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VA Marriage Hearing is This Week


By Matt Baume

A surprise twist in AFER’s Virginia lawsuit. The Indiana House passes a marriage ban, but in so doing could actually delay its progress. Utah and Oklahoma cases are speeding towards the Supreme Court, and our chances for victory have greatly improved in Nevada. Plus there’s progress this week in West Virginia, Hawaii, and Kansas.

Last week a judge in Virginia ruled that oral arguments would proceed in AFER’s federal marriage case. But then we got an unexpected setback: snow. Bad weather postponed the hearing, scheduled for last Thursday, to Tuesday of this week. Stay tuned for further announcements about our day in court.

The Indiana House passed a constitutional marriage ban last week. But that might actually be good news. House lawmakers stripped the bill of a sentence that would have banned civil unions as well. Because the language was changed, the bill will likely have to start the approval process all over again, which would push it back to 2016, at the earliest. Indiana polling has fluctuated wildly, so it’s impossible to detect a trend that would predict how voters will behave in two years.

But it’s possible that the Senate could restore the language and refer the bill to a conference committee, in which case it could pass and head to voters this year. Or the Senate could kill it altogether. We’ll be keeping a close eye on the volatile situation there, with further developments expected this week.

We have a date for hearings in the Utah and Oklahoma cases. Both cases recently won major victories for equality, and now head separately to the 10th Circuit Court of Appeals. The court will hear the Utah case on April 10, and the Oklahoma case on April 17. Though the cases haven’t been consolidated, the court may rule simultaneously on both. If they rule promptly, both cases could go to the US Supreme Court in its next session.

Last week we reported that a Nevada case will be significantly impacted by a ruling in the Ninth Circuit that extended heightened scrutiny to LGBTs. Now Nevada Attorney General Katherine Cortez has announced that she will review the arguments made in a marriage case there. A district could had previously ruled against the freedom to marry, but this new standard of scrutiny could render all of our opponents’ arguments invalid on the pending appeal.

A case in West Virginia will progress after a judge denied a motion to dismiss. Marriage is safe in Hawaii, where a judge last week rejected a lawsuit against last year’s equality act. And Equality Kansas has requested the introduction of two bills to repeal that state’s marriage ban. It’s still too early to evaluate the bills’ chances of success, but we’ll be keeping a close eye on the situation in Kansas.


  • 1. Seth From Maryland  |  February 3, 2014 at 10:19 am

    the final marriage equality vote in scotland is tommorow , it's very likely to pass, that will leave only Northern Ireland without marriage equality in the UK , i wonder if the Uk court could make some kinda ruling making Norther Ireland join the rest of the UK?

  • 2. Christian  |  February 3, 2014 at 12:18 pm

    No. The UK Courts do not have powers of judicial review for primary legislation (since the Glorious Revolution when Parliament declared Supremacy thus overturning Dr. Bonhams Case), nor could they extend marriage rights granted under the Marriage Act (Same Sex Couples) passed by parliament as it explicitly only extends to England and Wales. Were the wording more vague, they might have a case to do so however the language is clear.

    They could contend that Northern Ireland's ban on ME violates the European Convention on Human Rights (EG. Dudgeon v. UK) and merely advise both parliaments to adhere to its ruling. But considering that Court of Human Rights ruled a few years ago that gays and lesbian don't have the right to marry the odds of that being a persuasive argument is significantly diluted.

    In short, unless something changes drastically in the UK's constitution (for instance, if they actually GET ONE) and soon, then the courts will not be a good source of significant recourse.

