Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Pastor Brings Unusual Anti-Gay Marriage Protest To Courthouse

In Jackson, Mississippi on Friday, a Baptist pastor brought an unusual protest against the legalization of same-sex marriage to the federal courthouse. Christian Post reports that Reverend Edward James of Bertha Chapel Missionary Baptist Church brought a horse clothed in a wedding dress, with white flowers in its harness, to the courthouse, along with a protest sign reading in part: "Do you take this horse to be your unnatural wedded spouse.... This might even be possible if the ban on same-sex marriage is lifted...."  James hopes to change the mind of the federal district judge who struck down Mississipi's same-sex marriage ban last month.  The court's order has been stayed pending appeal. (See  prior posting.)

Recent Articles of Interest

From SSRN:

• Helen A. Alvare, Same-Sex Marriage and the 'Reconceiving' of Children, (Case Western Reserve Law Review, Vol. 64, No. 3, pp. 829-862, 2014).
• Odetayo Samson, A Critical Assessment of the Validity and Recognition of Same Sex Marriage Under the Nigerian Legal System, (October 16, 2014).
• Ankita Bharadwaj, Adultery- Judicial Interpretation and the Law Under Various Personal Laws in India, (November 22, 2014).
• Valentino Cattelan, Property (Mal) and Credit Relations in Islamic Law: An Explanation of Dayn and the Function of Legal Personality (Dhimma), (Arab Law Quarterly, Forthcoming).
• Christine A. Corcos, The Scrying Game: The First Amendment, State Regulation of the Crafty Sciences, and the Rise of Spiritualism, 1848-1944, (January 16, 2013).
• Ioanna Tourkochoriti, The New Regulation Against Hate Speech in Greece: Strengths and Weaknesses, (Council for European Studies, Reviews & Critical Commentary (CritCom) Columbia University, Forthcoming).
• George K. Yin, The IRS's Misuse of Scarce Compliance Resources in the Exempt Organization Area, (December 5, 2014).

From SmartCILP:

• Hossein Mir Mohammad Sadeghi, Filling the Gap In Favor of the Accused: The Approach of Islamic Criminal Law In Light of the Rule No Punishment In Case Of Doubt, [Abstract], 29 Tulane European & Civil Law Forum 147-156 (2014).

Marriage Equality Decision Stayed In Mississippi, But Not In Florida

In Campaign for Southern Equality v. Bryant, (5th Cir., Dec. 4, 2014), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a district court injunction invalidating Mississippi's ban on same-sex marriage. (See prior posting.) In granting the stay, the court said:

It is not our task today to resolve the merits of this conflict in deciding the instant motion, however, we are convinced by the opinions of our sister circuits that “a detailed and in depth examination of this serious legal issue” is warranted before a disruption of a long standing status quo.

Meanwhile in Brenner v. Armstrong, (11th Cir., Dec. 3, 2014), the U.S. 11th Circuit Court of Appeals refused to extend beyond January 5 a previous stay of a federal district court decision handed down last August invalidating Florida's ban on same-sex marriage.  As reported by SCOTUS blog, the situation in Florida, however, is confused because of several state court rulings that have been stayed pending state court appeals.

Fired Gay Church Music Director Files Discrimination Complaints

Yesterday's Chicago Tribune reports that Colin Collette, who had been employed for 17 years as a  music director at Holy Family Catholic Community in Inverness, Illinois, has filed discrimination complaints with the federal EEOC and the Cook County Human Rights Commission. Collette was fired in July after he announced that-- now that same-sex marriage is legal in Illinois-- he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook.  His complaints, naming a priest and a parish manager as respondents, allege discrimination on the basis of sex, sexual orientation and marital status.

Arkansas, Mississippi Same-Sex Marriage Bans Invalidated

Yesterday federal district courts in two more states-- Arkansas and Mississippi-- struck down state bans on same-sex marriage.  In each case, the ruling was stayed to permit an appeal.

In Austin v. Crane, (ED AR, Nov. 25, 2014), an Arkansas federal district court held that Arkansas' state constitutional and statutory restrictions on same-sex marriage "deny consenting adult same-sex couples their fundamental right to marry," and impose unconstitutional gender classifications. Issuance of an injunction was stayed to permit a timely appeal to the 8th Circuit. AP reports on developments.

In a separate case, last May an Arkansas state trial court struck down Arkansas' same-sex marriage ban (see prior posting), and that case is currently on appeal.  In yesterday's decision, the federal court rejected arguments that it should therefore abstain.

