Rainbow bLAWg

Big Decisions Coming Soon From The Supreme Court

The month of June is half over and the Supremes have yet to release their opinions on some of the most important cases they’ve heard this term.

The Court’s “decision days” are held each Monday, plus Thursday, June 18 — and they may announce an additional day if needed.

It’s more likely than not all opinions will be released by the end of June.

And they usually save the best (i.e. most important or controversial cases) for last.

That means we’ll probably be waiting another week or two before getting their decision on marriage equality and Obamacare – two issues that – if the Court rules against marriage and the Affordable Care Act – could have real and damaging outcomes for LGBT people and our families.

We’re keeping track of the Courts proceedings and will let you know their decisions as soon as they become available, here on the blog and also on our Facebook page and on Twitter.

What’s at Stake at the Supreme Court

s it stands today, there are 37 states that allow gay and lesbian couples to marry.  Many of those states had bans on marriage equality that were overturned by a judge or panel of judges. If the the Supreme Court does rule in favor of states having a right to ban marriage, those state’s bans may automatically be reinstated and the status of all those couples who relied on those rights while they existed (i.e.got married) would be in question.

Although the final decision will not be made until later in the summer, tomorrow, the Supremes will hear oral arguments in Obergefell v. Hodges to determine whether or not state bans on lesbian and gay marriage rights are constitutional.

There are nine Justices in total. Four of them -Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – are liberal and will almost certainly vote to support marriage rights for all 50 states. Three others – Antonin Scalia, Clarence Thomas and Samuel Alito, are consistently conservative and have, in past cases, said they believe there is no constitutional right for marriage equality.

Then there is Chief Justice John Roberts – also conservative, but who has occasionally voted with the liberals in important cases. For instance,  and much to the shock and dismay of the Tea Party, in 2012 he cast the deciding vote to uphold Obamacare.  Although, Roberts DID side with conservatives when he voted against marriage rights in the Prop 8 and Windsor cases a few summers ago.  However, he refused to sign onto the dissenting Justice’s opinion that declared that state bans on marriage rights were constitutional. So… it seems there is a chance he will decide to join the liberals in this case.

That leaves Justice Anthony Kennedy, who is almost consistently conservative – except on the issue of LGBT rights. Kennedy wrote the eloquent opinion in Lawrence v. Texas (that overturned sodomy laws) that – in my opinion – formed the basis for what has evolved for marriage equality ever since. If you want to read that opinion, here is the link.

Most Supreme Court experts believe Justice Kennedy will vote with the liberals in this case. Even if Chief Justice Robert’s sides with the conservatives, it will be a 5/4 ruling in favor of gay and lesbian couples having the right to marry.

Definitely not a sure bet – but a good one nonetheless.

We’ll be live-blogging on our Facebook Page tomorrow starting at 11:00. Hope to see you there!

Marriage Equality Sc 2015

A Guide to Tuesday’s Supreme Court Hearing on Marriage Equality

marriage-equality-sc-2015The Supreme Court will hear oral arguments in the challenges to state bans on marriage equality on Tuesday, April 28, 2015.

Remember, the Justices will not be rendering a decision about marriage rights on Tuesday. They’re just listening to oral arguments presented by gay and lesbian couples (the petitioners) and states that want to deny their marriage rights (the respondents).

The Justices will have an opportunity to question the attorney’s who are representing the petitioners and the respondents. Then they’ll will make their final ruling later this summer.

I’ve written this handy guide to help you understand what is at issue and what to expect to happen that day.

There are actually four separate cases before the Court from four separate states: Ohio, Tennessee, Michigan, and Kentucky.

Back when they decided to hear these cases, the Court limited the issues to two questions:

1. whether the Constitution requires states to allow same-sex couples to marry; and

2. whether the Constitution requires states to recognize the marriages of same-sex couples who were legally married in another state.

These issues are now commonly known as the “marriage” and “recognition” questions.

Each petitioner and respondent is required to file a brief explaining the legal basis for their argument. In addition, there are also over a hundred amicus, or “friend of the court,” briefs filed by individuals and groups who support the petitioners and the respondents. The federal government even filed an amicus brief supporting the petitioners. Is your head spinning yet?

On the day of the hearing the Court may have a few other business matters to attend to before they get to the marriage equality question. For one thing, they may decide to take some time to release their decisions in previously argued cases. They might also hold swearing in ceremonies for new members of the Supreme Court bar. We won’t know for sure if any of this will happen until a day or two before the hearing, but, even if they do, it shouldn’t take too long.

