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.

 

Ninth Circuit's Application of Heightened Scrutiny for Sexual Orientation Will Stand

It what could spell the death knell for many anti-gay laws in nine western states, the ruling in SmithKline Beechum Corp. v. Abbott Laboratories will not be appealed which means that the Ninth Circuit ruling applying heightened scrutiny to laws targeting gays will be the new applicable standard.  The case has already had a big impact in the form of the State of Nevada's decision not t o defend that state's anti-gay marriage amendment.   Hopefully, there will now be a domino effect throughout the rest of the Ninth Circuit states shown in the map above.   Indeed, any attorney general in those states who now argues against such amendments based on the rejected arguments used in Virginia and elsewhere at the District Court level would be technically guilty of an ethical violation.  This is a huge development.  Imagine same sex marriage coming to Idaho, Montana, Arizona and Alaska sooner rather than later. Here are some highlights from and HRC release:

In January, the U.S. Court of Appeals for the Ninth Circuit ruled in a pharmaceutical contract dispute, *Abbott Laboratories v. SmithKline Beecham,* that it violates the U.S. Constitution's guarantee of equal protection to exclude someone from jury service because of his or her sexual orientation. In doing so, the court also concluded that discrimination based on sexual orientation should be subject to heightened scrutiny, a higher standard of judicial review that requires a stronger justification for laws and policies that treat gays and lesbians differently. Only days after the Ninth Circuit's decision, the Attorney General of Nevada ended the state's defense of its marriage ban in another case before that court, concluding that Nevada's justifications for excluding same-sex couples from marriage could not withstand that higher level of review.

"AbbVie's decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans," said HRC President Chad Griffin. "We thank the company for standing on the right side of history." 

BuzzFeed has an article that looks at some of the implications.  Here are excerpts:

The major victory for LGBT advocates announced by the Human Rights Campaign actually played out in a dispute between two pharmaceutical companies, SmithKline Beecham and Abbott Laboratories, and involved whether gay people could be kept off a jury in a trial involving HIV drugs.

The 9th Circuit Court of Appeals — whose decisions apply to all federal courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington — said no. In doing so, however, Judge Stephen Reinhardt wrote a decision that could have wide-ranging and long-lasting effects on LGBT rights more broadly — from marriage to employment and beyond.

While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny — under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution (and applied to the federal government through the 5th Amendment) — must show more. Some, like those that classify based on race, must show a compelling state interest for classifying people, while others, like those based on sex, must show an important state interest in doing so.

Even before the question of whether Abbott would seek further review of the January decision was resolved, the decision started to have ripple effects. On Feb. 10, Nevada Attorney General Catherine Cortez Masto announced that she and her client, Gov. Brian Sandoval, would no longer be defending Nevada’s amendment banning same-sex couples from marrying on appeal in the 9th Circuit — in large part based on the fact that they did not believe their appeal would succeed if the amendment had to withstand heightened scrutiny.

Here in Virginia, the ruling in SmithKline played a role in Attorney General Mark Herring's decision not to defend Virginia's anti-gay Marshall-Newman Amendment.  With Bostic v. Rainey on appeal to the 4th Circuit, hopefully that Court of Appeal will be influenced by the 9th Circuit's ruling.

 

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."
 

Is Nevada AG Preparing to Drop Defense of Nevada Gay Marriage Ban?

While Virginia Republicans and self-styled conservatives (i.e., would be KKK members) continue to hyperventilate and convulse over Mark Herring's decision to not defend Virginia's gay marriage ban, there are indications that perhaps Nevada's Attorney General, Catherine Cortez Masto, may be considering a similar change in direction in the wake of the 9th Circuit Court of Appeals recent ruling on the application of heightened scrutiny to anti-gay legislation and policies.  Contrary to what members of the Virginia GOP want to believe, recent court rulings are cutting off the supposed justifications for gay marriage bans at the knee cap.  Moreover, as the briefs in Bostic v. Rainey set forth, the real motivations for these bans was anti-gay animus - something the U.S. Supreme Court slammed in United States v. Windsor as insufficient to support laws that further anti-gay discrimination.  RGJ.com has details on this shifting position in Nevada.  Here are highlights:

Nevada Attorney General Catherine Cortez Masto said Friday she will reconsider a brief she filed earlier this week defending Nevada’s gay marriage ban, saying her constitutional arguments are “likely no longer tenable” in light of a 9th U.S. Circuit of Appeals opinion finding it unconstitutional to exclude jurors based on sexual orientation. 

On Tuesday, Masto, a Democrat, filed the brief on behalf of Republican Gov. Brian Sandoval defending Nevada’s gay marriage ban, which is being challenged in a lawsuit filed by Lambda Legal Defense and Education Fund on behalf of several same-sex Nevada couples.

On Friday evening, Masto released a statement saying she is reviewing the brief in light of the 9th Circuit’s opinion in SmithKline Beechum Corp. v. Abbott Laboratories.

“The Ninth Circuit’s new decision…appears to impact the equal protection and due process arguments made on behalf of the state,” Masto said in the written statement. “After careful review of the SmithKlinedecision these arguments are likely no longer tenable in the Ninth Circuit.

“This office will conduct further review over the weekend in order to evaluate the state’s argument in light of SmithKline.We will be discussing this with the Governor’s Office next week.”

Despite the demands of Christofascists and their political whores in the GOP, attorneys, including state attorney generals, cannot ethically argue cases when they believe governing case law makes their arguments little more than an attempt to deceive the Court hearing the case.  I suspect e will be seeing more and more honest and ethical state AG's refusing to defend gay marriage bans.