GUAM: Court Strikes Down Marriage Ban

Via Pacific Daily News:

Guam's chief federal judge this morning struck down the local law that restricts marriage to opposite-sex couples. A written opinion is expected Monday and the ruling will take effect on Tuesday. In her ruling, Chief Judge Frances Tydingco-Gatewood said the laws denying marriage rights to same-sex couples were unconstitutional, citing a previous decision by the 9th Circuit Court of Appeals, which has jurisdiction over Guam. The ruling came after about an hour and a half of arguments over whether Tydingco-Gatewood was obligated to act immediately in striking down local law. Following her ruling, the courtroom erupted into applause for Loretta M. Pangelinan and Kathleen M. Aguero, the couple who filed the case. Before making their way out, friends, family and supporters lined up in the gallery to offer hugs to the women. Pangelinan and Aguero filed the case in April after they were denied a marriage license application at the Department of Public Health and Social Services. Their attorneys argued that the case had already been decided by the 9th Circuit in 2014 and, as a result, Guam had no choice but to follow suit.

Editorial Of The Day

From the Pacific Daily News:

Gov. Eddie Calvo needs to retake civics after he passed the buck on the attorney general's legal memorandum on gay marriage to lawmakers and voters. Calvo could have made the courageous decision to end discrimination against homosexuals in Guam. Instead, he essentially abdicated his power to enforce our island's and our nation's laws to senators and voters. By choosing to ignore the AG's opinion and thus the 9th Circuit's ruling, Calvo is violating the oath he took to enforce the Constitution of the United States by permitting the same-sex marriage license ban to stand. Calvo should follow the lead of Puerto Rico Gov. Alejandro Garcia Padilla. Padilla said Puerto Rico will no longer defend the Commonwealth's ban on same-sex marriage, months after U.S. District Court Judge Juan Perez-Gimenez dismissed a case that sought to overturn the ban.

Calvo was due to issue a decision on the AG's edict today, but local news outlets report that he is currently "off island." Guam would become the first US territory to legalize same-sex marriage.

GUAM: AG Directs Territory To Issue Marriage Licenses, Governor Says No

Following a lawsuit filed last week, Guam Attorney General Elizabeth Barrett-Anderson has declared that same-sex marriage licenses are to be issued immediately, saying that the ruling of the Ninth Circuit Court in the case brought against Idaho is applicable. Guam would become the first US territory to issue same-sex marriage licenses, but for now GOP Gov. Eddie Calvo is standing in the way.

Gov. Eddie Calvo and Lt. Gov. Ray Tenorio issued a statement on the gay marriage issue. Although they respect the opinion of Attorney General Elizabeth Barrett-Anderson that Guam should allow same-sex marriage immediately, the administration is deferring a decision, according to the statement. "If it is the will of the people of Guam to make same-sex marriage legal on Guam, then the Guam Legislature, the people of Guam’s representatives, can take action to change the law, or a referendum can be held giving the people of Guam a direct voice in this issue," the statement read in part. The administration's legal team is reviewing the matter, according to the written statement. A federal lawsuit challenge on Guam's marriage laws will not be withdrawn despite the Guam attorney general's decision to direct the local public health agency to "immediately" start issuing marriage licenses to qualified same-sex couples. Attorney General Elizabeth Barrett-Anderson was "doing the right thing" by directing the Department of Public Health and Social Services to issue marriage licenses to gay couples, Loretta M. Pangelinan and Kathleen M. Aguero said through their attorneys. Pangelinan and Aguero filed the federal suit Monday following Public Health's rejection of their marriage license application last week.

Guam has a population of 160K and is about twice the size of Staten Island. See the statement of Guam's attorney general below.

RELATED: There are five US territories: Guam, Northern Mariana Islands, American Samoa, Puerto Rico, and the US Virgin Islands. Yesterday the First Circuit Court of Appeals deferred making a ruling on same-sex marriage in Puerto Rico until the US Supreme Court hands down its decision.

