Marriage Cases In Flux Due To SCOTUS

Marriage equality cases in several states have seen some action since Friday's decision by the Supreme Court to hear the cases out of the Sixth Circuit Court.

North Dakota: Yesterday a federal judge put that case on indefinite hold pending the final ruling from SCOTUS. There had been no action on that case since September.

Georgia: Also yesterday the state asked that its case be suspended until SCOTUS rules. The plaintiffs have not yet filed a response to that demand.

Missouri: The state today asked the Eighth Circuit Court to put their appeal on hold until SCOTUS rules. The ACLU has already filed its opposition to that request unless the Eighth Circuit lifts its stay first. Same-sex marriage remains legal in St. Louis and is recognized statewide.

Ten days ago the Fifth Circuit Court heard oral arguments in the cases out of Texas, Louisiana, and Mississippi. Some believe that the Fifth Circuit will wait until SCOTUS rules, others say that a decision could still come at any time.

RELATED: The Mississippi Supreme Court is hearing arguments today in a gay divorce case. It's not known if that ruling could come before SCOTUS decides on its cases.

NOM: We'll Definitely Win At SCOTUS And Even If We Don't Send Us More Money

"Over 50 million Americans who stood for marriage in 30 states will finally have their day in Court! I have to tell you that I am totally pumped to finally get our day in court. I think the mainstream media is wrong and it will turn out that we win this case! I just don't see how Justice Kennedy, likely the swing vote, can distance himself from the strong reasoning he used in the Windsor case where he said that states have historically regulated marriage and the federal government could not substitute its judgment for the decision of a state. I have met some people who are fatalistic and passive in the face of a pending Supreme Court decision, feeling that it's a fait accompli that the US Supreme Court will go against us. Look, maybe in the end we will lose before the courts - I don't think we will but I don't have a crystal ball - but we will never lose marriage because marriage is a universal truth. And regardless, defeatism is a recipe for disaster, a byproduct of the gay 'marriage' lobby's carefully crafted strategic plan: to convince ordinary Americans that the battle is already lost and to give up the fight. Let me be as clear as I can - we at NOM will never give up on marriage. - Hate group leader Brian Brown, in a post that includes three separate money beg links.

Ted Olson Vs Tony Perkins On Fox News

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)

Editorial Of The Day

From the editorial board of the New York Times:

Justice Antonin Scalia, who has voted against constitutional protections for gays and lesbians at every opportunity, foresaw this moment more than a decade ago, when the court reversed its own precedent and banned state anti-sodomy laws.

In the 2003 case of Lawrence v. Texas, Justice Kennedy wrote that the Constitution protects “adult persons in deciding how to conduct their private lives in matters pertaining to sex.” The opinion said it was not deciding the question of same-sex marriage, but Mr. Scalia begged to differ. If states may not use laws to express moral disapproval of homosexual conduct, he wrote in dissent, “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising the liberty protected by the Constitution?”

Precisely.

The 12 years since 2003 have seen enormous social change on this issue. Before the Massachusetts Supreme Judicial Court legalized same-sex marriage in November 2003, no state permitted such marriages. Today, 36 states do, along with the District of Columbia — representing more than 70 percent of all Americans. A solid and growing majority now believes in marriage equality; among those 18 to 29, support is at nearly 80 percent.

For same-sex couples and their families, friends and communities, this moment has been a long time coming. The justices have the power and the responsibility to give meaning to the promises embedded in the Constitution, and end the exclusion and inequality of gays and lesbians in America.

NOM Money Begs On SCOTUS Decision

The news from SCOTUS is only a couple of hours old and the money begs are pouring in. This one from NOM is their third in three days on three separate issues.

We are very pleased that the Supreme Court has chosen to review the 6th Circuit's ruling that found in favor of voters' right to define marriage as the union of one man and one woman. It is time for the 50 million Americans who stood for marriage in 30 states to have their day in court. We are confident that the Supreme Court has chosen the 6th Circuit case in order to affirm the finding of the Appeals court, just as it did in the cases of Windsor v. United States and Sabelius v. Hobby Lobby. We will be watching this case closely and anticipate an eventual victory for the democratic process, religious liberty, and the cherished institution of marriage which forms the very bedrock of our society. Please, right now, take a moment to recommit to standing with NOM and helping us rally the American people to let the Supreme Court know that we are watching, and that the majority of citizens in this country still believe in marriage as the union of one man and one woman. Your donation of $25, $50, or $100 today will help us to rise to this momentous occasion and meet this monumental task.

