Showing posts sorted by date for query same-sex marriage. Sort by relevance Show all posts
Showing posts sorted by date for query same-sex marriage. Sort by relevance Show all posts

Thursday, August 07, 2014

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:


Detroit Free Press and MLive reported on the oral arguments.

Wednesday, August 06, 2014

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.

Tuesday, August 05, 2014

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.

Tuesday, July 29, 2014

4th Circuit Invalidates Virginia's Same-Sex Marriage Ban

Continuing an unbroken string of victories for marriage equality proponents, the U.S. 4th Circuit Court of Appeals yesterday, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. This is the second federal appeals court to rule on same-sex marriage bans.  In Bostic v. Schaefer, (4th Cir., July 28, 2014), the majority held:
the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. 
The court added:
We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
As reported by the New York Times, the appeal to the 4th Circuit was carried forward by two court clerks after Virginia's attorney general refused to appeal the district court's decision striking down Virginia's bans. They are expected to seek a stay of the court's decision pending an en banc appeal or a petition for certiorari to the Supreme Court.

Monday, July 28, 2014

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.

Thursday, July 24, 2014

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.

Tuesday, July 22, 2014

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.

Friday, July 18, 2014

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.

Suit Against Catholic Diocese By Fired Lesbian Food Bank Manager Alleges Fraud

Kansas City Star reported yesterday on a lawsuit filed by a Kansas City (MO) woman who says she was fired from her position as a pastoral associate managing a food bank for St. Francis Xavier Catholic parish after her same-sex marital relationship was mentioned in a newspaper article.  Plaintiff Colleen Simon says that priests at the parish knew of her marriage to Rev. Donna Simon, a Lutheran minister, and had no problem with it. However it is alleged that when the relationship was publicly mentioned in an article about an area of Kansas City, Bishop Robert Finn ordered her fired.  The state court lawsuit against the Diocese and Finn claims that the diocese fraudulently encouraged her to take the food bank position knowing that it had no intention of keeping its commitments to her.

Monday, July 14, 2014

Recent Articles of Interest

From SSRN:
From SSRN (Islamic Law):
From SmartCILP:
  • Mark Goldfeder, The Story of Jewish Polygamy, [Abstract], 26 Columbia Journal of Gender & Law 234-315 (2014).
  • Peter T. Leeson, "God Damn": The Law and Economics of Monastic Malediction, 30 Journal of Law, Economics & Organization 193-216 (2014).
  • Marin Lim, The Sanity of Faith: What Religious Fundamentalism Teaches About the Insanity Defense and the First Amendment, [Abstract], 17 New Criminal Law Review 252-311 (2014).

Friday, July 11, 2014

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.

Tuesday, July 08, 2014

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.

Monday, July 07, 2014

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.

Wednesday, July 02, 2014

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.]

Monday, June 30, 2014

Recent Articles of Interest

From SSRN:
From SmartCILP:

Saturday, June 28, 2014

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.

Thursday, June 26, 2014

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.

9th Circuit Denies En Banc Review On Strict Scrutiny For Sexual Orientation Classifications

Earlier this week, the U.S. 9th Circuit Court of Appeals refused to grant en banc review to an earlier decision by a 3-judge panel that concluded heightened scrutiny must be applied to equal protection claims based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Laboratories(9th Cir., June 24, 2014), the court reported that the call for en banc review did not receive a majority vote.  However Judge O'Scannlain, joined by Judges Bybee and Bee, filed a dissent to the refusal to review, saying in part:
This case ... came to our court in the posture of an appeal from a simple juror selection ruling during trial. Sadly, it has morphed into a constitutional essay about equal protection and sexual orientation.... The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.
Indeed, today’s opinion is the only appellate decision since United States v. Windsor ... to hold that lower courts are “required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” ... Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.
SCOTUS Blog has more on the decision.

Friday, June 20, 2014

Break-Away Presbyterian Congregation Sues To Retain Property Ownership

The Milwaukee Journal-Sentinel reported yesterday that the Sheboygan County, Wisconsin First Church of Oostburg has filed a state court lawsuit against the Presbyterian Church USA in a bid to retain ownership of congregational property in the wake of its vote last week to disaffiliate from the Presbyterian Church USA and join the more conservative Covenant Order of Evangelical Presbyterians. The Church of Oostburg's vote to disaffiliate came just days ahead of the decision at the Presbyterian General Assembly to allow clergy to officiate at same-sex marriage ceremonies and to redefine marriage as a covenant between "two people".  The Presbyterian Church wants the Oostburg congregation to pay $500,000 in order to keep the property.