Sign Up to Receive Email Action Alerts From Issa Exposed

Archives – April, 2014

Fourth Circuit allows a full hour of arguments in Virginia same-sex marriage case

The Fourth Circuit Court of Appeals will hear an hour of arguments in Virginia’s marriage equality case.

Continue 24 Comments April 23, 2014

The National Organization for Marriage wants to intervene in the Oregon marriage equality case

NOM is attempting to intervene in challenge to Oregon’s same-sex marriage ban.

Continue 60 Comments April 23, 2014

Ninth Circuit receives briefs in gay juror discrimination case

The Ninth Circuit Court of Appeals will decide whether to rehear a case involving a gay juror who was struck from the jury based on his sexual orientation.

Continue 72 Comments April 22, 2014

Prop 8 Lawyer Plans Lesbian Daughter’s Wedding

By Matt Baume

The lawyer who led the defense of Proposition 8 now says his attitudes are evolving as he plans his daughter’s lesbian wedding. Michigan officials are trying to invalidate hundreds of couples’ marriage licenses, but now those couples are fighting back. And a Judge in Ohio has issued one of the most strongly-worded rejections of a marriage ban to date.

For decades, Charles Cooper has been one of the country’s leading legal opponents of marriage equality. And now, he’s planning his daughter’s lesbian wedding. We last saw Cooper defending Prop 8 at the US Supreme Court. And his history with marriage bans goes back to the 1990s, when he argued against the freedom to marry in Hawaii.

But now Cooper’s step-daughter, Ashley Lininger, is planning marry her fiancee Casey Cole this coming June. Cooper supports her, and says that his attitude on marriage equality is evolving. He also indicated that the Prop 8 plaintiff couples Sandy and Kris are an inspiration to his family. The revelation comes from Jo Becker’s new book, Forcing the Spring a behind the scenes look at the Prop 8 litigation.

Married couples in Michigan are fighting to keep their marriages. The couples wed a few weeks ago after a court overturned the state’s marriage ban, and before the court halted the weddings pending appeal a few hours later. Michigan is now refusing to recognize those marriages. But in response, eight couples have now filed suit against the state.

There’s been another victory in Ohio: Judge Timothy Black has ruled that four couples who sued the state can now get married. But until the case has exhausted its appeals, no other couples than those four can wed. But Black’s ruling was emphatic. He stated that Ohio’s marriage ban is “staggeringly devoid of any legitimate justification for the state’s ongoing arbitrary discrimination.”

A federal court in Oklahoma overturned a marriage ban a few months ago. Last week the 10th circuit heard oral argument in an appeal. We’ll likely have a ruling in that case and a similar case in Utah sometime this summer. And a judge in Arkansas has announced that he’ll likely issue a ruling in a marriage case two weeks from now.

In Oregon, Judge Michael J McShane will hear oral arguments on Wednesday of this week. The outcome of that case will determine whether the state moves ahead with a marriage equality ballot measure. A new study from the Williams Institute shows that marriage equality would generate $47 million for Oregon’s economy.

19 Comments April 22, 2014

Tenth Circuit Focuses on Standing

First, if you haven’t read Scottie’s report, close this tab, and go read his post now. I think you can gain a lot through a listen or two of the audio (MP3 file available here), but there is just nothing that can make up for the ability to see the argument in person and view the body language of the judges. It is one of the reasons that I am so supportive of the work that Scottie has been doing. If you are able, consider clicking on that donate button up top.

Anyway, I have now had an opportunity to listen to the tape, and I guess the biggest thing I can say is: standing, Standing, STANDING. I figured it would come up, but not that the plaintiff’s attorney would spend almost all of his time on standing. Briefly, wikipedia has the following definition for standing: “ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” That’s perhaps more broad than we need here, but basically it means that you want parties that can best represent the issues to the court.

If you look back to the previous 10th Circuit panel which dismissed the case for standing, the court basically told the plaintiffs to sue the county clerk as the best representative of the judicial branch that authorizes marriages in Oklahoma. And that’s what the plaintiff said as he was trying to steer conversation back to the more substantive issues. And maybe they haven’t found the exact perfect defendants, but I believe that at least two of the judges were leaning towards finding standing.

Now, the related questions that seemed to be most troubling for the three judges was standing for the question of whether the court had standing when legally married same-sex couples from other states tried to be recognized in Oklahoma. The judges seem to clearly understand that the clerk took action when issuing a new license, but when you move from, say California, to Oklahoma, do married couples go to the clerk? And who would be the right person to sue for that? Is there a right person at all?

It was at this point that Judge Lucero brought up the concept of “Capable of repetition, yet evading review.” This is a concept under the mootness doctrine that allows courts to hear cases even when the case isn’t really at issue anymore. Your textbook example of that is a case involving a pregnancy. The pregnancy ends, but the issue will remain for other women. The same could also be said to be the case here.

The other side of out of staters coming in was the question of “severability.” That is, if the panel strikes down the licensing provision, would the whole scheme fail? Or could the ban on out of state couples endure? That result would be something of a head scratcher, and really make no practical sense. But, I suppose it could happen if you don’t strike down the whole provision, and then the court can’t reach a decision on out of state marriages.

In the end, one suspects that much of this conversation will be academic. If the court decides to strike down the whole same sex ban, then the question of out of state marriages probably becomes a logical victim of circumstance and practicalities. As for the substantive issue, I don’t think we can read a whole lot more into today’s hearing than we got from the judges questions in the Utah case.

If I were a betting man and pressed on the issue, I’d be inclined to say 2-1 in favor of equality for both cases. But I think Holmes and Kelly could yet go either way. Holmes may just find that a simple rational basis test compels upholding the ban. Or perhaps Kelly could even switch over to striking down the measure on a heightened scrutiny basis. Reading the tea leaves on judges questions is a tough, tough business, so perhaps we just have to hope that the decision comes down soon.

206 Comments April 17, 2014

Tenth Circuit hears arguments in challenge to Oklahoma’s same-sex marriage ban

Analysis and highlights from the Tenth Circuit arguments in Bishop v. Smith, from outside the courtroom in Denver, Colorado.

Continue 71 Comments April 17, 2014

Next page Previous page