Law - Gay, LGBT Hub

Why Each SCOTUS Justice Might Be Avoiding the Marriage Equality Question Right Now


The media have been universally shocked at the Supreme Court's announcement today. Now that we have had time to read several media accounts (including our own Towleroad coverage) we should take a step back and analyze what this means from a legal, political, and practical perspective. I also would like to shed a little more light on how this may have happened and what conclusions, if any, we can draw from it.

ScotusLet's be clear on what did not happen. The Supreme Court did not make a substantive ruling on the constitutionality of banning gays from marrying. Nor did the Court make any ruling on the justice of marriage equality. The constitutional question lives on for another day.

The Court's denial of the petitions also has no explicit legal effect on anything other than those particular 7 cases for which it denied review and on the circuit court decisions below. It has, in the legal jargon, no precedential value: it does not compel any other court to make a certain decision in a certain way. 

But it does represent the federal courts' final word on these cases. There are no more avenues of appeal for the anti-equality forces in Wisconsin, Indiana, Utah, Oklahoma, and Virginia, as well as in the other 11 remaining states covered by the Fourth, Seventh, and Tenth Circuits that do not already have marriage equality. That means that loving, committed gay couples can start marrying in those states very soon. Thanks to Virginia Attorney General Mark Herring, "soon" is now. Other states, especially those run by conservative, anti-gay governors, may try to defy the inevitable for as long as they can. But sooner rather than later, clerks from South Carolina to Wisconsin will be issuing marriage licenses to gay couples. They will be strengthening the institution of marriage in their states and throughout the country.

Many are wondering how this could have happened. Some commentators expected (more likely, hoped) that the Court would take at least one of these cases. Some expected the Court to do nothing. Back in June, I argued that there may never be a need for the Supreme Court to take a marriage equality case. I was alone in arguing that then, and there are now several commentators coming around to realize that possibility. The denials today only reinforce my point.

Follow me for one possible explanation for how and why this happened.


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Supreme Court Denial Opens Door to Marriage Equality in 11 More States: An Analysis



Today we received word that the Supreme Court denied review of all seven marriage equality that were pending before it. These cases came out of the Fourth, Seventh, and Tenth Circuits. This means that the Supreme Court has made its move, the appellate courts' pro-equality decisions will stand, the stays will be lifted (shortly), and marriages can begin shortly thereafter. 

Consider the magnitude of this win.

The Fourth Circuit includes Maryland, West Virginia, Virginia, North Carolina, and South Carolina. The Seventh Circuit includes Indiana, Illinois, and Wisconsin. The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Those jurisdictions cover nearly 74 million people. Taking away those states that already have marriage equality--Maryland, Illinois, and New Mexico--and we will soon have more than 52 million more Americans living in marriage equality states.

It also will ultimately bring 11 more states to the marriage equality fold. That will likely happen in two stages. First, the five states that were defendants in the cases the Supreme Court just denied will almost immediately have to allow gay couples to marry. Then, because the appellate court decisions cover the other states, as well, all the remaining the states will have to do the same in short order. This brings our marriage equality tally to 30 states plus the District of Columbia. Three-fifths of the states will now be marriage equality states just like that!

In addition to the very real, practical effect of allowing tens of thousands of gay couples to marry, the surprising denial may mean several other things:

First, the Supreme Court is making a strong, though of course not definitive statement, about where it is heading. To deny all seven cases and let the pro-equality appellate court decisions stand speaks to the court's willingness to see marriage equality come to more states. If a majority was opposed to that, at least four justices would have voted to take the case to try to prevent that from happening.

GinsburgSecond, taking today's actions together with Justice Ginsburg's recent statements that the Supreme Court will take a marriage equality case "soon" and to look to the Sixth Circuit, it seems as if the Court is respecting the traditional canon of not taking a case before it has to. We have, to date, run the table on marriage equality in the federal appellate courts, so there is no circuit split (an old Eighth Circuit case from before Windsor does not count). 

Third, if I wanted to be a little cheeky, I would say the Court is almost daring the conservatives on the Sixth Circuit to uphold the ban on gays marrying. "We dare you to send us a bigoted decision saying gays cannot marry. We just allowed 11 more states to let gays marry. Marriage equality is almost literally surrounding the Sixth Circuit. We dare you! Watch how fast we reject you."

So, what happens now?

Because the Supreme Court has denied review in all marriage equality cases, those cases are over. The appellate court decisions, which upheld district court decisions holding marriage discrimination provisions unconstitutional, stand. Since the cases are over and since the Supreme Court's denial of review is final word on the matter, the stays, whether issued by appellate courts or district courts, will end shortly. Within a few days, gay couples should be allowed to marry in Wisconsin, Indiana, Virginia, Utah, and Oklahoma. For marriage equality to come to the other states under the jurisdiction of the Fourth, Seventh, and Tenth Circuits, an additional step may be needed. Attorneys general or governors in those states could immediately declare that per the Supreme Court's denial and the impending order from the appellate courts, those states' bans are null and void, and that clerks should start issuing marriage licenses as soon as possible. Normally, courts will give states a short leeway time to make the necessary administrative changes to comply. 

Sure, a governor or attorney general could try to nullify the courts' orders, standing in the proverbial schoolhouse door like an anti-gay version of the racist Governor George Wallace. But if a gay couple in, say, South Carolina, goes to a clerk's office and seeks a marriage license in accordance with all other South Carolina marriage law requirements, any clerk's refusal to issue a license on the ground that the individuals are gay would be subject to a lawsuit that would immediately be decided in the couple's favor.

