4th Circuit Rules 10-3 Against Trump Muslim Ban

Donald Trump ranted against the 9th Circuit when his first attempt at a ban against Muslims went down in flames. Now, the U.S. Court of Appeals for the 4th Circuit has struck down Der Trumpenführer's second attempt at banning Muslims from entering America.    In its ruling, the Court recognized the motivation behind the executive order: religious based  intolerance and animus. The ruling will not sit well with Christofascists but ought to be encouraging for those who continue to believe in true religious freedom - not the perverted Christofascist version - and the First Amendment.  Salon looks at the ruling which will likely push the case to the U.S. Supreme Court.  Here are highlights:

Yet another federal court ruled against President Donald Trump’s ban on travel from six majority-Muslim nations. The Fourth Circuit Court of Appeals ruled that the so-called Muslim travel ban executive order “drips with religious intolerance, animus, and discrimination.” The court refused to lift a nationwide injunction blocking the ban.  

In a 10-3 ruling, the federal appeals court in Richmond, Virginia, noted that President Trump’s power to deny entry to immigrants, while “broad,” isn’t “absolute.”

[A]n Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked

Trump’s revised ban “cannot be divorced from the cohesive narrative linking it to the animus that inspired it,” Chief Judge Roger Gregory wrote.

Trump’s revised ban was announced in March after the first version of the ban was shot down by federal courts. But the ban on people from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the U.S. for 90 days and all refugees for 120 days never got off the ground because federal courts blocked it just hours before it was set to go into effect.

Federal Judge Strikes Down Alaska Marriage Ban

In a somewhat unusual move, a federal judge in Alaska released his ruling today striking down Alaska's ban on same sex marriage.  Given that Alaska is located within the 9th Circuit Court of Appeals which struck down the laws in Nevada and Idaho last week, the defenders of anti-gay discrimination have nowhere to appeal the ruling since this week's 9th Circuit ruling is binding precedent for Alaska.  One can just imagine what batshitery will likely come from the lips of Sarah Palin, a/k/a the White Trash Cretin from Anchorage.   Alaska Dispatch News has details.  Here are excerpts:

A federal judge ruled Sunday that Alaska’s ban on gay marriage is unconstitutional, paving the way for gay couples to begin marrying in the state for the first time.

“The court finds that Alaska’s ban on same-sex marriage and refusal to recognize same sex marriages lawfully entered in other states is unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution,”  U.S. District Court Judge Timothy Burgess wrote in a order in the case Hamby v. Parnell, released Sunday.

The Hamby suit was filed in May by five same-sex couples. It challenged the state’s constitutional amendment limiting marriage to one man and one woman, approved by voters in 1998.

The ruling comes less than a week after the 9th U.S. Circuit Court of Appeals ruled to overturn similar marriage bans in Idaho and Nevada. Same-sex marriage advocates said the 9th Circuit ruling would likely lead to the quick overturn of Alaska’s ban on gay marriage because the bans were similar and Alaska also falls under the jurisdiction of that court.

The Fast Changing Map of Marriage Equality

At day break this past Monday morning, only 19 states had marriage equality.  Today, the number is up to 27 with several more likely to soon slide into the marriage equality column.  The map above is the latest one from Wikipedia.   Dark blue states are those with marriage equality.  Those in light blue, are states where final orders striking down.  Beige represent states where lower courts have invalidated same sex marriage bans.  Red is states  where no rulings have been handed down as yet, although it should be noted that Montana, Wyoming, and Arizona are controlled by the 9th Circuit's recent ruling and may soon find themselves in the marriage equality column.

9th Circuit Strikes Down Marriage Bans - 5 More States to Join Marriage Equality Column

Yesterday and today have been devastating days for Christofascists and their sleazy political whores in the Republican Party.  Between the U.S. Supreme Court action yesterday which tacitly affirmed the rulings of the 4th, 7th and 10th Circuits and today's ruling of the 9th Circuit Court of Appeals striking down same sex marriage bans in Idaho and Nevada, when all the dust settles the number of states where same sex marriage is legal will surge from 19 states to 35 states (including Alaska and Montana).  Should the 6th Circuit rule the same way, then the gay marriage states will number 38 - far more than those that had legalized interracial marriage prior to the ruling in Loving v. Virginia.  The 9th Circuit ruling can be read here. There obviously must be much wailing and gnashing of teeth in hate group headquarters (not that these folks will surrender and seek real jobs).  Metro Weekly looks at today's 9th Circuit ruling.  Here are highlights:

A federal appeals court struck down same-sex marriage bans in Idaho and Nevada Tuesday in what is the latest of a series of victories for marriage equality just this week.

In a 3-0 opinion authored by Judge Stephen Reinhardt, the 9th Circuit Court of Appeals found bans on same-sex marriage in Idaho and Nevada violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

“To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional,” the ruling states. “Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’ In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.”

Monday’s decision by the Supreme Court also impacts states under the jurisdiction of the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals, meaning same-sex marriage will likely soon be legalized in West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming. On Tuesday, Colorado’s attorney general ordered county clerks in the state to begin issuing marriage licenses to same-sex couples. When the other states impact by the Supreme Court’s decision comply, 30 states, plus D.C., will allow same-sex couples to marry.

Should Tuesday’s ruling by the 9th Circuit be petitioned to be heard by the Supreme Court, it seems unlikely the justices would hear the case following Monday’s decision to reject cases striking down same-sex marriage bans in five states. As such, the 9th Circuit’s decision will likely impact other states in the circuit that ban same-sex marriage, including Arizona, Alaska and Montana, but not immediately.

“Today’s decision from the Ninth Circuit brings to 35 the number of freedom to marry states, and 64% of the American people now live in a state where gay people will soon share in the freedom to marry,” Evan Wolfson, founder and president of Freedom to Marry, said in a statement.

 When I came out 13 years ago, I never thought I would live to see this day.  In fact, when I came out, even consensual same sex sexual relations could land one with a felony conviction here in Virginia.  Thankfully, Lawrence v. Texas ended that constant worry and now my husband and I are fully legally married in Virginia.   Not to sound cruel, but I have zero sympathy for the Christofascists who have inflicted so much harm on so many for so long.  Hopefully, they will soon become a scorned and largely irrelevant minority.

Is the Fight for Gay Marriage Effectively Over?

Click image to enlarge

Today same sex marriage is legal in 24 states - the number was only 19 at this hour yesterday - and as the rulings of the 4th, 7th and 10th Circuits begin to be applied in other states in their respective circuits, the number will rise to 30.  Another shoe will drop when the 9th Circuit likely also rules that same sex marriage bans are unconstitutional under the U.S. Constitution.  Then the number of marriage equality states will rise to 35.  That will leave 15 outlier states.  States that will suddenly find themselves at a huge disadvantage in therms of recruiting businesses and top talent to locate to bolster their economies.  And if the 6th Circuit strikes down the marriage bans before it, then the number of outlier states will be even smaller.  A piece in the Washington Post looks at the possibility that the battle for gay marriage may be effectively over and anti-gay states may find their bans going onto the trash heap of history with not much more than a whimper.  Here are article highlights:

Many observers of the court were stunned that the justices passed up reviewing lower-court decisions that overturned prohibitions on same-sex marriage in five states, delaying a decision that would answer the question for the nation.

