Salt Lake Tribune Slams Anti-Gay Judge

I previously noted the anti-gay bigotry of Utah judge who ordered a foster child removed from a legally married lesbian couple.  Judge Scott Johansen cited utterly discredited "research" bankrolled by and orchestrated by anti-gay "Christian" organizations.  Johansen chose to disregard the rulings of the 9th Circuit, 10th Circuit and the U.S. Supreme Court that found his cited research to be wrong.  Now, after widespread outrage and a damning denunciation in the Salt Lake Tribune, Johansen is apparently rethinking his bigoted ruling.  As a had argued, the Tribune editorial indicates that Johansen's remaining on the bench should now be in doubt.  Coupled with some backtracking and PR damage control by the Mormon Church in the wake of its recent anti-gay guidelines, the last week has proved to be bad news for the Utah religious extremists.  Here are editorial highlights: 

Spare a thought, if you will, for Judge Scott Johansen.  The juvenile court judge in Utah's 7th District over the last week was the target of local despair, official puzzlement and national derision when he, on his own initiative, moved to undo the proper placement of an infant child with a state-approved foster family because the big-hearted parents involved happen to be two women. Two women who are legally married to one another.

The negative reactions were correct. The judge's order was wrong. The foster parents and the relevant state agencies are correct to be appealing it. The foster parents' plan to adopt the child should proceed with all deliberate speed.

The whole matter should be resoundingly disposed of just as soon as the relevant appeals court can sweep Johansen's bigoted order aside.

And, despite the fact that the judge is apparently rethinking his position, Johansen's continued position on the Carbon County bench should also be in question.

But, remember, it wasn't all that long ago that the transparently bogus reasoning Johansen claimed to be relying on in ordering the 9-month-old baby girl removed from her foster home and placed with "a duly married, heterosexual foster-adoptive couple" was part and parcel of the state's case against the acceptance of same-sex marriage in Utah.

As recently as the summer of 2014, the state of Utah, Gov. Gary Herbert and Attorney General Sean Reyes were trying to convince the local federal court and, having failed there, the 10th Circuit Court of Appeals, that same-sex marriage should be banned because any children raised in a household so configured would be at a serious disadvantage compared to those brought up in families headed by heterosexual parents.

The state backpedaled slightly on that claim as the appeal went along. But the opinion of the 10th Circuit went out of its way to shoot it down anyway, calling it, "an argument based only on pure speculation and conjecture."

Other appeals courts and, eventually, the Supreme Court of the United States, also rejected the case against raising children in same-sex households as being without scientific or legal merit. The state of Utah has complied.

Thus were all involved apparently stunned at Johansen's Nov. 10 ruling, an order that violated not only the Supreme Court's rulings but also current state law and administrative practice, which now allow foster placement in, and adoption by, legally married same-sex couples.

After the fallout, which ranged from tears in the home of the foster parents to a raised eyebrow by Herbert — who called the judge's ruling an example of improper "activism on the bench" — Johansen seems to have given the matter more thought.

Instead of ordering the child removed by Nov. 17, he has left the status quo in place through a hearing now set for Dec. 4. If he does anything other than fully repudiate his previous order, with a lot of apologies to all concerned, the state should have the appeal already drafted and ready to file.

This judge's retrograde opinion on the legal acceptance of same-sex marriage in case of foster care and adoption, if not fully squelched, threatens to spill over into other matters, such as custody disputes. That is particularly a problem given the recent policy statement from The Church of Jesus Christ of Latter-day Saints denying full church participation to children living with same-sex parents. 

Judge Johansen has created an opportunity for himself to right this wrong. If he doesn't, other state officials must do it for him. Immediately.

Ouch!!

10th Circuit Slaps Down Kansas On Marriage Equality Appeal

I noted before how Republican Governors and Attorney Generals in a number of states have been more concerned about continuing to shamelessly prostitute themselves to Christofascists than facing objective reality in the legal/judicial realm.  A case in point is the state of Kansas where despite the U.S. Supreme Court's decision to not take appeals from the 10th Circuit Court of Appeals' ruling striking down state same sex marriage bans, Kansas nonetheless requested an en banc hearing  before the 10th Circuit - as if the full 10th Circuit would reconsider a ruling that the U.S. Supreme Court de facto affirmed.  Today, the idiocy of GOP Governor Sam Brownback administration became obvious when the 10th Circuit rejected Kansas' request for an en banc hearing.  The New Civil Rights Movement has details:

Early last month a federal judge struck down a same-sex marriage ban in Kansas, and GOP Governor Sam Brownback (photo) and his administration have been fighting the ruling ever since.

After the U.S. Supreme Court declined to review any same-sex marriage cases on October 6, that should have made clear to all states in the nation that their bans on same-sex marriage would soon be coming down – and they might as well just stop wasting taxpayer dollars defending them – but Gov. Brownback, a staunch religious theocrat has refused.

After the SCOTUS move, Brownback declared, "I swore an oath to support the Constitution of the State of Kansas. An overwhelming majority of Kansas voters amended the Constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas." 

Kansas is still fighting (with taxpayer dollars) and recently asked the 10th Circuit Court of Appeals for an en banc hearing on the case.

An en banc hearing is one where all the judges in the Court sit and hear the case.  The 10th Circuit just gloriously refused.

