QUEER QUOTE: Democrats Praise 4th U.S. Circuit Ruling In Favor Of Transgender Student

The 4th U.S. Circuit has upheld the Obama Administration's Education Department non-discrimination policy in a dispute with a Virginia school district over the rights of a transgender student to access education according to their preferred gender identity. The ruling is in the case of transgender male student Gavin Grimm in his lawsuit against the Gloucester County School Board, who has enacted a policy that said that every student had to access restrooms and changing facilities based on their "biological sex at birth" and not their gender identity.

Chris Geidner of Buzzfeed reports:

The decision is a big victory for the Obama administration, which weighed in at the appeals court to support Grimm’s challenge, and the Equal Employment Opportunity Commission, which has been pressing the case for protecting LGBT people under existing civil rights laws since 2012.  

The appeals court had heard the arguments in January, and Tuesday’s ruling is the first such ruling on the Obama administration’s policy — which it also has advanced regarding the sex discrimination ban under Title VII of the Civil Rights Act of 1964. 

Among the states included in the 4th Circuit is North Carolina, which recently passed a law limiting restroom use in government facilities — including schools and universities — to that which corresponds with a person’s “biological sex.” The ACLU, which is backing Grimm’s suit, also has brought suit against the North Carolina law.

The Democratic National Committee sent the following statement praising the ruling:

“This court victory affirms that there is no commonsense reason to bar transgender students from using the restroom that aligns with their gender identity and that doing so is discriminatory and harmful. This ruling sets precedent in five states, including North Carolina, where Republican legislators and the Republican governor have embraced the exact type of discrimination that the court today has overruled. Republican legislators who continue to push anti-LGBT measures and the Republican presidential candidates who fan the flames of discrimination with ignorant rhetoric have been exposed by this ruling for what they’re truly peddling. Just this week, one of the Republican presidential candidates told victims of discrimination to ‘get over it.’ Well, it’s time for the Republican Party to get over their anti-LGBT bias and join the rest of the country in embracing the full equality of every American.”

 Congrats!

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!

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

4th U.S. Circuit Hears Oral Arguments in VA Marriage Equality Case

Today the 4th U.S. Circuit heard oral arguments in Bostic v. Schaefer (previously Bostic v. Rainey) which is better known as Virginia's marriage equality case. This past February a federal judge struck down Virginia's ban on marriage equality and today's oral arguments were the appellate circuit level appeal of this decision.

You can hear the audio of the oral arguments yourself at this link. The three judges on the panel are Paul Niemeyer (Appointed by President George H.W. Bush), Roger Gregory (Nominated by President Bill Clinton and then George W. Bush),  and Henry Floyd (Nominated by President Obama). The lawyers conducting the argument for the side of marriage equality were Ted Olson (on behalf of American Foundation for Equal Rights), James Esseks (on behalf of the ACLU) and Stuart Raphael (Virginia's Solicitor General).

Most observers seem to think that the panel will split 2-1 in favor of upholding the lower-court ruling, which would then be appealed to the United States Supreme Court, which could decide whether it wants to use this case to decide the question of marriage equality squarely in 2015 or let marriage equality go into effect in the 4th Circuit (Virginia, South Carolina, West Virginia and North Carolina).

Hat/tip to Equality on Trial

NAACP Legal Defense Fund Files Brief In Favor Of Marriage Equality In Virginia Case

The briefs are starting to come in support of the plaintiffs in the Virginia marriage equality case Bostic v. Schaefer (previously Bostic v. Rainey) which will be heard before the 4th U.S. Circuit Court of Appeals next month. In a rare example of the NAACP and the NAACP Legal Defense and Education Fun (LDF) working together, the two have filed a joint brief in favor of marriage equality.

The groups call for marriage equality for lesbians and gay men by invoking the principles set forth in the Supreme Court's iconic 1967 decision in Loving v. Virginia,which struck down laws that prohibited marriage for interracial couples.

