CELEBRITY FRIDAY: Patrick Bumatay Becomes First Openly LGBT Federal Appellate Court Judge

Openly gay, Filipino Patrick Bumatay, 41, was confirmed by the U.S. Senate by a 53-40 vote to a lifetime seat on the 9th U.S. Circuit Cort of Appeals. Bumatay is the first openly gay man to be appointed to the federal judiciary at the Circuit Court level (one rung below the U.S. Supreme Court) and is also the first Filipino to serve in that capacity. His nomination was opposed by both of California's U.S. Senators, Kamala Harris and Dianne Feinstein, which prior to the Trump administration would have doomed his candidacy. He was also opposed by basically every major LGBT and/or civil rights organization. He is Trump's 49 confirmed appointee to the circuit courts.

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

And Now There Are 34! Montana Joins The Marriage Equality Majority

Wow! Montana today joined the rest of the Ninth U.S. Circuit when a federal judge issued a ruling striking down the Treasure state's ban on same-sex marriage. One key excerpt from the ruling in Rolando v. Fox is:

The Court hereby DECLARES that Montana’s laws that ban same-sex marriage, including Article XIII, section 7 of the Montana Constitution, and Montana Code Annotated section 40-1-103 and section 40-1-401, violate Plaintiffs’ rights to equal protection of the laws as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court PERMANENTLY ENJOINS the State of Montana and its officers, employees, agents, and political subdivisions from enforcing Article XIII, section 7 of the Montana Constitution, Montana Code Annotated section 40-1-103 and section 40-1-401, and any other laws or regulations, to the extent that they prohibit otherwise qualified same-sex couples from marrying in Montana, and to the extent that they do not recognize same-sex marriages validly contracted outside Montana. This injunction shall take effect immediately.

That makes it pretty clear that same-sex couples can get married in Big Sky Country now! (There is no stay on the order.) The Democratic Governor of Montana Steve Bullock praised the decision while the Republican Attorney General (named defendant) Tim Fox announced that he would appeal the decision (presumably to the Ninth Circuit, which has already ruled that marriage equality is required under federal law, and then to the Supreme Court, which has previously refused to issue stays on the effect of marriage equality rulings from the 9th Circuit.

Another key quote from the ruling is:

Montana’s laws that ban same-sex marriage impose a “disfavored legal status” on same-sex couples. The time has come for Montana to follow all the other states within the Ninth Circuit and recognize that laws that ban same-sex marriage violate the constitutional right of same-sex couples to equal protection of the laws. Today Montana becomes the thirty-fourth state to permit same-sex marriage.

And so it goes...

Hat/tip to Equality Case Files.

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.

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.

9th Circuit Refuses To Reconsider Sexual Orientation Discrimination Ruling

Big news from the 9th U.S. Circuit Court of Appeals! The now fully staffed court has denied a sua ponte request to reconsider their important ruling in SmithKline Beecham. That case is the about juror discrimination where the 9th Circuit ruled that sexual orientation is not a valid characteristic for removing a potential juror, by declaring that sexual orientation is a suspect classification that requires heightened scrutiny. A majority of judges on the 26-member court agreed that an en banc hearing was not warranted, while the three most conservative members of the court signed on to a 10-page decision dissenting in the decision of the court. Neither of the parties in the underlying dispute had asked the court to review the question of what standard of review sexual orientation should receive, that was instigated by an anonymous member of the 9th Circuit. The fact that the decision is now final means that in order to discriminate on the basis of sexual orientation in the 9th Circuit's jurisdictional area, an exceedingly persuasive reason has to be given. As  Joe Jervis says, this will almost certainly lead to marriage equality in the states of the 9th Circuit which do not have it yet: Alaska, Arizona, Idaho, Montana and Nevada.

SCOTUS Blog also discusses the implications of the permanence of SmithKline:

 Of the twelve federal appeals courts to confront the issue, ten have taken the position that challenges to laws which allegedly discriminate on the basis of sexual orientation should be analyzed only by the least-demanding standard — that is, “rational basis” review.   Using that standard, at least some courts have upheld bans on same-sex marriage. 

[...] 

