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Guam’s attorney general directs agencies to allow same-sex couples to get marriage licenses, governor defers action

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The situation in Guam is changing rapidly after a same-sex couple announced a lawsuit challenging the ban on same-sex marriage. The lawsuit has been filed, and Guam is in the Ninth Circuit Court of Appeals, which has already decided the marriage issue.

The latest in the situation is that Guam’s attorney general has directed agencies to issue marriage licenses to same-sex couples:

The attorney general said she is directing the island’s public health department to immediately start issuing marriage licenses to same sex couples.

“The Department is advised to treat all same gender marriage applicants with dignity and equality under the Constitution of our nation, and the ruling of the Ninth Circuit Court of Appeals,” Attorney General Elizabeth Barrett-Anderson said in a legal memorandum to Public Health’s acting Director Leo Casil. Her decision was based on the Ninth Circuit Court of Appeals’ Oct. 7, 2014, decision, according to the memo.

That decision made Guam’s marriage law unenforcible till a U.S. Supreme Court decision, she said.

“While the (Public Health) Department was acting in accordance with GUam law, the Ninth Circuit’s recent decision has rendered Guam’s marriage statute legally unenforceable until such time that the Supreme Court of the United States alters the holding of the Ninth Circuit of Appeals,” she stated in the memo.

Unfortunately, it looks like the governor is deferring action on the licenses pending review of the current situation:

Gov. Eddie Calvo and Lt. Gov. Ray Tenorio issued a statement on the gay marriage issue. Although they respect the opinion of Attorney General Elizabeth Barrett-Anderson that Guam should allow same-sex marriage immediately, the administration is deferring a decision, according to the statement.

“If it is the will of the people of Guam to make same-sex marriage legal on Guam, then the Guam Legislature, the people of Guam’s representatives, can take action to change the law, or a referendum can be held giving the people of Guam a direct voice in this issue,” the statement read in part.

The administration’s legal team is reviewing the matter, according to the written statement.

No action has been taken in the lawsuit yet except its filing. EqualityOnTrial is monitoring the situation and we will have updates if anything changes.

58 Comments

  • 1. davepCA  |  April 15, 2015 at 8:28 am

    Aw crap. The Attorney General clearly points out that their law is unenforceable, and the frikken governor basically ignore that and hides behind the old "will of the people" BS. He's going to either force the lawsuit to move forward or force legislative action, both of which are an unnecessary waste of time and money. What part of the word 'unenforceable" does he not understand?

  • 2. F_Young  |  April 15, 2015 at 8:31 am

    The Trials of John Roberts
    Supreme Court cases on gay marriage and the Affordable Care Act test the Chief Justice's commitment to judicial restraint.

    …The Chief Justice, in his Windsor dissent, suggested that he would require a finding that “the principal purpose” of gay marriage bans was “a bare desire to harm”—in other words, that they were enacted with “sinister motive.” In Windsor, he stressed that he would not lightly “tar the political branches with the brush of bigotry.” He also emphasized differences between state marriage bans and the federal Defense of Marriage Act that might make them less constitutionally vulnerable, including the fact that their legislative history may not have included similar evidence of bias and that states have traditionally had the authority to define marriage as “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of martial responsibilities.’”

    It’s easy to imagine Roberts invoking the tone and analysis of the opinion he will be reviewing, Judge Jeffrey Sutton’s opinion for the U.S Court of Appeals for the Sixth Circuit upholding gay-marriage bans in four states…

    …..Might he set aside his constitutional views and provide a sixth vote to strike down gay marriage bans, to preserve the legitimacy of the Court? This seems unlikely: Roberts is most concerned about legitimacy when the Court strikes down laws on a 5-4 party line vote; the same concerns don’t arise when the court strikes them down with a mix of Democratic and Republican votes. Moreover, in the absence of clear constitutional arguments to the contrary, he prefers deferring to democratic decisions, not second-guessing them. Finally, he has strong views that he has been unwilling to compromise in the past and would hardly join an opinion he believed was fundamentally incorrect because of an amorphous concern about his personal judicial legacy, rather than the legitimacy of the Court as a whole. For all these reasons, unless Roberts concludes that the state initiatives are infected by animus (a plausible conclusion in light of the Court’s lax definition of animus in other gay-rights cases), he seems unlikely to join Kennedy in striking the state-level marriage bans down.

