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Federal Judge Strikes Down Utah’S Ban On Same-Sex Marriage

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In response to the brief:

Is their right to refrain from participating in, recognizing or facilitating marriages between persons of the same sex, contrary to their religious convictions, adequately shielded by the First Amendment and other legal protections?

YES.

Or is further legislation needed to guard religious liberties in these and other sensitive areas?

NO.

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Ask, and ye shall receive--works even for legal briefs! ;-)

The relatively short brief is here:

http://www.scribd.com/doc/238775236/Catholic-Bishops-et-al-Amicus-Brief

Sigh. The more things change, the more some stay the same.

The brief is nothing new... and cites Massachusetts' ruling mandating gay marriage (without any religious exemptions) as it's reasons for all their concern about uncertainty affecting the church's religious liberty. The Massachusetts ruling was 10 years ago.

How many Catholic churches have been successfully sued and forced to marry a divorced person without an annulment?

How many synagogues have been forced to celebrated a mixed-faith marriage?

How many Mormon Temples have been forced to conduct a ceremony for persons not in good standing with the church?

Why should this all of a sudden change because same-sex couples are legally allowed to marry?[\b]

And what of the religious freedom of those religions who do marry their same-sex congregants?

I hope someone prepares an analogous brief for those religious bodies that approve of same-sex marriage and happily celebrate them in their churches.

The UUs are an obvious example, but there are many others.

In how many of those situations did those suing have the political support that gay marriage has? Without comparable support I don't think you can say that it won't happen based upon those situations.

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In how many of those situations did those suing have the political support that gay marriage has? Without comparable support I don't think you can say that it won't happen based upon those situations.

I'm not sure what your meaning is...?

You seem to be implying that gay marriage has more "political support" than straight re-marriage of divorcees, straight marriage between mixed-Faith couples, and/or religions' right to marry only couples in good standing in their churches...?

If that is the case, I'd respond that I find it highly unlikely that gay marriage has more support than any of the examples above--I'd suggest it's likely exactly the opposite.

Can you cite a single example in the history of America where clergy from any Faith has ever been legally forced to proactively perform a wedding ceremony against their religious policies, under any of the examples I offered...?

Can you cite examples of any such lawsuits that were even attempted....?

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Rain,

Here's a great article responding to the concerns you raised:

Will Churches in Washington State Be Forced to Perform Same-Sex Weddings?

http://www.thestranger.com/slog/archives/2012/09/20/will-churches-in-washington-state-be-forced-to-perform-same-sex-weddings&view=comments

posted by DAN SAVAGE

THU, SEP 20, 2012 at 10:21 AM

Just got this letter...

I thought I would bounce this off you since you have contributed to my quandary in a small way.

My initial instinct and plan was to vote to approve R-74 and legalize same-sex marriage in Washington state. But when the First Lady spoke at the DNC she used a phrase that bothered me. Every word in her speech was carefully chosen. She could have said something to the effect of a future “where we share the same rights no matter who we love.” I am all for that. But she said something to the effect of “stand before the altar with whomever we love.”

That set of big red flags for me. The same Libertarian streak that tells me that opening up the legal definition of marriage to same-sex couples also tells me that there are people who have very little respect for any religion that doesn’t agree with them. So when I heard Michelle Obama use of the word “altar,” I began to worry that once marriage legally opened to same-sex couples "they" will be going after every church in an effort to force them into compliance. And that I cannot tolerate.

No one fed me this. This is my own analysis of how activism has worked recently. Don’t like Catholic stands on birth control? Enroll at one of their colleges then go after them to change their rules for you instead of picking a college that agrees with you. See what I mean? And given some of your unfortunate rants, Dan, and knowing how this game is played, I suddenly realized legalizing same-sex marriage will create a legal wedge for people like you to attack churches directly rather than taking this new right and using it to create happiness in your own life.

Now I am not sure how to vote. And it bugs me because it is not fair for those couples waiting to live their lives with the same legal protections I have to get caught in the cross fire created by those who think everyone has to agree with them.

You are a pretty straight shooter, Dan, bu you have said some pretty derogatory things about Christians. So I would like to know where will you stand on these questions if Washington state gets marriage equality.

1. Should churches that take a traditional stand against same-sex relationships should lose their tax-exempt status if they won’t perform the ceremony?

2. Or will your attitude be, "I got what I want, so it's not my battle if some churches disapprove and I will remain on the sidelines"?

3. I want my rights protected I sure as heck will take a stand for the religious freedom of all faiths, even if some disagree with my lifestyle choices?

Just wondering.

K. H.

My response:

Dear K.H.,

As I'm sure you know, K.H., @a Opposite-sex couples can legally marry right now in Washington state. And they've been free to do so for as long as there's been a Washington state. But Catholic priests can and do refuse to marry opposite-sex couples. They do it all the time. And it is perfectly legal for Catholic priests to discriminate against opposite-sex couples even though straight people are have a legal right to wed. A priest can refuse to marry a straight couple because they're not Catholic, or only one member of the couple is Catholic, or even if both are Catholic but not Catholic enough in the priest's opinion (they're using birth control, they're not regular church goers, etc.). Catholic churches turn away straight couples who want to marry and they do it all the time. And yet no Catholic church has ever been sued by a straight couple and the state has never attempted to force a Catholic church to marry a straight couple.

And the state won't force Catholic churches—or any churches—to marry same-sex couples.

And remember: there are churches that are willing to marry same-sex couples right now. And they do marry us right now—so same-sex couples, even as same-sex marriage remains illegal, are already "standing at the altar" in churches all over Washington state. But they are only standing at the altars of churches that wish to marry them. (And what of the religious freedom of churches that do marry same-sex couples?)

Nothing will change for churches that disapprove of same-sex marriage once same-sex marriage is legalized. Same-sex marriage has been legal in Massachusetts since 2004 and there have been no lawsuits. No jack-booted government thugs have dragged away priests that refused to marry same-sex couples. The same rules that apply right now to interfaith couples, or non-believers, or insufficiently Catholic/Mormon/Jewish/Muslim/Hindu couples will apply after same-sex couples are allowed to wed: civil marriage will be open to all, i.e. the right of marriage. Churches that want to marry us will be able to marry us—and these marriages will be recognized by the state—churches that don't want to marry us won't be forced to. Churches that disapprove will have the freedom to deny us the rite of marriage.

In November you can approve R-74, which will legalize same-sex marriage in Washington state. And when you vote to approve R-74 you'll be writing this language into state law:

"No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage. A regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any religious organization shall be immune from any civil claim or cause of action based on a refusal to solemnize or recognize any marriage under this section. No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section."

So when you vote to approve R-74, K.H., you'll be creating the very protections you want to see in place.

Oh, and...

1. I don't think churches should lose their tax-exempt statuses for opposing same-sex marriages.

2. That will be my attitude. That's my attitude now. And the only reason gay people are "attacking" churches—or arguing with political opponents who happen to be wearing Roman collars or fronting suburban mega-churches—is because they're attacking/oppressing us. I would have no beef with the Catholic hierarchy if they were content to tell Catholics what to do. But they want to control the lives and limit the freedoms of non-Catholics. And so I have to respond. If the church would leave me and my family alone, I would happily leave the church alone. But the church is attacking me and my family. Please don't mistake self-defense for aggression.

