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Kentucky same-sex marriage ban ruled unconstitutional

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Kentucky state sealIn Love v. Beshear, a federal district court judge has ruled that Kentucky’s ban on performing same-sex marriages is unconstitutional.

From the opinion:

For the reasons that follow, this Court holds that the Commonwealth’s exclusion of same-sex couples from civil marriage violates the Equal Protection Clause.
Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely “free” constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future.

The decision is stayed pending further action in the Sixth Circuit Court of Appeals.

A challenge to the state’s refusal to recognize same-sex marriages performed elsewhere, Bourke v. Beshear, is on appeal in the Sixth Circuit. That case will be heard, along with cases from four other states, on August 6.

EqualityOnTrial will have more on this developing story.

Thanks to Kathleen Perrin for these filings


  • 1. BillinNO  |  July 1, 2014 at 9:41 am


  • 2. RnL2008  |  July 1, 2014 at 9:43 am

    Is this a new ruling? or one already on appeal?

  • 3. brandall  |  July 1, 2014 at 9:47 am

    This is a new ruling applying to the state of Kentucky. He previously ruled out-of-state marriages must be recognized.

    Best quote of the day from his ruling: "These arguments are not those of serious people"

  • 4. davepCA  |  July 1, 2014 at 10:25 am

    … And the sentence which follows right after that one, too! :

    " Though it seems almost unnecessary to explain, here are the reasons why."

    It's great to see the courts getting very blunt about knocking down the bogus "arguments".

  • 5. JayJonson  |  July 1, 2014 at 11:31 am

    I like the next paragraph:

    "The state’s attempts to connect the exclusion of same-sex couples from marriage to its interest in economic stability and in “ensuring humanity’s continued existence”are at best illogical and even bewildering."

  • 6. Terence  |  July 1, 2014 at 2:11 pm

    "….at best illogical and even bewildering."

    Yes, I thought so too, when I first read them. It's great that courts are willing to state the obvious.

  • 7. StraightDave  |  July 1, 2014 at 2:42 pm

    He could have saved a few more pages, cut to the chase, and just called the whole thing "asinine". I really haven't seen this much of a collective impolite smack-down by all the federal judges in… well, forever.

  • 8. Bruno71  |  July 1, 2014 at 8:01 pm

    It's almost difficult for me to get used to these rulings. They're so disparate and enjoyable, each and every one of them. It's hard to believe it's only been 8 years since the New York State Court of Appeals smacked gays and lesbians in the face with their disgusting ruling. Gotta wonder what the 5th Circuit will come up with, though. Who knows, maybe they'll go crazy and jump on the equality gravy train too.

  • 9. StraightDave  |  July 1, 2014 at 11:38 pm

    The 5th? Naahhhh. I'd be genuinely shocked.
    What I expect is something like "Rational basis, fellas. Oh yeah, fer shur. That means they don't need a reason, right? Yeah, but I'm sure that musta had one anyway. Whatever it was, it counts. OK, we're done here. Next!"
    and I'm sure they'll cite the doofus in NV in Sevcik.

  • 10. Ragavendran  |  July 2, 2014 at 5:05 am

    Kelly's dissent will give them plenty of fodder.

  • 11. Roulette00  |  July 1, 2014 at 12:02 pm

    Of particular interest is the way he addresses the unspoken argument: to wit, that if gay marriage were illegal, fewer people would choose to be gay. It's the only possible connection between SSM bans and "encouraging heterosexual parenting." Those who support the ban have tacitly assumed that gayness is a choice and their law could encourage a different choice.

    The opinion cuts that argument down to size. "Even if sexual orientation can be changed, it is fundamental to identity, so the law should not require such a change." Or words to that effect. He compares to religion, nationality, and sex, which are protected classes even though, technically, they can be changed at some difficulty.

  • 12. davepCA  |  July 1, 2014 at 12:30 pm

    Yup. Even if you were to give the opposition an enormous amount of latitude and concede the entire question of whether orientation is immutable, a law that is enacted for the supposed purpose of trying to make gay people 'chose' to become straight would still fail these basic tests for Constitutional Compliance. Because there is no states interest advanced by a law that would do that, even if it actually accomplished that.

  • 13. ebohlman  |  July 1, 2014 at 12:59 pm

    Actually, I can think of another hypothetical connection: straight couples could stop marrying because they don't want to do something those Icky Gay People also do, much like middle-school kids will quit listening to a particular band if it becomes popular among kids in rival cliques. Since we do not in general allow middle-school kids to marry, I don't regard this argument as very plausible.

  • 14. tkinsc3  |  July 3, 2014 at 4:38 pm

    Well it's undeniable that part of the "pizazz" of marriage is the celebration of the uniting of the two sexes. Say that marriage is something two guys or two girls can do, and more than a few guys, and girls, will be turned off to the whole idea.

  • 15. ebohlman  |  July 3, 2014 at 5:13 pm

    I really really shouldn't be doing this, but:

    I read that as "celebration of the guy scoring". Again, an important reason for the age requirement for marriage is to ensure that the parties have grown out of attitudes like that.

  • 16. StraightDave  |  July 3, 2014 at 6:40 pm

    If that's the reason, then they're going to have to raise the age limit considerably 🙂

  • 17. Mike_Baltimore  |  July 1, 2014 at 1:32 pm

    Growing up, I knew I was of German and French ancestry on my father's side, and English and Irish ancestry on my mother's side (I know, strange combinations).

    After doing a lot of genealogical research (many would consider that the difficulty factor), I also found that I have Scottish, Swiss, and Dutch ancestry on one or both sides of the family, and possibly others (the rumor on the paternal side of the family is that there also might be upstate New York American Indian in there, for instance, and there is also a rumor that one of my English ancestors accompanied William the Conqueror from Normandy to England in 1066. Does Norman ancestry count as French ancestry, or is it different? I've seen arguments made on both sides of that argument, but I'm not yet ready to say yes or no either way.).

    (My Dutch ancestry, especially, can be somewhat difficult to trace, as there have been at least two or more name changes, and that ancestry [in what is now the US] goes back to the mid-1600s, almost as far back as some of my English ancestry in what is now the US [1634, some of the original colonists in Maryland].)

  • 18. Terence  |  July 1, 2014 at 2:14 pm

    Not entirely strange – mine are similar:

    German / Irish on father's side, Dutch (Afrikaans) / English on mother's. But then, most "White" Saffers are some kind of mongrel breed

  • 19. JimKane210  |  July 1, 2014 at 4:50 pm

    Personally, my favorite was "In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted," U.S. District court Judge John G. Heyburn II

  • 20. Roulette00  |  July 1, 2014 at 9:47 am

    It appears to be a new ruling. Kentucky previously overturned the anti-recognition law, which is already scheduled to be heard at the Sixth Circuit. What I wonder is whether this too can be crowded into that packed schedule.

