U.S. and Utah Clarify Status of Same Sex Marriages That Were Performed In Utah Before Supreme Court Stay

U.S. Attorney General Eric Holder today issued a statement (full text) confirming that the federal government will recognize the same-sex marriages performed in Utah in the two weeks before the U.S. Supreme Court issued a stay stopping them while an appeal to the 10th Circuit is pending. Describing the Supreme Court's action as "an administrative step," Holder said in part:

for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.

Meanwhile yesterday Utah's Attorney General distributed a letter (full text) to all County Attorneys and County Clerks in the state advising that they should send marriage certificates to same-sex couples whose marriage ceremonies took place between Dec. 20 and Jan. 6. The letter advises in part:

Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.

While the validity of the marriages in question must ultimately be decided by the legal appeals process ..., the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law.  Therefore, it is recommended that county clerks provide marriage certificates to all persons whose marriages were solemnized during this period as an administrative function and not a legal function. This would allow ... couples ... to have proper documentation in states that recognize same-sex marriage.

Federal District Court Orders Alabama County To Resume Issuing Marriage Licenses

In Alabama, marriage equality litigants have finally found the procedural key to obtaining an injunction to require Mobile County Probate Judge Don Davis to open the marriage license division and issue marriage licenses to same-sex couples.  On Feb. 10, plaintiffs amended their complaint in their case challenging Alabama's same-sex marriage laws to name Judge Davis as a defendant. Two days later in Strawser v. Strange, (SD AL, Feb. 12, 2015)-- the case that had already led to an injunction against the attorney general-- the court issued a preliminary injunction barring Judge Davis, and "all his officers, agents, servants and employees, and others in active concert or participation with any of them" from refusing to issue marriage licenses to same-sex couples.

Meanwhile yesterday morning (before the district court issued its injunction against Judge Davis), Alabama Supreme Court Chief Justice Roy Moore gave a lengthy interview (full transcript) to CNN anchor Chris Cuomo, reiterating his view that Alabama courts are not bound by the district court decisions recognizing same-sex marriage.

New Jersey Panel Recommends Permitting Same-Sex Marriage

The New Jersey Civil Union Review Commission yesterday submitted its final report titled The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law. The report recommends that the state legislature and Governor "expeditiously" change the law to permit same-sex couples to marry. A portion of the 79-page report discusses testimony in opposition to same-sex marriage. It states in part:

Some witnesses opposed to same-sex marriage testified concerning their understanding of the meaning and authority of Biblical scripture.... While the Commission also heard considerable testimony to the contrary, it is not the role of this Commission to comment on the merits of religious tenets or faiths of any of the witnesses who testified. This Commission recommends that the civil institution of marriage be extended to same-sex couples.

The Review Commission's website links to extensive background material, including transcripts of Commission hearings. An AP story discusses the Commission's report.

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.

Maryland Legislature Passes Same-Sex Marriage Bill; Governor Will Sign It

WBAL-TV reports that the Maryland legislature yesterday gave final passage to House Bill 438, the Civil Marriage Protection Act, which legalizes same-sex marriage in Maryland. A statement issued by the Governor immediately after the bill's passage made clear that he will sign the bill. The state Senate passed the bill yesterday by a vote of 25-22, following passage last week in the House of Delegates by a vote of 72-67. When effective, this will make Maryland the 8th state to recognize same-sex marriage.

The bill provides that clergy may not be required to perform marriage ceremonies that violate their free exercise rights. It also provides a religious organization, or any nonprofit institution supervised or controlled by a religion organization, "may not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual ... related to:  (1) the solemnization of a marriage or celebration of a marriage that is in violation of the entity’s religious beliefs; or (2) the promotion of marriage through any social or religious programs or services, in violation of the entity’s religious beliefs, unless State or federal funds are received for that specific program or service." The bill also contains a non-severability clause, calling for invalidation of the entire law if any part or application of it is found unconstitutional.

In the hard-fought debate in the legislature, opponents raised numerous issues, including a concern that the bill would threaten Mothers Day and Fathers Day.  Opponents promise to seek a referendum on the bill and placed language in it attempting to assure that it would not become effective until after a referendum on it.

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.

Court Dismisses Fanciful Suit Designed To Discredit Same-Sex Marriage

A Kentucky federal district court has dismissed a rather fanciful lawsuit filed by opponents of same-sex marriage designed to emphasize plaintiffs' belief that only traditional marriage should be recognized.  In Sevier v. Bevin, (ED KY, March 31, 2017), the court describes plaintiffs' claims:

They identify themselves as "machinist" and "zoophile", respectively, and, together, allege the Commonwealth violated the following constitutional rights by denying Sevier's request for a marriage license permitting him marry his laptop and Ording's request for a marriage license permitting her to many an animal: (1) the right to due process; (2) the right to equal protection; (3) the right to freedom of association; and ( 4) the right to travel. They also claim that the denial of their request for a marriage license is a violation of the Supremacy and Establishment Clauses of the United States Constitution, and also amounts to discrimination on the basis of race.