    http://www.bizjournals.com/austin/news/2015/04/15

  • 3. Elihu_Bystander  |  April 15, 2015 at 9:13 am

    "What part of the word 'unenforceable" does he not understand?"

    un-

  • 4. Decided_Voter  |  April 15, 2015 at 9:18 am

    I question his judgment. In the 9th, it's squarely in the realm of the courts at this point no matter what he says. Even other opponents in states in the 9th realize that. He's at least a year behind the times.

  • 5. Eric  |  April 15, 2015 at 9:54 am

    The will of the People is clearly enumerated in the U.S. constitution.

  • 6. guitaristbl  |  April 15, 2015 at 10:03 am

    It was nevertheless an interesting decision about the jurisdiction of magistrate judges, the role of federal courts and Article III implications that showcased throughout the stark differences between judges of different ideologies on every court but on the 5th more specifically, with Clement (one of the most conservative judges) delivering the opinion, Higginson, a liberal, delivering a dissent (and the two of these writings fighting against each other) and Higginbotham, a moderate, delivering an 1 paragraph concurrence trying to build bridges.
    If not for the matters presented it was a case that showcased perfectly the US federal judiciary with all its elements, good or bad.

  • 7. guitaristbl  |  April 15, 2015 at 10:04 am

    Gov. Calvo the "people of Guam" deserve no direct voice on the rights of other people. Rubio said the same nonsense when he was called the politician of yesterday last night for his stance on marriage equality.

  • 8. F_Young  |  April 15, 2015 at 10:50 am

    How Supreme Court Justice Anthony Kennedy's Gay Mentor Influenced His Views, Beliefs

    …those who have known Justice Anthony Kennedy for decades and scholars who have studied his work say he has long stressed the importance of valuing people as individuals. And he seems likely also to have been influenced in this regard by a pillar of the Sacramento legal community, a closeted gay man who hired Kennedy as a law school instructor and testified on his behalf at his high court confirmation hearings in Washington.

    http://www.huffingtonpost.com/2015/04/14/justice-

  • 9. Mike_Baltimore  |  April 15, 2015 at 11:10 am

    My last name is less than the 20,000th most 'popular' last name in the US, and yet I have relatives with that last name in at least the 1CA, 4CA, 5CA, 6CA, 7CA, 9CA, 10CA and 11CA.

    There are at least 34 other people in the US who have phones listed in the White Pages, and who have the same first name and last name as I do. The White Pages generally doesn't list cell phones, so those would most likely be land lines. If cell phones were listed, who knows what that number would be?

    For the name on a case to be similar to, or exactly the same as, another person's name who lives in a completely different Circuit is not surprising to me.

  • 10. Raga  |  April 15, 2015 at 11:38 am

    From the same article, see (paraphrased a bit):
    "Upholding the challenged regulations as constitutional is distinct from a statement that they are wise. The latter judgment is neither implicit in our decision nor within our province to make," he wrote in an 1980 opinion upholding the Navy's dismissal of gay sailors. He was on the 9th U.S. Circuit Court of Appeals at that time. "He rules in favor of the Navy policy, but it's about as sympathetic as one could be to the plaintiff," Colucci said.

  • 11. FredDorner  |  April 15, 2015 at 11:39 am

    Kudos to the AG for a highly ethical and appropriate action. Too bad the governor appears to be a moron.

  • 12. F_Young  |  April 15, 2015 at 11:57 am

    Homophobic Leadership in Brazil's Congress Puts Marriage Equality in Peril
    Brazil's burgeoning evangelical movement is on a fast track to power, with a decidedly antigay mission.

    …Brazil's 8 million–member Universal Church of the Kingdom of God is at the head of a social conservative movement whose coalition of political parties wrested control of the country's National Congress after an election in October with a stated goal of reversing the 2013 court decision that brought marriage equality to the nation.

