GODLESS WEDNESDAY: Supreme Court Hears Oral Arguments Today in Church-State Separation Case

Today the United States Supreme Court is hearing oral arguments in an important case involving the separation of church and state. The case is The American Legion v. American Humanist Association and involves a 93-year-old World War 1 memorial called the Bladensburg Peace Cross erected on public lands and maintained using public funds in Bladensburg, Maryland.

The questions before the Court are:

(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

NPR's Nina Totenberg claims that the Court is expected to reverse the 4th Circuit's holding that the monument has the "primary effect of endorsing religion and excessively entangles the government in religion." The real question is how far will the Court's conservative majority go in dismantling the wall between church and state in this case?

Hat/tip to SCOTUSblog

Washington State Supreme Court Abolishes Death Penalty!

There are now twenty states that do not have the death penalty! Last week, the Washington State Supreme Court declared that state's death penalty unconstitutional in State v. Gregory, saying:

The death penalty is invalid because it is imposed in an arbitrary and raciallybiased manner. While this particular case provides an opportunity to specificallyaddress racial disproportionality, the underlying issues that underpin our holding are rooted in the arbitrary manner in which the death penalty is generally administered. As noted by appellant, the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant. The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution.

The ruling is based entirely on the State constitution so it is not appealable to, or dependent on, the United States Supreme Court.

Hat/tip to ACLU

Queer Quote: Indian Supreme Court Invalidates Sodomy Law (Finally)

In a victory for tens of millions of LGBT individuals, the Supreme Court of India has finally invalidated India's colonial-era sodomy law, decriminalizing homosexuality and ruling that discrimination on the basis of sexual orientation is illegal in a near 500-page decision.

The battle to have Section 377 of the Indian Penal Code struck down has taken decades. In 2009, the Delhi High Court ruled the nation's sodomy law unconstitutional but the ruling was appealed to the highest court in the land even though the Indian Government agreed to abide by the decision in 2012. Then in 2013 that Court upheld the law in a shocking ruling that maintained the ban on "carnal intercourse against the order of nature." However, the Court agreed to re-hear that decision in 2014 and today's result follows that litigation.

The opinion is quite comprehensive and ends with some stunning conclusions:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual
sexual conduct between adults of the same sex, is unconstitutional;
(ii) Members of the LGBT community are entitled, as all other citizens, to
the full range of constitutional rights including the liberties protected by
the Constitution;
(iii) The choice of whom to partner, the ability to find fulfilment in sexual
intimacies and the right not to be subjected to discriminatory behaviour
are intrinsic to the constitutional protection of sexual orientation;
(iv) Members of the LGBT community are entitled to the benefit of an equal
citizenship, without discrimination, and to the equal protection of law;
and
(v) The decision in Koushal stands overruled.

This an amazing victory for sexual minorities! Note the highlighted section which indicates that the ruling goes far beyond just striking down sodomy laws (like 2003's Lawrence vs Texas).

Today's Queer Quote is from Jessica Stern of OutRight Action International (formerly the International Gay and Lesbian Human Rights Commission), who reacted to the ruling by saying, "The sodomy law that became the model everywhere, from Uganda to Singapore to the U.K. itself, premiered in India, becoming the confusing and dehumanizing standard replicated around the world [and] today’s historic outcome will reverberate across India and the world."

Woo hoo!

GODLESS WEDNESDAY: Alabama Wants To Amend State Constitution To Allow Ten Commandments On Public Land

LOL here we go again! Today's Godless Wednesday is about a red state again trying to force religious views on everyone else. The Alabama legislature is considering a state constitutional amendment which would allow the erection (sic) of religious displays on government-owned property in the guise of religious freedom.

Here is the text of the language Alabama voters will see:

Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged  [emphasis added]. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment. 

The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.

The bill (SB 181) passed the state house 66-19 and the state senate (22-3). The amendment has now become an issue in the Alabama gubernatorial race with candidates trying to position themselves as the most in support of enhancing the place of religion in the public square.

It looks to me as if it is masquerading as a religious freedom amendment since it is odd that the phrase "The Ten Commandments" would need to appear three times in an actual religious freedom amendment. What do you think?


