PFAW Activists Protest Kentucky’s Marriage Equality Ban

People For the American Way joined local activists at a park in downtown Louisville on Friday to protest Kentucky's ban on marriage equality for same-sex couples. 

The "Love Will Win" rally came in response to last week's federal appeals court decision that upheld laws against same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. Currently the Commonwealth doesn't even have to recognize same-sex marriages performed legally in other states.

Protesters are hopeful this setback will pave the way for a Supreme Court reversal, bringing marriage equality to the South and the rest of the nation.

Chris Hartman, director of the Fairness Campaign, said that he’s disappointed by the decision but pleased by the prospects of getting a case in front of the U.S. Supreme Court.

"I think we all knew the sixth circuit was going to rule against LGBT freedom to marry,” Hartman said. “The sixth circuit is the most overturned circuit at the Supreme Court in the entire nation."

Thus far, 32 states and the District of Columbia have legalized same-sex marriage.

PFAW

Another Nail in the Coffin for Baker v. Nelson

A Supreme Court decision not to take an appeal of a lower court ruling is generally (and correctly) recognized as not being a ruling on the merits by the nation's highest court. But yesterday's determination not to hear several lower court decisions on marriage is arguably an exception. It can be seen as significantly weakening the argument made by anti-equality advocates that a decades-old Supreme Court one-sentence ruling in a case called Baker v. Nelson prevents lower courts from addressing the constitutionality of marriage bans.

Baker was a one-sentence Supreme Court ruling from 1972. A gay couple had challenged Minnesota's ban on same-sex couples getting married, and they had lost in the state supreme court. They appealed, and the Supreme Court responded with a one-sentence order, dismissing the case "for want of a substantial federal question." Although it was just one sentence and done without oral arguments or a written opinion, the summary dismissal was nonetheless a decision on the merits of the constitutional issue. As a result, most of the lower courts that have addressed the same issue four decades later have had to contend with this case.

Especially since the Windsor case striking down DOMA, most judges have agreed that while the Supreme Court itself has not overruled Baker, doctrinal developments since 1972 on Equal Protection generally – and on anti-gay discrimination in particular – have completely undermined it. Normally, the Justices tell lower courts that only the Supreme Court can overrule a Supreme Court precedent. Until that happens, lower courts should consider themselves bound by the precedent, even if the high court has undermined it over the years. But it has also made an exception if the precedent is, like Baker, a summary dismissal. In that case, courts do not have to follow it if subsequent doctrinal developments indicate it is no longer good law. That's what has allowed so many courts to get to the merits of the constitutional challenges to marriage bans.

Yesterday arguably represents another step in Baker's demise. Several landmark rulings over the past twenty years have recognized the fundamental equality, liberty, and dignity of lesbians and gays, making it hard to say that the Court still considers marriage equality lawsuits as not even presenting "a substantial federal question."

A more direct rebuke of Baker occurred when the Supreme Court issued an order accepting certiorari in the Proposition 8 case, which presented the exact same issue as the older case. Even though the Justices ultimately didn't address the merits, it is hard to claim with a straight face that the Supreme Court accepted cert and engaged in spirited oral arguments on an issue where there was no substantial federal question.

Yesterday's dismissal of the marriage cases represents another important stage in the long death of Baker. Three circuit courts concluded they could address the merits of the marriage equality arguments, Baker notwithstanding. Just by considering the issue, they rejected the holding of Baker. And certainly the conclusion they reached – that the United States Constitution prohibits states from banning same-sex couples from marrying – is a direct repudiation of the older case.

The Supreme Court takes it very seriously when a lower court simply disregards its precedents and says they are no longer good law. It's fine for a lower court to distinguish a case from an important previous precedent – that happens all the time. But to say the precedent can now be ignored would be a major challenge to the Supreme Court's authority … if the Justices thought for a minute that the old case was still good law.

But yesterday's decision sends a powerful message about Baker. A majority of Justices voted not to take the cases. If a majority considered Baker good law, we would not likely have seen an official Court action supported by a majority of the Justices choosing not to hear cases where lower courts declared themselves not bound by the precedent.

As additional circuit courts consider challenges to state marriage bans, they should not consider themselves bound by Baker v. Nelson.

