Federal appeals court upholds marriage equality

There have been two new developments this week in the movement to extend same-sex marriage:

• For the first time, a federal appeals court has ruled that same-sex couples have the right to marry.
• A federal judge in Indiana has ruled that state's marriage ban unconstitutional.

Thus far, 19 states allow same-sex marriage, thanks to legislation, voter referendum or court ruling. In addition, federal courts have invalidated marriage bans in 12 other states, although these cases are subject to appeal.

In Indiana, U.S. District Judge Richard L. Young, an appointee of President Clinton, invalidated the state's constitutional amendment that defined marriage exclusively as a union between a man and a woman. The case was brought by several gay and lesbian couples.

"In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions—laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional," Young wrote. "It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the persons they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs' and refer to it simply as marriage—not same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such."

Indiana's attorney general is expected to appeal the ruling, but until a petition is filed, couples may begin marrying immediately.

The bigger news came yesterday from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver. In a 2-1 ruling, the panel ruled that states cannot deprive people of the fundamental right to marry because they chose a partner of the same sex. The ruling upholds a District Court decision from December 2013.

The 10th Circuit panel handed down its decision in the case of Utah's same-sex marriage ban, but the effect is to sanction marriages throughout the six states within the court's jurisdiction. The ruling extends marriage equality to Utah, Oklahoma (where a lower court had already invalidated a state ban), Colorado, Kansas and Wyoming. New Mexico, the remaining state in the court's jurisdiction, has allowed same-sex marriages since December 2013.

The judges put their ruling on hold pending an appeal. Utah's attorney general is assessing whether to ask the full 11-judge 10th Circuit Court for a rehearing or whether to take the case directly to the United States Supreme Court.

The two judges who ruled Utah's ban unconstitutional are Carlos F. Lucero, a Clinton appointee, and Jerome A. Holmes, an appointee of President George W. Bush. Judge Paul J. Kelley, an appointee of President George H.W. Bush, dissented.

Writing for the majority, Circuit Judge Lucero held that the Constitution's Fourteenth Amendment protects "the fundamental right to marry, establish a family, raise children and enjoy the full protection of a state's marital laws. Any state may not deny the issuance of a marriage license to two persons, or refuse to recognize that marriage, based solely upon the sex of the persons in the marriage union."

Utah defined marriage as exclusively between a man and a woman, and any marriage or domestic union that was legal outside Utah was invalid within the state. Three same-sex couples sued to overturn that restriction so they could obtain marriage licenses.

The 10th Circuit panel based much of its decision on the Supreme Court's ruling in Windsor v. United States, which was handed down one year ago. That ruling invalidated the federal Defense of Marriage Act. As with other cases that have been heard by lower courts since then, the appeals panel held that the Windsor rationale applied to state law as well.

At issue were provisions in the United States Constitution forbidding the government from infringing on certain fundamental rights unless the restriction is "narrowly tailored" to serve "a compelling state interest."

The panel's majority rejected the usual litany of arguments that the state raised to justify excluding same-sex couples from marriage: They can't procreate, they can't rear children as effectively as opposite-sex couples, and allowing same-sex marriages would create a "slippery slope" that eventually could be used to justify polygamy or incest. 

Judge Lucero pointed out that some opposite-sex couples are incapable of procreating because of age or medical reasons, or because one of the spouses is incarcerated. Yet the state allows their marriages. Moreover, the state imposes no test on whether a couple seeking a marriage license is physically able to produce a child or is interested in doing so.

The judge took the state to task for its "sleight of hand" in arguing that child are best reared by both biological parents. At the same time, state law gives adoptive parents the same legal rights as biological parents. Furthermore, Utah's no-fault divorce law undercuts the state's argument. If child-rearing depended exclusively on heterosexual marriage, he asked, then why would the state also allow a marriage to be dissolved at any time, for any reason, without considering the child's interest. 

As for the state's "slippery slope" argument, Judge Lucero found it speculative at best. He pointed out that, unlike the issue of same-sex marriage, the weight of laws and court decisions over the years clearly found that a state did have a compelling interest in prohibiting polygamy.

(Utah was not admitted to the Union until it wrote into its constitution a ban on polygamy, a practice that existed among many of the early Mormon settlers.)

Likewise, the state over the years has demonstrated a compelling public welfare interest in prohibiting incest or a marriage between an adult and an underage youth. Courts have ruled, for instance, that minors lack the intellectual, psychological and judgmental maturity to enter into marriage on their own.

Writing in dissent, Judge Kelly contended that each state should have the right to decide for itself whether to allow same-sex marriage. If a state's voters or legislators did not want that arrangement, they should not be forced by the federal courts into accepting those unions. It "turns the notion of a limited national government on its head."

Judge Kelly said history and tradition favor marriages between a man and a woman. "Perhaps someday same-gender marriage will become part of his country's history and tradition, but that is not a choice this court should make."

