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.
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.
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