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Archives – June, 2013

BREAKING: Ninth Circuit lifts stay, allows marriage equality to resume in California

By Jacob Combs

Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation
Plaintiffs in the Prop 8 case. Attribution: LGBTQ Nation

Huge news: the Ninth Circuit Court of Appeals has just lifted the stay on Judge Vaughn Walker’s district court ruling striking down Proposition 8 as unconstitutional. More from the Los Angeles Times:

The U.S. 9th Circuit Court of Appeals on Friday cleared the way for gay marriages to resume in California.

The court lifted its stay on an injunction which ordered state officials to stop enforcing Proposition 8. With the court’s action, counties can now begin issuing same-sex marriage licenses.

A spokesman for the U.S. 9th Circuit Court of Appeals had originally said it would takes the court at least 25 days to act after a Supreme Court ruling. Immediately afterward, Gov. Jerry Brown ordered his public health agency to advise the state’s counties to “begin issuing marriage licenses to same-sex couples in California as soon as the 9th Circuit confirms the stay is lifted.”

The brief order, which you can find here, reads:

The stay in the above matter is dissolved effective immediately.

Marriages can resume in California right away. The Clerk of the Supreme Court had earlier issued an order saying their mandate would not issue for 25 days, but the Ninth Circuit was able to lift the stay of the district court’s mandate without waiting for Supreme Court action.

This is a developing story, and we will have more as events unfold.

h/t Kathleen Perrin for these filings

Ninth Circuit order:

Prop 8: 9th Circuit Stay Lifted by EqualityCaseFiles

5 Comments June 28, 2013

Post-SCOTUS, marriage equality advocates look ahead to next steps

San Francisco City Hall
Monica M. Davey/EPA

By Jacob Combs

After this week’s Supreme Court decisions striking down DOMA and restoring marriage equality to California, LGBT advocates are looking ahead–and moving swiftly–to continue the push for equal marriage rights nationwide.

The New York Times has a good overview today on the future of the movement, noting that–given the Supreme Court’s decision not to rule on the constitutionality of California’s marriage equality ban itself–the battle for equal marriage rights will likely take place on the state level for the foreseeable future.

Yesterday, the ACLU announced that it was hiring Steve Schmidt, a Republican strategist who worked on John McCain’s 2008 presidential campaign, to spearhead a $10 million campaign over the next four years to pursue marriage equality in states like Illinois, Oregon, Hawaii, New Mexico and others.

In Pennsylvania, out gay state Rep. Brian Sims plans to introduce a marriage equality bill in the state legislature, saying that the Supreme Court rulings “helped light the fire under my colleagues to do it now.”  Pennsylvania lacks other legal protections for LGBT individuals.

In Arkansas, the LGBT rights group Arkansans for Equality yesterday submitted language for a proposed ballot initiative that will repeal the state’s 2004 constitutional amendment against marriage equality.  The initiative would go before voters during the 2014 election, although another measure (perhaps in 2016) would be needed to bring equal marriage rights to the state.

On the legal side, Scottie has coverage of the pending Ninth Circuit consideration of the Sevcik and Jackson legal challenges from Nevada and Hawaii, respectively.

A few other cases are pending in the lower courts.  In Michigan, a district court judge will likely issue a ruling on a lesbian couple’s challenge to the state’s marriage equality ban in a case that was held pending the Supreme Court’s decisions.

And in New Mexico, a couple which earlier this month filed a district court suit seeking a marriage license has shifted its focus to the state’s Supreme Court in an effort to achieve a speedier resolution.  New Mexico has no laws prohibiting or denying marriage equality, and the couple’s suit contends that the state’s Equal Rights Amendment guarantees them equal marriage rights under the New Mexico Constitution.

If you see any other news of  states moving ahead with marriage equality after Wednesday’s decision, let us know in the comments or drop us a line!

1 Comment June 28, 2013

Stay issued by Ninth Circuit Court of Appeals in Nevada, Hawaii marriage cases to expire July 18

By Scottie Thomaston

Beverly Sevcik and Mary Baranovich (Attribution: Lambda Legal)
Beverly Sevcik and Mary Baranovich (Attribution: Lambda Legal)

UPDATE 6/28 12:55PM ET: Edits were made to the initial version of this post reflecting the new briefing schedule.

Although the Supreme Court has issued its rulings in the challenges to California’s Prop 8 and Section 3 of the federal Defense of Marriage Act, and the final opinions did not guarantee a nationwide right to same-sex marriage (or even, thus far, a right beyond California’s borders) the fight for recognition of LGBT equality in the courts continues on; as soon as next month, two cases challenging two state marriage equality bans will reach the Ninth Circuit Court of Appeals.

