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Breaking news 12/22

Transgender Rights

– A district court has denied a motion to dismiss and has granted a preliminary injunction against President Trump’s ban on transgender military servicemembers.

– The DC Circuit has denied a halt to allowing transgender military servicemembers in the military on January 1.

– As previously noted, the Fourth Circuit has denied a similar request to stall the deadline.

Barring any really important news we’ll be back January 2. Happy holidays!

Thanks to Equality Case Files for these filings


  • 1. scream4ever  |  December 22, 2017 at 6:56 pm

    If the DC Circuit Court of Appeals denied a stay, the Supreme Court certainly will as well.

  • 2. VIRick  |  December 22, 2017 at 7:30 pm

    DC Circuit Court of Appeals Denies Stay to Trump Trans Military Ban

    Per Equality Case Files:

    Today, 22 December 2017, at the DC Circuit Court of Appeals, in "Doe v. Trump," the case in which the federal defendants appealed GLAD/NCLR's preliminary injunction blocking the ban on military service by transgender individuals, and the first case to have obtained such an injunction blocking the ban, the appeals court denied the stay and will not delay the 1 January 2018 enlistment date. This follows yesterday's order from the 4th Circuit Court of Appeals also denying a stay.

    "First, Appellants have not shown a strong likelihood that they will succeed on the merits of their challenge to the district court’s order. …
    "Second, Appellants have also failed to demonstrate that allowing the accession of transgender troops on January 1, 2018, will cause them irreparable harm. …
    "Third, Appellants have failed to show that issuance of the stay will not substantially injure the other parties to the proceeding. …
    "Fourth, given that the enjoined accession ban would directly impair and injure the ongoing educational and professional plans of transgender individuals and would deprive the military of skilled and talented troops, allowing it to take effect would be counter to the public interest."

    "Finally, in the balancing of equities, it must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them."

    The full Order is here:

    At this point, that brings us to 10 federal judges who have refused to buy Trump's version of the story, that is, district court judges in DC, Maryland, Washington State, and California, plus 3-judge panels at the 4th Circuit Court of Appeals (on 21 December 2017) and at the DC Circuit Court of Appeals (on 22 December 2017).

  • 3. VIRick  |  December 22, 2017 at 7:34 pm

    4th Injunction Against Trump Trans Military Ban

    Per Equality Case Files:

    Today, 22 December 2017, in "Stockman v. Trump," the suit in which Equality California and seven individuals have been challenging the trans military ban, the Order denying the motion to dismiss and granting the plaintiffs' motion for a preliminary injunction, has been issued, the fourth such injunction by a federal district court blocking the ban.

    Doc 79 – Order (1) DENYING Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (Dkt. No. 36); and (2) GRANTING Plaintiffs’ Motion for Preliminary Injunction (Dkt. No. 15) is here:

  • 4. VIRick  |  December 22, 2017 at 8:47 pm

    9th Circuit Court of Appeals: Trump's 3rd Attempt at Travel Ban Still Violates Federal Law

    On 22 December 2017, a 3-judge panel of the 9th Circuit Court of Appeals ruled that Trump's third attempt at implementing his travel ban, issued via a September 2017 proclamation, again violates federal law. The court, however, will keep its ruling on hold pending the outcome of any Supreme Court review sought by the Justice Department.

    The 9th Circuit Court of Appeals ruled in a lengthy decision that "the Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas," a ruling the panel concluded shows that the challengers, including the state of Hawaii, had shown a likelihood that they would succeed in their lawsuit. The court, which heard arguments earlier this month, narrowed the district court's prior injunction — which barred all enforcement of the travel ban against people from the six majority Muslim nations affected — to people from those six nations with "a credible bona fide relationship with the United States."

    Those affected are people from Chad, Iran, Libya, Somalia, Syria, and Yemen. Although North Korea and Venezuela also are included in the president's latest proclamation, the district court injunction did not halt enforcement of the ban against those from those countries, so they are not at issue in today's decision. Because the underlying injunction itself is stayed pending the outcome of any petition for certiorari, under a prior Supreme Court order, the 9th Circuit Court likewise ruled that its decision will remain stayed "pending Supreme Court review."

    The case, as with other prior iterations of the ban, was considered before Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez. The opinion was issued per curiam, or for the court, and not under the name of a specific judge. In issuing their decision, the court ruled solely on the basis that Trump's order violated the Immigration and Nationality Act's nondiscrimination provision — and that the president "lacks independent constitutional authority to issue the Proclamation" under current circumstances.

    Because it ruled on the statutory issue, the panel also held that "we need not and do not consider th[e] alternate constitutional" argument made by the challengers that the ban violates the Establishment Clause as a type of religion-based discrimination. That issue — and Trump's tweets on the topic — were front and center in the other appellate arguments held on the third attempt at the travel ban. The 4th Circuit Court of Appeals heard its arguments en banc, or before the full court, two days after the 9th Circuit Court's arguments. The 4th Circuit Court is yet to issue its decision.

  • 5. VIRick  |  December 22, 2017 at 9:42 pm

    Alabama Officials to Certify that Roy Moore Is a Loser

    Per Joe.My.God and the AP:

    Alabama election officials say they will certify Democratic candidate Doug Jones’ upset victory over Republican rival Roy Moore next week. The Alabama Secretary of State announced in a statement issued on Friday, 22 December 2017, that the election results would be finalized next Thursday, 28 December.

    Moore has not conceded the race. Yesterday, Thursday, in a fundraising letter to his supporters, Moore said he needs donations to investigate what he calls reports of fraud and irregularities in the election.

  • 6. VIRick  |  December 23, 2017 at 12:27 pm

    Mexico Challenges the Abrogation of DACA in US Federal Court

    Per Geraldina González de la Vega y

    Interpone México moción por DACA. El gobierno de México presentó un amicus curiae ante la Corte de Distrito de EU para el Distrito Este de Nueva York, a fin de suspender temporalmente la rescisión del DACA.

    Mexico interposes a motion in favor of DACA. The Mexican government filed an amicus curiae brief with the US District Court for the Eastern District of New York, in order to temporarily suspend the termination of DACA.

    DACA = Deferred Action for Childhood Arrivals, and refers to the US government program which deferred ruling on the status of small children and infants brought into the USA illegally by their parents (or others), or brought in legally by family who then overstayed their visas, without the child's knowledge, consent, or understanding, and who then grew up and became adults in the USA. Most have no knowledge or experience of their actual country of birth, and many have younger siblings born in the USA.

  • 7. VIRick  |  December 23, 2017 at 8:53 pm

    Austria: Marriage Equality Court Ruling Up-Date in English

    Per Geraldina González de la Vega:

    On 5 December 2017, the 14 judges of the Austrian Constitutional Court ruled that marriage should be open to same-sex couples and also that different-sex couples should have the option of availing themselves of registered partnerships. The Court concluded that “…the legal separation of gender and same-sex relationships into two different legal institutions thus violates the principle of equality."

    “This decision opens up marriage and registered partnerships to all couples; it is a really positive and refreshingly inclusive judgment." ILGA-Europe are sending all our congratulations to the LGBTI activists, legal experts (including Helmut Graupner who represented the couple involved in this case throughout their journey), supporters of the Ehe-gleich citizen’s initiative, and all the allies who stood together to call for equality.” said ILGA-Europe Executive Director Evelyne Paradis, speaking after the verdict was announced.

    It is expected that marriage equality and equal access to registered partnerships will be available from 1 January 2019 at the latest (unless parliament acts even sooner and repeals or amends the law before 31 December 2018).

    Today’s judgment (on 5 December) follows an earlier preliminary ruling from the Constitutional Court on 12 October that having registered partnership as the only option for same-sex couples is not permissible, even if registered partnerships and marriage are made legally "absolutely identical.” The court then instituted proceedings to delete the words "of different sex" from the Austrian Civil Code's marriage law.

  • 8. VIRick  |  December 23, 2017 at 9:24 pm

    European Court of Human Rights Rules against Italy on Same-Sex Marriage

    Per Geraldina González de la Vega:

    On 14 December 2017, in the case of "Orlandi and Others v. Italy," the Court by a 5-2 vote found Italy to be in violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and awarded the applicants (plaintiffs), eleven Italian nationals and one Canadian national (6 married same-sex couples, all married outside Italy), EUR 5,000 each in respect of non-pecuniary damage for the state's failure to register their marriages.