After the other business is attended to, the Court will move on to the main event – the oral arguments regarding marriage equality.

The argument is being heard in two parts, each part based on the questions the Court wanted answered:

Part 1: The Marriage Question:

During the first half of the hearing, the Court will consider the “marriage” question. One attorney – Mary Bonauto, a longtime LGBTQ rights advocate – will represent all of the petitioners and she will get to make her argument first. Bonauto will get 30 of the 45 minutes given to the petitioners but will probably only speak for 25 of those minutes so she can preserve some time for a rebuttal (counter argument) after the respondent’s attorney makes his case. Bonauto will get an assist from Solicitor General Don Verrilli (the federal government’s top lawyer at the Supreme Court) who will speak for an additional 15 minutes on behalf of the petitioners.

Representing the 4 states (aka the respondents) will be John Bursch, the former solicitor general of Michigan. He also has 45 minutes to argue the state’s side, but he is not entitled to rebut after the petitioner’s counter argument.

After Bursch is finished presenting the respondent’s side of the case, Mary Bonauto will have a chance to respond to and rebut the arguments put forth by Bursch.

Part 2. The Recognition Question:

In the second half, the Court will spend 1 hour of oral arguments on the “recognition” question. The petitioners will be represented by attorney Douglas Hallward-Driemeier and the respondents will be represented by Joseph Whalen. Each attorney will have 30 minutes to argue the recognition question although the petitioner’s attorney may want to save a few minutes of his time to counter the arguments put forth by the respondent’s attorney.

When the petitioner’s attorney is finished with his rebuttal the Chief Justice will officially end the hearing.

Although the oral arguments will be over, the show will continue outside on the Court’s plaza, where LGBTQ advocates will face off with the shrinking anti-marriage faction. I’s a huge case with national implications so there will no doubt be a media circus as well.

All in all it should be an awesome spectacle!  

Be sure to visit Rainbow Law’s Facebook Page on Tuesday where we will live-blog the oral arguments as they happen. And make sure you sign up for our newsletter so you can receive up-to-date information about your legal rights.

We’ve come a long way but still have a long way to go to full legal equality!
Here are the links to the briefs:

Petitioner and Respondent Briefs
Amicus Briefs 

A Time to Ride

All of this support for marriage equality has my head spinning. In 2004, we rode our bicycles 3800 miles from San Francisco to NYC to advocate for marriage equality – through California, Nevada, Utah, Colorado, Wyoming, Kansas, Missouri, Illinois, Indiana (yes, THAT Indiana), Ohio, Pennsylvania and New York. I met supporters and lots of haters – including the infamous Phelps family who protested our event in Topeka. Throughout the entire ride, then president George W. Bush was calling on Congress to amend the US Constitution to forever ban marriage equality. That was then. This is now. What a difference 11 years makes! Here is the trailer of the documentary made of our ride:

Scalia Thomas2

Supremes Tell Alabama to Keep On Marrying

scalia_Thomas2Late last month, U.S. District Judge Callie Granade ruled that Alabama’s ban on marriage equality (aka mini-Defense of Marriage act or mini-DOMA) was unconstitutional and that Alabama’s probate judges (they issue marriage licenses in Alabama) have a legal duty under the U.S. Constitution to issue those licenses to gay and lesbian couples.

Of course Alabama appealed, asking the Supreme Court to overturn Judge Granade’s ruling.

This morning morning, the U.S. Supreme Court refused to block the start of gay marriages in Alabama and today, that state became the 37th to allow same-sex marriage.

Seven justices declined to stay the ruling and two – Clarence Thomas and Antonin Scalia – dissented from the order.Thomas and Scalia said they would have halted the marriages until the Supreme Court issues its decision in four consolidated same-sex marriage cases, which are expected to be argued in April and decided by late June.

Writing in his dissent, Justice Thomas suggested the majority was signaling it had already made up its collective mind to regarding the issue of marriage equality.

If you think about it, he’s probably right. Why would the justices allow same-sex marriages to begin in Alabama if they were inclined to later uphold a right of states to ban such marriages?  It seems they are inclined to rule in favor of marriage rights for the entire country.

Not if Scalia and Thomas have anything to say about it.  We shall see.

You Can Get Fired

The Hater’s Last Hurrah

you-can-get-firedAs marriage equality heads for its ultimate ruling before the United States Supreme Court later this year, legislatures in several states have been busy waging a desperate campaign to do whatever they can to oppress LGBT Americans in other areas of the law.