  • 3. Seth From Maryland  |  February 3, 2014 at 12:45 pm

    so pretty much the only way is through parliament, which means it take a election or two to get the supportive party in control of the government , that's going to several years sigh -_-

  • 4. Craig Nelson  |  February 3, 2014 at 2:18 pm

    It's not as simple however as getting the supportive party in control of the government in Northern Ireland. The government is made up of all strands of opinion in a power sharing executive and there is cross community voting (a bit like permanent bipartisanship). I think there is a lot of support in Northern Ireland parties but not in the heavily Protestant DUP which, even if not the largest party (which it currently is and will remain so for a while) will be able to block marriage equality legislation (as it has done so up till now). Of course things can always change in the future but that's how it looks for the time being.

  • 5. SPQRobin  |  February 3, 2014 at 2:23 pm

    In whole Europe, most progress on LGBT rights was & is through legislative action. The extent of judicial review powers in the United States is pretty unique as far as I know.

    There is however a chance the European Court of Human Rights will eventually declare that the right to marry extends to same-sex couples; 2010 (Schalk and Kopf v Austria) was probably too early for that.

  • 6. Craig Nelson  |  February 3, 2014 at 1:38 pm

    The legislation on marriage in Northern Ireland is not primary legislation (so far as I can tell), it is secondary legislation (i.e. an Order) made during 'direct rule', when rule from a Northern Ireland Assembly was suspended. Secondary legislation can be struck down by UK Courts (starting with the High Court in Belfast with appeals up to the Supreme Court). The only thing they can use to do so is the European Convention on Human Rights which is incorporated into UK law under the Human Rights Act (unless the Conservatives repeal it as they are stating they will).

    I am not saying the Courts will so rule. It is unpredictable. The ECHR position is that member states to the Convention have a 'margin of appreciation' which means the Court leaves states to make their own decision. It is an open question whether that margin of appreciation would extend to a state where all other jurisdictions (England & Wales, Scotland) do allow marriage equality.

    ECHR rulings don't have direct applicability to states in the way that the US Supreme Court do but UK courts (i.e. Belfast High Court and Supreme Court) are able to do so.

    The UK doesn't have a single written Constitution but the arrangements in the Human Rights Act and arrangements for devolved government in Northern Ireland are written down in the relevant legislation (the Northern Ireland Act) and the constitutional arrangements are relatively clear.

  • 7. Dr. Z  |  February 3, 2014 at 10:46 am

    The ACLU has filed suit in Wisconsin, including a challenge to their "marriage evasion law" threatening thousands of dollars in fines and up to nine months in jail for couples who travel out of state to avoid their marriage law restrictions.

  • 8. Chuck from PA  |  February 3, 2014 at 11:17 am

    Great news. If ever there were a case that presented animus toward GLBT Americans, this exemplifies it. Penalties and imprisonment of citizens who have gone out of state to get married is just totally outrageous. Good luck to all the couples and lawyers on our side in this suit.

  • 9. Zack12  |  February 3, 2014 at 11:27 am

    I agree and if we also want to animus, one only has to look at the lawsuit filed by the "family values" groups over Wisconsin's Domestic Partnership Law.
    The lower court judge who upheld it even stated that it's not equal to marriage and that several key benefits aren't available to same sex couples.
    And yet,that is still too much for the bigots.

  • 10. Dr. Z  |  February 3, 2014 at 11:27 am

    I'm not from Wisconsin, but does anyone here know if this "marriage evasion law" was directed specifically at us? I thought it predated DOMA.

  • 11. sfbob  |  February 3, 2014 at 11:50 am

    It very much predates DOMA. It was passed in 1915. From what I can gather its original intent was to keep minors from evading the state's age-of-consent laws.

    The law is seldom enforced and it's been suggested that many state DA's would decline to enforce it. None of the gay or lesbian couples who married in Canada from 2003 onwards have been prosecuted under it.

    Delaware has a similar law but the penalties are relatively symbolic–$100 fine or 30 days in jail. Wisconsin's law is far more punitive.

  • 12. Bruno71  |  February 3, 2014 at 12:33 pm

    I imagine no lesbian or gay couples in Wisconsin will be prosecuted under this law, especially now when doing so would greatly erode their marriage equality court case in federal court. Which leads me to wonder, can someone sue over a law that isn't being enforced? If no couple has been affected by the law (specifically this out-of-state marriage law, not the same-sex marriage ban), can they show a harm has been done to them?

