It’s been a huge week for marriage equality. Florida became the 36th state with the freedom to marry, judges in three southern states heard oral arguments, and the Supreme Court considered cases from five states. Plus a lawmaker in Texas is wasting everyone’s time with a new anti-gay law that would make life difficult for everyone.
The Fifth Circuit Court of Appeals heard oral argument in several cases last Friday. That includes a crucial case from Louisiana. In September, Judge Martin Feldman upheld the state’s marriage ban — one of the only federal judges to rule against gay couples in the last year. Now that that the couples have appealed that anti-gay ruling, it’s looking good for the Fifth Circuit to reverse it. At Friday’s argument before a panel of three judges, only one seemed interested in upholding the ban. The other two were intensely skeptical. We could have a ruling there any day now, along with decisions in Texas and Mississippi.
For the last few weeks, anti-gay groups have been putting forth their best efforts to stop marriage from starting in Florida. But as luck would have it, their best efforts just weren’t very good. With marriage starting last week in Florida, about 70 percent of the country now enjoys the freedom to marry. There are still several lawsuits in Florida that need to be worked out. But state attorneys are suddenly a lot less eager than they were a few weeks ago to stand in the way of marriage. In fact, last week the state quietly told a federal court that they’re not even going to bother submitting a reply in the case responsible for the legalization for marriage. Attorney General Pam Bondi hasn’t had anything useful to say about her ongoing litigation for several weeks. And at this point it seems like the only organization actively fighting marriage is Florida Family Action, a fringe group that’s filed a few nuisance lawsuits that were almost immediately thrown out of court.
But there’s still plenty of work to do in Florida. Besides those remaining lawsuits that need to be resolved, the state still needs to bolster its non-discrimination protections, particularly for trans people. It’s still legal to fire someone for sexual orientation or gender expression in Florida. In fact, now that we’re close to winning national marriage equality, it’s likely that our opponents will start giving up on marriage, and instead focus on passing laws that make it easier for them to discriminate.
In Indiana, for example, Republican state Senator Scott Schnieder may introduce a bill this week that would allow businesses to refuse service to gay couples. And there’s an even crazier law under consideration in Texas. It was introduced by Representative Cecil Bell Jr., and it would force Texas courts to dismiss all marriage cases and exempt Texas from having to obey the U.S. Constitution when it comes to marriage for gay and lesbian couples. So, can Texas actually do that? No, obviously not. This law will probably never pass — and if by some miracle it actually did, there would be instant lawsuits to overturn it. Bell knows that, and he’s only sponsoring this bill because he also knows that someone else — taxpayers — will have to shoulder the cost of settling that litigation. If Bell was actually held personally responsible for the consequences of his own pointless laws, he would probably suddenly be a lot less eager to put them forward.
In other news this week, Idaho Governor Butch Otter asked the Supreme Court to take one more look at undoing marriage equality. A new survey from the Rand Corporation shows public support for marriage equality at an all-time high: 62 percent. A judge in Georgia has allowed a marriage case to move forward.
BREAKING UPDATE: Miami-Dade County Judge Sarah Zabel has lifted the stay on same-sex marriages n that Florida county. According to reports, marriages in the county can begin at 2PM local time.
Marriage is starting this week in Florida. So why are our opponents saying it’s not? We’ll take a look at what’s really going on, and how they’re still trying to stop the weddings. Also this week: oral argument in Louisiana could get pretty heated. Another Supreme Court conference. And some surprising polling.
After a lot of confusion, the picture’s finally clearing up in Florida. And it’s looking pretty good: last week US District Judge Robert Hinkle issued a ruling that basically boils down to two important points: his injunction doesn’t require the state’s clerks to issue marriage licenses, but the U.S. Constitution does. In other words, marriage will start on January 6th in Florida.
But amazingly, a couple of anti-gay groups are calling this a victory, still claiming that marriage shouldn’t start this week. Depending on who you listen to, they’re saying that the judge has no authority, or the marriages should only be happening in one county, or only the couples who sued can get married. If that all sounds to weird to be true, it’s probably because it isn’t true. They’re wrong. Marriage starts Tuesday of this week. Congratulations Florida.
