NY Farm Fined For Denying Its Wedding Facilities For Same-Sex Wedding

In McCarthy v. Liberty Ridge Farm, LLC, (NY Div. Human Rights, Aug. 8, 2014), the New York State Divsion of Human Rights levied a $10,000 civil fine and awarded compensatory damages of $3,000 in a proceeding against a farm that adversises itself as a venue for weddings, but which refused to contract with the two women complainants for them to use the facilities for their same-sex wedding. The Division held that the discrimination violated the public accommodation provisions of the New York Human Rights Law.  Respondents were also required to take steps to prevent future discrimination.  The Albany Times-Union reported on the decision.

4th Circuit Refuses Stay In Invalidation of Virginia's Same-Sex Marriage Ban

By a 2-1 vote yesterday, the U.S. 4th Circuit Court of Appeals issued an Order (full text)  in Bostic v. Schaeffer refusing to delay the mandate in its decision last month invalidating Virginia's ban on same-sex marriage. (See prior posting.)  SCOTUSblog reports that attorneys representing the county clerk who is defending the same-sex marriage ban on appeal say they will seek a stay from the Supreme Court before the 4th Circuit's mandate takes effect next Wednesday. A petition for certiorari has already been filed seeking Supreme Court review of the underlying decision. (See prior posting.) Washington Post has more on the plans to seek a Supreme Court stay.

Christian-Owned Bridal Shop Refuses Gown Fittings For Lesbian Couple

The latest installment in the battle over whether Christian-owned businesses can refuse service based on religious beliefs comes from Bloomsburg, Pennsylvania. According to yesterday's Christian News, W.W. Bridal Boutique in Bloomsburg recently refused to schedule gown fittings for two lesbian women who were planning their wedding.  One of the women refused service took her complaints to Facebook, and the dispute has now proliferated on social media.  Bridal shop owner Victoria Miller later told reporters: "We feel we have to answer to God for what we do. And providing those two girls dresses for a sanctified marriage would break God’s law." Now Bloomsburg city council is considering enacting an ordinance to prohibit discrimiantion on the basis of sexual orientation.

Cert. Petitions Filed In Oklahoma and Virginia Same-Sex Marriage Cases

Following quickly on the heels of Utah's Aug. 5 certiorari petition to the U.S. Supreme Court (see prior posting), certiorari petitions have been filed in two more same-sex marriage cases:

A petition (full text) was filed Aug. 6 in Smith v. Bishop, a case in which the 10th Circuit held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog points out that this is the longest-running federal court challenge to same-sex marriage bans, having been filed in 2004.

On Aug. 8, a petition for certiorari (full text) was filed in Rainey v. Bostic. In the case, the 4th Circuit Court of Appeals, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog comments that: "The Virginia case has special symbolic significance, because that is the state that produced the case of Loving v. Virginia, in which the Supreme Court in 1967 struck down a state law barring marriage by couples of different races."

6th Circuit Hears Oral Arguments In Same-Sex Marriage Cases

The U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in same-sex marriage cases from 4 states.  Here are links to the audio of the argument in each case:

• Michigan: DeBoer v. Snyder (Oral argument)
• Ohio: Obergefell v. Himes; Henry v. Himes (Oral argument).
• Kentucky: Bourke v. Beshar; Love v. Beshar (Oral argument).
• Tennessee: Tanco v. Haslem (Oral argument).

Detroit Free Press and MLive reported on the oral arguments.

Utah Files First Cert Petition In Same-Sex Marriage Challenges

The state of Utah-- acting 6 weeks before its deadline-- yesterday became the first to file a petition for certiorari with the U.S. Supreme Court in the growing number of decisions striking down state bans on same sex-marriage. The petition (full text) in Herbert v. Kitchen urges Supreme Court review of the 10th Circuit's 2-1 decision (see prior posting), saying in part:

This case presents an immensely important question: whether the United States Constitution compels states to adopt a single marriage policy that every individual is allowed “to marry the person of their choice.”... The Tenth Circuit said yes and struck down Utah’s definition—statutorily enacted and adopted into the Utah Constitution by two-thirds of voters in a statewide referendum—that marriage is only between a man and a woman. That ruling deprives Utah citizens of the “fundamental right” to “act through a lawful electoral process,” ... and ignores that the Constitution says nothing about how states must define marriage.

