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Virginia's Gay Marriage Ban Struck Down: Analysis of the Ruling



Happy Valentine's Day! Lately, it seems like every day brings another falling domino in the fight for marriage freedom. Today's victory comes from Virginia, where a federal judge declared the state's ban on same-sex marriage unconstitutional. The case, Bostic v. Rainey, looks a lot like every other marriage case -- loving and committed same-sex couples want nothing more than to have their love recognized by the state. 

Arenda_allenJudge Arenda Wright Allen, a former Judge Advocate General in the Navy and public defender and an Obama appointee to the federal bench, declared Virginia's ban unconstitutional, but took a different path than some other judges who have recently come to similar conclusions. The decision concludes that marriage is a fundamental right and, as such, any ban on fundamental rights has to be evaluated under strict scrutiny. But Judge Wright Allen notes that she does not have to go the far: the ban fails very easily under equal protection, and under the lowest form of scrutiny. But, as you will see from our discussion below, this decision feeds off recent decisions elsewhere on marriage equality, proving that a victory in one case does indeed make it easier to win the next case.

Regular Towleroad readers should be familiar with this argument. It does not break any new ground and will probably stand up at the appellate level. And although the Fourth Circuit has for years been a deeply conservative court, President Obama's recent appointees have tipped the balance. Even if they had not, we have seen many Republican appointees honestly apply the law and find these bans unconstitutional.

Follow me for a summary of the Bostic decision, AFTER THE JUMP...

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Denial of ‘Second Parent’ Adoption Puts Same-Sex Couples Parental Rights in Jeopardy


Earlier this month, in a ruling that rocked the worlds of same-sex couples and attorneys alike, a Brooklyn court denied the non-biological mother of a child born to a married lesbian couple the right to legally adopt her child.

VaughnThis seemingly arcane quadrant of family law matters because this process of adoption has, traditionally, been the only legal tool protecting gay families when they travel to marriage discrimination states. A biological parent has parental rights, obviously. But her non-married cohabitant, which is how marriage discrimination states look at same-sex spouses, is not considered a parent. She is considered a stranger even though she helps feed, raise, and care for the child.

But in a world of marriage equality, this form of adoption seems unnecessary. Brooklyn Surrogate’s Court Judge Margarita López Torres reasoned that New York recognizes the couple’s marriage and the names of both mothers appear on the child’s birth certificate. Thus, the judge wrote in her decision, the non-biological mother is already the legal parent of her child.

The “purpose and effect" of adoption is “…to create a new legal relationship where one did not previously exist. Adoption is not utilized for, nor…is it available to reaffirm, an already existing parent/child relationship.”

That makes sense. But, as we discuss below, the decision represents ideals over reality and endangers families run by same-sex couples.


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Gay Jurors and Marriage Equality: The Common Legal Thread


We all know that some of our best marriage equality news of late has come from unexpected places--namely, Utah and Oklahoma. Federal judges in even deeply conservative states are starting to realize the thinness of anti-equality arguments and the long arm of the Supreme Court's decision striking down the Defense of Marriage Act (DOMA) in Windsor v. United States.

JuryThe narrative of marriage equality progress is bound up with a recent story out of the Ninth Circuit, in which a three-judge panel of the appellate court found that you cannot exclude a person from a jury simply because that person is gay. More to the point, the court not only concluded that discrimination on the basis of sexual orientation demanded heightened scrutiny, but cited Windsor in support!

This is big news. Windsor did not really say anything about scrutiny levels; it kept the unclear status quo from Lawrence despite lower court nudges toward heightened scrutiny. If Windsor takes on this broader, though still eminently reasonable, interpretation, the case has the potential to pave the way for full equality under the law.


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1,300+ Same-Sex Marriages 'On Hold' in Utah. Now What Happens? Are They Valid?


