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What Happens If We Lose the Supreme Court Gay Marriage Cases?

USSCOTUS

The Supreme Court's decision earlier today to hear the four gay marriage cases out of Kentucky, Michigan, Ohio, and Tennessee sets the stage for the the constitutionality of same-sex marriage bans to be decided once and for all. 

With the high court's previous DOMA ruling in place and its refusal to stay lower court rulings bringing marriage equality to a number of states, it can be tempting to think nationwide marriage equality will be a sure bet this year.  

For precautions sake though, Lambda Legal's Jon Davidson has spelled out what will happen should SCOTUS go the other way:

DavidsonIf the Supreme Court were to rule in the cases in which it today granted review that the U.S. Constitution does not protect same-sex couple's right to marry and does not require states to respect marriages same-sex couples lawfully have entered in other jurisdictions, a number of issues would arise.

With respect to same-sex couples who already have married as a result of court rulings, Lambda Legal strongly believes -- as a federal district court in Michigan ruled just yesterday with respect to marriages entered in that state before the 6th Circuit's adverse ruling -- that those marriages will remain valid and will need to continue to be respected by the states in which those marriages were entered. Nonetheless, the validity of those couples' marriages may be challenged and those couples may want to take additional steps (such as executing wills, durable health care powers of attorney, and securing second parent adoptions) to provide them and their families extra peace of mind and security.

With respect to whether same-sex couples would be able to marry and would have their marriages respected in other states, that would vary from state to state. States in which marriage equality was achieved by a ruling under the state's constitution, by legislative reform, or at the ballot box, would be unaffected. Unmarried same-sex couples in Kentucky, Michigan, Ohio, and Tennessee (the states whose marriage laws the Supreme Court today agreed to review) would be forced to seek reform through the political process. States in which a final judgment has been obtained in federal court would be required to continue to allow same-sex couples to marry and to respect out-of-state marriages entered by same-sex couples unless and until someone with standing makes a motion to reopen the judgment and that motion is granted (unless stays are properly obtained before then). In some states, there may be no one with standing interested in seeking to set aside the existing judgment. Same-sex couples in states in which a judgment is on appeal or can still be appealed whose judgments have not been stayed should be able to continue to marry and to have their out-of-state marriages honored by the state until the existing judgment is stayed or reversed.

There's no question that it would be a mess. This is one additional reason why the Supreme Court should reverse the 6th Circuit's aberrant decision and hold that same-sex couples, like all other couples, share the fundamental right to marry and that it violates federal guarantees of equality and liberty to refuse to allow them to marry or to deny recognition to the marriages they lawfully have entered in other states.

If you haven't already, be sure to check out our legal editor Ari Ezra Waldman's analysis of today's events HERE


Kentucky Bill Says Students Who See a Trans Classmate in the Bathroom Can Sue School for $2500

A heinous bill being proposed by a Kentucky lawmaker aims to shut transgender students out of school bathrooms altogether, holding schools liable if an "aggrieved" student encounters a transgender student in the bathroom.

EmbryUnder the terms of The Kentucky Student Privacy Act, introduced by Republican Senator C.B. Embry as an "emergency" bill (read it below), students can sue the school for $2500 if they find a transgender student using the facilities.

Embry is declaring the bill an "emergency" because "situations currently exist in which the privacy rights of students are violated."

A student who is aggrieved under this subsection and who prevails in a court of jurisdiction:

1. May recover two thousand five hundred dollars ($2,500) from the offending school for each instance in which he or she encountered a person of the opposite sex while accessing a school restroom, locker room, or shower room designated for use by the biological sex of the aggrieved student;

2. May recover monetary damages from the offending school for all psychological, emotional, and physical harm suffered; and

3 Shall be entitled to recover from the offending school reasonable attorney fees and costs associated with the claim.

The bill also attempts to make it as onerous as possible for the school to deal with accommodations for a trans student:

A student who asserts to school officials that his or her gender is different from his or her biological sex and whose parent or legal guardian provides written consent to school officials shall be provided with the best available accommodation, but that accommodation shall not include the use of student restrooms, locker rooms, or shower rooms designated for use by students of the opposite biological sex while students of the opposite biological sex are present or could be present.

