Equal Protection

¡Godzilla! Oh, Wait … It’s Just Marriage Equality

Justice is blind ... just kidding.  No, really, did you read the Sixth Circuit ruling?  Jaded eyes, jaded eyes ....

And then there is this:

Today, November 19, U.S. District Court Judge Brian Morris ruled in favor of the freedom to marry in Montana, striking down the ban on marriage between same-sex couples in the state.Marriage Moves Forward in Montana!

The ruling is set to take effect “immediately,” the judge ruled, meaning that same-sex couples in Montana should be free to marry now.

The Attorney General said shortly after the decision that he will appeal the decision to the 9th Circuit Court of Appeals. The Attorney General could also seek a stay from Judge Morris, but as we’ve seen time and again this month – from the 4th Circuit, from the 9th Circuit, and even from the United States Supreme Court – judges have repeatedly rejected requests for stays, because there’s no good reason to delay the freedom to marry.

(Hiott-Millis)

Dan Savage gloats, of course, but here’s the thing:

Slog’s resident trolls would erupt every time I ended a Slog post about marriage equality with “We’re winning.” They LOL’d at my delusions, they sneered at my efforts to buck up supporters of marriage equality, they trolled a little harder. They called me a cockeyedmouthed optimist. That was then. This is now: 35 states, motherfuckers. And, thanks to a “loss” before the U.S. Court of Appeals for the 6th Circuit—the only U.S. Court of Appeals decision that hasn’t backed marriage equality—we’re headed back to the Supreme Court.

Reading through the Sixth Circuit decision against marriage equality is a fascinating exercise in depression. We knew that a decision against same-sex marriage would require some degree of juristic contortion and acrobatics, but what the court gave us was the metaphorical equivalent of ceremonial magick.

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How It Goes: Recognition Edition

Last month, Emma Margolin undertook an effort to list the reasons why the Supreme Court was expected to take up marriage equality in the new term that began today. And, of course, something about today, because the msnbc reporter brings the news that we should add five states to the officially official marriage equality roster:

Marriage equality is coming to five more states – with six more on the way.

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership. (SCOTUSblog via Twitter)The Supreme Court on Monday rejected appeals to hear same-sex marriage cases out of Indiana, Oklahoma, Utah, Virginia, and Wisconsin – all of which saw their bans fall in both federal district and appeals courts. The move immediately legalizes marriage equality in those five states, and will soon topple bans in six other states that make up the 4th, 7th, and 10th circuits. Those states include Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming, bringing the total number of states where gay and lesbian couples can wed from 19 plus the District of Columbia to 30 – more than half the nation.

With a ruling expected sometime this fall, all eyes turn to the Sixth Circuit, where it is hard to imagine the court rejecting Full Faith and Credit.

SCOTUSblog checked in with the summary reflecting the sentiments coloring the headlines:

Practically, today SCOTUS recognized a right to SSM. Implausible that later it will undo marriages, absent a big change in Ct’s membership.

And so it goes. For now.

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Margolin, Emma. “Five signs the Supreme Court will take up gay marriage”. msnbc. 29 September 2014.

—————. “Marriage equality comes to five more states”. msnbc. 6 October 2014.

SCOTUSblog. “Practically, today SCOTUS recognized a right to SSM”. Twitter. 6 October 2014.

The End of the Paperwork

It is accomplished. Mark the date. What started in Utah, in December 2013, with Kitchen v. Herbert, has come to its end.

U.S. District Court Judge Timothy Black has formally ruled that Ohio must recognize same-sex marriages performed legally in other states, but he put a hold on his order for the time being.

“Ohio’s marriage recognition is facially unconstitutional and unenforceable under any circumstances,” Black said in a written order he announced verbally 10 days ago.

Alan Johnson’s report for The Columbus Dispatch is charitable, at least compared to the ruling itself.

Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction

On December 23, 2013, this Court ruled in no uncertain terms that:

“Article 15, Section 11, of the Ohio Constitution, and Ohio Revised Code Section 3101.01(C) [Ohio’s “marriage recognition bans”], violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriage recognized and accepted as legal in Ohio, are denied their fundamental right to marriage recognition without due process of law; and are denied their fundamental right to equal protection of the laws when Ohio does recognize comparable heterosexual marriages from other jurisdictions, even if obtained to circumvent Ohio law.”

Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997 (S.D.Ohio 2013).

The Obergefell ruling was constrained by the limited relief requested by the Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and it directly compels the Court’s conclusion today. The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.1

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1 The Court’s Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages lawfully performed in states which do authorize such marriages.

In truth, it only goes downhill from there for traditionalist advocates. The ruling is a barely patient, nearly patronizing lecture on just how finished the marriage equality issue is as a matter of law. Indeed, the footnote on page one is almost ironic; at this point, authorizing the performance of same-sex marriages in the state of Ohio is a mere bureaucratic detail, with the only question being just how badly conservatives want to embarrass themselves. No wonder he reiterates the point later in the ruling.

It’s over. It’s been over since December brought a decision in Utah, Kitchen v. Herbert. After today’s ruling, there are no more encores.

Today’s ruling settled the outstanding Full Faith and Credit question. Judge Black wrote (p.37):

Because this Court has found that Ohio’s marriage recognition bans are constitutionally invalid on their face and unenforceable, Defendants no longer have a basis on which to argue that recognizing same-sex marriages on out-of-state adoption decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs’ arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a right to full faith and credit for their New York adoption decree here in Ohio. i

And that endnote (pp.41-43), summarized in one quoted sentence:

In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction.

The paperwork really is finished for the judicial branch. Not even Justice Scalia can help the traditionalists. The show ended in December. The house lights just came on. Don’t care where you go, you just can’t stay here.

Everything else is a matter of bureaucratic details and cleaning up the mess.

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Johnson, Alan. “Ohio ordered to recognize legal same-sex marriages from other states”. The Columbus Dispatch. April 14, 2014.

Black, Timothy S. “Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction”. Henry, et al. v. Himes, et al. United States District Court Southern District of Ohio (W.D.). April 14, 2014.

Shelby, Robert J. “Memorandum Decision and Order”. Kitchen, et al. v. Herbert, et al. United States District Court for the District of Utah Central Division. December 20, 2013.