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SCOTUS declines to hear Ted Cruz birther lawsuit

Not that it really matters at this point.

Not Ted Cruz

Not Ted Cruz

The Supreme Court declined Tuesday to hear a lawsuit arguing that Texas Republican Sen. Ted Cruz is ineligible to be president because his Canadian birth means he is not a “natural born citizen.”

The justices upheld a lower court ruling from March that found Walter Wagner, a retired attorney in Utah, did not have standing to file a lawsuit over the issue. Wagner was one of several individuals nationwide who sued to challenge Cruz’s eligibility to run for president.

In the March ruling, U.S. District Judge Jill Parrish noted that other challenges were similarly dismissed. Parrish never ruled on the underlying question of whether Cruz was eligible to be president.

See here for the background. A similar suit filed in Texas was dismissed shortly after dismissal of the Utah suit was appealed to SCOTUS. We all know that Cruz isn’t going away, so I expect this issue to come up again in 2020 or whenever he tries to run for President again. As I’ve said before, while the question raised by these claims isn’t ridiculous, I believe the “natural-born citizen” requirement has long outlived any usefulness it once had, and should be tossed. Perhaps the courts can take that up next time, since the odds of the Constitution being amended are basically nil. In any event, there is now one fewer bits of effluvia floating around the campaign this year. Let us be thankful for that.

SCOTUS asked to rule on Cruz birther lawsuit

What fun.

Not Ted Cruz

Not Ted Cruz

A Utah man became the first to ask the U.S. Supreme Court to take up a “birther” lawsuit against Ted Cruz which challenges the White House hopeful’s eligibility for office.

The request by Utah attorney Walter Wagner, who is representing himself in a case thrown out by a trial judge, was placed on the high court’s docket in Washington this week. The justices probably won’t take up the appeal in order to signal that such cases shouldn’t be taken seriously, said Nate Persily, a professor at Stanford Law School.

Wagner sued in January, arguing Cruz’s birth on Canadian soil disqualifies him from the presidency because the U.S. Constitution requires the nation be led by a “natural born citizen.” Similar cases have been filed in states including Alabama, Florida, Illinois and New York, so far without success. Cruz’s request to dismiss a Texas case is set for a hearing next week.

“It is a case of national importance, ergo straight to the Supreme Court,” Wagner said in an e-mail. “We should not have a country where our president is illegal (ineligible), or skewing the results of the primaries/conventions.”

[…]

U.S. District Judge Jill Parrish in Salt Lake City tossed out Wagner’s case on March 18, ruling he lacked standing to file suit because he hadn’t been personally harmed by Cruz, the junior senator from Texas.

“Like the courts that have ruled on this question, this court holds that Mr. Wagner lacks standing to bring his claim,” Parrish said in her ruling.

“It is not enough for an individual to bring a lawsuit based on his status as a ’citizen’ or a ’taxpayer,’” Parrish said in her ruling. “The harms alleged by Mr. Wagner are conjectural and hypothetical at best.”

See here and here for the background. As I’ve said before, I don’t buy the argument that Cruz is ineligible, even if there is some merit to it and it’s a problem he’s richly earned. I can’t imagine the Supreme Court taking this unless they are forced to by a trial court accepting the plaintiff’s premise. But until they spoil the party, it sure is fun to watch.

When are we going to get a general election poll of Texas?

As goes Utah

According to a new Deseret News/KSL poll, if Donald Trump becomes the GOP nominee, the voters of Utah would opt for a Democratic candidate for the first time in over 50 years. Poll respondents said they would support either Hillary Clinton or Bernie Sanders over Trump, though Clinton was only two points ahead of Trump in the poll, falling within the margin of error (as opposed to the 11 points Sanders has over Trump). As many as 16 percent of respondents said they would skip the election altogether if Trump was the nominee. The survey also indicated that either John Kasich or Ted Cruz would defeat the Democratic candidate if they were nominated.

It’s only one poll, but that didn’t prevent it from shocking Chris Karpowitz, the co-director of Brigham Young University’s Center for the Study of Elections and Democracy. Said Karpowitz to the News, “I know it is early and these things can change. But the fact that a Donald Trump matchup with either Clinton or Sanders is a competitive race is a canary in a coal mine for Republicans.”

Let me lay down a million qualifiers here: Just one poll. Way, way early. Lots of undecideds – indeed, Clinton’s lead is 38-36, and you can guess what most of the others would do if all else where equal. The poll was conducted around the same time that Trump was trashing Mormons in general and Mitt Romney in particular, which strikes me as a damn fine way to alienate a lot of Utahans. So yeah, stock up on the salt for this one.

But it still makes one wonder, just what the Trump effect may be in various red states. Utah is one of the few places that can out-Republican Texas, after all. I’ll cop to being an eternal optimist, but according to RG Ratcliffe on Facebook, former Texas GOP Chair Steve Munisteri said on CNN that if Trump is the nominee, Texas could be carried by the Democrats. I’ll need to see a few poll results before I let myself get too irrationally exuberant, but let’s play with a few numbers and see what we can game out.

In 2008, some 3.5 million Texans voted for Barack Obama; in 2012, it was 3.3 million. In 2008, 4.4 million voted GOP, and in 2012 it was over 4.5 million. It’s my opinion that the GOP Presidential vote is close to maxed out, so let’s say 4.6 million as a starting point, with 3.5 million as a starting point for the Dems. Perhaps between the newly minted citizens and other efforts, perhaps boosted by Julian Castro on the ticket, Dems van boost themselves to 3.8 or 3.9 million. Let’s be conservative and say 3.8 million.

The big question then becomes, how many Republicans refuse to vote for Trump, and what do they do instead? Sit it out, vote Libertarian or a third party candidate (who will not be Rick Perry) if one can get certified for the ballot by May 9 (good luck with that), or *gag* vote for Hillary? Either of the first two reduces the R total, while the latter also increases the D number. If 400,000 Republicans – about nine percent of their total – skip the race or go third party, and another 200,000 go for Hillary, that gets us to a tie in my scenario. Millennial voters would apparently be likely to flip from R to D if the R is Trump.

How unlikely is my red-to-blue scenario? Probably pretty unlikely. But not impossible! When we finally get some November polling, we’ll see where on the impossible-to-unlikely scale it is. I should note that however you slice it, some number of Republicans would have to sit it out entirely and not just skip the top of the ticket for this to have a coattail effect downballot. The main ingredient to the Democratic legislative success of 2006 was unusually low turnout among Republicans. We’re now moving from “how many angels can dance on the head of a pin” to “are they two-stepping or polkaing” territory, so I’d better quit while I’m ahead. Bottom line is, I’d like to see some November polling, sooner rather than later. It may provide some good entertainment, if nothing else. Martin Longman, ThinkProgress, and Marc Campos, who is way more skeptical than I am of a Trump effect in Texas, have more.

Does any of this sound like “Medicaid Expansion” to you?

So Wonkblog, TPM, and BOR, all riffing off the same news story in which Greg Abbott had a clandestine meeting with Houston-area legislators and may have said some things that made them think he might be open to “Medicaid expansion”, are all talking about it as though it’s a thing that could happen. Here’s Wonkblog, which had the most detailed report:

It's constitutional - deal with it

It’s constitutional – deal with it

If Abbott did back Medicaid expansion funding, worth about an estimated $100 billion to the state over 10 years, it would be arguably the biggest “get” for the Obama administration since the Supreme Court made the expansion voluntary more than two years ago.

As Texas attorney general, Abbott joined the lawsuit against Obamacare that reached the Supreme Court in 2012. His predecessor, Gov. Rick Perry, has been one of the most outspoken opponents of the Medicaid expansion, and Abbott campaigned against the Medicaid expansion leading up to the November election.

According to the Texas Tribune report, he’s interested in the expansion deal Utah Gov. Gary Herbert struck with the Obama administration after months of negotiations. Herbert’s plan would use Medicaid expansion dollars to buy private coverage for low-income adults earning below 138 percent the federal poverty level, or about $16,100 for an individual, with some cost-sharing requirements.

Of the 23 states that haven’t expanded Medicaid, Texas by far has the most low-income adults living in the “coverage gap” – people who earn too much to currently qualify for Medicaid but don’t earn enough to receive subsidies to purchase health insurance through Affordable Care Act exchanges. About 948,000 adult Texans fall into this category, or about 25 percent of all Americans in the coverage gap, according to the Kaiser Family Foundation.

It’s still not clear whether Abbott’s thinking on Medicaid has changed. He’s recently called for a block grant of current Medicaid funding, which would be a lump sum to run the health-care program with far less oversight from the federal government — an idea that doesn’t sit well with Democrats. And Abbott has said Texas couldn’t afford the expansion when the federal funding match drops to 90 percent of the program’s cost in a few years.