Acceptable accommodations may include but not be limited to access to single-stall restrooms, access to unisex bathrooms, or controlled use of faculty bathrooms, locker rooms, or shower rooms.

While accessing a restroom, locker room, or shower room designated for use by his or her biological sex, a student encountering a person of the opposite biological sex shall have a private cause of action against the school if school personnel:

1. Gave the person encountered permission to use facilities of the opposite biological sex; or
2. Failed to take reasonable steps to prohibit the person encountered from using facilities designated for use by the opposite biological sex.

According to Think Progress, Embry opposed a sweeping anti-bullying bill that would have protected LGBT students in 2013 saying the state's anti-bullying laws were sufficient:

“We have a death penalty against rape and murder but they still happen,” he said at the time.

Looks as though trans students in Kentucky need protection from him.

Here's the bill:

KSPA


Kentucky Judge Grants State's First Same Sex Divorce

Screenshot 2015-01-13 17.44.36Though Kentucky has yet to legalize same-sex marriage, or even deign to recognize gay unions performed out-of-state, a Jefferson County Family Court judge struck a blow for marriage equality by granting the first legal same-sex divorce in the state. Judge Joseph O'Reilly divorced Alysha Romero and Rebecca Sue Romero, a lesbian couple who were first married in Massachusetts in 2009, citing Kentucky law that requires judges to “liberally” construe the legal proceedings surrounding divorce so as to encourage “amicable settlements” between people looking to split.

"The Constitution of Kentucky prohibits the exercise of absolute and arbitrary power over [its peoples’] lives,” O'Reilly said. "Even if that exercise is approved of by the largest majority."

Aysha Romero’s lawyer, Louis Waterman, argued that despite Kentucky’s refusal to acknowledge out-of-state gay marriages, a decision to not grant the Romeros a divorce would be tantamount to the state recognizing them as being married.

O’Reilly first made his ruling in late December of last year, but held off making it public until the new year, after his retirement. O’Reilly is not seeking re-election, and because the window for appeals has since passed his ruling has become precedent in Jefferson county, though it can’t be used in other Kentucky cases.

"I am just thrilled with Judge O'Reilly's courage,” said Waterman. “I think he had a lot of chutzpah to do what he did."

 


States Defending Gay Marriage Bans Costing Taxpayers Millions In Attorney Fees

MarriageGraphic

Plaintiffs in successful same-sex marriage lawsuits have been awarded more than $800,000 in attorneys fees' from states that defended the bans, with another $2.6 million in requests pending, according to a new report from The National Law Journal: 

Federal district judges across the country have issued nearly three dozen rulings since late 2013 declaring state same-sex marriage bans unconstitutional. Attorney fee petitions haven't been filed yet in the majority of those cases as they go before circuit courts and the U.S. Supreme Court. The fee awards, agreements and requests to date offer an early snapshot of what these landmark civil rights cases could cost taxpayers. ... 

Plaintiffs who prevail in federal civil rights cases can collect legal fees from the losing side. Congress set up the fee-shifting rule as an incentive for lawyers to take on time-consuming and expensive civil rights litigation, said Deborah Ferguson, lead counsel for the couples who fought Idaho's gay marriage ban.

In Idaho, the plaintiffs' attorneys were awarded a whopping $410,663 — the most in any state thus far. But that hasn't stopped Republican Gov. Butch Otter from continuing his futile defense of the state's marriage ban in court. The other states where plaintiffs' attorneys fees have been awarded or agreed to in same-sex marriage cases are Kentucky, Missouri, Oregon and Virginia. Requests are pending in Alaska, Arkansas, Ohio, Oklahoma, South Carolina, West Virginia and Wisconsin. 

