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Masterpiece Cakeshop oral argument audio is here


The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
The audio of the argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission is here.


  • 1. VIRick  |  December 8, 2017 at 11:31 am

    Arkansas: "Pavan v. Smith" Redux (Arkansas, You've Already Been Told)

    Little Rock AR — On Friday, 8 December 2017, in a continuation of "Pavan v. Smith" back at the state level, an Arkansas judge has issued an injunction blocking the state from issuing any birth certificates whatsoever until officials are able to comply with a US Supreme Court ruling that the state’s birth certificate law illegally favors heterosexual parents.

    "This case has been pending for over two years and it has been more than six months since the United States Supreme Court ruled the Arkansas statutory scheme unconstitutional," Fox wrote in his order. "There are citizens and residents of the state of Arkansas whose constitutional rights are being violated on a daily basis."

    In addition, Pulaski County Circuit Judge Tim Fox has set aside his orders requiring the state and three same-sex couples to go into mediation on how to fix the state law to comply with the US Supreme Court’s order. Earlier this week, Arkansas Attorney-General Leslie Rutledge had asked the Arkansas Supreme Court to stay or lift Fox’s mediation order.

    Per Equality Case Files:

    This latest round in "Pavan v. Smith," is effective immediately, 8 December 2017:

    • Injunction is here:
    • Order Setting Aside Mediation Orders is here:

  • 2. scream4ever  |  December 8, 2017 at 11:52 am

    Apparently the state has already complied with the order.

  • 3. VIRick  |  December 8, 2017 at 12:17 pm

    In the filing before the Arkansas Supreme Court, the state has claimed that it has complied with the Mediation Order, as ordered by the Arkansas Supreme Court, but despite the claim, continues to interpret Arkansas law in gender-specific terms. So, Judge Fox has halted the issuance of any/all Arkansas birth certificates until either:

    1. The state can see fit to interpret Arkansas state law in gender-neutral terms, or:
    2. State law is actually amended to become gender-neutral.

    As best as I can determine, Arkansas AG Rutledge continues to take the hyper-literal position that in the wording of Arkansas state law, the word "husband" means that the named individual must possess a penis.

    In the meantime, per the injunction, the state Department of Health said it would stop issuing and amending all birth certificates. Instead, it would take information from parents who request one for when the state can resume. Health Department Spokeswoman Meg Mirivel said the state issues roughly 400 to 500 new, amended, or replacement birth certificates per day.

  • 4. davepCA  |  December 8, 2017 at 3:27 pm

    "… in the wording of Arkansas state law, the word "husband" means that the named individual must possess a penis."

    Just adding a bit of levity. Enjoy.

  • 5. VIRick  |  December 8, 2017 at 4:51 pm

    Dave, you're preaching and singing to the choir. We always enjoy penises.

  • 6. VIRick  |  December 8, 2017 at 12:48 pm

    Arkansas: Gov. Hutchinson Issues Executive Directive on Birth Certificate Issue

    Per Equality Case Files and Jessi Turnure, KARK4News:

    Arkansas Governor Asa Hutchinson has issued an executive directive to the Arkansas Department of Health requiring that it list the spouse of the woman who gives birth as a parent, the same for female spouses as for male spouses. This has allowed the Department to begin issuing birth certificates again (a process which had been halted, by court order, between 10 AM and noon).

    A copy of the directive is here:

  • 7. JayJonson  |  December 8, 2017 at 2:53 pm

    Finally. The pettiness of these officials is infuriating. They should be brought before the judge and jailed for contempt.

  • 8. VIRick  |  December 8, 2017 at 4:39 pm

    Jay, it is more than mere pettiness. When it comes to Arkansas AG Leslie Rutledge and the Director of the Arkansas Dept. of Health, Dr. Nathaniel Smith (the defendant in "Pavan v. Smith"), the obfuscation is an active part of their over-all retrograde agenda, the inane pretentiousness of which appears to have practically pushed Judge Tim Fox over the edge.

