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Gay juror decision bodes well for marriage cases: experts

National LGBT Bar Association, Gay News, Washington Blade

The Ninth Circuit Court of Appeals applied heightened scrutiny in ruling against discrimination against gay jurors (image via wikimedia).

A ruling handed down by a federal appeals court on Tuesday in favor of LGBT non-discrimination in jury selection bodes well for the success of marriage equality litigation, according to legal experts who spoke to the Washington Blade.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said the decision is important in and of itself, but also because of its impact on the case pending before the same court against Nevada’s ban on same-sex marriage.

“The ruling will make it even more difficult for Nevada’s marriage law to withstand the current challenge to it because heightened scrutiny means that the government will have to identify an ‘important’ state interest if it wants to continue to exclude gay and lesbian couples from marriage,” Goldberg said.

On Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals determined the trial judge erred in allowing one litigant to remove a juror because of his sexual orientation, remanding the case for a new trial.

The case — Glaxo Smith Kline v. Abbott Laboratories — is the result of antitrust, contracts and business tort claims filed against the company for quadrupling the price of its protease inhibitor booster drug used by people with HIV. During jury selection, Abbott used its first peremptory challenge to strike a prospective juror after learning he was gay.

Writing for the majority, U.S. District Judge Roy Reinhardt ruled that Abbott “unconstitutionally used a peremptory strike” to exclude Juror B from the case because of his sexual orientation, but goes further by saying the court must apply heightened scrutiny in its ruling in the wake of the U.S. Supreme Court decision against the Defense of Marriage Act.

“Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” Reinhardt writes. “In short, Windsor requires heightened scrutiny.”

It’s not the first time that an appellate court has applied heightened scrutiny, or a greater assumption a law is unconstitutional, when considering a case related to sexual orientation. The U.S. Second Circuit Court of Appeals applied that standard when ruling in favor of Edith Windsor in her case against DOMA before that lawsuit came before the Supreme Court.

Several federal district courts have made similar rulings, as have the state high courts of California, Iowa, Connecticut and New Mexico. The view that laws related to sexual orientation should be subject to heightened scrutiny is also shared by the Obama administration.

But the decision in the Ninth Circuit is significant because it creates precedent within that jurisdiction to apply heightened scrutiny in the numerous cases before it involving gay people and may encourage courts outside the circuit to do the same.

Doug NeJaime, a law professor at the University of California, Irvine, said the court application of heightened scrutiny to its decision “is very significant.”

“This Ninth Circuit ruling will likely encourage other courts to engage with the issue of whether Windsor suggests some heightened form of scrutiny,” NeJaime said. “More concretely, it will directly influence the challenge to Nevada’s marriage law currently before the Ninth Circuit; whether sexual orientation merits heightened scrutiny for federal equal protection purposes has been an issue throughout that case, and the district court had decided that it did not.”

Still, NeJaime said the Ninth Circuit’s decision to draw on the DOMA decision to apply heightened scrutiny “will likely be proven controversial” because U.S. Associate Justice Anthony Kennedy never explicitly invoked the level of scrutiny in his ruling.

The high-profile case involving sexual orientation before the Ninth Circuit is Sevick v. Sandoval, the challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage.

Jon Davidson, Lambda’s legal director, said the ruling will have “a very significant impact” on the court’s examination of the Nevada marriage case.

“The Ninth Circuit’s ruling that sexual orientation discrimination must be given heightened scrutiny is further proof of the progress we are making in convincing courts that the Constitution affords LGBT people meaningful protections against government-imposed inequality,” Davidson said.

Opponents of the case, known as the Coalition for the Protection of Marriage, filed their brief before the Ninth Circuit on the same day as the jury selection ruling, arguing in an untimely manner that “there is no legal or factual basis for deploying ‘heightened scrutiny’ in this case.”

But the Nevada marriage case isn’t the only lawsuit pending before the Ninth Circuit. Other cases in the jurisdiction are the recently filed challenge against Arizona’s ban on same-sex marriage and the case against Oregon’s ban, which is currently before  gay U.S. District Judge Michael McShane.

Additionally, the challenge against the Arizona law signed by Gov. Jan Brewer rescinding domestic partner benefits for gay state employees is also before the Ninth Circuit. The court’s use of heightened scrutiny in the juror case could influence the decision in any of these cases.

Davidson added the application of heightened scrutiny in the juror case also has implications on gay government workers seeking relief if they feel they’ve faced discrimination on the job.

“If any federal, state, or local government agency or official in any of the nine states in the Ninth Circuit discriminates against someone based on their sexual orientation, they will have the burden of demonstrating that their action substantially furthers an important and legitimate government goal,” Davidson said. “They will not be able to rely on hypothetical or after the fact justifications.”

Despite the celebration over the standard of review in the case, LGBT advocates are also celebrating the ruling in its own right for establishing non-discrimination against gay people in the juror selection process.

D’Arcy Kemnitz, executive director of the National LGBT Bar Association, commended the Ninth Circuit.