Gay rights proponents took it as a sign that the court likes to move slowly when endorsing momentous societal change, that it feels no need to decide an issue before it must — and that the court’s move provides a clear signal for future challenges of voter-approved prohibitions on same-sex marriage.

“An action like this is profound,” said Mary Bonauto, a lawyer with Gay & Lesbian Advocates & Defenders (GLAD). “I expect that lower courts will get the message.”

Marriages could soon be available in six more states, for a total of 30. The Williams Institute at the University of California at Los Angeles estimates that when the rollout is complete, 65 percent of gay couples and a majority of all Americans will live in a place where same-sex unions are legal.

“There is something called the ‘normative power of the actual,’” said Walter Dellinger, a solicitor general in the Clinton White House. “People get used to an idea over time, and they come to think it’s right.” That is what will happen as more Americans see same-sex marriage as positive or, perhaps, simply inconsequential, Dellinger said.

[I]t is hard to think that the action carried no strategic importance. By putting holds on marriages in Virginia and Utah — lower courts had stayed the action in other states — the court had hinted that it did not want more same-sex unions to occur until it had a chance to weigh in.

There was enormous pressure on the court to take the case. The winners and losers in all five states had urged the court to get involved — a flock of high-profile lawyers had written the briefs asking for review. More than 30 states and a like number of the country’s biggest companies had asked the court to settle the issue for the nation.

With same-sex marriage, a similar situation may soon exist, with one important caveat: While public polls at the time of Loving showed that the public was still opposed to interracial marriage, public support for same-sex marriage has dramatically increased, especially among the young.

 Leaders in what remain anti-gay marriage states truly are going to need to think about where they take their states from here.  If they don't embrace marriage equality now, then it may ultimately be forced on them by the Supreme Court.  Meanwhile economic development staffs are going to face a real problem as more and more businesses full embrace same sex marriage and find anti-gay states less and less palatable places in which to do business.

Ninth Circuit Eviserates Marriage Equality Opponents

Judge Marsha Berzon

While on vacation I was largely out of the loop and writing few blog posts due to the horrifically bad satellite Internet available aboard the Norwegian Jade.  I spent several hundred dollars for it and it was a challenge to even be responsive to client and office e-mails.  Thus, some things I will write about over the next few days may be "old news," but topics I want to put in my two cents on.  One such story is the berating that the GOP/Christofascist opponents of marriage equality took during oral arguments at the 9th Circuit Court of Appeals last week.  It is wonderful, in my view, to see the defenders of religious based bigotry finally being openly ripped apart by appellate court judges.  Towleroad has a great run down portions of which are quoted below:

A soft-spoken attorney representing Idaho started his state's anti-marriage equality argument by suggesting that allowing gays to marry violates the "bonding right" of children that they will be raised by their biological mothers and fathers. It took Judge Marsha Berzon just 15 seconds to ask her first question: "What is that word you're using before 'right'"? Judge Berzon can hear just fine; it's just that she had never heard anyone make such a ridiculous claim before today. The rest of the hearing followed similarly.

[I]n a nearly two-hour long interrogation of attorneys from Idaho and Nevada that may not have been as bombastic as Judge Posner's treatment of attorneys from Wisconsin and Indiana in the Seventh Circuit, a hearing which resulted in a marvelous unanimous victory ("Go figure!"), but was every bit as damaging to the forces opposed to marriage equality.

It also brought marriage equality full circle. Judge Reinhardt was the judge that wrote the first decision from a federal appellate court on marriage equality, affirming District Judge Vaughn Walker's pioneering rejection of California's Prop 8. We all know how that case turned out.

And we know what's happened since: a Supreme Court decision in United States v. Windsor striking down the Defense of Marriage Act and a long streak of pro-marriage equality decisions from the lower federal courts, including several appellate courts.

The judges' questioning was direct and they expressed a similar, though less visible, frustration with the misdirection and misleading statements from the anti-equality attorneys as Judge Posner. The tone of the hearing suggested that marriage equality supporters are finally out of the closet, following a tidal wave of an emerging consensus of the legitimacy and morality of marriage freedom for all.

Judge Berzon asked the most direct questions, sifting through the muck of Idaho's nonsensical argument about children needing to be raised by their biological parents.

"But heterosexual men and women aren't going to enter into same-sex marriages. So, what's the issue?" she asked. Indeed. Idaho was trying to avoid the reality that what the state wants to do is not really create a situation where kids are raised by their biological moms and dads, but just ban gays from marrying. These are two very different and clearly unrelated things.

But the message of the man-woman marriage is that we need to create a stable bond that is in the best interests of the child, argued the Idaho attorney. Huh, Judge Berzon wondered. How is it, she asked, supportive of stable marriages and a benefit to children to have them raised outside of supportive same-sex marriages rather than inside supportive same-sex marriages?

After several agonizing stutters: The worst thing the state can do to undermine the message of stability is to create something new--namely, "genderless marriage."  With that, Judge Berzon had it. She called out Idaho on its argument that man-woman marriages provide the added benefit of complementary parenting styles and skills, an argument that is not only sexist and based on traditional notions that women nurture and men discipline, but also a completely unconstitutional basis for discrimination.

The greatest, and most revealing, line came during Idaho's rebuttal, in which Judge Berzon brought up the parallel of Loving v. Virginia, the 1967 case that outlawed bans on interracial marriage. As we all know, similar arguments were raised by Virginia: we just don't know what will happen, we worry for the children of mixed-race couples, those households will be unstable, the verdict is out on whether they are good parents, and the state has debated and made the decision, though the democratic process, to ban the prospect.

Judges are willing to call out the anti-equality side on their bald lies and misleading statements.

In the end, this was a rough day for those opposed to marriage equality. Three progressive judges, though more muted in their questioning than Judge Posner was at the Seventh Circuit, were no less skeptical of the homophobic, ahistorical, misleading, misdirected arguments against allowing gays to marry. The hearing was a testament to how far we have come since the last time marriage equality was before Judge Reinhardt. 

Will A Wave of Court of Appeals Rulings Turn the Tide on Same-Sex Marriage Bans?

With Friday's ruling in Michigan and the State of Michigan promising to appeal there are now or soon will be marriage equality cases on the dockets of the 4th, 5th, 6th, 9th and 10th Circuit Courts of Appeal.  As the New York Times reports, many legal experts expect that one or all of these Courts of Appeal will strike down state bans on same sex marriage.  The results of these rulings may well force the U.S.Supreme Court to resolve the issue once and for all.  Here are article highlights:

With a slew of cases barreling toward federal appeals courts, almost certainly including the decision Friday that overturned Michigan’s restrictive marriage amendment, the legal battle over same-sex marriage is entering a new and climactic phase. Decisions in the coming months will resonate beyond individual states across entire regions and may impel the Supreme Court to revisit the issue sooner than it wished. 