The cases, known as Sevcik v. Sandoval and Jackson v. Abercrombie, challenge marriage bans in Nevada and Hawaii, respectively. The Ninth Circuit agreed previously to hear them on a parallel track, not consolidated, but rather alongside each other, with briefing and arguments in both cases happening at the same time. Most parties to the challenges agreed to the move, with only the Coalition for the Protection of Marriage, the anti-gay marriage group in Nevada, objecting. The briefing schedule in the cases would have things wrapping up in October, that is, if no one requests an extra 30 days to file. Then presumably, shortly thereafter, the Ninth Circuit would hear arguments in the cases.

Both challenges reached the Ninth Circuit through appeals after the plaintiffs, same-sex couples, faced losses in their respective district courts. The plaintiffs in both cases undoubtedly had Article III standing to bring their lawsuits, and having lost, they have standing to appeal. And importantly, in the Nevada case, the governor is the defendant and he is defending the law (the Coalition is doing so as well) and in Hawaii, while the governor is one named defendant and he agrees their anti-gay marriage regime is unconstitutional under the federal Constitution, the Director of Hawaii’s Department of Public Health, believes it’s constitutional and has fully defended it in federal court. Presumably, if the plaintiffs win at the Ninth Circuit in both cases, the losing parties would be able to ask the Supreme Court to review the case, even with Perry as precedent.

The current stay, issued by the Ninth Circuit, expires on July 18 automatically. From there, the initial briefing schedule was as follows: opening briefs were due August 19; then, the defendants and intervenors would file their briefs on September 18; after that, any reply briefs would be due October 2. However, in Jackson v. Abercrombie the Hawaii plaintiffs and the governor asked for an extension of time to file opening briefs; with a proposed due date of September 18, a month later than the current schedule allows. The court granted the request. In Sevcik, the Nevada case, the same date of September 18 has been requested. Since the Ninth Circuit granted the request in Jackson, they’ll likely do the same in the Nevada challenge. This would mean briefing may be completed by late October, instead of in early October, as originally anticipated.

The next Supreme Court term begins in early October, and ends in June, so depending on how quickly a decision is announced after oral arguments, and assuming there are no setbacks or delays, there is at least a possibility it could reach the Supreme Court by early 2014. Of course, there’s no way to know whether they would take up another marriage case so quickly, even one styled as Nevada’s is, narrow and geared toward a state with a unique factual background in terms of LGBT laws. But these and other cases will continue along, and the stays issued prior to the Supreme Court’s decisions will be lifted in several federal cases over the next weeks.

Thanks to Jon Davidson, Legal Director of Lambda Legal, for information about the briefing schedule in these cases

And thanks, as usual, to Kathleen Perrin for more information

1 Comment June 28, 2013

A round-up of reactions to yesterday’s Supreme Court decisions

By Jacob Combs

The scene outside the Supreme Court yesterday, June 26, 2013, in Washington, DC.
Win McNamee/Getty Images

In the wake of yesterday’s historic Supreme Court rulings striking down the Defense of Marriage Act and setting the stage for marriage equality to return to California, equal rights advocates celebrated, opponents scowled, and–of course–marriages were proposed.  Here’s a quick look at the myriad reactions to the Court’s rulings.

First, the good.  At a press conference yesterday following the ruling, when asked about her reaction to the decision, a smiling California Attorney General Kamala Harris said, “I’m feeling pretty good,” telling the crowd that marriage equality is coming back to California:

“As soon as [the 9th Circuit] lifts that stay, marriages are on. The wedding bells will ring … Today is a day that reaffirms our commitment as a country to giving every person equal protection and due process under the law.”

During the press conference, Harris asked the Ninth Circuit to expedite its process of lifting the stay on Judge Walker’s injunction against the enforcement of Proposition 8.  An official with the circuit court told the Los Angeles Times the court had not received any paperwork asking for the process to be sped up.

Writing on his blog Blabbeando, Andrés Duque shared a wonderful image of Thomas Verni, the New York City Police Department’s LGBT community liaison, kissing his partner Joe Moran shortly after proposing to him in the West Village.

True to form, Michelle Bachmann decried the Supreme Court’s rulings, issuing the following statement: “Marriage was created by the hand of God. No man, not even a Supreme Court, can undo what a holy God has instituted.”  House Minority Leader Nancy Pelosi had the best reaction, hands down, to that sentiment, when asked by a reporter what she thought of it: “Who cares?”

Rachel Maddow had thorough coverage of the day’s decisions, featuring interviews with the plaintiffs from a celebration in West Hollywood and a sit down with Edie Windsor’s lawyer, Roberta Kaplan, in the MSNBC studios.

The Daily Show’s John Oliver–standing in for Jon Stewart–waved a giant rainbow flag as he sang a few modified strains of ‘Do You Hear the People Sing?’ from Les Misérables, while Jason Jones and Al Madrigal prepared to marry in what Oliver described as ‘a 1980s stereotype.’

