One state left without marriage ban lawsuit after South Dakota challenge

Mount RushmoreSouth Dakota was one of only two states with marriage bans that had not been sued. That changed last week when six couples filed a lawsuit in U.S. district court on Thursday, according to the Sioux Falls Argus Leader.

The suit challenges the state’s 1996 marriage law and 2006 constitutional amendment banning marriage between same-sex couples as well as the state’s right not to recognize out-of-state marriages. Five of the six couples were married in marriage-equality states. The sixth couple would like to marry in South Dakota.

On Wednesday, a suit challenged Montana’s marriage laws. North Dakota is now the only remaining state whose marriage ban is not facing judicial review. A suit in that state may be filed as early as this week.

Since the U.S. Supreme Court’s Windsor decision striking down parts of the Defense of Marriage Act last June, marriage equality has won in every suit that has come before a court.

—  David Taffet

Gallup poll: Same-sex marriage support at new high

10402506_501490293284126_5257312347839643206_nA majority of Americans across the nation continue to support same-sex marriage, but sharp regional differences remain, according to a poll released Wednesday, the Los Angeles Times reported.

The current Gallup poll,  shows that 55 percent of Americans support same-sex marriage, a percentage that has continued to rise since 2011, when support passed the majority point. In 1996, when Gallup first asked about the issue, just 27 percent of Americans surveyed said they believed that gay marriage should be legal.

The poll comes as federal courts this week in Oregon and Pennsylvania struck down state bans on same-sex marriage, meaning that 19 states and the District of Columbia now give gays the same rights as heterosexuals when it comes to matrimonial issues. The issue is pending in courts in almost every state and has been argued in two federal appeals districts involving cases from Utah and Virginia.

Most people expect the final decision will be made by the U.S. Supreme Court, which often waits for a variety of rulings from around the country before taking on an issue. While the court tries to insulate itself from polls, justices are aware of changing social mores and many think that it becomes a factor when deciding to tackle an issue. For example, the court acted when popular sentiment changed on race relations and abortion, among other issues.

According to the poll, 42 percent of those surveyed this year said gay marriage should not be valid, a number that has been falling from its high in 2011, when 47 percent opposed same-sex marriage.

The current poll is based on telephone interviews conducted May 8 to May 11 with a random sample of 1,028 adults living in all 50 states and the District of Columbia. It has a margin of error of plus or minus five percentage points.

All age groups have shown an increasing acceptance of same-sex marriage, but the greatest gains have been among the younger group. In 1996, 41 percent of those aged 18 to 29 years said that gay marriage should be legal. But that figure jumped to 78 percent this year.

By comparison, those 50 years and older remained below the majority level, even though their support increased.

Those 50 to 64 years old jumped from 15 percent saying they support gay marriage to 48 percent. Those older than 65 increased from 14 percent to 42 percent.

Regional differences remain a major consideration with the South, often referred to as the Bible Belt, as the only area below majority acceptance of same-sex marriage. According to the poll, 48 percent of those surveyed in the South accept gay marriage.

In the East, 67 percent voiced support; the West stood at 59 percent in support and the Midwest at 53 percent.

Southern states have a variety of constitutional bans on same-sex marriage, from Louisiana in 2004 through North Carolina in 2012. Bans in Arkansas and Kentucky have been challenged in court. One of the key cases on state bans is in Virginia, the capital of the Confederacy during the Civil War.

Virginia was also the state where the Supreme Court in 1967 struck down the ban on people of different races marrying each other. That case, Loving vs. Virginia, has frequently been cited in the current federal rulings supporting gay marriage.

—  Steve Ramos

Same-sex marriage battle spreads to Montana

MontanaFlagFringeMontana on Wednesday joined 28 other states with legal battles over gay marriage, while same-sex couples in Pennsylvania spent their first full day applying for marriage licenses knowing the governor wouldn’t stand in their way.

The Associated Press reported that a federal lawsuit filed by four gay couples in Montana leaves just two states — North Dakota and South Dakota — with gay marriage bans and no legal challenges aiming to overturn them. But that’s likely to change as same-sex marriage advocates there gear up for a legal fight.

State marriage bans have been falling around the country since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act.

Gay and lesbian couples can wed in 19 states and the District of Columbia, with Oregon and Pennsylvania becoming the latest to join the list this week when federal judges struck down their bans and officials decided not to appeal.

The Montana couples say their state’s constitutional ban denies gay couples the freedom and dignity afforded to other Montanans and robs them of the legal protections and benefits that come with marriage. Democratic Gov. Steve Bullock released a statement supporting their cause, while the state’s Republican attorney general said he would vigorously defend the ban.

