Friday, June 26, 2015

Marriage Equality

UPDATE 11:00 PM July 1, 2015

The U.S. 5th Circuit Court of Appeals handed down a ruling shortly before 5 p.m. on Wednesday finding that the Supreme Court ruling in Obergefell v. Hodges overrides state laws and constitutional amendments limiting marriage to couples of one man and one woman.

The federal appeals court directed the district courts in Louisiana, Mississippi, and Texas to issue final orders ending enforcement of the states’ respective bans on same-sex couples’ marriages. Part of the 5th Circuit's order for Texas in the case reads:
While this appeal was under submission, the Supreme Court decided Obergefell v. Hodges, No. 14-556, 2015 U.S. LEXIS 4250 (U.S. June 26, 2015). In summary, the Court declared that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this lib- erty be denied to them. Baker v. Nelson [, 409 U.S. 810 (1972),] must be and now is overruled, and the State laws challenged by petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.
UPDATED 4:20 PM Wednesday, July 1, 2015: The Texas Attorney General's office has conceded a separate legal challenge to the state's ban on same-sex marriage brought by two same-sex couples last year.

A three-judge panel of the U.S. 5th Circuit Court of Appeals took up the case in January, almost a year after U.S. District Judge Orlando L. Garcia of San Antonio ruled the state's same-sex marriage ban unconstitutional because it “violates plaintiffs’ equal protection and due process rights.” The state's appeal to the 5th Circuit had been left pending.

Scott Keller, Texas' solicitor general, wrote in a letter to 5th Circuit Justices the appellate court should affirm Judge Garcia's ruling against Texas' ban on same-sex marriage. The letter responds to the appellate court's request that the state and plaintiffs advise the court on their planned next steps in the Texas case, after the higher's ruling.

More than 100 of Texas' 254 counties are now confirmed to be issuing or prepared to issue marriage licenses to same-sex couples. The DMN has an interactive map of counties issuing marriage licenses to same-sex couples. Glen Maxey, Texas Democratic Party Legislative Affairs Director, has been listing counties issuing licenses on his personal Facebook timeline – here.

UPDATED 3:30 PM Sunday, June 28, 2015

State Attorney General Ken Paxton tells County Clerks they may refuse — on religious grounds — to issue same-sex marriage licenses. As reported by the Dallas Morning News.

UPDATED 1:30 PM Friday,  June 26, 2015

As of 1:30 PM Friday, June 26, 2015 - The Office of Collin County Clerk says the County Clerk is currently seeking legal council on the question of issuing marriage licenses to same-sex couples. They have no estimate on when they might reach a decision on issuing marriage licenses to same-sex couples.

The official statement from the Collin County Clerk further states that if the decision to issue same-sex marriage licenses is reached, it may take some time to implement changes to computer data bases and systems and office procedures to be able to actually issue those licenses.

County Clerks across most Texas counties, today, offer a similar statement on issuing marriage licenses to same-sex couples.

10:45 AM Friday, June 26, 2015

The Supreme Court today ruled in favor of marriage equality when Justice Kennedy handed down the 5-4 majority opinion in the in the Obergefell v. Hodges same-sex marriage case. The ruling makes same-sex marriage immediately possible in all 50 states, even states like Texas that outlaw same-sex marriage in the state constitution.

When oral arguments were made before the Supreme Court Justices, Chief Justice John Roberts seemed surprised to find out religion and the First Amendment religious establishments clause in the U.S. Constitution have nothing to do with the legality of marriage.

Chief Justice Roberts asked gay rights lawyer Mary Bonauto why she believed that we should “force churches and religious leaders to preside over a homosexual wedding that, when taken as a whole, would offend their moral conscience.” Bonauto replied,
“Well, I’d cite the U.S. Constitution, previous Supreme Court decisions, and the Treaty of Tripoli."

When Chief Justice Roberts asked Bonauto to elaborate, she continued, “Thomas Jefferson clearly stated that the intent and function of the 1st Amendment was that the country could never establish any laws based on, or supporting, a specific religious view. He stated that ‘the government of the United States of America is not in any sense founded on the Christian Religion.'