  • 21. Scottie Thomaston  |  July 1, 2014 at 9:50 am

    Probably too late to be considered directly. But the Sixth Circuit is hearing a case that asks the same questions as this one: the challenge to Michigan's ban.

  • 22. brandall  |  July 1, 2014 at 9:52 am

    I love this phrase "anti-recognition law". While we all appreciate we are fighting for ME, that phrase has more zing to it and changes the position in one phrase.

  • 23. Terence  |  July 1, 2014 at 2:38 pm

    It's an important phrase. What most people don't realise, is that there's (usually) no need to legalize gay marriage, because it's not in fact illegal. There are exceptions, but in most states and in most countries (even in Africa), gay couples can get married with ease, just as soon as they find a co-operative celebrant / minister and venue.

    It's getting that marriage recognized in law, with all the documentation and legal privileges that follow, that's the catch.

  • 24. JamesInCA  |  July 1, 2014 at 4:20 pm

    I generally refer to them as "anti-marriage" laws.

  • 25. Scottie Thomaston  |  July 1, 2014 at 9:48 am

    This is a new ruling. There is one from Kentucky on appeal to the Sixth Circuit, but that one only challenges Kentucky's refusal to recognize out-of-state marriages. This set of plaintiffs is challenging the ban itself, ie, the state's refusal to perform same-sex marriages. The district court allowed their claims to go forward.

  • 26. OctaA  |  July 1, 2014 at 9:49 am

    This is a new ruling.

    Back in February Judge Heyburn struck down the out of state recognition ban only but invited the plaintiffs to also challenge the actual marriage ban. Briefing for that was completed in late May and today Judge Heyburn has issued his ruling striking down the rest of the marriage ban.

  • 27. RnL2008  |  July 1, 2014 at 11:10 am

    Thanks to all who replied……there are so many cases going right now, it's hard to keep track without a scorecard…….lol!!!

  • 28. Pat_V  |  July 1, 2014 at 2:46 pm

    For what it's worth, I have been trying to keep a scorecard, always available at
    I was away last week, so it was not very up to date, but I have managed to catch up with all the exciting developments (I hope).

  • 29. StraightDave  |  July 1, 2014 at 3:06 pm

    That is still worth doing, Pat, perhaps even more so today with the incoming tsunami of cases. I definitely appreciate your efforts to stay current.

  • 30. RnL2008  |  July 1, 2014 at 5:43 pm

    Thank you….got it saved so I can find it easier!!!

  • 31. RobW303  |  July 1, 2014 at 5:12 pm

    It's a ruling in a separate case. The first case, for recognition of out-of-state marriages, was Bourke v. Beshear. This case, for the right to marry in-state, is Love v. Beshear.

  • 32. RnL2008  |  July 1, 2014 at 5:43 pm

    Thanks Rob for the information!!!

  • 33. brandall  |  July 1, 2014 at 9:44 am

    I'm modifying a thought from davep62 from yesterday:

    This is now officially "The Summer of Love for ME"

    We have until September 23rd (first day of Fall) to pack in every possible ruling.

  • 34. StraightDave  |  July 1, 2014 at 10:55 am

    By then I'd expect:
    Bostic ruling in 4th circuit
    Bishop ruling in 10th
    9th hearing – NV,ID,HI arguing in the face of heightened scrutiny – hopefully viewable live as Perry was
    Kitchen motion for cert (surely an amusing read)
    dare we hope a FL ruling?

    We're not likely to get bored.
    Oh yeah, and the deafening silence from GOP politicians.

  • 35. OctaA  |  July 1, 2014 at 11:20 am

    I'd also expect the rulings from Colorado and Louisiana and the 6th hearing.

    Also possibly possibly the 7th hearing? Seeing as the final brief will be in August 5th and it is expedited I would hope for a hearing before 23rd September.

  • 36. ebohlman  |  July 1, 2014 at 1:16 pm

    The 6th is considered one of the slower circuits, though not as slow as the 9th (in the last several years, it's also overtaken the 9th as the most-overturned circuit).

    The Louisiana case now has to go through a second cycle of briefing because the judge said he wouldn't do what Heyburn did and rule separately on recognition and celebration (the case started as a recognition-only case).

  • 37. OctaA  |  July 1, 2014 at 6:48 pm

    The original post was asking what we were likely to see by September 23rd.

    The 6th hearing has already been scheduled for August 6th.

    And whilst the Louisiana case has to go through a second cycle of briefing, the briefing will be complete mid-late July so I'd expect a ruling sometime in August and definitely by late September.

  • 38. ebohlman  |  July 1, 2014 at 7:24 pm

    The 6th is extremely unlikely to rule that quickly after the hearing; Sept 23 is only a month and a half from August 6. The 10th, which is considered a fast circuit, took two and a half months to rule on the first of the two cases it had. The 6th is considered a slow circuit and it has 5 cases (two of which are consolidated) to deal with.

  • 39. Mike_Baltimore  |  July 1, 2014 at 8:32 pm

    Also consider, the 4th Circuit Court of Appeals is considered the 'fastest' (average of about 4-1/2 months from receipt of appeal to decision). The Bostic case was heard on May 12, but there still is no decision handed down in the 4th.

    I would expect it soon, or certainly by September 23, but we are approaching 2 months since the hearing and still no decision.

  • 40. ebohlman  |  July 1, 2014 at 8:57 pm

    The 10th's decision probably delayed the 4th because they need to address the most recent case law. That also might be what's holding up the state decision in CO. It's conceivable that within the second half of the year we might wind up with a situation where two or more courts temporarily deadlock because they're all waiting for each other to rule. I suppose that would fall under "problems we're lucky to have".

  • 41. OctaA  |  July 1, 2014 at 11:09 pm

    Oh I don't expect the 6th circuit to issue a ruling, I was merely pointing out that the hearing will have been heard.

    StraightDave mentioned in his list the 9th hearing which will be held September 8th. I certainly don't expect the 9th to rule by Sept 23rd either. I was merely expressing that as well as the 9th having their hearing before Sept 23rd that the 6th and possibly 7th circuits will have held hearings as well.

  • 42. Dann3377  |  July 1, 2014 at 9:57 am

    More great new!

  • 43. jpmassar  |  July 1, 2014 at 10:01 am

    When you've lost Kentucky, you've lost all states that begin with K.

  • 44. brandall  |  July 1, 2014 at 10:06 am

    Which states are remaining where there is no state ruling? Off the top of my head (I should have built a spreadsheet last June), I can think of Texas, Florida, Nevada, Virginia, Colorado, and Missouri.

    It is now easier to count the number of remaining states with no ruling instead of the number of states with a positive ruling.

