Second Suit Filed Against Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

As previously reported, earlier this month the ACLU filed a class action lawsuit in federal court against  Rowan County, Kentucky, Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. According to the Lexington Herald-Leader, Davis, who is represented by by the advocacy group Liberty Counsel, did not appear in court at yesterday's scheduled hearing because she has not yet been served with a summons.  Meanwhile a second suit was filed against Davis last Friday by a same-sex couple who were denied a marriage license.  The complaint (full text) in Ermold v. Davis, (ED KY, filed 7/10/2015), alleges that plaintiffs were denied a marriage license  by Davis' office based upon Davis' "understanding of Adam, Eve, and the origins of man as set forth in the Old Testament." The couple's video of their attempt to apply for a license, posted on YouTube, has been viewed over 1.7 million times. The suit has been assigned to U.S. District Judge David Bunning who is also hearing the ACLU challenge.  Bunning says he will probably consolidate the two cases. [Thanks to Tom Rutledge for the lead.]

AG Says U.S. Government Benefit Programs Will Recognize Same-Sex Spouses In All States

U.S. Attorney General Loretta Lynch announced yesterday that the Supreme Court's marriage equality decision will be applied across the federal government.  She said in part:

[C]ritical programs for veterans and elderly and disabled Americans, which previously could not give effect to the marriages of couples living in states that did not recognize those marriages, will now provide federal recognition for all marriages nationwide....  Just over a year ago, Attorney General Holder announced that agencies across the federal government had implemented the Supreme Court’s Windsor decision by treating married same-sex couples the same as married opposite-sex couples to the greatest extent possible under the law as it then stood.  With the Supreme Court’s new ruling that the Constitution requires marriage equality, we have now taken the further step of ensuring that all federal benefits will be available equally to married couples in all 50 states, the District of Columbia and the US Territorie

Kansas Governor Shields Clergy and Religious Social Service Groups That Object To Same-Sex Marriage

Yesterday Kansas Governor Sam Brownback issued Executive Order 15-05 (full text) protecting clergy, religious leaders and religious organizations that have moral objections to same-sex marriage from adverse action by the state. It prohibits the state government from taking any discriminatory action against any individual clergy or religious leader who declines on religious or moral grounds to perform, solemnize, or facilitate a same-sex marriage.  It similarly bars discriminatory action against any religious organization that refuses to provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration or recognition of any same-sex marriage.

Finally the Executive Order provides that the state may not take discriminatory action against a religious organization that provides social services or charitable services because the organization acts upon sincerely held religious belief or moral conviction that marriage is between one man and one woman. Discriminatory action includes denial of tax exemptions or benefits, denial of state grants or contracts, and denial of licensing or accreditation.

The governor issued a press release announcing the Executive Order. Washington Post reports on the governor's action. [Thanks to Scott Mange for the lead.]

Conscience Rights of Clerks and Judges Become An Issue After Supreme Court's Marriage Equality Ruling

In the wake of the U.S. Supreme Court's ruling on same-sex marriage, issues continue to arise regarding the right of state and county officials to refuse on personal religious grounds to issue licenses or perform weddings.

The Christian Science Monitor reports that in Hood County, Texas, County Clerk Katie Lang last week initially refused to issue a marriage license to Joe Stapleton and Jim Cato. On Monday the couple filed a federal lawsuit and less than two hours later Lang's office agreed to issue the couple a marriage license.  However the couple's lawyer says the lawsuit will proceed unless Lang agrees to issue licenses in the future to all couples, gay and straight.

According to the Toledo Blade, in Toledo, Ohio on Monday a same-sex couple who were issued a marriage license ran into delays when they went to the office of the judge on duty to perform marriages for that day.  Municipal Court Judge C. Allen McConnell's bailiff told them that McConnell does not do "these types of marriages." However, after a 45-minute wait, another judge, William M. Connelly, Jr., performed the ceremony for them.

In Kentucky, court clerk Casey Davis who objects on religious grounds to issuing marriage licenses to same-sex couples has come up with a creative suggestion. Davis wants state law amended so couples can obtain marriage licenses online.  AP reports that Davis has asked Gov. Steve Beshear to call a special session of the legislature to amend the law to allow the online procedure.  According to the Lexington Herald-Leader, Beshear for cost reasons has rejected the idea of a special legislative session on marriage issues, even though House Speaker Greg Stumbo favors it.