  • 13. Dr. Z  |  February 3, 2014 at 12:43 pm

    Good point. One of the reasons why the "crimes against nature" laws stayed on the books for so long is because they were seldom enforced – even though the chilling effect is very real, that's generally not considered sufficient grounds to grant standing to bring a lawsuit against the law.

  • 14. Eric  |  February 3, 2014 at 12:53 pm

    I would think one could make arguments similar to the Utah cohabitation law that was struck down.

  • 15. grod  |  February 3, 2014 at 12:33 pm

    sfbob But it remains on the books as a deterrent. That it has not been repealed suggests it serves more than its 'original intent". It would be interesting to hear Justice Kennedy's observation about the effects of such potential prosecutions and penalties of the perceptions of 'straight' and gay citizens and their children – symbolic be damned: it 'demeans' same-sex couples, 'humiliates' their children, and 'tells those couples and all the world, that their otherwise valid marriages are unworthy of .. recognition.'

  • 16. sfbob  |  February 3, 2014 at 2:58 pm

    Somehow part of my original comment disappeared. It seems that at least some couples are concerned about being prosecuted for getting married out of state; once again it's difficult to find things that directly pertain but something I found (apparently put out by a law firm) does suggest either that the existence of the law is preventing couples from going out-of-state to wed or that some are doing so with the intent of challenging the law.

  • 17. Bruno71  |  February 3, 2014 at 12:37 pm

    This is the first ME case filed in the 7th Circuit. I wonder if the legislators in Indiana have any feelings about this.

  • 18. Zack12  |  February 3, 2014 at 3:35 pm

    THey don't. I remember in NC when that ban was passed that one of the main backers of it,Thom Tillis (who is running for Senate) stated that he knew in another decade or so,the law would likely be struck down.
    And they went ahead with it anyway. Pence and the others are operating from that same belief system that LGBT people are sinful and deserved to be punished for who they are.

  • 19. Bruno71  |  February 4, 2014 at 12:38 pm

    Yeah I think that's definitely true about Pence. He used to get a lot of mentions alongside the likes of Virginia Foxx, Bachmann, and Gohmert as one of the more nutso religious figures in the House. Not only does he want to inject Indiana state law with a strong dose of his own religion, he wants to do it when he wants to do it (2014, not 2016). This all may ultimately be a test of his strength over his own party in his own state.

  • 20. Zack12  |  February 4, 2014 at 1:21 pm

    It's a mix of all of them. He hates the LGBT community with a passion and wants to put the ban in out of spite.
    But he also saw what happened in Minnesota in 2012 and does not want the same thing to happen to him.

  • 21. Mike in Baltimore  |  February 4, 2014 at 2:20 pm

    That's why Pence wants the vote this year, not in 2016, when he will also be on the ballot if he runs for reelection (unless he gets primaried out – there are many CONservatives in the state of Indiana who already consider him 'too liberal').

  • 22. Deeelaaach  |  February 4, 2014 at 5:44 am

    Why does this law sound suspiciously like the one that was used in the Loving v. Virginia case? I'm hazy on the particulars, but wasn't a similar law used to prosecute the Lovings for marrying outside Virginia? If that is indeed the case, that a similar law was used in the Loving case, how does that bode for us? I don't know if the law was struck down in the SCOTUS case or if some other rationale in effect mooted the law. I've read about the Loving case before, but the articles I've read did not provide that sort of analysis. Does anyone know more about this and how it relates to this Wisconsin case?

  • 23. Frisky1  |  February 4, 2014 at 6:03 am

    The Virginia law specifically applied to interracial couples:

    Leaving State to evade law. — If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage.