  • 45. JohnnyInVA  |  July 1, 2014 at 10:24 am

    Actually, Texas, Nevada, and Virginia all already have rulings (though NV was ruled in support of the SSM ban pre-Windsor)

  • 46. F_Young  |  July 1, 2014 at 10:33 am

    brandall: "Which states are remaining where there is no state ruling? "

    There are shown in burgundy or bright red on this Wikipedia map.

    Mysteriously, the map did not need to be updated today since Kentucky had already changed to dark gold on June 27.

    This is a Wikipedia map of pending litigation:

    The states with stayed decisions are listed in this Wikipedia table, but it has not been updated for Kentucky yet:

  • 47. Tinmanic  |  July 1, 2014 at 11:10 am

    Actually no, I updated it to gold today.

  • 48. F_Young  |  July 1, 2014 at 1:19 pm

    Thanks, Tinmanic, and to the others who have been updating the Wikipedia maps.

  • 49. DoctorHeimlich  |  July 1, 2014 at 1:27 pm

    There are 17 states that do not yet have marriage equality or any kind of judicial ruling in support of it:

    Alabama, Alaska, Arizona, Florida, Georgia, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada*, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, and West Virginia.

    * Nevada has a case long on appeal, of course, but the district court judge (pre-Windsor) ruled AGAINST marriage equality.

    4 other states could also be added to that list with an asterisk:

    * Ohio has a ruling regarding recognition of out-of-state messages, but no ruling within its own borders.

    * Colorado, Kansas, and Wyoming have had no state level rulings as of yet, but are within the 10th Circuit, covered by the recent Kitchen ruling. (Colorado could have a state level ruling any day now; the judge in Brinkman v. Long said after the hearing two weeks ago that he'd be weighing in "soon.")

  • 50. ebohlman  |  July 1, 2014 at 3:23 pm

    Add Tennessee to the asterisk states, since there's a preliminary injunction in Tanco (now under appeal in the 6th).

  • 51. DoctorHeimlich  |  July 1, 2014 at 3:26 pm

    Quite so. I should have listed Tennessee with Ohio.

  • 52. brandall  |  July 1, 2014 at 6:42 pm

    Thank you. I will take this info and build a Google Apps calendar of all upcoming announced hearing dates for our mutual use.

  • 53. tornado163  |  July 1, 2014 at 10:06 am

    Well Kansas was essentially lost as a result of the 10th Circuit decision, so that's both K states. Which also means that same-sex couples could get married across the street from the Westboro Baptist Church.

  • 54. brandall  |  July 1, 2014 at 10:23 am

    It could now be a chapel!

  • 55. KarlS  |  July 1, 2014 at 10:46 am

    And the ones that end in Y too!!!!


  • 56. Corey_from_MD  |  July 1, 2014 at 10:52 am

    Sh*t, the whole alphabet is about to go up in smoke soon… LOL!

  • 57. davepCA  |  July 1, 2014 at 10:02 am

    Wow. Kentucky. This is just wonderful!

  • 58. davepCA  |  July 1, 2014 at 10:12 am

    …. and heightened scrutiny applies:

    "The Court next considers whether the statutory classification at issue justifies heightened equal protection scrutiny, that is, whether homosexual persons constitute a suspect class. The Supreme Court has never explicitly decided this question. For the reasons that follow, the Court holds that they do. "

  • 59. brandall  |  July 1, 2014 at 10:16 am

    It's only 19 pages. Considering the length of some of the other rulings, 19 pages is speed reading for today.

  • 60. StraightDave  |  July 1, 2014 at 11:04 am

    All they really need these days is:
    – Page 1 boilerplate
    – Table of Authorities
    – Q.E.D.

  • 61. DocZenobia  |  July 1, 2014 at 10:20 am

    Marriage equality ruling pocket computer. 🙂

  • 62. brandall  |  July 1, 2014 at 10:26 am


    Judges in remaining states with no rulings can now use this to generate their decisions in just minutes. There is now no reason we can't have all the state level rulings in before Fall.

  • 63. davepCA  |  July 1, 2014 at 10:20 am

    … I like the way it goes through the four considerations that determine suspect classification, succinctly shows that heightened scrutiny applies, and that therefore the state must show that the sexual orientation classification imposed by Kentucky’s laws is “substantially related to an important governmental objective”, and then immediately proceeds with "Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review." The court is telling the state 'you're not even close'.

  • 64. tkinsc3  |  July 3, 2014 at 4:20 pm

    …and then stays the decision anyway LOL

  • 65. sfbob  |  July 1, 2014 at 10:24 am

    One thing that I continue to find quite perplexing is that, as other judges have done in other marriage equality rulings, Judge Haywood seems to go out of his way to AVOID finding that bans on marriage equality were based in part on animus. And just as others have done, a perusal of even the stated reasons for implementing marriage equality bans, when you boil them down, show the lengths people will go to in order to avoid granting gay men and lesbians the right to marry. While the expression "a classification undertaken for its own sake" certainly comes to mind" a more pedestrian form of that would be "we don't want to; we do not like those people and will take any opportunity to deny them full equality under the law." If that isn't animus, I don't know what is.

  • 66. RCChicago  |  July 1, 2014 at 10:31 am

    I read—somewhere, sometime—that in the legalese world, this issue of animus would muck up the works for reasons that non-legal types can't clearly understand. Hopefully, someone with more knowledge on this issue will step in to clarify for all of us.

  • 67. DrPatrick1  |  July 1, 2014 at 7:45 pm

    Although animus alone cannot be the legal foundation for a law (Ty Lawrence) it's presence is insignificant to whether the law is constitutional. By avoiding labeling these laws as demonstrating animus, which they clearly do, they judge can maintain the appearance of impartiality.

    Notably, I do think there are a minority who oppose ME for other reasons than animus. However, this really is not relevant to whether the law is constitutional.

  • 68. ebohlman  |  July 1, 2014 at 10:39 am

    I think it's just a desire to avoid reaching an unnecessary conclusion that would invite higher courts to strike it down. Basically, case law has shifted to the extent that findings of animus are no longer necessary the way they were in the days of Romer. The prevailing opinion is now that marriage-ban amendments violate the 14th Amendment whether or not they were enacted in good faith. Refusing to address the latter issue deprives opponents of a talking point without weakening the ruling.

  • 69. brandall  |  July 1, 2014 at 10:52 am

    But, of course they are. They are trying to avoid getting into defining the need for creating a new protected class. This is, and remains, the elephant in the room. At the time Gavin Newsome started the SF marriages, there was a large amount of debate among the gay rights organizations that gay marriages (the phase ME came along later) did not really provide the foundational rights the community needed. ME was certainly easier for everyone to understand, but the core issue of basic discrimination is still not solved across the entire country.