PFAW Foundation

Supreme Court Action on Marriage Cases Is No Surprise

The Supreme Court's decision this morning to not hear appeals of any of the pending marriage equality appeals came as a surprise to some. But as PFAW Foundation's Supreme Court 2014-2015 Term Preview explained last month, most of the Justices may have strongly wanted to avoid taking these cases if at all possible:

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can't change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation's highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy's position, might not want to risk a 5-4 ruling in the "wrong" direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went "too far, too fast," provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw "no urgency" for the Court to take up the issue now, although she added that she expects the Court to take it up "sooner or later."

It looks like the "sooner or later" will be when – or if – a circuit court ever rules against same-sex couples seeking to vindicate their right to marry.

The Term Preview also discussed some of the specific legal issues that an eventual Supreme Court ruling could address, beyond the black-or-white question of whether same-sex couples can marry. For now, absent a circuit court ruling upholding a marriage ban and a subsequent decision by the Supreme Court to hear the appeal, these questions will remain unresolved at the national level. But they are important questions:

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – "rational basis" scrutiny by the courts: The law is constitutional as long as it's rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court's discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court's eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.

This last point is particularly important, given efforts by the far right to reframe anti-discrimination and women's health laws as attacks on religious liberty. As affiliate People For the American Way Senior Fellow Peter Montgomery wrote earlier today on Right Wing Watch:

[R]edefining "religious liberty" has become the central culture war issue and the primary legal and public relations strategy chosen by conservative evangelicals and their allies in the Catholic hierarchy to resist the advance of LGBT equality and restrict women's access to reproductive care.

This right-wing reframing effort might have been hurt by a strong Supreme Court ruling emphasizing the critical importance of ending discrimination against lesbians and gays.

PFAW Foundation

Let Freedom (and Wedding Bells) Ring

With the far-right Roberts Court, it's usually good news when they choose not to address a case, and that's especially so this morning: The Court announced it will not be hearing the appeals of any of the pending marriage cases.

That means the stays of the Fourth, Seventh, and Tenth Circuits' pro-equality rulings should be lifted and marriages should soon be allowed in Utah and Oklahoma (10th Circuit), Indiana and Wisconsin (7th Circuit), and Virginia (4th Circuit).

And in the other non-equality states in those three circuits, loving couples can now go to court and cite their circuit's ruling as binding precedent guaranteeing their right to marry. And they should win: Each circuit decision binds district courts and other three-judge appellate panels in the circuit. The only way to avoid the application of three-judge panel’s decision to other states in the circuit would be for there to be a contrary ruling by a panel - called an en banc panel - made up of all of the active appellate judges in that circuit.

Congratulations to the loving couples in those states for whom the Constitution's promise of liberty and equality will no longer be ideals withheld from them. This is a textbook case of the federal courts doing exactly what they were set up to do: vindicating those whose basic legal rights have been violated.

PFAW Foundation

Rhetoric on ISIS Shows the Right Wing Is Out of Touch with Reality

It’s not hard to understand that the Right Wing is out of touch, but sometimes it is hard to recognize just how out of touch its leaders really are.

Take, for instance, ISIS, the group of radical militants committing atrocities across Iraq and Syria, recently beheading two American journalists among many others. It’s a scary organization, but to the Right, it’s not as scary as, say, comprehensive immigration reform.

To Pat Buchanan, the threat of immigration and the “decomposition of this country” is significantly greater than that of ISIS. William Gheen of the anti-immigrant group Americans for Legal Immigration (ALIPAC) also claimed that undocumented immigrants are a greater threat to America than ISIS since, according to Gheen, “ISIS could cut off the heads of journalists once a month for the next five years and that’s not going to destroy America, but Obama’s pumping of illegal immigrants into the country will.”

Nor is immigration the only domestic issue the Right thinks bears a resemblance to a vicious foreign threat.

Vic Eliason and Mat Staver last week linked same-sex marriage in the U.S. to the beheadings by ISIS. According to Eliason and Staver, gay rights advocates are destroying morality and biblical values and creating an anything-goes society where people do whatever they need to—killing or beheading—to get what they want, just like ISIS.

What’s terrifying about these comments isn’t that they’re extreme, but that these right wing figures aren’t speaking in a vacuum. Their audience continues to represent an important part of the GOP base, and in some cases these speakers have a direct line to Republican politicians.

As progressives, we can’t ignore this extremism just because it seems disconnected from reality. For the far right, that’s never been an obstacle at all.

