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Supreme Court won’t hear anti-gay photographer case

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court won’t hear the case of New Mexico photographer who refused to shoot a same-sex wedding ceremony (Washington Blade file photo by Michael Key).

The U.S. Supreme Court announced on Monday it won’t take up a case in which a New Mexico photography business alleges its rights were violated when it landed in hot water for refusing to shoot a same-sex wedding ceremony.

In orders published Monday morning, the court listed the case, Elane Photography v. Willock, without comment as among the cases it won’t consider.

The case was brought to the Supreme Court by Elane Photography, which was found to have violated New Mexico’s anti-discrimination law for refusing to take a photo for the same-sex wedding ceremony for Vanessa Willock and Misti Collinsworth in 2006. (The wedding was only ceremonial because the incident took place before the state legalized same-sex marriage.)

Elane Photography filed lawsuit in state court, alleging that its refusal to photograph a same-sex wedding is protected on religious grounds. However, the New Mexico Supreme Court ruled against the claims, saying the businesses service can be regulated because it’s a public accommodation. Following that decision, Elane Photography asked the U.S. Supreme Court to consider the lawsuit based on First Amendment protections under the U.S. Constitution.

The court was scheduled to consider whether to take up the case during its March 21 and March 28 conference. To grant a writ certiorari, or a take up a case, at least four of the nine justices on the court must agree to consider lawsuit. It’s unknown what the vote was on denying certiorari in this case.

Had the court taken up the case, justices could have found a constitutional right across the country for individuals to discriminate against LGBT people or refuse services for same-sex weddings ceremonies on the basis of religion.

Anti-gay groups had pointed to the incident as a reason to enact laws in various states to allow individuals and business to refuse services to gay people without fear of reprisal, such as the controversial “turn away the gay” bill recently vetoed by Arizona Gov. Jan Brewer and signed into law by Mississippi Gov. Phil Bryant. Other bills along those lines are pending in numerous states — Kansas, Mississippi and Georgia — but have seen resistance going forward.


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Meet Doña Ana County Clerk, Lynn Ellins, the man who started the gay marriage equality avalanche in New Mexico.


Bullied N.M. teen commits suicide

Carlos Vigil, Suicide, Gay News, Washington Blade.

The final message written by Carlos Vigil, before the 17 year old, Los Lunas, N.M. boy committed suicide. (Screen shot via Twitter)

LOS LUNAS, N.M. — A New Mexico teenager who spoke out against bullying took his own life last weekend in a suicide.

Albuquerque television station KOAT reported on July 15 that Carlos Vigil, a Los Lunas High School student, wrote on his Twitter account on July 13 before he committed suicide that his classmates had used anti-gay slurs against him. Friends of Vigil, 17, told the media outlet he had just returned from New Mexico after speaking at an anti-bullying event in another state.

“He is not here because of bullying,” Vigil’s mother, Jacqueline Vigil, told KRQE, another Albuquerque television station.


Another ‘marriage moment’ before year’s end?

Chris Christie, New Jersey, Republican Party, Republican National Convention, gay news, Washington Blade, Neil Abercrombie, Hawaii, Democratic Party, Democratic National Convention, Greg Harris, Illinois, marriage,

Marriage equality has come to New Jersey under Gov. Chris Christie as Illinois state Rep. Greg Harris and Hawaii Gov. Neil Abercrombie seek passage of legislation. (Washington Blade photos of Christie and Abercrombie by Michael Key; photo of Greg Harris via Livestream).

The month of October 2013 could go down in history as a milestone in the marriage equality movement.

In addition to New Jersey becoming the 14th state in the country to make same-sex marriage legal, states across the country in recent days saw developments in the legislatures and the courts on marriage equality that could expand that roster of equality states by the end of the month.

James Esseks, director of the LGBT project for the American Civil Liberties Union, predicted during a conference call with reporters last week the activity on same-sex marriage this month could create another “marriage moment.”

“I think we are approaching another marriage moment this fall with potential developments in three to four states coming soon,” Esseks said.

The action on marriage comes on the heels of the filing of new litigation both in federal and state courts as well as new legislative efforts seeking marriage equality initiated after the Supreme Court ruled on the Defense of Marriage Act and California’s Proposition 8 in June.

