Supreme Court Refuses To Delay Florida Marriage Equality From Going Into Effect Jan. 5

Wow! The United States Supreme Court has denied Florida's request for a stay of a federal district court judge's decision ruling that Florida's 2006 state constitutional amendment banning marriage equality violates the federal constitution. The Court said that Justices Thomas and Scalia would have granted the petition for a stay.

This is a VERY big deal, because this is the first time the High Court has let marriages go into effect as a result of a mere district court decision, when there was no precedent for marriage equality in the controlling appellate circuit of jurisdiction. Florida is in the 11th Circuit, and that appellate circuit has not ruled in favor of marriage equality (and in fact has some anti-gay decision in its not too recent past). The current legal skirmish the Supreme Court decided was about what should happen while the merits of the state's appeal get determined. Almost a year ago, in Utah's marriage equality case, the Supreme Court unanimously granted a stay putting a federal district court decision in Kitchen v Herbert on hold while the 10th Circuit was considering that appeal. In both cases the appellate circuit had refused to grant the stay while they considered the appeal and the state appealed to the Supreme Court in both cases. In the Utah case, the 10th Appellate Circuit ruled against the state on the merits on appeal. Ultimately, the Supreme Court refused to hear Utah's appeal of that loss, allowing marriage equality to go into effect in the 4th, 10th and 7th circuits. The denial of a stay in Armstrong v. Brenner (the Florida case) demonstrates how swiftly the tide has turned in favor of marriage equality, even at the Supreme Court level. 11 months ago they granted a similar petition, 9-0, on Friday they denied it 2-7.

The Washington Blade reports:

In August, U.S. District Court Judge Robert Hinkle ruled against the state’s ban on same-sex marriage, known as Amendment 2, but placed a stay on his order until 91 days passed after the appeals process was completed in the Utah, Oklahoma and Virginia marriage cases. When the U.S. Supreme Court refused to review these cases, it set for date for same-sex couples to be able to marry in Florida starting Jan. 5. 

Bondi tried to extend the stay on the same-sex marriages as she continued to defend the law in court, but her requests were by denied by the district court as well as the U.S. Eleventh Circuit Court of Appeals, which ordered the stay to be lifted “at the end of the day” on Jan. 5.  

In a statement, Bondi said Florida will acquiesce to the Supreme Court’s decision to allow the stay to expire after Jan. 5 as initially ordered by the district court. 

Hat/tip to Equality On Trial

Now There Are 35! South Carolina Joins Marriage Equality States!

The Supreme Court today denied South Carolina's request for a stay on the implementation of a federal judge's ruling in Condon v. Wilson declaring the Palmetto State's ban on marriage equality unconstitutional.

As Freedom to Marry notes, today's actions means that 35 states in total, including all states in the 4th, 9th and 10th Circuits are currently issuing marriage licenses to same-sex couples. There are pending hearings in federal court the 5th Circuit (very conservative) and the 6th Circuit recently ruled against marriage equality, with all of the plaintiffs in those four states (Kentucky, Michigan, Ohio and Tennessee) now petitioning the Supreme Court to hear their appeal of that decision. The  Arkansas Supreme Court heard oral arguments today in the appeal of  a state court ruling in favor of marriage equality.

Hat/tip to Joe Jervis

6th U.S. Circuit Rules AGAINST Marriage Equality, Upholding Bans In KY, MI, OH and TN

Well! In a somewhat surprising move, the United States Court of Appeals for the Sixth Circuit has reversed multiple lower court rulings in favor of marriage equality and issued a 2-1 decision upholding the rights of Kentucky, Michigan, Ohio and Tennessee to enforce laws that restrict marriage to one man and one woman.

The 2-1 decision is contrary to decisions in the 9th, 10th, 4th and 7th Circuits which all favored marriage equality and which the Supreme Court declined to review last month, effectively granting marriage equality to go into effect in 30-plus states. Today's decision means that it is much more likely now that the United States Supreme Court will have to step in and give  a final resolution of the marriage equality question once and for all, probably by June 2015.