The expansion issue is far from dead in Texas. A legislative health committee earlier this month rejected the traditional expansion but left the door option for future waiver negotiations with the federal government. A separate federal Medicaid waiver, worth close to $30 billion, could provide a major leverage point for the Obama administration when the waiver expires in 2016.

I’ve linked to it before, but here’s that Senate interim committee report, which covered other topics including Medicaid. The sum total of what they wrote about Medicaid is only nine pages, beginning on page 22, so you can read it all yourself if you want, but I’ll save you some time and reprint the recommendations here:

1. Texas should encourage congressional action to operate Medicaid as a block grant program and should simultaneously continue to pursue a waiver from the Centers for Medicare and Medicaid Services (CMS) to allow the state increased flexibility in the operation of our Medicaid program. While the delivery of Medicaid funds through a block grant is ultimately a decision of the U.S. Congress, the state should actively urge such action at the national level. Additionally, HHSC should continue to seek a waiver from CMS that will allow Texas to contain costs and increase personal responsibility by enacting cost sharing requirements, tailoring benefits to more closely align with individual needs, enhancing efforts to prevent fraud, waste, and abuse, and eliminating unnecessary administrative costs.

2. Support successful programs and entities that have local buy-in and include local funding sources.

  • Successful programs that serve the uninsured and are funded through state and local sources, such as mental health services offered through Local mental Health Authorities (LMHAs) and county indigent programs, should be supported and potentially expanded by the Legislature.
  • Programs that enable low-income families to access private market health coverage such as the Health Insurance Premium Payment (HIPP) program should be promoted and expanded. This program reimburses families of Medicaid-eligible clients for their share or a portion of their share of an employer-sponsored health insurance premium, only in cases when the state has determined that paying the premium is more cost-effective than enrolling the Medicaid-eligible family member in the Medicaid program. In Fiscal Year 2013, there were 7,194 active HIPP cases serving 9,657 Medicaid-eligible individuals and 26,409 total clients. Expansion of the HIPP program should be considered as a way to connect family members of Medicaid-eligible individuals to affordable private health insurance.
  • Texas should support settings that serve high numbers of uninsured Texans, such as Federally Qualified Health Centers (FQHCs). FQHCs provide a medical home for many Texans without health insurance. FQHCs are facing a “fiscal cliff” in 2016, when the federally-funded FQHC Trust Fund is expected to be discontinued. Texas should advocate for continued funding for the Trust Fund and supply state funds, as available, to support this vital part of our safety net.

So I ask again, does any of that sound like “Medicaid expansion” to you? Some of these may be good ideas – I’m not enough of a wonk to say – but it’s not clear to me how expansionary any of them are, or what any of them have to do with “Medicaid”. I get that there’s an aversion to using the term “Medicaid” in any policy description, but either the goal is to provide health insurance to most if not all of the people who would be eligible for Medicaid under an ACA-style expansion or it’s not. I don’t see anything that points in that direction, and until I hear Greg Abbott use words that signal an intent to, you know, EXPAND health insurance coverage in some form, then I say deep skepticism is the rational response.

Now, I do appreciate some journalistic attention to this, however thin the reed is that we’re all hanging on, so let me suggest a couple of questions that could be asked the next time Abbott deigns to talk to the press about this, or anything else.

1. Is your primary goal still to seek block grants for Medicaid? How will that meet the goal of covering more Texans?

2. What prompted your change in thinking on this?

3. How will you overcome the opposition of your Lieutenant Governor, many of the Republicans in the Legislature, and your ideological allies Such as the TPPF?

Those last two questions are on the assumption that Abbott is indeed interested in pursuing something other than block grants. Which, to be clear, I still think is what he intends to do. As such, those questions are likely moot, but let’s keep them in our back pockets just in case. I don’t expect to need them, but what the heck. In the meantime, as I’ve said before, let’s keep our eye on the ball.

Texas same-sex marriage plaintiffs ask for stay to be lifted

I wish them luck.

RedEquality

Two same-sex couples have asked U.S. District Judge Orlando Garcia of San Antonio to allow gay marriages to begin taking place immediately in Texas.

On Monday, couples Mark Phariss and Victor Holmes of Plano and Nicole Dimetman and Cleopatra De Leon asked Garcia to lift a stay he imposed this winter on his own ruling that Texas’ gay marriage ban is unconstitutional.

In February, Garcia said the state’s prohibition violates the U.S. Constitution’s guarantees of equal protection and due process. The district judge, though, held his ruling in abeyance so higher courts could rule in similar cases from other states that were further along.

“The court should immediately lift the stay because the Supreme Court’s actions following entry of the stay no longer support its continuance,” Neel Lane, the two couples’ lawyer, wrote in his motion urging Garcia to lift the stay.

Lane pointed out that last month, the Supreme Court declined to hear various states’ appeals that it rescue their gay-marriage bans from adverse lower court rulings. The Supreme Court’s refusal “dissolved the stays” — or put into effect — the edicts overturning prohibitions on same-sex marriage in states in the 4th Circuit (Richmond), 7th Circuit (Chicago) and 10th Circuit (Denver), he said. Since then, the Supreme Court lifted stays on similar, lower-court rulings in Kansas and South Carolina, he noted.

While Lane conceded that the justices’ refusals to hear appeals “do not have legal significance,” he argued that “the constitutional environment” in which Garcia acted this winter has “now changed radically and permanently. Fully two-thirds of citizens of the United States now have an enforceable federal constitutional right to marry the person of their choice, irrespective of gender.”

I found a copy of the motion here. As the Chron story points out, the stay in this case was originally put in place because there was a stay in place for the Utah ruling – the one that started all these state laws falling – pending review by the Tenth Circuit Court of Appeals. That review has happened, the original ruling that tossed Utah’s law has been affirmed, and as the motion states the Supreme Court refused to take the state’s appeal, thus allowing the stay to expire. Given all that, why must Texas’ ruling be stayed?

That’s the question the motion asks, in addition to pointing out all the harms that these plaintiffs and other same-sex couples whose legal marriages are not recognized by Texas continue to suffer. My non-lawyer’s opinion is that Judge Garcia will be reluctant to lift the stay, on the perfectly reasonable grounds that the Fifth Circuit may put a turd in the punch bowl and overturn his ruling. That would then put all these couples right back into limbo, with some extra chaos mixed in. Of course, I thought the original lawsuit had no chance of succeeding, so what do I know? I’m sure Greg Abbott will file a response, though I have no idea what the time frame for that might be. Regardless, I look forward to the ruling and I wish them all the best.

Texas same sex marriage plaintiffs want the get oral arguments scheduled

They would like to get on with their lives, if it’s not too much trouble to Greg Abbott and the Fifth Circuit.

RedEquality

Austin lawyer Nicole Dimetman is pregnant and expects to give birth for the first time on March 15, lawyers trying to overturn Texas’ gay-marriage ban announced Sunday.

“The need for justice and equality has always been urgent,” San Antonio lawyer Neel Lane, of the firm Akin Gump Strauss Haurer & Feld, said in a statement. “This development — Nicole’s pregnancy — only underscores that. We hope the [U.S.] 5th Circuit [Court of Appeals] will do what it can to move this case forward expeditiously.”

Dimetman and 13-year partner Cleopatra De Leon, an Air Force veteran, were married in Massachusetts five years ago. They want Texas to recognize their marriage.

After they were married, De Leon gave birth to a boy, now four years old. Dimetman adopted him. But adoption is expensive and time-consuming, and the couple would like to avoid going through the procedure again, Lane said. He noted that while for heterosexual couples, the establishment of parental rights is automatic, De Leon would have to do the adopting this time — to be legally recognized as a parent of the child they’re expecting.

“More importantly, the child will be exposed to great uncertainty and insecurity if, for some reason, Dimetman is rendered incapable of caring for the newborn child,” Lane said. “For instance, if Dimetman did not survive childbirth, the baby could be an orphan without a parent directing the baby’s care.”

The appeals court hasn’t set a date for a hearing in the case. Most of the briefs have been filed, though Abbott is scheduled to respond to the plaintiffs’ latest arguments very soon.

Lane noted that a three-judge panel, yet to be named by the appeals court, will hear the Texas case and one from Louisiana. In the Louisiana case, a federal district judge ruled that state could ban same-sex marriage. Briefs in it are to be completed by Nov. 7, Lane said. So a November oral argument in the Texas case would be ideal, as Dimetman would like to attend, he said. It’s unwise for women to travel late in their pregnancies if that can be avoided, and as of next month, Dimetman won’t have entered her pregnancy’s third trimester, he said.