    …..Now liberals such as lower-chamber House of Deputies member Jean Wyllys are sounding the alarm about an onslaught of religious fundamentalism that, as BuzzFeed notes, the out politician says is as dangerous to LGBT people and the progressive cause as Islamic extremism.

    …But a Universal Church–affiliated program called Gladiators of the Altar may have inadvertently done more than any progressive politico could hope to do in terms of drawing public attention to looming threats, such as a new "family-front" bill in the Brazilian Congress that would roll back protections LGBT citizens currently enjoy.

    As BuzzFeed's J. Lester Feder points out, the young members of Gladiators of the Altar look more like an army of "straight-arm saluting" paramilitary men than any church youth group that might be recognizable to American evangelicals.

    http://www.huffingtonpost.com/2015/04/14/justice-

  • 13. RemC_Chicago  |  April 15, 2015 at 12:20 pm

    OT: Legislators in TN must have super effective painkillers against stupidity:
    http://www.thenewcivilrightsmovement.com/davidbad

  • 14. tigris26  |  April 15, 2015 at 12:49 pm

    Knowing you, Raga, of course you'd pick out the one negative piece. 😉 You think that 1980 case is more relevant to this year's cases than the last three (Windsor, Lawrence & Romers)?

    I remain fairly optimistic considering his record on this issue, but I do think we'll get a better sense of what Kennedy is thinking (and the others) when we hear the arguments in a couple of weeks.

  • 15. JayJonson  |  April 15, 2015 at 1:32 pm

    The absolutely certain vote in favor of marriage equality in Obergefell is the vote of Justice Kennedy. A 1980 opinion in an area of jurisprudence in which federal courts have almost uniformly given great deference to the military has no significance when weighed against the landmark decisions by Kennedy in Romer, Lawrence, and Windsor. It is not helpful to imply otherwise.

    I think the votes of the other justices in Obergefell are also very likely: Ginsburg, Breyer, Sotomayor, and Kagan on the side of the angels, and the RATS on the side of the bigots. In other words, a 5-4 decision that will bring marriage equality throughout the nation.

  • 16. Zack12  |  April 15, 2015 at 1:47 pm

    He's a Republican, so it's not a surprise.

  • 17. Zack12  |  April 15, 2015 at 1:49 pm

    It should be noted that even though he upheld the discharge, his writings on the issue were enough to where he was asked about it by a couple of Republican Senators who worried he might be on our side when it came to LGBT issues.
    They were right on that one.

  • 18. scream4ever  |  April 15, 2015 at 2:05 pm

    I wouldn't worry too much about this. There were similar threats made in Canada and Spain after conservatives took power and nothing happened. Also, Brazil got marriage equality through a court order, so a constitutional amendment would be needed to reverse it.

  • 19. RnL2008  |  April 15, 2015 at 2:12 pm

    Do we officially have Guam? Or not?

  • 20. RnL2008  |  April 15, 2015 at 2:14 pm

    Is that EVEN legal? I mean it seems that by doing this, it FORCES folks to believe in something that is truly a book about stories and SCOTUS would NEVER allow it to stand, right?

  • 21. RnL2008  |  April 15, 2015 at 2:19 pm

    Wow, after reading the article…..I'm just speechless over the STUPIDITY of this State's politicians……NO wonder Tennessee is a State I'll NEVER visit or live in!!!

  • 22. scream4ever  |  April 15, 2015 at 2:27 pm

    Not yet, although I expect the case to be settled very soon with a summary judgment ruling since it's under the 9th Circuit and they have already ruled in our favor.

  • 23. montezuma58  |  April 15, 2015 at 2:27 pm

    At least the AG is against it. The governor is against it too. But the governor isn't concerned with separation of church and state. He thinks it's "disrespectful" to the bible. At least he likes his religion enough to realize the state using it to directly pander is a cheap tactic.