The two judges appointed by President Gerge W. Bush voted to uphold the marriage bans using the argument that judges should not be deciding such a question which could (and should) be sresolved by the Democratic process while the judge appointed by President Clinton voiced a fierce dissent to such an idea:

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, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams. 

[...] 

Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

It will be interesting to see how quickly the U.S. Supreme Court responds to today's actions by the 6th Circuit. Ruth Bader Ginsburg predicted that the Court would not feel inclined to get involved unless and until a Circuit split developed, and that is exactly what happened today.

QUEER QUOTE: Obama Says Right To Same-Sex Marriage Exists In Federal Constitution

Ptersident Barack Obama gave an interview with The New Yorker where he expresses his belief explicitly that the United States Constitution's Equal Protection clause guarantees marriage equality for same-sex couples.

This excerpt from his conversation with Jeffrey Toobin is today's Queer Quote:

“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states. But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”

Obama also named the decision by the U.S. Supreme Court to refuse to hear appeals from three appellate circuits on Monday October 6th and effectively causing marriage equality to go into effect in roughly 35 states as the "the best Supreme Court decision of his tenure."

“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done. Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”

Elections have consequences, people!

Now There Are 32! Wyoming Becomes Marriage Equality State

Just a few days after Arizona became the 31st state with marriage equality, another red state has joined the throng of marriage equality states today when Wyoming abandoned its fruitless legal battle in light of the U.S. Supreme Court's October 6 decision to not hear an appeal of two appellate circuits (the 4th and the 10th)  rulings that the federal constitution requires marriage equality.

What this means is that in 32 states (see map), same-sex couples can get married while there are three more states (Kansas, Montana and South Carolina) where federal appellate court rulings indicate that laws banning marriage equality are presumed unconstitutional, since a federal appellate court has said so about a sister state's laws in the same circuit.

This also means that there are for more states where same-sex couples can get married than where there are LGBT-based civil rights laws. This means that a couple can get married, and if their boss finds out about it, they can be fired from their job due to their sexual orientation and there is no state or federal legal recourse.

I suspect that this dispute will be the next phase of the LGBT equality movement, but it will take an affirmative change in public policy in a lot of these states where same-sex couples are brave enough to take advantage of their right to marry has been recognized by federal judges to change the state's laws.

Hat/tip to Joe Jervis

9th U.S. Circuit Strikes Down Marriage Bans In Nevada and Idaho, Citing Heightened Scrutiny

Well, that was fast! Just one day after the Supreme Court denied appeals from the 4th, 7th and 10th circuits, essentially opening up marriage equality to 5 states immediately and to 6 more eventually, the 9th U.S. Circuit Court of Appeals chimed in and immediately struck down same-sex marriage bans in Nevada and Idaho, and almost certainly leading to the addition of three more states in short order. That would bring the total number of states with marriage equality up from 19 last week and the 30 as a result of yesterday's actions to a stunning total of 35 when the dust rom all the legal skirmishes settles.

The 9th U.S. Circuit Court of Appeals ruled in Latta v. Otter and Sevcik v. Sandoval that the heightened scrutiny that laws that discriminate on the basis of sexual orientation must survive to be deemed constitutional leads to the conclusion that state bans on same-sex marriage are null and void under interpretations of equal protection under the federal constitution.

Equality on Trial highlights this excerpt from today's ruling:

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Today's ruling from the 9th Circuit was the fourth appellate court to rule in favor of marriage equality this year in the last three months and was a unanimous 3-0. Somewhat surprisingly, a mandate from the court has already been issued, putting it into effect, which should allow couples to immediately get married in Nevada and Idaho if no appeals are filed. The Governor of Nevada has agreed not to appeal so marriage equality has gone into effect in the Silver State. Couples will be able to get marriage licenses in Las Vegas starting at 2pm on Wednesday.

An interesting feature of the 9th Circuit's ruling is that although it was unanimous two of the judges wrote separately to say that they would have struck down the marriage bans on other grounds. Judge Stephen Reinhard said that he would have used the Due Process Clause to say that the bans violate the fundamental right to marry of same-sex couples and Judge Marsha Berzon wrote to sat that she would have used the idea that bans on marriage equality are based in unconstitutional sex discrimination. Sadly, neither judge signed on to the other's separate ruling so neither of these ideas have the force of law in the 9th Circuit, although I would agree with BOTH of them.