"No judge in regular active service on the Court requested that the Court be polled on the motion for initial hearing en banc," the Court's response today reads. "As a result, Appellants’ motion for an initial hearing en banc is denied."

Not only was the response a "no," it was in essence a "hell no!"  Not only would the court not hear the case en banc, not a single judge even thought the case warranted asking their colleagues if they should perhaps consider it.

Brownback and his minions make tawdry whores look virtuous.   Meanwhile, Kansas taxpayers ought to be demanding that Brownback reimburse taxpayers for the funds that he has needlessly wasted. 

Kansas and South Carolina Join Marriage Equality States

Despite what looks to be a brief victory in the 6th Circuit Court of Appeals under an opinion that is making some White supremacists proud, the opponents of gay marriage had another losing day yesterday as (i) the U.S. Supreme Court refused to continue a stay delaying marriage equality in Kansas and (ii) a federal court in South Carolina struck down that states marriage ban based on the precedent of Bostic and the state's inability to any rational basis for the ban.   Metro Weekly looks at the news.  First highlights on Kansas which would suggest that Judge Sutton's anti-gay ruling at the 6th Circuit is fated for reversal:

The U.S. Supreme Court ended the hold on same-sex marriages in Kansas Wednesday, thus allowing same-sex nuptials to proceed in the state.

In an order issued this afternoon, the nation’s highest court denied the request for a stay by Kansas Attorney General Derek Schmidt of a lower court ruling striking the state’s ban on same-sex marriage.

Schmidt had filed the request with Supreme Court Justice Sonia Sotomayor, who oversees the 10th Circuit. Sotomayor issued a temporary stay while the request was considered and referred the stay request to the entire Supreme Court. The order notes that Supreme Court Justices Anthonin Scalia and Clarence Thomas would have granted the stay.

Kansas is one of the states in a circuit impacted by the U.S. Supreme Court’s decision last month declining to hear arguments in cases challenging same-sex marriage bans in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — thus allowing lower court decisions legalizing marriage equality in those states to stand. Because the Supreme Court left intact rulings by the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals striking down same-sex marriage bans in those five states, those appeals courts’ decisions applied to six other states in those three circuits: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming.

Note that only Scalia and Thomas would have granted the stay.  Yet, not surprisingly, Kansas GOP governor Sam Brownback, homophobe extraordinaire, says he will appeal, although its unclear where he can appeal to.   South Carolina finds itself in a similar posture as Kansas: the ruling in the 4th Circuit which was allowed to stand by the U.S. Supreme Court is binding on that state.  A federal judge made that official yesterday.  Despite the inevitable, Republicans say that they will appeal.  Again, the question is where to - the 4th Circuit and Supreme Courts have spoken.  Here are additional highlights from Metro Weekly.

A federal judge struck down South Carolina’s ban on same-sex marriage in a ruling handed down Wednesday.

U.S. District Court Judge Richard Mark Gergel found South Carolina laws prohibiting same-sex couples from marrying “unconstitutionally infringe on the rights of Plaintiffs under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and are invalid as a matter of law.”

According to Gergel, the decision by the 4th Circuit Court of Appeals striking down Virginia’s same-sex marriage ban “controls the disposition of the issues before this Court and establishes, without question, the right of Plaintiffs to marry as same sex partners.”

Although Gergel denied a stay pending appeal due to the unlikelihood that the South Carolina ban will be upheld, he did grant a temporary stay until noon on Nov. 20 to allow South Carolina Attorney General Alan Wilson to petition either the 4th Circuit or the U.S. Supreme Court for a longer stay.

The willingness of Republican officials to seek appeals that are clear dead ends underscore the desperate desire of these individuals to prostitute themselves to the Christofascists.  Meanwhile, all they are doing is wasting taxpayer funds which they might just as well place in a pile and set on fire. 

Federal Judge Strikes Down Kansas Same-Sex Marriage Ban

In a ruling that should have surprised no one - other than, of course, delusional Christofascists - a U.S. District Court has ruled that Kansas' same sex marriage ban is unconstitutional under the binding precedent of the 10th Circuit Court of Appeals' ruling in Kitchen v. Herbert which the U.S. Supreme Court left undisturbed.  Indeed, the wonder is that the Court did not impose sanctions against the defenders of Kansas' unconstitutional bans who continued what can only be described as frivolous filings in the case after Kitchen was by default affirmed by the Supreme Court. Arguments that the federal court rulings do not trump any ruling by the Kansas Supreme Court are disingenuous at best and outright fraudulent at worse.   The full order of the Court can be found here.  Here are highlights from The Washington Blade (Note how the state GOP officials plan to continue to waste tax payer money):

In a 38-page decision, U.S. District Judge Daniel Crabtree, an Obama appointee, issued a preliminary injunction against the enforcement on Kansas law prohibiting of marriage rights for same-sex couples. The injunction is warranted, Crabtree writes, because of legal precedent and because state officials defending the law haven’t made a sufficient case they would prevail in court.

“Because Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution,” Crabtree writes. “Accordingly, the Court grants plaintiffs’ request for preliminary relief and and enters the injunction described at the end of this Order.

The litigation filed before the court was filed by the American Civil Liberties Union of Kansas to compel the circuit to confirm to judicial precedent enacted the Tenth Circuit rulings against same-sex marriage bans in Utah and Oklahoma, which lie within the same circuit as Kansas. 