“Jury service is a fundamental civic duty,” Kemnitz said. “LGBT people are proud to serve the courts when summoned. While some might jest at jury duty, in fact the courts demand through a subpoena that a person suspends their usual daily activity to be part of the rule of law.”

Legislation known as the Jury ACCESS Act, which would institute a rule of non-discrimination for gay jurors in federal courts, is also pending before Congress. Last year, it was incorporated into the Senate version of the fiscal year 2014 financial services appropriations bill, but it’s technically no longer pending because Congress passed omnibus spending legislation instead.

Sen. Jeanne Shaheen (D-N.H.), chief sponsor of the legislation, commended the Ninth Circuit for issuing the ruling, but said more action is needed from Congress.

“There is no place for discrimination in our judicial system, and it should be the right and obligation of every citizen to sit on a jury,” Shaheen said. “The appellate court’s ruling is an important step, but I will continue working to make sure no American can be excluded from this important civil responsibility on the basis of their sexual orientation or gender identity.”


Lawsuit challenges Alabama same-sex marriage ban

David Fancher, Paul Hard, SPLC, Southern Poverty Law Center, Alabama, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

David Fancher (on left) and Paul Hard at their wedding. (Photo courtesy of the Southern Poverty Law Center)

The Southern Poverty Law Center on Thursday filed a federal lawsuit that challenges Alabama’s same-sex marriage ban.

The organization, which is based in Montgomery, Ala., brought the case on behalf of Paul Hard, who married Charles David Fancher in Massachusetts in May 2011. Fancher died in a car accident less than three months later after he hit an overturned UPS truck on I-65 outside of Montgomery – a wrongful death lawsuit was later filed in his name.

Alabama law says a surviving spouse is entitled to receive the majority of any settlement money, but the state does not recognize Hard and Fancher’s wedding because voters in 2006 overwhelmingly approved a constitutional amendment defining marriage as between a man and a woman.

“They create two, unequal, classes of married couples living in the State of Alabama: those married couples who enjoy all the protections afforded to people who are married, including the right of a surviving spouse to recover proceeds in a wrongful death action, and those married couples, like Paul and David, who do not,” reads the lawsuit. “The obvious purpose of the Sanctity Laws is to punish and demean citizens who have entered one type of marriage, but not the other.

Alabama is among the 32 states that ban same-sex marriage.

Out state Rep. Patricia Todd (D-Birmingham), who married her long-time partner in Massachusetts in 2013, last November introduced a bill that would have repealed Alabama’s gay nuptials ban.

Six gay and lesbian couples in neighboring Florida last month filed a lawsuit challenging their state’s same-sex marriage ban.

The American Civil Liberties Union and the ACLU of Missouri on Wednesday filed a lawsuit in state court on behalf of eight same-sex couples who are seeking recognition of their marriages legally performed in other jurisdictions. The Forum for Equality Louisiana on the same day filed an identical lawsuit in a federal court in New Orleans on behalf of four gay and lesbian couples who legally married outside the Pelican State.

A federal judge on Wednesday ruled Kentucky must recognize same-sex marriages legally performed in other jurisdictions.

A judge last month found Oklahoma’s gay nuptials ban unconstitutional. The U.S. Supreme Court less than two weeks earlier blocked any future same-sex marriages from taking place in Utah pending the outcome of an appeal of U.S. District Court Judge Robert Shelby’s December ruling that struck down the state’s gay nuptials ban.

Nevada Attorney General Catherine Cortez Masto on Feb. 10 announced she will no longer defend her state’s same-sex marriage ban in court.

A ruling in a federal lawsuit that challenges Virginia’s gay nuptials ban is expected in the coming days.

Alabama Chief Justice Roy Moore last week urged all 50 state governors to allow their legislatures to call for a convention to ratify an amendment to the U.S. Constitution that would define marriage as “the union of one man and one woman.” Gov. Robert Bentley last September said he would not allow the Alabama National Guard to extend benefits to members’ same-sex partners in spite of a directive the Pentagon issued after the U.S. Supreme Court ruled a portion of the Defense of Marriage Act is unconstitutional.

“The moral foundation of our country is under attack,” Moore told the Associated Press.

Attorney General Eric Holder on Feb. 10 announced the Justice Department will now recognize same-sex marriages in civil and criminal cases and extend full benefits to gay spouses of police officers and other public safety personnel killed while on duty. This new policy applies to Alabama and the 31 other states that currently do not recognize same-sex marriage.


Oregon GOP backs marriage referendum

Oregon, Mt. Hood, Mirror Lake, referendum, gay news, Washington Blade

Mount Hood in Oregon. (Photo public domain)

SEASIDE, Ore. — Republicans who attended an annual GOP conference on March 8 voted to endorse a proposed referendum on whether marriage should be extended to same-sex couples in the state.

The Oregonian reported those who attended the annual Dorchester Conference voted 233-162 in favor of the referendum.