    The respondent State (Italy) is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

    (i) EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (ii) EUR 9,000 (nine thousand euros), jointly, plus any tax that may be chargeable to the applicants in application no. 60088/12, in respect of costs and expenses;

    (iii) EUR 10,000 (ten thousand euros), jointly, plus any tax that may be chargeable to the applicants in applications nos. 26431/12, 26742/12, and 44057/12 in respect of costs and expenses.

    Looking carefully, 5 of the 6 couples, as couples, actually received a total of 20,000 euros plus tax, and the 6th received 19,000 euros plus tax.{"itemid&quot…

  • 9. scream4ever  |  December 23, 2017 at 10:36 pm

    Hopefully this will lead to Italy legalizing SSM soon!

  • 10. VIRick  |  December 23, 2017 at 10:42 pm

    In the meantime, it cost the state a total of 119,000 euros plus tax to lose the case. If same-sex couples continue suing, the bill against Italy will continue to mount to a point where it may influence officials to at least begin to allow the registration of foreign marriages in Italy, as that is basically what these 6 same-sex couples, already married abroad, attempted to do.

    Two of the applications actually jointly cover 2 same-sex couples each, as there were only 4 separate applications.

  • 11. scream4ever  |  December 23, 2017 at 11:49 pm

    Hopefully the EU Court of Human Rights will soon rule that each member nation must at least recognize SSM, if not perform it.

  • 12. ianbirmingham  |  December 24, 2017 at 2:30 pm

    'Climate Of Hate' For LGBT Defenders In Former Soviet Republics
    December 22, 2017 09:10 GMT

    Amnesty International says groups that defend LGBT rights are facing a rise in hostility in parts of the former Soviet Union, fueled by discrimination, homophobia, and what it called Russia's crusade against "nontraditional sexual relationships." Released on December 22, the report by the global human rights watchdog found that LGBT rights groups in Armenia, Belarus, Kazakhstan, and Kyrgyzstan were facing an "increasingly discriminatory environment."

    Denis Krivosheev, deputy director for Europe and Central Asia at Amnesty International, said that while lesbian, gay, bisexual, transgender, and intersex activists had long faced discrimination in those four countries, the situation has worsened due to “the extent of Russian influence and the reach of its media.” “The idea, promoted by Russia, that LGBTI rights are ‘Western values’ that somehow constitute a threat to national security is entrenching elsewhere. It’s a climate of ignorance and hate that’s being fostered by national governments and is even infecting the human rights community in the region,” said Krivosheev.

    The governments of Armenia, Belarus, Kazakhstan, and Kyrgyzstan, Russia’s closest partners in the region, have all embarked on a crackdown on LGBT rights in recent years, the report said. All four countries have attempted to introduce what it called homophobic legislation similar to a 2013 Russia law outlawing the distribution of "propaganda of nontraditional sexual relationships" to minors, which rights groups say has encouraged discrimination and violence against gays and essentially prohibited gay-rights rallies. So far, only Belarus has done so, adopting its version of the Russian law in 2016. Armenia and Kyrgyzstan amended their constitutions to explicitly ban same-sex marriages in 2015 and 2016, respectively.

    Amnesty said that with few exceptions, gay-pride marches were banned in the four countries or were frequently targeted by homophobic groups, with police doing little to intervene or investigate hate crimes.

    Only a few NGOs that work on LGBT rights were registered in Armenia and Kyrgyzstan. In Belarus and Kazakhstan, only activists and informal groups were active, the Amnesty report said. As a result of this discrimination, LGBT human rights defenders and activists have come to feel even “less equal” within their local human rights communities, Amnesty said. The human rights watchdog said all four countries were dominated by “mainstream” human rights groups that do not primarily work on LGBT rights.

  • 13. ianbirmingham  |  December 25, 2017 at 6:52 pm

    Egypt launches bid to ban atheism over fears it turns people gay

    …the commission hopes that by pushing through the law it will support the bid of another law which has been deemed the most homophobic law in the world. … It is so extreme that even someone in possession of a rainbow flag could be imprisoned under the law.

  • 14. allan120102  |  December 26, 2017 at 12:55 pm

    The citizen organization Diverciudad A. C., presented before the Legislative Power a written request to reform the mentioned legal order, so that homosexual persons have access to the figure of marriage or concubinage. The document was received by the presidency of the local Congress and was turned over, for its study and opinion, to the Commission of Justice and Human Rights, chaired by the independent legislator, Célida Teresa López Cárdenas. Diverciudad A. C. requested in writing before the Legislative Branch that their request be taken into account and the possible modification to the mentioned legal framework be discussed. He emphasized in the document that currently the lesbian-gay population of Sonora does not have access to the figure of marriage or concubinage, with the same ease that heterosexual couples do. The Congress Commission that will be in charge of the analysis of the request is also made up of PAN deputies, Javier Dagnino, Lina Acosta Cid and PRI, Brenda Jaime Montoya, Iris Sánchez Chiu and Omar Guillén. Likewise, he is part of the Commission of Justice and Human Rights, the deputy for the Citizen Movement Party, Carlos Alberto León García. In Sonora is not allowed marriage between people of the same sex, without embago, in the state have registered 32 equal marriages between May 2015 and November 2017, according to information from the director of the Civil Registry, Julissa Bojórquez Castillo. He explained that in the last year there have been 12 marriages between same-sex couples in the state, of which seven have been in Hermosillo, three in Nogales, one in Bahía de Kino and one in Guaymas. He explained that the Civil Registry of Sonora is impeded to perform equal marriages and therefore the service is denied to the applicants and from there they start an amparo trial. Once they are granted the protection of their rights by federal judicial authorities, the marriage is performed.

  • 15. ianbirmingham  |  December 26, 2017 at 6:42 pm

    Trans ban to Roy Moore: A review of the first year of the most “pro-gay” president

  • 16. VIRick  |  December 28, 2017 at 1:47 pm

    Oregon: Massive Fine in Anti-LGBT Baker Case Upheld

    Per Equality Case Files:

    The case is: "Melissa Elaine Klein vs. Oregon Bureau of Labor and Industries."

    The opinion is here:

    Appeals Court Upholds Fine against Bakers Refusing to Make Wedding Cake for Same-Sex Couple

    On Thursday, 28 December 2017, the Oregon Court of Appeals upheld a decision by Oregon's labor commissioner that forced two Gresham bakers to pay $135,000 to a lesbian couple for whom the bakers refused to make a wedding cake.

    Melissa and Aaron Klein made national headlines in 2013 when they refused to bake a cake for Rachel and Laurel Bowman-Cryer, citing their Christian beliefs. The Bowman-Cryers complained to the Oregon Bureau of Labor and Industries, saying they had been refused service because of their sexual orientation.

    An administrative law judge ruled that the Kleins' bakery, Sweetcakes by Melissa, violated a law that bans discrimination based on sexual orientation in places that serve the public. Brad Avakian, the state labor commissioner, then leveled heavy damages against the Kleins for the Bowman-Cryer's emotional and mental distress.

  • 17. VIRick  |  December 28, 2017 at 2:22 pm

    North Carolina: Federal Suit Filed against Transgender Workplace Discrimination

    On 27 December 2017, the Transgender Legal Defense and Education Fund filed a federal suit, "Bost v. Sam's East, Inc.," on behalf of Charlene Bost, who was fired from a Sam’s Club in Kannapolis NC in 2015. Sam’s Club is a subsidiary of Walmart.

    Bost, who started working at the store in 2011 as a Member Service Supervisor, said that after her transition her coworkers and bosses were calling her by the wrong name and pronoun. The lawsuit claims the treatment Bost received at her workplace violated Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and, finally, the North Carolina Equal Employment Practices Act.

    The Equal Employment Opportunity Commission found evidence to support the claims. When Bost won her case before the EEOC, Walmart spokesperson Randy Hargrove told LGBTQ Nation that while they disagreed with the EEOC’s findings, they were “open to discussions with Ms. Bost regarding a conciliatory resolution.”

    “Despite excelling at my job, Sam’s Club treated me with cruelty and disrespect, simply for being a woman,” Bost said in a statement. “I am bringing this lawsuit because transgender people must have the same opportunities to work hard, earn a living, and contribute to our communities, free from bias. No one should ever be confronted with the prejudice I experienced on the job.”

    Despite its protestations, Walmart has a troubling history concerning LGBTQ discrimination. In December 2016, Walmart settled a class action lawsuit brought by current and former gay and lesbian employees who were denied benefits for their legal spouses. In August 2017, another transgender woman, Jessica Shyne Robison, won her case before the EEOC against Walmart for discrimination at a Florida Sam’s Club that began after her transition.