    Governor Hutchinson's executive directive, although a dollar short and at least a day or two late, finally, is VERY clear as to what is to be expected, a point which tells me they knew what to do all along. Still, it is well worth the read:

  • 9. VIRick  |  December 8, 2017 at 3:59 pm

    Kentucky Supreme Court to Hear Gay Pride T-Shirt Appeal

    The Kentucky Supreme Court has agreed to hear a case regarding a t-shirt company refusing to print t-shirts for a Pride Festival due to their supposed religious beliefs. Back in 2012, the company, named Hands On Originals, refused to accept an order from Lexington’s Gay Pride organization. At the time, Blaine Adamson, the owner of the company, said that he would not be able to complete the order, citing his Christianity.

    The Lexington Human Rights Commission subsequently ruled that the company violated the city’s fairness ordinance, which outlaws discrimination based on sexual orientation. The company appealed that ruling to the Fayette Circuit Court, which in turn, ruled in its favor.

    According to news outlets in the state, the Kentucky Supreme Court order to hear the case, on appeal, was issued in November. A date the hear the case has not yet been set.

    Note to US Supreme Court: It is more than past time to issue a broad, definitive ruling to put a stop to all of these icky, picky, pseudo "christian beliefs" type of cases,– or be overwhelmed with an endless, non-stop cascade of them. Otherwise, for starters, right behind the "artistic" cake decorator case from Colorado, and alongside Cottonelle's floral arrangement appeal from Washington state, I can fore-see this Kentucky T-Shirt case looking at you.

  • 10. VIRick  |  December 8, 2017 at 8:15 pm

    Botswana Government Agrees to Recognize Transgender Man

    On 5 December 2017, the Southern Africa Litigation Centre (SALC) confirmed that Botswana has agreed to recognize a transgender man’s identity after an historic court ruling earlier this year. The registrar of the southern African nation said that later this month, it will supply the man, identified only as ND due to a court order, with a new official identity document, declaring him as male. 

    In October 2017, the High Court of Botswana had ordered the state to recognize ND’s gender, but it later emerged that the nation’s registrar, instead, was planning to appeal the order. The SALC said that the registrar has now reversed its decision.

  • 11. ianbirmingham  |  December 9, 2017 at 4:02 am

    Japan's Only Openly Gay Lawmaker Says SSM Will Take Years To Accomplish

  • 12. Randolph_Finder  |  December 9, 2017 at 2:14 pm

    OK, Now that Australia is done (except for the massive wedding at Margaret Court Court), let's see who is in the on deck for the rest of the year and 2018:
    Working from the International Dateline East
    1) Mexico: Let's hope they finish in 2018. Some states are playing "Who can tick off the SCJN most?"
    2) Venezuela: The good news is that Marriage Equality has a greater than 10% chance in 2018, the bad news is that an active Civil War is probably an even higher chance:
    3) Chile: Seems to have all the pieces read, even if they were gotten in an order that a North American finds odd.
    4) Northern Ireland. Depends on which pieces shift in 2018. Labor getting the UK Prime Ministership would be a good start.
    5) British Crown Dependencies: Should finish in 2018
    6) Switzerland: All hail the Swiss Bureaucracy. Will they finish with it in 2018?
    7) Austria. Unclear whether the Government will give Marriage a shove before the Court deadline, I'm thinking no.
    8) Czechoslovakia, likely to be the first behind the old iron curtain, but will it be by the end of 2018?
    9) Slovenia, the other possibility, we'll see if we get another amendment in 2018.
    10) Nepal. Will this be the year they finally fulfill the expectation? I think at one point they were expected to get marriage equality before the USA.
    11) Taiwan. The votes appear to be there. I expect this by the end of 2018.

    Other countries that are decent odds (>5%)?

  • 13. guitaristbl  |  December 9, 2017 at 2:36 pm

    Switzerland won't be done till 2019 the earliest as the committee examining the issue is unlikely to deliver its report before the deadline. Then a referendum has to be successful.

