Echo from the Past: Chief Judge of Alabama Supreme Court Blocks Order of the United States Supreme Court

Chief Judge Ray Moore of the Alabama Supreme Court, in his capacity as administrator of all the state courts, has ordered clerks across the state to cease issuing marriage licenses to gay and lesbian couples. This is not the first time that Judge Moore has issued such an order. He did so on February 8, 2015, before the Supreme Court issued its decision in Obergefell v. Hodges. Here is the essay I posted at that time, and here is the blog entry posted a few days later discussing the Supreme Court's refusal to enter a stay on behalf of the State of Alabama. Nor is this the first time that the Alabama Supreme Court has disobeyed the United States Supreme Court in a matter relating to civil rights.

First Amendment Defense Act: Protecting an Open-Ended "Right" to Discriminate Against Same-Sex Couples

The First Amendment Defense Act purports to prohibit discrimination. In fact it fosters and promotes discrimination against same-sex couples. Moreover, the proposed law is fatally vague, and as it result it would encourage and protect a broad range of discriminatory actions by businesses, universities, hospitals, and other institutions. Furthermore, although the Act purports to defend "liberty," the Act fundamentally misunderstands the true nature of liberty -- that no person is entitled to more liberty than he or she is willing to grant to every other person.

"Follow the Law": Ohio Judges Must Perform Same-Sex Marriages

On Friday, August 7, the Ohio Supreme Court's Board of Professional Conduct issued an opinion entitled "Judicial Performance of Civil Marriages of Same-Sex Couples." The Board ruled:

A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.

The Board's opinion is available at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2015/Op_15-001.pdf.

How Will the "Religious Liberty" Laws Affect the Supreme Court's Decision on Same-Sex Marriage?

The four conservatives on the Supreme Court have repeatedly argued that opposition to same-sex marriage is not based on hatred but rather on traditional morality and religious belief, and that these are sufficient grounds upon which to deny same-sex couples the right to marry. Will the furor over "religious liberty" laws that would have legalized discrimination against same-sex couples change their minds?

The Kansas Bill Authorizing Discrimination Against Same-Sex Couples -- What Does It Provide? Is It Constitutional?

In the name of defending religious freedom, the Kansas House recently adopted a statute that would authorize any person or business to refuse service, employment, or employment benefits to same-sex couples. Is it constitutional?

Bishop v. United States: Federal District Court Strikes Down Oklahoma Ban on Same-Sex Marriage

Since the decision of the United States Supreme Court six months ago in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, courts in Utah, New Mexico, and Ohio have declared state laws against same-sex marriage to be in violation of the United States Constitution. Oklahoma now joins their ranks. The decision of the District Court Judge Terence C. Kern in that case (Bishop v. United States) has a number of noteworthy elements.

Obergfell v. Wymyslo: Ohio Must Recognize Same-Sex Marriages From Other States

Judge Timothy S. Black, a federal district court judge for the Southern District of Ohio, has issued a ruling in Obergfell v. Wymyslo ordering the State of Ohio to recognize same-sex marriages that were lawfully entered into in other states. Like last week's district court decision in Utah, the judge based his ruling on the Supreme Court's decision in United States v. Windsor which ordered the federal government to recognize the validity of same-sex marriages entered into in the states that allow them.

Federal District Court Strikes Down Utah Laws Against Same-Sex Marriage

In a decision issued earlier today in the case of Kitchen v. Herbert, Judge Roger J. Shelby, a federal judge for the Central District of Utah, struck down that state's statutes and constitutional provisions against same-sex marriage. Utah thereby becomes the 18th state to recognize same-sex marriage. The judge's opinion is available here.

New Mexico Supreme Court Rules in Favor of Same-Sex Marriage

Earlier today in the case of Griego v. Oliver the New Mexico Supreme Court declared that, under the Bill of Rights of the New Mexico state constitution, same-sex couples have the same right to marry as opposite sex couples. The court's opinion is available here.