Hat/tip to Friendly Atheist.

QUEER QUOTE: 2nd U.S. Circuit Court Rules 10-3 That Sexual Orientation Is Covered Under 1964 Civil Rights Act

Wow! There's been a big ruling from a federal appellate circuit court articulating an interpretation of federal law that I have been advocating for for over 2 decades. The 2nd U.S. Circuit Court of Appeals ruled 10-3 in Zarda v. Altitude Express in a rare en banc decision that sexual orientation is covered under the 1964 civil rights prohibition against sex discrimination in Title VII. In the words former Vice President Joe Biden would say, this is a "big ******* deal."

An excerpt from the  Zarda decision is today's Queer Quote:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

To me this has been an obvious constitutional interpretation for decades and should have been part of the legal reasoning for why same-sex marriage is required under the constitution (in addition to being sex discrimination, traditional marriage laws are also sexual orientation discrimination). Judge José Cabranes pointed this out by concurring in the judgement of the majority with this brief decision (given here in its entirety):

This is a straightforward case of statutory construction. Title VII of the Civil Rights Act of 1964 prohibits discrimination “because of … sex.” Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of his sex, and is prohibited by Title VII.

That should be the end of the analysis.

Interestingly, the second circuit is now the second federal appellate court to rule in favor of gay rights being civil rights, while previously the 11th U.S. Circuit Court of Appeals had ruled the other way last year.

The 1964 Civil Rights Act is one of the most hallowed achievements of the Civil Rights era so it is quite exciting that judicial statutory interpretation is growing on the side of inclusion of gay rights

Exciting news!

Today Is #LovingDay: 50th Anniversary of Nationwide Interracial Marriage Legalization

As someone in an interracial same-sex marriage who has taught students the details of the landmark 1967 U.S. Supreme Court case Loving v. Virginia  several times I can't let today go by without acknowledging that it is the 50th anniversary of the release of that unanimous ruling striking down laws banning interracial marriages (because such statutes seek to maintain "White Supremacy").

Happy #LovngDay!

Today is Women's Equality Day! 95th Anniversary of Women's Right To Vote!

Celebrate! Today is August 26th, also known as Women's Equality Day, celebrating the 95th anniversary of the ratification of the 19th Amendment to the United States Constitution, which expanded the franchise to include women.

The measure was actually ratified on August 20, 1920, and reads:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.Congress shall have power to enforce this article by appropriate legislation.

Oh, happy day!

SCOTUS Says Oral Argument Date For April 28 In Marriage Equality Cases

The United States Supreme Court has set the date for oral arguments in the four marriage equality cases from the 6th U.S. Circuit that it earlier agreed to hear appeals of: Tuesday April 28.

On January 16, the United States Supreme Court announced that this year, they will hear arguments in a case on the question of whether same-sex couples should have the freedom to marry and if anti-marriage laws nationwide should be struck down as unconstitutional. The Court granted review of an out-of-step ruling from the U.S. Court of Appeals for the 6th Circuit, which ruled in November against the freedom to marry in Kentucky, Michigan, Ohio and Tennessee. In each of these cases, federal judges had ruled in favor of the freedom to marry for all, and the 6th Circuit reversed each decision. 

The arguments are in the cases Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky. The states' response briefs are due March 17, and final reply briefs are due April 17.

A final ruling deciding the fundamental question about whether same-sex couples have a fundamental right to marry (or that denying this right to same-sex couples unconstitutionally discriminates against them) will be issued by July 2015.

QUEER QUOTE: Federal Judge Issues Order Enjoining Alabama Officials To Issue Marriage Licenses

Federal District Court Judge Callie Granade issued an order enjoining probate judges in Mobile, Alabama from refusing to issue marriage licenses to same-sex couples, despite spurious declarations from Chief Justice Roy Moore of the Alabama State Supreme Court that the fact that the United States Supreme Court refusal to issue  a stay on Granade's previous order striking down Alabama's discriminatory marriage amendment caused marriage equality to go into effect on Monday February 9th.

This excerpt from the federal order is today's Queer Quote:

Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage. DONE and ORDERED this 12th day of February, 2015. 

Boom!

