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

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But then why even hear the case except to say there is a fundamental right to marriage?  There's no other realistic outcome.  Can you imagine a scenario where, say, the 6th Circuit upholds a ban, SCOTUS grants cert, the court hears the case in the following term, and then at the end of the term the court says "yep, states have a right to define marriage."  Utah, Indiana, etc. would go completely bonkers. 

 

What yesterday's denial of cert did was to effectively say to the 6th and other circuits, "don't even think about it."

I think you and your conclusions are right.

If SCOTUS really felt that any of the cases got it wrong, they would have granted cert.

The one benefit to denying cert is sharing responsibility and avoiding accusations of marriage equality winning by the vote of one judge.

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And Wyoming....

WYOMING: NCLR Files For Immediate Compliance With SCOTUS Decision

Via press release:

Today, four same-sex couples and Wyoming Equality filed a lawsuit in federal court challenging the State of Wyoming’s refusal to permit same-sex couples to marry and to respect the legal marriages of same-sex couples who married in other states. The couples will ask the court for an immediate order directing state officials to comply with a decision of the U.S. Court of Appeals for the Tenth Circuit in June establishing that a state’s refusal to allow same-sex couples to marry violates the Fourteenth Amendment of the U.S. Constitution. The U.S. Supreme Court on Monday let that appeals court decision stand, meaning that all states within the Tenth Circuit, including Wyoming, must comply with the decision.

The couples are Anne Guzzo and Bonnie Robinson of Laramie, Carl Oleson and Rob Johnston of Casper, Ivan Williams and Chuck Killion of Cheyenne, and who previously filed a state-court lawsuit challenging Wyoming’s marriage ban. Also joining the lawsuit are Brie Barth and Shelly Montgomery of Carpenter, who attempted to obtain a marriage license in Wyoming after the Supreme Court decision but were refused. Wyoming Equality is the state’s largest civil rights organization dedicated to securing full equality for Wyoming’s lesbian, gay, bisexual, and transgender community. Its members include same-sex couples throughout the state.

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Sigh.... Really? Really......? Has our educational system failed so badly that we have to keep reminding people that we are NOT "a democracy", or explain the difference between a democracy and a republic...?

OK. You slightly redeemed your "democracy" comment by acknowledging constitutional rights... almost. ;-)

You may need to go back to school, Daniel, in order to learn to differentiate between a popular vote by the people (in Prop 8) and the vote by elected representatives.  The difference is between initiative and legislation.  Both can constitute statutory law, but both are subject to judicial review to determine their constitutionality.  These are standards which must not be subjected to absurd agitation and propaganda techniques.

 

Deliberately falsifying the nature of the American form of government in order to support one's alien ideology and emotional commitments is always scurrilous and inappropriate.

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..........................................................................................................

The more I've thought about this since yesterday the more I've come to believe that all/most of SCOTUS (including a majority of both the liberal wing and the conservative wing) have concluded that it is in the Court's best interest to wait as long as possible.  Remember that it only takes 4 votes to grant cert, so either wing could have force a hearing. 

 

Why would the liberal wing wait? Because, as Scalia indicated in Windsor, they care about the public perception and feel acceptance of SSM will only increase with time.  This tact can viewed cynically.  Or it can be viewed as a way to limit public contention and a possible Roe event.  Also, the liberal wing may believe that they may never need to rule if all the circuits align in favor of SSM.

 

Why would the conservative wing wait?  Because they know they would lose if pushed at this time, but there is a possibility that a liberal judge (Ginsberg) could pass away or retire, thereby opening the possibility to the court's composition changing while the issue is still (somewhat) alive. If that is correct, the most direct impact of yesterday's (in)decision may be that it forces Ginsberg to stay on the court through the end of Obama's term.

The use of the emotive terms like "liberal" or "conservative" has nothing to do with reality, first because the U.S. Supreme Court has not had a so-called "liberal" justice for a generation, and second, the constant, ovewhelming move in American (and worldwide) politics has been to the right.

 

Most on this board are probably too young to recall a very different composition of the Court in past generations.  Measured by the shifts which have taken place in the past half-century or more, the Court must now be described as Moderate to Ultra-Right in current composition.  This requires the sort of historical perspective which the media is incapable of reflecting, i.e., reality.

