Supreme Court Refuses To Stay Order Requiring Kentucky Clerk To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court yesterday in Davis v. Miller denied an application (full text of order) to stay pending appeal a district court decision requiring a Kentucky count clerk to issue marriage licenses to same-sex couples.  The clerk, Kim Davis, has religious objections to same-sex marriage. The application made to Justice Kagan was referred by her to the full Court which denied the stay. New York Times reports on the Supreme Court's decision.

Kentucky Clerk Seeks Supreme Court Stay of Order Requiring Her To Issue Same-Sex Marriage Licenses

Today, Kim Davis, the Rowan County, Kentucky court clerk who has been refusing to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, filed with the U.S. Supreme Court an Emergency Application (full text) to stay the district court's order against her while she appeals to the 6th Circuit.  The application, filed with Justice Kagan who is Circuit Justice for the 6th Circuit, includes a 40-page memorandum of law supporting the request for a stay.  The 6th Circuit has already refused a stay pending appeal. (See prior posting.)  A Liberty Counsel press release reported on the filing.

6th Circuit Refuses To Stay Injunction Against Recalcitrant Kentucky County Clerk

In Miller v. Davis, (6th Cir., Aug. 26, 2015), the U.S. 6th Circuit Court of Appeals refused to grant a stay pending appeal of a preliminary injunction (see prior posting) issued against a Rowan County, Kentucky, Clerk who has religious objections to issuing marriage licenses to same-sex couples.  The 6th Circuit explains:

As the County Clerk ..., Davis’s official duties include the issuance of marriage licenses. In response to the Supreme Court’s holding in Obergefell v. Hodges ..., Davis unilaterally decided that her office would no longer issue any marriage licenses. According to Davis, the issuance of licenses to same-sex marriage couples infringes on her rights under the United States and Kentucky Constitutions as well as the Kentucky Freedom Restoration Act.... The Rowan County Clerk’s office has since refused to issue marriage licenses to the plaintiffs, and this action ensued.

The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.....

USA Today reports on the decision. [Thanks to Tom Rutledge for the lead.]

UPDATE: On Thursday, Davis' office continued to refuse to issue a marriage license to a same-sex couple, arguing that the district court's stay remains in effect until Aug. 31.  The district court stayed its preliminary injunction until Aug. 31 or the 6th Circuit issued a ruling. On Thursday afternoon, the clerk's office was temporarily closed for "computer upgrades." Davis is considering filing an appeal with the U.S. Supreme Court. (CBS News).

Obergefell Will Be Applied Retroactively To Social Security Claims

42 USC Sec. 416(h)(1)(A)(i) provides that whether a person is the spouse of another for Social Security purposes depends on the law of their state of domicile.  Until now this has led the Social Security Administration to deny benefits to same-sex spouses who moved to or lived in a state which did not recognize their marriage.  However, in an Aug. 20 press release, Lambda Legal reported:

Today, in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court's recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Kentucky Clerk, Continuing Fight Against Issuing Marriage Licenses To Same-Sex Couples, Gets Short Reprieve

Rowan County, Kentucky Clerk Kim Davis is continuing her battle to obtain a religious exemption from the requirement that her office issue marriage licenses to same-sex couples.  As previously reported, last week a federal district court issued a preliminary injunction requiring her to end her resistance, at least as to the two same-sex couples suing her.  Davis' office has been refusing to issue marriage licences to anyone.  Yesterday in Miller v. Davis, (ED KY, Aug. 17, 2015), the district court refused to stay its injunction while an appeal to the 6th Circuit plays out.  The court found that Davis is not likely to succeed on the merits in the appeal nor is she likely to suffer irreparable harm without a stay. However the court did grant a shorter stay. The court said "realizing that emotions are running high on both sides of the debate," it would grant a stay while Davis appeals the denial of a longer stay during the appeal.

The Lexington Herald-Leader reports on these developments and reactions to them:

"Here in Morehead, we have a fairness ordinance (protecting the civil rights of gays and lesbians) that our city council passed unanimously in 2013," said Mary Hargis, a retired state worker holding a sign that read "Obey the law."

"So to have a county official on her own turn around and negate all that progress by making us look like backward, inbred hillbillies, she's just reinforcing all the stereotypes people had about us...

[Thanks to Tom Rutledge for the lead.]