Meanwhile, a lesbian couple from Rapid City, South Dakota, said they also plan to challenge their state’s constitutional ban on same-sex marriage in the coming days, along with a provision in federal law that lets states avoid recognizing gay marriages performed elsewhere. Their attorney said he’s contemplating filing a lawsuit in North Dakota, too.

Here’s a look at where things stand with other legal challenges across the country:

Arkansas

A state judge in Arkansas’ largest county earlier this month struck down the state’s gay marriage ban, saying the state has “no rational reason” for preventing gay couples from marrying. The state Supreme Court brought the marriages to a halt and is weighing state officials’ appeal.

Idaho

State officials announced this week they will appeal last week’s decision from a federal judge overturning the state’s same-sex marriage ban. The appeal goes to the 9th U.S. Circuit Court of Appeals.

Indiana

State attorneys have asked the 7th U.S. Circuit Court of Appeals in Chicago to review a federal judge’s recent order requiring Indiana to recognize the out-of-state marriage of a lesbian couple in which one woman is terminally ill. That ruling applies just to one couple — not to others who were legally wed elsewhere and are seeking to have Indiana recognize their marriages.

Kentucky

After a federal judge ordered Kentucky to recognize same-sex marriages performed in other states, attorney general Jack Conway said he would not defend the state’s law. But, the state has hired outside attorneys to handle the case and is appealing to 6th U.S. Circuit Court of Appeals in Cincinnati, which has not yet scheduled a hearing.

Michigan

The 6th Circuit is reviewing Michigan’s same-sex marriage ban that was overturned by a federal judge in March following a rare trial that mostly focused on the impact of same-sex parenting on children. Arguments have not been scheduled.

Nevada

Eight gay couples are challenging Nevada’s voter-approved 2002 ban that was upheld by a federal judge in 2012. The 9th U.S. Circuit Court of Appeals in San Francisco hasn’t scheduled arguments yet. Nevada Attorney General Catherine Cortez Masto is refusing to defend the ban.

Ohio

The 6th Circuit appeals court is reviewing two gay marriage cases from Ohio. The first involves recognizing gay marriages on death certificates, and the second involves an order for Ohio to recognize all out-of-state marriages. Arguments have not been scheduled in either case.

Tennessee

A federal judge ordered the state to recognize three same-sex couples’ marriages while their lawsuit against the state works through the courts. Tennessee officials are appealing the preliminary injunction to the 6th Circuit.

Texas

A federal judge declared the state’s ban unconstitutional, issuing a preliminary injunction. The state is appealing to the 5th U.S. Circuit Court in New Orleans.

Utah and Oklahoma

The 10th Circuit Court of Appeals in Denver is reviewing same-sex marriage bans that were overturned by federal court judges in these two states. The appeals court heard arguments on both cases in April, and a ruling is expected soon. Utah and Oklahoma voters overwhelmingly passed the bans in 2004.

Virginia

The 4th U.S. Circuit Court of Appeals in Richmond heard arguments this month about Virginia’s overturned ban and is expected to rule soon. Virginia’s attorney general, Mark Herring, is one of seven in the country who has refused to defend a state gay marriage ban. A county clerk who was sued in Virginia is defending the ban.

Other states with court cases demanding recognition of gay marriage are: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, South Carolina, West Virginia, Wisconsin and Wyoming. Most lawsuits challenge same-sex marriage bans or ask states to recognize gay marriages performed in other states.

—  Steve Ramos

UPDATE: Judge rules Pennsylvania ban unconstitutional

Oregon marriage

Oregon couples began marrying immediately after yesterday’s court ruling. (Picture courtesy Oregon United for Marriage)

UPDATE: A Pennsylvania judge ruled the state’s marriage ban is unconstitutional. No word yet on when marriage begins or if the ruling will be stayed until it can be appealed. The attorney general said she would not defend the ban. The governor has not said if he would appeal.

“We are better people than what these laws represent, and it is time to discard them onto the ash heap of history,” Judge John E. Jones III said in his ruling. Jones was appointed by President George W. Bush and was recommended to Bush by then-Pennsylvania Senator Rick Santorum.

ORIGINAL POST: This week is heating up as an active marriage-equality week.

Monday’s decision in Oregon which legalized same-sex marriage was expected. Also expected was an Arkansas state Supreme Court stay that stopped marriage equality in that state after about 500 couples married.

A ruling is expected at 2 p.m. (1 p.m. Central Time) Tuesday in a marriage case in Pennsylvania. Should the judge strike down the state’s marriage law, as every judge who has heard a marriage case since the U.S. Supreme Court struck down DOMA last June, marriage could begin in Pennsylvania this week. Rallies are planned across the state this afternoon.