Salt Lake Tribune reports on the filing, and SCOTUS Blog has more background.

Trial Court Invalidates Florida's Ban On Recognizing Same-Sex Civil Unions

Tampa Bay Times reports that in a ruling on Monday, a Broward County, Florida trial court judge invalidated the 2008 amendment to the Florida Constitution that prohibits recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." The ruling comes in a case in which plaintiff  Heather Brassner asked the Florida court to dissolve her same-sex Vermont civil union. The court concluded that it could not do so without first ruling on the constitutionality of Florida's same-sex marriage ban. After ruling, the court immediately stayed the order, pending appeal. This is the third Florida trial court ruling since July invalidating Florida's same-sex marriage ban. (See prior posting.) Yesterday's opinion in Brassner v. Lade does not appear to be available online yet, but here is the full text of plaintiff's motion for a declaratory judgment and injunctive relief.

Second Florida Trial Court Invalidates State's Same-Sex Marriage Ban; Stays Order

In Pareto v. Ruvin, (FL Cir. Ct., July 25, 2014), a Florida state trial court in Miami-Dade County held that Florida's ban on same-sex marriage violates the 14th Amendment's due process and equal protection clauses.  While ordering the Miami-Dade County clerk of courts to modify its marriage license forms to encompass same-sex marriages, the court stayed its order pending expected appeals. The court excluded from its order the provision of Florida law barring recognition of same-sex marriages performed in other jurisdictions, presumably because none of the plaintiffs before the court had been married elsewhere. Earlier this month, a Monroe County Florida trial court also struck down Florida's ban on same-sex marriage. (See prior posting.) AP reports on the Miami-Dade County decision.

Colorado Same-Sex Marriage Laws Invalidated With Only Limited Stay

A Colorado federal district court yesterday issued a preliminary injunction enjoining enforcement of Colorado's state constitutional and statutory provisions that deny same-sex couples the right to marry in Colorado and deny recognition of same-sex marriages performed elsewhere.  In Burns v. Hickenlooper, (D CO, July 23, 2014), the defendants (the governor, the attorney general and a county clerk) did not oppose entry of the injunction since the 10th Circuit in a case from Utah had already held same-sex marriage bans unconstitutional. (See prior posting,) Subsequently the 10th Circuit also invalidated Oklahoma's ban on same-sex marriages. (See prior posting.) Much of yesterday's opinion focused on the question of whether the court should stay its order while the Utah case moves forward on appeal.  The court refused, but instead merely granted a one-month stay in order for defendants to seek relief from the 10th Circuit.  In refusing a broader stay, the court the rejected the argument that U.S Supreme Court action summarily granting stays in other same-sex marriage litigation requires a similar stay here:

Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

Scotus Blog and AP report on the decision.  According to the Denver Post, Colorado attorney general John Suthers filed an appeal with the 10th Circuit an hour after the district court decision was handed down.

10th Circuit Wades Through Procedural Morass In Invalidating Part of Oklahoma's Same-Sex Marriage Provisions

The 10th Circuit last week, in a case generating 84 pages of opinions that focus extensively on procedural issues, struck down Oklahoma's ban on same-sex marriage, but dismissed for lack of standing the state's refusal to recognize same-sex marriages performed elsewhere.  The unusual posture of the case stemmed from the fact that the 10th Circuit had already struck down as violative of the 14th Amendment Utah's bans on same-sex sex marriage and Utah's ban on recognizing such marriages performed in other jurisdictions (see prior posting). So in Bishop v. Smith, (10th Cir., July 18, 2014), the question was whether anything distinguished the challenge to Oklahoma's laws from the already decided challenge to Utah's.