In the cases now awaiting Ninth Circuit review, state officials are attempting to defend same-sex marriage bans only in the Idaho case.  State officials in Oregon and Nevada have given up the defense of such bans, and Hawaii has moved on its own to allow such marriages.   Because the panel’s decision in the SmithKline decision is now binding in that circuit, in the wake of denial of en banc review, it sets the standard for judging the state bans throughout the geographic region included in the Ninth Circuit.

The other appellate court to decide sexual orientation should receive heightened scrutiny is the 2nd U.S. Circuit, which did so in their ruling which struck down the Defense of Marriage Act in Windsor v United States, a decision the Supreme Court upheld last year (but did not address the level of review question).

SCOTUS Denies NOM Request For Stay On Oregon Marriage Equality

Marriage equality came to Oregon on May 19 when openly gay federal district court judge Michael McSchane struck down the state's constitutional ban on same-sex marriage. The National Organization for Marriage was displeased with this and filed a motion to intervene in the case when the attorney general and governor of the state indicated they agreed with the decision, going to the extreme position of asking Supreme Court justice Anthony Kennedy to issue a stay while they appeal the decision of the court to deny their request to intervene in the case.

Today the United States Supreme Court denied NOM's motion for a stay so marriage equality is safe for the near and foreseeable future in Oregon, as well as 18 other states where marriage equality is the law of the land.

The appeal of the intervention denial now continues at the 9th Circuit Court of Appeals, but same-sex couples will continue to be able to marry during the time that is happening. 

The 9th Circuit, which is hearing that appeal, denied NOM’s request to stop the trial court decision striking down the ban from going into effect during the appeal. NOM then went to Justice Anthony Kennedy to ask him to stop the marriages while that appeal is pending before the 9th Circuit. 

Kennedy, who hears procedural matters brought to the court from the 9th Circuit, referred the request to the full court, which denied the request without comment on Tuesday. 

NOM’s appeal of the denial to intervene is the only matter left pending in the case because Oregon state officials had not fought the lawsuit, having agreed with the plaintiffs that the ban is unconstitutional. They had said that they would not appeal the decision if U.S. District Court Judge Michael McShane struck down the ban.

The only state that has had marriage equality is California, and it has since had marriage equality restored since last summer's Supreme Court decision in Hollingsworth v Perry.

Hat/tip to Buzz Feed

Idaho Gov. Asks 9th Circuit To Hear His Marriage Appeal En Banc

I guess Gov. C.L. "Butch" Otter (R-Idaho) apparently really wants to hear what Alex Kozinski thinks about gay marriage. He filed a motion in Iddho's appeal of the recent ruling  in Latta v Otter striking down its marriage law asking for an en banc panel of the 9th U.S. Circuit Court of Appeals hear the case instead of the customary 3-judge panel. The only reason I can think of is that he wants to enhance the conservativeness of the panel that hears his appeal by insuring that the very conservative Kozinski be on the panel of judges that decide this case.

The 9th Circuit is considered one of the most liberal federal appellate courts, and for the first time in a looong time it has its full 29-judge complement. This means that it is probably more likely than not that a 3-judge panel will include more liberals than conservatives; however an 11-judge en banc panel must include the chief judge and 10 others. In fact, it must be true that the probability of a conservative panel goes up with an en banc than a random 3-judge panel because Otter is assured that Kozinski (a conservative) must be on the panel. I guess someone on the judge's staff knows their probability and statistics!

There are currently 20 Democratic-appointed judges and only 9 Republican-appointed judges on the 9th Circuit.

In addition to an en banc panel, Gov. Otter also wants the appellate court to reconsider the question of whether sexual orientation should receive heightened scrutiny or not. Currently, sexual orientation does receive heightened scrutiny, which is one important reason why bans on marriage equality in the 9th circuit are likely to be struck down. However, even using a rational basis standard, judges reviewing the Oregon and Idaho laws have ruled them unconstitutional.

Federal judges are notoriously loath to allow litigants to skip steps so it seems unlikely the 9th circuit will accede to Otter's request.

Oregon Becomes 18th Marriage Equality State!