PFAW

7th Circuit Says Arguments Against Marriage Equality "Cannot Be Taken Seriously"

Today's unanimous panel ruling by the Seventh Circuit striking down Wisconsin and Indiana's marriage bans is a well-written, carefully reasoned take-down of some of the ludicrous arguments that equality opponents have been making to defend their policy of discrimination. It was written by Richard Posner, a noted conservative put on the bench by Ronald Reagan, and joined by judges nominated by Bill Clinton and Barack Obama. Ruling on the basis of the Equal Protection Clause of the Fourteenth Amendment, the court summarizes its opinion nicely:

Our pair of cases is rich in detail but ultimately straightforward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don't need marriage because same-sex couples can't produce children, intended or unintended—is so full of holes that it cannot be taken seriously.

Judge Posner writes:

Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain to the homosexual community.

He carefully considers the argument put forward by the states that marriage is restricted to one man and one woman to benefit children. Among the many ways this argument fails to hold water:

But then how to explain Indiana's decision to carve an exception to its prohibition against marriage of close relatives for first cousins 65 or older—a population guaranteed to be infertile because women can't conceive at that age? [Wisconsin also bans first cousins from marrying unless the woman is over 55 or where the couple presents a doctor's affidavit saying one of them is permanently infertile.] If the state's only interest in allowing marriage is to protect children, why has it gone out of its way to permit marriage of first cousins only after they are provably infertile? ... Elderly first cousins are permitted to marry because they can't produce children; homosexuals are forbidden to marry because they can't produce children. The state's argument that a marriage of first cousins who are past child-bearing age provides a "model [of] family life for younger, potentially procreative men and women" is impossible to take seriously.

With regard to the commonly heard refrain, echoed by attorneys for Indiana and Wisconsin, that courts should respect democratically-enacted bans on marriage by same-sex couples, Judge Posner points out what should be obvious to anyone who claims fealty to the United States Constitution:

Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.

Courts exist to enforce the Constitution against those who would subvert it. And that drives the right crazy.

PFAW Foundation

Louisiana's Marriage Ban Is Upheld By Judge Citing "Lifestyle Choices"

Judge Martin Feldman, nominated to the Eastern District of Louisiana thirty years ago by President Reagan, today upheld that state's marriage ban against same-sex couples. But his opinion concluding that the ban is constitutional is hardly a model of rigorous and dispassionate legal or factual analysis.

Early in the opinion, he makes clear that he simply doesn't see gay and lesbian couples as anything at all like opposite-sex couples:

This national same-sex marriage struggle animates a clash between convictions regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition. (emphasis added)

This fundamental misunderstanding – reducing the love and commitment shared by lesbian and gay couples to nothing more than a simple "lifestyle choice" – colors his entire approach to the case.

In his Equal Protection analysis, he rules that classifications based on sexual orientation are subject only to the lowest-level, "rational basis" scrutiny. He gives two reasons. First, he cites higher court cases like Windsor that have avoided squarely answering that question, "despite opportunities to do so." Second, applying heightened scrutiny would "demean the democratic process." That's pretty circular reasoning, considering that heightened scrutiny exists in recognition that even democratically-enacted laws can violate a vulnerable group's Equal Protection rights.

His conclusion that the ban isn't sex discrimination is similarly flawed. Under the bans, your sex determines whether you can marry a particular person, playing the same role that race did in Loving v. Virginia. In that case, the Supreme Court rejected Virginia's argument that laws prohibiting interracial marriage did not trigger Equal Protection concerns because they applied to blacks and whites alike. Once the Court recognized that the law treated people differently based on their race, it followed standard Equal Protection analysis, striking down the law under the strict scrutiny that applies to racial discrimination. Other courts have recognized that bans against same-sex couples getting married similarly trigger Equal Protection concerns. In disagreeing with those courts, Judge Feldman rewrites Loving (and the Fourteenth Amendment):

Heightened scrutiny was warranted in Loving because the Fourteenth Amendment expressly condemns racial discrimination as a constitutional evil … [N]o analogy can defeat the plain reality that Louisiana's laws apply evenhandedly to both genders--whether between two men or two women. Same-sex marriage is not recognized in Louisiana and is reasonably anchored to the democratic process. The Court is therefore satisfied that rational basis applies.

First off, the Fourteenth Amendment doesn't "expressly condemn racial discrimination" or even specifically mention race. Its ringing call for liberty and equality applies to "any person." Sorry, Judge Feldman, but that includes lesbians and gays.