SCOTUS Refuses To Hear Marriage Equality Appeals From 4th, 7th and 10th Circuits!

Wow! The Supreme Court today surprised almost all legal observers by refusing to hear ("called denying certiorari") appeals from five states of decisions in three federal appellate circuits that said that bans on marriage equality violated the federal constitution. The nearly immediate effect of the Supreme Court action means that the fight for marriage equality in those states (Oklahoma, Indiana, Utah, Wisconsin and Virginia) is over. Once final orders are issued from the corresponding U.S. appellate circuits (which usually takes a month) same-sex couples will be able to get married in those states. Effectively, it means that as of today there are now 24 states that "have" marriage equality.

Very soon after those orders go into effect the number of states with marriage equality will include the other six states within the 4th, 7th and 10th circuits covered by the previously issued rulings in those marriage equality cases: Colorado, Kansas, Wyoming, North Carolina, South Carolina, and West Virginia.

Evan Wolfson Founder and President of Freedom to Marry issued the following statement:

Today’s decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country. The Court’s letting stand these victories means that gay couples will soon share in the freedom to marry in 30 states, representing 60% of the American people. But we are one country, with one Constitution, and the Court’s delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places. As waves of freedom to marry litigation continue to surge, we will continue to press the urgency and make the case that America – all of America -- is ready for the freedom to marry, and the Supreme Court should finish the job.

I wonder if this surprising result is an example of the Posner effect, i.e. Judge Richard Posner's evisceration of the arguments against marriage equality in oral arguments and then eloquently in his written decision (upheld today by the Supreme Court) overturning Indiana's and Wisconsin's bans on marriage equality.

Woo hoo!

QUEER QUOTE: Justice Ginsburg Gives Hints On How SCOTUS May Act In Pending Marriage Cases

Supreme Court Justice Ruth Bader Ginsburg gave some hints at apublic forum recently about how the U.S. Supreme Court may deal with the pending petitions from the 4th, 7th and 10th U.S. Circuits to resolve the question of marriage equality: Look to the 6th Circuit!

Generally, the Supreme Court resolves splits between the Circuits. If the 6th Circuit rules, like all other appellate courts that have reviewed state bans on marriage equality in the last year and  a half that these laws violate the federal constitution then there would be no split to resolve and even though it's an important question, Justice Ginsburg said the Court would feel no urgency to resolve the matter in an absence of a circuit split.

The comments Justice Ginsburg gave  at the University of Minnesota are today's Queer Quote:

Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. 

She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”

The Sixth Circuit has heard oral arguments and observes say it could be a 2-1 decision either way. The losing side could then appeal to the full 6th Circuit which has  a majority of judges appointed by Republican presidents. If Justice Ginsburg is right and the Court will wait until the 6th Circuit finally rules, then it is possible after all for marriage equality not to be decided nationwide in the 2014-15 term.

SCOTUS TO Consider 7(!) Marriage Equality Appeals On Friday September 29

There are now seven(!) marriage equality cases from four different states pending before the United States Supreme Court. On September 29th the Court will likely consider how to dispose of thousands of writs of certiorari that include appeals from the 10th Circuit (Utah and Oklahoma), the 4th Circuit (Virginia) and the 7th Circuit (Indiana and Wisconsin). There currently is no circuit split, because every appellate court decision released since last year's landmark United States v Windsor decision has resulted in a win for the cause of marriage equality.

The 9th Circuit heard oral arguments in two cases on Monday (from Nevada and Idaho) and the 6th Circuit has already heard oral arguments earlier this summer and a decision from either court could be issued at any time. It is thought likely that the Supreme Court may hold over deciding any of the pending certs until the 6th and or 9th circuits release their decisions.

However, regardless it is unlikely the Court will be able to escape resolving the fundamental question of whether marriage equality is part of the United States constitution beyond the end of the 2014-15 term which ends in June.