The decision comes on the heels of a hearing on Friday on the matter of issuing a preliminary injunction in the case. According to the Associated Press, the state urged the judge not to block the state from enforcing the ban until a decision from the Kansas Supreme Court, which is scheduled to hold hearings on a related case on Nov. 6, but the ACLU maintained further delay would harm same-sex couples in Kansas. At the conclusion of the hearing, Crabtree said he would decide whether to issue a preliminary injunction in the case “as quickly as we can.”

Kansas prohibition on marriage rights for same-sex couples, known as Kansas Proposed Amendment 1, was ratified at the ballot as part of the state constitution by 70 percent of the vote. Gov. Sam Brownback and Attorney General Derek Schmidt defended the law in court against litigation and campaigned on those efforts ahead of Election Day in Kansas.

In a statement, Schmidt pledged to appeal the decision on an expedited basis for an en banc hearing before the Tenth Circuit.

Endangered Kansas Gov. Sam Brownback Rallies Against Same-Sex Marriage

Tawdry political whore, Sam Brownback

Previous blog posts have noted how GOP Gov. Sam Brownback has turned the state of Kansas into one of the nation's economic basket cases by implementing a host of failed GOP policies.  The result is that Brownback may seriously lose his re-election bid and possibly take down a GOP U.S. Senator with him.  Faced with these circumstances what does a "godly Christian" like Brown back do?  He shameless panders to the Christofacist vote even though the protests that Brownback helped rally are already a lost cause.  Other than inflaming spittle flecked, knuckle dragging Christofascists, Brownback's grandstanding is an exercises in futility in terms of stopping same sex marriage in Kansas.  KSN.com looks at Brownbak's willing self-prostitution.  Here are highlights:

Gay marriage has been a hot issue for a long time now, but several major developments in the last few weeks are turning it into one of the key issues this election season.

Earlier this month, the Supreme Court decided not to hear several state appeals on over-turned bans on gay marriage.

That prompted one Kansas judge to order clerks to issue licenses to same-sex couples, a move the State Supreme Court recently halted.

Early this morning, Governor Sam Brownback spoke out against same-sex marriage at a rally on the east side of Wichita.

The Whistle Bus Stop Tour rally this morning brought dozens of speakers out, all of which oppose same-sex marriage in Kansas.

The rally was also met by opposition of those who feel Kansas needs to get on-board with many other states in the country and allow same-sex couples the same liberties.

More than one hundred people packed the Summit Church parking lot this morning to take a stance on same-sex marriage.

With the ruling handed down in Wyoming yesterday, Kansas is the only state in the 10th U.S. circuit court of appeals where the ban is still in place.

 Note the pathetically small crowd, some of which opposed the Christofascists.  Brownback must be truly getting desperate.

Why Did the Supreme Court Dodge the Marriage Cases?

As noted in my first post following the Supreme Court's action today, just yesterday afternoon at a party I talked about the options of what the U.S. Supreme Court might do.  One option was what the Court ultimately ended up doing: denying the appeals, allowing same sex marriage spread to the states directly involved and then to the other states within the 4th, 7th and 10th Circuits.  When asked why the Court might do so, I said there were a number of possible factors.  Ari Ezra Waldman lays them out quite well over at Towleroad.  Here are highlights:

Follow me for one possible explanation for how and why this happened.

There is now marriage equality in 24 states plus the District of Columbia. Marriage equality will soon come to 6 more states, from South Carolina to Wyoming, because those states are covered by the circuit court decisions that are now the final words on marriage equality in those jurisdictions. That is 60 percent of the states.

Twenty states will remain in a rump anti-equality dystopia. That number is special because it is quite close to the number of states (17) that still had bans on interracial marriage on their books when the Supreme Court decided Loving v. Virginia. That case declared all such bans unconstitutional. It reflected the views of the vast majority of the federal courts through the country. It reflected the views of the majority of Americans. It was fiercely opposed, especially in those 17 states in the South, but the notion that a state could ban blacks from marrying whites is so disgusting today that it is hard to believe even 17 banned the practice.

Before it took Loving, the Court waited. It had the opportunity to hear similar cases several times before jumping on the Loving bandwagon. It could have been because of the apt name; it could have been because some justices were waiting for a liberal majority. More likely, it was strategists on the Court waiting for the right case at the right time, when fewer and fewer states retained the bans. At that point, the country would be ready.

Today, the Court helped us along that road. Soon, marriage equality will become a non-issue. It already sort of is.

Put yourself in the shoes of one of the Supreme Court's conservatives. Let's say, Justice Scalia. Let's assume that Justice Scalia opposes extending the constitutional right to marry to gay persons. Here's what you know: You know you have four pro-equality justices against you. You have to know that Justice Kennedy is in their corner, too. So, you realize you have two options: Take the case and have five justices enshrine a federal marriage equality right in the constitution, or do not take the cases and swallow the lower court decisions. You hate the first option. The second option is somewhat better. At least, it keeps the case out of the Supreme Court.

Conservatives like Scalia and Thomas do not want to touch marriage equality at the Supreme Court. Not only do they not want to lose, but they hate the idea of more federal rights, in general. Conservative jurisprudence is all about narrowing the federal Constitution, keeping people out, and letting legislatures answer problems. A federal appellate court saying gays have a federally protected right is bad enough. The Supreme Court saying the same thing is so much worse because it federalizes a right that Scalia doesn't think is there. So, if you're stuck with three circuits that have already rejected bans on gays marrying under the federal Constitution, you might as well let them stand with a simple denial without letting the Supreme Court "expand" the text of the Constitution.  That might explain why the conservatives didn't want to take the cases.