“We’re not a threat to the institution [of marriage], believe me,” gay Portland attorney Jerry Keene told the newspaper. “If we’re allowed access to the institution, we’ll take care of it.”

Oregon United for Marriage maintains it has enough signatures to place the issue on the November ballot. Attorney General Ellen Rosenblum last month announced she will not defend the state’s same-sex marriage ban that voters approved in 2004.


Anti-LGBT group: Va. marriage ban is ‘rational’

Josh Duggar, Victoria Cobb, Family Foundation of Virginia, Allison Howard, Concerned Women for America, E.W. Jackson, Norfolk, gay marriage, same-sex marriage, marriage equality, Virginia, gay news, Washington Blade

Anti-LGBT groups on April 4 filed 21 briefs with the 4th U.S. Circuit Court of Appeals. (Photo courtesy of the Family Foundation of Virginia)

Anti-LGBT organizations on April 4 filed 21 amicus briefs with the 4th U.S. Circuit Court of Appeals in a lawsuit challenging Virginia’s constitutional amendment that defines marriage as between a man and a woman.

“There is a rational and even compelling justification for the Virginia amendment and statutes,” wrote Mathew Staver in a brief he filed with the federal appeals court in Richmond, Va., on behalf of the Liberty Counsel and the American College of Pediatricians. “The inherent harms of living a homosexual lifestyle and the inherent benefits of encouraging intact biological families for the rearing of children.”

The Liberty Counsel and the American College of Pediatricians told the 4th Circuit the “lack of exclusivity and permanence in same-sex relationships” and “the irresponsible sexual practices associated therewith greatly affect the health, safety and welfare of homosexuals.”

Staver in his brief included a statistic that says gay and bisexual men are roughly 17 times more likely to develop anal cancer than “men who only have sex with women.” He also references Mark Regnerus’ disputed study that suggests children who are raised by their mother and father are better off than those who grow up with same-sex parents.

Frank D. Mylar, a Salt Lake City lawyer, argues in a brief he filed on behalf of the American Leadership Fund and 19 professors and scholars that marriage between a man and a woman is necessary for the procreation of children.

“This social institution is rooted in deep realities and oriented towards a purpose uniquely tied to its nature as the union of the sexes – a pairing that alone may naturally create a child and provide that child with a social context that accounts for his or her biological origins,” wrote Mylar.

Mylar also dismissed comparisons that U.S. District Judge Arenda L. Wright Allen – who struck down the commonwealth’s same-sex marriage ban in February – and others have made between this case and the U.S. Supreme Court’s landmark Loving v. Virginia ruling in 1967 that found interracial marriage prohibitions unconstitutional.

“[Mildred] Loving, who, as per her name, seemed a goodhearted soul, equated the struggle for gay marriage with her own struggle for interracial marriage,” writes David Boyle, a lawyer from Long Beach, Calif., in a brief he filed with the 4th Circuit. “The judge in Bostic uses this idea… to justify mandating gay marriage in the Old Dominion. However, this well-intentioned idea lacks logical foundation.”

Anthony R. Picarello, Jr., writes in a brief he filed with the federal appeals court on behalf of the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Church of Jesus Christ of Latter-day Saints, the Ethics and Religious Liberty Commission of the Southern Baptist Convention and the Lutheran Church-Missouri Synod that marriage as between a man and a woman is a “time-honored tradition.”

“We support the husband-wife definition of marriage because we believe it is right and good for children, families and societies,” said Picarello.

Steven W. Fitschen of the National Legal Foundation of Virginia Beach, Va., which filed a brief on behalf of Concerned Women for America, argues “homosexuals and lesbians are not politically powerless.” He notes recent polls indicate a majority of Virginians now support marriage rights for same-sex couples and the first executive order that Gov. Terry McAuliffe signed as governor bans discrimination against LGBT state employees.

The brief also references a Washington Blade article on the 2011 election of gay state Sen. Adam Ebbin (D-Alexandria) to the Virginia Senate.

“The rapid shift in voter opinion evinces that homosexuals and lesbians do not need to shortcut the political process through judicial intervention,” writes Fitschen.

Attorneys general from Alabama; Alaska; Colorado; Idaho; Louisiana; Montana; South Carolina; South Dakota; Utah and Wyoming, West Virginia Attorney General Patrick Morrison; the Virginia Catholic Conference, the Eagle Forum Education and Legal Defense Fund, the Becket Fund for Religious Liberty, the Family Research Council, former National Organization for Marriage Chair Robert George and Ryan Anderson of the Witherspoon Institute are among those who also filed briefs with the 4th Circuit.

Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Chesterfield last year challenged the commonwealth’s marriage amendment after the U.S. Supreme Court struck down a portion of the Defense of Marriage Act. The American Civil Liberties Union and Lambda Legal – which filed a separate lawsuit last summer on behalf of Victoria Kidd and Christy Berghoff of Winchester and Joanne Harris and Jessica Duff of Staunton – have been allowed to join the Bostic case.

U.S. District Judge Michael F. Urbanski in January certified the ACLU and Lambda Legal lawsuit as a class action.