1389143459000-XXX-USL-UTAH-03Marriage equality is on hold in Utah, even though it should not be. Slightly more than 1300 couples, like the couple to the right, married in Utah's equality window. The anti-gay leaders of this conservative state are on course to fight for discrimination all the way to the Supreme Court. That course began yesterday. Utah's Republican Governor Gary Herbert put recognition of those marriages on hold: his state agencies will not recognize the marriages until there has been a final disposition of the case. This entire situation demands we ask several questions: What of the 1300-odd marriages performed in Utah's equality window? Are they valid? Will they be undone if marriage discrimination is upheld? Should the state recognize them as married? Will the federal government recognize them as married.

These are real-world, Main Street concerns. The turn of the calendar to 2014 brings tax questions. Plus, uncertainty as to the legal status of a marriage could delay family planning, relocation, and employment decisions, to say nothing of the stress, anxiety, and associated depression that can result from living in a state of limbo.

The problem is that this limbo was foisted upon loving, committed couples by conservatives hell bent on discriminating against gays for no other stated reason than to maintain the status quo. This really puts the injustice of the stay and the appeal into stark relief.

At the end of the day, the marriages should be valid, at the state and federal level, regardless of what ultimately happens with this particular case.

I discuss why, AFTER THE JUMP...

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Why There Should Be No Stay of Marriage Equality in Utah


131223-utah-gay-marriage-hmed-10a.380;380;7;70;0Gays and lesbians have been free to marry in Utah -- yes, Utah -- for two weeks. Judge Richard Shelby, who was appointed by President Obama at the behest of Utah's arch-conservative Republican senators, cited the Supreme Court's decision in United States v. Windsor when he said that the Constitution's guarantee of equal "dignity" for gays and lesbians requires the state to recognize their love. Since the decision was handed down, hundreds of gay couples, including Natalie Dicou, left, and her partner, Nicole Christensen, have gotten married.

Now, the State -- the home of the Mormon Church, Prop 8's principal benefactor -- wants those marriages to stop. After failing to ask for a stay during the course of the case before Judge Shelby, after messing up its request after the fact, and after ultimately losing before the Tenth Circuit, the State has one last hope to delay equality: Justice Sonia Sotomayor.

There are many problems with the State's request. Let's set aside for the moment the fact that the conservative leaders of Utah's state government want to deny the very existence of our love. Set aside the injustice of anti-gay marriage discrimination, in general, and focus on the stay itself.

The standard for a stay in federal court is demonstrating "irreparable harm." Where is the harm in letting gays continue to marry?

AFTER THE JUMP, I discuss the problems with the stay argument in more detail.

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New Mexico Supreme Court's Marriage Equality Decision: An Analysis



New Mexico became the 17th marriage equality state today when the state's supreme court declared marriage discrimination unconstitutional. It was a unanimous ruling and one that was based on legal concepts with which we should all be familiar: equal protection, intermediate scrutiny, state interests, and "responsible procreation".

NMFLAGRegular readers of Towleroad's law column already know the basics: The constitution--in this case, a state constitution--guarantees equal protection of the law. Denying marriage licenses to certain individuals simply because of their sex or sexual orientation is unequal treatment that the state has to justify. Because the LGBT community has long been a victim of institutionalized and insidious discrimination, the state has a high burden to meet, a burden we call "intermediate scrutiny." The supposed justification that restricting marriage to opposite sex couples prevents accidental children out of wedlock is no justification for discrimination because marriage has never had anything to do with raising children. Because the state cannot meets its burden, the discrimination is unconstitutional. Gays can marry.

It is remarkable that this legal narrative has become so simple, so obvious, so matter-of-fact that we can summarize it in a paragraph and move on. Ten years ago, it was a theory a few of us deeply believed in. But it has become as airtight a legal doctrine as any I know. Today's decision from the New Mexico Supreme Court reinforces that view. It also highlights the impact the Supreme Court's recent DOMA decision (Windsor v. United States) will have on the next generation of marriage cases.

Follow me AFTER THE JUMP for a more detailed analysis.

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