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The little gay-marriage case in Utah that roared & made history

(Leah Hogsten | The Salt Lake Tribune) Plaintiffs in the now-closed case of Kitchen v. Herbert, Derek Kitchen and Moudi Sbeity discuss the journey to marriage equality in Utah and what it’s been like to be at the focal point of one of the highest-profile, history-making gay marriage cases in the country,Thursday, October 9, 2014 at their home in Salt Lake City. The same-sex plaintiffs’ win at the 10th Circuit Court of Appeals was upheld when the U.S. Supreme Court declined to hear the state’s appeal.

Derek Kitchen’s name will live on in law books — along with his partner’s — as three plaintiff couples who brought down Utah’s Amendment 3 and propped up same-sex unions across the nation.

By Marissa Lang | The Salt Lake Tribune | First Published Oct 12 2014 01:01 am

Utah Ordered to Recognize Over 1,000 Gay Marriages

Utah Ordered to Recognize Over 1,000 Gay Marriages

SALT LAKE CITY May 20, 2014 (AP)
By BRADY McCOMBS Associated Press

When Matthew Barraza and Tony Milner’s 5-year-old son starts kindergarten next fall, both of his fathers could finally be recognized as his legal parents.

A federal judge on Monday ordered Utah officials to recognize more than 1,000 same-sex marriages that took place in the state before the U.S. Supreme Court issued an emergency stay. If the rulings stands after a 21-day hold the judge placed on it, the state would be required to lift its freeze on benefits requested by gay couples.

Barraza and Milner married in December and have a pending request to have Milner recognized as a legal parent of their son, Jesse, who currently is only Barraza’s son under the law.

“We’re ecstatic,” Barraza said. “It’s something that is really good for us and our family.”

The American Civil Liberties Union filed the lawsuit in January on behalf of four couples, including Barraza and Milner, who said the state’s decision to freeze benefits for same-sex couples violated their rights.

The gay and lesbian couples married after a federal judge overturned Utah’s same-sex marriage ban Dec. 20. Those weddings came to a halt Jan. 6 when the Supreme Court granted the stay.

Utah officials argued that they had no choice but to hold off on benefits until an appeals court rules on same-sex marriage.

U.S. District Judge Dale Kimball disagreed in his ruling Monday, saying Utah’s decision to freeze all benefits put the couples in an unacceptable legal limbo regarding adoptions, child care and custody, medical decisions and inheritance, among other things.

“These legal uncertainties and lost rights cause harm each day that the marriage is not recognized,” Kimball wrote.

He stayed his ruling three weeks to give the state an opportunity to appeal the ruling to the 10th U.S. Circuit Court of Appeals in Denver.

The ruling has no bearing on a decision pending from that court about the constitutionality of the same-sex marriage ban that Utah voters passed in 2004.

Marty Carpenter, spokesman for Utah Gov. Gary Herbert, said in a statement that the state is reviewing the ruling, evaluating options and determining how this relates to other pending cases.

The conservative Sutherland Institute of Utah decried the ruling in a statement, saying it gives too much merit to a “novel ruling” by one judge.

“Our system is weaker when judicial gamesmanship is not kept in check,” said Bill Duncan, the institute’s director of the center for family and society. “We trust the 10th Circuit will do that quickly.”

In issuing the freeze in early January, Gov. Gary Herbert told state agencies to hold off on any new benefits for the couples until the courts resolve the issue. Agencies were told not to revoke anything already issued, such as a driver’s license with a new name, but were prohibited from approving any benefits.

The state tax commission announced, however, that newly married gay and lesbian couples can jointly file tax returns for 2013.

The state has made clear it was not ordering agencies to void the marriages, saying instead that validity of the marriages will ultimately be decided by the 10th Circuit. The court heard arguments in Utah’s case in early April, and a ruling is expected soon.

John Mejia, legal director for the ACLU in Utah, called Monday’s ruling thorough and well-reasoned, and said he expects to withstand any challenge. The ACLU argued that the marriages performed during the 17-day window when gay marriage was legal are valid no matter what the appeals court rules.

“It’s nice to see our relationships recognized with such compassion,” said Marina Gomberg, who is a plaintiff in the lawsuit along with her wife, Elenor Heyborne.

But the legal limbo isn’t completely over.

On Friday, the Utah Supreme Court ordered a temporary halt of several district judges’ orders requiring the state health department to issue birth certificates in adoptions by same-sex parents.

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Associated Press writer Michelle L. Price contributed to this report. Follow Brady McCombs at https://twitter.com/BradyMcCombs .