3. I believe that everyone's rights should be protected. People living their lives as they wish and enjoying equal protections under the law are not attacking on anyone else's religious freedom. Conservative Christians who argue that legal gay marriage somehow oppresses them—that the legal existence of marriage they don't have to celebrate, attend, officiate at, or approve of somehow interferes with their religious freedom—are like orthodox Jews arguing for a ban on pork because they feel oppressed by your BLT or Mormons arguing for a ban on alcohol because they feel oppressed by your martini.

Thanks for writing and I hope you'll vote to approve R-74 in November.

Dan

(Emphasis added)

Hopefully the above addresses and resolves your concern.

If not, please feel free to elaborate.

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Yesterday, oral arguements were held in the 9th Circuit Court of Appeals in three states' marriage appeals cases (Idaho, Nevada, and Hawaii).  The lower Federal Court rulilngs in all three cases had previously ruled in favor of marriage equality for same-sex couples.

 

For the first time, I had the opportunity to tune in to the proceedings via live streaming on YouTube.  It was fascinating to watch the attorneys on both sides present their case.

 

As I listened to the attorney representing both Idaho and Nevada argue in favor of the same-sex marriage bans, I was struck by the cadence of his voice.  The inflection of his voice, it's tone and variation, sounded just like an LDS General Authority giving a talk... I felt certain that he had to be Mormon.  After the proceedings ended, I googled the attorney, Monte Stewart--and sure enough, he's LDS:

 

 


NOM board members, former and current, have deep ties to the Mormon Church, including:

 

Former president Maggie Gallagher sits on the board of the Marriage Law Foundation, a Utah-based legal group with ties to...a campaign committee used in Utah's 2004 marriage amendment fight against same-sex marriage. William Duncan and Monte Stewart, the founders of the Marriage Law Foundation, are both Mormon. In fact, Stewart was formerly a Mormon stake president in Atlanta, Georgia.

 

Stewart and Duncan previously co-chaired Utahns for a Better Tomorrow (UBT), a...committee that supported the 2004 Utah amendment against same-sex marriage. Substantial donations were funneled to UBT through a...nonprofit named Marriage Education Initiatives that was formed just two weeks before the election.

 

Unfortunately for the side he was representing, Mr. Stewart's arguements were not convincing and from my perspective, came across as thinly-veiled LDS doctrine rather than legally-substantive or secularly-convincing rationale as to why same-sex couples should be denied civil marriage.  It was almost painful to listen to him attempt to convince the judges of his arguements, because they were largely based on the same emotionally-based talking points targeting voters in the Prop 8 and similar campaigns.  Specifically, when he held up a flier that showed a little girl holding hands with a man and a woman, and then, in his whispery-emotional voice, imploringly read the line from the poster to the skeptical judges, "Which of this little girl's parents is obselete, her father, or her mother...?"

 

Needless to say, those types of appeal to emotion did not withstand the scrutiny of the court.  The judges remained visually and verbally unconvinced, and when they pressed Mr. Stewart to explain the rationale behind his point, he was wholy unable to articulate how allowing same-sex couples to marry would increase fatherlessness or motherlessness, or is even related to whether or not straight couples would marry, or increase any committment to raising children they conceived together.

 

Here's how the Washington Blade summaried the arguements:

 

 


Attorneys spar over ‘message’ of marriage before 9th Circuit

The message conveyed by restricting marriage to one man, one woman was a major point of discussion on Tuesday by attorneys on both sides of litigation seeking marriage equality before the U.S. Ninth Circuit Court of Appeals.

 

A three-judge panel on the court heard the two-hour long arguments in cases on marriage in Idaho, Nevada and Hawaii. The panel consisted of U.S. Circuit Judge Stephen Reinhardt, a Carter appointee; U.S. Circuit Judge Marsha Berzon, a Clinton appointee; and U.S. Circuit Judge Ronald Gould, another Clinton appointee.

 

Monte Stewart, a conservative attorney formerly with the Marriage Law Foundation, argued on behalf of same-sex marriage bans in Idaho and Nevada by saying those laws instill a message that a child has “bonding right” with his mother and father.

 

“The man-woman relationship at the core of the marriage institution generates and sustains the child’s bonding right, which is a social expectation, a strong social message and social promise and norm that to the greatest extent possible a child will know, and be reared by, her mother and father,” Stewart said.

 

Allowing same-sex couples to marry “undermines and weakens” that bonding right, Stewart said, and places children in situations where they won’t be able to flourish as much as if they were raised by different-sex parents.

 

Stewart twice made an example out of New York, which legalized same-sex marriage through the legislative process in 2011, saying that had the effect of “withdrawing all public and official support” for a child’s bonding right and had “undermined significantly” marriage.

 

At one point, Stewart held up to make his case an Idaho poster from when the state constitutional ban was on the ballot in 2006 featuring a girl holding hands with both her parents. The poster asks which is unnecessary in the photo: The mother or the father?

 

Stewart represented Idaho Gov. Butch Otter ® in his defense of the Idaho marriage law, but spoke as an intervenor in the Nevada case. Nevada Gov. Brian Sandoval ® and Nevada Attorney General Catherine Cortez Masto (D) have stopped defending state’s ban on same-sex marriage in court, so took up no time during the oral arguments.

 

But attorneys arguing on behalf of same-sex couples — Deborah Ferguson, a former U.S. attorney arguing on behalf of same-sex couples in Idaho, and Tara Borelli, senior attorney at Lambda Legal who argued on behalf of same-sex couples in Nevada — took Stewart’s arguments head on.

Ferguson said the only message conveyed by ban on same-sex marriage in Idaho was a stigmatization of same-sex couples — some of whom are raising children.

 

“As my opposing counsel has said, Idaho is sending a powerful message,” Ferguson said. “And I suggest that that message is Idaho’s refusal to allow their parents to marry, to have their legal marriages recognized, or in fact, refusal any form of relationship tells those children that their parents’ marriages are not worthy of respect and acknowledgement, which is indeed a very harsh message.”

 

Further, Ferguson said the denial of marriage to these couples has tangible effects, including benefits such as property rights, inheritance rights and “something as mundane as paying taxes.” During tax season, Ferguson said same-sex couples in Idaho who wed out of state must submit not two income tax return — federal and state — but instead five.

 

Borelli said the U.S. Supreme Court decision against the Defense of Marriage Act makes clear the singular message by excluding same-sex couples from marriage and their children.

 

“It’s the message of indignity and stigma set by an exclusion that’s class-based, and says these families are inferior,” Borelli said.

 

Stewart — who twice during the second part of oral arguments mistakenly referred to Nevada’s same-sex marriage ban as Idaho’s ban — seemed to trip on his initial message later in the arguments. Under questioning from U.S. Circuit Judge Marsha Berzon, Stewart said his view isn’t that same-sex couples are inferior parents compared to different-sex couples.

 

Berzon found that response contradictory, saying that view was exactly “the whole point” of his rhetoric. Although Stewart said that “absolutely” is not the case, Berzon pressed the point, prompting Stewart to say that view was heaped upon defenders of marriage bans in the last 12 years by proponents of “genderless marriage.”

 

Stewart read a line of U.S. Chief Justice John Roberts during oral arguments from a marriage case to back up his point, but was cut short by Reinhardt, who pointed out Roberts’ view ended up in dissent of the court.

 

“I have some views, too, but it’s not worth much unless you get a few extra judges,” Reinhardt said.