    The filing is here:

  • 18. VIRick  |  December 28, 2017 at 2:39 pm

    Alabama: Doug Jones Certified as Winner in US Senate Race

    On 28 December 2017, officials of the state of Alabama certified Democrat Doug Jones the winner of the 12 December 2017 US Senate race after a judge rejected his opponent Roy Moore's last-minute attempt to block the certification. Alabama Secretary of State John Merrill said Jones will be sworn in as the state's next senator on 3 January 2018.

    Yesterday, Moore filed a lawsuit in the Circuit Court of Montgomery County AL calling for an investigation into what Moore claimed was possible voter fraud and asked for a delay in Jones' certification. But Montgomery Circuit Judge Johnny Hardwick denied that attempt today, and Jones was certified later in the day.

    Although not worth the bother to read, Moore's entire 80-page complaint can be found at the bottom of the BuzzFeed article.

  • 19. scream4ever  |  December 28, 2017 at 3:25 pm

    And his margin of victory went up slightly (although I'm disappointed he wasn't able to break 50%).

  • 20. bayareajohn  |  December 28, 2017 at 5:17 pm

    Roy believes that everything that happens, happens because God wants it to happen. Except for the things Roy doesn't want to happen. Because apparently, God wants Roy to go away. And Roy can't handle God disagreeing with Roy.

  • 21. VIRick  |  December 28, 2017 at 3:28 pm

    Minnesota: Gay Couple Loses Appeal Based on 1971 Marriage License

    St. Paul MN — A gay couple has lost another legal fight over getting the state to recognize their marriage in the early 1970s, KIMT 3 News, a regional station, reported on 26 December 2017. James Michael McConnell and Pay Lyn McConnell, also known as Richard John Baker, first applied for a marriage license in Hennepin County in May 1970. It was denied because they were both men, a decision supported at the time by the Minnesota Supreme Court.

    As their appeal was pending in 1971, however, James McConnell submitted a second marriage license request to Blue Earth County that listed Pat McConnell as a female living in the county. That marriage license was issued on 16 August 1971 but before the month was over, the Blue Earth County Attorney’s Office had determined the license was invalid under state law and it was not recorded in county records, KIMT reports.

    In September 2014, James McConnell mailed a letter to the Blue Earth County clerk and asked for a certified copy of the marriage certificate. The County Attorney’s Office informed McConnell that that would not be possible. A petition was then filed in November 2016 requesting that the district court order Blue Earth County to officially record the 1971 marriage license. The court refused and an appeal was filed.

    The Minnesota Court of Appeals has now upheld that refusal, pointing to the incorrect statements made on the marriage license application. The Court also found that the McConnell’s have not proven they have suffered a “particular harm” from not having their 1971 marriage recorded, KIMT reports.

  • 22. scream4ever  |  December 28, 2017 at 6:43 pm

    It's interesting how they flatly refuse to formally marry today.

  • 23. allan120102  |  December 28, 2017 at 9:01 pm

    I need to applaud that they have been together until today and that both are alive and happy and hopefully they can add more years to come.Like other bloggers I understand there fight but I believe they should accept that it will be extremely difficult if not impossible that Minnessota recognize that marriage. I agree that in paper it might say a thing but in there hearts they have been married since the 70s and that is what count at the end.

  • 24. scream4ever  |  December 28, 2017 at 9:56 pm

    Indeed. Being a lifelong Minnesotan, I've always wanted to meet them, but they largely stay out of the limelight, and rarely ever give interviews.

  • 25. guitaristbl  |  December 28, 2017 at 7:11 pm

    As a young person I can only imagine the pain and angst same sex couplea have gone through in decades as hostile as the 70s and I apprecciate the symbolism here and what this license means to that couple but this feel like an abuse of state judicial resources and time without real merit. Marriage equality has been the law in Minnessota since 2013 – they should just get legally married now.

  • 26. VIRick  |  December 28, 2017 at 9:36 pm

    Their original case, "Baker v. Nelson," appealed from the Minnesota Supreme Court, but subsequently denied certiorari by the US Supreme Court, held that the US Constitution does not protect “a fundamental right” for same-sex couples to get married. That ruling in "Baker v. Nelson" was, in effect, upheld by the US Supreme Court in 1972, with this order: “Appeal from Sup. Ct. Minn. dismissed for want of a substantial federal question.” (Baker v. Nelson, October 10, 1972, docket 71-1027).

    That decision, such as it was, saddled us with an unnecessary, long-standing burden, and remained in effect until it was overturned in 2015 by the "Obergefell" decision.

  • 27. scream4ever  |  December 28, 2017 at 9:54 pm

    It technically wasn't binding though, as denial of certs do not explicitly set precedents.

  • 28. ianbirmingham  |  December 29, 2017 at 11:05 am

    Actually, it was. This was so long ago that the rules were different: "Because the [Baker] case came to the U.S. Supreme Court through mandatory appellate review (not certiorari), the dismissal constituted a decision on the merits and established Baker v. Nelson as precedent". Congress did not repeal the law requiring mandatory appellate review by the US Supreme Court until 1988. Since 1988, the Court has been free to be as picky as it wants to be.

  • 29. VIRick  |  December 28, 2017 at 10:08 pm

    I realize that, but "Baker" was still cited ad nauseam as part of the argument to block marriage equality.

    It's all lovely that these two self-absorbed individuals are still together, but they need to quit with the lawsuits in their attempt to "prove" that theirs was very first legal same-sex marriage. That appears to be their intent, regardless of any and all unintended consequences in their vainglorious pursuit. They seem driven by the fact that several marriages between same-sex couples, registered in Boulder County Colorado in 1972, and never challenged by the state, have subsequently been deemed legal. The one, in particular, involved the marriage of a US citizen to an Australian citizen. Post-Obergefell, the Australian has now been granted US citizenship and the spousal survivor benefits which subsequently accrued from their marriage.

  • 30. scream4ever  |  December 28, 2017 at 11:16 pm

    There's was truly an amazing story, one that makes me proud of the progress we've made as a nation:

    When I was a kid, we did projects for history class on Pioneers in History. I truly hope some child will someday do one on this topic/couple.

  • 31. VIRick  |  December 28, 2017 at 11:39 pm

    The United States federal government has recognized as legally valid the April 1975 same-sex marriage of Richard Adams and Anthony Sullivan, approving the “green card” petition that Adams filed in 1975 for his husband, an Australian citizen. After Adams died in December 2012, Sullivan sought to have the Immigration Service recognize their marriage and grant a green card to him as the widower of a US citizen.

    The green card, granting Anthony permanent resident status in the United States, was issued on the 41st anniversary (in April 2016) of his Boulder, Colorado marriage to Richard — a same-sex marriage that remained in the record and which was never invalidated by Colorado officials.

    So, the Minnesota couple want to "prove" that their marriage goes further back in time than this Colorado marriage, recorded in 1975, and now officially recognized as a legal marriage by the US government.

  • 32. ianbirmingham  |  December 29, 2017 at 9:45 am

    Loving v. Virginia, 388 U.S. 1 (1967) got rejected by every court all the way up the line until it finally got to the Supreme Court, which promptly and unanimously invalidated all state laws prohibiting interracial marriage. On May 18, 1970, two University of Minnesota gay student activists, Richard Baker and James Michael McConnell, applied for a marriage license in Minneapolis. Baker v. Nelson, 291 Minn. 310 (1971) faced similarly invidious discrimination: The couple appealed the district court's decision to the Minnesota Supreme Court. The Court heard oral argument in the case on September 21, 1971. During the oral argument, while Baker and McConnell's lawyer was presenting his case, Justice Fallon Kelly turned his chair around, thus literally turning his back on the attorney. The justices did not ask a single question during the oral argument to Baker and McConnell's lawyer or to the assistant county attorney who represented the clerk.

    Without prior knowledge of the respective outcomes in Loving v. Virginia and Baker v. Nelson, what exactly would make you think that Loving would succeed or that Baker would fail? I would argue that Loving was a more aggressive case than Baker and that Baker and McConnell had every reason to believe that their chances in the Supreme Court (where they only needed to get 5-4, a very comfortable margin of error vs. the 9-0 prior ruling in Loving) were at least as good as Richard and Mildred Loving's.

  • 33. FredDorner  |  December 29, 2017 at 1:13 pm

    Obergefell both overrules Baker v Nelson but also determined that all such rulings and laws were unconstitutional……so the mistake Baker and McConnell are making is in trying to get the "fraudulent" marriage recognized rather than getting their initial application recognized (despite it not being solemnized). The courts have consistently been correcting these errors, at least when financial claims or other substantive harms are claimed.