    I remember thinking gay marriages was an awful idea at the time. It would create a huge backlash and not really win the rights we deserved. People who know me would say I do not come across as gay, yet I was fired twice when it was discovered I was. From my personal experience, marriage was the wrong path to take. I wanted to ensure others could not be fired, tossed out of their apartments, run out of a small town, etc.

    Obviously, I was wrong. Yes, there was a terrible backlash, but no one could have predicted the landscape would change so drastically in less than 10 years. While I have no doubt we have already won ME in the U.S., I'll wager after June, 2015, the fight will have to turn to animus head-on and the need to be a protected class since ENDA will not get passed in the near future.

    We will all be blogging on EoT long after ME is concluded.

  • 70. SeattleRobin  |  July 1, 2014 at 12:37 pm

    I've also been fired twice for being gay. But knowing that's what happened and being able to prove it are two very different things. In the second instance, the woman in HR even privately told me she knew that was behind it. But she had no legal proof either. So while I strongly believe we need ENDA, in practical terms such laws are generally only useful in extreme or blatant cases.

    The advantage pushing for marriage equality has had is that when granted, there are immediate practical results. I also think that all the discussion around the issue has let more straights come to see us as good neighbors, not scary perverts, which enhances overall equality. That translates into less discrimination in general, reducing the need for other laws, and hopefully makes passing them easier.

    Like you, I saw things in reverse at one time also. Laws that apply to us all on the surface seem more important, and not everyone wants to get married. But sometimes the less obvious path is better in the end. I have also realized over the last few years that while I had escaped from internalizing homophobia for the most part, despite my formative years being the Anita Bryant years, I had still managed on a hidden level to be indoctrinated with the idea that gay couples are second class couples. The fight for marriage equality unearthed that and made me face it, and I suspect I'm not alone. Anything that helps root out these little hidden surprises in our psyches is a good thing.

  • 71. Mike_Baltimore  |  July 1, 2014 at 1:00 pm

    The problem I see with ENDA is that it will be extremely difficult to prove a firing was because the boss thought or knew a person was homosexual.

    It's similar to the current law on age discrimination – it actually is fairly easy to skirt the law by saying the person isn't performing their job according to the rules, or for whatever reason (except age). Knowing why, and proving why, are two different things, and in a court, knowing why is not enough, but being able to prove it is the only way to win the case. And proving the case can be difficult to impossible.

    That is a major reason why wage discrimination cases won by the employee(s) can be such headline cases.

  • 72. ebohlman  |  July 1, 2014 at 1:23 pm

    Suspect or quasi-suspect status doesn't create any protections against private discrimination: that's purely a matter of statute law. Disability is a non-suspect classification (subject only to rational basis review) yet there are multiple Federal statutes barring private discrimination against people with disabilities in employment, public accommodations, housing, transportation, communications, etc.. Legitimacy of birth is a quasi-suspect classification (subject to intermediate scrutiny) yet there are no statutes I'm aware of that protect "bastards" from discrimination.

    The only way the 14th Amendment enters into the private-discrimination realm is that, per Romer, states can't single out particular groups and make it more difficult for them than others to take measures to get protective statutes enacted.

  • 73. JayJonson  |  July 1, 2014 at 11:01 am

    Yes, the Fourth Circuit also specifically avoided finding animus. What I find a little discombobulating is that Windsor clearly found animus–Kennedy said that the only reason DOMA was passed was to make same-sex marriages inferior to opposite-sex marriages.

  • 74. FredDorner  |  July 1, 2014 at 11:20 am

    Don't forget that Windsor wasn't the only case potentially before the court. Judge Tauro in the 1st circuit had examined the legislative record of DOMA and found nothing but animus and bible-babble: "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit."

    I think it's the very fact that in Windsor the court did examine the legislative intent (via the House report) which has caused other courts to realize that it wasn't merely a rational basis ruling.

  • 75. davepCA  |  July 1, 2014 at 11:44 am

    I think one of the factors in whether a case 'goes there' may be whether the law was enacted by the legislature or by a vote by the general public. It's easier to show animus when you only have to look at the legislative record of the debates held to enact the measure. You have statements on the record for most or all of the officials who actually voted to enact it. But when you are talking about a vote by the general public, even if you can show that the political ads opposing ME, and the group responsible for them, held animus, you would have to actually show that the public who voted to enact the measure did so out of animus. And that is a very tall order. There's no box to check on the ballot that asks each person 'WHY are you voting this way?'.

  • 76. RobW303  |  July 1, 2014 at 7:37 pm

    I would be surprised at a judge discussing animus at any length unless the plaintiffs made a special point of it in their briefs. Most plaintiffs (no doubt on advice from their lawyers) have skirted that contention, since animus on the part of voters themselves is difficult to prove before the court, regardless of the lies and character assaults spewed by politicians, notable individuals and special interest groups attempting to sway voters.

  • 77. Rik_SD  |  July 1, 2014 at 10:26 am

    Nice.. quasi-suspect class with intermediate scrutiny, but then goes on to say that it even fails rational basis review

  • 78. RCChicago  |  July 1, 2014 at 10:34 am

    As I posted at newcivilrights, my husband was living in Louisville when we met 18 years ago (I was living on South Beach—). I remember the dearth of pro-Democrat election signs on my visits there. This news out of Kentucky is cause for hope and for celebration.

  • 79. Zack12  |  July 1, 2014 at 10:47 am

    This one isn't shocking to me only because Judge Heyburn said he couldn't rule on the ban itself at the time as that wasn't brought before him but if a couple were to do so, he would likely strike the ban down.
    I would like to see Colorado join Kentucky today, as it's been two weeks since arguments.

  • 80. DoctorHeimlich  |  July 1, 2014 at 10:55 am

    Heyburn's previous ruling (Bourke) had a particularly nice closing that spoke to people on the other side of the issue. He's done it again this time, equally well. I particularly like this quote:

    Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely "free" constitutional right.

    Translation: This isn't going to affect the rest of you in any way.

  • 81. weaverbear  |  July 1, 2014 at 11:08 am

    Amen!! Given the upcoming stuff in front of the 6th circuit, I wonder if there is any way for this to be shoehorned in with the other Kentucky appeal. In many ways it certainly would be timely.

  • 82. brandall  |  July 1, 2014 at 11:18 am

    And over in Boulder, CO, the latest is:

    "John Suther's office agreed on Tuesday to give clerk Hillary Hall until July 10 to respond to its request but threatened legal action unless she stopped issuing the licenses in the meantime."

  • 83. brandall  |  July 1, 2014 at 11:30 am

    Next update:

    Boulder County clerk ignores deadline, continues to issue same-sex marriage licenses

  • 84. brandall  |  July 1, 2014 at 6:57 pm

    Tuesday evening CO update: "Six same-sex couples filed a lawsuit in federal court Tuesday seeking an injunction stopping the enforcement of Colorado's gay marriage ban."

