Order Stayed By Court After Enjoining Wisconsin's Same-Sex Marriage Ban

As previously reported, on June 6 a Wisconsin federal district court declared Wisconsin's constitutional and statutory provisions barring same-sex marriage unconstitutional and instructed the parties to submit proposed language for an injunction. Now in Wolf v. Walker, (WD WI, June 13, 2014), the court issued a carefully worded injunction against the governor, state registrar and three county clerks. However the court also stayed the injunction, as well as its earlier declaratory judgment, until the conclusion of any appeals or after the expiration of the deadline for filing appeals.  Judge Crabb wrote in part:

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage.....  [S]ince Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay.....

It is true that the Supreme Court declined to issue a stay in a more recent case in which a district court in Oregon enjoined enforcement of that state’s ban on same-sex marriage. National Organization for Marriage v. Geiger .... (June 4, 2014). However, that order is not instructive because the district court’s injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus, I do not interpret Geiger as undermining the Court’s order in Herbert.

Yesterday's Milwaukee Journal-Sentinel reports on the decision.

Another Lawsuit Is Filed Challenging Alabama's Refusal To Recognize Same-Sex Marriages

On Monday, the ACLU filed a federal lawsuit challenging Alabama's refusal to recognize same-sex marriages performed in other states. (Press release). The complaint (full text) in Aaron-Brush v. Bentley, (ND AL, June 9, 2014), was filed on behalf of two women who have been together for 17 years and were legally married in Massachusetts in 2012. They have a 7-year old daughter they are raising together, though Alabama law presently bars them from jointly adopting her.  There are already three other lawsuits in federal courts seeking to require Alabama to recognize same-sex marriages from other jurisdictions.

Suit Challenges North Dakota's Same-Sex Marriage Ban

Religion News Service reports that on Friday, a federal lawsuit was filed challenging North Dakota's state constitutional and statutory bans on same-sex marriage.  Up to now, North Dakota had been the last state with an unchallenged gay marriage ban.  The complaint (full text) in Ramsay v. Dalrymple, (D ND, filed 6/6/2014) challenges both the ban on same-sex marriages in the state and the state's refusal to recognize same-sex marriages performed elsewhere. It contends that the bans violate the equal protection and due process clauses of the 14th Amendment, and that the non-recognition of out-of-state marriages infringes on the fundamental right to travel. According to Freedom To Marry, there are now ongoing court challenges to same-sex marriage bans and/or non-recognition requirements in 31 states and Puerto Rico. Nineteen states and the District of Columbia already have full marriage equality.

Pro-Marriage Group Entitled To Actual Damages For Erroneous IRS Release of Donor Data

In National Organization for Marriage, Inc. v. United States, (ED VA, June 3, 2014), a non-profit organization whose purpose is "to protect marriage and the faith communities that sustain it" sued the federal government under 26 USC Sec. 7431 for damages growing out of the IRS's unauthorized release in 2011 of Schedule B of the organization's Form 990. Schedule B lists donors of over $5000 to the organization and should have been redacted before releasing the Form 990 in response to a media request.  The Schedule B was ultimately published by the Huffington Post along with an article focusing on the fact that it showed a $10,000 donation by a political action committee associated with Mitt Romney. The court held that plaintiff is entitled to actual damages, but not to punitive damages for willful disclosure or gross negligence.  The court also dismissed plaintiff's unauthorized inspection claim.

Wisconsin's Same-Sex Marriage Ban Struck Down; Marriages Begin Ahead of Motion To Stay Court's Order

Yesterday in Wolf v. Walker, (WD WI, June 6, 2014), a Wisconsin federal district court, in an 88-page opinion, struck down Wisconsin's ban on same-sex marriage. Judge Barbara Crabb wrote in part:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.... To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”....  Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged....  Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

 As reported by the Milwaukee Journal-Sentinel, the court's decision does not make clear whether counties may begin to immediately issue marriage licenses. The court declared the state constitutional and statutory provisions barring same-sex marriage unconstitutional and gave the parties until June 16 to submit proposed language for an injunction. The paper reports:

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

Wisconsin Attorney General J.B. Van Hollen issued a news release announcing that he will file emergency motions in federal courts seeking a stay of the district court's order. Yesterday Van Hollen also issued a statement in a series of nine Tweets saying that his office will continue to defend the constitutionality of "our traditional marriage laws."

