Florida clerks can start issuing marriage licenses to gay couples in January — but if they do, they could risk arrest and jail time. An anti-gay group in Hawaii is still trying — and failing — to stop marriages. And things are still looking bad for the National Organization for Marriage.
Marriage is supposed to start in Florida on January 6th, but that doesn’t mean it will. Back in August, a federal judge ruled against the state’s marriage ban, and after months of waiting, his ruling is scheduled to finally go into effect on January 6. Florida Attorney General Pam Bondi asked the US Supreme Court for another delay, but on Friday they said no, the marriages can go ahead.
The situation is complicated because as of January 6th, the ban will be officially unconstitutional, but also still on the books. Florida’s marriage ban includes some really steep penalties, and clerks who obey the judge’s ruling and issue a license could be arrested, and thrown in jail for a year. It would be crazy if that actually happened, but all it would take is a clerk willing to test the law, and a prosecutor willing test it back at them. We don’t know if that’ll going to happen, and we might not find out until the stay expires in January.
In the mean time, a judge in Florida has granted the state’s first divorce request from a lesbian couple. The U.S. Supreme Court is planning to consider whether to take up a marriage case from Louisiana at their next conference on January 9th. And anti-gay politicians in Hawaii have asked the state Supreme Court to overturn the state’s marriage equality law. This is a desperate lawsuit, and they have virtually no chance of stopping marriage at this point, but hey, it’s their life.
And finally, with all this marriage stuff going on, you might think that the National Organization for Marriage might want to get involved somehow. But no, they’re nowhere to be found in any of those states. Instead, the one thing that they DID do last week, aside from sending out fundraising emails, is file an appeal in a tax case that they already lost once. And that case has nothing to do with marriage, it’s just an argument with the IRS. At this point, all NOM does is fundraise to pay for lawsuits about fundraising. And they can’t even win those lawsuits.
South Carolina’s anti-gay Attorney General may have to pay tens of thousands of dollars to gay rights groups. New research shows why marriage equality has been so successful so fast. And Hillary Clinton gets thanks for supporting the freedom to marry from an unlikely source.
Marriage is here to stay in South Carolina, but Attorney General Alan Wilson seems to be having a hard time accepting it. Even though South Carolina couples have been getting married since last month, Wilson has continued his losing battle to stop the weddings. But the longer he drags out his appeal, the more money he may wind up having to give to a coalition of gay rights groups.
That’s because the coalition has filed a petition seeking to recoup the money that they’ve had to spend to keep marriage legal. If the court grants their request, Wilson will have to give over $150,000 to organizations fighting for equality. Wilson really has no chance of stopping marriage at this point. He’s appealing to the Fourth Circuit, which has repeatedly allowed marriages to go forward. So all he’s doing now is running up a huge tab.
And the same thing’s happening Arkansas. Outgoing Governor Mike Beebe and incoming Governor Asa Hutchinson both say they oppose marriage equality. Last week Beebe went even further, telling supporters that he might be willing to consider limited civil unions. That might’ve been an okay position twenty years ago. But civil unions are a compromise, and at this point we’re so close to winning we don’t have to compromise anymore.
In fact, there’s a new study this week that shows why we’re so close to winning. And no surprise, it’s what Harvey Milk said back in the ’70s: you have to come out. The new study in the journal Science shows that when door-to-door canvassers come out, and talk about wanting to get married, voters’ minds change — and stay changed. If we don’t come out, their minds change back after less than a week. So that’s why coming out is so important, and why those anti-gay politicians are going to lose.
And finally this week, congratulations to Hillary Clinton, who came out in favor of marriage equality last year and has now won the “Straight Ally of the Year” award, as decided by users of Grindr.
More victories this week in some very conservative states. We’re now closer than ever to the start of marriage in Arkansas and Mississippi. Florida is refusing to issue drivers’ licenses to a couple after they married and changed their last name. And support for marriage has skyrocketed in Wyoming.
