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

[Daniel2]

A fourth ruling from a different case and judge comes out of Florida:

Posted: 5:02 p.m. Tuesday, Aug. 5, 2014

Palm Beach County judge declares gay marriage ban unconstitutional

http://m.palmbeachpost.com/news/news/local/palm-beach-county-judge-declares-gay-marriage-ban-/ngwM5/



By Daphne Duret

Palm Beach Post Staff Writer

WEST PALM BEACH —

Following recent rulings from judges in three South Florida counties, a Palm Beach County Circuit judge this afternoon issued a ruling declaring Florida’s ban on same-sex marriage unconstitutional.

Circuit Judge Diana Lewis’ opinion was tied to a probate case of Frank Bangor, 61, who died in Pennsylvania in March. W. Jason Simpson, Bangor’s partner of 37 years and the man he married in Delaware last year, petitioned the court to gain control of the Boynton Beach winter home the two shared.

Though Lewis declared that Florida’s marriage prohibitions “unnecessarily discriminate” against same-sex partners, her ruling — like those recently from her counterparts in Broward, Miami-Dade and Monroe counties — does not make gay marriage legal in Florida.

“People aren’t going to be able to line up tomorrow and get marriage licenses because of this, but it is important that they have declared this unconstitutional,” Andrew Fein, Simpson’s attorney, said of the ruling. “When something’s declared unconstitutional, it doesn’t just spring back into being right - at least not in this case.”

Under Florida law, a spouse is recognized as a personal representative of an estate provided the out-of-state marriage is recognized as valid under state law. Simpson petitioned Lewis to be recognized as Bangor’s personal representative despite the ban on gay marriage in Florida.

In her 12-page ruling, which comes a day after a Broward judge struck down Florida’s gay marriage ban in a decision regarding a West Palm Beach woman’s quest to divorce a woman she wed in a civil union in Vermont, Lewis said the bans “fail to pass constitutional muster.”

“Same-sex couples are entitled to respect, dignity and protection as any other spouse requesting to be a personal representative,” Lewis wrote.

In the Broward case, Circuit Judge Dale Cohen issued an automatic stay of his ruling, apparently anticipating an appeal from Florida Attorney General Pam Bondi’s office. Bondi has appealed similar rulings from judges in Miami-Dade and Monroe counties. In those two cases, same-sex couples sued local court clerks who denied them issuance of marriage licenses.

The only other Palm Beach County case challenging the state’s gay marriage ban never made an appearance in circuit court. Instead, it’s an appeal of a Florida Atlantic University administrative order directly to the 4th District Court of Appeal. The case involves Gildas Dousset, a native of France, who sought in-state tuition at FAU based on his marriage to Paul Rubio, a lifelong Floridian.

After the U.S. Supreme Court struck down the Defense of Marriage Act in June 2013, Dousset and Rubio, who lived in Fort Lauderdale, legally married in Massachusetts. FAU, however, would not recognize the marriage for residency purposes. Dousset appealed directly to the 4th District Court of Appeal in February, making it the first state challenge to reach the appellate court.

Lewis, who is running for reelection against attorney Jessica Ticktin in a race to be decided this month, noted in her ruling that the attorney general’s office didn’t contest Simpson’s case and no one from Bondi’s office showed up for a hearing on the matter last month. Fein said he sent notice of his petition to the office as required by law, but aside from an informal request for more information about his case, he received no other response from Bondi’s office.

Fein said Bondi has 30 days to appeal Lewis’ ruling.

In the meantime, Simpson, who still lives in the Pennsylvania home he shared with Bangor, celebrated Lewis’ decision Tuesday as he still struggled to grieve.

Simpson,68, a retired mental health professional, met Bangor at a social gathering nearly four decades ago. The two went to Vermont for a civil union in 2001 and were married at a courthouse in Delaware just five months before Bangor died. By then, Bangor had named Simpson as his sole beneficiary in a 2005 will.

Simpson and Bangor selected their home in Boynton Beach four years ago after a year of searching. For Bangor — a housing consultant who worked with federal, state and local authorities nationwide ensuring agencies were meeting housing standards — the open layout of the home they purchased was a welcome contrast to their more traditional Pennsylvania home.

It was during their stay at the home over the Christmas holiday that Bangor suddenly became ill. Though doctors thought he was recovering, and he traveled for business in early March, he took a sudden turn for the worse and died March 15.

Although Simpson said he knew his legal fight could be part of a precedent, he didn’t think about that when he began.

“For me it was personal,” he said. “It was about carrying out Frank’s wishes, and honoring his memory.”

[Daniel2]

And Virginia's Attorney General announces that he will also file a request for SCOTUS to review the 4th Court of Appeals decision, but from the exact opposite stance and intent as Utah's Attorney General:

Virginia seeks review of gay marriage ruling

http://www.washingtonpost.com/local/plaintiffs-oppose-stay-of-va-gay-marriage-ruling/2014/08/05/536c46ae-1cb2-11e4-9b6c-12e30cbe86a3_story.html

By Associated Press August 5 at 5:40 PM

RICHMOND, Va. — Virginia Attorney General Mark Herring said Tuesday he would ask the Supreme Court to review a decision that struck down the state’s ban on same-sex marriage, although he supports the lower court’s decision.

The Democrat has chosen not to defend the state’s law, but has also asked for 4th U.S. Circuit Court of Appeals to stay its decision because he believes there could be unintended consequences. Herring’s office said it planned to make its filing seeking a Supreme Court review on Friday.

“I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard,” Herring said in a statement.

On Monday, the plaintiffs in the case challenging Virginia’s same-sex marriage ban said they wanted a federal appeals court to allow gay marriages to occur before the U.S. Supreme Court can rule on the issue.

“The right to marry is fundamental, and thus Virginia’s marriage prohibition irreparably harms plaintiffs-appellees — and all gay men and lesbians in the commonwealth — each day that it remains in force,” attorneys for two gay couples challenging the law wrote in a Monday court filing.

