North Carolina County Commission Resolution Opposes Court's Marriage Equality Ruling

On Monday night, the Columbus County, North Carolina Board of Commissioners, by a vote of 6-1, passed a resolution asking for the federal court ruling invalidating North Carolina's same-sex marriage ban to "be reviewed and reconsidered to protect the foundation that America was established on."  According to WECT News, Commissioner Ricky Bullard who sponsored the resolution said it was motivated by his religious views, commenting: "In the Bible, it always talks about Adam and Eve. I've never heard it talk about Adam and Steve."

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) 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. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Virginia Governor Says Same-Sex Married Couples Can Now Adopt

Last week, Virginia's Department of Social Services (at the direction of Governor Terry McAuliffe) issued a Bulletin (full text) to its local offices informing them that court decisions legalizing same-sex marriage mean that now married same-sex couples are eligible to adopt children under Va. Code Sec. 63.2-1225. Same-sex couples in civil unions or domestic partnerships (rather than marriages) are not eligible to adopt. Reporting on the Governor's action, Metro Weekly yesterday said that, according to the ACLU, married same-sex couples with children born before same-sex marriage was legalized on Oct. 6, 2014 should be able to get an amended birth certificate listing both spouses as a legal parent.  A same-sex spouse should now also be able to adopt a spouse's child so long as the child does not have another legal parent.

9th Circuit Says Same-Sex Marriages Can Go Ahead In Idaho

In what could be the final procedural step in the challenge to Idaho's ban on same-sex marriage, the U.S. 9th Circuit Court of Appeals yesterday issued an order dissolving its prior stay of its decision invalidating the Idaho ban.  According to KVPI News, the court's order provides that the lifting of the stay is effective at 10 a.m. tomorrow, at which time same-sex marriages will be legal in the state.

Same-Sex Marriage Developments In Kansas, West Virginia, Alaska

Developments relating to same-sex marriages have been moving rapidly in Kansas.  Last Wednesday, Chief Judge Kevin Moriarty of the state's 10th judicial district (Johnson County) issued Administrative Order No. 14-11 (Oct. 8, 2014), instructing the clerk of the court, as well as all deputy clerks, to issue marriage licenses to same-sex couples. However, on Friday (Oct. 10) Kansas Attorney General Derek Schmidt filed a petition (full text) for issuance of a writ of mandamus to stop the Johnson County order from taking effect, and asking the Kansas Supreme Court to decide the issue. (Press release; Memorandum in Support of Petition). Before the state Supreme Court could act, one same-sex couple in Johnson County were married. (Kansas Equality Coalition statement.) However a few hours later, in State of Kansas v. Moriarty, (KA Sup. Ct., Oct. 10, 2014), the state Supreme Court issued a stay of Judge Moriary's order "in the interest of establishing statewide consistency." It set oral arguments for Nov. 6, but said that applications for same-sex marriage licenses may continue to be accepted. As pointed out by KCTV 5 News, the November hearing date is two days after the general election.

Meanwhile in West Virginia, on Thursday (Oct. 9) state Attorney General Patrick Morrisey issued a statement (full text) saying in part:

In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.... [However] only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages.  While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.

AP reports that after the Attorney General's statement, State Registrar Gary Thompson sent a letter to clerks in all 55 West Virginia counties setting out new protocols for marriage licenses allowing for same-sex marriages. At least one couple was issued a license on Friday.

And in Alaska yesterday, a federal court declared its ban on same-sex marriages to be in violation of the 14th Amendment's due process and equal protection clauses.  As reported by Think Progress, the decision in Hamby v. Parnell, (D AK, Oct. 12, 2014), came just two days after the court heard oral arguments in the case. However, according to KTUU News, Alaska Governor Sean Parnell issued a statement Sunday saying that he would appeal the decision.

Marriage Equality Proponents Win Victories In Nevada, Idaho, North Carolina

As previously reported, on Wednesday U.S. Supreme Court Justice Anthony Kennedy issued an order temporarily staying the 9th Circuit's  mandate invalidating same-sex marriage bans in Idaho and Nevada, even though only Idaho officials applied for the stay.  Later the same day, Justice Kennedy issued a second order (full text) vacating the portion of his order staying the 9th Circuit's decision as to Nevada, presumably allowing same-sex marriages to begin immediately there.Then yesterday, the full Court issued an order as to the Idaho case (full text) reading:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

The 9th Circuit's decision affirmed the Idaho federal district court's decision invalidating Idaho's same-sex marriage ban.  However, because the 9th Circuit recalled its mandate ordering its affirmance effective immediately once the petition for a stay was filed with the Supreme Court, the parties are concerned that the decision by itself did not serve to dissolve the stay pending appeal of the district court's decision entered by the 9th Circuit in May. So yesterday the plaintiffs filed a motion (full text) to dissolve that stay, and (as reported by SCOTUblog) the 9th Circuit has called for a response by noon Monday, and a reply to that by 5:00 p.m. Monday. [Corrected chronology.]