In Campaign for Southern Equality v. Bryant, (SD MS, Nov. 25, 2014), a Mississippi federal district court held that:

Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The court issued a preliminary injunction, but stayed it for 14 days to permit an appeal to the 5th Circuit. The Clarion-Ledger reports.

Montana's Same-Sex Marriage Bans Falls; Becomes 34th State To Recognize Marriage Equality

On Wednesday, a Montana federal district court issued a permanent injunction barring Montana from enforcing statutory and constitutional provisions that prevent same-sex marriages or recognition of same-sex marriages performed in other jurisdictions.  The opinion in Rolando v. Fox, (D MT, Nov. 19, 2014), granting plaintiffs' motion for summary judgement on their equal protection claim, relies heavily on the 9th Circuit's decision last month striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) The Montana federal court's injunction, made effective immediately, makes Montana the 34th state to permit same-sex marriage.

AP reported today that in the Yellowstone County clerk's office in Billings, one deputy clerk has expressed religious objections, and three others have moral objections, to issuing same-sex marriage licenses. The County Human Relations Director, after consulting with the county attorney, has exempted the four, in part citing Title VII of the 1964 Civil Rights Act barring religious discrimination in employment.  Yellowstone County Clerk Kristie Lee Boelter is unhappy with the exemptions.  There are a total of 20 deputy clerks in the office.

Supreme Court Developments On Same-Sex Marriage

Yesterday the U.S. Supreme Court issued an Order (full text) in Wilson v. Condon denying a stay of a South Carolina federal district court's decision striking down South Carolina's ban on same-sex marriage. (See prior posting.) Justices Scalia and Thomas dissented from the denial of the stay. SCOTUSblog reports on developments.

Meanwhile, the state of Louisiana filed a petition for certiorari (full text) in Robicheaux v. George, seeking to bypass the 5th Circuit Court of Appeals and obtain Supreme Court review of a Louisiana federal district court decision that upheld Louisiana's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports.

New Lawsuit Challenges Nebraska's Ban On Same-Sex Marriage

A lawsuit was filed yesterday in federal district court in Nebraska by 7 couples challenging the constitutionality of Art. I, Sec. 29 of Nebraska's state constitution.  The provision prohibits same-sex couples from marrying and bars recognition of the marriages of same-sex couples performed in other jurisdictions. The complaint (full text) in Waters v. Heineman, (D NE, filed 11/17/2014) contends that the provision violates the due process and equal protection clauses of the 14th Amendment. ACLU announced the filing of the lawsuit. Sioux City Journal has additional background. In 2006, in Citizens for Equal Protection v. Bruning, the 8th Circuit upheld the Nebraska ban.

Cert. Petitions Begin To Be Filed In 6th Circuit Same-Sex Marriage Cases

Plaintiffs who lost in the 6th Circuit last week in their challenges to same-sex marriage restrictions in four states (see prior posting) are seeking Supreme Court review rather than an en banc rehearing by the full 6th Circuit. Petitions for certiorari were filed on Friday in:

• Henry v. Hodges (Ohio) (full text of petition)
• Tanco v. Haslem (Tennessee) (full text of petition)

Detroit Free Press says a petition is expected Monday in DeBoer v. Snyder  (Michigan). A petition will also be filed in the near future in Love v. Beshear (Kentucky). (HRC Blog).

District Court Strikes Down South Carolina Same-Sex Marriage Ban; 8-Day Stay Granted

In Condon v. Haley, (D SC, Nov. 12, 2014), a South Carolina federal district court struck down South Carolina's ban on same-sex marriage. The court held that the 4th Circuit's decision in Bostic v. Schaefer striking down a similar ban in Virginia is controlling. However the court granted a stay until Nov. 20 to allow the state to seek a stay pending appeal from the 4th Circuit. The State reports that South Carolina Attorney General Alan Wilson says he will appeal to the 4th Circuit.

Supreme Court Lifts Stay On Same-Sex Marriages In Kansas

The U.S. Supreme Court issued an order (full text) late afternoon today vacating the temporary stay initially granted by Justice Sotomayor in Moser v. Marie.  Justices Thomas and Scalia dissented indicating they would grant the stay.  The Court's action gives effect to a preliminary injunction against Kansas' same-sex marriage ban that was issued by a federal district court last week. (See prior posting.) Washington Post reports on the Supreme Court's action. [Thanks to Tom Rutledge for the lead.]