Now, imagine yourself in the shoes of a moderate like Stephen Breyer. You're cautious and approach your job with "judicial humility." You may not think the country is ready for a nation-wide right to marry for gay couples. You may want to hear from more courts, appellate or district, and more state legislatures. You may want to wait to take a case until you absolutely have to, i.e., when you have an appellate court decision upholding the constitutionality of a ban.

And, finally, imagine yourself in the shoes of a progressive justice like Ruth Bader Ginsburg. You have strong ideas about equality. Whenever the Supreme Court acts, you want it to be a lasting decision that will never erode and not face a backlash. You also do not feel compelled to take these particular cases because you agree with what happened below. You are comfortable waiting for the right time because you are not satisfied with a five justice majority. You want at least six. You realize that Justices Scalia and Thomas are lost causes. But you think that Chief Justice Roberts, a young man, is not going to be willing to oppose marriage equality and sit on a court for twenty more years. At that time, marriage equality will be as obvious as sliced bread. You want to build support from the ground up to peel off at least one more vote for marriage equality, and you're willing to wait to attack with overwhelming force. 

Seen in this way, it is possible every justice voted against hearing these cases, but for different reasons.

10th Circuit Rules Oklahoma Gay Marriage Ban Unconstitutional

As it did with Utah's anti-gay animus based Christofascist backed ban on same sex marriage, yesterday the United States Court of Appeals ruled that Oklahoma's similar ban was likewise unconstitutional under the equal protection clause of the United States Constitution (meanwhile, here in Virginia, the 4th Circuit continues to sit on its thumbs and has not released its ruling in the Bostic appeal).   Meanwhile, the Supreme Court yesterday stayed the 10th Circuit's ruling in the Utah case pending the outcome of Utah's desperate last ditch effort to allow Christofascists to force their religious beliefs on all Americans.  Here are highlights from the Tulsa World on the 10th Circuit decision:

Oklahoma’s ban on same-sex marriages moved closer to being lifted Friday.

A federal appeals court struck down the ban as unconstitutional, bringing measured celebrations within Tulsa’s LGBT community and strong words from Gov. Mary Fallin.

The 10th Circuit Court of Appeals ruled 2-1 that the ban violates the U.S. Constitution’s guarantee of equal protection under the law for everyone.

“States may not, consistent with the U.S. Constitution, prohibit same-sex marriages,” the judges wrote.  The court stayed its opinion, putting it on hold pending an expected challenge.

Fallin criticized the court’s decision in a prepared statement.

“Today’s ruling is another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves,” Fallin said. “In this case, two judges have acted to overturn a law supported by Oklahomans. Their decision will be appealed and, I hope, overturned.”

Friday’s 46-page decision by the two-judge majority rejected arguments by opponents of same-sex marriages that children have an interest in being raised by their biological parents and that a ban on same-sex marriages is valid because only opposite-sex couples are capable of being procreative.

The Court's full decision can be read here.  It is noteworthy that Gov. Fallin favors mob majority rule and conveniently forgets that once upon a time majorities favored slavery, and  later segregation and bans on bans on interracial marriage. Just because a majority supports something doesn't make it right or constitutional.  As noted many times before, I long for the day when Christians are a minority in America and when what they have sown may come back to haunt them severely.  Suddenly, you will not hear them preach for mob majority rule.

Utah AG Emergency Stay Request: Recognizing Gay Marriages "Harms" State

The disingenuousness (can we say lies?) of anti-gay bigots and their whore like minions in the Republican Party at times seems to know no limits.  In the wake of the 10th Circuit Court of Appeals ruling that Utah must recognize same sex marriages performed in Utah before the stay of the U.S. District Court ruling striking down Utah's gay marriage ban, Utah Attorney General Sean Reyes (pictured above) has filed a 35-page emergency stay request U.S. Supreme Court.  In the filing, Reyes claims that recognizing the roughly 1000 marriage would cause harm to the state of Utah. How?  The same old usual bullshit arguments that have been rejected by U.S. District courts across the country, not to mention the 10th Circuit.  The New Civil Rights Movement looks at Reyes' batshitery:

The 10th Circuit federal Court of Appeals Friday evening ruled that a stay requested by the State of Utah will indeed expire and the State will have to recognize the legal civil marriages of about 1300 same-sex couples performed in December and January, unless the Supreme Court were to intervene.
This evening, Utah Attorney General Sean Reyes filed a 35-page emergency request for a stay with U.S. Supreme Court Justice Sonia Sotomayor.

"Absent a stay," Reyes' petition claims, "there is a likelihood—indeed, a certainty—of irreparable harm to the State" should it be forced to recognize the 1300 legal civil marriages of same-sex couples.

Reyes claims recognizing the 1300 "interim marriages," as he calls them, will "moot the novel issues involved," denying the courts an opportunity to examine them.

The Utah Attorney General forgets that these marriages do not represent legal issues, but people -- the very citizens he claims "are better served by obtaining complete, final judicial resolution of these issues."

