6th Circuit upholds marriage discrimination

Ruling is first at appellate level to go against equality, establishes need for SCOTUS to rule

Lisa Keen  |  Keen News Service
lisakeen@mac.com

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In a decision that will compel the U.S. Supreme Court to rule on the constitutionality of marriage equality bans, a panel of the Sixth Circuit U.S. Court of Appeals ruled Thursday, Nov. 6, that it is not unconstitutional for a state to ban marriage licenses for same-sex couples or refuse to recognize marriage licenses such couples obtain from other states.

It is the first federal appeals court to make such a ruling, and this one reversed six lower court rulings in four states, setting it on a direct path to the U.S. Supreme Court.

Many court observers believe they know how the Supreme Court will rule: that such bans are unconstitutional. That’s because on Oct. 6, there were not even four justices willing to hear appeals in defense of such bans. And the 40-page Sixth Circuit panel decision now creates a conflict among the circuits, essentially compelling the Supreme Court to make a definitive ruling on the issue.

The 2-to-1 decision from the Sixth Circuit was what many had also predicted. The two Republican appointees — both appointed to the bench by President George W. Bush — upheld the state bans. The one Democratic appointee — a Clinton choice — voted in dissent.

Writing for the majority, Judge Jeffrey Sutton acknowledged the futility of his ruling in its second sentence: “From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.”

But, echoing statements he made during oral argument in August, Sutton said the approval of same-sex marriage should be “in the hands of state voters” and that the Supreme Court’s 1972 summary dismissal of Minnesota gay couple’s appeal (in Baker v. Nelson) still binds lower courts to uphold the bans by other states.

“Respect for democratic control over this traditional area of state expertise ensures that ‘a statewide deliberative process that enable[s] its citizens to discuss and weigh arguments for and against same-sex marriage’ can have free and reasonable rein.”

As for licenses granted by other states, Sutton said, “States have always decided for themselves when to yield to laws of other states.”

Susan Sommer, Lambda Legal’s director of constitutional litigation, said her group is “extremely disappointed” and that the decision “highlights the need for the U. S. Supreme Court to right this injustice.”

Freedom to Marry President Evan Wolfson said the decision was “compeletly out of step with the Supreme Court’s clear signal last month” and “out of step with the majority of the American people.”

He also said there are at least two rational reasons for limiting marriage to heterosexual couples: One is that government “got into the business of defining marriage … to regulate sex, most especially the intended and unintended effects of male-female intercourse.”

“It is not society’s laws or for that matter any one religion’s laws, but nature’s laws [that men and women complement each other biologically], that created the policy imperative,” wrote Sutton.

“If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage,” Sutton wrote later in the decision.

The other reason, Sutton said, is “a state might wish to wait and see before changing a norm that our society [like all others] has accepted for centuries.” Noting that Michigan voters approved its ban just one year after same-sex marriage became possible in Massachusetts, Sutton said, “A state still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere.”

While Sutton acknowledged that there are costs to same-sex couples of denying them the right to vote, that harm “demands an answer — but from elected legislators, not life-tenured judges.”

He saw no evidence that the bans were born of animus but, rather, were motivated by “fear that the courts would seize control over an issue that people of good faith care deeply about.”

“[T]he institution of marriage arose independently of [the] record of discrimination” against gays, wrote Sutton.

Oddly, Sutton’s ruling acknowledged only 19 states and the District of Columbia as having allowed same-sex couples to marry. He did not mention that another nine states began issuing licenses to same-sex couples after the Supreme Court’s refusal to hear appeals from the Fourth, Seventh, Ninth and Tenth Circuits.

Sutton said the Supreme Court’s decision in U.S. v. Windsor, striking down a key provision of the Defense of Marriage Act, had no impact on the panel majority’s ruling in the Sixth Circuit cases. He said Windsor hinged on DOMA’s “unprecedented intrusion into the states’ authority over domestic relations.”