And, of course, there were the negative reactions.  Speaking with a New Jersey radio station, Governor Chris Christie–who last year vetoed a marriage equality bill approved by the state’s legislature–railed against the end of DOMA and Prop 8:

I don’t think the ruling was appropriate. I think it was wrong. They, the Court, without a basis in standing, substituted their own judgment for the judgment of a Republican Congress and a Democratic President. In the Republican Congress in the ‘90s and Bill Clinton. I thought that Justice Kennedy’s opinion was, in many respects, incredibly insulting to those people, 340-some members of Congress who voted for the Defense of Marriage Act, and Bill Clinton.

Finally, Tim Heulskamp, a Republican representative from Kansas, said that he would introduce a new Federal Marriage Amendment by the end of this week which would essentially write a new DOMA into the U.S. Constitution.  Such a move, he told the Huffington Post, would “trump the Constitution.”  It’s a hail-mary move with almost no chance of passing: in 2006, when Republicans controlled both houses of Congress, the bill failed to secure the votes it needed to pass.

2 Comments June 27, 2013

Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions

By Scottie Thomaston

The U.S. Supreme Court declined to review more LGBT rights cases yesterday.
The U.S. Supreme Court declined to review more LGBT rights cases yesterday.

Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.

Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.

First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.

The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.

Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.

Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.

In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.

June 27, 2013

Closing thoughts: tonight’s rally on the steps of the Stonewall Inn

By Jacob Combs

It was a sticky summer kind of New York evening as the throngs packed into the narrow intersection of Waverly Place and Christopher Street outside the steps of the Stonewall Inn. The event was equal parts rally, celebration, law lecture and thanksgiving. Edie Windsor, the newly-turned 84-year-old who today won a huge LGBT rights victory in her suit against the U.S. government, was the star–a heroic figure in the eyes of the crowd, albeit one for whom the mic had to be lowered when she stepped up to speak.

“We won all the way,” she said simply. She thanked Roberta Kaplan for taking her case when the legal advocacy organizations said it was the wrong time; she talked about the children who will grow without ever knowing the stigma of the Defense of Marriage Act, whether enforced against themselves, their parents or their families. And she spoke of her beloved Thea, the wife she lost after almost half a century together. “If I had to survive Thea,” Edie said, “what a glorious way to do it.”

For her part, Roberta Kaplan showered praise on Edie, likening her to Susan B. Anthony, Rosa Parks, Harvey Milk. The U.S. Constitution, she said, binds us together as a people and as a nation, and she swore there was no better case to demonstrate what equal protection under the law really means than U.S. v. Windsor. New York Congressman Jerrold Nadler, the lead sponsor of the Respect for Marriage Act, which would mop up the last vestiges of marriage discrimination in federal law after the demise of DOMA, spoke of today’s rulings as part of an ongoing struggle to expand the meaning and the scope and the inclusivity of the words ‘all men’ in the Declaration of Independence’s affirmation that “all men are created equal.”

Christine Quinn, the out Speaker of the New York City Council, got a big kiss (and an endorsement) from Edie Windsor, telling the crowd that the federal government “picked the wrong New Yorker to mess with.” She bragged that DOMA had been brought down thanks to two New York City lesbians; Rabbi Sharon Kleinbaum one-upped her, saying she was kvelling that it had been two Jewish New York City lesbians that had defeated the statute.

It was also a call to arms. “We have work to do,” Empire State Pride Agenda Nathan Schaefer told the crowd, acknowledging the ignominious defeat of the Gender Expression Non-Discrimination Act in the New York state senate just days earlier. Glennda Testone of the New York City LGBT Center said that “Edie Windsor fought the law, and Edie Windsor won,” listing off the myriad remaining priorities for the LGBT movement: transgender equality, immigration reform, bullying prevention, protections for LGBT seniors, an inclusive Employment Non-Discrimination Act, protection from housing discrimination and advocacy for people living with HIV and AIDS. Several speakers mourned the implicit loss of the Voting Rights Act, an exemplar of American civil rights litigation, in the same Supreme Court’s ruling of just the day before.

It was a day to be remembered, but also one on which to remember: ten years to the day after the Supreme Court ruling in Lawrence v. Texas that affirmed gay people’s constitutional right to the very act which made them different, 44 years after the night when the Stonewall Riots introduced LGBT rights as an issue in American life, just steps away from where Edie Windsor stood. In a small way, we returned to our roots as a community as we reflected on where we are taking this country, together, as a community. We won. We will keep fighting. We will lose, at times. But, even more importantly, we will keep on winning.

Edie Windsor got the last word–of course–and those who had started to drift away through the streets rushed back to hear what else she would say. The LGBT community, she said, was formed out of the injustice of HIV and AIDS, and in the last three years, out of the injustice of marriage discrimination, that community had come together more than she could ever have imagined. The crowd began to cheer her name–“Edie, Edie!”–while the 5-foot-tall woman stood there, looking radiant, and beamed. And this young California boy, homesick for that beautiful state and its people who had had their rights ripped away from them and now restored, far from the celebrations of Los Angeles and San Francisco and the many tiny towns in between–beamed back.

1 Comment June 26, 2013

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