BREAKING: Senate confirms first openly gay man as federal district judge in Texas

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U.S. District Judge Robert Pitman

The U.S. Senate has confirmed Robert Pitman to the U.S. District Court for the Western District of Texas, making him the first openly gay federal district court judge in Texas, according to reports by LGBTQNation.com.

The Western District court had been vacant for six years. The vote to confirm Pitman came late Tuesday evening, Dec. 16.

U.S. Sen. Ted Cruz, a Texas Republican who has never been a friend of the LGBT community, is getting credit for Pitman being confirmed — but not because Cruz suddenly had a change of heart on LGBT issues.

In an effort to force a vote on what he called President Obama’s “illegal executive amnesty” for immigrants, Cruz and Sen. Mike Lee, R-Utah, on Friday, Dec. 12,  scuttled a bipartisan agreement that would have prevented weekend votes in the Senate. The ban on weekend votes would have meant the Senate would have run out of time before being able to vote on confirming more than a dozen of the president’s judicial and executive nominees, including Pitman, who likely would not have been confirmed if they had been forced to wait until next year when the GOP will control the Senate.

But when Cruz and Lee sidelined the agreement, that opened the door for current Senate Majority Leader Harry Reid, D-Nev., to call the Senate back into session on Saturday and get those votes through.

Pitman, a former magistrate judge in Austin, had led the San Antonio-based federal prosecuting office since 2011 when he became the first openly gay U.S. attorney in Texas. He had also served as an assistant U.S. attorney in the same district from 1990 to 2003.

—  Tammye Nash

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

BREAKING: Marriage equality win in Colorado

Colorado state District Court Judge C. Scott Crabtree ruled Wednesday that Colorado’s ban on same-sex marriage, approved by voters in 2006, is unconstitutional. But Crabtree immediately stayed his ruling as the case moves through the appeals process, Reuters has reported.

In his ruling, Crabtree wrote: “There is no rational relationship between any legitimate governmental purpose and the marriage bans.”

Also on Wednesday, Utah Attorney General Sean Reyes announced he will appeal a ruling by a three-judge panel of the 10th Circuit appeals court directly to the U.S. Supreme Court rather than asking for the full 10th Circuit court to rehear the case.

Same-sex marriage is now legal in 19 states and the District of Columbia, and lawsuits challenging same-sex marriage bans are headed to the U.S. Supreme Court while two other lawsuits challenging bans in Oklahoma and Virginia have already been heard by appellate courts.

—  Tammye Nash

Colorado clerks begin issuing marriage licenses

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Couples can marry in Boulder … for now.

As a result of the Tenth Circuit’s ruling yesterday that struck down the Utah marriage ban, Boulder County has begun issuing marriage licenses. Lafayette and Longmont counties will begin on Friday, according to the Denver Post.

Colorado is in the same circuit as Utah, so the Boulder County clerk said the ruling applies to her state. The attorney general disagrees and said the licenses won’t be valid.

By the end of the Wednesday, two couples were married. Boulder’s county clerk said she will continue issuing licenses today.

On Wednesday, the Tenth Circuit issued a split ruling declaring Utah’s marriage ban unconstitutional. The court put a stay on its ruling until it’s heard by the U.S. Supreme Court. The stay only mentions Utah, not Colorado, and Boulder’s county clerk acted after advice from the county’s legal staff. The circuit also encompassed Oklahoma, New Mexico, Kansas and Wyoming.

The attorney general’s actions indicate that Colorado will not accept the decision of the court in its marriage cases, as the Oregon attorney general did several weeks ago, and will appeal to the U.S. Supreme Court.

—  David Taffet

BREAKING: Tenth Circuit upholds marriage equality in Utah

10th CircuitThe Tenth Circuit Court of Appeals has upheld the lower court ruling in the Utah marriage discrimination case — Kitchen v. Herbert — that the U.S. Constitution guarantees same-sex couples due process and equal protection.

This is the first ruling by an appellate court since the landmark U.S. v. Windsor case was decided last June, striking down part of the Defense of Marriage Act and instructing the federal government to recognize marriages of same-sex couples.

“Today’s decision by the Tenth Circuit affirms the fundamental principles of equality and fairness and the common humanity of gay and lesbian people,” said Peggy Tomsic, one of the attorneys in the case. “As the Court recognized, these families are part of Utah’s community, and equal protection requires that they be given the same legal protections and respect as other families in this state.  The Court’s ruling is a victory not only for the courageous couples who brought this case, but for our entire state and every state within the Tenth Circuit.”