  • 34. ianbirmingham  |  December 29, 2017 at 4:28 pm

    Irrelevant to my post, since I was writing in response to this statement by VIRick: "[Baker v. Nelson] saddled us with an unnecessary, long-standing burden, and remained in effect until it was overturned in 2015 by the "Obergefell" decision."

  • 35. VIRick  |  December 29, 2017 at 3:41 pm

    Fred, that is an excellent point.

    Baker and McConnell need to focus on having their original, non-fraudulent 1970 application for marriage validated, the one filed and rejected in Hennepin County, rather than continue pushing for the official recognition of their second (and fraudulent) 1971 application, filed and approved in Blue Earth County, but subsequently never recorded, once it became clear to officials there that they were being deceived.

  • 36. ianbirmingham  |  December 29, 2017 at 4:29 pm

    VIRick, I wrote in response to this statement by you: "[Baker v. Nelson] saddled us with an unnecessary, long-standing burden, and remained in effect until it was overturned in 2015 by the "Obergefell" decision."

    Baker & McConnell, two gay rights activists, took a marriage case to the Supreme Court. The thanks they get from you is that you criticize them for having "saddled us with an unnecessary, long-standing burden".

    I say again: Without prior knowledge of the respective outcomes in Loving v. Virginia and Baker v. Nelson, what exactly would make you think that Loving would succeed or that Baker would fail? I would argue that Loving was a more aggressive case than Baker and that Baker and McConnell had every reason to believe that their chances in the Supreme Court (where they only needed to get 5-4, a very comfortable margin of error vs. the 9-0 prior ruling in Loving) were at least as good as Richard and Mildred Loving's.

  • 37. VIRick  |  December 29, 2017 at 8:00 pm

    Ian, it's not that the plaintiffs in "Baker" went out of their way to intentionally saddle us with anything. If blame needs to be handed out, then we can more properly "blame" the Supreme Court justices of the time for refusing to hear the case.

    Nevertheless, WE were saddled with said "Baker" non-decision decision for 43 years thereafter.

  • 38. JayJonson  |  December 30, 2017 at 7:10 am

    Actually, we should be glad that the U.S. Supreme Court did not hear the Baker case. They would certainly have ruled against us at that time. The country simply was not ready for same-sex marriage at a time when homosexual sex was criminalized in most states. Had SCOTUS actually written an opinion in the case, they would have established a much more binding (and damaging) precedent than their curt dismissal of the issue.

    As we saw during the legal battle for same-sex marriage, although Baker was repeatedly cited by our opponents as a precedent for denying marriage equality, most judges who ruled on the cases did not so regard it. Indeed, it was barely mentioned (except to dismiss the notion that it was a binding precedent) in most of the decisions regarding same-sex marriage. Only the judges who had predetermined to rule against us cited it, and often only as a canard rather than a serious obstacle. Most judges–and all the judges who ruled in our favor– knew that the rulings in Lawrence and Romer had altered the legal landscape that existed when Baker was before the court, and thus Baker no longer existed as a binding precedent.

    I admire Baker and McConnell for fighting for their (our) rights so determinedly, but timing is an important factor in winning constitutional rights through litigation. The country simply was not ready in the 1970s. The gay rights movement did not make marriage a priority until after the AIDS epidemic made clear how important it was to have our relationships given legal recognition.Litigation does not occur in a vacuum. Marriage equality could be achieved only after we had won more basic rights and had convinced the country that the ideal of "equal rights before the law" demanded that we be allowed to marry our partners.

  • 39. ianbirmingham  |  December 30, 2017 at 10:04 am

    Jay, as I previously noted, Loving v. Virginia, 388 U.S. 1 (1967) got rejected by every court all the way up the line until it finally got to the Supreme Court, which promptly invalidated all state laws prohibiting interracial marriage. Did African-American groups "make marriage a priority" prior to that 9-0 unanimous ruling?

  • 40. JayJonson  |  December 30, 2017 at 10:19 am

    Interracial marriage may not have been made a priority by African-American groups, but being black (or even engaging in interracial relationships) was not illegal in 49 states in 1967, when Loving was decided. By that date, only 16 states retained anti-miscegenation laws and the Supreme Court had reached a consensus that racial discrimination violated the equal protection clause of the Constitution. That consensus was reflected in a series of SCOTUS cases from 1954 onward, but was reflected increasingly forcefully in cases in the early 1960s.

    (There is no surprise that Virginia courts ruled against the Lovings nor that SCOTUS ruled in favor. The Lovings appealed from the Supreme Court of Virginia, hence no federal court except SCOTUS decided the case. Although they had filed an appeal in D.C. federal court, that panel issued no opinion, waiting for the Supreme Court of Virginia to issue its opinion. When they did, the Lovings appealed directly to SCOTUS. So it is a little misleading to imply that a whole bunch of courts had rejected the Lovings. In fact, only two state courts ruled against them.)

    It was certainly NOT the case in 1972, when Baker was decided, that discrimination against gay people in any way violated the equal protection clause.

  • 41. ianbirmingham  |  December 30, 2017 at 10:56 am

    Yet a 9-0 unanimous ruling on marriage discrimination on the basis of a spouse's identity had just been decided 3 years prior to Baker & McConnell filing for their marriage license. That is an exceedingly powerful and immediate precedent which formed a very solid foundation for the application of both due process theory and equal protection theory to these gay victims of invidious discrimination. Their case not only argued both of those theories, but also (citing the recent Griswold precedent) the Ninth Amendment (unenumerated right to privacy).

    It will certainly be interesting to read the private papers of all the Supreme Court Justices involved in the Baker decision as soon as they become available. McConnell is a librarian and his 80 boxes of meticulous notes and records have already been donated to the University of Minnesota's Jean-Nickolaus Tretter Collection in GLBT Studies:

    The minister who married them considers their marriage to be among his most successful:

  • 42. scream4ever  |  December 30, 2017 at 11:21 am

    Any idea when they will become available?

  • 43. ianbirmingham  |  December 30, 2017 at 2:54 pm

    That SCOTUS consisted of Warren E. Burger, William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis F. Powell Jr. and William Rehnquist. With that in mind, read this:

  • 44. JayJonson  |  December 30, 2017 at 11:30 am

    If you are simply making the point that SCOTUS SHOULD have ruled in favor of Baker, then I agree with you, and had I been a member of SCOTUS I certainly would have found in Baker's favor.

    But it was not likely that SCOTUS would transfer the notion that due process and equal protection applied to consideration of racial discrimination would also apply to sexual orientation discrimination. The very notion of sexual orientation had barely been considered by the courts in 1972.

    The biggest obstacle to equal protection analysis was the fact that so many states criminalized homosexual sex. That would not be removed from consideration until 2003 with Lawrence, which was a necessary prerequisite for Windsor and Obergefell.

    I wish that "equal protection for all" was really seen as applicable to all in 1972, but the fact is that it wasn't, so it is hardly surprising that the courts reflected that reality. As we know, most people did not agree that gay people should be afforded equal protection under the law until quite recently.

  • 45. allan120102  |  December 30, 2017 at 12:34 pm

    And still many judges see discrimination of sexual orientation as not being protected in the constitution. Being in the 70s were discrimination was higher I doubt we could find sympathic judges, nor we had the public in favor of lgbt rights at that time. Racial discrimination was the highlight in that period and still many judges agree with that discrimination cannot imagine how many would have agree with the continue discrimination of sexual orientation, even the supreme court when it decide bowers allow those discriminations to continue.

  • 46. ianbirmingham  |  December 30, 2017 at 2:45 pm

    Lawrence was a due process case. Since Baker & McConnell argued the triple play (equal protection, due process, and right of privacy), SCOTUS could very easily have simply put forth unanimous dicta noting that the Lawrence laws were constitutionally infirm while en route to their pro-marriage ruling. Alternatively, they could have simply used Griswold to strengthen the wall of marital privacy, thus rendering such laws locally unconstitutional and irrelevant.

    Think for a moment what the potential gain was here: Fifty more years of equal protection! Let's be honest: that would have dramatically changed all of our lives. That jackpot was well worth fighting for,

  • 47. JayJonson  |  December 30, 2017 at 2:59 pm

    Of course, if SCOTUS ruled the right way in Plessy v. Ferguson, we would have had the end of Jim Crow much earlier than we did. This is becoming silly. The odds of SCOTUS ruling in favor of Baker were very, very low. We are lucky that they just dismissed the case out of hand because had they actually ruled on it, it would have proved a greater obstacle than it did.

