Alabama Supreme Court chief justice pledges to refuse the tyranny of SCOTUS

Alabama Supreme Court Chief Justice Roy Moore this week issued a declaration pledging to ignore any federal court rulings on marriage equality — including rulings by the U.S. Supreme Court — that he doesn’t like. The statement came after U.S. District Judge Callie Granade (appointed by President George W. Bush, by the way), ruled in favor of marriage equality in two separate cases since last Friday, Jan. 23.

Alabama Chief Justice Roy MooreMoore calls such rulings “tyranny.”

TheNewCivilRightsMovement.com reports that in a letter addressed to Alabama Republican Gov. Robert Bently, Moore wrote: “As Chief Justice of the Alabama Supreme Court, I will continue to recognize the Alabama Constitution and the will of the people overwhelmingly expressed in the Sanctity of Marriage Amendment. If we are to preserve that ‘reverent morality which is our source of all beneficent progress in social and political improvement,’ then we must act to oppose such tyranny!”

Moore claimed that the institution of marriage is being destroyed by “federal courts using specious pretexts based on the Equal Protection, Due Process and Full Faith and Credit Clauses of the United States Constitution.” He also advised the governor that issuing marriage licenses to same-sex couples “would be in defiance of the laws and Constitution of Alabama,” and claimed that Alabama is not bound by decisions of federal district or appellate courts.

Sounds like Chief Justice Moore attended the Mike Huckabee School of Law. But the Alabama Republican might want to take a refresher course on exactly how this whole state/federal/constitution/supreme court thing actually works, focusing especially on the U.S. Constitution’s Supremacy Clause.

But then, I guess we really can’t expect all that much from Republican Chief Justice Moore. After all, he is the same man who was removed by the Alabama Court of the Judiciary from his seat as Alabama’s chief justice in 2003 when he refused to remove a stone monument of the 10 Commandments from the Alabama judicial building. The fine people of the state re-elected him chief justice in 2012, bless their hearts.

Last year, Moore went on a cross-country speaking tour to warn folks that same-sex marriage a devilish plot to destroy to America. Also last year, Moore went to Mississippi to speak to the anti-choice group Pastors For Life where he attacked marriage equality and declared that the First Amendment applies only to Christians. And in 2012, Moore told everybody who would listen during his campaign for chief justice that same-sex marriage is not about equality for lesbians and gays but an evil plan to destroy the God-ordained institution of marriage.

—  Tammye Nash

Somebody tell Mike Huckabee how the court system works, please

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Mike Huckabee

Former Arkansas Gov. Mike Huckabee, a once and likely future presidential candidate, went on Hugh Hewitt’s radio show Tuesday, Jan. 20, to explain how just because federal courts — and eventually probably even the U.S. Supreme Court — issue rulings saying that laws banning same-sex marriage are unconstitutional, that doesn’t mean that the president or Congress or state governors and legislatures don’t have to abide by those rulings.

As reported by TheNewCivilRightsMovement.com, Huckabee said:

“If the federal Supreme Court rules that same sex marriage is protected under the 14th Amendment, you still have to have Congress and the president act to agree with it, because one branch of government does not overrule the other two. This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same-sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government.

“One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.

Ummmm, I’m no constitutional legal scholar by any stretch. But I am pretty sure that good ol’ Mike hasn’t got the first clue about how our judicial system works and how the courts actually interact with the other two branches of the federal government (and with state governments).

From what I recall from those long-ago days when I was in school, Congress and state legislatures can make laws, and it is precisely the duty of the courts — all the way up to and including the Supreme Court — to make sure that those laws do not violate the rules of the Constitution. And when the courts decide that a law is unconstitutional — as is happening over and over again with marriage equality bans — those laws don’t get to stay in effect.

Even when Hewitt, a conservative himself who happens to be a professor of law (at the same school where the head of the right-wing National Organization for Marriage teaches), reminds Huckabee about the Supremacy Clause (Article VI, Paragraph 2 of the U.S. Constitution, which establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitution), Huckabee refused to be swayed. He promised that even if he were the only one, he would insist on standing firm against all the courts in all the land because “because I believe it is the right position, it’s the Biblical position, it’s the historical position.”

You can listen to Huckabee here.

 

—  Tammye Nash

Prejudiced SCOTUS justices? AFA calls on Ginsberg, Kagan to recuse themselves from marriage equality ruling

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American Family Association President Tim Wildmon, right, has said that U.S. Supreme Court Justices Ruth Bader Ginsberg, left, and Elena Kagan, right, should recuse themselves from marriage equality cases because they have officiated at same-sex marriages.