UPDATE: On Aug. 19, the district court, saying the Federal Rules of Appellate Procedure require it to set an expiration date, issued an order (full text) providing that the stay it issued two days earlier will expire on Aug. 31 unless the 6th Circuit orders something else.

Suit Says Florida Will Not Issue Correct Birth Certificates To Married Lesbian Couples

A lawsuit was filed in federal district court in Florida yesterday challenging the birth certificate policy of Florida's Bureau of Vital Statistics.  The complaint (full text) in Chin v. Armstrong, (ND FL, Aug. 13, 2015), alleges:

When a child is born to a woman who is married to another woman ... the Bureau ... will not issue accurate birth certificates listing both parents.... Instead, the Bureau will issue only a certificate that falsely indicates that the child has only one parent and that omits the mother’s spouse as the child’s second parent.

The suit contends that this infringes plaintiffs' fundamental right to marry as well as denying them equal protection of the laws. Equality Florida Action issued a press release on the filing of the lawsuit.

Kentucky Clerk Continues To Refuse To Issue Marriage Licenses, Despite Injunction

Continuing to maintain her religious objections to issuing marriage licenses to same-sex couples, Rowan County, Kentucky Clerk Kim Davis yesterday filed with the federal district court a motion (full text) to stay the court's Aug. 12 preliminary injunction pending appeal. (See prior posting.) Meanwhile, as reported by AP, Davis' office continued to refuse to issue marriage licenses. Staff said Davis was on vacation, and others in the office also authorized to issue licenses refused to do so.  The staff handed one couple a Post-it note with the phone number of Davis' lawyers, Liberty Counsel. Attorneys for plaintiffs in the case are considering asking the court to hold Davis in contempt.

Court Upholds Order Against Bakery that Refused Wedding Cake For Same-Sex Couple

In Craig v. Masterpiece Cakeshop, Inc., (CO App., Aug. 13, 2015). a Colorado appellate court, in a 64-page opinion, affirmed the decision of the Colorado Civil Rights Commission (see prior posting) that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. The court rejected the bakery's claim that its refusal to create the cake was "because of" its opposition to same-sex marriage, not because of its opposition to plaintiffs' sexual orientation. It held that because same-sex marriage is entered into only (or predominately) by gays, lesbians and bisexuals, the conduct cannot be divorced from status.

The court rejected defendants' argument that requiring them to create the wedding cake would amount to unconstitutionally compelled speech:

such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Finally the court concluded that the cease and desist order did not violate the Christian owner's free exercise rights under the state and federal constitutions because the Colorado Law Against Discrimination is a neutral law of general applicability. Colorado Springs Gazette reports on the decision.

Guam Legislature Passes Marriage Equality and LGBT Employment Discrimination Laws

Pacific Daily News reports that the Guam legislature yesterday passed the Guam Marriage Equality Act (full text), aligning the U.S. Territory's laws with the a district court's decision in June specifically striking down Guam's same-sex marriage ban. (See prior posting.)

The legislature this week also passed the Guam Employment Nondiscrimination Act of 2015 (full text), adding bans on employment discrimination based on gender identity or expression; sexual orientation; and veteran or military status. The law includes an exemption for religious and educational institutions that are exempt from the religious discrimination provisions of Title VII of the 1964 federal Civil Rights Act. HRC Blog has more on the new law.

Court Says Kentucky Clerk Cannot Refuse To Issue Marriage Licences

In Miller v. Davis, (ED KY, Aug. 12, 2015), a Kentucky federal district court granted a preliminary injunction barring Rowan County, Kentucky Clerk Kim Davis from continuing her policy of refusing to issue all marriage licenses because of her religious objections to issuing licences to same-sex couples.  The injunction enjoins Davis from applying the policy to future marriage license requests submitted by plaintiffs in the case.

Rejecting free exercise, free speech, religious test and Kentucky Religious Freedom Act arguments, the court held:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

The Kentucky ACLU issued a press release announcing the decision.  AP reports on the decisionl  Davis immediately filed a Notice of Appeal (full text). [Thanks to Tom Rutledge for the lead.]