As widely expected, openly gay federal judge Michael McShane today issued the 13th federal ruling since last year's Supreme Court decision in U.S. v. Windsor deciding in favor of marriage equality. The judge's 26 page decision in Geiger v. Kitzhaber was issued promptly at noon after an emergency stay in the proceedings filed by the National Organization for Marriage was denied by the 9th U.S. Circuit.

The Washington Blade reports:

Neither the timing nor the outcome of the case was a surprise. On Friday, McShane had announced he would make his decision in the litigation on Monday at noon Pacific Time (3 pm local time). In fact, Oregon United for Marriage had planned media coverage for the ruling and same-sex couples marrying afterward over the weekend without knowing the decision.  

McShane also rules against the state ban on same-sex marriage after not a single party would defend the law in court. It’s the first time ever that no party defended a ban on same-sex marriage during the course of a lawsuit seeking marriage equality.  

Oregon Attorney General Ellen Rosenblum announced in February the law was indefensible, as did attorneys for Multnomah County, who were also named as a defendant in the lawsuit and had pledged to hand out licenses to same-sex couples as soon as law was struck down. 

[...] 

Oregon’s ban on same-sex marriage, Measure 38, is a state constitutional amendment approved by voters in 2004 by a 57-43 margin. But public opinion on marriage equality in Oregon is just about reversed since that time. Last year, Public Policy Polling found that 54 percent of Oregon residents would vote to legalize same-sex marriage at the ballot. 

Marriages should begin shortly in Oregon, although typically a 3-day waiting period is required after getting a marriage license, it can be waived in extenuating circumstances.

The judge's ruling means that an expensive ballot measure campaign to overturn measure 36 will not be unnecessary.

Congratulations to Oregon to joining the rest of the West Coast in Marriage Equality!

Marriage Equality Back On In Arkansas, Off (For Now) In Idaho

Although judges have struck down the laws banning marriage equality in Idaho and Arkansas in the last week, the status of marriage equality in each jurisdiction is in different states of flux in these two states.

The 9th U.S. Circuit has issued a stay in the case of Latta v. Otter which will prevent the judge's order from going into effect on Friday until the 9th Circuit formally considers the request for a more permanent stay tha would last the duration of the period it takes to decide the appeal from the state of the ruling allowing marriage equality to go into effect in Idaho.

In Arkansas, same-sex couples have been able to get married since last Saturday but after the Arkansas State Supreme Court refused to issue a stay to stop those marriages but noted that the original order did not invalidate the state law which prohibited clerks from issuing marriage licenses to same-sex couples marriages had stopped in the state. The judge responded by issuing a new order today making it clear that any prohibition on issuing marriage licenses to same-sex couples is null and void, resulting in Arkansas's largest county (Pulaski) to resume issuing marriage licenses to same-sex couples.

Exciting times in deed!

9th U.S. Circuit Finally Has No Vacancy (All 29 Seats Filled)

More judicial good news today! The 9th U.S. Circuit Court of Appeals, which is the nation's largest (and decidedly most liberal) federal appellate court now has a full complement of judges with the confirmation of straight ally Michelle Friedland to the court by a vote of 51-40 this week.

Friedland, 41, attended Stanford University and its law school, from which she graduated second in her class in 2000, and was a Fulbright scholar at Oxford University in England. She worked as a law clerk for Supreme Court Justice Sandra Day O'Connor and taught law at Stanford before joining the law firm of Munger, Tolles and Olson in 2004. 

While handling business cases at her firm, she has also represented the gay-rights group Equality California in challenging California's now-overturned ban on same-sex marriage and in defending a state law that prohibits therapy aimed at turning gay youths straight. 

Obama first nominated her to the court in August, but Republicans blocked a Senate floor vote. Democratic leaders cleared the way for the confirmation of Friedland and other stalled Obama nominees by pushing through a repeal of filibusters in November for executive-branch appointments and judicial nominations below the Supreme Court level. Those nominations formerly needed 60 votes in the 100-seat Senate but now require only 51 votes to end debate, and a majority among senators taking part in the confirmation vote. The Ninth Circuit handles federal appeals from California and eight other Western states. Congress expanded its authorized judgeships to 28 in 1984 and to 29 in 2009, but the court has had at least one vacancy since 1992.