But it was Judges Lucero and Holmes who prevailed—at least for now. As Judge Lucero put it:

"A generation ago, recognition of the fundamental right to marry as applying to persons of the same sex might have been unimaginable. A generation ago, the declaration by gay and lesbian couples of what may have been in their hearts would have had to remain unspoken. Not until contemporary times have laws stigmatizing or even criminalizing gay men and women been felled, allowing their relationships to surface to an open society. As the district court eloquently explained, 'it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.' Consistent with our constitutional tradition of recognizing the liberty of those previously excluded, we conclude that Plaintiffs possess a fundamental right to marry and to have their marriages recognized."

What's next?

Freedom to Marry, the strategist behind the push for same-sex marriage, reports that 74 cases have been brought in 32 states and territories to achieve marriage equality. 

First, let's take a look at the cases that are on appeal.

Virginia. The Fourth U.S. Circuit Court of Appeals heard oral argument on May 13 in the case of a gay couple seeking to overturn that state's ban on same-sex marriage. The lower court ruled that the ban was unconstitutional.

Texas. Perhaps this summer, the Fifth U.S. Circuit Court of Appeals will hear oral argument in a case challenging the state's ban on same-sex marriage. A federal judge in February ruled the ban unconstitutional.

Michigan, Ohio, Kentucky and Tennessee. The Sixth U.S. Circuit Court of Appeals is scheduled to hear oral argument on August 6 in cases from those four states. In Michigan, a federal judge struck down the state's ban on same-sex marriage as unconstitutional. In Ohio, Kentucky and Tennessee, federal judges ruled in favor of plaintiffs seeking recognition of their marriages which were performed in other states.

Idaho. The Ninth U.S. Circuit Court of Appeals will hear oral argument in the week of September 8 on a case brought by four same-sex couples. A federal judge in May overturned a state constitutional amendment that limited marriage to one man and one woman.

Nevada. The Ninth Circuit also will hear a marriage equality case from Nevada. In February, the state attorney general withdrew from defense of the state's same-sex marriage ban. However, a federal judge allowed the Coalition for the Protection of Marriage to intervene in the state's stead. The group opposes same-sex marriage.

Pending litigation

Trial-level courts are reviewing cases brought by same-sex couples seeking relief from states that prohibit their marriages. Among the cases in the pipeline:

Louisiana. Oral argument was held June 25 in two federal cases. One seeks marriage equality in the state; the other seeks respect for marriages performed outside the state.

Florida. Two lawsuits have been filed in federal court and three in state court are pending. On July 2, a judge in Miami-Dade County Circuit Court will hear argument in two of the state cases.

Georgia. A federal lawsuit was filed in April on behalf of two gay couples and one lesbian couple seeking marriage rights in the state and recognition of marriages performed outside Georgia.

Mississippi. A state judge denied a same-sex couple's petition to have their marriage respected for the purpose of getting a divorce. The women had married out of state but live in Mississippi. An appeal has been filed.

North Carolina. Three federal lawsuits have been filed, including one by the General Synod of the United Church of Christ, which argues that the state's ban on same-sex marriage prevents its clergy from marrying gay and lesbian couples of faith. Several couples are co-plaintiffs in the case.

South Carolina and West Virginia. Federal lawsuits seeking the freedom to marry for same-sex couples is on hold pending the outcome of a decision by the Fourth Circuit of an appeal overturning Virginia's ban.

Missouri. In February, eight same-sex couples sued in state court challenging a state law that denies the recognition of marriages performed out of state.

Montana. In May, four couples sued, challenging the state's ban on same-sex marriages in the state and recognition of marriages legally performed outside the state.

South Dakota. On May 22, six gay and lesbian couples went to federal court to challenge the state's constitutional amendment defining marriage exclusively as between a man and a woman.

Arizona. Two lawsuits are pending in federal court. The plaintiffs include married same-sex couples, couples who want to marry and individuals whose same-sex partner died without the protection of marriage.

Alaska. On May 12, five same-sex couples sued in federal court to overturn the state's marriage ban. Four were legally married outside the state and seek recognition of their unions (among the four are a couple who was married in Utah when a federal judge overturned that state's ban).

Same-sex marriage foe: Marriage equality is inevitable

Senator Hatch is the first leading veteran conservative in the United States Senate to recognize that same-sex marriage will happen nationwide. My own congressman, a moderately conservative Republican, last week announced that he supports same-sex marriage.

"Life is too short to have the force of government stand in the way of two adults whose pursuit of happiness includes marriage," Congressman Charlie Dent told the Washington Post on May 28.

"In future generations the label same-sex marriage will be abandoned, to be replaced simply by marriage," he said. He predicted that in 20 years, people will wonder "what all the fuss was about."

A small but growing number of Republicans in Congress have backed marriage equality:

• Senator Rob Portman, of Ohio
• Senator Mark Kirk, of Illinois
• Senator Lisa Murkowski, of Alaska
• Representative Ileana Ros-Lehtinen, whose district runs from Miami to Homestead, Florida
• Representative Richard Hanna, whose district runs from Lake Ontario to Binghamton, New York

My congressman, Charlie Dent, also has endorsed the Employment Nondiscrimination Act and immigration rights for LGBT individuals.