Kansas Same-Sex Marriage Ruling Generates Flurry of Appeals

The issuance by a Kansas federal district court on Nov. 5 in Marie v. Moser of a preliminary injunction against Kansas' ban on same-sex marriages has generated a flurry of appeals. That preliminary injunction was to take effect today. (See prior posting.)

On Nov. 6, Kansas filed an emergency motion with the 10th Circuit to stay the district court's injunction to give Kansas time to seek an initial appeal to the 10th Circuit en banc.  Three-judge panels of the 10th Circuit have already ruled against same-sex marriage bans in Utah and Oklahoma. (Kansas AG's statement.)  On Nov. 7, the 10th Circuit denied the motion for a stay. Yesterday, Kansas filed a stay application (full text) with U.S. Supreme Court Justice Sonia Sotomayor, and Justice Sotomayor issued an order (full text) staying the preliminary injunction until today and ordering plaintiffs to file a response by this afternoon.

Meanwhile, in a Nov. 7 opinion (full text), the district court denied the motion by Westboro Baptist Church to intervene in the appeal so that it can raise religiously-based arguments against same-sex marriage. (See prior posting.) WBC immediately filed a Notice of Appeal with the 10th Circuit. Yesterday's Topeka Capital-Journal reports on developments.

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Federal District Court Issues Preliminary Injunction Against Kansas Same-Sex Marriage Ban

In Marie v. Moser, (D KS, Nov. 4, 2014), a Kansas federal district court issued a preliminary injunction barring Kansas officials from enforcing any law that prohibits the issuance of marriage licenses to same-sex couples. However, because of lack of standing, the injunction does not extend to Kansas provisions that prohibit the recognition of same-sex marriages performed elsewhere. The court stayed its injunction until Nov. 11 to give defendants time to appeal to the 10th Circuit. The 10th Circuit has already struck down same-sex marriage bans in Utah and Oklahoma. The Topeka Capital-Journal reports on the decision.

Westboro Baptist Church Seeks To Intervene In Kansas Same-Sex Marriage Case

As reported by the Washington Blade, yesterday the virulently anti-gay Kansas-based Westboro Baptist Church filed a motion (full text) to intervene as a defendant in Marie v. Moser, a Kansas federal court lawsuit challenging Kansas' ban on same-sex marriages. In its 26-page motion filled with religious references and quotations, the church argues:

WBC desires to assert that it is constitutional folly to suggest that a sinful-behavior-based union should be a union that is afforded civil rights and granted the imprimatur of respectability by a license from the government; and that in doing so the government violates its duty of religious neutrality; and puts itself in the position of imposing sin on the citizens, to the great detriment and harm of the health and welfare of the citizenry....

The Kansas Attorney General is unable to adequately represent WBC because to do so would cause the Attorney General to assert religious viewpoints and constitutionally protected religious rights, which is arguably contrary to the duty of the government to remain neutral on matters of religion, and would constitute a breach of the separation of church and state doctrine.

Feds Will Recognize Same-Sex Marriages From 6 More States

In an announcement published yesterday, the Department of Justice said that the federal government in administering a range of federal benefits will now recognize same-sex married couples in six new states: Alaska, Arizona, Idaho, North Carolina, West Virginia, and Wyoming.  This follows the Supreme Court's refusal to hear appeals in any pending cases involving same-sex marriage.  The action brings federal recognition of same-sex marriages to 32 states and the District of Columbia. The Attorney General has also determined that the federal government will recognize same-sex marriages performed in June in Indiana and Wisconsin. The legal posture of challenges created questions about the validity of those marriages which were performed quickly after district court decisions.

Puerto Rico Court Upholds Ban On Same-Sex Marriage

In one of the few recent victories for opponents of same-sex marriage, the federal district court for the district of Puerto Rico yesterday dismissed a challenge to the Puerto Rico law that recognizes only opposite-gender marriage.  In Conde-Vidal v. Garcia-Padilla, (D PR, Oct. 21, 2014), the court held that the Supreme Court's 1972 summary dismissal for want of  a substantial federal question in Baker v. Nelson is binding precedent. (Background.)  Baker involved an appeal of a Minnesota case that found no constitutional protection for same-sex marriage.  Reporting on the Puerto Rico decision, the Washington Post points out that the decision "puts the First Circuit back in play in the national litigation, although every state in the circuit already recognizes same-sex marriage." [Thanks to How Appealing for the lead.]

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.)