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


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.


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



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...

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



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.

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


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.


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Marriage in Virginia: What Happened at the Fourth Circuit?



Yesterday, a sharply divided three-judge panel of the Fourth Circuit Court of Appeals in Richmond, Virginia heard oral argument in the case of Bostic v. Schaefer (formerly, Bostic v. Rainey), an appeal of a lower court decision overturning Virginia's restrictive ban on same-sex marriage. The argument was heated, with two judges staking out positions on opposite sides of the ban and a third judge remaining more circumspect, but still indicating his skepticism of the ban.

This morning, I reviewed the audio of the oral argument. I was struck by a few things:

NiemeyerFirst, Judge Paul Niemeyer (right), the most conservative judge on the panel, sounded more rabidly anti-gay or homophobic than a rational opponent of recognition same-sex marriages. The arguments he put forth were outdated and disrespectful.

Second, the other two judges on the panel -- Judges Roger Gregory and Henry Floyd -- appeared much more willing to affirm the lower court's decision striking down the marriage ban. Their questioning suggested that they were persuaded that the Supreme Court's gay rights cases (Romer v. Evans, Lawrence v. Texas, and, of course, United States v. Windsor) almost required them to strike down the ban.

Finally, Judge Niemeyer seemed resigned to the fact that the case was on its way to the Supreme Court with just a short layover in Richmond. That, of course, is the whole point.

Follow me AFTER THE JUMP for a brief review of the argument....

(Coming up later, a review of last night's marriage equality ruling in Idaho!)

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Virginia Gay Marriage Ban Before the Fourth Circuit Court of Appeals Today: What To Watch For



Virginia's restrictive ban on same-sex marriage was struck down by District Court Judge Arenda Wright Allen in February. Today, Judge Wright Allen's decision gets an appellate hearing at the Fourth Circuit Court of Appeals, the intermediate appellate court based in Richmond that stands between the lower court and the U.S. Supreme Court.

The case, originally captioned Bostic v. Rainey, offers the appellate court a relatively "clean" same-sex marriage challenge without many of the complications that doomed the Prop 8 case to an anticlimactic end. Virginia's ban was comprehensive, banning both in-state gay marriages and recognition of out-of-state marriages between two gay people. And there is a certain poetic symmetry to bringing a federal challenge to marriage discrimination in the same state that gave us the landmark decision of Loving v. Virginia, which ended bans on interracial marriage.

A three judge panel of both Democratic and Republican appointees will consider the ban given the Supreme Court's decision in United States v. Windsor and the decision of sister courts across the country striking down all state bans on same-sex marriages. Given that context, two things are clear: First, gay marriage opponents will be arguing against the tide, and, second, the Supreme Court's decision in Windsor will be the primary reason why this court is likely to affirm the unconstitutionality of the ban.

I provide a brief preview of the major players and the arguments to come this morning,

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