Last week, a county court clerk in northern Virginia sought to delay the 4th U.S. Circuit Court of Appeals’ ruling striking down Virginia’s law while it is appealed. That 2-1 ruling upheld the decision made by a lower district court in Norfolk.

Attorneys for Michelle B. McQuigg, clerk of Prince William County’s Circuit Court, had argued in their filing that the delay would “ensure the orderly resolution of the important constitutional question presented in this case while avoiding uncertainty for the public and irreparable injury to the commonwealth.”

Without a stay, marriage licenses for Virginia same-sex couples could be issued 21 days after the ruling.

In the Monday filing, attorneys wrote that allowing the immediate enforcement of the district court’s injunction would not result in any irreparable injury to the Prince William County clerk, the state of Virginia or the public interest.

It's worth noting that the Virginia case was first filed in July 2013 and was joined by the American Foundation for Equal Rights (AFER) attorneys Ted Olson and David Boies (the legal team behind the SCOTUS ruking striking down Prop in late September. In March of this year, the Fourth Circuit Court allowed attorneys from Lambda Legal and the ACLU, who had filed a separate marriage suit in Virginia, to join the AFER case. That decision came over AFER's objections. It's possible that all three groups will appear before the Supreme Court on behalf of the plaintiffs.

[Stone holm]

And Virginia's Attorney General announces that he will also file a request for SCOTUS to review the 4th Court of Appeals decision, but from the exact opposite stance and intent as Utah's Attorney General:

It's worth noting that the Virginia case was first filed in July 2013 and was joined by the American Foundation for Equal Rights (AFER) attorneys Ted Olson and David Boies (the legal team behind the SCOTUS ruking striking down Prop in late September. In March of this year, the Fourth Circuit Court allowed attorneys from Lambda Legal and the ACLU, who had filed a separate marriage suit in Virginia, to join the AFER case. That decision came over AFER's objections. It's possible that all three groups will appear before the Supreme Court on behalf of the plaintiffs.

Had he not done that, those supporting the ban might have had the same standing problem as was encountered in the Prop 8 case, not sure how that satisfies the case and controversy requirement though.

[Daniel2]

Had he not done that, those supporting the ban might have had the same standing problem as was encountered in the Prop 8 case, not sure how that satisfies the case and controversy requirement though.

Good observation.

My impression is that many same-sex marriage supporters hope that the Virginia case is the one that SCOTUS will choose to hear. There is a poetically historical president already set for Loving vs. Virginia that would seem to being the civil right of marriage full circle.

Of course, there are also a far share of same-sex marriage supporters that would relish watching karma circle back against Utah and the LDS church, should SCOTUS choose its case and use it to recognize federally-based constitutional civil marriage rights for same-sex couples.

Though entirely implausible, I think it would be kinda cool if SCOTUS somehow could combine several into one comprehensive case that settled the issue for all.

[Daniel2]

As Oral Arguments in the 6th Circuit Court of Appeal conclude today (click here to listen to them http://www.ca6.uscourts.gov/internet/default.html), Oklahoma (in the 10th Circuit) throws it's hat into the SCOTUS frey... The landslide heralding a federal ruling is finally on the horizon!

Oklahoma Gay Marriage Ban Lands at Supreme Court

http://abcnews.go.com/US/wireStory/oklahoma-gay-marriage-ban-lands-supreme-court-24869653

By The Associated Press

Aug 6, 2014, 3:56 PM

TULSA, Okla. — The U.S. Supreme Court is being asked to decide whether Oklahoma's ban on gay marriage is constitutional.

The appeal was filed Wednesday by an organization representing Tulsa County Clerk Sally Howe Smith, who was sued after refusing to grant a marriage license to a same-sex couple several years ago.

The 10th U.S. Circuit Court of Appeals sided with the couple last month, upholding a federal judge's ruling that found the ban unconstitutional.

However, those rulings are on hold as the case makes its way through the courts, meaning same-sex couples haven't been allowed to marry in Oklahoma.

The ban was approved by more than 75 percent of voters in 2004. The couple who sued, Sharon Baldwin and Mary Bishop, challenged the ban shortly after it was approved.

To your point, Stoneholm, this one seems less likely to reach SCOTUS--I wonder if the court would decline it based on a standing-related issue, as it's being brought by a county clerk.

[Stargazer]

I'm curious to read the actual filing... is this available somewhere, do you know?

[Daniel2]

The Washington Post and New York Times both have great summaries of yesterday's trial in the 6th Circuit Court of Appeals:

Federal appeals court may be roadblock to gay marriage cases in four states

http://www.washingtonpost.com/politics/courts_law/same-sex-marriage-cases-from-four-states-to-be-heard-in-ohio-federal-appeals-court/2014/08/06/a026458c-1d82-11e4-ab7b-696c295ddfd1_story.html

By Robert Barnes August 6 at 8:00 PM  

CINCINNATI — If the issue of same-sex marriage is on an expressway to the Supreme Court, Wednesday was rush hour in a federal appeals court here.

In an unprecedented and marathon hearing, tag teams of attorneys for four states told an appellate panel why voter-approved prohibitions in Kentucky, Michigan, Ohio and Tennessee should be honored.

All the while, plaintiffs and their families filled row after row of a huge, ornate courtroom, arms around one another, occasionally shushing babies and listening for their names to be mentioned.

It became clear after three hours of arguments that the panel could become the first roadblock for proponents of same-sex marriage who have had an extraordinary winning streak in knocking down state restrictions following a landmark decision by the Supreme Court in 2013.

That 5 to 4 ruling struck down the part of the federal Defense of Marriage Act that defined marriage as only between a man and a woman.

Same-sex marriage status in the U.S., state-by-state

But a panel of three randomly chosen judges of the U.S. Court of Appeals for the 6th Circuit left questions about whether it would follow the lead of two other appeals courts. Those courts said the reasoning of the Supreme Court’s decision meant that states lacked the right to limit marriage to opposite-sex couples and to deny recognition of unions conducted elsewhere.

Appeals Court Judge Jeffrey S. Sutton repeatedly asked attorneys representing the same-sex couples why they didn’t think it better to win marriage rights systematically through the democratic process, capturing the “hearts and minds” of their fellow citizens instead of “five votes of the Supreme Court.”