Their co-plaintiff Mark Phariss wrote an op-ed in support of Dimetman and DeLeon, basically daring the state of Texas to live up to its stated concern about “families”, which our leadership supports far more in the abstract than in reality. The concerns about possible complications with the pregnancy and their consequences are more than theoretical to Dimetman and DeLeon. I’ve said before and I’ll say again, I do not understand the morality of anyone that would work to make the lives of Nicole Dimetman and Cleopatra DeLeon and their children more difficult and less secure. I don’t know if the Fifth Circuit is going to abet justice or stand in its way in this litigation, but one way or another we need to get this show on the road.

That takes on an even stronger urgency now that the Supreme Court has denied petitions to hear appeals of the various appellate court decisions striking down state bans on same sex marriage. By doing so, all of the lower court decisions striking down those bans in Indiana, Wisconsin, Utah, Oklahoma, and Virginia will go into effect, which is to say same sex couples can legally get married in those states, and shortly thereafter in the other states within those judicial districts. If the Fifth Circuit upholds the lower court’s ruling in this case, it seems safe to assume that SCOTUS will let that ruling stand as well. If they overturn it, or perhaps if the Sixth Circuit beats them to it, then that ought to fast-track review. One way or the other, however, further delays are just foot-dragging in the hope of postponing the inevitable. Daily Kos, Texpatriate, TPM, and Unfair Park have more.

UPDATE: Good luck with that, Ted.

Utah will take same sex marriage fight to SCOTUS

This could be the ballgame.

The Utah attorney general’s office announced Wednesday that it will appeal the 10th Circuit Court’s decision last month upholding same-sex marriage to the U.S. Supreme Court.

Wednesday was the deadline for the state to seek a full-court review by all 12 judges of the 10th Circuit Court, but, according to a statement from the attorney general’s office, Utah will instead push onward to the U.S. Supreme Court.

The announcement came as dozens of Utah families delivered more than 3,800 petitions to Gov. Gary Herbert’s mansion, asking the state to pull back its appeal of same-sex issues on which judges — both state and federal — have already ruled.

This includes Utah’s landmark Kitchen v. Herbert case, the first in the nation to topple a state ban on gay marriage, as well as a case over whether or not the state is obligated to recognize the nearly 1,300 same-sex marriages performed in the wake of the Dec. 20, 2013 decision by a federal district court judge in Utah striking down the states ban on same-sex marriages.

The timing of the state’s announcement Wednesday was “interesting,” said Brandie Balken, executive director of Equality Utah, who attended Wednesday’s march.

“We don’t really know if the Supreme Court will take this up or they won’t,” Balken said. “Unfortunately, today we have families, couples, children who are living in legal limbo.”

A statement from the Utah attorney general’s office reiterated the state’s call for “clarity” and “resolution” on the issue of same-sex marriage.

“To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United State Supreme Court in the coming weeks,” according to a statement from the attorney general’s office. “Attorney General Sean Reyes has a sworn duty to defend the laws of our state. Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

The 10th Circuit made its ruling two weeks ago, so Utah isn’t wasting any time. SCOTUS doesn’t have to accept Utah’s appeal – if they decline, it simply means that the 10th Circuit Court’s ruling stands and would be the end of the line for Utah and I presume the other states in the Tenth Circuit – but at least some marriage equality proponents would like to see SCOTUS take it up. Freedom to Marry put out a statement saying if by doing so they could “swiftly move to end marriage discrimination across the country”, instead of just in these few states. If SCOTUS does decide to sit this one out, they may be forced to take action later if a different appeals court, like say the Fifth Circuit issues a contradictory ruling. We’ll just have to wait and see.

If SCOTUS does take this up, that could set the stage for a ruling from them in 2016, or possibly late 2015. That in turn might make the 2016 Presidential election an even bigger deal.

So Ohio Senator Rob Portman is considering a run for president, and he claims his support for gay marriage would be a plus in a general election, allowing Republicans to make an economic case to key demographics that are culturally resistant to the GOP. “You can’t become a national party unless you do a better job reaching those between 18 and 30,” Portman says.

This raises the possibility of a scenario that Republicans who agree with Portman — and believe the party must evolve on gay marriage to stay in step with the country’s cultural and demographic shifts — might want to start worrying about right about now.

It’s not hard to imagine that Senator Ted Cruz might make precisely the opposite case from Portman, making the case that the party must reaffirm its support for “traditional marriage” key to his GOP presidential primary run. This could come after the Supreme Court has declared a Constitutional right to gay marriage — which Cruz would then be vociferously calling on Republicans to help roll back.

Gay advocates believe lower court rulings overturning state gay marriage bans on Constitutional equal protection grounds could portend an eventual SCOTUS ruling that enshrines a national right to gay marriage. That could happen in time for the 2016 primary.

That would amount to a powerful declaration that this debate is, or should be, culturally and legally settled. But at that point, unrepentant foes of gay marriage could seize on the ruling to redouble their call for a Federal Marriage Amendment to the Constitution defining marriage as between a man and a woman. Such a measure was introduced by House Republicans as recently as last year. And Senator Cruz supports the idea.

Yes, leave it to Ted Cruz. Do what he says, Republicans! Follow him all the way over that cliff!

Anyway. In other same sex litigation news, a judge in Colorado has struck down that state’s marriage ban. I’ve lost track of how many such wins in a row the good guys have had, but it’s a lot. The biggest prize of them all may be coming soon.

Tenth Circuit upholds same-sex marriage

A huge step forward.

A federal appeals court ruled Wednesday that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, the a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

But the court stayed the implementation of its decision, pending an anticipated appeal to the U.S. Supreme Court.

Meanwhile, the state can ask the 10th Circuit Court to re-hear the matter before the full court, according to legal experts.

University of Utah law professor Clifford Rosky called Wednesday’s ruling, “the most important victory of the entire gay rights movement.”

It’s the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.

“Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law,” Rosky said.

If the state asks the 10th Circuit Court to re-hear the matter before the full court, Rosky said he doubts they’ll get a different result, and the request may not even be granted.

The appeals court upheld U.S. Judge Robert Shelby’s December decision, which struck down Utah’s ban on same-sex marriage and prompted more than a 1,000 same-sex couples to marry during a 17-day window before the U.S. Supreme Court issued a stay, halting all such weddings.

[…]

The 10th Circuit Court focused their ruling on the 14th Amendment, which gives equal protection to American citizens, and their reading of the Constitution that the legal rights of married couples has nothing to do with the gender of those in the union.

“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,” the 10th Circuit Court ruled.

“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,” the appellate court said.

The decision is here. As TPM notes, there’s a separate case before the 10th Circuit on Oklahoma’s gay marriage ban. It’s hard to imagine a different ruling in that case. This decision affects multiple states that fall within the 10th Circuit’s purview, all of which have their own litigation pending. See Freedom to Marry’s litigation page for an overview of the legal cases elsewhere. One that is being watched closely is in the Fifth Circuit, where the appeal of the ruling in the Texas case will be heard; appellants’ opening briefs are due July 9, with responses due 30 days later, no schedule yet for oral arguments. The belief is that if any court is going to stop the winning streak for same sex marriage, it’ll be the Fifth Circuit, because they suck like that. But we’ll see. It’s not completely out of the question that SCOTUS won’t have to rule on this at all, if the lower and appeals courts keep agreeing with each other; by the way, another judge, this on in Indiana, also struck down a state ban on same sex marriage on the same day. We’re a long way from the end of this story, though we’re definitely getting closer. Freedom to Marry, the Deseret News, dKos, the Human Rights Campaign, the Dallas Voice, TPM, the Slacktivist, Texas Leftist, and no doubt many others have more.

Hearing for the Texas federal same sex marriage lawsuit is tomorrow

All eyes will be on San Antonio on Wednesday.

RedEquality

Like most new parents, Nicole Dimetman and Cleopatra De Leon plan their days around their small child. Theirs is an ordinary family life, they say, but it is by no means easy.

Although married in 2009 in Massachusetts, where same-sex marriage is legal, they live in Texas, a state that doesn’t recognize their union. When De Leon delivered their child in 2012, Dimetman’s name wasn’t allowed on the birth certificate.

“There was that time period that I was the only parent,” De Leon said, a situation that never affects married heterosexual couples. “If something happened to me during his birth, he would have been considered an orphan.”

In October, the women, along with another couple, filed a federal lawsuit in San Antonio challenging the state’s ban on same-sex marriage. On Wednesday, they will go before U.S. District Judge Orlando Garcia, who will consider a preliminary injunction, a court order that would bar Texas from enforcing the ban while the suit continues to be litigated.

