

    The AR Supreme Court takes a summer recess.

    Judgepedia ranks the AR Supreme Court as the ninth-most-liberal in the country (for reference, NM is ranked the most liberal and CO is right in the middle).

  • 17. brandall  |  July 30, 2014 at 2:54 pm

    Since I have been animused several times in my life, I can testify it exists at the state level. But, a lot of legal folks don't want to go there right now because it will change the focus of the ME legal debate. While the country may now be ready for ME, they are not ready for GLBT's to be a protected class. DrH's use cases above certainly show this. Sorry for the misuse of animus….

  • 18. brandall  |  July 30, 2014 at 3:09 pm

    2nd AR update: The attorney general's office on Wednesday asked U.S. District Judge Kristine Baker to deny the motion for summary judgment filed by two same-sex couples challenging the ban. The couples earlier this month asked Baker to find a 2004 constitutional amendment and any related laws barring gay marriage unconstitutional.

    The state argued the motion is premature since Baker has not ruled on a motion it filed asking her to dismiss the lawsuit.

    [the 4th paragraph in this article is now out of date]
    http://www.tribtown.com/view/story/a0c242fbe3b141

  • 19. DACiowan  |  July 30, 2014 at 3:13 pm

    If you're following the talk page for the Wiki map, you might want to have a whiteboard on hand to organize. It's the most confused I've seen it: https://en.wikipedia.org/wiki/File_talk:Samesex_m….

  • 20. brandall  |  July 30, 2014 at 3:25 pm

    OMG. Design by committee. Please don't post this again. It gave me a headache just reading the debate on how to organize the 4th circuit decision and CO.

  • 21. davepCA  |  July 30, 2014 at 3:28 pm

    Good grief! Yeah, I'm stayin outta that one.

    Although in the big picture, confusion about the map due to massive amounts of rapid-fire changes in our favor is a very good 'problem' to have.

  • 22. FredDorner  |  July 30, 2014 at 4:02 pm

    Isn't the other issue that it's easier for a court to discern animus when it's present in the legislative record (like DOMA), but much harder when it's been expressed through a public referendum?

  • 23. Bruno71  |  July 30, 2014 at 4:23 pm

    They may do what they think is right, but they may not do it until after November (and after a "gay marriage election" in a socially Neolithic state).

  • 24. RobW303  |  July 30, 2014 at 4:47 pm

    Unless animus was one of the arguments put forth in district court, and repeated before the appellate court, wouldn't it be a potentially damaging error to introduce it before the Supreme Court? If asked about animus, the plaintiffs should be prepared to respond (and admit frankly why it was downplayed in lower courts), but to claim animus without support of hard facts before the court would backfire. Regardless of how strong and blatant animus has been towards us by various parties involved in passing these laws, animus is difficult to prove on the part of the voters, whom the court will view as simply voting "with conscience," despite that their whole goal was to bar us from equal treatment. Our arguments must be strong enough to win without an assertion of animus or we are doomed, transparently unfair as that may be.

  • 25. JayJonson  |  July 30, 2014 at 4:54 pm

    The Prop 8 trial used campaign commercials and other materials, including calling witnesses, to establish animus.

    I have been concerned by some of the recent decisions, including (iirc) the recent Fourth Circuit opinion, that have ignored the question of animus. These judges have gone out of their way to say that animus was not involved in the passage of the marriage bans. I understand the "political" motivation here, but I worry that it gives too much wiggle room, particularly in light of the fact that Kennedy is most concerned about animus in Windsor, as well as in Lawrence and Romer.

  • 26. davepCA  |  July 30, 2014 at 5:00 pm

    I don't see any of these recent rulings going out of their way to say that animus was NOT a motivating factor in enacting these laws. At most they simply don't address the issue at all, and some point out that although animus may have been a factor, it's not necessary to prove it to rule the ban unconstitutional. I don't think that is cause for worry.

  • 27. RobW303  |  July 30, 2014 at 5:28 pm

    It's time for them to use hover-over pop-ups instead of trying to encode everything in a palette of colors only Sherwin-Williams can accurately read. Coloring states solid when there's only a precedent in the circuit was a particularly bad call. One should be able to look at the map and at least know "Can I marry in that state NOW?" And solid coloring should be used pessimistically rather than optimistically—these blip changes that report the technical but not likely to stick statuses should instead be represented by query marks, so the more informative "previous" (and soon to be resumed) status still shows. Well, one man's opinion.