In Utah, Judge Dale Kimball ruled Monday the state must recognize the marriages of the 1,300 couples who married during a two-week period when it was legal in December. He said it was unfair to put those couples into limbo, affecting everything from adoption to taxes to benefits. The decision doesn’t take effect for 21 days to give the state time to appeal.

—  David Taffet

UPDATE: Will gay Oregon judge legalize marriage today?

Judge Michael McShane

Judge Michael McShane

UPDATE 1: Judge Michael McShane declared Oregon’s marriage ban unconstitutional. The ruling was expect and couples lined up for licenses even before the ruling was released, according to Associated Press. The state is not expected to appeal, but there was no announcement of when marriage equality begins.

In his 26-page opinion, Shane wrote, “At the core of the Equal Protection Clause … there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.”

UPDATE 2: The first marriages have already taken place in Oregon, according to The Oregonian.

ORIGINAL POST:

Judge Michael McShane will rule on Oregon’s marriage ban at noon (2 p.m. Central time) today.

McShane and his husband are raising a child together.

Oregon’s attorney general said she would not appeal if the marriage ban is overturned and declined to defend the law when the case was heard in McShane’s court on Wednesday.

Should McShane not overturn the marriage ban making Oregon marriage-equality state No. 19, Oregon United for Marriage has enough signatures to put the issue on the ballot in November.

So the real question is whether marriage equality comes to Oregon this afternoon or will couples have to wait until later in the week. Also, how embarrassed is everyone in Oregon that Arkansas couples were able to marry in marriage-equality state No. 18 first? I mean Arkansas. Sheesh.

—  David Taffet

NOM loses, Idaho governor loses and Ark. attorney general loses, so all appeal

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Oregon Atty. Gen. Ellen Rosenblum

Judges in Idaho, Oregon and Arkansas just didn’t seem to be in the mood to listen to state officials today who didn’t care for their rulings. Virginia rolled out the same old, tired arguments that have been struck down across the country in its appeal to the 4th Circuit Court of Appeals.

Idaho Gov. Butch Otter seems desperate to prevent his state’s same-sex couples from marrying beginning Friday. The trial judge refused to put a stay on her decision that legalized same-sex marriage in the state.

Otter said he would ask the 9th Circuit Court of Appeals for a stay pointing to the “unmitigated disaster” that occurred in Utah after that state’s marriage ban was ruled unconstitutional.

Although he didn’t explain the disaster, he probably meant that about 1,300 couples married in Utah between Dec. 20 and Jan. 6, when the U.S. Supreme Court ordered a stay. Those couples’ marriages are recognized by the federal government for tax and benefit purposes. Utah announced that it would allow those couples to file joint state taxes as well.

So you can see what a disaster marriage has been in Utah, but with the Supreme Court stay, Otter is exaggerating by calling the disaster unmitigated. The court mitigated the horror of couples filing their taxes jointly and, in most cases, paying more.

The 9th Circuit is not expected to grant a stay to Idaho. That circuit includes marriage-equality states Washington, California and Hawaii and has ruled in favor of marriage equality in the past. However, the Supreme Court is likely to stay the decision until appeals are exhausted. That may take several weeks.

Speaking of 9th Circuit states, Oregon is the latest state whose marriage law challenge has begun. Last week, the National Organization for Marriage filed papers to defend the marriage laws because the state attorney general declined to defend it.

Today, a federal judge declined to allow NOM to participate in the case.

“This is an Oregon case. It will remain an Oregon case,” U.S. District Court Judge Michael McShane said.

NOM plans to appeal the judge’s decision to the 9th Circuit as well. The judge cited Hollingsworth v. Perry, better known as the Prop 8 case. That Supreme Court decision last year said interveners had to have standing. An organization can’t intervene just because they don’t like the interpretation of government officials.

Oregon Atty. Gen. Ellen Rosenblum is representing the state in the case, but she called the law indefensible.

In Arkansas, the attorney general continues to ask for a stay because of confusion over the ruling. The ruling said the state’s marriage law was unconstitutional. Some county clerks have begun issuing licenses while others have not.

The confusion seems to be among county clerks who don’t seem to want to comply with the ruling, not with the couples who read the ruling and went to the county clerks’ offices and asked for licenses. About 400 couples have married in Arkansas already.

Former Ark. Gov. Mike Huckabee called for the judge’s impeachment.