Kansas Federal District Court Implements Obergefell Holding

Even though the U.S. Supreme Court decided in the Obergefell case that same-sex marriages must be recognized, lower courts still need to tie up loose to make the ruling effective nationwide.  In Marie v. Mosier, (D. KA, Aug. 10, 2015), a Kansas federal district court issued a declaratory judgment that Kansas’ same-sex marriage laws (and related policies) violate the Constitution and thus are void. However in light of claims by Kansas officials that the state is voluntarily complying with the Obergefell holding, the court delayed issuing a permanent injunction to determine whether the issue is moot, saying:

In the Court’s view, the prudent course of action is to let defendants finish updating their policies and practices to conform to Obergefell’s new rule of constitutional law. The Court thus defers, for now, the portion of plaintiffs’ summary judgment motion seeking injunctive relief. Should subsequent events reveal that the Court’s hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced, plaintiffs may supplement their motion for summary judgment on their claims for injunctive relief...

SCOTUSblog discusses the opinion.

Ohio Supreme Court Board Issues Advisory Opinion On Judges' Refusal To Perform Same-Sex Marriages

The Ohio Supreme Court's Board of Professional Conduct has issued an advisory opinion on Judicial Performance of Civil Marriages of Same-Sex Couples.  In Opinion 2015-1 (Aug. 7, 2015), the Board concluded:

A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).

A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.

The Board refused to address questions regarding assignment or rotation of judges conducting marriages at a court.

Yesterday's Columbus Dispatch reported on the advisory opinion. The issue was highlighted in Ohio last month when Toledo Municipal Court Judge C. Allen McConnell's bailiff told a same-sex couple who had been issued a marriage license that McConnell does not do "these types of marriages." (See prior posting.)

Kentucky County Clerk Files Third-Party Complaint Against Governor In Battle Over Same-Sex Marriage Licenses

As previously reported, in July the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. On Tuesday, Davis responded by filing a third-party complaint in the suit against Kentucky Governor Steven Beshear as well as the state official responsible for marriage license forms.  Her third-party complaint (full text) in Miller v. Davis, (ED KY, filed 8/4/2015) alleges in part:

The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs. Because of Governor Beshear’s open declaration that Davis has no such rights, Governor Beshear has exposed Davis to the Plaintiffs’ underlying lawsuit, in which the Plaintiffs claim a constitutional right to a Kentucky marriage license issued specifically by Davis. Governor Beshear is not only liable to Davis for Plaintiffs’ claims, but is also obligated to effect Kentucky marriage licensing policies that uphold Davis’s rights of religious conscience.

Liberty Counsel issued a press release announcing the filing of the complaint. AP reports on the filing.

IRS Commissioner Says No Non-Profit Revocations In His Term For Colleges That Oppose Gay Marriage

At a July 29 hearing conducted by the Senate Judiciary Committee's Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (video and testimony at hearing), Sen. Mike Lee (R-UT) had a lengthy exchange with IRS Commissioner John Koskinen over whether the IRS would revoke the tax-exempt status of Christian colleges and universities that remain opposed to same-sex marriage.  According to the Christian Post, Koskinen pledged:

that he will commit to making sure that the IRS does not punish religious schools for not adopting policies to accommodate gay marriage — such as allowing married same-sex couples to live in married student housing — as long as he is in charge of the IRS..... However, Koskinen did leave the door wide open for tax-exempt statuses to be a problem for Christian schools in the future....

All we do is follow whatever the public policy is that is set by other organizations," Koskinen argued. "At this point other actions would have to take place before the IRS can consider issuing a regulation, which would give people notices to what we think the public policy was and then cases and exams would be conducted under that.

[Thanks to Steven H. Sholk for the lead.]

Report on Tax Implications of Same-Sex Marriage

On July 30, the Congressional Research Service issued a report titled The Federal Tax Treatment of Married Same-Sex Couples. The report details the various tax code provisions that will lead to tax differences between filing as two single taxpayers and filing as a married couple.  The report concluded that while for some same-sex couples, federal recognition of their marriage will lead to lower taxes, for other it will lead to taxes higher than if filing as two single individuals. Several studies have reached different estimates on the overall impact on tax revenues.

Pennsylvania Court Retroactively Validates Same-Sex Marriage After Death of One Spouse

In what is apparently the first case of its kind, on Wednesday a Bucks County, Pennsylvania trial court retroactively validated a same-sex common law marriage.  As reported by the Doylestown Intelligencer, the decision allows the widowed Dr. Sabrina Maurer to recover spousal survivor benefits under two separate insurance policies, and allows her an inheritance tax refund.  Maurer and Dr. Kimberly Underwood were married in a 2001 Episcopal religious ceremony, even though same-sex marriages were not then recognized in Pennsylvania.  However common law marriages were recognized if they took place before 2005. Underwood died in 2013.  Same-sex marriages became legal in Pennsylvania in 2014.