    SCOTUS had no interest in protect gay people in the 1970s. Over the years, with a gradual change in public attitudes and a more sophisticated understanding of equal protection and due process, gay rights came to be treated more seriously. But if we could only get a 6-3 majority in Lawrence and a 5-4 majority in Windsor and Obergefell, anyone could have predicted that SCOTUS in 1972 was not going to rule in favor of Baker.

  • 48. ianbirmingham  |  December 30, 2017 at 3:04 pm

    Not without prior ("crystal ball") knowledge of Bowers, Lawrence, Windsor, and Obergefell

    It's very easy to criticize after the fact. Making decisions in the heat of battle is way more difficult than it looks. Losing the battle doesn't necessarily imply that any incorrect decisions were made, given the limited and imperfect information available in that moment.

    Do you also disrespect Baehr v. Miike?

  • 49. JayJonson  |  December 30, 2017 at 4:10 pm

    You are fighting a straw man. I have no disrespect for Baker and certainly not for Baehr, which actually resulted in an important court victory, though it was circumvented by our opponents quickly negating the ruling with a state constitutional amendment. Actually, Baehr teaches an important lesson. When our court victories are negated by voters, as in Hawaii and Alaska, that means that the people were not ready for the ruling. In the highly unlikely event that SCOTUS would have ruled in favor of same-sex marriage in 1972, conservatives would have succeeded in ratifying a federal constitutional amendment prohibiting same-sex marriage, and even liberal states like California and New York would have passed it overwhelmingly.

    As I mentioned before, I admire how determinedly Baker and McConnell fought for our rights. But that does not mean that their legal strategy was sound. We are, as I said before, lucky that their efforts were not taken seriously because the case could have led to a very rigid and binding opinion (or even worse, if the Court had ruled for them, a constitutional amendment that we could not reverse even today).

    In 1996, 24 years after Baker, SCOTUS was not willing even to overturn sodomy laws for God sake. After the horrendous Hardwick ruling, it took 17 more years to get it reversed. (And note that though Lawrence was 6-3 to strike down the Texas law, it was only 5-4 to reverse Hardwick, since O'Connor was not willing to find a constitutional right to homosexual relations.)

    You seem to think that if people make persuasive arguments, then inevitably the Court will do the right thing. That is a very naive view. The arguments made in Baker were reasonable, but the members of the Court were unwilling to go where they should have. The Court has always been as much of a political institution as it has been a disinterested interpreter of the Constitution. We will be lucky if Trump doesn't place more Federalist Society members on Scotus. If he does, you can count on Obergefell and Windsor being reversed.

  • 50. scream4ever  |  December 30, 2017 at 4:29 pm

    It's even more infuriating that the swing judge in Hardwick was going to rule in our favor originally, but changed his vote (he later expressed regret for the decision after resigning from the court).

  • 51. ianbirmingham  |  December 30, 2017 at 4:52 pm

    Had SCOTUS ruled for Baker, the floodgates would have opened. 4.1% LGBT times 209.9 million (1972 population) => 8.6 million LGBT Americans in 1972. With that kind of national damburst, we could have easily seen 1 million marriages. If conservatives then tried to create a Constitutional amendment, that would only accelerate the pace of marriages. Those marriages would have created "facts on the ground" which would have made it effectively impossible to "put the genie back into the bottle".

    Similarly, Windsor and Obergefell will remain safely within the realm of binding precedent.

    There is always uncertainty about how any court will rule. That uncertainty cannot, and should not, be allowed to paralyze the fight for freedom.

  • 52. JayJonson  |  December 31, 2017 at 5:39 am

    It is pure fantasy that a ruling for Baker in 1972 would have opened the "floodgates." In 1972, except for some pockets of activists in San Francisco, Los Angeles, New York, and a few other cities, gay people lived in terror of being exposed. The gay rights movement was still in its infancy. There would have been a dramatic backlash from the religious communities, who then were also beginning to be active, and just about everyone else.

  • 53. FredDorner  |  January 2, 2018 at 10:20 am

    And as Ginsburg noted during oral arguments in Obergefell, when the Baker case was dismissed the court had barely even begun to recognize gender-based discrimination. She built her career fighting that crap.

  • 54. VIRick  |  December 30, 2017 at 6:26 pm

    "…. timing is an important factor in winning constitutional rights through litigation."

    Jay: This. Timing is an exceedingly important factor, but is also a concept which is wide-open to subjective interpretation. When is the right time actually the right time? Obviously, Ian thinks that 1972 was the right time. You and I appear to disagree. Personally, I don't actually have a direct opinion on the matter because I was not living in the USA during that entire 1970s time-frame. Instead, I am relying more on your very persuasive argument that 1972 was way too premature.

    Worldwide, the very first nation to have marriage equality was the Netherlands (2001), followed by Belgium (2003) and Canada (2003-05). In the USA, the first state to obtain marriage equality was Massachusetts (2004), while Vermont had civil unions for same-sex couples (2000).

    Suffice it to say that all of these dates are about 30 years later than 1972. So, if timing were to be a factor (and it definitely is), I would argue that 2000-05 was the first major awakening (as well as the first knee-jerk reaction in the form of many red states passing their narrow marriage definition state constitutional amendments). Anything earlier in time would not have succeeded, and likely would have provoked an even nastier red state backlash.

  • 55. ianbirmingham  |  December 30, 2017 at 9:19 pm

    Had SCOTUS made the US the first nation to have marriage equality in 1972, the Netherlands et al would have followed shortly thereafter. Instead, Netherlands took the honor of being the first domino which then caused all the others to topple…

  • 56. VIRick  |  December 30, 2017 at 10:01 pm

    Ian, I don't know what else to say. During the entire decade of the 1970s and beyond, I did not live in the USA. I was in my twinkish prime, first chasing after boyfriends from one end of Mexico to the other, then across the Caribbean and on into South America, from Colombia to Brasil to Chile, and then back to the Caribbean. Obviously, during that interval, I was not good marriage material, nor did I focus any attention on that subject. Still, I can tell you that marriage equality was not a subject that was even remotely on the horizon in any of those countries where I did find myself, even in France and Finland, even into the 1980s and 1990s. Yet, times do change (Jay's point about timing), and a number of them, namely, France, Brasil, Uruguay, Argentina, and Mexico all beat the USA on nationwide marriage equality, while Colombia, quite amazingly, was right behind them.

    Otherwise, I find it difficult to argue the "what ifs." There are all sorts of "what ifs" that can be postulated. What if Brasil never had a retrograde right-wing dictatorship? Or Argentina? Would marriage equality have arrived there even sooner? Most likely, but one will never know for certain. Or my favorite: What if Mexico actually lived up to the ideals as stipulated and enumerated in its Constitution?

  • 57. allan120102  |  December 30, 2017 at 10:52 pm

    I see some African countries like the US was in the 1970s were the priority was to strike down every anti sodomy law in the states, and it took three decades from Illinois to 2003. Most African countries at this time dont care about marriage equality there priority is to stay alive and dont be harrass by there neighbors. They are some highlights in the southern part of Africa with Namibia, Botswana and Angola who is to repeal its anti sodomy law. South Africa which had marriage equality still has a lot of discrimination to lgbt people specially lesbian who are subject to rape. Still they are moving forward with the exception being Swaziland.

    Time is the key and like most African Countries that dont see marriage equality a priority right now I imagine that was the case in the USA at that time, nor it was the 80s when hiv hit our communities and a lot of people try to blame it on us. I see the first movements for marriage when the Hawaii court side with us and when vermont was forced to legalized some type of unions.

  • 58. ianbirmingham  |  December 30, 2017 at 11:15 pm

    What does becoming the first nation to do X accomplish? It puts subject X on every other country's horizon. That goes double when the first nation is, like the US, often regarded as a global leader.

  • 59. JayJonson  |  December 31, 2017 at 5:57 am

    My last comment on this thread. Ian's "what if" fantasy has the effect of minimizing the epic struggle we have engaged in to gain equal rights in this country. It has taken a long time; we have lost many battles; and we by dint of our persistence have gained many successes. But it was not easy and the kind of "quick fix" Ian fantasizes is not only unrealistic but it would not have succeeded.

