America’s long journey towards equality has been guided by countless small acts of persistence, and fueled by the stubborn willingness of quiet heroes to speak out for what’s right.
Few were as small in stature as Edie Windsor – and few made as big a difference to America.
I had the privilege to speak with Edie a few days ago, and to tell her one more time what a difference she made to this country we love. She was engaged to her partner, Thea, for forty years. After a wedding in Canada, they were married for less than two. But federal law didn’t recognize a marriage like theirs as valid – which meant that they were denied certain federal rights and benefits that other married couples enjoyed. And when Thea passed away, Edie spoke up – not for special treatment, but for equal treatment – so that other legally married same-sex couples could enjoy the same federal rights and benefits as anyone else.
In my second inaugural address, I said that if we are truly created equal, then surely the love we commit to one another must be equal as well. And because people like Edie stood up, my administration stopped defending the so-called Defense of Marriage Act in the courts. The day that the Supreme Court issued its 2013 ruling in United States v. Windsor was a great day for Edie, and a great day for America – a victory for human decency, equality, freedom, and justice. And I called Edie that day to congratulate her.
Two years later, to the day, we took another step forward on our journey as the Supreme Court recognized a Constitutional guarantee of marriage equality. It was a victory for families, and for the principle that all of us should be treated equally, regardless of who we are or who we love.
I thought about Edie that day. I thought about all the millions of quiet heroes across the decades whose countless small acts of courage slowly made an entire country realize that love is love – and who, in the process, made us all more free. They deserve our gratitude. And so does Edie.
Michelle and I offer our condolences to her wife, Judith, and to all who loved and looked up to Edie Windsor.Hat/tip to Talking Points Memo
“One year ago today, we celebrated a watershed moment for equality in America. Thanks to the bravery of LGBT Americans like Jim Obergefell and Edie Windsor, and the determination and tireless organizing of the LGBT community and their allies, marriage equality became the law of the land in all 50 states.
“Over the last year, more barriers to equality have fallen – including, finally, the last state law banning same-sex couples from adopting. Just this month, President Obama designated Stonewall as the first national monument commemorating LGBT history in America.
“We’ve also seen how much work is still unfinished. The attack in Orlando broke our hearts, and reminded us that LGBT people – particularly people of color – are still targets for harassment and violence. Discriminatory laws in states like North Carolina highlight the need for full federal equality under the law for LGBT Americans. And Donald Trump’s pledge to consider appointing Supreme Court justices who would overturn marriage equality underscores the fact that so much of the progress we’ve made is at stake in November.
“But even when the road ahead seems daunting, never forget: on this day in history, love triumphed in the highest court in the land. Today, our march toward a more perfect union continues—toward equality, dignity, and justice for all.”
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In 29 states - CA, CO, CT, DE, HI, ID, IA, IL, IN, ME, MD, MA, MN, NC, NH, NJ, NM, NV, NY, OK, OR, PA, RI, UT, VA, VT, WA, WV and WI, plus Washington, D.C. - same-sex couples have the freedom to marry.
In an additional six states - AK, AZ, KS, MT, SC, and WY - federal appellate rulings have set a binding precedent in favor of the freedom to marry, meaning the path is cleared for the freedom to marry there.
In sum, any relationship between Alaska’s same-sex marriage laws and the government interests asserted by Defendants is either nonexistent or purely speculative. Alaska’s same-sex marriage laws are a prime example of how “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Refusing the rights and responsibilities afforded by legal marriage sends the public a government-sponsored message that same-sex couples and their familial relationships do not warrant the status, benefits, and dignity given to couples of the opposite sex. This Court finds that Alaska’s same-sex marriage laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment because no state interest provides “exceedingly persuasive justification” for the significant infringement of rights that they inflict upon homosexual individuals.Bizarrely, Gov. Sean Parnell (R-Alaska) announced that he is going to appeal this ruling to the 9th Circuit Court of Appeals, which just announced on Tuesday that it was striking down Idaho's and Nevada's bans on marriage equality. Isn't insanity doing the same thing over and over again and hoping to hey a different result? Then again, Parnell is running for re-election so maybe he feels like he needs to appear as if he is "defending marriage."