As the nation’s second-most populous state, “any decision that affects the marriage equality in Texas has national implications,” said San Antonio-based attorney Neel Lane, who represents the couples.

Indeed, the implications of the Texas cases could transform the national debate over gay marriage.

[…]

To prevail on the injunction request, the couples have to show they are likely to win when the full suit is litigated, and that they “are being harmed right now,” according to attorney Lane.

“Our belief is the arc of equal protection cases … points directly to recognizing that people have the right to marry regardless of gender,” Lane said. “Gays and lesbians are not afforded access to marriage and all the benefits from it. That is a denial of equal protection of the law. It is unequal when some people are not permitted to do what most others are permitted to do. And there’s no basis for denying them that right.”

See here and here for the background on the Texas case. As you can see from the latter link, I was rather pessimistic about this at the time that the hearing date was set. Then along came the rulings in Utah and Oklahoma and Ohio, and the decision by Virginia AG Marc Herring to not defend that state’s law, and just like that things look a whole lot different. There’s still a ton of decisions to be made, by the district court in Virginia and the appeals court for Utah and Oklahoma. Ohio, the site of a narrower decision concerning death benefits, is now on the clock with its own lawsuit (via Scalzi). And I’d still bet money on the Fifth Circuit Court of Appeals doing something hideous when they get the opportunity to weigh in. But it’s clear that the ground has shifted, and that the plaintiffs have by far the stronger argument. I don’t know what’s going to happen in court tomorrow, but it’s mind-boggling to think that we’re at this point barely eight years after that horrible, discriminatory amendment was passed. I truly hope we can start the countdown till its final day. Lone Star Q has more.

UPDATE: And late yesterday, the Democratic Attorney General of Nevada, with the agreement of the Republican Governor of Nevada, has announced the state will not defend its ban on same sex marriage against litigation there. Another nail in the coffin.

On, Wisconsin

From the ACLU of Wisconsin:

RedEquality

The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit today on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.

The plaintiffs include Roy Badger and Garth Wangemann of Milwaukee, who have been together 37 years. Three years ago Wangemann had much of his right lung removed after being diagnosed with lung cancer. Following the operation, a complication occurred and he was put into a medically induced coma for nearly a month. His progress was uncertain, and Wangemann’s father attempted to override Badger’s power of attorney to have his son taken off life support. Before that could happen, Wangemann recovered.

“What upset me the most was that after all of our time together, our relationship was not fully recognized by my family and there was a real danger that my wish to give Roy the ability to make decisions about my care could be stripped away,” Wangemann said. “Thankfully, our wishes held in this case. But without the protections that come with marriage, the consequences can literally be a matter of life or death.”

Other plaintiffs in the case are Carol Schumacher and Virginia Wolf of Eau Claire; Charvonne Kemp and Marie Carlson of Milwaukee; and Judi Trampf and Katy Heyning of Madison. Read their stories.

Wisconsin’s ban on marriage for same-sex couples prevents them from securing the hundreds of protections that state law provides to married couples. Wisconsin law subjects same-sex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for Wisconsin couples to get the federal protections that come with marriage is for them to go out of state to marry. But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.

Among the plaintiff couples, Schumacher and Wolf were legally married in another state, raising the possibility of prosecution back at home. The lawsuit challenges the overall ban as well as the application of this criminal law to same-sex couples who are forced to choose between being denied federal protections and the risk of criminal prosecution.

“These families simply want the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”

The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin. The plaintiffs allege that the state’s constitutional marriage ban sends a message that lesbians, gay men, and their children are viewed as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage.

Criminalizing out of state marriages is a nasty little twist. I’m surprised there wasn’t a lawsuit sooner.

Meanwhile, the Virginia case was heard yesterday.

The ban on same-sex marriage is just like an old Virginia law that made interracial marriages illegal, and it’s time for Virginia to stop discriminating against gays and lesbians, a state attorney told a federal judge Tuesday.

But lawyers who support the ban said if the law is to change, it should be done by the legislature. They also argue that there has never been a fundamental right to same-sex marriage.

“We have marriage laws in society because we have children, not because we have adults,” said attorney David Nimocks of the religious group Alliance Defending Freedom.

The case is the first one in the South to reach oral arguments before a federal judge. Recently elected Democratic Attorney General Mark Herring announced Jan. 23 that he would not defend the state in the lawsuit because he believed it violates the equal protection clause of the 14th Amendment.

In overturning bans in Utah and Oklahoma, federal judges have also said those laws violate the 14th amendment.

Virginia Solicitor General Stuart Raphael told the judge Virginia had frequently been on the wrong side of history, citing the state’s ban on interracial marriages, its defense of segregation as well as its opposition to allowing female students into the Virginia Military Institute.

Raphael said supporters of the ban have failed to prove how allowing gay marriage would make opposite sex couples less likely to marry.

“That’s the Achilles heel in the argument,” he said.

[…]

U.S. District Judge Arenda L. Wright Allen said she would rule soon. If Wright Allen finds Virginia’s law unconstitutional, Raphael asked her to issue a stay so that nobody can get married until the case is heard on appeal.

He said the state wanted to avoid the situation Utah found itself in after marriages were briefly allowed to occur there before a stay was issued.

With Herring’s office deciding to side with the plaintiffs, the job of defending the law fell to the legal team of Norfolk’s Circuit Court clerk.

Attorney David Oakley said the court should respect the legislative process that created the law. If the law is to be changed, it should be done through the legislature, he said.

In addition, an attorney for the religious group Alliance Defending Freedom argued on behalf of the Prince William County’s clerk, which was allowed to intervene in the case. The clerk asked to intervene because of worries the attorney general’s office wouldn’t do an adequate job defending the law.

And there was some action in Utah as well.

The state of Utah offered a tailored defense of its ban on same-sex marriage in a brief filed late Monday evening with the 10th Circuit Court of Appeals, arguing its laws are all about the long-term interests of children.

Utah has chosen a definition of marriage that is “principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults,” the state said. “And by reinforcing that understanding, the state gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.”

That definition is not designed to demean other family structures “any more than giving an ‘A’ to some students demeans others,” the state said.

But redefining marriage in “genderless” terms likely would result in lower reproductive rates and fewer children being raised in the ideal environment provided by biological, opposite-sex parents, the state said.

[…]

Attorneys for the three same-sex couples who are challenging Utah’s ban have until Feb. 25 to file a response, and the state’s final filing must be submitted by March 4.

Oral arguments are scheduled for April 10 in Denver. The three-judge panel that will hear the case — as well as an appeal from the state of Oklahoma involving a similar ban — will be picked 10 days before the hearing.

You can see the full brief here. I’m pretty sure these are the same basic arguments that were made in the Prop 8 case in California. There may be some differences, but I’m not a lawyer so this is just my impression. I am sure we’ll hear more of the same when Texas’ case gets heard.

Annise Parker’s journey

The Chron reviews how Mayor Parker went from activist for the LGBT community to Mayor on the occasion of her wedding.

Annise Parker circa 1991

The country’s first openly gay mayor became the country’s first openly gay married mayor this week. A wedding wouldn’t seem the sort of event to justify partisan commentary, yet at least one critic questioned the timing: Why, the Harris County Republican Party chairman asked, did Mayor Annise Parker marry longtime partner Kathy Hubbard after her re-election?

But Parker has spent more than half of her life working to advance civil rights for homosexuals. The union is just a formality for a life lived outside the closet, years before popular culture began to catch up.

Parker first met Hubbard at Inklings, Parker’s gay and feminist bookstore in Montrose, in 1990. The 23 years they’ve spent together span a period of notable change in gay culture in our country. Parker, 57, had been out since high school.

To give their meeting cultural context, she and Hubbard met two years before singer k.d. lang came out of the closet, three years before singer Melissa Etheridge did so, and seven years before Ellen Degeneres received a toaster from Etheridge when Degeneres’ popular character said she was gay on prime-time TV.

Unlike those performers, Parker didn’t have a paying audience to consider. Instead, she had a constituency to represent. Parker in 1990 was just beginning to think about advancing her career in public service, which eventually would lead to her mayoral election. She began that work at a time when gay rights hit a flashpoint in Houston following two fatal hate crimes.

The evolution of this particular civil rights issue has been urgently debated and has evolved greatly in recent years. The tenor of the debate suggests how far it is from resolution. But it’s also easy to lose sight of how far gay, lesbian, bisexual and transgender rights have come since Parker served as president of Houston’s Gay Political Caucus in 1986, which was one year after actor Rock Hudson died of AIDS after living out for years to close friends but closeted to the public.