  • 28. BenG1980  |  July 30, 2014 at 5:36 pm

    I completely agree that the map should reflect where marriage equality is truly legal (i.e., states where same-sex couples can routinely receive marriage licenses). I've never really been active on Wikipedia, but I did comment on the map talk page a couple days ago and said just that. I also don't think it makes sense that Utah is currently shaded the same as Kansas and Indiana is currently shaded the same as Wyoming. Utah and Indiana have actual rulings in cases that have been stayed, but the Kansas and Wyoming shadings anticipate cases that have yet to be decided in the case of Wyoming or even yet to be filed in the case of Kansas. Virginia truly presents a conundrum because the 4th Circuit hasn't issued its mandate, but hasn't issued a stay either. I don't know how I would handle that.

  • 29. BenG1980  |  July 30, 2014 at 5:45 pm

    Read Judge Holmes' concurrence in Bishop. It was the main point of his opinion.

  • 30. RQO  |  July 30, 2014 at 6:37 pm

    Right. I'll venture WILL not do it until after Nov. 4.

  • 31. debater7474  |  July 30, 2014 at 6:49 pm

    New interview from Justice Ginsburg in which she says she expects to say on the court for another two years at least, as she is currently 81 and wants to stay until she's 83. Although she is my favorite justice on the supreme court by far, I worry about the fact that Republicans will likely take the senate this November, and the fact that Obama's approval numbers are dreadful, somewhere around 41.5 percent. Here in Pennsylvania, a state he won in 2012, his approval is in the high 30s. Everyone seems to think that the Republicans have no shot in 2016, but I think this kind of attitude is pretty overconfident, particularly when the president is that unpopular. If Ginsburg stays until past 2016 and we are left with a Republican president and Republican senate, the consequences could be horrific.
    On the upside, however, we know Ginsburg is one of the surest votes on the court for marriage equality, and so keeping her until June 2015 ensures that we know have a friend and don't have to worry about who Obama can get through the senate.
    Here is the link to part of the interview: https://news.yahoo.com/katie-couric-interviews-ru

  • 32. RemC_in_Chicago  |  July 30, 2014 at 7:10 pm

    I didn't know how to do a diagram on IntenseDebate, so here's the simplification: Advocates should prepare for Kennedy asking if animus is the major reason why gays in 30 states are barred from marrying.

  • 33. brandall  |  July 30, 2014 at 7:29 pm

    Aside from Holmes, it is difficult to deep dive into animus in Summary Judgments for ballot initiatives. The point of Summary Judgments is both sides agree on the facts and the decision is based on case law only. Being able to submit evidence of the media ads that "persuaded the voters" and then disputing those facts requires a trial and it is clear our ME organizations don't want to delay the decisions.

  • 34. scream4ever  |  July 30, 2014 at 8:30 pm

    It's looking more and more likely that Democrats will narrowly hold onto the Senate.

  • 35. scream4ever  |  July 30, 2014 at 8:31 pm

    The same in Colorado and Florida.

  • 36. debater7474  |  July 30, 2014 at 9:13 pm

    I suppose the question is this: if Ginsburg is forced to retire under a Republican president and senate and is replaced with a conservative, is it foreseeable that the court could somehow overturn a marriage equality decision made in June of 2015, the way that conservatives have sought to overturn Roe V. Wade?

  • 37. sfbob  |  July 30, 2014 at 9:37 pm

    It's always interesting to read what Carpenter writes. Quite apart from the fact that he's a good writer, his perspective is interesting because he is both a gay man and politically conservative though not, as most self-professed "conservatives" seem to be these days, an ideologue. I sort of envisage him as the sort of person who is a registered Republican or perhaps an independent who in principle sides with conservatives but who often votes for either Democrats or minor-party candidates in elections because the Republican candidates have demonstrated themselves to be crazy or at any rate unfit to hold public office.

    His book on the history of Lawrence vs Texas is a must-read.

  • 38. Mike_Baltimore  |  July 30, 2014 at 10:21 pm

    Off topic, but still a very interesting read. From the 'Washington Blade':
    'Before summer’s end, a succession of marriage cases'
    ( http://www.washingtonblade.com/2014/07/30/big-mon… )

  • 39. Mike_Baltimore  |  July 30, 2014 at 10:57 pm

    I stopped trusting most things on Wiki when I read an article there on the eye disease I have, Fuchs' Endothelial Corneal Dystrophy (FECD, or Fuchs'), and the information was about 50% inaccurate and incorrect.