    This filing would be interesting to read. Where is Ragavendran today? Ragavendran is THE source for locating filings (2nd only to Kathleen Perrin of course).

  • 85. brandall  |  July 2, 2014 at 12:15 pm

    Wednesday morning update: Boulder County Attorney replied to AG citing 10th circuit court precedent on why the County Clerk is "prohibited from knowingly violating an individual's constitutional rights."

  • 86. RQO  |  July 1, 2014 at 8:33 pm

    As I'd hoped, the Clerk didn't see an upside to the AG's offer. The "temperature" of public opinion in the media seems to be somewhere between "who cares, this is inevitable" and "you go, girl". Lack of Republican outrage reported so far. Not certain the AG can get an injunction while district court judge Crabtree's ruling in Brinkman v Long is pending but expected any day, after which his position will be even harder. Sense the anti-marriage law in CO is ready to collapse.

  • 87. SWB1987  |  July 1, 2014 at 11:24 am

    Create your own gay marriage ruling!!

  • 88. DACiowan  |  July 1, 2014 at 11:54 am


    On another case, keep in mind the Wisconsin AG has only until July 13 to appeal; that's a Sunday so in practicality he has to appeal by next Friday or Wisconsin reverts to marriage for good.

  • 89. brandall  |  July 1, 2014 at 12:13 pm

    This could be interesting. Van Hollen is not seeking reelection and has not stated his future political intentions. To date he has been very clear, if not adamant to uphold of the "will of the people". Governor Walker is up for reelection and is softening his tone on ME because the WI polls are now 55% in favor of ME. Perhaps a PA capitulation? Just a thought and perhaps a bit of wishful thinking.

  • 90. scream4ever  |  July 1, 2014 at 1:28 pm

    I doubt that will happen in Wisconsin but I do think it will happen in Colorado when Crabtree issues his ruling.

  • 91. RobW303  |  July 1, 2014 at 7:52 pm

    I don't think it will happen in Colorado, because AG John Suthers seems determined to pursue defense of the ban regardless of what the people, the governor, the clerks and their counsel, numerous federal judges or even a panel of the 10th Circuit Court of Appeals has to say. Given Suthers stated intentions combined with the de facto "gay means stay" pattern, I doubt Judge Crabtree will not stay his ruling or that the CO Supreme Court would hesitate to grant an emergency stay, followed shortly by a permanent one. But surprise me; I like surprises.

  • 92. Bruno71  |  July 1, 2014 at 8:15 pm

    Yeah I have to agree with this. I think it goes down pretty much like Arkansas.

  • 93. scream4ever  |  July 1, 2014 at 11:57 pm

    ^^^ And those reasons are likely why they will deny a stay. The Colorado state supreme court is 5-2 Democratic appointments. Combine this with the Kitchen ruling from the 10th Circuit and the chances of a stay have a lot against it.

  • 94. Mike_Baltimore  |  July 1, 2014 at 3:22 pm

    Unless specified in specific Circuit Court rules, I believe all Federal Courts treat deadlines that fall on weekends and holidays the same as the Executive and Legislative branches – COB the next business day. If the above is accurate, that means the Wisconsin AG has until July 14 to appeal.

  • 95. DACiowan  |  July 2, 2014 at 8:21 am

    Thanks. I'm getting the July 13 date from 30 days ahead of the Wisconsin judgement; I'm hoping the AG just hems and haws, lets the time run out, and then uses an excuse like "We couldn't find a loophole to appeal."

  • 96. Rik_SD  |  July 1, 2014 at 12:30 pm

    This is an interesting one I had not seen:

    Public opinion. Interesting that it has Texas as equal

  • 97. ebohlman  |  July 1, 2014 at 1:08 pm

    Texas has a very large and fast-growing young Latino population, a demographic that very strongly favors marriage equality.

    Most analysts expect Texas to become a blueish-purple state by the end of the decade.

  • 98. tkinsc3  |  July 3, 2014 at 4:13 pm

    "Texas has a very large and fast-growing young Latino population, a demographic that very strongly favors marriage equality."

    Which is why same-sex "marriage" has been democratically enacted in Mexico, Puerto Rico and the Dominican Republic. Oh wait….

  • 99. FredDorner  |  July 1, 2014 at 12:36 pm

    This paragraph might indicate the outcome in the 6th Circuit:

    The Davis decision applied rational basis review based on a line of cases explicitly relying on Bowers v. Hardwick, 478 U.S. 186 (1986). The Supreme Court unambiguously repudiated Bowers in its 2003 Lawrence decision. See 539 U.S. at 578 (“Bowers was not correct when it was decided, and it is not correct today.”); id. at 575 (“[Bowers’s] continuance as precedent demeans the lives of homosexual persons.”). This Court, like other district courts in the Sixth Circuit, concludes that it must now conduct its own analysis to determine whether sexual orientation classifications should receive heightened scrutiny.

  • 100. brandall  |  July 1, 2014 at 1:04 pm

    ME Humor of the day: With Kentucky Decision, Nation Running Dangerously Low On States Without Marriage Equality

    And it goes on to point out the Democratic AG refuses to defend the state, so the Democratic Governor is paying an outside firm….There seems to be some unique twist in every state…
    <a href="” target=”_blank”>

  • 101. davepCA  |  July 1, 2014 at 1:24 pm

    Love the title of the article, and the reporting style over there.

  • 102. JayJonson  |  July 1, 2014 at 1:25 pm

    Seventh Circuit has just granted Lambda Legal's request to lift is stay on the recognition of the marriage of one Indiana couple, Niki Quasney and Amy Sandler.

    Today, the day after Lambda Legal filed papers with the Seventh Circuit Court of Appeals asking the court on an emergency basis to lift its stay to allow respect for the marriage of one couple, Niki Quasney and Amy Sandler, because Niki is battling Stage IV ovarian cancer, Attorney General Greg Zoeller filed papers again demanding that the Court deny respect to the Indiana couple’s marriage. Camilla Taylor, Marriage Project Director for Lambda Legal, said: Attorney General Zoeller’s callous disregard for this family’s circumstances is heartless, cruel, and unbecoming of a public official charged with representing the interests of all Hoosiers. He is taking steps that no other attorney general anywhere in the country has in fighting to deny respect to the marriage of only one couple facing very significant health issues. Attorney General Greg Zoeller will not have the last word, justice will. This Indiana family is undergoing tremendous stress while they courageously fight Ms. Quasney’s stage four ovarian cancer. Their marriage doesn’t harm anyone in Indiana, it simply protects them and their children.

  • 103. JoshLmno  |  July 1, 2014 at 6:07 pm

    What an awesome decision. I'm very saddened by Ms Quasney's illness and wish her and her family as much comfort as possible. This is a very good example of why our families deserve equal protection under the law. We want to get married and protect our families and there is no valid reason we should be excluded.