Sutton said the Supreme Court’s action in denying review of the seven appeals it refused in October expressed no opinion on the constitutionality of state bans on same-sex marriage.

“A decision not to decide is a decision not to decide,” wrote Sutton.

In dissent, Judge Martha Daughtery derided the majority opinion, saying it “wholly fails to grapple with the relevant constitutional questions” and instead occupies itself with the question of “who should decide” and exhibiting a “reverence for ‘proceeding with caution’.”

“If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate,” wrote Daughtery, “our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.”

The Sixth Circuit decision and dissent was addressed in federal district court rulings in six cases involving state bans in Kentucky, Michigan, Ohio and Tennessee: DeBoer v. Snyder (Michigan), Obergefell v. Hodges and Henry v. Hodges (Ohio), Bourke v. Beshear and Love v. Beshear (Kentucky), and Tanco v. Haslam (Tennessee).

The ruling represents the marriage equality movement’s second court loss since 2012 when a federal judge in Nevada ruled against same-sex couples in Sevcik v. Sandoval. The first loss was from a federal district court judge in Louisiana in Robicheaux v. Caldwell on Sept. 3.

The Fifth Circuit announced on Oct. 28 that it would hear oral arguments in the Louisiana case and one from Texas on Jan. 5.

© 2014 Keen News Service. All rights reserved.

—  Tammye Nash

SCOTUS declines marriage stays, adding up to 11 new equality states

Supreme-Court-building-permissionAs of this morning, there are five new marriage equality states, and that number could quickly grow to 11. That brings the total to 25, 31 once the courts clarify that the rulings apply to their entire circuits.

The U.S. Supreme Court has rejected  appeals from five states that lost cases challenging their bans on same-sex marriage at the appeals court level. Those five states — Virginia, Oklahoma, Utah, Wisconsin and Indiana — had appealed those rulings to the U.S. Supreme Court, and in rejecting those appeals, the Supreme Court in essence upheld appellate court rulings declaring same-sex marriage bans unconstitutional.

However, because the appellate courts had stayed their rulings pending the outcome of appeals, same-sex marriages in those five states had been on hold. Until today. With SCOTUS’ decision to reject the appeals, the stays are lifted and the weddings can commence.

The ruling of the appeals courts should apply to all states in those circuits that had cases heard or pending before those courts. That’s why the number of states with marriage equality in place could grow so quickly to 11.

Colorado, Kansas and Wyoming are in the same circuit as Utah and Oklahoma. West Virginia, North and South Carolina are in the same circuit as Virginia. Those additional states may also have marriage equality as of this morning.

So far all the federal appellate courts that have ruled on marriage equality cases have ruled against same-sex marriage bans. The fact that there has been no disagreement among the federal appellate courts is what allowed SCOTUS to, basically, punt on the issue.

However, the Fifth Circuit and the Sixth Circuit Courts of Appeals, both of which tend to be more conservative than other federal appellate courts, both have marriage equality cases pending. Should one or both of those appellate courts allow a marriage ban to stand, SCOTUS would then be forced to resolve the question once and for all.

Texas is among the states with marriage equality cases pending before the Fifth Circuit.

—  David Taffet

Virginia could become marriage-equality state No. 20 this week

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Chief Justice John Roberts

Virginia could become marriage-equality state No. 20 on Thursday if U.S. Supreme Court Chief Justice John Roberts doesn’t stay the lower court’s ruling.

Roberts set a deadline of 5 p.m. today for the attorneys representing same-sex couples in Virginia’s Bostic v. Schaefer case to respond to the defendants’ request for a stay of the Fourth Circuit’s ruling overturning the state’s marriage ban. If Roberts rejects the stay request, gay and lesbian couples could begin receiving marriage licenses in Virginia starting at 8 a.m. on Thursday morning.

The Bostic plaintiffs case are represented by Ted Olson and David Boies on behalf of the American Foundation for Equal Rights, who are joined by the ACLU and Lambda Legal. Olson and Boies were the attorneys on the winning side of California’s Proposition 8 case.

