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We could still lose marriage in Utah and New Mexico


By Matt Baume

We end the year with big marriage wins in Utah and New Mexico. But those victories could still be overturned. We’ll have the latest on attempts to undo marriage in those states. We’ve also seen some major steps towards equality in Oregon, Ohio, Florida, Arkansas and Illinois. Plus, AFER has date for a hearing in its Virginia case.

Well Christmas came a little early this year, with marriage equality in Utah and New Mexico. This brings the total number of states with marriage to 18. Nearly 40% of Americans now live in a state where LGBT couples can marry.

During just the first week of marriage in Utah, clerks issued over twelve thousand marriage licenses. But this win isn’t final yet. Although state’s request for an emergency stay was denied by both the district court and an appellate court, they’re now working on an appeal to the US Supreme Court. We’re expecting that filing any day now.

As you might expect, polling in Utah is pretty grim. For now, most residents oppose relationship recognition. But as in every other state, support is steadily on the rise.

Public opinion is a bit stronger in New Mexico, where the state Supreme Court ruled this month in favor of marriage equality. And a slim majority of residents favored the freedom to marry in the most recent survey. But anti-equality activists have vowed to pursue a constitutional ban on marriage. It’s possible they could be successful, so we’ll be keeping a close eye on the situation there.

We had a few other victories over the holidays. A judge in Illinois has ruled that all couples facing terminal illness can marry immediately. Previously, they would have had to wait until the official start of marriage equality this summer. And a judge in Ohio ruled that the state must recognize marriages from out of state on death certificates. That narrow ruling could lead to further litigation to completely undo the state’s marriage ban.

The ACLU has filed a new lawsuit in Oregon. This is the second federal suit in Oregon, and the ALCU will seek to have them both combined. Organizers will also attempt to overturn the state’s marriage ban at the ballot box this November.

Equality Florida is working on a lawsuit as well, though they haven’t filed it yet. The group’s goal is to bring full marriage equality to the state by 2016.

A suit in Nevada has been slightly delayed. The next briefing deadline in Sevcik v Sandoval was just pushed back one month, to January 20. A judge in Arkansas has rejected a motion to dismiss a lawsuit there, so that suit will move ahead. And we have a hearing scheduled in AFER’s case against Virginia’s marriage ban. That’s scheduled for January 30.


  • 1. mtnbill  |  December 30, 2013 at 2:49 pm

    I think you meant 1200 licenses were issued, not 12,000 in Utah.

  • 2. Drpatrick1  |  December 30, 2013 at 2:52 pm

    I think NM is pretty safe. There is some whining on the other side, but it won't work. UT is a bit more interesting. I suspect, as others before me, that we win in the 10th, and the supremes do not grant cert for an appeal. We will win in the 9th, and again no cert will be granted. It will take a loss in one of the circuits to get to the supremes. My worry is due to the glacial speed of our judicial system, how many of the moderates on the court will be replaced before this thing reaches them, and who will be the president who nominates their replacements?

  • 3. Dr. Z  |  December 30, 2013 at 2:52 pm

    In the extremely unlikely event of a DOMA passing in New Mexico, it would be Prop 8 all over again.

  • 4. Warren  |  December 30, 2013 at 2:59 pm

    Utah might also have some legally married couples if the appellate court over rules the lower's court decision. I wonder if this appellate court will use Romer vs Evans to not take away the right to marry from us.

  • 5. davep  |  December 30, 2013 at 3:39 pm

    Yup. But without the four year+ stay while it gets resolved.

  • 6. Chris M.  |  December 30, 2013 at 3:00 pm

    Please show Michigan some love. We're headed for a full-fledged trial in federal district court there, with witnesses as exciting as Mark Regnerus, whose BS science will be debunked for good under cross examination.

  • 7. davep  |  December 30, 2013 at 3:41 pm

    Ok, we love ya, Michigan! Can't wait to see Regnerus get his bogus "study" completely destroyed in court! Tell him California says 'hi'!