If the Senate had passed the filibuster reform earlier in President Obama's term then Goodwin Liu would be a federal judge instead of on the California Supreme Court.

Hat/tip to Joe Jervis

Important 9th Circuit Gay Rights Ruling May Not Be Permanent

Uh-oh! Although the date passed on March 7, 2014  by which the parties involved could appeal the 9th Circuit's important ruling in SmithKlinBeacham v Abbott in which the federal appellate court ruled earlier this year that sexual orientation must receive heightened scrutiny when laws are being analyzed for equal protection purposes, now comes word that the ruling may not be final and that an en banc hearing on the case may be in the works.

"A sua sponte en banc call having been made, the parties are instructed to filewithin 21 days of the filing date of this order simultaneous briefs setting forth theirrespective positions on whether the case should be reheard en banc. See G.O.5.4c(3). An original and fifty copies shall be filed. See Ninth Cir. R. 35-4(b)."

The court published an order today (excerpted above) which gives interested parties 21 days to file briefs as to why or why not a panel of 11 judges should hear the case, and possibly reverse it. What happens now is that after 21 days the entire 9th Circuit (which has something like 26 judges) will vote as to whether an en banc hearing should occur. If a majority votes in favor, then there is a possibility that a randomly selected 11-judge panel or the U.S. Supreme Court could reverse the ruling.  The current 3-judge panel that issued the unanimous ruling has some of the most liberal members of the circuit on it (Berzon, Reinhardt and Schroeder).

SmithKline is incredibly important ruling and the question of whether marriage equality will come sooner or later to atleast two states in the 9th Circuit's jurisdiction (namely Nevada and Oregon) depends on whether the idea that sexual orientation is indeed a suspect class, which is a key corolary of the SmithKline Beacham decision.

MadProfessah will be watching developments in this case very closely!

Hat/tip to Equality on Trial

Legal Bills Of Proposition 8 Federal Case Exceeded $6.4 Million

The Washington Blade reports that according to tax records, the federal lawsuit to eliminate California's Proposition 8 resulted in some $6.4 million going to the high-powered law firms of Ted Olson and David Boies. Olson and Boies were the unlikely due behind the Perry v. Schwarzenegger lawsuit in May 2009 that eventually became the successful Hollingsworth v. Perry win at the United States Supreme Court in June 2013.

The lawsuit was sponsored by the American Foundation for Equal Rights (AFER) which was created by Chad Griffin at the time the suit was filed. According to the same records, AFER has raised nearly $15 million dollars since its inception and March 31, 2013.

The American Foundation for Equal Rights between 2009 and 2013 paid more than $6.4 million to two law firms that successfully argued against California’s Proposition 8.

Tax filings indicate former U.S. Solicitor General Ted Olson’s law firm – Gibson, Dunn & Crutcher LLP – received $1,691,714 from AFER for “legal and ancillary legal expenses”between April 23, 2009, and March 31, 2010. The organization paid the law firm $958,655between April 1, 2010, and March 31, 2011, and another $2,758,352 between April 1, 2011, through March 31, 2012.

Gibson, Dunn & Crutcher LLP received $537,939 from AFER between April 1, 2012, and March 31, 2013. The organization also paid David Boies’ law firm – Boies, Schiller & Flexner LLP – $468,089 for “legal and ancillary legal expenses” between April 1, 2010, through March 31, 2011.

Some  have questioned why such prominent lawyers did not work on this seminal civil rights lawsuit pro bono, which has generally been the custom in other movements. Others point out that the $15 million raised (and presumably spent) by AFER is much less than a ballot measure campaign to overturn Proposition 8 would have cost. And you may remember in 2009 there were very many people (vocally opposed by  a coalition of groups that included yours truly) who wanted to go to the ballot as soon as possible. Also, no LGBT legal minds thought that a federal challenge to Proposition 8 would succeed and were strongly opposed to the Olson-Boies lawsuit at the time.