Judge Jones' Opinion in Nevada Same-Sex Marriage Case (Part 2 - Use of Precedent)

In yesterday's post (Part 1) I discussed how Judge Jones neglected to analyze the fourth element of suspect class analysis and refused to discuss the extensive scientific evidence demonstrating the equality of gay and lesbian couples. Today's post critiques Judge Jones' use of precedent and his failure to honestly confront the real purpose behind the Nevada law banning same-sex marriage.

Judge Jones' Opinion in Nevada Same-Sex Marriage Case (Part 1 - The Fourth Element of Suspect Class Analysis)

The opinion of Nevada Federal District Court Judge Robert Jones upholding a Nevada law prohibiting same-sex marriage is deficient, disingenuous, and disturbing. It is deficient in that he neglected to apply a key element of the law of Equal Protection and he ignored a massive amount of historical and social science evidence about sexual orientation that bears upon that point. It is disingenuous because it mischaracterizes and misapplies the previous relevant case law. It is disturbing because of the language he chose to use in framing his opinion.

The Supreme Court's Choices on Same-Sex Marriage

There are several different cases on same-sex marriage that the Supreme Court might choose to review. Which one will it take?

Another California Federal Court Rules DOMA Unconstitutional

Two days ago Judge Claudia Wilken of the United States District Court for the Northern District of California issued a decision in Dragovich v. Geithner striking down DOMA as unconstitutional. This is the third federal district court to come to the same conclusion.

NOM's Strategy of Creating Racial Backlash Against Marriage Equality Backfires: NAACP Board Endorses Same-Sex Marriage

Six weeks ago it was revealed that in 2009 the National Organization for Marriage had developed a detailed secret plan to "exploit" racial tensions in the United States in order to "drive a wedge between gays and blacks." See Wilson Huhn,  NOM's "National Strategy for Winning the Marriage Battle" Appeals to Racial, Ethnic, Religious, and Political Divisions (March 27, 2012). Today the Board of Directors of the NAACP voted to officially support marriage equality for gay and lesbian couples. See ABC News, NAACP Backs Same-Sex Marriage as Civil Right (May 20, 2012); Charlie Joughlin, Human Rights Campaign, NAACP Board Endorses Marriage Equality (May 19, 2012); Steve Kilar, Baltimore Sun, NAACP Votes to Support Same-Sex Marriage (May 19, 2012).

President Obama Announces Support for Marriage Equality for Same-Sex Couples

Rick Klein at ABC News reports that President Barack Obama has announced his support for the right of gay and lesbian couples to be permitted to marry. The President made this announcement in an interview with Robin Roberts of ABC.

Article on Same-Sex Marriage in Context of American Law and Philosophy

I have posted a working draft of an article to SSRN discussing the rapid acceptance of same-sex marriage in the United States in light of the theories of "pragmatism" and "legal realism" that have come to dominate American philosophy and jurisprudence. The article is entitled The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking and it may be downloaded here. 

"Immorality" and Social Change

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better - that human progress is possible - and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

Same-Sex Marriage: 85,600,000 and Growing

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

DOMA Struck Down by District Court in Golinski Case

In a ruling issued yesterday, Judge Jeffrey S. White of the Northern District for the State of California struck down the federal Defense of Marriage Act as unconstitutional under the Equal Protection Clause.  Judge White did not find that the Constitution requires the states to recognize same-sex marriage.  Instead he simply ruled that the federal government may not refuse to recognize the validity of same-sex marriages that the states have chosen to recognize.  But his reasoning leaves little doubt that the states will be required to follow suit.

Department of Justice Will Not Defend Law Prohibiting Military Benefits to Same-Sex Couples

Attorney General Eric Holder released a letter to House Speaker John Boehner today informing him that the Department of Justice will not defend the constitutionality of a federal law denying benefits to members of the armed forces who are lawfully married to persons of the same sex.