In Virginia, the state argued that 1.3 million voters passed an amendment. That argument was knocked down earlier this week in Idaho. Virginia also argued the plaintiffs do not have the right to redefine marriage, and they can’t give children a mother and a father.

—  David Taffet

UPDATE: Idaho becomes marriage equality state No. 19 on Friday

Gov Butch Otter

Gov. Butch Otter

UPDATE: On Wednesday, Judge Candy Dale denied Gov. Butch Otter’s request for a stay to delay marriage equality until after all appeals are exhausted. Marriage will begin on Friday.

ORIGINAL STORY: Expecting to lose in U.S. District Court, Idaho Gov. Butch Otter filed a motion for a stay of the court’s expected marriage-equality ruling before it was handed down, according to the Idaho Statesman.

The case was heard on May 5. On Tuesday, Judge Candy Dale handed down a 57-page ruling. If the court doesn’t stay its decision, Idaho becomes marriage-equality state No. 19. Last week, Arkansas became equality-state No. 18.

In court, Idaho Attorney General Lawrence Wasden couldn’t come up with any real reasons to deny same-sex couples to marry. The state’s main argument was that Idaho voters decided the issue in 2006, and the defendants misread the case if they thought that vote was driven by animus.

Judge Candy Dale wrote, “Because Idaho’s Marriage Laws impermissibly infringe on Plaintiffs’ fundamental right to marry, the Laws are subject to strict due process and equal protection scrutiny.”

Dale said the state’s marriage laws “unambiguously expresses a singular purpose — to exclude same-sex couples from civil marriage in Idaho” and found the laws unconstitutional under due process and equal protection under the Fourteenth Amendment.

The judge debunked the state’s argument voters weren’t motivated by animus.

“But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples,” Dale wrote.

Just how many people does this affect? The U.S. Census Bureau reported 3,245 same-sex households in Idaho in the 2010 census.

In Arkansas, where the marriage laws were declared unconstitutional on Friday, 400 couples have married since the state began issuing licenses on Saturday.

—  David Taffet

Ark. county clerk refuses to issue marriage licenses to gay couples

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Faulkner County Clerk Melinda Reynolds

While same-sex couples flocked to courthouses this weekend to tie the knot, a county clerk in Arkansas is refusing to issue any marriage licenses to gay couples.

Faulkner County Clerk Melinda Reynolds issued a statement through her office Sunday evening that it would wait to hand out marriage licenses to same-sex couples. The news comes after Friday’s ruling by Circuit Judge Christopher Piazza that struck down Arkansas’ ban on same-sex marriage.

Piazza didn’t stay his ruling pending appeal, so the ruling took effect with couples marrying Saturday. State Attorney General Dustin McDaniel’s office plans to appeal the ruling to the state Supreme Court.

In the Faulkner County statement about why the office wouldn’t issue licenses, Reynolds explained that state Supreme Court and not a circuit judge must strike down a state law.

—  Anna Waugh

Arkansas clerk issues first gay marriage license

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Jennifer Rambo, right, of Fort Smith, Ark., kisses her partner Kristin Seaton, left, of Jacksonville, Ark., on Saturday following their marriage ceremony in front of the Carroll County Courthouse as Sheryl Maples, far left, the lead attorney who filed the Wright v. the State of Arkansas lawsuit, looks on. (AP)

Two women were married on a sidewalk outside a county courthouse in Arkansas on Saturday, breaking a barrier that state voters put in place with a constitutional amendment 10 years ago, The Associated Press reported.

A day after Pulaski County Circuit JudgeChris Piazza said the ban was “an unconstitutional attempt to narrow the definition of equality,” Kristin Seaton, 27, andJennifer Rambo, 26, exchanged vows at an impromptu ceremony, officiated by a woman in a rainbow-colored dress.

The couple had spent the night in their Ford Focus after traveling to Eureka Springs from their home at Fort Smith, and was the first of about 10 couples to line up outside of the courthouse before it opened.

“Thank God,” Rambo said after Carroll County Deputy Clerk Jane Osborn issued them a license, ending a brief period of uncertainty when a different deputy county clerk said she wasn’t authorized to grant one and questioned whether Piazza’s order in a courtroom 150 miles away had any bearing in Eureka Springs.

Piazza ruled Friday that Arkansas’ 2004 voter-approved amendment to the state constitution violates the rights of gay couples, clearing the way for the first same-sex marriage in a traditional southern state. He didn’t put his ruling on hold as some judges in other states have done.

That caused confusion among the state’s 75 county clerks, said Association of Arkansas Counties executive director Chris Villines. He said Piazza should have issued a stay, just to avoid Saturday’s scramble.