The court concluded that: "The Plaintiffs' Complaint or Amended Complaint fail to establish any plausible entitlement to relief. "  In a press release on the decision, Liberty Counsel's Mat Staver said: "To marry a laptop computer or a parrot is nonsense, but the same was said about same-sex marriage, and yet there are now five lawyers on the U.S Supreme Court who pulled that rabbit out of a hat."

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.

Proposed Nigerian Law Would Criminalize Clergy Performing Same-Sex Marriages

A press release yesterday from Amnesty International on behalf of several human rights groups expresses strong opposition to proposed legislation in Nigeria that would impose criminal penalties-- up to 3 years in prison-- on same-sex couples who marry. Existing Nigerian law already imposes up to 14 years in prison for consensual same-sex sexual activity. The proposed Same Gender Marriage (Prohibition) Bill 2008 would also impose a fine of US$14 and up to five years in prison on any person who "witnesses, abet and aids the solemnization of a same gender marriage." This would threaten with criminal sanctions a member of the clergy who conducts a same-sex marriage ceremony in Nigeria. Amnesty says this violates the International Covenant on Civil and Political Rights which Nigeria has signed. The bill would additionally impose a fine of up to US$340 on anyone who witnesses or aids and abets a same-sex marriage. This provision is apparently aimed at LGBT organizations and events.

South Africa's National Assembly Approves Gay Marriage Over Religious Objections

South Africa's National Assembly today approved by a vote of 230-41 (with 3 abstentions) a controversial Civil Unions Bill that would make the country the first in Africa to approve same-sex marriage. The bill permits marriage officials to refuse to perform a same-sex marriage ceremony on religious or personal grounds. (Voice of America).

African Christian Democratic Party leader Kenneth Meshoe condemned the action in religious terms. The Mail & Guardian reports that he called the passage of the bill the saddest day in Parliament's history. He said that God considered homosexuality "an abomination". He warned that voting in favor of same-sex marriage was a rejection of God's laws, and said that MPs who did so would face divine wrath. The National Council of Provinces also needs to approve the Bill for it to become effective. Last year, South Africa's Constitutional Court ruled that the 1996 Constitution's prohibition on sexual orientation discrimination guarantees the right of gay men and lesbians to marry. The court gave the government until December 1 to extend marital rights to all same-sex couples.

Church Sues Over Misrepresentation of Its Views On Same-Sex Marriage

A Hudsonville, Michigan church this week filed a false-light invasion of privacy lawsuit in Michigan state court against a gay rights activist whom it accuses of falsely representing that the church supports same-sex marriage. The complaint (full text) in Jenison Bible Church, Inc. v. VanderLey, (MI Cir. Ct., filed 5/3/2016), contends that when Bradlee Dean, a controversial Christian speaker opposed to same-sex marriage, was scheduled speak in the area, defendant Daniel VanderLey arranged a demonstration against him and sought to have local churches join it.  VanderLey sent demand letters to local churches, including Jenison Bible Church, telling them that unless they affirmatively opted out, VanderLey would arrange to have a sign saying that the church "stands for love not hate" displayed at the anti-Bradlee Dean rally.  The complaint contends that this public distortion of Jenison Bible Church's views on same-sex marriage and sexual immorality negatively impacts its ability to share the Gospel and damages its reputation in the eyes of other churches, it neighbors, and those potentially interested in joining the church. The suit seeks an injunction, a published retraction and a public apology. [Thanks to Brian D Wassom for the lead.]

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

Court Orders Pennsylvania County Clerk To Stop Issuing Same-Sex Marriage Licenses

In Commonwealth of Pennsylvania, Department of Health v. Hanes, (Comnw. Ct., Sept. 12, 2013) a Pennsylvania Commonwealth Court judge granted a writ of mandamus ordering Montgomery County court clerk D. Bruce Hanes to comply with all the provisions of Pennsylvania's Marriage Law.  The order stops Hanes from issuing marriage licenses to and accepting marriage certificates from same-sex couples. Hanes began to issue licenses to same-sex couples in July after the U.S. Supreme Court's Windsor decision. (See prior posting.) In ordering Hanes to comply with the state's ban on same-sex marriage, the court said:

Because only the General Assembly may suspend its own statutes and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.”... Based on the foregoing, it is clear that Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition.

The Pittsburgh Post-Gazette reports on the decision.

Transcripts and Audio of Today's Same-Sex Marriage Arguments In Supreme Court Are Now Available

The Supreme Court this morning heard oral arguments in four same-sex marriage cases. It first heard 90 minutes of argument on the question "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?" Here is the full transcript and the audio recording of arguments on that question.  The Court then heard 60 minutes of arguments on the question "Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?" Here is the full transcript and the audio recording of arguments on that question.  A New York Times report on the oral arguments is titled "Gay Marriage Arguments Divide Supreme Court Justices."