    There is no Czechoslovakia and there hasn't been one since 1993. You probably mean the states that were created by its dissolution, the Czech Republic and Slovakia.

    Slovakia is extremely socially conservative and voted just a while ago to ban same sex marriage constitutionally.

    The Czech Republic on the other hand is the most liberal central european country but it has been lurching further to the right year after year recently with the incoming government, led by right wing ANO, unlikely to move to that direction.

    Slovenia is unlikely to move towards any progress for some time after the referendum and the local LGBT movement seems unenthusiastic for some reason about going to the constitutional court.

    Also Northern Ireland is at a complete impasse. There is no government, the DUP is not giving up when it comes to Sinn Fein's top demands that include allowing marriage equality legislation to proceed and with the TUV MP and some UUP MPs it can still use the petition of concern process to block that even if the parliament was functioning. New elections see a consolidation of powers according to latest polls for the DUP and Sinn Fein which does not help to overcome the hurdles DUP brings.

    The other 8 cases are plausible and can happen within 2018, the least likely been Venezuela for the reasons you expressed. You should add potentially Panama as the ruling from the constitutional court there is pending even though it doesn't look super hopeful. I think Ecuador has a case pending before their constitutional court as well ?

  • 14. allan120102  |  December 9, 2017 at 4:05 pm

    Ecuador, Panama and Venezuela all have pending cases. The most likely to get marriage equality of the three in my opinion is Venezuela and now that the president has express support for ssm that might push the court to strike it down. Ecuador case I believe was file in the end of 2013/14 and still no response. Unless something changes with the Dup I dont see marriage equality for NI in the near future.
    Bermuda house yesterday pass the law to ban ssm now it just need senate approval,I hope it fails but I have not a lot of hope if they pass it, it will be the second place after California were people got married and then ssm was ban again.
    Switzerland will probably pass it by 2019 as a referendum also need to be done because it will change the constitution and the Czech republic have chosen a more conservative government but they are still more liberal than Slovakia.
    Mexico I am almost sure will continue to be incomplete for a couple of years as some states will need to surpass there 5 amparo limit and the court cannot force a state to legalise it unless an action of inconstitutionality is file and its not that easy, if it was all the states would had marriage equality by now.

  • 15. VIRick  |  December 9, 2017 at 6:39 pm

    "3) Chile: Seems to have all the pieces read, even if they were gotten in an order that a North American finds odd."

    Randolph, the sequential order is odd even for Chile. Here's the normal sequence:

    1. The legislation is passed by both Houses of Congress.
    2. The Constitutional Tribunal then examines the legislation to determine its constitutionality.
    3. If deemed constitutional, the President of the Republic then signs it into law.

    In the case of the marriage equality legislation, here's the peculiar sequence:

    1. As part of the international accord between El Gobierno de Chile, the CIDH, and MOVILH, the President of the Republic has already applied her signature to the legislation.
    2. The Constitutional Tribunal then examined the accord and the legislation, and determined that the entire package is constitutional.
    3. It is now up to both Houses of Congress to pass the legislation.

  • 16. VIRick  |  December 9, 2017 at 7:25 pm

    In addition to the several countries in Latin America Allan added to your list, I would state that there are 5 with decent possibility of attaining marriage equality in the near future, with a 6th as an outside possibility, and several more as a longer-term shots:

    1, Chile, once the Congress finishes the process of passing the required legislation, as mentioned above.

    2. Panamá, once a ruling has been handed down by its Supreme Court on the two combined marriage equality suits currently under deliberation.

    3. Ecuador, once a ruling is handed down by its Constitutional Court on any one of the three suits currently pending before it.

    4. Venezuela, once a ruling is finally handed down by the TSJ on the "legislative omission" case currently under deliberation (and assuming some semblance of civil political stability).

    5. Costa Rica, either legislatively or by Supreme Court ruling. National elections are slated for March 2018, with several political parties actively pro-LGBT and pro-marriage equality. The outcome of the elections will tell us much more about its near-term prospects. In the interval, several suits are pending in court. The one with the best chances involves the Mexican marriage of a Costa Rican citizen to a Mexican citizen in Mexico, wherein which the Costa Rican is now seeking recognition of said legal marriage in Costa Rica. That, plus the fact that the CIDH has its headquarters there.