Final Order Issued In Oregon Same-Sex Wedding Cake Refusal

This week, the Commissioner of the Oregon Bureau of Labor and Industries went beyond the recommendations of the Administrative Law Judge (ALJ) (see prior posting) in finding violations of law by a bakery whose owner refused on religious grounds to provide a wedding cake to a same-sex couple.  In Matter of Melissa Elaine Klein dba Sweetcakes By Melissa, (Bur. Labor & Indus., July 2, 2015), the Commissioner agreed with the ALJ that co-owner Aaron Klein violated ORS 659A.403 that bars discrimination in public accommodations on the basis, among others, of sexual orientation, and that both owners are therefore liable for damages totaling $135,000.  However the Commissioner, rejecting the ALJ's contrary conclusion, held that in addition both co-owners violated ORS 659A.409 that prohibits anyone acting on behalf of a place of public accommodation from issuing any communication that indicates facilities or services will be denied to anyone on account, among others, of sexual orientation.  This finding was based largely on statements in an interview broadcast on radio and television that the bakery would continue to refuse to provide cakes for same-sex weddings, an on a note taped to the bakery door.

Finding the state law provisions constitutional, the Commissioner issued a cease and desist order barring the owners from

publishing, issuing, circulating or displaying ... any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation.

ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday 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. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

Courts Move To Finalize Compliance With Obergefell, With Scattered Resistance

In the wake of the Supreme Court's Obergefell decision, the U.S. 5th Circuit Court of Appeals yesterday issued opinions in three same-sex marriage cases pending on appeal, ordering federal district courts in Mississippi (Campaign for Southern Equality v. Bryant), Louisiana (Robichearx v. Caldwell) and Texas (DeLeon v. Abbott) to enter final judgments for plaintiffs challenging same-sex marriage bans by July 17. In the Louisiana case, the court noted that speedy action was particularly necessary because of the declining health of one of the plaintiffs.

In Alabama, a federal district court judge issued an opinion yesterday in Strawser v. Strange, clarifying that the court's preliminary injunction barring enforcement of Alabama laws barring same-sex marriage is now in effect.  Meanwhile, AP reports scattered resistance to the Supreme Court's decision, with a a few judges and clerks in Alabama, Kentucky and Texas deciding to stop issuing any marriage licenses to anyone.

ACLU Sues Louisiana Governor Over Order On Protection of Anti-Gay Marriage Beliefs

The ACLU of Louisiana announced yesterday that it has filed suit in Louisiana state court challenging Governor Bobby Jindal's May 19 Marriage and Conscience Order. The challenged executive order prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman. (See prior posting.)  The complaint (full text) in ACLU Foundation of Louisiana v. Jindal, (LA Dist. Ct., filed 6/30/2015), contends that Jindal's Order "is an unauthorized usurpation of the powers vested in the legislature." As reported by the Bayou Buzz, Gov. Jindal issued a statement in response to the lawsuit, saying in part: "The ACLU used to defend civil liberties, now it appears they attack them."  Meanwhile on Monday the Governor's Office posted on its website a legal memorandum (full text) on religious liberty in light of the Supreme Court's marriage equality ruling.

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:

Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.

What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself....  The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.

Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself.  Paxton's statement says in part:

A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.

Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:

Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.

Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty

Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:

A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.

Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:

Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.

The Houston Chronicle reports on developments.

Commentary: Justice Kennedy's Equal Protection Analysis In Obergefell

One of the most interesting and least-commented upon aspects of Justice Kennedy's majority opinion (see prior posting) in Obergefell v. Hodges , last Friday's marriage equality decision, is his treatment of appellants' equal protection arguments.  The traditional approach-- and that used by most lower courts in their same-sex marriage decisions--is to determine the level of scrutiny that should be given to laws that discriminate on the basis of sexual orientation.  Do such classifications deserve "strict" scrutiny, "heightened" scrutiny or does there merely need to be a "rational basis" for use of the classification?  Past Supreme Court decisions on LGBT rights have been particularly opaque on this question.

Early in his opinion, Justice Kennedy laid groundwork that might have been used to flesh out a decision on the appropriate level of scrutiny.  He reviewed the history of discrimination against gays and lesbians-- one of the factors that traditionally figures into a determination of whether heightened scrutiny is called for.  However when he gets to the discussion of equal protection, Justice Kennedy largely ignores that groundwork, mentiioning the history of discrimination only in passing. Instead he treats the equal protection clause as a provision that primarily serves to emphasize the correctness of the fundamental-right-to-marriage conclusion that he has already reached.  That is, unlke most past cases in which substantive due process arguments were made largely to emphasize the severity of the denial of equal protection, here the roles of the two clauses are reversed. Justice Kennedy says in part:

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.  The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right....