  • 8. Craig Nelson  |  December 30, 2013 at 3:49 pm

    For the reasons cited (Regnerus) Michigan will be hugely important. Subjecting Regnerus to on the record cross examination…

  • 9. MightyAcorn  |  December 30, 2013 at 5:54 pm

    Wonder if he'll bail (or get booted) like Tam did in the Prop 8 trial. I hope we have strong and smart counsel in MI who will eviscerate his specious "science."

  • 10. ebohlman  |  December 30, 2013 at 10:09 pm

    If the plaintiffs's counsel is smart, they'll make a Daubert motion and then there will be hearing whose sole purpose is to determine whether or not Regnerus's work constitutes actual science. If not, he doesn't qualify as an expert witness and his testimony won't be heard.

  • 11. Sagesse  |  December 31, 2013 at 2:21 am

    Oh to be a fly on the wall in that room :).

  • 12. MichaelinFlorida  |  December 31, 2013 at 8:57 am

    To be a fly on that wall would fantastic.

    As sad as Regnerus's work is, and paid for by "The Heritage Foundation," I would love to hear him in court under cross.

  • 13. Deeelaaach  |  January 2, 2014 at 2:35 am

    Would it make sense to not do the Daubert motion and subpeona *all* the records for the "study" to get them all out in the open? Or ask for them on discovery? (I don't know enough about discovery to know if that is by subpoena also.) Do you think they'd defy a federal court and *not* provide the records for the trial they want to have to show Regnerus and his study to be science? I think they've already defied a state judge by not producing the records demanded, but would they do so in a federal trial, do you think?

    So I guess I'm asking – would it make sense to debunk him via Daubert or via subpoenaing the records, getting them out in the open (or trying to) and shredding the study itself?

  • 14. Dr. Z  |  December 31, 2013 at 1:02 pm

    Has a date been set for the trial?

  • 15. SPQRobin  |  January 3, 2014 at 8:24 am

    The trial in DeBoer v. Snyder is scheduled for February 25.

  • 16. Kevin  |  December 30, 2013 at 3:05 pm

    IAAL – The New Mexico decision was based on their State Constitution. Generally speaking, State Supreme Courts have the final word on interpreting their own Constitutions. The United States Supreme Court may only intervene if a State Supreme Court's construction of its Constitution or statutes conflicts with the Federal Constitution. Therefore, this decision is insulated from review by the USSC.

    The only remaining avenue for "overturning" the unanimous decision would be through an amendment to the NM Constitution, which would then likely be challenged on the same grounds as the others currently are.

    I hope you correct this soon; there is no need to worry the newly married couples of NM.

  • 17. Drpatrick1  |  December 30, 2013 at 3:37 pm

    IANAL, I think AFER agrees with everything you wrote. I think he is talking about the republicans in state government attempting to put a constitutional amendment before the people of NM. This and a federal marriage amendment would be the only 2 ways to take equality from NM. Though the latter is rather impossible, the former is unlikely but totally possible. As a New Mexican, the politics here are much more fiscally liberal and socially conservative than most other places. There is a bit of the Midwestern live and let live mentality, but also equal parts Catholic Dogma. A state amendment, if it makes it out the legislature, would be a hard fight to win. It is slightly worse than a coin flip. But getting it through the legislature might be harder.

  • 18. Zack12  |  December 30, 2013 at 5:07 pm

    The legislature is controlled by Democrats and however conservative they might be,they know that in an off year,putting something on the ballot that will likely bring out liberal voters is a crapshoot. It will for sure will bring out conserative voters and in a year where they are more likely to turn out anyway,that is just plain stupid.

  • 19. Damn  |  December 30, 2013 at 3:58 pm

    I agree Kevin. There is no reason for to worry people with the absurdly remote chance of things being reversed in New Mexico. If we start worrying about that we might as well worry that section 3 of DOMA will be reinstated. Where/when do we stop worrying? That comment was not needed.

  • 20. Mark  |  December 30, 2013 at 11:30 pm

    I don't worry about LGBT rights. I stay informed, but I don't worry.

