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Obamacare, Religious Exemptions, and Gay Rights: Hobby Lobby at the Supreme Court Today


SupremesToday, the Supreme Court is hearing arguments in a case about Obamacare. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Now, the Court is considering whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

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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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Utah Says It Won't Recognize Validity of Gay Marriages Performed Before SCOTUS Stay

Utah Governor Gary Herbert announced on Wednesday that the state would not recognize same-sex marriages performed before the Supreme Court issued a stay on Judge Robert Shelby's ruling striking down the state's ban, the Salt Lake Tribune reports:

HerbertIn a letter to state agencies, Derek Miller, chief of staff to Gov. Gary Herbert, said those marriages will be "on hold" while it appeals the decision by U.S. District Court Judge Robert J. Shelby.

Please understand this position is not intended to comment on the legal status of those same-sex marriages," the letter said. "That is for the courts to decide."

With a stay in place, the original laws governing marriage in Utah are again in effect.

"Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued," the letter said.

Utah's attorney general Sean Reyes says the state has been unable to determine the "ultimate validity" of the marriages and will let the Court decide. Meanwhile, state agencies are being advised by a review team on what action they should take.

Read the full text of the letter, AFTER THE JUMP...

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Validity Of Utah Same-Sex Marriages Questioned, Will Likely Require Litigation

UtahThe window for same-sex marriages in Utah was short, and the aftermath may not be so sweet. Now that the Supreme Court has granted a stay on marriage licenses for same-sex couples until the case can be appealed, Utahns who got married between December 20th and the beginning of the new year are in limbo. Many legal experts are floating questions about the marriages' continued validity.

What does seem clear is that the issue will likely require litigation outside of the appeal process for the original lawsuit, Kitchen V. Herbert, which inspired District Judge Robert Shelby to strike down Utah's ban on same-sex marriage. When legal action will occur, and what its outcome may be, are of course in question as well.

The Washington Blade reports:

Now that the stay is in place, the attorney general’s office itself has expressed uncertainty about whether the marriages performed in the state will be considered valid. In a statement, [Attorney General Sean] Reyes (below and right) cited a lack of precedent on the issue.

Seanreyes“This is the uncertainty that we were trying to avoid by asking the District court for a stay immediately after its decision,” Reyes said. “It is very unfortunate that so many Utah citizens have been put into this legal limbo. Utah’s Office of Attorney General is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally.”

Although Reyes maintains he won’t rush into a decision, pressure will be on the state to decide soon. Now that 2014 has begun, gay couples that recently married in Utah will be filing their taxes and will need to know whether they qualify as married or single.

EqualityutahThere are several possible scenarios. One may find gay Utahns in the same boat as San Franciscans who married under mayor Gavin Newsom only to have their legal unions invalidated; another, straight out of California, could see the marriages remain valid, as they did after California citizens voted to approve Prop 8 in 2009. Yet another possibility may find same-sex marriages in Utah receiving federal recognition even while Utah does not recognize them. Opinions differ, though, and it is unclear how smoothly further action will occur. 

Several people, including Shannon Minter of the National Center for Lesbian Rights and Suzanne Goldberg, the co-director of Columbia University's Center for Gender and Sexuality Law, agree that the marriages were valid when entered, and that should improve their chances of remaining valid under federal and state scrutiny.

“The federal government should recognize them for most purposes because federal recognition for almost all federal benefits hinges only on whether a marriage was valid when entered,” Minter said...

“It is unlikely that the marriages already performed in Utah will be invalidated,” Goldberg said. “Those marriages were performed in accordance with Utah law and a later change in the law, if there is one, should not undo them.”

Utah Governor Gary Herbert: Supreme Court Was Right to Issue Stay on Gay Marriage Ruling

Utah Governor Gary Herbert released a statement following the Supreme Court's decision to halt gay marriages pending appeal this morning.

HerbertWrites Herbert in the statement:

"The Supreme Court made the correct decision to stay Judge Shelby's ruling in the Amendment 3 case. Clearly, the stay should have been granted with the original District Court decision in order to have avoided the uncertainty created by this unprecedented change.

As I have said all along, all Utahns deserve to have this issue resolved through a fair and complete judicial process. I firmly believe this is a state-rights issue and I will work to defend the position of the people of Utah and our State Constitution."

Plaintiffs Submit Response to Sotomayor Opposing Request for Halt to Same-Sex Marriages

Supreme Court Justice Sonia Sotomayor has received response from the plaintiffs representing three couples challenging Utah's ban on same-sex marriage to a brief filed by the state on Tuesday urging a halt to gay marriages pending the state's appeal of a case striking down the ban.

SotomayorSotomayor, who had set a noon deadline Friday for the plaintiffs' response, will now rule on her own or ask the full Court to weigh in.

The Salt Lake Tribune reports:

This is the state’s fifth attempt to get the order stayed. Shelby denied it once, and the 10th Circuit Court of Appeals in Denver turned down the state’s stay request three times. Both courts held that the state’s likelihood of prevailing on appeal was unlikely, the plaintiffs’ attorneys said.

The 10th Circuit Court of Appeals, however, agreed to review the case itself on an expedited basis. Filings are due in the case by the end of February, after which the court will take it under consideration...

...Magleby and Tomsic say Shelby determined that in previous rulings the U.S. Supreme Court recognized the freedom to marry as a fundamental right based on individual rights to liberty, privacy and freedom of assocation — rights that under the Fourteenth Amendment take precedence over states’ rights when there is a conflict between the two. Shelby also found the state did not present even a rational basis, the lowest standard of review, for denying same-sex couples’ right to marry, they said.

In a column posted yesterday, our legal analyst Ari Ezra Waldman argues why there should be no stay of marriage equality in Utah.

Read the brief below:

13A687 #3 Plaintiffs' Opposition to Stay by Equality Case Files


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