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And as we wait for the 6th Circuits ruling any day, the 5th Circuit puts the Texas appeal on the fast-track...

Federal court agrees to fast-track Texas gay marriage case

http://blog.mysanantonio.com/texas-politics/2014/10/federal-court-agrees-to-fast-track-texas-gay-marriage-case/

Posted on October 7, 2014 | By Lauren McGaughy

AUSTIN – The 5th Circuit Court of Appeals has agreed to fast-track its review of Texas’ ban on gay marriage, likely queuing up oral arguments in the case before the end of the year.

On Tuesday, the 5th U.S. Circuit Court of Appeals in New Orleans agreed to expedite oral arguments in the case. The request came on Monday from Cleopatra DeLeon and Nicole Dimetman, one of two gay couples challenging the state ban. Victor Holmes and Mark Phariss are also appellees on the case.

Dimetman is pregnant with the couple’s second child due next year, and under current law, only she would immediately be recognized as the child’s legal parent. When DeLeon bore the couple’s first child, now 4, Dimetman formally adopted the baby to ensure both women would have parental rights. The process was expensive, burdensome and filled with uncertainty, they said earlier this week, and one they hope to avoid with a 5th Circuit win before their child is due on March 15.

“That process takes time. and of course they would do the same here if necessary,” said Barry Chasnoff, one of the attorneys for the two couples. “The concern is if something were to happen to Nicole after the baby is born, but before an adoption, then Cleo would not have parental rights.”

Chasnoff said he was “pleased” the federal court agreed to speed up the process, especially after the U.S. Supreme Court on Monday chose not to hear five other pending gay marriage cases. The decision immediately clears those five states – Indiana, Oklahoma, Utah, Virginia and Wisconsin - to begin performing legal marriages for same-sex partners.

Six additional states – North Carolina, South Carolina, West Virginia, Colorado, Kansas and Wyoming -  are in the same circuit courts. Individual suits or court orders would legalize gay marriage in these six states. And on Tuesday, the 9th Circuit Court became the fourth federal appellate court to rule in favor of gay marriage this year, overturning bans in Idaho and Nevada.

Within weeks, these most recent decisions and ruling could leave bans in place in just 15 states, including Texas. The fight for gay marriage has netted one major loss, however, when a federal judge in Louisiana upheld that state’s ban earlier this month. U.S. District Judge Orlando Garcia, a Bill Clinton appointee based in San Antonio, ruled Texas’ ban unconstitutional in February because it violated gay couples’ 14th Amendment rights to due process and equal protection.

The 5th Circuit agreed to have the same three-judge panel hear Texas and Louisiana’s pending gay marriage cases on the same day. Chasnoff said it’s hard to determine when oral arguments might take place, but hopes the date is set for “the next month or two.” The court is seen as one of the most conservative in the country.

Following the justices’ decision this week, the Supreme Court likely will only take up the gay marriage issue if a federal appeals court becomes the first to uphold a state’s gay marriage ban. A challenge to Ohio’s gay marriage ban also is pending in the 6th Circuit Court of Appeals, which could issue a ruling any day.

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South Carolina steps up ....

 

CHARLESTON, S.C. (AP) — A South Carolina court has approved a same-sex couple's application for a marriage license despite the state's constitutional ban against the practice and the attorney general's pledge to defend it.

 

Charleston County Probate Judge Irvin Condon accepted the couple's application Wednesday morning. South Carolina has a 24-hour waiting period for marriage licenses. Condon says he plans to issue the license to Charleston County Councilwoman Colleen Condon and Nichols Bleckley after that time frame unless the move is overruled by the courts.

 

Earlier this week, the U.S. Supreme Court decided not to hear an appeal of a ruling allowing same-sex marriage by a federal court with jurisdiction over South Carolina.

Condon says that as a result, his court must accept and issue marriage licenses.

A spokesman says State Attorney General Alan Wilson is reviewing the matter.

 

http://bigstory.ap.org/article/37538d9226444a2ca650c433481a1846/gay-marriages-start-south-carolina

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And it looks like SCOTUS may soon answer my question. Kennedy has temporarily stayed the 9th Circuit decision for Idaho, but ordered the plaintiffs to respond to Idaho's motion to stay by tomorrow. Man, things are moving quick.

