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Census lawsuit may proceed

Good.

A federal judge said Tuesday that there was a “strong showing of bad faith” by the Trump administration in adding a controversial question about US citizenship to the 2020 census. The judge hinted that he would allow the case to move forward over objections from the administration, and senior administration officials will be subjected to questioning under oath about why the question was added.

Judge Jesse Furman of the Southern District of New York, who was appointed by President Barack Obama, said the administration “deviated from standard operating procedure” by adding the question with no testing. Furman ruled that the plaintiffs challenging the question—including the state of New York and the American Civil Liberties Union—can depose senior officials from the Commerce Department and Justice Department as the case moves forward.

The census has not asked respondents about their citizenship status since 1950. Civil rights groups say the citizenship question will depress response rates from immigrants, imperil the accuracy of the census, and shift political power to areas with fewer immigrants. The census determines how $675 billion in federal funding is allocated, how much representation states receive, and how political districts are drawn.

Commerce Secretary Wilbur Ross, who oversees the Census Bureau, approved the citizenship question in March, saying it was needed for “more effective enforcement” of the Voting Rights Act. Ross said at the time and in subsequent testimony before Congress that he approved the question after the Justice Department requested in December 2017 that it be added.

However, Ross stated in a memo he filed to the court on June 21 that he first considered adding a citizenship question to the census after he was confirmed as commerce secretary in February 2017, months before the Justice Department requested the question. He wrote that he had approached the Justice Department about the question, not the other way around, after consulting with “other senior Administration officials” who had “previously raised” the citizenship question.

Furman cited Ross’s memo to question his truthfulness and the administration’s motives in adding the question. “It now appears these statements were potentially untrue,” Furman said of Ross’ claims that the question was added at the Justice Department’s request. “It now appears that the idea of adding a citizenship question originated with Secretary Ross and not the Department of Justice.”

See here and here for some background. The judge did subsequently allow the lawsuit to go forward, while also granting the motion for discovery. I for one can’t wait to see what bits of treasure that digs up. Time is of the essence here, so I hope there’s a speedy schedule to get us towards a resolution.

Head of “voter fraud” troll group that sued Harris County gets sued himself

Delightful.

Still the only voter ID anyone should need

A conservative activist and voter fraud alarmist is facing a federal lawsuit Thursday over dubious allegations of massive voter fraud in Virginia. A civil rights group and four Virginia voters filed a suit against J. Christian Adams and the legal outfit he runs, alleging that Adams and the group violated state and federal law when it accused thousands of Virginians, many of them eligible citizens, of voting illegally.

Adams, a former member of President Donald Trump’s voter fraud commission, is the president and general counsel of the Public Interest Legal Foundation (PILF), which in 2016 and 2017 published two reports alleging that thousands of “aliens” had committed felony voter fraud in Virginia and, in indexes to the reports, published personally identifiable information about those people. But many of Adams’ would-be criminals are in fact eligible voters, including all of the plaintiffs.

In the lawsuit, a local Virginia chapter of the League of United Latin American Citizens and four individuals allege that Adams and his legal firm violated state defamation laws, as well as federal civil rights laws that protect against voter intimidation. The lawsuit alleges that the reports Adams published are a form of voter intimidation against the people named in the report, and put them at risk by publishing their personal information alongside the allegation that they are felons.

See here for the background and here for more on the Virginia case. This guy is a professional liar whose mission is to keep people from voting by any means necessary. He needs to be beaten back at every opportunity. I wish the plaintiffs in this suit all the best.

Multiple cities and states sue over Census citizenship question

Good.

Seventeen states, the District of Columbia, and six major cities sued the Trump administration on Tuesday over the addition of a controversial new question about US citizenship to the 2020 census. This is the third major lawsuit against the administration’s action, after California and the NAACP sued last week, marking a major escalation of the legal and political battle over the census. Civil rights advocates say the question is designed to spark fear in immigrant respondents and will cause many immigrants not to be counted, diminishing the political power and financial resources of the jurisdictions where they live.

“This is a blatant effort to undermine the census and prevent the census from carrying out its Constitutional mandate,” said New York Attorney General Eric Schneiderman, who organized the multi-state lawsuit, at a press conference in lower Manhattan. New York has the third-largest immigrant population in the country, after California and Texas. More than 1 in 5 New York residents are foreign-born. “This is an effort to punish states like New York that welcome immigrants,” Schneiderman said.

The lawsuit says the new question “violates the constitutional mandate to conduct an ‘actual Enumeration’” of the country’s entire population, not just citizens, as well as a provision of the 1946 Administrative Procedure Act barring federal agencies from taking “arbitrary, capricious” actions.

The lawsuit was filed by New York, Connecticut, Delaware, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, and joined by the cities of Chicago, New York, Philadelphia, Providence, San Francisco, and Seattle. The bipartisan US Conference of Mayors, which represents the 1,400 cities with a population of 30,000 or more, also joined the suit.

[…]

Past leaders of the Census Bureau and current advisers to the bureau have also blasted the question. Six former bureau directors, who served under Republican and Democratic presidents, told Commerce Secretary Wilbur Ross in January that “an untested question on citizenship status at this late point in the decennial planning process would put the accuracy of the enumeration and success of the census in all communities at grave risk.” Members of the bureau’s Scientific Advisory Committee, who are appointed by the director, blasted the decision at a meeting of the Census Bureau last week.

“I want to say in no uncertain terms that I think this is an absolutely awful decision,” said D. Sunshine Hillygus, a professor of political science at Duke University. “I am dumbfounded that this decision is coming in at such a late date. My view is that this is going to have severe negative implications for data quality and costs.”

She began her PowerPoint presentation at census headquarters with the phrase “W.T.H.,” short for “what the hell.”

The Commerce Department, which oversees the census, said the new question was needed to better enforce the Voting Rights Act, but Vanita Gupta, the former head of the Justice Department’s Civil Rights Division under Barack Obama, told Mother Jones that was “plainly a ruse to collect that data and ultimately to sabotage the census.”

See here for some background. Even with the involvement of the US Conference of Mayors, I say every city of decent size should want to get involved, because it’s their residents who are going to be undercounted as a result of this malevolent policy, and that will cost them in terms of funding, representation, and more. This is a big, serious deal and it needs to be treated as such. Think Progress, which also looks at the effect of this policy on Texas, has more.

The sad fate of some giant Presidential heads

It is to weep.

It is a peculiar sight – Ronald Reagan has a large mark on his damaged face, George Washington is missing a piece of his nose, William Taft has a stain trailing from his eye to cheek, Millard Fillmore has a bee’s nest inside of his nose and Abraham Lincoln has a gigantic hole in the back of his head, eerily evoking his unfortunate fate.

