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Federal Judge Who Struck Down Kentucky's Ban on Gay Marriage Dies

U.S. District Court Judge John G. Heyburn, who ordered in February 2014 that out-of-state same-sex marriages be recognized in Kentucky and five months later struck down the state's gay marriage ban in a separate ruling, has died at age 66, Reuters reports:

HeyburnHeyburn died at his Louisville home surrounded by family after a years-long battle with cancer, the U.S. District Court for Western Kentucky said in a statement.

Here is a bit from Heyburn's equal protection analysis in Love v. Beshear:

The Court will begin with Defendant’s only asserted justification for Kentucky’s laws prohibiting same-sex marriage: “encouraging, promoting, and supporting the formation of relationships that have the natural ability to procreate.” Perhaps recognizing that procreation-based arguments have not succeeded in this Court, nor any other court post-Windsor, Defendant adds a disingenuous twist to the argument: traditional marriages contribute to a stable birth rate which, in turn, ensures the state’s long-term economic stability.

These arguments are not those of serious people. Though it seems almost unnecessary to explain, here are the reasons why. Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

You can read our legal editor Ari Ezra Waldman's analysis of his ruling here.

Heyburn was appointed by President George H.W. Bush in 1992 at the recommendation of now-Senate Majority Leader Mitch McConnell.


Ohio Highway Patrol Issues Final Report Regarding Transgender Teen Leelah Alcorn’s Suicide

Ohio State Highway Patrol Troopers have released a final report regarding transgender teen Leelah Alcorn's suicide reports WLWT 5. Troopers say Alcorn died from blunt force trauma after she stepped in the path of a 2006 Freightliner semi-truck on Interstate 75 in Turtlecreek Township in December. Investigators found Alcorn's backpack with her laptop inside at the scene of the crash. Upon examination detectives found searches for suicide prevention and runaway assistance in the computer's search history but found no suicide note in the computer's system.

Troopers also noted that Alcorn's parents found their daughter's handwritten suicide note next to her bed the night before she died. Alcorn's mother originally threw it away but retrieved it at the investigators request. Investigators also uncovered an iChat on Alcorn's computer where she discussed ending her life with her friends:

Alcorn"I had my jacket and clothes and shoes on. My suicide note was queued on Tumblr, and I was ready to jump off the bridge next to my house that goes over I-71, but I decided to call a transgender suicide hotline and I basically cried my eyes out for a couple hours talking to a lady on there.

"This is very important to me, it's not like something that I want to do just because I want to (such as someone wanting to dye their hair) like this is something I have to do. If I don't, I will kill myself. That’s how serious it is. I am so uncomfortable with my body and myself that if I don't do this I wouldn’t be able to help myself but commit suicide."

Alcorn's suicide garnered attention in the media, spurring LGBT activists to create a rallying cry for trans rights. Earlier this month President Obama announced he supports banning LGBT conversion therapy for minors in response to a "We the People," petition drafted by LGBT activists dubbed "Leelah's Law," urging the government to ban the dangerous practice of LGBT conversion therapy.


Marriage at the Supreme Court 2.0 Analysis: Why a Sex Discrimination Ruling is No Victory At All

BY ARI EZRA WALDMAN

J_robertsDuring oral argument in Obergefell v. Hodges, the same-sex marriage case, Chief Justice John Roberts asked an important, substantive question that had some commentators scratching their heads. The plaintiffs' lawyer had just made the argument that bans on gays marrying amounts to discrimination on the basis of sexual orientation. Then, the Chief Justice said:

I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?

In a way, he's right. Sue can marry Joe because she's a woman; Tom can't marry Joe because he's a man. That's sex discrimination. And although this seems pretty obvious, the argument got scant attention in the volumes of briefs before the Court in Obergefell and was raised only a few times during the post-Windsor onslaught of cases over the last two years.

That is not to say that the sex discrimination argument is entirely foreign to the marriage equality movement. Indeed, as Northwestern Law Professor Andrew Koppelman and George Mason Law Professor Ilya Somin noted in their Obergefell amicus brief, some of the first generation of marriage equality cases relied on a sex discrimination rationale. And if his question is any indication of his ultimate opinion -- a dubious correlation, however -- the Chief Justice could be another vote in favor of marriage equality.

Perhaps most gay couples yearning to marry don't care how we get to a nationwide freedom to marry, just as long as we get there in the end. After all, a win is a win is a win. But a sex discrimination argument would be like winning a battle because the enemy engaged in a strategic retreat: it is not only unsatisfying, it doesn't answer the ultimate question of who wins the war. It leaves gay persons without necessary constitutional protections and opens us up to myriad forms of discrimination. Arguing that gay marriage bans are examples of sex discrimination is a half truth: they may be discriminating on the basis of sex, but they absolutely discriminate on the basis of sexual orientation, as well. To ignore the latter just because the former is a little easier offers tacit approval for antigay discrimination.

