Tag Archive for: Same Sex Marriage

Same Sex Marriage – SCOTUS Watch is On

September 30, 2014

U.S. Supreme Court Justices began private meetings yesterday, September 29, 2014, and the Justices could decide whether to take up the issue of same sex marriage rulings from 4 federal appellate court decisions. Currently, 36 states have laws allowing or prohibiting same sex marriage. Same sex marriages are allowed in 19 states and the District of Columbia. Judges in 14 states have struck down prohibitions to same sex marriage.

State Laws – Wikipedia

Five states (UT, OK, VA, IN, WI) filed Petitions for a Writ of Certiorari requesting the Supreme Court to review federal circuit decisions affirming district court decisions finding same sex marriage prohibitions unconstitutional. In addition to the states, 30 corporations, including Alcoa, Amazon, eBay, General Electric, Intel, NIKE, Pfizer, and Target, have filed requests that the Supreme Court should address same sex marriage laws and recognize same sex marriages nationwide.

Some of the recent decisions that SCOTUS could review, include:

  • Fourth Circuit – Bostic v. Schaefer, Nos. 14-1167, -1169, & -1173, 2014 U.S. App. LEXIS 14298 (4th Cir. 2014), aff’m Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014) (affirming grant of summary judgment to plaintiffs and enjoining enforcement of Virginia Marriage Laws at issue). [Petition for Writ of Certiorari filed Aug. 22, 2014]
  • Seventh Circuit – Baskin v. Bogan, Nos. 14-2386 & -2526, 2014 U.S. App. LEXIS 17294 (7th Cir. 2014) (affirming district courts in Wisconsin and Indiana which determined prohibitions on same sex marriages were unconstitutional). [Petition for Writ of Certiorari filed Sept. 9, 2014]
  • Tenth Circuit – Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), aff’m Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013) (holding that Utah Code Ann. §§ 30-1-2, 30-1-4.1, and Utah Const. art. I, § 29 which defined marriage as between a man and woman and prohibited same sex marriage were unconstitutional). [Petition for Writ of Certiorari filed Aug. 5, 2014]
  • Tenth Circuit – Bishop v. Smith, No. 14-5003 & 14-5006, 2014 U.S. App. LEXIS 13733 (10th Cir. 2014), aff’m Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014) (holding same sex couples had standing to attack constitutionality of Okla. Const. art. 2, § 35 prohibition of same sex marriage). [Petition for Writ of Certiorari filed Aug. 6, 2014]

Recently, a Louisiana district court judge bucked the current trend of finding same sex legislation unconstitutional. This decision is Robicheaux v. Caldwell, No. 13-5090, 2014 U.S. Dist. LEXIS 122528 (D. La. 2014) (granting defendants’ motion for summary judgment and holding that Louisiana, under a rational basis standard of review, has a legitimate interest in defining the meaning of marriage through democratic process). This decision echoes the sentiment of the dissenting opinion in the Kitchens v. Herbert decision.

Timeline Banning & Legalizing Same Sex Marriage

The watch is now on; we shall see how SCOTUS decides to address or duck the issue.

U.S. Supreme Court Justices Back row (left to right): Sonia Sotomayor, Stephen G. Breyer,Samuel A. Alito, and Elena Kagan. Front row (left to right):Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

Utah’s Petition for Writ of Certiorari in Kitchens v. Herbert – Same Sex Marriage

September 2014

In legal circles as in life, be careful what you wish for. The news is out that Utah has filed a Petition for a Writ of Certiorari in the same sex marriage case. Utah is requesting the United States Supreme Court to review the 10th Circuit’s ruling upholding the Utah district court’s decision that the Amendment 3 unconstitutional.

As you may know, Utah’s Amendment 3, Article I, Section 29 on [Marriage.] reads (1) Marriage consists only of the legal union between a man and a woman. (2) No other domestic union, however denominated, may be recognized as a marriage 070-416 or given the same or substantially equivalent legal effect.

In a surprising move to some, the plaintiffs in Utah’s same sex marriage case indicated that they intend to join in Utah’s request to have the 10th Circuit’s ruling reviewed. The Salt Lake Tribune reporter accurately noted: “victors rarely ask for a rematch.” The pundits have started weighing in on the chances of the United States Supreme Court accepting the case for discretionary review.

In a nutshell, the plaintiffs’ decision to join rather than oppose Utah’s petition should give the State and those who oppose same-sex marriage pause for thought. The reason that the plaintiffs have decided to join in the State’s request is that Amendment 3 and the arguments that Utah is advancing in its support represent the best case – in the plaintiffs’ view – to have the United States Supreme Court uphold the unconstitutionality of same sex marriage laws. As the articles discuss, other states and other federal circuits have similar challenges in the pipeline. For proponents of same sex marriage, Amendment 3 is one of the, if not the, least defensible laws percolating up through the federal circuits. The plaintiffs want to argue Amendment 3 is unconstitutional rather than some other state’s statute because it is an easier argument to make.

Appellate court decisions are an effective means to achieve favorable laws in many areas of the law and in industry and commerce. Savvy parties and legal advocates, however, carefully choose which cases to appeal and which to accept in defeat. Perhaps Utah will be successful, and as the pundits note, it is likely that Utah’s petition will be joined with another state or states similar to petition, meaning that the United States will be considering other same 070-460 sex marriage bans in conjunction with Amendment 3. Nonetheless, the plaintiffs’ decision to join Utah’s petition is a telling sign as to how Amendment 3 compares to other states’ laws.

Additional Articles:

http://www.sltrib.com/sltrib/news/58165963-78/court-marriage-state-utah.html.csp

http://www.sltrib.com/sltrib/politics/58263347-90/utah-marriage-state-court.html.csp

http://www.scotusblog.com/2014/08/same-sex-couples-to-support-court-review-on-marriage/.

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