Legal experts say the country is entering what one called a “marriage spring” and predict that several of the circuit courts, which hold sway over a group of states, will rule that state laws limiting marriage to a man and a woman are unconstitutional.

Enforcement of decisions may well be delayed while the Supreme Court takes one or more of them for review, with a decision then possible by June 2015.

But if the Supreme Court demurs, those rulings will become law throughout those circuits, requiring many more states to join the 17 that have already authorized same-sex marriage.

“This is the penultimate act,” said Michael C. Dorf, a constitutional expert at Cornell University Law School, of the sudden wave of federal court hearings. It will start in Denver in April as the United States Court of Appeals for the 10th Circuit considers rulings that overturned marriage limits in Utah and Oklahoma.

Like many other legal scholars, Mr. Dorf predicts that same-sex marriage proponents will win many of the circuit-level decisions, which are generally handed down by three-judge panels.

Since June, when the Supreme Court required the federal government to recognize married same-sex couples and suggested that discriminatory laws were rooted in nothing but prejudice, rights advocates have won an uninterrupted series of decisions in federal district courts. Restrictive amendments or laws have been declared unconstitutional in Utah, Oklahoma, Virginia, Texas and Michigan, and partial decisions, requiring states to recognize out-of-state marriages, have been handed down in Kentucky, Ohio and Tennessee.

In addition to the Denver hearings next month, the Fourth Circuit, based in Richmond, will hear arguments in the Virginia case in May. These cases are likely to be decided by summer or fall.

In other regions, hearings have not yet been scheduled but are considered very likely this year in the Ninth Circuit, in San Francisco, regarding a 2012 decision that upheld Nevada’s restrictive law. They also could occur this year in the Fifth Circuit, in New Orleans, for the Texas case, and in the Sixth Circuit, in Cincinnati, for cases from Michigan, Ohio and Kentucky. 

Given the consistency of recent court decisions and the signals given by the Supreme Court in its ruling in June, many experts predict that some if not most of these circuit panels will uphold marriage rights for gay and lesbian couples. That could upend law in many conservative states.

The Supreme Court will be all but forced to decide if, as appears possible, different circuits reach clashing conclusions. The one most likely to decide against same-sex marriage, many experts say, is the Fifth Circuit, which will decide the Texas appeal. That circuit includes Mississippi and Louisiana, and the court is viewed as largely made up of conservative judges.

[M]ore than 50 challenges to marriage limits are working their way through lower federal courts and state courts. In the next three months, federal district courts will hear challenges in Idaho, Oregon and Pennsylvania, said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. 

If, despite recent signs, the Supreme Court finds no constitutional right to same-sex marriage, that could block such marriages in states like Utah and Virginia, where laws were overturned by federal courts. But it would not turn back the clock in the 17 states that adopted same-sex marriage on their own through legislation, ballot questions or state court decisions.

Key Upcoming Cases in Pennsylvania Marrige Equality Fight

A reader recently asked about the status of the challenge to Pennsylvania's same sex marriage ban since this blog looks at the cases progressing in other states.  Based on the string of defeats suffered so far by states that have pandered to religious extremists and/or argued for mob majority rule, I suspect when the Pennsylvania ruling does come, it will follow the pattern we've seen in every other state at the U.S. District Court level save Nevada (which is almost guaranteed to be reversed by the 9th Circuit given its ruling in SmithKline in January).  But to answer the reader's question, the San Francisco Chronicle looks at the current status in Pennsylvania. Here are article highlights:

When U.S. District Judge Mary McLaughlin decides this year whether Pennsylvania must recognize same-sex marriages from other states, she'll do so from her perch above Independence Mall, where about 40 people staged an early gay rights protest in 1965.

For decades afterward, little changed on the gay marriage front. But the cultural and legal landscape has shifted rapidly since 2000, leaving Pennsylvania the last state in the region to ban gay marriage.
That could soon change as three high-profile lawsuits move through the courts.

In Philadelphia, McLaughlin is weighing the "marriage recognition" issue, which could reach the U.S. Supreme Court before the broader issue of marriage equality. Her case is set for oral arguments May 28.

"The laws have not caught up to where people actually are on this issue," said lead plaintiff Cara Palladino, 48, of Philadelphia, a Bryn Mawr University fundraiser who married Isabelle Barker, 42, in Massachusetts in 2005. "When you look around at all the challenges that we have, I think people are increasingly looking at gay marriage as ... a nonissue."

A Quinnipiac University poll last month showed that 57 percent of about 1,400 Pennsylvania voters surveyed approve of same-sex marriage, compared to 37 percent who are opposed.

Lawyers for Republican Gov. Tom Corbett believe the issue comes down to states' rights — and that neither Massachusetts, nor McLaughlin, should tell Pennsylvania how to define marriage.  "This court should ... leave to the individual state legislatures their traditional power, long recognized under the U.S. Constitution, to define the nature and character of the marital relationship within their boundaries," they wrote in a brief last month in the Palladino case.

It's not clear whether McLaughlin will rule right away. However, in June, U.S. District Judge John E. Jones is scheduled to hear a broader challenge to the state's same-sex marriage ban during a two-week trial.

The American Civil Liberties Union represents 25 plaintiffs, including same-sex couples, their children, and a woman who lost her same-sex spouse. They say they have been denied financial and legal benefits that others enjoy. The ACLU plans expert testimony on such subjects as child rearing and the history of marriage, to build a record for the expected appeals.

"We think (they) will demolish any conceivable argument against marriage equality the other side could present," said Witold "Vic" Walczak, legal director of the ACLU of Pennsylvania.

In a third key case pending in Commonwealth Court, Corbett's administration has asked a judge to void scores of marriage licenses issued to gay and lesbian couples last year by Democratic local officials in Montgomery County.   "Same-sex marriage is not deeply rooted in our nation's history ... (and) cannot be considered a fundamental right," attorneys for the state have argued in court papers.

Gov. Corbett is sadly on the wrong side of history and will likely be viewed by history - if not already - as a modern day version of George Wallace standing in the school house door blocking blacks from attending public schools with whites.  The tide of history in America is on the side of expanding equality despite GOP efforts to drag the nation back to the 1950's.

 

Oregon Republicans Support Same Sex Marriage

Admittedly, Oregon is not representative of most rank and file Republicans, but it is nonetheless, notable that the Oregon Republicans voted 233 -162 over the weekend and passed an endorsement of marriage equality.  Perhaps it was merely a case of accepting the inevitable now that the Ninth Circuit standard of review on anti-gay laws and amendments has pretty much rendered Oregon's same sex marriage bans unconstitutional in all but a formal ruling.  Or perhaps it is a case where some in the GOP have finally realized that changing demographics and the dying off of angry elderly Christofascists has put the handwriting on the wall.  Whatever the reason, one can imagine that there will be shrieks and flying spittle at NOM and FRC among other anti-gay hate groups.  Here are excerpts from Towleroad:

Republicans at the 50th Annual Dorchester Conference in Seaside, Oregon voted 233 -162 over the weekend in a first-ever endorsement of marriage equality by a GOP-dominated gathering of Oregon political activists, according to a press release from Freedom Oregon.