Dan Pinello, a political scientist at the City University of New York, said the activity on marriage equality at this time is in part the result of the Supreme Court’s actions.

“The high court’s decision unleashed a floodgate of pent-up demand in the LGBT community that is finding true expression in a tidal wave of federal litigation,” Pinello said. “The ruling also prompted an increased awareness of newly recognized constitutional rights among federal judges in the lower courts. The outcomes of all this legal activity will emerge over the next several years.”

The Washington Blade has already provided coverage of developments on marriage equality in New Jersey and Michigan. Here are details on other states in recent weeks.

New Mexico

The New Mexico Supreme Court heard oral arguments on Wednesday in a case brought by all 33 New Mexico clerks, state district courts and a group of same-sex couples seeking a determination on whether state law permits same-sex marriage.

The arguments in the case, Griego v. Oliver, were divided into two portions. The first examined whether the current statutory scheme for marriage under New Mexico law already allows same-sex marriage because portions of it are gender-neutral. In the second, attorneys made their case on whether same-sex couples have a guaranteed right under the state constitution to marry regardless of what the statute says.

Representing Republican lawmakers seeking to prohibit same-sex marriage in New Mexico was attorney James Campbell, who argued that only the legislature has authority to legalize marriage rights for gay couples. Campbell maintained marriage under New Mexico law is reserved for opposite-sex couples because “those unions, unlike same-sex unions, have a natural ability to procreate.”

Campbell also argued that the court shouldn’t determine gay people should be considered a suspect class because they enjoy political power. The legalization of same-sex marriage through state legislatures as well as the Democratic Party and President Obama’s endorsement of same-sex marriage, Campbell said, is evidence of this political power.

Representing the views in court of District Judge Alan Mallot, who had previously ruled that same-sex couples can marry because of the gender-neutral language in the marriage law, was attorney Daniel Ivey-Soto.

Attorney General Gary King sent two attorneys to argue a more middle-ground argument. Assistant Attorney General Scott Fuqua argued that the current gender-neutral statute doesn’t permit same-sex marriage, but Assistant Attorney General Sean Cunniff maintained gay couples should be allowed to marry under the equal protection provisions under the state constitution.

Same-sex couples were represented by attorney Maureen Sanders, who articulated a similar view. She argued the gender-neutral law doesn’t allow gay couples to marry in New Mexico, but said “denying same-sex couples the right to marry is a violation of the New Mexico Constitution.”

Sanders also argued gay people should be considered a suspect class. The court shouldn’t look to the recent advancement in LGBT equality, she said, but the long history of discrimination the LGBT community has experienced.

Justices appeared skeptical of the idea of continuing to ban same-sex couples from marrying in New Mexico. In response to Campbell’s argument that marriage is for procreation, Chief Justice Charles Daniels noted many benefits related to marriage aren’t given to couples based on whether they’ve had children.

Despite hopes that the court would issue a ruling on marriage equality at the conclusion of the arguments, justices signaled as they began they would need more time. It’s unclear when a decision could come down, although it could be a matter of weeks.


The federal marriage equality case that is closest to the Supreme Court is also seeing movement as proponents of marriage equality — following the lead of Lambda Legal, which is responsible for the lawsuit — were set to weigh in on bringing marriage equality to Nevada.

On Oct. 18, Lambda Legal filed a 100-page brief before the U.S. Ninth Circuit Court of Appeals in the case of Sevcik v. Sandoval, a lawsuit the organization filed last year. Because the case is now before an appellate court, it’s the most advanced lawsuit that’s pending before federal courts.

The opening brief makes use of the U.S. Supreme Court decision against the Defense of Marriage Act by arguing that Nevada’s ban on same-sex marriage deprives gay couples of the crucial benefits just as the anti-gay federal law had done.

“By foreclosing same-sex couples from marriage, Nevada inflicts virtually the same collection of federal harms and deprivations on unmarried same-sex couples as DOMA previously did, since nearly all federal benefits are unavailable to unmarried couples, regardless of whether they are registered domestic partners,” the brief states.

A major component of the argument that Lambda makes against the ban on same-sex marriage is the state’s domestic partnership system is inadequate for gay couples even though it provides them the legal equivalent of marriage.

“Relegating same-sex couples to registered domestic partnership is no remedy,” the brief states. “That novel, inferior status qualifies unmarried same-sex couples for virtually no federal benefits, and instead designates same-sex couples as second-class citizens and subjects them to a host of practical difficulties and vulnerabilities.”

Accompanying the opening brief is a motion to the court for permission to file another brief no longer than 26,500 words for “an adequate exposition of the plaintiff couple’s claims.”

Friend-of-the-court briefs in favor of marriage equality were also due in the case on Wednesday. That marks the opportunity for the Obama administration to weigh in on the lawsuit by filing its own friend-of-the-court brief in the case. Lambda has previously said it would “welcome” a brief from the U.S. Justice Department in the case, but as of Tuesday had no information on whether one would be forthcoming.


All eyes will be on the Illinois Legislature in the coming days as lawmakers return for a “veto session” that will likely include a vote in the State House on marriage equality.

On Tuesday, the first day of the veto session, supporters held a “March on Springfield” to urge passage of the marriage equality legislation. Speakers at a rally held near the State Capitol Building included Gov. Pat Quinn and U.S. Sen. Richard Durbin (D-Ill.).

According to Buzzfeed, Durbin invoked the Supreme Court decision against DOMA while speaking before the estimated 2,300 attendees about passing marriage equality legislation.

“Now that the Supreme Court has ruled, I say to members of the Illinois House of Representatives, you have an awesome and historic decision,” Durbin said. “Will you offer to everyone married in our state — regardless if straight, gay, lesbian, whatever — will you offer them the same federal benefits, or will you discriminate against some.”

The regular session of the legislature concluded in May, to the dismay of supporters of same-sex marriage, without a vote on same-sex marriage legislation in the House that was earlier passed in the Senate. Gay State Rep. Greg Harris declined to bring the legislation to a vote because he believed it lacked sufficient support for passage.

Bernard Cherkasov, CEO of Equality Illinois, expressed confidence that lawmakers would act during the veto session to pass the legislation based on recent polling data from Fako & Associates in Lisle, IL, showing a 12-point margin in support of marriage equality.

“Amongst key constituencies like African Americans, there’s a 20-point spread, amongst Latino voters, there’s a 30-point spread, amongst American Catholics, there’s a 30-point spread,” Cherkasov said. “There’s strong business support. Illinoians expect lawmakers will do their job and the pass the bill.”

Because the legislature in is in a veto session, different rules apply to passing legislation. A bill that would go into effect immediately, as the Senate-passed marriage equality legislation does, would require a supermajority of 71 votes in the House for passage. But bills that go into effect at a later date need only a simple majority of 60 votes for passage. The veto session consisted of two days this week, followed by a break, and another three days when lawmakers return on Nov. 5.

Cherkasov said the bill is “definitely within striking distance” in the House for votes to passage under the lower 60-vote threshold, which he said could be arranged by amending the House bill to go into effect on June 1 and passing that bill in the Senate.

Asked whether he wants the bill to come up for a vote during the veto session regardless of whether supporters think it has the necessary votes, Cherkasov said, “I do believe that if it came to the floor that it would pass.”

Advocates are pursuing same-sex marriage legislation in Illinois as a state lawsuit seeking marriage equality in the state, Darby v. Orr, is pending in Cook County Circuit Court.


Efforts to pass same-sex marriage legislation are also underway in Hawaii, where Gov. Neil Abercrombie has called for a special session of the legislature starting Oct. 28 for the purpose of debate and passage of marriage equality.

Donald Bentz, executive director of Equality Hawaii, said he’s “optimistic” the session will lead to marriage equality in the Aloha State because of stories of “love and commitment” heard by legislators.

“Polls indicate that the majority of Hawaii’s residents support marriage equality and are buoyed by the growing list of business, faith, political and nonprofit leaders who are standing up in support of the freedom to marry,” Bentz said.

Depending upon the length of time the legislature chooses to debate the marriage bill, the special session could go as quickly as five working days or take two full weeks.

Bentz said the marriage equality legislation enjoys “a wide margin” of support in the Senate, but not so much in House. A vote tally conducted by the Honolulu Civil Beat last month found that 26 House members support the legislation. Passage of the bill in that chamber requires 27 votes.

Since the time that article was published, Bentz said State Rep. Karen Awana has gone on record as a “no” vote, but State Rep. Mark Takai has come out as a “yes” vote. That would give the bill the 27 votes necessary for passage.

Advocates are pursuing same-sex marriage legislation in Hawaii as litigation seeking marriage equality in the state, Jackson v. Abercrombie, is pending alongside the Nevada lawsuit in the Ninth Circuit.


The most recent lawsuit seeking marriage equality in the federal court system was filed on Tuesday by the National Center for Lesbian Rights on behalf of four legally married same-sex couples seeking recognition of their unions.

The lawsuit, known as Tanco v. Haslam, was filed by the National Center for Lesbian Rights and private attorneys Abby Rubenfeld, Maureen Holland, Regina Lambert along with the firm of Sherrard & Roe and is pending before the U.S. District Court in the Middle District of Tennessee.

Shannon Minter, NCLR’s legal director, said the lawsuit is a useful addition to other cases pending in 19 other states because it helps draw attention to the lack of LGBT rights in the South.

“We think it is important to bring cases that highlight the damage that is being caused by discriminatory state marriage bans across the country, including especially in southern states,” Minter said. “I am very hopeful we will obtain a positive result in this case, which would be hugely beneficial to LGBT people in Tennessee, and also be a huge boost to creating even more positive national momentum.”

One couple in the lawsuit, Dr. Valeria Tanco and Dr. Sophy Jesty, is expecting their first child this spring and is worried state law won’t recognize them both as legal parents. Another couple, Sgt. Ijpe DeKoe and Thom Kostura, married just before DeKoe was deployed for a tour of duty in Afghanistan.

The litigation is one of two cases seeking marriage equality in federal courts lying within the U.S. Sixth Circuit Court of Appeals. The other case is the federal litigation pending before the district court in Michigan.


New Mexico AG won’t defend state marriage law

Gary King, New Mexico, gay news, Washington Blade

New Mexico Attorney General Gary King won’t defend state law against a lawsuit marriage equality (Photo public domain)

The attorney general of New Mexico has become the latest chief legal authority in a state to declare he won’t defend its marriage law in court.

In a 29-page filing on Tuesday, Attorney General Gary King said New Mexico’s marriage law is unconstitutional because the state constitution’s guarantee of equal protection to citizens demands same-sex couples “be permitted to enjoy the benefits of marriage.”

“There is no doubt that Article II [Section] 18 of the New Mexico Constitution requires the state to treat equally any of its citizens seeking legal recognition of their marriage, and that any statutory scheme interfering with that guarantee is flatly unconstitutional,” King said.

King issued the opinion in the case of Hanna v. Salazar, a state lawsuit that the National Center for Lesbian Rights and the American Civil Liberties Union of New Mexico filed on behalf of Alexander Hanna and Yon Hudson, a Santa Fe couple seeking marriage rights.

Taking a line from the Obama administration’s views on the Defense of Marriage Act, King argues that same-sex couples should be permitted to marry in New Mexico because the marriage law should be subject to heightened scrutiny, or a greater assumption it’s unconstitutional. The opinion maintains gay people are a suspect class based on their history of discrimination and their political powerlessness.

King, who’s expected to run for governor, is the latest in a series of state attorneys general who have elected not to defend a state’s marriage law on the basis that it prohibits same-sex couples from marrying. Others are California Attorney General Kamala Harris and Illinois Attorney General Lisa Madigan. Most recently, Pennsylvania Attorney General Kathleen Kane said she won’t defend her state’s marriage law against a lawsuit filed by American Civil Liberties Union.

Chris Stoll, a staff attorney for the National Center for Lesbian Rights, praised King for joining other attorneys general in deciding not to defend a law prohibiting same-sex couples from marrying.

“It’s great to see Attorney General King join many state officials around the country who have decided that excluding same-sex couples from marriage is indefensible under the constitution,” Stoll said. “These laws serve only to harm same-sex couples and demean their families and children while helping no one.”

