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What Was So Remarkable About the Tenth Circuit's Decision Striking Down Utah's Gay Marriage Ban

BY ARI EZRA WALDMAN

6a00d8341c730253ef01a511d4c82a970c-800wiTo 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4 years, a 1971 order by the Supreme Court saying that a gay marriage lawsuit does not raise any federal question is outdated and no longer good law in the post-Romer, post-Lawrence, and post-Windsor universe.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...

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Supreme Court Limits Obamacare's Contraception Coverage

BY ARI EZRA WALDMAN

6a00d8341c730253ef01a73dd60f4d970d-300wiIn the words of Justice Ruth Bader Ginsburg, dissenting today in Burwell v. Hobby Lobby:

In the Court’s view, [the Religious Freedom Restoration Act] demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. 

"Havoc" is one mild, understated way to put it. I would add "dangerous," "unprecedented," and "violent."

BrYbC7YCMAAOCqRWhen last we heard about Obamacare, the number of enrollees had exceeded certain Administration expectations. But if you recall, these enrollments were only allowed to happen after the Supreme Court concluded that the central piece of the law -- the individual mandate that requires people to have insurance -- is constitutional.

Today, Obamacare is back in legal news. In a 5-4 decision in Hobby Lobby, the Court held that family-owned corporations can opt out of generally applicable laws for religious reasons. You can read the full decision here. I previewed the legal issues back in March because this case has dangerous implications for the future of LGBT equality.

This case is a so-called religious freedom challenge to a federal law. The Affordable Care Act requires that health care plans provide their customers with certain contraceptives and contraceptive services free of charge. Hobby Lobby, a closely-held (that is a fancy legal term for "family-run") chain of retail arts and crafts stores run by a deeply religious family, took issue with providing its employees with contraceptives that it believed violated the owners' religious beliefs. The company challenged the requirement, arguing that corporations can have religious rights, should be able to sue to protect those rights, and that Obamacare violated its freedom of religion.

Many of us are concerned about our health care and the health care of others. This decision impacts directly all of us who work for companies that provide health insurance: granted, today's decision only applied to private, closely-held companies; but there is little in the opinion to prevent expansion down the road.

However, more to the point, Hobby Lobby sets a dangerous precedent in the gay rights universe. Gay equality laws -- from marriage equality laws in New York to the Employment Non-Discrimination Act that passed the U.S. Senate -- have religious exemptions. States that gained marriage equality by judicial decision still have vocal opponents whose arguments (perhaps pretextual) are based on religious freedom. They say they should not be forced to bake a cake for a gay wedding, or rent out their catering halls for gays, or provide any services to gay couples because they oppose gay marriage. If Hobby Lobby, an arts and crafts company that has nothing whatsoever to do with religion, can exempt itself from a federal law aimed at providing equal access to all, then perhaps a baker or a florist or a limousine driver can do the same to us.

Religious exemptions and religious freedom arguments can grow to a point where they endanger equality. Our community cannot simply be satisfied with Windsor, the post-Windsor marriage equality winning streak, and the prospect of an impending second shot at the Supreme CourtHobby Lobby could undo much of it.

AFTER THE JUMP, I discuss the Hobby Lobby decision, its dangers, and its limitations.

Continue reading "Supreme Court Limits Obamacare's Contraception Coverage" »


Utah, Indiana, Heightened Scrutiny and Next Steps: Is Marriage Heading to the Supreme Court?

BY ARI EZRA WALDMAN

UtahOne year this week, the Supreme Court brought marriage equality back to California when it ended the Prop 8 case. It also declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional and, thereby, ushered in a year of unbroken marriage equality victories indebted to United States v. Windsor. The Supreme Court was equally as active today, deciding, for example, that police must get a warrant before searching cell phones upon arrest and that the Aereo streaming television service is illegal under the Copyright Act.

Unless you count the impending Hobby Lobby case, a challenge to Obamacare's requirement that employers offer their employees health plans that cover contraceptives, which raises the highly relevant question of how big of a donut hole will be carved out by so-called "religious exemptions" to equality legislation, our right to marry did not have a date at the Supreme Court this week.

But much progress was made in the lower courts.

The Ninth Circuit has refused to rehear the case in which it held that antigay discrimination merits heightened scrutiny. This means that pretty much any gay rights case out of the most populous circuit in the country -- stretching from Montana to Arizona and from Nevada to Alaska and Hawaii -- will more than likely end with a pro-equality ruling. Heightened scrutiny makes it nearly impossible to justify discrimination, which brings us closer to our goal of universal equality.

The Tenth Circuit affirmed District Judge Shelby's ruling that Utah's ban on same-sex marriage is unconstitutional. The 2-1 decision marks the first time a federal appellate court has ruled on a marriage ban in the post-DOMA world. The ruling, which included a stay pending Supreme Court review, sets the stage for several potential next steps, all of which may culminate at the Supreme Court.