But it doesn’t end here. There are still a bunch of Florida marriage cases waiting to be heard in both state and federal court. Although the schedule’s murky, the next ruling could be in the 11th Circuit Court of Appeals. It’s possible that the 11th Circuit could reverse Judge Hinkle’s ruling, and then marriages might have to stop. But it’s also pretty unlikely. Last month the 11th Circuit and the U.S. Supreme Court both allowed marriages to start in Florida, which is a good sign that they expect to uphold the freedom to marry.
But even if things go great, Florida could still have a bumpy transition to marriage equality. A few counties are still doing what little they can to make life difficult for LGBTs. Over a dozen offices have decided to stop conducting courthouse weddings for everyone, rather than allow them for gay and lesbian couples. You can still get your license and take it somewhere else to have a wedding. Those clerks just don’t want to have to see you getting married, which is a really nice message to send to someone on their wedding day.
There’s going to be big news on Friday of this week. First, the Supreme Court will meet to decide whether to take up a marriage case from the Sixth Circuit in its next term. We won’t know their decision right away, but we could find out next week or sometime soon thereafter. Also on Friday, the Fifth Circuit will hear oral argument in the long-awaited cases from Louisiana, Texas, and Mississippi. The three judges assigned to the panel are an interesting mix: Judge James Graves Jr is a recent Obama nominee. Judge Patrick Higginbotham is a Regan appointee but calls himself left-of-center. And Judge Jerry Smith is a super outspoken conservative. There could be some very fiery rhetoric at that oral argument.
A new survey in Nebraska shows that unlike every other state, support for marriage is pretty much unchanged over the last couple of years. From 2011 to today, attitudes really haven’t shifted statewide, with opposition hovering a bit higher than support year after year. There’s hearing in a Nebraska lawsuit at the end of this month. Higher levels of public support would be helpful to that lawsuit, so we’ll just have to see what happens.
Marriage could be coming to Florida sooner than we expected. Plus, after last week’s big win, the Mississippi lawsuit is now on the fast track to an appeal. And Kansas just lost their latest attempt to hold back the start of marriage.
A little over three months ago, a federal judge in Florida ruled that the state’s marriage ban is unconstitutional, but stayed his decision until January 5th so the state had time to appeal. Well, January 5 is coming up, and the state’s asked for an extension. This week the 11th Circuit Court of Appeals said no, the stay will expire, and marriage is going to start on the fifth.
This is a big deal for a couple of reasons. First, it indicates that the 11th Circuit probably expects that marriage is going to happen one way or another, so they might as well let it start a little early. Second, it shows that the 11th Circuit doesn’t see any harm to letting gay and lesbian couples get married. The state can still ask the U.S. Supreme Court for an extension, but their chances of getting one are not great.
Now, this ruling is limited to the stay, but the 11th Circuit will rule on the actual merits of the case early next year. So this is a promising sign that they’ll rule in favor of equality. The 11th Circuit is also likely to hear cases currently pending in Alabama and Georgia. This week’s Florida decision is also an early indication that we could get a favorable ruling in those states.
Also last week, a judge in Mississippi put that state’s case on the fast track. Similar cases in Louisiana and Texas are currently scheduled for oral argument on January 9th, and since Mississippi is in the same circuit it’s likely that it’ll join them. The Fifth Circuit also imposed a stay that will prevent marriages from starting in Mississippi until the appeal is complete.
Marriage is still in a sort of gray area in Kansas. Some counties are granting licenses and others aren’t, following a District Court ruling that halted enforcement of the state’s ban. District Attorney Derek Schmidt appealed that decision to the 10th Circuit, and asked for a full 10-judge panel. Last week, the court said no, you’ll just get a regular 3-judge panel. The 10th Circuit has already overturned marriage bans in Utah and Oklahoma, and last week’s decision indicates that all of the judges probably agree with that decision, which bodes well for a ruling in Kansas.
