But there is a difference with Oregon. There is a reason that none of the previous federal rulings have caused places such as Wikipedia or GLAAD or any other place that is covering his phenomenon to count those states as one that now allows marriage equality.
Oregon is the first state with one of these cases where not a single state or county official argued in favor of keeping the ban.
And that has important legal implications… Read More…
A judge in Idaho declared that state’s ban on same-sex marriage unconstitutional, and refused to issue a stay, so marriages could begin Friday (depending on how the Governor’s appeal to the Circuit Court goes).
The Arkansas Supreme Court declined to issue a stay, but also pointed out that the judge’s preliminary ruling forgot to mention a third statute that prohibits clerks from issuing licenses. More on that in a minute.
The federal judge in Oregon who heard arguments about the ban last month (if you can call it arguments when the state Attorney General and every other group filing a brief agreed with the gay couples that the ban is unconstitutional) ruled that the National Organization for Marriage (NOM) could not intervene on behalf of anonymous citizens who allegedly fear reprisal, so they couldn’t be named.
Seriously, NOM’s behavior on this has been really pathetic. They issued a lengthy angry press release two months before the deadline to file a brief about the case, then they missed the deadline to file. Then the night before the scheduled hearing, they file an emergency request to be allowed to file a brief and come into the court to argue on behalf of the ban, claiming that they were caught off-guard by the hearing? The judge refused to halt the scheduled hearing, but promised he wouldn’t release a ruling until he’d had another hearing on their intervention petition.
Rumor had it that NOM had missed the deadline because they were looking for a county clerk who would agree to be their co-filer. Since marriage equality came to California because the Supreme Court rejected the case on the grounds that NOM and other groups had no standing to step in if the state declined to appeal the lower court ruling, NOM has switched to trying to recruit lower-level state officials to be their puppet petitioner. Rumors were that, with polls shows 58% of Oregon voters already wanting to repeal the state constitution’s ban, no state or county official who might arguably have standing was willing to come forward. That’s why NOM filed late.
They confirmed this in their arguments about why they should be allowed to intervene. They allegedly had several people who wanted to argue for the ban, but only if they could remain anonymous. It should have been no surprise to them that the judge denied the request. Come on! The Supreme Court had already ruled NOM didn’t have standing. Claiming you have anonymous co-petitioners who are afraid even to meet with the judge? That’s just crazy.
And then there’s Kentucky, whose ban was ruled unconstitutional a while ago, but the ruling has been stayed while awaiting the outcome of an appeal. But that doesn’t mean nothing’s happening. No, the original court has now ordered the state to pay the attorneys fees of the gay and lesbian couples who originally filed the case.
But it’s the Arkansas case that’s crazy. When the news first broke last week, I was kind of surprised to read that the Judge had to find both a state constitutional ban and a separate statute banning same-sex marriage violated the federal constitution. Arkansas had both a law and a constitutional ban? Talk about wearing both a belt and suspenders at the same time! But it’s worse than that, there’s another statute that separately prohibits clerks from issuing the licenses. Really? How paranoid can you be?
But apparently, since the state Supreme Court mentioned that third law, everyone, including the counties that had been issuing licenses since Saturday, has stopped following the first judge’s order allowing marriage equality. As more than one observer has pointed out, it seems absurd that once the ban is declared unconstitutional, that anyone could argue that an extra law whose only effect is to enforce this thing that has already been declared unconstitutional can itself remain constitutional.
The original judge had only issued preliminary ruling, not his final orders, so he could mention the third law in those final orders. No one knows if the justices on the state’s highest court did this to make certain everything is covered, or it it’s a delaying tactic to avoid having to decide whether to issue a stay. I’m not sure what the delay would accomplish. Do a couple of them hope that if they wait a few weeks this will all blow over?
Between thr time I started writing this and now, the judge has issued a revised order, and specifically ordered clerks to issue marriqge licenses. So it’s back in the state Supreme Court’s lap. There comes a point where you wonder when the bigots will admit the fight on this is over…
I mentioned earlier that Michael used to say that he considered NorWesCon our anniversary, because he was even worse about forgetting the date of our first date (which is one of the dates I tried to remember as an anniversary) than I am, and neither of us could ever remember the date of our commitment ceremony without digging out the paperwork for our domestic partnership registration.
