Tag Archives: circuit

High court sets stage for historic ruling on marriage

The U.S. Supreme Court this spring will take up cases seeking to overturn bans on same-sex marriage in four states, setting the stage for a national — and historic — ruling on the freedom to marry in America.

“This is the moment we’ve long been working toward,” said Evan Wolfson, of the Freedom to Marry, a national LGBT civil rights group.

The high court in mid-January agreed to review cases from Kentucky, Michigan, Ohio and Tennessee. In November 2014, the U.S. Sixth Circuit Court of Appeals upheld anti-gay bans from those states.

Briefs are due this winter, oral arguments likely in mid-spring and a decision expected before the court’s July recess. 

In June 2013, in two decisions, the court allowed to stand a federal ruling overturning California’s ban on same-sex marriage and overturned the provision in the U.S. Defense of Marriage Act that barred federal recognition of same-sex marriage. The high court hasn’t taken up the merits of a marriage case since then, but many lower courts have, and most have ruled for marriage equality.

Consider: Just 12 states and the District of Columbia allowed gay and lesbian couples to marry in the summer of 2013. Same-sex couples now can marry in 36 states plus D.C., mostly as a result of legal rulings.

The Supreme Court, in an order accepting the cases out of the Sixth Circuit, said it would consider two questions:

• Does the 14th Amendment require a state to license a marriage between two people of the same sex?

• Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

“We are thrilled the court will finally decide this issue,” James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project, said in a statement. “The country is ready for a national solution that treats lesbian and gay couples fairly. Every single day we wait means more people die before they have a chance to marry, more children are born without proper protections, more people face medical emergencies without being able to count on recognition of their spouses.”

The impact

The Williams Institute at UCLA School of Law, which researches LGBT issues, estimated in 2013 there were at least 690,000 same-sex couples in the United States raising 200,000 children. The number of married same-sex couples, estimated at 130,000 in 2013, has increased by more than 50 percent over the past three years. But an estimated 25 percent of same-sex couples are living in one of the 14 states where they cannot legally marry or where same-sex marriage is not recognized.

“Our families, communities and the schools all see us as a family,” said Jayne Rowse, one of the plaintiffs in the Michigan equality case. “We juggle our jobs and a houseful of children and wouldn’t have it any other way. Soon, we hope to have the same recognition and share the same protections and responsibilities as all other families.”

Rowse and April DeBoer are raising four children and they went to trial for nine days last winter to fight for a license to marry, seeking legal safeguards and status for their family. They won in U.S. District Court, a victory that opened a window for hundreds of gay couples in Michigan to wed. The window closed with the state’s appeal to the Sixth Circuit, which upheld the anti-gay ban.

“This opportunity for our case to be heard by the Supreme Court gives us and families like ours so much reason to be hopeful,” said DeBoer.

In addition to DeBoer v. Snyder, the Supreme Court, which has extended the time allowed for oral arguments, will be considering Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee and Bourke v. Beshear from Kentucky.

“I can’t wait to walk up those steps and have the Supreme Court understand that we’re just like everyone else,” said James Obergefell, a plaintiff in the Ohio case.

In 2013, Obergefell flew to Maryland with his dying partner, John Arthur, so they could marry before Arthur’s death. When the couple returned to Ohio, they sued to force the state to list Arthur, who died 15 months ago, as married on his death certificate.


The 14th Amendment, one of the Reconstruction amendments, was ratified on July 9, 1868. The amendment contains five sections and multiple clauses. The first section, with the Equal Protection and Due Process clauses, is one of the most litigated parts of the U.S. Constitution. It reads, “Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

— L.N.

Wisconsin Supreme Court Justice Ann Walsh Bradley faces retention bid against Rock County Circuit Judge James Daley

Wisconsin Supreme Court Justice Ann Walsh Bradley will face Rock County Circuit Judge James Daley in a race that will determine whether the conservative majority on the state’s highest court will grow.

Bradley, the 20-year incumbent who is generally viewed as part of the liberal minority, launched her re-election campaign on Jan. 6 with a news conference at the Wausau County Courthouse. Daley, a decorated war veteran with 26 years’ experience on the court, is garnering support from conservatives.

Races for the state Supreme Court are officially nonpartisan, but they have broken down along party lines in recent years, with outside groups spending heavily to influence the conservative and liberal makeup of the court.Bradley, 64, said in a statement on Jan. 6 that she’s committed to maintaining a non-partisan court “that is beholden to no special interest group large or small.”

“The people of Wisconsin deserve a justice who is tough, fair, and independent, with a proven track record of standing up for them,” Bradley said. “That’s exactly the kind of justice I’ve been for two decades.”

Daley, 67, was appointed to the circuit court in 1989 by Republican Gov. Tommy Thompson. He previously served four years as Rock County district attorney and has nearly 40 years of military service, including three years in the Marine Corps, where he earned a Purple Heart and Bronze Star while serving in Vietnam.