4th Circuit Denies Request For Stay In Virginia Marriage Equality Case

The 4th U.S. Circuit Court of Appeals has refused to prevent its July 28th ruling opening up Virginia's discriminatory marriage laws to same-sex couples from going into effect next week.

The action by a 3-judge panel in the Bostic v. Schaefer case means that unless the U.S. Supreme Court intervenes, which it almost certainly will, Virginia same-sex couples could start getting married next Wednesday August 20.

This is unlikely to happen, as the U.S. Supreme Court has already ruled in the 10th Circuit case of Kitchen v. Herbert that a stay could be issued while Utah appeals its loss at the federal district and federal appellate levels.

Hat/tip to Joe Jervis

Fourth Circuit Strikes Down Virginia's Ban On Marriage Equality!

The U.S. Circuit Court of Appeals for the Fourth Circuit has affirmed a February 2014 district court decision that struck down Virginia's ban on marriage equality. The ruling puts the marriage bans in four sates covered by the 4th Circuit (Virginia, North Carolina, South Carolina and West Virginia) in question. However, it is likely that there will be stay on proceedings in the Fourth Circuit until the U.S. Supreme Court issues a final ruling in the case.

Just a  few weeks ago the Tenth Circuit issued rulings affirming that Utah's and Oklahoma's bans on marriage equality are unconstitutional but this did not stop the Attorney General of Colorado (the Tenth Circuit is physically housed in Denver!) from asserting that Colorado's ban on marriage equality is still intact (even though a state judge and a federal judge has struck it down).

In today's 2-1 decision from the 4th Circuit, the majority says:

We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.

Human Rights Campaign, the nations largest LGBT advocacy group helpfully noes that there have been nineteen consecutive ruling from federal courts affirming marriage equality since June 27, 2013 and lists the state of play in the pending federal lawsuits on marriage equality at the appellate level or higher:

Cases pending before federal appeals courts:

• DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]

• Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit set for August 6]

• Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit set for August 6]

• Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit set for August 6]

• Henry v. Himes, Ohio [Arguments at the Sixth Circuit set for August 6]

• DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit set for August 6]

• Wolf v. Walker, Wisconsin [Arguments at the Seventh Circuit set for August 26]

• Baskin v. Bogan, Indiana [Arguments at the Seventh Circuit set for August 26]

• Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 8]

• Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September]

• Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit set for September 8]

• Burns v. Hickenlooper, Colorado [Argument date at the Tenth Circuit not set]

Cases petitioned or likely to be petitioned to the U.S. Supreme Court:

• Kitchen v. Herbert, Utah [Tenth Circuit struck down marriage ban June 25]

• Bishop v. United States, Oklahoma [Tenth Circuit struck down marriage ban July 18]

• Bostic v. Schaefer, Virginia [Fourth Circuit struck down marriage ban July 28]

Basically it's a race now to see if the Supreme Court will get the marriage cases in the 2014-15 term or in the 2015-16 term. Sooner is looking more likely, but maybe we'll need to get a circuit split (an actual federal appellate ruling where marriage equality loses) for that to happen.

Hat/tip to Chris Geidner

10th U.S. Circuit Affirms Ruling Invalidating Oklahoma Ban On Marriage Equality

The U.S. Court of Appeals for the 10th Circuit has affirmed a lower court ruling striking down Oklahoma's ban on marriage equality. The same 3-judge appellate panel that struck down Utah's ban on marriage equality earlier this year (making history to become the highest court to issue a ruling that bans on marriage equality are unconstitutional in Kitchen v Herbert) has now ruled in Bishop v Smith that Oklahoma's marriage equality ban is also unconstitutional.

Freedom to Marry notes that this case is one of the longest running legal battles over marriage equality (originally filed in 2004!) and is the twenty-sixth consecutive win in court for marriage equality. Eval Wolfson said:

“Today’s ruling arises out of the oldest active marriage case in the country, filed in Oklahoma ten years ago; and follows more than two dozen favorable rulings for marriage in the past year. The legal consensus is clear: marriage discrimination is unconstitutional and inflicts concrete harms on committed gay and lesbian couples and their families.  From the heart of the Southwest and as far as the Mountain West, the federal rulings from the 10th Circuit Court of Appeals from Oklahoma and Utah affirm that all of America is ready for the freedom to marry. It is time for the Supreme Court to end this patchwork of discrimination and bring our country to national resolution as soon as possible.”