Because overturning state constitutional amendments is difficult, time-consuming and expensive, they answered. And Alphonse A. Gerhardstein, representing same-sex couples married elsewhere who want Ohio to recognize their unions, said it is wrong to make a fundamental right dependent upon popular approval.

Such rights should not be subject to popular vote, Gerhardstein said.

His clients, he said, have children who can have only one of their parents officially recognized. “They deserve two parents,” he said. “They deserve them now.”

A more conservative panel

A loss might not be the worst thing for proponents of same-sex marriage, who are eager to get the issue to the high court. Even in those states where courts have struck down bans, Supreme Court justices have blocked marriages until the appeals courts or the high court itself decides the issue.

Although the justices in 2013 ruled 5 to 4 inU.S. v. Windsor that the federal government could not refuse to recognize same-sex marriages performed in those states where it is legal, the court did not decide whether states, the traditional guardian of marriage laws, may ban such unions.

Although two appeals courts have ruled that bans in Oklahoma, Utah and Virginia violate the federal Constitution, the Supreme Court is under no obligation to review those decisions.

But if there is a split among the appeals courts on whether marriage is a fundamental right that must be offered to all or, alternatively, that states are free to restrict it to heterosexual couples, that would almost surely require Supreme Court intervention sooner rather than later.

The 6th Circuit is more conservative than the two appeals courts that have ruled. It has twice as many judges nominated by Republican presidents as Democratic ones, and the panel of judges hearing the cases precisely reflects that split.

Sutton and Circuit Judge Deborah L. Cook were nominated by President George W. Bush, and Senior Circuit Judge Martha Craig Daughtrey was chosen by President Bill Clinton.

Daughtrey left little doubt where she came down on the issue. She repeatedly invoked civil rights struggles of the past, and compared the cases to Loving v. Virginia, a 1967 decision that said bans on interracial marriage were unconstitutional.

She repeatedly drew laughter from the crowd with tough questions for the states’ lawyers and sometimes caustic asides. When Ohio Solicitor General Eric Murphy said voters in the states are free at any time to change their minds and allow same-sex marriage, she asked him if he knew how long it took women to win the right to vote.

“Seventy-eight years,” she said, of trying to persuade states and localities to grant the franchise before an amendment to the Constitution finally settled the issue.

She said she wasn’t asking Murphy to respond. “I just thought you’d like to know that if you’re ever on ‘Jeopardy,’ ” she said.

Cook made few comments during the proceedings, but she seemed inclined to side with the states. The couples in Ohio were aware that the state would not recognize their marriages when they moved there, she said. And she worried about the courts undermining voters, who approved the bans overwhelmingly.

A judge is scrutinized

That left Sutton as the most closely watched. A former clerk to Justice Antonin Scalia, he made a name for himself as a lawyer before the Supreme Court as a vigorous advocate for federalism. Liberal groups fought his nomination for two years, partly because he was considered a potential Supreme Court choice in a Republican White House. His clerks often move on to similar positions at the high court, usually in the chambers of the court’s conservative members.

“He is seen as an influential judge outside the circuit,” said Pierre Bergeron, a Cincinnati lawyer who maintains the 6th Circuit Appellate Blog.

Supporters of same-sex marriage are concerned about an article that Sutton wrote this year for the Harvard Law Review. “Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights,” he wrote.

But in one significant case, Sutton was a surprise and a disappointment to conservatives: He held that Congress had the power to pass the Affordable Care Act.

On Wednesday, Sutton gave both sides reason for hope and concern. The question came down to whether states had the right to define marriage, he said.

He debated the lesson of Loving, saying that if a white man and a black man had applied for a marriage license the next year, it was clear that they would have been denied. And he said Windsor addressed the federal government’s attempt to intervene in an area — marriage — that had traditionally been left to the states.

Don’t states deserve the benefit of the doubt in trying to preserve the definition of marriage that has prevailed for ages, he asked.

On the other hand, Sutton seemed to side with Daughtrey in questioning the state’s proffered reason for restricting marriage to heterosexual couples: encouraging procreation and increasing the chances that a child would be raised in a home with a mother and a father.

He also said that although the message of the Supreme Court’s Windsor decision may be ambiguous, the “trajectory” is clear: more recognition and protection of gay rights.

The panel has no deadline for deciding the cases. By the time it does, it is likely that at least three other appeals courts will have heard challenges.

The NYT notes that a loss at this stage of the appeals process wouldn't be such a bad thing for same-sex marriage advocates, as that would almost certainly force SCORUS to take up the issue sooner, rather than later:

One Court, Three Judges and Four States With Gay Marriage Cases

http://mobile.nytimes.com/2014/08/07/us/one-court-three-judges-and-four-states-with-gay-marriage-cases.html?referrer=

By ERIK ECKHOLM

AUGUST 6, 2014

CINCINNATI — The steady march of judicial approval for same-sex marriageover the past year ran into some skepticism here on Wednesday as a three-judge federal appeals panel heard arguments in six same-sex marriage cases from four states.

In three hours of back-and-forth questioning, it appeared that neither side could take victory for granted in the United States Court of Appeals for the Sixth Circuit, where the cases from Kentucky, Michigan, Ohio and Tennessee were heard by two judges appointed by President George W. Bush and one by President Bill Clinton.

Judge Jeffrey S. Sutton, one of the Bush appointees and a likely swing vote among the three, repeatedly asked why gay rights advocates wanted to use the courts to hasten an outcome they were gradually winning through elections and changes in attitude.

“I’d have thought the best way to get respect and dignity is through the democratic process,” he said, expressing a view that, in practice, would most likely deliver a victory to the states seeking to keep bans on same-sex marriage.

As they debated the cases, all three judges and several lawyers referred repeatedly to the transformed legal landscape of the last year, in which more than two dozen lower courts and two appeals courts have ruled that gay couples have a right to marry, and to the expectation that the Supreme Court would soon hear the issue.