  • 104. tkinsc3  |  July 3, 2014 at 4:09 pm

    It's sad what Ms. Quasney is going through, but I don't believe she has the right to force Indiana to recognize a non-marriage as a marriage. If that's what she wants, Illinois isn't too far away.

  • 105. compare breville juicers&hellip  |  July 1, 2014 at 7:42 pm

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  • 106. eizverson22  |  July 2, 2014 at 12:49 am

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  • 107. haydenarwen  |  July 2, 2014 at 6:10 am

    ood News here In MI Gov Snyder and AG Schuette are now in dead heat races… bith had sizeable leads 4 months ago……. So when Mark Schauer and his runnng mate Lisa Brown the clerk who issued SSM licenses when are ban was voided are

    along with Mark Totten AG they may decline to fight the appeal!!! Of course this may all be too late as it will be Jan 2015….. but still better than June 2015 for us here in MI……..

  • 108. Terence  |  July 2, 2014 at 7:28 am

    From across the Atlantic – Ireland will hold it's referendum on ME in Spring 2015. Passage is pretty well assured – polls show strong public support, all the major parties have endorsed it.

    The only reason that a referendum is needed, is because is required by the constitution. Passage should be a formality.

  • 109. StraightDave  |  July 2, 2014 at 9:19 am

    The main reason the referendum is required is because this will be an actual amendment to the Irish Constitution, not a mere statute. It will pretty much be carved in stone.

  • 110. DocZenobia  |  July 2, 2014 at 7:55 am

    I'm curious what you think about this provision in Washington's new same-sex marriage law that automatically converts DPs into marriages unless the couple opts out.

    Personally I think it's unconstitutional. These couples entered into DPs prior to the passage of the SSM law, but no one else can infer what their intention was, and I don't think the voters have any more right to force a couple to get married than they did to prevent them. There was an opt-out period, it's true, but that does not save the law. Some couples may have moved from Washington since they concluded their DP and may be unaware of this provision. They could have gotten married to others without bothering to dissolve a DP that had no legality outside the state or recognition by the federal government. And the law blurs the distinction between a DP and a marriage.

    What do you think?

  • 111. Steve  |  July 2, 2014 at 8:03 am

    Not taking a DP seriously is no way to go about it. It's a silly patch work of laws, but there are other states that recognize DPs. So you can't just act like it means nothing and can be discarded at will.

  • 112. DocZenobia  |  July 2, 2014 at 9:10 am

    True, but the issue here is whether a DP can be automatically converted to a marriage without the explicit consent of the parties.

  • 113. tornado163  |  July 2, 2014 at 8:12 am

    I disagree. Domestic partnerships were created as being equivalent to marriage. Marriages require a divorce to end them, domestic partnerships are equivalent. And Washington made it clear that a couple entering a domestic partnership couldn't be in an existing marriage or marriage-type relationship with anyone else. If a couple decided to marry other people in another state without dissolving the domestic partnership, they are idiots who clearly didn't understand what they signed up for with a domestic partnership in the first place. And I honestly can't think of a situation where a couple would want to be domestic partners, but would not want to be married, unless they considered the domestic partnership as a light version of marriage that provided financial benefits (roommates get tax breaks!), in which case they clearly didn't understand the purpose of domestic partnerships. But that's not a reason to invalidate the conversion provision.

    The reverse situation in the UK is even worse. Couples with a civil partnership can't turn their civil partnership into a marriage without first getting a divorce. So their relationship being recognized by other countries (like the USA) hinges on a costly and time-consuming process that shouldn't be necessary.

  • 114. DocZenobia  |  July 2, 2014 at 9:13 am

    Yes, there should be an easy process to convert from a DP to a marriage. But it shouldn't be automatic. That's the problem here.

  • 115. StraightDave  |  July 2, 2014 at 9:29 am

    I agree with this position. Technically, the WA approach is no different than the (admittedly demented) proposals to do away with all civil marriages and make them all DP/CU's. The state cannot presume what a couple's reasons were making the choices they did, and then there's that little due process thing about not making a status someone signed up for suddenly vanish out of existence. "Administrative efficiency" in only having one unified type of partnerships is not a valid excuse, if that really is the reason being given.

  • 116. Roulette00  |  July 2, 2014 at 9:04 am

    The Washington law is essentially a second-tier less-than-marriage law that is only accessible to same-sex couples (or hetero couples over the age of 62). For the very reason courts are recognizing marriage rights for gays and lesbians, it would be equally unconstitutional to give marriage-lite options to gays but not straights; thus, it is being discontinued. Either open up DP to everyone or eliminate it similarly. Washington decided two virtually equal classes of marriage were redundant.

    If there are people out there who will be caught by the changeover — for instance, registered to one partner, then moved out of state, and married someone else — then I don't know what to say. It seems cavalier to file for a DP, then blow it off as meaningless, not bothering to undo it. I'm not sure that can be blamed on the state. If there are circumstances which prevent the couple from dissolving their DP (for instance, their current state doesn't recognize it) then that's something straight couples occasionally deal with too (traveling back to the home state to file for divorce; most states have 6-month residency requirements).

    If a couple wanted to be registered as domestic partners for fear of the word marriage, they have had many months to undo their DP, and Washington did not pass marriage equality laws in secret.

  • 117. DocZenobia  |  July 2, 2014 at 9:16 am

    The question I am asking is whether the state has the legal authority to convert them, regardless of whether the voters have approved the law. If marriage is a fundamental right, then so is the option not to get married.

  • 118. brandall  |  July 2, 2014 at 9:26 am

    In California, they grandfathered existing DP's in effect prior to 2012. They did not convert them to marriage licenses. No one under 62 can now get a DP. This sure seems to be a much cleaner process than imposing an automatic conversion to a marriage license.

  • 119. Roulette00  |  July 2, 2014 at 9:28 am

    The state is faced with unconstitutional actions no matter what it does. If it allows DPs to persist, it is providing services unequally. If it dissolves DPs, or converts them, it is interfering with relationships. It could possibly grandfather in existing DPs, but I think that creates an unnecessary patchwork of laws (Washington may consider the couple bigamists for having a WA DP and an out-of-state marriage, but the other state doesn't recognize the DP). Damned if they do, damned if they don't.

    I think their course of action is reasonable. They clearly had the power to create DPs as a class; they have the power to discontinue that class. Whether they can dissolve them is uncertain; that might be a due process issue. Converting them is a matter of convenience for the many partners out there; re-filing for marriage is an undue burden.

  • 120. DocZenobia  |  July 2, 2014 at 12:03 pm

    I disagree that it's unconstitutional for a state to continue to offer DPs, as long as DPs and marriages are available to all there should be no problem. Having to re-file for marriage is hardly an undue burden. Marriage and DP are different legal states with different rights and obligations. Conversion should not be automatic.

