Plaintiffs in Utah Gay Marriage Case Will Ask Supreme Court to Hear State's Appeal

Attorneys for three Utah gay couples challenging the state's ban on same-sex marriage have announced their plans to join the state in asking the Supreme Court to take up a 10th Circuit decision striking down the ban.

On Tuesday, Utah became the first state to appeal a ruling striking down a state ban on gay marriage to the Supreme Court.  

The AP reports:

It is vital that justices weigh in about whether state same-sex marriage bans violate the Constitution to settle the matter for a nation that needs an answer, said Kate Kendell, executive director for the National Center for Lesbian Rights. The group is representing the couples alongside private attorneys in Utah.

"Because we understand the tremendous importance of this issue, and that the ultimate question can only be finally resolved at the Supreme Court, we agree with attorneys for the state of Utah that the court should take the case and provide a final resolution," Kendell said.

The New York Times adds:

Neal Katyal, a former acting United States solicitor general who also represents the Utah couples, said the importance of the issue warranted an unusual approach.

“This is the defining issue for the Supreme Court in our lifetime,” he said. “The notion that the government could deny life’s greatest partnership on the basis of orientation is capricious and strikes at everything this country is about.”

He said the couples would file a brief in the coming weeks joining Utah’s request that the Supreme Court hear the case. Such a filing would come in time for the justices to consider the case at their first private conference when they return from their summer break. Should the justices agree to hear the case, they could schedule arguments in the winter and issue a decision by June.

Restaurant Patron Says 'Religious Principles' Compelled Him To Hurl Hate Speech at Gay Man: VIDEO

In another exhibit for the "Who Would Jesus Hate?" archives, Michigan man Victor Sadet (who appears to be this man) was so moved by the Holy Spirit that he followed diner Isiah David Tweedie [pictured below] and his friends out of the Fire Mountain restaurant to hurl homophobic slurs.

Calling Tweedie a "f*cking fa**ot", the holy roller was certain to clarify that the book of Leviticus called for Tweedie's death. The man was later interviewed by WILX 10 News and confirmed that it was indeed his religious principles that drove him to act like an utter lunatic.

If you can bear the bigotry, you can watch the original video and WILX's report AFTER THE JUMP...

 If WILX video is not loading, you can find it HERE.

New Jersey Bear Strolls Through Neighborhood On Two Legs: VIDEO

For a change of pace, this is a post about bears of the Stephen Colbert "godless eating machines" variety.

Ian Bohman of New Jersey stepped outside his suburban home only to find a local ursimorph out for a stroll. While a bear in your neighborhood is cause for concern, this particular bear tried to blend in with the locals by walking on its hind legs like your standard bipedal human. So either someone is very adept at costuming, or World of Warcraft's Pandaren race are less a flight of fancy and more a plausible evolutionary prediction.

You can watch Baloo saunter down the street AFTER THE JUMP...

Marriage Equality Hangs in the Balance at the Sixth Circuit

BY ARI EZRA WALDMAN

Yesterday's marathon arguments before the Sixth Circuit Court of Appeals reminds us that one judge can have a lot of power. A three-judge panel consisting of one Clinton appointee and two George W. Bush appointees could be the first federal appellate court to side against marriage equality in the post-Windsor era or they could join the chorus of colleagues tossing these discriminatory bans on the ash heep of history. Based solely on the questioning from oral argument, it may come down to one judge: a conservative named Jeffrey Sutton.

Attorneys for Michigan, Ohio, Kentucky, and Tennessee took turns arguing that the bans are justified because only opposite sex couples procreate naturally. Judge Martha Craig Daughtry questioned how it was possible that keeping gays out of the institution of marriage could in any way help or encourage heterosexuals to give birth to more kids. One attorney even cited the decreased birth rates in Europe and Russia as a reason for encouraging opposite sex couples to marry. But, as Judge Daughtrey, the most vocal judge, noted, it is unclear how discriminating against gays achieves that goal.

Judge Deborah Cook spoke the least. She has a history of anti-plaintiff, conservative decisions on discrimination. When she did speak, she seemed to suggest that states have broad power to regulate marriage and could maintain traditional institutions as they see fit.

Judge Sutton is a bit of a wild card. A conservative -- he wrote in the Harvard Law Review: "Count me as a skeptic when it comes to the idea that this day and age suffers from a shortage of constitutional rights" -- Judge Sutton voted in favor of the constitutionality of Obamacare and does not always follow a party line. His questioning was back and forth, balanced between the sides. A review of his questions and a cursory analysis of some of his writings and decisions suggest that he is primarily concerned with judicial modesty and restraint. He thinks that the federal courts have done too much, creating new rights and reading rights and regulations into the Constitution that do not belong.

It is unclear whether that preference for restraint means that he will deny that a right to marry exists for gay couples.

He wondered if his court could even make a decision or whether the judges were bound by a 1971 Supreme Court decision (Baker v. Nelson) that said that marriage lawsuits do not belong in the federal courts. Almost every other court to address marriage equality addressed and dismissed the Baker canard: gays had not recognized federal rights in 1971; today, after Windsor, after Lawrence, and after Romer, is a different time. Judge Sutton didn't seem too sure.

I f he could get passed the Baker threshold, Judge Sutton still was holding his cards close to his chest. He was pretty clear that the states could not win if antigay discrimination merited some form of heightened scrutiny, but he did not hint that he was leaning in the heightened scrutiny direction.

Perhaps the most interesting part of Judge Sutton's questioning came later in the day when he wondered aloud if the plaintiffs in the cases really want the courts to get involved when the marriage equality movement seems to be gaining political steam and social esteem. Judge Sutton implied, true to his radical vision of judicial abdication of responsibilities, that political outcomes are somehow more legitimate than judicial ones.

It is hard to imagine that view as a legitimate basis for deciding against the marriage equality. Judge Sutton has written a lot about how federal judges do too much. He would prefer that judges take a back seat to the political process, an entirely conservative position given the greater access that money and majorities have to political votes. But just because he prefers judges abdicate their constitutional responsibilities should not absolve him of actually deciding the legal questions before him. The legal questions involve equality and fundamental rights, not some policy preference for more judicial modesty.

This is why marriage equality hangs in the balance. Judge Sutton was not clear where he stands. 

***

Follow me on Twitter and on Facebook. Check out my website at www.ariewaldman.com.

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 pursuing 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 Guide to the Tube #1603

LION KING: Broadway cast puts on an impromptu performance of "Circle of Life" on a NYC subway. 

FIRST CLASS: Barack Obama singing Iggy Azalea's "Fancy"

ADAM LAMBERT: On working with AT&T's Live Proud Campaign

SURF'S UP: You've seen the video of the surfing seal, now there's a pig. 

  

  

For recent Guides to the Tube, click HERE.

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