Judge Sutton did suggest that the arguments offered against marriage equality were weak, saying that marriage bans would be hard to defend if subjected to the intense “heightened scrutiny” that courts apply when fundamental civil rights are at stake. But he also wondered whether legal precedents in the Sixth Circuit and the Supreme Court should prevent the panel from declaring same-sex marriage to be a fundamental right deserving court intervention.

In often caustic questions, Judge Martha Craig Daughtrey, the Clinton appointee, left no doubt where she stood. When the lawyer for Michigan said that the courts should not tamper with an institution as deeply rooted as marriage, she replied that bans on interracial marriage were also deeply rooted before the Supreme Court found them unconstitutional. “That was the law across a huge swath of the Southern states,” she said.

The third judge, Deborah L. Cook, another Bush appointee, spoke little during the unusual proceeding in which one state’s case followed another without any breaks. But she seemed to favor the right of states to ban same-sex marriage.

If this court were to rule against same-sex marriage, it would create greater pressure on the Supreme Court to rule on the issue to clear up the contradictory decisions among appeals courts.

The blitz of hearings here “is a result of the avalanche of federal court decisions on marriage in the last year, all of them ruling the same way,” said Susan Sommer, director of constitutional litigation for Lambda Legal, which helped to represent gay couples from Ohio who asked the state to recognize their marriages from other states and put both parents’ names on birth certificates.

Offering poignant images to the argument, three lesbian couples in the case, each with a newborn baby, sat in the courtroom gallery for much of the afternoon, their infants alternately cooing and feeding on bottles.

Kentucky and Michigan asked the appeals panel to reverse District Court rulings striking down their bans on same-sex marriage, which were adopted by voters a decade ago. Ohio and Tennessee asked the panel to overrule decisions mandating them to recognize same-sex marriages performed in other states.

A core issue, lawyers representing the states said again and again, was whether the federal courts had a right to overrule the will of the people.

“Who gets to decide what the definition of marriage is?” asked Aaron D. Lindstrom, solicitor general of Michigan.

A second crucial issue in Wednesday’s hearings and in courts across the country is whether same-sex marriage is simply an expansion of a well-established fundamental right to marry reflecting shifting social norms, and thus worthy of constitutional protection, or whether gay couples “seek recognition of a new right,” as Kentucky argued.

The hearing here was the third time this year that a federal circuit court, the last stage of appeal below the Supreme Court, has considered whether gay couples had a constitutional right to marry. A number of lower courts have overturned state restrictions in the year since the Supreme Court overturned part of the federal Defense of Marriage Act, saying it stigmatized gay families.

The Tenth Circuit, in Denver, declared same-sex marriage bans in Utah and Oklahoma to be unconstitutional, and the Fourth Circuit, in Richmond, Va., overturned Virginia’s ban. But implementation has been stayed pending appeals to the Supreme Court.

This week, Utah and a county clerk in Oklahoma petitioned the Supreme Court for a hearing. More such appeals are expected, and many experts predict that the Supreme Court will accept one or more of these appeals this fall, for a decision in 2015. If the Cincinnati panel or another appeals court rules against same-sex marriage, resulting in a “circuit split,” quick Supreme Court action would be virtually certain.

Lawyers for the four states argued here that, in the words of Mr. Lindstrom of Michigan, “it’s too early to tell” if there were risks to changing the definition of marriage as only between a man and a woman, which he called a bedrock of society.

Noting that many states have now had experience with same-sex marriage, Judge Daughtrey replied: “It doesn’t look like the sky has fallen.”

Offering a new variation in arguments against licensing same-sex marriage, Kentucky officials offered an economic rationale, saying that only heterosexual couples could procreate naturally and that procreation was essential for creating a strong economy, evidenced by reports that the declining birthrate in Europe had harmed economic growth.

Asked by Judge Daughtrey to explain why barring gay men and lesbians from marrying served this state interest, Leigh Gross Latherow, a private lawyer hired by Kentucky, said that “same-sex couples cannot procreate” and that only heterosexual couples, “who can procreate and we believe do procreate,” should receive the state-sponsored benefit of legal marriage.

Continuing the season of appeals court hearings on marriage, Indiana and Wisconsin will argue to preserve their struck-down bans on Aug. 26 before the Seventh Circuit, in Chicago; and Idaho and Nevada will appeal their cases on Sept. 8 before the Ninth Circuit, in San Francisco.

[Daniel2]

I'm curious to read the actual filing... is this available somewhere, do you know?

Sure thing, Stargazer. Here's the link to the Utah filing:

http://www.scribd.com/mobile/doc/235952087?width=360

[Stone holm]

Questioning at oral arguments is an inherently unreliable way of predicting decision results.  I have had cases where the questions at oral arguments suggested a landslide decision one way, and had them go landslide the other way.

 

I hope the Virginia case is the one that makes it to SCOTUS rather than the Utah case because win or lose, the Utah case is going to be bad press for the Church even if it does not sign any amicus brief, it is going to be blamed for inspiring the ban and the litigation to support it.  Which in turn means that all of us Mormons are going to be branded as people trying to legislate our beliefs.  So I would rather have the Virginia case decide the issue.

 

Not sure, but I think since she was personally sued, that the Clerk would have standing to bring the appeal.  Oklahoma is such a screwed up State that I am not sure anyone is going to pay any attention to it anyway.

[Daniel2]

The AP reports that the gay Utah plaintiffs also plan to ask SCOTUS to review their case, even though a decline would mean a return to the Appellate Court's ruling, and therefore a victory, for them:

Utah Gay Couples Ask Supreme Court to Hear Appeal

http://abcnews.go.com/US/wireStory/utah-gay-couples-supreme-court-hear-appeal-24885109

By BRADY McCOMBS

Associated Press

Aug 7, 2014, 4:47 PM

SALT LAKE CITY — Even though they scored a key victory in federal appellate court, attorneys for three Utah gay and lesbian couples said Thursday they plan to ask the U.S. Supreme Court to take Utah's appeal of a favorable gay marriage ruling.