Add Pennsylvania and Oregon to marriage equality states

Wow! I didn't think same-sex marriage would come to Pennsylvania so quickly! My native state never would have taken the initiative through legislative action, but a federal judge was not so hesitant. 

"By virtue of this ruling, same-sex couples who seek to marry in Pennsylvania may do so, and already married same-sex couples will be recognized as such in the commonwealth," District Judge John E. Jones III ruled.

Judge John E. Jones III

Judge Jones took aim at the state's Defense of Marriage Act: "We are a better people than what these laws represent, and it is time to discard them onto the ash heap of history."

The state had 30 days to appeal the ruling, but Governor Tom Corbett, a Republican who is facing a difficult re-election battle, decided it wasn't worth the trouble filing an appeal. Had he to do so, he would have antagonized young voters and suburban moderates. And, of course, an appeal would have given liberals one more reason to campaign aggressively against him.

Same-sex couples already are marrying in the state. My ex-partner and his partner are planning for a September wedding in their local church. Another friend and his husband, who were married in Connecticut, now have the benefits of marriage in Pennsylvania, their state of residence.

Not all reaction has been positive. The Catholic Church said it disagrees with the ruling. Extreme right-wing conservatives are apoplectic. My local newspaper has had to delete some of the remarks made in the paper's comments section because the statements were so vicious.

I'm sure the opponents will wear down. Many eventually will realize that they are on the wrong side of history.

Opinion in Pennsylvania on same-sex marriage is split, but proponents lead on the issue. A Robert Morris poll of 506 residents completed one week prior to the ruling found that 49.5 percent of those surveyed support the state allowing same-sex marriage, while 40.7 percent oppose.

(By the way, Judge Jones was appointed to the court by President George W. Bush.)

Judge writes personal decision in Oregon case

Let's not forget Oregon. Federal District Judge Michael J. McShane ruled on May 19 that Oregon's ban on same-sex marriage violated the federal constitutional right to equal protection.

"Because Oregon's marriage laws discriminate on the basis of sexual orientation without a rational basis to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution," Judge McShane said. His ruling took effect immediately.

Judge Michael J. McShane

"At the core of the Equal Protection Clause ... there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities," he said.

Judge McShane appended an unusually personal opinion to the ruling. He is one of nine openly gay members of the federal judiciary, according to Human Rights Campaign.

"Generations of Americans, including my own, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder or a mortal sin," Judge McShane, who was raised a Catholic, said. "I remember that one of the more popular playground attitudes of my childhood was called 'smear the queer' and it was played with great zeal and without thought of political correctness."

In that context, he said, it doesn't surprise him that Oregonians would seek to protect the traditional view of marriage. "But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them," he said.

"I believe that if we can look for a moment beyond gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in the closets or the stereotypes of what was once believed; rather we see families committed to the common purpose of love, devotion and service to the greater community."

Governor John Kitzhaber, a Democrat, praised the ruling. "No longer will Oregonians tolerate discrimination against the gay, lesbian and transgender community," he said.

(Judge McShane was appointed by President Obama.)

Trend in marriage rulings

In the wake of the U.S. Supreme Court's ruling in the United States v. Windsor case 11 months ago, opposition to same-sex marriage has been falling like dominoes. Since Windsor, 12 federal and state judges have ruled that state-initiative restrictions on same-sex marriage violate the United States Constitution. Pennsylvania and Oregon are the only ones of those states that decided not to appeal the rulings.

Nineteen states and the District of Columbia now allow same-sex marriages.

Critics of same-sex marriages argue that the changes are being imposed by "judicial fiat." Actually, prior to the Supreme Court's ruling in Windsor, they're mostly wrong. Only since Windsor have the federal courts gotten involved. For those keeping score, here are the facts.

Prior to Windsor, 12 of the 17 states adopted same-sex marriage either through state legislation or voter referendum. Delaware, Hawaii, Illinois, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island and Vermont used the legislative process. Maine, Maryland and Washington went directly to the voters. Same-sex marriage came to five states through the states' highest courts. These are New Mexico (where the justices are elected) and California, Connecticut, Iowa and New Jersey (where the justices are appointed).

Since Windsor, however, federal judges have become chiefly responsible for lifting same-sex restrictions. Federal judges acted in 11 states. In each case, they relied on guidance from the U.S. Supreme Court's Windsor decision, which overturned the federal Defense of Marriage Act as unconstitutional. Rulings in nine of the 11 states are on appeal; only in Pennsylvania and Oregon have post-Windsor decisions taken effect. In Arkansas, an elected state circuit court judge invalidated the state's anti-marriage law; the decision has been stayed pending an appeal.

So if you take all states into account, the tally is 14 by direct or indirect voter involvement and 15 by appointed judges.