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Equality news round-up: Challenge to New Jersey law banning so-called LGBT ‘conversion therapy’ dismissed, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

– A district court in New Jersey has dismissed a lawsuit challenging the state’s ban on so-called LGBT ‘conversion therapy’ for minors. (She issued an order along with the opinion.) The case had been on hold until the Supreme Court denied cert in challenges to a similar law passed in California.

– In another challenge to New Jersey’s law, King v. Christie, the Third Circuit Court of Appeals (who recently heard arguments in the case) has called for more briefing on “the question of whether if SOCE [‘sexual orientation change efforts’ or ‘conversion therapy’] counseling is “speech” is it “professional speech” subject to lesser First Amendment protection?”

– In the Seventh Circuit Court of Appeals, Lambda Legal, who serves as counsel for the plaintiffs in one challenge to Indiana’s same-sex marriage ban (Baskin v. Bogan) is requesting the opportunity to argue for the plaintiffs in all three consolidated cases that will be heard on August 26. (Shortly after this writing, their request was denied.)

– The Wisconsin Supreme Court has issued its ruling in Appling v. Walker, a challenge to the state’s domestic partnership registry by anti-gay groups. The challenge was based on the anti-marriage amendment which bars state recognition of same-sex relationships that are substantially similar to marriage. The ruling upholds the domestic partnership registry, and in the process interprets domestic partnerships as not substantially similar to the benefits of marriage.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  August 1, 2014 at 10:03 am

    GA: Well written, rounded overview of the GA ME case. I almost froze when I read who the judge was previously a deputy for and the case involved.

  • 2. hopalongcassidy  |  August 1, 2014 at 11:23 am

    I truly didn't expect to ever see that name again !

  • 3. Alan  |  August 1, 2014 at 10:25 am

    These anti-gay activists crack me up. Nooo, we can't give those people marriage, so we create this lesser thing called domestic partnership. Then we'll argue DP is just like marriage (even though its specifically created to NOT be marriage) so we can deny those people DP as well!! Sounds logical….

  • 4. brandall  |  August 1, 2014 at 10:28 am

    Thank you for saying 'anti-gay" and not "anti-ME." That is the root of all of this. Period.

  • 5. Zack12  |  August 1, 2014 at 10:35 am

    We all knew that but I think this kind of lawsuit opened the eyes of others.
    Even the judges called out the bigots in their ruling yesterday.

  • 6. Zack12  |  August 1, 2014 at 10:35 am
    I have a feeling we will get our circuit split sooner then we think.

  • 7. BillinNO  |  August 1, 2014 at 10:57 am

    I'd really like to hear some commentary on this analysis from some of our more enlightened commenters…

  • 8. SeattleRobin  |  August 1, 2014 at 6:18 pm

    A judge being conservative isn't an automatic concern to me, based on what we've seen so far. What seems to matter the most is what brand of conservatism they embrace. So with Sutton, the fact that he has such a pronounced history of federalism is definitely a concern. If he goes the equal protection route, rather than the stronger fundamental right route, he might find enough wiggle room to satisfy himself that the state has the right to ban gay people from marriage as part of their domestic policy. So I guess my hope is that even if he tries really hard, he doesn't find that wiggle room he would need to justify to himself such a decision.

  • 9. Zack12  |  August 1, 2014 at 7:18 pm

    Any judge who is a member of the Federalist Society hearing our case should be a red flag.

  • 10. brandall  |  August 1, 2014 at 7:20 pm

    I right with you. Equal Protection and using precedent with the case about the bread maker (I'm boycotting using the case name after the last 3 days) provide the foundation for a detour from the other 29 cases. I also went back and looked at some of the EoT comments from Jan-Mar where there were lots of dire predictions on this judge or district which have all proven to be wrong in that time frame.

  • 11. debater7474  |  August 1, 2014 at 11:17 am

    Well it was always inevitable. The idea that we were going to march straight to the supreme court without a single court ruling against us was always ridiculous and delusional. The good news is that now the 6th circuit will look like an outlier.

  • 12. BenG1980  |  August 1, 2014 at 11:27 am

    We haven't lost yet! I remain cautiously optimistic about our chances before the 6th Circuit panel. It certainly won't be easy, but there's nothing in this article that hasn't been said on this site in the past two weeks.

  • 13. debater7474  |  August 1, 2014 at 11:31 am

    Based on what? The think progress article lays out a rational explanation for why this will not go in favor because of the specific characteristics of these judges, and you are basing your conclusion that they will rule in our favor on what? "I want it to happen?"

  • 14. BenG1980  |  August 1, 2014 at 11:59 am

    No, that's not it at all. Please read my previous comments on this topic, as well as those of DaveM_OH. As an Ohio native and 28-year resident prior to moving to DC in 2009, I have met both of these judges. While they are by no means liberal, neither is as closed minded as Niemeyer or Kelly.