It is vital that justices weigh in about whether state same-sex marriage bans violate the Constitution to settle the matter for a nation that needs an answer, said Kate Kendell, executive director for the National Center for Lesbian Rights. The group is representing the couples alongside private attorneys in Utah.

"Because we understand the tremendous importance of this issue, and that the ultimate question can only be finally resolved at the Supreme Court, we agree with attorneys for the state of Utah that the court should take the case and provide a final resolution," Kendell said.

Utah filed its request this week for the justices to hear an appeal of a June ruling from the Denver-based 10th U.S. Circuit Court of Appeals, which found states cannot deprive gay and lesbian couples of the right to marry. The state argued a high court review is necessary for an issue that has been "percolating" for four decades, with current court rulings across the country causing legal chaos.

Utah on Tuesday became the first state to ask the justices to review a state same-sex marriage ban since the high court struck down part of the federal Defense of Marriage Act last year. Oklahoma followed suit Wednesday.

An appeal of Virginia's case also will be before the Supreme Court soon. Virginia Attorney General Mark Herring said earlier this week he would ask the top court to review a decision from an appellate court that struck down the state's gay marriage ban, even though he supports the lower court's decision.

It is rare but not unheard of for winning parties to ask the Supreme Court to hear an appeal, Kendell said. She said it shows that people on both sides of the issue agree on one thing: It's imperative that the justices weigh in.

The high court is under no obligation to take Utah's case, and legal scholars say the justices could wait for more rulings from other appellate courts with gay marriage cases pending.

"The court could take the Utah case, they could take the Virginia case, they could take a combination of cases," Kendell said. "What we all want to see is the court determine sooner rather than later whether it's constitutionally permissible to deny to same-sex couples, and only same-sex couples, the rights, protection and security of marriage."

Kendell's organization also announced Thursday it is bringing aboard a former U.S. solicitor general, Neal Katyal, to help litigate the case. Katyal has handled 19 cases before the Supreme Court in the past five years, his bio shows.

Utah state officials also have brought in outside attorneys to work the case. The state's three-man team is led by Gene Schaerr of a Washington, D.C., law firm and former Michigan solicitor general John Bursch.

[Daniel2]

The New York Times reports:

Both Sides in Gay Marriage Fight in Utah Agree: Supreme Court Should Hear Case

http://mobile.nytimes.com/2014/08/08/us/politics/utah-gay-marriage-lawyers-ask-supreme-court-to-act.html?_r=2&referrer=

RICK BOWMER / ASSOCIATED PRESS

By ADAM LIPTAK

AUGUST 7, 2014

WASHINGTON — Lawyers for three couples challenging Utah’s ban on same-sex marriage said Thursday that they would join with their opponents to urge the Supreme Court to hear their case, even though they recently won an appeals court ruling striking down the law.

The unusual move could hasten a final ruling from the Supreme Court on same-sex marriage. It also reflects confidence among proponents of same-sex marriage that the court would rule in their favor.

“Now is the time for the Supreme Court to bring certainty to this fundamental civil rights issue of our time,” said Peggy A. Tomsic, a lawyer for the couples.

On Tuesday, Utah officials asked the Supreme Court to hear their appeal and uphold the state’s ban on same-sex marriage. “We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible,” saidSean D. Reyes, Utah’s attorney general. “All Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.”

Ms. Tomsic said she found herself in agreement with her adversary on one point. “We absolutely agree that this is a critical issue for decision,” she said, and she praised state officials for moving the case along quickly.

It is quite uncommon for the winning side to urge the justices to hear an appeal, but there have been a handful of notable exceptions recently. One of them was the Hobby Lobby case, in which a chain of craft stores that had won in the appeals court nonetheless urged the justices to hear the government’s appeal and ultimately won in the Supreme Court, too.

Neal Katyal, a former acting United States solicitor general who also represents the Utah couples, said the importance of the issue warranted an unusual approach. “This is the defining issue for the Supreme Court in our lifetime,” he said. “The notion that the government could deny life’s greatest partnership on the basis of orientation is capricious and strikes at everything this country is about.”

He said the couples would file a brief in the coming weeks joining Utah’s request that the Supreme Court hear the case. Such a filing would come in time for the justices to consider the case at their first private conference when they return from their summer break. Should the justices agree to hear the case, they could schedule arguments in the winter and issue a decision by June.

There are other same-sex marriage cases in the pipeline, including ones from federal appeals courts striking down bans in Oklahoma and Virginia. The Supreme Court could agree to hear one or more of the several cases, or none of them.

Most of the usual signs suggest the court will step in. It is no small thing for a lower federal court to strike down a state law or a provision of a state Constitution, and that alone may warrant review. The Supreme Court has indicated its interest in developments in Utah by twice issuingstays that blocked lower court rulings that would have allowed gay marriages to proceed or be recognized. And it cannot hurt that both sides in the Utah case agree the case should be heard.

All that is missing from the standard criteria for Supreme Court review is disagreement in the lower courts, which have unanimously ruled against same-sex marriage bans in the last year. A set of cases heard Wednesday by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, may soon supply that last element. Two other federal appeals courts are also scheduled to hear appeals in the coming weeks.

The Utah ruling came from the United States Court of Appeals for the 10th Circuit, in Denver. It said an amendment to the Utah Constitution defining marriage as the union of a man and a woman denied gay couples the fundamental right to marry under the federal Constitution.

In urging the Supreme Court to hear the case, Utah officials said the ruling had deprived the state’s voters, who adopted the ban in a 2004 referendum, of a different fundamental right, one allowing them to “act through a lawful electoral process.”

“A vast cloud covers this entire area of the law, and only this court can lift it,” the brief said. “This case provides an ideal vehicle to do just that.”

Here, too, Ms. Tomsic said she agreed with her adversaries that uncertainty over same-sex marriage is intolerable. “We are one country,” she said. “Even if you are in a state that recognizes same-sex marriage, you are at risk if you travel or move.”

She added it is fitting that the first in the current wave of same-sex marriage cases comes from Utah. “If it can happen in Utah, it can happen anywhere,” she said. “We are a very conservative state.”