 

 

Not so fast, Idaho and Nevada.

 

Supreme Court Justice Anthony Kennedy temporarily blocked a federal appeals court ruling that struck down bans on same-sex unions in the two states.

 

Kennedy's injunction followed an emergency request from Idaho officials, who said they would have otherwise begun issuing licenses on Wednesday morning, the Associated Press reported.

 

It was not immediately clear whether the ruling applied to Nevada, which had already begun preparing to allow same-sex marriages following Tuesday's decision by the 9th U.S. Circuit Court of Appeals in San Francisco to invalidate the bans in the two states. The AP reported that because of Kennedy's order, Clark County officials were telling gay couples not to line up for licenses that Las Vegas planned to begin issuing Wednesday afternoon.

 

The delay is a hiccup in the rapid advance of legal gay marriage across the country following Kennedy's majority opinion last year striking down the federal Defense of Marriage Act and clearing the way for same-sex nuptials in California. That advance went into overdrive this week when the Supreme Court on Monday declined to hear appeals from five states whose bans on gay marriage had been struck down in the wake of that decision, and the 9th Circuit ruling came a day later.

Kennedy gave the Idaho plaintiffs until Thursday to respond to the latest motions, according to the AP.

 

The ramifications of the high court's inaction were already felt in South Carolina, where a judge cited the decision to issue a marriage license to a gay couple despite a state ban on the unions.

 

http://www.theatlantic.com/politics/archive/2014/10/anthony-kennedy-puts-the-brakes-on-the-latest-gay-marriage-win/381226/

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You beat me to it, Buckeye.

Kennedy's issuance of a stay is a head-scratcher...

Why issue a stay when SCOTUS just released seven other appeals cases with virtually identical findings and orders...?

Weird. And frustrating, for those couples and families still waiting....

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You beat me to it, Buckeye.

Kennedy's issuance of a stay is a head-scratcher...

Why issue a stay when SCOTUS just released seven other appeals cases with virtually identical findings and orders...?

Weird. And frustrating, for those couples and families still waiting....

 

We will find out soon.  My best guess is that Kennedy already knows what he is going to do (deny the stay), but wants to make sure he follows typical protocol by having the plaintiffs submit a response brief.  It would be quite surprising (and raise an uproar) if he decided to rule against the plaintiffs after forcing them to submit a response brief in less then 2 days time.  If his mind were not made up, he would grant the stay and give plaintiffs a reasonable amount of time (at least a few weeks) to brief the issue. That he is moving so quickly suggests to me that he wants to have a plaintiff's brief to justify his ruling rather than just deny the motion on his own. The result will appear more proper and an be less subject to an assertion of "legislating from the bench" (though that will still be said).

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Kennedy issues a second order, lifting the stay in Nevada:

Justice Kennedy Allows Nevada Ruling To Go Into Effect

http://www.buzzfeed.com/chrisgeidner/justice-anthony-kennedy-halts-9th-circuit-marriage-ruling-fr?s=mobile#3pi3k0z

Update: Following a morning order stopping same-sex couples from marrying in Idaho and Nevada, a second order from the justice only puts the Idaho ruling on hold.

Posted on Oct. 8, 2014, at 8:46 a.m.

Chris GeidnerBuzzFeed Staff

UPDATE

Justice Anthony Kennedy ended the stay as to the Nevada marriage case in a second order filed Wednesday afternoon, likely clearing the path for same-sex couples to be able to marry there soon.

In the initial order from the justice, the final order, called a mandate, was stayed both as to Idaho — where state officials had requested a stay — and Nevada. The second order, available at the bottom of this article, only provides for a stay of the Idaho decision.Oct. 8, 2014, at 1:31 p.m.

WASHINGTON — In response to a last-minute request from lawyers for the state of Idaho, Supreme Court Justice Anthony Kennedy on Wednesday stopped Tuesday's federal appeals court marriage ruling from from going into effect immediately.

The temporary order appears to have put same-sex couples' marriages on hold in both states impacted by Tuesday's decision from the 9th Circuit Court of Appeals — Idaho and Nevada — despite the request only having coming from Idaho officials.