Freedom Oregon, a coalition of Republican leaders, formed earlier this year to rally Republican support for a proposed ballot initiative that would overturn Oregon’s constitutional ban on same-sex marriage.

“There are a large number of young Republicans who are finding their voice in the party,” said Alexis Wolf, a Republican active in Freedom Oregon. “We don’t believe the freedom to express love and commitment should be limited by government.”

Said Chairman of LCR Oregon and Co-Director of Freedom Oregon James Owens, in a statement:

“The Dorchester Conference sets the tone for the GOP in Oregon for the coming year, and I’m proud to have led Log Cabin Republicans members on the floor of the convention today as we made history and moved one step closer to making marriage equality a reality for committed same-sex couples in this state. This wasn’t a vote against an anti-gay resolution, it was a vote in favor of freedom for all Oregonians — and a message to those fringe members of the Oregon Republican Party obsessed with pushing discriminatory measures similar to Arizona’s SB-1062 on the ballot in November. Today wasn’t just great — it was the absolute best outcome for Log Cabin Republicans, and a statement that Oregon Republicans are becoming more mainstream, less divided, and ready to win on issues like economic freedom, personal responsibility, lower taxes and a less intrusive government.”

Oregon's marriage equality battle is headed to a climax in 2014. Not only are there efforts toward a ballot measure underway which must qualify by July 3, two couples filed suit against the state's gay marriage ban in October.

Oregon's attorney general Ellen Rosenblum said last month that she would not defend the state's gay marriage ban in court, joining several attorneys general around the country in viewing such laws as unconstitutional following the SCOTUS ruling in the Windsor DOMA case.

Federal Court Stikes Down Kentucky Gay Marriage Ban, 9th Circuit Expedites Nevada Appeal

Things have been very busy on the same sex marriage front today.  First, a federal court struck down at least in part Kentucky' gay marriage ban.  Second, the 9th Circuit Court of Appeals approved the state of Nevada's withdrawal of its defense of that state's same sex marriage ban in the wake of  the 9th Circuit ruling in SmithKline Beechum Corp. v. Abbott Laboratories, and set the case up for an expedited ruling.  What is interesting is that the Nevada case will now be defended solely by a non-governmental, Christian Right organization akin to the one that appealed the ruling in Hollingsworth v. Perry. concerning Proposition 8.  Thus, if the 9th Circuit rules that Nevada's same sex marriage ban, there may be no party with standing to appeal that ruling.  In respect to the Kentucky Ruling, here are highlights from (Note: the judge who made the ruling is a Republican nominee - the court's opinion is here) MetroWeekly:

A federal judge Wednesday struck down Kentucky’s ban on recognizing same-sex marriages performed in other jurisdictions in a ruling that labeled the ban as unconstitutional. 

“[T]he Court concludes that Kentucky’s denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review. Accordingly, Kentucky’s statutes and constitutional amendment that mandate this denial are unconstitutional,” U.S. District Court Judge John G. Heyburn II wrote in a 23-page ruling.

Citing a number of gay rights cases that have come before the Supreme Court, including June’s decision in Windsor striking down Section 3 of the Defense of Marriage Act (DOMA), Heyburn wrote the nation’s highest court has established “the framework of cases from which district judges now draw wisdom and inspiration.”

Although the District Court’s decision does not strike down Kentucky’s same-sex marriage ban, it concurs with nine other state and federal court decisions striking down bans on recognition of legally married same-sex couples. Kentucky voters approved a constitutional amendment in 2004 defining marriage as between a man and a woman and prohibiting recognition of same-sex marriages performed in other states.

“What this opinion does, however, is make real the promise of equal protection under the law. It will profoundly affect validly married same-sex couples’ experience of living in the Commonwealth and elevate their marriage to an equal status in the eyes of state law,” Heyburn wrote.

Heyburn was recommended to the federal bench by Republican Sen. Mitch McConnell and nominated by President George H. W. Bush in 1992.

With respect to today's developments in the Nevada marriage case, Here are details via Lambda Legal:
 The U.S. Court of Appeals for the Ninth Circuit today granted Lambda Legal's request to expedite the hearing of Sevcik v. Sandoval, its lawsuit challenging Nevada's discriminatory marriage ban. The decision comes just two days after Nevada Gov. Brian Sandoval sought leave to withdraw his brief defending the ban. The Ninth Circuit also granted Gov. Sandoval's request to withdraw his brief. Lambda Legal Senior Attorney Tara Borelli issued the following statement:

"The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track."

Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

In Sevcik v. Sandoval, Lambda Legal, joined by pro bono co-counsel from O'Melveny & Myers LLP and Snell & Wilmer LLP, represents eight same-sex couples challenging Nevada's law banning marriage for same-sex couples. The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S.
District Court judge granted Nevada Gov. Brian Sandoval's motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court's ruling in SmithKline.

Overall, it appears to have been a good day for marriage equality supporters and a bad day for the Christofacist crowd.

Nevada Attorney General Withdraws Defense of Nevada Gay Marriage Ban

Virginia Attorney General has been viciously attacked for ceasing his office's defense of Virginia's animus based Marshall-Newman Amendment.  Now, Herring has been joined by Nevada Attorney General Catherine Masto (pictured at right) has filed a motion with the Ninth Circuit Court of Appeals, withdrawing her defense of the marriage equality lawsuit against the state.  And get this, the Republican governor of Nevada concurs with the move. Why?  Because based on new case law she/he can no longer make a good faith defense of the anti-gay marriage amendment. It is safe to expect that Masto will be pilloried by the Christofascists and their whores in the GOP much as has happened with Herring. These "godly folk" would rather that attorneys general lie to the courts and mis-cite case law rather than uphold the United States Constitution.  Here are highlights from the Salt Lake Tribune on this breaking news development:

Nevada is withdrawing its efforts to uphold the state’s gay marriage ban.  Attorney General Catherine Corte Masto filed a motion Monday to withdraw the state’s legal arguments in a case pending before the 9th U.S. Circuit Court of Appeals.

Republican Gov. Brian Sandoval says he agrees with the move, saying it’s clear the state’s arguments supporting the ban are no longer defensible in court.

The decision means Nevada will not argue to uphold the state’s constitutional prohibition against same-sex marriage that voters passed in 2002.

Eight same sex couple sued the state, arguing the law is unconstitutional.  Nevada lawmakers last year took the first step toward repealing that law. If legislators approve Senate Joint Resolution 13 again next year, it would go to voters on the 2016 ballot.