Mayor Parker’s story is well known, but it’s always worth taking a look back and reminding ourselves that there was never any guarantee that any of us would wind up where we did. The fact that she is able now to marry the woman she loves and has been partnered with for 23 years would have seemed like a crazy, alternate-universe idea even five years ago. That happy occasion is unfortunately also an opportunity for the usual squadron of small-minded pecksniffs, from anonymous commenters on newspaper websites to public officials that have nothing better to do, to make nasty remarks. Whether they realize it or not, their whining is just a reminder that they’ve lost. They’ve lost in Utah, they’ve lost in Oklahoma, and perhaps as soon as next month, they’ll lose in Texas. The laws may take awhile to catch up, and as with all things some will never give up their fight for the wrong side, but they have lost. Our country is a more joyful place for it.

Oklahoma!

Where the same sex marriages come whistling down the plains.

RedEquality

U.S. Senior District Judge Terence Kern ruled Tuesday that Oklahoma’s ban on marriage equality is unconstitutional.

The ruling is stayed pending appeal, meaning marriages will not occur immediately in Oklahoma.

In striking down Oklahoma’s ban on same-sex marriage, U.S. District Judge Terrence Kern described it as “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.”

“Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern’s 68-page decision says. “It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”

[…]

Two plaintiff couples, Mary Bishop and Sharon Baldwin — who both work at the Tulsa World — and Gay Phillips and Susan Barton, filed their case in November 2004.

The legal challenge came shortly after Oklahoma voters overwhelmingly passed the constitutional amendment that banned same-sex marriage in the state. The couples were seeking the right to marry and to have a marriage from another jurisdiction recognized in Oklahoma.

“The Bishop couple has been in a loving, committed relationships for many years,” the judge said. “They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities.”

But Oklahoma’s constitutional amendment “excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification,” Kern said.

The order is stayed pending appeal, so there won’t be a mad Utah-like rush to the county clerk’s offices for licenses just yet. But you can’t deny it’s coming. You think Texas Republicans are maybe feeling a little nervous about their court date next month? You can see a copy of the judge’s decision at the link above, and Freedom to Marry has more.

UPDATE: Here’s a longer version of that Tulsa World story.

Utah will not recognize same sex marriages

Not until they are forced to.

RedEquality

Utah Gov. Gary Herbertannounced Wednesday that the state will not recognize the 1,000-plus same-sex marriages performed in the state since Dec. 20, when a U.S. district judge ruled that the state’s ban on gay marriage violated gay and lesbian couples’ constitutional rights.

“The original laws governing marriage in Utah return to effect pending final resolution by the courts,” the governor’s office said in a memo issued to his Cabinet.

“We’re not going to do anything to undo marriages,” said Missy Larsen, spokeswoman for Utah Attorney General Sean Reyes. “If they have a driver’s license with their marital name on it, it stands. But wherever they were in the process, it’s frozen.”

That means that same-sex couples who have gotten married since the Dec. 20 ruling and who are in the process of applying for benefits for spouses or adopting children will have those actions put on hold.

Same-sex couples who have gotten marriage licenses but have not yet had weddings are not legally married, Larsen said. “The ceremony had to have taken place. It had to have been solemnized.”

Gov. Herbert’s chief of staff, Derek Miller, sent a memo saying state law not only prohibits same-sex marriages but also prohibits the state recognizing them.

Utah is not commenting on the legal status of the same-sex marriages already performed, the memo said.

They will at least allow county clerks to continue processing paperwork from couples that did get married before SCOTUS stepped in, for which I don’t feel like scrounging up a snarky comment. Just because Utah doesn’t want to recognize these marriages doesn’t mean anyone else has to follow their lead, and indeed on Friday the Obama administration announced that they would recognize all of Utah’s marriages.

“I am confirming today that, 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,” Attorney General Eric Holder said in a video message which was shared with TPM. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

Good for them. The Human Rights Commission had asked for this a day earlier, and I’m glad to see it happen without any dithering. In the meantime, while we wait for the Tenth Circuit to hear the appeal, the ACLU is planning to file a lawsuit against Utah to force it to uncover its eyes and recognize these marriages as legal pending the outcome of the original litigation. We’ll see what gets an enforceable ruling first.

SCOTUS halts same sex marriages in Utah, for now

Bummer.

RedEquality

The U.S. Supreme Court on Monday put same-sex marriages in Utah on hold, granting the state’s request for a stay while it appeals a ruling that laws banning such marriages are unconstitutional.

The court said the stay would be in place until the 10th Circuit Court of Appeals in Denver makes a decision on Utah’s appeal.

The state’s stay application was filed with Justice Sonia Sotomayor, who referred it to the whole court, according to the order issued Monday. Sotomayor is assigned to the 10th Circuit Court, which rejected Utah’s request for a stay three times.

U.S. District Court Judge Robert J. Shelby also denied the state’s request that he stay his Dec. 20 order overturning Amendment 3 while Utah appealed.

The order from the U.S. Supreme Court means clerks in Utah no longer will be allowed to issue marriage licenses to same-sex couples. It is not immediately clear what the order means for couples who have already married.

Utah Attorney General Sean Reyes, who met briefly with reporters Monday, said that this was the “uncertainty” the state hoped to avoid with a stay.

“We don’t know the answer yet as to marriages already performed,” Reyes said, adding that the state wants to carefully evaluate the implications. “There is not clear legal precedent for this particular situation.”

[…]

At least 1,000 same sex couples have wed since Shelby’s ruling. Though it isn’t clear how the stay might affect those unions, making them no longer legal would be unprecedented, said Clifford Rosky, a University of Utah law professor and Equality Utah board chairman.

“Ultimately, the courts will decide what happens to those marriages,” said Rosky, but “never in the history of this country has a court retroactively invalidated a marriage that was legal when it was entered.”

Well, we’ll see if there’s a first time for everything. Lyle Denniston provides some more information.

The Court’s order reinstates the state ban and will keep it intact until after a federal appeals court has ruled on it.

The order appeared to have the support of the full Court, since there were no noted dissents. The ruling can be interpreted as an indication that the Court wants to have further exploration in lower courts of the basic constitutional question of state power to limit marriage to a man and a woman. Had it refused the state’s request for delay, that would have left at least the impression that the Court was comfortable allowing same-sex marriages to go forward in the thirty-three states where they are still not permitted by state law.

The order, however, cannot be interpreted as a dependable indication of how the Court will rule on the issue when it finally decides to do so directly.

[…]

As a result of the new order, the U.S. Court of Appeals for the Tenth Circuit, based in Denver, will go forward with an expedited review of Judge Shelby’s decision. The appeals court has ordered briefing to begin on January 27 and to be completed by February 25. It has indicated it is not likely to grant any extensions of time to file those documents. It has not yet set a hearing date.

With the Justices’ order in the case, it now appears almost certain that the question of state power to bar same-sex marriages will not be before the Justices during the current Term. A case on that issue would have to be granted this month to be reviewed before the Court is expected to finish this Term in late June.

So now the Texas case will be heard with Utah back in the no-same-sex-marriage column. Again, we’ll just have to see what effect that will have. I was cynical at first thanks to the inevitable involvement of the Fifth Circuit, then I was ebullient, and now I’m disappointed but still hopeful. Sorry for the whiplash. While I remain guardedly optimistic, here’s a reminder from TPM that we may yet be a long way away from a favorable resolution. SCOTUS will do what it wants to do, as anyone familiar with Bush v Gore can attest. In the meantime, keep the faith and keep fighting.

Utah appeals to SCOTUS

This was inevitable.

RedEquality

Utah took its fight against gay marriage to the U.S. Supreme Court on Tuesday, asking the high court to suspend same-sex unions that became legal when a judge struck down the state’s voter-approved ban.

The heavily Mormon state wants the marriages to stop while it appeals a judge’s decision, which said banninggay couples from marrying violates their right to equal treatment under the law.

In papers filed Tuesday, the state asked Justice Sonia Sotomayor to overturn a decision that has led to more than 900 gay marriages in Utah. Sotomayor handles emergency requests from Utah and other Rocky Mountain states.

Sotomayor responded by setting a deadline of by noon Friday for legal briefs from same-sex couples. She can act by herself or get the rest of the court involved.

[…]

In the papers filed Tuesday, Utah argues that children are best raised by a mother and father in a good relationship.

“On average children navigate developmental stages more easily, perform better academically, have fewer emotional disorders and become better functioning adults when reared in that environment,” it says.

I see Utah is making the thoroughly discredited argument about “responsible procreation” that other courts have torn apart. I’d say “good luck with that” but this is one of those times when mere sarcasm is inadequate. I hope SCOTUS crams that piece of baloney right down your throat, Utah. It’s nothing less than what you deserve. Their request for a stay can be found here if you’re interested.