Reyes also seemingly chastises the Supreme Court in advance -- declaring the State of Utah "will be irreparably harmed without a stay. In denying a stay pending appeal, this court is running roughshod over state laws which are currently in force. It is disingenuous to contend that the State will suffer no harm if the matter is not stayed; undoing what is about to be done will be labyrinthine and has the very real possibility to moot important issues that deserve serious consideration."

Despite the Supreme Court's decision last summer in Windsor, striking down Section 3 of DOMA, and despite several dozen rulings in federal courts -- all favorable to same-sex marriage -- Reyes claims "the State has shown a likelihood of success on the merits."  Hardly.

The Salt Lake Tribune tonight reminds that just last week at the 10th Circuit, a "panel of three judges — the same panel which upheld another federal judge’s ruling that invalidated Utah’s ban on same-sex marriage because he found it violates citizens’ Fourteenth Amendment rights — declared Utah failed to prove it would suffer irreparable harm in recognizing the marriages and didn’t demonstrate that the state is likely to prevail in its appeal."

The reality is that the only "harm" will be that Christofascists will not be able to deprive 1000+ same sex couples equality under the civil laws and not be able to inflict their toxic, hate based religious beliefs on all the citizens of Utah.

Will the Supreme Court Take Utah's Gay Marriage Ban Appea?

With the 4th Circuit poised to release its ruling in the Virginia gay marriage ruling at any moment, with Wisconsin announcing that it will appeal the ruling striking down that state's ban to the 7th Circuit, the growing question is what will the U. S. Supreme Court do with the soon to be filed appeal by the state of Utah's appeal from the 10th Circuit ruling upholding the U.S. District Court ruling that declared Utah's gay marriage ban to be unconstitutional.  Based on Utah's pitiful argument before the 10th Circuit, any appeal to the Supreme Court will likely involve a regurgitation of the arguments - e.g., marriage is for procreation, it's a state rights issue, etc. - that to date have failed to impress any of the numerous U.S. District Courts and state courts that have found state marriage bans to violate the equal protection and due process guarantees of the U.S. Constitution.  Andrew Sullivan provides a good synopsis of the different "reading of the tea leaves" of what the court may do.  Here are highlights:

The court doesn’t have to take the case, of course, but Denniston explains why they might choose to:

With the case going to the Justices via such a petition, the Court will have complete discretion whether to review the Tenth Circuit ruling, or pass it up. Utah officials are almost certain to argue that the Court should take up the issue promptly based on the argument that there is now a conflict among federal appeals courts on the constitutionality of such bans.

The Eighth Circuit upheld such a ban, but that was in 2006, seven years before the Supreme Court’s Windsor decision — a ruling that many judges have said changed the legal landscape for review of those state laws. In the Windsor decision, which involved only a federal law, the Court indicated that it was not taking a position at that time on the validity of state laws forbidding same-sex marriages.

But there is no such conflict between courts regarding this particular case, so the justices might prefer to hold off:

While most observers expect the high court to take up the issue of marriage equality within the next few years, the Associated Press notes that the court has a history of declining to consider cases without divergent rulings from lower courts. In the Kitchen case, a federal trial judge and the 10th Circuit both ruled that the state’s ban on same-sex marriage is unconstitutional. If the Supreme Court declines Utah’s request to hear the case, those lower rulings will stand, definitively declaring Utah’s marriage law unconstitutional and striking down the voter-approved law.

Some legal experts, however, doubt the court will turn it down:

“I think the Court will take the case. Since [U.S. v.] Windsor, all of the lower courts that have ruled have struck down laws prohibiting same sex marriages,” said Erwin Chemerinsky, the Dean of the University of California, Irvine School of Law. “Perhaps without a split in the lower courts, the Supreme Court will wait. My prediction, though, is that the Court knows the issue needs to be resolved and will take it.” And if the Court does hear the case, all eyes will be on Justice Anthony Kennedy, not simply because he’s the traditional swing vote, but because he has written all three decisions in Supreme Court history that advanced gay rights. “I also predict that the five justices in the majority in Windsor will be the majority to declare unconstitutional laws that deny marriage equality to gays and lesbians,” Chemerinsky said.

Also yesterday, Alito denied without comment a county clerk’s plea to stop same-sex marriages in Pennsylvania. “That appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted,” Denniston adds in an update. And, in other good news, a judge struck down Colorado’s marriage equality ban yesterday, though the decision is stayed pending appeal. The speed of all this is simply staggering.

Perhaps I am biased, but I believe that the Supreme Court will taker the Utah appeal and that ultimately, state gay marriage bans will all be ruled unconstitutional for reasons similar to those expressed by the majority in United States v. Windsor.   Yes, the shrieking and lamenting of the Christofascists will be off the charts.  But at the same time, the justices can see where the mood of the country is going and, if the Court is to maintain relevance and respect - especially after the ridiculous ruling in Hobby Lobby, there really is only one way for the Court to rule: gay marriage is a constitutional right.
 

Utah AG to Appeal 10th Circuit Ruling Striking Down Utah Same Sex Marriage Ban

As expected, the Utah Attorney General’s Office has indicated that it will appeal the recent 10th Circuit Ruling against Utah's gay marriage ban directly to the United States Supreme Court, by passing a request for a rehearing en banc by the full 10th Circuit.  Here in Virginia, of course, the big question is when will the 4th Circuit issue its ruling in the appeal of Bostic v.Rainey.  The 4th Circuit ruling will have special meaning for me and the husband who were legally married in Washington, DC, but our marriage is a nullity for state law purposes in Virginia.   SCOTUS.bog looks at the developments out of Utah.  Here are highlights:

Utah state officials will go to the Supreme Court in the “coming weeks” in a bid to revive the state’s ban on same-sex marriage, they announced Wednesday.  In a statement by Missy W. Larsen, the Utah attorney general’s chief communications officer, the state said it had opted to pass up a request for the U.S. Court of Appeals for the Tenth Circuit to reconsider en banc a three-judge panel’s ruling in June nullifying the ban.