In earlier posts I had predicted that Masto would likely make this move.  Her action lends further credence to Mark Herring's decision which cited the same case law as that which forced Masto to withdraw Nevada's defense of that state's same sex marriage ban.  Lambda Legal had this to say via a press release:

“In the wake of the Ninth Circuit ruling in SmithKline Beecham v. Abbott Laboratories, the Governor has recognized that the writing is on the wall, and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify. Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination. As the Governor himself recognized, the heightened scrutiny standard that the Ninth Circuit’s SmithKline ruling now requires be applied to discriminatory classifications based on sexual orientation renders arguments supporting the marriage ban no longer tenable, and the Governor frankly made the only call he could.”  

The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S. District Court judge granted Nevada Gov. Brian Sandoval’s motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court’s ruling in SmithKline.

With this development it is within the realm of the possible that same sex marriage bans in the 9th Circuit and elsewhere will begin to fall like dominoes.   Expect plenty of flying spittle and rants and shrieks from the Christofascists.

 

11 Attorneys General Sign Federal Court Brief Defending "Natural' Marriage"

9th Circuit States

In the wake of the 9th Circuit Court of Appeals' ruling in SmithKline Beechum Corp. v. Abbott Laboratories last month, the gay haters are racing forward to file briefs in support of discriminatory same sex marriage bans in the states within the jurisdiction of the 9th Circuit Court of Appeals.  Among the throng are eleven (11) state attorney generals who want to protect "natural marriage" and who make the same "slippery slope" arguments as religious extremists and lunatics like Rick Santorum.  Behind all of the rhetoric ultimately, the sole reason for anti-gay bigotry is religious based hatred and small-mindedness.  The Salt Lake Tribune looks at this unfortunate effort by those who ought to be seeking to uphold the legal protections of all citizens, not just Christofascists.  Note the ridiculous twisting of Loving v. Virginia.  Here are excerpts:

The top law officers in 11 states — including Utah Attorney General Sean Reyes — argue in a Nevada case that no fundamental right to same-sex marriage exists and that allowing such unions will lead to "any group of adults" seeking that status and the "tragic deconstruction" of marriage.

"If public affirmation of anyone and everyone’s personal love and commitment is the single purpose of civil marriage, a limitless number of rights claims could be set up that evacuate the term ‘marriage’ of any meaning," the attorneys general said in a newly filed amicus brief in the 9th Circuit Court of Appeals.

And once "natural limits" are gone, "it follows that any group of adults would have an equal claim to marriage," the attorneys general said.

The filing may highlight points Utah will make in its opening brief, which is due to be filed Monday in the 10th Circuit Court of Appeals.

In November 2012, U.S. District Judge Robert C. Jones of Nevada ruled the state’s ban, approved by a majority of voters in both 2000 and 2002, is not discriminatory, upholds a legitimate state interest and is, therefore, constitutional.

"Homosexual persons may marry in Nevada, but like heterosexual persons, they may not marry members of the same sex," Jones ruled.. . . . Should marriage rights be expanded, the judge said, it is conceivable that "a meaningful percentage of heterosexual couples would cease to value the civil institution as highly as they previously had and hence enter into it less frequently" with a possible end result being an increase in out-of-wedlock births, single-parent families and property disputes.

The attorneys general said traditional marriage laws do not target sexual orientation per se and thus must be reviewed and upheld if they are based on a rational government interest — that is, procreation and child-rearing.

The attorneys general said barring same-sex marriage is not discriminatory because it treats gays and lesbians equally and is thus unlike the racial bars that were overturned in Loving v. Virginia, the U.S. Supreme Court decision that found prohibiting interracial marriage was unconstitutional.

While the lower court judge also "paradoxically" found that "at most" Nevada’s law was aimed at maintaining "heterosexual superiority or ‘heteronormativity,’" the attorneys general said, there is no basis for "deducing any such discriminatory intent" in the state’s law.

The 9th Circuit Court’s recent decision in another case, which drew on Windsor in concluding that it was unconstitutional to bar a prospective juror because of sexual orientation, doesn’t apply, the attorneys general said.   "These technical, doctrinal inquiries only confirm what common sense tells us: traditional marriage arises from concern for opposite-sex couples, not same-sex couples," they said.

9th Circuit Ruling On Gay Jurors Continues to Have Huge Reverbrations

As previously noted, on January 21, 2014, the Ninth Circuit Court of Appeals recently handed down a ruling in SmithKline Beecham Corp. v. Abbott Labs, a case that was not a gay rights or same sex marriage case that may have a huge impact on LGBT individuals across the nation.  Especially, if the case is appealed to the U.S. Supreme Court and is reversed or affirmed.  Either way, the impact will be huge.  The case which arose in the context of two huge pharmaceutical companies suing each other involved the striking of a gay juror by one of the litigants just as blacks would have been stricken in the South in the past (and probably even today in some jurisdictions).  In its ruling the 9th Circuit held that heightened scrutiny applied to such a discriminatory striking of a gay juror.  The effect of the holding is that in gay rights cases, the burden of proof is shifted to the state to justify discriminatory laws.  Indeed, the SmithKline case was cited by Attorney General Mark Herring in his memorandum that reversed his office's defense of the Marshall-Newman Amendment.  A piece in Huffington Post looks at just how significant these decision may be in the fight to make same sex marriage legal nation wide.  Here are some highlights:

In the next few weeks, AbbVie, a pharmaceutical company that produces an important AIDS drug, will make a decision that could have a far-reaching effect on gays, lesbians, bisexuals and transgender people, and not just those with HIV.

If the company appeals a recent court ruling and wins, it will come as a blow to those who hope to see states around the country topple the remaining barriers both to same-sex marriage and to laws that protect gay people from discrimination.

The case did not initially concern gay rights at all, but was instead a fight between two pharmaceutical giants.

[T]he case may have never come to the attention of the broader gay rights community if not for an attempt by Abbott to tilt the jury's makeup in its favor: In 2011, a lawyer for Abbott dismissed a potential juror who had revealed he was gay and had friends with HIV. SmithKline argued that the removal was discriminatory, and last week the U.S. 9th Circuit Court of Appeals agreed. 

In the unanimous ruling, a three-judge panel called the exclusion of gay jurors unconstitutional. The reach of this ruling goes beyond gay jurors, however, because it touches on one of the most significant legal questions concerning gay rights today: Should laws related to sexual orientation be subject to "heightened scrutiny"?

Over the last several decades, the Supreme Court has developed a three-tiered system for classifying alleged violations of the Equal Protection Clause of the 14th Amendment, which says that states can't deny people equal protection of the laws. When the Court classifies a case as deserving of "heightened scrutiny," it falls to the state to prove that its laws serve an important state interest. Until recently, the court has reserved this level of scrutiny for cases involving race and gender. But that’s changing.

