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Judge Slams Indiana’s Anti-Gay Governor

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By Matt Baume

The anti-gay Governor of Indiana just got caught making some wild claims in court, and now a judge has called him out in a sternly-worded ruling. Marriage equality has picked up another victory, with the first federal judge to rule in Florida. There’s a new case in Arizona, with an elderly couple about to lose their home; couples are fighting back against stalling tactics in Arkansas; and two major oral arguments are coming up in the next few days.

We were just days away from the start of marriage in Virginia last week, with AFER’s latest victory about to go into effect. But then the US Supreme Court stepped in and imposed a stay, so couples can’t get married — yet. Virginia Attorney General Mark Herring has already petitioned the Supreme Court to review the case, so we’re likely to have a final decision in the next few months.

While we await the Supreme Court’s next move, several more federal courts have affirmed the freedom to marry. In Florida, Judge Robert Hinkle has found the state’s marriage ban unconstitutional, citing AFER’s Virginia case as precedent. A new study from the Williams Institute shows that marriage equality would add $182 million to Florida’s economy.

And in Indiana, US District Court Judge Richard L. Young has ruled that the state must recognize out of state licenses, though the decision is stayed pending appeal. Young also had harsh words for anti-gay Governor Mike Pence, who tried to remove himself from the marriage litigation by claiming that he has no jurisdiction over marriage. Judge Young initially believed Pence, but then discovered that the Governor was directing state officials to ignore marriage licenses issued to gay and lesbian couples. In his latest ruling, Judge Young called Pence’s claims a “bold misrepresentation” and “at a minimum, troubling.”

Attorneys for the state of Utah have asked the Tenth Circuit for an extra month to file briefs in Evans v. Utah. That case concerns the validity of marriages conducted while marriage was briefly legal in Utah. The current deadline for briefs is September 22nd. A new survey shows support for marriage is continuing to climb in Utah, but remains low at around 30 percent.

Couples in Arkansas are fighting back against the state’s attempt to delay a ruling on marriage equality. A state court overturned the Arkansas marriage ban in May, and the state has asked for the litigation to be paused until the US Supreme Court can rule.

There’s a new case in Arizona, filed by an elderly couple facing a terminal illness. George Martinez and Fred McQuire have been together for 45 years, but without the protection of marriage, could soon lose their home.

And watch for major marriage news this Tuesday. The Seventh Circuit Court of Appeals will hear argument in several cases from Indiana and Wisconsin. There’s also a hearing coming up on September 8th, covering cases in Hawaii, Idaho, and Nevada.

61 Comments

  • 1. RnL2008  |  August 25, 2014 at 8:07 am

    It seems that the more we gain in Court……the more stays are issued and the stays are being issued WITHOUT any JUSTIFICATION!!

    Again, why have guidelines if they are NOT going to be followed?

  • 2. ragefirewolf  |  August 25, 2014 at 8:12 am

    I hate it too, but it's because SCOTUS rules the roost. Essentially, SCOTUS has incredibly lavish discretion when it comes to if, when, and how cases come to it or not. That unfortunately has a ripple effect across the federal court system.

    Yes, they should maintain the structures set in place they seem to so flagrantly disregard, but they have the power to do so and they use it frequently.

    I personally would prefer if SCOTUS had to take appeals of national importance and had less discretion in that regard and that they would not issue stays just to maintain status quo.

  • 3. RnL2008  |  August 25, 2014 at 8:20 am

    I would have to agree with you, but then isn't that how we got the Baker ruling? I still believe (though I question it at times) that SCOTUS will answer the question regarding Marriage being a Fundamental Right regardless of who one wants to marry……..what bothers me the most is these stupid pathetic arguments stating that by denying Gays and Lesbians their fundamental right to marry that this in some way will make opposite-sex couples be more procreative responsible and make them stay together…….and that's simply a LIE!!!

  • 4. ragefirewolf  |  August 25, 2014 at 8:46 am

    Well, Baker came about at a time when they pretty much had to take all appeals, not just the important ones, but yes that could be an issue again under the right circumstances.

    Yes, the legal "arguments" which are essentially fancy lies make me very upset. Enraged even.

  • 5. RnL2008  |  August 25, 2014 at 9:13 am

    I see your point……..I hope that this issue gets resolved by June of 2015……..and I believe that SCOTUS will rule in our favor…….even if that means a 5-4 ruling!!!

  • 6. Zack12  |  August 25, 2014 at 8:36 am

    If we get a ruling against us, they will basically have no choice but to take it up.

  • 7. ragefirewolf  |  August 25, 2014 at 8:50 am

    Perhaps. They still have discretion even in the case of Circuit splits, unfortunately, although the pattern seems to be that they like to resolve those. The fact that they have maintained stays in both Kitchen and Bostic is telling as well.