This is just some of the damage on a few of the 43, 20ft-tall busts of former U.S. presidents that sit shoulder-to-shoulder in the most unlikely of places – a field on a farm in rural Croaker, Virginia.

It may only be two hours away from Washington DC, but it’s a world away from the nation’s capital.

Titled the Presidents’ Heads by creator David Adickes, the larger-than-life sculptures have become an eerie sight on businessman Howard Hankins property in Croaker.

The derelict statues that weigh up to 20,000 lbs each were once part of the now-failed Presidents’ Park in Williamsburg, Virginia.

The park was a collaboration between Adickes and landowner Everette ‘Haley’ Newman. They pair opened it in 2004 with hopes that it would attract thousands of visitors yearly after they invested $10million of their own money for it.

[…]

But it did not attract the hordes of visitors they wished for partly due to its poor location behind a motel off I-64 and being located far from Colonial Williamsburg.

The Presidents’ Park shut down in 2010 with the land being sold off. Newman enlisted the help of Hankins to have the statues, worth an estimated $6.5 million in total according to Adickes, demolished.

‘When they asked me to get rid of them, I immediately starting thinking of how I could move them without destroying them,’ Hankins, who had helped to construct the Presidents Park, told Richmond.com.

Instead of demolishing them, Hankins paid $50,000 to move the busts to his 400-acre pastoral farm in Croaker for safe-keeping once he figured out what to do with them.

In 2016, Hankins came up with the idea to create his own Presidential Historic Park featuring the busts along with other attractions.

We’ve heard about this before, and it’s still sad. Long story with lots of pictures somewhat shorter, the Hankins plan didn’t work out, and the fabled Giant Presidential Heads have fallen into disrepair. The pictures are actually kind of disturbing, and more than a little sad for a dedicated fanboy like me. Demolishing them would have been a kinder fate. I suppose they could still have use as props in a dystopian future TV show or movie – I bet the Walking Dead folks could work them in – but really, they deserved better. At least there are some others that are still out there, doing their thing in a more dignified fashion.

From Alabama to Texas

Here are two numbers from Sen.-elect Doug Jones’ victory over garbage human Roy Moore: 92.0% and 49.3%. Jones received 92.0% of the total vote that Hillary Clinton received in Alabama in 2016. Moore received 49.3% of Donald Trump’s vote total. Put that together and you see what you get.

Now of course Alabama was an extreme case, and there were some number of Republicans who voted for Doug Jones. We can’t really say how many since there weren’t ant other elections on that ballot for comparison, but it doesn’t matter. What does matter is that in Alabama, like in Virginia and New Jersey and multiple special elections around the country, Democratic turnout has been stronger than Republican turnout. In some places that was enough to push Democrats to victory, in others it merely reduced the gap. But it’s there, and it’s been there all year. Remember all those special Congressional elections, where Dems came close but couldn’t quite overcome the large Republican advantage in each? Here’s how they look by that metric of comparing candidates’ results in 2017 to Hillary Clinton and Donald Trump in 2016. All Congressional data comes from Daily Kos.

Kansas 04:

James Thompson, 62.2% of Clinton
Ron Estes, 38.4% of Trump

Montana at large:

Rob Quist, 93.7% of Clinton
Greg Gianforte, 67.9% of Trump

Georgia 06 runoff:

Jon Ossoff, 80.5% of Clinton
Karen Handel, 84.1% of Trump

South Carolina 05:

Archie Parnell, 35.4% of Clinton
Ralph Norman, 25.6% of Trump

Utah 03:

Kathie Allen, 43.7% of Clinton
John Curtis, 45.7% of Trump

Not every election had this characteristic – GA-06 was an outlier because Republicans were able to get their voters out, while I don’t think anyone outside Utah even noticed the UT-03 race – but most of them were, and the same was true in non-Congressional elections, too. This dKos spreadsheet has tracked every election since November of 2016, and documented the partisan shift in each, with a bonus comparison to 2012 as well. The overall trend is clear.

My point for bringing all this up is simply this: The national environment, and the resulting effect on enthusiasm levels for Democrats and Republicans, is and will be a factor in the 2018 election in Texas, just as it was in 2010 and 2014 to Republicans’ benefit and 2006 and 2008 to Democrats’. Alabama may be the most shocking example of this – well, the most shocking example since last month’s elections in Virginia, anyway – yet it seems to be discounted in the discussion of how the 2018 elections may play out here. It’s easy to talk about the lack of “name” candidates at the statewide level for Dems, and the amount of money that people like Greg Abbott have, and so on and so forth, but the bottom line is that base turnout level has been the Dems’ biggest problem in Texas, going back to 2002. I’ve harped on this multiple times, as you know. If that problem is solved, or at least mitigated, in 2018, in part by Democratic motivation to repudiate Trump and in part by a conscious decision noted by RG Ratcliffe to go bottom-up rather than top-down, then that’s a big step in the right direction. Yes, yes, yes, all the usual caveats apply. All I’m saying is that the national mood affects Texas, and right now that is working hard in Democrats’ favor. We all need to keep that in mind.

2017 results: National

Here’s a pretty good indicator of what kind of day it was yesterday for Democrats:

Big win in the Virginia Governor’s race (and the other VA statewide races), despite a couple metric tons of pearls being clutched going into Tuesday. A minimum of 14 seats picked up in the VA House of Delegates, moving that chamber from 66-34 GOP to no more than 52-48, with chances for further gains. Oh, and the single best election result of the day:

Democrat Danica Roem will become the first openly transgender person to be elected and serve as a state legislator, after ousting one of the country’s most anti-LGBT lawmakers in a closely watched Virginia House of Delegates race Tuesday. Her opponent, GOP Delegate Bob Marshall, has served in the state legislature for 26 years. He’s known for writing Virginia’s constitutional amendment banning gay marriage. This year he introduced a “bathroom bill”—intended to prohibit transgender individuals from using the restroom matching their gender identity; his own party killed that proposal in committee.

Roem isn’t the first transgender candidate to win a legislative race, but she will be the first to actually take office. Her campaign focused on issues like fixing the “miserable” traffic on local highways, increasing teacher pay, and bringing jobs to the region. When I asked her last week about the historic nature of the race, Roem said that the truly historic development was that Route 28 will finally be fixed.

“Tonight voters chose a smart, solutions-oriented trans leader over a divisive anti-LGBTQ demagogue—sending a powerful message to anti-trans legislators all across the nation,” Aisha C. Moodie-Mills, President & CEO of the Victory Fund, an organization dedicated to electing LGBT lawmakers that supported Roem’s campaign, said in a statement. “Danica defeated ‘Bigot Bob’ Marshall not because she is transgender, but because she presented a positive vision for her constituents that will improve their lives.”