IDAHO: Plaintiffs Oppose State's Demand That SCOTUS Hear Marriage Appeal

The National Center for Lesbian Rights today filed a motion which opposes Idaho Gov. Butch Otter's petition that SCOTUS hear an appeal of his state's same-sex marriage ruling. Equality Case Files has the motion:

The Court has already granted four petitions for writs of certiorari to decide the questions presented in this case. There is no cause to add yet more petitions, especially ones with vehicle problems. Nor should the Court hold these certiorari petitions pending its decision in the marriage cases from the Sixth Circuit. The Court has previously denied petitions for writs of certiorari by state officials seeking to block same-sex couples from marrying and to withhold recognition of such couples’ lawful marriages performed in other States. The Court should do the same here, notwithstanding the pendency of other marriage cases. Two of the respondent-couples have already married (as have many other residents of Idaho) in reliance on the injunction issued by the district court in this case, and their marriages should no longer be subject to the uncertainty created by ongoing litigation. The petitions should be denied.

The NCLR notes that the Ninth Circuit Court has already twice slapped Otter down.

ALASKA: AG Craig Richards To Suspend Marriage Appeal Until SCOTUS Rules

"The Supreme Court announced today that it granted certiorari to four same-sex marriage cases. The court’s order makes it clear that it will address the same issues that are at the heart of the Alaska same-sex marriage case, which is on appeal before the 9th Circuit Court of Appeals. It is anticipated that the numerous ongoing cases across the country addressing these important issues, including Hamby v. Parnell, will be stayed pending a decision by the Supreme Court. I will ask the 9th Circuit to similarly stay Alaska’s case until the Supreme Court issues its decision." - Alaska Attorney General Craig Richards, in a statement issued last night. The Ninth Circuit denied Alaska's appeal for an en banc review back in November, so I'm not clear on how this appeal is still active. Readers? (Tipped by JMG reader Christopher)

IDAHO: Ninth Circuit Court Denies Gov. Butch Otter's Demand For En Banc Review

After referring the issue to the full roster of nonrecused judges, the Ninth Circuit Court has denied Idaho Gov. Butch Otter's demand for an en banc rehearing of his same-sex marriage appeal. The National Center For Lesbian Rights reacts:

“The Ninth Circuit correctly recognized that there is no need to reconsider the panel’s decision that Idaho’s marriage ban violates basic constitutional guarantees of equal protection. The Ninth Circuit’s decision striking down the Idaho marriage ban is consistent with the rulings of three other federal appeals courts, which have rightly concluded that our Constitution cannot tolerate the profound harm that denying same-sex couples the freedom to marry inflicts those couples and their children.”

Three judges dissented from the majority. The dissenting opinion, which goes on and on for many pages, cites the 1970 Baker V Nelson ruling.

IDAHO: Gov. Butch Otter Asks SCOTUS To Hear Same-Sex Marriage Appeal

Idaho Gov. Butch Otter today filed an amicus brief with the Supreme Court in which he demands that they hear the appeal from his state over any others.

If this Court is prepared to decide the constitutionality of state man-woman marriage laws - as amicus believes it should - it is important that the Court have before it at least one case in which state officials will vigorously defend those laws on the merits. Unless state representatives in one case are mounting such a defense — including an explanation of why the man-woman definition of marriage satisfies any form of heightened scrutiny — neither the Court nor the public can be assured that the ultimate decision will be the product of a fair contest between opponents who made the strongest possible arguments on both sides.

Although the officials in the cases now before the Court have been well represented, none has demonstrated a willingness to mount such a defense. Perhaps they believe this Court will inevitably reject all the arguments for heightened scrutiny, thus making a defense under such a standard superfluous. Or perhaps some fear (incorrectly) that a vigorous defense will impugn the parenting skills of same-sex couples and thus be offensive to gays and lesbians. Whatever the reason, these officials’ presentations have left an important viewpoint unrepresented, and it is one that needs to be vigorously presented in this Court.