This week’s big wins were in Arkansas and Mississippi. In both states, Federal District Court judges ruled that marriage bans are unconstitutional. But they also imposed a stay on their decisions so that the states will have time to appeal. Both of those appeals are going to be a little complicated. The Arkansas case will go to the Eighth Circuit, but there’s also a separate marriage case before the Arkansas Supreme Court right now. They could rule at any time, and it’s hard to say how that decision would affect the federal case.
In Mississippi, the case will go to the Fifth Circuit. Oral argument is already scheduled for early January in the Fifth Circuit for cases in Louisiana and Texas. So if the state moves fast, the Mississippi case might join them. Attorney General Jim Hood and Governor Phil Bryant have already filed a notice of appeal.
There’s a new lawsuit in Florida. The state cancelled the drivers’ licenses of a gay couple after they married in New York and hyphenated their last name. Even though it’s their new legal name, the state of Florida is refusing to recognize it, so they’ve sued. Over in Wyoming, a new survey shows support for marriage equality is up to 53% to 39% opposed. That’s a big jump from ten years ago, when support was just 24%. And in Michigan, Attorney General Bill Schuette has asked the Supreme Court not to take up a marriage case, and allow the state’s marriage ban to remain in place. The Supreme Court could make a decision about whether to hear the Michigan case any day now.
We picked up three states with marriage this week. But in one of those states, some clerks are refusing to issue licenses. Alabama’s attorneys are using a discredited anti-gay researcher to build a case for banning marriage. And we have more bad news for what’s left of the National Organization for Marriage.
We’ve added two or maybe three states to the marriage equality map this week: Montana, South Carolina, and sort of Kansas. Let’s start with Montana, where a District Court Judge ordered the state to start issuing marriage licenses this week. Montana is the last state in the Ninth Circuit to get the freedom to marry. Attorney General Tim Fox will appeal the ruling, but he’s not seeking a stay, probably because he knows there’s no point, since the Ninth Circuit will definitely uphold this decision, and the Supreme Court won’t review it. Marriage is here to stay in Montana.
And marriages have also started in South Carolina. That’s the last state in the Fourth Circuit to get marriage. Attorney General Alan Wilson had asked the Supreme Court to block marriage, pending an appeal, but they declined. Wilson’s appeal will still go to the Fourth Circuit, but they’ve already overturned marriage bans in neighboring states, so just like in Montana, marriage is there to stay.
Now on to Kansas. This is a tricky one. A District Court judge struck down the state’s ban, and the stay on the ruling expired at the end of last week. Some counties have started issuing marriage licenses. But others haven’t. And state agencies are refusing to honor the licenses that have been issued, since Governor Brownback is appealing the decision. Kansas is in the Tenth Circuit, where the every other court has overturned marriage bans, so they have virtually no chance of stopping marriage. Governor Brownback will lose his appeal, it’s just hard to say when.
A lawsuit in South Dakota is moving ahead. A federal judge there rejected the state’s claim that the 1972 case Baker v. Nelson prevents a federal ruling. Just a few weeks ago, the Sixth Circuit cited Baker as justification for upholding a marriage ban, so it’s a promising sign that the South Dakota judge rejected that argument.
Florida attorney general Pam Bondi has filed appeals in multiple cases to try to stop marriage. Her chances of prevailing are not great. But for now, marriage is still on hold in Florida. In Louisiana, gay couples have asked to skip the Fifth Circuit and go right to the Supreme Court for a ruling. And over in Alabama, the state has cited the work of Mark Regnerus in its latest brief. Regnerus is the author of a discredited study on gay parenting, which a federal Judge in Michigan called “entirely unbelievable and not worthy of serious consideration.” So, good luck with that, Alabama.
And finally, the National Organization for Marriage is not doing well. New tax filings show donations dropped over 50% in 2013, with the group ending the year $2.5 million in debt. NOM has faced large fines over the last year due to campaign finance violations, and donations have dropped sharply since the organization really hasn’t had a major victory in several years.
The future of Florida’s marriage ban is hanging in the balance, with a big ruling that could allow marriage to start any day now. Anti-gay groups are still spending tons of money in multiple states, but they’re not getting much out of it. And there’s an election this week could determine the future of marriage in multiple southwestern states.