Another reason why this is useful information is that AFER is now involved in another federal lawsuit, Bostic v. Rainey, in which they are suing to have Virginia's ban on same-sex marriages invalidated. On Valentine's Day, a federal judge struck down that ban and put a stay on her decision pending a resolution on appeal to the 4th Circuit or above. Lambda Legal and the ACLU have successfully petitioned to intervene in that case, which was opposed by AFER.

There is currently a race to see which federal lawsuit will get to the Supreme Court. Even though a dozen U.S. district courts have struck down marriage bans, no U.S. circuit courts have (yet). Oral argument in the Utah case (Kitchen v. Hebert) before the 10th Circuit and in the Nevada case (Sevcik v Sandoval) in the 9th Circuit are scheduled for April. It will be interesting to see if AFER's profile or reputation will be negatively impacted by these revelations despite their winning track record on restoring marriage to California on a timeline faster than the LGBT establishment expected.

Lambda Legal Files Marriage Equality Lawsuit In Arizona!

Good news out of Arizona regarding LGBT equality! Lambda Legal has filed a lawsuit seeking to gain the right to marriage for same-sex couples in Arizona.

In the lawsuit, Lambda Legal, joined by pro bono co-counsel from Perkins Coie LLP, argues that the Arizona constitutional amendment and state statutes barring same-sex couples from marriage violates the Equal Protection Clause and the Due Process Clause of the U.S. Constitution.  

The lead plaintiffs, Nelda Majors, 75, and Karen Bailey, 74, of Scottsdale, have been together for more than 55 years, and together have raised two children, Karen’s great grand-nieces Marissa and Sharla, as their own daughters since the girls came into their home as toddlers. Marissa is now 15 and Sharla 21. 

“Karen and I have been together since 1957,” Majors said.  “We’re a committed, loving family, have raised two amazing girls together, have seen each other through thick and thin, in sickness and in health. After five decades together, we want to celebrate and affirm our deep love for each other as other couples do, before our friends and family, through marriage. We’re also getting up there in years. I want to know that, should anything happen to me, there would be no question about Karen being allowed to be with me at the hospital, and vice versa. If we were married, there would be no question and we both would feel more secure.” 

“Arizona’s ban on marriage for same-sex couples serves no legitimate state interest, brands these loving couples and their children as second-class citizens, and encourages private bias and discrimination,” Pizer said. “And because the State does not even offer a lesser status such as civil union or domestic partnership, these loving couples live every day with the uncertainty that their families and relationships lack even basic protections.”

The name of the lawsuit is Majors v. Horne. As I have said, repeatedly, the fact that in the 9th U.S. Circuit (Washington, California, Oregon, Arizona, Idaho, Nevada and Montana) laws in these states that classify based on sexual orientation must receive heightened scrutiny that they are not violating the equal protection rights of LGBT people makes it very likely that bans on same-sex marriage in these states are toast. The deadline to appeal the decision that declared sexual orientation subject to heightened scrutiny passed last Friday, and this lawsuit I'm sure is a consequence of that decision.

Important Deadline Passes To Appeal Landmark LGBT Equality Case

The Human Rights Campaign noticed that today was the deadline for the appeal to be filed in the landmark case of Abbott Laboratories v. SmithKline Beecham in which the 9th U.S. Circuit Court of Appeals ruled recently that laws that classify based upon sexual orientation require heightened scrutiny.

Abbott is an incredibly significant ruling that already has had immediate impacts on the lives of LGBT citizens. As a direct result of the issuance of this ruling the Attorneys General of Nevada and Oregon declined to continue to defend their state's marriage licenses.

It is hard to see how marriage laws that discriminate on the basis of sexual orientation survive judicial review anywhere in the 9th Circuit as long as Abbott is good law.

Juror Discrimination Case Will Not Be Appealed
Ninth Circuit's Application of Heightened Scrutiny for Sexual Orientation Will Stand
WASHINGTON – In January, the U.S. Court of Appeals for the Ninth Circuit ruled in a pharmaceutical contract dispute, Abbott Laboratories v. SmithKline Beecham, that it violates the U.S. Constitution's guarantee of equal protection to exclude someone from jury service because of his or her sexual orientation.  In doing so, the court also concluded that discrimination based on sexual orientation should be subject to heightened scrutiny, a higher standard of judicial review that requires a stronger justification for laws and policies that treat gays and lesbians differently.  Only days after the Ninth Circuit's decision, the Attorney General of Nevada ended the state's defense of its marriage ban in another case before that court, concluding that Nevada's justifications for excluding same-sex couples from marriage could not withstand that higher level of review.  