The Court’s cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause....

Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged....

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.  And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.

Justice Kennedy thus muddies the water even more as to the test for when discrimination against gays and lesbians, outside the context of marriage, violates the equal protection clause.    He also implicitly suggests that future governmental action burdening in some fashion the right to same-sex marriage should be tested primarily under the due process clause.  Thus if states enact laws permitting business owners with religious objections to refuse to provide goods or services for a same-sex marriage, it would seem that the provision's constitutionality should now be tested not by whether the government has a compelling interest to treat same-sex marriages differently than other marriages, but rather by whether the governmental action places a substantial obstacle or undue burden on the liberty interest of the marriage partners.

The Dissents In Today's Supreme Court Same-Sex Marriage Decision

Following up my earlier posting on Justice Kennedy's majority opinion today in Obergefell v. Hodges (the Supreme Court's decision deciding that states must permit and recognize same-sex marriage), here is a summary of the four dissents:

Chief Justice Roberts dissent (joined by Justices Scalia and Thomas) argued that the majority opinion was a return to the long-rejected judicial policy-making symbolized by the Lochner case:

[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. ...

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition....

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry.... In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policy making that characterized discredited decisions such as Lochner v. New York.... Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society....

Emphasizing his central theme, the Chief Justice ended his dissent with the following paragraph:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Justice Scalia's dissent (joined by Justice Thomas) makes a similar point in somewhat more strident language:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. ...

But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.

In making his point, Justice Scalia pointed out the unrepresentative character of the Supreme Court:

nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

Justice Thomas' dissent (joined by Justice Scalia) included a lengthy historical critique of the majority's understanding of the term "liberty" in the due process clause, saying in part:

Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. 

Justice Alito's dissent (which Justices Scalia and Thomas joined) included a more direct discussion than did the other opinions of the position of those who continue to oppose same-sex marriage:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.... We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

.... If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

Supreme Court Says States Must License and Recognize Same-Sex Marriage-- A Review of Justice Kennedy's Majority Opinion

Today in Obergefell v. Hodges, (Sup. Ct., June 26, 2015), in a 5-4 decision the U.S. Supreme Court held that the 14th Amendment's due process and equal protection clauses require states to license same-sex marriages and to recognize same-sex marriages lawfully licensed and performed in other states. Justice Kennedy wrote a rather tightly reasoned majority opinion which was joined by Justices Ginsberg, Breyer, Sotomayor and Kagan.  He began by tracing changes in the concept of marriage that have occurred over time, saying in part:

There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex.... 

The petitioners acknowledge this history but contend that these cases cannot end there.... Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment....

The history of marriage is one of both continuity and change.... For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman.... As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity....  As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.... 

[T]he Court has long held the right to marry is protected by the Constitution... It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.... In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond.... The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.... A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. ... A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.... Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order ...

Justice Kennedy expanded on the third of these premises:

Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. ...

Justice Kennedy went on:

[B]y virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.... 

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied....

The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet in some instances each may be instructive as to the meaning and reach of the other.... Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry....

Justice Kennedy then addressed the concerns of those who oppose same-sex marriage on religious grounds:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Each of the 4 dissenting justices filed a separate dissent.  A later posting will review those.  UPDATE: Here is a posting summarizing the dissents.

SEC Interprets Terms In Securities Laws To Include Same-Sex Marriages

The Securities and Exchange Commission on June 19 issued Release No. 33-9850 (full text) formally interpreting the terms "spouse" and "marriage" in the federal securities laws and rules to include same-sex spouses and same-sex marriages where the couple is lawfully married under state law, regardless of their domicile.

Texas Supreme Court: State Lacks Standing To Appeal Trial Court's Grant of Same-Sex Divorce

In a 5-3 decision, the Texas Supreme Court yesterday in State of Texas v. Naylor  (TX Sup. Ct., June 19, 2015), held that the state lacks standing to appeal a divorce decree of sorts that had been granted by a trial court to a lesbian couple.  In the case, the couple had been legally married in Massachusetts, but were now Texas residents.  The trial court recognized the problem of issuing a decree since under Texas law the couple's marriage was not recognized.  Instead it issued an order-- pursuant to an agreement of the parties-- which was "intended to be a substitute for ... a valid and subsisting divorce... and is intended to dispose of all economic issues and liabilities as between the parties whether they [are] divorced or not."  After the order was entered, the state of Texas filed a motion to intervene to defend the Texas law that limits divorce actions to opposite-sex couples who are married to one another.