Meanwhile, back in Texas, a new movement has been launched to increase support for marriage equality here.

Equality Texas is partnering with the national group Freedom to Marry to launch a new project called Why Marriage Matters Texas, which will focus on storytelling as a way of changing hearts and minds.

“For the first time in a long time, marriage in Texas is moveable,” said Daniel Williams, field organizer for Equality Texas. “The public opinion is shifting our way. This is something we can actually dedicate resources to and have a realistic expectation of having results. We’re gearing up to work in a concrete way to bring the freedom to marry to Texas.”

Williams said while recent polls show a steady increase in support for marriage equality among Texas voters, much of the shift has been due to an increase in the number of young people, non-native Texans and Hispanics.

“If we’re going to be able to push the changes in public opinion beyond demographic shifts, we’re going to have to go and talk to people about why our marriages matter, in the language of emotion and the language of human relationships,” Williams said. “You can spit statistics to people all day long, but what changes people’s hearts and minds are personal stories of people affected by the issues.”

The website is here, though it’s still under construction. Again, the federal court hearing to decide on an injunction against Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment is February 12. A whole lot more than I would have ever expected has happened since that court date was set. Assuming SCOTUS denies Utah’s appeal, one has to ask what grounds exist now to not grant that injunction? Six weeks from now we could be in for a very big change for the better. BOR has more.

Lambda Legal sues Houston over same sex spouse benefits

I didn’t see this coming.

RedEquality

Lambda Legal [Thursday] filed a federal lawsuit against Houston Mayor Annise Parker and the City of Houston seeking to preserve spousal benefits, including health insurance, covering the same-sex spouses of city employees. The lawsuit was filed in the U.S. District Court for the Southern District of Texas on behalf three City of Houston employees legally married to same-sex spouses and follows notification these employees received recently that the City, one month after extending the employee coverage for their spouses, was being forced to withdraw these benefits and cancel the coverage.

“City employees who are married to same-sex spouses are doing the same work as coworkers who are married to different-sex spouses—at the end of the day this case is about equal pay for equal work. These employees, some who have worked for the City for many years, acted in good faith when notified the City was extending health coverage benefits to their legal spouses,” said Kenneth Upton, Senior Counsel in Lambda Legal’s South Central Regional Office in Dallas.

They enrolled for spousal benefits, including health insurance, paid the premiums, scheduled doctor visits and underwent treatments that will require ongoing care. Now, suddenly, the rug is pulled out from under them.”

Houston Mayor Annise Parker on November 20, 2013 announced that all lawfully-married city employees, including those who married same-sex partners in jurisdictions where such marriages are legal, would be eligible to enroll for spousal benefits, including health insurance coverage, under the City’s employee benefits health plan. The three plaintiffs named in Lambda Legal’s lawsuit enrolled their spouses as soon as they received notification of the policy change. Shortly thereafter, however, two Houston taxpayers sued the Mayor and the City in Family Law Court claiming the benefits were illegal and, without giving the Mayor or the City notice, secured a temporary restraining order (TRO) blocking extension of the benefits. The City is defending against the challenge to the Mayor’s decision to ensure equal employee benefits for all workers.

See here and here for more on the lawsuit and injunction that forced the city to suspend health insurance enrollments for same sex spouses, and here for more on the original order to provide those benefits. It’s clear from reading this that Lambda Legal is taking this action not to oppose the city but to support it in its defense against the injunction. I’m not a lawyer, but I presume the reason why Lambda Legal filed this separate action was for the purpose of having the two lawsuits joined so they could directly contribute to the defense against the injunction. I trust one of the lawyers in my audience will correct me if I’m wrong about that. The hearing will be Monday, January 6, so I hope we get a quick and favorable resolution to this. I also hope the Chronicle takes note of this new development sometime before then. The brief filed by Lambda Legal is here, and you can keep track of developments in the case here. Link via BOR.

Meanwhile, in Utah, it’s off to the Supreme Court for one last shot at stopping the tide from coming in.

Utah officials will appeal to the U.S. Supreme Court a lower-court ruling allowing same-sex marriage in the state, the state attorney general’s office said Thursday.

Newly appointed Utah Attorney General Sean Reyes will seek a stay of the federal judge’s ruling after state officials consult first with outside attorneys over the next few days.

“It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible,” the attorney general’s office said in a statement.

The emergency appeal, when filed, would go to Justice Sonia Sotomayor because she has jurisdiction over appeals from Utah and nearby states. She could rule on the state’s application herself or ask the entire nine-member court to weigh in.

Sotomayor is likely to refer the Utah request to the entire court, as is tradition with high-profile traditional cases, said Carl Tobias, a professor of constitutional law at the University of Richmond.

The forces against progress probably shouldn’t get their hopes up.

To secure a stay of the ruling, the state has to prove two things, says Clifford Rosky, a University of Utah professor of law and expert on lesbian, gay, bisexual and transgender legal issues. First, the state would have to prove that they are likely to win, Rosky, a gay-rights advocate, said this week. Second, they would have to prove that allowing the marriages to proceed would do “irreparable harm.” With hundreds of gay couples having already received licenses, that second argument is hard to make, he argues.

“If same-sex couples have already begun to marry, in the hundreds now, what would be the ‘irreparable harm’ of additional same-sex couples marrying?” he said early this week. “The cat’s out of the bag.”

Whatever happens, expect things to move quickly, Carl Tobias, a professor at the University of Richmond School of Law and a constitutional law expert, told the Salt-Lake Tribune. ”The state has always thought time was of the essence, and the justices are likely to agree and move very quickly once the papers are in,” he said.

As of the end of the day Dec. 26, at least 905 same-sex couples had received marriage licenses in Utah since last Friday’s ruling, according to the paper. And that’s despite the holidays and some county clerks’ initial reluctance to issue the licenses. Salt Lake County alone issued 353 such licenses Monday, dwarfing a previous record of 85.

You almost have to feel a little sympathy for SCOTUS having this issue dropped in their laps so quickly after their previous ruling.

“If the court thought it was going to get a few years,” said Michael C. Dorf, a law professor at Cornell, “I think they were naïve.”

The Supreme Court’s two decisions in June were finely balanced, with legal experts saying they had achieved the twin goals of advancing the cause of gay rights and avoiding a backlash in parts of the country not ready to embrace same-sex marriage.

One decision struck down the part of the federal Defense of Marriage Act that denied federal benefits to same-sex couples in states that allowed such unions. The other declined to say whether the Constitution required states to allow such marriages in the first place.

Since then, the pace of change has been very rapid. When the justices heard arguments in the cases in March, same-sex marriage was permitted in nine states and the District of Columbia. If the Utah decision stands, the number of states allowing such marriages will have doubled, to 18.

[…]

Michael J. Klarman, a historian at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage,” said he had expected rapid change — but not this rapid.

“The Utah decision is unique,” he added, “because it’s in a state with so much opposition to same-sex marriage. In Utah, you’re going to have a real experiment in backlash.”

Just wait and see what happens if the state of Texas gets injuncted. The hot air that will get generated will be enough to make Mars a temperate zone.

Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”

But he added that the lower courts should have done so, partly because of the potential cruelty of voiding the new marriages and partly because the Supreme Court is hard to predict.

“It’s pretty clear that even the five justices who are sympathetic to same-sex marriage would rather take a few years before getting there,” Professor Dorf wrote in a blog post on Tuesday. “If their hand is forced, as it now will be, it’s impossible to say with certainty what they’ll do.”

Of course, if SCOTUS had taken the bull by the horns in June and come to the correct conclusion that injustice anywhere is injustice everywhere, we wouldn’t be here now. To sum up, I agree with Josh Marshall.

Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it’s a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year. There’s also the real world reality that the 10th Circuit denial of a stay seems certain to guarantee a pretty substantial population of same sex couples in the state by the time the appellate Court actually comes to a decision.

In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli they were likely to accept eventually much more rapidly than they would have preferred.

So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their our logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.

I think everybody, on each side of the issue, has realized for the past two or three years that it’s only a matter of time till this happens. But the decade of different policies from state to state now seems like it won’t happen. I don’t want to end without noting that a lot of lawyering remains to be done and nothing is ever certain and even when it’s all but certain it’s not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.

It’s just a matter of time now. And given that it’s just a matter of time, sooner is better than later. Why make this harder than it needs to be?

A lot more court action on same sex marriage is coming

One way or another, 2014 is going to be a milestone year for marriage equality.

RedEquality

Advocates on both sides of the gay marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of a federal ban on gay marriage would create a pathway for states to act.

They were right.

