This diary represents an ongoing attempt by those of us here with an interest in the subject to review the week that was with respect to activity on the front of marriage equality.
And what a week it has been. Scroll past the break and let's see what this week has brought us.
As most of us here know, three different federal appeals courts, the Fourth, Seventh and Tenth, have upheld lower-court rulings which found states' marriage equality bans to be unconstitutional. The most recent and perhaps most spectacular ruling was issued last Friday in a unanimous decision, written with great flair and distinction by Judge Richard Posner, upholding decisions that affected marriage equality bans in Indiana and Wisconsin. The followup from that ruling was instantaneous with attorneys general from both states almost immediately filing requests for certiorari with the Supreme Court even though the appeals court has not yet issued its mandate (separate from the decision, mandates typically issue within 21 days).
Monday began in San Francisco at the Ninth Circuit Court of Appeals where a three-judge panel heard challenges--in three consecutive hearings--to marriage equality bans in the states of Idaho, Nevada and Hawaii.
Hawaii: Jackson vs Abercrombie
Nevada: Sevcik vs Sandoval
Idaho: Latta vs Otter
Of the three, Jackson vs Abercrombie, Hawaii's challenge, is probably the least interesting. Although the federal district court ruled, in 2012, that Hawaii's statutory ban on marriage equality was constitutional, that ruling was handed down prior to the issuance of US vs Windsor in June of last year. More significantly perhaps is the fact that Hawaii legislated marriage equality last fall. And while homophobic state senator Bob McDermott has filed suit, claiming that a state constitutional amendment passed 1998 that gave the state legislature the final say as to whether marriage equality should be permitted there was in fact an actual constitutional ban on marriage equality which the legislature impermissibly ignored, the suit is given little likelihood of success. The upshot is that Jackson is likely to be ruled moot.
The other two cases were more interesting, not least because both were argued by the same attorney, Monte Neil Stewart. Consensus has been overwhelming that the justices were, to put it charitably, less than impressed with Stewart's arguments during both proceedings. One of the more notable points occurred when Judges Stephen Bernhardt and Marcia Berzon essentially asked the plaintiffs' attorneys on what basis they would like to see a favorable decision rendered--whether they'd prefer a "fundamental rights" or a "equal protection" basis. The attorneys replied that they didn't care as long as they won. At several points, Stewart managed to forget which case he was arguing, which probably did not make a good impression before the judges.
A great deal has been written about those hearings; perhaps the best analysis comes from Towleroad's Ari Ezra Waldman, which you can read here.
Probably the BIGGEST story of the week on the marriage equality front was the news that the Supreme Court had scheduled all of the seven current petitions for cert to be considered at their first conference, which takes place on Monday, September 29, one week before the Court begins the 2014-2015 session. The seven petitions include three different ones from Virginia as well as one each from Oklahoma, Utah, Indiana and Wisconsin. The different cases, although fairly similar in principle, are noteworthy for addressing different aspects of the marriage equality issue, including a state's right to define marriage in an exclusionary manner, the basis on which the right to marriage should be adjudicated, and whether laws which classify based on sexual orientation should be subjected to heightened scrutiny. There is the added aspect that, where challenges to marriage equality bans have been upheld, the ruling has often cited 1972's Baker vs Nelson. Most on the side of marriage equality and even many who are opposed to it would likely accept the notion that because of subsequent doctrinal developments, Baker no longer holds any precedential value. For those new to discussion, Baker was not a formal opinion; it is instead a relic of previous rules of procedure which required in effect that all cases submitted to it be granted certiorari but allowed some to be dismissed without comment. Baker was dismissed in 1972, "for want of a substantial federal question." Given subsequent developments and in light of the Court's own ruling in Windsor it seems improbable that anyone could seriously claim the issue of marriage equality does not involve a substantial federal question. Of course it is possible that the court will chose not to take any action on any of the cases already brought to it and either continuing to list them for consideration or else deny cert outright on them all. The latter would have the effect of implementing marriage equality in all three circuits. That would come about directly in Utah, Oklahoma, Indiana, Wisconsin and Virginia and would also control lower court decisions in cases currently being argued in the remainder of each circuit. it would also send a rather strong message to remaining circuits that the Supreme Court is disinclined to overturn rulings that end marriage equality bans in other circuits. However it would also create a situation where marriage equality bans are null and void in some states but not in others and would continue to legal patchwork that currently exists. Just think about it if you will: You and your spouse are traveling from Illinois to Kentucky. One one side of the Ohio River you're married; on the other side you're legal strangers. Doesn't make any sense at all now does it? For that reason I strongly suspect that the Court will ultimately grant cert in at least one of the cases and possibly in all of them; at that point presumably any further litigation in states not directly involved in the current cases (excepting certain emergency or "as-applied" situations, two of which are discussed below) will be placed on hold pending the Court's final decision.