Virginia isn’t Texas, and that was a district that Hillary Clinton carried in 2016, but I have to think that a few anti-trans Republicans, maybe even here in this state, will take a look at that result and have a second thought or two. We need a whole lot more people to lose elections over being anti-LGBT.

Meanwhile, New Jersey elected a Democratic Governor and made gains in that state’s legislature (both chambers of which Dems already controlled) as well. The state of Maine voted to expand Medicaid over the strenuous objections of their troglodyte governor. And there’s this:

Pushback against Donald Trump helped lift Democrats to governorships in the two highest-profile U.S. elections since the 2016 presidential contest. In Virginia, voters by a 2-1 margin said they were casting their ballot to show opposition to Trump rather than support for him. In New Jersey the margin was nearly 3-1. And Trump’s weak approval rating among voters in Virginia, 40 percent, was weaker still in New Jersey, a dismal 34 percent.

Relatedly, a surge in turnout by politically liberal voters boosted Virginia Lt. Gov. Ralph Northam, as did a broad advantage on health care, which voters by a wide margin identified as the top issue in the vote.

So, maybe being against Trump can be a winner? Just a thought. Yes, of course, you have to stand for something, and the Democratic brand needs some work on that. But Dems are really mad about what happened last year, and that was clearly enough to help push a bunch of them to the polls. I can’t wait to see all the hot takes on this one.

Tough times for Presidential heads

This makes me sad.

As polarized politics continue to rage in the Beltway, rural Virginia still has a place where Democrats, Republicans — and some Whigs — stand shoulder to shoulder.

The busts of the first 43 U.S. presidents, each standing at least 15 feet tall and weighing nearly 10 tons, are huddled on the property of Howard Hankins, a local developer who saved them from destruction.

“They all listen to me,” Hankins said of the past commanders-in-chief.

The concrete busts are the remnants of the now-defunct Presidents Park in Williamsburg, Virginia. The 10-acre, $10 million open-air museum, citing a lack of interest from visitors, closed in 2010.

When the park opened in 2004, it was apparently too hidden from passersby, partially obscured by a Days Inn hotel. It appeared the park’s designers failed to consider a vital real estate mantra: location, location, location.

Seeing value in the presidential busts, Hankins said he stepped in and paid about $50,000 to move them to his property 10 miles away.

“The eyes look like they’re staring at you, just gazing at you. It’s incredible how big they are and lifelike,” he said.

First, Hankins had to crack the back of the presidents’ hollow heads to attach a chain that linked the steel frames inside to a crane. Then, each bust was jostled loose from their spot in the park.

Originally, the busts were assembled from two pieces, welded at the middle of their necks. This meant many of the busts suffered neck breaks during the move, as the head started to separate from the shoulders.

Abraham Lincoln’s head suffered the worst damage. The chain attached to it snapped, Hankins said, and even though tires were laid out to cushion any impact, Lincoln was dropped on the back of his head.

The hole in Lincoln’s head is not meant as an allusion.

In all, Hankins said moving the busts to his 600-acre farm required several days of work.

Now, all 43 presidential busts reside on Hankin’s property in various states of ruin. The once-pristine, white paint coatings have lost out to the elements, cracked and ripped off from wind, sun exposure and rain.

For those of us who are fans of David Adickes’ work, as you know I am, the pictures in that story are especially heartbreaking. As noted, these busts were shipped out to Williamsburg back in 2004, with a second set going to a Presidential park near Mount Rushmore and a third set heading to Pearland. Far as I know, those two sets are doing all right, though maybe we ought to do a wellness check on them. The good news here is that the Virginia heads ought to be fixable, and the guy who bought them cares for them and is trying to do right by them. Best of luck to you, Howard Hankins. Many thanks to Linkmeister for sending me this story.

SCOTUS blocks order on transgender bathroom access for students

For now.

RedEquality

The Supreme Court on Wednesday temporarily blocked a court order that had allowed a transgender boy to use the boys’ bathroom in a Virginia high school.

The vote was 5 to 3, with Justice Stephen G. Breyer joining the court’s more conservative members “as a courtesy.” He said that this would preserve the status quo until the court decided whether to hear the case. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented.

The court’s order has no effect on any other case.

[…]

The case in the Supreme Court concerns Gavin Grimm, who was born female but identifies as a male and will soon start his senior year at Gloucester High School in southeastern Virginia. For a time, school administrators allowed Mr. Grimm to use the boys’ bathroom, but the local school board adopted a policy that required students to use the bathrooms and locker rooms for their “corresponding biological genders.” The board added that “students with gender identity issues” would be allowed to use private bathrooms.

Mr. Grimm sued, and a divided panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled the policy unlawful. A trial judge then ordered school officials to let Mr. Grimm use the boys’ bathroom.

The school board has said that it will file a petition in late August asking the Supreme Court to hear its appeal. In the meantime, the board submitted an emergency application that asked the justices to let school officials continue to bar Mr. Grimm from the boys’ bathroom.

See here for some background. Think Progress analyzes what this means.

Breyer, in other words, believed that this stay should be denied. Yet he provided the key vote to grant it, nonetheless, as a “courtesy” to his conservative colleagues. Such courtesy votes are an ordinary practice in death penalty cases, when four justices wish to hear a case but a fifth vote is necessary to stay the execution — lest the inmate be executed before their case receives full review. But Justice Breyer’s decision to grant such a “courtesy” in a case such as this one is more unusual.

Unlike in death penalty cases, no one will die and the case will not become moot simply because a trans student is granted a measure of civil rights.

In any event, Breyer’s decision to grant the stay allows the school district to continue its policy at least until the Supreme Court returns to work at the end of September. The content of his concurring opinion, however, suggests that Breyer will ultimately join the Court’s three women in affirming the Fourth Circuit’s decision, should the Court decide to hear this case.

Beyond the temporary implications of Breyer’s vote, however, there are also two reasons why liberals should be concerned about the order in this case. The first is that Breyer’s willingness to grant a courtesy stay in this case hints that he may be willing to do so in others, most notably in voting rights cases where supporters of the right to vote are counting on the fact that conservatives no longer enjoy a majority on the Supreme Court to protect lower court decisions halting voter suppression laws.

Additionally, it is worth noting that Justice Anthony Kennedy, a conservative who typically favors gay rights, joined his fellow conservatives in voting against this trans student. That suggests that Kennedy’s sympathy for victims of anti-gay discrimination does not extend to victims of anti-trans discrimination.