In Nevada, the 9th Circuit Court of Appeals is currently reviewing a lawsuit that aims to strike down the state's same-sex marriage ban. And it's not looking good for opponents of same-sex marriage, thanks to the court's recent decision in the Abbott case. As Nevada Attorney General Catherine Cortez Masto acknowledged in a statement last week, the state's earlier arguments for banning same-sex marriage may not hold up in a court that applies heightened scrutiny and requires the state to justify its laws.

The state has not yet indicated whether it plans to pull out of the case entirely and refuse to defend the law, as the Obama administration did last year when the Supreme Court was considering the constitutionality of the Defense of Marriage Act. But this week, Alan Glover, an official in Carson City who was named in the lawsuit for denying the plaintiffs a marriage license, appears to have done just that.   "We don't feel that we have a legal argument to meet the heightened scrutiny," Neil Rombardo, the District Attorney for Carson City, told The Huffington Post.

Similar marriage lawsuits are underway in Oregon, Idaho and Arizona, all of which fall under the 9th Circuit's domain, and gay rights advocates are closely watching these cases too.

AbbVie has until the beginning of March to announce whether or not it will appeal the ruling in its case.   If it does, it would be asking the 9th Court not only to rule that it is acceptable to exclude gay citizens from jury service, but also to make it more difficult to challenge anti-gay laws. 

AIDS activists have long protested AbbVie for raising the prices of its immunodeficiency drugs, but if the company seeks an appeal there may be a stronger and more widespread blowback from the LGBT community. 

Brian Moulton, the head of the legal team of the gay rights group Human Rights Campaign, said he was keeping a close eye on AbbVie’s actions. Each year, HRC puts together a widely read index that ranks companies on LGBT issues. "One of the criteria in that rating system is whether or not a company takes a position in litigation that's adverse to the LGBT community," Moulton said.
If AbbVie does appeal, and succeeds, Moulton says, "it would be tremendously problematic."
 

Ninth Circuit Upholds Californai Ban on "Ex-Gay" Therapy for Minors

The forces of evil - i.e., the Christofascists and other supporters of "ex-gay" therapy - suffered another major loss yesterday when the Ninth Circuit Court of Appeals upheld California's ban on "ex-gay" therapy for minors.  As noted many times on this blog, perpetuating the myth that being gay is a "choice" and subject to "cure" is a critical element of the Christofascist agenda to deprive LGBT individuals of legal protections and equal civil rights.  New Jersey has passed a similar ban and bills that would impose similar bans on the dangerous and fraudulent therapy are pending in at least three states (including Virginia).  The National Center for Lesbian Rights has details on this welcomed action by the Ninth Circuit.  Here are highlights from a press release on the ruling:

(San Francisco, CA, January 29, 2014)—Today, the full U.S. Court of Appeals for the Ninth Circuit let stand an earlier decision by a three-judge panel of the same court upholding Senate Bill 1172, a California statute enacted in 2012 that protects minors from dangerous and ineffective mental health treatments that falsely claim to be able to change a young person’s sexual orientation.

The California Legislature enacted the law to prevent state-licensed mental health professionals from attempting to change the sexual orientation or gender expression of minor patients. The Legislature based the law on the unanimous consensus of the nation’s leading medical and mental health associations that such purported treatments have no scientific basis and put children at risk of serious harms, including depression and suicide.

In the lawsuit that the Ninth Circuit ruled in today, the statute was challenged by therapists who wish to engage in these practices on minor patients and who argued that the law violated their right to freedom of speech.  In August 2013, a panel of the Ninth Circuit held that California’s law was a permissible regulation of medical treatment to protect public health and safety and did not violate the free speech rights of therapists. The Ninth Circuit’s ruling today allows that decision to stand, thereby ensuring that California’s law will remain in effect.

New Jersey enacted a similar law in 2013. A federal district court upheld New Jersey’s law on November 8, 2013, and that law is currently the subject of an appeal before the U.S. Court of Appeals for the Third Circuit. In that litigation, NCLR represents Garden State Equality, New Jersey’s largest LGBT rights organization.

As stated before, these bans need to be enacted nationwide and to the extent quacks hiding behind religious based "ministries" that continue to subject minors to such "therapy" needs to be sued for the harm that they do.   As for parents forcing their children into such voodoo like therapy, they need to be prosecuted for child abuse.

Gay-Rights and the Court: Have We Entered Uncharted Territory?

With numerous cases pending across America challenging same sex marriage bans and other discriminatory laws drafted to specifically target LGBT citizens, the legal landscape has changed dramatically from even a little more than 10 years ago when, prior to the ruling in Lawrence v. Texas, gays remained basically criminalized in 13 states.  Now, 17 states allow same sex marriage, but anti-gay bigotry and anti-gay laws remain plentiful in the majority of states, including here in Virginia.  The question of the moment is whether or not there may be a huge shift against anti-gay laws and state constitutional amendments about to occur.  MSNBC has a piece that looks at what a ruling out of the U.S. Court of Appeals for the Ninth Circuit could portend if adopted by other courts - Virginia Attorney General Mark Herring cited the case in his brief in Bostic v. Rainey - and, hopefully, affirmed by the U.S. Supreme Court.  Here are excerpts:

[Ninth Circuit judge Stephen] Reinhardt is back in the headlines. This time, gay-rights advocates had better hope he’s caught the prevailing mood at the high court. That’s because his latest decision, issued Tuesday, may trigger Supreme Court review of the single most important legal issue for the gay-rights movement: Are laws that classify people based on sexual orientation subject to “heightened scrutiny”?

That may sound like an obscure question. But the answer will have a sweeping impact on laws nationwide. And it may single-handedly determine whether dozens of state laws forbidding same-sex marriage are constitutional.

Reinhardt’s ruling came in a case, GSK v. Abbott Laboratories, that on its face has little to do with gay rights. One company (GlaxoSmithKline) sued another (Abbott) in a contract dispute. But the dispute involved an HIV drug, and during jury selection, Abbott’s lawyers dismissed a potential juror who suggested he was gay.

The jury later rejected some of GlaxoSmithKline’s damage claims. On appeal, GlaxoSmithKline’s lawyers argued that they deserve a do-over because the trial was tainted by dismissal of the gay juror.

On Tuesday, a Ninth Circuit panel led by Reinhardt agreed – but it’s the way they agreed that’s important. Reinhardt wrote that government actions that treat people differently based on sexual orientation “are subject to heightened scrutiny,” like actions singling out racial minorities or women.   And he concluded that lawyers aren’t free to strike jurors just because they are gay. That differential treatment, he said, violates the Constitution’s Equal Protection Clause.

That ruling is a bombshell. Here’s why: Legislatures usually are allowed to distinguish between groups when they make laws. . . . But when it comes to a few groups – most prominently, minorities and women – the rules are different. Because those groups historically lacked political power, courts are suspicious of laws singling them out, so they apply a stricter test: so-called “heightened scrutiny.” Laws singling out women, for instance, are constitutional only if the government can prove they’re necessary to advance “important governmental objectives.” That’s a much harder test to meet. In recent decades, the Supreme Court has used it to strike down laws drawing distinctions between men and women on everything from alimony to school admissions to worker’s compensation.