Hat/tip to Chris Geidner 

QUEER QUOTE: Obama Says Right To Same-Sex Marriage Exists In Federal Constitution

Ptersident Barack Obama gave an interview with The New Yorker where he expresses his belief explicitly that the United States Constitution's Equal Protection clause guarantees marriage equality for same-sex couples.

This excerpt from his conversation with Jeffrey Toobin is today's Queer Quote:

“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states. But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”

Obama also named the decision by the U.S. Supreme Court to refuse to hear appeals from three appellate circuits on Monday October 6th and effectively causing marriage equality to go into effect in roughly 35 states as the "the best Supreme Court decision of his tenure."

“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done. Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”

Elections have consequences, people!

Now There Are 32! Wyoming Becomes Marriage Equality State

Just a few days after Arizona became the 31st state with marriage equality, another red state has joined the throng of marriage equality states today when Wyoming abandoned its fruitless legal battle in light of the U.S. Supreme Court's October 6 decision to not hear an appeal of two appellate circuits (the 4th and the 10th)  rulings that the federal constitution requires marriage equality.

What this means is that in 32 states (see map), same-sex couples can get married while there are three more states (Kansas, Montana and South Carolina) where federal appellate court rulings indicate that laws banning marriage equality are presumed unconstitutional, since a federal appellate court has said so about a sister state's laws in the same circuit.

This also means that there are for more states where same-sex couples can get married than where there are LGBT-based civil rights laws. This means that a couple can get married, and if their boss finds out about it, they can be fired from their job due to their sexual orientation and there is no state or federal legal recourse.

I suspect that this dispute will be the next phase of the LGBT equality movement, but it will take an affirmative change in public policy in a lot of these states where same-sex couples are brave enough to take advantage of their right to marry has been recognized by federal judges to change the state's laws.

Hat/tip to Joe Jervis

Now There Are 30!! Federal Judge Strikes Down Alaska Ban On Marriage Equality!

According to Freedom to Marry, on Friday October 10 there were 29 states (not 27, as I declared in a blog post published that day) where same-sex couples can get married. Then, Freedom to Marry summarized the state of play thusly:

In 29 states - CA, CO, CT, DE, HI, ID, IA, IL, IN, ME, MD, MA, MN, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, UT, VA, VT, WA, WV and WI, plus Washington, D.C. - same-sex couples have the freedom to marry.  

In an additional six states - AK, AZ, KS, MT, SC, and WY - federal appellate rulings have set a binding precedent in favor of the freedom to marry, meaning the path is cleared for the freedom to marry there.

As of Sunday evening, even that number (29) is out of date, since Alaska's ban on same-sex marriages was struck down by a federal judge in Hamby v. Parnell just hours ago. As Joe Jervis notes, that brings the number of marriage equality states to 30. Last week at this time the number was 19!

The judge demolishes the state's arguments in his written opinion and delivers  the coup de grace to all heterosexual supremacists with this quote:

In sum, any relationship between Alaska’s same-sex marriage laws and the government interests asserted by Defendants is either nonexistent or purely speculative. Alaska’s same-sex marriage laws are a prime example of how “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex couples and their familial relationships do not warrant the status, benefits, and dignity given to couples of the opposite sex. This Court finds that Alaska’s same-sex marriage laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment because no state interest provides “exceedingly persuasive justification” for the significant infringement of rights that they inflict upon homosexual individuals.

Bizarrely, Gov. Sean Parnell (R-Alaska) announced that he is going to appeal this ruling to the 9th Circuit Court of Appeals, which just announced on Tuesday that it was striking down Idaho's and Nevada's bans on marriage equality. Isn't insanity doing the same thing over and over again and hoping to hey a different result? Then again, Parnell is running for re-election so maybe he feels like he needs to appear as if he is "defending marriage."