In conjunction with the above grouping of cases, the mother of a deceased gay man in Alabama has filed an amicus brief supporting the state of Utah's request for cert in Kitchen vs Herbert. The man's surviving spouse is currently challenging Alabama's two marriage equality bans: the statutory "Marriage Protection Act" as well as the corresponding state constitutional amendment, ironically known as the "Sanctity of Marriage Amendment." For the record I somehow doubt the legislators or voters of Alabama experienced any sense of irony when approving those laws. The name of this case which is currently being litigated at the district court level is Hard vs Bentley. Paul Hard and Charles David Fancher were legally married in Provincetown, MA in May of 2011; unfortunately Fancher was killed in a car accident only weeks later. Mr. Hard, quite reasonably, as Fancher's spouse, wants to be treated as such in settling Fancher's estate but Fancher's mother who describes herself as "devoutly Christian" is contesting Hard's status. She "doesn't want Hard involving her son's name in the fight for same-sex marriage" because apparently that's HER job.
Also in conjunction with the seven cases now before the Supreme Court but separate from them, the state of Indiana as agreed to recognize the marriage of a lesbian couple, one spouse of which is suffering from terminal ovarian cancer. The couple had sued for recognition of their valid Illinois marriage; it appears that this particular litigation is separate from the cases currently before SCOTUS.
In addition to the cases heard by the Ninth Circuit Court of Appeals on Monday, today in the US District Court of Arizona (also within the Ninth), an emergency hearing is taking place challenging Arizona's marriage equality ban as applied to the case of Fred McQuire and George Martinez. Fred and George, a couple for 45 years and both veterans, had been together since 1969. In 2011, George was diagnosed with Stage IV prostate cancer; earlier this year he was diagnosed with Stage IV pancreatic cancer. They were legally married in July; George passed away at the end of August. Of course, given Arizona's marriage equality ban, the state considers them legal strangers. Fred has financially dependent on George and on George's benefits. Because of the situation described below and because the state of Arizona considers married gay couples to be legal strangers, Fred is now essentially destitute. Lambda Legal is seeking a temporary junction requiring the state to recognize their marriage so that Fred will be eligible for survivor benefits. Here is a link to the court filing.
As is only to be expected in the Republican-dominated House, on Wednesday, the House Committee on Veterans Affairs refused to vote favorably on the Veterans' Spouses Equal Treatment Act, which would have recognized place of celebration rather than place of domicile as the basis for awarding veterans' benefits. (This nasty move has been diaried already but I thought it appropriate to include it again here.)
It's being reported that since marriage equality came to New Mexico late last year, no less than 55% of marriages being celebrated in that state have involved gay or lesbian couples.
Finally, in the department of not-knowing-when-to-take-a-hint, on Wednesday the National Organization for [their definition of] Marriage filed a request for an en banc hearing at the Ninth Circuit after having been refused the right to intervene in the Oregon marriage equality case. In Geiger vs Kitzhaber, the state of Oregon refused to defend that's state's marriage equality ban in court with the result that a district court decision earlier this year overturning the ban was not appealed and same-sex marriages are currently taking place in Oregon. NOM has attempted unsuccessfully to intervene in the case multiple times. They couldn't even manage to obtain a stay of the lower court ruling by going to the Supreme Court.
My prediction is that, one way or another, they'll be told to take a hike. They keep claiming they represent people who might have had standing to intervene (if they had done so in a timely manner) but who have never themselves come forward to identify themselves. I would almost be willing to bet that, as is their custom, NOM is making up their assertions out of whole cloth. They have proven themselves time and again to be utterly shameless in lying--even under oath--and in refusing to comply with court decisions that didn't go their way.
As seems to be the case lately there is so much going on in the area of marriage equality I've undoubtedly left out something important. I won't be at all offended if other items are mentioned in the comments.