Attorney General Mark Herring earlier this year announced he would not defend the marriage amendment. He said on April 5 during the annual Equality Virginia Commonwealth Dinner in Richmond that same-sex couples are not seeking “special treatment” in the state.

The 4th Circuit on May 13 is scheduled to begin hearing oral arguments in the Bostic case.

The Alliance Defending Freedom argued in a brief it filed late last month on behalf of Prince William County Circuit Court Clerk Michèle McQuigg that Virginia’s same-sex marriage ban is necessary for the “procreation” of children. Norfolk Circuit Court Clerk George Schaefer, III, has also challenged Allen’s ruling.

Staver and Eric Rassbach of the Becket Fund for Religious Liberty both refer to a New Mexico photographer who challenged a New Mexico Supreme Court ruling that said she violated the state’s anti-discrimination law when she refused to photograph a same-sex couple’s wedding ceremony because of her religious beliefs.

The U.S. Supreme Court on Monday announced it will not hear the case.


Judge strikes down Arkansas marriage ban

gavel, law, court, gay news, Washington Blade

An Arkansas judge has struck down the state’s same-sex marriage ban (Photo by Bigstock).

A circuit judge in Arkansas has struck down the state’s laws banning on same-sex marriage, citing the 1967 decision by the U.S. Supreme Court that eliminated bans on interracial marriage throughout the country.

In a 13-page decision, Judge Chris Piazza ruled that Arkansas laws barring same-sex couples from marriage violate the Fourteenth Amendment of the U.S. Constitution.

Piazza recalls the U.S. Supreme Court decision in Loving v. Virginia striking down bans on interracial marriage throughout the country more than 40 years ago, predicting the same thing will happen with bans on same-sex marriage.

“It has been over forty years since Mildred Loving was given the right to marry the person of her choice,” Piazza writes. “The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.”

In his determination that Arkansas laws barring same-sex marriage have no rational basis, Piazza rejects the notion that religious objections are sufficient to bar gay couples from marriage.

“Procreation is not a prerequisite in Arkansas for a marriage license.” Piazza writes. “Opposite-sex couples may choose not to have children or they may be infertile, and certainly we are beyond trying to protect the gene pool. A marriage license is a civil document and is not, nor can it be, based upon any particular faith. Same-sex couples are a morally disliked minority and the constitutional amendment to ban same-sex marriages is driven by animus rather than a rational basis. This violates the United States Constitution.”

No explicit stay is found within the ruling. According to the Arkansas Times, Pulaski County Clerk Larry Crane said he’d be ready with software to issue gender-netural marriage licenses Monday morning.

The case was filed in state court and the decision was handed down from the Pulaski County Circuit Court, which doesn’t have the final word on the matter. The decision can be appealed to the Arkansas Supreme Court.

On Saturday, Arkansas Attorney General Dustin McDaniel announced that while he supports same-sex marriage, he’ll continue to defend Arkansas’ anti-gay marriage laws in court.

Aaron Sadler, a McDaniel spokesperson, said his boss will appeal the decision to the Arkansas Supreme Court and seek a stay preventing any same-sex marriages from occurring during the appeals process.

“We respect the Court’s decision, but, in keeping with the Attorney General’s obligation to defend the state constitution, we will appeal,” Sadler said. “We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.”

The lawsuit, Wright v. Arkansas, was filed on July 1 by private attorneys on behalf of 20 same-sex couples in Arkansas. Twelve of the couples are seeking to marry in Arkansas; six are seeking to have their marriage recognized in the state. A hearing in the case took place on April 4.

The timing of the judge’s ruling wasn’t a surprise. The clerk for Pulaski County Circuit Court indicated in a May 1 filing that the judge expected to hand down a ruling by May 9.

Evan Wolfson, president of Freedom to Marry, praised the circuit court for issuing the latest court decision in favor of marriage equality.

“Judge Piazza held that there is no good reason for discriminating against couples and their loved ones just because they are gay,” Wolfson said. “With nearly 70 marriage cases now making their way through the courts, and five federal appellate courts now hearing arguments and soon to rule, today’s decision out of Arkansas underscores that all of America is ready for the freedom to marry.”

In 2004 Arkansas voters approved by a vote of 75 percent Amendment 83, which made the ban on same-sex marriage part of the state constitution. The judge’s ruling against the ban is the latest in a series of victories for same-sex marriage within the judiciary following the U.S. Supreme Court’s decision against the Defense of Marriage Act last year.


Archbishop of San Francisco urged to skip D.C. anti-gay rally

Salvatore Cordileone, Catholic Church, Washington Blade, gay news

Archbishop Salvatore Cordileone is urged to boycott an anti-gay marriage rally in D.C. (public domain photo).

Prominent national LGBT advocacy groups and top California leaders are urging the Archbishop of San Francisco to cancel his planned appearance at an upcoming anti-gay marriage rally in D.C.