Just 2 months into 2015, the American Civil Liberties Union (ACLU) is reporting an increase in the kind of legislation that gives religious organizations the right to discriminate on the basis of their faith or belief system.  This legislation tends to fall into three basic types:

  1. legislation that makes it easier to discriminate against LGBT people on the basis of religious freedom,
  2. legislation that explicitly targets officials who marry same-sex couples, and
  3. legislation that would permit anyone to refuse to recognize LGBT marriages based on their own personal religious beliefs.

Regarding the first type – legislation based on religious religious freedom – this kind of protection already exists within laws like the federal Religious Freedom Restoration Act (RFRA) which says the government may not substantially limit a person’s religious freedom unless it can prove a “compelling government interest.” However, some of the legislation now being proposed by states could go well beyond this language.

For example, lawmakers in the states of Arkansas,West Virginia, Indiana, South Dakota and Oklahoma have introduced legislation that would allow any individual or corporation to deny services to LGBT people on account of their religious beliefs.  If passed, LGBT or supportive groups and individuals may be denied the right to congregate at public places – such as restaurants or bars – if the corporation or owner’s religion opposed LGBT equality and/or legal rights.

When asked why he introduced this bill, Oklahoma state Senator Joseph Silk (R) said it was because “the homosexual movement is currently the most significant threat to people’s constitutionally protected rights and liberties.”

In West Virginia, a Democrat introduced a similar bill. The lawmaker, state Rep. Rupert Phillips Jr. said he did so because “we need to protect everybody involved in a wedding, from a bakery, a florist, dress shop, caterers. That’s their right to say no.” Phillips’ sister is openly gay.

Other states where variations of this bill have been introduced include Michigan and Wyoming.

The second type of legislation lawmakers are testing out to thwart marriage equality, include efforts to allow clerks to refuse to marry gay and lesbian couples.

Examples include a South Carolina bill that would let government employees refuse to marry gay and lesbian couples, and another that would prevent taxpayer dollars from going to things related to “licensing and support of same sex-marriage.” With some variation, similar bills have been proposed in at least four other states.

A bill introduced in Oklahoma would ban clerks and judges from marrying anyone, making it so that if a couple wants to get a marriage certificate, they have to go to a religious cleric.

Currently, a majority of these bills are only in the introduction stage. However, some are likely to move forward – like the Wyoming religious freedom bill – which passed through to the state Senate on Tuesday.

Michigan’s religious freedom bill is a reintroduction of legislation that passed out of the state House at the end of 2014.

Finally, the third type of legislation being attempted will allow people to refuse to recognize same-sex marriage altogether.

For instance, Utah lawmakers have proposed a constitutional amendment that would allow anyone affiliated with a religious organization or church to avoid recognizing “any ordinance” that the group feels is against its religion. This would give religious groups the right to disregard laws if they contradict with their beliefs. A separate bill in Oklahoma would bar the government from making anyone “treat any marriage … as valid” as long as he or she claimed it violated his or her religious beliefs.

Oklahoma state Sen. Corey Brooks (R), said he is “trying to find a practical way to acknowledge that for the time being, gay marriage is legal in Oklahoma, but also provide legal protection for those whose jobs deal with overseeing or certifying marital unions.”

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Will the Supreme Court Kill Marriage Equality?

tn.marriage.rulingAs we reported a last week, the U.S. Supreme Court announced it would review the ruling in a 6th Circuit marriage equality case where the Court of Appeals rejected the claim that gay and lesbian couples have a constitutional right to marry and to have their marriages recognized by other states.

The 6th Circuit has jurisdiction over the states of Michigan, Ohio, Kentucky and Tennessee and although the Supremes chose to hear a Michigan case, the mini Defense of Marriage Acts (mini DOMA’s) from Ohio, Kentucky and Tennessee were also upheld by this ruling.

Until the 6th Circuit’s ruling upholding Michigan’s mini DOMA, every other federal court – including the 4th, 7th, 9th and 10th Circuits – had all ruled in favor of marriage equality claims throughout 2014.

Even though appeals were filed in all of those cases, the Supreme Court refused to review those rulings.

That begs the question – Why now? Why did the Supreme Court decide to review this particular case after refusing to hear all the others?

Will they use this opportunity to kill marriage rights once and for all?  Or will they finally grant marriage equality to all LGBT couples who live in every state in America?