“I look forward to a campaign which highlights the differences between my judicial philosophy and my opponent’s,” Daley said in a statement.

Justices serve 10-year terms on the seven-member Supreme Court. Bradley was first elected in 1995 and re-elected in 2005.

The Supreme Court race is the only statewide contest on the April 7 spring election ballot. Two state appeals court judges along with 63 circuit court judges will be elected across the state, along with dozens of school board members and other local offices.

A state Senate seat vacated by Republican Glenn Grothman after he was elected to Congress also will be filled. The district includes most of Washington, eastern Fond du Lac, northern Ozaukee, western Sheboygan, and southern Calumet counties.

Three Republicans had filed to run for the seat by midday on Jan. 6. Two additional Republicans, a Democrat and one independent all registered to run but had yet to submit the required paperwork before the 5 p.m. deadline.

The primary, for races with more than two candidates, is on Feb. 17.

Spring elections traditionally attract few voters and favor incumbents. But in 2008, incumbent Louis Butler lost his seat on the bench after corporate interests spent heavily on ads portraying him as working “to put criminals on the street” and accusing him of securing the release of a child molester. An ethics complaint was filed against his right-wing opponent Michael Gableman for false and misleading advertising, but the partisan court deadlocked 3 to 3 on pursuing the charges, so they were dropped.

Gableman has been accused of other ethical violations during his tenure on the court.

Bradley is a liberal-leaning judge, frequently siding with Chief Justice Shirley Abrahamson. Conservatives have a four-judge majority on the court.

The court’s private deliberations have gotten heated, most notably in 2011 when Justice David Prosser put his hands around Bradley’s neck during an argument over an opinion upholding Republican Gov. Scott Walker’s law effectively ending collective bargaining for public workers. Prosser said he was making a defensive move, but charges were brought against him alleging that he violated the judicial ethics code. Bradley and four other justices recused themselves from the case, leaving the court without a quorum to move forward.

Gay couples to marry Thursday in South Carolina

The US Court of Appeals for the Fourth Circuit has denied the state of South Carolina’s motion to stay last week’s U.S. District Court ruling striking down the state’s discriminatory marriage ban, setting the stage for marriages to begin for same-sex couples at moon on Nov. 20.

South Carolina’s attorney general had filed a motion for an emergency stay to delay marriages following a ruling by the U. S. District Court for the District of South Carolina striking down the state’s discriminatory marriage ban in accordance with the Fourth Circuit’s earlier decision striking down a similar ban in Virginia.

“The end game is clear — marriage will soon be available for same-sex couples in South Carolina. This is a great victory for same-sex couples and their families because it removes one more hurdle to finally walking down the aisle,” said Beth Littrell, senior attorney in Lambda Legal’s Southern Regional Office based in Atlanta.

“We urge the attorney general  to stop trying to delay the inevitable — their actions are damaging to families they were elected to protect,” said South Carolina Equality lawyer Malissa Burnette, a partner at Callison Tighe & Robinson.

“We are ecstatic as we get ready to go pick up our license at noon on Thursday,” said Lambda Legal client Colleen Condon.

Lambda Legal and South Carolina Equality represent Condon and Nichols Bleckley, who applied and paid for a marriage license in Charleston County soon after the U.S. Supreme Court last month declined to review rulings out of three federal appellate circuits — including the 4th Circuit — invalidating discriminatory marriage bans in five states.

Before they received their marriage license, South Carolina’s attorney general asked the South Carolina State Supreme Court to step in and halt the issuance of marriage licenses to same-sex couples.

The court effectively stopped state court judges from issuing marriage licenses or weighing in on marriage equality pending an order from federal court.

Last week U.S. District Court Richard Gergel struck down the marriage ban, but delayed enforcement of his order for one week — until noon on Nov. 20 — to give the state a chance to appeal.

Today’s ruling affirmed the order allowing marriages to begin.

Federal judge upholds Louisiana ban on marriage equality

A federal district judge has upheld Louisiana’s ban on marriage equality.

The ruling by U.S. District Judge Martin Feldman in the Fifth Circuit is the first to uphold a ban against same-sex marriage since the U.S. Supreme Court decision in U.S. v. Windsor last summer. The ruling broke a streak of 21 consecutive federal court rulings for equality.

“Today a federal district court put up a roadblock on a path constructed by 21 federal court rulings over the last year — a path that inevitably leads to nationwide marriage equality,” said Sarah Warbelow, legal director for the Human Rights Campaign.

The ruling will be challenged at the Fifth Circuit Court of Appeals, according to Dalton Courson, an attorney for the plaintiffs..

“We always anticipated it would be a difficult fight to have same-sex marriages recognized in Louisiana,” he said. “We plan to carefully present our case to the appellate court. The Constitution demands equal protection to all citizens.”

