Ari Ezra Waldman Hub

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 The arguments he put forth were outdated and disrespectful.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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Marriage Equality Comes to Arkansas: A Legal Analysis


Arkansas-Judge-Chris-PiazzaLate Friday, Judge Chris Piazza (right), a state court judge in Arkansas, declared his state's ban on same-sex marriage unconstitutional and ordered the county clerk's office to issue marriage licenses to gay couples. It was the first post-Windsor marriage equality decision based on federal and state grounds. And because he did not stay his order, gay couples could almost immediately get married (and have!). The Arkansas attorney general has filed a motion for a stay and only a select few counties are following the judge's order.

You may be asking yourself a few questions: How did this all come about? Why a state court case, especially since most of our post-Windsor success (save New Jersey and New Mexico) has come through the federal courts? Why are certain county clerks defying the judge and not issuing marriage licenses? What happens now?

Marriage equality lawsuits are proliferating throughout the country: most of them are run by or have the participation of the major gay rights litigation concerns (Lambda Legal, the ACLU, and the American Foundation for Equal Rights, for example). Some, like the one in Arkansas, were filed by private attorneys on behalf of a phalanx of local couples who just want to get married near their families or have their out-of-state marriages recognized by their home state.

These plaintiffs are just like all the other marriage equality plaintiffs. They just want the freedom to love. And like so many other marriage equality decisions, this one proves that we are in a different world after the Supreme Court's decision in Windsor


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What To Watch For in Today's Tenth Circuit Court Marriage Hearing on the Utah Gay Marriage Ban


TenthcircuitThe Denver-based Tenth Circuit Court of Appeals (pictured) is hearing arguments today in Kitchen v. Herbert, the federal case challenging Utah's ban on gays marrying. It is the first in a line of nearly 65 marriage lawsuits speeding their way through the federal and state judiciaries and, therefore, may be the one case to reach the Supreme Court and be the vehicle to determine whether we have a nationwide right to marry.

In December of last year, Judge Richard Shelby issued a broad ruling, holding that marriage discrimination violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. It was the first same-sex marriage ruling after the Supreme Court's decision in Windsor and Judge Shelby relied heavily on that pivotal case. In fact, he seems to have set the tone for how the lower federal courts are interpreting and using Windsor. Shelby himself found that Windsor required some level of scrutiny higher than simple rational basis; other courts have found that it demanded heightened review. All courts have essentially found that Windsor made marriage discrimination pretty much untenable. 

It was, then, the second domino after Windsor.

There are a few things to watch for in this closed-door hearing.

1. Will the court issue a ruling as broad as Judge Shelby's or limit it in some way?

2. What, if anything, does the court say about the required level of scrutiny in antigay discrimination cases?

3. Will the political backgrounds of the judges play a role in their decision making?

Let's turn to each of this questions briefly AFTER THE JUMP.

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The Fall of Brendan Eich Happened Without Us


Brendan-eich-mozilla-firefox-squareBrendan Eich is no longer the CEO of Mozilla. His tenure was short. But if you believe the media swarm surrounding his quick departure, you would think he left in a blaze of burned bridges and violent protests. I must have missed all that. Mr. Eich was asked to step down because the members of his board of directors made the decision that he could no longer govern their company. That's how boards are supposed to work.

There was no mainstream gay rights organization calling for his head. No one "bullied" Mr. Eich out of Mozilla's headquarters. To say so is an insult to those of us who have been bullied in real life. And no cabal of intolerant gays proclaimed that disagreement with us merits unemployment. That seems to be a bogeyman conjured up in the prolific brain of Andrew Sullivan.

Although this was a legitimate board decision, Mr. Eich did do two things wrong: He took actions that were specifically intended to harm others and he made it worse by refusing to discuss those actions. Those who turned to demonize a straw man of intolerant "gay activists" miss these two facts.

Their argument is essentially about tolerance for evolving opinions and it goes as follows: We cannot punish people for simply disagreeing with us. If we do, we become no better than intolerant conservatives who hate us simply because of who we love. It would have been better to teach Mr. Eich, to sit down with him like mature adults and make our case, thereby showing him that he, like millions of other people, were wrong about us.

Let me say that I agree. I am a proponent of guiding our former opponents on a path toward acceptance with calm, cool rhetoric and a mature approach. I wrote about it here, with respect to Senator Rob Portman's evolution on gay marriage. But it is not clear to me how we can discuss something with someone who refuses to come to the table. Plus, this is not a matter of having differing opinions. Mr. Eich made a jump from having an opinion to taking actions to hurt another group of people. To assert the equivalence of belief and action is not only plain wrong, it is inconsistent with how free speech norms have developed in this country.

This story, then, boils down to three simple facts:

1. Mozilla's Board of Directors did exactly what boards are supposed to do;

2. Mr. Eich took actions that made him unfit to lead a unique community like Mozilla; and

3. Actions have consequences.


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Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today


SupremesToday, the Supreme Court is hearing arguments in a case about Obamacare. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Now, the Court is considering whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

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