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It's On! Supreme Court Will Hear Marriage Equality Cases: An Early Analysis

Scotus

BY ARI EZRA WALDMAN

As widely expected, the Supreme Court decided to hear four marriage equality cases out of the Sixth Circuit. Cases from Michigan, Ohio, Kentucky, and Tennessee will be consolidated into one omnibus marriage hearing over 2 1/2 hours. With the order issued today, the briefing schedule has the parties' briefs due between February and April. That means that the Court could issue a decision by the end of June 2015.

Unlike the last time the Court heard a case challenging a state ban on marriage equality (the Prop 8 case), the Court does not appear likely to sidestep the central issue. The "questions presented" for the hearing are as follows:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

These are the legal questions at the heart of the marriage equality movement. They should be squarely addressed in this case.

This post begins a series of analyses and reports on the case, which will be rolled out as the case unfolds over the next couple of months.

For now,the first of several initial considerations as we take the next step in this journey.

CONTINUED, AFTER THE JUMP...

Continue reading "It's On! Supreme Court Will Hear Marriage Equality Cases: An Early Analysis" »


Supreme Court To Hear Four Cases Challenging Same-Sex Marriage Bans In KY, MI, OH and TN

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The Supreme Court has announced that it will consider four cases that are challenging states' bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. From the Court's order:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

SCOTUS Blog reports that the cases are set to be heard the week of April 24. Lyle Deniston of SCOTUS Blog weighed in on the impact the justices' decisions will have:

Taking on a historic constitutional challenge with wide cultural impact, the Supreme Court on Friday afternoon agreed to hear four new cases on same-sex marriage.   The Court said it would rule on state power to ban gay and lesbian marriage and state power to refuse to recognize such marriages performed out of state.  

The New York Times has heralded the decision as a move by the Court to definitively decide whether same-sex couples can marry nationwide:

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Based on the court’s failure to act in October [when 5 other states sought intervention from the Court to prevent same-sex marriage from taking hold] and its last three major gay rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.

It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.

Be sure to check back for legal analysis from Towleroad's legal eagle, Ari Ezra Waldman. And read the order below:

SCOTUS by towleroad

Developing...


Kyrgyzstan Urged To Drop New Anti-Gay 'Propaganda' Law: VIDEO

  Kyrgyzstan gay rights

In a resolution adopted yesterday, the European Parliament (EP) has called on Kyrgyzstan to reject new legislation banning “gay propaganda.”

The legislation - which closely resembles anti-gay laws in Russia - was introduced in March of last year and overwhelmingly passed a first reading in October.

According to the EP’s Intergroup on LGBT Rights, the draft law would ban the dissemination of information “aimed at forming positive attitudes toward non-traditional sexual relations,” with those found guilty facing up to one year in prison.

6a00d8341c730253ef01b7c6f55abf970b-250wiAlthough the EP acknowledged democratic progress in Kyrgyzstan, it has called on the country’s parliament to reject the bill and has urged politicians from engaging in anti-gay hate speech.

Additionally, the EP has supported recommendations that the country should combat all forms of discrimination and violence based on sexual orientation and gender identity.

The Co-President of the LGBTI Intergroup and co-author of the resolution, Ulrike Lunacek MEP said:

“If this bill is passed, anyone who speaks positively about LGBTI issues can be imprisoned. This is an attack on the freedom of expression, the freedom of assembly and the right to non-discrimination for the Kyrgyz people, in particular LGBTI people.

“If the Kyrgyz parliament is serious about its constitution which protects human and civil rights, it should reject this bill.”

The legislation now requires an additional two readings and presidential approval before becoming law.

Watch a report on LGBTI rights in Kyrgyzstan, AFTER THE JUMP...

Continue reading "Kyrgyzstan Urged To Drop New Anti-Gay 'Propaganda' Law: VIDEO" »


North Carolina Catholic School Fires Gay Teacher: VIDEO

Lonnie Billard

In yet another case of anti-gay discrimination in Catholic schools, Charlotte Roman Catholic diocese, North Carolina fired teacher Lonnie Billard (above left, with his partner Rich) after he announced his engagement on Facebook, reports the Advocate.

Before his dismissal, retired Billard had continued to work as a regular substitute teacher in Charlotte Catholic High School.

Although the diocese has claimed that the school made the decision, Billard has challenged this version of events:

“This was not a decision by Charlotte Catholic High School. I had talked with one of the administration officials. He knew [about the engagement announcement]. He didn’t care. He said he knew me to be a good teacher and a good person.

