A surprising reveal this week from Supreme Court Justice Ruth Bader Ginsberg about the court’s plans for taking up a marriage case — or maybe not taking up any. An Arkansas clerk breaks ranks with top state officials, declaring for the first time that the state’s marriage ban is unconstitutional. Plus: numerous states freeze their marriage lawsuits while they wait for a Supreme Court ruling.
Justice Ginsberg has hinted that the Supreme Court might not be ready to take a marriage case yet. In a Q&A last week, she observed that the cases before the court so far are generally all in agreement that marriage bans are unconstitutional. As a result, she said, the justices may wait for a ruling that upholds a marriage ban, so that they’ll have a stronger dispute to settle. If they do decide to wait, a key ruling could come soon from the Sixth Circuit. Judges there could rule any day now on cases in Kentucky, Michigan, Ohio and Tennessee. It’s anyone’s guess how the Sixth Circuit will rule.
In the mean time, more and more states are lining up to wait for a Supreme Court decision. Last week the Tenth Circuit paused a case in Colorado until there’s a final decision in neighboring Utah and Oklahoma. A judge in West Virginia halted a lawsuit there, pending an outcome in AFER Virginia case. Wisconsin and Indiana are also awaiting a Supreme Court ruling, and judges in those states ruled last week that that marriages cannot begin until the Supreme Court issues a decision in those cases.
But other lawsuits are still moving ahead. Couples in Wisconsin have filed a new suit, seeking recognition of licenses that the state issued during a brief window when marriages were allowed. Florida Attorney General Pam Bondi has filed appeals of four recent rulings that overturned marriage bans. And Arkansas state officials have filed a new brief, appealing a decision by a lower court that the state’s marriage ban is unconstitutional. But in an unusual move, Pulaski County Clerk Larry Crane has filed a brief of his own, adopting an opposite position. Even though Crane is one of the named defendants in the case, his new brief argues that the court should rule in the plaintiff’s favor and overturn the ban.
A new survey from Elon University shows support for marriage continues to climb in North Carolina. Public opinion is roughly tied, with support at 45 percent to 43 percent opposed. And three new studies from the Williams Institute show the economic benefit of marriage equality: in Georgia, it would add $78.8 million to the state economy. In Missouri, $36 million. And in Wyoming, $2.4 million.
The number of marriage cases before the Supreme Court keeps climbing, with the Court scheduled to decide which ones to take in just a few weeks. Plus, couples file new briefs in Texas, and appeal last week’s anti-gay ruling from a federal judge in Louisiana.
We now know that the Supreme Court will consider taking up marriage equality cases from five different states at their very first conference of the news session on September 29th. Those cases will include AFER’s Virginia suit, as well as cases in Oklahoma, Utah, Wisconsin and Indiana. The court could accept one of those cases, or several, or none. Or they could simply choose to defer a decision until later.
Each case poses slightly different questions, but most generally center around three questions: whether states are required to issue licenses to gay and lesbian couples, whether they’re required to recognize licenses issued by other states, and what standard of review courts should use in cases pertaining to LGBT discrimination. Obviously, each of those issues will have a major national impact when the Supreme Court ultimately rules.
And before long, there could be three more cases headed to the Supreme Court. The Ninth Circuit Court of Appeals heard oral argument last week in cases from Nevada, Hawaii and Idaho. The judges appeared skeptical of marriage bans, and could issue a ruling any day now. We’re also awaiting a ruling in the Sixth Circuit, which would add six more cases to the docket, bringing the total to fourteen.
The National Organization for Marriage has so far kept quiet on those Supreme Court cases. But they are still trying to stop marriage in Oregon, even after being shut out of litigation there repeatedly over the last few months. Last month the Ninth Circuit ruled that the group is not qualified to challenge marriage equality in Oregon, but now NOM has requested a review of that decision before a larger panel of judges. Their chances of prevailing at this point are extremely slim.
The plaintiffs in a Texas case have filed briefs before the Fifth Circuit. A lower court ruled last February that the state’s marriage ban is unconstitutional, but Attorney General Greg Abbott appealed that decision. Also in the Fifth Circuit, plaintiffs have a appealed a ruling by a Louisiana judge that upheld a marriage ban. The Fifth Circuit hasn’t scheduled oral argument yet, and may simply wait until the Supreme Court issues a decision.
And congratulations to Stuart Delery, one of the lawyers at the Department of Justice whose work was instrumental in the government’s case against the Defense of Marriage Act. Last week Delery was named Associate Attorney General, the third-highest position at the Department of Justice. He is now the highest-ranking openly gay official in the DOJ’s history.
Anti-gay attorneys took a beating before the Seventh Circuit last week, trying and failing to defend marriage bans before a panel of hostile judges. Now all eyes are on the Supreme Court to see which cases they’ll take up in their fall session. There’s another major marriage argument coming up in a few days. And the National Organization for Marriage still isn’t giving up in Oregon, despite having lost months ago.
It was a rough day in court for opponents of marriage equality. Judges at the Seventh Circuit Court of Appeals directed intensely skeptical questions to lawyers defending marriage bans for Wisconsin and Indiana. At one point, Reagan-appointed Judge Richard Posner called the arguments against equality “ridiculous,” “pathetic” and “absurd.”
Following those arguments, the next major legal milestone is next Monday, on September 8th. The Ninth Circuit Court of Appeals will hear arguments from three states: Nevada, Idaho and Hawaii.
A ruling from the Seventh Circuit could come at any time, and the Ninth Circuit could rule soon as well. From there the parties could petition the US Supreme Court.