More than 70 supporters of marriage equality in California — including Lt. Governor Gavin Newsom, Gay State Sen. Mark Leno, Gay State Assembly member Tom Ammiano and San Francisco Mayor Ed Lee — have signed an open letter urging San Francisco Archbishop Salvatore Cordileone to cancel his appearance at the “March for Marriage” on June 19.

“We respect freedom of religion and understand that you oppose civil marriage for same-sex couples,” the letter states. “Many people of faith who have different opinions on the question of civil marriage for same-sex couples have come together in respectful dialogue and discernment to discuss those differences. Sadly, the actions of NOM and its invited speakers push us farther apart rather than bringing us together.”

Faith leaders have also signed the letter including Rev. Dr. Brian Baker, dean of the Cathedral at Sacramento’s Trinity Cathedral; Rev. Will McGarvey, executive director of the Interfaith Council of Contra Costa and Community Presbyterian Church; Rev. Dennis Wiley, pastor of the Covenant Baptist United Church of Christ in D.C.; Rev. Dr. Karen Oliveto Sr., Pastor of Glide Memorial UMC in San Francisco; and Rabbi Michael Lerner, editor of Tikkun Magazine.

Known for his opposition to same-sex marriage, Cordileone was one of the leaders of the campaign in favor of California’s Proposition 8. After he was selected for his current post, Cordileone said in a 2009 interview with the San Francisco Chronicle people have to stand up for the definition of marriage as one man, one woman.

“Only one idea of marriage can stand,” Cordileone was quoted as saying. “If that’s going to be considered bigoted, we’re going to see our rights being taken away — as is already happening.”

Cordileone views on same-sex marriage stand in contrast with the diocese he represents, which has long been considered a pro-LGBT city and where then-Mayor Gavin Newsom distributed marriage licenses to gay couples in 2004.

In addition to the open letter, the pro-LGBT Faithful America is organizing an online petition calling on Cordileone to cancel his appearance. The goal for the organization is to collect 15,000 signatures for the petition.

Cordileone is among a handful of high-profile speakers who are slated to speak at the event, which is being organized by the anti-gay National Organization for Marriage and the Family Research Council. Other speakers scheduled to appear at the event are former U.S. Sen. Rick Santorum; former Arkansas Gov. Mike Huckabee; New York State Sen. Rev. Ruben Diaz; and the Heritage Foundation’s Jennifer Marshall and Ryan Anderson.

The National Center for Lesbian Rights is joining calls on Cordileone to cancel his appearance. In an email blast to supporters, NCLR Executive Director Kate Kendell urges supporters of same-sex marriage to sign the petition organized by Faithful America.

“While we respect the freedom of religion, it is critical that all people of good will speak out against the dehumanizing and harmful rhetoric of the march’s sponsors and featured speakers,” Kendell said. “Please join us and the many elected officials, faith leaders, and non-profit organizations who are urging the Archbishop to cancel his planned participation at the march.”

It wouldn’t be the first time that Cordileone has come to D.C. to express opposition to same-sex marriage. On the day of the U.S. Supreme Court heard oral arguments on Prop 8, the archbishop was among the religious leaders who spoke in opposition at a rally before the courthouse.

A Univision poll published in March found that 54 percent of American Catholics supported same-sex marriage. Additionally, Pope Francis seems to have relented when asked about his views of homosexuality and is known for not being outspoken in opposition of same-sex marriage.

Fred Sainz, vice president for communications at the Human Rights Campaign, said Cordileone’s participation in the rally is out of step with others in his church.

“I doubt His Holiness would give his blessing to some of these speakers’ revolting characterizations of LGBT people,” Sainz said. “At a time when the Pope is asking, ‘Who am I to judge?’ Archbishop Cordileone and his cohorts continue relentlessly searching for bigger stages and louder megaphones from which to spew their judgments.”


Supreme Court stays Utah same-sex marriages

Supreme Court, gay news, Washington Blade

The U.S. Supreme Court has denied a stay on Utah same-sex marriages (Washington Blade file photo by Michael Key).

The U.S. Supreme Court approved on Monday a stay request on same-sex marriages in Utah, prohibiting gay couples from continuing to wed in the Beehive State as litigation proceeds throughout the courts.

According to the court order, justices ruled to grant the application of stay filed last week by attorneys for Utah Gov. Gary Herbert and Attorney General Sean Reyes in the case of Kitchen v. Reyes.

“The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit,” the order states.

The vote of the full court indicates U.S. Associate Justice Sonia Sotomayor, who’s response for stay requests in the Tenth Circuit, referred the matter to the entire to the entire court instead of deciding the issue for herself. How each justice voted on the matter isn’t disclosed, but at least five justices must have voted in the affirmative to grant a stay.

The district court that ruled in favor of marriage equality in Utah on Dec. 20 and the U.S. Tenth Circuit Court of Appeals had already denied stay requests from Utah. But as the highest court in the country, the U.S.  Supreme Court has the final word on the stay, so same-sex couples have no further recourse in the matter.