In this case, the Court is in recess, and the school board’s petition for review is not due until August 29. If they then decline to take up the case, the lower court’s ruling is restored, and if they do take it up it will remain on hold until they rule on the merits. We’ll know soon enough. SCOTUSBlog and Daily Kos have more.

First potty case reaches SCOTUS

Here we go.

RedEquality

The legal fight over transgender bathroom rights reached the U.S. Supreme Court for the first time on Wednesday as a Virginia county school board sought to block an order that lets a student who was born a girl but now identifies as male use the boys’ bathroom.

Transgender rights have become an increasing divisive issue in the United States, and the use of public bathrooms has been a key part of the controversy.

The Gloucester County School Board filed an emergency application with the Supreme Court in a bid to prevent high school student Gavin Grimm, 17, from using the boys’ bathroom when school resumes in September while litigation in the case continues.

The American Civil Liberties Union sued on behalf of Grimm to challenge the school board’s bathroom policy, which requires transgender students to use alternative restroom facilities.

A federal appeals court on Tuesday refused to put on hold a district court’s injunction favoring Grimm.

The school board’s application was directed to Chief Justice John Roberts, who has responsibility for emergency actions that arise from the regional federal appeals court that covers Virginia. Roberts could act alone or refer the matter to all eight justices. Five votes are need to grant a stay application.

Getting five votes for that would mean peeling off one of the liberal Justices, so I certainly hope that isn’t in the cards. The original lawsuit has not gone to trial yet, this is just about the district court judge’s injunction blocking the school board from implementing its policy requiring transgender students to use separate facilities. This is a big test of which way the winds may be blowing on this issue at SCOTUS, and may have an effect on the lawsuit against North Carolina’s HB2 and possibly the Paxton potty lawsuits as well. Politico has more.

Federal appeals court sides with transgender teen in bathroom case

This could be big.

A federal appeals court in Richmond has sided with a transgender high school student, saying that he can proceed with his lawsuit arguing that his school board’s decision to ban him from the boys’ bathroom is discriminatory.

In backing high school junior Gavin Grimm, the U.S. Court of Appeals for the 4th Circuit deferred to the U.S. Education Department’s interpretation of policies that give transgender students access to the bathrooms that match their gender identities rather than their biological sex. The federal department has said that denying transgender students access to the school bathrooms of their choice is a violation of Title IX, which prohibits gender discrimination at schools that receive federal funding.

“It’s a complete vindication for the education department’s interpretation of Title IX,” said Joshua Block, an attorney with the American Civil Liberties Union who represents Grimm.

In a 2-to-1 decision, the 4th Circuit reversed a lower court ruling, saying that court had used the wrong legal standard in denying the student a preliminary injunction that would have allowed him to use the boys’ bathroom at his high school in Gloucester County, Va. Judge Henry Floyd, who wrote the majority opinion, also ruled that the boy’s discrimination lawsuit could move forward. The appeals court remanded the case to the lower court to be reheard.

The 4th Circuit is the highest court to weigh in on the question of whether bathroom restrictions constitute sex discrimination, and the decision could have widespread implications on how the courts interpret the issue as civil rights activists and local politicians battle over school bathrooms.

“The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity,” the court wrote.

[…]

The decision’s legal implications are far broader than just Grimm’s case, as it could shape other court battles, including one in North Carolina, where a transgender university student and employee already have sued to overturn the new law there. Other judges outside the 4th Circuit, which includes North Carolina, could look to the court’s ruling in future legal fights because it is the highest court so far to weigh in on the legality of bathroom restrictions for transgender students.

The Obama administration has taken the position that such restrictions for students are a violation of Title IX, and officials in Washington have warned school districts that they risk losing federal funding if they fail to accommodate transgender students. Following a civil rights complaint, the U.S. Education Department found that an Illinois school district violated Title IX when it barred a transgender girl from a girls’ locker room.

But lower-court rulings have gone against the Obama administration’s position, including in Grimm’s case, when a district judge ruled that Title IX protects students from discrimination based on biological sex, not gender identity.

There are a lot of caveats to this story, beginning with this:

Judge Floyd’s opinion does contain some language that could create trouble for trans equality in the future, especially if a new president who opposes LGBT rights is elected. Though the Obama administration reads the regulation at issue in this case in a way that promotes trans rights, the regulation itself, Floyd writes, “is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms.” Thus, his opinion concludes that “the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.”

For the time being, this conclusion that the regulation is ambiguous is good news for trans individuals seeking access to the appropriate restroom, because Supreme Court precedents also call on federal courts to defer to agencies in cases such as this one. As Floyd writes, the Supreme Court’s decision in Auer v. Robbins “requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.” Nevertheless, a new administration could rewrite the underlying regulation, if it chose to, and Floyd’s opinion does little to prevent such a rewrite from relegating trans students to a bathroom that does not correspond with their gender identity.

So long as Barack Obama — or a similarly-minded president — sits in the White House, however, Judge Floyd’s reasoning will protect trans students who are impacted by discriminatory policies governing which bathroom they may use. Floyd’s opinion was joined by Judge Andre Davis, also an Obama appointee. Judge Paul Niemeyer, a Bush I appointee, dissented from the relevant parts of Floyd’s opinion.

It’s one appellate court, and this ruling – which sent the original lawsuit back to district court – only affects states in the Fourth Circuit. Other appeals courts may rule differently, and of course this will eventually end up before SCOTUS, where who knows what will happen. So the future and the timeline are both uncertain, but the direction is right. If it acts as a deterrent to even one city or state that contemplates a similar bathroom ordinance or law, so much the better. Daily Kos has more.

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.

SCOTUS halts Virginia same-sex marriages for now

Everyone’s waiting for them to tackle the bigger question.

RedEquality

The Supreme Court on Wednesday stopped Virginia officials from issuing marriage licenses to same-sex couples, putting on hold a lower court ruling that said the unions could start on Thursday.

The court stayed a decision by a panel of the U.S. Court of Appeals for the 4th Circuit, which on July 28 agreed with a district judge’s ruling that Virginia’s ban is unconstitutional. The same panel last week declined to delay its ruling.

But the Supreme Court stepped in after both defenders of the law and Virginia Attorney General Mark R. Herring (D) asked for a stay. Herring believes the law is unconstitutional and joined those challenging it, but said it would be disruptive to allow marriages to begin before the Supreme Court decided the ultimate question of whether state bans violate the U.S. Constitution.

Both challengers of the ban and supporters of the voter-approved measures restricting marriage to a man and a woman have asked the court to use Virginia as a test case to decide the issue. But the justices’ order gave no indication that would happen.

[…]

Wednesday’s stay was not surprising. The justice already had taken similar action in the Utah case, after judges found that state’s ban unconstitutional and refused to issue a stay.