Yesterday, the deadline passed for AbbVie (the pharmaceutical spin-off of Abbott Laboratories that is a party in this litigation) to seek review of the January decision by a larger panel of the Ninth Circuit.  Furthermore, HRC has learned that AbbVie will not seek review by the U.S. Supreme Court.     

 “AbbVie’s decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans,” said HRC President Chad Griffin.  "We thank the company for standing on the right side of history."   

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.

###

Oregon Becomes 6th State Where Attorney General Won't Defend Marriage Ban

Oregon Attorney General Ellen Rosenblum has announced that she will no longer defend that state's constitutional marriage ban in light of the recent 9th Circuit ruling in GlaxoSmithKline v Abbott that declared sexual orientation is a suspect class that requires the government to provide increased justification for laws that discriminate against LGBT people. Rosenblum said in a filing in the lawsuit Rummel v. Kitzhaber that:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

Interestingly, Rosenblum joins at least 5 other attorneys-general who have refused to defend their state's laws banning marriage equality. California's Jerry Brown was one of the most prominent (and significant) to do so way back in December 2008 and the election of Kamala Harris in 2010 insured that California's attorney general would continue to support marriage equality. Others have been Illinois's Lisa Madigan in June 2012, Pennsylvania's Kathleen Kane in July 2013, Virginia's Mark Herring in January 2014 and Nevada's Catherina Cortez Masto in February 2014.

Oregon is an interesting case because signatures have been collected to go back to the ballot but the attorney general's switch, the state of law in the 9th circuit and the fact that the case is being heard before openly gay federal judge Michael McShane makes it likely marriage equality will come to Oregon sooner rather than later and that the ballot fight might not be necessary. Signatures do not have to be submitted until July 2014 for the November election.

In fact, Mike Marshall the campaign manager for Oregon United for Marriage issued a  statement responding to AG Rosenblum's action:

"If we get marriage (from the federal court) in the spring and nobody appeals and marriage licenses are being issued, nobody has any hunger for a ballot measure we don't need."

It should be noted that every federal judge who has ruled on a marriage equality lawsuit since last year's United States v. Windsor Supreme Court ruling has found in favor of equality, and this has often been under a rational basis level of review and not the heightened scrutiny required in the 9th circuit.

QUEER QUOTE: Nevada Gov. Agrees To Stop Defending Marriage Law In Court

Republican Nevada Governor Bruce Sandoval apparently agrees with his Democrat attorney general Catherine Cortez Masto that the impact of the 9th U.S. Circuit's recent decision declaring that sexual orientation requires heightened scrutiny means that the state will almost certainly lose its defense of its law banning same-sex marriage and thus has decided to stop doing so.

Masto issued an order "respectfully requesting the 9th U.S. Circuit allow her to withdraw her previously filed brief" defending Nevada's discriminatory marriage law on Monday.

Gov. Sandoval was quoted agreeing with decision, saying:

"Based upon the advice of the attorney general's office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court."

You know the end of the kulturkampf is getting near when even conservative Republicans like Sandoval are recognizing that fighting in court to preserve heterosexual privilege is not worth their time.

QUEER QUOTE: NV AG Rethinking Defense of State Marriage Ban

The Attorney General of Nevada raised some eyebrows last week when she filed a brief defending Nevada's marriage statutes that appeared to implicitly compare same-sex marriage with polygamous and incestuous ones. The case in question is Sevcik v. Sandoval and is being managed by Lambda Legal and the Attorney General is a Democrat named Catherine Cortez Masto who was re-elected in 2010 and is term limited from running again in 2014.

Today comes word that in light of the recent decision by the 9th Circuit that laws which discriminate on the basis of sexual orientation require heightened scrutiny, the AG is changing her tune. She released a statement which is today's Queer Quote:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit. 

This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.