Indiana Deputy Clerk, Fired For Refusing To Issue Same-Sex Marriage Licences, Sues [UPDATED]

Linda Summers, a former deputy clerk in the Harrison County, Indiana Superior Court Clerk's Office, last week filed a federal court lawsuit alleging violation of her First Amendment free exercise rights. religious discrimination in employment.  The Louisville Courier Journal reports that after the U.S. Supreme Court denied review of a case from Indiana upholding marriage equality, County Clerk Sally Whitis sent an e-mail to all employees telling them that even if it conflicted with their religious beliefs, they were required to process licenses for same-sex couples. Summers responded with a hand-delivered letter asking that she not be required to do so based on her religious beliefs.  She was fired for insubordination. The lawsuit seeks damages and a change in employment practices.

UPDATE: Despite the Courier Journal's quote from plaintiff's counsel that the lawsuit is "just a generic First Amendment free exercise case", now that I have a copy of the complaint it appears that the suit is based on Title VII of the 1964 Civil Rights Act.  Here is the full text of the complaint in Summers v. Whitis, (SD IN, (filed 7/17/2015).  [Thanks to Greg Lipper for the copy of the complaint.]

European Court Holds Italy Gives Inadequate Protection To Same-Sex Couples

In a Chamber judgment in Oliari and Others v. Italy, (ECHR, July 21, 2015), the European Court of Human Rights in a Chamber judgment awarded damages to three same-sex couples whose relationships were not adequately protected by Italian law.  While the award was unanimous, 3 concurring judges thought that the case could be decided on narrower grounds than did the 4-judge majority opinion.  The Court's press release describes the majority opinion in part as follows:

In previous cases, the Court had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship....

The Court considered that the legal protection currently available in Italy to same-sex couples ... not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. Where registration of same-sex unions with the local authorities was possible – only in a small share of municipalities in Italy – this had merely symbolic value, as it did not confer any rights on same-sex couples. 

As regards the possibility, since December 2013, to enter into “cohabitation agreements”, such contracts were limited in scope. They failed to provide for some basic needs ... such as mutual material support, maintenance obligations and inheritance rights. The fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that those agreements did not primarily aim to protect couples. Furthermore, such a contract required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.

Among the authorities cited by the majority was the U.S. Supreme Court's recent Obergefell decision. A Chamber judgment may be appealed to the Grand Chamber. Frontiers Media reporting on the decision points out that Italy is the only major Western European country that does not provide either civil partnerships or same-sex marriage.

Marriage Equality Group Will Celebrate Victory By Going Out of Business

The advocacy group Freedom To Marry, founded in 2001 to push for legalization of same-sex marriage, is taking the rare step of going out of business now that its goal has been accomplished.  Wednesday's Wall Street Journal reported that unlike many other non-profits that find a new cause to promote, Freedom To Marry will help its staff find other positions, will make certain that its records are archived, and then will close down completely by February. [Thanks to How Appealing for the lead.]

Suit Alleges Discrimination Against Same-Sex Spouse Constitutes "Sex" Discrimination

Following the Supreme Court's recent decision legalizing same-sex marriage throughout the United States, many commentators noted that same-sex couples may still face discrimination because sexual orientation discrimination is not explicitly prohibited under federal law nor under the law of a number of states.  Yesterday in a class action lawsuit filed in federal district court in Massachusetts, a Wal-Mart employee is seeking a ruling that discrimination against a same-sex spouse is discrimination on the basis of "sex", a classification that is covered by state and federal anti-discrimination laws. At issue is Wal-Mart's policy of denying spousal health insurance benefits to same-sex spouses of eligible employees.  If the theory is successful, it could lay the groundwork for public accommodation suits, as well as employment discrimination ones.

The complaint (full text) in Cote v. Wal-Mart Stores, Inc., (D MA, filed 7/14/2015), alleges that the EEOC issued a right to sue letter, finding that the refusal to add plaintiff's same-sex spouse to her health insurance policy constituted discrimination on the basis of sex since such coverage would have been provided if she were married to a man rather than another woman. The suit alleges that denial of benefits violates Title VII of the 1964 Civil Rights Act, the Equal Pay Act and the Massachusetts Fair Employment Practices Law because benefits would have been provided if plaintiff were married to someone of the opposite sex or if she were a different sex than her spouse. National Law Journal reports on the lawsuit.