  • 24. A_Jayne  |  April 15, 2015 at 2:29 pm

    While it can't force people to believe in anything, it clearly says the government of the state of TN endorses it. And yes, that is blatantly unconstitutional, as even the TN legislature's own legal counsel had advised them…

  • 25. JayJonson  |  April 15, 2015 at 2:37 pm

    Thanks for this information, Zack. I wasn't aware that the issue came up in his confirmation hearing.

  • 26. Elihu_Bystander  |  April 15, 2015 at 2:47 pm

    It clearly violates the anti-establishment clause of the Bill of Rights.

  • 27. RemC_Chicago  |  April 15, 2015 at 3:21 pm

    Rose , I agree with the others that it can't be legal. But it's certainly a prime example of "stupid should hurt," hence my reference to pain-killers.

  • 28. RnL2008  |  April 15, 2015 at 3:24 pm

    Oh I agree…….and these folks take stupidity to an all new level!!!

  • 29. Zack12  |  April 15, 2015 at 3:31 pm

    http://www.nytimes.com/2013/09/02/us/surprising-f
    Here's the article about it.
    The senator in question was Gordon Humphrey of New Hampshire.

  • 30. F_Young  |  April 15, 2015 at 5:05 pm

    Indiana governor’s approval rating plummets after disastrous anti-gay “religious freedom” bill

    …According to a poll conducted by the Human Rights Campaign (HRC), signing the RFRA has led even led to a significant erosion in popularity in Indiana. As recently as February of this year, Governor Pence enjoyed a 62 percent approval score. Since the passage of the RFRA, however, his unfavorable rating has crept up to 53 percent, while his favorable rating plummeted to 38 percent.

    http://www.salon.com/2015/04/13/indiana_governors

  • 31. Raga  |  April 15, 2015 at 11:52 pm

    Then I guess you don't know me well. I just wanted to make sure that that portion of the article didn't get buried in the rest of it. I am fairly confident Kennedy will make the right decision. Just wanted the record to be complete. And no, I don't think the 1980 case is relevant at all to this year's cases. The quoted lines of Kennedy from that opinion struck me as interesting though – that he views the constitutionality of a law as separate from whether the law is good or "wise".

  • 32. Raga  |  April 15, 2015 at 11:53 pm

    Jay, please see my reply to tigris26 above. I didn't mean to imply anything of the sort you have assumed.

  • 33. F_Young  |  April 16, 2015 at 4:33 am

    Young conservatives for gay marriage: 'If you want a Republican president, you best get right on this'

    Gay marriage is a "gateway issue" for voters, and official opposition by the Republican Party will hurt candidates in 2016, according to a national group seeking to reform the GOP platform.

    "It's so rare to get an issue that is such a win-win for the Republican Party," Jerri Ann Henry, campaign manager of Young Conservatives for the Freedom To Marry, said Wednesday morning in Lansing.

    …..Henry and a group of colleagues, working on what organizers describe as a $1 million national campaign, are traveling the country with the aim of influencing policy makers and recruiting potential convention delegates who will help draft the next GOP platform in 2016.

    <a href="http://www.mlive.com/lansing-news/index.ssf/2015/04/young_conservatives_for_gay_ma.html” target=”_blank”>http://www.mlive.com/lansing-news/index.ssf/2015/04/young_conservatives_for_gay_ma.html

  • 34. JayJonson  |  April 16, 2015 at 6:49 am

    I am surprised that you are surprised that a circuit court judge would view the constitutionality of a law as separate from whether the law is good or wise. They after all are bound by SCOTUS precedent. Even justices of the supreme court must view the constitutionality of a law as separate from whether the law is good or wise. In fact, that very observation is practically boiler-plate SCOTUS rhetoric. Even the decision in Bowers v. Hardwick by Byron White observed that it was not the court's purpose to rule on whether or not sodomy laws were wise, and of course in his Lawrence dissent, Thomas famously observed that the Texas sodomy law was "uncommonly silly" though he believed it to be constitutional.

  • 35. JayJonson  |  April 16, 2015 at 6:50 am

    Thanks for the clarification, Raga. I know that we are all on pins and needles these days and prone to worrying that something might go wrong, so I don't want to start having doubts about any wobbling from the Windsor 5.