The 10th Circuit also heard the Oklahoma marriage discrimination case the same day, and is expected to hand down its ruling in the case any time now.

—  David Taffet

Federal government will recognize Utah same-sex marriages

Screen shot 2014-01-10 at 12.21.53 PMAttorney General Eric Holder said for the purpose of receiving federal benefits, the more than 1,000 marriages performed in Utah are valid.

He said that since the Windsor decision issued in June 2013, the Justice Department has been working tirelessly to implement it.

“These couples should not be asked to endure uncertainty regarding their status as the litigation unfolds,” he said.

Same-sex marriage became legal in Utah after a court ruling on Dec. 20. It remained legal until Jan. 6 when the state obtained an injunction.

Today, Utah Attorney General Sean Reyes instructed county clerks to finish the paperwork for those marriages that had been solemnized despite the injunction. He said the paperwork is an administrative function, not a legal one, so the state will continue not to recognize those marriages as valid.

View the video of Eric Holder here.

—  David Taffet

UPDATE: Justices block gay marriages in Utah during appeal of case

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Justice Sonia Sotomayor

UPDATE: 

The full U.S. Supreme Court has granted Utah a stay on a district court decision that has allowed same-sex couples to marry there since Dec. 20.

The court issued its stay Monday, apparently after Justice Sonia Sotomayor referred the matter to the full court.  Sotomayor is the justice designated to administer requests for emergency stays for the 10th Circuit U.S. Court of Appeals but had the option to ask the full court to weigh in on the request.

It takes at least five justices to grant such a stay. The order issued today does not indicate that any justice was in dissent. It states simply that the stay is granted and that the Dec. 20 order by U.S. District Court that prohibited Utah from enforcing its ban is “stayed pending final disposition” of the appeal of that decision to the 10th Circuit. Given the 10th Circuit’s briefing schedule for the appeal, that means the ban will be in force for at least three months and likely longer, given anticipated appeals of whatever the 10th Circuit decides.

Peggy Tomsic and James Magleby, with the private law firm of Magleby & Greenwood which is representing same-sex couples in the case, issued a statement following the Supreme Court’s announcement, noting that it is “not unusual” for the court to stay a decision declaring a state law unconstitutional pending appeal and has “no bearing on who will win on appeal.”

LGBT legal activists agreed.

“No one should draw any negative inferences about where the Court is leaning. This is an unprecedented situation,” said Shannon Minter, legal director for the National Center for Lesbian Rights, which has several marriage equality lawsuits pending now, too. “Never before has a federal court struck down a state marriage law and then declined to stay it, and never before has a Court of Appeals also declined to issue a stay.  For those reasons, the chances that the Supreme Court would issue a stay until the appeal is resolved were always quite high, so the real news here is that so many marriages were able to take place. And it is significant that the Court did not rush to act. There is nothing unusual about the issuance of a stay when a federal court strikes down a state law on federal grounds. Bottom line [is] the prospects for this case still look very bright. And there will never be any going back in Utah.”

The challenge to Utah’s ban (the state constitutional Amendment 3 and related statutes), Kitchen v. Herbert, now proceeds as Herbert v. Kitchen on an expedited schedule before the 10th Circuit U.S. Court of Appeals. The next briefing date, according to Tomsic is Jan. 27. The last brief due before oral argument is Feb. 25. The court date has not yet been announced but the next argument session after that deadline is March 17-21.

The Deseret News reports that more than 900 same-sex couples have married since Dec. 20, when District Judge Robert Shelby, an Obama appointee, issued a 53-page opinion, striking down Utah’s ban, ruling it violates the U.S. Constitutional guarantees of equal protection and due process. Shelby immediately enjoined the state from enforcing its ban, then denied the state’s request for a stay of his decision pending appeal. The state took its request for an emergency stay to the 10 Circuit, where it also filed an appeal of Shelby’s decision. Two judges of the 10th Circuit — one an appointee of President George W. Bush, the other an appointee of President Obama — denied the request for a stay on Dec. 24 but put the appeal on an expedited schedule.

“This stay is obviously disappointing for the families in Utah who need the protection of marriage and now have to wait to get married until the appeal is over,” Magleby said. “Every day that goes by, same-sex couples and their children are being harmed by not being able to marry and be treated equally.”

 

ORIGINAL STORY:

The U.S. Supreme Court put same-sex marriages on hold in Utah Monday morning, bringing the marriage equality state count down to 17.

Since Judge Robert Shelby ordered Utah to begin issuing marriage licenses, more than 900 couples have married in the state.