    6. Perú, by Constitutional Court ruling on any one of several pending suits. As in Panamá, several are seeking Peruvian recognition of foreign marriages (a British marriage in one instance, a Mexican marriage in another), plus at least one seeking the ability to marry a same-sex partner in Perú.

    7. El Salvador, by Constitutional Court ruling on a suit seeking marriage equality.

    8. Guatemala, once a number of same-sex couples from Guatemala marry across the border in Chiapas, Mexico, then return home to file suit seeking recognition of their Mexican marriages.

    9. Needless to say, Mexico will add several more states to the marriage equality list in 2018, just as they did in 2017. I can see potential for Veracruz, Tamaulipas, Sinaloa, and any number of states in the central heartland, like Guanajuato.

    After that, we're down to the hard-core: Bolivia, Paraguay, Nicaragua, Honduras, Cuba, Dominican Republic, Haiti, Suriname, a few Dutch oddments, and the plethora of Anglo oddments.

  • 17. scream4ever  |  December 9, 2017 at 9:05 pm

    Chile has already begun debate of their marriage bill, so it should pass by the time a new President is seated in March no problem (on the off chance it doesn't, and Pinera is elected, our side can easily go back to court).

    Panama will likely have a favorable ruling soon, as the unfavorable one was released first (the same thing happened in Colombia, and they have a similar judicial system).

    I honestly don't expect anything to be done in Austria to speed up the process, and quite possibly not in Taiwan either (the latter will hopefully push Nepal to finally pass legislation).

    As for the remaining EU nations, a positive ruling requiring the recognition of SSM in all nations would speed things along FAST (something I think is a real possibility given the Austrian ruling).

  • 18. allan120102  |  December 9, 2017 at 9:08 pm

    I am almost in line with you Rick, in Mexico I believe Aguascalientes, Veracruz, Sinaloa, Queretaro and could be the next ones, I could see Aguascalientes, and Sinaloa as the next one as both only need one resolution more and there code is done.

    The hardest country to get in South America will be Paraguay even a deputy a month prior said that he will be crucify the moment ssm becomes legal in that country. I am quite surprise by there conservatism as seeing it close to Argentina and Brazil open bastion of liberalism in south America and moderate to conservative bolivia.

    Rick in Cuba I dissent with your opinion, I will say Cuba could get it anytime they want, but because of there politics it could be hard, as Mariela castro saying that Cuba doesnt have ssm because they are not copying from other countries, and I have seen polls were a plurality or even a majority support ssm. DR could get it sooner but I believe only if a court action force it like my country as there constitution ban ssm.

    Jamaica and Haiti will be pretty hard to get and I dont see it in the near future probably in 2'0-30 years from here. Haiti because of there conservatism, poverty and because they are more align with english countries in this topic with most of them in the caribbean banning ss relationships.

    Central America will be hard to get with the exception of Costa Rica, and maybe Panama , the only problem with Costa Rica is that like NI there assembly have a simliar thing and if a party wants to block it then the topic is not discuss.

    The rest imo its hard as you can see, that almost every country has abortion at some rate and 3/7 country which completely ban it are in here, being Nicaragua, Honduras, and El Salvador. Even with many countries trying to convince them to relax them they have not move. That is my scare thought in the ssm topic, hopefully they are more open to it than abortion. Honduras will only get it by a court order or if a super majority change the law as its in our constitution.

  • 19. Randolph_Finder  |  December 11, 2017 at 12:30 pm

    Why should going against Argentina, Brazil and Uruguay at the same time bother Paraguay at all, it worked so well the first time…

  • 20. ianbirmingham  |  December 9, 2017 at 4:48 pm

    Bermuda's House OKs bill repealing SSM

  • 21. scream4ever  |  December 9, 2017 at 8:40 pm

    I expect they will be back in court if this passes.

