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States Stop Defending Marriage Bans

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By Matt Baume

The race to the Supreme Court intensifies, with multiple new lawsuits and an expedited schedule. Oregon won’t defend its marriage ban in court, and a marriage lawsuit in Virginia might have reached a premature end. Plus polling from Louisiana shows progress, but it’s been slow.

This week’s new federal marriage lawsuits are in Colorado and Ohio. Nine couples have sued Colorado for the freedom to marry. The arguments are familiar: that the state’s marriage ban violates the due process and equal protection clauses of the US Constitution.

And a couple in Ohio has sued the state to obtain recognition of their marriage. This week the plaintiffs in a separate Ohio case asked for an expedited briefing schedule. That case is currently on appeal to the Sixth Circuit, so we could potentially have a Supreme-Court-ready decision in Ohio before the end of the year.

Four couples in an Idaho lawsuit want to put their case on a fast track too. They’ve asked the court to skip a trial and issue a ruling right away.

The attorney general of Oregon announced this week that she would not defend the state’s marriage ban. Ellen Rosenblum joins the attorneys general of California, Nevada, Virginia, Pennsylvania, and Illinois in refusing to defend what she considers an indefensible law.

After AFER’s huge victory in Virginia this month, the judge in another Virginia case is mulling whether to proceed. That second case, filed by the ACLU, is on a slower timeframe than AFER’s and may no longer be necessary.

And now polls in Louisiana show incremental progress in turning public opinion. Just 28% of voters favor the freedom to marry, an increase of only a few percentage points over the last twenty years.

52 Comments

  • 1. Rob  |  February 24, 2014 at 12:50 pm

    Wasn't the second VA case turned into a class-action suit? In that case, wouldn't it be relevant (and necessary) to pursue so it would apply to all VA couples? Or is it that the recent Fed Court decision (and a probable appeal) in the first case covers all VA couples. I am asking for selfish reasons 😉

  • 2. Stefan  |  February 24, 2014 at 3:21 pm

    The first case would cover all of Virginia, yes. Also, an appeal is not certain, since the constitutional clerk has not yet indicated that she will appeal.

  • 3. StraightDave  |  February 24, 2014 at 3:38 pm

    If the clerk comes to her senses and decides not to have her name muddied anymore, could another clerk step into her shoes as an intervenor/defendent to keep the case alive? I'm sure there are other candidates in VA who wouldn't mind "defending something or other". Or is this case limited to this clerk or this county?

  • 4. Kevin  |  February 24, 2014 at 3:52 pm

    I doubt it. First, it is *not* clear from Hollingsworth that county clerks or others occupying a purely ministerial function would have standing to assert the state's interest on appeal. Second, even if a court accepts this, it is not clear that another county clerk would be able to redress the plaintiffs' injuries. I do not know what VA law is on this point, but if it requires couples to apply for a marriage license in the county of their residence or places other restrictions on who may apply where, then another clerk would not be able to help the couples, even if ordered to by a judge, and therefore would not be allowed to join the case.

  • 5. Schteve  |  March 1, 2014 at 9:18 pm

    A named defendant who the court is forcing to do something unambiguously has the right to appeal.

  • 6. JustMe  |  February 24, 2014 at 4:43 pm

    A. Janet Rainey is the STATE registrar of vital records. She is not a county clerk.

    B. She filed a notice of appeal today (02/24/2014).

  • 7. JustMe  |  February 24, 2014 at 4:50 pm

    So did the clerk of the court, he filed notice of appeal today also.

    The final judgment in the case was just issued today (02/24/2014).

  • 8. Keith  |  February 24, 2014 at 5:02 pm

    Is there a link to this judgement (or story)?

  • 9. Ragavendran  |  February 24, 2014 at 5:34 pm

    http://hamptonroads.com/2014/02/order-striking-do
    I'd like to read the final judgment and their notices of appeal. Does anyone have access to these documents?

  • 10. Michael Grabow  |  February 25, 2014 at 7:45 am

    I'm looking for some clarity on this. Rainey changed her legal position, why would she and AG Herring appeal the ruling? Is this just to try and ensure that the process is expedited?

    This is from the clerk who also filed an appeal:

    “According to my counsel, if I failed to note an appeal, it is likely, and as I understand it, probable, the appeal process would be delayed, a result beneficial to no one,” Schaefer said.

    I also find this strange…if he didn't appeal, there would be no appeal process to be delayed, and that certainly is a beneficial result to some.