Same-sex marriages in Idaho put on hold, given go-ahead in Arkansas – CNN.com

Same-sex marriages on hold in Idaho, given go-ahead in Arkansas

By Greg Botelho, CNN

updated 7:10 PM EDT, Thu May 15, 2014

(CNN) — Same-sex couples can marry in Arkansas, but can’t yet do the same in Idaho, thanks to a pair of court rulings Thursday.

The Arkansas case is an entirely in-state matter, involving a local county court and the state’s Supreme Court. But it’s similar to a spate of federal rulings in recent months because the initial ruling that kicked off the process knocked down Arkansas law barring same-sex marriages.

Twenty-one gay and lesbian couples were part of a group of plaintiffs challenging Amendment 83 to the Arkansas Constitution, saying it violated their federal and state rights of equal protection and privacy.

Pulaski County Circuit Judge Chris Piazza ruled last Friday in those couples’ favor. But after his decision, it wasn’t clear whether some same-sex couples could begin getting married immediately.

The state Supreme Court weighed in Wednesday, ruling “the court’s order is not final, and we have no jurisdiction to hear the appeal.” The same court denied the state’s motion for an emergency stay of Piazza’s ruling.

Piazza issued what he called a “final order” on Thursday, in lieu of the Arkansas Supreme Court ruling. On the same day, he issued another document saying “this court … cannot in good conscience grant” the state’s request for an immediate stay of his decision.

“Constitutional violations are routinely recognized as triggering irreparable harm unless they are promptly remedied,” Piazza wrote, adding that “there is no evidence” those pushing to continue the state’s same-sex marriage ban “will be harmed,” but those trying to overturn the prohibition will suffer.

The Pulaski Circuit/County Clerk posted links to Piazza’s orders on its website.

The same office tweeted Thursday afternoon, soon after the latest rulings: “The Pulaski Circuit and County Clerk’s Office is open for business and we are issuing marriage licenses to all qualified applicants.” CNN affiliate KARK reported the clerk was then issuing marriage licenses to same-sex couples. It was not clear what was occurring in other Arkansas counties.

A federal judge moved Idaho in that same direction on Tuesday, ruling that state’s laws violated the U.S. Constitution because they “deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so.”

While U.S. Magistrate Judge Candy Wagahoff Dale’s decision striking down Idaho’s same-sex marriage ban was clear, it didn’t take effect right away. She stated it would become law at 9 a.m. Friday.

That’s where the 9th U.S. Circuit Court of Appeals came in, with three judges signing onto a one-line ruling putting off Dale’s decision from going into effect — at least for now.

The appeals judges ruled that Dale’s ruling “is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal.”

Thursday’s decision from the 9th Circuit appeals court prevents a repeat of what happened in Utah and Michigan, where federal judges similarly struck down those states’ same-sex marriage bans effectively immediately. Higher courts later stayed those decisions on appeal, but not before some same-sex couples married.

Same-sex couples marry in Michigan before court halts licenses

In recent months, federal judges have found restrictions limiting marriage to one man and one woman to be unconstitutional in several other states. But those rulings didn’t take effect immediately, having been stayed as appeals courts and possibly the U.S. Supreme Court weigh in.

Appeals court scrutinizes Virginia same-sex marriage ban

via Same-sex marriages in Idaho put on hold – CNN.com.

Pocahontas argument against gay marriage: Officially the worst ever.

The Worst Argument Ever Made Against Gay Marriage

And that’s saying something.

By David S. Cohen

I won’t hide the ball here, so here it is: Gay people should not be able to get married because Pocahontas married John Rolfe.

This argument was actually made in federal court Tuesday, before the judges of the Court of Appeals for the 4th Circuit in Richmond, Virginia. They were hearing a challenge to Virginia’s ban on same-sex marriage. The argument is hands-down the worst argument ever offered against same-sex marriage.

To be sure, it’s a crowded field in this dubious competition. The history of same-sex marriage litigation is replete with offensive, awful, nonsensical arguments from states trying to come up with principled excuses for bigotry. For instance, just this week Kentucky defended its ban on same-sex marriage by saying that denying gay people the right to marry leads to more stable birth rates. (Yes, you read that correctly.) And there’s long been the argument, put forward without laughter, that banning same-sex marriage is necessary because straight people can’t control themselves and thus need a responsible way to raise all those children they will have as a result of all that irresponsible sex they have.

But Tuesday’s Pocahontas argument takes the cake. Let me explain.

One of the many issues in same-sex marriage litigation is whether bans on same-sex marriage violate a person’s constitutional right to marry. Many Supreme Court cases have said there is a fundamental right to marry, so the argument is straightforward that bans on same-sex marriage infringe on that right.

