With the recent developments in marriage equality over the last few weeks (the stay in Virginia, the upholding of marriage bans in Louisiana, the Seventh Circuit's evisceration of Wisconsin and Indiana), I'd been checking NOM's blog frequently, eagerly looking for the next apoplectic condemnation of a judge who interprets the Constitution correctly. Interestingly, the condemnatory press release that they put out when something doesn't go their way have recently been few and far between. This trend that I've noticed actually started in June, but now it's turned into so much of a pattern that it suggests a broader agenda at play.
What they have reported
In Tennessee, a state judge upheld the state's marriage ban, which broke the overall winning streak in the courts since Windsor. NOM was obviously quite pleased.
On August 12, they said this:
The National Organization for Marriage (NOM) today praised a state judge in Tennessee who ruled last week that the Tennessee state constitutional amendment defining marriage as the union of one man and one woman does not violate the federal constitution. He is the first judge to uphold the constitutionality of a state marriage amendment since the US Supreme Court issued their 2013 opinion striking down a section of the federal Defense of Marriage Act.
"It is refreshing to find a judge who is willing to apply the federal constitution as it is and not reinterpret the constitution so as to redefine marriage," said Brian S. Brown, NOM's president. "Judge Russell Simmons is exactly correct when he says that there is nothing about the US Supreme Court's Windsor decision that would invalidate the right of Tennessee voters to define marriage as one man and one woman or require the state to recognize a same-sex ceremony performed in another state."
From
August 15:
In this week's marriage news, the big story is a big win from the courts in Tennessee.
A Tennessee state judge has ruled that the state's constitutional amendment defining marriage as the union of one man and one woman—which was passed by an 81 percent majority of voters in 2006—does not violate the United States Constitution.
In his ruling, Judge Russell Simmons found (correctly) that the Windsor decision from the Supreme Court does not demand that states' marriage laws be overturned[.]
From
August 21:
Much, much more importantly, we recently won a case at the lower level in Tennessee! You might not know about it because the media is doing everything it can to ignore the facts, but Roane County Circuit Judge Russell E. Simmons, Jr., of Kingston, Tennessee ruled that "neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state's responsibility."
In addition, he correctly commented on the Supreme Court's Windsor decision of last summer, saying that the "Supreme Court does not go the final step and find that a state that defines marriage as a union of one man and one woman is unconstitutional. Further, the Supreme Court does not find that one state's refusal to accept another state's valid same-sex marriage to be in violation of the U.S. Constitution."
Another event that looks to pose a problem for us is the oral arguments heard in the Sixth Circuit on August 6. The general consensus is that at their end, the three-judge panel was leaning towards upholding the bans in Michigan, Ohio, Kentucky and Tennessee.
This was good news for NOM. On August 15, they said:
Last week, I highlighted the news about the 6th Circuit Court of Appeals hearing of challenges to the marriage laws of Ohio, Michigan, Tennessee, and Kentucky.
You'll recall that even the biased Washington Post admitted about the hearings that, "It became clear after three hours of arguments that the [three judge] panel could become the first roadblock for proponents of same-sex marriage."
For all our opponents' insistence that same-sex marriage is "inevitable," the truth of the matter couldn't be clearer: they know, just as well as we, that the future of marriage in the courts is still very much up for grabs.
Now we move to Virginia. Marriage equality almost came to the state on August 21, but after a formal request from Prince William County Clerk Michele McQuigg as well from Attorney-General Mark Herring, the Supreme Court stayed the Fourth Circuit's ruling. (Herring wants the ban struck down, but doesn't want same-sex couples to marry if there's a chance that it could be reinstated.)
On August 20, they said:
"We are pleased that the US Supreme Court has put a halt to the decision in Virginia redefining marriage in violation of the state’s marriage amendment overwhelmingly approved by voters. We had called upon the Court to take this step and are gratified that they will now be able to carefully consider the issues. This is another indication that the rush to judgment declaring marriage to be unconstitutional is not only premature, but incorrect. The US Supreme Court has determined that states have the right to define marriage and we remain confident that they will uphold all the various traditional marriage laws and constitutional amendments that have been wrongly invalidated by federal judges. We look forward to the US Supreme Court taking one or more of the three marriage cases now pending before them, and ultimately ruling that defining marriage as the union of one man and one woman is entirely constitutional."
From
August 21:
Great news!
Yesterday, the US Supreme Court intervened to grant a stay — a delay in the implementation of a lower court's ruling pending legal appeal — in Virginia, halting the redefinition of marriage in its tracks in the Old Dominion!
The justice in charge of reviewing petitions in the 4th circuit (Justice Roberts) referred the matter to the full court. And once again — just as was the case in Utah earlier this year — there was no dissent from a single justice in granting the stay!
Let me remind you that one of the conditions for overturning a lower court's decision in granting a stay is the reasonable expectation of victory on appeal!
Also occurring recently was North Dakota's filing of their brief defending their gay marriage ban in the lawsuit seeking its invalidation. The crux of the argument is basically that it's not possible to allow both gay and straight marriage. (For reasons that I obviously don't need to explain, that's absurd.)
But it's obviously no deterrent from NOM jumping all over it. From August 27:
I'll refer your attention to the recent legal filings in North Dakota by the Governor and Attorney General and their powerful and compelling legal arguments in defense of marriage.
In their briefs, they point out that "this case involves two mutually exclusive and profoundly different marriage institutions, marriage institutions that serve separate, distinct, and conflicting societal purposes."
[...]