  • 11. StraightDave  |  February 25, 2014 at 8:09 am

    Some attorneys have their own agenda. It depends on who's paying the guy. I doubt the clerk is funding it, himself.

  • 12. ebohlman  |  February 25, 2014 at 10:32 am

    I have to assume that without an appeal upholding Judge Wright's decision, it would be vulnerable to future rulings by the 4th; an unfavorable ruling from NC or WV could invalidate the decision.

  • 13. Eric  |  February 25, 2014 at 6:40 pm

    It wouldn't invalidate the decision, Virgina had its day in court and lost. It could make the ruling non-persuasive in the district, but a later ruling can't invalidate something not before the court.

  • 14. Kevin  |  February 25, 2014 at 4:08 pm

    Sorry, I was answering the question that was posed.

  • 15. StraightDave  |  February 24, 2014 at 3:43 pm

    Matt, I think you're stretching the term "incremental progress" 🙂
    While more is certainly better, Lousyana is likely to be one of the last 5 states and probably will wait to get swept up in the big SCOTUS ruling.

  • 16. Pat  |  February 24, 2014 at 3:54 pm

    Yes, but who knows?
    I thought the last few states would include Utah and Oklahoma, and we got a nice surprise!

  • 17. StraightDave  |  February 24, 2014 at 5:53 pm

    Oh yeah, I thought so too. But those cases had nothing to do with public opinion, and neither will LA's.

  • 18. John  |  February 24, 2014 at 5:01 pm

    Update on the ballot measure on trans kids in California: It has failed to make the ballot.
    http://www.sos.ca.gov/elections/ballot-measures/p

  • 19. Sean from NJ  |  February 24, 2014 at 5:38 pm

    Excellent news!

  • 20. Michelle Evans  |  February 24, 2014 at 9:39 pm

    The news is indeed excellent, but the opponents of transgender rights in California have vowed to challenge this in court, and try to have the ballot measure move forward with a recount of the signatures. The bigots and transphobes will never give up.

  • 21. Jon  |  February 24, 2014 at 5:41 pm

    I wonder how much they spent on signature gathering. Given how much crap gets on the CA ballot, it seems like a massive embarrassment for the folks in charge to come up 5% short.

  • 22. Sagesse  |  February 24, 2014 at 5:45 pm

    Excellent news :).

  • 23. David  |  February 24, 2014 at 9:50 pm

    “And now polls in Louisiana show incremental progress in turning public opinion. Just 28% of voters favor the freedom to marry, an increase of only a few percentage points over the last twenty years.”

    it would be interesting to know what new polls you are referring to and where you see this incremental progress.

    https://en.wikipedia.org/wiki/LGBT_rights_in_Louisiana#Public_opinion

    “A February 2013 Public Policy Polling survey found that 29% of Louisiana voters thought that same-sex marriage should be legal”

    “An August 2013 Public Policy Polling survey found that 28% of Louisiana voters thought that same-sex marriage should be legal,”

    So if a more recent poll showed 28% support for marriage again, then that’s not even small progress. It means that the state hasn’t moved at in the last year.

  • 24. Pat  |  February 25, 2014 at 2:10 am

    Would be great to get a preview of today's Michigan trial. Like how long will it last, can we expect to get any live coverage from anyplace, how does the Daubert motion seeking to dismiss Regnerus work, what are the expectations in terms of timeline going forward, etc.

  • 25. JimT  |  February 25, 2014 at 5:46 am

    “Mark Regnerus is among the state's witnesses …. He later acknowledged that his study didn't look at children raised by stable same-sex couples.” 2 Week Trial to Begin on Michigan Gay Marriage Ban http://abcnews.go.com/US/wireStory/michigans-gay-

    And his study is going to be debunked again, ya think?

  • 26. Richard L  |  February 25, 2014 at 7:43 am

    Live coverage of the Michigan trial
    http://www.myfoxdetroit.com/story/24814009/2-week

  • 27. Ragavendran  |  February 25, 2014 at 1:44 pm

    From Amy's tweets, the ones from Brodzinsky's testimony that stood out most (paraphrased, of course):

    (1) "there is a wide range of variability for men and women and how they parent, depending on many factors"
    (2) "mothers tend to be more emotion focused – physical affection. Fathers more playful, boisterous, more task oriented"
    (3) "mothers' and fathers' parenting differ in style, not in competency. Women are probably better at parenting because they are the primary care provider, but both parents do same or different jobs depending on the role they are playing"
    (4) "there is no research shows children need male and female parents – it's not gender – it's quality of care"
    (5) "moms and dads are important as parents – not as women and men – the gender of parents doesn't predict the outcome."