Under a Tuesday evening order from the 9th Circuit, the mandate in the cases challenging both Idaho and Nevada's bans on same-sex couples' marriages was issued. The mandate is the final step the appeals court needed to take in order to put its ruling that the bans are unconstitutional into effect.

Following the issuance of the mandate, Nevada officials announced they would not be appealing further and at least some local officials began preparing to allow same-sex couples to begin marrying on Wednesday. Idaho officials gave no such indication, with the state's attorney general saying, "It's still too early to know fully what the decision and orders mean for Idaho and how the state will proceed."

On Wednesday morning, however, lawyers for Idaho went to the Supreme Court, asking Kennedy to issue a temporary stay of the 9th Circuit's mandate, noting, "Unless stayed, the district court's injunction and the Ninth Circuit's mandate will compel Idaho officials to issue marriage licenses to same-sex couples beginning at 8:00 a.m. MDT this morning."

Although the application seeking the stay only came from Idaho officials, Kennedy's order issuing a stay includes the 9th Circuit case numbers of both the Idaho and Nevada cases. From the language of Kennedy's order, then, the rulings as to both Idaho and Nevada are on hold for now.

It was not immediately clear why Kennedy's order referenced the Nevada case number, although a Tuesday decision from the 9th Circuit might be why. On Tuesday, in a brief order issued just prior to the release of its decision striking down both states' bans, the 9th Circuit stated, "These cases are consolidated for purposes of disposition." As such, all of the orders — including the mandate — issued in the two states' cases were handled in a single order each time on Tuesday, meaning there was only one mandate issued as to both states' cases.

[This post was updated as new information became available, with the final update at 11:30 a.m.]

UPDATE

Clark County, Nevada, will not marry same-sex couples on Wednesday. Oct. 8, 2014, at 9:31 a.m.

Jon [email protected]

Official word from Clark County: "..issuance of marriage licenses to same-sex couples is on hold due to an order from the U.S. Supreme Ct."

9:28 AM - 08 Oct 14

UPDATE

Following Wednesday morning’s stay from Justice Kennedy, Idaho Attorney General’s Office spokesman Todd Dvorak told BuzzFeed News:

“Here is where things stand right now:

- The AG has filed a motion with the 9th U.S. Circuit Court of Appeals (filed early this morning) seeking recall of the mandate issued by the court last night

- The AG also intends to file a motion for rehearing en banc with the 9th. It’s our belief we have 14 days to file that motion

- The AG and his attorneys will be working with the Governor’s lawyers on filing briefs to the SCOTUS as requested by Justice Kennedy’s stay, issued minutes before marriage certificates were to be issued this morning.

That’s the legal roadmap as we know it now. This is a fluid situation, however, and I will be sending out a media statement later today.”

BuzzFeed News will have more information as it is made available. Oct. 8, 2014, at 11:46 a.m.

Update at 3:31 p.m.: Here is Justice Anthony Kennedy’s order:

UPDATE

Lambda Legal’s legal director, Jon Davidson, issued a statement about the justice’s second order, “As we had hoped, the Supreme Court has clarified this morning’s order and explained that there is no stay of the Ninth Circuit’s mandate as to Nevada. The temporary stay applies only to Idaho. We are delighted and hope officials in Nevada will continue to move quickly, as they had been, to start issuing marriage licenses to same-sex couples.” Oct. 8, 2014, at 2:37 p.m.

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........North Carolina......

Judge lifts stay, about to rule on NC same-sex marriage

http://www.nbc26.tv/story/26738861/judge-lifts-stay-about-to-rule-nc-same-sex-marriage

Posted: Oct 08, 2014 2:26 PM MDT

Updated: Oct 08, 2014 3:30 PM MDT

by WNCN Staff

GREENSBORO, N.C. -

A federal judge has lifted stays on two American Civil Liberties Union lawsuits that could clear the way for same-sex marriages in North Carolina.

Judge William Osteen, of the federal Middle District in Greensboro, on Wednesday lifted a stay in two cases involving same-sex couples, one of which involved three same-sex couples seeking state recognition of their out-of-state marriage.

Mike Meno, a spokesman for the ACLU of North Carolina, told WNCN that Osteen asked for a motion from the ACLU on the gay marriage issue. Meno said the ACLU expects Osteen, who was appointed by President George W. Bush, to rule that gay North Carolinians may marry as soon as late Wednesday afternoon or Thursday.