And the Supreme Court later put on hold a judge’s order that the state must recognize the 1,000 or so unions that took place between the decision and the justices’ ruling that the marriages should stop.

The action indicates that the high court wants more lower courts to weigh in instead of giving what might be construed as implied approval of an unbroken string of federal court decisions striking down state bans on same-sex marriages.

The Sixth Circuit is on the clock right now, with others to follow, including (eventually) the Fifth Circuit. SCOTUS should have no shortage of appellate opinions to consider by the end of the year or so.

Fourth Circuit Court of Appeals upholds marriage equality

That’s two federal appeals courts, to go along with however many federal district courts and state courts.

RedEquality

Virginia’s same-sex marriage ban was ruled unconstitutional on Monday in the first such decision by a federal appellate court in the South.

“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,” Judge Henry F. Floyd wrote.

The 2-1 ruling applies throughout the circuit that also includes West Virginia, Maryland, and the Carolinas, where the attorneys general split Monday on what they’ll do next.

Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Floyd said such measures “impermissibly infringe on its citizens’ fundamental right to marry.”

The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states’ rights that have long held sway.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.

The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.

As we know, the Fifth Circuit is still waiting on Greg Abbott to get his act together. For all we know, we could have several more affirmations before they get around to it.

North Carolina’s top lawman, Roy Cooper, quickly announced that he’ll stop defending his state’s ban, saying it is “time to stop making arguments we will lose.” But a spokesman said South Carolina’s attorney general, Alan Wilson, sees no need to change course.

Maryland already allows same-sex marriages. West Virginia Attorney General Patrick Morrisey, for his part, said he’s reviewing the decision and won’t comment until it’s final.

The ruling came as Colorado’s attorney general, John Suthers, asked his state Supreme Court Monday to stop county clerks from issuing licenses to gay and lesbian couples. But North Carolina’s Cooper said his fellow attorneys general should give up the fight.

“In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable,” Cooper said in a statement. “All the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.”

Along those lines, here’s the latest missive from Equality Texas.

Despite prearrangement plans made last week, Attorney General Greg Abbott’s office this morning refused to accept over 5,200 petitions asking him to stop defending Texas’ unconstitutional restrictions on marriage.

Equality Texas and several same-sex couples and their families had planned to deliver over 5,200 petitions to Attorney General Greg Abbott urging that he and Governor Rick Perry drop their defense of the state’s hurtful and discriminatory ban on marriage for same-sex couples. Despite the plans prearranged last week in which a staff member would meet us in the lobby and take possession of the petitions, the Attorney General’s office said they would only accept the petitions if they were mailed via an acceptable ground carrier.

Not to be deterred, the families trucked the wagon down the street to a nearby UPS Store and the petitions will be delivered to the Attorney General’s office on Tuesday.

That would be today. I doubt it will have any effect, of course. Abbott may well still depend on the suckitude of the Fifth Circuit for a favorable ruling, he can’t cross his wingnut supporters, and not to put too fine a point on it, but he himself is firmly against equality. It would be nice to imagine otherwise, and it’s certainly worthwhile to put the pressure on him, but let’s keep this in perspective. TPM, dKos, and Texas Leftist have more.

Add Virginia to the list

The list of states whose law banning same sex marriage has been struck down.

RedEquality

A federal judge ruled Thursday that Virginia’s ban on same-sex marriage is unconstitutional, making it the first state in the South to have its voter-approved prohibition overturned.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia will still not be able to marry until the case is ultimately resolved. Both sides believe the case won’t be settled until the Supreme Court decides to hear it or one like it.

[…]

The Virginia Attorney General’s Office took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.

“The court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family,” Wright Allen wrote.

Wright Allen’s stay was requested by the Virginia Attorney General’s Office in order to avoid a situation similar to what happened in Utah after a federal judge declared that state’s ban on gay marriages unconstitutional.

[…]

The Virginia case centered on a gay Norfolk couple who were denied a marriage license by the Norfolk Circuit Court in July, shortly after the Supreme Court struck down the federal Defense of Marriage Act. A Chesterfield County couple who married in California and are raising a teenage daughter also later joined the lawsuit, seeking to have their marriage recognized in Virginia. The attorneys representing the plaintiffs are the same ones who successfully challenged California’s voter-approved ban on gay marriages in court.

In her ruling, Wright Allen said the lesbian couple “suffer humiliation and discriminatory treatment on the basis of their sexual orientation.”

“This stigmatic harm flows directly from current state law.”

You can see a copy of Judge Wright Allen’s ruling here, and a press release from AFER (the American Federation for Equal Rights), who represented the plaintiffs, here. This ruling comes on the heels of the ruling in Kentucky and the hearing in Texas, for which we are still awaiting a ruling. Don’t make us wait too long for that, Judge Garcia.

In the meantime over in Nevada, where the AG and Governor recently announced they would drop their defense of that state’s anti-same sex marriage law, there was an admirably bipartisan rally in favor of changing that state’s law.

Several gay couples helped a coalition of advocacy groups in Nevada put a face on what they called marriage equality on Thursday, launching a push to get the Legislature in 2015 and voters in 2016 to change the state constitution to allow same-sex unions.

“It really isn’t complicated. Love is love,” said Vivian Wright-Bolton, a Las Vegas language translation businesswoman, mother and committed partner in a same-sex relationship.

[…]

The American Civil Liberties Union of Nevada hosted the events for a campaign they called “Freedom Nevada,” along with the Progressive Leadership Alliance of Nevada and Human Rights Campaign nonprofits, and the Freedom to Marry Inc. lobbying group.

ACLU Executive Director Tod Story said the aim was to begin sharing real experiences of loving gay and lesbian couples “and show why marriage matters.”

Jeff Garofalo, a lawyer and self-described conservative Republican, was one of 17 supporters during the news conference at the Grant Sawyer state office building in Las Vegas.

Some held signs, in English and Spanish, calling for same-sex marriage rights.

Garofalo pointed to what he called a varied “checkerboard of rights” from state to state, and called marriage a basic freedom.

“As a matter of policy, long-term committed relationships should be encouraged,” he said.

[…]

Reno Mayor Bob Cashell said at a news conference at the Trinity Church parish that tourism could benefit from support of gay marriage.

“To be competitive we need to continue to welcome a diversity of business to our great state,” said Cashell, a Republican.

“For somebody who has been married 49 years,” he added, “I can’t imagine someone telling me I couldn’t marry the person I love.”

Wouldn’t it be nice to hear a few prominent Republicans in this state adopt that kind of language? Instead, we have Ted Cruz. Well, if they won’t join us, we’ll have to beat them. Daily Kos has 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.