Although judges had tough questioning for attorneys of both sides of the marriage litigation, they projected a sense they would act to strike down bans on same-sex marriage — likely by a unanimous decision — based on their judicial history and questions on the appropriate process to get there.

 

The Ninth Circuit is uniques among other circuit that have heard marriage cases following the DOMA decision because the jurisdiction — along with the First Circuit — has precedent for subjecting laws related to sexual orientation to heightened scrutiny, or a greater assumption they’re unconstitutional. The precedent came about in June as a result of the decision in SmithKline v. Abbott, a case involving a gay juror who was excluded from deciding a case because of his sexual orientation.

 

Reinhardt — who also wrote the Ninth Circuit decision against California’s Proposition 8 — wrote the SmithKline decisio  and was joined by Berzon. Meanwhile, Gould delivered a favorable ruling for gay people in the Ninth Circuit decision of Witt v. Air Force, which challenged “Don’t Ask, Don’t Tell.”

 

Despite the precedent of heightened scrutiny in the Ninth Circuit, judges seemed uncertain that it would necessarily apply to the marriage laws at hand.

 

Gould, who attended the hearing via a video link apparently from his chambers, spoke rarely during the marriage arguments, but asked whether heightened scrutiny was appropriate for the cases at hand. Stewart said the less rigorous standard rational basis review would apply because the marriage laws weren’t enacted out of animus.

 

On the other side, Borelli said heightened scrutiny should apply to the Nevada law, but it would also fail under rational basis review. Ferguson said the court could rule against the Idaho law in any number of ways, including that marriage is fundamental right or that it violates equal protection and due process under the constitution — and that the court strike down the marriage bans on the basis of each of these standards.

 

Reinhardt suggested he believes the marriage laws should be subjected to heightened scrutiny when asking if it would apply, then asserted himself, “It would seem that way.”

 

At one point, Berzon suggested another way to strike down the bans on same-sex marriage is determining that they amounted to sex discrimination under the law. The judge asked Ferguson why there isn’t more case law asserting those laws are unconstitutional on the basis of sex discrimination. Ferguson replied the laws have been struck by other means because the discrimination was so “pervasive.”

 

One other issue that was argued before the same circuit was whether a Hawaii lawsuit pending before the court seeking same-sex marriage should be discontinued. The lawsuit was filed before the state legalized same-sex marriage through the legislative process last year. Attorneys behind the lawsuit and the State of Hawaii said it should dropped, but an anti-gay group that has intervened wants it on hold until a state court challenge to the new law is decided.

 

But judges didn’t seem open to the idea of letting the Hawaii litigation continue. Berzon repeatedly asked what difference it would make what the court decided on the Hawaii case when rulings on the Idaho and Nevada laws would set precedent for the entire circuit.

 

The panel is likely to issue its decision in the coming weeks, but whatever the outcome, the litigation will likely be appealed to the U.S. Supreme Court as one of many cases seeking review from justices. The Ninth Circuit was the fifth court to hear oral arguments on a marriage case after the DOMA decision, and may be the last for a while because no other federal appeals court has them on schedule.

 

A sense that whatever decision the Ninth Circuit produces would be appealed to the Supreme Court was  articulated by Reinhardt when Stewart brought up U.S. Associate Justice Anthony Kennedy’s decision in the DOMA case and its impact on the marriage laws.

 

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I found Posner's dismissal of the "tradition" argument interesting and extremely blunt for a Federal Circuit Court judge,  am wondering, however, if his opinion couldn't be used to argue the overthrow of U.S. v. Reynolds as well.

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I found Posner's dismissal of the "tradition" argument interesting and extremely blunt for a Federal Circuit Court judge, am wondering, however, if his opinion couldn't be used to argue the overthrow of U.S. v. Reynolds as well.

I would highly recommend reading the amicus brief I shared in this post, last week:

30 businesses file an Amicus Brief with SCOTUS urging it to take up the Virginia Appeals case and mandate same-sex marriage recognition nationwide:

The full brief is here:

http://www.afer.org/wp-content/uploads/2014/09/Bostic-Amicus-Brief-in-Support-of-Granting-Cert-30-Companies.pdf

My reason for suggesting it is because the corporations that authored the brief described practical outcomes of how HR personnel administer marital benefits. The challenges of a "patchwork" system of having to treat same-sex marriages differently in differing states gave me additional insight into the legally-logistical problems that civilly-recognizing polygamy would create.

The arguements in favor of marriage equality for same-sex couples are... well... equitable... because same-sex couples aren't asking for numerically more than what marriage laws already currently allow straight couples. Specifically, marriage laws are equitable because each citizen can marry one person of their choice. While many of the arguements in favor of honoring individuals' choice of spouse seem to argue in favor of honoring polygamist's choice of spouse, it's also fundamentally different from same-sex marriage from a logistical standpoint: Allowing same-sex couples that same right requires no functional changes to how the benefits, exemptions, inheritance, insurance, and other benefits are administered. Allowing same-sex marriage changes only the gender--similarly to how only the race-prohibition changed allowing interracial marriage, but did not change the quanity. Therefore, the administration of benefits isn't substantially altered, because the quantity stays the same.

Attempting to legalize polygamy, however, would require a radical restructuring of how benefits, taxes, inheritance, etc. are all factored, causing yet another "patchwork" problem of how corporations, human resources, and (subsequently) government agencies (i.e., for taxes) administer benefits for individuals with more than one spouse.

That is why I believe arguements doing away with same-sex bans could conceivably be used to do away with laws criminalizing polygamy (thereby allowing individuals to spiritually marry whomever they wish, according to the dictates of their religion), but still maintain an equality of marital benefits (numerically speaking) by maintaining that polygamist individuals may only recieve the benefits of civil marriage for one marriage at a time.

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I would highly recommend reading the amicus brief I shared in this post, last week:

 

 

 

My reason for suggesting it is because the corporations that authored the brief described practical outcomes of how HR personnel administer marital benefits.  The challenges of a "patchwork" system of having to treat same-sex marriages differently in differing states gave me additional insight into the legally-logistical problems that civilly-recognizing polygamy would create.

 

The arguements in favor of marriage equality for same-sex couples are... well... equitable... because same-sex couples aren't asking for numerically more than what marriage laws already currently allow straight couples.  Specifically, marriage laws are equitable because each citizen can marry one person of their choice.  While many of the arguements in favor of honoring customer's choice of spouse seem to argue in favor of honoring polygamist's choice of spouse, it's also fundamentally different from same-sex marriage from a logistical standpoint: Allowing same-sex couples that same right requires no functional changes to how the benefits, exemptions, inheritance, insurance, and other benefits are administered.  Allowing same-sex marriage changes only the gender--similarly to how only the race-prohibition changed allowing interracial marriage, but did not change the quanity.  Therefore, the administration of benefits isn't substantially altered, because the quantity stays the same.

 

Attempting to legalize polygamy, however, would require a radical restructuring of how benefits, taxes, inheritance, etc. are all factored, causing yet another "patchwork" problem of how corporations, human resources, and (subsequently) government agencies (i.e., for taxes) administer benefits for individuals with more than one spouse.

 

That is why I believe arguements doing away with same-sex bans could conceivably be used to do away with laws criminalizing polygamy (thereby allowing individuals to spiritually marry whomever they wish, according to the dictates of their religion), but still maintain an equality of marital benefits (numerically speaking) by maintaining that polygamist individuals may only recieve the benefits of civil marriage for one marriage at a time.