“Apparently there were a couple teachers there who are super-conservative Catholic. They are not friends of mine on Facebook, but they found out about it and escalated it so it got to the diocese.

I knew the Catholic Church is behind the times when it comes to understanding and acceptance of gay people, but I thought with the current pope saying, ‘Who am I to judge?’ that maybe things would be better, but apparently that’s not the case.”

According to diocese spokesman David Hains, Billard was not fired for being gay but for violating an employment contract that prohibited him from opposing church teaching.

However, responding to objections from the diocese on the facts as presented by Qnotes, the Charlotte-based LGBT community newspaper stated:

“The violation of Billard’s contract was his statement on his intention to marry. Without this statement, Billard wouldn’t have been fired. Therefore, it is factual and accurate to report that Billard was fired because he is a gay man who announced his intention to marry his same-gender partner — an act the church calls ‘disobedience,’ but which is also a fundamental human and civil right guaranteed by the U.S. Constitution, as recently upheld by North Carolina’s U.S. District Courts and the Fourth Circuit Court of Appeals.”

In March of last year, an assistant theology professor at Charlotte Catholic caused a furore - and a backlash from parents and students - when she claimed in a speech that homosexuality occurs mainly as a result of pornography and parents' shortcomings.

Watch a report on the case, AFTER THE JUMP... 

 

Continue reading "North Carolina Catholic School Fires Gay Teacher: VIDEO" »


Happy Ending for Binational Gay Couple Kept Apart By DOMA: WATCH

Jamie and Tim

Just when you needed a break from the relentless bad news, we've received word of a happy outcome for binational couple Tim and Jamie who back in 2013 were prevented from being together in the United States because of the discriminatory Defense of Marriage Act.

Tim and Scottish native Jamie have been together since August 2006 and married in Canada in June 2012. However, Jamie was detained in SeaTac Airport, Seattle in June 2009 due to visa problems and the couple had been prevented from being together ever since.

Last week Jamie had an interview at the US Embassy in London, England and was approved for a green card.

Together for eight years and five months, the couple hopes that Jamie will be in the US before Valentine’s Day “and soon we will finally be able to spend the rest of our lives together.”

Watch a heartbreaking video about the couple’s struggle and an update following Jamie’s green card application, AFTER THE JUMP...

Continue reading "Happy Ending for Binational Gay Couple Kept Apart By DOMA: WATCH" »


Why There Should Have Been No Stay in Today's South Dakota Marriage Ruling

BY ARI EZRA WALDMAN

HdakotaAs Towleroad reported, we can put South Dakota in the marriage equality win column. The decision, which you can read here, reads like many of the other pro-equality orders from district courts over the last two years:

First, marriage is a fundamental right;

Second, the Supreme Court has said so many times;

Third, that fundamental right has been denied to same-sex couples;

Fourth, the state has no compelling reason to override such a basic and important right in our democracy.

Therefore, the state's ban on same-sex marriage is unconstitutional.

Q.E.D.

SchreierWhether U.S. District Judge Karen Schreier (pictured) took the fundamental rights approach above or the equal protection approach some other courts have chosen -- gay marriage bans treat same-sex couples differently from opposite-sex couples for no good reason and are, therefore, a violation of the guarantee of equal rights -- the result is the same.

The result in the South Dakota case also resembled many of the other district court cases from almost every other state in that implementation of the order was stayed pending appeal.

This used to be standard practice. Judges have been staying their marriage equality rulings since Judge Walker decided that Proposition 8 was unconstitutional back in August, 2010. Back then, it seemed like the safe way to go. We were, after all, breaching new ground.

It no longer makes any sense, not after the Supreme Court refused to grant a stay in Florida pending appeal. As I argued previously, the Court's refusal to extend the stay beyond January 5, 2015 was special because it was the first time the Court let stand a pro-marriage equality decision in a jurisdiction where the appellate court (11th Circuit, in this case) had not yet spoken. Everywhere else, in South Carolina, for example, or in Idaho, the Court let marriage equality go into effect because the Fourth and Ninth Circuits, respectively, had spoken. 

South Dakota is in the Eighth Circuit, which has not had occasion to decide a marriage equality case in the post-Windsor world. Therefore, with respect to the stay, South Dakota is just like Florida: a state with a pro-equality federal district court decision that should not be stayed even though the superior circuit court has not yet spoken.

It is a shame the stay was put into effect. The judge was probably just being cautious. But her caution extends the hours of discrimination and second-class citizenship for thousands of gay men and women.

***

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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


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