The appeals court in Denver will hear the emergency appeal. That court has already refused to stop marriage equality in Utah twice since Shelby’s order. The appeal was filed with Justice Sonia Sotomayor because she is in charge of the 10th Circuit, which includes Utah.

Sotomayor could either issue the stay herself or turn it over to the entire court to decide. She turned it over to the court and a majority voted to issue the stay.

—  David Taffet

Utah’s petition for stay in same-sex marriage case moves to Sotomayor

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U.S. Supreme Court Justice Sonia Sotomayor

U.S. Supreme Court Justice Sonia Sotomayor is pondering whether to grant a stay of a federal district court’s order that the state of Utah stop enforcing its ban on marriage for same-sex couples.

The state’s new attorney general filed a petition Tuesday to the court to grant the emergency stay, after being denied a stay by the federal district court and the 10th Circuit U.S. Court of Appeals. Sotomayor is the justice designated to handle such requests from the 10th Circuit. She can either make a decision about the stay on her own or ask the full court to weigh in. If she refuses to grant the stay, Utah has the option of asking the full court to consider its request.

The brief filed on behalf of Utah Attorney General Sean Reyes, sworn into office Dec. 30, 2013, and Gov. Gary Herbert, both Republicans, relies on a statement in the Supreme Court’s two marriage decisions last June. The brief says the U.S. v. Windsor decision striking the Defense of Marriage Act’s key provision made clear that the federal government “cannot constitutionally disregard State laws allowing same-sex marriage.”

But the federal district court decision in Kitchen v. Herbert, says the state, “found no animus behind Utah’s marriage laws,” and yet exercised “an outright abrogation” of the state’s definition of marriage.

The brief calls each same-sex marriage in Utah “an affront” to the state and its citizens’ ability to define marriage “through ordinary democratic channels.” It argues that a stay is necessary to “minimize the enormous disruption” that might be caused by “potentially having to ‘unwind’ thousands more same-sex marriages….”

Utah voters adopted the ban on same-sex marriage and any other form of same-sex relationship in 2004 through a ballot measure known as Amendment 3 to the state constitution. Two other statutes enforce that ban. On December 20, in a lawsuit brought by the ACLU, U.S. District Court Judge Robert Shelby declared the ban unconstitutional.

In making its case for a stay, Utah’s brief said the question presented by Kitchen is “the same question” presented by last session’s Proposition 8 case. But unlike Hollingsworth v. Perry, said the Utah brief, the Kitchen case presents no questions concerning legal standing. Last June, the Supreme Court declined to rule on the constitutionality of California’s voter-approved ban on same-sex marriage because the party appealing the case lacked legal standing to do so.

Meanwhile, the Utah Legislature is preparing to take up yet another constitutional amendment — one to specify that churches cannot be made to host same-sex marriage ceremonies in violation of their religious views. There seems to be less controversy surrounding this new ban. Openly gay state Senator Jim Debakis told the Salt Lake City Tribune  he doesn’t know of anyone who wants to force churches to perform ceremonies against their beliefs. The Legislature convenes January 27.

Local papers have reported that between 700 and 900 marriage licenses have been issued to same-sex couples since the December 20 order barring further enforcement of Amendment 3.

LISA KEEN  |  Keen News Service

—  Steve Ramos

Hill Air Force Base to allow same-sex weddings

6307683With same-sex marriage legal in Utah, Hill Air Force Base, near Ogden, has become one of the few U.S. military installations where such unions can be performed, The Salt Lake Tribune reported.

The Tribune reported that as of Thursday, no same-sex marriages had occurred at Hill, said base spokesman Richard Essary, who said he conferred with chaplains there. But Essary confirmed such ceremonies will be allowed at Hill, which has more than 20,000 military and civilian personnel.

The U.S. military allows same-sex marriage ceremonies on installations in states that recognize gay marriage, but with the highest concentration of U.S. military installations in southern states that ban such unions, few brides and grooms have gotten to wear their dress uniforms in a same-sex ceremony and walk under an archway of sabres or rifles.

Utah became the 18th state to allow same-sex marriage when federal Judge Robert J. Shelby struck down the state’s Amendment 3 this month. That’s not to say same-sex couples will be a new phenomenon at Hill.

Master Sgt. Angela Shunk and Tech Sgt. Stacey Shunk were transferred to Hill from Aviano Air Base, Italy, earlier this year as the first same-sex couple to be receive what the military calls a join spouse assignment, according to a September article in Stars and Stripes.

—  Steve Ramos