This is exactly correct. Redefining marriage to include homosexual couples isn't simply adding a parallel institution that won't alter or interact with marriage — it fundamentally changes marriage and makes it an inherently genderless institution.
From
August 29:
In contrast to Oregon, we have the example of the leaders in North Dakota. Like so many other states, North Dakota's marriage amendment defining marriage as the union of one man and one woman is under attack in federal court.
But the actions of the Governor and Attorney General in defense of the law have been exemplary to this point. They recently filed a response to the plaintiffs' motion for summary judgment in the case that outlines — brilliantly — so many of the critical and compelling arguments in defense of marriage.
Finally: in Louisiana, District Judge Robert Feldman recently upheld the state's marriage ban.
The ruling is extremely problematic, and suggests that this is what he wanted from the start.
But once again, NOM doesn't mind. From September 3:
The National Organization for Marriage (NOM) today praised federal court Judge Martin Feldman for ruling today that the US Constitution does not preclude the state of Louisiana from defining marriage as the union of one man and one woman, and that voters made a rational decision in doing so when they adopted the state's marriage amendment. Feldman becomes the third federal judge to have ruled that traditional marriage laws are not unconstitutional, and the first since the US Supreme Court issued their decision invalidating a section of the federal Defense of Marriage Act .
[...]
"Here we see the house of cards collapsing that supported the myth that redefining marriage is inevitable," said Brian S. Brown, president of the National Organization for Marriage. "This decision by Judge Feldman in Louisiana is a great win for the cause of marriage, coming as it does on the heels of other pro-marriage court victories, that puts the lie to the claim that it is inevitable the US Supreme Court will redefine marriage. To the contrary, we believe they will leave this issue with the states."
[...]
"Judge Feldman has authored a powerful opinion that points the US Supreme Court in the direction of upholding state marriage laws and constitutional amendments," Brown said. "He finds what should be obvious to everyone, that states have a legitimate concern in 'linking marriage to children with intact families.' It is perfectly appropriate for voters to determine if they wish to decide for themselves whether they wish to redefine this age-old institution that has served society so well. Overwhelmingly, voters have rejected redefining marriage, and we expect the US Supreme Court to do so as well."
From
September 5:
Earlier this week, a federal district judge in Louisiana issued a key decision finding that the marriage amendment passed in 2004 by 78% of the voters of that state does not run afoul of the U.S. Constitution's guarantees of Equal Protection and Due Process. Accordingly, Judge Feldman ruled against the several plaintiffs' claims that the amendment is unconstitutional.
This is a major victory for marriage that should be celebrated.
What they haven't reported
Lost in these giddy celebrations for their handful of recent developments against marriage equality are all the developments for it. We begin in Colorado.
The Tenth Circuit issued its ruling striking down all bans on same-sex marriage within its jurisdiction on June 25 this year. The ruling was stayed pending petition for writ of certiorari from the Supreme Court. Nonetheless, in Colorado, Boulder County clerk Hillary Hall began issuing marriage licenses to same-sex couples, arguing (dubiously) that the stay only applied to Utah.
NOM's track record would suggest that they would fiercely condemn this, especially considering their hysterical reactions in Pennsylvania and New Mexico (though in the latter, no laws were actually broken).
But what about this case? Crickets.
What about when a Boulder County court refused to order Hall to stop? Nothing.
What about when the clerks in Denver and Pueblo Counties joined Hall in issuing the licenses? Nothing.
What about when the Colorado Supreme Court finally ordered them to stop, over a month after it started? Nothing.
But the developments in Colorado don't end there. On July 9, Judge Scott Crabtree in Colorado's Seventeenth Judicial District struck down the state's ban, staying the ruling pending appeal. To add insult to injury, he cited civil unions as evidence of a separate and unequal system for same-sex couples (but it's important to note that this wasn't the ultimate reason). This bites as NOM had worried about this when they urged opposition to civil unions on Colorado.
Then, on July 23, federal district judge Raymond Moore struck down the state's marriage ban for the entire state. The ruling was stayed until August 25, but the Tenth Circuit extended the stay after the Supreme Court issued a stay in Virginia. Once again, all that we got from NOM was radio silence.
Now we move to Florida. A number of lawsuits have been filed here. Four state courts have struck down their marriage bans, and the stay in Broward County has actually expired. The clerk there is considering issuing marriage licenses, but there is a question surrounding this as the ruling did not order any action. Then, on August 21, a federal district judge in Florida struck down the state's ban, and stayed the ruling pending appeal to the Eleventh Circuit. Once again, NOM has not responded.
Finally, we move to Chicago. You'll remember when the Seventh Circuit heard oral arguments in the case of Wisconsin and Indiana's marriage bans, and how the judges openly ridiculed the states' arguments in favor of the bans. But unlike in the Sixth Circuit, NOM did not comment on the oral arguments. I'm guessing that's because they lost.
Their bad news they have reported
NOM has reported two pieces of good news (for us) recently: the Ninth Circuit denying their motion to intervene in Oregon, and the Seventh Circuit's ultimate ruling against the marriage bans of Wisconsin and Indiana.
They've got nothing to lose by reporting the events from the Ninth Circuit. This was not a judgement on the merits, and will have no role in determining how the Supreme Court ultimately rules. And the news out of the Seventh Circuit was too big to be ignored, especially because of Judge Posner's artful, eloquent but nonetheless absolute evisceration of the bans.
So I've convinced that NOM is keen to not report news that suggests that they are losing. It's probably the only way that they can get their followers to keep going. If you got your news from only their blog, you would not know about everything else that's happened that works against them. And I think that that's the way they want it.