“The court didn’t give us any time to get the kinks worked out,” Villines said.

Attorney General Dustin McDaniel said he would appeal the ruling and asked it be suspended during that process. No appeal had been filed as of Saturday morning when the license was issued.

Jerry Cox, president of the Arkansas Family Council, which promoted the gay-marriage ban in 2004, said Piazza’s decision to not suspend his ruling will create confusion if a stay is issued later.

“Are these people married? Are they unmarried?” Cox said. “Judge Piazza did a tremendous disservice to the people of Arkansas by leaving this in limbo.”

Arkansas’ amendment was passed in 2004 with the overwhelming support of Arkansas voters. Piazza’s ruling also overturned a 1997 state law banning gay marriage.

“The exclusion of a minority for no rational reason is a dangerous precedent,” he wrote.

The U.S. Supreme Court last year ruled that a law forbidding the federal government from recognizing same-sex marriages was unconstitutional. Since then, lower-court judges have repeatedly cited the decision when striking down some of the same-sex marriage bans that were enacted after Massachusetts started recognizing gay marriages in 2004.

Federal judges have ruled against marriage bans in Michigan, Oklahoma, Utah, Virginia and Texas, and ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states.

In all, according to gay-rights groups, more than 70 lawsuits seeking marriage equality are pending in about 30 states. Democratic attorneys general in several states — including Virginia, Pennsylvania, Nevada, Oregon and Kentucky — have declined to defend same-sex marriage bans.

Arkansas’ ruling came a week after McDaniel became the first statewide elected official to announce he personally supports gay marriage rights. But he said he would continue to defend the constitutional ban in court.

Aaron Sadler, McDaniel’s spokesman, said Friday the attorney general sought the stay because “we know that questions about validity of certain actions will arise absent a stay.”

Gay marriage is legal in Maryland, Delaware and the District of Columbia. Though technically considered southern states by the U.S. Census, they were not part of the old Confederacy, like Arkansas.

 

—  Steve Ramos

Judge strikes down Arkansas’ gay marriage ban, ruling not on hold

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Judge Chris Piazza

 A judge on Friday struck down Arkansas’ ban on same-sex marriage, saying the state has “no rational reason” for preventing gay couples from marrying, The Associated Press reported.

Pulaski County Circuit Judge Chris Piazza ruled that the 2004 voter-approved amendment to the state constitution violates the rights of same-sex couples. He didn’t put his ruling on hold as some judges have done in other states, opening the door for same-sex couples in Arkansas to begin seeking marriage licenses, though it wasn’t clear whether that would happen before Monday.

“This is an unconstitutional attempt to narrow the definition of equality,” Piazza wrote. “The exclusion of a minority for no rational reason is a dangerous precedent.”

Piazza issued his ruling late Friday, about half an hour after the marriage license office in Pulaski County closed.

Arkansas courthouses typically aren’t open on weekends, but with the state in its early-voting period for a May 20 primary, several clerks’ offices will be open Saturday. However, clerks reached by The Associated Press after Piazza issued his ruling said they hadn’t been formally notified of it and weren’t prepared to begin issuing marriage licenses.

At least one couple who sued over the ban said they hoped to wed quickly. Kathy Henson said she and her girlfriend Angelia Buford planned to seek a marriage license in neighboring Saline County as soon as offices opened.

“We think that (Piazza) did a really great job and that he ruled on the right side of history,” Henson said.

State Attorney General Dustin McDaniel’s office said he would appeal the ruling, which came a week after McDaniel announced he personally supports gay marriage rights but would continue to defend the constitutional ban in court.

“We respect the Court’s decision, but, in keeping with the Attorney General’s obligation to defend the state constitution, we will appeal,” spokesman Aaron Sadler said. “We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.”

The amendment was passed in 2004 with the overwhelming support of Arkansas voters. Piazza’s ruling also overturns a 1997 state law banning gay marriage.

In his decision, Piazza cited the U.S. Supreme Court’s 1967 decision that invalidated laws on interracial marriage.

“It has been over 40 years since Mildred Loving was given the right to marry the person of her choice,” Piazza wrote, referring to that ruling. “The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”

The U.S. Supreme Court last year ruled that a law forbidding the federal government from recognizing same-sex marriages was unconstitutional. Since then, lower-court judges have repeatedly cited the decision when striking down some of the same-sex marriage bans that were enacted after Massachusetts started recognizing gay marriages in 2004.

Federal judges have ruled against marriage bans in Michigan, Oklahoma, Utah, Virginia and Texas, and ordered Kentucky, Ohio and Tennessee to recognize same-sex marriages from other states.

—  Steve Ramos