    I made a few edits (mostly in the reference section) to make it more accurate, but two days later, my changes were changed back to the previous wording (or references were actually erased).

    My ophthalmologist (internationally recognized as an expert in Fuchs') tried to make a few corrections, but all his changes were reversed within a short time.

    I don't know who made the changes, but there is a suspect I have in mind (she is a fan of the Green Bay Packers, and lives in or near Appleton, WI).

    If it is so easy to anonymously make changes, and the information is not necessarily correct and/or accurate to begin with, can Wiki truly be trusted?

  • 40. Ragavendran  |  July 30, 2014 at 11:41 pm

    Briefing commenced. Appellant Brief due September 8:
    https://caseinfo.aoc.arkansas.gov/cconnect/PROD/p

  • 41. Ragavendran  |  July 31, 2014 at 12:05 am

    Hearing this afternoon in Ohio's Gibson:

    NOTICE of Hearing: Please be aware that a Status Conference is set for 7/31/2014 at 02:30 PM by teleconference before Judge Michael R. Barrett; parties shall initiate contact with the Court by calling 513-564-7660 five minutes prior to 2:30 pm. (ba1) (Entered: 07/30/2014)

  • 42. ragefirewolf  |  July 31, 2014 at 4:30 am

    Thank you!

  • 43. hopalongcassidy  |  July 31, 2014 at 6:00 am

    Yes, I was mostly joking, because of the superfluous infinitive right at the end. I did manage to get the gist of it…
    :-)

  • 44. Wynngard  |  July 31, 2014 at 7:06 am

    The Wisconsin Supreme Court rules in Appling v. Walker that the state's domestic partnership law is constitutional: http://www.wicourts.gov/sc/opinion/DisplayDocumen

  • 45. brandall  |  July 31, 2014 at 7:07 am

    WI: Unanimous Wisconsin Supreme Court Upholds Wisconsin domestic partner registry

    "We see no evidence that voters who approved the Amendment saw it as permitting those rights to be granted only in the kind of scheme Plaintiffs now suggest — that is, in cohabiting domestic relationships that bear no resemblance at all to marriage," Justice N. Patrick Crooks wrote.
    http://www.postcrescent.com/story/news/politics/2

  • 46. RemC_in_Chicago  |  July 31, 2014 at 7:45 am

    I knew you knew. And it looks like you knew I knew you knew.

  • 47. brandall  |  July 31, 2014 at 7:46 am

    Uganda: Uganda’s highest court could decide on Friday if the country’s draconian anti-homosexuality law should be repealed

    Please, may justice prevail and rid the country of this horrible law.
    http://www.pinknews.co.uk/2014/07/31/ugandan-cour

    Here is a bit more information that the act is unconstitutional because it lacked a required number of MP's:
    http://www.english.rfi.fr/africa/20140730-we-ll-h

  • 48. debater7474  |  July 31, 2014 at 8:16 am

    I imagine that if the Ugandan court ruled against the law, they would either A) be drummed out of office B) literally be killed by lynch mobs or vigilantes, or C) all of the above. Either way, I'm not optimistic.

  • 49. MichaelGrabow  |  July 31, 2014 at 8:46 am

    They seem pretty confident according to that article.

  • 50. JayJonson  |  July 31, 2014 at 9:20 am

    When it gets to the Supreme Court, whether animus has been discussed in the case that is granted cert or not, animus will be an issue. This is because of the contours of Windsor, which will surely be the controlling Supreme Court precedent on which a marriage equality ruling will be decided. Kennedy's finding that the function of DOMA was to stigmatize gay relationships is crucial to Windsor. It cannot be ignored.

    I suppose one could say that Utah's voters, for example, didn't necessary act out of animus, but that the result of their vote in adopting a ban on same-sex marriage is that same-sex couples and their children were impermissibly stigmatized and, thereby, harmed.