    However, my question wasn't about shoulds or shouldn'ts, preferences, political ideologies, rights or wrongs. It was about legal authority.

    What LEGAL AUTHORITY authorizes Washington to do this automatic conversion? What precedents guide it? Granted SSM is a new issue, but marriage is not. It would seem to me the closest precedents would be common law marriages.

  • 121. ebohlman  |  July 2, 2014 at 12:48 pm

    The problem is that full-blown, marriage-in-all-but-the-name DPs/CUs are such a new institution that there really isn't much case law dealing with them. That was in fact a major reason why they were never a satisfactory alternative to marriage even before Windsor; they didn't provide couples with the benefit of having centuries of settled law defining their rights and responsibilities.

  • 122. DocZenobia  |  July 2, 2014 at 1:10 pm

    Well it's certainly true that there is little precedent to guide DPs/CUs, but suppose voters enacted a law that couples who cohabitated for more than five years would either be considered to be (common law) married or else move out. That's the closest analogy I can concoct here. So maybe there is some precedent (although I don't think Washington is a common law state.)

  • 123. Roulette00  |  July 2, 2014 at 1:23 pm

    You're really asking a question about the philosophy of constitutional power. Does a government have all powers except those which are forbidden, or only those powers it is explicitly allowed?

    The law in question is Referendum 71, which created domestic partnerships in the first place. It says "This bill would expand the rights, responsibilities, and obligations of registered domestic partners and their families to include all rights, responsibilities, and obligations granted by or imposed by state law on married couples and their families." If Referendum 71 had the power to create a classification with all the rights and responsibilities of marriage, without calling it marriage, it seems frivolous to object to having the rights and responsibilities and title of marriage now.

  • 124. DocZenobia  |  July 2, 2014 at 1:46 pm

    Not quite. I'm asking if there is a constitutional right to remain unmarried.

  • 125. davepCA  |  July 2, 2014 at 1:53 pm

    Well, I don't quite agree with that statement. Of course there is a right to "remain unmarried". It seems to me that you are really asking if the proposed "opt out" mechanism is an acceptable method of enacting this change, or if this places a constitutionally unacceptable burden on those who don't want their CU converted to a civil marriage.

    Think of it this way – we know that there is right to GET married. But that doesn't mean you don't have to undertake some actions in order to partake in this right. You have to go to City Hall, show your I.D., fill out the form and pay fifty bucks. Even though marriage is a right.

    So if it's okay to require these types of 'burdens' for partaking in the right to get married, is it okay to burden people who have CUs with some similar amount of clerical work to 'opt out' of having their CU converted? I think that's the real question.

  • 126. DocZenobia  |  July 2, 2014 at 2:56 pm

    As to whether it's reasonable, that will depend on the circumstances. If you got DP'd in Washington, then moved to Alabama and broke up, it's going to be difficult to dissolve that DP which Alabama doesn't recognize. You would have to go to the added expense of filing the paperwork in Washington, and ONLY in Washington. Another reason DPs are inferior. And if you don't – Washington is going to change your status to married whether you like it or not?

  • 127. tornado163  |  July 2, 2014 at 5:17 pm

    But your Alabama example is the same for same sex marriages and DPs. A couple who married in Washington last year, moved to Alabama, and then broke up and wanted to divorce would have the exact same problem. So it's not a flaw with the Washington domestic partnerships, it's a flaw with Alabama's recognition. An out of state Washington married couple and an out of state Washington domestic partnered couple have the exact same burden. And to a lesser extent, it's a hurdle faced by any couple – straight or gay – that wants to divorce before they've met their new state's residency requirement.

  • 128. DocZenobia  |  July 2, 2014 at 5:37 pm

    No, it's not the same problem. The married couple has a legal recourse, they could sue Alabama to permit the divorce. The DP couple is just SOL. DPs are generally unenforcable across state lines, nor do they have any legal validity with the federal government. DPs are simply not the legal equivalents to marriage, which is the whole point of what we've been fighting for, and it's why Washington is exceeding its legal authority by converting them to marriages IMO.

  • 129. Bruno71  |  July 2, 2014 at 5:51 pm

    I'd venture to say the DP couple could sue Alabama for a "DP divorce" as well. Alabama looks at same-sex marriages and same-sex domestic partnerships the same way: as two friends parading around with a fake relationship status.

  • 130. StraightDave  |  July 2, 2014 at 6:51 pm

    AL might prefer to look at them in the same way but, from a legal perspective, an equal protection claim carries a lot more weight for a SSM than for a DP. A marriage is a marriage is a marriage.

  • 131. tornado163  |  July 2, 2014 at 7:01 pm

    But this is all completely irrelevant because it deals with how Alabama views out of state relationships, while the original question is about what Washington is doing.

    Washington sent out the first notices about the conversion in January 2013. Couples had 17 months to dissolve their DP if they didn't want it to be converted. How is it unconstitutional to give couples 17 months after warning them that taking no action will result in the marriage being converted? From Washington's perspective, they are upgrading couples from an unconstitutional status to a broadly similar but superior status.

  • 132. Roulette00  |  July 2, 2014 at 2:32 pm

    Per Ref 71, the state treats the union as a marriage in every way except in name. So no, this is not (in my mind) about the right not to be married. Those people who partook of the partnership law are married in every way, excepting only in name; nothing but the title will change. I find it hard to believe there are people who signed up for DPs who now say, "Marriage is going too far." They have, in fact, already applied for and received every associated right and responsibility. (Requiring DPs to re-register is to burden one class of person with doing the paperwork twice.) All that remains is the application of a word. Nobody's rights are being added to or taken away.

    This objection turns the whole civil union argument, the definition of "separate but equal" and "marriage is just a word," on its ear.

    For the record, Ref 71 specifically includes only same-sex couples for DP. It cannot stand as-is.

  • 133. DocZenobia  |  July 2, 2014 at 2:50 pm

    There is a huge difference between a DP and a marriage. That's precisely what we've been lobbying and fighting for. They may be equivalent as far as the state of Washington is concerned, but to Federal agencies (IRS, Social Security) they are certainly not. It's advantageous to some couples to convert from DP to married because it permits them to backdate their marriage – perhaps. I say perhaps because we've been tussling with the IRS for 18 months and counting on our Windsor refund, and we don't even have to worry about the DP complication. The IRS wants proof you were married before they will issue the DOMA refund. Hard to do if the conversion was automatic.

  • 134. Roulette00  |  July 2, 2014 at 3:17 pm

    But that is drifting from your central question, whether the state has the power to treat DPs and marriage the same. I think that it does, per Ref 71.