This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages.  The Tenth Circuit was the first federal appeals court to issue such a decision (see this post).


Here is the full statement issued in the Utah case: “To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United States Supreme Court in the coming weeks.  Attorney General [Sean] Reyes has a sworn duty to defend the laws of our state.  Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

Between the time that a federal judge struck down the Utah ban and the day the Supreme Court put that ruling on hold, some 1,300 same-sex couples were married in Utah.  The validity of those marriages is now under review by the Tenth Circuit in a separate case.

Another federal appeals court, the U.S. Court of Appeals for the Fourth Circuit, is expected to rule shortly on the constitutionality of Virginia’s ban.  That case has been handled in the Fourth Circuit by the legal team of David Boies and Theodore Olson, two high-profile lawyers who had led the court battle against California’s “Proposition 8.”

The Tenth Circuit may also rule shortly on another same-sex marriage case, involving Oklahoma’s prohibition on such marriages.  That case was heard by the same three-judge panel as the Utah case.

Part of me hopes that whatever case the U.S Supreme Court hears (it could also consolidate several appeals), that the parallel wit Loving v. Virginia comes through in the final ruling.  In my view, it is crucial that the opponents of same sex marriage be placed in the same category as those who opposed interracial marriage.  Bigotry is bigotry, and Virginia's anti-gay bigots need to be forever labeled for what they are.

Colorado Joints States Whose Gay Marriage Ban Ruled Unconstitutional

Yet another domino fell today when a Colorado state court judge ruled that Colorado's gay marriage ban is unconstitutional.   The state court ruling followed the ruling by the 10th Circuit Court of Appeals (the 10th Circuit encompasses Colorado) that upheld a U.S. District Court determination that Utah's gay marriage ban was unconstitutional under the United States Constitution.  Ultimately, all of the rulings track back to the decision in United States v. Windsor that struck down Section 3 of DOMA and concluded that anti-gay animus was the true motivation behind gay marriage bans.  Here are highlights from the Denver Post:

An Adams County District Court judge on Wednesday declared Colorado's ban on same-sex marriages unconstitutional, but he immediately stayed his ruling.

The ruling makes Colorado the latest in a string of 16 states that have seen their bans on same-sex marriages tossed out by state and federal judges.

The ruling came as another judge in Boulder County considered a request by Attorney General John Suthers to stop a county clerk from issuing marriage licenses to gay couples. Last week, attorneys filed a federal lawsuit seeking to challenge Colorado's gay marriage ban.

Attorneys for 18 plaintiffs — nine couples — from Denver and Adams counties argued that the state's voter-approved ban on same-sex marriage violates the U.S. Constitution.


Adams County District Court Judge C. Scott Crabtree issued his 49-page ruling Wednesday afternoon, saying he "heartily endorses" a recent ruling by a Denver-based federal appeals court in a similar case.

"The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution," Crabtree said in his ruling. 

"The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans."

Crabtree also said: "If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same, there would be no need for both of them."

The judge acknowledged that his court would not offer the final word on the subject. The 10th U.S. Circuit Court of Appeals recently tossed out Utah's similar ban on gay marriage.

"The final chapter of this debate will undoubtedly have to be written either in Denver, Colorado or Washington, D.C.," the judge wrote. "While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will take time for this issue to be finally resolved."


"I think what I find telling is that Judge Crabtree actually says that the justifications the state uses to deny same-sex couples marriage are just pre-text for discrimination," McHugh said. "I think that is an important ruling, that this isn't just about protecting marriage, this is about discrimination against same-sex couples."

During arguments last month, Suthers' office defended the state's ban on gay marriage, arguing that 15 state and federal judges who had struck down similar measures in other states were wrong.
But Crabtree mocked the state's argument that Colorado's ban on same-sex marriage protects the "nature of marriage" and the ability to produce children.

A Milestone Week for Same-Sex Marriage

As noted in prior posts, this past week was a good one for those who believe in equality under the civil laws, including the right of civil law marriage.  If one is a Christofascist, the week will probably not rate as a good one.   Both the 10th Circuit Court of Appeals and a U.S. District court in Indiana struck down state law bans of gay marriage.  While the usual hate merchants and snake oil merchants of the professional Christian class are shrieking and whining, the New York Times comments on these positive developments.  Here are editorial highlights:

The battle to legalize same-sex marriage saw a historic victory this week when the United States Court of Appeals for the 10th Circuit in Denver became the first federal appeals court in the nation to declare that same-sex couples have a “fundamental right” to wed.

The decision, striking down Utah’s ban on same-sex marriage, extended a remarkable string of favorable federal court rulings; a similar ruling was issued on the same day by a Federal District Court in Indiana. The decision also provides a vehicle for the issue’s possible return to the Supreme Court next term.