  • 22. VIRick  |  December 9, 2017 at 9:52 pm

    Bermuda: House Approves Repeal of Same-Sex Marriage

    Members of the Bermuda House of Representatives have approved a bill that would repeal marriage rights for same-sex couples in the British island territory. "The Royal Gazette" reported that lawmakers approved the Domestic Partnership Act, a measure which would allow same-sex couples to enter into domestic partnerships, as opposed to marriage, by a 24-10 vote on Friday, 8 December 2017.

    The Bermuda Senate will now consider the Domestic Partnership Act, which will become law if Gov. John Rankin signs it. His government would become the first in the world to legislatively rescind marriage rights for same-sex couples if this bill were to take effect.

  • 23. VIRick  |  December 9, 2017 at 10:12 pm

    Perú: New Public LGBTI Awareness Campaign by LGBT Maqazine

    En Perú, no tenemos union civil. No tenemos matrimonio igualitario. No tenemos igualdad de derechos LTGBQI, pero tenemos "La Revista Diversa."

    Deja el miedo en el closet. Vamos por nuestros derechos!!

    In Peru, we do not have civil unions. We do not have marriage equality. We do not have equal LTGBQI rights, but we do have "La Revista Diversa."

    Leave fear in the closet. Let's go for our rights!

  • 24. guitaristbl  |  December 10, 2017 at 10:58 am

    In terms of progress in Europe when it comes to marriage equality one should not forget that in western Europe, apart from Northern Ireland and Italy as well (if we assume in Switzerland the process is ongoing), there are several microstates that are really lagging on that matter.

    Andorra has gone so far as to reinforce its partnership legislation but did not proceed with full marriage equality.
    Liechtenstein has partnership legislation but the Prince of Liechtenstein,Hans-Adam II, opposes marriage equality and he has the last say formally.
    San Marino has unregistered cohabitation and is considering taking a step towards a civil unions scheme but marriage equality is not on the program.
    Monaco has no recognition for same sex couples at all and is now considering a bill that will legislate something similar to the french PACS (only 18 years later than that bill came to force in France..)
    I won't even discuss the Vatican state of course.

    These microstates tend to be very conservative despite the fact that they are surrounded by much more socially liberal nations and are seriously lagging behind the rest of western europe.

  • 25. VIRick  |  December 10, 2017 at 12:15 pm

    Monaco is so tiny that although elongated for several miles along the coast, it only stretches for a few blocks inland. I can recall that during a previous visit, I accidentally walked right out of the Principality, and suddenly found myself standing in front of the mayor's office of Beausoleil, the adjacent town in France. I would recommend that any same-sex couples resident in Monaco do precisely the same, while making a big show of it, with a large, happy entourage marching through the streets on the way to Beausoleil.

    Beausoleil, France, formerly known as Monte-Carlo-Supérieur, extends almost the full length of the Principality, just inland of it, and contains all the terraced panoramic vistas on the mountainside overlooking the Principality. And to be fair, its mayor's office sits only a few blocks from the border, as most of its population is a direct spill-over from the very overcrowded Principality. Later, I discovered that there's a red line painted down the middle of the city streets, demarcating the international border between Monaco and France.

  • 26. allan120102  |  December 10, 2017 at 6:34 pm

    Dont expect ssm soon in the BVI
    TORTOLA, British Virgin Islands (CMC) — Legislators in the British Virgin Islands have made it clear that same sex marriage will not be accepted in the British overseas territory.

    The matter was discussed on Friday as the legislators debated the Marriage (Amendment) Act.

    Under the Act, certain persons such as minors and family members are prohibited from getting married. However, junior tourism minister Archibald Christian urged his colleagues add homosexuals to that prohibited list.

    Christian said in doing so, visitors would know that same sex marriages are not accepted in the territory.

    “It's not that I have anything against persons who choose to have their relationship based on same sex. I am a human being so I have to support persons who want to have those relationships. But I have a problem when you call those relationships a marriage,”he said.