Hat/tip to Joe Jervis

SCOTUS Stays Virginia Marriages, Maintains Suspense On Its Position On Marriage Equality

While I was driving from Los Angeles to Albuquerque via Tucson on Wednesday, the Supreme Court issued a stay in the Virginia marriage equality case Bostic v Schaefer, preventing same-sex marriages from happening in that state the next day. This was not a surprise, as the Court has issued stays four other times this year in other similar cases. However, these actions don't really tell us much about what the Supreme Court will ultimately rule on the marriage equality question, says noted Supreme Court expert Lyle Denniston at SCOTUS blog:

Through all of this year, from January on, the Court could not help but be aware of what was happening in the lower courts, with a string of decisions nullifying state bans on same-sex marriage.  The fact that the Court has been drawn in on five occasions has kept it in the middle of the controversy, even if it has mostly kept its own counsel about what it is thinking. 

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29.  That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. 

The last scheduled day for distributing a case for consideration by the Justices at the September 29 meeting is September 10 — now, just three weeks away.  The pending Utah case has a fair prospect of being ready then, but there is reason to doubt at this point that the pending Oklahoma and Virginia cases will be complete.  The lawyers involved have said they were working diligently to push matters along, but the clock is against them for action by the Justices at the outset of the new Term. 

There will be plenty of time, though, to get a case before the Court for decision during the new Term.  If a case is accepted for review by sometime next January, it is almost certain to be decided before the end of the Term, late next June. 

Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

So, basically even if a critical mass of marriage cases is not ready by the September 10th deadline, almost certainly enough will be ready by the January deadline that the Court will have take a position (of whether they want to decide these cases outright, or to wait for a Circuit split and then a likely ruling in an election year instead of in 2015). I suspect we'll have an answer by June 2015 and it will be one that surprises most people.

Now There Are 20! Wisconsin's Ban on Marriage Equality Struck Down!

Of course, just hours after I wrote a post with a map depicting the 19 states that have marriage equality, a 20th was added when a federal judge ruled in Wolf v. Walker that Wisconsin's state constitutional ban on same-sex marriage was unconstitutional.

The lawsuit was filed by the ACLU, which celebrated thusly:

"We are tremendously happy that these loving and committed couples will now be able to access the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “These discriminatory laws are falling around the country and it is only right that Wisconsin move forward as well.” 

"Wisconsin’s constitutional ban on marriage for same-sex couples is a striking example of intentional discrimination towards lesbians and gay men in Wisconsin,” said John Knight, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. “The marriage ban has sent a powerful message  that same-sex couples are undeserving of the dignity and important legal protections associated with marriage. Judge Crabb’s decision that same-sex couples are equal under the law sends an entirely different message -- one inviting and encouraging fair treatment and respect for these couples."

Couples are getting married in Madison and Milwaukee:

There are now 20 states in which same-sex couples can get legally married and twenty consecutive federal court ruling since last year's Supreme Court ruling in U.. v. Windsor. Apparently Justice Antonin Scalia's dissent in that case was cited no less than a dozen times in Judge Crabb's decision striking down Wisconsin's marriage law!

Hat/tip to Joe Jervis

Idaho Gov. Asks 9th Circuit To Hear His Marriage Appeal En Banc

I guess Gov. C.L. "Butch" Otter (R-Idaho) apparently really wants to hear what Alex Kozinski thinks about gay marriage. He filed a motion in Iddho's appeal of the recent ruling  in Latta v Otter striking down its marriage law asking for an en banc panel of the 9th U.S. Circuit Court of Appeals hear the case instead of the customary 3-judge panel. The only reason I can think of is that he wants to enhance the conservativeness of the panel that hears his appeal by insuring that the very conservative Kozinski be on the panel of judges that decide this case.

The 9th Circuit is considered one of the most liberal federal appellate courts, and for the first time in a looong time it has its full 29-judge complement. This means that it is probably more likely than not that a 3-judge panel will include more liberals than conservatives; however an 11-judge en banc panel must include the chief judge and 10 others. In fact, it must be true that the probability of a conservative panel goes up with an en banc than a random 3-judge panel because Otter is assured that Kozinski (a conservative) must be on the panel. I guess someone on the judge's staff knows their probability and statistics!

There are currently 20 Democratic-appointed judges and only 9 Republican-appointed judges on the 9th Circuit.

In addition to an en banc panel, Gov. Otter also wants the appellate court to reconsider the question of whether sexual orientation should receive heightened scrutiny or not. Currently, sexual orientation does receive heightened scrutiny, which is one important reason why bans on marriage equality in the 9th circuit are likely to be struck down. However, even using a rational basis standard, judges reviewing the Oregon and Idaho laws have ruled them unconstitutional.