Three states have already begun the process of petitioning the Supreme Court. Utah, Virginia and Oklahoma will all have marriage cases before the court when the justices return from vacation on September 29. There’s no telling when the justices will decide which cases to take, or which cases they’ll hear.
Some courts are handling that vague timeline by simply putting marriage litigation on hold. A North Carolina court has paused litigation there, pending a final ruling in AFER’s Virginia case, which is in the same circuit. But a Florida court has rejected an attempt by Attorney General Pam Bondi to halt marriage lawsuits, which means multiple cases will proceed both in state and federal court.
Also last week, the National Organization for Marriage suffered yet another setback. The Ninth Circuit Court of Appeals upheld a decision that the organization has no standing to defend Oregon’s marriage ban, which was overturned last May. NOM had continued their litigation despite being shut out of the case by a lower court. Now that they’ve lost yet another appeal, they could ask the Ninth Circuit to reconsider, or petition the US Supreme Court for review.
The anti-gay Governor of Indiana just got caught making some wild claims in court, and now a judge has called him out in a sternly-worded ruling. Marriage equality has picked up another victory, with the first federal judge to rule in Florida. There’s a new case in Arizona, with an elderly couple about to lose their home; couples are fighting back against stalling tactics in Arkansas; and two major oral arguments are coming up in the next few days.
We were just days away from the start of marriage in Virginia last week, with AFER’s latest victory about to go into effect. But then the US Supreme Court stepped in and imposed a stay, so couples can’t get married — yet. Virginia Attorney General Mark Herring has already petitioned the Supreme Court to review the case, so we’re likely to have a final decision in the next few months.
While we await the Supreme Court’s next move, several more federal courts have affirmed the freedom to marry. In Florida, Judge Robert Hinkle has found the state’s marriage ban unconstitutional, citing AFER’s Virginia case as precedent. A new study from the Williams Institute shows that marriage equality would add $182 million to Florida’s economy.
And in Indiana, US District Court Judge Richard L. Young has ruled that the state must recognize out of state licenses, though the decision is stayed pending appeal. Young also had harsh words for anti-gay Governor Mike Pence, who tried to remove himself from the marriage litigation by claiming that he has no jurisdiction over marriage. Judge Young initially believed Pence, but then discovered that the Governor was directing state officials to ignore marriage licenses issued to gay and lesbian couples. In his latest ruling, Judge Young called Pence’s claims a “bold misrepresentation” and “at a minimum, troubling.”
Attorneys for the state of Utah have asked the Tenth Circuit for an extra month to file briefs in Evans v. Utah. That case concerns the validity of marriages conducted while marriage was briefly legal in Utah. The current deadline for briefs is September 22nd. A new survey shows support for marriage is continuing to climb in Utah, but remains low at around 30 percent.
Couples in Arkansas are fighting back against the state’s attempt to delay a ruling on marriage equality. A state court overturned the Arkansas marriage ban in May, and the state has asked for the litigation to be paused until the US Supreme Court can rule.
There’s a new case in Arizona, filed by an elderly couple facing a terminal illness. George Martinez and Fred McQuire have been together for 45 years, but without the protection of marriage, could soon lose their home.
And watch for major marriage news this Tuesday. The Seventh Circuit Court of Appeals will hear argument in several cases from Indiana and Wisconsin. There’s also a hearing coming up on September 8th, covering cases in Hawaii, Idaho, and Nevada.
Major news in Virginia this week, where the Fourth Circuit has refused to delay marriage equality for any longer. Now anti-gay defendants have asked the US Supreme Court to step in at the last minute. A judge in Tennessee has upheld that state’s marriage ban, on the basis of outdated arguments regarding procreation. And over a dozen couples successfully register marriage licenses in Mississippi during a coordinated day of action.
Marriage equality may be coming to the state of Virginia this week, following a string of victories for AFER’s attorneys and plaintiff couples. Earlier this year, a federal district court ruled that the state’s marriage ban is unconstitutional. An panel of judges upheld that decision last month, and that ruling is due to go into effect this week. The Virginia clerk defending the ban asked the US Supreme Court to halt the marriages for now, but so far the court hasn’t responded to the request. So for now, couples are preparing for the possibility that marriages could begin Wednesday morning — or, alternately, not until the Supreme Court makes a decision sometime in the next few months.
There’s been a setback in Tennessee. County Circuit Judge Russel E Simmons Jr is the first judge in over a year to uphold a state’s ban on marriage. His ruling relies on discredited arguments about procreation. He also cites the 1972 Baker v. Nelson decision, which numerous other courts have now ruled is no longer controlling. This decision will almost certainly be appealed. But it has value in that it shows some difference of opinion on the issue of marriage, which only increases the urgency for the US Supreme Court to weigh in.
Over a dozen couples attempted to record marriage licenses across Mississippi on Wednesday of last week. The effort was part of a day of action by the Campaign for Southern Equality. Thirteen couples were allowed to register their out-of-state licenses at various clerk’s offices, while four were turned away.
Plaintiffs in North Carolina filed a new brief last week, asking a federal judge to rule swiftly in their lawsuit against the state’s ban. The case is currently awaiting judgment from a District Court Judge, and state Attorney Roy Cooper recently announced he would no longer defend the ban in court.
And finally this week, a new poll from McClatchy-Marist shows public support for marriage continues to rise. The survey shows support at 54 percent to 38 percent opposed.
The situation in North Carolina, Virginia, and numerous other states is likely to develop quickly over the next few weeks. Subscribe here on YouTube to stay up to date on all those cases. For the American Foundation for Equal Rights, I’m Matt Baume. Thanks for watching and we’ll see you next week.
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