The American Family Association has called on U.S. Supreme Court Justices Ruth Bader Ginsberg and Elena Kagan to recuse themselves from the marriage equality cases the court announced last Friday (Jan. 16), that it will be hearing appeals on, likely in April. Ginsberg and Kagan should not participate in the hearing, AFA President Tim Wildmon has declared, because they have both officiated as same-sex weddings, according to reports by the UK LGBT news site Pink News.

SCOTUS announced Friday that the court will accept appeals on four marriage equality cases — from Kentucky, Michigan, Ohio and Tennessee. The four cases are from the 6th Circuit Court of Appeals, the only federal appellate circuit court to rule against marriage equality since June 2013, when the Supreme Court struck down that portion of the federal Defense of Marriage Act that banned the federal government from recognizing same-sex marriages performed in jurisdictions that honor marriage equality.

Last October, the Supreme Court declined to hear appeals of cases in which other federal appellate courts had ruled in favor of marriage equality. And in December the the Supreme Court declined to extend a stay on a federal trial court ruling in favor of marriage equality in Florida, a decision that allowed legal same-sex marriages to begin there on Jan. 6. (A state judge who had also ruled in favor of equality but had also stayed her ruling lifted that stay on Jan. 5, so the first legal same-sex marriages in Florida were performed that day.)

Pink News notes that Ginsberg “has quietly officiated a number of same-sex weddings,” the first in 2013, while Kagan presided over the wedding ceremony of her former law-clerk and his partner last year. That, to Wildmon, indicates “Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court.”

But the Pink News posts also notes that the other justices’ previous actions could be seen as indicating bias as well: “However, Mr Wildmon’s claims have no discernible legal basis; similarly arbitrary claims could be made that as seven of the nine justices are themselves married to people of the opposite sex, the entire court should be recused.”

—  Tammye Nash

BREAKING: SCOTUS to rule on marriage equality

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Plaintiffs in the Texas marriage equality case listen as their attorney, Neel Lane, center, speaks at a press conference outside the courthouse in New Orleans after the 5th Circuit court hearing on Jan. 9. Plaintiffs are Nicole Dimetman and Cleo DeLeon of Austin and Victor Holmes and Mark Phariss of Plano. (Photo by Erin Moore)

The U.S. Supreme Court decided today (Friday, Jan. 16) to hear arguments in four cases challenging marriage equality. The justices are expected to hear arguments in the cases in April and issue a ruling by June, according to reports by CNN and others.

The court will hear appeals from Ohio, Tennessee, Kentucky and Michigan — all four of which are in the 6th Circuit Court of Appeals, the only federal appellate court to have ruled against marriage equality since SCOTUS’ landmark U.S. v Windsor decision in June 2013.

In the first week of 2015, Florida became the 36th marriage equality state. The District of Columbia also recognizes same-sex marriages

The Supreme Court last October declined to hear appeals in several cases challenging same-sex marriage bans, all of which had been decided by federal appellate courts in favor of equality.The decision by the court launched a wave of new marriage equality states and appeared to indicate that the court stands in favor of marriage equality.

The court also declined in December to extend a stay on the federal trial court ruling striking down the same-sex marriage ban in Florida.

A three-judge panel of the 5th Circuit Court of Appeals heard oral arguments last Friday, Jan. 9, in marriage equality cases from Texas, Louisiana and Mississippi. Although there is no word yet when the 5th Circuit court might issue a decision in those cases, marriage equality supporters feel the decision will come down in their favor.

—  Tammye Nash

BREAKING: No word from SCOTUS on cases appealed from 6th Circuit

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The U.S. Supreme Court today (Friday, Jan. 9) took no action on appeals of five marriage equality cases from the 6th Circuit Court of Appeals. The 6th Circuit court is the only federal appellate court since the Supreme Court’s June 2013 ruling declaring parts of the federal Defense of Marriage Act unconstitutional to rule against marriage equality and in favor of state bans on same-sex marriage.

The Supreme Court last fall chose not to hear appeals in cases from other circuits, all of which had ruled in favor of equality. The court also chose not to extend the stay on a Florida judge’s ruling overturning the ban there, leading to the start of same-sex marriages there on Monday (Jan. 5).

Although today was the first day the court might have announced some action on the five 6th Circuit cases, it wasn’t the last. According to a report by Reuters, the justices often delay acting on cases the first time they are discussed in their private sessions. An announcement on whether the court will hear the cases could come as soon as next week.

—  Tammye Nash

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