That is a main reason Governor Otter respectfully suggests that the Court ensure that the Idaho case Otter v. Latta, - in which the Governor is a named party - is among the cases the Court uses as “vehicles” for deciding the constitutionality of the man-woman definition. Unlike the laws now before the Court, Idaho’s definition has been vigorously defended, in part on the ground that it satisfies the heightened scrutiny that the Ninth Circuit held applies to such laws. And unlike those cases, the Ninth Circuit in Latta purported to address Idaho’s heightened-scrutiny defense. Moreover, Latta will likely be before the Court in a very few days: Unless the Ninth Circuit quickly grants the pending petition for rehearing en banc, amicus intends to seek this Court’s review by January 5, 2015.

Read the full brief at Equality Case Files.

LOS ANGELES: Ninth Circuit Court Upholds Law Mandating Condoms In Porn

Via the Associated Press:

A Los Angeles County ordinance requiring actors in pornographic films to use condoms does not violate the porn industry's First Amendment rights of free expression, a federal appeals court ruled Monday. The decision from a three-judge panel of the 9th U.S. Circuit Court of Appeals rejected the industry's contention that having actors use condoms would interfere with a film's fantasy element by subjecting viewers to real-word concerns like pregnancy and sexually transmitted diseases. For the First Amendment argument to apply, the court ruled, there would have to be a great likelihood that a film's audience would understand that intended message. "Here, we agree with the district court that, whatever unique message plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message," said Judge Susan P. Graber, writing for the panel's majority.

AIDS Healthcare Foundation head Michael Weinstein called the ruling a "total vindication." The AHF was the bill's primary backer. A similar bill to implement the rule statewide died last year in a state Senate committee. Weinstein has vowed to place the issue to a public ballot if the bill is not resurrected.

OREGON: Ninth Circuit Court Denies NOM's Appeal For En Banc Rehearing

BOOM.

IDAHO: Gov. Butch Otter Keeps Trying

Via Boise's NBC affiliate:

Gov. C.L. "Butch" Otter wants to file additional arguments in his attempt to have an 11-judge panel review the three-judge ruling that overturned Idaho's gay marriage ban. Otter argued in a motion filed Wednesday with the 9th U.S. Circuit Court of Appeals that another reply is needed because a separate federal court has since upheld same-sex marriage bans in other states. He added that the analysis in that case defending marriage between one-man and one-woman should also be included because the Idaho plaintiffs, the four lesbian couples who filed the original lawsuit nearly a year ago, claim fears of redefining marriage are unsubstantiated.

Several other states are also flailing about to keep their appeals active in the hopes of a SCOTUS ruling that would allow them to undo same-sex marriage.

Ninth Circuit Court To Alaska: Get Lost

Via the Fairbanks Daily New-Miner:

The 9th U.S. Circuit Court of Appeals has rejected Alaska's request that an 11-judge panel review a decision overturning the state's ban on same-sex marriage. Now, gay and lesbian couples will continue to be allowed to wed in Alaska unless the state wins before a three-judge panel at the 9th Circuit Court of Appeals — which has already ruled against other states’ bans on same-sex marriage — or successfully appeals to the U.S. Supreme Court. Meanwhile, Gov.-elect Bill Walker said Thursday he plans to evaluate the case to see whether his administration will continue to defend the ban, indicating a shifting stance from before the election, when he called the current administration’s defense an “unwise” use of state money. On Tuesday, a deadline passed without action by the 9th Circuit: None of the 29 judges on the court, which oversees Alaska and eight other states, had asked for a vote to hear Alaska’s appeal under what is called an “en banc” review before an 11-judge panel. That meant the state's request was denied, though the appeal remains alive.

So far Alaska has spent over $100K defending its ban on same-sex marriage. If the plaintiffs are awarded their legal fees, that amount could go higher than $350K.

BREAKING: Montana! Montana! Montana!

Read the ruling.

The Court hereby DECLARES that Montana’s laws that ban same-sex marriage, including Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401, violate Plaintiffs’ rights to equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Montana and its officers, employees, agents, and political subdivisions from enforcing Article XIII, section 7 of the Montana Constitution, Montana Code Annotated section 40-1-103 and section 40-1-401, and any other laws or regulations, to the extent that they prohibit otherwise qualified same-sex couples from marrying in Montana, and to the extent that they do not recognize same-sex marriages validly contracted outside Montana. This injunction shall take effect immediately.