At least this one actually has to do with marriage.

Eric Holder: Federal Government Will Back Same-Sex Marriage Plaintiffs At SCOTUS

"After the Justice Department's decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act, the Supreme Court sent a powerful message that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This landmark decision marked a historic step toward equality for all American families.

"The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society—regardless of sexual orientation.

"As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans. It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans—no matter who they are, where they come from, or whom they love." - Attorney General Eric Holder, via press release.

Lambda Legal: What If We Lose?

"If the Supreme Court were to rule in the cases in which it today granted review that the U.S. Constitution does not protect same-sex couples' right to marry and does not require states to respect marriages same-sex couples lawfully have entered in other jurisdictions, a number of issues would arise.

"With respect to same-sex couples who already have married as a result of court rulings, Lambda Legal strongly believes -- as a federal district court in Michigan ruled just yesterday with respect to marriages entered in that state before the 6th Circuit's adverse ruling -- that those marriages will remain valid and will need to continue to be respected by the states in which those marriages were entered. Nonetheless, the validity of those couples' marriages may be challenged and those couples may want to take additional steps (such as executing wills, durable health care powers of attorney, and securing second parent adoptions) to provide them and their families extra peace of mind and security.

"With respect to whether same-sex couples would be able to marry and would have their marriages respected in other states, that would vary from state to state. States in which marriage equality was achieved by a ruling under the state's constitution, by legislative reform, or at the ballot box, would be unaffected. Unmarried same-sex couples in Kentucky, Michigan, Ohio, and Tennessee (the states whose marriage laws the Supreme Court today agreed to review) would be forced to seek reform through the political process. States in which a final judgment has been obtained in federal court would be required to continue to allow same-sex couples to marry and to respect out-of-state marriages entered by same-sex couples unless and until someone with standing makes a motion to reopen the judgment and that motion is granted (unless stays are properly obtained before then). In some states, there may be no one with standing interested in seeking to set aside the existing judgment. Same-sex couples in states in which a judgment is on appeal or can still be appealed whose judgments have not been stayed should be able to continue to marry and to have their out-of-state marriages honored by the state until the existing judgment is stayed or reversed.

"There's no question that it would be a mess. This is one additional reason why the Supreme Court should reverse the 6th Circuit's aberrant decision and hold that same-sex couples, like all other couples, share the fundamental right to marry and that it violates federal guarantees of equality and liberty to refuse to allow them to marry or to deny recognition to the marriages they lawfully have entered in other states." - Jon Davidson, legal director for Lambda Legal, via email.

Prop 8 Backers Money Beg On SCOTUS: True Marriage Is Making A Comeback

"Finally, the outrageous rulings of activist judges around the nation--that nullified the will of millions of citizens who voted to preserve traditional marriage--will come under Supreme Court scrutiny. We could be on the cusp of a huge comeback for true marriage! I remain confident that the Supreme Court will uphold the states’ rights to define marriage. Even as Justice Anthony Kennedy wrote the majority opinion striking down the federal Defense of Marriage Act (DOMA) in 2013, he did so because it infringed upon the states’ authority over marriage. He relied on the states’ 'essential authority to define the marital relation' and our nation’s 'history and tradition of reliance on state law to define marriage.' As a key swing vote on the Supreme Court, Justice Kennedy’s viewpoint could very well determine the outcome here. Now it's time to pull out all the stops for this final battle for marriage in the legal system. Will you help? Please help us fight this battle with your tax-deductible and confidential contribution of any size." - Protect Marriage head Andy Pugno, via email.

Ryan Anderson On SCOTUS Decision

"Millions of citizens in these four states went to the polls and voted about the definition of marriage for state law. The majority of citizens in each state voted that the law should continue to recognize marriage as the union of a man and a woman. And last November, the U.S. Court of Appeals for the Sixth Circuit ruled that these laws do not violate the U.S. Constitution. The Supreme Court should rule likewise. There are two central questions in the broader debate: What is marriage? And who gets to decide? The people and their elected representatives should deliberate and vote about marriage policy—not unelected judges—and they should make policy that serves the common good by reflecting the truth that marriage is the union of a man and woman. The Supreme Court should not usurp the authority of the American people to discuss, debate and make marriage policy." - Ryan Anderson, writing for the Heritage Foundation.

