It's been a busy week, with court proceedings in Colorado and Utah and anticipation of action from the Fourth Circuit with regard to the Virginia case.
If we're looking at court activity, it's probably best to arrange this by Circuit Court, the appellate level from which the cases that will probably result in the complete repeal of DOMA will emerge. Thus, we will not be discussing developments from the First, Second and Third Circuits, because all the states served by those courts (the six New England states, New York, New Jersey, Delaware, Maryland and Pennsylvania) allow same-sex couples to marry.
This week, the action has been in the Fourth and the Tenth Circuits, with some state activity in the Eleventh Circuit. In the Fourth Circuit, we're playing a waiting game (incidentally, the diary on this comes up third on a google search for "Fourth Circuit Marriage Equality"). From equalityontrial.com:
Bostic v. Schaefer, the challenge to Virginia’s same-sex marriage ban being litigated by Ted Olson and David Boies for the American Foundation for Equal Rights (AFER), was argued on May 13. The Fourth Circuit reportedly has the fastest turnaround rate for decisions after oral arguments, so it appears a decision could come down any day. Challenges in some other states within the Fourth Circuit have been put on hold in their respective district courts until the decision in Bostic is released. The Fourth Circuit consists of Maryland, Virginia, North Carolina, South Carolina, and West Virginia.
In the
Tenth Circuit, we have action from Utah and from Colorado. The news from Utah that state Attorney Genral Sean Reyes decided to skip a full
en banc hearing so that the case could be appealed directly to the Supreme Court
isn't really surprising, unless you expected the Republicans to try to stall the decision. What this means in practical terms is that, ESPECIALLY if the Fourth Circuit decision is announced before the end of July, the Supreme Court will get the cases that ask for the repeal of DOMA in full for the 2014-2015 season. The worse that will happen if the two opinions agree is that the Court will refuse to grant cert on the cases, but, since it only takes four votes to grant cert (IANAL), I don't see that happening.
Especially because of what just happened in Colorado. This is a state that already has civil unions. As a result of the Tenth Circuit decision discussed above, county clerks in Colorado's bluest counties began to issue marriage licenses to same-sex couples, which brought about a stay from the state's Attorney General, John Suthers. As diaried here, a state judge in Adams County and Denver County has denied the Attorney General's request, writing
The court holds that the Marriage Bans violate plaintiff's due process and equal protection guarantees under the Fourteenth Amendment to the U.S. Constitution. The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory nature of the Marriage Bans.
A similar decision was issued with respect to Boulder County yesterday.
In other news, Scott Walker's appeal of a federal court decision in favor of marriage equality in Wisconsin has reached the Seventh Circuit, and the same court has fast-tracked the three marriage equality cases from Indiana. Hearings on the issue of marriage equality have also begun in Florida, and this week saw the first editorials on the subject in Florida newspapers. Rather than try to summarize them, let me introduce you to Steve Rothaus, who writes the gay South Florida blog for the Miami Herald. Today he gave his space to Michael Putney, the senior political reporter from WPLG, an ABC affiliate for a post called "Lawsuit not about gay marriage — the fight is for marriage equality" in which he evaluates the state's constitutional amendment limiting marriage to a man and a woman:
If two people of the same sex love each other and choose to put their lives together as a married couple, why should the state prevent it? As Pope Francis said of homosexuals, “Who am I to judge?”
The judgmental should have a serious talk with the six same-sex couples who are the plaintiffs in the lawsuit before Judge Zabel. These are thoughtful, accomplished men and women who have made loving, lifetime commitments to each other and want their unions to be recognized by the state and to enjoy the benefits flowing from that. The plaintiffs were chosen well, the perfect poster couples for gay marriage. Most of have been together for many years; several are raising adopted children. As their attorneys noted in oral arguments, if the state recognizes their legal right and ability to adopt and raise children, then the state should also recognize their right to wed.
Judge Zabel should rule in their favor. Her questions in court indicated that she has read all the previous court decisions on this issue. I don’t see how she can allow Florida’s ban to stand. And if she does, then the Third District Court of Appeal will strike it down.
Perhaps that’s why the people who support the state’s same-sex marriage ban seem so desperate, so angry, so hurt. Listening and talking to them in the courthouse before the hearing and outside afterward, it’s clear that they see same-sex marriage as deeply offensive. Unnatural. Un-Godly. And an affront to their own marriages. It is their right, of course, to think so.
They also have a right to question why a judge can set aside a referendum approved by 62 percent of Floridians. But majority rule is not always constitutional rule. The question Florida voters were asked in 2008 simply violates some basic tenets of American life and jurisprudence: that all people must be treated equally under the law and receive due process. Gays and lesbians have been denied both in Florida when they tried to get married.
Judge Zabel can remedy that, and here’s hoping she will — and that the Third DCA upholds her along with the Florida Supreme Court.
The question truly is no longer about gay marriage. It’s about marriage equality.
There were also diaries this week about NOM and the like. Dustbin of history for those critics.
UPDATE, 12:39 PM, PDT: Weekly series, yes. librarisinginsf and I are hoping we won't be the only ones writing this. So, in the manner of This Week in the War on Women, this is an appeal to the people who are interested enough in the subject to have written about it to take a week every so often. I'll be at NN 14 next Friday so I CAN'T. If you'd like to write one of these, please tell us in the comment section.