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.
Over the last week, states have been winning the freedom to marry at such a fast pace that it’s hard to keep up. AFER has conclusively won its marriage case. Cases in four other states have ended in victory. The Ninth Circuit has expanded marriage in several more states. It’s been a pretty terrible week for the National Organization for Marriage. But a pretty great one for freedom, liberty, and equality.
As the dust settles from last week’s victories, marriage has now started in a whole bunch of states, and likely to start in several more in the next few days. So let’s take a look at what’s happened so far, and what’s likely to come next.
First, the Supreme Court allowed marriage to start in five states: Virginia, Oklahoma, Utah, Indiana and Wisconsin. Marriage is legal in those states now, for good, with no chance of going away. That amounts to about 27 million more people living in states with marriage equality, the largest increase since 38 million Californians gained the freedom to marry when AFER won its case against Prop 8.
But it doesn’t stop there. We’re going to start seeing marriage in some neighboring states as well. That’s because the rulings that the Supreme Court allowed to stand were at the Circuit Court level, which covers multiple states. And in fact, that’s already begun, with marriage starting last week in Colorado and North Carolina. Officials in Kansas have also ordered a start to marriages, but other officials have ordered a stop.
The expansion of marriage equality is now happening so fast that by the time you watch this video, more states may have already gained the freedom to marry. As of this recording, marriage could also come any day now to Wyoming and South Carolina. Or it might’ve come already in the time it took me to shoot and upload this video. That’s how fast we’re winning.
There’s also the possibility that it might take several more months to get marriage in those states. It depends in large part on whether state officials are ready to end their defense of their marriage bans, or whether they want to pointlessly drag out the litigation.
Last week’s other major news was a big victory in the Ninth Circuit, which overturned marriage bans in Nevada and Idaho. Marriage has now begun in Nevada, but we’re still waiting for some details to get ironed out before it can start in Idaho. The ruling also applies to cases in Alaska, Arizona and Montana, so we could see marriage equality come to those states soon as well. If it hasn’t already by the time you watch this.
So as of this recording, 27 states now have the freedom to marry. That accounts for about 174 million Americans, or 55% of the country’s population. So what happens next? Well, there are still dozens of cases working their way through the courts. It now seems as though the Supreme Court won’t issue a sweeping national decision unless one one of those cases sees a marriage ban upheld on appeal. That could happen literally any day now. Or it might not happen for several months. or a year. Or it might never happen. The next few steps depend entirely on the cases in the remaining states.
So that means that the work of attorneys, plaintiff couples, and our allies in public office across the country will continue. And it means that all of us need to keep having conversations with family, friends, coworkers and neighbors about why equality is so important. It’s taken decades of work by millions of people to get to this point. And now, we’ve nearly won.
The Supreme Court hasn’t made a move on marriage yet. We’ll take a look at what they might be waiting for. US Attorney General Eric Holder reveals the Department of Justice’s plans to support marriage equality. We have hearings coming up in Alaska, Louisiana, and Texas. And the National Organization for Marriage makes another desperate move in Oregon.
After their first meeting of the new session, the Supreme Court has so far had nothing to say about taking up a marriage case. That means they could make a decision next week. Or next week. Or the week after. Or not for another few months. Justice Antonin Scalia told a crowd last week that they’d make a decision “soon.” But Justice Ruth Bader Ginsburg suggested that the court wouldn’t take a case until a Circuit Court upheld a marriage ban. That might not happen for months, if it happens at all.
That’s because courts have nearly unanimously found that marriage bans are unconstitutional. On Friday of last week, a state court in Missouri ordered the state to recognize the out-of-state licenses. That’s likely to be appealed.
But if a Circuit Court does uphold a marriage ban, that ruling might come from the Fifth Circuit. A District Court judge in Louisiana upheld a marriage ban last month, and now that case has been combined with a case from Texas, with briefs due in early November. Last week a group of 16 Attorneys General filed an amicus brief urging the Fifth Circuit to overturn the bans.
When and if a marriage case reaches the Supreme Court, outgoing US Attorney General Eric Holder confirmed that the Department of Justice will likely get involved. In 2013’s marriage cases, the DOJ filed a brief comparing marriage bans to discrimination based on gender or race. Holder called marriage equality “the civil rights issue of the day.”
A lawsuit is also moving forward in Alaska. Last week the state asked a Federal District Court to uphold its marriage ban. There’s nothing particularly novel about the state’s arguments, which boil down to the same claims about tradition that have failed over and over. Oral arguments are slated for Friday, the 10th, and should go pretty poorly for the state.
A new survey in Utah shows public support looking just okay. It’s continuing to climb, but a bit slower than the rest of the country. The good news is that 94% of married residents say that marriage equality would have little or no impact on their own marriages.
The National Organization for Marriage still hasn’t given up in Oregon. Now they’re trying to prove that the state conspired with gay couples to overturn the state’s marriage ban. NOM’s chances of prevailing in Oregon grow slimmer and slimmer, and this latest longshot is just a reminder that the organization really hasn’t accomplished anything in a long long time.
There’s trouble brewing in Louisiana, where two judges have issued opposite rulings over the state’s marriage ban. A ruling could come any day now in Missouri. And we have new Census numbers on how many couples have actually taken advantage of marriage equality.
This is the week when the Supreme Court meets to decide whether to take a marriage case. After meeting in conference on Monday, the Justices will announce their decision next week, on October 6th. Currently, cases from Virginia, Indiana, Wyoming, Utah and Oklahoma are ready for consideration. The court could take one case, or several, or none at all.
Less than a month ago, a federal judge in Louisiana was the first to uphold a marriage ban since the Supreme Court invalidated DOMA. Now a state judge has issued an opposite ruling in a different case, finding that the ban is unconstitutional. Judge Edward Rubin also compared the ban to Louisiana’s racist “separate but equal” laws that The Supreme Court upheld in Plessy v. Ferguson. Louisiana Attorney General Buddy Caldwell has already filed an appeal.
The next ruling in Louisiana could come as early as November. A federal court has consolidated Louisiana’s federal case with a case from Texas, with a final brief due on November 7th. Or the next big marriage decision could come from Missouri. A judge there heard arguments on Friday that the state’s marriage ban is unconstitutional. The state countered that they should be allowed to limit marriage if they want to. The judge could rule in the Missouri case any day now.
Two new national polls show support for marriage equality continues to outstrip opposition. A survey from CBS and The New York Times places support at 56% to 37%. This is the lowest level of opposition ever recorded by this poll. But a Pew survey puts the numbers much closer, at 49 to 41 percent. This doesn’t mean that support is actually dropping — it’s just one survey. And if you look at every national survey together, support is still heading up into the high fifties.
Finally this week, a new report from the Census Bureau shows that over a quarter million gay and lesbian couples have married since 2004. That’s roughly equivalent to the entire population of Wyoming.
Equality on Trial's Case Timeline is the go-to place to find thorough, up-to-date information on the myriad of marriage equality lawsuits taking place across the US.
Welcome to Equality on Trial!
Got suggestions? Questions? Notice bugs? Email us here.
Connect With Us
Want to submit a guest piece for publication on Equality On Trial? Submit your piece with your byline, title and any appropriate links (and HTML if possible) to: equalityontrial [at] couragecampaign [dot] org.