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban  on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed.  The 21-day period would expire on Monday.  Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans.  In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

Colorado Civil Rights Commission Affirms Initial Decision In Gay Wedding Cake Case

According to the Denver Post, the Colorado Civil Rights Commission on Friday affirmed the Initial Decision of an administrative law judge in Craig v. Masterpiece Cake Shop. The initial decision rejected free speech and free exercise claims, and held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. (See prior posting.)  To prevent future discrimination, in Friday's decision the Commission required bakery owner Jack Phillips to submit quarterly reports for two years on steps taken to change company policies and train employees. The bakery must also disclose the names of any clients who are turned away. [Thanks to Tom Rutledge for the lead.]

Court Lets Fired Catholic School Administrator Continue Discrimination Suit

LifeSite News reports that a Washington state trial court judge last week refused to dismiss an employment discrimination lawsuit against Seattle's Eastside Catholic High School filed by Mark Zmuda, its former vice principal. Zmuda was forced to resign after he married his same-sex partner. Zmuda claims that the school violated its own anti-discrimination policy, while the school says Zmuda breached the morality clause in his contract that requires him to publicly uphold the teachings of the Catholic faith.  The school had given Zmuda the option to divorce his spouse and enter a civil commitment ceremony if he wanted to keep his position.

The court rejected the school's argument that the 1st Amendment's freedom of religion protections deprived the court of jurisdiction over the dispute.  King County Superior Court Judge Catherine Shaffer wrote in part: "The Federal and Supreme Courts have made it clear that an employee can sue regardless of ministerial doctrine." Zmuda's suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. (See prior related posting.)

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage.  The complaint (full text) in Rosenbrahn v.  Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban.  With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

Montana's Same-Sex Marriage Ban Challenged

According to Lambda Legal, as of last week only 3 states which do not allow same-sex marriage had no litigation challenging the ban pending.  Now that has dropped to two.  The ACLU of Montana announced yesterday the filing of a lawsuit on behalf of four same-sex couples seeking to marry in Montana or to have their out-of-state same-sex marriage recognized in Montana. The complaint (full text) in Rolando v. Fox, (D MT, filed 5/21/2014), asks the court to declare that Montana's constitutional and statutory bans on same-sex marriage violate the due process and equal protection clauses of the 14th Amendment. With the filing of this lawsuit, only North and South Dakota have marriage equality bans with no litigation pending.

Court Strikes Down Pennsylvania Ban On Same-Sex Marriage

In Whitewood v. Wolf, (MD PA, May 20, 2014), a Pennsylvania federal district court held that the Pennsylvania's prohibition of same-sex marriage and its refusal to recognize same-sex marriages validly entered elsewhere violate the 14th Amendment's due process and equal protection clauses. The court concluded that "the fundamental right to marry is a personal right to be exercised by the individual" and rejected "Defendants’ contention that concepts of history and tradition dictate that same-sex marriage is excluded from the fundamental right to marry."  In its lengthy equal protection analysis, the court concluded that classifications based on sexual orientation are quasi-suspect and applied intermediate scrutiny to find that Pennsylvania had not shown that the ban on same-sex marriage is substantially related to an important governmental interest.

The Washington Post reports that immediately after the court's ruling, same-sex couples hurried to obtain marriage licenses, fearing that Gov. Tom Corbett would appeal the ruling. County offices remained open late in Philadelphia to issue licenses, and the Pittsburgh office is taking marriage license applications online.  Pennsylvania has a 3-day waiting period after issuance of a license before a person can marry, unless a court waives the waiting period. The Governor's office said it was studying the court's ruling. The Governor defended the state's ban in court after the state's attorney general refused to do so.

UPDATE: On May 21, Gov. Tom Corbett announced that the state will not appeal the court's decision.

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.

Oregon's Same-Sex Marriage Ban Is Invalidated

In Geiger v. Kitzhaber, (D OR, May 19, 2014), an Oregon federal district court held that Oregon's constitutional and statutory provisions that limit civil marriage to "one man and one woman" discriminate on the basis of sexual orientation in violation of the 14th Amendment's equal protection clause. Judge McShane concluded his opinion with these observations:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage.... Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing.... Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay." 

.... It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. 

.... With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. 

.... I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

ACLU of Oregon issued a press release announcing the decision. According to the Los Angeles Times, marriage licenses were issued to same-sex couples in Multnomah County, home to Portland, as soon as the decision was handed down. In February, the state attorney general said she would not defend the ban in court.