Meanwhile, in General Synod of the United Church of Christ v. Resinger, (D NC, Oct. 10, 2014), a North Carolina federal district court on its own motion in a case challenging North Carolina's same-sex marriage ban held that the ban is unconstitutional as a matter of law.  In a brief opinion and order, the court pointed to the 4th Circuit's decision in Bostic v. Schaefer striking down Virginia's ban on same-sex marriage. (See prior posting.) The Charlotte Observer reports on the decision.

9th Circuit's Invalidation of Idaho and Nevada Same-Sex Marriage Bans Temporarily Stayed By Justice Kennedy

U.S. Supreme Court Justice Anthony Kennedy today temporarily stayed the 9th Circuit's mandate yesterday invalidating same-sex marriage bans in Idaho and Nevada. (Full text of order.) Even though only Idaho officials applied for the stay, Justice Kennedy's to stays the 9th Circuit's mandate in the Nevada case as well. Nevada officials had withdrawn their answering briefs in the 9th Circuit, conceding that discrimination against same-sex couples is unconstitutional.  Justice Kennedy's order calls for those opposing the bans to file a response by 5 p.m. tomorrow. NPR reports on Justice Kennedy's action.

9th Circuit: Same-Sex Marriage Bans In Idaho and Nevada Are Unconstitutional

In Latta v. Otter, (9th Cir., Oct. 7, 2014), a 3-judge panel of the U.S. 9th Circuit Court of Appeals held unanimously that laws in Idaho and Nevada that prohibit same-sex marriage and recognition of same-sex marriages performed elsewhere violate the Equal Protection Clause of the 14th Amendment because they discriminate on the basis of sexual orientation. Judge Reinhardt, who wrote the court's opinion, also filed a concurring opinion arguing that the bans also infringe plaintiffs' fundamental right to marriage protected by the 14th Amendment's due process clause.  Judge Berzon wrote a concurring opinion holding that the bans also amount to unconstitutional discrimination on the basis of gender.

A mandate issued by the 9th Circuit yesterday evening decreed that its decision takes effect immediately.

Reporting on the decision, Lyle Denniston at SCOTUSblog says that the decision is expected to control pending challenges to similar laws in Alaska, Arizona and Montana-- all in the 9th Circuit.

Supreme Court Denies Review In Same-Sex Marriage Cases From 5 States

The U.S. Supreme Court today denied certiorari in seven same-sex marriage cases from 5 states that had been decided by various circuit courts. (Order List). All of the Circuit Court decision had invalidated bans on same-sex marriage and/or recognition of same-sex marriages performed elsewhere. The cases are:

Herbert v. Kitchen (Docket No. 14-124) (Utah)
Smith v. Bishop (Docket No. 14-136) (Oklahoma)
Rainey v. Bostic (Docket No. 14-153) (Virginia)
Schaefer v. Bostic (Docket No. 14-225) (Virginia)
McQuigg v. Bostic (Docket No. 14-251) (Virginia)
Bogan v. Baskin (Docket No. 14-277) (Indiana)
Walker v. Wolf (14-278) (Wisconsin)

AP reports on the Court's action.

Church Evicts AA Out of Fear It Would Lead To Required Hosting of Gay Weddings

KSLA reported last week that in a Sept. 17 letter, the pastors of a Keithville, Louisiana Baptist church told an AA group that had been meeting at the church for five years that it could no longer accommodate them out of fear that a court would hold that the church would also need to make its building available for same-sex wedding ceremonies and receptions.

Successful DOMA Challengers Denied Attorneys' Fees Award

In McLaughlin v. Hagel, (1st Cir., Sept. 23, 2014), the U.S. 1st Circuit Court of Appeals held that plaintiffs who successfully challenged the constituitonality of Sec. 3 of the Defense of Marriage Act are not entitled to an award of attorneys' fees against the government under the Equal Access to Justice Act. According to the court:

This extraordinary case presents the unusual situation in which the government's pre-litigation and during-litigation position was to enforce a challenged statute, but in which the government's litigation position was to argue that the challenged statute is unconstitutional....

Though novel, the government's litigate-to-lose position is not barred by the case law. And because it was constitutionally appropriate, fees were correctly denied as a matter of law.

 National Law Journal reported on the decision.

Louisiana State Court Invalidates State's Same-Sex Marriage Bans

Yesterday, a Louisiana state trial court declared the state's ban on same-sex marriage and its refusal to recognize same-sex marriages performed elsewhere unconstitutional.  The full text of the opinion has apparently not yet been publicly released, but BuzzFeed News reports that it was permitted to review a copy of the decision on the condition that it not post it or quote directly from it. (The decision was sealed because it involves the adoption of a minor.) BuzzFeed reports that the 23-page opinion invalidates the bans on the basis of the equal protection, due process and Full-Faith-And-Credit clauses. The Louisiana Department of Justice plans to appeal directly to the state Supreme Court and has already asked the trial court to suspend its order pending appeal. The trial court's invalidation of the state's same sex marriage ban comes less than a month after a Louisiana federal district court upheld the ban. (See prior posting.)