In the six months since the decision, the number of states allowing gay marriage has jumped from 12 to 18, a trend that started before the high court ruling that’s been reinforced since. Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week. Both Utah’s case and another in Nevada will next be heard by federal appeals courts, putting them on the path toward the high court. Ohio’s case, which recognized same-sex death certificates, also will likely be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

[…]

More state rulings in favor of gay marriage could be in the works in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere. Utah is home to The Church of Jesus Christ of Latter-day Saints, which still teaches its members homosexuality is a sin despite a softening of their rhetoric in recent years.

“The ruling has had a symbolic impact already,” Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. “It is recognition that the nation’s attitudes, from public to legislative to judicial, are changing very rapidly in all parts of the country.”

“And the opponents, many of them, are moving on,” said William Eskridge, a professor at Yale Law School. “We are not seeing the same kind of Armageddon rhetoric we saw in the 1990s.”

A federal judge in Michigan will hear testimony from experts in February before deciding whether to throw out the state’s constitutional ban on same-sex marriage. Two federal lawsuits in Virginia, including one being led by the same legal team that challenged California’s ban, are moving forward.

Eskridge disagrees with those who say the Supreme Court won’t act, predicting justices will get involved in the gay marriage dispute in the next year or two.

Different branches of the government are acting, he said — lawmakers, state courts, and federal courts — which could convince the justices to step in.

By “state rulings” they really mean “federal district court rulings”. You can add Texas to the list, though it’s just at the injunction stage, as was Utah. You want to see Armageddon rhetoric, just wait and see what happens if Judge Orlando Garcia puts the kibosh, however temporarily, on Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment. I don’t think we’re going to be able to escape that being a campaign issue next year.

Speaking of campaign issues, Indiana may be going old school.

Dominated by Republicans and steeped in traditional values, Indiana seemed among the least likely places to become a battleground in the nation’s debate over same-sex marriage when the legislature overwhelmingly chose in 2011 to push forward a state constitutional amendment barring gay couples from marrying.

But in the two years since, the landscape has shifted as voters, lawmakers and courts began recognizing same-sex marriage in places like Maryland, Minnesota, New Jersey and New Mexico and as the United States Supreme Court declared parts of the federal Defense of Marriage Act unconstitutional. In just the past few days, a federal judge struck down a ban on same-sex marriage in Utah, home of the Mormon Church, and a federal appeals court rejected a request to halt the marriages on Tuesday. A federal judge in Ohio found that same-sex marriages should be recognized on death certificates.

So suddenly Indiana, where lawmakers in the coming weeks are expected to call for the second vote needed to put a ban before voters in the fall elections, is now in a far more tense, unpredictable and closely watched spot than anyone here had imagined — a test case in whether a state will impose new limits on same-sex marriage in this fast-moving political and legal environment.

“What happens in Indiana is critical,” said Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage. He and other opponents hope the outcome here will reveal that shifts in public sentiment over the last few years are not as widespread as some may think.

Supporters of same-sex marriage, however, are pouring money and effort into defeating the measure in Indiana, a possibility that seemed unthinkable not long ago but one that advocates now insist is conceivable. They say victory in a conservative place like Indiana would be a turning point in a fight that has largely been waged in more predictable, left-leaning states or in the courts. “That would send a clear message to opponents of marriage equality that it’s time to be done fighting this battle,” said Sarah Warbelow, state legislative director of the Human Rights Campaign.

As lawmakers prepare to return for a new legislative session in January, it is an especially awkward spot for Republicans, who dominate both chambers of the General Assembly. With an election year ahead and the risk of primaries in May, the issue is pitting socially conservative groups, who are urging a constitutional ban, against sometime allies in the state’s business community, who say a ban could cause Indiana economic harm.

Few Republicans now seem eager to talk about the issue, and some legislative aides said it was not entirely certain who would formally file the legislation in January.

Sure does suck when the wedge issue turns you into the fulcrum, doesn’t it? With all that’s happening you might think that Indiana Republicans would be wise to wait and see where the courts are going before pursuing legislation that may be pre-declared unconstitutional, but that would require their GOP primary voters to behave rationally. Good luck with that.

Another court says No to Utah

And Yes to the hundreds of couples getting married.

RedEquality

A federal appeals court ruled Tuesday that gay marriages can continue in Utah, denying a request from the state to halt same-sex weddings that have been occurring at a rapid rate since last week.

The 10th U.S. Circuit Court of Appeals’ rejection of Utah’s request for an emergency stay marks yet another legal setback for the state. The same federal judge who ruled that Utah’s same-sex marriage ban violates gay and lesbian couples’ rights previously denied the state’s request to halt the marriages.

The appeals court said in its short ruling that a decision to put gay marriage on hold was not warranted, but said it put the case on the fast track for a full appeal of the ruling.

Utah’s last chance to temporarily stop the marriages would be the U.S. Supreme Court. That’s what the UtahAttorney General’s Office is prepared to do, said spokesman Ryan Bruckman. “We’re disappointed in the ruling, but we just have to take it to the next level,” Bruckman said.

Gov. Gary Herbert’s office declined comment on the decision.

Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage, thinks Utah faces long odds to get their stay granted, considering two courts have already rejected it and marriages have been going on for days now.

“The longer this goes on, the less likely it becomes that any court is going to entertain a stay,” Tobias said.

It’s certainly possible that Utah could prevail in court later, when the 10th Circuit rules on the merits of the case. Seems increasingly unlikely that will happen, given the rulings so far and the certainty that by the time the appeal is heard it will be clear that no harm has come to anyone as a result of these nuptials, but you never know. I don’t know what the 10th Circuit’s calendar looks like, but it’s possible that by the time they have their hearing that Texas’ case could have been heard, and that there may be an injunction in place in Texas as well. I know I was dismissive of the chance that an injunction could be put in place against Texas’ anti-gay marriage law, but that was before the developments in New Mexico, Utah, and Ohio. It’s impossible to miss the pattern that’s being set, and it’s impossible to overlook the potential implications. I’m somewhat amazed that there hasn’t been more of a reaction to all this from Texas Republicans, many of whom are falling all over themselves to stand with that Duck Dynasty guy. Maybe their attention span is too small, maybe they’re in denial, or maybe they can see it coming and just don’t want to talk about it, I don’t know. I imagine we’ll hear plenty if Texas gets the same treatment from the courts that Utah has gotten.

Keep getting married, Utah

You have at least a few more days till the next court ruling.

RedEquality

A federal judge on Monday allowed gay marriage to continue in Utah, rejecting a request to put same-sex weddings on hold as the state appeals a decision that has sent couples flocking to county clerk offices for marriage licenses.

Judge Robert J. Shelby overturned Utah’s ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights. The state then asked him to put a stop to the weddings, but he rejected the request.

Shelby’s ruling is far from the end of the legal wrangling on the topic. The state quickly filed a request with the 10th U.S. Circuit Court of Appeals to put gay marriage on hold, and that court could rule as soon as Monday evening or Tuesday. The same court, in Denver, likely will hear the full appeal of the case several months from now.

In the meantime, the rush on marriage licenses continues for gay couples around Utah.

More than 300 gay couples have obtained marriage licenses since Friday in Utah’s most populous county. On Monday, an estimated 100 licenses were issued in other counties, while some clerks shut their doors as they awaited Shelby’s decision.

[…]

Even if the 10th Circuit grants a stay, the marriages licenses that already have been issued probably will remain valid, said Carl Tobias, a constitutional law professor at Virginia’s University of Richmond who has tracked legal battles for gay marriage. It’s not entirely certain, however, because Utah’s situation has unfolded differently than other states, and there’s no direct precedent, he said.

The appeals court already has rejected two previous requests from the state due to procedural issues, but it has not yet considered the case based on merits.

Who knows what will happen with the appeals court, but for now the biggest obstacle is recalcitrant county clerks.

Judge Shelby explicitly said his ruling allows all people the “fundamental right” of marriage. He said counties who don’t comply are breaking the law.

In Utah County, the clerk’s office was not issuing same-sex marriage licenses even after Shelby ruled, and they turned away at least three couples. Utah County Clerk Bryan E. Thompson told The Salt Lake Tribune he would wait to see how the 10th Circuit Court of Appeals in Denver ruled on Shelby’s decision before deciding how to proceed.

I hope they come around on their own, because the state sure isn’t going to enforce that requirement. Be that as it may, this is a joyful week for a lot of people in Utah, and I daresay a hopeful one for folks in Texas and other states like it. If it can happen in Utah, it can truly happen anywhere. Take a look at some happy couples here and let your heart grow a size or two.

By the way, Utah wasn’t the only place where the cause of marriage equality was being expanded this week. Via Freedom to Marry, a judge in Ohio has gotten in on the act, too.

