Seventh Circuit Court Of Appeals Says Indiana Must Recognize Terminally Ill Lesbian’s Marriage: READ
The U.S. Seventh Circuit Court of Appeals ruled that the state of Indiana must recognize the marriage of a terminally ill lesbian, Niki Quasney, while the state appeals District Judge Richard L. Young’s earlier ruling that found Indiana’s ban on same-sex marriage to be unconstitutional. Nicki, who is married to wife Amy Sandler, is currently battling stage IV ovarian cancer. Lambda legal filed the emergency motion that resulted in the seventh circuit lifting its earlier stay of Judge Young’s decision:
Paul D. Castillo, Staff Attorney for Lambda Legal, said:
It is time for the State of Indiana to leave Niki and Amy in peace and not subject them and their marriage to any more stress and uncertainty as this case proceeds. We’re thrilled that the court ruled in favor of this family as Niki battles stage four ovarian cancer. We will continue to fight until no family in Indiana needs to worry about their marriage being stripped away from them and all Hoosiers have the freedom to marry.
In response to the emergency motion filed by Lambda Legal on behalf of Niki and Amy, the 7th Circuit also set an expedited briefing schedule in Baskin v. Bogan, with all briefs in the case due by August 5. Arguments in the case could come as early as the end of the summer.
Read the court order, AFTER THE JUMP…
To regular Towleroad readers, Judge Lucero's opinion holding Utah's ban on same-sex marriage unconstitutional reads like so many other equality rulings in the post-Windsor world. But the June 25th decision is still remarkable and unprecedented. Kitchen v. Herbert did not just say banning gays from marrying is unconstitutional. Rather, it said the law is unconstitutional specifically because of Windsor.
The opinion has all the trappings of many of the district court decisions that preceded it. First, the Court addressed the standing of the parties (the Governor and Attorney General of Utah) to appeal. I won't spend any time on that section except to say, they do have standing. Second, the court dispatched the Baker v. Nelson canard. As courts have argued countless times in the last 4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.
But the way the Baker argument got resolved was new. Utah, which was represented in Court by my old boss at Winston & Strawn LLP, Gene Schaerr, argued that the very principles of federalism and the separation between the federal government's role and the role of state governments that were reaffirmed in Windsor mandate that the Tenth Circuit hold to the Baker dismissal. In other words, Utah was acknowledging that the world has changed since 1971, a concession that the Prop 8 proponents and those supporting the Virginia gay marriage ban have refused to make. However, despite those cataclysmic changes, Utah argued that Windsor reminds us of the danger of the federal government intruding into the exclusive realms of the state. Therefore, since marriage is traditionally a state issue, the federal judiciary should stay out of a state's decision to discriminate against gays in that exclusive state matter.
The problem with this unique argument is that it is just plain wrong, derived, as it is, from a selective reading of Windsor. Justice Kennedy did indeed pay homage to the federalism concerns raised by the Defense of Marriage Act (DOMA). For the first time ever, Congress had created a federal definition of marriage and no longer just accepted whatever the states had deemed as legitimate marriages. But, as I argued previously, the federalism discussion was merely a tool to show Congressional overreach and a reason for the federal courts to take more than a mere cursory once-over of the law. DOMA's federalism problem inspired Kennedy to be more critical of Congress's antigay motives and actions, which he found in violation of the federal constitution. It did not cause him to deny the federal role entirely.
CONTINUED, AFTER THE JUMP...
In response to the suggestion that the "fundamental" right is a heterosexual one, the court reminds us that the right to marry is found in "persons" and has been applied with sufficient generality to include all different kinds of persons: not just white persons, but also black persons; not just free persons, but also those who are incarcerated; not just rich persons, but also poor persons; and so on.
Nor did the marriage right come along with a natural, biological ability to procreate. Instead, the court quoted the Supreme Court case of Turner v. Safley, which allowed inmates to marry. The importance of marriage is wide and varied, irrespective of an ability or right to procreate:
First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
And, it goes without saying, independent of and unaffected by the biological ability to have sex with one another and produce a child.
Perhaps the most important part of the Tenth Circuit's decision begins at around page 34, where Judge Lucero continues to address the nonprocreative prerequisite of the marriage right and transitions to the impact Windsor has had on whether the fundamental marriage right extends to gay persons. Sure, there had been several pre-Windsor courts that concluded that gays marrying could not be a fundamental right. But in the post-Windsor world, that could no longer be the case. Rights are exercised by persons, not by gay persons or heterosexual persons. The right to marry is still a right to marry no matter who is wearing the suit and dress.
That argument would have been a lot harder before Windsor. In his opinion, Justice Kennedy asserted that gay persons, and their marriages, are entitled to the same equal dignity attached to heterosexual persons and their opposite-sex marriages. It is of no moment how a state wants to define the word "marriage." No matter what its voters may have said, the fundamental right to marry cannot be legislated away from a discrete group simply because voters don't like that group. It remains the individuals' fundamental right.
