Liberty Counsel: Repeal The Lemon Test

The Liberty Counsel yesterday filed an amicus brief with the Tenth Circuit Court in which they argue for the overturn of the so-called Lemon Test, an expression that arose from Lemon v Kurzman, the 1971 Supreme Court ruling which grants private citizens standing to complain when the government endorses a specific religion. From the Liberty Counsel's press release:

“Since 1971, the Lemon test has allowed mere offended observers to overturn years of religious tradition,” said Mat Staver, Founder and Chairman of Liberty Counsel. In the case currently before the court, two Wiccans were offended over a Ten Commandments monument on the grounds of the Bloomfield, New Mexico, municipal building.

“The Lemon test has meant that the Establishment Clause, designed to prevent federal establishments of religion, has morphed into a weapon aimed at eliminating all vestiges of public religious expression,” added Staver. “It is past time to abandon that judge-made rule and return to the actual words and intent of the First Amendment,” concluded Staver.

Federal lawsuits require that the complainant have standing, which means they must demonstrate that they have been injured by an act of government. Over the years, the Supreme Court has loosened the standing requirement for Establishment Clause claims, allowing people to file suit merely because they are offended. In Lemon v. Kurtzman, the Court ruled that religious activity must be diluted with secular influences.

The Liberty Counsel argues that recent Supreme Court decisions indicate that a repeal of the Lemon Test is possible. And then the Ten Commandments can be everywhere.

Tenth Circuit To Kansas: Suck It

KANSAS: Marriages Commence In Four Counties As State Continues To Fight

Marriage licenses are being issued today in a handful of the 103 Kansas counties.

Judges in at least four Kansas counties were issuing marriage licenses to same-sex couples a day after the U.S. Supreme Court issued a ruling allowing them to wed. Clerks in other counties were giving applications to gay couples but requiring them to abide by the state’s three-day waiting period before they can get a license. As of midmorning Thursday, Douglas County District Judge Robert Fairchild had waived the waiting period for three couples and said he would consider similar requests on a case-by-case basis. A different judge had agreed to preside over the wedding of one of the couples after the courthouse closes at 5 p.m. CST. Couples received licenses in Sedgwick County, while judges in Cowley and Riley counties each had issued one marriage license to same-sex couples.

Gov. Sam Brownback and Attorney General Derek Schmidt continue to contend that yesterday's ruling only applies in two Kansas counties.

SCOTUSblog On Kansas

Lyle Denniston writes at SCOTUSblog:

The Court has issued a series of orders in same-sex marriage cases over the past eleven months, but the Kansas order marked the first time that members of the Court had recorded dissents. Justices Antonin Scalia and Clarence Thomas noted only that they would have granted the delay sought by the Kansas attorney general. Kansas officials had attempted to show that their case was different from others that the Supreme Court had chosen to leave undisturbed, arguing that the federal judge’s order was an invalid attempt to second-guess a Kansas Supreme Court order delaying the issuance of same-sex marriages. The federal judge had rejected that claim, but it may have been the one that drew the implied support of Justices Scalia and Thomas. The state still has an appeal pending at the U.S. Court of Appeals for the Tenth Circuit, but that has little promise, because that appeals court has struck down bans in two other states in its region — Oklahoma and Utah. The Supreme Court refused to review those Tenth Circuit rulings on October 6. The Kansas ban is almost identical to those in other states.

KANSAS: Westboro Appeals To The Tenth

Like the wackadoodle Unruhs, Westboro Baptist Church has appealed to the Tenth Circuit Court after being denied permission to intervene in the Kansas marriage equality case.

WBC appeals the erroneous conclusion that WBC lacks sufficient interest in these proceedings to intervene, after WBC has faithfully warned for 25 years, using every lawful means of publishing; pleading with the citizens of Kansas to obey God; to put away proud sin; and to not let the sins of adultery (including divorce/remarriage), fornication, greed, murder (including of unborn babies), and pride, be used to justify the even worse sins of homosexuality and same sex marriage. No group of people has toiled in the vineyard of warning of the impact of same sex marriage more tirelessly than the members of WBC; and no group of people has a greater interest in vigorously opposing plaintiffs’ claims.

Read the full brief at Equality Case Files.

RELATED: On Friday the Tenth Circuit Court denied the stay pending appeal request made by the state. Barring a stay by SCOTUS, same-sex marriage becomes legal in Kansas tomorrow.