I suspect there may come a time when the government may recognize that its hodge podge of various family subsidies aren't working because its corporate based economic system simply doesn't match up with traditional families anymore.

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Former president Maggie Gallagher sits on the board of the Marriage Law Foundation, a Utah-based legal group with ties to...a campaign committee used in Utah's 2004 marriage amendment fight against same-sex marriage. William Duncan and Monte Stewart, the founders of the Marriage Law Foundation, are both Mormon. In fact, Stewart was formerly a Mormon stake president in Atlanta, Georgia.

 

 

 

 

“The man-woman relationship at the core of the marriage institution generates and sustains the child’s bonding right, which is a social expectation, a strong social message and social promise and norm that to the greatest extent possible a child will know, and be reared by, her mother and father,” Stewart said.

 

Allowing same-sex couples to marry “undermines and weakens” that bonding right, Stewart said, and places children in situations where they won’t be able to flourish as much as if they were raised by different-sex parents.

 

 

 

I wonder if this "good Mormon attorney" has ever sat on a board to fight divorce in this country and make it illegal.  If his objection to gay marriage is because it denies a child a mother and a father, then it seems like divorce should be just as big of issue to take up and make illegal.  In fact since divorce happens in about 50% of marriages, it seems like a much bigger issue than the small percentage of gay couples wishing to marry and have children.  

 

Yet I am aware of no movement by any Mormon or the church itself to make divorce illegal.  Hummm.  I wonder just how deeply he feels about children being raised by both a mother and a father.  It sounds more like prejudice against gay couples to me.

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Irony:

80 Utah Legislators Tell SCOTUS: Gay Marriage Will Lead To Polygamous and Incestuous Marriage

Eighty Utah state legislators have filed an amicus brief in which they warn the Supreme Court that upholding the Tenth Circuit's ruling on same-sex marriage will lead to the legalization of polygamous and incestuous marriages.

An excerpt:

The Tenth Circuit did not adequately consider the consequences of its decision for Utah’s prohibitions of polygamous and incestuous marriages. If the choice of marriage partners is an unlimited fundamental right, Kitchen, 755, F.3d at 1215, and if that marriage choice cannot be denied even when a majority believes that choice to be “immoral,” 755 F.3d at 1217 (quoting Lawrence v. Texas, 593 U.S. 558, 571 (2003)), then the fundamental rights analysis applied by the Tenth Circuit will apply with even greater force to consenting adults desiring polygamous marriage or marriage between at least some close relatives. The prohibition of those marriages has always been grounded in morality. Without a moral justification, courts will be obliged to remove existing marriage prohibitions as the U.S. District Court did last month in Utah. See Brown v. Herbert, 2014 WL 4249865 (D.Utah Aug. 27, 2014. Accordingly, this Court should grant certiorari and reverse the Tenth Circuit’s judgment below.

The brief is signed by 22 of the 29 members of the state Senate and by 58 of the 75 members of the state House.

The full brief can be read here: http://www.scribd.com/doc/239167263/Utah-Legislators-Amicus-Brief

"Without a moral justification, courts will be obliged to remove existing marriage prohibitions as the U.S. District Court did last month in Utah. "

It appears that 80 of Utah’s political representatives are either terribly misinformed or disingenuous.

The ruling they are referencing is that a federal judge struck down a Utah statute which banned "adult cohabitation" which had been applied very selectively. The most shocking result of the ruling is that it brought Utah in line with the 49 other states, who have no such bans.

It did NOT "remove existing marriage prohibitions," nor did it legalize polygamy.

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And another SCOTUS update:

Indiana, Wisconsin Officials Take Marriage Cases To Supreme Court

http://www.buzzfeed.com/chrisgeidner/indiana-wisconsin-officials-take-marriage-cases-to-supreme-c?s=mobile#7903q2

In two petitions filed Tuesday, attorneys general of both Indiana and Wisconsin asked the justices to hear their respective cases in defense of each state’s marriage ban. [update: Same-sex couples fighting both states’ bans agree, filed same-day briefs urging court to take up appeal of their respective cases.]

Posted on Sept. 9, 2014, at 10:49 a.m.

Chris GeidnerBuzzFeed Staff

Gary Cameron / Reuters

WASHINGTON — Officials in Indiana and Wisconsin on Tuesday asked the Supreme Court to hear their respective state's appeal in defense of each state's ban on same-sex couples' marriages.

The petitions are the sixth and seventh petitions seeking a writ of certiorari, which is the technical way the Supreme Court announces that it is taking a case.

Indiana presents a somewhat different case in practical terms — although it has not, thus far, made a difference in the legal analysis — in that the state has no constitutional ban on such marriages. It only has a state law banning them.

In the earlier petitions filed regarding Oklahoma, Utah, and Virginia's bans, as well as is the case in Wisconsin, the states have a constitutional amendment banning such marriages, along with any statutory ban. In Virginia, there have been three petitions filed, one from Attorney General Mark Herring, who has argued that the ban is unconstitutional, and two others from clerks defending the ban.

Another interesting facet of the marriage cases making their way to the Supreme Court is that the same-sex couples — all of whom thus far have won their case at the appellate level — are agreeing with the state and local officials that the justices should take the cases. All four sets of plaintiffs in the Oklahoma, Utah, and Virginia cases have filed responses asking the justice to hear their respective case.

With Tuesday's filings, that trend is expected to continue. In its news release about Indiana Attorney General Gregory Zoeller's filing, Lambda Legal announced that "within hours" it will be filing a response supporting Supreme Court review of the case.

The justices will be returning from their summer recess for their first conference of the new term that starts in October later this month. They don't have to act on the petitions immediately. Back in 2012, the court waited until December to announce that it would be hearing Edie Windsor's challenge to the Defense of Marriage Act and the case challenging California's Proposition 8.

Nonetheless, eyes will be on the Supreme Court as state and local officials, judges across the country, same-sex couples, and others await the justices' word on the fate of the many marriage cases making their way to One First Street, the address of the Supreme Court.

UPDATE

In a sign of the urgency with which the LGBT organizations are approaching these cases, same-sex couple plaintiffs wishing to marry or having their marriage recognized already have responded to the two states’ petitions.

Lambda Legal and the ACLU, representing the couples in the Indiana case, responded to Indiana’s certiorari petition, stating that the same-sex couples they represent “agree that the Court should grant review in this case because the issue is of fundamental importance to [the couples] and the country as a whole.”

The ACLU, representing the couples in the Wisconsin case, responded to Wisconsin’s petition on Tuesday as well. Sept. 9, 2014, at 2:22 p.m.

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BREAKING: Supreme Court Lists ALL Marriage Cases For Consideration On 9/29

Via the Wall Street Journal: 

Mark your calendars: the Supreme Court is scheduled to consider its next steps on gay marriage when the justices meet for the first time since their summer break. The court on Wednesday listed gay marriage petitions from five states – Indiana, Oklahoma, Utah, Virginia and Wisconsin – for consideration at its Sept. 29 private conference. Officials in those states are asking the court to decide whether state bans on same-sex marriage are constitutional. The justices use the September meeting to wade through stacks of appeals that pile up during the court’s three-month recess. The court at some point after the conference is expected to add several of those cases to its docket for the term that begins Oct. 6. Court watchers are eagerly awaiting word on whether one or more gay marriages cases will be among them. The court is under no obligation to act right away. It’s possible the court could take additional time to mull its options, particularly because of fast-moving developments in other gay-marriage litigation.