LGBT Rights Groups React To SCOTUS

Freedom To Marry

"The Supreme Court's decision today begins what we hope will be the last chapter in our campaign to win marriage nationwide - and it's time," said Evan Wolfson, president of Freedom to Marry. "Freedom to Marry's national strategy has been to build a critical mass of marriage states and critical mass of support for ending marriage discrimination, and after a long journey and much debate, America is ready for the freedom to marry. But couples are still discriminated against in 14 states, and the patchwork of discrimination harms families and businesses throughout the country. We will keep working hard to underscore the urgency of the Supreme Court's bringing the country to national resolution, so that by June, all Americans share in the freedom to marry and our country stands on the right side of history."

People For The American Way

“This is unquestionably an important step towards marriage equality for all Americans,” said Michael Keegan, President of People For the American Way Foundation. “Since the Sixth Circuit got this wrong and denied people in four states their basic rights, the Supreme Court did the right thing by taking these cases. Now the Court needs to do the right thing by making a clear statement about the Constitution’s guarantee of fundamental equality for all people. The time is long overdue for every American to have the right to marry the person they love.” “That said, this is likely to be yet another five-four decision from the Court that gave us Citizens United and Hobby Lobby and gutted the Voting Rights Act. That should be a reminder that our fundamental rights are in jeopardy in our nation’s highest court— and the future of the Court and these rights will be in the next President's hands. Americans should be able to depend on the Supreme Court to defend the rights of ordinary Americans—whether that’s the right to marry, or to vote, or to be treated fairly on the job, or to control their own reproductive health.

National Center For Lesbian Rights

The Tennessee plaintiff couples are Dr. Valeria Tanco and Dr. Sophy Jesty of Knoxville; Army Reserve Sergeant First Class Ijpe DeKoe and Thom Kostura of Memphis; and Matthew Mansell and Johno Espejo of Franklin. They are represented by Shannon Minter, Christopher F. Stoll, and David C. Codell of the National Center for Lesbian Rights (NCLR), Tennessee attorneys Abby Rubenfeld, Maureen Holland, and Regina Lambert, and the law firms of Sherrard & Roe PLC and Ropes & Gray LLP. Today’s decision follows the couples’ request that the Supreme Court hear the case to ensure that the marriages of same-sex couples are treated equally across the country. “This is an important day because it means that our family will finally have an opportunity to share our story with the Court and explain how this discriminatory law hurts us each day,” said Tanco, who has a young daughter with Jesty. “We live in fear for ourselves and our little girl because we don’t have the same legal protections in Tennessee as other families. We are hopeful the Supreme Court will resolve this issue so we no longer need to live in fear.”

Lambda Legal

The U.S. Supreme Court today announced it has granted review of all six marriage equality cases decided by the Sixth Circuit Court of Appeals, including two Ohio cases litigated by Lambda Legal, the ACLU and Gerhardstein & Branch. The two cases are Henry v. Hodges, where Lambda Legal joined Gerhardstein & Branch, and Obergefell v. Hodges, where the ACLU joined Gerhardstein & Branch. Oral argument is expected to take place later this year. “After years of struggle and the dedicated work of thousands across the movement, we are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage,” said Jon W. Davidson, Legal Director and Eden/Rushing Chair at Lambda Legal. “While these cases will carry the marriage standard before the Supreme Court, they represent literally dozens of cases in state and federal courts nationwide and the collective effort of Lambda Legal, NCLR, the ACLU, GLAD, and other sister LGBT groups and private (often pro-bono) counsel dating back years.”

ACLU

The American Civil Liberties Union and Stanford Law School Supreme Court Litigation Clinic are co-counsel in the two Kentucky cases, Bourke v. Beshear and Love v. Beshear, brought by lawyers at Clay Daniel Walton & Adams and the Fauver Law Office. These cases challenge Kentucky’s anti-marriage laws on the ground that they violate due process and equal protection provisions of the U.S. Constitution. The ACLU along with Lambda Legal and Gerhardstein & Branch are also co-counsel in the Ohio case, Obergefell, et al v. Hodges. “We are thrilled the court will finally decide this issue,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project. “The country is ready for a national solution that treats lesbian and gay couples fairly. Every single day we wait means more people die before they have a chance to marry, more children are born without proper protections, more people face medical emergencies without being able to count on recognition of their spouses. It is time for the American values of freedom and equality to apply to all couples.”

BREAKING: Supreme Court To Consider All Four Cases From Sixth Circuit Court

Via SCOTUSblog:

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. A total of one hour and ninety minutes was set for the hearings, likely in the April sitting. The Court fashioned the specific questions it is prepared to answer, but they closely tracked the two core constitutional issues that have led to a lengthy string of lower-court rulings striking down state bans. As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but under court challenge.