I tease out the sex discrimination argument, explain why it should be discarded, and speculate on how the argument could play out in June, AFTER THE JUMP...

Continue reading "Marriage at the Supreme Court 2.0 Analysis: Why a Sex Discrimination Ruling is No Victory At All" »


Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

BY PAUL GORDON

Paul Gordon is Senior Legislative Counsel, People For The American Way

One of the words being bandied about at this morning’s oral arguments in the marriage cases was “millennia.”  One of the anti-equality side’s main talking points is that equality proponents are asking the Justices to “redefine marriage,” as if marriage has been static in nature for time immemorial. Justice Kennedy raised this issue early in oral arguments. As reported in the Washington Post:

Ginsburg10:06 a.m.: Justice Anthony M. Kennedy, who is believed to be the deciding vote in this case, quickly jumped in with a question about the long-standing view of marriage as between two members of the opposite sex. “The word that keeps coming back to me is ‘millennia,’ ” he said.

Same-sex marriage has been legal in the United States for only about a decade, since Massachusetts legalized it in 2006, Kennedy said. “I don’t even know how to count the decimals,” he said. “This definition has been with us for millennia.”

Perhaps no one is better qualified to tackle this aspect of the case than Justice Ginsburg. As live-blogged by SCOTUSBlog:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples -- in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live.

Indeed, the idea of marriage as the voluntary union of two lawful equals is hardly one that goes back millennia, or even to our nation’s founding.  For much of American history, women who got married actually lost their civil identities as individuals, being seen in the eyes of the law only as the wives of their husbands, who had all the legal rights.  In the 19th century, it was considered a major reform to allow a woman to keep her own property in her own name after she married, rather than having it automatically transfer to her husband.  A more recent reform is that a wife is not automatically considered to have given consent to her husband for sexual intercourse.

Marriage as it is practiced in our country is hardly millennia old.  Much of what defined marriage in U.S. history would today be struck down as violating the rights of women under the 14th Amendment.  When a New York court in the 1980s struck down that state’s rape exemption that allowed men to rape their wives, the judge opened his opinion with quotation from John Stuart Mill’s 1869 essay The Subjection of Women:  "Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house."

But the court that struck down the spousal rape exemption more than a century after that was written was not engaged in an illegitimate “redefinition” of marriage.  It was simply enforcing the 14th Amendment, as the Supreme Court is being asked to do today.

This post originally appeared at People for the American Way.

You can listen to audio of the SCOTUS hearings and read the transcripts HERE.

Our legal editor Ari Ezra Waldman has posted his initial analysis of the arguments in four parts: Part 1, Part 2, Part 3, Part 4. We suggest starting with the first.


Marriage at the Supreme Court 2.0 Analysis: Recognizing Valid Out-of-State Marriages

BY ARI EZRA WALDMAN

THIS ANALYSIS IS CONTINUED FROM PART 3. FOLLOW ALONG ON THE AUDIO CLIP FOR QUESTION 2.

DriemeierAs we have discussed, the single consolidated case of Obergefell v. Hodges raised two legal questions. The first question, which we have been discussing, is whether the Fourteenth Amendment prohibits States from banning gays from marrying. The second question, inspired by several plaintiff couples who married in one state but live in states that do not allow gays to marry, asks whether the Fourteenth Amendment allows a states to refuse to recognize valid marriages performed out of state.

A few preliminary notes before we get to the argument:

  • If plaintiffs win on Question 1 -- if the Fourteenth Amendment prohibits marriage discrimination -- Question 2 is irrelevant. Plaintiffs would be able to go home and get married.

  • It is possible that the Court could agree with one party on one question and disagree with that party on another question. For example, the Court could say states have to recognize valid out of state marriages, but they need not be forced to perform them on their own. That's a tough middle road because it would ultimately result in a nationwide right to marry, but cause significant hardship.

WhelanThe argument lasted a little under an hour. Doug Hallward-Driemeier (above, right), an accomplished Supreme Court practitioner, argued for marriage equality. Mr. Hallward-Driemeier, like his colleague Mary Bonauto, did a fine job under difficult circumstances. Ms. Bonauto had a hotter bench. Compared to both, Mr. Joseph Whelan (right), Solicitor General of Tennessee, was an absolutely failure. He started his argument at about minute 24. He didn't know the law, made obvious mistakes on basic material, and had the justices asking questions as if Mr. Whelan were back in first year of law school. The first 10 minutes of his argument amounted to the justices challenging him on basic questions of law. Justice Breyer, often playing the role of the referee today, took a professorial approach: "what case says that", for example, When this happens, you know your day is going poorly.

A few notable things happened (and didn't happen):

  • Justice Kennedy did not ask a single question on Question 2. This could be a tip of that hat to where Justice Kennedy is leaning. Question 2 is irrelevant if the Court decides that States cannot ban gays from marrying. That Justice Kennedy didn't have any questions -- that he wasn't concerned about any legal issue -- may suggest that he doesn't need to address Question 2. 