Expect some rhetorical protests, especially from the more recalcitrant and conservative Republican governors, but do not expect their defiant behavior to last very long.


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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 pursuing 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.

PHILIPPINES: Quezon City Council Bans LGBT Discrimination, Includes Affirmative Action

Quezon cityQuezon City Council has become the latest Philippines city to approve an ordinance banning discrimination against LGBT people, reports FRIDAE.

Late last month, Agusan del Norte passed a similar anti-discrimination ordinance (ADO) that protects people irrespective of their sexual orientation and gender identity and expression.

The ordinance was passed unanimously on September 29th.

The ADO improves on a 2003 resolution preventing discrimination against LGBT people in the workplace by providing venues to educate employers and educators on the rights of LGBT individuals.

Praising the inclusion of affirmative action in the ADO, Ging Cristobal, project coordinator for the Asia Pacific region of the International Gay and Lesbian Human Rights Commission and vice chairperson of the Quezon City Pride Council, said it will also be useful to everyone in the community, regardless of sexual orientation or gender identity and expression.

In an interview with Philippines LGBT magazine Outrage, Quezon Vice Mayor Joy Belmonte highlighted the importance of an ordinance that will protect the rights of LGBT individuals:

“There are many LGBT [people] in our city, and I believe they are such a strong and important force in our city’s progress and development. There’s so much they can do for the city if we help them.”


Hillsborough County, Florida Extends Non-Discrimination Protections To LGBT Citizens - VIDEO

Kevin beckner

Florida’s Hillsborough County Commission voted Wednesday to extend its Human Rights Ordinance to protect LGBT citizens, reports The Tampa Tribune.

The ordinance prohibits discrimination in employment, public accommodations, real estate transactions and county contracting and procurement.

The unanimous 7-0 vote reverses a 1995 decision that removed gay people from the county’s protection ordinance.

Several speakers at the commission meeting opposed extending protections to LGBT citizens. One speaker referred to homosexality as a “disfunction” and suggested that to extend protections would lead to special rights for pedophiles.

The vote was a victory for Kevin Beckner, the county's first out gay commissioner, who had assembled a business coalition in support of the amended ordinance, making it easier for some of the more-conservative commissioners to vote yes.

Members of the coalition argued that a more inclusive and diverse community is also more prosperous and attractive to highly trained workers.

Terry Wolfe, a resident who spoke in favor of the ordinance, said that the vote “goes a long way toward creating a climate of equality” in the county.

Watch a report on the leadup to the vote, AFTER THE JUMP...

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Russia Ends U.S. Student Exchange Program, Blames Elderly Michigan Gay Couple

Russia’s children’s rights ombudsman Pavel Astakhov

Russia has canceled a foreign exchange program with the U.S., alleging that a gay couple persuaded a man to stay with them and apply for asylum, reports The Guardian.

FlexSince 1992, the state department-financed Future Leaders Exchange (FLEX) has brought 23,000 students aged 15 to 17 from Russia and former Soviet countries to study in U.S. schools and live with local families for one academic year.

Human rights organisations have accused the Russian government of promoting discrimination following the introduction of a "gay propaganda" law last year.

Announcing the end of the country’s participation in FLEX, Russia’s children’s rights ombudsman Pavel Astakhov [pictured above] said the couple became the legal guardians of the Russian student, after the student left his host family and stayed in the U.S. when the school year ended in May.

According to Russian state news agency Itar-Tass, the student met the couple - elderly veterans who had previously adopted two American boys - in church and the men offered to become his immigration sponsors and pay for him to study at Harvard University.

Astakhov explained on Twitter that the cancellation came about because of a “gross violation by the host country, the United States, of the obligation to unconditionally return students from Russia who travel there to study.”

In an interview with the official government newspaper Rossiiskaya Gazeta, he added that the student moved in with the two men in Michigan, “and they gradually developed – how can I say this carefully – close friendly relations.”

Anton Meshkov, a former FLEX student, said the fact that 15 young people are thought to have stayed in the U.S. after the program ended was not a “serious reason to take away the chance to travel from hundreds of kids”.

“It’s absurd to suppose that the program could facilitate the seduction of young Russians. As a participant in this program myself, I know what a serious selection process host families go through.”

Last year, Astakhov vowed he would do everything possible to ensure that Russian orphans were only adopted by heterosexual couples. 

Controversy Surrounds Screening Of Gay Teen Documentary in Russia - VIDEO

404 film

A Russian television channel has created controversy surrounding the screening of a documentary about gay teens last month at the Pacific Meridians festival in Vladivostok, according to The Hollywood Reporter.

According to People's Patriotic Channel, despite the 18+ rating of the documentary Deti 404 (Children 404), tickets to the screening were sold to minors without a proper ID check.

404404 refers to an online forum for Russian-speaking LGBTQ teens and to an error message displayed on Russian computer screens when people attempt to navigate to a web page that doesn't exist. 

People's Patriotic Channel claims that the documentary violates Russia's "gay propaganda" law.

A screening of the film in St Petersburg last April was disrupted by Orthodox Christian activists and police.

The festival's organizers have said the theater is to blame for the incident but added that the inclusion of the film into one of the festival's sections was important as it deals with a major social issue.

Festival programming director Natalia Timofeyeva said “this film is very useful because we are striving for a tolerant society in which people who are different can also exist.”

Watch a trailer for Deti 404, AFTER THE JUMP...

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