Thursday, October 9, 2014

We may not need the Supremes

t seems the marriage equality map is changing daily, and maybe more often than that.

Apparently a court ruling comes in two parts. One is the ruling, a declaration that a law is unconstitutional. The other is the mandate, what the losing side has to do about it. It also seems that both of these are rarely issued together. When the 9th Circuit ruled on Tuesday that the bans on same-sex marriage in Idaho and Nevada were unconstitutional it issued the ruling and mandate together. It also combined the mandates for the two states.

While Nevada officials said same-sex marriage is just fine with them, Idaho balked. They asked for a stay. Though the Supremes may not take the case, Idaho wants the entire 9th Circuit to rule in what is known as en banc, not just the usual three judge panel that heard the case and issued the ruling.

So Justice Kennedy, the one to oversee the 9th Circuit, issued the stay. But he didn't separate out the two states, so Nevada was affected too. Kennedy later removed Nevada's stay. Then Nevada's Coalition for the Protection of Marriage popped up and requested a stay. So no marriages until that got sorted out. Last year's Calif. case showed they won't have standing when a court takes a closer look.

Another complication: The federal judge, the one handling the Coalition's request, says he can't sign an order to allow same-sex marriage in Nevada because, well because he has a strong bias against it. So he stepped aside to let another judge take over, That next judge is being chosen. There is an important question: If that judge is that biased, why didn't he say so and step aside when the Nevada case was first decided? That sounds like judicial activism.

The Coalition has now withdrawn their motions. Marriages in Nevada have begun.

At least one gay couple in Idaho was able to get married before Kennedy issued the stay.

In other states:

West Virginia Governor Earl Ray Tomblin, under guidance of AG Patrick Morrissey sees where the issue is heading and thus has no reason to be defiant. He has directed state agencies to comply with the 4th Circuit ruling. It will take a few days to withdraw their defense of same-sex marriage cases and for the Dept. of Health to get the forms ready. Gay couples across the river in Ohio had always considered their state more progressive than West Virginia. Not this time.

The GOP lawmakers in North Carolina have decided their state is special and the 4th Circuit ruling doesn't apply. If that gambit doesn't work they'll ask for an en banc hearing.

A lawmaker in Utah wants to officially rename same-sex marriages as "pairages" to avoid redefining marriage.

Some counties in South Carolina are taking applications for same-sex marriages – there is a waiting period before licenses can be issued. And that waiting period was enough to allow the state Supremes to stop the process. There is a case that will soon go before a federal district court to overturn SC's ban and the state Supremes are halting marriages until that case can be heard.

A federal distsrict judge in Kansas has ordered the Johnson County Clerk to issue marriage licenses to same-sex couples. This county includes the southwest suburbs of Kansas City.

Mike Huckabee has threatened to leave the GOP and become independent because the GOP has been so silent on same-sex marriage. Oh goody! Though I hear independents don't want him.

The 5th Circuit agreed to expedite a same-sex marriage case from Texas. One of the couple is pregnant and they don't want to go through the hassle of the other woman adopting the baby. So this case will be combined with a case from Louisiana. Even so, hearings may not happen until December (which means the 6th Circuit, which heard the Michigan case two months ago, is the closest to a ruling).

Ari Ezra Waldman of Towleroad takes a look at what the action by the Supremes means.

* There is no definitive ruling on the constitutionality of same-sex marriage or bans of marriage.

* There is no explicit legal precedent beyond the particular seven cases the Supremes refused to hear.

* In those seven cases there are no more appeals. Also, appeals aren't possible in the other states covered by the affected Circuits.

Waldman then explains why he thinks the Supremes did what they did.

* The conservatives didn't take the cases because they don't believe same-sex marriage is a federal right (they don't like federal rights in general). Allowing all the action to take place at the state and Circuit level (as distasteful as that may be) means the Supremes don't have to declare another federal right.

* The moderates, Kennedy and Breyer, may not want to take these cases until they absolutely have to. Part of it is judicial humility and part of it is a feeling the nation isn't ready for such a ruling (but, sheesh, this action affected South Carolina).

* The progressives may not want to take these cases because they don't want a slim majority, they want a decisive majority. And waiting may allow Roberts to stew over the idea for a few years.

Waldman also says we may not need the Supremes. We may get to all 50 states through the Circuit Courts. His reasons:

1. Marriage equality already exists in all states covered by the 1st, 2nd, and 3rd Circuits (well, not Puerto Rico and US Virgin Islands).

2. The recent Supreme (in)action covered the 4th, 7th, and 10th Circuits. Actions by the 9th Circuit pretty much mean equality is coming to all of its states.

3. In spite of the GOP Obama has done pretty good at rebalancing the federal courts. The 11th Circuit has become quite progressive.

4. Lots of judges appointed by GOP presidents have sided with equality.

5. Circuit judges who haven't ruled yet (5th, 6th, 8th, 11th) are aware of the pro-equality rulings issued around them and of the growing public support.

6. Those same judges have a pretty good idea how Justice Kennedy will rule, based on the Defense of Marriage case a year ago.

A commenter suggests one reason why the Supremes didn't take any cases is there are no compelling arguments for a ban that the justices thought didn't get a thorough hearing in lower court proceedings.

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