The Supreme Court's majority opinion by Justice Brown held that the state was too late in attempting to intervene as a party since it did not try to do so until after a decree was entered.  It also held that the state did not show grounds to maintain a third-party appeal of the trial court's decision. Justice Boyd filed a concurring opinion emphasizing that the state is in no way bound by the trial court's decree.

Justice Willett delivered a dissenting opinion (which was joined by Justices Guzman and Devine) concluding:

In my view, the attorney general—constitutionally bound to “represent the State in all suits” has an interest sufficient to intervene to defend Texas law against perceived constitutional attack. His arguments may not prevail, but he should be allowed to make them.

Justice Devine also filed a separate dissent reaching the merits and concluding that the Texas ban on same-sex marriages is constitutional.  Thus, since the parties were not married, the trial court lacked jurisdiction over the divorce action. Dallas Morning News reports on the decision. [Thanks to How Appealing for the lead.]

North Carolina Legislature Overrides Veto Of Magistrates Recusal Bill

The North Carolina General Assembly yesterday overrode Governor Pat McCrory's veto of Senate Bill 2, Magistrate's Recusal For Civil Ceremonies.  The Senate vote to override, cast June 1, was 32-16. The House vote  yesterday was 69-41. (Vote history).  The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. (See prior posting.) Raleigh News & Observer reports on the General Assembly's action.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.

Guam's Same-Sex Marriage Ban Struck Down

Pacific Daily News reports that in a ruling from the bench, Guam's chief federal judge this morning struck down the island's ban on same-sex marriage.  A written opinion is expected on Monday. Guam, a U.S. territory, is part of the 9th Circuit which has already held same-sex marriage bans unconstitutional. (See prior posting.) Guam is the last jurisdiction in the 9th Circuit to have its ban invalidated.

UPDATE: The full opinion in Aguero v. Calvo, (D Guam, June 8, 2015) is now available.

More Legal Maneuvering Against Same-Sex Marriage In Alabama As U.S. Supreme Court's Decision Nears

With the U.S. Supreme Court less than a month away from finally settling the issue, legal sparring over same-sex marriage continues in Alabama. Two groups that had secured from the Alabama Supreme Court a writ of mandamus ordering Probate Court judges around the state to discontinue the issuance of marriage licenses to same-sex couples (see prior posting) filed a "Motion for Clarification and Reaffirmation of the Court's Orders Upholding and Enforcing Alabama's Marriage Laws".  The motion and supporting memorandum of law (full text) in Ex parte State of Alabama ex rel. Alabama Policy Institute, (AL Sup. Ct., filed 6/2/2015), asked the state Supreme Court to reaffirm its order in light of intervening U.S. federal district court decisions (see prior posting) granting a preliminary injunction (which the district court then stayed pending the U.S. Supreme Court's upcoming decision) barring all Alabama probate judges from refusing to issue marriage licenses to same-sex couples. Liberty Counsel issued a press release announcing the filing of the motion which said in part: "The Alabama Supreme Court’s prior mandamus Order, and perhaps its disposition of this motion, should send a message that any ruling by Judge Granade or even the United States Supreme Court inventing a right to same-sex 'marriage'a under the U.S. Constitution is illegitimate."

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.

More Alabama Same-Sex Marriage Developments

Alabama has been "ground zero" for opposition to same-sex marriage.  Two more developments help it keep that title.  According to the Montgomery Advertiser, in Prattville, Alabama last week, a Unitarian minister pleaded guilty to disorderly conduct charges and was sentenced to six months unsupervised probation and a $250 fine. The charges were filed last February when Anne Susan DiPrizio offered to marry a lesbian couple who had just received a marriage license, planning to conduct the ceremony inside the Autauga County Probate Office.  However, the local Probate Judge had stopped all marriages in the office.  After DiPrizio refused to leave, sheriff's deputies were called and disorderly conduct charges were filed.

Meanwhile also last week, the Alabama state Senate passed and sent to the state House of Representatives SB 377 (full text) that would end the issuance of marriage licences in the state.  Instead a couple would enter a "marriage contract" containing specified information and would record that contract in the office of the county probate court.  If and when same-sex marriage becomes legal in Alabama, this procedure eliminates the issue of whether a probate court employee who objects to same-sex marriage must issue a license to a same-sex couple. The bill's sponsor defines the bill's purpose more broadly, saying: "When you invite the state into those matters of personal or religious import, it creates difficulties." (Yellowhammer News, 4/30/15).