KANSAS: Tenth Circuit Court DENIES Stay, Same-Sex Marriages To Start On Tuesday

From the ruling:

The district court granted preliminary injunctive relief to plaintiffs on November 4, enjoining defendants from enforcing or applying Kansas constitutional and statutory provisions that prohibit issuance of marriage licenses to same-sex couples. The district court then stayed its injunctive order until 5:00 p.m. on November 11. Defendants immediately appealed the preliminary injunction ruling and also filed an emergency motion pursuant to 10th Cir. R. 8.1, asking this court to stay the district court’s injunctive order pending their appeal of the ruling. We conclude that defendants have failed to make the showings necessary to obtain a stay, and we deny the emergency motion for a stay pending appeal. We note that the district court’s temporary stay of its own preliminary injunction order remains in effect until 5:00 p.m. CST on November 11, 2014.

TODAY: Kansas Marriage Hearing

Via the Associated Press:

A federal judge is to hear a lawsuit filed by the American Civil Liberties Union challenging Kansas' ban on same-sex marriage. The hearing Friday afternoon before U.S. District Judge Daniel Crabtree in Kansas City, Kansas, is on the ACLU's request for an order to force Kansas to allow gay marriages. The ACLU filed the lawsuit for two lesbian couples who were denied marriage licenses in Douglas and Sedgwick counties after the U.S. Supreme Court refused to hear appeals from five other states seeking to preserve gay marriage bans. The ACLU is seeking a temporary injunction to bring Kansas into line with 10th U.S. Circuit Court of Appeals precedents in other cases.

Tweet Of The Day - Evan Wolfson

WYOMING: GOP Gov. Matt Mead Says State Should Not Appeal Marriage Ruling

Via the Casper Star-Tribune:

Republican Gov. Matt Mead said the state shouldn't appeal the same-sex marriage ruling due from U.S. District Judge Scott W. Skavdahl. Mead spoke on the issue Thursday night during a Wyoming PBS debate in Riverton. Mead is seeking re-election Nov. 4. "The answer is no, we shouldn't appeal the ruling," he said. Skavdah, based in the federal court in Casper, will order on the question of whether Wyoming's same sex marriage law violates the U.S. Constitution's Fourteenth Amendment by 5 p.m. Monday, he said during a Thursday morning hearing in his court.

OK, fabulous! But here's something really interesting that I've just noticed. The attorney general of Wyoming is appointed by the governor. Except in the case of current Attorney General Peter K. Micheal, who was appointed mid-term in 2013 by his predecessor, Gregory A. Phillips, who was leaving to take another job. And what job does Phillips hold today? Why, he's an Obama-nominated judge with the Tenth Circuit Court. Yeah, I'm guessing we definitely get an updated map on Monday night.

KANSAS: Attorney General Derek Schmidt Asks Court To Block Johnson County Marriage Licenses As First Couple Weds

Kansas Attorney General Derek Schmidt today asked the state Supreme Court to block same-sex marriage licenses in Johnson County.  A lawsuit demanding that Kansas recognize out-of-state marriages was filed in December 2013, but there is presently no challenge to the Kansas ban itself.

Schmidt argues that Chief District Judge Kevin Moriarty exceeded his authority when he directed the court clerk to issue the marriage licenses this week. The attorney general contends that Moriarty didn’t have the power to authorize the licenses in contradiction to the state constitution’s ban on gay marriage. Moriarty issued his order Wednesday after the U.S. Supreme Court opened the door for same-sex couples to get married in Kansas when it let stand lower-court rulings that found gay marriage bans unconstitutional. The court did not rule on the Kansas law, but let stand an appeals court ruling that would be binding if there was a challenge brought against the state law.

It appears that of the 52 marriage license applications filed thus far in Johnson County, only one has been granted. Equality Kansas reports that the couple married immediately this afternoon.

Tenth Circuit Lifts Stay On Utah Marriages

Things are happening fast, people!

COLORADO: Tenth Circuit Holds Marriage Equality Case Until SCOTUS Rules

The Tenth Circuit Court of Appeals today put Colorado's marriage equality case on hold until the Supreme Court rules on the issue.

This appeal is abated pending further order of this court. The deadline for the appellant’s opening brief will be established when the abatement of this appeal is lifted. The parties shall notify this court within 10 days of a decision on the petitions for writ of certiorari pending before the Supreme Court of the United States in Kitchen v. Herbert, Supreme Court No. 14-124, and Bishop v. Smith, Supreme Court No. 14-136. It is further ordered that the parties shall file status reports 30 days from the date of this order if no decision on the pending writs has been issued by that time.