One reason they chose to intervene now is precisely because it is the job of the Supreme Court to settle splits among the lower courts. Here all of the lower courts but one were overturning the state marriage bans, requiring the Supreme Court to settle the disagreement and determine the ultimate constitutionality of the mini-DOMA’s.

The Court announced it would limit consideration of the issue to the following questions:

(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

(2) Does the Fourteenth 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?

Supreme Court watchers and LGBT rights activists want to know whether the Court will use this particular case to declare a constitutional right to marry for every state in the U.S., and to have those marriages recognized in every other state.

The answer depends on what legal rationale the court uses to decide the case, especially since the various courts that have overturned the bans have used different legal reasoning for doing so.

This case creates an opportunity for the Supremes to create a clear legal pathway for lower courts to follow in future LGBT rights cases.

It’s conceivable (and desirable) that the same majority that overturned parts of the federal DOMA in the Edie Windsor case (that overturned parts of the federal DOMA) will get together and demolish the state mini DOMA’s.

But, some legal beagles are speculating that Chief Justice Roberts may want to join the majority this time – maybe even write the majority opinion himself – thereby taking the opportunity to give marriage equality a very narrow win. In other words, keep the haters a little happy while making the activists feel slightly victorious if not confused.

If that happens, oy. We could be looking at a big mess while some states are still able to maintain a second-class of marriage rights for LGBT couples.

The other potential – and most likely – outcome of course is that the majority of the Supreme Court will see what most Americans have witnessed ever since gay and lesbian couples were first allowed to marry that we are living our lives, raising children, working, buying homes and participating in the American dream.

And in the meantime the sky has not fallen! No one’s marriage has been threatened. The children are thriving.

Well, lets hope that’s what happens anyway.

If you have a will or trust and advance directives giving your partner/spouse inheritance and decision making rights and you keep those documents up-to-date you’ll be fine – legally – no matter what song the Supremes sing.

But they really ought to take a song out of Aretha Franklin’s playbook and give the LGBTQ Community a little R-E-S-P-E-C-T! (Sorry, I just couldn’t resist!)

If you don’t have a will, trust or advance directives you need to get them here now today!  It’s affordable and easy. Just hover over the  “Buy a Package” link above and choose which package is right for you from the drop-down menu.

If you’re not sure which one to choose, click on the ‘figure out what you need link and take our short quiz. If you’re STILL not sure, you can always give us a call at 304-629-4646 and you’ll get a FREE phone consultation to help you figure out what you need to get all your ducks in a row!

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Supreme Court To Rule on Marriage Equality In 2015

Was7402494The U.S. Supreme Court will hear a marriage equality case in April and a decision is expected by late June. The justices are reviewing an appellate ruling that upheld bans in Kentucky, Michigan, Ohio and Tennessee, which are among the 14 states where same-sex couples are not allowed to marry. Attorney General Eric Holder says the Department of Justice will file ‘friend of the court’ brief to urge Supreme Court ‘to make marriage equality a reality for all Americans.’
This is an amazing moment for every member of the LGBTQ community – especially the courageous individuals and couples who bravely came out to their friends, families, co-workers and communities to shatter the negative stereotypes that were allowed to fester for so many years.
In my honest opinion, the Supremes are more likely than not to find in favor of marriage rights since 38 states now have those rights and yet the sky has not fallen. Moreover, if they allow the present patchwork quilt system to stay in place (permitting some states to ban marriage while others permit it) they will be opening the door to even more litigation and confusion than already exists today.
 A final ruling is expected by early next summer, probably in late June. Get ready for a great 4th of July Celebration in 2015!
Here is the link to the historic Supreme Court order granting certiorari:


As you can see, the Court limited the specific questions it is prepared to answer to the two core constitutional issues that have led to a long string of lower-court rulings striking down state bans.

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?. and

2) Does the Fourteenth 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?

As of now, same-sex marriages are allowed in thirty-six states, with bans remaining in the other fourteen but under court challenge.

Although the Court said explicitly that it was limiting review to the two basic questions, along the way the Justices may have to consider what constitutional tests they are going to apply to state bans, and what weight to give to policies that states will claim to justify one or the other of the bans.

The Court told the lawyers for same-sex couples to file their written briefs on the merits by February 27, and the lawyers for the states to file by March 27. Reply briefs by the couples’ lawyers are due on April 17.

The Court is scheduled to hold its final session of oral arguments from April 20 through 29, so the marriage equality case will be scheduled during that time.