  • 8. tornado163  |  August 25, 2014 at 10:10 am

    Is it telling? There wasn't any detail analyzing the merits for/against the stays, just a couple of sentences.

    Had the court denied the stay, I think that would have been a fairly good sign they'd rule in our favor since they wouldn't have a problem with marriages taking place. But the converse isn't true. Maybe they stayed the marriages because they want a chance to make the decision themselves and wanted to avoid preliminary confusion before their final decision. It's not the most legally sound argument, and doesn't really match up with stay guidelines, but the Supreme Court can do what it wants and can edit the stay guidelines however it wants.

  • 9. Zack12  |  August 25, 2014 at 10:54 am

    Keep in mind with DOMA they sat on different cases for almost a year and a half before picking the Windsor case.

  • 10. ragefirewolf  |  August 25, 2014 at 11:25 am

    Why would they stay two different rulings with only the underlying principle of seeking marriage in common unless they intend to review the cases on their constitutional merits?

    I wasn't saying that they would rule in our favor, I was speaking to the likelihood that they will grant cert in one of the cases, especially if a third case is stayed from another Circuit.

  • 11. Eric  |  August 25, 2014 at 11:41 am

    Stays are issued at the whim of the court. We won't know if they intend to rule on the merits until they grant or deny cert.

  • 12. ebohlman  |  August 26, 2014 at 4:56 am

    I have to believe that a big factor in the Bostic stay was that Herring was asking for one. I also suspect that the refusal to treat the stay request as a petition for cert indicates that the Justices' minds aren't sufficiently made up to justify making a quick decision during recess. I don't think any further prognostication is possible at this time.

  • 13. RemC_in_Chicago  |  August 25, 2014 at 8:44 am

    Off-topic question – I've been looking for rules about attending the Bostic case tomorrow here in Chicago but haven't found anything online. I called the clerk's office some weeks ago but wanted to see if there were any updates. Anyone seen anything?

  • 14. MichaelGrabow  |  August 25, 2014 at 9:59 am

    Bostic is the case in VA.

  • 15. RemC_in_Chicago  |  August 25, 2014 at 1:24 pm

    Yes, I mis-typed. Baskin, not Bostic.

  • 16. Dr. Z  |  August 25, 2014 at 9:45 am

    Good AP article about the difficulties faced by same sex couples in healthcare and end of life situations. In Oregon, by law, only spouses or blood relatives may make decisions about funeral arrangements. There is no legal paperwork that can be drawn up in advance to delegate that power to anyone else.
    http://abcnews.go.com/US/wireStory/health-care-fe

  • 17. Zack12  |  August 25, 2014 at 11:04 am

    Indeed, that is something many people still don't get.
    There are no contracts that will provide all the protections a marriage license will, simple as that.

  • 18. Steve  |  August 25, 2014 at 1:09 pm

    There should be though. Marriage equality is important, but it shouldn't be THE solution to this issue (or others). There are benefits that should be tied to marriage, but especially in the US, so many things are needlessly connected to marriage.
    There simply is no good reason when funeral arrangements are something that should be restricted to one's legal family. Making that default makes sense, but why shouldn't people be able to draw up a contract for it? For example two old people living together or just being friends, without family close by, who decided to make arrangements for each other.

  • 19. SeattleRobin  |  August 25, 2014 at 2:18 pm

    Like hospital visitation rules, this is a holdover from a time when people tended to have large families that stayed in relatively close proximity. It's an example of an area where laws haven't caught up to the modern reality of small families in a mobile society. It's not specifically a marriage issue, though it can be an important marriage issue.

    But just think of someone who's an only child with deceased parents and who is single. It's hardly fair to put the whole thing on a remaining aunt who lives clear across the country and hasn't seen the person in 30 years. A nearby best friend is an obvious better choice to make arrangements.

    The problem is, most of us don't even know these kinds of laws still exist until they smack us in the face. I think it would be easy enough to get a change so that wills and end of life directives could determine the issue. But things like this are difficult to educate people about and get enough pressure on state legislatures to do something about it.

  • 20. Mike_Baltimore  |  August 25, 2014 at 5:30 pm

    The problem with wills is that wills normally are not opened until after the funeral, and most states do not allow the public disclosure of end of life directives, before or after death. They use the 'excuse' of protecting the doctor-patient privilege.

  • 21. Mike_Baltimore  |  August 25, 2014 at 1:11 pm

    "In Oregon, by law, only spouses or blood relatives may make decisions about funeral arrangements."

    Before ME, that was the case in Maryland, except the state law was that parents were first, then siblings, then other blood relatives. In 2002, when Hans died (and more than a decade prior to ME in Maryland), I couldn't make any (official) arrangements for him – all had to (officially) come from his 80 YO mother by fax (she lived in Jacksonville, FL), then she had to resign all the paperwork before the memorial service, held in Baltimore. Fortunately, there were no disagreements between Hans' mother and myself on the arrangements. She found the situation somewhat amusing, since he had lived with her for less than 19 years, but Hans and I had lived together for more than 20. Her comment was along the lines of 'This is ridiculous – you knew him a lot better than me.'