    Sutton and Cook are relatively rational and serious jurists. Visceral hatred of gays and lesbians is not at all likely to factor into their decisions. I am certain that they both personally know and have worked with members of the LGBT community throughout their careers. Sutton is a lecurer at The Ohio State University Moritz College of Law. The OSU campus is hardly a conservative bastion. He has also taught at Harvard.

    I agree with the author of the article that Sutton is an easier target than Cook. He clearly showed a willingness to overlook party affiliation in the ACA case. Cook has proven to be stubborn in the past (see my prior posts about her stance in the Ohio public school funding saga), but I think we still have a remote shot with her.

    Let's at least wait to see how things go at the oral argument on Wednesday before saying defeat is inevitable.

  • 15. Mike_Baltimore  |  August 1, 2014 at 12:23 pm

    So, if a judge was appointed by an 'R' President, you automatically put them in the 'No' column? No matter how they conduct themselves on AND off the bench? And all 'D' appointed judges have ruled in our favor?

    There have been many 'R'-appointed District and Circuit judges who have ruled in our favor. And a few 'D' appointed judges who have not. There have been many whose ruling surprised many on this forum.

    Also remember, Justice Kennedy was appointed by an 'R' President. His rulings are conservative, but he has come down on our side in almost all his rulings concerning ME.

    And there is a Federal District judge in Pennsylvania who ruled against teaching creationism (or any of the perversions of that 'science' in schools) AND ruled against the bigots in the Pennsylvania ME case. That judge was appointed first by President Clinton, then by shrub, but backed both times by Senator Santorum.

  • 16. Zack12  |  August 1, 2014 at 3:44 pm

    Here's the problem though, George W. Bush was more successful at putting judges in the mode of Scalia on several of the circuit courts then not.
    The fact we have managed to avoid those judges so far has been luck but our luck very well could run out here.
    There are Republicans who are by the book and the ones who have far right view points and will make up laws to suit their rulings like Scalia and Alito do.
    The fact these judges are both members of the Federalist Society is an automatic red flag to me.

  • 17. MJ4  |  August 1, 2014 at 11:44 am

    It'll be interesting to see the results from the 6th circuit. I was following the ages of the judges who wrote all the marriage equality opinions for awhile, but may have missed one or two: only 1 anti-gay dissent has come from any judge under 70 years of age, and that judge was mormon. Both of these republican nominees are under 70. All other republican-nominated judges under 70 have ruled for marriage equality (Pennsylvania and Oklahoma come to mind). Alito, Roberts and Thomas are all under 70, but Roberts is the only one that I hold out hope for.

  • 18. MichaelGrabow  |  August 1, 2014 at 6:14 pm

    Inevitable? No.

  • 19. Bruno71  |  August 1, 2014 at 11:55 am

    It's a fairly reasoned assessment of the situation. However, a by-the-book judge, conservative or not, is still likely to closely read the precedents they have to follow. Windsor exists. They can't ignore it. But it is open to some level of interpretation. We'll see just how by-the-book they are.

  • 20. JayJonson  |  August 1, 2014 at 11:44 am

    One thing that will be interesting here is that there are so many cases to consider, including DeBoer where there is a trial record. It is possible that they might rule differently on the cases involving nonrecognition than they do on the cases about marriage equality itself.

  • 21. Bruno71  |  August 1, 2014 at 11:47 am

    I wouldn't be surprised if they take one ME case and one non-recognition case simultaneously, to cover all the bases.

  • 22. sfbob  |  August 1, 2014 at 7:36 pm

    Certainly possible I suppose but not very likely. The same justifications would have to apply to both. In the case of non-recognition, it would be hard for a decision on that issue not to be identical with Windsor. And given the logic in Windsor it's very difficult to conceive how they could not not reach similar a similar conclusion with respect to the states as they did with the federal government.

  • 23. brandall  |  August 1, 2014 at 12:05 pm

    Another RBG Interview, this time from Reuters

    Q: Are you surprised at how quickly the same-sex marriage dispute is heading back to the Supreme Court since last year’s ruling in the Windsor case. (The 5-4 decision in U.S. v. Windsor extended federal spousal benefits to same-sex married couples.)

    A: I am not surprised by the change (in attitudes among people). I’ve never seen social change come so fast. This is different from race, where there was such a marked separation. People lived in communities that were white or black. Here, it’s your neighborhood … your child… people in your own community.

    Q: Do you think the court would be ready to invalidate state bans on same-sex marriage?