Federal judges are notoriously loath to allow litigants to skip steps so it seems unlikely the 9th circuit will accede to Otter's request.

10th U.S. Circuit Panel Hears Marriage Equality Oral Argument Next Week

Next week, oral arguments before a 3-judge panel of the 10th U.S. Circuit Court of Appeals in the marriage equality case of Kitchen v Herbert will occur, starting on Thursday April 10th. Exactly one week later, the 10th Circuit (a different 3-judge panel) will hear the appeal of the federal district court ruling that struck down Oklahoma's ban on marriage equality. This is the first hearing of the nine pending cases being heard before five, count 'em five federal appellate courts on marriage equality in the next few weeks.

HRC summarizes:

The Tenth Circuit is one of five federal appeals courts that will preside over nine marriage equality cases in the coming weeks and months. Other cases that will go before circuit courts include: Sevcik v. Sandoval of Nevada in the Ninth Circuit, DeLeon v. Perry out of Texas in the Fifth Circuit, Bostic v. Rainey of Virginia out of the Fourth Circuit, and four cases out of the Sixth Circuit - Tanco v. Haslam of Tennessee, Bourke vs. Beshear of Kentucky, Obergefell v. Kasich of Ohio, and DeBoer v. Snyder of Michigan. The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.

The oral argument next week is important because it is the first time an appellate court is hearing a marriage equality case following last year's Supreme Court case in Windsor.

Federal Judge Strikes Down Michigan Ban On Marriage Equality!

By now it has become routine, but today yet another federal judge, this time in Michigan, struck down a state constitutional ban on same-sex marriage, saying that it violates the United States Constitution. Victory in Michigan was especially sweet for LGBT advocates because the judge actually insisted that a trial of the facts occur, the first time this has happened since openly gay judge Vaughn Walker insisted on a trial of the facts in the 2009 federal lawsuit against California's Proposition 8.

Michigan's ban on gay marriage is unconstitutional, a federal judge said Friday as he struck down a law that was widely embraced by voters a decade ago — the latest in a recent series of decisions overturning similar laws across the country.

U.S. District Judge Bernard Friedman announced his ruling after a rare two-week trial that mostly focused on the impact of same-sex parenting on children.

There was no indication that the judge was suspending his decision. Attorney General Bill Schuette said he was immediately filing a request with a federal appeals court to suspend Friedman's decision and prevent same-sex couples from immediately marrying. The decision was released shortly after 5 p.m., when most county clerk offices in Michigan were closed. Clerks issue marriage licenses.

Seventeen states and the District of Columbia issue licenses for same-sex marriage. Since December, bans on gay marriage have been overturned in Texas, Utah, Oklahoma and Virginia, but appeals have put those cases on hold.

Two Detroit-area nurses, Jayne Rowse and April DeBoer, want to get married, but the original purpose of their 2012 lawsuit was to overturn Michigan's ban on joint adoptions by same-sex couples.

The case is DeBoer v. Snyder. Freedom To Marry released the following press statement:

“The discriminatory ban is untrue to Michigan’s – and America’s – values, and the judge was right to strike it down. It’s time that all committed couples in Michigan be treated with respect and dignity under the law, fully able to share in the freedom to marry and the responsibilities and protections marriage brings. Today’s win comes after a full trial -- complete with prosecutors and defendants, witness cross-examinations, and testimony from family experts on the well-being of children -- which showed that opponents have nothing more than the same bogus claims they have recycled for decades. They were simply unable to provide a single legitimate reason why committed same-sex couples should be excluded from marriage. Michigan, like all of America, is ready for the freedom to marry.” 

Michigan’s DeBoer v. Snyder is only the third full trial on the freedom to marry in history, following trials in Hawaii and California. Wolfson served as co-counsel in Hawaii’s Baehr v. Miike, the first-ever trial on the freedom to marry and the first case in the world to win a ruling in favor of the freedom to marry. 

54% of Michigan residents support the freedom to marry, according to a 2014 Michigan State University poll.

Wow!