    But opposition leader Andrew Fahie said the question of same-sex marriage is not up for debate because same-sex marriage is already forbidden in the territory.

    “It's not for any of us to decide whether we are for or against marriage of the same sex … The substantial law already states clearly that it's not a recognised marriage in the British Virgin Islands. If it is challenged, that's a different story,” said Fahie who also threw his support behind the Marriage (Amendment) Act.
    The Act is being amended to accommodate one-day visitors who wish to marry during their short stay the BVI. However, the amended law still caters to all other eligible persons locally and abroad.

    With the new amendment, persons will be issued a marriage license on the same day of getting married.

    Under the current law, newly-weds must wait at least one business day before they get their license.

  • 27. VIRick  |  December 10, 2017 at 9:24 pm

    Australia: Marriage Equality and the Transgender Tiwi People

    Per capita, the Tiwi people of Melville and Bathurst Islands, part of the Northern Territory, off-shore north of Darwin, have the highest percentage of transgenders found anywhere in Australia. This article lets them speak for themselves:

  • 28. allan120102  |  December 11, 2017 at 9:20 am

    Puebla continues to denies the right to marry to ss couples even after its ban was struck by the supreme court.

  • 29. guitaristbl  |  December 11, 2017 at 10:17 am

    The supreme court has denied review of the Evans case.

  • 30. scream4ever  |  December 11, 2017 at 1:23 pm

    Very surprised and disappointed by that news. I guess they only want one major LGBT rights case this term.

  • 31. guitaristbl  |  December 11, 2017 at 4:13 pm

    Along with the denial of review in the Houston benefits case I am really confused with SCOTUS right now.
    Unless they address the Evans issues at Masterpiece Cakeshop, which I heavily doubt.

  • 32. VIRick  |  December 11, 2017 at 5:18 pm

    Per "Evans:"

    SCOTUS doesn't yet quite have a circuit split which will force them to deal with workplace discrimination. At the moment, the 11th Circuit Court of Appeals has ruled against, but no other circuit has ruled in favor in a case that has been appealed to the Supreme Court. On the other hand, the 7th Circuit Court has ruled favorably in "Hively," while the 2nd Circuit Court has ruled favorably in "Zarda," but in both instances, the defendants have not been in a position to appeal to SCOTUS.

    Re "Houston Benefits" case:

    This case was prematurely appealed to SCOTUS, while still being under litigation at the lowest court level.

  • 33. scream4ever  |  December 11, 2017 at 5:29 pm

    But there effectively is a circuit split with the issue, and I don't understand why it makes a difference which side appeals.

  • 34. VIRick  |  December 11, 2017 at 5:45 pm

    Scream, just like in the "Houston Benefits" case, the respective circuit courts of appeals referred the case back to the lower court for further litigation. As a result, the matter was not appealable to SCOTUS at that time.

    "Houston Benefits" got appealed from the Texas Supreme Court only because Houston thought the matter should have been deemed a dead issue. (And the challenged matter is a dead issue, but the lowest court still has to determine that).

  • 35. VIRick  |  December 11, 2017 at 5:35 pm

    Scream, SCOTUS is procrastinating, and until the matter is forced in front of them, they apparently are not ruling on workplace sexual orientation discrimination. Still, there are several additional technicalities:

    One possible stumbling block, per "Evans:"

    The hospital where Evans worked (as well as the individual employees named in the lawsuit) told the justices that it had not participated in the case in the lower courts and would not do so in the Supreme Court even if review were granted.

    And a second, more likely:

    The 11th Circuit Court of Appeals also ruled, however, that Evans could bring a claim alleging that she had been a victim of discrimination because she did not conform to gender stereotypes. This aspect, of gender stereotyping, has yet to be pursued.

    Perhaps they should have gone with the gender stereotyping argument right from the very beginning, as the 11th Circuit Court of Appeals, by its own suggestion, certainly sounds far more amenable to that line of reasoning. The plaintiff still can, of course, but that means starting over.

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