    And it wasn't just Justice Kennedy. There was decidedly fewer questions, and fewer hostile questions, from the bench during Question 2. This suggests that several members of the Court are indeed ready and willing to decide on Question 1.

  • At Minute 25, Justice Scalia wanted to know why the Full Faith and Credit Clause, which requires states to recognize the rulings and decisions of other states, does not control Question 2. It took Mr. Whelan some time, after a detour into several incorrect statements of law, to finally aver that Supreme Court precedents have distinguished between court orders and things like marriage licenses. Orders and judgments get full faith and credit; traditionally, marriage licenses do not. Notably, it doesn't have to be that way. The Supreme Court could say that the clause could apply to marriage licenses.

The rest of the argument seemed like an anti-climax. Mr. Hallward-Driemeier did a fine job going back to his talking points and framing the debate according to the narrative of his clients. Mr. Whelan failed miserably from question to question.

Stay tuned to Towleroad for analysis once we take a few steps back.

And if you missed the earlier parts of this analysis, you can find them here: Part 1, Part 2, Part 3...

***

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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.


Marriage at the Supreme Court 2.0 Analysis: The States' Arguments Are Not About Gays

BY ARI EZRA WALDMAN

THIS ANALYSIS IS CONTINUED FROM PART 2. FOLLOW ALONG ON THE SECOND HALF OF THE AUDIO CLIP FOR QUESTION 1 (starting at about 41:30).

It's remarkable how the States could make their arguments against letting gays marry and almost ignore the antigay discrimination element. It may be good strategy: you don't want to admit that you're oppressing people. But it is still a remarkable thing to ignore the people your policies hurt and reorient your argument into something about institutional competence or separation of powers. The question the States see is at issue is this: Who decides?

"Is it the people ... or is it the federal courts?"

BurschThe States' attorney John J. Bursch (Special Assistant Attorney General, Michigan) went further: This case, he said, is about "the fundamental liberty interest" of the citizens of the States to "decide what marriage means."

It took Justices Sotomayor and Breyer less than 2 seconds each to chime and say no. And it just got worse from here for a lawyer who didn't have many answers. 

Justices Sotomayor, Kagan, Breyer, and Ginsburg focused many of their questions on the States' argument that banning gays from marrying will actually enhance opposite-sex marriage. Obviously, the States' attorney could not answer that because banning gays from marrying has no effect on opposite-sex marriages. He fumbled the ball, relying on a softball question from Justice Scalia that we will discuss in a future post. This argument is a loser for the States.

The most symbolic moment came when the States' attorney posed a hypothetical. Imagine there are two couples, both have been together for several years, both are married, both have a three-year-old child: one child grows up believing that marriage is about keeping the family unit, including the child, together (if you are pictorially-inclined, imagine a triangle); the other child grows up believing that marriage is about expressing the emotional commitment between the individuals married (imagine a line) and as that commitment fades, the marriage breaks up. The States' attorney was arguing that two-person commitment is not enough because as an ideal of marriage, mere two-person commitment weakens marriage. It makes it about just the married people, not the life that they are encouraged to bring into the world. A child who grows up in a world where marriage is a line is more likely to get divorced and more likely to not procreate. A reasonable voter could believe that the triangle is better than the line.

In a way, this is a clever strategic argument because it turns the marriage equality push on love and commitment into a burden.

But it is insidious, discriminatory, and downright evil. I will highlight two ways. First, it reminds us of the stereotypes of gay persons as purely hedonistic and out for themselves. Second, it derogates the commitment of those persons who simply do not want to have children. And third, as Justice Kennedy noticed very quickly, the relevance of that argument to the current case assumes that gay marriages could not have a "more noble purpose." To suggest that gay couples cannot embrace the noble purposes of marriages is deeply offensive.

KaganThe States' argument shattered when Justice Kagan posed the question of allowing couples who do not want -- or cannot have -- children. The States' definition of marriage was "procreation centered," as Justice Kagan said. If that were correct, then it should also be constitutional to ban couples who cannot or will not have children from marrying.

A few take aways from Question 1:

  • Justice Kennedy seemed entirely unconvinced by everything the States' attorney said. He was critical of the States' arguments and asked pointed questions that expressed his skepticism.

  • The States' argument comes down to two related points: A reasonable voter could believe that marriage should be bound up with the state's interest in encouraging procreation inside marriage. If that's true, then it is entirely reasonable for state voters to choose opposite-sex marriage over same-sex marriage. This returns us to the question of "who decides?" Should a court step in or should the will of the people be left?

    The problem with that argument is that it doesn't make any sense. Yes, a reasonable voter could believe that marriage is about creating children. However, there is no connection between that reasonable view and banning gays from marrying. Justice Kagan understood this, as did Justice Breyer and Justice Ginsburg. Justice Kennedy understood it, too.

There is, obviously, much more to discuss. Argument summaries on Question 2 are coming up.

***

Follow me on Twitter.

Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.


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