“To claim that marriage, by definition, excludes certain couples is simply to insist that those couples may not marry because they have historically been denied the right to do so,” Judge Carlos Lucero, a Clinton appointee, wrote in a majority opinion in the Utah case, joined by Judge Jerome Holmes, a George W. Bush appointee. “One might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.”

All in all, this has been a year of extraordinary progress on same-sex marriage. Almost exactly a year ago, the Supreme Court left standing a lower-court ruling overturning Proposition 8, California’s ban on same-sex marriage; that case has given rise in recent weeks to two books and an HBO movie.

But the prime factor behind the explosion of lawsuits challenging state bans, as well as the many court rulings rejecting discrimination in both red and blue states, is United States v. Windsor — the Supreme Court’s landmark ruling striking down the Defense of Marriage Act’s denial of federal benefits to lawfully married same-sex couples. The 10th Circuit decision in the Utah case included many references to the Defense of Marriage Act ruling.

A recent report from Attorney General Eric Holder Jr. shows why the court should act promptly. The report documents the Obama administration’s progress in making federal benefits available to married same-sex couples in the wake of the Windsor decision.

But it also concludes that some vital Social Security and veterans benefits cannot be provided because they are tied to a couple’s “place of domicile” rather than a “place of celebration” standard. Congress is unlikely to fix that.

Only a strong decision from the Supreme Court making same-sex marriage legal nationwide can resolve this problem and end a whole array of indignities and disadvantages the current legal patchwork inflicts on gay people and their families every day.

The husband and I were at a local Pride fundraiser last night and spoke with our friend Tim Bostic of Bostic v. Rainey who said that the 4th Circuit is expected to release its ruling any time now.   Let's keep our fingers crossed that it follows the 10th Circuit example.

Christofascists and GOP Suffer Double Loss in 10th Circuit and Indiana Rulings.

First gay marriage in Indiana

In the wake of its pathetic "March for Marriage" the National organization for Marriage ("NOM") and similar gay haters suffered double losses as the U. S. Court of Appeals for the 10th Circuit upheld the District Court rulings that struck down the gay marriage bans in Utah and Oklahoma (the opinion is here).  Meanwhile, a U.S. District Court struck down the gay marriage ban in Indiana.  The momentum truly seems to be building for either the U.S. Supreme Court to (i)  refuse to hear the almost guaranteed appeal from the 10th Circuit decision and thereby make same sex marriage across the 10th Circuit, or (ii) the take the appeal and strike down gay marriage bans nationwide.  In the wake of the DOMA ruling last year, the rapidly growing support for gay marriage and the plethora of lower court rulings striking down gay marriage bans, it is becoming increasingly hard to believe that the Supreme Court would uphold such bands.   First here are highlights from Think Progress:

In the first federal appellate level consideration of same-sex marriage since the Supreme Court overturned the Defense of Marriage Act last year, the 10th Circuit has agreed with the lower court that Utah’s ban on same-sex marriage is unconstitutional. In a 2-1 decision, the panel ruled that the Constitution guarantees that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as it is recognized by persons who wish to marry a person of the opposite sex.”

The ruling was immediately stayed, recognizing that the Supreme Court had stayed the district court’s original ruling earlier this year.

The majority of the panel rejected the state’s arguments that marriage must be linked to procreation: “Appellants’ assertion that the right to marry is fundamental because it is linked to procreation is further undermined by the fact that individuals have a fundamental right to choose against reproduction.” They were also not persuaded by claims that the inherent definition of marriage demanded unions between a man and a woman, because “nothing logically or physically precludes same-sex couples from marrying, as is amply demonstrated by the fact that many states now permit such marriages.”

“Plaintiffs in this case have convinced us that Amendment 3 violates their fundamental right to marry and to have their marriages recognized,” they wrote. “We may not deny them relief based on a mere preference that their arguments be settled elsewhere. Nor may we defer to majority will in dealing with matters so central to personal autonomy. The protection and exercise of fundamental rights are not matters for opinion polls or the ballot box.”

 Meanwhile, the Indianapolis Star reports on the demise of the Indiana gay marriage ban:

A federal judge struck down Indiana's ban on same-sex marriages Wednesday, leaving state officials, lawmakers, social conservatives, gay rights supporters and legal experts scrambling to sort out exactly what the decision means — and what will happen next.

But for the hundreds of gay and lesbian couples who rushed to courthouses across the state for impromptu weddings, the judge's words meant something simple, yet significant: They could finally be married in Indiana.

The monumental ruling by U.S. District Judge Richard Young said Indiana's law that limits marriage to one man and one woman, and that denies recognition of same-sex marriages legally performed in other states, is unconstitutional. It mirrored more than a dozen recent federal court opinions that have struck down same-sex marriage bans in other states.

"In less than a year," Young wrote in his opinion, "every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions — laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional."

Indiana Attorney General Greg Zoeller's staff quickly filed a notice of appeal and an emergency request for a stay of Young's order, which could halt same-sex marriages pending outcome of an appeal. The motion for a stay, according to spokesman Bryan Corbin, which has been granted in other jurisdictions, "is intended to prevent confusion and inconsistency between county clerk's offices regarding license issuance, while the appeal is pending."

But opponents of same-sex marriage viewed the ruling as yet another attack on traditional marriage.

"It's a disappointing but not unexpected ruling," said Curt Smith, president of the Indiana Family Institute. "We are deeply disappointed at the lack of respect for Indiana statute and our legislature. ... It is very distressing to see that marriage licenses are being issued and that presumably marriages will be performed in the near future on couples that are not authorized under state law."