  • 22. Randolph_Finder  |  August 25, 2014 at 9:43 pm

    Sounds like quite a great lady, I hope you have stayed in contact with her…

  • 23. Mike_Baltimore  |  August 25, 2014 at 10:31 pm

    Unfortunately, she died soon after Hans died.

  • 24. SWB1987  |  August 25, 2014 at 9:51 am

    When will we know who the seventh circuit judges are again?

  • 25. DoctorHeimlich  |  August 25, 2014 at 9:59 am

    We will find out tomorrow.

  • 26. Zack12  |  August 25, 2014 at 11:06 am

    Keeping the fingers crossed, the chances we will avoid having one or two Republicans on the panel is next to none, but which ones we get will determine how we fare.
    I'll say this from the start, Judge Diane Sykes is a no vote.

  • 27. FredDorner  |  August 25, 2014 at 2:08 pm

    Ditto on Sykes – she's a horrible person and was a really horrible judge when she served on the Milwaukee county circuit and on the supreme court here in Wisconsin.

  • 28. Zack12  |  August 25, 2014 at 2:35 pm

    And she's a member of the Federalist Society, whose only purpose is make sure right wing judges who will roll back all progress made in this country the past 100 years get on the bench.
    I'll also note one other thing, she's divorced so if she is on the panel tommorrow and talks about the sancity of marriage, it'll be a joke.

  • 29. Zack12  |  August 25, 2014 at 11:07 am

    He was one of the most anti-gay members while serving in Congress and he has continued that while serving as Governer.
    Serves him right that his bigotry has blown up in his face for once.

  • 30. Eric  |  August 25, 2014 at 11:47 am

    So he slightly bore false witness. Any sin is ok, as long as it is anti-gay. Hypocrites 1:32

  • 31. Mike_Baltimore  |  August 25, 2014 at 12:52 pm

    Talking to family members in Indiana, the opinion of most (and the people they talk to) is that Pence is not only anti-homosexual, but is about as extreme CONservative as a politician can get and still win in the state.

    He might have a very difficult re-election campaign in 2016, especially if he has to run against a moderate Democrat, especially one endorsed by former Governor and former Senator Evan Bayh (especially if Bayh decides to run for Governor again). When Bayh left the office of Governor, he was EXTREMELY popular in the state (favorability polling near 70%, or even higher).

  • 32. Zack12  |  August 25, 2014 at 2:46 pm

    And yet, if Bayh had run for reelection in 2010, he likely would have lost.
    It's always amazing to see the governor/senate dynamics at work.
    As for Pence, you're right.
    Any farther to the right then him and you'll have Richard Mourdock.

  • 33. hopalongcassidy  |  August 25, 2014 at 3:08 pm

    Did you mean Rupert Murdoch?

  • 34. weaverbear  |  August 25, 2014 at 3:35 pm

    No, I do think he meant Mourdock. Mourdock was one of the tea party candidates who ran unsuccessfully in the last senate race in Indiana; he was the one who stuck his foot in his mouth, saying in a televised debate that though conception through rape was deplorable, it was not the fault of the child and that even in that situation abortion was wrong. He lost to the Democrat, Joe Donnelly.

  • 35. Zack12  |  August 25, 2014 at 3:55 pm

    He did indeed. It should be noted that while he says is for gay marriage now, Donnelly was one of the few Democrats to join the brief the Republicans submitted in asking DOMA was defended.
    He's a Blue Dog but he is still far better then Mourdock would have been.

  • 36. hopalongcassidy  |  August 25, 2014 at 4:44 pm

    My apologies, I never heard of the guy before.

  • 37. Zack12  |  August 25, 2014 at 5:13 pm

    No problem.. he wasn't really big news until he opened his mouth and said what he said.

  • 38. StraightDave  |  August 25, 2014 at 5:28 pm

    I think his words were along the lines of the pregnancy "was what God intended to happen", so we had to let it be. That ignited a huge fire that burned down his "slam dunk" election. And he said it in the most godawful creepy voice that made we want to run the other way with my children under my arms.

  • 39. ebohlman  |  August 25, 2014 at 6:53 pm

    Actually he became big news when he beat long-time incumbent Richard Lugar in the primary; that was considered an incredible victory for the Tea Party.

