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Proponents of marriage equality have been kicking butt and taking names over the last year-and-a-half! These victories leave us with 19 states plus Washington, D.C., where LGBTQ individuals have the freedom to marry. In an additional 14 states, judges have issued rulings in favor of the freedom to marry, with many of these rulings now stayed as they proceed to appellate courts.
Three states offer broad protections short of marriage: Colorado allows civil union; and Nevada offers broad domestic partnership and Wisconsin has more limited domestic-partnership laws.
It’s getting to the point where, in their opinions striking down same-sex marriage bans, judges have been trying to outdo each other with definitive statements calling out the injustice that has been done to LGBT couples and to America’s sense of decency. For example, in our very own marriage-equality case in Pennsylvania, Judge John Jones 3d wrote, “We are better people than these laws represent, and it’s time to discard them into the ash-heap of history.” Jones was appointed to the bench by George W. Bush, after being recommended by Rick Santorum.
“I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families,” Judge Michael McShan wrote in throwing out Oregon’s ban. “Families who we would expect our constitution to protect, if not exalt, in equal measure.”
Another round of remarks came last month when judges in the Seventh Circuit Court of Appeals eviscerated the arguments of antigay attorneys from Wisconsin and Indiana. Judge Posner, who was appointed by President Reagan, called the arguments made by opponents of marriage equality “ridiculous,” “pathetic” and “absurd.”
On Sept. 8 we will likely see a repeat performance when lawyers present three cases — from Nevada, Idaho and Hawaii — to the Ninth Circuit. The Nevada case dates back to April 2012 but in the last two years there have been significant changes to the panel of judges, including an improved standard of review in the Ninth Circuit for cases involving LGBT discrimination.
The Idaho case is more recent and extremely straightforward; the National Center for Lesbian Rights brought it forward and won earlier this year in the lower court. And the Hawaii case is the most unusual. Marriage equality is already the law in Hawaii, but the lawsuit began before the marriage-quality ban was overturned. Even though the ban has been overturned legislatively, the plaintiffs in the case are prudently and intelligently pressing ahead with an appeal because they want a lower court’s decision upholding the state ban officially overturned through the legal process.
Even more unusual is the fact that the victorious plaintiffs in Utah, Oklahoma and Virginia are all asking for Supreme Court review of their favorable decisions. It’s not often at all that a victorious plaintiff requests review of their decision by the nation’s top court. In fact, ordinarily, the victorious side would oppose a rehearing, as it runs the risk of overturning the decision. But, the motivation behind the plaintiffs’ briefs boils down to their desire to expand their victories nationwide. Out of the three cases, each addresses different aspects of how bans against same-sex marriage affect the LGBTQ community.
The attorneys and organizations behind the Virginia marriage-equality case insist that additional issues are presented by their case, making it the most ideal to go before the Supreme Court because it would permit the court to address both prohibitions on same-sex marriage and prohibitions of out-of-state marriages. The Virginia case also presents a diverse set of parties; in addition to the plaintiff couples and the defendant clerks, the state of Virginia has also stepped in with an argument of its own that the marriage ban is unconstitutional. Thus, plaintiff attorneys Ted Olson and David Boies point out that the case provides an opportunity for exhaustive argument on all aspects of the marriage-equality debate.
Decisions from the Sixth and Seventh Circuits are pending, and the losing party, or potentially the victorious party, in those cases will likely ask the Supreme Court to hear them as well. When the Supreme Court justices return to work Sept. 29, they’ll likely find unanimous agreement that they should consider a marriage-equality case, but which cases the court will pick remains in question; they could take up none, one or multiple cases.
Personally, I think the Supreme Court will defer a decision on which marriage-equality case to take, since many more rulings may come from nearly a dozen other states in September. Deferring will allow more parties from other circuits to file petitions as well. Regardless of what the justices decide later this month, all I know is that in a short 18 months, a record number of Americans is now living with full equality and dignity under the law. For the first time in history, nearly 44 percent of the U.S. population lives in a state with the freedom to marry for same-sex couples, and more than 46 percent of the U.S. population lives in a state with either marriage or a broad legal status such as civil union or domestic partnerships. Granted, we still have a long way to go, but it is clear now that it is simply a matter of time before we will win the right to marry who we love, whenever and, most importantly, wherever we want to!