Courson continued, “We’re disappointed. We have roughly 20 decisions on our side of this issue from courts across the nation. It is time for marriage equality, even in the deep South.”

At the right-wing National Organization for Marriage, president Brian S. Brown said, “This decision by Judge Feldman in Louisiana is a great win for the cause of marriage, coming as it does on the heels of other pro-marriage court victories, that puts the lie to the claim that it is inevitable the US Supreme Court will redefine marriage. To the contrary, we believe they will leave this issue with the states.”

Feldman made his ruling in Robicheaux v. Caldwell, a case involving same-sex couples who either want to marry in the state or have their out-of-state marriages recognized.

Feldman said the marriage issue should be decided “through democratic consensus.”

He wrote that “it is not for this Court to resolve the wisdom of same-sex marriage.”

The U.S. Supreme Court is expected to take up marriage equality sometime in the next year – in one or more cases. Already the high court has been asked to hear three cases.

“We firmly believe that justice will ultimately be done,” Warbelow said.

Same-sex couples can marry in 19 states and the District of Columbia.

Editor’s note: This story will be updated.

The marriage equality push: where things stand

A federal appeals court’s finding that Utah’s same-sex marriage ban is unconstitutional marks the most important ruling for the gay marriage movement since last summer’s landmark U.S. Supreme Court decision that struck down part of a federal anti-gay marriage law.

Gay rights activists have won 21 lower court cases over the past year. After the June 25 ruling, expectations are higher than ever that the U.S. Supreme Court eventually will decide gays can marry in every state.

Here are some key things to know about the gay marriage movement and where it’s headed:


The ruling by a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver becomes law in the six states covered by the court: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. But gay marriages won’t be happening in those states — at least not right away — because the 10th Circuit immediately put its 2-1 decision on hold pending an appeal.

The Utah attorney general’s office plans to appeal but said on June 25 it is assessing whether to go directly to the nation’s highest court or ask the entire 10th Circuit to review the ruling.


No. Judges in a total of six federal appeals courts and one state appeals court are hearing appeals of lower court rulings that overturned gay marriage bans or ordered states to recognize out-of-state marriages. The 4th U.S. Circuit Court of Appeals heard arguments about Virginia’s ban in early May, and a ruling is expected soon. The other four appeals courts have yet to hear arguments.


The Supreme Court — one year ago on June 26 — found that the 1996 Defense of Marriage Act that forbade the federal government from recognizing same-sex marriage improperly deprived gay couples of due process. That ruling came as polls showed a majority of Americans now support gay marriage.

Lower-court judges have repeatedly cited that Supreme Court decision when striking down same-sex marriage bans.

So far, federal and state judges have ruled against bans in Arkansas, Idaho, Michigan, New Mexico, Oklahoma, Oregon, Pennsylvania, Texas, Utah, Virginia, Wisconsin and Indiana. They have ordered Kentucky, Indiana, Ohio and Tennessee to recognize same-sex marriages from other states.

Gay marriage is legal in 19 states and the District of Columbia.


Legal experts say the Supreme Court eventually will take a gay marriage case after one or more appeals court rulings, but that won’t happen until 2015 at the earliest. And the high court is under no obligation to take up the issue. The three-judge 10th Circuit panel is the first to rule out of six circuits hearing appeals.

In any of the appellate cases, the losing party can appeal directly to the Supreme Court, or first ask for the entire appellate court to review the ruling.

It’s unclear which case would reach the high court first. The Supreme Court also could hold off and see how the nation’s appellate courts rule. It often waits until there is a conflict between appellate courts before taking a case.

White House drops legal defense of ‘don’t ask’

The White House has dropped its legal defense of the Pentagon’s “don’t ask, don’t tell” policy, according to several sources.

Since President Obama has signed legislation to repeal “don’t ask,” the Department of Justice requested that the Ninth Circuit Court of Appeals suspend a lawsuit against the policy brought by the Log Cabin Republicans.

In a Dec. 29 filing to the ninth circuit, Justice Department attorneys wrote that the “orderly” terms of repealing the policy, as set forth by the law, will make the government’s appeal in the case unnecessary.

But LCR executive director R. Clarke Cooper called the motion a stall tactic that would delay the government’s opening brief in the appeal due Jan. 24.

“The DOJ can hardly argue now that ‘don’t ask, don’t tell’ is constitutional,” Cooper told The Advocate. “The government is trying to avoid an embarrassing situation, and it ignores the fact that the military remains free to discharge personnel.”

Dan Woods, lead attorney for the Log Cabin Republicans, told The Advocate following the repeal bill signing ceremony Dec. 22 that he would not agree to suspend the suit as long as “don’t ask, don’t tell” technically remains in effect.

It is unclear how long the law will remain in effect, but activists and attorneys with the pro-gay Servicemembers Legal Defense Network are advising gay and lesbian service personnel not to come out yet.