The Washngton Blade reports that the vote count was 2-1 and that the 46-page opinion was written by Carlos Lucero, a Clinton appointee. The court basically says that its decision in Bishop is controlled by its earlier decision in Kitchen.

Interestingly, the Department of Justice and the Bipartisan Legal Advisory Group are defendant-appellants in this case because the original lawsuit also challenged the now-defunct Defense of Marriage Act. I don't know if that makes it more or less likely to be taken up by the Supreme Court on appeal (I would think, less likely, but who knows.)

Colorado Marriage Law Struck Down (Decision Stayed); Marriage Licenses Being Issued In Boulder and Denver

Well, well, well! Good things are happening in Colorado regarding marriage equality this week. Just yesterday, a state judge ruled that Colorado's ban(s) on marriage equality are unconstitutional. Colorado enacted a civil unions law last year (doesn't that idea seem quaint now, post-Windsor?) and the judge used its existence as part of his reasoning for why Colorado's marriage laws are discriminatory in his opinion in Brinkman v. Long:

“The Court holds that the Marriage Bans violate plaintiffs’ due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution." 

“The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans.”

But wait, there's more! After the 10th U.S. Circuit issued a ruling striking down Utah's marriage law a few weeks ago, the County Clerk of Boulder read the decision (which was stayed pending appeal) and decided to start issuing marriage licenses. In order to get her to stop doing that, the Governor and Attorney General agreed to file a statement with the court that the marriage laws of Colorado are unconstitutional but to agree to wait until a final ruling is issued by the Colorado Supreme Court or the U.S. Supreme Court to issue marriage licenses. However, the judge in that lawsuit ruled in favor of the Boulder County clerk and said she can continue issuing marriage licenses:

Boulder County clerk who has been issuing marriage licenses to same-sex couples in defiance of Colorado’s gay-marriage ban can continue, a judge ruled Thursday. Boulder County Judge Andrew Hartman decided county clerk Hillary Hall can ignore a federal stay on a ruling from the 10th U.S. Circuit Court of Appeals in Denver that states cannot set gender requirements for marriage. The judge said gay marriage is still technically illegal in Colorado but that Hall’s behavior was not harming anyone. But he said all who receive a license should be warned that they could still be invalid if a judge finds after trial that Hall didn’t have the authority to issue them. Hartman also noted that every judge — including one in Colorado the previous afternoon — in the past year has ruled that gay marriage bans are unconstitutional and that Colorado’s prohibition is “hanging by a thread.”

In light of this decision, according to the Denver Post clerks in Denver and Pueblo counties have also started issuing marriage licenses. So, unless a court steps in soon (which at this point would probably have to be the Colorado Supremes) marriage equality is coming to the Centennial State in hours instead of months!

Hat/tip to Joe.My.God

QUEER QUOTE: Utah Appeals Marriage Equality Loss At 10th Circuit To U.S. Supreme Court

Utah has decided against delaying the final decision in its fight to defend its discriminatory marriage laws and has announced that it will appeal it's loss at the 10th Circuit Court of Appeals to the Supreme Court.

The following statement from a spokesperson from the Utah Attorney General's office is today's Queer Quote:

To obtain clarity and resolution from the highest court, the Utah Attorney General will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but wll file a Petition for Writ of Certiorari to the United States Supreme Court in the coming weeks. Attorney General Reyes has a sworn duty to defend the laws of our state. Utah's Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.

Actually, since both a federal district court judge on December 20, 2013 and a majority of a 3-judge panel of the 10th U.S. Circuit Court of Appeals on June 25, 2014 has found Amendment 3 to be unconstitutional it is curious indeed that the Attorney General thinks that the law is presumed to be unconstitutional unless the highest court deems it otherwise. The Supreme Court could deny the Writ of Certiorari and marriage equality would come to Utah (and all the rest of the states in the Tenth Circuit's jurisdiction without the high court "deeming" anything.