More from USA Today:

By scheduling all for consideration simultaneously, the justices gave equal footing to the Indiana and Wisconsin cases just decided last week by the U.S. Court of Appeals for the 7th Circuit. The 10th and 4th Circuits previously ruled in the other cases. The court could agree to hear one or more cases this winter; deny them all, or delay its decision for a while. In all five states, federal district and appellate judges have agreed that state bans on same-sex marriage should be struck down as unconstitutional. But those decisions are on hold pending the Supreme Court's review. Additional gay marriage cases could be added to the justices' list soon. A ruling is expected from the U.S. Court of Appeals for the 6th Circuit on cases from Ohio, Michigan, Kentucky and Tennessee. And just this week, the 9th Circuit heard oral arguments in cases stemming from Idaho and Nevada. Cases from Texas and Florida remain at the appellate court level.

AFER reacts via press release: 

“Gay and lesbian couples in Virginia should not have to wait another day to enjoy their right to marry,” said AFER Executive Director, Adam Umhoefer. “The distribution of our case for the Court’s consideration brings us one step closer to our mission of marriage equality for all Americans. Our Constitution’s guarantee of liberty and equality soon will be realized for all loving and committed couples, no matter what state they reside in.” The Court is expected to release an Orders List on October 6, 2014, that will indicate which – if any – marriage equality case or cases it will consider for its 2014-2015 term. If the Court denies review inBostic, the July 2014 decision of the United States Court of Appeals for the Fourth Circuit that struck down Virginia’s marriage ban will be binding and gay and lesbian Virginians will be able to marry in the Commonwealth.

NCLR reacts via press release:

The couples in the [utah] case—Kitchen v. Herbert—are represented by Peggy Tomsic of the Salt Lake City law firm of Magleby & Greenwood, P.C., Shannon Minter of the National Center for Lesbian Rights (NCLR), Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD), and former acting Solicitor General Neal Katyal of the law firm of Hogan Lovells. Said Tomsic: “The State of Utah and the plaintiff couples agree that it is important the Supreme Court take this case and settle the constitutional questions at stake, questions that matter so much to the families we represent and to so many others across the country.” Said Bonauto: “It is time to end the legal bans that keep committed couples from standing up and making the unique pledges of marriage to each other—pledges that would allow their families protection and security everywhere in this country.”

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The official SCOTUS blog has some great clarifying info on the next steps:

Same-sex marriage cases set for early look

http://www.scotusblog.com/2014/09/same-sex-marriage-cases-set-for-early-look/#more-217611

Posted Wed, September 10th, 2014 4:51 pm

by Lyle Denniston

Matching the speed of lawyers and lower courts in handling the same-sex marriage controversy, the Supreme Court on Wednesday set the stage for its first look at all of the pending cases, when the Justices assemble on September 29 for a private Conference.

Seven petitions — three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at that session.  There is, of course, no certainty that they will act on any or all of them at that point, but the option is there.  With all sides agreeing that the time to rule is now, it would be a surprise if the Court opted to bypass the issue altogether in its new Term.

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah),Smith v. Bishop (Oklahoma), Rainey v. Bosti(Virginia), Schaefer v. Bostic (Virginia),McQuigg v. Bostic (Virginia), Bogan v. Baskin(Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

Some of the petitions also ask the Court — for the first time — to specify a standard for judging the constitutionality of laws that are challenged in gay rights cases.  The Court has had a significant number of rulings, largely in favor of gay rights in recent years, but it has never said just what constitutional test it is using.  In the rulings over the past fifteen months in lower federal courts, judges have applied several variations of constitutional tests, from relaxed to rigorous, but always with the same result — nullifying state bans.

Another issue that some petitions want the Court to resolve is whether, in fact, the Justices settled this issue years ago, against same-sex marriages.  That was a 1972 summary decision — that is, without briefs and oral argument — in the Minnesota case of Baker v. Nelson.   There, the Court dismissed a plea to open marriage to same-sex couples, which it said did not involve a “substantial federal question.”

The Supreme Court has never questioned that decision, but lower courts recently have routinely ruled that more recent Supreme Court rulings on gay rights have made that decision basically a dead letter.

The most important Supreme Court precedent on which lower courts have been relying in the recent rulings is United States v. Windsor the decision in June of last year striking down the 1996 congressional ban on federal marital benefits for same-sex couples already legally married under state law.  That decision on the Defense of Marriage Act did not settle the constitutionality of state action against same-sex marriage, but lower courts have read its rationale more widely in finding such bans to be invalid.

It has taken only a little over a year for the same-sex marriage issue to return to the Court, with the focus solely on state bans, and lawyers on both sides of the controversy have been moving very rapidly to get the issue prepared for the Supreme Court after lower courts had expedited their review.  In none of the seven petitions that the Court will be examining is anyone involved resisting Supreme Court review.

The Court’s own staff also has moved with dispatch.  Some of the seven petitions that will go to the Justices late this month were filed just the day before they were distributed to the Justices — almost unheard of at the Court.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.

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Another interesting ruling from a Federal Judge from Indiana: that the state agrees, for the second time, to recognize a specific marriage, despite the pending appeal.

Personally, I believe the more stories that the public hear like these two women's (and mothers') children, family, and story, the harder it is to justify this type of discrimination.

Indiana agrees to recognize 2nd same-sex marriage

http://wishtv.com/2014/09/12/indiana-agrees-to-recognize-2nd-same-sex-marriage/

By Associated Press

Published: September 12, 2014, 12:55 pm

HAMMOND, Ind. (AP) Indiana has agreed to recognize a second same-sex marriage because one of the women is battling cancer.

A federal judge on Thursday approved the agreement between the state, the Lake County clerk and Veronica Romero and Mayra Yvette Rivera of Whiting.

Romero and Rivera were married in Illinois last March, and Rivera has ovarian cancer. The state agreed to list the couple as married on Rivera’s death certificate after the couple argued that failing to do so would exclude Romero and their children from death benefits.

Munster residents Niki Quasney and Amy Sandler made similar arguments. Quasney has advanced ovarian cancer, and the couple were married in Massachusetts.

Theirs is the first same-sex marriage recognized while the battle over Indiana’s gay marriage ban passes through the courts.

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Brian Brown, NOM president, reassures the readers of Desert News:

Brian S. Brown:

In defending marriage, Utah is standing in the breach

http://m.deseretnews.com/article/865610913/In-defending-marriage-Utah-is-standing-in-the-breach.html?ref=http%3A%2F%2Fwww.goodasyou.org%2F

By Brian S. Brown, For the Deseret News

Published: Sun, Sept. 14 12:00 a.m. MDT

In the Book of Ezekiel (22:30) the Lord says, “I looked for a man among them who would build up the wall and stand before me in the gap on behalf of the land so I would not have to destroy it, but I found none.”

For a number of months now, there has been an orchestrated legal attack on the institution of marriage. Lawsuits have been filed in every state in the nation that defines marriage as the union of one man and one woman. Sadly, a number of elected officials who swore a solemn oath to defend the law of the land — several of them Republicans — have abandoned their posts and left marriage defenseless in federal courts. Even where defended, activist federal judges have brazenly invalidated state marriage laws, and the over 50 million voters across our nation who voted to preserve marriage in 31 different states have, like the biblical prophet Ezekiel, been left to wonder who will stand in the gap to defend their decision.