Just minutes after Young's ruling was released, Marion County Clerk Beth White began issuing marriage licenses to same-sex couples and conducted what was likely the state's first such wedding — the spur-of-the-moment union of Craig Bowen and Jake Miller of Indianapolis.

 The Christofascists are on the wrong side of history just as they were on desegregation and interracial marriage.  One would think that they would learn from history, but when the open embrace of ignorance, hate and bigotry are applauded, I guess that is too much to expect or hope for.

Will the 10th Circuit Dismiss Utah's Appeal of Marriage Ruling?

As most readers will recall, last December a federal district court struck down Utah's ban on same sex marriages.  The posture of the case was that the plaintiffs sued the Governor, Attorney General and the Salt Lake County Clerk - who was responsible for issuing marriage licenses as the defendants.  On appeal, the County Clerk did not appeal the district court ruling.  Now, based on questions raised during oral argument before the 10th Circuit, anti-gay forces in Utah are worried that the 10th Circuit may dismiss the appeal for lack of standing - i.e., the absence of the County Clerk as an appellant.  Obviously, the irony would be ever so sweet if the appeal was dismissed and the lower court ruling was left standing.  Here are highlights from the Salt Lake Tribune:

There’s a small concern lurking beneath the surface in Utah’s same-sex marriage case, a quiet question that some experts say could derail the state’s push to permanently ban gay and lesbian unions.

Although few believe it poses a serious threat to the case’s trajectory — likely headed to the U.S. Supreme Court by summer — the question persists:   Could Kitchen v. Herbert be thrown out on a technicality? 

On Tuesday, Utah’s lead counsel Gene C. Schaerr drew attention to a question posed to both sides by a three-judge panel at the 10th Circuit Court of Appeals last week regarding whether the lawsuit targeted the appropriate state and county officials. 

In the Utah lawsuit, the three couple plaintiffs represented by Peggy A. Tomsic and James E. Magleby named the governor, the attorney general and the Salt Lake County clerk in the case.

They allege these three officials are responsible for same-sex couples being denied marriage licenses and for out-of-state marriages remaining unrecognized in Utah.

 Why would Utah’s lead attorney be volunteering to the court that the governor and attorney general are, in fact, the proper people to sue?   If the court finds that they’re not, the appellate judges may decline to rule in the case, leaving Judge Robert J. Shelby’s ruling to stand as law in Utah. 

During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate. 

Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

"You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

 

It is not known when this decision may be issued, though experts estimate it could take anywhere from one to three months.

Should the court rule on the merits of the case and side with — or oppose —the lower court’s decision, its ruling would effectually extend to all states in the 10th Circuit, including Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

Salt Lake tribune: State of Utah Takes an Ugly Path

While the ruling that struck down Utah's ban on same sex marriage is on appeal to the 10th Circuit, the State of Utah has been doubling down on its efforts to discriminate against and stigmatize same sex couples.  All the while, of course, state officials are pretending to support the "Christian values" - e.g., hate and bigotry - which are a hallmark of the Mormon Church and other anti-gay churches.  In a main editorial, the Salt Lake Tribute bitch slapped those in the state's leadership who are pursuing this ugly path.  Here are editorial excerpts:

In rapid succession, the official Utah position on same-sex marriage has gone from mainstream conservative to merely retrograde to downright nasty.

In fairness, it is not only, or even primarily, Utah’s laws and policies that have changed. It is the rest of the world that has moved, with a speed seldom seen in such matters, away from a one-size-fits-all view of marriage to a live-and-let-live acceptance of what’s now called marriage equality.

It is disappointing that the state’s lawmakers and law enforcers have not yet caught up. But they will have to. 

The arguments put forth Thursday by Utah’s hired legal eagles in the 10th Circuit Court of Appeals will soon be brushed aside, if not by that tribunal, then by the U.S. Supreme Court, and by the march of human progress.

Meanwhile, the state is engaged in a rear-guard action against families it does not like. It is trying to block the adoption petitions filed by at least two of the some 1,200 same-sex couples who were legally wed after Judge Robert J. Shelby ruled in December that Utah’s Amendment 3, banning same-sex marriage in the state, was unconstitutional.

The fact that the state is going out of its way to stop the legal formation of two — or more — secure, intact and loving families clearly puts the lie to the argument that the official defense of Amendment 3 is not, in lawyer-speak, "animus" against same-sex couples and their households, but a reasonable state effort to encourage the legal formation of, well, secure, intact and loving families.

The core of the many district court rulings allowing same-sex marriage is Supreme Court Justice Anthony Kennedy’s opinion holding, in the case that struck down the federal Defense of Marriage act, that DOMA was an impermissible denigration of the many children who live in such households.

Utah’s state attempt to block these adoptions is exactly the kind of cruelty that Kennedy was talking about. And, if there is any justice, it will be another example the backers of same-sex marriage will use to prove that Utah isn’t out to protect families, but to harm them.

Ouch!!  Yes, the editorial is harsh, but it is sadly 100% on target.  There is very little in the way of love for others in today's fundamentalist Christian belief and by extension in the modern day Mormon Church.  Instead, false and feigned piety are the norm and  the real goal is to denigrate and harm others who are not members of the ignorance embracing cult.