Secondly, Feldman flips Loving on its head. Loving recognized that the state's marriage laws were subject to Equal Protection scrutiny despite, to use Feldman's formulation in this case, "the plain reality that [Virginia's] laws appl[ied] evenhandedly to both [races]." The Supreme Court didn't see through the ruse of "it applies to everyone" because of strict scrutiny; it used strict scrutiny because it saw through the ruse of "it applies to everyone."

Although other courts have struck down marriage bans under rational basis, Feldman upholds Louisiana's ban as related to the state's goals of linking children to their birth parents and managing social change through democratic consensus. He suggests that it could be struck down only if motivated solely by animus, which he rejects (although other courts have struck down the law under rational basis without a finding of animus). (The Supreme Court has held that animus against gays and lesbians is not a legitimate justification for a law.)

As for the Due Process claim, he sees the constitutional right at issue not as marriage, but as "same sex marriage." This is not surprising, since he doesn't see the couples before him as anything except people exercising and seeking approval of an alternative "lifestyle choice." And since there has not been a longstanding recognition of the right to "same sex marriage," he uses rational basis for the Due Process claim, and the couples before him lose again.

Toward the end of the opinion, Judge Feldman channels his inner Scalia, condemning judges who, like "philosopher kings," have ruled in favor of same-sex couples. He writes:

Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage. … For example, must the states permit or recognize a marriage between an aunt and niece? Aunt and nephew? Brother/brother? Father and child?

That canard is so easily rejected. Can Judge Feldman really not come up with a single reason to ban child marriages or incestuous marriages that would not apply to marriages between unrelated adults of the same sex? Not one? The reasons for not letting a father marry his child really have nothing to do with the fact that one of the parties is a child, and that the other party is their father?

Judge Feldman was put in the bench back in 1983 by President Reagan. Our country was a much darker place for lesbians and gays then, and a ruling such as his would not have been surprising thirty years ago. But given the enormous changes in constitutional law that we have seen since then, Feldman's ruling is clearly a throwback to an earlier and less equal time.

PFAW Foundation

When Will Marriage Equality Head Back to the Supreme Court?

As state and federal courts continue to issue marriage rulings, one question remains – when will marriage equality head back to the Supreme Court?

We're getting closer to the answer.

Late last month, a ruling by a three-judge panel of the Tenth Circuit concluded that Utah's ban on same-sex marriage violates the Fourteenth Amendment's Due Process Clause (by denying a fundamental right to marry) and Equal Protection Clause (by making that right depend on a classification – the sex of the couple – that bears little if any relation to the state's purported goals).

Then yesterday we heard from the Utah Attorney General's office that the state will forego an appeal to the full Tenth Circuit and instead proceed to the US Supreme Court:

The U.S. Supreme Court is not obligated to hear Utah’s appeal — or any case regarding state same-sex marriage bans.

Should the justices decline to hear such a case, the rulings of lower courts, like that of the 10th Circuit Court of Appeals, would stand as the law of the land.

"We don’t really know if the Supreme Court will take this up or they won’t," said Equality Utah Executive Director Brandie Balken, who attended Wednesday’s march. "Unfortunately, today we have families, couples, children who are living in legal limbo."

Check out our website for more LGBT equality updates.

PFAW Foundation

Kentucky Marriage Ban Struck Down

Continuing the unbroken record of marriage equality wins since last year’s Supreme Court ruling against DOMA in the Windsor case, today a federal judge ruled unconstitutional Kentucky’s ban on marriage for same-sex couples.

District Judge John G. Heyburn II wrote:

In America, even sincere and long-held religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

He dismissed the opposing arguments — including that the ban was good for the state’s economic stability and birth rates — out of hand, noting, “These arguments are not those of serious people.”

The judge has stayed the ruling for now, meaning that Kentucky couples can’t immediately begin marrying. But the decision is a significant victory for LGBT families in the Bluegrass State, where activists have fought courageously for equal rights for many years. Congratulations, Kentucky!

PFAW Foundation

Indiana’s Marriage Ban Struck Down

In another win for equality, today U.S. District Judge Richard Young struck down Indiana’s ban on marriage for same-sex couples. Because the judge did not stay the ruling, the Indianapolis Star reports that couples can begin getting married right away.

Not a single state marriage ban has been able to withstand a challenge in federal court in the wake of the Supreme Court’s 2013 decision in United States v. Windsor, which struck down part of DOMA.

Congratulations, Indiana!

PFAW Foundation