    Note that some of these points, especially (3), may seem contradictory, but they are not, if "mothers" are not necessarily associated with "women" and "fathers" with "men". In summary, parenting roles (e.g., mother, father) and parents' genders (e.g., male, female) are (largely) INDEPENDENT.

  • 28. Josh  |  February 25, 2014 at 7:15 pm

    Very nice! Where can we read a full account of the trial each day?

  • 29. RAJ  |  February 25, 2014 at 9:38 am

    Looks like Regnerus' work is taking a drubbing on the stand right now at the hands of palintiff expert witness Brodzinsky:

    "Amy Lange @langeamyFOX2
    Brodzinsky- I've never seen it before – internal audit was done determined Regnerus study should not have been published"

    "Amy Lange @langeamyFOX2
    Brodzinsky- the study Regnerus did was so flawed it was determined it should not be published #gaymarriage"

    "Amy Lange @langeamyFOX2
    Brodzinsky-young adults in Regnerus study were not raised n same sex unions but n hetero families where a parent had a same sex relationship"

  • 30. Straight Ally #3008  |  February 25, 2014 at 10:32 am

    Looks like it will be eviscerated whether Regnerus himself is a witness or not. Excellent.

  • 31. StraightDave  |  February 25, 2014 at 10:33 am

    Cross exam of Brodzinsky will start at 2PM EST. He seemed to have his facts in order. Gonna be hard to poke many holes in.

  • 32. Ragavendran  |  February 25, 2014 at 11:19 am

    Brodzinsky- moms and dads are important as parents – not as women and men – the gender of parents doesn't predict the outcome

    Well said!

  • 33. Swenson  |  February 25, 2014 at 12:28 pm

    I am happy to reach here and custom writing available for those people who need quality services online. Just get on order.

  • 34. Josh  |  February 25, 2014 at 7:18 pm

    Aww Swenson, you sweetie!! 🙂 Where does that link take us?

  • 35. Keith  |  February 25, 2014 at 12:39 pm

    Equaldex, which had its official launch today, is a collaborative LGBT rights website aimed at crowdsourcing every LGBT-related law around the world. The site provides users an accurate and comprehensive global view of LGBT rights, with the use of maps, timelines, statistics, and historical data in each country and region. Users are credited for contributing information to Equaldex, giving them an extra incentive to continuously update the site. Each user has a profile that shows contributions they've made, the amount of "accurate" votes their contributions received, and the regions to which they’ve contributed. http://equaldex.com/

  • 36. Dan Leveille  |  February 25, 2014 at 1:27 pm

    Thanks so much for sharing, Keith! 🙂

  • 37. JayJonson  |  February 25, 2014 at 1:50 pm

    Am I the only one here who has some suspicion of the Michigan judge and his decision to hold a full trial rather than simply rule on the law, i.e., give a summary judgment? I think it is strange for a judge to suggest that the couple expand their suit from an issue of adoption to the question of marriage equality and then stage a trial that will highlight the fraudulent Regnerus study. He is a Reagan appointee who is best known for ruling against affirmative action and the Environmental Protection Agency.

  • 38. Keith  |  February 25, 2014 at 2:01 pm

    It sounded a bit odd to me as well.

  • 39. Zack12  |  February 25, 2014 at 2:02 pm

    There are some question marks but there is also the fact that if he rules the adoption ban unconstitutional there would likely be a lawsuit against the ban itself in front of him in short order.
    Maybe he wants to kill two birds with one stone.
    As for his other rulings, he could be a mold like Kennedy.
    Great when it comes to our issues and on capital punishment, a #@! on a lot of other ones.
    I have friends that support marriage equality 100% but mention abortion or welfare.. YIKES!

  • 40. Ragavendran  |  February 25, 2014 at 5:06 pm

    I'm perplexed by the judge's suggestion to the Plaintiffs to expand their suit. As to the decision for holding a trial, note that the judge is 70 and admitted to being nervous about this case during the last hearing. Remember, Walker (coincidentally also 70 now) did the same in California four years ago. I think I mentioned this in another comment sometime back, but I'll repeat my thoughts here. My feeling is that this trial is a good thing. It has been 4 years since the Prop 8 trial in which all these fake studies that claim same-sex parenting is detrimental to children were debunked. People need a reminder. This judge is taking the time to build a strong foundation for this case as it makes it way to SCOTUS. (We already have enough cases that will make it to SCOTUS during their next term, wherein the broad consensus is that the nine will most likely deny cert to any case that fully challenges a state ban on same-sex marriage. This one is moving slower and will likely not make it there until the term after next, at which time it will be ripe for at least four justices, just like Hollingsworth.)