If put on hold, Virginia will have to wait until the Supreme Court rules on marriage equality. That happened in Utah when the Tenth Circuit refused to stay its decision, but the Supreme Court put the ruling on hold. Both Utah and Virginia have been referred to the Supreme Court for review.

—  David Taffet

Utah becomes first state to file for cert

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U.S. Supreme Court

On Tuesday, Utah became the first state to file a writ of certiorari, commonly referred to as cert, with the U.S. Supreme Court to uphold its marriage ban.

In June, the Tenth Circuit Court of Appeals ruled Utah’s marriage ban unconstitutional, the first such ruling by a federal appeals court.

The state had three choices. It could have accepted the ruling and begun issuing marriage licenses. It could have could have asked for a hearing en banc, meaning a new hearing would have been held at the appeals court level, but this time heard by the entire court, rather than a three-judge panel. Or, as it did, it could have appealed to the U.S. Supreme Court.

Two other states that have received appeals court rulings— Oklahoma and Virginia — also may file writs of cert. Four additional states’ cases — Michigan, Ohio, Kentucky and Tennessee — were heard by an appeals court this week and may appeal to the U.S. Supreme Court once a ruling is handed down.

The U.S. Supreme Court is in recess and reconvenes the first Monday in October. That’s when they’ll begin to decide which cases to hear during the upcoming session. If a marriage case is heard, a decision isn’t expected until June 2015. Traditionally, the most controversial decisions are left until the last day of the session. The court may also decide not to take a case during the 2014-15 session to allow more lower courts deal with the issue before hearing a case the following session.

—  David Taffet

Holder: DOJ will file brief in favor of same-sex marriage

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U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder told ABC News’ Pierre Thomas on Monday that the Justice Department will be filing a brief in the Utah same-sex marriage case urging the U.S. Supreme Court to uphold a lower-court ruling and block states from banning same-sex marriage.

District Judge Robert J. Shelby ruled last December that Utah’s same-sex marriage ban is unconstitutional. A three-judge panel of the 10th Circuit Court of Appeals upheld the ruling last month, and Utah Attorney General Sean Reyes announced that instead of asking the full 10th Circuit Court to review the case, he would appeal directly to the U.S. Supreme Court.

Holder said that filing the brief would be “consistent with the actions we have taken over the past couple of years,” in which the Justice Department has refused to defend the federal Defense of Marriage Act. Holder said that decision was “vindicated by the Supreme Court,” which ruled last year in Windsor vs. United States that the sections of DOMA allowing the federal government not to recognize same-sex marriages performed in jurisdictions that recognize such marriages are unconstitutional.

Holder told Thomas that he believes banning same-sex marriage is unconstitutional and that such bans cannot survive the standard of heightened scrutiny. He called the fight for LGBT rights “a defining civil rights challenge of our time,” and that LGBT people are waiting for an “unequivocal declaration that separate is inherently unequal.”

 

—  Tammye Nash

Mother Jones report: Hobby Lobby retirement fund invests millions in contraceptive manufacturers

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Debate continues to rage over the U.S. Supreme Court’s ruling in Burwell  v. Hobby Lobby, issued Monday. But Mother Jones uncovered some interesting information that makes the “closely held” company’s hypocrisy months ago.

The Supreme Court’s 5-4 decision on Monday  says that for-profit businesses in which at least 50 percent of stock is held by five or fewer people, such as family-owned businesses, are exempt from requirements in the Affordable Health Care Act that they cover certain kinds of contraception for their female employees in their health benefits packages. The owners of Hobby Lobby, David Green and family, claimed that having to cover such contraceptives for female Hobby Lobby employees violated their personal religions beliefs against abortion.

But as Mother Jones points out in its article, posted online back in April:

“Documents filed with the Department of Labor and dated December 2012 — three months after the company’s owners filed their lawsuit — show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).

“Several of the mutual funds in Hobby Lobby’s retirement plan have stock holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby’s health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.”