  • 21. Dann  |  December 30, 2013 at 3:44 pm

    Clerks have not issued more than 12,000 marriage licenses. Clerks have issued more than 1,200 marriage licenses.

  • 22. jpmassar  |  December 30, 2013 at 4:56 pm

    Stay calm and marry on.

  • 23. Rose  |  December 30, 2013 at 5:40 pm

    I don't see us losing either New Mexico or Utah……..once a right has been granted, IT CAN NOT be removed without showing a compelling state interest and NEITHER New Mexico or Utah can show that and the marriages that have already been legal will REMAIN legal, valid and recognized which will create a different tier IF either state tries to change things……and trust me……neither Utah nor New Mexico will survive a legal challenge as to why they have ELIMINATED a right to a SPECIFIC group of individuals based solely on who they are!!!

  • 24. Straight Dave  |  December 30, 2013 at 6:48 pm

    That's the argument I think SCOTUS would have accepted for Prop8, if they had reached the merits. It was narrow, did the right thing, and likely wasn't a precedent for anywhere else.

  • 25. Rose  |  December 30, 2013 at 7:14 pm

    However Judge Walker's ruling can be used in future litigation just like I believe the State of Utah is trying to use with regards to the Stay that was granted, but that same argument from the defendants won't work today as it did back when Prop 8 was being litigated in my opinion………I think Judge Shelby's ruling is sound and will NOT be stayed at this point…….and I don't believe outside counsel will be able to do anything that the AG couldn't do!!!

  • 26. SeattleRobin  |  December 30, 2013 at 9:07 pm

    I think the major issue with the stay being issued in the Prop 8 trial is that the lawyers *asked* for it. Walker was able to decide that at the same time as he issued the ruling. Utah really messed up when they didn't do the same thing. I don't know what they were thinking, but Shelby decided everything in front of him. So the fact that Walker issued a stay that was asked for doesn't bear on Shelby not issuing a stay that wasn't asked for. I'm pretty darn sure that if the state had asked for a stay pending appeal to the 10th in the instance that they lost at summary judgement that Shelby would have granted it. But by delaying, the state caused the status quo to change, giving them little maneuvering room.

  • 27. Rose  |  December 30, 2013 at 9:29 pm

    I'm still NOT sure Judge Shelby would have granted it……if you remember correctly Judge Walker granted a Stay, but a week later he removed the Stay stating that he DIDN'T feel the proponents of Prop 8 had a chance of being successful, nor could they show harm, it was the emergency appeal to the 9th that the Stay remained in place and in the end, Judge Walker was correct…..the proponents were NOT successful because of the Article 3 standing!!!

  • 28. Bruno71  |  December 30, 2013 at 8:22 pm

    Kennedy called it an "odd rationale." He'd have had to have held his nose a bit on that one.

  • 29. Straight Dave  |  December 31, 2013 at 6:58 am

    Yes, but he was perfectly free to issue a more solid opinion that he felt was less odd, the one the 9th likely would have preferred but was afraid to.

  • 30. Bruno71  |  December 31, 2013 at 1:43 pm

    What do you think that opinion would've been? I always figured he'd go to equal protection rationale if he had to.

  • 31. Bruno71  |  December 30, 2013 at 8:16 pm

    They could pass an amendment in New Mexico, true. Theoretically, they could also pass one in Massachusetts and New York. Won't happen unless the legislature takes a hard right.

  • 32. Rose  |  December 30, 2013 at 9:25 pm

    And IF an Amendment should pass it would be challenged immediately because it would show the animus towards a minority group…….it would lose in Court!!!

  • 33. Zack12  |  December 30, 2013 at 11:32 pm

    I will say it is a good idea to keep an eye on New Mexico and other places and not let our guard down,Prop 8 is the ultimate example of that.
    Having said that,the Democrats control both chambers in NM,would be plain stupid in an off year for them to put a ban on the ballot and bring more Republicans out when they will be more likely to show up as it is.