... This court has ruled in this manner time after time, and even the Treaty of Tripoli, which was unanimously approved by the U.S. Senate way back in 1797, clearly stated that our government was not established on any specific religious tradition. Not to mention, priests and churches will not be forced to marry anyone.

... Indeed, it is a fact that all you need to get married would be another person, a trip to a courthouse, a witness, and a signed document. When people get married in a church, it isn’t recognized by the government without the legal documentation.”
Observers in the court reportedly witnessed Chief Justice Roberts begin to whisper to fellow conservative Justices Scalia and Alito. Justice Roberts then became visibly red in the face at this point and some reports even state that you could audibly hear Roberts say, “Really! to Bonauto's reasoning?”

Thirty-seven states and the District of Columbia now permit gay marriage, suggesting all but 13 states remain as hold outs to granting marriage equality. But only 11 states, eight by state legislation, and three by referendum, have allowed same-sex marriage without litigation. In a few other states — Massachusetts and Iowa, for example — gay marriage is available only because of judicial decisions based on the state constitution.

Before today's SCOTUS decision, same-sex marriage was given in only these 16 states: Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New Jersey, New York, Rhode Island, Vermont, and Washington , plus the District of Columbia.

Justice Kenedy's majority opinion for the Obergefell v. Hodges same-sex marriage case says in part:
Fourteenth Amendment requires a state to license a marriage between two people of the same sex. And to recognize a marriage between two people of the same sex when a marriage was lawfully licensed and performed out of state. Full opinion:

"The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning."
The majority bases its conclusion that same-sex marriage is a fundamental right on "four principles and traditions": (1) right to person choice in marriage is "inherent in the concept of individual autonomy"; (2) "two-person union unlike any other in its importance to the committed individuals"; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.

The majority opinion rejects the claim that marriage is about procreation, even while saying that protecting children of same-sex couples supports the Court's ruling: "This is not to say that the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State."

Majority opinion by Justice Kennedy concludes:
"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered."

The fight for LGBT equality is far from over. In more than half of the country, it is still legal to fire someone or refuse to hire them on the basis of sexual orientation or gender identity, and that's not the only form of legal discrimination people may face as they exercise their new legal right to marry. As Philip Elliott writes in Time:
Take Texas, a state where gay marriages have not been recognized. Pretty soon, a gay man might be able to head to Abilene City Hall for a marriage license and take his vows with his longtime partner. His boss could then fire him and his landlord start eviction proceedings based on his sexual orientation, and it would be perfectly legal. [...]

And it’s not just Texas. Indeed, more than 206 million Americans — nearly two thirds of the country — live in states where employers can be fired someone for being gay. Only 18 states and the District of Columbia prohibit housing discrimination based on a tenant’s sexuality or sexual identity. Three others prohibit discrimination on sexuality. The remaining 166 million Americans live in states where landlords can evict someone for their sexuality. Friday’s ruling had no effect on what conservative attorney Ted Olson, who argued California’s landmark same-sex marriage case before the Supreme Court, called a “crazy quilt” of laws that unequally treat gays and lesbians.
Responding to the Supreme Court decision making marriage equality the law of the land, a federal district judge for the Western District of Texas enjoined the Texas government from enforcing state laws that define marriage as exclusively a union between one man and one woman.

Pursuant to the Supreme Court announcement Friday, Lt. Gov. Patrick asked A.G. Paxton to advise him on whether clerks and wedding officiants can refuse same-sex couples on sincerely held religious grounds. 

The attorney general advised the Lt. Governor in a letter that clerks and officiants have a First Amendment Right to refuse to help a same-sex couple marry, but they also have to make an accommodation for that couple, directing them to another clerk or someone who doesn't object to pronouncing them spouse and spouse. A.G. Paxton explains that necessary because the federal Religious Freedom Act requires the government to use the least intrusive method as possible in achieving its goal - in this case, getting the gay couple hitched.

But Paxton advises the governor, if there is no convenient back up available because everyone in the county clerk's office claims a religious objection, the clerks could be sued. He repeats the warning several times that the outcome would depend on the facts of each case. There is no magic religious umbrella that protects all religious objectors in all circumstances.


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