[Daniel2]

An interesting tactic by Florida's Attorney General, who now wants the cases challenging the state marriage ban that she's defending to be put on hold till SCOTUS rules:

Attorney General Pam Bondi: Let the U.S. Supreme Court decide gay marriage, not Florida courts

http://www.miamiherald.com/2014/08/08/4278983/attorney-general-pam-bondi-let.html

BY STEVE ROTHAUS,SROTHAUS@MIAMIHERALD.COM

August 8, 2014 | Updated 1 hour ago

Rather than argue Florida's gay-marriage debate at the state Supreme Court, Attorney General Pam Bondi says she'd rather wait until the U.S. Supreme Court settles the issue nationally, once and for all.

“Neither this Court nor the Florida Supreme Court can decide this federal issue with finality,” Bondi wrote in a filing late Thursday to the state’s 3rd District Court of Appeal. “The United States Supreme Court, however, ‘has the final word on the United States Constitution.’”

Bondi told the appeals court she expects the U.S. Supreme Court will act soon on the gay marriage issue. She cited filings this week from the states of Utah and Oklahoma asking their gay-marriage cases be heard by the nation’s highest court.

“A ruling from the United States Supreme Court would end the constitutional debate, end this appeal, and end all related cases,” Bondi wrote. “The State of Florida will respect the United States Supreme Court’s final word. In the meantime, this Court should preserve taxpayer and judicial resources by staying briefing until the United States Supreme Court rules.”

Bondi’s filing came as a response to motions by eight same-sex couples who won the right to marry last month in Monroe and Miami-Dade circuit courts. Lawyers for those couples have asked their cases be consolidated and sent from the appeals court directly to Florida’s Supreme Court.

The attorney general agreed to consolidating the cases, but said there is no rush to conclude the Florida cases. Bondi’s filings did not mention rulings this week in Broward and Palm Beach counties that also declared Florida’s 2008 gay-marriage amendment as unconstitutional.

The appeals court has not said whether it will keep the cases or send them to Florida’s Supreme Court. So far, no same-sex couples have been married. Rulings by Monroe County Chief Circuit Judge Luis Garcia and Miami-Dade Circuit Judge Sarah Zabel have been stayed until the cases are appealed.

Bondi believes the U.S. Supreme Court will decide the issue, perhaps before the Florida cases are resolved.

“If the United States Supreme Court rules before this court does, there will be nothing left for this Court to decide,” Bondi wrote.

The couples’ lawyers want the cases decided in Florida as quickly as possible.

“Justice need not be patient,” said Miami Beach attorney Elizabeth Schwartz, who co-represents the six couples and Equality Florida Institute in the Miami-Dade case. “In my law practice, I see the real-life damage done to same-couples each day because of the failure to allow us to marry or to recognize our out-of-state marriages. For Florida's attorney general to argue that they should continue to wait, asserting both that there is no real urgency and, somehow, the Florida Supreme Court is incapable of resolving the matter statewide is insulting to Floridians and to our judiciary.”

Bondi said that however the U.S. Supreme Court rules, Florida will accept the decision.

“Despite the vigorous policy and legal debates surrounding same-sex marriage, there is little disagreement about this: If the United States Supreme Court holds that States must sanction same-sex marriage, then Florida’s contrary laws must fall,” Bondi wrote. “And if the United States Supreme Court holds that States may choose, then Plaintiffs’ contrary legal claims must fall, and it would be up to Florida’s voters to effect any change. Either way, this appeal would be over, and it would end without consuming any further taxpayer resources and without burdening Florida’s judiciary.”

Read more here: http://www.miamiherald.com/2014/08/08/4278983/attorney-general-pam-bondi-let.html#storylink=cpy

My reaction: the final paragraph illustrates how I don't believe SCOTUS can rule in favor of a state right to prohibit same-sex couples from marrying.

I just don't see how it can be a state's right (or even a majority of voters' right ) to dictate to other US citizens who they marry, or who's out-of-state marriages their state will honor.

[Daniel2]

And now, Virginia throws it's hat into the ring, distinguishing itself by becoming the first state to petition SCOTUS to uphold the court of appeal's decision:

Virginia Attorney General Asks Supreme Court To Hear Same-Sex Marriage Case

http://www.buzzfeed.com/chrisgeidner/virginia-attorney-general-asks-supreme-court-to-hear-same-se?s=mobile

“The nation looks to this Court to answer the question presented here.”

Posted on Aug. 8, 2014, at 9:16 a.m.

Chris Geidner

BuzzFeed Staff

WASHINGTON — Following on the heels of Utah officials and an Oklahoma clerk, Virginia Attorney General Mark Herring on Friday asked the Supreme Court to hear a case challenging the constitutionality of his state's ban on same-sex couples' marriages.

What distinguishes Herring's filing, representing Virginia State Registrar of Vital Records Janet Rainey, is that his is the first request to the Supreme Court by a party that backs the position of same-sex couples that the ban is unconstitutional.

Of the reason for hearing the claim, Herring's filing, led by Virginia Solicitor General Stuart Raphael, argues that the Supreme Court should accept certiorari in the case because "[t]he question presented is vital to a large population of same-sex couples, to their children, and to their fellow Americans who believe that discriminating against gay people is both unfair and unconstitutional. They may fairly call this 'the defining civil rights issue of our time.'"

As to why the Supreme Court should hear the case challenging the Virginia ban, specifically, the brief states, "Virginia's same-sex-marriage ban is one of the most stringent in the country. It goes further than [California's] Proposition 8 by barring and refusing to recognize civil unions and by preventing same-sex couples from adopting children. It also goes further than Utah's ban, which at least preserves contractual rights exercised independently of the same-sex-marriage restriction. Virginia law voids 'any contractual rights created by' same- sex marriages entered into in another State."

Michèle McQuigg, the clerk of the circuit court in Prince William County, also has said that she will be filing a certiorari petition in the Virginia case. Like the clerk in Oklahoma, McQuigg is represented by the Alliance Defending Freedom, a conservative legal group. Unlike Herring, McQuigg is defending the constitutionality of the ban.