    In the 1970s, we were fighting to be left alone. We were trying to keep the police out of the bars and the cruising areas. We were trying mostly to remain anonymous. We wanted the state out of our bedrooms. We scored a few successes during the decade, including a couple of sodomy laws declared unconstitutional, a few anti-discrimination ordinances, but nothing beyond that. The notion that even California would adopt a statewide anti-discrimination law would have seemed highly unlikely (and indeed did not happen), much less adopt a domestic partner or civil union law.

    We managed to beat back some of the most egregious attacks on us, including a couple led by Anita Bryant, in the 1970s. Harvey Milk and David Mixner helped defeat a particularly nasty California referendum that would have banned gays from teaching in public schools, but our success depended a lot on Ronald Reagan believing that it went too far. (And he was no fan of gay people.)

    It was only in the 80s that recognition of our relationships became a major issue, and only then because AIDS was exposing our vulnerability.

    Ian seems to think that the country would have embraced same-sex marriage in the 1970s if only SCOTUS had ruled the right way on Baker. That is patent nonsense. Our impotence and unpopularity is clear from the DADT fiasco in the 1990s, when a president who was elected in part because of our votes and money, was prevented from integrating the military. His attempt resulted in the DADT "compromise," which turned out to be a disaster. Very few senators and representatives even from blue states voted against DADT and, as we know, we could repeal it only in a lame-duck session in 2010, even with a supportive president and an overwhelming Democratic majority in Congress. (One that would soon be replaced by a Republican majority in the House that would not have voted for repeal.)

    The vote in favor of the Defense of Marriage was also overwhelming. The Republican strategy of using same-sex marriage as a wedge issue in 2000, 2004, and 2008 was very successful for them. (Even in the Obama landslide in California in 2008, Proposition 8 was passed.)

    We did not win at the ballot box until 2012. A majority of Americans did not support same-sex marriage until (depending on polls) 2010 or 2011.

    We have been engaged in an epic struggle to convince Americans that gay people deserve equal rights. That struggle should not be minimized by suggesting that if only SCOTUS had made a ruling in 1972 then it would not have been necessary.

  • 60. ianbirmingham  |  December 31, 2017 at 6:22 am

    As a practical matter, the country would have been reluctantly forced to accept it. Having legal marriage in place would compel further equal protection rulings against all forms of discrimination. And as I outlined above, the country would have faced "facts on the ground" in the form of 1 million marriages which could not be reversed. Surely it would have been politically turbulent. But at the same time, the legal progress would have been very rapid as well as de facto irreversible. Equality would have become the new reality, whether anyone liked it or not.

    The right-wingers have never emotionally accepted the SCOTUS ruling that a woman has a right to terminate her pregnancy. Yet despite all the political angst and all the threats of constitutional amendment, that right remains in place today.

  • 61. scream4ever  |  December 31, 2017 at 8:51 am

    Well by issuing the sweeping ruling today, it settled the issue, since it's now widely accepted, and assured that it won't be like Roe v Wade. While there are still pockets of opposition, even governments in conservative areas of the country don't want to challenge it (Arkansas Senate voting down resolution condemning it, as did a County Commission in rural Tennessee just a week or two ago).

  • 62. JayJonson  |  December 31, 2017 at 10:57 am

    The country would not have accepted same-sex marriage in 1972. Had the Supreme Court so ruled, a constitutional amendment would have sped through Congress and the states banning same-sex marriage. The amendment would have passed Congress overwhelmingly and have quickly been ratified by every state in the union. At that time, no more than 10% of the country would have opposed such an amendment.

    You greatly underestimate the opposition to gay rights in general in 1972 if you believe that opponents would have allowed equality to become "the new reality, whether everyone liked it or not."

    The analogy with abortion is not apposite. The country has been split on the issue of abortion for many years, with a bare majority in support of the right to abortion, but with a majority in favor of some limitations to that right. So there was never a chance of passing an amendment banning abortion, but the issue has never been settled because right-wing states continue to push for limitations of various sorts.

    What is surprising is how the country has evolved since 2003 on the question of gay rights and on same-sex marriage. But it has been less than a decade that a majority of Americans have been in favor of same-sex marriage, and some states even now have not evolved.

    As it turned out, Windsor and Obergefell came at just the right time–when the country had reached a bare consensus in favor of same-sex marriage.

    Change in this country, on such emotionally-charged issues, cannot be imposed from the top down. The judicial success we have achieved is the result not just of good lawyering but of creating a mass movement for equal rights that ultimately persuaded a majority of our fellow citizens that discrimination is wrong.

  • 63. allan120102  |  December 31, 2017 at 12:20 pm

    I agree with you jay. Thanks in part to the supreme court issuing a ruling to legalize abortion when it was legalize in 4 states I believe didnt let the topic to be discuss, didnt let the public to discuss it with there family and friends as same sex marriage and lgbt rights have been done, and abortion is different than same sex marriage when it comes to public opinion as the majority of my friends support ssm but oppose abortion because they said ssm tends to be about happiness and love and abortion with murder.

    so in other words ssm is more likely than abortion to be accepted. We saw in the states were almost 65% of the public support ssm against abortion which has been legal since 1973 and only a slim majority support it today.

    I am almost sure that even a big chunk of the lgbt community might have been reluctant to get married in the 70s if ssm was made legal because they would have been scare of the reactions of there family and friends and not being accepted. A lot of people will have discriminate against them in that time and I could see people pushing for a federal amendment. Look what happen with Maryland that put a ban again ssm in 1973 and I believe it was in response to what happen in Minnesota.
    Look also what happen when a judge in HI almost made the state to legalize ssm, it made the government to pass Doma and other states did the same. It was not the right time to have ssm. Even HI which is consider the most liberal state in the nation 71% of the people vote to amend its statue to limit the recognition only for heterosexual marriage.

    for example I really want ssm in my country but I know they are priorities right now ssm could be legal in the next 10 years or a little more but for now it needs to be discuss, Even presidential candidates at least say they do not support it, before it was not even mention.

  • 64. FredDorner  |  January 2, 2018 at 10:32 am

    Note that when SCOTUS decided the Loving case only 20% of Americans supported mixed-race marriage, with opposition in the 16 affected southern states in the 90-95% range. So that's the biggest difference between the two cases, the fact that SCOTUS didn't lead the country when it ruled in 2015 like it did in 1967. That's an indication of just how far to the right the court has shifted in the past few decades.

  • 65. scream4ever  |  January 2, 2018 at 11:13 am

    The Warren court was incredibly bold and progressive.

  • 66. ianbirmingham  |  January 3, 2018 at 2:01 pm

    Yet the Burger court failed to continue that bold and progressive vision. The Burger court could have led the country by making the US the first nation to have gay marriage equality in 1972, just as the Warren court led the country by legalizing interracial marriage despite it having only 20% popular support.

    Unfortunately, JayJohnson has swallowed the right-wing Kool-aid and then proclaimed it to be very tasty. He wholeheartedly accepts their deeply retrogressive propaganda concerning the judiciary, believing as they do that the judiciary should be a force for conservatism by only following the country, rather than being a force for progressivism by very boldly leading the country forward.

    I emphatically reject JayJohnson's utterly reactionary view of the judiciary. By boldly leading the country forward with its Loving decision, the Warren court vividly illustrated what a smart, progressive judiciary could accomplish. Sadly, that truly important lesson has now largely fallen upon deaf ears.

  • 67. JayJonson  |  January 4, 2018 at 2:39 pm

    This is a stupid and meansprited comment. The bankruptcy of your absurd idea is revealed by your resort to a personal attack. I have drunk no right-wing Kool-Aid. There is nothing reactionary about my view of the judiciary. My view is, however, based on historical analysis, not on fantasy.

    A SCOTUS that was unwilling to repeal sodomy laws until 2003, that alllowed DADT to stand until 2010, that obviated DOMA only in 2013 (on a 5-4 vote), and that ruled in favor of same-sex marriage only in 2015 (again on a 5-4 vote) would not have ruled in favor of same-sex marriage in 1972.

    For all your lauding of the Warren court as bold and progressive, it notably did not advance gay rights except inadvertently in 1958, when it ruled in favor of ONE, INC. when the U.S. Post Office refused to distribute the magazine because even the discussion of homosexuality was deemed pornographic (a case that had more to do with censorship than with gay rights.) The ONE case was important because without it, we would not have been able to build the mass movement that was necessary for us to win equal rights, a process that required great sacrifice and hard work.