Next stop, Virginia

More lawsuits coming on same sex marriage.

RedEquality

Almost overnight, Virginia has emerged as a critical state in the nationwide fight to grant gay men and women the right to wed.

This purple state was once perceived as unfriendly and even bordering on hostile to gay rights. That’s changed after a seismic political shift in the top three elected offices, from conservative Republicans to liberal Democrats who support gay marriage.

Two federal lawsuits challenging the state’s constitutional ban on gay marriage are moving forward, and a hearing on one of the cases is scheduled for Jan. 30.

Along with the recent court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma, gay rights advocates are heartened by the new mood in Virginia.

[…]

One lawsuit, filed in U.S. District Court in Harrisonburg, involves two couples from the Shenandoah Valley who claim the state’s ban on gay marriage violates the Constitution’s equal protection and due process clauses. The American Civil Liberties Union and Lambda Legal are representing the plaintiffs.

Camilla Taylor, marriage project director for Lambda Legal, said Virginia’s “intriguing” history on marriage rights played a role in filing the challenge here. A 1967 Supreme Court decision involving a Virginia couple invalidated laws on miscegenation, or interracial marriage.

The case involved Mildred and Richard Loving. The interracial couple had been living in Virginia when police raided their home in 1958 and charged them with violating the state’s Racial Integrity law. They had been married in Washington, D.C.

The Lovings were convicted before ultimately prevailing before the Supreme Court.

“The narrative in Virginia of how marriage plays into Virginia history, why the state was so important nationally for our struggle, is a very significant one,” Taylor said.

The other lawsuit was filed in U.S. District Court in Norfolk on similar constitutional claims. The legal costs in that case are being paid for by the American Foundation for Equal Rights, which was behind the effort to overturn California’s gay marriage ban.

David Boies and Theodore B. Olson, the high-profile legal tandem that brought down California’s prohibition on same-sex marriage, lead the legal team in that challenge. Both cited Virginia’s history when they announced their challenge.

Olson also cited Loving v. Virginia in his comments on the case. These lawsuits take place against a backdrop not just of recent wins in court in Utah and Oklahoma, but also of the Democratic sweep in the November 2013 elections. New Attorney General Marc Herring was vocal on the campaign trail in his support of marriage equality, and the job of defending Virginia’s laws now fall to him. That’ll be one thing to watch. As has been the case nationally, opinions towards marriage equality have shifted considerably in Virginia, with a majority now in support. Texas will be up next after Virginia, so the news isn’t going to stop or even slow down any time soon.

Federal judge denies Abbott motion to consolidate same sex marriage lawsuits

From Lone Star Q:

RedEquality

A key hearing in a federal lawsuit challenging Texas’ same-sex marriage bans will go forward next month in San Antonio.

U.S. District Judge Orlando L. Garcia, of the Western District of Texas, on Wednesday rejected Texas Attorney General Greg Abbott’s latest effort to transfer the lawsuit from San Antonio to Austin.

Garcia cited key differences between the San Antonio lawsuit, known as DeLeon v. Perry, and two other lawsuits challenging the marriage bans that are pending before U.S. District Judge Sam Sparks in Austin. Garcia’s decision to deny Abbott’s motion means a hearing in DeLeon v. Perry will take place as scheduled in February.

“The Court finds that while both lawsuits filed in the Austin court share a common issue with the present lawsuit in that all Plaintiffs challenge he constitutionality of Defendants’ refusal to let them marry their same-sex partners, the three lawsuits differ in important respects,” Garcia wrote.

That hearing will be on February 12. Previously, Abbott had petitioned Judge Sparks to consolidate the lawsuits, which do have some key differences, but Judge Sparks denied the request. Neel McLane, the attorney for the San Antonio plaintiffs, thinks Abbott has been forum shopping.

U.S. District Judge Orlando L. Garcia, who presides over the Western District of Texas’ San Antonio district, is a President Bill Clinton appointee. Garcia also happens to be the brother-in-law of Sen. Leticia Van de Putte, a Democrat and marriage-equality supporter who’s running for lieutenant governor in 2014. Legal experts say they believe there’s a good chance Garcia will rule in favor of marriage equality in DeLeon v. Perry, a lawsuit filed in his court in October alleging Texas’ marriage bans are unconstitutional.

[…]

Lane said Abbott’s office wants the cases before Sparks, who gave preliminary indications at [a hearing on January 9] that it won’t be easy to convince him to strike down the state’s marriage amendment.

“He [Sparks] did suggest it was going to be a difficult showing to make,” Lane said.

Of course, from there it would be appealed to the Fifth Circuit, where good things go to die. But it would still be a big step forward.

The state of Texas is sure to fight this every step of the way. At least, that would be the case as long as there is a fanatical enemy of marriage equality infesting the Attorney General’s office. If a proponent of marriage equality were to be elected, we might see what Virginia is seeing, where its newly-elected AG is declining to defend that state’s ban on same sex marriage.

Virginia’s new attorney general has decided to switch sides in an important case that is challenging the state’s constitutional ban on gay marriage.

In an interview with Morning Edition’s Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state’s ban on same-sex marriages.

“As attorney general, I cannot and will not defend laws that violate Virginians’ rights,” Herring said. “The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”

Herring was sworn in just days ago after a razor-thin win in November, an election that marked big political change in the state and also ushered in Democrat Terry McAuliffe to the governor’s mansion. Herring is taking over for Ken Cuccinelli, a Republican who ran and lost a bid for governor on a Tea Party platform and was a staunch defender of the gay-marriage ban.

Herring said as he came into office, he asked his staff to review Bostic v. Rainey and, after careful consideration, he came to the conclusion that the ban violates the Equal Protection Clause of the 14th Amendment of the Constitution.

[…]

Herring’s solicitor general will tell a federal judge in Norfolk next week that Virginia is joining the plaintiffs in the case, that the state agrees a ban on gay marriage denies some couples in the state what the Supreme Court has called a fundamental right.

Herring said he’s doing it for Virginians. That’s when Steve reminded him that the amendment to Virginia’s Constitution defining marriage as only between a man and woman was approved by 57 percent of voters in 2006.

Herring said that his job is to defend laws that are constitutional. This one, he said, isn’t. Also, Herring added, he wants his state to be on the right side of history.

“There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law,” Herring said. “And as attorney general, I’m going to make sure that the [people] presenting the state’s legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law.”

Consider that a reason to vote for Sam Houston, if you needed one. Herring is not the first AG to reach this conclusion.

It is not the first time an attorney general has decided to stop defending their state’s gay marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year that she would stop defending that state’s gay marriage ban, also calling it unconstitutional. An outside law firm was hired to represent the state in a lawsuit over the ban.