Federal courts generally close at 5 p.m., so Meno said the ACLU lawyers were working urgently to get a motion to the court in Greensboro.

The husband of Wake County Register of Deeds Laura Rid**** said the county will not be issuing marriage licenses to same-sex couples Wednesday. Rid**** was not available for comment.

The ruling comes after the U.S. Supreme Court on Monday declined to weigh in on a 4th U.S. Circuit Court of Appeals ruling that would allow gay marriage. By not taking up the appeals of five states seeking to preserve their marriage bans, the Supreme Court effectively made same-sex marriages legal in 30 states, up from 19 and the District of Columbia.

The 4th U.S. Circuit Court of Appeals has jurisdiction over the state of North Carolina, and Osteen has the power to make a decision that would overturn a North Carolina constitutional amendment defining marriage as between a man and a woman.

State Attorney General Roy Cooper has said his office would not defend the state's law now that the federal courts have ruled. But House Speaker Thom Tillis and Senate leader Phil Berger have said they plan to hire outside counsel to defend the state's law.

The legislative leaders pointed to the fact that 60 percent of North Carolinians voted for the amendment in May 2012. Voter turnout for the May 2012 primary was 35 percent, according to the state Board of Elections, while turnout for the November general election was 68 percent.

In a statement, Berger said, "We look forward to North Carolina's law having its day in court, and we will continue to do all we can to defend the values of our state and the will of the wide majority of voters who cast ballots to add the marriage amendment to our state constitution."

Tillis, who is running for Senate against Democrat Kay Hagan, has continued to say this week he wants to fight for the North Carolina law.

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....and Kansas...

Kansas Judge Orders County Clerk to Begin Issuing Marriage Licenses to Gay Couples

http://www.towleroad.com/#ixzz3FamlcWxc

A District Judge in Kansas has ordered the Johnson County Clerk to begin issuing marriage licenses to gay couples in light of recent federal court rulings on same-sex marriage.

Johnson County is the most populous county in Kansas and contains many of Kansas City's southwestern suburbs including Overland Park.

Here's the order: https://www.scribd.com/mobile/doc/242332740/embed?access_key=key-5176oy0YMCjozB36hNOf

The rulings are coming in SOOOOO fast that the media (and I) have a hard time keeping up... updates within updates....

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We will find out soon. My best guess is that Kennedy already knows what he is going to do (deny the stay), but wants to make sure he follows typical protocol by having the plaintiffs submit a response brief. It would be quite surprising (and raise an uproar) if he decided to rule against the plaintiffs after forcing them to submit a response brief in less then 2 days time. If his mind were not made up, he would grant the stay and give plaintiffs a reasonable amount of time (at least a few weeks) to brief the issue. That he is moving so quickly suggests to me that he wants to have a plaintiff's brief to justify his ruling rather than just deny the motion on his own. The result will appear more proper and an be less subject to an assertion of "legislating from the bench" (though that will still be said).

I believe you're right--given Kennedy clarified he was lifting the stay on Nevada, the Idaho incident seems procedural, and will likely (hopefully!) be short-lived.

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And the yo yo goes back and forth...

Will SCOTUS be forced into entering the fray once more, sooner than they'd expected, after all....?

I mean, when is enough enough....? These are people's lives that are being played with.

SAME-SEX MARRIAGE ONCE AGAIN ON HOLD IN NEVADA, 9TH CIRCUIT RESCINDS MANDATE IN IDAHO

http://www.towleroad.com/2014/10/same-sex-marriage-once-again-on-hold-in-nevada-9th-circuit-rescinds-mandate-in-idaho.html

BY SEAN MANDELL

After Supreme Court Justice Anthony Kennedy issued an order earlier today stating that his stay of the 9th Circuit's ruling yesterday only applies to Idaho and not to Nevada, it seemed that same-sex couples, who were originally slated to be able to get married today starting at 2 P.M., would once again have the opportunity to marry. However, in a series of tweets sent out by Clark County (which encompasses Las Vegas), it appears that same-sex marriage is once again delayed in the Silver State:

The issuance of #marriagelicenses to same-sex couples is on hold due to pending motions in the courts #Vegas #9thCircuit...