Read the order.

A Reminder From Michigan Catholics

Fox To Host Marriage Debate Between Ted Olson And Hate Group Head Tony Perkins

Via press release from Fox News:

Both sides in the same-sex marriage debate are looking to the Supreme Court as it decides whether or not to weigh in on the issue. The High Court is set to discuss cases from Kentucky, Michigan, Ohio and Tennessee, and decide whether to rule on petitions challenging state bans on same-sex marriage. We’ll debate what has become a key social issue within the country, exclusively with Ted Olson, former Solicitor General who served as Co-Counsel for the plaintiffs in Virginia’s same-sex marriage case, and Tony Perkins, President of the Family Research Council.

The debate airs live at 10AM this Sunday. Olson and Perkins tangled on the same show back in October after the Supreme Court refused to consider appeals out of several states.

RELATED: Buzzfeed reporter Chris Geidner believes we might get word from SCOTUS tomorrow immediately after its conference to consider the appeals out of the Sixth Circuit.

There is a slight — but unlikely — possibility that the court could wait until Tuesday, Jan. 20, to announce whether it will be hearing a case, but that is unlikely. Usually, at this point in the court’s term, such an announcement would be expected Friday afternoon. Then, if a case is accepted, the timeline starts for the filing of briefs by both sides and by outside parties, and arguments would be set — likely in April. Finally, a decision would be expected before the court adjourns for its summer recess — usually by late June.

MICHIGAN: State Ordered To Recognize 300 Marriages Conducted Before Stay

Via the Detroit Free Press:

A federal judge validated 300 same-sex marriages in Michigan today, calling them a "fundamental right." "In these circumstances, what the state has joined together, it may not put asunder.," U.S. District Judge Mark Goldsmith said in his opinion. The 300 couples wed last March after a federal judge struck down the state's ban on same sex marriage. The state has since refused to recognize them. The American Civil Liberties Union of Michigan sued in federal court. The lawsuit was filed on behalf of eight same-sex couples who married within 24 hours after a federal judge struck down Michigan's ban on gay marriage, concluding the prohibition was unconstitutional. Within hours after the ceremonies, following a request by the state, which is appealing the issue. Michigan Attorney General Bill Schuette issued a statement after today's ruling. "We are reviewing Judge Goldsmith's decision but as I have said repeatedly, the sooner the United States Supreme Court makes a decision on this issue the better it will be for Michigan and America," he said.

(Tipped by JMG reader TJ)

UPDATE: The Free Press has edited the above story to correct the name of the judge. Read the ruling.

No Marriage News From SCOTUS Today

Matt Baume: Marriage News Watch

SOUTH CAROLINA: State Asks Fourth Circuit Court Not To Rule On Appeal

South Carolina Attorney General Alan Wilson yesterday petitioned the Fourth Circuit Court, asking that they not rule on his marriage appeal until the Supreme Court issues a decision on the cases out of Sixth Circuit. Wilson, like his counterparts in several other states, is desperately trying to keep his case alive so that marriage equality can be undone should SCOTUS rule negatively. See the motion at Equality Case Files.

SOUTH CAROLINA: AG Vows To Fight On

SCOTUSblog On Michigan

Lyle Denniston writes for SCOTUSblog:

The same-sex marriage constitutional controversy reached the Supreme Court on Monday in its simplest form, testing the constitutionality of a state’s denial of a right to marry for same-sex couples. That is the sole issue raised in a new petition filed by a Michigan lesbian couple who want to marry and want the right for both parents to adopt their three children. Michigan denies both. As has happened with other cases that have reached the Court on the controversy, the lawyers for the Michigan couple contended that their case was the ideal one for review. Among other reasons, they noted that this is the one case in the group that was fully tried, developing a factual record during a nine-day trial in a Detroit federal courtroom.

With a total of four petitions filed in the six cases decided by the Sixth Circuit — the Ohio and Kentucky petitions are both joint filings in two cases — the stage is now set for the cases to be submitted to the Justices, as soon as state replies are filed in some or all of the cases. It thus appears that the cases have arrived at the Court in time — if review is, indeed, granted — to be heard and decided in the Court’s current Term. To be heard and decided before the Justices complete this Term in late June or early July, the cases would have to be ready for the Justices to consider by mid-January. With the current split among federal appeals courts, it would be most surprising for the Court to refuse to hear any of this round of cases. It is up to the Justices to accept or deny each or all of the petitions.

Michigan, it could all be up to you. And remember what the original judge in that case said: "The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration."