2013 a big year for Marriage Equality – 2014 could be a bigger year

Posted by AzBlueMeanie:

Who would have ever thought that marriage equality for gays and lesbians would be the dominant news story today? The Tenth Circuit Court of Appeals has again rejected the state of Utah's request for an emergency stay of the U.S. District Court decision in favor of marriage equality in Utah. The New York Times reports, Appeals Court Refuses to Halt Same-Sex Marriages in Utah:

A federal appeals court cleared the way on Tuesday for same-sex marriages to continue across Utah, denying an emergency request from state officials to halt a flood of unions that began after a lower-court judge declared the state’s ban on same-sex marriage to be unconstitutional.

Advocates of same-sex marriage cheered the ruling from the United States Court of Appeals for the 10th Circuit, in Denver, while the Utah attorney general’s office said it would ask the United States Supreme Court to temporarily halt same-sex marriages in the state until the legal battles could be resolved.

Lyle Denniston at SCOTUSblog reports, Utah marriage case on way to the Court:

In a two-page order, a two-judge motions panel of the Tenth Circuit found that a stay was not warranted, expressing some uncertainty that the state’s position against same-sex marriage would ultimately prevail in court. The judges set the case (Kitchen v. Herbert (Circuit docket 13-4178)) for expedited review, with a briefing schedule to be issued shortly.

A request to the Supreme Court for a delay of the ruling by U.S. District Judge Robert J. Shelby of Salt Lake City would go first to Justice Sonia Sotomayor, who is the Circuit Justice for the geographic area that includes Utah.  She would have the option to act alone or to refer the issue to her colleagues.

The state’s planned plea to the Supreme Court would be the first time the issue of same-sex marriage had returned to the Justices since their rulings in late June — one of which, United States v. Windsor, provided the basic constitutional reasoning that Judge Shelby applied in nullifying Utah’s state constitutional amendment against same-sex marriages — even though the Windsor decision was not a ruling on state authority to bar such unions.

It could be a significant test of whether the Court is ready to confront the power of states to ban same-sex marriages — an issue they explicitly did not resolve in those June decisions.

The New York Times also reports today, Indiana Finds It’s Not So Easy to Buck the Gay Marriage Trend:

Dominated by Republicans and steeped in traditional values, Indiana seemed among the least likely places to become a battleground in the nation’s debate over same-sex marriage when the legislature overwhelmingly chose in 2011 to push forward a state constitutional amendment barring gay couples from marrying.

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[S]uddenly Indiana, where lawmakers in the coming weeks are expected to call for the second vote needed to put a ban before voters in the fall elections, is now in a far more tense, unpredictable and closely watched spot than anyone here had imagined — a test case in whether a state will impose new limits on same-sex marriage in this fast-moving political and legal environment.

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Supporters of same-sex marriage, however, are pouring money and effort into defeating the measure in Indiana, a possibility that seemed unthinkable not long ago but one that advocates now insist is conceivable. They say victory in a conservative place like Indiana would be a turning point in a fight that has largely been waged in more predictable, left-leaning states or in the courts. “That would send a clear message to opponents of marriage equality that it’s time to be done fighting this battle,” said Sarah Warbelow, state legislative director of the Human Rights Campaign.

A limited court ruling next door in Ohio occured on Monday. Same-Sex-Marriage Supporters Applaud Ohio and Utah Rulings:

In Ohio, Judge Timothy S. Black of Federal District Court ruled in the case of two couples who had married in states where same-sex unions are legal before the death of one of the spouses. Their survivors sought to be recognized as widowers on the Ohio death certificates.

In ordering that death certificates reflect their marital status, the judge cited the June decision by the Supreme Court that a federal law denying recognition of valid same-sex marriages was a denial of the Constitution’s guarantee of equal protection. The Ohio judge noted that besides the dignity of the surviving spouse, his ruling gave a same-sex widow or widower rights under state law to favorable treatment in life insurance payouts, survivors’ benefits and real estate transfers.

A spokeswoman for Ohio’s attorney general, Mike DeWine, said he would appeal the ruling to the United States Court of Appeals for the Sixth Circuit.

The Ohio decision did not go as far as the ruling in Utah, but experts said both were among federal cases around the country likely to return the issue of same-sex marriage to the Supreme Court.

Lyle Denniston at SCOTUSblog reported Windsor expanded in Ohio ruling:

Expanding the meaning of the Supreme Court’s decision in June in United States v. Windsor, a federal judge in Cincinnati ruled on Monday that states have a constitutional duty to accept the marriages of same-sex couples performed legally in other states.  U.S. District Judge Timothy S. Black said the Windsor ruling took away from states the power to nullify valid marriages, although state laws were not at issue in that case.

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Monday’s ruling, in the case of Obergefell v.Wymyslo, “flows from the Windsor decision,” the judge wrote.  Now, he said, lower courts are moving to apply that ruling, “as they must, and the question is presented whether a state can do what the federal government cannot — e.g., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004 [in Ohio]).  Under the Constitution of the United States, the answer is no.”

The opinion added: “The fact that each state has the exclusive right to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages from other co-equal states absent due process of law.”

Judge Black found no compelling state interest to justify Ohio’s ban on same-sex marriage as a basis for refusing to recognize valid marriages from elsewhere.

The Washington Post reports today, Gay marriage fight shifts to federal courts, 2014 set to be tipping-point year:

The battle over same-sex marriage is shifting to federal courts.

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Judges in 17 states are considering at least 31 cases seeking to allow gays and lesbians to marry, according to a private count kept by one LGBT group and shared with The Washington Post. Same-sex couples in states ranging from deep red Arkansas, Louisiana and Mississippi to purple North Carolina, Nevada and Virginia are suing, many citing this year’s Supreme Court decisions, which other federal judges have recognized.

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[B]arring another decision in the next week, 2013 will end with 18 states and the District of Columbia recognizing same-sex marriage in some form — states that account for 228 electoral votes and 123 million people, nearly 40 percent of the U.S. population. Oregon, Nevada, Wisconsin and Colorado, which account for another 32 electoral votes and 17.5 million residents, recognize civil unions, domestic partnerships or other legal status for same-sex couples.

With so many cases before federal judges, it is likely that 2014 will be the year in which states accounting for a majority of Americans will allow gay marriage.

Should the U.S. Supreme Court agree to hear either the case now in the Tenth Circuit from Utah and/or the case now in the Ninth Circuit from Nevada, it is possible that state bans on marriage equality will be struck down as unconstitutional in violation of the equal protection and due process clauses of the 14th Amendment by this time next year.