And before that, the state of California declined to defend Prop 8, and the federal government declined to defend DOMA. It’s one thing to be dealt a losing hand, it’s another to be dealt a hand you don’t believe should be played at all. The fall of DOMA, the recent court rulings, and the massive shift in public opinion give plenty of cover for these decisions. And as Dave Weigel points out, it’s not like this is a bedrock principle that’s at stake here.

Virginia’s constitutional definition of marriage is not some sacred script handed down from Thomas Jefferson to Patrick Henry to (still sounds weird) Terry McAuliffe. It’s actually younger than the iPod. In 2006, 57 percent of Virginia voters approved the Marshall-Newman Amendment, adding the definition to their Constitution. Since then, lots of Virginians have, like Herring, changed their minds. As of six months ago, only 43 percent of Virginians opposed gay marriage — a 14-point swing.

So Virginia’s one of those states that’s probably ready to wave in gay marriages, but can’t, because an older and more conservative electorate locked and bolted the door. Back in 2006, this was seen as a boon for Republicans. And now it’s left Republicans defending a pretty unpopular position.

Texas passed its amendment in 2005, still years after the iPod hit the scene, though our history of banning gay marriage does go back to the pre-iPod era. The point about locking it in via the Constitution, which I’ve made before, is why this will need to be resolved by the courts. Daily Kos has more.

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.

Who cares about women, anyway?

The state of Texas certainly doesn’t.

If there was any hope that the state was seeking a compromise with the federal government over Texas’ Women’s Health Program, it’s fading fast. At the direction of lawmakers and Texas Attorney General Greg Abbott, the Texas Health and Human Services commissioner signed a rule on Thursday that formally bans Planned Parenthood clinics and other “affiliates of abortion providers” from participating in the program — something the Obama administration has said is a deal-breaker for the nearly $40 million-per-year state-federal Medicaid program.

“The Obama administration is trying to force Texas to violate our own state laws or they will end a program that provides preventative health care to more than 100,000 Texas women,” said Allison Castle, a spokeswoman for Gov. Rick Perry. “This boils down to the rule of law — which the state of Texas respects and the Obama administration does not.

The rule, signed by Commissioner Tom Suehs on Thursday, takes effect March 14. Unless some last-minute agreement is brokered, the program, which receives $9 in federal funds for every $1 in state funds, will be either phased out or cut off by the end of March. At least 130,000 poor Texas women will lose access to cancer screenings, well-woman exams and contraception.

“No one’s politics should interfere with a woman’s access to health care,” said Planned Parenthood Gulf Coast President and CEO Peter J. Durkin. “It is shameful that Governor Perry and Commissioner Suehs continue to politicize lifesaving breast cancer screenings and birth control access for low-income women.”

Republican lawmakers worked overtime last legislative session to design language that would keep any Planned Parenthood-affiliated clinics from receiving state family planning and women’s health dollars, despite the fact that taxpayer-funded clinics may not perform abortions. They got the backing of Abbott, who said their efforts were legal, and gave the state’s health commissioner the go-ahead to implement the new language.

But when Texas was faced with renewing the Women’s Health Program this year, officials with the U.S. Department of Health and Human Services said the state’s plans violated the Social Security Act. They gave the program a three-month extension, but said they had no intention of renewing if Planned Parenthood, which provides 44 percent of the program’s services, was blacklisted.

The stalemate appears unbreakable — Republican lawmakers have made clear they’d rather forgo the program and the federal money than allow Planned Parenthood to participate.

I don’t know how much more evidence you need to conclude that the state’s jihad against Planned Parenthood is about much more than abortion. It’s rich to see Perry and Abbott try to direct what the feds can do with their money, since they get their noses so far out of joint when it’s the other way around. Ironically, this happened on the same day that the state joined a lawsuit challenging the rule that would require all employers to include coverage for contraceptives in employees’ health care benefits. That charge is being led by the Catholic bishops, all of whom as far as I could tell were silent on the prospect of 130,000 women losing access to health care in Texas. As State Rep. Garnet Coleman points out, nearly half of all births in Texas are paid for with Medicaid. What will happen to these women and their babies? The state of Texas and the Catholic bishops don’t care. They have an ideology to pursue.

In related news, a number of people suddenly noticed last week that Texas’ sonogram law is pretty much the same as the one in Virginia that got derailed after drawing national attention. Texas’ law, on the other hand, got little to no national notice despite fierce resistance here from those who saw this law as the degradation and humiliation of women that it is. We can stare at our navels all day trying to figure out why that is, but it’s really not so hard to understand. It’s about winning elections. Until Democrats start winning more of them, and in particular until they win a high profile one because of an issue like this, this is what we’re going to get. As with every other issue we talk about here, nothing changes until the people we elect to our government change. Neil, Rachel, and Burka have more. Be sure to read through the comments for a pained defense of his legislation by Sen. Dan Patrick and some good responses to him.

A little schadenfreude to end the year

Ladies and gentlemen, I give you our only Governor.

Gov. Rick Perry was once again stumped on the stump Thursday, this time with a question about a landmark U.S. Supreme Court decision that threw out Texas’ anti-sodomy law.

Perry, taking questions at the Blue Strawberry Coffee Company, was asked how his criticism of Lawrence vs. Texas jibes with his views on limited government. The questioner simply named the case without describing its details.

Although Perry cited the case in his anti-Washington book Fed Up! in criticizing the Supreme Court, he said Thursday that he didn’t know what the case is.

“I wish I could tell you I knew every Supreme Court case. I don’t … I’m not a lawyer,” Perry told the person who posed the question. “We can sit here and play ‘I gotcha’ questions on ‘What about this Supreme Court case’ or whatever, but let me tell you — you know and I know that the problem in this country is spending in Washington, D.C. It’s
not some Supreme Court case.”

Asked directly later by a journalist whether he knew what the case is, Perry said, “I don’t.” He added, “I’m not taking the bar exam.”

I can only imagine what the response might have been if the questioner had mentioned Fed Up! by name: “I wish I could tell you I knew every book, but I don’t. I’m not a reader. Hell, I probably couldn’t pass the TAKS test in English with a cheat sheet and George Will sittin’ on my lap.”

Perry may not be a lawyer, but as the story notes, he has lawyers who work for him:

Perry also suffered another setback on a different front Thursday when a federal judge in Richmond rejected his request for an emergency court order to require Virginia’s Board of Elections to place his name on the March Republican presidential primary ballot.

Lawyers for Perry, whose presidential campaign failed to submit enough valid signatures to win a spot on Virginia’s primary ballot, argued that the state’s requirements are “overly burdensome and unconstitutional.”