Gay means stay. Always. (Via Equality Case Files)

Concerned Women To SCOTUS: Gays Are Too Powerful To Claim Discrimination

Concerned Women for America have filed an amicus brief with the Supreme Court in support of Utah's ban on same-sex marriage. According to the brief, gay Americans are far too politically powerful to deserve the heightened level of legal scrutiny that would support claims of marriage discrimination.

Amicus agrees with both the Petitioners’ and Respondents’ view of this case: this Court should grant the Petition and address, not only the Due Process claim, but also the Equal Protection claim. In so doing, heightened scrutiny must be rejected because homosexuals are not a suspect or quasi-suspect class, since - among other reasons - homosexuals are not politically powerless. This Brief demonstrates this by documenting that homosexuals have achieved direct political power; acquired important political allies; raised significant funds from their own community, from labor unions and from corporate America; obtained support from religious communities; and moved public opinion in their favor.

The brief goes on at great length to cite President Obama'a gay pride proclamations, his employment executive order, the major corporations that back LGBT rights, the openly gay US delegation to the Sochi Olympics, the repeal of DADT, the passage of the Hate Crimes Act, and other examples of LGBT triumphs. In other words, we've already too damn successful to possibly claim discrimination.

Evil Mother To SCOTUS: My Dead Son's Husband Shouldn't Get His Estate

Acting on behalf of a local woman, the Alabama-based Foundation For Moral Law has filed an amicus brief which urges the Supreme Court to overturn the Tenth Circuit's strike down of Utah's ban on same-sex marriage. According to the brief, the woman does not want her late son's husband to be able to inherit her son's estate.

Foundation for Moral Law (the Foundation), is a national public-interest organization based in Montgomery, Alabama, dedicated to defending the unalienable right to acknowledge God as the moral foundation of our laws; promoting a return to the historic and original interpretation of the United States Constitution; and educating citizens and government officials about the meaning and foundational principles of the Constitution. The Foundation has an interest in this case because it believes that this nation’s laws should reflect the moral basis upon which the nation was founded, and that the ancient roots of the common law, the pronouncements of the legal philosophers from whom this nation’s Founders derived their view of law, the views of the Founders themselves, and the views of the American people as a whole from the beginning of American history at least until very recently, have held that homosexual conduct is immoral and should not be sanctioned by giving it the official state sanction of marriage.

The Foundation is interested in this case because a similar lawsuit has been filed challenging Alabama’s Sanctity of Marriage Amendment, which was approved by Alabama voters 81%-19% in 2006. David Fancher, an Alabama resident who was in a same-sex relationship with Paul Hard, died in an vehicle accident August 1, 2011. Hard has sued the State of Alabama, arguing that Alabama’s Sanctity of Marriage Amendment is unconstitutional and that he is therefore the lawful spouse of David Fancher and is entitled to one-half of Fancher’s estate. The mother of David Fancher does not want her son’s name used to advance the cause of same-sex marriage, and she has retained the Foundation for Moral Law to represent her interests. The federal district court has granted her motion to intervene, and the decision of this Court concerning the Utah case will very likely affect the outcome of our Alabama case.

The couple married in Provincetown in 2011. Read the full brief at Equality Case Files.

UPDATE: The former head of the Foundation For Moral Law is Alabama Supreme Court Chief Justice Roy Moore, who was booted from the court in 2003 for refusing to remove a Ten Commandments monument from the grounds of the courthouse. Moore stepped down from the leading the group in 2013 after being re-elected as chief justice of the state Supreme Court. He is now the "president emeritus" of the Foundation For Moral Law.

UPDATE II: This brief was filed by Foundation For Moral Law senior counsel John Eidsmoe, who has a crackpot history that might exceed that of Roy Moore. In 2011 Eidsmoe called for Congress to have "ex-gay" torture provided to the US military. That same year he declared that gay service members will molest children. He has also said that all women must submit to their husbands and that the United States must impose biblical laws and punishments or else the nation is doomed. Eidsmoe, NOT incidentally, was Michele Bachmann's professor at Oral Roberts University.

80 Utah Legislators Tell SCOTUS: Gay Marriage Will Lead To Incestuous Marriage

Eighty Utah state legislators have filed an amicus brief in which they warn the Supreme Court that upholding the Tenth Circuit's ruling on same-sex marriage will lead to the legalization of polygamous and incestuous marriages.

