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Commentary

marriage amendmentAccording to news reports, Representative Paul Stam will hold some kind of legislative “briefing” tomorrow on a “religious freedom” bill that would permit magistrates and other state employees to deny same-sex couples marriage licenses if it violates their own religious beliefs.

This is an enormously troubling idea.

From a legal standpoint, permitting state employees to refuse to perform the duties of their job based on their faith opens the door to all sorts of potentially absurd new practices. There are many religions out there with many different beliefs, including some that are contrary to our state laws or policies. Are we now saying that a person’s individual, albeit sincerely-held, beliefs take precedence over the duties of their job? Can an EMT refuse to provide medical treatment to a member of the LGBT community because their lifestyle violates her religious beliefs? If a police officer, whose religion beliefs include the right of a man to discipline his wife, witnesses domestic abuse while on the job, can he choose not to arrest the husband? We’re heading down a very slippery slope with this bill.

But let’s think about this bill itself, which Stam claims is intended to defend religious freedom. The irony of this, of course, Read More

News

The justices of the U.S. Supreme Court agreed today to take on directly the question of whether same-sex marriage bans violate the Constitution.

Here’s the language from the order:

The petitions for writs of certiorari are granted.

14-556             OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
14-562             TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
14-571             DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
14-574             BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before2 p.m., Friday, April 17, 2015.

The cases come to the court from four states in the Sixth Circuit — Ohio, Tennessee, Michigan and Kentucky —  and follow that circuit’s decision upholding same-sex marriage bans in each of them.

News

marriage amendmentEarlier this week, State Senate President Phil Berger and former House Speaker Thom Tillis filed a petition for review at the U.S. Supreme Court, asking the justices to overturn the October decisions by federal district court judges in North Carolina rejecting the state’s same-sex marriage ban.

The federal court rulings followed the July decision by the 4th U.S. Circuit Court of Appeals in Bostic v. Schaefer, overturning a similar Virginia ban.

Tillis and Berger then intervened in two North Carolina cases for purposes of appeal after state Attorney General Roy Cooper refused to move forward, saying that the courts had now settled the question.

A third district court judge in North Carolina has also rejected the state’s marriage ban, but did not allow the lawmakers to intervene for purposes of appeal. That case, along with the two now before the nation’s highest court, is winding its way through the Fourth Circuit but is not part of the petition for review.

In October, the nation’s highest court refused to take several appeals overturning state marriage bans, likely because at that time all of the underlying decisions reached the same conclusion and no circuit split existed.

Since then, though, the Sixth Circuit has upheld bans in Kentucky, Michigan, Ohio, and Tennessee, creating the necessary split of authority on the issue.

The justices have been considering petitions for review in cases out of each of those states and may decide as early as this Friday which, if any, they will take. If they do hear any of the appeals, argument will likely be in April with a decision expected near the end of the term in late June.

Notably, the justices did refuse on Monday to take a case out of Louisiana which, like the North Carolina cases, had not yet been reviewed by the circuit court of appeals.

As SCOTUSblog’s Lyle Denniston notes:

The Court’s denial of review in the Louisiana same-sex marriage case is not a reliable indicator of the Court’s current interest in the authority of the states to ban same-sex marriage. The couples in the Louisiana case had asked the Court to bypass the U.S. Court of Appeals for the Fifth Circuit, and take on the case without waiting. The Justices’ response probably indicates a desire not to intrude into the review by the Fifth Circuit, which held a hearing on the Louisiana case, and two others, just last Friday. The Court seldom chooses to bypass appeals courts, although it clearly has the authority to do so.

State Rep. Tim Moore, sworn in as the new House Speaker yesterday, will now take the place of Tillis in the petition. Moore has long opposed gay marriage and has said that he and his Republican colleagues “owe it to the voters” to take all steps to uphold the state’s ban.

Recent polling shows, however, that most state residents now favor gay marriage.

The petition, though filed on January 9, was not docketed by the court until Tuesday. Read it in full here.

Commentary

Gay marriage 3Regular NC Policy Watch contributor Charles Beem weighs in this morning with is thoughts on the painfully slow process of finalizing America’s embrace of marriage equality.

The waiting game: Marriage equality and the Supreme Court
By Dr. Charles Beem

It has been nearly three months since the triumph of marriage equality in North Carolina, and it appears that the institution of heterosexual marriage has survived intact. For the LGBT community in North Carolina, it is the one bright spot in an otherwise dismal couple of years, which has seen this state slide from purple to red and all the attendant regression in health care, education, and civil rights that has accompanied the slide to the right.

Most notorious, of course, was the passage of Amendment One, a sucker punch thrown at the electorate in a May 2012 primary election in which a whopping 34% of registered voters participated, which, from hindsight, was sort of like a state passing a law prohibiting interracial marriage on the eve of the Supreme Court’s ruling in Loving v. Virginia (1967). After a federal appeals court declared the amendment unconstitutional last October, we witnessed the spectacle of conservative legislative leaders spending your tax dollars to try to defend the amendment, which reminds me of the soldiers who fanatically defended Hitler’s bunker from the Russians after he was dead!

Yet despite the momentous gains made for marriage equality in 2014, there is still cause to worry. Quite unlike the Warren Court that ruled unanimously in Loving in 1967, the current U.S. Supreme Court is quite obviously divided on an issue that a majority of Americans are coming to believe is a natural and logical, if not inevitable, progression of civil rights. Read More

News

As same-sex marriage bans continue to fall in the courts, states on the losing side of the battle are finding themselves on the hook for attorneys’ fees incurred by proponents of marriage equality, to the tune of more than $800,000 thus far, according to Zoe Tillman in this National Law Journal post.

And requests for millions more are still pending in cases making their way through the appellate courts, Tillman notes.

In the cases pending here, the requests themselves have been put on hold while appeals play out.  State Senate President Phil Berger and former House Speaker Thom Tillis intervened in those cases to appeal district court judgments overturning the state’s same-sex marriage ban, following the Fourth Circuit’s ruling on a similar ban in Virginia in Bostic v. Schaeffer.

But several of the attorneys in the Bostic cases are recovering fees.  Says Tillman:

After the Fourth Circuit declared Virginia’s marriage ban unconstitutional, officials reached fee agreements with the plaintiffs’ lawyers. Virginia will pay $60,000 to lawyers in Harris v. Rainey, a class action joined with another case, Bostic v. Rainey, on appeal. A spokesman for the attorney general’s office said the terms of an agreement with the Bostic lawyers were still being finalized.

In Harris, Jenner & Block worked with the ACLU of Virginia and Lambda Legal. Attorney fees will go to the nonprofit lawyers. In Bostic, Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner were co-lead counsel. Olson argued in the Fourth Circuit. Representatives from Gibson Dunn and Boies Schiller declined to comment about fees.