Yes, he complained that these requirements for participating in the political process are “overly burdensome and unconstitutional”. If he were capable of experiencing human emotion, Ralph Nader would be having a good belly laugh at that. In case anyone managed to miss the overbearing irony of Rick Perry whining about “overly burdensome and unconstitutional” requirements, here’s Ezra Klein to help you out:

Perry is an experienced politician who has hired a professional staff for the express purpose of navigating the logistical hurdle of ballot access. And he still failed to make the Virginia ballot, despite the fact that the rules were well-known and unchanged since the last election.

In Texas, however, Perry has sharply changed the rules, changed them on people who do not have a staff dedicated to helping them vote, and in fact made it harder for outside groups to send professionals into the state to help potential voters navigate the new law.

And here’s the Chron editorial board with an extra helping of salt:

Perry does not deny that he failed to meet the state statutory requirements, but that does not mean he is simply going to take it. Rather, Perry is suing in federal court to overturn this state decision. And for a 10th Amendment advocate like Perry, that’s like rain on his wedding day.

In his complaint, Perry states that Virginia’s ballot requirement places a severe burden on his freedom of speech, because it “prohibits an otherwise qualified candidate for the Office of President of the United States from circulating his own candidate petitions.”

To win this case, Perry is going to need a judge willing to overturn state law. Dare we say, Perry will need an activist judge.

They’re only activist judges when they issue rulings people like Rick Perry don’t like. Personally, I think the courts should make Perry eat a bug before accepting his writ, but I confess I don’t know if that’s proper legal procedure or not. I wish I could tell you I knew all of the legal rules, but I can’t. I’m not a lawyer, and I’m not taking the bar exam. For some schadenfreude of a slightly different flavor, see Jason Stanford.

Ballot failure

Ha ha ha ha ha ha ha!

Newt Gingrich will not appear on the Virginia presidential primary ballot, state Republican Party officials announced Saturday, after he failed to submit the required number of valid signatures to qualify.

The announcement was made on the Virginia Republican Party’s Twitter account. On Friday evening, the Republican Party of Virginia made a similar announcement for Gov. Rick Perry of Texas.

Ten thousand signatures are needed to get on the ballot for the Virginia primary, which is March 6, known as Super Tuesday. The Perry campaign says it submitted 11,911 signatures, according to The Washington Post. But at 6:30 p.m. the Virginia Republican Party posted on its Twitter account that after verification, it was determined that Mr. Perry did not submit the requisite amount.

Mr. Gingrich submitted 11,050 signatures, but after verification, the state party said it determined that he had not submitted enough signatures.

Merry Christmas, Mitt Romney and Ron Paul. Every time I think Rick Perry’s Presidential campaign can’t get any more inept, it goes and proves me wrong.

Where’s Birdwell?

The Trib re-raises the question of the newest Senator’s eligibility to serve.

The newest member of the Texas Senate, Brian Douglas Birdwell, voted in the November 2004 presidential election twice, choosing between George W. Bush and John Kerry in Tarrant County, Texas, and again in Prince William County, Va., according to election records in the two states.

Voting in the same election twice is a third-degree felony in Texas.

What’s more, Birdwell’s record of voting in Virginia from 2004 through 2006 would seem to place his residency in that state, not in Texas, which could imperil his spot in the Legislature. Birdwell voted a Virginia ballot in November 2006; if that’s enough to establish him as a Virginia resident, an issue that can only be settled in court, it means he’s not eligible to serve in the Texas Senate until at least November 2011.

The voting twice issue is new, and after initially not responding, Birdwell strongly denied that allegation. He did not, however, deny voting in Virginia in 2006.

Talk of Birdwell’s eligibility dogged his campaign all along, attracting news coverage and generating talk in political circles. State law requires senators to have lived in the state for the five years before they take office and to have lived at least the last 12 months of that time in the districts they seek to serve.

Indeed, now-retired Sen. Kip Averitt briefly contemplated not retiring if Birdwell won the special election over concerns about his eligibility.

Another, earlier date — November 2006, when Birdwell last voted in Virginia — may well hold the key to whether he’s a legal candidate or not.

“It’s a piece of evidence that’s hard to refute and usually fatal,” says Randall “Buck” Wood, an Austin lawyer and a Democrat respected across the political spectrum for his mastery of election law. The residency question, as Wood sees it, puts the courts in the position of deciding whether someone did something illegal — voting in an election in a place where they don’t reside — or simply is ineligible to run in another place because of that vote. He thinks most judges would choose the second option rather than deciding the candidate in question did something criminal. The crime, if there is one, would be voting in Virginia while residing in Texas. Wood thinks a court would most likely see no crime, saying instead that the voter was a Virginia resident and voter who is simply not eligible to run for Texas Senate.

Lawyers for the Republican Party of Texas haven’t looked into Birdwell’s case, according to Bryan Preston, a party spokesman, who said the matter was left to the campaign. Texans for Lawsuit Reform, which backed Birdwell in the special election, did research the residency question and decided he is eligible, according to Sherry Sylvester, a spokeswoman for TLR. “We have endorsed Senator Birdwell, and we have contributed to his campaign,” she says. “We have reviewed the questions surrounding his residency, and like 58 percent of the voters of Senate District 22 and the eight county chairs who nominated him over the weekend, we believe he is a Texas resident.”

Yes, and Tom DeLay’s lawyers were convinced that he could be replaced on the ballot in 2006 after declaring himself a Virginia resident and withdrawing from the CD22 race. Didn’t work out too well for him, as I recall. When and if somebody files suit – my guess is that will happen shortly after the Democrats pick their own candidate and the Republicans officially tab Birdwell – we’ll see what a judge has to say. And as the Waco Trib reports, there’s more evidence that Birdwell considered himself a Virginian pretty recently:

An attorney for Sibley filed Birdwell’s voting records and other documents with state election officials, asking them to disqualify Birdwell.

After the Secretary of State’s Office stored those away, all that was left was talk and news reports along the way. But the filing at SOS supplied the factual underpinning for the argument against Birdwell’s Texas residency.

In addition to some of Birdwell’s voting records, that package includes his “resident state fishing permit” from 2006 and another from 2008 for which he paid the Virginia resident rates — lower than those paid by out-of-staters.

Those fishing licenses include this notice: “I certify that the person named on this license meets residency requirements, is eligible to buy this license, and all information on this form is true to the best of my knowledge and belief.”

That might or might not be strong evidence in a legal residency case, but it’s spice for the political argument about whether Birdwell’s candidacy is legitimate.

Like I said, we’ll presumably see what a judge thinks. I look forward to it.