State officials asked the Supreme Court to halt the same-sex marriage in Utah on the basis their continuation would cause financial harm to the state and the couples themselves if their unions were deemed invalid at at a later time. Private attorney Monte Stewart, a Utah-based lawyer and known opponent of same-sex marriage, had signed on to the brief as counsel of record.

Although the Supreme Court has granted the stay request, the litigation that brought marriage equality to Utah hasn’t been resolved and is pending before the Tenth Circuit.

The appellate court has agreed to take up the issue on an expedited basis. State officials’ opening brief must be filed by Jan. 27. The response from attorneys for gay couples is due Feb. 18, and state officials have a chance to respond to that filing by Feb. 25.

James Magleby, one of the attorneys at Magleby & Greenwood PC representing the three plaintiff couples in the lawsuit, said the decision by the Supreme Court was “obviously disappointing,” but predicted in the end the Tenth Circuit would bring justice to same-sex couples seeking to marry.

“This temporary stay has no bearing on who will win on appeal,” Magleby said. “We look forward to defending Judge Shelby’s decision in the Tenth Circuit. We were confident when we filed the case in 2013, we were confident when we presented the arguments to the district court, and we remain equally – if not more – confident about our defense of marriage equality before the Tenth Circuit.”

LGBT advocates also expressed disappointment with the decision by the Supreme Court, but said they believe it would be only temporary.

Chad Griffin, president of the Human Rights Campaign, said in a statement the stay in Utah same-sex marriages is “disappointing,” but predicted marriage equality would prevail in the end.

“We still live in two Americans where full equality is within reach in one, and another where even basic protections are non-existent,” Griffin said. “As the marriage equality map expands, history is on our side and we will not rest until where you live is not a barrier to living your dreams.”

John Mejia, legal director of the American Civil Liberties Union of Utah, said in a statement Utah should continue to recognize same-sex marriages already performed in the state as valid.

“The huge response that we have seen since the federal court’s ruling shows how important the freedom to marry is in the state of Utah,” Mejia said. “Though future marriages are on hold for now, the state should recognize as valid those marriages that have already been issued, and those couples should continue to be treated as married by the federal government.”

But at least one advocate against same-sex marriage was happy with the decision.

Brian Brown, president of the anti-gay National Organization for Marriage, praised the Supreme Court as he took a swipe at U.S. District Judge Robert Shelby for issuing the ruling in the first place.

“The actions of this activist judge are an affront to the rule of law and the sovereign rights of the people of Utah to define marriage,” Brown said. “Shelby has attempted to twist what the Supreme Court ruled in the Windsor decision – that states have the right to define marriage – and turn it into the exact opposite conclusion. It’s gratifying that the US Supreme Court has decided to stop this nonsense and allow the state of Utah the time to reverse it on appeal.”


McAuliffe declines to appoint special counsel to defend Va. marriage ban

Terry McAuliffe, Richmond, Virginia, gay news, Washington Blade

Virginia Gov. Terry McAuliffe

Virginia Gov. Terry McAuliffe on Monday said he will not appoint a special counsel to defend his state’s constitutional amendment that defines marriage as between a man and a woman.

McAuliffe told state Del. Bob Marshall (R-Prince William County) in a letter that he shares the view that “the effective administration of our legal system requires zealous advocacy on all matters before the courts.” The governor said Norfolk Circuit Court Clerk George Schaefer and Prince William County Circuit Court Clerk Michèle McQuigg, the Alliance Defending Freedom and the Family Foundation of Virginia are “vigorously and appropriately” defending the state’ same-sex marriage ban after Attorney General Mark Herring announced he would not defend it.

Marshall is among the more than 30 legislators who urged McAuliffe in a Jan. 24 letter to defend the marriage amendment that Virginia voters approved in 2006.

“Accordingly, I respectfully decline to appoint special counsel in this matter,” wrote McAuliffe.

Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia on Thursday will hold a hearing in a lawsuit that two couples — Timothy Bostic and Tony London of Norfolk and Carol Schall and Mary Townley of Richmond — filed last year against the marriage amendment. The ACLU, Lambda Legal and the ACLU of Virginia last August filed a class action federal lawsuit on behalf of two lesbian couples from the Shenandoah Valley who are seeking marriage rights in the commonwealth.

A Virginia House of Delegates committee on Jan. 24 approved a bill that Marshall and state Del. Todd Gilbert (R-Shenandoah County) introduced earlier this month that would allow any state lawmaker to defend a law if the governor and attorney general decline to do so.

The full House is expected to vote on the measure on Wednesday, but the state Senate will likely kill it.


Redefining marriage?

The Marriage Act, Liza Monroy, gay marriage, same-sex marriage, marriage equality, books, gay news, Washington Blade

(Image courtesy Soft Skull Press)

‘The Marriage Act: The Risk I Took to Keep My best Friend in America, and What It Taught Us About Love’

By Liza Monroy

Soft Skull Press


320 pages

The room was crowded, yet filled with only two people.