The answer is Utah. The state of Utah is standing in the breach to preserve marriage as God created it and nature has confirmed it, the union of one man and one woman. And the eyes, and prayers, of a nation are with you.

This month, the U.S. Supreme Court will consider whether it will review the tragic and misguided decision of a Utah federal judge to redefine marriage and strip it of its gendered nature so that same-sex couples may “marry.” The National Organization for Marriage (NOM) has urged the Supreme Court to accept the Utah case and use it to clarify that the United States Constitution does not prohibit states from defining marriage solely as the union of one man and one woman, nor does it require states to recognize "marriages" of same-sex couples performed in other states.

Marriage is a foundational institution, something at the core of civilization. It is our only institution that brings men and women together as husbands and wives to be fathers and mothers to any children born of their union. Marriage is the foundation of the family and an essential element of a thriving society. No nation can long survive if it abandons the natural family and denies the unique contributions men and women each bring to child rearing.

In his dissent in the Windsor decision that struck down a section of the federal Defense of Marriage law defining marriage for federal purposes, Justice Antonin Scalia famously warned that the only thing that would keep a majority of the court from redefining marriage is a sense of what it can get away with. Let’s all make it clear to the court that we won’t let them get away with redefining marriage and that we are going to stand with the state of Utah, which is in the gap fighting for husbands and wives, and their children, in Utah and across the nation.

Brian Brown is president of the National Organization for Marriage.

Incidentally, Mr. Brown is a devout catholic, the father of 8 children, and reportedly receives a six-figure income fighting to prevent same-sex couples from legally marrying (but not doing much else to strengthen straight couples' marriages or prevent divorce).

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Interesting view expressed by Justice Ginsburg (who has personally officiated over two same-sex couples' weddings):

Ginsburg: SCOTUS Won't Take A Marriage Case Until Appeals Courts Disagree

Supreme Court Justice Ruth Bader Ginsburg today confirmed what many analysts have theorized when she said that marriage equality will likely not be heard in her court until federal appeals courts disagree on the issue. That hasn't happened yet, but Ginsburg advised a Minnesota audience to therefore keep an eye on the Sixth Circuit. Via the Associated Press:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court's timing. She said "there will be some urgency" if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. She said if the appeals panel falls in line with other rulings there is "no need for us to rush." Ginsburg didn't get into the merits of any particular case or any state's gay marriage ban, but she marveled at the "remarkable" shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts. "Having people close to us who say who they are - that made the attitude change in this country," Ginsburg said at the University of Minnesota Law School.

http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_JUSTICES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

The Sixth Circuit heard multiple marriage cases on August 4th. Most analysts concluded that the decision will be a split in either direction. As many have predicted, we'll likely have to lose at the Sixth Circuit (or elsewhere) in order to finally get back in front of SCOTUS. The Court is scheduled to consider cases from five states (where we won) on September 29th.

Therefore, it's important that the 6th Circuit Court of Appeals rules against marriage equality, to create that sense of urgency for SCOTUS to act.

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I wonder if this "good Mormon attorney" has ever sat on a board to fight divorce in this country and make it illegal.  If his objection to gay marriage is because it denies a child a mother and a father, then it seems like divorce should be just as big of issue to take up and make illegal.  In fact since divorce happens in about 50% of marriages, it seems like a much bigger issue than the small percentage of gay couples wishing to marry and have children.  

 

Yet I am aware of no movement by any Mormon or the church itself to make divorce illegal.  Hummm.  I wonder just how deeply he feels about children being raised by both a mother and a father.  It sounds more like prejudice against gay couples to me.

Forcing people to remain in failed marriages is a very bad idea, restructuring our economic system to promote family businesses does.

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Therefore, it's important that the 6th Circuit Court of Appeals rules against marriage equality, to create that sense of urgency for SCOTUS to act.

 

As someone who lives in the Sixth Circuit, I know a few couples who very much hope our courts fall in line with the national trend.  And for those in Utah who want marriage rights, the quickest way to get those rights is if there is no split and SCOTUS refuses to hear the 10th Circuit appeal. 

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As someone who lives in the Sixth Circuit, I know a few couples who very much hope our courts fall in line with the national trend. And for those in Utah who want marriage rights, the quickest way to get those rights is if there is no split and SCOTUS refuses to hear the 10th Circuit appeal.

As an engaged gay man in Utah, there's nothing I want more than for Utah's ban to end... except maybe the ban to end, nationwide.

Unfortunately, EVERY Appeals Court ruling striking down the bans has been stayed, pending SCOTUS taking up a case.

And as I understand it, SCOTUS has no deadline in deciding if and when they should take any of the current appellate rulings... If the justices want to, they could sit on them indefinitely, taking no action, and causing the stays to remain indefinitely.

Even if the 6th court rules in favor of striking down the same-sex marriage bans, it's almost certain such a ruling will be stayed, pending SCOTUS review.

Ironically, we supporters of same-sex marriage now need an appellate ruling against us to cause the SCOTUS to act (at least, according to Justice Ginsberg), so ALL of us gain the freedom to marry in one fell stepping decision in favor of national marriage equality.

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A second judge in Louisiana (this time, a state judge) rules exactly the opposite of the recent Federal judge's ruling upholding the marriage ban:

A state judge in Lafayette struck down Louisiana's ban on same-sex marriage Monday

http://www.nola.com/politics/index.ssf/2014/09/lafayette_judge_strikes_down_s.html

By Cole Avery, NOLA.com | The Times-Picayune 

September 22, 2014 at 5:06 PM, updated September 23, 2014 at 2:20 AM

A Lafayette judge Monday ruled Louisiana's ban on same-sex marriage unconstitutional. But Attorney General Buddy Caldwell plans to appeal the decision directly to the Louisiana Supreme Court, a Caldwell spokesperson said.

Details of the ruling by Judge Edward Rubin of the 15th Judicial District Court weren't immediately known because it was sealed. Caldwell's office said the judgement is likely sealed because it involves adoption issues.

People close to the case said they think Rubin invalidated the ban for violating the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. Representatives for the plaintiff's attorney, Joshua Guillory, said he could not comment until the ruling is unsealed.

KATC television said the lawsuit was filed by Angela Marie Costanza and Chasity Shanelle Brewer. The couple was legally married in California but sued because Louisiana does not recognize the marriage.

Rubin's ruling doesn't mean same-sex couples may marry in Louisiana. The court would first have to order clerks to issue marriage licenses, which has not happened. Typically such rulings have been given stays of enforcement until the litigation works its way through the appeals process.

Still, Tim West, president of Equality Louisiana, said Rubin's ruling was an important step toward achieving full marriage rights. "In his ruling today, Judge Edward Rubin affirmed what we've known all along at Equality Louisiana, that loving, committed same-sex couples are building strong, healthy families in our state and that their love deserves full recognition under state and federal law," West said.

He continued: "Today is a victory for Angela, Chasity and their son, Nicholas, to be sure, but it is also a victory for thousands of citizens who work hard and contribute to this state everyday, hoping that one day soon they, too, will be allowed the freedom to marry the person they love."

Louisiana Family Forum President Gene Mills said he believed the state Supreme Court had already heard this issue in 2004 when it ruled the ban could stand.

"I'm confident Louisiana's natural view of marriage will not only be defended, but upheld," Mills said.