Of course, the plaintiffs' attorneys fees don't include the cost to taxpayers of states paying their lawyers or hiring outside counsel to defend the bans — or, for that matter, lost revenue from wedding-related spending where same-sex marriage is still not legal. 

All told, it seems that defending discrimination isn't cheap, and states that continue to fight same-sex marriage better be prepared to pay up. And the irony is, many of the same folks who advocate lower taxes are the same ones fighting hardest to deprive same-sex couples of the freedom to marry.  


Supreme Court To Consider On Jan 9. Whether To Hear Challenges To Same-Sex Marriage Bans

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In the wake of the U.S. 6th Circuit Court of Appeals' decision earlier this year to uphold bans on same-sex marriage in Ohio, Kentucky, Tennessee and Michigan, the United States Supreme Court has decided to consider hearing challenges to that ruling from marriage equality advocates during its closed doors conference on January 9th. At that same conference, the Court will also be considering a decision from a federal judge in Louisiana that let that state's ban on same-sex marriage stand. BuzzFeed's Chris Geidner reports: 

“The Tanco [Tennessee case] petition will be considered at the Court’s January 9 conference, along with … petitions filed by the plaintiffs in Michigan, Ohio, Kentucky, and Louisiana,” National Center for Lesbian Rights spokesperson Erik Olvera told BuzzFeed News on Monday afternoon.

The plaintiffs and marriage equality advocates alike hope the petitions will provide the Supreme Court with the chance to take a case to resolve the issue nationally with a ruling that would apply across the country.

Although the justices denied petitions filed earlier in the year from other states, all were in cases in which the lower court had struck down the bans — and before there was a “circuit split,” a disagreement among the federal appeals court on the issue. All five petitions before the court now come from decisions upholding the various states’ bans.

In November, the 6th Circuit Court of Appeals, in a 2-1 decision, reversed the four district courts to have heard the cases out of Kentucky, Michigan, Ohio, and Tennessee — sending the plaintiffs in the cases from all four states to the Supreme Court seeking an appeal. 

[…]

Kentucky, Michigan, and Ohio officials agreed that the Supreme Court should take a case and resolve the issue nationally; only Tennessee officials opposed Supreme Court review.

The American Civil Liberties Union and Jeffrey Fisher, from Stanford Law School, joined the Kentucky lawyers, led by Daniel Canon, in Monday’s reply brief, arguing, “For petitioners here – and for lesbian and gay couples and families across both the Sixth Circuit and the country – the harm and confusion that the circuit split has caused calls out for immediate review.”

You can read the Kentucky plaintiffs' reply below:

14-575 Plaintiffs' Reply by Equality Case Files


Alliance Defending Freedom Wants to Make a Martyr Out of Anti-Gay Kentucky Printing Company - VIDEO

Hands on Originals

Anti-gay "Chistian" litigation group Alliance Defending Freedom (ADF) is once again playing the victim in a new video covering the Kentucky t-shirt company found guilty of violating Lexington's fairness ordinance prohibiting discrimination on the basis of sexual orientation, reports Good As You.

Best known for defending anti-gay retailers in trouble for defying laws banning discrimination, ADF also lobbies for homophobic laws abroad.

AdfBack in 2012, Hands On Originals refused to print the Gay and Lesbian Services Organization's Pride t-shirts. The company was found to have violated the non-discrimination code and was ordered to provide diversity training for staff.

Good As You’s interpretation of ADF’s latest moan?

“There is not one shred of difference between the protections that apply to gay customers and their perfectly fair consumer requests and the protections that apply to Black, Chinese-American, Jewish, straight, disabled, or Christian customers. The only difference is the sense of entitlement that far too many anti-LGBT Christians believe they deserve. And why wouldn't they believe this? There are scores of false witness bearers and false witness-bearing organizations desperate to keep that lie alive.”

Watch long-suffering pro-discrimination advocates talk about the Hands On Originals case, AFTER THE JUMP...

Continue reading "Alliance Defending Freedom Wants to Make a Martyr Out of Anti-Gay Kentucky Printing Company - VIDEO" »


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