    The Wisconsin law is broader and applies to any marriage that would otherwise be illegal in the state. I would assume that the Wisconsin law would be allowed to stand, since states are allowed to define marriage–unless it was found to be an undue burden or overly harsh. however, granting gays and lesbians protected class would exempt them from the punishments of such a law. It could still apply to underage marriages.

  • 24. Bruno71  |  February 4, 2014 at 12:47 pm

    I'm not so sure it'd be allowed to stand, but it would be an interesting, probably novel, case before a court. Can a state act punitively towards a couple who marries out of state, rather than just not recognize the marriage? Imagine if there was a law in a state that said if you don't have a medical license to practice in that state, you could go to jail for getting a license to practice in another state while still residing in the original state. I'd think this type of law would not withstand any kind of proper logic.

  • 25. Deeelaaach  |  February 6, 2014 at 1:15 am

    Thanks for the info!

  • 26. Gregory in SLC  |  February 3, 2014 at 11:32 am

    I see the VA schedule tomorrow…but is it possible to listen to Oral Arguments?

  • 27. Mike in Baltimore  |  February 3, 2014 at 2:16 pm

    Very doubtful.

    In accordance with Rule 83.3 of the court, which states:
    "(A) General: The taking of photographs and operation of tape recorders in the [ ] courtroom or its environs, and radio or television broadcasting from a courtroom or its environs during the progress of or in connection with judicial proceedings, including proceedings before a magistrate judge or bankruptcy judge, whether or not Court is actually in session, is prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record; and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings. Environs, as used in this Local Rule, shall include any floor on which any courtroom or hearing room is located, including all hallways, stairways, windows, and elevators immediately adjacent to any such floor.

    (B) Exception: With permission of the party or parties to be photographed, pictures may be taken by any permanent occupant of any office within the environs aforesaid when the Court is not in session."

    Since the proceedings are not investitive or ceremonial, or involve naturalization, there seems to be little choice the judge can make on any type of broadcast.

  • 28. Gregory in SLC  |  February 3, 2014 at 2:47 pm

    Thx for info

  • 29. Jesse  |  February 4, 2014 at 10:54 am

    I'm looking forward to when the transcript is posted and I can always count on this site to provide us with the link to get it.

  • 30. Michael Grabow  |  February 4, 2014 at 12:43 pm

    Judge Arenda Wright Allen told those in the courtroom they would hear a ruling soon.

  • 31. Zack12  |  February 4, 2014 at 1:23 pm

    It's a no brainer. This law goes as far to ban private contracts between two people, there is no way to say something that far reaching isn't based on animus.

  • 32. sfbob  |  February 5, 2014 at 9:39 am

    That part always struck me as so over-the-top; it's wonder nobody challenged it the moment the law passed. Not only does it make no sense, it appears to undermine individual rights that the state simply has no business interfering with, for the sole purpose of inflicting harm. It really goes above and beyond the sort of right-stripping that Colorado Amendment 2 was struck down because of. How can a law prohibiting a person with the legal ability to enter a contract prevent someone from entering a contract that, on its face, would be legal under other circumstances possibly be constitutional?

  • 33. Colleen  |  February 4, 2014 at 9:52 pm

    A commentor on Towleroad was in the courtroom:

    "I felt a bit sad for David Oakley, the young lawyer making his case for the Norfolk Circuit Court Clerk as he was very badly out of his league with his argument…but that was not his fault since there was no serious argument that he could make to refute our guys. It was a bit funny, though, as he repeatedly said "unintended marriages" when he meant "unintended pregnancies" as a reason for the state to involve itself in marriages. David Nimocks, arguing for the religious folks yelling outside the courtroom and his Alliance Defense Fund, sounded like a tent revival preacher for about a minute until Judge Arenda Allen Wright grimaced and told him to lower his voice. That seemed to really rattle him!"
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  • 34. Ragavendran  |  February 5, 2014 at 9:01 am

    A news article that has more information than most:

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