In a portion of the opinion that all 3 judges agreed to, the court held that the couple challenging Oklahoma's non-recognition provisions lacked standing because the only defendant in the case, the Clerk of Court for Tulsa County, has nothing to do with recognizing or not recognizing a marriage performed elsewhere. The majority, however, held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional, as was Utah's similar ban. The majority's conclusion was not undermined by the fact that plaintiffs had challenged only Oklahoma's constitutional ban on same-sex marriage, and not the parallel statutory ban as well. The majority stayed their mandate pending disposition of any petition for certiorari that is filed with the Supreme Court.

Judge Holmes wrote a 27 page concurring opinion explaining why the district court had been correct in not relying on the "animus" theory in striking down Oklahoma's ban on marriage equality. Judge Kelley dissented in part, arguing that the couple challenging the ban on in-state same-sex marriages also lacked standing because they challenged only the state constitutional ban and not the parallel statutory prohibition.  Judge Kelley also disagreed on the merits, contending that "Same-gender marriage is a public policy choice for the states, and should not be
driven by a uniform, judge-made fundamental rights analysis." Scotus Blog reports on the decision.

Meanwhile, the U.S. Supreme Court last week issued an order (full text) in Herbert v. Evans, staying pending appeal to the 10th Circuit the district court's preliminary injunction requiring Utah to recognize same-sex marriages performed during the gap period before a district court's order was stayed. (See prior posting.) Here is the petition to Justice Sotomayor requesting the stay.

State Trial Court Voids Florida's Ban On Same-Sex Marriages; Appeal Stays Decision

In Huntsman v. Heavlin,(FL Cir. Ct., July 17, 2014), a Florida state trial court judge enjoined the clerk of Monroe County, Florida from enforcing the state's ban on same-sex marriages. Finding that the ban violate's the 14th Amendment's due process and equal protection clauses, the court ordered the county clerk to issue marriage licenses to plaintiffs and other similarly-situated same-sex couples. According to the Washington Blade, the judge's order is automatically stayed because the Florida Attorney General quickly filed a notice of appeal.

Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision

As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts.  The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal.  The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited  the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.

Another Challenge To Idaho's Same-Sex Marriage Laws-- Now By Lesbian Veteran Over Burial Rights

A federal court challenge to Idaho's refusal to recognize same-sex marriages performed elsewhere was filed yesterday by a 74-year old Navy veteran who wants to be cremated and have her ashes interred together with those of her already-deceased same-sex spouse. Plaintiff Madelynn Lee Taylor brought her spouse's ashes with her back to Idaho where the couple had lived together. The complaint (full text) in Taylor v. Brasuell, (D ID, filed 7/7/2014), alleges that the sole reason the Idaho State Veterans Cemetery refused her request to make these advance arrangements is Idaho's laws prohibiting recognition of Taylor's 2008 California marriage to her long-time partner. NCLR issued a press release and AP reports on the case. In an unrelated case in May, a magistrate judge in the same federal district court struck down Idaho's laws barring same-sex marriage. (See prior posting.) However subsequently the 9th Circuit in Latta v. Otter (May 20, 2014), granted a stay of the decision while it is on appeal.

Belfast Bakery Faces Suit Over Refusal To Decorate Cake In Support of Gay Marriage

Mail Online reported yesterday on the latest clash in Britain between Christian business owners and gay rights proponents. Activist Gareth Lee ordered a cake from Christian-run Ashers Baking Company in Belfast.  He wanted the cake decorated with the name of his organization, QueerSpace, two Sesame Street characters and the words "Support Gay Marriage."  A bakery staff member accepted the order, but the owners and manager of the family-run company called Lee, offering a refund and refusing to produce the cake on religious grounds. Lee complained to Northern Ireland's Equality Commission which wrote the bakery saying that the refusal violates the public accommodation non-discrimination provisions (Regulation Five) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  The Commission said it would file suit within 7 days of the letter.