At least that’s what it seemed as the groom looked at his beloved: there was no one else in the room but them. You could see it on their faces, the way their eyes danced together, alone in a sea of well-wishers, seeing only one another.

So what makes a marriage work? Is it effort, honesty, trust, acceptance, love? Or, as in the new book “The Marriage Act” by Liza Monroy, should you strive to marry your best friend — even if it’s illegal?

Throughout her life, Liza Monroy says there’ve been three important men: her father; her boyfriend, Julian; and her best friend, Emir. She’d barely seen her father since she was 6 years old, following her parents’ divorce. Julian was in Manhattan, far from Monroy’s L.A. home and, though they were engaged, their relationship was rocky. Emir, however, was nearby — just three blocks away — and Monroy saw him whenever she needed him.

She needed Emir a lot.

They met in college. He was in the U.S. on a student visa, from a country Monroy calls Emirstan. She’d been running from her mother’s influence. He was gay. She is not. They became fast friends. And in the weeks following September 11, 2001, when just being Middle Eastern was cause for suspicion, Emir’s visa was about to expire.

By that time, Monroy’s engagement had fallen apart. She was afraid of love, but more terrified of being alone. She asked Emir to marry her, which seemed like a great solution: Emirstan was intolerant of gay men and deportation was dangerous. Marrying her gay best friend would allow Monroy to practice at marriage. Never mind that the Immigration and Naturalization Service disallowed marriage for a green card’s sake and Monroy’s mother was an INS agent.

But what, exactly, makes a marriage? What characterizes it? If it’s love, then Monroy and Emir had that. If it’s needing one another, they had that, too. Did marriage have to be about sex and babies or is it possible to redefine it?

“The Marriage Act” should be a good book. Surely, it’s unusual enough since it chronicles a gutsy, illegal act that, accidentally, turned out well for all concerned.

It’s good, but not as good as I’d hoped.

With angst that would make Woody Allen proud and a near inability to keep secrets, author Liza Monroy writes of stress, misgivings and sabotaging plans to keep her gay best friend stateside. That would be tolerable, perhaps even madcap, if it wasn’t so repetitive and fussy. Add in many blame-the-parents passages and a falls-flat attempt at humor within a lack of culpability; mix in occasional, bumbling sweetness and not-so-subtle lessons, and you’ve got a memoir that’s, well, passably OK.

I think this book is worth a look-see. If you want to read an unusual story and you can handle the irritations, you might like it. If you’re looking for something a little slicker, though, “The Marriage Act” is an I do — NOT.


Ill. Republicans who backed gay nuptials triumph in primaries

Republican Party, Illinois, Illinois General Assembly, Ron Sandack, Ed Sullivan Jr., Tom Cross, Judy Baar Topinka, gay news, Washington Blade

From left, Ill. state Representatives Ron Sandack (R-Bolingbrook), Ed Sullivan, Jr. (R-Libertyville), Tom Cross (R-Plainfield) and Ill. state Comptroller Judy Baar Topinka each won their Republican primaries. (Photos public domain)

Republican officials in Illinois who supported marriage equality won their primaries across the board this week — a development that LGBT rights supporters say demonstrates growing support for marriage equality even within the Republican Party.

Jeff Cook-McCormac, senior adviser to the pro-LGBT American Unity Fund, counted four victories on Tuesday night among Republicans who supported marriage equality and said they represent a “turning point” for the party.

“These victories in Illinois demonstrate that we really are reaching a turning point, not only on the issue nationally, but we’re reaching a turning point within the Republican Party,” Cook-McCormac said. “It’s becoming safer and safer for Republican elected officials to follow their conscience, do the right thing and advance the freedom to marry.”

Each of the three Republicans who voted for marriage equality when it came before the Illinois State House in November — State Reps. Tom Cross, Ed Sullivan and Ron Sandack — faced primary challengers, but came out on top to keep their party’s nomination going into the general election.

Cross and Sullivan beat their competitors by double-digit points in the primary. Sandack scored a narrower win, defeating his opponent by 153 votes.

Additionally, Illinois State Comptroller Judy Baar Topinka, who voiced support for marriage equality, didn’t face a primary challenge. She spoke at rallies in favor of marriage equality, including the ceremony in which Gov. Pat Quinn signed the marriage legislation into law.

Pat Brady, former head of the Illinois Republican Party who helped lobby for the marriage equality legislation for the American Civil Liberties Union of Illinois, said the result “puts the issue to rest” over whether Republicans can be politically viable if they support same-sex marriage.

“The people that so loudly proclaimed that they were going to take out anybody in the Republican primary — or Democratic primary, for that matter — that voted for marriage equality turned out to be just what I thought they’d be: a bunch of paper tigers,” Brady said.

Brady, who resigned his position as party chair shortly after he announced his personal support for marriage equality, said the election results demonstrate a shift in the “political reality” of the Republican Party.

“It is a shift,” Brady said. “You can be pro-marriage equality, still be a good Republican and still win. And in a state like Illinois, to win the general election, I think it helps candidates.”