To be fair, we made it a very small thing we tacked onto another get-together with friends. So it wasn’t like an event planned for months ahead or anything. We needed to file domestic partnership paperwork to get us both on the same health insurance, so we did it and that was that. Just a few months afterward I had already started forgetting what the date was. It just never stuck.
I have not had the issue at all with remembering our wedding day…
I’ve spent some time this morning crying at weddings more than a thousand miles away. I’ll likely spend a lot of time this weekend doing that. A federal judge ruled yesterday that Michigan’s ban on same-sex marriage is unconstitutional (given all the other rulings that isn’t much of a surprise).He refused to issue a stay on the ruling, pointing to the evidence presented in the trial that denying the marriages causes harm to the thousands of Michigan children already being raised by same sex couples. This is different than other such rulings, or the situation in Utah where the state simply didn’t think to ask for a stay until the weddings had started.
The Court finds Sankaran’s testimony to be fully credible and gives it great weight. He testified convincingly that children being raised by same-sex couples have only one legal parent and are at risk of being placed in “legal limbo” if that parent dies or is incapacitated. Denying same-sex couples the ability to marry therefore has a manifestly harmful and destabilizing effecton such couples’ children.
The clerks in four counties, so far, have opened their offices on the weekend, to give out “no waiting period” marriage licenses. State and county officials have come in to work on their own time to facilitate the weddings. Judges, ministers, and other people legally authorized to perform the ceremonies have also come in to perform them. Ordinary citizens, some of them friends and families of the couples, but others just people who believe in equality, have come in to help, to congratulate, to cheer.
Couples who have been together over 50 years have been among the people married this morning.
My favorite part of this judge’s ruling (in his findings of fact—that will be very important during the appeals process), is his total evisceration of the notorious Regnerus study:
“The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 ‘study’ was hastily concocted at the behest of a third-party funder, which found it ‘essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society’ and which ‘was confident that the traditional understanding of marriage will be vindicated by this study.’ While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Whatever Regnerus may have found in this ‘study,’ he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general.”
(You can read Judge Bernard Friedman’s entire ruling here.)In case you are unfamiliar, Regenerus compared a few hundred children whose parents had divorced, and in which the non-custodial parent later came out as gay or lesbian, to a control group of children raised by parents who never divorced. Not surprisingly, the children whose early childhoods were disrupted by a divorce tended to have trouble in school and show the other typical problems that have been documented many time before when families experience “household instability and parental relationship fluctuation.” Regenerus then claimed that this proved that children raised by same-sex parents have worse outcomes than children raised by opposite-sex parents.
Except that this doesn’t show that, because none of the children in that group were actually raised by a pair of same-sex parents. None.
It is true that his study also included two children whose parents divorced and the custodial parent came out as lesbian. Those two children did spend part of their childhood being raised by their mother and her same sex partner. Regenerus was forced to admit under oath that these two children did better than average in school, and otherwise had “better outcomes” in all the areas he measured than the others.
So, the only children in his ‘study’ who actually were raised by a same sex couple were success stories, rather than the horror story he has claimed.
So far, every state that is defending bans against marriage equality has cited the Regenerus study, despite its having been debunked many times before this. As far as I can tell, this is the first time that a court has specifically gone into the reasons that they have not been persuaded by the study.Freelance journalist (and former POLITICO writer, and now an instructor at Michigan State University) Steve Friess has been at a courthouse in Ann Arbor covering the story all day. He posted a link to his dropbox folder containing photos he’s been taking all day, which he is offering free with attribution. But I think my favorite is one he tweeted earlier: a print-out of the 14th Amendment one of the county clerks is handing out, reminding us that this has nothing to do the activist judges, and everything to do with enforcing the constitution.
I’m going to go look at more wedding pictures. Pass me another box of kleenex.