The office of New Mexico Gov. Susana Martinez, a Republican who opposes same-sex marriage, didn’t respond to multiple requests from the Washington Blade to comment on King’s position.

But King’s opinion goes further than just determining that the state’s marriage law is unconstitutional. The filing also rejects an argument that same-sex marriage is already legal in New Mexico because the marriage law is gender neutral and doesn’t explicitly ban same-sex marriage.

King says the marriage law currently doesn’t allow same-sex marriage because the New Mexico’s statutory scheme uses both gender-specific and non-gender specific terms and because other states that had similar statutes determined gay couples can’t marry.

“State courts in New York, New Jersey, Massachusetts and Minnesota have considered analogous statutory schemes and concluded a mix of gender-specific and gender-neutral terminology does not convey the right for same sex couples to marry,” King writes.

The position that same-sex marriage is already legal in New Mexico under current law was a view put forward by Santa Fe officials, including the city’s mayor, David Coss, as part of a resolution approved in March.

Further, the attorney general rejects an argument that the New Mexico Supreme Court should issue a writ of mandamus so that plaintiffs in the case can receive a marriage license before the lawsuit ends. The couple had a filed a petition for mandamus as part of the relief.

“Issuing a writ of mandamus would to Respondent would thus represent an expansion of the jurisdiction conferred by Article VI [Section 3] and presents the very real threat of overloading the court’s docket with mandamus actions concerning any dispute a party has with any local and county official: county tax assessment protests, local zoning disputes, and any other dispute concerning only county or local officials would all be fair game,” King writes.

The opinion comes on the heels of a request from NCLR and ACLU for the New Mexico Supreme Court to issue a different writ of mandamus and take up the case so that it doesn’t have to proceed through lower courts. Stoll said that petition before the court is still pending.

“It asks the court to hold that the New Mexico Constitution requires the state to permit same-sex couples to marry, and also to respect the marriages of those married in other states,” Stoll said. “That petition remains pending alongside the one the attorney responded to yesterday.”


New Mexico high court rules for marriage equality

New Mexico Supreme Court, gay news, Washington Blade, gay news

The New Mexico Supreme Court ruled in favor marriage equality. (Photo public domain)

Capping off a year of historic victories, the New Mexico high court handed down a unanimous ruling on Thursday granting same-sex couples the ability to wed in the state.

The 5-0 decision is written by Justice Edward Chavez, who concludes the current statutory scheme of the marriage law violates the Equal Protection Clause under Article II, Section 18, of the state constitution.

“We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law,” the ruling states.

The ruling, which takes effect immediately, makes New Mexico the 17th state with marriage equality on the books. It also retroactively affirms the same-sex marriages for couples who already wed after obtaining marriage licenses from county clerks in the state.

The parties in the lawsuit, Griego v. Oliver, were six same-sex couples as well as all 33 of the state’s county clerks, who sought clarification on whether the state law enabled them to deliver marriage licenses to gay couples. Representing the same-sex couples were the American Civil Liberties Union of New Mexico, the national ACLU, the National Center for Lesbian Rights, the law firm of Sutin, Thayer & Browne APC as well as New Mexico attorneys Maureen Sanders, N. Lynn Perls and J. Kate Girard.

Laura Schauer Ives, legal director for ACLU-New Mexico, said the decision represents a “historic and joyful day for New Mexico.”

“As a state, we have always strived to treat all families with dignity and respect, and today’s decision allowing loving, committed same sex couples to marry continues that tradition,” Schauer Ives said. ”The more than 1,000 same-sex couples who have already married in New Mexico can now rest certain knowing their marriages will be recognized and respected by our state.”

Camilla Taylor, National Marriage Project Director for Lambda Legal, commended her colleagues in the LGBT advocacy community for leading the way to a favorable decision on marriage equality in New Mexico.

“This beautiful unanimous decision explicitly underscores the argument we and our sister organizations have long made: denying same-sex couples the ability to marry imposes significant emotional and dignitary harm and is discrimination, pure and simple,” Taylor said.

New Mexico Gov. Suzanne Martinez, who opposes same-sex marriage but didn’t actively defend the marriage law, said in a statement she’ll abide by decision, but wish it were settled differently.