In response, some states try to refute this argument by asserting that there is no general right to marry, but rather there is only a right to marry someone of the opposite sex. They argue that this more narrowly defined right is what is protected by court precedent and by our country’s history and tradition. Same-sex marriage advocates usually respond to that argument by asserting that you can’t define fundamental rights so narrowly. If you did, there wouldn’t have been a fundamental right to marry in Loving v. Virginia, the 1967 Supreme Court case that found Virginia could not prohibit interracial marriage. In Loving, the court held that the Constitution protects a fundamental right to marry. As same-sex marriage advocates point out, the court did not require the Lovings to show that there was a long tradition in our country of protecting a fundamental right of a white man to marry a black woman. If it had required such a showing, they couldn’t have done so, given our country’s racist history of banning interracial marriage.

That brings us to Tuesday’s argument. David Oakley was the attorney representing the local court clerk who denied the plaintiffs a marriage license. He was closing up his argument making this exact point—that there is no deeply rooted tradition in our country of protecting the specific right to same-sex marriage. When he made this point, Judge Roger Gregory jumped in and very sternly said “Same thing was true in Loving. Nobody would have considered interracial marriages in Virginia in the 1920s/30s [to be deeply rooted].”

Which is when Oakley shocked everyone with this horrendous Pocahontas argument. He responded, in full: “There is a history, prior to the Jim Crow era laws, the anti-miscegenation laws. The idea of interracial marriage was not prohibited. It still fit within the fundamental right of marriage, the idea of a man-woman marriage. Before Virginia passed those affirmative anti-miscegenation laws, it might not have been the social norm, but people certainly could have married, and indeed did marry, across racial lines. Pocahontas married John Rolfe in the early 1600s and their marriage wasn’t declared unconstitutional.” (You can listen for yourself here, starting at 12:25.)

To his credit, Oakley did get the last sentence right. Pocahontas did marry John Rolfe on April 5, 1614, almost exactly 400 years ago, and indeed, their marriage was never declared unconstitutional. But beyond the basic factual accuracy of that sentence, Oakley was speaking nonsense. And for so many reasons. After reading this article, you can play a game at home coming up with your own reasons, but here are five that immediately jump out:

1) The argument is legally illogical: No one anywhere, not even the most anti-gay bigot, has claimed that any particular marriages are unconstitutional. Rather, the issue in any marriage case (including Loving) is whether a state violates the Constitution by restricting who can enter a marriage based on race, sex, or sexual orientation. The idea of an individual marriage being declared unconstitutional makes zero sense.

2) It is absurdly a-historic: Pocahontas married John Rolfe in 1614. The Constitution wasn’t ratified until 1789. The Bill of Rights wasn’t included in the Constitution until 1791. The 14th Amendment didn’t become a part of the Constitution until 1865. To draw the obvious connection here, even if marriages could be declared unconstitutional (they can’t, see No. 1), there was no Constitution in 1614 and wouldn’t be for another 175 years. Add on that the basis of these same-sex marriage cases is the 14th Amendment, and the relevant constitutional provision regarding the constitutionality of marriage didn’t even exist until 251 years after Pocahontas’ nuptials.

3) It is completely irrelevant: What happened in 1614, when the United States of America didn’t exist, is irrelevant to whether there is a history or tradition in our country of interracial marriage. Soon after the Pocahontas wedding, there was very much a tradition of banning interracial marriage. Play around with the map on the Loving Day website for a minute and you can see that tradition growing and growing throughout our country’s history. In fact, in 1865, when the 14thAmendment was ratified, 32 states banned interracial marriage compared to only 11 states that allowed it. Whether Pocahontas married a white person in 1614 is wholly irrelevant to this clear history.

4) It is even more irrelevant still: If the basis of the clerk’s argument is that there has to be a tradition of protecting the specific type of marriage being sought, then the only way Loving is correct is if there is a specific tradition of protecting the marriage between a white person and a black person (or, even more specifically, a white man and a black woman). Pocahontas’ marrying John Rolfe is simply irrelevant to that inquiry.

5) It ignores Virginia’s unique history: Maryland was the first colony to ban interracial marriage between white people and slaves, but Virginia was the first colony to ban interracial marriage between all white people and all black people (free or slave). It did so in 1691. 1691! And that Virginia ban stayed on the books in one form or another until it was struck down by the Supreme Court in 1967. Over the decades and centuries, almost the entire country joined Virginia, but Virginia had the dubious distinction of being the first. At the time of Loving, Virginia’s history of banning the exact marriage at issue in that case—between a white man and black woman—was the very definition of a deeply rooted tradition.

I have yet to hear a logically sound and legally relevant argument against same-sex marriage. But even amid this cornucopia of bad ones, the Pocahontas argument before the 4th Circuit this week has the distinct honor of being the worst ever.

via Pocahontas argument against gay marriage: Officially the worst ever..