And that’s why Tuesday’s ruling is a watershed. Courts have long applied rational-basis scrutiny to laws that differentiate based on sexual orientation. The Supreme Court, meanwhile, has ducked the issue:   . . . . But Reinhardt has now called the high court’s bluff. In GSK, he studied Justice Kennedy’s Windsor opinion and concluded that it was applying heightened scrutiny, even though it didn’t say so. Therefore, he said, the law has changed: The Supreme Court now “requires that heightened scrutiny be applied” in sexual-orientation cases.

If he’s right, then laws that disadvantage homosexuals on a wide range of issues – inheritance, benefits, hospital-visitation rights – are in danger. So are state gay-marriage bans. A federal judge has predicted that a heightened-scrutiny test “would likely doom” every such ban.

The next big question, then, is whether the Supreme Court will take this case. That’s still up in the air and will be for months. But there are reasons to think it might: The court loves big-ticket cases. And Reinhardt’s decision creates a split among the federal appeals courts on what level of scrutiny applies. Such splits often lead to high-court review.

If GSK ends up in the Supreme Court, watch out. It has the potential to make last year’s DOMA decision look like small potatoes.

If justices are honest and can put aside the inappropriate deference too long given to religious based discrimination, the Supreme Court should affirm the 9th Circuit ruling.   And if it does, the Christofascists will have been dealt a huge defeat in their effort to stigmatize LGBT people and make us inferior under the law.  Keep your fingers crossed.

9th Circuit Ruling Could Benefit Gays and Provide For Heightened Scrutiny in Discrimination Cases

While many might consider the subject of the level of review of discriminatory laws rather dry, in real life the level of scrutiny given to discriminatory laws - especially anti-gay laws - can have a huge impact in whether or not odious legislation survives judicial review.  The Circuit Court of Appeals for the 9th Circuit has handed down a decision that could well reverberate down the road and aid in striking down anti-gay laws. The case actually involved the striking of jurors but the analysis focused on anti-gay bias that can be applied on a much more basis.  Here are highlights from BuzzFeed:

A federal appeals court Tuesday held that lawyers cannot exclude potential jurors from a jury based on their sexual orientation — a ruling whose underlying rationale could have broad implications outside of the case.

The 9th Circuit Court of Appeals, in a unanimous decision, held that discrimination based on sexual orientation is subject to heightened scrutiny — a decision the court concluded has been made in action, though not in word, by the Supreme Court itself.

In describing the reason for applying the new standard, Judge Stephen Reinhardt examined the Supreme Court’s June decision in Edith Windsor’s case challenging the Defense of Marriage Act. Although equal protection claims brought based on sexual orientation have previously been judged under the lowest level of review, called rational basis, the 9th Circuit held that a higher standard now applies. 

Writing for the three-judge panel, Reinhardt wrote:

Windsor review is not rational basis review. In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. In other words, Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.

Under that heightened scrutiny, in which equal protection claims are considered more carefully by courts reviewing challenged actions, the court concluded that Batson — a Supreme Court case barring juror strikes based on race — also applies to strikes based on sexual orientation.

Reinhardt wrote:

This appeal’s central question is whether equal protection prohibits discrimination based on sexual orientation in jury selection. We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review. We hold that such classifications are subject to heightened scrutiny. We also hold that equal protection prohibits peremptory strikes based on sexual orientation and remand for a new trial.

Examining the history of discrimination faced by gays and lesbians, Reinhardt then applied that to the questions raised about the potential juror’s exclusion, writing:

Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.

 While not announced in the context of a Christofascist backed law, the Court's ruling in the long run is a major defeat to anti-gay bigots.  Kudos to the 9th Circuit!

 

Reflections as Gay Marriages Resume in California

Yesterday, the Ninth Circuit Court of Appeals lifted its stay in the Proposition 8 case and gay marriages resumed in the nation's most populous state as couples turned out in droves to tie the knot.  I'm thrilled for these couples who will now be living in a state where they receive equal rights as citizens.  It's a bitter sweet feeling knowing that in Virginia it may be many years before LGBT Virginians ceasing being the new blacks under Virginia's discriminatory laws.  One thing the flood of California marriages will do is set the stage for more pressure on Virginia businesses to demand that the Virginia GOP stop pandering to spittle flecked Bible beaters as the competition for top employees becomes increasingly tilted against Virginia businesses.  In the past, big businesses have been the major players in reversing anti-gay laws - e.g., Capital One led the charge to end the ban on employer paid insurance benefits for same sex partners.  Think Progress looks at developments in California:

On Friday afternoon, the ninth circuit court lifted its stay on same-sex marriages in the state of California, acknowledging the Supreme Court’s opinion in Hollingsworth v Perry that supporters of anti-gay Proposition 8 did not have standing to appeal a lower court judge’s ruling that the ban on same-sex marriage was unconstitutional. The move, which came earlier than expected, allows gay and lesbian couples to begin getting married immediately.

As soon as the news came down from the ninth circuit on Friday, California’s Attorney General Kamala Harris began marrying couples — starting with Proposition 8 plaintiffs Kristin Perry and Sandra Stier.

UCLA estimates that 37,000 same-sex couples in California will get married in the next three years. 

Earlier on Friday, the Office of Personnel Management issued new guidance for “heads of executive departments and agencies” on how they should treat the gay and lesbian couples whose marriages are newly acknowledged as valid, thanks to the Supreme Court’s ruling that the Defense of Marriage Act is unconstitutional. Both situations underscore the immediate, life-changing impact that same-sex couples are experiencing in the wake of Wednesday’s decisions.

The contrast between California Attorney General Kamala Harris and Ken "Kookinelli" Cuccinelli could not be more stark: Harris supports modernity and equality while Kookinelli supports hate, ignorance and bigotry (all while likely tortured by self-loathing and secretly longing for some hot gay sex).

Gay Haters File Brief in Support of Proposition 8

The U.S. Supreme Court will hear oral arguments on March 26, 2013, in the appeal of the 9th Circuit Court of Appeals' decision upholding the striking down of Proposition 8 as unconstitutional.  Since the parties seeking the appeal file their brief first, a group of attorneys representing the anti-equality, gay hating petitioners today filed their legal brief with the Supreme Court.  The full brief can be found here.   Taken as a whole - and in an attempt to avoid face the fact that religious belief alone is what motivates their anti-gay animus - the anti-gay forces focus on the procreative aspects of marriage and, arguably make the case for eliminating marriage rights to the infertile and those past child bearing age.   Here's a summary of this argument:

Throughout human history, societies have regulated sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society.  In particular, an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers. Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and child rearing in the same way. The Equal Protection Clause does not require the State to ignore this difference.