Read the petition: http://www.scribd.com/doc/236231245/Pet-n-for-Certiorari-Rainey-v-Bostic-VA

[Stargazer]

Daniel2:

 

Probably just a large amount of burnout. My position really hasn't changed. I'm against it for religious/moral reasons, but can find no consistent legal reasoning to continue to outlaw it.

 

Daniel kindly supplied me with a link to Utah's appeal, and if legalese doesn't read like Greek to you, then you might find it of interest.  It actually came across to me as very much according to my own logical / legal reasoning (IANAL), and was helpful in giving me better language to express myself on the subject.

http://www.scribd.com/mobile/doc/235952087?width=360

[Daniel2]

Daniel kindly supplied me with a link to Utah's appeal, and if legalese doesn't read like Greek to you, then you might find it of interest.  It actually came across to me as very much according to my own logical / legal reasoning (IANAL), and was helpful in giving me better language to express myself on the subject.http://www.scribd.com/mobile/doc/235952087?width=360

Which of their points did you find compelling, Stargazer?

[Stargazer]

Which of their points did you find compelling, Stargazer?

Don't have much time to answer (heading to work in a few minutes), but in general their argument is based upon the concept of marriage as being child-oriented, versus adult-oriented.  It is, in my opinion at least, well-argued in this appeal.  It has always been my own take on the subject, specifically that male-female sexual relationships have at least potential child-bearing capability, and thus there is a compelling societal interest.  OTOH, same-sex relationships cannot ever produce children, and thus cannot have the same compelling societal interest.   Thus equating the two relationships by calling them "marriage", and treating them the same, is ...  well, they aren't the same, let me leave it at that. 

 

The primary concern of those in favor of SSM appears to be the validation in society of same-sex relationships, by giving them the dignity of being called by a venerable name. I guess I can understand it, if not agree with it.  While there are certain concrete privileges or rights associated with legal marriage that could be given to a civil-partnership contract that would make it as effective as legal marriage, for some reason this has never been enough for those in the fight for SSM, And that's a disappointment to me.

 

Daniel2, I am tired of the whole thing.  It's like a juggernaut bearing down upon me, and it is like the world has gone mad. Nothing I can do seems to be capable of making any difference in the matter.  I have nothing against gay people, and I enjoy my associations with the few gay folks I am acquainted with, but this insistence upon same-sex relationships being equated with marriage makes utterly no sense.

 

Society seems to be getting more and more absurd every year.  And I don't think it's my imagination.

[Daniel2]

Thanks, SG. I will respond as soon as I have some time, as well.

In the meantime, a judge in Tennessee departs from the recent string of rulings in favor of same-sex marriage and upholds his state's ban. The SCOTUS blog reports:

String of same-sex marriage rulings broken

http://www.scotusblog.com/2014/08/string-of-same-sex-marriage-rulings-broken/

Posted Mon, August 11th, 2014 3:14 pm by Lyle Denniston

For the first time in nearly fourteen months, a state’s ban on same-sex marriage haswithstood a constitutional challenge in court. A state judge in Tennessee ruled last week that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility.” The decision, issued last Tuesday, has just become available in electronic format.

Roane County Circuit Judge Russell E. Simmons, Jr., of Kingston ruled in a case of two gay men who were married four years ago in Iowa and are now seeking a divorce in their home state of Tennessee. Unlike every other court ruling — federal or state — since the Supreme Court’s decision inUnited States v. Windsor in June 2013, the judge rejected the idea that the Windsordecision undercut state authority to ban same-sex marriages.

More than two dozen courts, from trial courts to state supreme courts and federal appeals courts, have faced that constitutional issue, and the string of decisions nullifying the bans was unbroken until the Tennessee decision.

Although Judge Simmons’s decision was limited to cases involving a divorce when the marriage itself is not recognized, he ruled in sweeping terms. He relied in part upon the Supreme Court’s summary decision in 1972 rejecting a constitutional challenge to a Minnesota ban, concluding that the Justices have never abandoned that ruling.

To the argument that more recent gay rights decisions have undercut that precedent, the Tennessee judge responded that the issue should more properly be raised in an appellate court with broader authority than that of a trial judge.

The decision also interpreted the Supreme Court’s decision in Windsor as not controlling in a case such as the one before him. “The Supreme Court,” he wrote, “does not go the final step and find that a state that defines marriage as a union of one man and one woman is unconstitutional. Further, the Supreme Court does not find that one state’s refusal to accept another state’s valid same-sex marriage to be in violation of the U.S. Constitution.”

Besides rejecting a challenge to the Tennessee ban based on a claim of illegal discrimination, Judge Simmons turned aside an argument that the Constitution’s Full Faith and Credit Clause required Tennessee to recognize a same-sex marriage performed in another state.

While Tennessee’s ban applies to both same-sex marriage in the first instance and state recognition of already-existing marriages, the judge’s decision formally dealt only with the latter, upholding the non-recognition clause in the Tennessee constitution and in state laws.

The constitutionality of the non-recognition part of the Tennessee ban is being reviewed now by the U.S. Court of Appeals for the Sixth Circuit. That was included among cases heard last week by a three-judge panel.

For those of us wanting SCOTUS to address the issue once and for all, this contrary ruling is good news; it increases pressure for SCOTUS to take up the issue now that there's a plurality of rulings--especially if other judges follow this ruling.

[Daniel2]

Here's a link to the short (7 page) ruling by the Tennessee circuit court judge. I imagine several here may agree with this judge's ruling:

http://sblog.s3.amazonaws.com/wp-content/uploads/2014/08/Tennessee-marriage-ruling-8-5-141.pdf

[Stone holm]

The Tennessee case should have been decided on a narrow stare decisis basis.  The Court was correct that the SCOTUS has not overturned the earlier decision, decided the case on that basis and ended.  I have a little trouble with the idea that you backhandedly overrule a SSM ban by demanding a divorce in a SSM entered into in a different State.  Its an awfully convoluted attack -- I got married in a fever in another State, and now I want you to permanently douse the fire in your State, but by the way you have to change your marriage laws to do it.  I want you to grant a divorce from a relationship that is already void and unenforceable in your State -- I think we enter pretty rarified air in that case.