The #9thCircuit is currently considering whether to recall the mandate to the District Court requiring an injunction...#Vegas #samesexmarriage...

Our #MarriageLicenseBureau had expected to begin accepting marriage license applications from same-sex couples today at 2 p.m. #Vegas...

It is unclear at this time when we will be able to begin issuing marriage licenses to same-sex couples #Vegas #9thCircuit

As mentioned in the above tweets, the 9th Circuit is also considering whether to recall its mandate issued yesterday that same-sex marriages must begin in Nevada immediately following its ruling striking down the state's same-sex marriage ban. The court has, however, already rescinded its mandate as it applies to Idaho. BuzzFeed's Chris Geidner reports:

Subsequent to the second order from Justice Anthony Kennedy, the 9th Circuit Court of Appeals recalled the mandate in the Idaho marriage case, per an order it filed Wednesday afternoon.

Additionally, regarding the Coalition for the Protection of Marriage’s request before the 9th Circuit asking it to recall its mandate in the Nevada marriage case, the court called for responses to that request by 5 p.m. PT Thursday.

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SCOTUS lifts the ban in Idaho:

BREAKING NEWS: Idaho!

http://joemygod.blogspot.com/2014/10/breaking-idaho-idaho-idaho.html?m=1#disqus_thread

From the National Center for Lesbian Rights:

Today, the Supreme Court of the United States rejected a request by State of Idaho officials to put on hold the federal appeals court decision that struck down as unconstitutional Idaho’s laws prohibiting marriage by same-sex couples. The Supreme Court’s decision allows the United States Court of Appeals for the Ninth Circuit to enter an order allowing its October 7th decision in the Idaho case to go into effect. Upon entry of such an order by the Ninth Circuit, the State of Idaho would be required to issue marriage licenses to same-sex couples immediately.

On October 7th, the Ninth Circuit ruled 3-0 that Idaho’s ban on the freedom to marry for same-sex couples violates the U.S. Constitution’s guarantee of equal protection. Later that day, the Ninth Circuit ordered that its decision take effect immediately, which would have required Idaho to begin issuing marriage licenses the following morning.

On October 8th, United States Supreme Court Justice Anthony Kennedy temporarily stayed the Ninth Circuit’s decision in response to a request by State of Idaho officials to keep that decision from taking effect while the state officials either ask for further review of the case by a larger panel of Ninth Circuit judges or ask the Supreme Court to review the case. Today’s decision by the Supreme Court rejected that request and cleared the way for the Ninth Circuit to enter an order allowing its decision to take effect.

The four couples who successfully challenged Idaho’s ban on marriage for same-sex couples in the Ninth Circuit are represented by Boise attorneys Deborah A. Ferguson and Craig Durham of Ferguson Durham, PLLC, Deanne Maynard and Marc Hearron of the law firm of Morrison & Foerster, LLP, and the National Center for Lesbian Rights (NCLR).

It would seem the handwriting is on the wall.

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Looks like Alaska may be next:

Alaska judge hears same-sex marriage arguments

http://www.adn.com/article/20141010/oral-arguments-challenging-alaskas-same-sex-marriage-ban-proceed-friday

Suzanna Caldwell

October 10, 2014

Plaintiffs Matt Hamby, left, and Chris Shelden speak following oral arguments in the Hamby v. Parnell case concerning same-sex marriage held on Friday afternoon, October 10, 2014, at the James M. Fitzgerald United States Courthouse and Federal Building downtown. Caitlin Shortell, right, was one of the attorneys representing five pairs of plaintiffs at the hearing.ERIK HILL / Alaska Dispatch News

Oral arguments challenging Alaska’s same-sex marriage were held Friday, just days after the 9th Circuit Court of Appeals ruled similar bans in other states are unconstitutional.

U.S. District Court Judge Timothy Burgess heard the arguments Friday, though he had no immediate ruling on the issue. Plaintiffs have asked for summary judgment in the case, which challenges Alaska's constitutional ban on same-sex marriage. If overturned, same-sex couples in Alaska could seek marriage licenses.

Burgess' ruling could come as soon as Monday.

In a packed federal courtroom Friday, attorneys in Hamby v. Parnell both argued their cases for why Alaska’s marriage ban should be either upheld or overturned. Five couples sued the state in May, saying their equal protection and due process rights are violated since they cannot legally be married or have their marriages recognized in Alaska.