A Florida court has put the brakes on several marriage lawsuits, which means we may have to wait months for the next step in the cases. Attorney General Pam Bondi had asked to skip directly to the State Supreme Court for a decision, but the Third District Court of Appeals has now denied her request, which means more delays. Meanwhile, a stay remains in effect in Florida that prevents couples from marrying. This week attorneys for gay and lesbian couples asked a US District Judge to lift the stay. We could have a decision on that request any day now.
It’s been two weeks since marriage was legalized in Arizona, and by now every county in the state has issued at least one marriage license to a gay or lesbian couple. But there’s still a large area of Arizona where LGBTs can’t marry: the Navajo Nation. Marriage equality is banned there, but that could soon change. Navajo Nation presidential candidate Joe Shirley Jr. has supported a repeal of that ban in the past. He faces a vote this Tuesday, November 4th.
Opponents of equality continue to waste huge amounts of money. The state of Idaho revealed this week that Governor Butch Otter has committed an additional $10,000 to continue marriage litigation. That’s on top of $71,000 that taxpayers have had to put up so far. And the National Organization for Marriage is spending $117,000 in North Carolina to support the election effort of Thom Tillis. He was one of the main backers of the state’s marriage ban that was overturned last month. Even if Tillis wins the election, he probably can’t stop the marriages at this point, so it’s hard to say what exactly NOM is hoping to accomplish.
And mark your calendars: we have some new upcoming court dates. On November 20th, Arkansas’s Supreme Court will hear oral argument in one case, and federal court will hear argument in another. And the Fifth Circuit has set a date of January 5 for hearings in two crucial cases from Texas and Louisiana. The Louisiana case is one of the only lawsuits with a ruling that upheld a marriage ban. If the appeals court agrees with that ruling, there’s a strong likelihood the US Supreme Court will take up the case.
A massive victory for equality in Wisconsin and Indiana, with one of the most strongly-worded decisions yet. A judge in Louisiana has ruled against marriage equality, but there are some problems with his ruling. There are major oral arguments this week in multiple states, and more cases move closer to consideration by the US Supreme Court.
It’s no surprise that the Seventh Circuit has ruled strongly in favor of the freedom to marry in Wisconsin and Indiana. Just two weeks ago, a three-judge panel directed intense skepticism toward the attorneys defending the state bans. The court’s unanimous decision points out that preventing gay and lesbian couples from marrying is harmful to their children, and does nothing to encourage healthy heterosexual marriages. The court also ruled that tradition alone cannot justify a discriminatory law.
It’s unlikely that marriages will start any time soon in the Seventh Circuit. Indiana has requested a stay to prevent marriages while the state considers its options for a rehearing. They could ask the court to reconsider the case with a larger panel. Or they could petition the Supreme Court, a process that could take several weeks. So far, Utah, Oklahoma and Virginia are the only three states fully ready for the Supreme Court to consider for review.
But that could change over the next few months. The Ninth Circuit Court of Appeals is currently considering cases in Nevada, Idaho and Hawaii, with oral argument on Monday of this week. Once the Ninth Circuit rules, parties could petition the US Supreme Court.
District Court Judge Martin Feldman has become the first federal judge to uphold a marriage ban since the Supreme Court overturned Windsor. That’s a setback, but the ruling is so riddled with strange conclusions and outright errors that Feldman could not have written a more reversible decision if he tried. In his ruling, Judge Feldman misstates the content of the Fourteenth Amendment, and inaccurately describes standards of review. The plaintiffs have already announced their intention to appeal.
Florida officials have appealed a federal decision that the state’s marriage ban is unconstitutional. They had previously attempted to put the litigation on hold, pending a decision from the US Supreme Court. A new survey in Florida shows support for the ban at 46% and opposition at 45%. And one of the plaintiffs in an Arizona case has passed away. His husband has amended his lawsuit against the state, requesting a death certificate that accurately reflects their California marriage.
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.