  • 40. Mike_Baltimore  |  August 25, 2014 at 7:32 pm

    It is hard to predict what would have happened in Indiana in 2010, when Bayh would have run for reelection to the Senate. The winner of the 2010 Senatorial contest (Coats) won with a bit over 54% of the vote against a 'no name' Democratic candidate. Ellsworth got 40% of the vote, even as a 'no name' candidate. If Bayh had run, he would probably have received at least 47-48% of the vote (in politics, name recognition means a LOT), shaved at least 5 points off Coats margin, and allowed Sink-Burris (the Libertarian candidate) to get about 2% more votes (most 'libertarian' votes in Indiana are from South of Indianapolis; Bayh's home is in Southern Indiana, Coats is from Fort Wayne, about 110 miles North of Indy. Most 'libertarians' thought of Coats as 'too liberal', and too 'anti-gun', and (if Bayh had run) probably would have caused a drop-off of support for Coats, with those votes not going to the Democrat, but conservative, Bayh, but to Sink-Burns.). It would have probably been a much closer race, if not a Bayh win, if Bayh had run for reelection in 2010.

    Add in that the whole campaign also would probably have been different, with almost certainly a different set of issues in the campaign.

    And that the people of Indiana already had seen Coats as a Senator, from 1989 until 1999, until Evan Bayh beat him and took over as Senator from Indiana.

    So saying "likely [Bayh] would have lost" is not really true. It is speculation and opinion, as no one really knows how the election would have turned out if Bayh had run for reelection. One thing almost everyone can say is that the margin for winning would have been a LOT closer.

  • 41. Sagesse  |  August 25, 2014 at 4:50 pm

    This is just funny. The World Congress of Families was very helpful when Russia was passing its anti-gay law. Brian Brown was part of their delegation at the time.

    Mike Huckabee Pleads With Australia To Stop Canceling Anti-Gay Hate Group Conference Venues [New Civil Rights Movement]
    http://www.thenewcivilrightsmovement.com/australi

  • 42. RemC_in_Chicago  |  August 26, 2014 at 5:23 am

    Got to the courthouse here in Chicago at 6:10; 6th person in line. Even plaintiffs required to line up and wait. Courtroom for us moved from 27th floor to 25th to accommodate larger crowd. We're now lined up outside courtroom. Doors open at 9.

  • 43. RemC_in_Chicago  |  August 26, 2014 at 6:08 am

    Judges are Posner & Williams & Hamilton.

  • 44. brooklyn11217  |  August 26, 2014 at 6:11 am

    You are fast… Beat me to it! This seems pretty good for us, right

  • 45. RemC_in_Chicago  |  August 26, 2014 at 6:14 am

    Yes. Hamilton & Williams appt'ed by Obama & Clinton. Panel not posted yet. Got it from one of the ACLU folks.

  • 46. brooklyn11217  |  August 26, 2014 at 6:18 am

    It must be public because I have now seen tweets from news organizations. This is same panel that vacated the stay for one couple earlier on….seems like very good news for us. Enjoy the hearing if you are about to go in!

  • 47. rwingfield  |  August 26, 2014 at 6:19 am

    So the same panel that stayed Baskin and expedited the cases? Looking at the possible panels, surely this must be the best that can be hoped for (save for Chief Justice Wood being on the panel)? Possible 3-0 slam dunk?

    (PS – Long-time reader of these discussions, first-time poster. I'm a UK lawyer who has learnt more about US constitutional law in the last fourteenth months than I ever thought possible!)

  • 48. RemC_in_Chicago  |  August 26, 2014 at 6:29 am

    It seems so. I was talking to the head of the Indiana ACLU and she indicated—while we were waiting for the building to open—that this was a likely scenario. Great outcome.Sent from my iPhone

  • 49. Zack12  |  August 26, 2014 at 6:17 am

    This is the best possible panel we could have gotten.
    A Clinton judge, an Obama judge and a Republican judge that has shown symapthy to our side in the past.

  • 50. Randolph_Finder  |  August 26, 2014 at 6:27 am

    Posner *really* seems to be an odd duck, but *very* prolific. I could see ME winning 3-0, but with Hamilton and Williams writing one opinion and Posner writing a concurring opinion that was twice as long and quoted more. 🙂

  • 51. Zack12  |  August 26, 2014 at 6:30 am

    I would also expect Posner's option to have a LOT of digs at Scalia, as they really, really do NOT like each other.

  • 52. Randolph_Finder  |  August 26, 2014 at 6:42 am

    Tempted to downrate for not enough 'really's
    🙂

    See http://joshblackman.com/blog/category/articles/po

    for someone who keeps track of the issue and as of last count "Posner v Scalia" was on round 28 or something.

  • 53. RemC_in_Chicago  |  August 26, 2014 at 6:30 am

    Yep.

  • 54. Zack12  |  August 26, 2014 at 5:36 am

    Going to miss the start of the hearing.. let's cross our fingers for a good panel!

  • 55. RLsfba  |  August 26, 2014 at 5:55 am

    Local news Chicago hearings – busloads for ME http://fox6now.com/2014/08/25/wisconsin-gay-coupl

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