County Clerk Asking Supreme Court To Stay Decision Allowing Same-Sex Marriage In Pennsylvania

The Schuylkill County, Pennsylvania clerk of courts continues her efforts to intervene in order to appeal a federal district court's invalidation of Pennsylvania's ban on same-sex marriage.  Last week, the 3rd Circuit in Whitewood v. Secretary Pennsylvania Department of Health, (3d Cir., July 3, 2014) issued a summary order affirming the district court's refusal to permit her to intervene. Remaining unhappy with the Governor's decision not to appeal the underlying decision permitting same-sex marriage, county clerk Theresa Santai-Gaffney is now asking the U.S. Supreme Court to stay pending appeal the district court's order striking down the state's laws banning same-sex marriage.  In a petition filed Friday with Justice Alito (full text), she argues that when the Supreme Court granted a stay pending appeal to the state of Utah in a similar case, it signaled all lower federal courts that they should do the same. SCOTUS Blog reports more details.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

7th Circuit Stays District Court's Invalidation of Indiana's Same-Sex Marriage Ban

In Baskin v. Bogan, (7th Cir., June 27, 2014), the U.S. 7th Circuit Court of Appeals issued a stay pending appeal of a federal district court' decision striking down Indiana's laws barring same-sex marriage. (See prior posting.) Fox59 reports on the appellate court's action and reactions to it.

Indiana's Same-Sex Marriage Ban Invalidated; Motion for Stay, Appeal Filed As Some Counties Issue Licenses

In Baskin v. Bogan, (SD IN, June 25, 2014), an Indiana federal district court held that Indian's ban on same-sex marriage, and on recognizing same-sex marriages from other jurisdictions, is unconstitutional. The court found that the ban infringes the fundamental right to marry protected by the due process clause, and discriminates on the basis of sexual orientation in violation of the equal protection clause, adding:

The court has never witnessed a phenomenon throughout the federal court system as is presented with this issue. In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples, such as Plaintiffs, and refer to it simply as marriage-- not as same-sex marriage.  These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.

The Indianapolis Star reports that county clerks in several counties began issuing licenses for same-sex marriages yesterday. As reported by WTHR, Indiana's Attorney General quickly filed an emergency motion for a stay pending appeal (full text) and a notice of appeal to the 7th Circuit (full text). Two county clerks' offices also filed notices of appeal. Meanwhile the Attorney General contacted all counties stating that while only the five county clerks named in the lawsuits are required to comply with the court's order, everyone should "show respect for the judge and the orders that are issued."

10th Circuit Says Utah's Same-Sex Marriage Ban Is Unconstitutional

In Kitchen v. Herbert, (10th Cir., June 25, 2014), the U.S. 10th Circuit Court of Appeals in a 2-1 decision struck down Utah's ban on same-sex marriage, but stayed its mandate pending disposition of any appeal. The majority summarized its 66-page opinion:

We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.

Among the justifications rejected by the court was Utah's argument that allowing same-sex marriage "would create the potential for religious-related strife."  Judge Kelly dissenting in part argued that there is no fundamental right to same-gender marriage.

The Salt Lake Tribune reports on the decision. In a statement released yesterday, the Utah attorney general's office says it will file a petition for certiorari seeking Supreme Court review.

Pennsylvania Federal Court Denies Intervention To Appeal Same-Sex Marriage Case

As previously reported, in May a Pennsylvania federal district court held Pennsylvania's laws banning same-sex marriage to be unconstitutional, and Pennsylvania Governor Tom Corbett announced that the state will not appeal the decision.  Some two weeks later, Theresa Santai-Gaffney, clerk of courts in Schuylkill County moved to intervene in order to appeal the court's decision to the 3rd Circuit.  In Whitewood v. Wolf, (MD PA, June 18, 2014), the federal district court rejected the motion to intervene.  The court held that Santai-Gafney has not met the criteria for either intervention as of right or permissive intervention.  The court said:

At bottom, we have before us a contrived legal argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do.

AP reports on the decision.