    Walker gave a talk at Caltech during Gaypril last year and I was there in the audience. He said that the reason he decided to conduct a full trial in Hollingsworth was that it is so much harder for appellate courts to overturn decisions on cases with a trial background on its merits, especially due to the "findings of fact", which cannot be erased. For example, look at what the 9th and SCOTUS did with Hollingsworth. Neither dared delve into the merits in their decision – they both ruled on procedural grounds: the 9th said a State having given certain rights cannot take them back (Romer to the rescue!), and SCOTUS simply dismissed the case on standing issues, vacating the 9th's decision. What's more, even the dissenting justices in SCOTUS, admittedly an oddball coalition, while admitting that they think the merits of the case should be addressed, stopped short of actually doing so. I at least expected Kennedy, who actually delivered a "federalism-based" dissent, to address the merits in some manner, but he didn't.

  • 41. Kevin  |  February 25, 2014 at 5:48 pm

    I don't think there is any consensus either way as to whether the SCOTUS would grant cert to a case challenging state constitutional ME bans.

  • 42. Kevin  |  February 25, 2014 at 5:49 pm

    Also, the 9th Circuit's decision was in no way procedural. It invalidated Prop 8 applying Romer.

  • 43. Ragavendran  |  February 25, 2014 at 6:10 pm

    You are right. I meant to say that the 9th Circuit didn't get to discussing whether Walker's decision was right or wrong, namely, that Prop 8 was unconstitutional on due process and (a stronger) equal protection grounds. They chose to wiggle out of that and rule based on a third, weaker equal protection argument that would only apply to California and not other states.

  • 44. Eric  |  February 25, 2014 at 6:45 pm

    They had to work around High-Tech Gays at the time.

  • 45. Ragavendran  |  February 25, 2014 at 6:50 pm

    Eh? Who're those gays who filled the chambers of these justices so they had to work around them? (Just kidding.)

    On a more serious note, how did Walker work around high tech gays? Wasn't it binding on the district court as well?

  • 46. Eric  |  February 25, 2014 at 7:07 pm

    Someone else would have to answer that. My area of expertise is Third Amendment appeals.

  • 47. Jay  |  February 25, 2014 at 5:56 pm

    We know that Judge Walker did a wonderful job in staging the Proposition 8 trial, which has established important facts that have been the basis of many rulings in addition to those concerning Proposition 8. I don't trust Judge Friedman to be as scrupulous and fair-minded as Judge Walker. I question his motivations. He obviously wants attention. I hope he does not have malign intentions like the judges in the Nevada and Hawaii cases had.

  • 48. Zack12  |  March 2, 2014 at 6:15 am

    He's not a Mormon so he has that going for him.

  • 49. Schteve  |  March 2, 2014 at 2:24 am

    The findings of fact in question here don't actually mean anything to the Supreme Court. They aren't like typical findings you would see in a criminal case. Read the final footnote in Justice Alito's Windsor dissent where he spells out how absurd he thinks the idea that they are bound by Hollingsworth's findings of fact is.

  • 50. Ragavendran  |  March 2, 2014 at 11:53 am

    Interesting – I hadn't noticed that. In the end (of that footnote), he says, responding to claims that the findings of fact of the district court, when clearly not erroneous, must bind any appellate court, "Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously." I'm just aghast at this sentence. To me, it only reveals Alito's own arrogance – as a lawyer and a Supreme Court Justice, he must at least try to explain clearly why he thinks such fact findings are not binding, which he never did in that footnote. (He only says that in his opinion, those findings of fact aim to answer an intractable question. But is this enough justification? What defines an intractable question? What should have been done if not findings of fact?)

  • 51. Eric  |  February 25, 2014 at 6:58 pm

    There are material issues of fact in dispute. This is also an adoption case, not just a marriage case, like Prop 8.

  • 52. ebohlman  |  March 2, 2014 at 11:17 am

    Apparently Michigan's marriage law and family law are intertwined in a way they aren't in, say, Utah (where Judge Shelby noted that they were completely independent, belying Utah's claim that that their marriage law was primarily about children).

    That appears to be why Judge Friedman "advised" De Boer et.al. to challenge the marriage ban; my vague recollection of the early stages of the case was that he told them that they didn't have a case if they were going to challenge the adoption ban alone.

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