Well we just capped off the busiest month in marriage equality history, but it’s looking like November’s going to be just as busy. Two judges in the Sixth Circuit just ruled against equality, which sets us up for a Supreme Court ruling in the coming months. And no sooner did the Sixth Circuit uphold marriage bans than a judge in West Virginia issued a ruling of his own, explaining why they’re wrong. Plus, judges overturned marriage bans in Kansas and Missouri, with some complicated rules about who can get married and when.
There is a lot to talk about this week. But first, let’s take a quick look at how far we came in the last month. On October 6, the US Supreme Court denied cert to cases in three states, and marriage started in Utah, Oklahoma and Virginia. The next day, marriage started in Colorado and Indiana, and the Ninth Circuit overturned marriage bans in Nevada and Idaho. On October 10, marriage started in West Virginia and North Carolina. Then Arizona on October 16, and Alaska on the 17th. Marriage started in Wyoming on the 21st, the same day we had our one setback for the month when a judge in Puerto Rico upheld a marriage ban, which is now on appeal to the First Circuit. That’s 12 states. 57 million people. And it all happened in one month.
November’s already looking pretty busy too. Last week the Sixth Circuit Court of Appeals upheld marriage bans in a bunch of states. It’s a complicated and very long ruling, but the court essentially just repackaged the arguments of the anti-gay lawyers. They also ruled that courts should simply step back from marriage and let voters and politicians determine whether marriage bans are constitutional. This is obviously a weird position for a court to take, and the very next day a federal judge in West Virginia issued a contradictory ruling. Judge Robert C. Chambers upheld the overturning of West Virginia’s ban, and added that the role of the judiciary is to judge whether laws are constitutional.
The Sixth Circuit plaintiffs have already announced their plans to petition the U.S. Supreme Court for review. This the first time an appellate court has ruled in favor of a ban, which means the US Supreme Court is highly likely to take up at least one of these cases. Of course, “highly likely” doesn’t mean that they will. If the Justices really don’t want to take this case, they could deny cert and let the ruling stand, effectively allowing each circuit to set its own rules. That would leave marriage bans in place across the Sixth Circuit until they could be overturned by voters or politicians, which could take years.
But that’s just one setback. We also had several wins last week. In Kansas, a federal judge ruled that the state’s marriage ban is unconstitutional. Kansas is the last state in the Tenth Circuit without marriage. The judge’s ruling is scheduled to take effect on Tuesday of this week, but the state has asked for more time to appeal the decision. Their chances of prevailing at this point are pretty slim. Officials plan to request an en banc review from the Tenth Circuit, but The Supreme Court has already denied cert in similar Tenth Circuit cases, so they’re pretty unlikely to get a rehearing.
This week saw two separate wins in Missouri. On Wednesday, a state court ruled that Missouri’s marriage ban is unconstitutional. This is another complicated decision, and for now it only applies to couples in St. Louis. Couples in that city can marry as of now, but the rest of the state will have to wait. But maybe not much longer: on Friday, a federal judge also ruled against the ban statewide. That decision is stayed for now, pending appeal. We’re also expecting a ruling soon in South Carolina, so there’s likely to be more big marriage equality news coming any day now.
The number of states with marriage has gone up yet again this week. Only a handful of states are stil trying to defend their marriage bans, and they’re quickly running out of ways to delay their inevitable loss. A straight couple in Kansas has filed a new anti-gay lawsuit, and it’s nuts. A federal judge just ruled against the freedom to marry, but his decision has virtually no chance of being upheld. Plus, there’s a powerful new lawsuit in Mississippi.
We picked up one more marriage equality state last week: Wyoming, bringing the total to 32. Wyoming is part of the tenth circuit, where rulings in Utah and Oklahoma paved the way for marriage equality earlier this year. Wyoming Governor Matt Mead announced last week that he would end the state’s attempts to defend its marriage ban. That’s quite a turnaround from three years ago, when Mead campaigned on opposing marriage for gay and lesbian couples.
At this point, it’s clear that the freedom to marry is coming to every state, and soon. So who’s still fighting it? Well, last week Idaho Governor Butch Otter asked the Ninth Circuit Court of Appeals for another chance to defend his state’s marriage ban. You may recall the bumbling defense that Otter’s attorney, Monte Stewart, offered before the Ninth Circuit just a few weeks ago. The court is unlikely to grant Idaho’s request for an en banc hearing, and even if they did, the state has almost no chance of prevailing.