Alaska was one of the first states to explicitly ban same sex marriage, in 1998, when voters approved a constitutional amendment that defined marriage as between one man and one woman.

Same-sex marriage is legal in 28 states as of Friday, with appellate court rulings in seven other states likely to overturn marriage bans in the near future.

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The world is a better place.

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The world is a better place.

I don't know about the whole world, but the United States is certainly more observant of its own Constitution, something it was not when the 1857 Dred Scott decision was issued, or when the 1878 Reynolds v USA decision was made.

There was something sad and understandable about that 1857 decision (just another notch in the ratcheting up to the Civil War), and about the complete disregard for the rights of the Mormon people all along, including finally the disregard for the 14th Amendment in 1878 -- equal protection of the laws . . .

 

It has nothing to do with whether one favors same sex marriage, but rather whether one actually favors Constitutional Law for everybody.  It is that basic.  Live and let live.

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The Supreme Court in Reynolds didn't need the 14th Amendment to decide the case because Utah was a territory at the time, and territories are subject to the restrictions upon the Federal government.  Be that as it may, the Reynolds case was badly decided with poor reasoning -- unfortunately, the Church resurrected that reasoning ironically in the amicus appellate brief it signed in Prop 8.  It is basically the cultural tradition argument that has been routinely rejected in the SSM cases.  I would think at this point Reynolds lays on a very shaky footing which could collapse if a clean polygamy case hits the Federal system.  However, there are secular arguments that could be made against polygamy, that were non-existent for SSM.

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The Supreme Court in Reynolds didn't need the 14th Amendment to decide the case because Utah was a territory at the time, and territories are subject to the restrictions upon the Federal government.  Be that as it may, the Reynolds case was badly decided with poor reasoning -- unfortunately, the Church resurrected that reasoning ironically in the amicus appellate brief it signed in Prop 8.  It is basically the cultural tradition argument that has been routinely rejected in the SSM cases.  I would think at this point Reynolds lays on a very shaky footing which could collapse if a clean polygamy case hits the Federal system.  However, there are secular arguments that could be made against polygamy, that were non-existent for SSM.

While the Reynolds case took place in a territory of the U.S., didn't it apply to the states as well once the verdict was handed down?

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While the Reynolds case took place in a territory of the U.S., didn't it apply to the states as well once the verdict was handed down?

Well that is a good question, the conviction was under a Federal Statute in a territory, so State law was not in play. Had Utah been a State it would have been decided under the supremacy clause, I suppose. Reynolds has never been overruled, but the reasoning is pretty shaky. Last year a Federal District Court made a blistering attack on it, but then conceded it was still binding precedent and made a very limited ruling which addressed an issue not before the Court in Reynolds.

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A nice summary of this week's marriage movement is below.

In particular, the NC news that magistrates will lose their jobs if they refuse to marry same-sex couples because of their religious beliefs... Public servants cannot refuse to serve the public.

Gay marriage developments: North Carolina mandate

http://www.washingtonpost.com/national/gay-marriage-developments-idaho-couples-marry/2014/10/15/b155c1ae-549e-11e4-b86d-184ac281388d_story.html

By Associated Press October 15 at 7:32 PM

It’s been more than a week since a flurry of gay marriage developments began with the Supreme Court’s denial of appeals from five states, allowing for expansion of marriage rights. Shortly afterward, a federal court in the West struck down bans in Idaho and Nevada. Recent developments on same-sex marriage around the country:

___

ALASKA

The state of Alaska has asked a federal appeals court for a stay after a district court ruled earlier this week that the state’s gay marriage ban is unconstitutional. The state is hoping to block gay marriages before they can start Thursday while officials appeal the lower court’s opinion. However, the same request was already denied by U.S. District Court Judge Timothy Burgess on Tuesday. Burgess recently struck down the ban, which voters passed in 1998. Gay couples statewide began applying for marriage licenses on Monday, starting a three-day clock before ceremonies can be held.

