Equality news round-up: News from Utah, Minnesota, Kentucky, and more
January 15, 2014
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– In case you missed it, yesterday we announced our new collaboration with The Civil Rights Litigation Clearinghouse, a project of the University of Michigan Law School.
– The Kentucky same-sex marriage case, Bourke v. Beshear, is at the summary judgment stage, and the plaintiffs have filed a final, one-page reply brief. The filing says, in full:
Plaintiffs appreciate Defendants’ position with respect to their duty to defend the laws of the Commonwealth. However, those laws must bend to the guarantees of justice and individual liberty articulated in the Bill of Rights. The Commonwealth has now had the opportunity to articulate its interest in refusing to recognize Plaintiffs’ marriages. That interest is the tepid, “preserving . . . traditional marriage.” Defendants have chosen not to venture into any explanation of the benefits that allegedly inure to the Commonwealth as a result of its exclusion of same-sex couples from the burdens and benefits of marriage. Perhaps in light of the legislation that has fallen in other states, Defendants recognize that the avalanche of history is burying such small-minded prejudices.
(h/t Kathleen Perrin and Equality Case Files for this filing)
– Minnesota lawmakers will take up an anti-bullying bill.
– Slate‘s Emily Bazelon takes a look at Attorney General Eric Holder’s latest actions on Utah’s same-sex marriages.
– Lyle Denniston also weighs in.
– Dozens of people have been arrested in Nigeria for advocating for LGBT rights.
34 Comments
1.
sfbob | January 15, 2014 at 10:32 am
Regarding Holder's decision, it seems to me that any court would rule that while, yes, states have a broad power to define and regulate marriage, that power is not unlimited. In particular, a state does not have the power, absent evidence of fraud, to invalidate a marriage license which that state consented to issue, regardless of subsequent events.
As I understand it, common law marriage, while once widely available, is no longer recognized other than in a very few states (and I believe in the District of Columbia). States that used to recognize such marriages no longer do so. However, that does not mean (at least one would think it does not mean) that any such marriages as were recognized before the law changed would suddenly become "unrecognized."
Going back to Loving and to other cases where the Supreme Court has ruled a state's limitations on marriage to be invalid, it is pretty evident that the court recognizes some significant limitations to the state's power to decide who can and cannot marry and whose marriages the state may or may not recognize. I don't think there should even be much controversy about that.
2.
Richard Weatherwax | January 15, 2014 at 3:56 pm
It wasn't until the the 16th century that the Catholic church required the presence of a priest to validate the ceremony. In England the Marriage Act of 1753 required all marriages in England to be performed by a priest of the Church of England (with the exception of Jews and Quakers).
Before this, the Traditional Marriage was usually common-law, and neither the church nor the government were involved. Marriage ceremonies were primarily used to confirm agreements between royalty or other important families. This insured that political and economic powers were passed down without conflict.
See: http://en.wikipedia.org/wiki/Common-law_marriage#…
3.
Gregory in SLC | January 15, 2014 at 11:29 am
Virginia House subcommittee to consider marriage ban repeal bill:
http://www.washingtonblade.com/2014/01/14/exclusi…
4.
Seth From Maryland | January 15, 2014 at 11:45 am
how is the 10th circuit court of appeals made up? is it more conservative or liberal or somewhat in between?
5.
Chuck from PA | January 15, 2014 at 12:05 pm
5 appointees each by Democratic and Republican presidents, plus 2 open slots awaiting Obama appointee approvals. I suspect the president has renominated the 2 judges waiting for approval whom he had nominated in 2013. Uncertain as to the relative liberal/conservative character of the 10 sitting judges.
6.
Seth From Maryland | January 15, 2014 at 12:10 pm
interesting ,thanks for the info, one good thing is there no longer a filabuster when it comes to the presidents nominees, so maybie those empty spots will be filled
7.
Rik | January 15, 2014 at 2:00 pm
Does this new rule apply to judicial appointments?
8.
Colleen | January 15, 2014 at 2:06 pm
As I recall, it applies to all appointments (judicial, diplomatic, Cabinet, etc.) other than Supreme Court.
9.
Bruno71 | January 15, 2014 at 2:20 pm
The only rub is that a senator can still "blue slip" (block) a nomination from his or her own state. Rubio successfully did this just this past week with a nominee he'd put forth a few years ago. No idea if this may come into play with these two openings, but I wouldn't hold my breath they'd be filled by the time these cases find the 10th Circuit.
10.
Pat | January 15, 2014 at 2:17 pm
I would be interested to know when we can expect the 2 vacancies to be filled by Obama. Maybe little chance it would happen before the Appeal?
11.
Seth From Maryland | January 15, 2014 at 1:25 pm
just think Anita Bryant is from Oklahoma 🙂 say hello to marriage equality coming ur state Anita hehehehehehe
12.
Rik | January 15, 2014 at 2:00 pm
suck it, orange bitch
13.
Bruno71 | January 15, 2014 at 2:21 pm
What does John Boehner have to do with this?
14.
davep | January 15, 2014 at 2:56 pm
oh, snap! I see what you did there : )
15.
Rik | January 15, 2014 at 5:48 pm
lol 🙂
16.
Seth From Maryland | January 16, 2014 at 1:04 pm
LOLOL
17.
StraightDave | January 15, 2014 at 2:11 pm
That Kentucky reply brief is already out of date! 🙂
It cites the recent UT and OH rulings in the footnote, but it must have been submitted just as the ink was drying on the OK ruling. I wonder if they'll try to offer an updated version just to rub it in further.
Regardless, I love their closing comment. Might as well call a spade a spade.