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South Dakota

Federal Judge Rules SD Marriage Ban Unconstitutional

south-dakotaA federal judge ruled Monday that the ban on same-sex marriage passed by voters in South Dakota violates the United States Constitution. This creates a clash in one of the few courts of appeals that has yet to rule on the constitutionality of the ban on marriage.

U.S. District Judge Karen Schreier ruled in favor of six same-sex couples who filed a lawsuit against North Dakota’s ban in June of 2014.

Schreier said the ban violated the 14th Amendment by denying gay and lesbian couples the right to marry “without sufficient justification.”

The judge immediately stayed her decision until the State Attorney General, Republican Marty Jackley, appeals her ruling to the Eighth Circuit Court of Appeals.

The Eighth Circuit has not issued an opinion on marriage equality one way or another since it upheld Nebraska’s same-sex marriage ban in 2006.

Other appeals to the Eighth Circuit include appeals from Arkansas and Missouri where lower court judges also struck down those state bans. Several more cases are working their way up through the court system in that district where couples in Nebraska and North Dakota sued to have those state’s bans overturned.

The First, Fifth and Eleventh Circuits are the only others who have not yet ruled on marriage equality. And out of all of the circuits which have ruled – only the Sixth Circuit ruled to uphold a ban.

If Judge Schreier’s decision is upheld by the Eighth Circuit Court of Appeals, South Dakota will be the 39th state to allow LGBTQ marriages.

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The Supremes Ain’t Just Whistlin Dixie

supreme-court-protest-570x314Northern Marriage Equality states and those on the East and West coasts may soon be joined by some of the most conservative Southern states.

A panel of judges from the conservative Fifth Circuit Court of Appeals will hear arguments on Friday in three separate challenges to marriage equality bans in the Southern states of Texas, Louisiana and Mississippi.

The Judges in both Mississippi and Texas had ruled those states bans on marriage equality unconstitutional. The Judge in Louisiana upheld that state’s ban.   All three cases were appealed to the Fifth Circuit where Judges Jerry E. Smith, James E. Graves, and Patrick Higginbotham will hear Friday’s arguments.

Smith is a President Reagan appointee and has developed a reputation as a conservative, partisan judge. Higginbotham is also a Reagan appointee but considers himself a progressive. Graves is an appointee of President Obama.

The question in these cases is this: does the 14th Amendment’s Equal Protection Clause prohibit states from defining marriage as between one man and one woman?

So far, a majority of lower courts have found that LGBTQ couples must be treated the same as heterosexual couples in terms of legal marriage. In other words, a state cannot simply say they – as duly elected legislators – have a right to define marriages or that the voters have a right to vote on whether or not to approve a ban as a ballot measure.  Rather, courts have been ruling that a state must show it has a compelling interest in restricting a citizen’s right to participate in marriage because it is a fundamental right that is guaranteed by the U.S. and state constitutions.

In the meantime, until the Supreme Court steps in and settles the issue nationwide, we’ll continue to have this patchwork quilt system of marriage rights where in one state, a gay and lesbian couple has a constitutional right to be married yet in a neighboring state that right doesn’t exist.

The Supremes could decide later this month to hear a marriage case during the current term, which would point to a ruling sometime in June. And unlike in previous cases, a substantive and final decision is likely to follow.

Advocates for same-sex marriage should be optimistic: four liberal justices will certainly vote for marriage equality, and Justice Kennedy, a conservative in many ways, has endorsed their arguments before .

All that’s left to determine is the timing.

The remaining cases scheduled for Friday’s Supreme Court conference include marriage equality challenges in Ohio, Kentucky, Tennessee, and Michigan. But unlike in October when the Roberts Court denied review of cases from Wisconsin, Oklahoma, Utah, Virginia, and Indiana challenging rulings in favor of marriage equality, the cases scheduled for Friday’s conference involve later rulings upholding bans on same-sex marriage. This disagreement among the federal courts as to whether states can constitutionally ban marriage between same-sex couples makes it more likely the Roberts Court will agree to take up the issue this time.

At last count, 36 states recognize marriage equality, with Florida becoming the latest to do so Monday. Only nine states and the District of Columbia recognized marriage equality when the Supreme Court heard arguments in 2013 challenging the federal Defense of Marriage Act and California’s Proposition 8.

The Supreme Court could rule as early as Friday on whether it will take up the marriage equality cases, or it could wait until Monday when the Court typically releases its orders.

A decision from the Fifth Circuit could take months. Should the Roberts Court on Friday agree to hear one or all of the marriage equality cases, that would mean a ruling on the issue would come this summer.

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