SLDN made it clear that the organization is watching the military’s moves carefully during this transition period. “Until there is certification and until the 60-day congressional period is over, no one should be investigated or discharged under this discriminatory law,” cautioned SLDN executive director Aubrey Sarvis.


Appeals court hears Prop 8 case

The legal fight over California’s same-sex marriage ban went before a federal appeals court Dec. 6 in a televised hearing that reached a nationwide TV audience anxious for a final decision on whether the measure violates the U.S. Constitution.

The hearing before a three-judge panel of the 9th U.S. Circuit Court of Appeals also focused on whether supporters of voter-approved Proposition 8 have legal standing to challenge a lower court ruling that the ban was unconstitutional.

Attorney Charles Cooper, who represents sponsors of the ban, argued the state could treat same-sex couples differently when it comes to marriage without running afoul of the Constitution because “sexual relationships between men and women naturally produce children.”

“Society has no particular interest in a platonic relationship between a man and a woman no matter how close it might be, or emotional relationships between other people as well, but when the relationship becomes a sexual one, society has a considerable interest in that,” Cooper told the judges. “Its vital interests are actually threatened by the possibility of an unintentional and unwanted pregnancy.”

Judge Stephen Reinhardt replied: “That sounds like a good argument for prohibiting divorce. But how does it relate to having two males and two females marry each other and raise children as they can in California and form a family unit where children have a happy, healthy home?”

The telecast attracted widespread attention for the issue after the court announced last month it had granted permission to televise live, federal proceedings on the case for the first time.

The January trial over Proposition 8 had been slated for broadcast on YouTube and at other federal courthouses. But the ban’s backers objected, and the U.S. Supreme Court blocked the plan.

It’s not unusual for the 9th Circuit to allow the televising of such hearings. It recently allowed a hearing on Arizona’s controversial immigration law to be aired.

The issue of whether sponsors have legal standing in the case surfaced after outgoing California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both refused to challenge the ruling that overturned the ban. Schwarzenegger and Brown would have been responsible for enforcing the ban.

Cooper contended the coalition of religious and conservative groups that sponsored Proposition 8 should be allowed to appeal because of the moves by Brown and Schwarzenegger. However, his claim met skepticism by Judge N. Randy Smith.

“There is no question the attorney general has a duty to defend all the causes the state or any state official is a party in,” Smith said. “Did you ever seek an injunction or an order or anything suggesting the attorney general should appeal and appeal?”

The panel of judges also grilled a lawyer representing Imperial County, which has sought to defend Proposition 8 if the appeals court determines the measure’s backers do not have standing.

Judge Michael Hawkins repeatedly asked attorney Robert Tyler why his primary client was a deputy county clerk, not the elected clerk herself.

The panel appeared dubious about whether the ban’s supporters were qualified to appeal but also seemed worried about allowing the governor and attorney general to effectively kill Proposition 8 by refusing to defend it.

“If the state does not defend it, it’s just tossing in the towel,” Reinhardt said. “The governor is not allowed to veto this measure, but he can in effect veto it.”

Plaintiffs attorney David Boies argued that the U.S. Supreme Court has repeatedly held that only parties with “a personal, concrete and particularized interest” in a case have authority to seek appeals court review.

Neither Imperial County nor the sponsors of Proposition 8 satisfy those conditions because marriage laws are a state function, Boies said.

Opponents of Proposition 8 contend it violates the due process and equal protection rights of gays and lesbians under the U.S. Constitution by denying them the right to marry the person of their choice and by singling them out for disparate treatment without a legitimate rationale.

Proposition 8’s sponsors maintain that U.S. District Judge Vaughn Walker ignored U.S. Supreme Court precedents when he overturned the measure earlier this year.

Lawyers on both sides have said if they lose in front of the 9th Circuit they will take the case to the Supreme Court.

The televised hearing attracted large audiences at community centers catering to gays across the country. Law schools nationwide piped the proceedings into classrooms and auditoriums on campus.

The broadcast also rekindled debate over allowing cameras in the courtroom. The U.S. Supreme Court steadfastly refuses to allow televised broadcasts of its proceedings. A majority of the high court fear lawyers will grandstand in front of cameras, eroding the quality of oral arguments.

Before he retired and died, Chief Justice William Rehnquist also said he was concerned with the editing process. He feared that justices caught yawning or scratching their noses while sitting on the bench could be portrayed unfairly, taking away some of the court’s dignity.

Yet, the U.S. Supreme Court’s position is increasingly becoming the exception rather than the rule. The 9th Circuit, for instance, occasionally allows broadcasts of its hearings.

Many state courts also allow televised broadcasts of hearings. The California Supreme Court televises many of its oral arguments on a specialized government channel and allows mainstream television stations to broadcast cases with public interests.