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Gay marriage 3As reported, the ACLU will immediately file papers asking the federal judge handling same-sex marriage cases here to invalidate the state’s ban and allow marriages to go forward.

For quick context on the the Supreme Court’s inaction today and what it means in North Carolina and elsewhere, see this VOX explainer.

And for more detail, read this post by Lyle Denniston at SCOTUSblog on how the ruling will unravel in affected states and what’s on the horizon that might push the Supreme Court to take a marriage equality case and rule on the issue.

As they say on the live blog, here’s Lyle:

With not a single dependable hint of its own constitutional view of same-sex marriage, the Supreme Court in one fell swoop on Monday cleared the way for gays and lesbians to wed in a batch of new states — starting first in five more states, and probably adding six more in the coming weeks.  If that happens in all eleven, it will mean that same-sex marriages would then be legal in thirty states and Washington, D.C.

In seven one-line orders, released without explanation and with no report on how any Justice voted, the Court surprisingly refused to review any same-sex marriage case now before it and, in the process, prepared to lift a series of orders that had delayed such marriages while the issue remained in the Court.   Almost no one had expected that to happen.

It may take a few weeks for the Court’s action to take effect in real-world terms, in the geographic areas where federal appeals courts have struck down bans in five states — the decisions that the Justices have now left intact.  Because those appeals court rulings are binding on all federal courts in their regions, those decisions almost certainly dictate the outcome in six more states.

Commentary

Mike Meno of the ACLU of North Carolina issued the following statement in response to the announcement this morning by the U.S. Supreme Court that would not take up the appeals of various circuit court decisions upholding marriage equality:

U.S. Supreme Court today announced it would not review appeals court rulings in seven states, including one from Virginia by the Fourth Circuit Court of Appeals, striking down state bans on marriage for same-sex couples. The decision means that all of those rulings stand, and the states in their jurisdiction must comply with the law and recognize the freedom to marry for same-sex couples.

North Carolina is one of five states in the Fourth Circuit. The Supreme Court’s announcement means that all states in the Fourth Circuit, including North Carolina, are bound by the Fourth Circuit’s ruling that struck down Virginia’s ban on marriage for same-sex couples.

“The Supreme Court’s decision means that the freedom to marry for same-sex couples must be recognized here in North Carolina without delay,” said Chris Brook, legal director of the American Civil Liberties Union (ACLU) of North Carolina. “We are asking the district court here in North Carolina to immediately issue a ruling striking down North Carolina’s unconstitutional and discriminatory ban on marriage for same-sex couples. Every day that gay and lesbian couples in North Carolina are denied the ability to marry the person they love places their families and children in legal and financial jeopardy. The time has come to end this unfair treatment once and for all and to let our American values of freedom and equality apply to all couples.”

The ACLU and ACLU of North Carolina Legal Foundation have filed two federal lawsuits challenging North Carolina’s ban on marriage for same-sex couples, both in the U.S. District Court for the Middle District of North Carolina in Greensboro. The first, Fisher-Borne, et al., v. Smith, was filed in July 2013 as an amended complaint to a 2012 lawsuit challenging North Carolina’s ban on second parent adoptions on behalf of six families across the state headed by same-sex couples. On April 9, 2014, the ACLU filed a second federal lawsuit, Gerber and Berlin, et al., v. Cooper, on behalf of three married, same-sex couples seeking state recognition of their marriages. Because of the serious medical condition of one member of each couple, the Gerber plaintiffs are asking the court to take swift action.

The ACLU has asked the judge in those cases to quickly overturn North Carolina’s marriage ban in light of a July ruling from the U.S. Court of Appeals for the Fourth Circuit that found Virginia’s similar marriage ban unconstitutional.

To date, the ACLU has legal challenges to marriage bans pending in 13 states.

News

The U.S. Supreme Court will take a look at seven same-sex marriage petitions for review on September 29 as the justices get ready for the new term, according to Lyle Denniston at SCOTUSblog:

In order of their filing at the Court, these are the cases:  Herbert v. Kitchen (Utah), Smith v. Bishop (Oklahoma), Rainey v. Bostic (Virginia), Schaefer v. Bostic (Virginia), McQuigg v. Bostic (Virginia), Bogan v. Baskin (Indiana), and Walker v. Wolf (Wisconsin).

Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both.

As Denniston notes, there’s no telling what if anything they’ll do with the cases, but the Court is moving witih some dispatch, collecting the petitions for consideration early in the term.