[rockpond]

The primary concern of those in favor of SSM appears to be the validation in society of same-sex relationships, by giving them the dignity of being called by a venerable name. I guess I can understand it, if not agree with it.  While there are certain concrete privileges or rights associated with legal marriage that could be given to a civil-partnership contract that would make it as effective as legal marriage, for some reason this has never been enough for those in the fight for SSM, And that's a disappointment to me.

 

This idea that you describe here, that I often hear from others opposed to using the term "marriage" for gay relationships, sounds very much like the "separate but equal" legal doctrine that was shot down by SCOTUS back in the 50's as a violation of the 14th amendment.

 

This current attempt by some (including the UT Amendment 3 legal team) to define marriage by a specific interaction of genitalia rather than by love, commitment, and religious covenant is a disappointment to me as it seems to undermine what I view as the sanctity of marriage.

[tonie]

This idea that you describe here, that I often hear from others opposed to using the term "marriage" for gay relationships, sounds very much like the "separate but equal" legal doctrine that was shot down by SCOTUS back in the 50's as a violation of the 14th amendment.

This current attempt by some (including the UT Amendment 3 legal team) to define marriage by a specific interaction of genitalia rather than by love, commitment, and religious covenant is a disappointment to me as it seems to undermine what I view as the sanctity of marriage.

Separate but Equal is what many advocate (unwittingly). But when it gets down to defining the "equal" they back away, or are forced to back away, from "equal". In my opinion one can not advocate for traditional marriage AND accept a "Separate but Equal" stance with SSM.

"Separate but Equal", does not work, and should not be an option for those wishing to uphold the modern concept of tradition marriage. "Separate but Equal" does not work because equal would mean every right and privilege (adoption, children, etc - everything the the traditionalists want to protect) would and must be open to same sex couples. The Church has advocated for equal opportunity in housing and employment for all whether heterosexual or homosexual; this advocacy should not be construed as advocating for a separate but equal stance on marriage.

[rockpond]

The Church has advocated for equal opportunity in housing and employment for all whether heterosexual or homosexual; this advocacy should not be construed as advocating for a separate but equal stance on marriage.

 

I agree that our Church leaders are not advocating for a separate but equal stance on marriage.  But it was very nice to see the Church make that change and come out in support of equal opportunity in housing & employment.

[Stargazer]

This idea that you describe here, that I often hear from others opposed to using the term "marriage" for gay relationships, sounds very much like the "separate but equal" legal doctrine that was shot down by SCOTUS back in the 50's as a violation of the 14th amendment.

 

This current attempt by some (including the UT Amendment 3 legal team) to define marriage by a specific interaction of genitalia rather than by love, commitment, and religious covenant is a disappointment to me as it seems to undermine what I view as the sanctity of marriage

 

 

 

One specific interaction of genitalia, as you so disrespectfully put it, has at least the potential for generating new life.  "Marriage", as understood for millennia, has always been understood for that purpose at its base, even if love, friendship, and committment were always icing on the cake, as it were.  Same sex interactions have no potential for generating life, no more than interspecies interactions do.  There is a rose bush in my backyard that I really like a lot.  If we ever move from this house, I plan to dig it up and take it with me. I plan to live with this plant for the rest of my, or its life.  Shall I then insist that the state issue me a marriage license as a demonstration and evidence of my love, commitment and pleasure at the blooms it provides for me every year?

 

I object to this senseless insistence upon the illogical and absurd attempt to redefine marriage.  That's all.

[Stone holm]

One specific interaction of genitalia, as you so disrespectfully put it, has at least the potential for generating new life.  "Marriage", as understood for millennia, has always been understood for that purpose at its base, even if love, friendship, and committment were always icing on the cake, as it were.  Same sex interactions have no potential for generating life, no more than interspecies interactions do.  There is a rose bush in my backyard that I really like a lot.  If we ever move from this house, I plan to dig it up and take it with me. I plan to live with this plant for the rest of my, or its life.  Shall I then insist that the state issue me a marriage license as a demonstration and evidence of my love, commitment and pleasure at the blooms it provides for me every year?

 

I object to this senseless insistence upon the illogical and absurd attempt to redefine marriage.  That's all.

So when a man and a woman are beyond the child bearing years we should not let them marry, in fact if they are married, once the woman goes through menopause we should dissolve the marriage? Reproduction is only a part of the reason for marriage and in some cases it isn't even a part.

[california boy]

One specific interaction of genitalia, as you so disrespectfully put it, has at least the potential for generating new life.  "Marriage", as understood for millennia, has always been understood for that purpose at its base, even if love, friendship, and committment were always icing on the cake, as it were.  Same sex interactions have no potential for generating life, no more than interspecies interactions do.  There is a rose bush in my backyard that I really like a lot.  If we ever move from this house, I plan to dig it up and take it with me. I plan to live with this plant for the rest of my, or its life.  Shall I then insist that the state issue me a marriage license as a demonstration and evidence of my love, commitment and pleasure at the blooms it provides for me every year?

 

I object to this senseless insistence upon the illogical and absurd attempt to redefine marriage.  That's all.

 

Aren't you advocating that if a couple have no plans for having children or are physically unable to have children, then marriage is not for them?  Do you think this concept fits in with the Gospel of Jesus Christ?  Doesn't the church want every couple to marry regardless of whether they intend or are able to have children?  

 

There are more reasons to encourage people to marry besides just for the sake of rearing children.  

 

When your position only applies to gay couples, then the position becomes more about disapproving of gay couples than it does about who can legally marry.  This concept certainly is not holding up in the courts of law.  It is fine for the church to be against gay marriage.  It is quite a different thing for the government to discriminate.  And that is why case after case, after case is ruling in favor of gay marriage.  Certainly you can see the legal foundation these rulings are based on.  I don't think anyone wants the government to stop issuing marriage licenses to all couples who are unable to have children.  And I don't think the government should stop issuing marriage licenses to couples who simply do not want or are not ready to have children. Do you?