"Perhaps … Defendants recognize that the avalanche of history is burying such small-minded prejudices."
18.
Zack12 | January 15, 2014 at 3:47 pm
While we def want more Obama appointees to hear this,the name we don't want to see is Timothy Tymkovich.
We all know what Romer V Evans did for us rights..
Tymkovich was on the losing side on that case but his tune towards LGBT rights hasn't changed much since then.
19.
Zack12 | January 15, 2014 at 4:14 pm
http://www.krmg.com/news/news/local/oklahoma-atto…
The Oklahoma Ag's response to the gay marriage ruling.
Clearly these guys didn't read the entire ruling or they would have understood why Scalia had a fit. It might leave it up to the states but as Scalia pointed out,it's not hard to use the same language that was used to strike down the federal ban on gay marriage and apply it to the states.
Also,you'll see the spin on the 14th amendment that the bigots will use going foward in that it only applies to race and gender and NOT gays and lesbians.
It worked before the fall of DOMA but I expect that to be a harder sell going foward.
20.
Rich | January 15, 2014 at 7:16 pm
Not to mention that the reporter's response is so illogic and grammatically frightening or that the AG never got beyond first grade syntax. How embarrassing.
21.
Rich | January 15, 2014 at 7:17 pm
Oops..illogical …my bad
22.
Sagesse | January 15, 2014 at 5:44 pm
Mark Joseph Stern at Slate brilliantly summarizes Judge Kern's Oklahoma decion:
Judge Strikes Down Oklahoma’s Gay Marriage Ban, Calls Supreme Court’s Bluff
"This deft bit of logic isn’t just a clever reading of the tea leaves—it’s a near benchslap to the Supreme Court, criticizing the justices for keeping their legal reasoning shrouded in mystery while consistently striking down anti-gay laws. All federal judges are bound by Supreme Court precedent, of course, but how can a judge possibly apply the law when the justices consistently refuse to explain precisely what kind of constitutional protections gay people are afforded?"
http://www.slate.com/blogs/outward/2014/01/15/okl…
23.
Gregory in SLC | January 16, 2014 at 5:25 am
Good article 🙂 It will be interesting to see how SCOTUS responds to Judge Kern's "smack down" of the supremes.
24.
Straight Ally #3008 | January 16, 2014 at 7:46 am
I'm going to start using the term "benchslap."
25.
StraightDave | January 16, 2014 at 7:46 am
I'm now convinced more than ever that this is a calculated ploy by SCOTUS to get where they want to go at the speed they want it to happen. Kennedy has it all laid out in his head. He's essentially telling the other federal courts, "Here's a bunch of dots on a page. I'll number some of them but not all, here's a pencil that's a bit dull so you may need to sharpen it along the way. Might take you a while, but we've set it up in a way that there's only one realistic way to complete this picture. Bring it back when you've got it all connected. Then we'll pull out our SCOTUS-limited box of crayons and color it in nice and pretty. There is no time limit."
This all plays out in full view of the public, so by the time the coup de grace is applied, the whole country is fairly softened up. Therefore, no sudden Roe-style shock effect. Now Judge Kern is calling them out.
It's gonna be a fun 2014. Get out the popcorn 🙂
26.
Anthony | January 16, 2014 at 8:21 am
I believe it now. It was all intentional by Kennedy. He clearly believed that heightened scrutiny should apply but he didn't want to jump the gun when so many places didn't allow marriage. So he turned it into a two part lawsuit. No wonder Scalia was irate. The Windsor decision was intentionally opaque for a reason.
27.
Zack12 | January 16, 2014 at 8:37 am
Rachel Maddow called it back in June when mentioning Scalia's dissent in the DOMA case.
Lawrence V Texas didn't lead to rights for same sex couples but Scalia knew that it was only a matter of time given the way the ruling was written that it could apply to bans and it did with DOMA.
DOMA did leave it to the state but Scalia read the fine print. If the state is going to have a ban,it better have a valid reason for one.
And as the judges since the DOMA ruling have stated,moral or personal dislike is not enough.
28.
Anthony | January 16, 2014 at 8:58 am
Couple that with mass coming outs by gays in their respective communities and you've basically got the formula for full legal equality!
29.
Bruno71 | January 16, 2014 at 11:56 am
Any year that starts off with a judge tossing OKLAHOMA's marriage ban, and using the "benchslap" in the process," definitely deserves mucho popcorn. What next? A pro-equality judgement in Mississippi? The House passes ENDA?
30.
Zack12 | January 16, 2014 at 1:20 am
http://www.newson6.com/story/24466573/author-of-s…
The guy who created the ban,who doesn't seem to understand that part of our democracy includes a judicial branch to protect the rights of minority groups.
And we finally get to hear from Sally Kern,she's just as hateful as ever.
31.
Zack12 | January 16, 2014 at 6:28 am
It does appear South Dakota might join in the fun soon. http://www.kdlt.com/index.php?option=com_content&…
The more the merrier I say!
32.
Bruno71 | January 16, 2014 at 11:58 am
Let's not forget that there has already been a judgement against us out of the 8th Circuit Court of Appeals in the Bruning case. I wonder how that would affect a lawsuit out of the Dakotas, Missouri, Arkansas, or Nebraska again?
33. Policy and Legal Update &&hellip | January 20, 2014 at 7:02 am
[…] KENTUCKY • On 14 January 2014, in Gregory Bourke v. KY Governor Steve Beshear, et al., a challenge to the 2004 constitutional amendment banning same-gender civil marriage, the plaintiffs filed their final brief, and the court is about to decide whether to issue a final ruling without a trial. • MEUSA Summary • News Source […]
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