The Tenth Circuit did not adequately consider the consequences of its decision for Utah’s prohibitions of polygamous and incestuous marriages. If the choice of marriage partners is an unlimited fundamental right, Kitchen, 755, F.3d at 1215, and if that marriage choice cannot be denied even when a majority believes that choice to be “immoral,” 755 F.3d at 1217 (quoting Lawrence v. Texas, 593 U.S. 558, 571 (2003)), then the fundamental rights analysis applied by the Tenth Circuit will apply with even greater force to consenting adults desiring polygamous marriage or marriage between at least some close relatives. The prohibition of those marriages has always been grounded in morality. Without a moral justification, courts will be obliged to remove existing marriage prohibitions as the U.S. District Court did last month in Utah. See Brown v. Herbert, 2014 WL 4249865 (D.Utah Aug. 27, 2014. Accordingly, this Court should grant certiorari and reverse the Tenth Circuit’s judgment below.

The brief is signed by 22 of the 29 members of the state Senate and by 58 of the 75 members of the state House.

COLORADO: AG Asks Tenth Circuit To Continue Stay Until SCOTUS Rules

Colorado Attorney General John Suthers yesterday asked the Tenth Circuit Court of Appeals to continue the stay on same-sex marriage in his state until the Supreme Court rules on the cases before it from Utah and Oklahoma.

Although a divided panel of the Tenth Circuit has ruled that Utah’s and Oklahoma’s bans and non-recognition of same-sex marriage are unconstitutional, those constitutional questions, which are also at-issue in this case, are and will remain unsettled until the Tenth Circuit’s decisions in Kitchen and Bishop become final in one of two ways, namely: (a) the Supreme Court denies a petition for writ of certiorari and the Tenth Circuit issues its mandates; or (b) the Supreme Court grants the petitions for writ of certiorari and issues final decisions. Without question, the Supreme Court’s determination of the constitutional questions concerning same-sex marriage will directly bear on and control this case. If the Supreme Court accepts Utah’s and Oklahoma’s arguments, or otherwise allows those states to enforce traditional definitions of marriage, Plaintiffs’ claims in this case will fail as a consequence.

Read the full request via Equality Case Files.

UPDATE: Equality Case Files adds in the comments: "This motion asks for more than a stay; the AG wants the Colorado appeal put completely on hold - no briefing, nothing. - until SCOTUS resolves the other 10th Circuit cases (Utah and Oklahoma)."

COLORADO: Tenth Circuit Court Continues Stay On Same-Sex Marriages

Equality On Trial reports:

The order notes that the Tenth Circuit has issued stays in other marriage cases, and says “[i]n the interest of consistency” this case will be stayed as well. A federal judge had issued a preliminary injunction against enforcement of the ban in July. The court then halted proceedings in the case, pending issuance of the mandate in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban in the Tenth Circuit. A request to halt the injunction was denied, but a temporary stay, until August 25, was granted so that the state could ask the appeals court for a stay pending appeal. Without this new stay, marriages could have begun in Colorado on August 25.

#GayMeansStay.

UTAH: State Formally Files First Appeal Of Same-Sex Marriage Overturn To SCOTUS

Via the LDS-owned Deseret News:

Utah on Tuesday became the first state to ask the U.S. Supreme Court to weigh in on a law banning same-sex marriage that two lower courts have struck down. The Utah Attorney General's Office filed the petition with the high court, saying it has a responsibility to defend the state constitution and its amendments as Utah citizens have enacted them. “We recognize this litigation has caused uncertainty and disruption and have accordingly tried to expedite its resolution as quickly as possible by filing our petition a full month and a half before its September 23 due date," Attorney General Sean Reyes said in a statement.

"Utah welcomes a speedy grant of the petition and a Supreme Court merits decision, as all Utah citizens will benefit when the Supreme Court provides clear finality on the important issue of state authority to define marriage.” The petition doesn't necessarily mean the Supreme Court will hear Utah's case, Kitchen v. Herbert. The justices could have at least six appellate decisions to consider if they take up gay marriage again in court's next term, beginning Oct. 6. The 10th Circuit Court of Appeals in Denver overturned same-sex marriage bans in Utah and Oklahoma in June and July, respectively. The 6th Circuit in Cincinnati will hear arguments Wednesday for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8.

Notices of appeal to SCOTUS have also been filed by the clerk for Oklahoma's Tulsa County and the clerk for Virginia's Prince William County, both of which were done by the Alliance Defending Freedom. Neither have yet been formally filed. (Tipped by JMG reader Alison)

Dig into the filing.