___

FLORIDA

State Attorney General Pam Bondi, who has repeatedly called it her duty to defend the state’s ban on gay marriage, now wants the state’s highest court to decide whether it’s legal. Her office filed a request late Monday with the 3rd District Court of Appeal in Miami that asks the court to immediately send two consolidated cases to the Florida Supreme Court for a decision. In both cases, judges declared the state’s gay marriage ban unconstitutional. It’s not clear how soon the court could rule if it takes up the cases. There also is a separate federal case that could be decided before then.

___

IDAHO

Idaho gay couples celebrated across the state as county clerks began issuing same-sex marriage licenses at 9 a.m. Pacific Wednesday morning. Idaho leaders warned, however, that the fight over allowing gay marriage in one of the nation’s most conservative states is not over. While Gov. C.L. “Butch” Otter said he would not appeal the 9th Circuit Court decision to lift the state’s ban on gay marriage, he later promised that he would not give up defending Idaho’s constitution which defines marriage as between one man and one woman.

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KANSAS

The American Civil Liberties Union has asked a federal court to order Kansas to allow same-sex couples to wed while the group’s lawsuit against the state constitution’s ban is under review. The group argued in its filing in U.S. District Court in Kansas City that it is likely to prevail. It also said that denying the right to marry even for a short period would do irreparable harm to the two lesbian couples represented by the ACLU in the case. The group wants to immediately block the state from enforcing its gay marriage ban. Attorney General Derek Schmidt’s spokeswoman did not immediately return messages seeking comment.

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MONTANA

Couples challenging Montana’s ban on gay marriages asked a federal judge Wednesday to decide the issue without going to trial. ACLU Montana legal director Jim Taylor says the 9th Circuit’s recent decision to strike down similar bans elsewhere in the West should convince U.S. District Judge Brian Morris to rule in their favor. Montana is part of the 9th Circuit and district judges use decisions from the appellate court as precedents for their rulings.

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NEVADA

Gay marriage opponents filed a request Monday asking the full 9th Circuit to hear their case against same-sex unions in Nevada. In documents calling the issue “a question of historic importance,” the Coalition for the Protection of Marriage claimed bias by a three-judge panel of the court that last week struck down a 2002 Nevada constitutional amendment prohibiting gay marriage. The coalition said a review before the full court is necessary because judges who were “favorably disposed to arguments for expanding the rights of gay men and lesbians” were assigned to the case. A spokesman for the appeals court has declined to comment.

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NORTH CAROLINA

North Carolina magistrates have been directed to perform civil marriages for same-sex couples or face suspension or dismissal from their state jobs. A memo to state magistrates Wednesday said they would be violating their oaths of office if they refuse to marry gay or lesbian couples. The directive came after a magistrate in Pasquotank County on Monday refused to marry two men, citing religious objections. Some magistrates in Alamance County also said they wouldn’t marry gay couples. A federal judge last week struck down North Carolina’s same-sex marriage ban as unconstitutional.

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SOUTH CAROLINA

A second federal lawsuit was filed Wednesday in South Carolina asking for a judge to declare the state’s constitutional ban illegal. The case was brought by a Charleston couple who applied for, but did not receive, a marriage license. Another case before a federal judge in Columbia wants South Carolina to recognize a gay marriage performed elsewhere. Gay marriage appeared imminent last week until the state Supreme Court ruled that South Carolina must wait for a ruling in the recognition case, which is advancing again after the U.S. Supreme Court’s decision not to hear an appeal of a ruling allowing same-sex marriage in Virginia by a federal appeals court that also has jurisdiction over South Carolina.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Daniel, I don't have a link, but I just overheard from a co-worker that my Circuit - the Sixth - has upheld a gay marriage ban. Thus, there is finally a circuit split and it looks like SCOTUS may have to rule after all.

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http://www.towleroad.com/2014/11/6th-circuit-upholds-gay-marriage-bans-in-michigan-kentucky-ohio-and-tennessee.html

In September, Justice Ruth Bader Ginsburg suggested people look to the Sixth Circuit's decision as an indicator for SCOTUS action on the constitutionality of same-sex marriage. The AP reported at the time:

[Ginsburg] said 'there will be some urgency' if [the Sixth Circuit] 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.'

http://www.freep.com/story/news/local/michigan/2014/11/06/th-circuit-sex-marriage-ruling/18610117/

The top was just posted about 27 minutes before I posted, so you just missed it.

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