The results of the primary reflect the growing support for marriage equality nationwide — even within the Republican Party. A Washington Post/ABC News poll published earlier this month found record support for same-sex marriage and 40 percent of Republicans favor gay nuptials.

Support is particularly strong among young Republicans. A Pew Research Center poll published March 10 found 61 percent of Republicans under age 30 support same-sex marriage.

But one anti-gay group that worked to oppose the legalization of same-sex marriage in Illinois is disputing the notion the wins for Republican who voted for it represents change.

David Smith, executive director of the Illinois Family Institute, said the results are “absolutely not” a shift and instead the result of Republicans enlisting the help of Democrats to win primaries.

“It’s a very well-established fact that a lot of Democrats crossed over to vote in the Republican primary because there wasn’t a significant race for governor and for Senate on the Democratic ballot,” Smith said. “There was a quite a lot of union-plus-Democrat crossover.”

Smith also denied that wins for Republicans who voted for same-sex marriage had any wider implication of growing support for same-sex marriage within the GOP.

“I would point to the fact that the two social conservatives running for governor in a Republican primary got 59 percent of the vote together, allowing a more moderate Republican to win,” Smith said. “Obviously, social issues do matter to the majority — 60 percent or more — of Republican voters.”

But Cook-McCormac pushed back against the assertion that wins for Republicans who voted for marriage equality has no meaning, saying anti-gay groups are “running out of excuses.”

“They can create whatever excuses and draw whatever explanations that they like,” Cook-McCormac said. “The bottom line is they were out campaigned, out worked and they were out-appealed-to. Americans, and Republican voters in particular, are done with the anti-gay politics of the past and they’re ready to move forward based on the issues that unite all of us.”

The two sides nonetheless agree that marriage equality was the major issue for why these Republicans faced primary challenges. For Sandack, the candidate who came the closest to losing, anti-gay groups circulated a flier and aired TV ads displaying two men kissing (much to the consternation of Windy City Times, which has accused the groups of unlawfully stealing a photo of Sandack taken by the gay newspaper for the material).

The wins arguably represent a change from what happened with Republicans in New York who voted to legalize same-sex marriage in 2011. According to The New York Times, one faced a difficult re-election and decided not to run again, another was defeated in a primary, and the other was defeated by a Democrat in the general election because a conservative in the race drew away votes.

“It’s demonstrated that our side has got a lot better at defending our kind,” Cook-McCormac said. “As we’ve seen in Illinois, there are very smart, sophisticated strategies being put in place independently in addition to bundling direct contributions to candidates that are helping to ensure that these legislators who show courage are well-positioned to win re-election.”

The pro-gay Illinois Unity PAC raised $155,000 to assist with independent expenditure efforts on behalf of Ed Sullivan and Ron Sandack, which primarily focused on public opinion research, multiple rounds of direct mail, live operator ID and get-out-the-vote calls, a source familiar with the PAC said. On the other side, the main anti-gay independent expenditure committee, Liberty Principles PAC, spent about $220,000 just attacking Sandack, the source said.

But the wins for pro-gay Republican weren’t across the board. In a bid for the Republican nomination to represent the state’s 9th congressional district in the U.S. House, Susanne Atanus, who has blamed tornadoes and autism on gay rights and abortion, beat out her more moderate competitor, David Earl Williams III, even though the state party called on her to drop out of the race.

“God is angry. We are provoking him with abortions and same-sex marriage and civil unions,” she said during a debate. “Same-sex activity is going to increase AIDS. If it’s in our military it will weaken our military. We need to respect God.”

Cook-McCormac downplayed the significance of Atanus’ win, saying she has “zero chance” in her bid against Rep. Jan Schakowsky in the heavily Democratic district.

“It’s always embarrassing whether it’s Democrats putting up far-left candidates or Republicans putting up far-right to see those people on the ballot,” Cook-McCormac said. “But I hardly believe a candidate like that is really representative of where Republicans are.”

Wins for Illinois Republicans who supported same-sex marriage raises the question of viability in the other two states that legalized same-sex marriage through the legislative process in 2013: Minnesota and Hawaii. Both of the primaries in those states will take place in August.

State Rep. Cynthia Thielen in Hawaii is facing the threat of a primary challenger on Aug. 9, while State Rep. Jenifer Loon in Minnesota is facing the threat of a primary challenger on Aug. 12. The challengers to these lawmakers, who have no political experience, are running single-issue campaigns against the marriage equality votes.

Cook-McCormac spoke generally about the progress made on LGBT issues in the GOP when asked whether the Illinois primary results will predict the outcome of Republican primaries in Hawaii and Minnesota.

“I think that what you’re going to see is that other Republican candidates across the country who are being challenged by an increasingly small group of opponents on this issue, they’re going to have the resources they need to win, as well as the broad-based political support of Republicans who may have a diversity of opinions on the marriage issue, but who recognize that these public servants’ focus on lower taxes, smaller government, and creating more jobs is why they chose them to represent them in the first place,” Cook-McCormac said.