UPDATE: Lyle Denniston at SCOTUSBlog has an excellent analysis of the oral argument.

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 

The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Rhode Island Becomes 10th State To Legalize Same-Sex Marriage

AP reports that Rhode Island yesterday became the tenth state to legalize same-sex marriage as Gov. Lincoln Chafee signed the bill on the statehouse steps following its final passage by the House earlier in the day.  The new law (full text) includes provisions protecting the right of religious organizations and clergy to make their own decision regarding same-sex marriage:

[E]ach religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within its faith, and on what terms.... No court or ... governmental body ... shall compel, prevent, or interfere in any way with any religious institution's decisions about marriage eligibility within that particular faith's tradition....

[N]o regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination ... is required to solemnize any marriage....

[A] religions organization, association, or society... shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges ... if ... related to:  (1) The solemnization ... or the celebration of a marriage, and such solemnization or celebration is in violation of its religious beliefs and faith; or  (2) The promotion of marriage through any social or religious programs or services, which violates the religious doctrine or teachings of religious organization, association or society.

District Court Enters Final Order in Wedding Website Designer Case

As previously reported, last year the U.S. Supreme Court in 303 Creative LLC v. Elenis held that the 1st Amendment's free speech protection bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Now in the case on remand, 303 Creative LLC v. Elenis, (D CO, March 26, 2024), the Colorado federal district court entered a final Order in the case which provides in part:

ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from enforcing CADA’s Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:  

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.  

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.

It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:  

a. CADA’s Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and  

b. CADA’s Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients.

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

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

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

Same-Sex Marriages Move Ahead In Utah As State Continues Seeking Stay

The Salt Lake Tribune reported yesterday on the flurry of motions being filed by the state of Utah seeking to obtain a stay of the federal district court's decision handed down Friday (see prior posting) legalizing same-sex marriage in the state. On Friday morning, the district court denied a stay, and the state quickly filed its third motion with the 10th Circuit seeking a stay while it appeals the district court ruling.  The 10th Circuit had previously denied an emergency stay pending a decision by the district court on granting a stay, as well as denying an anticipatory request to stay the expected district court's refusal of a stay. (Full text of order.)  Meanwhile, according to yesterday's Deseret News, approximately 700 same-sex marriage licenses have been issued across the state since Friday.  Some county clerks, however, are still refusing to issue same-sex licenses, and a lawsuit has been filed by a same-sex couple against the Utah County clerk's office to force them to issue a license.  Cache County officials closed the Clerk's office completely, stopping issuing traditional marriage licenses as well.

UPDATE: The Salt Lake Tribune reports that around 6 p.m., Dec. 24, the 10th Circuit again denied the state's motion for a stay of the district court's order. A spokesman for the Utah attorney general's office said that any county clerks that continue to refuse to issue licences to same-sex couples risk being held in contempt of court. Here is the full text of the order denying a stay during appeal, and which also directs expedited consideration of the appeal of the district court decision. ScotusBlog reports that Utah will file an appeal of the denial of a stay with the U.S. Supreme Court on Thursday.

District Court Invalidates Michigan Ban on Same-Sex Marriage; 6th Circuit Stays Order

In DeBoer v. Snyder, (ED MI, March 21, 2014), a Michigan federal district court held that Michigan's state constitutional ban on same-sex marriage violates the 14th Amendment's equal protection clause.  The case began as a constitutional challenge to Michigan's adoption laws which only allow single persons or married couples to adopt.  Plaintiffs were a same-sex couple who were precluded from marrying under Michigan law.  The court invited plaintiffs to amend their complaint to challenge the Michigan Marriage Amendment which the court saw as the underlying reason plaintiffs could not jointly adopt children. Plaintiffs did so, and the court held a two-week trial, largely devoted to expert testimony about whether children raised by heterosexual parents did better than those raised by same-sex couples. The court's opinion discusses the expert testimony at length, ultimately concluding that the state has no rational basis for preventing same-sex couples from marrying. ACLU of Michigan issued a press release announcing the decision.

Ten minutes after the district court's March 21 opinion was handed down, Michigan state attorney general Bill Schuette filed an emergency motion asking the 6th Circuit to stay the district court's order, pending appeal. (Detroit Free Press.) On March 22, the 6th Circuit issued an order directing plaintiffs to respond by March 25, and a second order temporarily staying the district court's judgment until March 26 "to allow a more reasoned consideration of the motion."

Meanwhile, clerk's offices in four Michigan counties opened Saturday morning to allow same-sex couples to obtain licenses, and, according to AP, over 300 licenses were issued before the 6th Circuit called a halt to their issuance by its stay.  The attorney general's office declined to say whether the state would recognize these marriages, saying "the courts will have to sort it out."