Nebraska, Connecticut rulings to be challenged
As the dust settles from the disturbing series of legal implosions in July, two of those seven losing cases are heading towards the appellate courts.
Unfortunately, there’s nothing to be done about the denial of marriage equality by the high courts of New York and Washington.
Likewise, the three technical setbacks at the state supreme court level in Massachusetts, Georgia and Tennessee are definitive, although arg-uably these three decisions were far less harmful to the overall fight for civil rights than the two main marriage cases. The Tennessee and Massachusetts courts gave anti-gay activists the green light to pursue constitutional amendments. The Georgia court upheld an amendment that was passed in 2004.
But as far as the two other cases are concerned, the last word has yet to be written.
The New England based Gay and Lesbian Advocates and Defenders have announced immediate plans to appeal a July 12 lower court marriage defeat in Connecticut to the state appellate court. Although the marriage equality case in the Constitution State would normally take another year or so to reach the state supreme court, GLAD expects the high court to cut to the chase by taking direct review.
According to GLAD spokeswoman Carisa Cunningham, the state supreme court can intervene at any time on its own initiative, and often does so in important cases. Cunningham said it was “very likely” that the high court would pick up the marriage equality litigation, sending the case to a possible resolution next year.
In a related decision handed down on August 7, the Connecticut Supreme Court ruled unanimously that a right wing group called the Family Institute of Connecticut could not join the case as a defender of state law. The justices agreed with a lower court that the Family Institute had no real stake in the marriage equality lawsuit, merely strong views on the issue.
As the lower court reasoned, if everyone who had a passionate opinion on the question of same-sex marriage could become a formal participant, the result would be “a vast and unwieldy lawsuit that would ill serve the real interests of the plaintiffs and defendants already in the case.”
Connecticut’s marriage case was filed in August 2004 on behalf of eight gay and lesbian couples. Although the first round went to the defenders of the status quo last month, the opinion by Judge Patty Jenkins Pittman steered clear of the increasingly familiar anti-gay marriage rhetoric, observing instead that the Connecticut civil union law already provided gay and lesbian couples with equal rights under state law. The advocates at GLAD are prepared to make the case that separate is never equal, and that the parallel status of civil union inherently treats same-sex couples like second-class citizens.
Meanwhile, at the U.S. Court of Appeals for the Eighth Circuit, Lambda Legal Defense and the American Civil Liberties Union have asked the full court to rehear the challenge to Nebraska’s six-year-old anti-gay constitutional amendment.
On July 14, a unanimous three-judge federal appellate panel upheld the devastating amendment, reversing a lower federal court that had struck the measure in May 2005. The amendment, which Lambda calls the most extreme measure of its type in the country, not only restricts marriage to a man and a woman, but specifically prohibits any kind of legal recognition for a “same-sex relationship.”
Nebraska’s version is the only constitutional amendment to single out gay men and women in specific terms, and then target them with a blanket denial of any and all legal rights. Gay lawyers aren’t making a case for marriage in this case, but argue instead that the provision blocks gay couples from access to the political process. Indeed a bill to allow gay men and lesbians to tend to the burials of their deceased partners was killed in its cradle a few years ago when the attorney general wrote that even this small gesture of compassion would be unconstitutional under state law.
In general, it takes some time for a federal appellate court to decide whether or not they will gather the entire bench to rehear a decision from one of their three-judge panels, and they are certainly under no obligation to do so. Nonetheless, the July 14 decision was noteworthy for its cavalier treatment of the rights at stake for gay couples, and for its easy dismissal of controlling Supreme Court precedent. Given the apparent flaws in the ruling, and considering the weighty constitutional issues involved, there’s reason to hope that the full court will agree to reconsider the matter. If the full court declines the case, Lambda and the ACLU could theoretically petition the U.S. Supreme Court.
Success in either of these appeals would go a long way to taking the sting out of July’s consecutive legal slaps. But the best salve would be a marriage victory before the New Jersey Supreme Court, where justices heard oral arguments in February and are expected to rule as soon as this month.
Up ahead, the Maryland Supreme Court has just taken direct review of the marriage equality lawsuit in the Terrapin State. The high court will be briefed in December and decide the case at some point next year. And in October, a California appellate court will issue a ruling in the Golden State marriage cases, sending those coordinated lawsuits to the state supreme court for a final verdict next year as well.
This article appeared in the Dallas Voice print edition, August 11, 2006.
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