Judge Feldman did not spew the kind of hate that comes from the National Organization for Marriage or the Liberty Council or the Westboro Baptist Church. Nor, on the other hand, was he even remotely supportive. Besides calling being gay a "lifestyle choice" (Error 1) and comparing gays marrying to incest (Error 2), he asserted that the right the plaintiffs sought was a "new right," one definitely not steeped in the democratic tradition of this country--namely, a right to same-sex marriage (Error 3).The judge makes basic constitutional errors like misstating the levels of scrutiny required in equal protection cases, calling them "rational basis, intermediate scrutiny and heightened scrutiny" when even my first-year students know that the levels of scrutiny used by the Supreme Court are rational basis, heightened scrutiny (sometimes called intermediate scrutiny) and strict scrutiny.
For most of the twentieth century, anyone who openly identified as gay, lesbian, bisexual, or transgender (LGBT) was banned from immigrating to the United States. HIV-positive people were also barred from entry. Until 2013, the immigration system denied recognition of LGBT families: the so-called Defense of Marriage Act (DOMA) prevented gay, lesbian, and bisexual U.S. citizens from sponsoring their same-sex partners for permanent residence.
Slowly, over the past three decades, all of that has changed. The ban on LGBT people was repealed in 1990, and the ban on people living with HIV was lifted in 2008. In 2013, the U.S. Supreme Court’s Windsor decision overturned part of DOMA, recognizing the legitimacy of binational same-sex couples, ending years of separation and uncertainty for tens of thousands of couples.
But the pathways to equality and basic quality of life is still hard for the vast majority of LGBT immigrants in the U.S., who now number an estimated 904,000. By comparison, New York State is home to 575,000 "out" LGBT adults. In fact, nearly a tenth of the nearly 9 million "out" LGBT adults are immigrants.The full report is 24-pages long but is chock-full of important information like:
Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.Much props from this fellow sesquipedalian for the use of the word "haruspex"!
“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.
“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.”
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).
Our clients and other same-sex couples in Wisconsin are faced with the continuing indignity of seeing their families denigrated by the state’s refusal to allow them to marry or to recognize their marriages entered elsewhere... Even if you [Van Hollen] believe you will win, please file your appeal promptly to resolve the uncertainty that same-sex couples, their children, as well as employers and other businesses and government offices who interact with same-sex couples are facing until the constitutionality of Wisconsin’s ban on marriage is resolved.Van Hollen is not running for re-election this year, but Republican Governor Scott Walker is. Fellow Republican Governor Tom Corbett (who is also running for re-election but is unlikely to win) earlier this year made his state the 19th state to have permanent marriage equality when he didn't appeal a marriage equality ruling.
Based on the foregoing, we hold that Pennsylvania’s Marriage Laws violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Because these laws are unconstitutional, weshall enter an order permanently enjoining their enforcement. By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in theCommonwealth.
The issue we resolve today is a divisive one. Some of our citizens are madedeeply uncomfortable by the notion of same-sex marriage. However, that same-sex marriage causes discomfort in some does not make its prohibitionconstitutional. Nor can past tradition trump the bedrock constitutional guarantees of due process and equal protection. Were that not so, ours would still be a racially segregated nation according to the now rightfully disregarded notion of "separate but equal." [citations omitted] In the sixty years since Brown was decided "separate" has faded into history, and only "equal" remains. Similarly, in future generations the term same-sex marriage will be abandoned, to be replaced simply by marriage.
We are a better people than what these laws represent, and it is time to discard them to the ash heap of history.Since no stay was issued and it is unlikely (but possible) that the 3rd Circuit Court of Appeals will issue a stay in the near future, Pennsylvania becomes the 19th marriage equality state!
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.
CONCLUSION
The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho's Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho's Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love.
The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants' justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny.
The Fourteenth Amendment guarantees of due process and equal protection lie at the core of our constitutional system. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today's decision. "[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded." United States v. Virginia, 518 U.S. 515, 557 (1996). Slow as the march toward equality may seem, it is never in vain.
ORDER
... The Court hereby DECLARES that Idaho's Marriage Laws are unconstitutional because they violate Plaintiffs' rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.
The Court PERMANENTLY ENJOINS the State of Idaho and its officers, employees, agents, and political subdivisions from enforcing Article III, § 28 of the Idaho Constitution; Idaho Code Sections 32-201 and 32-209; and any other laws or regulations to the extent they do not recognize same-sex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples from marrying in Idaho. This injunction shall take effect at 9:00 a.m. MDT on May 16, 2014.
IT IS SO ORDERED.
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.