The proponents of Proposition 8 likewise make it clear that they prefer majority mob rule which, if expanded to minorities besides gays, would leave the rights of minorities completely subject to the whims of of a hostile majority:

Redefining marriage would affect not only same-sex couples but all members of society. By adopting Proposition 8, the People of California demonstrated their belief that this matter is best resolved by the People themselves, not by their courts. The Equal Protection Clause does not prohibit the People of California – or of any State – from making this choice. To the contrary, it leaves them free to do what they are doing – debating this controversial issue and seeking to resolve it in a way that will best serve their families, their children, and, ultimately, their society as a whole.

And they are really pissed that the lower courts looked at the animus that motivates the drafters and proponents of anti-gay legislation and constitutional amendments like Proposition 8:

[T]he [9th Circuit] panel majority clearly erred in concluding that the People of California restored the traditional definition of marriage to express official “disapproval of [gays and lesbians] and their relationships.”  .  .  .  .  Nor does reserving the designation of marriage to committed opposite-sex couples “dishonor a disfavored group” or proclaim the “lesser worth [of gays and lesbians] as a class.”  .  .  .  .  .  The Ninth Circuit’s charge thus “impugn[s] the motives” of over seven million California voters and countless other Americans who believe that traditional marriage continues to serve society’s vital interests, . . . .

Let's be perfectly clear.  By their campaign in support of Proposition and the lies and animus that dominated the ads and propaganda in support of Proposition 8, the proponents of Proposition 8 made it abundantly clear that hate and animus motivated their actions.  Indeed, testimony in the district court trial underscored that religious based hate and bigotry were in the final analysis all that motivated the enactment of Proposition 8.  The arguments of these attorneys is little more than a sophisticated lie to protect religious based bigotry.

9th Circuit Stays California Ban on "Ex-Gay" Therapy During Appeal

As regular readers know, there are countless lies and untruths that the Christofascists and the professional Christian crowd disseminate about LGBT individuals.  But one of the most sick and cruel lies is the continued effort to keep alive the "ex-gay" myth which is used to (i) prey on religiously tormented gays and their parents who - often caring more about themselves than the welfare of their children - seek a "cure" for homosexuality, and (ii) try to convince ignorant politicians that gays need no legal protection since they chose to be gay.  Never mind that no "cure" for homosexuality exists and that every legitimate medical and medical association condemns "ex-gay" therapy, also known as reparative therapy.  in an effort to stop this form of child abuse, the state of California passed legislation that bars unscrupulous therapist form subjecting minors to this witch doctor like therapy.  Not surprisingly, the Christofacists have challenged the law in litigation now on appeal to the 9th Circuit Court of Appeals.  The Advocate looks at the appeal and the temporary stay of the law's effective date.  Here are highlights:

A federal appeals court ordered a hold on implementation of a California law that would have banned so-called ex-gay therapy on minors on Friday, reports CNN. The law, signed by Gov. Jerry Brown in September, was the first of its kind in the nation to prohibit licensed therapists from using the scientifically discredited practice that aims to change a person's sexual orientation from gay to straight. The law would have gone into effect January 1. 

The three-judge panel from the Ninth Circuit Court Of Appeals ordered an injunction Friday, stopping the law from taking effect until the case can be heard in future court hearings. A California district court ruling earlier this month exempted three therapists from adhering to the law, but allowed the law to move forward uninhibited. This ruling goes against that decision by a lower court. 

The California Attorney General's office, which supports the legislation, said it will fight to uphold the law.  

Liberty Counsel, a right-wing organization and party to the suit challenging the law, was elated with the injunction.  This law is an astounding overreach by the government into the realm of counseling and would have caused irreparable harm," said Liberty Counsel Chairman Mat Staver.

"Ex-gay therapy," sometimes called reparative therapy by its proponents, has been condemned by every major medical and psychological organization in the country as harmful and dangerous. "There has been no scientifically adequate research that therapy aimed at changing sexual orientation (sometimes called reparative or conversion therapy) is safe or effective," said the American Psychological Association. 

One can only hope that the 9th Circuit upholds the law and ends this form of insidious child abuse in California.

U. S. Supreme Court Fails to Identify Gay Marriage Case to Be Considered

There had been an expectation that the U.S. Supreme Court would identify today which, if any, of the gay marriage/DOMA appeals that have landed on its doorstep.  The expectation turned into additional waiting as the Court remained silent on these cases and those following the case will be waiting with baited breath to see if the Court will show its hand on Monday.   In some ways I can understand the Court's hesitation: no matter what it does, factions within America will be unhappy.  The Christofascists will rant against judicial tyranny if the Court upholds gay marriage and/or strikes down DOMA.  On a longer term, however, if the Court does not uphold a constitutional right to same sex marriage, they risk being viewed by history as being akin to the Justices who ruled against blacks in the infamous ruling in  Dred Scott v. Sandford, 60 U.S. 393 (1857), also known as the Dred Scott Decision.   For those who do not recall their American history, in the Dred Scott Decision, the Court held that the federal government had no power to regulate slavery in the territories, and that people of African descent (both slave and free) were not protected by the United States Constitution and were not U.S. citizens.   In short, with the younger generations being supportive of gay marriage  by significant majorities, it is virtually guaranteed that over time any Justice ruling against marriage equality will be viewed by history as a bigoted monster.  One has to wonder whether this is the type of legacy far right blow hards like Antonin Scalia to be how they are remembered by posterity.  A piece in SCOTUS Blog looks at this dilemma facing the justices.  Here are highlights:

These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

The cases present a profound test of the Justices’ judgment. The plaintiffs’ claims are rooted in the fact that these laws rest on an irrational and invidious hatred, enshrined in law. On the other hand, that describes some moral judgments. The Constitution does not forbid every inequality, and the people must correct some injustices (even some grave ones) themselves, legislatively.

The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.

The painful but sometimes unspoken truth is that seminal Supreme Court rulings sometimes reflect the era in which they were decided. In 2012, it is ridiculous to believe that the government could ban inter-racial marriage. But that was the law in much of the country for most of its history. In fact, it was a serious argument, and there were a number of similar laws on the books, when the Court declared them unconstitutional in 1967 in Loving v. Virginia. Society moved over the course of our history, and so did the Court’s understanding of the Constitution.

[T]he arc of history tilts towards equality and justice, and our society is rapidly but unevenly coming to the judgment that same-sex marriage is just and right. The claims presented by this case would just as inevitably prevail (probably by a wide margin) in the Supreme Court twenty years from now. By then, it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational. Our attitudes are shifting that fast.

Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”.

But the verdict of history cannot decide the legal questions presented by these cases. The cases arrive today, in this moment, before our cultural transition has completed. In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims. But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future. They will have to make a judgment now.

One option that the Court could decide to pursue is to hear none of the cases.  This would by default restore same sex marriage to California via the 9th Circuit's ruling and and leave the 1st and 2nd Circuit rulings against DOMA standing, although this latter option would leave potential chaos on a number of issues impacted by DOMA.   I'm sure that perhaps four of the Justices may not care if they are viewed as horrible individuals by history.  The question becomes whether five Justices do want to be viewed as having been on the right side of history.