Update: Alas, the Sixth Circuit Appeals Court has issue a stay at least until Wednesday, when they will hear arguments as to whether the stay should be permanent until the Appeals Court rules on the original case. It’s disappointing, though not entirely unexpected. I do have to re-ask the question of just what the attorney general requesting this stay hopes to accomplish? He can’t be so delusional as to think the the whole country is going to reverse course on this sometime soon, can he?
Of course, I have a few theories about this… Read More…
The problem is that it isn’t fabricated. Since as far back as the year 1888, the U.S. Supreme Court has repeatedly declared that the right to marry is a fundamental human right. In the 1888 case the court declared it “the most important relation in life.” In 1923 they declared it one of the fundamental rights protected by the Due Process Clause. In 1942 they declared marriage one of the most basic and fundamental civil rights covered under the Equal Protection Clause. In 1965 they declared the right to marry and make decisions about having a family as part of a fundamental right of privacy that was older than the constitution, that the right to privacy was implied by several parts of the Bill of Rights, most strongly in the Ninth and Fourteenth amendments.
Most famously in 1967, in the case that struck down the few remaining laws against interracial marriage, the court unanimously ruled that “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
In 1974 the court declared “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause” when it struck down laws that prohibited pregnant women from working as teachers.
In 1977 in a couple of cases involving laws about who was allowed to live together, the court declared that the choice of who to live with, who to marry, and who to raise children with were fundamental rights which the government could not interfere in without justification that would pass careful judicial review.
In 1978 the court found that “the right to marry is of fundamental importance for all individuals” in the course of declaring that a state must show that any law restricting the right furthers an important government interest in a way that is substantially related to that interest.
In 1987 the court reaffirmed that “the decision to marry is a fundamental right” and that it was so fundamental that even the most violent and dangerous of convicted criminals must be allowed to marry even while they were in prison regardless of whether they would ever be allowed to consumate such marriages.
In 1992 the court included marriage and the choice of whether and who to raise children with as “central to personal dignity and autonomy” and “central to the liberty protected by the Fourteenth Amendment.”
In 1996 the court held that “choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
Most tellingly, in 2003 when striking down state sodomy laws, the court held that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”
That last one certainly seems to imply that gay couples ought to be able to get married, if they wish. And it was the ruling that set off the flurry of state ballot measures in 2004 to place gay marriage bans into several state constitutions, including Utah’s. These bans were not spontaneous statements from the people about individual rights. They were, in fact, a carefully orchestrated strategy by extremely cynical persons in the Republican party. The primary goal was to drive conservative leaning voters to the polls in order to re-elect George W. Bush.
And calling it “extremely cynical” is putting it mildly. The guy whose idea it was, then-chairman of the Republican National Committee, was a closeted gay man, who has since tried to rehabilitate his image by becoming a pro-marriage equality advocate (personally, I believe he needs to apologize to the parents of every single gay kid who committed suicide or attempted suicide during the years he was active as a Republican politician, and then he should go be a religious hermit somewhere).
But I digress…
The bottom line is, it is settled law, going back 125 years, that the Constitution protects the right to marry and to choose who to marry. It isn’t a new idea, or a radical fabrication. Just as some of the people who agreed the marriage was a basic right used to also think that the word “marriage” only applied when people belonged to the same church, and some who agreed it was a basic right thought the word only applied when both people were members of the same ethnic group, there are people who believe that you should have to right to marry, but only if the two people involved are opposite gender.
Despite the sincerely held beliefs of a minority of people (and it is now a minority of U.S. citizens) that people of the same sex should not be allowed to marry, those people have failed, again and again and again, to show a single logical or verifiable reason that that should be the case. Even Supreme Court Justice Antonin Scalia, who opposes same sex marriage with a passion that borders on the disturbing, has admitted that the only reason to bar it is because some folks believe it is wrong.
And just because some people think some other people are icky is not a compelling or even substantial reason to deny them basic rights.
Utah on Friday was a big shock. Especially to me, since part of my childhood was spent in one of the most religiously conservative counties in that state… Read More…