Although no one at the Court said this explicitly, the Justices apparently wanted all seven of the petitions so far filed to be ready for the September 29 Conference, which is to be held a week before the new Term formally opens.  The seven petitions present a variety of scenarios with regard to who is appealing and what they are asking.  There is no way for outsiders to know exactly what the Justices will be looking for as they go over the seven filings.

Those petitions almost certainly will not be the last that the Supreme Court sees in the coming Term.  Two other federal appeals courts are poised to rule quite soon, and a third has a case before it but has not yet scheduled a hearing.

The Court, however, need not await the arrival of any other petitions, if it is prepared to take on the controversy itself promptly.

If the Court does grant review of any same-sex marriage cases any time up to the middle of January, a final decision would be expected by next summer.

News

Gay marriage 3Federal courts in North Carolina have stayed proceedings in the same-sex marriage cases here while the U.S. Supreme Court decides whether to review the Fourth Circuit’s decision in Bostic v. Schaefer, finding Virginia’s marriage ban unconstitutional.

Five petitions for review of lower court rulings on the issue are now pending before the high court in various stages of readiness — one each from Utah and Oklahoma and three from Virginia (from different parties).

Lyle Deniston at SCOTUSblog has this full rundown of where the cases stand. Here’s his suspected timing:

Following the series of lower-court rulings on same-sex marriage, petitions posing that issue began arriving at the Court on August 5.  In the twenty-four days since then, the other four petitions have come in, so at this stage cases from Oklahoma and Utah are close to being ready for the Justices to consider promptly, as are at least two of the three petitions about Virginia’s ban.

Whether the Court is prepared to step into the controversy at an early point may depend upon whether the Justices are convinced that there is a split on the core issue among lower federal appeals courts.  There is a split, but it depends upon taking into account an appeals court decision years before the Court’s ruling last year in the Windsor case.   Every federal court ruling on the issue since then has resulted in a nullification of state bans, relying on the reasoning in the main Windsor opinion.

The Justices may want to wait to see if a new split is going to develop at the appeals court level.  Many observers now appear to believe, in the wake of a recent hearing before the U.S. Court of Appeals for the Sixth Circuit, that that court may uphold one or more state bans in the four cases it heard.

A split in the circuits may now also be bolstered by today’s ruling from a federal judge in Louisiana, upholding that state’s ban.  Of course that decision — the first from a federal district court to uphold a state ban — would have to pass through the Fifth Circuit first, and likely not in time to make it up to the Supreme Court this term.

Here is the order staying proceedings in Fisher-Borne v. Smith and Gerber v. Cooper.

Here is the order staying proceedings in General Synod of the United Church of Christ v. Cooper.

News
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Gay rights advocates rally at a recent Moral Monday demonstration.

Equality NC, same-sex couples and families delivered over 10,600 petitions to the Raleigh and regional offices of Governor Pat McCrory this morning, urging him to stop defending the state’s same-sex marriage ban.

“We are proud to deliver this important message alongside families from all across the state who are demanding Gov. McCrory not waste one taxpayer dollar defending what is now an unconstitutional and indefensible law,” said Chris Sgro, Equality NC’s executive director. “In doing so, we join them in asking that our elected officials not only stand with their constituents, but also help North Carolina stand on the right side of history.”

Last month, North Carolina Attorney General Roy Cooper announced his office would no longer defend state laws banning same-sex marriage, after the Fourth Circuit Court of Appeals rejected Virginia’s same-sex marriage ban in Bostic v. Schaeffer.

As the News & Observer points out in Wednesday’s paper, the petition drive by the advocacy organization may press McCrory to discuss his own position on same-sex marriage:

McCrory had asked Cooper to request a stay of North Carolina’s case pending a higher appeal of the Virginia lawsuit, which is now on hold.

But his stance leaves unanswered questions, Equality NC suggests: Does McCrory still personally support the amendment after the Virginia ruling? And will he seek a special outside counsel to uphold the state’s ban now that Cooper won’t defend it?

The questions may hold implications for the 2016 governor’s race when Cooper is expected to challenge McCrory.

McCrory supported North Carolina’s constitutional ban on gay marriage when it was placed on the ballot in May of 2012.

Since then, polls have shown a growing acceptance of this issue with a majority of voters (nationwide and in North Carolina) supporting either marriage or civil unions for same-sex couple.

For more on where things stand in the courts on same-sex marriage, read this piece by Policy Watch’s Courts and Law reporter Sharon McCloskey.