    A: I won’t make predictions. You know that there are two themes in (Justice Anthony) Kennedy’s (Windsor) opinion: One about liberty and dignity (of individuals) … On the other hand, he talks about marriage being in the state’s domain … Those don’t point in the same direction.
    One thought: "I’ve never seen social change come so fast." To me, that is a clear message about ME when looking at her previous comments on Roe v Wade.

    Other topics in the interview also.

  • 24. F_Young  |  August 1, 2014 at 12:19 pm

    "I’ve never seen social change come so fast. This is different from race, where there was such a marked separation."

    I think we can count on Ginsburg now, despite what she said about Roe v Wade and percolation earlier.

  • 25. Mike_Baltimore  |  August 1, 2014 at 12:35 pm

    Back to one of the topics of this article:

    According to headlines on several web sites, including Towleroad, the Advocate, WWMT, LGBTQNation, MLive, etc.:

    "Will Michigan Be The Next State To Ban Conversion Therapy?" or similar.
    (… and similar headlines at other web addresses)

    It's Michigan, with a GOTP-controlled House, Senate and GOTP Governor, so I don't have much hope it will become state law, but one can always hope it will.

  • 26. Jen_in_MI  |  August 1, 2014 at 1:07 pm

    It will never, ever, ever happen here. The state lege is choked lousy with far right ideologues. The backlash after Granholm left office is still in evidence – lots of struggling people voting against their best interests because evil libruls!!!1!!1

  • 27. Mike_Baltimore  |  August 1, 2014 at 2:30 pm

    Perhaps you missed the last part of my comment?

    "It's Michigan, with a GOTP-controlled House, Senate and GOTP Governor, so I don't have much hope it will become state law, but one can always hope it will."

    By the way – I grew up in Noble County in Indiana (about 35 miles from the IN/MI state line), and still have relatives who live in that county. I also have relatives who live in DeKalb County (in Auburn and on the DeKalb/Steuben county line, and several other places in the county), several relatives (including a nephew) who live in Allen County, etc. who are very politically aware. I also have a cousin who lives IN Michigan, and one of my roommates in college lives in both Michigan City, IN AND in Traverse City, MI (where his father lives.)

    Just because I no longer live near the state of MI does not mean I am unaware of what is happening in the state.

  • 28. Bruno71  |  August 1, 2014 at 12:43 pm

    Miami and Key West Same-Sex Couples File to Merge Lawsuits

  • 29. Margo Schulter  |  August 1, 2014 at 8:50 pm

    An interestin question: Might Judge Sutton indeed follow the famous advice of our current “archconservative” jurist that’s already been cited in lots of these opinions: that once one accepts Windsor as precedent — a mandate for the Sixth Circuit, of course — then how inevitable it becomes to conclude that state marriage bans are unconstitutional for the same reasons. Will Justice Scalia again show the way?

  • 30. ragefirewolf  |  August 1, 2014 at 9:52 pm

    Besides the obvious positive aspects of the Wisconsin Supreme Court's ruling on WI's domestic partnership law, there is another gem inside of this ruling that I'm wondering if anyone noticed:

    Because domestic partnerships are not substantially similar to marriage, they are a perfect example of how separate and lesser we are considered under the law…a plain present fact that we are not adequately protected – especially considering that people were not even satisfied with our lesser recognition, but rather wanted to end even that. I'd call that genuine animus, would you not?

  • 31. Zack12  |  August 2, 2014 at 5:50 am

    I would indeed call it animus and the lawsuit to try and strip even those rights from us an even bigger example of it.
    Every judge that ruled on this said the few rights given to us weren't even close and yet they were still too many for the bigots.

  • 32. JayJonson  |  August 2, 2014 at 6:40 am

    The court did not care at all about our liberty rights or equal protection. They ruled against the plaintiffs only because the plaintiffs lied. In the campaign, they repeatedly said that the amendment would not prevent domestic partnerships and targeted benefits. Without such assurances, the amendment might not have passed. Then after it is passed, they say it prevents even the limited benefits offered by the domestic partnership law. This is similar to Republicans who win elections by saying they are only concerned with fiscal issues, not with hot button social issues, but as soon as they get into office, they pass anti-abortion and anti-gay laws.

  • 33. Zack12  |  August 2, 2014 at 7:19 am

    IMO you're right but even the conservatives on the court realize how bad it would look for them to gut the few rights same sex couples have.
    Still, I won't be giving them a medal anytime soon.

  • 34. ragefirewolf  |  August 2, 2014 at 7:24 pm

    I respectfully disagree that this ruling comes at all of "not caring" but rather judicial restraint. If you read the brief, they were adhering closely to the arguments at hand, especially since the plaintiffs who brought the suit were not same-sex couples but supporters of WI's anti-marriage amendment. I suggest you re-read the brief as the judges in this case absolutely crafted their decision with care and due reverence.