BOOM!

MONTANA: AG Tim Fox Fights On

Montana Attorney General Tim Fox is continuing to defend his state's ban on same-sex marriage with a response brief that compares gay nuptials to incest and polygamy. The brief also makes the usual blah-blah procreation argument, but primarily focuses on the level of scrutiny issue. Dig into the full brief at Equality Case Files.

ALASKA: Gov. Sean Parnell Files En Banc Marriage Ruling Request With Ninth Circuit

Last night Alaska Gov. Sean Parnell filed an en banc marriage ruling request with the Ninth Circuit Court. Two days ago Idaho Gov. Butch Otter did the same. From Parnell's filing:

Compelled by Latta v. Otter, (9th Cir. Oct. 7, 2014), the district court ruled that the Fourteenth Amendment requires Alaska to license and recognize same-sex marriages, contrary to its Constitution and laws. But Latta’s imposition of heightened scrutiny on state marriage laws places this circuit “on the short end of a 10-2 split,” and contradicts the Supreme Court’s Windsor decision. SmithKline Beecham Corp. v. Abbott Labs.,  (9th Cir. 2014) (O’Scannlain, J., dissenting). Absent en banc hearing, Alaska’s appeal will be controlled by Latta, which effectively guarantees the invalidity of all man-woman marriage laws in this circuit. Resolution of an issue of that magnitude deserves the Court’s plenary consideration. Otherwise, Alaska’s citizens will be stripped of any ability to vindicate their “historic and essential authority to define the marital relation,” United States v. Windsor, (2013).

And on and on it goes.

IDAHO: Gov. Butch Otter To File En Banc Marriage Appeal With Ninth Circuit CourtUPDATE: AG To Appeal To SCOTUS

Via the Spokesman-Review:

Idaho Gov. Butch Otter announced today that he's filing a petition with the 9th Circuit U.S. Court of Appeals for an en banc re-hearing of Idaho's same-sex marriage case. “I will continue defending Idahoans’ self determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society,” Otter said in a statement. He said his office will file the petition later today. An en banc review at the 9th Circuit, because the circuit is so large, would mean that a larger 11-judge panel would re-hear the case, after a three-judge panel made the decision earlier. In smaller circuits, an en banc review is a rehearing by the full court. Otter and Idaho Attorney General Lawrence Wasden earlier requested that 9th Circuit assign a full 11-judge panel to hear Idaho's case in the first place, rather than a three-judge panel; that request was denied. Wasden is not joining with Otter in today's petition.

Via press release from Otter's office.

“I have repeatedly pointed out to the courts that unaccountable judges imposing their perception of social change on the law – rather than public policy being changed through the democratic process – undoubtedly will lead to increased religious strife and restrictions on private property,” Governor Otter said. “For these important reasons, I will continue defending Idahoans’ self-determination and the will of Idaho voters who decided that traditional marriage is a core principle of our society.” Along with defending the critical definition of marriage in Idaho’s Constitution, Governor Otter also highlights in his request for rehearing that letting the three-judge panel’s decision stand will accelerate conflicts with First Amendment religious liberties and pose serious challenges to other portions of Idaho law. The Governor also said he continues to monitor same-sex marriage cases in other jurisdictions and the potential for the issue to be accepted for review by the U.S. Supreme Court.

It's interesting that the attorney general isn't joining in.

UPDATE: The Spokesman-Review has added one line to the above story: "Wasden is not joining with Otter in today's petition. However, his spokesman, Todd Dvorak, said today that Wasden does plan to file an appeal to the U.S. Supreme Court in the coming weeks."

Tweet Of The Day - Evan Wolfson

ALASKA: What Will Happen Today?

On Wednesday the Ninth Circuit Court Of Appeals issued a temporary stay on marriages in Alaska, which were to have begun yesterday. Alaska Gov. Sean Parnell yesterday filed an emergency stay request with SCOTUS. The Ninth Circuit's stay automatically dissolves at noon, Pacific time. If SCOTUS does nothing or denies the stay request, marriages can commence this afternoon. At least, that's where things appear to stand at this writing. At least two Alaska couples have already married due to clerks waiving the three-day waiting period.