    The more conservative Burger court was unlikely to go where the Warren court refused to go and embrace same-sex marriage. Any appellate attorney of stature would have advised against appealing Baker to SCOTUS. Not only was there no likelihood of SCOTUS issuing a favorable ruling, there was a very good chance that they would issue a very detrimental ruling. Luckily, they thought the very idea of same-sex marriage was so outlandish at the time that they merely rejected it out of hand, deeming it unworthy even of comment..

    You are free to fantasize about what might have happened if SCOTUS in 1972 did what we would have liked it to do. But it is only fantasy, and it has the effect of ignoring reality, including the reality of our heroic struggle for equal rights, which was hard-won and did not depend on fantasy figures, but on educating and persuading our fellow citizens.

    (Moreover, the idea that SCOTUS follows public opinion to a certain extent is held by such "right wing" jurists as Ruth Bader Ginsberg.)

  • 68. VIRick  |  December 28, 2017 at 10:54 pm

    Virgin Islands Post-Hurricane Recovery Up-Date

    As of late this afternoon, 28 December 2017, I have successfully set up my own individual Wi-Fi internet hot-spot, courtesy of the local phone company. It only works as long as the electrical supply remains operative. Since returning to the island 3 days ago, we have had 4 extended electrical black-outs. Presumably, we will have many more, as the system has yet to be fully stabilized, and approximately 1/3 of all customers are still doing without. Every time another neighborhood is set to be re-energized, the main line needs to be temporarily shut down to allow for the re-connection. Plus, I would be remiss if I failed to note that all of the off-island linemen's bucket trucks sighted thus far bear New York state license plates.

    Post-generator, we have successfully repaired the washing machine for a second time, and got it up and running. But no such luck with the old refrigerator, as it utterly refused to refrigerate. Instead, yesterday, we bought whatever Home Depot had. There were two to choose between: Item A still in its box, or item A as the floor sample. We successfully dragged boxed item A home, using the SUV to do so, smashed windshield and all. Today, we placed an order for a windshield replacement, but will have to wait weeks for its arrival from Florida, as the shipping backlog is still overwhelming.

    Two of the four access roads leading to my house are now officially blocked to traffic, having been rendered completely undriveable in the aftermath of the hurricanes, while a third is reduced to one lane. It remains open to traffic, despite one side of it having disappeared down the mountainside. Today, I had the thrill of passing a garbage truck there. I hugged the mountainside, while he looked into the abyss. I've been told the two that are blocked are much worse.

  • 69. JayJonson  |  December 29, 2017 at 5:32 am

    Your perseverance is admirable, Rick. Thank you for carrying on under these circumstances. I hope the electrical grid is repaired soon, the roads are made more passable, and the shipping backlog is reduced.

  • 70. VIRick  |  December 29, 2017 at 2:51 pm

    Here's another thrill I forgot to mention when it comes to driving. There are no functioning traffic lights. At all. And there does not appear to be any attempt to do anything about it. So, driving in the congested, built-up area in the center of the old city is an extreme challenge, as one can not generally see the on-coming cross-traffic until the last split second. Fortunately, given the regular power black-outs we have here, most people know how to drive under such conditions, slow and steady, each taking their turn, with an extra dose of courtesy thrown in.

    Still, despite the fact that we're barely limping along, there were 3 cruise ships in port yesterday. In some ways, it's annoying having them here, inspecting the hurricane damage and gasping at the ruins and the debris. However, the safari van drivers must have been advised to alter the standard "island tour" route, which normally passes directly below my house, given that they would otherwise have to navigate that one-lane stretch along the abyss where I had my own episode with the garbage truck.

  • 71. ianbirmingham  |  December 29, 2017 at 5:37 pm

    Next battleground for Trump transgender ban: Recruiting stations

    Maj. Dave Eastburn, a Pentagon spokesman, said that Defense Department “will process transgender applicants for military service on Jan. 1, 2018, as mandated by recent court decision.” In preparation, the Pentagon recently issued new guidance that potential recruits must be “stable” in their gender before they will be considered eligible.

  • 72. VIRick  |  December 29, 2017 at 7:16 pm

    Assh-Ole-in-Charge Has Stopped Fighting 1 January Deadline for Accepting Trans Military Recruits

    Friday night, 29 December 2017, the Justice Department announced that it will not be asking the Supreme Court to stop the 1 January deadline for allowing transgender military recruits. The department also dropped several appeals over Trump's transgender military service policy, choosing instead to keep the challenges in district courts for now.

    The administration had been unsuccessfully fighting to allow for the indefinite delay of that date, as sought by Trump, or at least for Defense Secretary James Mattis to be able to delay the date, if he wished to do so on his own authority. Over the past week, however, it appeared the administration had given up the fight to stop the 1 January deadline from going into effect, as the relevant administration officials had gone quiet on the matter.

    On Friday night, the Justice Department confirmed that they would be allowing the 1 January date to going into effect unimpeded. "The Department of Defense has announced that it will be releasing an independent study of these issues in the coming weeks. So rather than litigate this interim appeal before that occurs, the administration has decided to wait for DOD's study and will continue to defend the President's and Secretary of Defense’s lawful authority in district court in the meantime," a Justice Department official told BuzzFeed News in a statement.

    The decision by the Justice Department followed repeated losses in court on the issue. On 21 December, the 4th Circuit Court of Appeals denied the Justice Department's request to put a lower court's order regarding the date — the accession deadline — on hold, allowing for further delay. The next day, in a more detailed order, the DC Circuit Court of Appeals reached the same conclusion. There are also two other injunctions out of district courts within the 9th Circuit Court of Appeals.

    At the same time, the Justice Department also decided to stop fighting its appeals of three of the preliminary injunctions against Trump's policy — which addressed accession, as well as the retention of currently-serving transgender service members, plus transgender service members' medical care — choosing instead to address the case at the district court, where the challengers ultimately want a permanent injunction against Trump's policy.

    That decision means the preliminary injunctions against Trump's transgender service policy will remain in effect until the litigation on the permanent injunctions — which will be a much slower timeline — is completed and, if it proceeds, goes on to its own appeals.

  • 73. VIRick  |  December 29, 2017 at 9:02 pm

    Illinois: Ban on "Gay Panic" Defense to Go into Effect

    From 1 January 2018, Illinois will bar the criminal defense allowing the use of a victim’s sexual orientation as justification for violent crime, a ban that gay rights advocates say they will attempt to replicate in about half a dozen other states next year. Defense attorneys will no longer be able to mount the so-called “gay panic" defense in Illinois, the second state after California to prohibit the tactic. It isn’t common, but one study shows it has surfaced in about half of all US states and has been used with some success.

    Advocates say bans on the "gay panic" defense are necessary because crimes against gay and transgender people are on the rise. GOP Illinois Gov. Bruce Rauner already signed the ban in August after it passed in the state legislature without opposition.

  • 74. bayareajohn  |  December 30, 2017 at 11:09 am

    What the country needs next is a ban on "Black Panic" as a defense for police officers who kill on sight.

  • 75. VIRick  |  December 30, 2017 at 3:10 pm

    Year-End Marriage Equality Summary for 2017 and a Look Ahead to 2018

    In the year 2017, marriage equality was legalized in the following independent nations: Finland, Malta, Germany, and Australia. In addition, marriage equality became reality in the Danish jurisdiction of the Faroe Islands, in the British territories of Guernsey, Alderney, Falkland Islands, Bermuda, Tristan da Cunha, and St. Helena, and in the Australian territories of Christmas Island, Cocos Islands, and Norfolk Island. In Mexico, same-sex marriage became possible without amparo in Baja California, Chiapas, and Puebla, while same-sex (and hetero) civil unions were legalized in Tlaxcala.

    Plus, the Constitutional Courts in both Taiwan and Austria issued definitive rulings which will usher in marriage equality in both jurisdictions on or before the year 2019.

    In unfinished business, despite the Bermuda Legislature's passage of retrograde "civil unions" legislation to replace marriage equality, Bermuda's governor has yet to sign that legislation into law. And it now appears unlikely that he will do so.

    On the island of Jersey, we are still awaiting that jurisdiction's long-promised legislation. In Panamá, we are still awaiting the marriage equality decision from that nation's Supreme Court. In Chile, we are still awaiting the legislative passage of the internationally agreed-upon measure which will usher in marriage equality in that nation. We are also awaiting Constitutional Court rulings in Ecuador, in Venezuela, and in El Salvador. We also expect another major case to move forward in Costa Rica. In Switzerland, we are awaiting the up-coming referendum, a vote which should prove to be favorable. In Nepal, we are still awaiting the long-promised legalization, as required by their court. In Namibia in southern Africa, we may well be in for a surprise ruling in favor of marriage equality from that nation's court. And from the Caribbean, there's an up-coming case due to be heard in late January in Trinidad, and the likely possibility of another immigration recognition case from the Cayman Islands, this time involving a Cayman citizen and their foreign partner, already married in Canada.

