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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.

Commentary

In case you missed it, Judge Richard Posner of the Seventh Circuit Court of Appeals — a conservative Reagan appointee who has frequently vexed progressive lawyers down through the years — said the following yesterday in what Esquire’s Charles Pierce aptly describes as (among other amusing characterizations) a “remarkably plain-spoken” ruling in favor of marriage equality:

“Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”

Click here to read the court’s ruling striking down Indiana and Wisconsin’s bans on same-sex marriage. Posner’s quote can be found on pages 19 and 20.

Commentary

Doesn’t it seem that the nation’s progress and momentum in implementing the Affordable Care Act (and, in particular, Medicaid expansion) is starting to resemble the slow but steady (and inevitable) progress on marriage equality?

Talking Points Memo has the story today of the latest conservative state to be talking openly of a plan to expand Medicaid — it’s our neighbor to the west Tennessee:

In a growing trend, Tennessee looks like it will be the next Republican-led state to move toward expanding Medicaid under Obamacare.

Right now, of course, North Carolina is in the “no” camp on both issues. The bet here, however, is that this won’t be the case come the 2016 election.

Click here and here to see two maps that reveal the trends.

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Lennie and Pearl

Lennie Gerber and Pearl Berlin — Photo credit: ACLU of North Carolina

Michael Biesecker of AP has a wonderfully heartwarming story this morning that’s available in several news outlets about one of the couples leading the legal fight for marriage equality in North Carolina. Pearl Berlin and Lennie Gerber have been together for 48 years and the notion that they might taste victory in the near future as Pearl battles health problems is a very cheering notion.

(As an aside, it should also be pointed out that, in addition to being a plaintiff in the legal challenge to North Carolina’s marriage discrimination amendment, Gerber (on the left) was once one of North Carolina’s finest consumer rights attorneys — she managed the Winston-Salem legal aid office for years and helped save countless people of modest income from various financial predators.)

All that said, it should also be noted that when marriage equality does come, the fight for justice will be far from over. As a our panelists eloquently explained at last week’s Crucial Conversation luncheon on the subject (watch the video here), LGBT North Carolinians can still be summarily fired by their employers because of who they are.  In other words, if same sex couples get the chance to be married in the near future, many will still have to remain in the closet for fear that placing their wedding photo on their desk at work will still get them fired.

And rest assured, even if the courts soon order marriage equality, Paul Stam and the other theocrats in the General Assembly will be doing their utmost to prevent passage of a law banning discrimination in the workplace and/or public accommodations. In other words, there’s a heck of a lot of work still to do.

 

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marriage amendmentThe Fourth Circuit today denied a request by parties defending Virginia’s same-sex marriage ban to stay the court’s ruling in Bostic v. Schaefer pending a petition for review by the U.S. Supreme Court.

On July 28 the court held that the Virginia law was unconstitutional and entered judgement on that date. The ruling is scheduled to go into effect on August 18, 2014.

Michèle B. McQuigg, the  Prince William County Clerk of Circuit Court and a defendant in Bostic, told the court that she intends to file a petition with the U.S. Supreme Court by October 26, 2014, and asked that implementation of the ruling be stayed in the meantime, citing the potential of confusion and inconsistent results:

The absence of a stay will likely produce legal uncertainty and confusion. The Utah marriage case serves as a useful example. In Utah, after the district court struck down the state’s marriage laws, the district court and the Tenth Circuit declined to issue a stay.  As a result, many same-sex couples in Utah obtained marriage licenses pursuant to the district court’s injunction. Days later, however, the Supreme Court stayed the injunction, and Utah’s man-woman marriage laws went back into effect. Thus, the State of Utah now declines to recognize the licenses that were issued to same-sex couples during that interim period.

Same-sex couples who obtained licenses during that period filed a lawsuit in federal court to require the State to recognize those licenses as valid. The district court held that the interim licenses must be recognized, but the Supreme Court again stayed that decision pending appellate resolution. Thus, the validity of those licenses is still in limbo.

For more on the Fourth Circuit’s ruling in Bostic, read here.