As I intimated earlier in this post, by declining to appeal en banc (ask all the judges on the Tenth Circuit to consider the case) this means that a definitive question on marriage equality nationwide will almost certainly be known by this time next year (the end of the 2014-2015 Supreme Court term).

The interesting question will the Supreme Court use this case or possibly the 4th Circuit case from Virginia (Bostic) or the numerous 6th Circuit cases (where every state in the Circuit has a marriage equality case under stay) to make its decision? If all 3 appellate panels all rule in favor of marriage equality, will the Supremes even take the case at all?

7th Circuit Grants Stay To Suspend Marriage Equality In Indiana

The 7th U.S. Circuit Court of Appeals has granted Indiana Attorney General Greg Zoeller's request for a stay of Wednesday's district court ruling that had brought marriage equality to the Hoosier State. The action means that the number of states where same-sex couples can get legally married returns to 19. In the most recent cases, federal judges have not issued stays on their ruling but thanks to the Supreme Court precedent in the Utah case of Kitchen v Herbert where the High Court did issue a stay in the lower court ruling from going into effect during the appeals process, many judges are placing stays on their orders after a brief period in which couples can get married. This happened in Wisconsin just a few weeks ago.

That being said, the states of Indiana, Oklahoma, Idaho, Utah, Wisconsin, Virginia, Texas, Arkansas and Kansas all have had their bans on marriage equality struck down and those ruling are not going into effect due to judicially ordered stays. If the Supreme Court upholds or decides not to rule on the pending appellate cases that are in our favor, there's gonna be a whole bunch of jurisdictions where same-sex couples can suddenly get married when those stays are suddenly dissolved!

Already some jurisdictions are using the fact that the 10th U.S. Circuit has ruled in favor of marriage equality to issue marriage licenses even though that appellate ruling is officially stayed pending appeal.

Hat/tip to Joe Jervis

10th Circuit Upholds Ruling Striking Down Utah's Ban On Marriage Equality!

Now, this is a very big deal. The 10th U.S. Circuit has become the first appellate court to uphold one of the very many district court rulings striking down a state's ban on marriage equality. The court heard oral arguments in April. The same panel has a pending ruling in the case of Oklahoma's ban on marriage equality it heard on the same day. The case today is Kitchen v Herbert on appeal from Utah' of the December 20th district court ruling striking down that state's Amendment 3. The 3-judge panel ruled 2-1 in favor of upholding the lower court ruling invalidating Utah's ban on same-sex marriages.

Chris Geidner reports on the case:

In detailing the reasoning, he wrote, “Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that plaintiffs possess a fundamental right to marry and to have their marriages recognized.”   

Importantly, however, at the end of the opinion, the court also stated that because the Supreme Court stayed the trial court’s ruling in the Utah case pending the 10th Circuit appeal that it should stay its mandate of the appellate ruling “pending the disposition of any subsequently filed petition for writ of certiorari” to the Supreme Court.

Judge Paul Kelly wrote a 21-page dissent, countering Lucero’s 65-page majority opinion. Judge Jermoe Holmes joined the majority opinion.
The 10th Circuit’s decision, which cites heavily from Justice Anthony Kennedy’s opinion in the DOMA case, United States v. Windsor, was issued one day before the one-year anniversary of the historic Supreme Court decision. 

The lawyer for the Utah same-sex couples who brought the lawsuit, Peggy Tomsic, said in a statement, “Today’s decision by the Tenth Circuit affirms the fundamental principles of equality and fairness and the common humanity of gay and lesbian people. 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.”

Woo hoo!

WATCH: New Ad Featuring Mormon Couple Promotes Marriage Equality In Utah

The Utah Unites campaign is starting to air the ad shown above in the Beehive state as part of the campaign to win marriage equality in one of the most conservative states in the country and one in which tthe state's ban on marriage equality has been struck down by a federal judge.

The 10th U.S. Circuit will hear oral arguments in the state's appeal of Kitchen v. Herbert tomorrow.