Judge Lucero's opinion is a gay rights lawyer's dream. It takes us through the Supreme Court's and other federal courts' gay rights jurisprudence and applies it to the question at hand, smacking down Utah's outdated arguments one by one. It also explains how Windsor has made the gay rights advocate's work much easier. It shows, therefore, how one victory builds on the last victory and helps create the next one. We have built a solid foundation of freedom and equality and the Tenth Circuit's opinion both reflects it and builds upon it.
The question is: What happens now?
Stay tuned for continued coverage of this case (including the dissent) and next steps.
Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.
Towleroad's crew was out and about at NYC Pride over the weekend and people were in great spirits! We were thrilled
Thanks to Heritage of Pride for putting on such an amazing 2014 celebration, especially Chris Frederick, Tish Flynn, James Fallarino, and Christie Takahashi.
A special shout-out to our Towleroad ambassadors Daniel Hauck, and Elliott Reiland.
We took so many amazing photos and you can check out a few dozen of our favorites,
AFTER THE JUMP...
The movie, which was funded through a Kickstarter campaign, follows a couple “who discover a secret room filled with cash while house-sitting for celebrity philanthropists who die under mysterious circumstances overseas.”
Watch the trailer for Such Good People, AFTER THE JUMP...
The Irish government announced on June 28th that under an employment law amendment to be passed shortly, schools will no longer be allowed to fire teachers based on family status or sexual orientation.
The news came on the same day as Dublin’s biggest ever Pride Parade, with an estimated attendance of 40,000.
The amendment, jointly submitted by Minister for Education Ruairí Quinn and Minister for Justice Frances Fitzgerald, will repeal section 37 of the Employment Equality Act of 1998, which currently allows religious institutions to discriminate “where it is reasonable to do so in order to maintain the religious ethos of the institution”.
Speaking to The Journal, Labour Senator Ivana Bacik said that there were delays in the repeal of section 37 of the Employment Equality Act in order to ensure that the legislation was “robust enough":
“The Department of Education have been keen to progress it as it affects teachers in their everyday work. Teachers unions have been campaigning for this for a long time. While it has never been used to dismiss someone, it has still been present for teachers. It struck fear in teachers who were fearful of sharing personal details about their personal lives with colleagues and that really is unsatisfactory.”
According to the Irish Times, the proposal to repeal Section 37 will come before government ministers today. Following approval, the proposals will be passed on to the lower and upper houses of the Irish legislature.
The change in legislation has had cross-party support within the Irish legislature.
Russia's anti-gay law one year out: "Only a few people were fined throughout the year and this might not seem to be much of a problem," Lokshina said. "But the fines are not what this law is about. This law is not only contrary to Russia's international obligations but has also contributed to anti-gay violence and to creating a hostile environment for LGBT people in the country. It has contributed to stigmatizing LGBT individuals as unnatural, perverse and as acceptable targets."
Amazing vine of aurora borealis from space.
Misterbnb: an Airbnb for gay men.
Instagram removes pictures of gay newlyweds kissing then restores it, apologizing for the error.
'Community' makes move to Yahoo! for sixth season.
Istanbul, Turkey saw strong turnout at its LGBT Pride celebration over the weekend, making it perhaps the biggest such event in a predominantly Muslim country.
Robin Williams enters rehab to help maintain sobriety.
Meanwhile, Shia LaBeouf reportedly has entered rehab for other reasons.
Kevin Kline plays Errol Flynn in 'The Last of Robin Hood.'
Michael Egan, who brought suit against Bryan Singer and three Hollywood execs alleging sexual abuse, dropped his suit against Broadway producer Gary Goddard.
Create your own gay marriage ruling.
Daniel Radcliffe and golden retriever make cute couple.
Whitney Houston's daughter Bobbi Kristina lashes out at Angela Bassett for not casting her to play her mother in Lifetime biopic that marks Bassett's directorial debut.
Bradley Cooper and Michael Fassbender hang out at Glastonbury Music Festival.
Taschen publishes (work unfriendly) book "My Buddy" chronicling close, often homo-erotic relations between soldiers in World War II.
Joan Rivers officiates surprise gay wedding at book signing.
Justin Bieber up to his shirtless selfie antics again.
Swedish soccer coach Pia Sundhage talks about being out in sports: "If I’m gay is of no interest because I’m a coach and my private life doesn’t matter," she says. "If people ask me about it, I answer 'Yes I’m gay' and that’s how it is. I’ve never come across any trouble for it as a coach in the United States or anywhere. It was tough when I was twenty-years-old in Sweden, but even then I didn’t care. This is me. Take it or leave it."
Posted Jul. 1,2014 at 3:56 PM EST by Sean Mandell in Gay Marriage, Instagram, Istanbul, Joan Rivers, Justin Bieber, News, Russia, Shia LaBeouf, Space, Turkey, Vine, Whitney Houston | Permalink | Comments (6)