Marriage could be starting next week in Alabama. Anti-gay officials are saying that they don’t have to let gay couples get married, but their reasoning isn’t exactly what you would call true. Oklahoma’s marriage equality backlash is getting dangerous, with a proposed law that would hand new victims to ex-gay predators. And the National Organization for Marriage thinks they’ll have an impact on the 2016 presidential election.
There’s less than one week left until a stay expires in Alabama, at which point couples could be allowed to start getting married. The state has asked the 11th Circuit for a longer stay while they appeal, and the court could rule on that request sometime this week. They denied a similar request from Florida, but the Alabama case is a little different.
One of those differences is how creatively anti-gay officials have been fighting gay and lesbian couples. Last week Supreme Court Chief Justice Roy Moore released a statement that he plans to defy any pro-equality ruling. Moore was removed from office in 2003 for violating the U.S. Constitution with a ten-commandments statue. But he was reinstated by voters in 2012. Now he says that the federal courts can’t tell state courts what to do.
Mike Huckabee is making similar claims. Last week he started talking about overriding pro-equality rulings through a process known as nullification, whereby a state nullifies any federal law or ruling that it doesn’t like. That sounds fine, except it isn’t really a thing. Nullification has been floated as a theory for over 200 years, most recently as a way to maintain segregated schools, but it’s never been upheld. The law’s totally clear: when it comes to the U.S. Constitution, federal courts are in charge. Huckabee and Moore know this, and they don’t seriously believe their claims can pass constitutional muster. These are just more tactics to try to intimidate gay and lesbian couples.
In the mean time, two cases in Alabama are moving forward. The state has appealed the a pro-equality ruling from two weeks ago. And now a judge has ruled in a second case that the state’s marriage ban is unconstitutional. Meanwhile, Alabama’s only openly gay legislator, Representative Patricia Todd, has said that if elected officials continue to speak out against marriage equality, she’ll reveal which ones of them are having extramarital affairs. It’s hard to say whether that would be a good move or a bad move. It sure would drive a wedge even deeper between the two sides. But it’s also a handy reminder that while their side can engage in intimidation tactics, our side can too.
Speaking of intimidation, Oklahoma state Rep Sally Kern has withdrawn a bill that would have allowed businesses to punish gay and lesbian couples by preventing them from receiving services. In part, that’s because there are multiple other bills already in the works that would do the same thing. But Kern is continuing to promote something much worse: a bill that would give “ex-gay” predators access to more victims. Numerous states have banned ex-gay abuse, but Kern’s bill would be the first to protect it. Not only has every major medical organization in the country warned that these practices are harmful, we’ve seen that much of this so-called “therapy” is actually just sexual assault, sometimes of children. Kern’s bill would not only protect these predators, it would deliver new victims to them.
This won’t be the last we see of that anti-gay backlash to marriage equality. Cases are continuing to move ahead in multiple states. Just in the last week, lawsuits have advanced in Puerto Rico, Nebraska, Kansas, and Louisiana. And the National Organization for Marriage managed to get some attention momentarily when they announced that they’ll ask the 2016 presidential candidates to sign a pledge to oppose the freedom to marry. They were able to get a handful of signatures in 2012, but with the group’s ever-dwindling clout, they may have more trouble getting an audience with serious candidates this time around. That is, if the organization even still exists by this time next year.
There’s a big fight underway right now in Alabama, with a Judge overturning a marriage ban and state officials refusing to obey his order to issue licenses. Anti-gay politicians are threatening to ban all marriage licenses if the Supreme Court rules in favor of equality. And one lawmaker even wants to send clerks to jail if they issue licenses to anyone — gay or straight.
Late on Friday, a Federal judge in Alabama ruled that the state’s marriage ban is unconstitutional, and that the state must begin issuing licenses right away. Attorney General Luther Strange didn’t care for that, and has asked for an indefinite stay. Meanwhile, a state association of judges has advised their members that they can just disregard the ruling. This is almost certainly dead wrong, and I’ll talk about why in a minute. But as of this week, gay and lesbian couples are attempting to obtain marriage licenses in Alabama, so expect a tense standoff to play out over the next few days.
It’s worth pointing out that last week President Obama made history by endorsing marriage equality in the State of the Union, saying that gay and lesbian couples getting married represents “America at its best.” The last time anyone talked about marriage in a State of the Union was George W. Bush, calling for a federal constitutional ban, so this is a little better.
It makes good political sense to endorse marriage equality right now, because a new survey from Zogby shows that by 5 percentage points, voters are now less likely to vote for a candidate who opposes the freedom to marry. This puts some anti-equality Republicans in a tough spot. They can either admit they were wrong, and come out for marriage. Or they can double-down and get even more anti-gay.