10th U.S. Circuit Panel Hears Marriage Equality Oral Argument Next Week

Next week, oral arguments before a 3-judge panel of the 10th U.S. Circuit Court of Appeals in the marriage equality case of Kitchen v Herbert will occur, starting on Thursday April 10th. Exactly one week later, the 10th Circuit (a different 3-judge panel) will hear the appeal of the federal district court ruling that struck down Oklahoma's ban on marriage equality. This is the first hearing of the nine pending cases being heard before five, count 'em five federal appellate courts on marriage equality in the next few weeks.

HRC summarizes:

The Tenth Circuit is one of five federal appeals courts that will preside over nine marriage equality cases in the coming weeks and months. Other cases that will go before circuit courts include: Sevcik v. Sandoval of Nevada in the Ninth Circuit, DeLeon v. Perry out of Texas in the Fifth Circuit, Bostic v. Rainey of Virginia out of the Fourth Circuit, and four cases out of the Sixth Circuit - Tanco v. Haslam of Tennessee, Bourke vs. Beshear of Kentucky, Obergefell v. Kasich of Ohio, and DeBoer v. Snyder of Michigan. The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.

The oral argument next week is important because it is the first time an appellate court is hearing a marriage equality case following last year's Supreme Court case in Windsor.

POLL: People In States Without Marriage Equality Support It 51-41

A new poll commissioned for the group whose mission it is to achieve marriage equality nationwide in the United States shows that even in states where marriage equality is not (yet) law, a majority of respondents support the idea. 51% favor "allowing gay and lesbian couples to marry legally" in the 34 states that did not allow marriage equality in December 2013.

In the Central Region (IN, KS, MI, MO, NE, ND, OH,PA, SD, WI) marriage equality has 59%-36% support. 

In the Western region (AK, AZ, CO, ID, MT, NM*, NV, OR, UT**, WY) marriage equality has 53%-34% support. 

In the Southern region (AL, AR, FL, GA, LA, MS, NC, OK, SC, TN, TX, KY, VA, WV) marriage equality is split 46%-46%.

It should be noted that since the poll was taken New Mexico* enacted marriage equality permanently through a state supreme court ruling. Utah** also had marriage equality for a 17-day window when a federal judge struck down their same-sex marriage ban but that ruling is on hold under appeal to the 10th Appellate Circuit thanks to a stay issued by the U.S. Supreme Court.


Hat/tip to LGBT Think Progress

Utah Says It Will Not Recognize Same-Sex Marriage Performed During Federal Injunction

Whoa. The Chief of Staff of the Governor of Utah has sent a letter to all state agencies which says that it is directing all state agencies that recognition of same-sex marital status is "on hold" until the lawsuit in Kitchen v. Herbert is resolved.

This is a pretty extreme position to take, because those marriages were entered into when it was perfectly legal to do so because a federal judge had struck down Amendment 3 which banned same-sex marriage in Utah.

Based on counsel from the Attorney General’s Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice. Please understand this position is not intended to comment on the legal status of those same-sex marriages – that is for the courts to decide. The intent of this communication is to direct state agency compliance with current laws that prohibit the state from recognizing same-sex marriages.

Wherever individuals are in the process of availing themselves of state services related to same-sex marital status, that process is on hold and will stay exactly in that position until a final court decision is issued. For example, if a same-sex married couple previously changed their names on new drivers licenses, those licenses should not be revoked. If a same-sex couple seeks to change their names on drivers licenses now, the law does not allow the state agency to recognize the marriage therefore the new drivers licenses cannot be issued.

The attorney for the lead plaintiffs in the lawsuit, Peggy Tomsic, has released a statement in response:

“This unprecedented and disappointing action harms not only my clients, but hundreds of other same-sex couples who also were legally married, and whose families have been needlessly destabilized and stripped of basic legal protection. By taking this unwarranted action, the State of Utah has discounted the lives of thousands of Utah citizens who live, work, and raise their families in Utah and pay Utah and federal taxes like all other Utah citizens. Regardless of how the State believes the Tenth Circuit will ultimately rule, these couples are legally married, and the State should treat them accordingly.”

There's no question that this will result in many more lawsuits, not less, about marriage equality in Utah.

Hat/tip to Joe.My.God