UPDATE: A quick search reveals that the word "religion" only appears seven times in the lengthy brief. Appearing 36 times is "gay" and "same-sex" is in there a whopping 236 times. NOT mentioned in the brief: "Regnerus" and "God."

UPDATE II: The National Center for Lesbian Rights reacts.

Today, the Utah state officials defending the state’s ban on marriage for same-sex couples filed a petition with the Supreme Court of the United States asking the Court to review a June 2014 decision by the United States Court of Appeals for the Tenth Circuit striking down the Utah ban. The plaintiff same-sex couples in the case—Kitchen v. Herbert—are represented by Peggy Tomsic of the Salt Lake City law firm of Magleby & Greenwood, P.C., and the National Center for Lesbian Rights (NCLR).

Said Tomsic: "We respect the State’s right to seek review of its own law in the highest Court in the land, but we also respectfully, and vehemently, disagree with the notion that States can deny one of the most foundational rights to the millions of same-sex couples living across this great land. We look forward to reviewing the Petition filed by Utah’s excellent lawyers, and to responding to it in due course."

Added NCLR Legal Director Shannon Minter: “We respectfully disagree with the State of Utah’s lawyers. Utah’s same-sex couples and their children are continually harmed by the enforcement of measures that deny them equal dignity, security and protection. We will carefully review the State’s petition to determine the response that will best advance our goal of winning for all Utahns the freedom to marry the person they love, and to have their marriages treated the same as other couples’ marriages.”

OKLAHOMA: Tulsa County Clerk To Appeal Marriage Ban Overturn To SCOTUS

Back in January a federal court overturned Oklahoma's ban on same-sex marriage.  Acting on behalf of Tulsa County Clerk Sally Howe Smith, the Alliance Defending Freedom appealed that ruling to the Tenth Circuit Court, who upheld the lower court's ruling last month. Late Friday evening the Alliance Defending Freedom announced that it was appealing the Tenth Circuit ruling to SCOTUS.

Kerri Kupec, spokeswoman for the Alliance Defending Freedom, told The Oklahoman that the clerk will ask Supreme Court justices to review the July 18 decision by the 10th U.S. Circuit Court of Appeals. In that 2-1 decision, the court ruled that Oklahoma’s ban violates 14th Amendment guarantees of due process and equal protection under the law. Mary Bishop and Sharon Baldwin, the Tulsa County couple who sued the court clerk when she refused to give them a marriage license, issued a joint statement Friday night. “Although we aren’t surprised by the Alliance Defending Freedom's decision to appeal our victory from the 10th U.S. Circuit Court of Appeals, neither are we disappointed,” the couple said. “We are ready to see the highest court in the land affirm that marriage equality is the law of the land. We have confidence in our case and our lawyers, and should the Supreme Court agree to hear our case, we anticipate a victory there, as well.”

Notices of appeal to SCOTUS have also been filed by the state of Utah and the clerk for Virginia's Prince William County, the latter of which was done by the Alliance Defending Freedom. None of the three appeals have yet been formally filed.

COLORADO: AG Says Boulder Clerk Is Making People Lose Faith In Government

"Permitting one clerk to ignore some state laws while using the power granted by other state laws causes significant irreparable harm to the state and the public interest. Each day that one clerk continues to issue same-sex marriage licenses — and publicly declare those licenses' validity, despite the state marriage laws and the attorney general's statements to the contrary — greater social and legal chaos ensues because the public is left confused and uncertain about the legal validity of such marriages and the role of clerks versus the role of the courts or other government officials in determining whether to enforce state law." - Colorado Attorney General John Suthers, in a filing to the state Supreme Court in which he demands that Boulder County Clerk Hillary Hall be forced to stop issuing same-sex marriage licenses. Hall has issued 199 such licenses as of yesterday.

More from USA Today:

Colorado Attorney General John Suthers is asking the state Supreme Court to force the Boulder County clerk to stop issuing marriage licenses to gay and lesbian couples, arguing she's causing Coloradans to lose faith in their government. In an unusual motion filed late Sunday evening, Suthers acknowledged that a federal judge last week declared unconstitutional the state's ban on same-sex marriage, but said the U.S. Supreme Court ultimately needs to decide. The federal judge who struck down that ban last week also said his order wouldn't go into effect for a month, giving higher courts time to review it. The Colorado Supreme Court has already ordered the Denver County clerk to stop issuing marriage licenses to same-sex couples, but that ruling didn't apply to Boulder. Hall said she would abide by the state supreme court's ruling.

Yesterday Suthers also filed a stay request with the Tenth Circuit Court of Appeals. Hit the link for the full filing.