"More than fifty years ago, the Supreme Court unequivocally established the right of every individual to marry the person she or he chooses," said Ria Tabacco Mar, Assistant Counsel in the NAACP Legal Defense Fund's Economic Justice Group. "It's long past time to strike down laws that deprive lesbians and gay men of their constitutional rights," Ms. Tabacco Mar added. 

In the brief, the NAACP Legal Defense Fund and the NAACP make clear that Lovingwas not restricted to race: the freedom to marry has long been recognized as a fundamental right "essential to the orderly pursuit of happiness."

"Marriage is a civil right under state law," stated Kim M. Keenan, NAACP General Counsel. “In furtherance of our legacy of advocacy in Loving v. Virginia, we are proud to stand with the NAACP LDF to ensure that every person is treated the same and benefits the same under law."  The NAACP Legal Defense Fund and the NAACP argue that marriage discrimination violates the Equal Protection Clause of the Fourteenth Amendment. Furthermore, the same baseless and offensive accusations proffered by the proponents of Virginia’s marriage ban -- that prohibitions on marriage equality are necessary to protect children -- were also invoked by Virginia in 1967 in defense of its anti-miscegenation law.

The Virginia case is the one that has the involvement of Ted Olson and David Boies, who filed the federal suit that led to the demise of Proposition 8.

In other Virginia news, the senior U.S. Senator from Virginia has today published a joint editorial with his Harvard Law School classmate Evan Wolfson arguing why Virginia's ban on marriage equality needs to go.

When Thomas Jefferson wrote the words "all men are created equal" in the Declaration of Independence, he put in place a moral standard that will always challenge us to be better people. 

Our founders passionately believed in equality, but most saw no contradiction between that belief and slavery. It took 90 years and a civil war to correct that injustice.
The post-Civil War Congress that changed the Constitution to abolish slavery passionately believed in equality, but most saw no contradiction in women's inability to vote. It took nearly 70 years to remedy that injustice. 

Today, Virginians and Americans are advancing Jefferson's equality principle by re-thinking laws that limit the freedom to marry. 

The two of us first became friends in law school more than 30 years ago. Our career and personal paths have taken different directions. But we share a commitment to making people's lives better, their dreams more attainable and their families stronger. 

And we share a commitment to Jefferson's farsighted ideal. That's why we look forward to the day when all loving couples, regardless of sexual orientation, can marry. 

In recent months, 11 out of 11 federal judges have ruled against marriage discrimination. 

In February, a federal judge in Norfolk was one of them.

I think lots of people think the Virginia case is the one that the Supreme Court is going to use to decide the question of whether state bans on same-sex marriage violate the U.S. constitution.

QUEER QUOTE: VA AG Files Brief Arguing His State's Marriage Law Is Unconstitutional

The Democratic Attorney General of Virginia, Mark Herring, has made good on his statement that he did not think that his state's marriage law could survive constitutional scrutiny has filed a brief before a federal appellate court articulating this argument in no uncertain terms.

The following excerpt from the state's brief in Bostic v. Rainey filed with the 4th U.S. Circuit Court of Appeals is today's Queer Quote:

The ban cannot satisfy the rational-basis test, let alone more demanding scrutiny. McQuigg’s claim that the purpose of marriage is to channel couples into a procreative relationship for the benefit of children is belied by controlling Supreme Court authority that marriage protects those choosing not to procreate and those who are unable to. And the Clerks’ argument fails the rational-basis test because it is irrational to think that prohibiting gay people from marrying will make heterosexual couples more like to marry and have children.  

The Clerks’ position cannot be reconciled with the Supreme Court’s three decisions to date protecting the rights of gay people. Those decisions, among others, also show why the Supreme Court’s one-sentence dismissal in Baker v. Nelson, in 1972, cannot be read to trivialize the issue presented here.  

The Clerk’s slippery-slope arguments are the same ones used to oppose interracial marriage in 1967; they are no more persuasive today than then. And just as in 1967, the Court should not wait to protect the plaintiffs’ constitutional rights simply because political trends suggest that the public increasingly supports marriage equality.

Hat/tip to Equality on Trial