  • 34. mikesilverman  |  December 31, 2013 at 9:50 am

    New (state level) lawsuit in Kansas, this one focusing on tax equality issues.
    The web site isn't updated yet, but I found the press release…

    December 31, 2013 – FOR IMMEDIATE RELEASE

    Thomas Witt, Executive Director
    Equality Kansas
    [email protected]
    (m)785-220-2355 (o)316-683-1706 Stephanie Mott, State Chair
    Equality Kansas
    [email protected]

    Complaint seeks to block implementation of discriminatory policies by state tax agency

    Wichita, Kans. – Equality Kansas (formerly the Kansas Equality Coalition) hails yesterday’s filing of Nelson, et al., v. Kansas Department of Revenue (Case No. 13-C1465). The complaint, filed in Shawnee County District Court by two legally married same-sex couples, seeks to block the state Department of Revenue from implementing a tax scheme that unfairly singles out gay and lesbian couples for discriminatory treatment under the tax code.

    “In Kansas all married persons have to use the same income and tax status and information on all tax returns,” said Thomas Witt, Equality Kansas’ executive director. “There is no separate law for legally married same-sex couples, and the state shouldn’t be making separate rules that penalize or stigmatize married gay and lesbian Kansans.”

    “We are simply asking the state to follow existing Kansas law,” said David J. Brown, the Lawrence attorney who filed the action. “Kansas law requires the state to use federal definitions of marriage for tax purposes, but the Department of Revenue is refusing to comply. My clients are asking the courts to order the Department of Revenue to follow the law.”

    The IRS has announced that it will recognize all legally performed marriages for tax purposes and that all legally married same-sex couples must file tax returns as “married,” even if they live in a state where their marriages aren’t recognized. The Kansas Department of Revenue has announced it will not use the federal definition of marriage and has established regulations requiring same-sex couples to file as single persons and say they are not married.

    To implement the new policy, the state has published a special worksheet for same-sex couples to complete when filing their Kansas taxes instead of simply using their federal tax filing numbers. The state failed to follow any of the statutory requirements for adopting the new regulations.

    “By requiring legally married same-sex couples to file additional tax forms and say they are not married on those tax forms, Kansas is penalizing and stigmatizing gay and lesbian Kansans,” said Witt. “Kansas tax officials have decided that instead of following the law, they want to single out married gay and lesbian couples for unfair and illegal treatment,” Witt said.

    The Department of Revenue has published a special worksheet for same-sex couples to complete when filing their Kansas taxes. Instead of simply using their federal tax filing as the basis for Kansas income taxes as all other married couples do, legally married gay and lesbian couples must complete a worksheet which “decouples” their household income, and keep it on file for the Department to inspect upon demand.

    “It is really simple: the state should follow its own laws and require all married Kansans to file their taxes – state and federal – the same way, as married persons,” Witt said.

    The lawsuit was filed on behalf of a gay couple living in Wabaunsee County and a lesbian couple residing in Douglas County.

    Formerly the Kansas Equality Coalition, Equality Kansas works to end discrimination based on sexual orientation and gender identity, and to ensure the dignity, safety, and legal equality of all Kansans.

    Thomas Witt, Executive Director
    Equality Kansas
    Mobile 785-220-2355 | Office 316-683-1706
    [email protected]

  • 35. Dr. Z  |  December 31, 2013 at 1:01 pm

    This is very interesting. It suggests the state is trying to skirt the IRS ruling by adopting a regulation that conflicts with its own statues. If the suit is successful this legal strategy will probably be applicable in other states – and I suspect there will be a rash of restraining orders filed before April 15th.

  • 36. palerobber  |  December 31, 2013 at 10:28 am

    small correction…

    you write:
    "most [Utah] residents oppose relationship recognition"

    while support for full marriage equality is lagging, a *large* majority in Utah do support "relationship recognition" of some sort (including a majority of Mormons). it's 72% to 28% according to a poll conducted by academics at BYU in 2012:

    if Amendment 3, which bans *all* forms of recognition, were put to a vote in 2014, it's doubtful whether it would win in its current form.

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