A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio’s attorney general said the state will appeal.

Black cited the Supreme Court’s June decision striking down part of a federal anti-gay marriage law, saying that the lower courts are now tasked with applying that ruling.

“And the question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” Black said in reference to the year Ohio’s gay marriage ban passed. “Under the Constitution of the United States, the answer is no.”

Eighteen states and the District of Columbia allow same-sex weddings, up from six before the Supreme Court decision.

Black wrote that “once you get married lawfully in one state, another state cannot summarily take your marriage away,” saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

“When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court,” he wrote.

Black referenced Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.

Go read that Freedom to Marry for analysis of what that means. What I take from it is that it rips a pretty big hole in the state of Texas’ arguments about gay divorce. It sure feels to me like the walls are closing in on the Double Secret Illegal Anti-Gay Marriage Constitutional Amendment. I can only wonder what the reaction will be like from the state GOP when the inevitable happens.

They’ll be getting married in Utah today

For at least an hour today, county clerks in Utah will be issuing marriage licenses to same sex couples.

RedEquality

Utah Gov. Gary R. Herbert filed seeking an Emergency Motion for Temporary Stay following a federal judge’s ruling that struck down Utah’s ban on same-sex marriage, and on Sunday the United States Court of Appeals Tenth District denied the motion.

According to court documents, “The Defendants-Appellants ask this court to stay the district court’s order pending the district court’s ruling on a motion for stay pending appeal that is currently pending in that court.”

According to the documents, the filing for an Emergency Motion for Temporary Stay did not address nor satisfy the factors that must be established to be entitled to a stay pending an appeal. The denial is without prejudice if the defendants-appellants file a motion for stay pending appeal that complies with regulations.

Click here for the full document: Emergency Motion to Stay denied

U.S. District Court Judge Robert Shelby has scheduled a hearing Monday at 9 a.m. on the state’s request to halt same-sex marriages, and pro same-sex marriage groups in Utah encouraged people to take advantage of the limited window in which marriage licenses were guaranteed to be granted in several counties.

In a post on their Facebook page, Equality Utah said, “Worst case scenario we will only have 1 hour in which marriages can be performed by the respective county clerks.”

Here’s that Facebook post. If it were me and my intended, I’d seriously consider camping out the night before to make sure we were first in line. This is a big deal for two reasons. One, even if an injunction on further marriage licenses is given, the fact is that some number of couples will tie the knot while the issue is being decided. These lucky folks will get to live as legally married couples in Utah at least until the appeal is settled, if not longer than that. It will be a lot harder to take that away from them down the line, because – and this is reason #2 – the world will not have ended in the interim. Utah will continue to be Utah, life will go on, and no one will be harmed in any way by the marriages that take place today. And then in February, when the federal lawsuit in Texas has its first hearing, the plaintiffs can point to Utah and say “See? We’re just like them and we deserve the same treatment.” Even the Fifth Circuit might have a hard time coming up with a justification to maintain the harmful and discriminatory status quo. Via TPM.

If it can happen in Utah…

Wow. Just, wow.

RedEquality

A federal judge struck down Utah’s same-sex marriage ban Friday in a decision that marks a drastic shift toward gay marriage in a conservative state where the Mormon church has long been against it.

The decision set off an immediate frenzy as the clerk in the state’s most populous county began issuing marriage licenses to gay couples while state officials took steps to appeal the ruling and halt the process.

Cheers erupted as the mayor of Salt Lake City led the state’s first gay wedding ceremony in an office building about three miles from the headquarters of the Mormon church. Dozens of other couples were lined up to get marriage licenses.

Deputy Salt Lake County Clerk Dahnelle Burton-Lee said the district attorney authorized her office to begin issuing the licenses but she couldn’t immediately say how many had been issued.

Just hours earlier, U.S. District Judge Robert J. Shelby issued a 53-page ruling saying the constitutional amendment Utah voters approved in 2004 violates gay and lesbian couples’ rights to due process and equal protection under the 14th Amendment. Shelby said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.

“In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens,” Shelby wrote.

[…]

The Utah ruling comes the same week New Mexico’s highest court legalized gay marriage after declaring it unconstitutional to deny marriage licenses to same-sex couples. A new law passed in Hawaii last month now allows gay couples to marry there.

If the ruling stands, Utah would become the 18th state to allow gay marriages, said Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. That’s up from six before the U.S. Supreme Court last summer struck down part of the Defense of Marriage Act that defined marriage as between a man and a woman. The District of Columbia also allows same-sex marriage.

“The momentum we are seeing is unprecedented in any human rights struggle,” Davidson said. “To have this fast a change in the law and in public opinion, is quite remarkable.”

Between this ruling and the one in New Mexico (more on that in a minute), I’d say equality opponents in Texas now truly have something to worry about. I still don’t think the Fifth Circuit will cooperate, but I’m less certain of that than I was two days ago. One reason for that is the way the judges in these cases made their rulings. For example, the Utah judge cited Justice Scalia’s dissent in the DOMA case in support of his ruling, and though the New Mexico case was decided in state court, the judge that wrote the opinion there clearly had one eye on SCOTUS.

The “responsible procreation” argument is utter bunk.

These days, conservatives shy away from arguing that gay people make bad parents, because they definitely, unquestionably, absolutely do not. Instead, the argument has subtly shifted to a new sophism: Marriage laws are meant to encourage “responsible procreation” by opposite-sex couples so that if the woman gets pregnant, the state won’t have an orphan on its hands. The implication, of course, is that gays play no part in this schema, and so it would be absurd to allow them into the marriage club.

Wrong, says Justice Edward L. Chávez, speaking for the court—in fact, New Mexico’s own marriage law makes no mention whatsoever of procreation, exposing the argument’s gesture toward tradition as the claptrap that it is. Instead, “the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples … [and] their children.” Plus, “fertility has never been a condition of marriage,” so heterosexual gay marriage opponents clearly aren’t even playing by their own rules. Finally, Chávez drives in the knife:

[W]e fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating.

These points may seem obvious, but the “responsible procreation” argument has gained some ground since it made an appearance before the U.S. Supreme Court last March. Now a court has been fully briefed on the matter, and the verdict couldn’t be clearer: This argument is dead in the water.

The state of Utah made that “responsible procreation” argument as well, as I’m sure Texas will in February. But now there’s a lot more precedent for swatting down these hurtful, discriminatory laws down. That makes this upcoming hearing that much more important. To all the couples in Utah now getting married, congratulations and mazel tov! To everyone in Utah and elsewhere now freaking out that the end of civilization is nigh, relax. It totally isn’t, as you will soon see for yourself. It’s just more love and happiness and equality and justice, and last I checked those were all good things.

Utah to join PAC 10

In case anyone still cares. Oh, and the Big 10 is having some scheduling issues now that they have 12 members. Boy, no one could have predicted that.

I think I’ve decided that the now-misnumbered Big 10 and PAC 10 should keep their monikers, but do all of their business in base-12, so that their names become accurate. By the same token, the Bix XII should adopt the octal system. Might make for some confusing game summaries at first (“what do you mean, Smolensky rushed for AB yards?”), but we’ll get used to it in time.

Finally, 26 members of the legislative delegation from the Houston area sent a letter to Big XII Commissioner Dan Beebe and the presidents of the Texas Big XII schools advocating for UH’s inclusion. The letter, for which you can see the Beebe example here, was signed by all Harris County State Reps except for Patricia Harless, Joe Crabb, John Davis, Scott Hochberg, and Dwayne Bohac; non-Harris members Larry Taylor, Charlie Howard, Randy Weber, and John Zerwas; and Senators Rodney Ellis and Mario Gallegos.

The Lege versus the BCS

It’s always heartwarming to see the Lege pay attention to the really important stuff. Take a look at HCR35, for the purpose of “Urging the institution of a playoff system to decide the NCAA football national championship in place of the current Bowl Championship Series.” According to the text of the resolution – note that this is not a bill, it’s a resolution, for things like proclamations and honoring people and whatnot – once you get past all of the “whereas”es:

RESOLVED, That the 81st Legislature of the State of Texas hereby respectfully urge the presidents of the public universities in Texas and the Big 12 Conference commissioner to work to promote the institution of a playoff system to decide the national championship in college football in place of the current Bowl Championship Series; and, be it further

RESOLVED, That the Texas secretary of state forward official copies of this resolution to the presidents of the public universities in Texas and to the Big 12 commissioner.

Boy, that oughta frost ’em. How can they resist the might of Smoky Joe Barton, the attorney general of Utah, and now the Texas Lege? We’ll have a playoff system yet.