Utah Supreme Court Stays Orders On Birth Certificates For Adoptees of Same-Sex Parents

According to AP and a release from the Utah Attorney General's Office, the Utah Supreme Court on Friday night issued a stay of several state trial judges' orders that required the Utah Department of Health to issue birth certificates in same-sex parent adoptions.  The stay came in response to a Petition for Emergency Relief filed by the Attorney General's office seeking clarification as to whether the trial court orders violate other provisions of Utah law that prohibit the state from recognizing same-sex marriages. Those provisions remain in effect while federal constitutional challenge to the ban on same-sex marriage is being appealed. (See prior posting.) Friday's state Supreme Court stay remains in effect until the issue of recognizing same-sex parent adoptions is resolved by the state Supreme Court.

9th Circuit Temporarily Stays Injunction That Allowed Same-Sex Marriage In Idaho

In Latta v. Otter, (9th Cir., May 15, 2014), the U.S. 9th Circuit Court of Appeals granted a temporary stay of a federal district court's order that struck down Idaho's statutory and constitutional same-sex marriage ban. (See prior posting.) The temporary stay will be in place while the 9th Circuit decides whether to grant state and local officials' emergency motion (full text) for a longer stay pending appeal. Idaho Statesman reports on the 9th Circuit's order.

Understanding The Procedural Tangle In The Arkansas Same-Sex Marriage Challenge

As lower courts strike down same-sex marriage bans in various states, and state officials scramble to stay the orders and file appeals, the procedural tangles sometimes become difficult to penetrate.  So here is an attempt to clarify where things stand procedurally in one state-- Arkansas.

On May 9, an Arkansas state trial court (the Pulaski County Circuit Court which includes the city of Little Rock) held that the state's constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause.  (See prior posting.) A number of state and county officials filed an appeal with the Arkansas Supreme Court seeking an emergency stay of the trial court's order.  In Smith v. Wright, (AR Sup. Ct., May 14, 2014), the Arkansas Supreme Court dismissed the appeal without prejudice on the ground that the trial court's order was not a final adjudication of all the claims of the parties and so could not yet be appealed.  However it also held that reading the trial court's order carefully, the trial court had not issued a ruling as to Ark. Code Ann. § 9-11-208(b), prohibiting circuit and county clerks from issuing same-sex marriage licenses.  So, according to the Supreme Court, that prohibition was still in effect.

The next day, May 15, the Pulaski County Circuit Court responded by issuing three separate orders: (1) it denied a stay of its earlier ruling (full text of order); (2) the Court issued a final order permanently enjoining both the bans on same-sex marriage and the provision prohibiting circuit and county clerks from issuing licenses to same sex couples (full text of order); and (3) the court issued an order making its May 15 ruling that covered the ban on issuing marriage licenses retroactive to May 9 by an order entering the ruling nunc pro tunc. It said that the original omission of a reference to the section on issuance of licenses was an inadvertent clerical error. (Full text of ruling.) Lyle Denniston at Scotus Blog suggests that the nunc pro tunc order serves to protect those clerks who issued licenses between May 9 and 15.

According to AP, the Pulaski County clerk resumed issuing marriage licenses to same-sex couples shortly after the trial court's new orders.  Other counties though are awaiting legal advice. And after same-sex marriages resumed in Pulaski County, the Arkansas attorney general's office returned to the state Supreme Court and again asked for a stay of the trial court's order, pending appeal. [Thanks to Tom Rutledge for the lead.]

More Same-Sex Marriage Developments-- 4th Circuit Oral Arguments; Idaho's Laws Invalidated By District Court

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of arguments) in Bostic v. Schaefer. In the case, a Virginia federal district court held that Virginia's constitutional and statutory provisions barring same-sex marriage and prohibiting recognition of lawful same-sex marriages performed elsewhere are unconstitutional. (See prior posting.) Reporting on the oral arguments, the Washington Post said: "The sharply opposing viewpoints of two of the jurists suggested that the third, independent-minded Circuit Judge Henry F. Floyd, might hold the deciding vote."

Also yesterday, an Idaho federal magistrate judge struck down Idaho's statutory and constitutional provisions barring same-sex couples from marrying in the state or having their marriages performed elsewhere recognized in Idaho.  In Latta v. Otter, (D ID, May 13, 2014), the court concluded that Idaho's marriage laws violate same-sex couples' rights under the Due Process and Equal Protection Clauses of the 14th Amendment. The court issued a permanent injunction, effective May 16. Idaho Statesman reports on the decision and on Idaho Governor Butch Otter's written statement after the decision saying that he will continue to defend the will of the people to limit marriage to the union of a man and a woman.  UPDATE: AP reports that on May 14 the magistrate judge refused to stay her order pending appeal, writing that the appeal is unlikely to succeed.