UPDATE: JMG reader Baltimatt points out that today is Alaska Day, a state holiday. With government offices closed, it could be that gay couples will be out of luck today even if the stay ends. Alaska Day marks the 1867 anniversary of Alaska leaving Russia.

ARIZONA: Attorney General Concedes Ninth Circuit Marriage Ruling Applies

Via Arizona Central:

The fate of Arizona's law defining marriage as between only a man and a woman rests on a ruling from U.S. District Court Judge John Sedwick, and a decision from Attorney General Tom Horne as to whether he will comply or continue to fight as similar laws around the country fall. Sedwick gave the parties in two lawsuits challenging Arizona's law a week to file arguments convincing him why the ruling should or should not apply to Arizona. Today was the deadline. The Arizona-based Christian legal group Alliance Defending Freedom has been representing the state for free in the two marriage cases. But Horne's office filed the arguments. The state's brief argument concedes that the 9th Circuit ruling would apply to Arizona, but says Sedwick should wait to issue his ruling until the 9th Circuit issues a mandate. The mandate is essentially a technical document telling the courts to go forward with the opinion. The 9th Circuit issued a mandate within hours of its original ruling but withdrew it so Idaho could appeal. That appeal is concluded but the 9th Circuit has not yet reissued the mandate.

So if things go as they have lately, we'll get the ruling, Horne will ask the Ninth for an emergency stay pending an en banc review, then ask SCOTUS for a stay pending an appeal to them.

ALASKA: Ninth Circuit Court Issues Temporary Stay On Same-Sex Marriages Pending State's Appeal To SCOTUS

Marriages were to begin tomorrow morning. Ruling.

NEVADA: Hate Group Asks For En Banc Re-Hearing Of Ninth Circuit Marriage Case

The anti-gay Coalition For The Protection Of Marriage today filed a demand that the full Ninth Circuit Court hear the case that resulted in the overturn of Nevada's ban on same-sex marriage. The filing accuses the Ninth Circuit of "panel-packing" - deliberately assigning LGBT-related cases to judges likely to vote in favor of LGBT rights.

From January 1, 2010, to the present, this Court has assigned to merits panels eleven cases involving the federal constitutional rights of gay men and lesbians, what we refer to as the Relevant Cases. They are listed and described in Exhibit 1. Judge Berzon has been on five of those panels. Judge Reinhardt has the next highest number, with four panel assignments. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Seventeen, including District Judge Bennett, received one assignment.

Eighteen of the judges with active status during any part of the relevant time period received none. Careful statistical analysis indicates a high likelihood that the number of Judges Reinhardt and Berzon’s assignments to the Relevant Cases, including this and the Hawaii and Idaho marriage cases (which we treat as one for these purposes), did not result from a neutral judge-assignment process.

Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field. That perception is reinforced by, one, the unremarkable observation that experienced and informed lawyers would readily assess this panel as one quite congenial to the plaintiffs in these marriage cases and just the opposite to the parties defending man-woman marriage; and, two, since the announcement of this three-judge panel on September 1, 2014, the consistent public commentary to the effect that, for the plaintiffs, this panel is the most favorable panel possible.

Yeah, good luck with that.

UPDATE: Lambda Legal reacts.

The Coalition's claims of an improper judicial selection process are unfounded, desperate, and sad. We are embarrassed that they have stooped to attacking the integrity of our federal judiciary, rather than accepting an outcome they disagree with a modicum of grace. We are confident the Coalition's request for rehearing will be rejected, for at least two reasons. First, its arguments about the law have been rejected repeatedly, including in the Fourth, Seventh, and Tenth Circuit decisions that the Supreme Court just let stand - and with near unanimity by all the courts who have considered since Windsor whether our Constitution requires that same-sex couples be allowed to marry. Second, the Coalition lacks standing to seek further review on its own. The law is clear: an actual controversy must exist throughout all stages of litigation. Given that the only defendants actually affected by this litigation are the government officials who have been allowing same-sex couples to marry since last week, it's clear that there is no further controversy to resolve.