—  Tammye Nash

Upcoming Supreme Court decisions could affect LGBT community

Supreme-Court(5)By Lisa Keen

June is the final month of the U.S. Supreme Court’s current session and, while anticipation is not nearly so great this year for the LGBT community as it was last year, there is some concern in the air.

Last year, the wait was about marriage: whether the Supreme Court would declare the Defense of Marriage Act and California’s ban on same-sex couples marrying to be unconstitutional. It declared DOMA unconstitutional and, on a legal technicality, it allowed a lower court decision striking California’s Proposition 8 to stand.

This year, anxiety surrounds two consolidated cases in which employers are seeking the right to discriminate against employees in the provision of health benefits based on the company owner’s personal religious beliefs. It is the type of conflict –religious beliefs versus non-discrimination laws– that has arisen time and again in recent years by employers seeking to discriminate against LGBT people.

Sebelius v. Hobby Lobby Stores and Conestoga Wood v. HHS are lawsuits brought by the owners of for-profit commercial enterprises –a furniture maker, an arts and craft store, and a bookstore (the latter selling Christian-oriented books). The owners of the company object to a requirement by the Affordable Care Act that employers’ health plans include coverage for contraception. They say they’re not trying to stop the use of contraception; they just don’t want to be involved in funding it.

The Family Research Council submitted a brief in support of the Hobby Lobby employers, arguing that “commercial activity does not preclude or excuse religious observance and often can be a means of exercising religion.”

But an article on salon.com reported the Hobby Lobby and Conestoga owners are involved in political efforts to stop the use of contraception, as well as marriage for same-sex couples, through its donations to the National Christian Charitable Foundation, which funnels millions of dollars into organizations such as the Alliance Defending Freedom which has defended many state bans on same-sex marriage.

LGBT legal activists seek two major concerns with a ruling in favor of the employers in these cases. One is that it could open the door for employers to seek exemptions from providing coverage for other health benefits, such as coverage for the same-sex spouses or partners of employees, reproductive services for lesbian couples, testing and treatment for men at risk of HIV infection, transgender treatment for people with gender dysphoria. And the other is that employers and individuals might seek exemptions to other laws, such as laws prohibiting discrimination based on sexual orientation and gender identity.

Given these implications, the Hobby Lobby case is indeed another major moment for the LGBT community,” wrote National Center for Lesbian Rights Policy Counsel Ashland Johnson, in an article for NCLR’s website. “The Supreme Court’s resolution of the case will directly affect our reproductive rights and other health care needs. Equally concerning, it could result in devastating exceptions to protections for LGBT people at the state and local level, jeopardizing literally decades of advocacy and progress.”

Following oral argument in March, Lambda Legal’s director of Law and Public Policy, Jenny Pizer, expressed concern that the court may give certain for-profit companies –those closely held by families or small groups of people (also known as S-corporations)— the ability to claim the same sort of religious exemption to ACA that is currently afforded to religious institutions.

“If they say any for-profit can claim religious [exemptions], obviously, that’s very bad,” said Pizer in March. “If they say only S-corporations can have a religious exemption, that’s less bad, but it’s still bad. There are an awful lot of family-owned businesses.”

Adding to that worry: On May 5, the Supreme Court surprised some when it ruled in favor of allowing a town board in Greece, New York, open its meetings with a prayer that is specific to a particular religion, usually Christianity.

To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact,” wrote Justice Anthony Kennedy for a 5 to 4 majority in Town of Greece v. Galloway.

Other decisions LGBT legal activists will likely be watching for in the next few weeks include:

• National Labor Relations Board v. Noel Canning. The case involves the president’s right to make appointments during Congresssional recess – a tool President Obama has used to get a number of openly gay people into positions. He used it to get lesbian legal activist Chai Feldblum cleared onto the Equal Emloyment Opportunity Commission and to install gay nominee Richard Sorian as assistant secretary for public affairs at the Department of Health and Human Services.

