Wednesday, June 25, 2014


Yup, another domino tips over. Indiana's ban on same-sex marriage was ruled unconstitutional. This was a law that was overturned, not a state constitution amendment. It was just this past February when Indiana legislators took a step towards that happening, though doing so in a way that prevents it from being before voters until 2016 – and now likely won't happen at all.

In the ruling the judge noted the phenomenon of so many cases brought before courts within one year for this one issue and the judges all ruling the same way. From the ruling:
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.
And, yes, same-sex marriages have begun. State officials say an appeal will be filed.

The news of the day continues. The 10th Circuit Court of Appeals has confirmed that the Utah ban on same-sex marriage is unconstitutional. This is the first case to reach the appeals level since last summer's big ruling (which was a year ago tomorrow). A stay was issued with the ruling because this court knows the next stop will be the Supremes.

The 10th Circuit ruling included a dissent. It seems the poor guy swallowed every last talking point from the National Organization for Marriage (but not yours).

That 10th Circuit ruling is creating a delightful mess. The 10th Circuit is Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. A ruling applies to all of the states in the circuit. So the clerk in Boulder County, Colorado took this ruling (and the one in Indiana) as justification to start issuing marriage licenses to same-sex couples in her area. Since the ruling came with a stay she probably won't be able to do this for very long. And state officials have already declared these marriages won't be recognized by the state.

And in Louisiana a judge was expected to rule on whether the state must recognize same-sex marriages performed in other states. He postponed a ruling, saying he wants to address the whole issue of same-sex marriage at one time rather than in a piecemeal fashion.

Ari Ezra Waldman of Towleroad looks at what happens next. Almost certainly Utah's governor or attorney general will appeal to the Supremes. Since the court is about to adjourn for the summer and doesn't decide to take cases until they reconvene, nothing will happen until then.

The Supremes don't have to take the 10th Circuit case. They could simply let the decision cover the 10th Circuit. Though by the time the Supremes reconvene there is likely to also be a case out of the 4th Circuit (Virginia's case) and maybe the 6th Circuit (primarily Michigan) and the 5th Circuit (Texas) as well. Again the Supremes don't have to take any of them – unless one of those rulings is different from our current string of successes. Some justices may not want to give their opinion on our right to marry. They could simply ride out the process – eventually there will be a decision by every Circuit and these decisions will eventually cover the country. Yes, that is slower than a sweeping ruling from the Supremes.

A commenter lists a few things interesting about this case. First, the 10th Circuit demanded that reasons for banning same-sex marriage must be “compelling.” Tradition isn't a compelling reason. Utah doesn't have a compelling reason. Second, the demand for compelling reasons isn't because same-sex couples are a minority receiving discrimination and without political power, the usual reason. It's because marriage is a fundamental right. Third, if you want to see how the Supremes might rule against us, just read the dissent in the 10th Circuit case. Any one of Scalia, Alito, Thomas, or Roberts could have written it.

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