“My personal views on this issue are well-known, and I’m confident that most New Mexicans believe, like I do, that it should have been settled by a vote of the people,” Martinez said. “Instead, the Supreme Court stepped in and rendered their decision. While there will surely be intense debate about this decision moving forward, I encourage New Mexicans to continue to respect one another in their discourse, as this is an important issue for many New Mexicans on both sides.”

White House Press Secretary Jay Carney said immediate after the ruling he had no “official reaction,” but offered some thoughts.

“I would say that we welcome that ruling, and this is another example of the extraordinary progress that’s been made when it comes to equal rights for LGBT Americans in this country,” Carney said.

Justices make use of the June decision from the U.S. Supreme Court against Section 3 of the Defense of Marriage Act, noting the decision leaves marriage equality as the only option for same-sex couples to receive the federal benefits and for the state to avoid a federal challenge to its state law.

“Interpreting our statutes to authorize committed same-gender couples to enter into civil marriage will grant them the rights and privileges available to opposite-gender married couples in approximately one thousand statutes and federal regulations that refer to a person’s marital status, thereby avoiding a constitutional challenge on that basis,” the decision states.

The decision is the culmination of a drawn-out process over the course of 2013. It started in March with Santa Fe Mayor David Coss introducing a resolution, later approved the city council, saying marriage equality was already legal in New Mexico because of the gender-neutral construction of some portions of state law. That’s the conclusion Judge Alan Malott reached in a decision earlier this year extending marriage equality to Bernalillo and Santa Fe counties.

Notably, the court rejects in its decision the notion that marriage is already legal under the current state statutory scheme, observing that the legislature has passed laws, such as one changing the marriage application forms in 1961, defining marriage in opposite-sex terms.

“Thus, we conclude that a mix of gender-neutral and gender-specific terminology in the domestic relations statutes does not mean that the Legislature intended to authorize marriage between same-gender couples,” the decision states. “On the contrary, we conclude that the statutory scheme reflects a legislative intent to prohibit same-gender marriages.”

LGBT groups followed up with the Santa Fe resolution by filing a lawsuit on behalf of same-sex couples seeking to wed in New Mexico. Attorney General Gary King issued an opinion saying he wouldn’t defend the marriage law against a legal challenge in court on the basis that the law was unconstitutional.

Prior to the ruling from the New Mexico Supreme Court, a total of eight county clerks were already distributing marriage licenses to same-sex couples either through court order as a result of the litigation or on their own volition based on their interpretation of state law. An estimated 58.5 percent of New Mexico’s population had access to marriage equality prior to the Supreme Court ruling.

Attorney General King and plaintiffs in the case were pushing the idea that gays and lesbians are a suspect class and laws related to sexual orientation should be subject to heightened scrutiny — a idea with which New Mexico Supreme Court concurs because of the history of persecution faced by the LGBT community.

“Therefore, we conclude that intermediate scrutiny must be applied in this case because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination,” the ruling states.

It’s possible the opponents of the decision could place a state constitutional amendment on the ballot in 2014 that would rescind the decision, but only by legislative referral, not by initiative petition. It’s unclear at this time what the legislature will do. Democrats hold strong majorities in both chambers of the New Mexico legislature.

Brian Brown, president of the anti-gay National Organization for Marriage, promised in a statement to pursue action to protect people in New Mexico who don’t support same-sex marriage.

“Once again, activists judges have thrown out the historic legal understanding of marriage in New Mexico,” Brown said. “This is a continuation of a very dangerous rush towards silencing people of faith who simply believe marriage to be the union of one man and one woman. The National Organization for Marriage will do everything in its power to protect believers of true marriage in New Mexico and around the nation from the fallout of radical judges who deny the truth of marriage.”

Marc Solomon, national campaign director of Freedom to Marry, said his organization is prepared to fight to make sure the New Mexico decision stays in place.

“We have a campaign that we played a lead role in setting up and are on the board of, New Mexico Unites for Marriage, to protect the decision and defeat any efforts to amend the constitution,” Solomon said. “We’ve hired a campaign manager and there’s a field and media team on the ground, lobbyists, and more. It’s cochaired by former Republican Gov. Gary Johnson and Congresswoman Michelle Lujan Grisham.”


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