The ruling comes less than three weeks after a federal judge in New Orleansupheld the state's ban against same-sex marriages. U.S. District Judge Martin Feldman's Sept. 3 decision broke a streak of 20-plus court victories for same-sex rights advocates. That case is currently being appealed to the 5th U.S. Circuit Court of Appeals.

Keith Werhan, a constitutional law professor at Tulane University, said Feldman's ruling did not bind Rubin. He said he thinks the U.S. Supreme Court likely will hear one of the many similar cases before it now to sort out conflicting judgments on the issue throughout the country.

"If the Supreme Court decides not to hear it, they'll have to lift the stays," Werhan said. "The court's concern is they don't want a lot of people getting married. So if they come back and hear it but not uphold it, the question is what to do with the status of all those relationships."

Werhan said the challenge before the states in all of these cases is to show how the state has an interest in denying some couples rights and benefits that are afforded to others. So far, Feldman has been the only federal judge to rule bans on same-sex marriage do not violate the equal protection or due process rights guaranteed in the Constitution.

Of course, the ruling was stayed, pending appeal.

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Today is the day SCOTUS reviews the marriage cases in a private conference. From Lamda Legal:

On September 29, the Supreme Court will assemble for a private conference where they will take their first look at potentially hearing one or more of the pending cases. All of the marriage cases decided by the federal courts of appeal since the DOMA ruling are scheduled for this conference. Seven petitions to hear the four decisions affecting five states— three from Virginia, and one each from Indiana, Oklahoma, Utah, and Wisconsin — will be submitted to the Justices at this session. Lambda Legal supported the petitions on behalf of our clients in both the Bostic case (with the ACLU) in Virginia and the Baskin case in Indiana.

In this conference on September 29th, the Justices can vote to grant review in any one or any combination of the marriage cases before them, or none of them. We won’t hear what the Court has done on the 29th, of course. Usually, the cases granted review will be issued as part of an orders list, which is generally released on the Monday morning after the Justices' private conference. However, the Court has been known to issue an orders list earlier than that in order to expedite briefing and related activities, so we could possibly hear as early as Tuesday, September 30th, whether the Court will hear a marriage case and, if so, which one or more it has selected for review.

Because the LGBT movement was just in this same watchful position last year, we remember that there can be delays in issuing orders. The Court’s decisions about which case or cases to hear involves a good deal of complexity and may not be made right away. If the Court does grant review of any marriage cases any time up to the middle of January, arguments will be scheduled some time in the spring, and a final decision would be expected by next summer.

http://www.lambdalegal.org/blog/20140926_back-on-scotus-watch

As all eyes are on SCOTUS, new polling in Utah shows increasing support for marriage equality in the state:

UTAH: 49% Back Same-Sex Marriage

http://freemarry.3cdn.net/f24d394cb3c9bdb591_8gm6bxgau.pdf

Freedom To Marry reports on a just-released poll they commissioned in Utah:

A plurality of Utahns – 49% to 48% – agree that same sex-couples should be allowed to get a state-issued marriage license. Moreover, 61% believe legalizing marriage for same-sex couples in Utah is inevitable and will happen in the state within the next five years. And, by a large majority (67%), they want the U.S. Supreme Court to settle this question once and for all. These numbers come as the Court begins its term and meets today to consider Utah’s marriage case, Kitchen v. Herbert, along with four others, for the upcoming session. The findings of the poll, conducted Sept. 21 to 23 of 500 adults over 18 across the state, also show that 94% believe the freedom to marry will not impact their marriage, with 84% saying it won’t impact their family and 65% saying it won’t adversely impact the state.

Noting that Freedom to Marry has invested resources into Utah over the last several months in a public education campaign, Evan Wolfson, the founder and president said, “This poll shows that the people of Utah, like Americans all across the country, already support or are ready to live with the freedom to marry. Utahns, like Americans generally, believe the Supreme Court should act now and will rule in favor. Indeed, when the freedom to marry has come to states like Utah, there has been little or no real opposition or concern – even those who are less than keen know it’s coming and doesn’t affect their lives, their families, their marriages, or their community. The ‘dog that didn’t bark’ is further proof that America is ready for the freedom to marry and that it’s time for the Court to bring the country to national resolution.”

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I wonder if, there is no disagreement among the Circuts, that a petition to the Supreme Court would be denied for "for want of a substantial federal question."

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A great article from USA Today summarizing the LINDA struggle for civil rights, thus far. The LDS church's recent amicus brief is quoted:

Gay marriage, once inconceivable, now appears inevitable

Richard Wolf, USA TODAY

Adam Nadel, AP

The gay marriage movement took root in the 1990s, as was evident during New York City's Gay Pride Parade in 1996.

WASHINGTON — As the Supreme Court prepares to decide the future of same-sex marriage — an institution described as "newer than cellphones or the Internet" by one justice last year — two things are clear.

Despite this year's breathtaking string of lower court victories, the battle for marriage equality hasn't been swift or easy. To the lawyers who devised the legal strategy decades ago, the journey has been arduous, the setbacks plentiful and the battle scars deep.

And even after the high court rules — most likely by striking down state bans on gay marriage at the end of its term in June — the fight won't be over. Another clash looms over the issue of religious freedom.

Same-sex marriage's transformation from impossible dream decades ago to all but inevitable today has been, by most accounts, unprecedented. First legalized in the Netherlands in 2001, gay and lesbian marriages have spread to 19 countries and 19 states.

As they stand at the precipice — with the high court delaying any decision Thursday but likely to accept one or more cases later this month — the movement's founders insist it's a cause whose time has come.

USATODAY

Supreme Court delays action on same-sex marriage

"Every day literally matters," says Evan Wolfson, who launched the advocacy group Freedom to Marry in 2003 and hopes to put it out of business next year. "People are literally dying without being able to get married."

Before same-sex marriage went on its current winning streak, however, there was a very long losing streak. In 1972, the Supreme Court tossed out the first gay marriage lawsuit "for want of a substantial federal question." In 1986, the justices upheld states' rights to ban homosexual sodomy. The 1990s brought progress, but not victory, from Hawaii to Vermont.

"The tone of the opinions from the state courts was as though a man was seeking the right to be pregnant," recalls Mary Bonauto, the godmother of the gay marriage movement, who won the first victory in Massachusetts in 2003.

The air of inevitability that pervades the issue today stems from a near-perfect string of court victories since June 2013, when the Supreme Court ruled 5-4 that the federal government must recognize same-sex marriages performed in states where it is legal. The same five justices appear likely to take the final step this term by declaring state bans against gay marriage unconstitutional.

USATODAY

For same-sex marriage pioneer, a very busy year

Standing in the breach are the same steadfast opponents who have defended the states' prohibitions for two decades. They have not given up hope that the justices will come down on the side of states' rights. But even if they lose, they promise more battles to come between gay rights and religious rites.

"There's a ton that will happen on religious liberty. We're already preemptively moving in this direction," says Brian Brown, president of the National Organization for Marriage. "The other side wants to push religious liberty into the four walls of a church."

'IMPOSSIBLE DREAM' TAKES ROOT

That movement was born in the wake ofLoving v. Virginia, the 1967 Supreme Court decision that outlawed state bans on interracial marriage. Yet the years that followed did not produce immediate victories.

The Supreme Court refused in 1972 to overrule Baker v. Nelson, which upheld a Minnesota law denying marriage rights to gay men and lesbians. "It was a train wreck," says James Esseks, director of the American Civil Liberties Union's LGBT and AIDS Project. "It's a case that has haunted us for decades."