    The European Court of Human Rights has just ruled against Italy. In the coming year, we should likely expect a similar ruling against Romania.

    Plus, there are unknowns. What will happen in Japan? In the Philippines? In Thailand? In India? Maybe even Northern Ireland will surprise everyone. Or perhaps the European Court of Human Rights will issue a blanket ruling covering the entire EU.

  • 76. scream4ever  |  December 30, 2017 at 4:35 pm

    I could see the Indian Supreme Court legalizing same-sex marriage in about ten years or so since they're poised to once and for all strike down Section 377 next year.

    I think Northern Ireland will have it very soon, as it likely will be forced as part of the negotiations to form the new government.

  • 77. allan120102  |  December 30, 2017 at 6:08 pm

    I think Thailand or Vietnam could be the next ones after Taiwan in Asia as they are buddhist countries and buddhism tends to be neutral with ss couples and not against like Islam or Christianity.

    Northern Ireland will be difficult because if I am correct the DUP have a pact with the conservatives and I doubt Theresa May will want to upset them if she want to have the majority she wants. I have also have read that she is not ecstatic of having control over NI.

  • 78. scream4ever  |  December 30, 2017 at 6:17 pm

    I think Nepal will follow Taiwan soon after.

  • 79. allan120102  |  December 30, 2017 at 6:10 pm

    I might be incorrect Rick but I believe the case in Namibia is more of a recognition case than a marriage equality case. I mean I usally use marriage equality when a country legalized ssm and they should perform the marriages not just recognize them.

  • 80. VIRick  |  December 30, 2017 at 7:23 pm

    Allan, you are correct. Specifically, Namibia is a marriage recognition/adoption rights recognition case. But the court there may surprise us, and rule all the way for marriage equality. Still, I may have gotten a bit carried away with my speculation.

    But then, the next up-coming case in the Cayman Islands is also a marriage recognition case. And the one in Trinidad intends to knock down the sodomy ban, and from there, go as far as it can. Plus, there's also a similar pending case against the sodomy ban in Jamaica. In the Caribbean, we have to take it step-by-step, in whatever manner is possible.

    I also forgot to mention the several pending cases in Peru seeking both marriage recognition, as well as marriage equality. In particular, the one marriage recognition case, on appeal, could be ruled upon at any time.

    And there's a pending marriage recognition case, on appeal, in Hong Kong, too.

  • 81. allan120102  |  December 31, 2017 at 11:23 pm

    Baja California
    Whether they like it or not state officials need to marry ss couples,as they will be in contempt if they dont do it.
    n Baja California, it is illegal to deny marriage to same-sex couples, said Melba Adriana Olvera Rodríguez, president of the State Commission for Human Rights (CEDH).

    "It is not a matter of personal opinions, of choice, it is not an issue that implies greater discernment, it is a matter of legality, it is illegal to deny a marriage to a couple for reasons of discrimination, that simple," he said.

    Recently the CEDH received a complaint from a couple who requested marriage in Tijuana, but they were denied, so they opened an investigation folder.

    Situation that surprised the commission, because previously married couples have contracted homosexuals.

    He pointed out that there are still some public officials who, instead of respecting the principle of progressivity of human rights, seek to do the opposite by personal beliefs.

    In the municipality, marriages of same-sex couples have been carried out with the intervention of the commission without the need for a recommendation.

    "In the case of marriages we have not had the need to pronounce ourselves with a recommendation because we have been able to get the authorities to comply with their human rights obligations, we are receiving complaints and if it is not achieved, we would be verifying violations to human rights, "he said.

  • 82. VIRick  |  January 1, 2018 at 10:47 am

    Switzerland: New Adoption Law Now in Effect

    From 1 January 2018, same-sex couples and de facto spouses may adopt stepchildren in Switzerland. In addition, the secrecy surrounding adoption will be loosened so adopted children and their biological parents will able to get in contact more easily.

    Until now, only married people have been able to adopt their spouses’ children. In Switzerland, same-sex couples have been able to enter into civil partnerships since 2007, but same-sex marriage is not recognized. From 2018 however, adoption will be possible for anyone in a civil partnership or in a long-term relationship.

    That said, a couple in a civil partnership will still be unable to adopt a child who is biologically unrelated to both parents. This means that a gay person can adopt if single, but not when in a civil partnership. The adoption option was deliberately left out of the nationwide vote on approving civil partnerships for same-sex couples in 2005 in order to increase the chances of its passage.

  • 83. VIRick  |  January 1, 2018 at 11:00 am

    Northern Ireland: Sinn Fein Says Gay People Treated as Second-Class Citizens

    The leader of Sinn Fein in Northern Ireland, Michelle O'Neill, has warned that people will no longer tolerate same-sex couples being treated as “second-class citizens." Northern Ireland is the only part of the UK that still bans same-sex couples from marrying, as the ultra-conservative Democratic Unionist Party has employed peace process powers to block marriage equality bills in the region. 

    Further complicating the issue, the region has been without a government since January 2017 due to the failure of power-sharing talks between Sinn Fein and the DUP, who legally must form an executive as the two largest parties. Sinn Fein has demanded assurances on equal marriage as part of a settlement before power-sharing can resume, but DUP officials insist they will never cave in to the demand.

  • 84. scream4ever  |  January 1, 2018 at 11:15 am

    So they say for now…

  • 85. allan120102  |  January 1, 2018 at 11:33 am

    I could only see NI getting ssm if its put on a vote like it was done in Ireland. The DUP will not let the issue be decide in its parliament and I doubt Theresa May may force them as she need there votes for parliament. Only Labor might push it but I dont see them succeed.

  • 86. scream4ever  |  January 1, 2018 at 4:18 pm

    If it's what it will take, so be it. Ireland seemed to have a fairly civil debate on the matter.

  • 87. allan120102  |  January 1, 2018 at 4:25 pm

    I agree, I am frustrate than NI still have no marriage equality, hopefully they can get it in the next three years, I cannot understand how the dup can sleep knowing that hundreds or thousands of couples are negate there rights by there political stunt.

  • 88. VIRick  |  January 1, 2018 at 2:05 pm

    Ecuador: Principal LGBT Agenda for 2018

    Per Mar Almeida y Matrimonio EC:

    Que el matrimonio igualitario sea uno de los objetivos, pero que el cierre de las clínicas de "deshomosexualización" en Ecuador sea el principal objetivo del 2018.

    Marriage equality will be one of the objectives, but the closure of the "dehomosexualization" clinics ("conversion therapy" operations) in Ecuador will be the main objective for 2018.

    The numerous "conversion therapy" operations in Ecuador have been a continuing problem there, and need to be shut down post haste.

  • 89. VIRick  |  January 2, 2018 at 1:44 pm

    Trinidad: Transgender Murder and High Court Hearing on Sodomy Ban

    Here's an article on Trinidad highlighting the murder of a transgender woman and vocal transgender advocate, Sasha Fierce, in a Port-of-Spain park on the night of 5 December 2017, and the fact that there is no legal framework by which a person can legally change their gender identity in that country, while also mentioning another activist, Jason Jones, who is challenging the island’s sodomy laws as unconstitutional in a case that will be heard on 30 January 2018 in the High Court in Port-of-Spain.

    All in all, it shows just how far behind these English-speaking ex-British, and so-called "independent," Caribbean countries really are in terms of LGBT rights, especially when compared to the rest of the Americas.

    I have lived for an interval in Trinidad. Perhaps one can see why I did not stay.

  • 90. VIRick  |  January 2, 2018 at 3:47 pm

    New President of CIDH

    Per la Comisión Nacional de los Derechos Humanos (CNDH) en México:

    Celebra CNDH (de México) que el juez Eduardo Ferrer Mac Gregor asuma la Presidencia de la Corte Interamericana de Derechos Humanos (CIDH) (en Costa Rica) a partir del día de hoy, 2 de enero 2018.

    The CNDH (of Mexico) welcomes that Judge Eduardo Ferrer Mac Gregor assumes the Presidency of the Inter-American Court for Human Rights (CIDH) (in Costa Rica) as of today, 2 January 2018.

    Judge Ferrer Mac Gregor is from Baja California.

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