Kansas, Montana, and South Carolina are also still fighting to uphold their marriage bans. As in Idaho, their chances of success are vanishingly slim. The most unlikely arguments happening right now are in Kansas, where a straight couple wants to intervene in a marriage case because they say gay couples literally want to steal their marriage. They also claim that if gay couples can get married, then the word marriage itself might cease to exist. The court is likely to give these arguments exactly as much consideration as they deserve.
Last week Ruth Bader Ginsburg observed that so far, federal appeals courts have all been in agreement that marriage bans are unconstitutional. But there’s still a chance that could change. We’re currently awaiting decisions in the Fifth and Sixth Circuits, and just last week, a judge in Puerto Rico upheld a marriage ban. Puerto Rico is part of the United States Court of Appeals for the First Circuit, along with several New England states. That ruling now moves to appeal. Considering that every other state in the First Circuit has had marriage equality for years, it’s very unlikely that First Circuit judges will uphold Puerto Rico’s ruling.
And there’s a new federal case in Mississippi. Two couples there have sued the state for marriage recognition. Previously, the only other lawsuit in Mississippi was a divorce case. This new lawsuit is much stronger. It joins two other Fifth Circuit cases in Texas and Louisiana, both of which are a little bit further along, but Mississippi could quickly catch up to them.
We just picked up more states with the freedom to marry, and the number could continue increasing over the course of this week. But in several states, officials are blocking the start of marriage despite courts ruling against their bans. We’ll have the details on how couples are fighting back. Plus, more bad news for the National Organization for Marriage. This time it’s a ruling in Virginia that means they’ll lose out on over half a million dollars.
We picked up three new states with marriage equality last week: Idaho, Arizona, and Alaska. Weddings began in Idaho last Wednesday, following a Ninth Circuit ruling that the state’s ban was unconstitutional. A federal judge in Alaska overturned that state’s ban as well. State officials asked for a stay to prevent marriages from starting while they appeal the decision, but the US Supreme Court denied their request.
In Arizona, District Court Judge John Sedwick ruled on Friday that the state’s ban is unconstitutional. Just one day earlier, Arizona Attorney General Tom Horne admitted that the state’s marriage ban probably couldn’t withstand a legal challenge. Marriages can start in Arizona right away.
Marriage has also begun in North Carolina. That’s thanks to AFER’s Virginia case, in which two federal courts ruled against the state’s marriage ban. The most recent Virginia victory, which the US Supreme Court allowed to stand, applies to marriage bans in several neighboring states. North Carolina House Speaker Thom Tillis, who led the campaign for North Carolina’s marriage ban, is attempting to stop the weddings. But at this point chances of success are effectively zero. Tillis is up for re-election in just a few weeks.
South Carolina is also covered by AFER’s Virginia victory. Couples there filed a new lawsuit last week against state officials who have so far refused to allow marriage to start. Similarly, state officials have refused to issue licenses in Kansas, which is covered by Circuit Court rulings that overturned marriage bans in nearby Utah and Oklahoma. Last week several couples filed suit against Kansas officials.
In Wyoming, a federal court has ruled against that state’s marriage ban. The court also imposed a stay, pending appeal, but state officials have indicated that an appeal is unlikely. Couples can’t quite get married yet but they could be able to get married soon depending on what happens with that stay.
Florida officials want to accelerate marriage litigation, and have asked to skip two cases directly to the state Supreme Court for a final decision.
There’ve been more setbacks for anti-gay lawyers. In a new filing, Monte Stewart, the attorney who tried and failed to defend Idaho’s marriage ban, has suggested that the Ninth Circuit secretly assigned pro-gay judges to the case, and that the court should give him one more chance to defend the marriage ban. The court is highly unlikely to grant his request.
And the National Organization for Marriage found out last week that they won’t be getting a big payout from the government over claims that the IRS leaked their tax returns. NOM had requested more than a half million dollars in attorney’s fees. They will instead get nothing.
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