The 1980s brought Bowers v. Hardwick, which upheld Georgia's law banning homosexual sodomy. Other cases were filed -- and lost — on behalf of gay couples.

The effort began to take root in the 1990s, when proponents won their first court victory in Hawaii. The reaction was swift: Congress passed the Defense of Marriage Act in 1996, denying federal recognition to same-sex marriages that did not yet exist. Hawaii voters passed a constitutional amendment against same-sex marriage in 1998, making the matter moot.

Another victory came in Vermont in December 1999, but it, too, was short-lived. The state Supreme Court ruled that gay men and lesbians should have the same rights as heterosexuals, leaving it to the Legislature to decide how. The result, in 2000, was civil unions — not marriages

Not until 2003 did Massachusetts become the first state to legalize gay marriage inGoodridge v. Department of Public Health, a case won by Bonauto. That same year, Paul Smith won Lawrence v. Texas, which struck down the remaining state laws against sodomy. That was a major victory in the fight against discrimination. But beyond one state, marriage remained elusive.

"It was considered an impossible dream by some," Smith recalls. "Some gay people thought it was a crazy idea themselves.

"Litigation," he says, "changed hearts and minds."

Sarah Rice, Getty Images

The 43rd annual San Francisco Lesbian, Gay, Bisexual, Transgender Pride more

REAL PEOPLE, REAL BENEFITS

After Massachusetts, the deluge didn't come. The legal movement lost cases in New York, Washington, Maryland, Arizona and Indiana. Constitutional amendments banning gay marriage were passed in a dozen states in the fall of 2004.

So a group of about 15 advocates from groups such as the ACLU, the Human Rights Campaign and Lambda Legal met to plot a path through more states to the Supreme Court.

It took nearly five years before legislatures and courts answered the call. California was first, but a court decision legalizing gay marriage was quickly reversed by voters at the polls. Finally, a series of states from New England to Iowa made same-sex marriage legal. California finally became the 13th state last year.

"Every five years is a complete generation in gay rights law," says David Codell, constitutional litigation director for the National Center for Lesbian Rights.

Since then, federal and state courts have given an almost unbroken winning streak to the gay marriage movement, with only a federal judge in Louisiana upholding that state's ban. A total of 19 states and the District of Columbia now permit same-sex marriage, and courts have ruled favorably in 14 other states. Wolfson has been to 10 same-sex weddings this year alone.

Along with the court rulings has come a growing acceptance of same-sex marriage by a majority of Americans. The latest Gallup Poll showed 55% support for gay marriage and 42% opposed.

"If there is one silver bullet you have to point to that has moved public opinion dramatically over the years, it's folks getting to know us," says Chad Griffin, president of the Human Rights Campaign, the nation's largest gay rights organization. "It's been nearly five decades in the making."

USATODAY

Gay marriage: Which case will the Supreme Court choose?

USATODAY

For some same-sex couples, breaking up is hard to do

Despite those gains, gay rights advocates are trying to draw attention to the continuing hardships faced by same-sex couples.

Those blocked from matrimony are denied the financial benefits enjoyed by heterosexual couples, such as leaving pension, Social Security and veterans benefits to their spouse and avoiding estate taxes upon one partner's death. Non-biological parents are denied adoption rights. Even legally married couples face hassles when they travel to or move to states that don't recognize their marriages.

The differences in local, state and federal benefits translate into real dollars. A study released Tuesday by two liberal think tanks shows that same-sex couples raising children in states that ban gay marriage have nearly $9,000 less in annual household income than their married, opposite-sex counterparts.

"There are so many people who have suffered for decades without ever having health insurance, without ever having pension benefits," Codell says. The slow pace of justice "represents people dying off and never having been a family under the law."

In this July 2, 2014 photo, an unidentified child of a same-sex couple sits next to a protest sign during a court hearing on gay marriage in Miami.

A CLASH WITH RELIGIOUS FREEDOM

Even if the court strikes down the remaining state bans, however, it won't end the debate — or the legal battles. Up next: a collision course between gay rights and religious rites, in which churches and religious-affiliated groups seek exemptions from laws that follow the Supreme Court's decision.

"What statutory protections and exemptions should religious organizations seek to ensure their independence from state control and guard against retaliation?" a brief submitted to the court by Catholic, Baptist, Evangelical, Mormon and Lutheran organizations says. "What exactly are the rights of organizations and individuals with sincerely-held religious objections to participating in, facilitating, or recognizing same-sex marriage?"

To the ACLU's Esseks, the answers already are clear. "If we're talking about churches, churches get to do what they want," he says. "If we're talking about businesses, businesses have to follow the law."

Some on both sides of the debate say a peremptory ruling from the high court could mobilize the opposition in much the same way as the court's 1973 decision legalizing abortion has fueled state laws restricting that right.

"Do we want marriage to be the next Roe v. Wade?" says Carrie Severino, chief counsel at the conservative Judicial Crisis Network.

Smith predicts clashes over other gay rights issues, from equal access to employment to public accommodations. The question will be similar to this year's successful effort by employers with religious objections to avoid paying for their female employees' contraceptives, as well as failed efforts in Arizona, Kansas and elsewhere to exempt businesses from having to comply with civil rights laws for religious reasons..

"We have to figure out where to draw these lines," Smith says. "It is the last big battleground on which the whole issue of LGBT equality is going to be fought out."

And fight both sides will — potentially leading to still more Supreme Court showdowns.

"The last thing you can do is get off the field if you win," says Bonauto, who began the legal battle for gay marriage a generation ago. "I don't discount for a second that there are going to remain powerful voices against us."

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Interesting tidbits from Scalia:

October 2, 2014 1:36 PM

Scalia Fields Questions on Pot and Same-Sex Marriage in Colorado Talks

http://m.wsj.com/articles/BL-LB-49412

By JACOB GERSHMAN

Associated Press

A coy Supreme Court Justice Antonin Scalia fielded questions about marijuana legalization and same-sex marriage and defended the role of religion in public life during a visit to Colorado on Wednesday.

After giving a speech against the concept of an evolving Constitution, Justice Scalia at the University of Colorado was asked by a high school student about Colorado becoming the first state to allow recreational-pot sales, according to the Associated Press:

The student wanted to know how Scalia thought the conflict [between state and federal drug laws] should be resolved.

Scalia smiled and said, “I’m not going to respond to that because it would force me to have to recuse myself” if the question ever went to the high court.

But he added, “the Constitution contains something called the Supremacy Clause,” which is the provision stating that federal laws trump state laws.

The justice was also asked when we’ll find out if the high court will take up the question of whether state same-sex marriage bans are constitutional.

“I know when, but I’m not going to tell you,” he reportedly replied, getting a big laugh from the audience. “Soon! Soon!” he added.

At an earlier appearance Wednesday at Colorado Christian University, he also criticized what he considered attempts to expunge religion from public life, according to a Denver Post report:

There are those who would have us believe that the separation of church and state must mean that God must be driven out of the public forum,” Scalia said. “That is simply not what our Constitution has ever meant.”

But Scalia also warned that a religious preoccupation with the government “will destroy the church.”

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And yet the great ultimate turning point and propellant was when California passed Prop 8.  I doubt that without the backlash that occurred as a result of Prop 8 that you would see the situation we now find ourselves in.  If there was ever something that lacked inspiration, it was the Church supporting Prop 8.

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