UPDATE: Here is the full opinion in Costanza v. Caldwell, (LA Dist. Ct., Sept. 22, 2014).

Group Says Justice Ginsburg Made Improper Comment On Possible Review of Same-Sex Marraige Cases

Liberty Counsel issued a press release yesterday contending that U.S. Supreme Court Justice Ruth Bader Ginsburg violated the Judicial Code of Conduct in remarks she made to an audience at the University of Minnesota Law School.  Ginsburg apparently told the audience that there would be "no need for us to rush" in reviewing challenges to same-sex marriage bans if the 6th Circuit in four cases pending before it does not create a split among circuits by upholding the bans.  She continued saying that there would be "some urgency" to review if a split is created.  Liberty Counsel says that this amounted to comment on the merits of an impending case. Technically, the Judicial Conference's Code of Conduct is not binding on Supreme Court Justices.

9th Circuit Hears Oral Arguments In 3 Same-Sex Marriage Cases

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in cases from Idaho, Nevada and Hawaii challenging same-sex marriage bans. Audio recordings of the full arguments in each of the cases is available: Latta v. Otter (Idaho); Sevcik v. Sandoval (Nevada); Jackson  v. Abercrombie  (Hawaii). Subsequent to the district court opinion being appealed, Hawaii legalized same-sex marriage. (See prior posting.)  MSNBC, reporting on the oral arguments, called it "a rough day for marriage equality opponents."

Egypt Arrests 7 Who Appeared In Video Of Same-Sex Wedding

AlJazeera yesterday  reported that Egypt has arrested seven men on charges of inciting debauchery and publishing indecent images after a video of them taking part in the country's first same-sex wedding went viral on social media.  The wedding took place last April, but went viral in August. Authorities identified 9 of the 16 people in the video, and arrested 7 of them. Those arrested were remanded in custody for up to four days, and "medical tests" of the men were ordered.

32 States Ask Supreme Court To Grant Cert In Same-Sex Marriage Cases

As reported yesterday by AP, in two separate amicus briefs a total of 32 states have asked the U.S. Supreme Court to grant certiorari to decide on the constitutionality of state bans on same-sex marriage. Led by Massachusetts, 15 states that allow same-sex marriage joined a brief in Herbert v. Kitchen, the 10th Circuit case invalidating Utah's ban. (Full text of brief.) (Mass. AG press release.)  17 other states led by Colorado filed a brief in Rainey v. Bostic, the 4th Circuit Virginia case and Smith v. Bishop, the 10th Circuit Oklahoma case.

7th Circuit Invalidates Same-Sex Marriage Bans In Indiana and Wisconsin

Yesterday the U.S. 7th Circuit Court of Appeals in Baskin v. Bogan, (7th Cir., Sept. 4, 2014), affirmed district court decisions striking down same-sex marriage bans in Indiana and Wisconsin. The unanimous opinion, written by Judge Posner in his unquely cogent style, takes on and counters each argument in favor of same-sex marriage bans put forward by each state. He particularly emphasizes the protection-of-children argument on which Indiana relied exclusively:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage  because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

He derides Indiana's arguments, summarizing them as follows:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

Moving to Wisconsin's ban, Judge Posner, quoting (among others) Justice Holmes and John Stuart Mill, counters each of four additional justifications the state puts forward for banning same-sex marriage-- tradition, the need to move cautiously, respect for the democratic process and damage to traditional marriage. Posner describes the last of these as an argument that "allowing [homosexuals] to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars)...."  He summarizes:

the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

As reported by the New York Times, yesterday's decision was handed donw only nine days after the court heard oral arguments in the case.

District Court Upholds Louisiana's Same-Sex Marriage Ban

A Louisiana federal district court yesterday became only the second court (see prior posting) after the U.S. Supreme Court's Windsor decision to uphold a state law banning same-sex marriage.  In Robicheaux v. Caldwell,  (ED LA, Sept. 3, 2014), the court rejected the argument that heightened scrutiny should apply, and concluded that Louisiana had a rational basis for addressing the meaning of marriage through the democratic process. It held:

This Court is persuaded that Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the opinion of others...in linking children to an intact family formed by their two biological parents.... 

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos.  Courts that, in the words of Justice Scalia in a different context ... appear to have assumed the mantle of a legislative body. 

SCOTUSblog reports on the decision.

Supreme Court Issues Stay In Virginia Same-Sex Marriage Case

Yesterday the U.S. Supreme Court issued an order (full text) in McQuigg v. Bostic, staying the U.S. 4th Circuit Court of Appeals order that invalidated Virginia's ban on same-sex marriage. (See prior posting.)  The order delays the 4th Circuit's mandate until a petition for Supreme Court review is disposed of.  SCOTUS Blog reports on the stay..

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman, (TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee.  A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:

In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution.... 

The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....

The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:

The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa. 

Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)