  • 36. Raga  |  April 16, 2015 at 6:56 am

    No, I didn't say it was surprising, I said it was interesting – which I guess may include some element of surprise in it. That comment, in a judicial opinion, was interesting – as if he really wanted to clearly underscore that his decision really really doesn't endorse the Navy policy as wise.

  • 37. Raga  |  April 16, 2015 at 6:57 am

    I understand, Jay. You're welcome :)

  • 38. JayJonson  |  April 16, 2015 at 7:00 am

    Yes, that is how I also view his statement. But in general such observations are pretty standard, especially, as in this case, from member of circuit courts of appeal, who are, after all, bound by Supreme Court precedents that they may or may not agree with. All courts at least pretend to separate the question of constitutionality from the question of policy. Sometimes, of course, that is simply posturing. It is likely no coincidence that Byron White, a well-known homophobe, found sodomy laws constitutional. He would have, no doubt, voted in favor of sodomy laws as good policy were he a legislator.

  • 39. Waxr  |  April 16, 2015 at 7:14 am

    Who told you that?
    If you examine the Constitution as originally written, you will find that the framers took pains to limit "the will of the people." The house of Representatives was the only body of the federal government elected directly by the people. Originally, Senators were appointed by the state legislatures, and the president was named by the Electoral College, as it still is. Federal judges and justices are still nominated by the president, and confirmed by the Senate, thus isolating the court system from "the will of the people."

    The framers did it this way because they feared that giving too much power to majority groups could result in minorities having their rights taken from them.

  • 40. Rick55845  |  April 16, 2015 at 7:32 am

    I could be wrong but I took Eric's comment to mean that the Constitution, with all of its articles and amendments that limit or grant powers to federal or state government or reserve them to the people, reflect the will of the people. In other words, that it is the will of the people that majorities are prevented from abrogating the rights of minorities, even though sometimes the people forget that, or wish it weren't so.

  • 41. Eric  |  April 16, 2015 at 7:39 am

    No one told me, I read it:

    We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

  • 42. Eric  |  April 16, 2015 at 7:40 am

    Correct.

  • 43. Waxr  |  April 16, 2015 at 7:42 am

    If you need a state book, how about John Locke's "2nd treatise of government"?

    That book was read by many of the founding fathers including Thomas Jefferson. It influenced both the Declaration of Independence and the Constitution, including the Bill of Rights. It certainly deserves that place of honor far more than the Bible.

  • 44. JayJonson  |  April 16, 2015 at 8:27 am

    The Times article is very interesting. I read it when it first appeared, but it is good to reread it. The part of the article that I find most interesting now is this:

    "Seventeen years later, Justice Kennedy cited the European court’s decision in his majority opinion in Lawrence v. Texas, which overruled Bowers.

    “Its continuance as precedent demeans the lives of homosexual persons,” Justice Kennedy wrote.

    Justice Harry A. Blackmun, who wrote the majority opinion in 1973 in Roe v. Wade, which established a constitutional right to abortion, warned Justice Kennedy to expect harsh criticism when he stood up for gay rights.

    “Monday’s decision took courage,” Justice Blackmun wrote to Justice Kennedy, praising his majority opinion in 1996 in Romer v. Evans. “You undoubtedly now will receive a lot of critical and even hateful mail. I have had that experience.”

    Justice Kennedy replied: “No one told us it was an easy job when we signed on.”

    I find this exchange between Justice Blackmun (whose dissent in Bowers is magnificent) and Justice Kennedy fascinating. But where did the reporters find the letters?

    Has Blackmun's correspondence been made public? What about Kennedy's?

  • 45. Wolf of Raging Fires  |  April 16, 2015 at 8:38 am

    You've got it, Eric :)

  • 46. Wolf of Raging Fires  |  April 16, 2015 at 8:40 am

    I'm so excited, I can hardly think straight!

    Oh wait, I can't think straight anyway, LOL!