  • 35. Ragavendran  |  August 2, 2014 at 9:51 am

    Agree with your thoughtful interpretation, but allow me to offer an alternative viewpoint. Since the WI Supreme Court has ruled that the marriage ban doesn't ban domestic partnerships and the many rights it grants same-sex couples, doesn't it mean the ban is weaker than if the Court had ruled otherwise? That is, if the Court had held that the ban is so strong in that it doesn't even allow domestic partnerships or any legal recognition for same-sex couples, that would satisfy the Romer animus test, wouldn't it – a broad and sweeping depravation of rights from a targeted group of individuals? Which would then make it easier to be struck down? Just a thought.

  • 36. ragefirewolf  |  August 2, 2014 at 7:29 pm

    Since the court's decision rested highly on the intentions of the Amendment sponsors, I don't think that could come up as a significant issue. Nonetheless, I think that's an excellent point…but we can consider it moot since WI's marriage amendment has already been struck down, albeit the ruling stayed on appeal.

  • 37. JayJonson  |  August 4, 2014 at 10:37 am

    Wisconsin's domestic partnership law does not provide many rights. It provides very few rights, and most of those that it does are already provided by federal rules (hospital visitation, for example).

  • 38. Ragavendran  |  August 4, 2014 at 8:46 pm

    Well, I looked at the list over at Wikipedia, and it seemed like "many" rights, but I guess they are not "many" in comparison to marriage. And maybe I don't understand, but I thought there were no federal benefits of DP? Is hospital visitation a federal benefit?

  • 39. SeattleRobin  |  August 4, 2014 at 9:36 pm

    I'm going by memory here, but this is the way I recall it. A few years ago Obama signed an executive order that requires hospitals that receive federal funds (via Medicare, etc.) to allow patients to specify who can visit them. The main thrust was to rectify situations where same-sex couples have no recognized legal relationship, but it also assists people in general. For example, maybe someone rushed to emergency has no legal family nearby, and they consider their best friend to be family and want them to have access.

    The order doesn't cover every single hospital in the country, but it does apply to the vast majority.

  • 40. JayJonson  |  August 5, 2014 at 6:48 am

    Federal regulations now, thanks to the Obama administration, require that all hospitals that receive federal funds, including accepting Medicare and Medicaid, recognize same-sex couples, whether married or not, and accord them the same visitation rights as opposite-sex couples. The regulations also require that a patient's power of attorney and living wills be respected (something that some hospitals have ignored when presented by same-sex couples).

  • 41. sfbob  |  August 4, 2014 at 12:03 pm

    At this point I'm not sure whether a provision that grants separate and unequal status could be viewed as any less objectionable than a provision that grants separate but supposedly equal status. It is the "separate" part in and of itself that shows animus, the difference between the two being that civil unions represent a kinder and gentler form of second-class citizenship.

  • 42. Ragavendran  |  August 4, 2014 at 8:41 pm

    Given that the "bar" for finding animus varies between various judges (and among the Justices as well), my point was simply that, the stronger a ban is, the more the likelihood of it satisfying the animus bar. You are correct that they are both equally objectionable, but for judicial scrutiny, it helps if the ban is stronger. Wasn't a similar logic used to support the fact that the Virginia case was very strong because its ban was one of the harshest?

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  • 44. Margo Schulter  |  August 2, 2014 at 10:51 am

    Ragavendran, what occurs to me is that this Wisconsin domestic partnership decision might help us simply by underscoring the many rights, here state as well as federal, that marriage bans (including nonrecognition of marriage from other jurisdictions) affect, just as in Windsor.

    Of course, Windsor itself adds to any distinctions between domestic partnership and marriage rights under state law (evidently very substantial in Wisconsin) the decisive difference in terms of over a thousand federal rights and responsibilities! And the language about “second-tier” partnerships — or, in oral argument, “skimmed milk” partnerships — provides a basis for finding both the specific rights deprivations and the dignitary harms unacceptable under the Due Process and/or Equal Protection Clauses of the Fourteenth Amendment.

  • 45. SeattleRobin  |  August 4, 2014 at 9:52 am

    I just started reading the Wisconsin DP decision and two ironies have leapt out immediately. First, the state declined to defend the law. Where is NOM's outrage over the state neglecting their duty?

    Second, the plaintiffs make a list of the essential elements of marriage. Procreation is nowhere on the list. Funny how it's non-essential when trying to prove DPs are substantially similar to marriage, yet essential when trying to prove the state can rationally limit who can get married. They say it is the existence of an exclusive, intimate relationship that creates the substantially similar status. Can we spell hypocrisy?

  • 46. Equality On TrialEquality&hellip  |  August 22, 2014 at 10:57 am

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