October is LGBT History Month, and today is the 26th anniversary of Coming Out Day, the internationally recognized day of awareness and celebration of people coming out as gay, lesbian, bisexual, transgender or queer. Thanks to all the brave people willing to openly declare their sexual preference and gender identity, LGBT rights has progressed more rapidly in the past decade than any other social issue. This past week, marriage equality rights have exploded throughout the nation after the Supreme Court refused to take any of the marriage equality cases brought to them from Indiana, Oklahoma, Virginia, Wisconsin, and Utah. That brought the total of states with legalized same-sex marriage to 24. Below are judicial decisions as of midday on October 11. Legalized same-sex marriage changes hour-by-hour, and some of this information can be outdated.
Because each circuit court can set a precedent for all the states within its jurisdiction, all the other states within the 4th, 7th, and 10th Circuit Courts benefit from the Supreme Court’s refusal to hear the five cases from these courts. Those six states are Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming. That action would bring the total to 30 states recognized same-sex marriage.
The 9th Circuit Court legalized marriage in Nevada and Idaho after the Supreme Court’s decision. Idaho’s administration plans to file briefs with the 9th Circuit to ask for a full hearing from the 10 panel court. The Supreme Court turned down the state’s appeal after Supreme Court Justice Anthony Kennedy briefly blocked same-sex marriage in Idaho until he changed his mind a day later. Yesterday’s 9th Circuit Court ruling about Hawaii ended a pending appeal on same-sex marriage by declaring it moot. That would make the grand total of states where same-sex couples might get legally get married to 35. Lawsuits are pending in the district’s states of Alaska, Arizona, and Montana.
In Arizona, U.S. District Court Judge John Sedwick ordered the parties in the Arizona same-sex marriage cases before him in the U.S. District Court for Arizona to submit their briefs by October 16. He has issued an order stating that the 9th Circuit Court ruling on Nevada and Idaho also applies to Arizona.
The 6th Circuit Court has not ruled after early August arguments although two of the three judges were leaning against marriage equality. Federal judges in this circuit court region struck down bans in Kentucky, Michigan, Ohio, and Tennessee.
The conservative 5th Circuit will hear a case later this year after a federal judge in New Orleans upheld the ban in Louisiana although a state judge ruled against the state law. In the same district, Mississippi had refused to divorce a lesbian couple because the state does not recognize their marriage. In Texas, on the other hand, a federal judge invalidated the state’s ban in February. The couple wants the case settled before their second child is born so that they can get married. If either the 5th or 6th Circuit Court rules in favor of banning marriage equality, the Supreme Court may feel it has to step in.
In the 8th Circuit, a state court judge invalidated the Arkansas ban, and one in Missouri overturned part of the ban, requiring state officials to recognize same-sex marriages performed in other states. Nebraska’s Supreme Court rejected a challenge to the state’s ban on procedural reason. Cases from North and South Dakota are pending in federal courts.
In the 11th Circuit, both Alabama and Georgia have cases pending in federal court, and a Florida appeals court was asked to delay a ruling until after the Supreme Court had decided.
As with other Supreme Court rulings, some states tend to drag their heels and refuse to change state laws to conform to these decisions. Colorado is already issuing marriage licenses, and Virginia is speedily preparing to do the same. On the other hand, Utah has claimed that it cannot implement same-sex marriage until the state’s marriage laws are re-written.
South Carolina, impacted by the 4th Circuit’s ruling against bans in its district, said that it will keep the bans in force until the courts rule specifically on South Carolina’s law. The 4th Circuit is expected to soon issue a mandate. In the meantime, a clerk in Charleston (SC) accepted a marriage license application by Charleston County Councilwoman Colleen Condon and Nichols Bleckley, making the state’s only out lawmaker and her partner among the first to receive a marriage license in the Palmetto State.
GOP Govs. Sam Brownback (Kansas) and Matt Meade (Wyoming) agree with South Carolina Gov. Nikki Haley in refusing to allow same-sex weddings. A Kansas state judge, however, ordered the Johnson County Clerk to begin issuing marriage licenses to same-sex couples. Judge Kevin Moriarty’s order on Wednesday was to “provide guidance and prevent confusion” and said that “any case from Kansas … would be bound by the Tenth Circuit decision.” Kansas law also sanctions clerks and judges who issue marriage licenses to same-sex couples, and Moriarty declared that “our district court clerks and judges are entitled to protection from laws that are unconstitutional.” Citizens should be free, he wrote, “to exercise their constitutional rights” and officials should likewise be “free of any ambiguity or inconsistency in the administration of justice, including the issuance of marriage licenses.” Confusion still reigns, thanks to the state Supreme Court, which stopped marriage licenses for same-sex couples after one couple was able to obtain one. A hearing in that court is set for Nov. 6.
In North Carolina, U.S. District Court Judge William Osteen Jr. gave Attorney General Roy Cooper and attorneys representing same-sex couples until 3 p.m. Monday to respond to requests by state legislative leaders to intervene. Earlier this year, Cooper, a Democrat, announced that his office would no longer defend North Carolina’s ban on same-sex marriages after a federal circuit court found a similar ban in Virginia was unconstitutional. In North Carolina’s Western District, however, U.S. District Court Judge Max O. Cogburn, Jr. issued an order late Friday afternoon striking down the state’s anti-LGBT constitutional amendment, and Wake County offices stayed open late last night. Same-sex couples are marrying in North Carolina, and more county clerks will issue marriage license to same-sex couples—unless, of course, another ruling comes along.
As of today, the number of marriage equality states officially reached 29 after same-sex couples began marrying in both Nevada and West Virginia. On Thursday afternoon, WV Attorney General Patrick Morrisey (R) said he would no longer defend the ban, and Gov. Earl Ray Tomblin (D) in turn told state agencies to start the marriage process, using existing marriage license forms until there are variations. Procedural requirements in Nevada needed an injunction from a district court judge, also issued Thursday after a Mormon judge recused himself and was replaced by another judge who issued the injunction.
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 an additional 8 states, judges have issued rulings in favor of the freedom to marry, with many of these rulings now stayed as they proceed to appellate courts: In AR, FL, KY, MI, and TX, judges have struck down marriage bans, and in LA, OH, and TN, judges have issued more limited pro-marriage rulings.
In MO, the marriages of same-sex couples legally performed in other states are respected.
Much more information for each state is available here.
In his ruling striking down marriage equality bans in Idaho and Nevada, Judge Stephen Reinhardt referred to decisions mandating racial integrations, women on juries, and gays’ serving in the military when he wrote:
“The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.”
The latest argument against banning marriage equality will certainly have the far-right further gnashing their teeth. In an additional concurring opinion to the 9th Circuit Court’s ruling, Judge Marsha Berzon argues that same-sex-marriage bans also constitute sex discrimination and therefore violate Equal Protection on additional grounds. Although this argument has failed in the past, Berzon posits that laws against same-sex couples are based on sex stereotypes of a “real man” and a “real woman.” As Alexander Brodsky and Elizabeth Deutsch wrote, “Long before marriage equality was hip, Adrienne Rich spoke of “compulsory heterosexuality”—part of being a good woman is loving men. If courts accept this argument, LGBT rights will go far beyond marriage without the laborious wait for Congress to move into the 21st century. It refuses to pass the Employment Nondiscrimination Act (ENDA), but Title VII could end job discrimination. The same goes for housing, business services, and the over 1,000 laws discriminating against LGBT people.
All the changes during the past week bode well for the progress of LGBT rights in the United States unless the five conservative Supreme Court judges reverse this forward thinking.