  • 47. tigris26  |  April 16, 2015 at 10:24 am

    Thanks for clarifying your intentions, Raga. I guess you're right – I don't know you as well as I thought. 😉 Apologies!

  • 48. Waxr  |  April 16, 2015 at 1:50 pm

    I don't like the expression, "the will of the people." Dictators claim that they are fulfilling "the will of the people." States defending the ban on same-sex marriage claim to be representing "the will of the people."

    The framers of the Constitution admitted that they did not know how some of the clauses in the Constitution would be interpreted. Numerous clauses had to wait for the courts to interpret them. So how can they be said to represent "the will of the people"? What is included in the "necessary and proper" clause? Does the the "advise and consent" clause apply before or after the President has negotiated a treaty?

    How can these clauses be described as the will of the people, when we still do not know their meanings?.

  • 49. VIRick  |  April 16, 2015 at 1:52 pm

    Jay, since Kennedy is still a sitting judge, none of his correspondence has yet been made public. Therefore, the source would have had to have come from the Blackmun side.

  • 50. VIRick  |  April 16, 2015 at 2:04 pm

    "The will of the People …."

    No, actually, the framers of the constitution were far more likely to view that concept as the "tyranny of the mob," and did their best to insulate the government from it, just as Waxr enumerated, and for the reasons stated.

    The "originalists," like Scalia, Sutton, Cook, and the rest of the gang in the Federalist Society, need to remember this correctly-slanted historical point of view. This lot is particularly hyped-up about leaving things to "the will of the people," despite the very clear fact that this was not at all the originalist intention of the framers. Posner has vociferously ripped them all a new collective assh-le on this very point.

  • 51. VIRick  |  April 16, 2015 at 2:27 pm

    "…. Brazil got marriage equality through a court order, so a constitutional amendment would be needed to reverse it."

    Correct.

    However, the home-grown Gladiators of the Altar of the Universal Church of the Kingdom of God are a seriously scary lot, as are their tele-evangelists who are getting themselves elected to Brasil's Congress. The Gladiators are definitely a hard-core neo-Nazi group, wrapped in religiously doctrinaire bigotry, and appear to be a kind of wistful throw-back to the right-wing Medici dictatorship.

    However, these nut-jobs are not just opposed to marriage between same-sex couples. They're also violently opposed to hetero divorce, abortion, women's equality, the entire subject of transgender, the flaunting sexuality of the costenhas, and almost every other socially progressive concept one can imagine. As a result, their appeal will ultimately be limited by the very fact there's so much and so many that they hate.

  • 52. 1grod  |  April 16, 2015 at 5:38 pm

    Re Aguero v. Calvo (Guam marriage)
    April 16: Plaintiffs filed an 9 page amended request for an expedited ruling " in order to address very recent developments." Appendix A is the Letter to Leo Casil Director, Department of Health from the AG http://www.scribd.com/doc/262056075/1-15-cv-00009

  • 53. davepCA  |  April 16, 2015 at 5:57 pm

    Nice!

  • 54. scream4ever  |  April 16, 2015 at 6:10 pm

    Yah there's no reason at all why a summary judgment isn't appropriate here.

  • 55. StraightDave  |  April 16, 2015 at 8:01 pm

    And not a stay anywhere in sight……………………………………………………………………………………
    ………………………………………………………………………………………………………………………………………..
    ………………………………………………………………………………………………………………………………………..

  • 56. 1grod  |  April 17, 2015 at 6:54 am

    "there is no necessity for discovery or trial; and an expedited ruling serves both judicial economy and the public interest in resolving an important issue". p 5. Does this mean that Governor Eddie Baza Calvo and Registrar Carolyn Garrido, Office of Vital Statistics, Department of Public Health and Social Services as named Defendant would not be given an opportunity to submit a brief? Perhaps the Governor ought to speak to Governor Alejandro Javier García Padilla of Puerto Rico.

  • 57. 1grod  |  April 17, 2015 at 6:58 am

    How is Guam similar to Alabama? http://www.al.com/news/index.ssf/2015/04/how_is_g

  • 58. wildorchid5  |  April 23, 2015 at 2:17 am

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