  • 51. JayJonson  |  July 31, 2014 at 9:27 am

    Yes, the book "Flagrant Misconduct" is very good, not least because of his history of gay activism and persecution in Houston. Carpenter is an interesting person. I think he clerked with the infamous Edith Jones of the Fifth Circuit. But he teaches at the University of Minnesota, which I would suspect is a liberal place. In an essay at glbtq.com, Claude Summers contrasts his approach in "Flagrant Misconduct" with Jo Becker's in "Forcing the Spring." Here is an url: http://www.glbtq.com/sfeatures/becker.html

  • 52. JayJonson  |  July 31, 2014 at 9:32 am

    A very good question. Yet more reason to vote Democratic in both 2014 and 2016.

  • 53. JayJonson  |  July 31, 2014 at 9:36 am

    It is interesting that the plaintiffs (Appling and the anti-gay groups she heads) were thrust with their own petard. When they were campaigning to pass the marriage ban, they repeatedly said that it would not bar benefits for couples in domestic partnerships. After the amendment passed, they said any recognition of same-sex couples was unconstitutional. Most of the Wi Supreme Court decision consists of quotations from the legislative history and campaign materials where they denied that the amendment would prevent targeted benefits for same-sex couples unless it was "Vermont-like civil unions" that contained everything but the name marriage. In fact, Wisconsin's domestic partnership law contains few actual benefits.

  • 54. Randolph_Finder  |  July 31, 2014 at 9:39 am

    Just curious, when did you do this. I went back several years and didn't find any significant revered edits during that time period. I'm a regular editor there and would happy to work with you on this. My handle there is Naraht and you can contact me at https://en.wikipedia.org/wiki/User_talk:Naraht .

  • 55. Mike_Baltimore  |  July 31, 2014 at 10:41 am

    I probably made those edits about 6 years ago (maybe earlier, maybe later). The person or persons who reversed the edits didn't like a new surgical procedure being used for certain corneal transplants (especially those transplants used mainly by FECD patients), and made sure no mention to that procedure was in the article and/or references.

    And since anyone can edit Wiki articles, and even experts' corrections can be easily reversed, I've stopped using it as a primary source. I've adopted the policy of educational institutions – use Wiki as A source of information, but not the ONLY source of information, as many seem to do.

    Wikipedia may have changed certain procedures since my ophthalmologist and I tried to make some corrections, but those changes are not near enough. For example, a person can anonymously enter an article at Wiki. What are their credentials? Credentials of many authors can't be checked, since the article is anonymous.

    Your offer to 'work with me' is appreciated, but declined. Until Wiki REQUIRES accountability (by at least the author(s) ), I can't trust it.

  • 56. DACiowan  |  July 31, 2014 at 10:56 am

    As a editor of Wikipedia for nine years now, I use it either as a way to check things like the plot of a movie or things like when a book was published, or if I need anything more than a simple fact I use it as a directory of sources. Most articles on Wikipedia that see more than a few edits every couple of months turn into battlegrounds; keep in mind Wikipedia needs a 1600 word policy on when to use the word "the."

    I need a new ruling fix already.

  • 57. Mike_Baltimore  |  July 31, 2014 at 11:31 am

    I can't find anything on whether justices of the Ugandan SC are appointed for a term or for life, but I did find:
    "The courts shall furthermore be independent and shall not be subject to the control or direction of any person or authority." (From Article 126 (2) of the Constitution of the Republic of Uganda.) That to me is an indication (indication, not proof) that there are no elections involved after the justices are appointed and confirmed to the SC (similar to the practice in the US.)

    Efforts could be made to get them to resign, but it is not a guaranteed method of removal (I'm sure Clarence Thomas, for instance, is pressured to resign all the time, and so far he's still on the US SC). Thus resignation or death appear to be the only methods of removal of a justice from the Ugandan SC.

  • 58. DrPatrick1  |  July 31, 2014 at 5:30 pm

    I think a finding of animus is a legal endgame conclusion.

    In medicine, we have what are called diagnoses of exclusion, meaning there is no specific tests to confirm or rule out the diagnosis. Therefore, you must rule out all other diagnoses first, then you are left with the diagnosis of exclusion. An example is a panic attack. You must rule out an actual heart attack first.

    In the case of marriage, it is inappropriate to argue animus at these early stages, as it will provoke a defensiveness that is unnecessary and unhelpful. I predict another SCOTUS ruling citing animus, but only because it is the only logical reason for such a law to exist.

    Proving animus is difficult at the outset, and disproving animus will be impossible once all other legal theories are exhausted. A law is not unconstitutional because of animus, it is unconstitutional when only animus can support it.

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