• McCullen v. Coakley. The Gay & Lesbian Advocates & Defenders, the National Gay and Lesbian Task Force, and the National Center for Lesbian Rights both signed onto a friend-of-the-court brief in support of a Massachusetts that attempts to protect the safety of women seeking abortions by creating a 35-foot setback for any protest outside such facilities.

• Riley v. California. No LGBT group filed a brief in this case, but the gay friendly American Library Association did, arguing that police should not have a right to search a person’s smartphone contents without a warrant, incident to an arrest. Noting that smartphone users store sensitive personal data about themselves and their interests on their smartphones, the ALA brief said, “Smartphones are personal computers in every sense of the word: if every arrest of a person with a smartphone … allows police officers to rummage painstakingly and intrusively through the contents of personal libraries, the loss of constitutionally protected privacy will be great indeed.”

© 2014 Keen News Service. All rights reserved.

 

 

—  David Taffet

DFW Federal Club hosts Town Hall discussion on DOMA, Prop 8 rulings

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The DFW Federal Club is hosting a HRC Town Hall event tomorrow evening that will discuss the U.S. Supreme Court’s rulings.

HRC Legal Director Brian Moulton will explain the rulings, answer questions, and explain what LGBT advocates should expect and do next in the marriage equality movement.

An individual has offered to match federal club pledges made at the event up to $25,000.

The event is Friday from 6:30-8:30 p.m. at the Tower Club on the 48th floor of Thanksgiving Tower, 1601 Elm St. RSVP is required.

For more information or to RSVP, go here.

—  Dallasvoice

PHOTOS: About 500 attend Day of Decision rally on Cedar Springs

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By the time Dallas’ Day of Decision rally began at 7 p.m. at the Legacy of Love Monument, more than 300 people had gathered. As the crowd grew to close to 500, police closed a lane of Oak Lawn Avenue and two lanes of Cedar Springs Road.

GetEQUAL TX organizer Daniel Cates began the rally with chants of, “Right here, right now, I deserve full equality!”

Before the scheduled speakers, people from the crowd spoke in an open-megaphone session. One who claimed to be an “ex-lesbian” was countered with a chant of “No more hate” until the mic was taken from her and she left the steps of the monument.

Some of the speakers discussed the implications of the Supreme Court’s marriage equality decisions. Lambda Legal’s Ken Upton called the DOMA ruling a broad decision. He said it would take awhile to sort out the full implications.

“The ruling benefits the whole LGBT spectrum,” trans activist Oliver Blumer said. “It breaks down barriers.”

—  David Taffet

Out TX officials praise Supreme Court rulings, look ahead

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Annise Parker

Local and state officials and agencies applauded the U.S. Supreme Court’s rulings Wednesday in striking down the Defense of Marriage Act and allowing a pathway for marriage equality to return to California.

In two 5-4 decisions, Section 3 of DOMA was ruled unconstitutional and the federal government will have to recognize legally married same-sex couples. But Section 2 that addresses states recognizing same-sex marriages, was not up for consideration and the high court dismissed the Proposition 8 case on standing. So while many officials in Texas were pleased with the DOMA ruling, their attention turned to how to create marriage equality in Texas.

“The desire to legally affirm and protect loving relationships and families is fundamental and one that the American people increasingly understand and support,” lesbian Houston Mayor Annise Parker said in a statement. “The Court’s decision strikes down an inequality that has prevented legally married same-sex couples from enjoying the same rights as other married couples. Today we take a huge step forward, but this fight is not over. It is my hope that the decision leads to greater acceptance and tolerance — and ultimately to full equality.”

Dallas County District Clerk Gary Fitzsimmons, who’s openly gay, said he was glad the ruling found that gay couples deserve the same federal protections.

“It is the concept of equal protection that ensures all Americans regardless of background may enjoy the freedom and dignity afforded to them by the constitution and not just a privileged few who happen to be members of a particular racial or ethnic group, religious denomination, gender or sexual orientation,” Fitzsimmons said.

—  Dallasvoice