    Whether or not this is what all citizens want, or if there is a better way, or if there are advantages to claiming not to be married, is not what you asked. The real question I think you're asking here is, "Why doesn't the IRS recognize DPs?"

  • 135. DocZenobia  |  July 2, 2014 at 5:40 pm

    To the contrary, the existence of R71 proves the point that DPs are not equivalent to marriage. If they were, R71 would have been unnecessary.

  • 136. Bruno71  |  July 2, 2014 at 5:56 pm

    If same-sex couples were seeking some form of a better relationship status in the eyes of the WA state government, R71 (or a differently written law, but something) would have been necessary; even if the end result was marriage equality, since same-sex couples in WA had less-than status beforehand.

  • 137. tornado163  |  July 2, 2014 at 10:58 am

    No one is forcing people in DP to be married. The state is taking away DP as an option, so that nobody under 62 is allowed to be in a DP going forward. So all same-sex couples in DPs had 2 options – either allow the DP to become a marriage, or dissolve the DP. If people didn't actively choose 1 of these options, the state is choosing for them. Everyone in a DP had ample time to choose what they wanted to happen. I don't see it being unconstitutional for a state to say "You have 2 choices. If you choose not to make a choice, then we will assume you have chosen option B"

    Also, the idea of people in a DP marrying someone else in another state isn't unique to DP. The same situation couple apply to 2 men who married in Washington, then 1 spouse popped over to Idaho and married a woman. Washington and Idaho would disagree about which marriage they consider legal, and in fact the marriage that Idaho conducted would be polygamous according to Washington.. But it seems there's no logical reason to do this other than to mess with the legal system.

  • 138. davepCA  |  July 2, 2014 at 10:06 am

    It seems to me there are three mechanisms the state could use to convert CUs to marriage:
    1. Require couples who want their CU converted to marriage to 'opt in' and require no action for those who don't want this.
    2. Require couples who DON'T want their CU converted to marriage to 'opt OUT' and require no action for those who DO want this.
    3. Require all couples in a CU to take some action either way, and tell the state if they do or do not want their CU converted to marriage.

    I get that it's not okay for the state to be changing people's legal status without their consent, but none of these options involve that unless the state fails to implement the mechanism properly.

    Option 2 is the least burdensome since most people want their Cu converted. As long as the state properly notifies those in CUs and gives them a simple way to opt out, it seems like the best way to do this. And if the state screws up and converts a CU without the consent of the couple, the couple would not be held accountable for the states error.

  • 139. Deeelaaach  |  July 3, 2014 at 12:02 am

    The state appears to presume three things: 1) their efforts to inform the DP couples will in fact be successful in every case, 2) failure to reply constitutes consent (opt-out), and 3) that *all* DP couples do in fact want marriage. This of course presumes to know why the couples did get a DP. In many cases the state is probably right as a DP was the only thing open to them. But there are probably going to be at least a few couples out there who didn't want marriage who will find out that they are indeed married. And they don't have to live outside of WA for this to happen.

  • 140. TomPHL  |  July 2, 2014 at 8:44 am

    The only part of DocZenobia's post I agree with is his contention that people should not be married against there will, even if the two conditions (marriage & DP) are legally indistinguishable. The option should be to opt in not the necessity of opting out. The only situation I can immediately think of for not wanting to convert is a religious objection to the word marriage which didn't apply to DP. I don't really think the state has the right to ignore the right of citizens to make this decision for themselves.

  • 141. JayJonson  |  July 2, 2014 at 9:28 am

    Other states have responded differently.

    Vermont, which pioneered in civil unions, adopted marriage equality, which effective on September 1, 2009. After that date, no civil unions could be offered, but those that have been performed continued to be recognized. Couples who wished to "upgrade" their civil unions to marriagemust obtain marriage licenses and have marriage ceremonies (which were not required in civil unions.)

    In 2005, the Connecticut legislature passed a civil unions law. In 2008, however, the Connecticut Supreme Court declared that the civil unions law was discriminatory and ordered the state to allow same-sex marriage. Civil unions ceased being offered after October 1, 2010. However, civil unions entered into before that date continue to be honored.

    New Hampshire is more similar to what Washington is doing. In 2007, the New Hampshire legislature passed a civil unions law, but in 2009 the civil unions law was repealed by the law that authorized same-sex marriage. After that law became effective in January 2010, the state ceased offering civil unions. Couples already in civil unions were able to obtain marriage licenses at no charge; in 2012 civil unions were automatically changed to marriage.

    Does anyone know whether California is still offering Domestic Partnerships?

    Illinois offered civil unions to both same-sex and opposite-sex couples. I think there was a provision in the marriage equality law that allowed the conversion of civil unions to marriage at no charge. Does anyone know if civil unions are still offered/recognized in Illinois?

    Does anyone know what the situation is in New Jersey or Oregon?

    BTW, I disapprove of the domestic partnerships/civil unions offered to opposite-sex couples over 62 as a way to subvert social security regulations.

  • 142. brandall  |  July 2, 2014 at 9:31 am

    In California, they grandfathered existing DP's in effect prior to 2012. They did not convert them to marriage licenses. No one under 62 can now get a DP.

  • 143. Jeff Tabaco  |  July 5, 2014 at 7:12 pm

    "No one under 62 can now get a DP." Are you sure? My understanding is that domestic partnership here in California was not affected by same-sex marriage. Yes, existing domestic partnerships are still valid and not converted, but the eligibility for domestic partnerships is also unchanged: (a) same-sex couples, and (b) opposite-sex couples over the age of 62.

  • 144. DocZenobia  |  July 2, 2014 at 11:55 am

    In Oregon we had a DP but we had to refile to obtain a marriage license. We were asked if we had previously been married, but we were not asked about a DP. We were told the marriage superceded the DP. There is no provision to do anything about DPs, presumably they are still obtainable under the same basis as before.

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  • 146. SeattleRobin  |  July 2, 2014 at 6:21 pm

    The central point is that the state legislature decided that they did not want to continue offering DPs in Washington. DPs are frequently misunderstood and can create as many problems as they resolve. Yes, the state certainly has a right to make the decision to remove DPs as a legal domestic status recognized by the state. (Leaving them available for people over 62 was a compromise in order to get the marriage equality law passed in the legislature.)

    Given that the state has the constitutional right to make that decision, the question then becomes what to do about the existing DPs. The assumption was that the number of couples in a DP who would want to be married vastly outnumbered those who would not. With that in mind, the legislature decided that automatically converting DPs to marriages would burden the fewest number of people, namely only those couples not wanting to be married.

    Whether that was the best way to go can be debated, but given the decision to discontinue DPs as a legal status (and the purpose of DPs in the first place, which was to emulate marriage), I find it difficult to argue that the state didn't have the right to do it. Especially considering that registered couples had more than a year to decide what they wanted to do.

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