That’s what Mike Huckabee did last week. He said that if the Supreme Court rules in favor of equality, states don’t have to obey the decision, and could still refuse to provide licenses. Obviously, that’s not true at all, thanks to a litte-known document called the U.S. Constitution. Maybe Huckabee has just never read it as far as Article 6, which says “The Laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby.” In fact, Huckabee’s argument is identical to the one used in 1957 by another Arkansas Governor, Orval Faubus. He said the state didn’t have to abide by the school desegregation ordered in Brown v. Board of Education, and President Eisenhauer had to send the National Guard to force him to comply. So Huckabee’s great company here.
In fact, in 1958, Governor Faubus closed all Little Rock high schools for a year, for white and black students, so they wouldn’t have to be integrated. And now, that’s exactly the same strategy that anti-gay officials are pursuing with marriage. In Florida, several counties have canceled all courthouse weddings, for straight and gay couples. A South Carolina bill would revoke the salary government employees who allow a gay or lesbian couple to marry. And a crazy proposal by Representative Todd Russ in Oklahoma would prohibit state officials from issuing marriage licenses altogether. Under his proposal, state officials who issue a marriage license to any couple, gay or straight, would go to jail for up to a year.
Obviously, judges refusing to obey federal rulings, and ludicrous bills Oklahoma’s have no chance of passing constitutional muster. But they don’t have to — they’re not supposed to pass, their only purpose is to intimidate. To let us know we’re not welcome. Huckabee and Ross and officials like them are on the same page as segregationists like Orval Faubus. And that’s how history will remember them. By the way Faubus ran for governor again, 30 years later, but he was defeated by a kid named Bill Clinton.
Florida has finally legalized driving while gay. Bills to discriminate against gay couples are rapidly multiplying in Texas. And multiple states are still wasting hundreds of thousands of dollars to try to reverse marriage equality.
Last fall, Scott and Daniel Wall-DeSousa got new driver’s licenses after they married in New York and hyphenated their name. But the state of Florida said that it wouldn’t recognize their new names — even though it was a legal name change — and canceled the licenses, which effectively meant that they couldn’t drive. But now that couples can marry in Florida, the Wall-DeSousas finally have their new licenses. So, there you go, Florida, you wasted everyone’s time and accomplished nothing, congratulations.
Last week I reported on a proposed bill in Texas that would force state officials to disobey federal courts that uphold marriage equality. Now Texas has two more proposed anti-gay laws. One would give businesses permission to deny service to LGBTs. The other would prevent towns from passing nondiscrimination laws, and overturn any laws that already exist. Anti-gay activists know that they’re about to lose on marriage, and so this is going to be their response: passing laws that let them take away our jobs, or our homes, our access to education and basic services. A proposed bill in Virginia would even let hospitals turn away gay patients. We’re going to see a lot more of these in the next year, as a form of dangerous, petty backlash against marriage equality.
Of course, there’s still one big wild card when it comes to national marriage equality: the Supreme Court. Late last week they announced that they’ll take up four marriage cases. We’ll probably see oral argument in late April, and a decision around the end of June. There’s no way to know how they’ll rule. If it’s in our favor, great — we’ll have national marriage equality this year. If they rule against us, then that means several more years of work to overturn the last few marriage bans.
But in the mean time, we keep racking up victories at lower courts. A South Dakota judge has ruled against that state’s marriage ban. A judge in Michigan ruled last week that the state must honor the 300 licenses that it issued during a one-day window last year. A judge in Kentucky has granted the state’s first divorce for a gay couples, which is a little depressing but that’s just how it goes sometimes. And the Ninth Circuit Court of Appeals has refused to reconsider marriage cases in Idaho and Nevada, despite the continuing attempts by state officials to halt marriages.
Those Idaho and Nevada cases should have been over long ago. And by dragging them out this long, the states are running up huge legal bills. The current tally in Idaho is now close to a half million dollars — that means they’ve blown about a quarter of the state’s entire budget for Constitutional defense cases. And they’re not the only state wasting hundreds of thousands on marriage litigation. The legal bill in Wisconsin could top $1.2 million. In West Virginia, parties have run up $350,000 in fees. Oregon and Alaska are both $260,000 apiece.
And just like in Florida, these states are accomplishing nothing, other than making work for lawyers. At this point, anti-gay legislators seem to be mostly focused on just making life inconvenient for gay couples, whether it’s by delaying the start of marriage, removing other legal protections, or creating areas where we can’t do business. That’s their reaction to marriage equality — if they can’t stop us from getting married, they’re just going to annoy us instead. Well, it’s working. They’re annoying. Good job.
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.
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