And a district court judge in Indiana ruled that state's ban on same-sex marriage is unconstitutional. And there was no stay attached to the decision, so for now, gay couples can marry -- and are marrying -- already.

Judge Richard Young of Indiana was right. He remarked how he had never seen anything like this before: In the span of one year, marriage equality went from a handful of states with a loud opposition to victory after victory after victory since the Supreme Court decided the DOMA case. 

In the coming days, I will summarize and analyze these decisions (and other legal developments affecting the LGBT community, but for now, let's discuss what happens next.

CONTINUED, AFTER THE JUMP...

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Marriage Equality Comes to Oregon and Pennsylvania: An Analysis, Part II

Mcshane_jones

BY ARI EZRA WALDMAN

Earlier today, we discussed the decision by Judge Michael McShane (above, left) striking down Oregon's ban on same-sex marriage. I noted that the opinion was narrowly focused on equal protection, but also deeply personal. Judge McShane is openly gay and the decision clearly meant a lot to him. While Judge McShane was opening the doors of marriage to gay Oregonians, a conservative judge in Pennsylvania was about to do the same. The state's embattled Republican governor will not appeal the decision, so we know that after Pennsylvania's quixotic 3-day waiting period to get a marriage license, gay couples will be getting married.

Judge John Jones III (above, right), a George W. Bush appointee, was not to be outdone by Judge McShane's lyrical and personal approach to the case. To Judge Jones, bans on same-sex marriage, whether they be constitutional provisions or statutes (Oregon had a constitutional amendment; Pennsylvania just had a law), are the worst of us and not worthy of our traditions and our future.

The decision was a broad one, covering equal protection and due process. Judge Jones even called for the application of heightened scrutiny in an equal protection analysis when antigay discrimination is at issue.

But one of the opinion's final lines struck me as too simple, at best:

In the sixty years since Brown [v. Board of Education] was decided, "separate" has thankfully faded into history, and only "equal" remains.

It is true. We no longer condone the kind of overt discrimination common in the Jim Crow South. But inequality and separate-and-unequal still exist, especially when it comes to gay persons. The cavalier approach to inequality reminds me of Chief Justice Roberts's now famous line: "The best way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

I connect these two quotes AFTER THE JUMP...

Continue reading "Marriage Equality Comes to Oregon and Pennsylvania: An Analysis, Part II" »


Marriage Equality Comes to Oregon and Pennsylvania: An Analysis, Part I

Mcshane_jones

BY ARI EZRA WALDMAN

Two very different federal judges, an openly gay Obama-appointee and a conservative appointed by George W. Bush at the recommendation of Rick Santorum, swept aside bans on same-sex marriage in Oregon and Pennsylvania, respectively. They did so with rhetorical flourishes and, at times, deeply personal musings. The lesson here is simple: The justice of marriage equality is blind to politics.

There are other lessons, of course. The unbroken string of courtroom victories over the last year is indebted to Justice Kennedy's decision in United States v. Windsor. And the opinions, for the most part, rely on similar substantive grounds. Granted, some judges analyze both due process and equal protection arguments, while others stop after one or the other; some call for heightened scrutiny, while others decide not to touch it. But there is remarkable overlap and, as I've argued before, a new normal is emerging.

But let's see an even broader picture. We know that nationwide support for same-sex marriage rights is at an all time high. We also know that gay legal advocates have won an unbroken string of victories since Windsor, and have been winning victories since Mary Bonauto and the Gay and Lesbian Advocates and Defenders represented Nancy Gill in the District of Massachusetts. The two are likely correlated. Legal victories provide legitimacy to seemingly controversial opinions, and piling on victory after victory makes those on the fence realize that what seemed so foreign to them at one time is pretty mainstream.

We should congratulate our lawyers for their success and thank them for making gay marriage the new normal.

AFTER THE JUMP, I review the details of the decision in Oregon and make some broader conclusions.

Continue reading "Marriage Equality Comes to Oregon and Pennsylvania: An Analysis, Part I" »


The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis

BY ARI EZRA WALDMAN

Last last night, a federal magistrate judge in Idaho declared that state's ban on same-sex marriage unconstitutional.

DaleJudge Candy Wagahoff Dale wrote as follows:

After careful consideration, the Court finds Idaho’s Marriage Laws unconstitutional. This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights. Idaho’s Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so. These laws do not withstand any applicable level of constitutional scrutiny.

Latta v. Otter, slip op. at 3.

This conclusion should sound familiar to regular Towleroad readers. The key takeaway points: The right to marry is fundamental, in line with many Supreme Court cases; bans on gays marrying stigmatize gays and gay relationships as less than equal and relegate us to second-class status (remember Justice Ginsburg's "skim milk marriages" comment?); and, the exact level of scrutiny demanded by antigay discrimination is irrelevant because the ban is so irrational that it fails even under the lowest form of review.

A decision like this has become the new normal, especially in the post-Windsor world.

CONTINUED, AFTER THE JUMP...

Continue reading "The Marriage Equality Ruling in Idaho: A Legal Summary and Analysis" »


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