Important Deadline Passes To Appeal Landmark LGBT Equality Case

The Human Rights Campaign noticed that today was the deadline for the appeal to be filed in the landmark case of Abbott Laboratories v. SmithKline Beecham in which the 9th U.S. Circuit Court of Appeals ruled recently that laws that classify based upon sexual orientation require heightened scrutiny.

Abbott is an incredibly significant ruling that already has had immediate impacts on the lives of LGBT citizens. As a direct result of the issuance of this ruling the Attorneys General of Nevada and Oregon declined to continue to defend their state's marriage licenses.

It is hard to see how marriage laws that discriminate on the basis of sexual orientation survive judicial review anywhere in the 9th Circuit as long as Abbott is good law.

Juror Discrimination Case Will Not Be Appealed
Ninth Circuit's Application of Heightened Scrutiny for Sexual Orientation Will Stand
WASHINGTON – 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.  

Yesterday, the deadline passed for AbbVie (the pharmaceutical spin-off of Abbott Laboratories that is a party in this litigation) to seek review of the January decision by a larger panel of the Ninth Circuit.  Furthermore, HRC has learned that AbbVie will not seek review by the U.S. Supreme Court.     

 “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."   

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

###

POLL: Support For Marriage Equality Hits 59% Nationally!

The blows keep coming to the heterosexual supremacists who want to deny marriage equality to same-sex couples. The latest news is that the American public agrees with the reasoning made by federal judges in recent rulings that the constitution guarantee of "equal protection under the law" gives gays and lesbians the right to marry. The new ABC/Washington Post poll reveals that 50% of Americans agree with this position while 41% do not.

The numbers on support or opposition to marriage for gay and lesbian couples is simply a rout. 59% of Americans say they support marriage equality, a mere 2 years after marriage equality became a majority position. While some have remarked on the rapid growth of support for marriage equality, Kevin Drum notes that it is on par with what happened with popular opinion in opposition to interracial marriage in the 1970s and 1980s.

Although, I would argue that Drum's graph actually bolsters the point (that many LGBT activists have been making) that support for marriage equality has increased FASTER than support for marriage equality because 1) Drum used 19 years of data on interracial marriage and superimposed it onto the 17 years on the chart and 2) interracial marriage was legalized in 1967 (-11) on the horizontal axis so the sample window for interracial marriage is incorrectly viewed.

Regardless, as Joe Jervis notes, the future for gay marriage is incredibly bright:

The younger generation simply does NOT understand what the fuss is about. Support for marriage equality among the under-30 crowd is above 80%.  Let adults marry whom they want regardless of gender. How does one person's right to marry the person they love impact your right to marry?

Federal Judge Rules That Kentucky Must Recognize Legal Same-Sex Marriages

As expected, a federal judge has issued an order that Kentucky must recognize same-sex marriages performed out of state.

The Liousville-Courier reports:

Dan Canon, another lawyer for the four gay and lesbian couples who won the case, said he was “cautiously optimistic. The order has been granted without qualification and without a stay.” 

He said for now that means same-sex couples in Kentucky who legally wed elsewhere can file their taxes together and apply for spousal health benefits. If one of the spouses has a baby while the order is in effect, the law would presume that the spouse’s partner is the other parent, he said. 

Elliott said she is “quietly encouraging” clients to take advantage of the ruling now, before Heyburn rules on Conway’s motion for a stay. She said the benefits that same-sex couples receive in the meantime would only be at risk if Conway appeals and Heyburn’s ruling is reversed. 

Citing the importance of the case, Conway’s office asked Heyburn to delay the effective date of his order for 90 days to give him time to decide whether to appeal, and to allow Beshear time to decide how to implement the order if it is not appealed. 

The motion suggests that Conway is at least considering joining six other state attorneys general who have decided not to appeal rulings throwing out marriage bans. Those officials, all Democrats, said the laws are discriminatory and violate the right to equal protection under the law.

The judge has yet to rule on the separate but related question of whether the laws of Kentucky that ban the issuance of marriage licenses to same-sex couples can withstand legal scrutiny in light of the Supreme Court's Windsor ruling. It seems unlikely that if the state must recognize legal marriages from other states that the state also will have to issue marriage licenses as well.