It would be interesting if the AG of Nevada stopped defending its discriminatory marriage statute(s) in light of  the decision in GlaxoSmithKline, like the Democratic Attorney General of Virginia, Mark Herring did last week. He made his decision on the strength of the Supreme Court's language in United States v. Windsor, which makes it pretty clear that laws which disfavor same-sex couples do not serve a legitimate governmental interest and are almost certainly unconstitutional. 

If sexual orientation does receive heightened scrutiny nationwide it is hard to imagine that state constitutional bans on same-sex marriage survive competent judicial review. Currently, that is the standard of review in the Ninth Circuit, where Nevada (and Oregon) reside, so we may have more states joining the marriage equality caucus sooner rather than later.

Hat/tip to LGBT Think Progess

Ninth Circuit Articulates Heightened Scrutiny Standard for Sexual Orientation

LGBT legal circles have been buzzing for months about a case before the 9th U.S. Circuit Court of Appeals which they have been calling the "gay Batson" case. Batson v. Kentucky was the case where the Supreme Court ruled that race could not be used as the reason to exclude a juror from being stricken from a jury by a so-called peremptory challenge.

The case in question is GlaxoSmithKline v. Abbot Laboratories and involves whether a gay juror can be the subject of a peremptory challenge based on their sexual orientation. The key point here is that in deciding this question, the 9th Circuit has also answered the question of what standard of review courts need to take when analyzing whether governmental actions based on sexual orientation are constitutional and has apparently decided that heightened scrutiny is required.

The Los Angeles Times reports:

The decision will also make it harder to justify laws that treat gays differently from others, including bans on same-sex marriage, lawyers said. A challenge to Nevada's marriage law is already pending in the 9th Circuit, and gays are fighting marriage bans in trial courts in Oregon, Idaho and Arizona. 

When a law discriminates on the basis of sexual orientation, it must be closely evaluated to "ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status," Judge Stephen Reinhardt wrote for the court. The panel said excluding gay jurors violated their constitutional right to equal protection under the law. 

Gay rights activists applauded the ruling and predicted that it would help them win marriage rights in other Western states besides California, where same-sex marriage was reinstated last summer. 

"This is really a very big deal," said Jon W. Davidson, legal director of Lambda Legal, a gay rights advocacy group. "It is likely to have a significant impact on other cases." 

David Codell, constitutional litigation director for the National Center for Lesbian Rights, said the decision would make it "exceedingly difficult" for states to justify discriminating against gays in all sorts of contexts.

The 2nd Appellate Circuit has also ruled, in the Windsor case that the Supreme Court affirmed (and pointedly did not vacate the lower decision), that sexual orientation requires something greater than "rational basis review" in deciding whether governmental actions that discriminate against LGB people.

The question is whether the Supreme Court would review this case from the 9th Circuit, and whether they would allow this analysis of the enhanced constitutional status of gays and lesbians to become the law of the land nationwide. Doing so, would almost certainly eventually lead to the demise of all anti-gay marriage bans around the country as well as other less onerous forms of institutionalized anti-gay public policy enacted into law.

Hat/tip to Joe.My.God

Gaytterdämmerung: Prop 8 is Dead! Marriage Equality Returns To California

With a short 1 sentence order published at 3:21pm PDT, the 9th U.S. Circuit Court of Appeals lifted the stay of their 2012 decision in Hollingsworth v. Perry, eschewing the typical 25-day wait for the United States Supreme Court ruling to be officially communicated to them, putting the district court ruling of Perry v Brown back into effect, returning marriage equality to California and its nearly 40 million residents.

The order was simple but its effect was not: "The stay in the above matter is dissolved effective immediately."

American Foundation for Equal Rights sent out the information 12 minutes later by tweet:

BREAKING: The stay has been lifted. Gay&lesbian couples can now get married in California.  

Details> http://t.co/mV8ERz1s5H #Time4Marriage
— AmericanEqualRights (@AFER) June 28, 2013

The above picture is of the Northern California plaintiffs, Kris Perry and Sandy Stier, getting their marriage license in San Francisco City Hall. with Bruce Cohen, Dustin Lance Black, Chad Griffin in the background behind them.

Woo hoo!!