New Mexico 17th State to Recognize Same-Sex Marriage

A proactive clerk in Dona Ana County, New Mexico began issuing same-sex marriage licenses last August in the wake of the SCOTUS' same-sex marriage decision in United States v Windsor.  Other county clerks began doing the same thing, attracting the attention of the New Mexico Association of Counties after a few hundred marriage licenses had been voluntarily issued to gay couples.

In some New Mexican counties, clerks were court-ordered by county circuit judges to issue the same-gender marriage licenses while in still other counties, the clerks rejected marriage license applications from same-gender couples. Uncertainty in the law arose relative to the marriage issue in this state.  One of the lawsuits swiftly made its way through the NM courts.

Last week's case making New Mexico the 17th state in the Union to officially recognize same-sex marriage, Griego vs New Mexico, holds that although state marriage laws do not expressly prohibit same-sex marriage, taken as a whole, they have that effect.  Therefore, New Mexican marriage laws, being subjected to the court's "heightened scrutiny" were found to violate the Equal Protection clause of the NM constitution.

The Supreme Court of New Mexico held:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.  Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified.  Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution.  We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law.

 To accomplish this, the NM Supreme Court exercised its power of superintending control, expressly granted by the state  constitution, over all inferior [trial] courts and, by extension, the county clerks where state marriage licenses are issued.  Some legal critics and state legislative opponents will see this as the poisonous fruits of an activist court.

We here at the Law Blogger have been tracking this civil rights movement since the early-days of the Perry case in California back in 2009.  What we are noticing now is the significantly increased and fervent pace of these decisions across the nation.

Most of the legal pundits, commenting last summer as the nation awaited the SCOTUS decisions in Perry and Windsor, assumed that same-sex marriage would evolve slowly like the prior civil rights struggles for racial and gender equality.  As we can see from the brisk state-by-state output, the pace of change is quickening.

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Posted in: Griego v New Mexico,New Mexico,same-gender marriage,same-sex marriage,United States v Windsor

Same-Sex Marriage Going Federal: Utah and Ohio

Increasingly, same-sex marriage cases erupting across the nation are finding their way into federal court.  In the post United States v Windsor marriage jurisprudence, couples are challenging state constitutional bans on gay marriage by leaps and bounds.

Christmas Eve saw two important cases pending in federal courts in Utah and Ohio continue the momentum toward recognition of same-sex marriages.

The latest state to test these waters is Utah where three same-sex couples filed suit in federal court against the Governor and the Attorney General challenging Utah's state law ban against gay marriage.  The federal court judge assigned to the case recently ruled that the Utah marriage law violated the couples' due process rights and their equal protection under the law.

Utah's AG immediately filed an emergency appeal in the 10th Circuit Court of Appeals to stay the federal judge's order while his appeal is pending.  The AG's motion to stay was denied in a concise 2-page order issued by the 10th Circuit on Christmas Eve.

Without a stay in place, the floodgates were opened and exploited by couples awaiting recognition of their marital status: 300 couples were married in Salt Lake County alone.

Meanwhile, in Ohio, the federal court judge presiding over the death certificate challenge, the subject of an earlier blog post, ruled that valid out-of-state same sex marriages must be reflected on Ohio death certificates.

This momentum will undoubtedly continue as the Windsor decision takes root.  As this post is being written, our blog roll is lighting-up with decisions arising out of cases in New Mexico, Indiana and Oklahoma.  Stay tuned as we try to stay abreast of significant developments.

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Posted in: due process,equal protection,same-sex marriage,United States v Windsor,Utah

Polygamy Gains Ground in Utah Federal Court Ruling

Kody Brown & his 4 Sister Wives

By:  Timothy P. Flynn

Kody Brown, star of the reality-television series Sister Wives, has another reason to go to the bank beside his popular television show.  Late Friday afternoon, a federal judge struck a portion of Utah's 1973 anti-polygamy law in the Browns' federal law suit against the State of Utah.

Judge Clark Waddoups released a 90-page decision in the case; a virtual tour de force of the law of privacy, the First Amendment, marital law and polygamy within the Mormon Church in Utah.  In striking down the Utah law, Judge Waddoups emphasized the Browns' right to privacy in the context of his First Amendment right to the free exercise of religion.

Interestingly, Brown is not a Mormon but a member of a religious sect that believes in "religious cohabitation".

The decision cites to a series of landmark SCOTUS decisions on marital law, starting with Reynolds vs United States, which outlawed polygamy in the US back in 1879.  Judge Waddoups' rationale relied heavily on Lawrence vs Texas, the 2003 case that struck anti-sodomy laws as unconstitutional, and Griswold vs Connecticut, the seminal case for the right to privacy in the boudoir for consenting adults.

Notably absent from the Court's analysis was any citation to the United States vs Windsor same-sex marriage decision.  The Windsor Court's focus was on equal protection and federal benefits; Judge Waddoups, on the other hand, focused on substantive due process and the right to privacy under the First Amendment.

Both cases evidence a willingness on the part of the federal judiciary to re-examine the constitutionality of once prohibited relationships, particularly in the context of the marriage contract.

The Browns' lawyer, George Washington University Law Professor Jonathan Turley, declared on his web site that the ruling was a major constitutional breakthrough in the protection of individual rights.  Professor Turley told the NYT that the ruling was more about privacy rights than polygamy, opining that polygamists and gay couples have a common interest: "the right to be left alone as consenting adults."

If Utah appeals, the case could get some legs and wind up on the SCOTUS docket in a few terms.  We here at the Law Blogger will keep on eye on this interesting case as the definition of "marriage" continues to evolve.

Post Script:  Here is a link to the National Law Journal's interview with the Browns' lawyer.  To dig deeper, here is the SCOTUSBlog post on this ruling.

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Posted in: Jonathan Turley,Kody Brown,polygamy,religious cohabitation,Sister Wives,United States v Windsor

Illinois Becomes 16th State to Legalize Same-Sex Marriage

Springfield, Illinois, the Land of Lincoln, was the site of the execution of a law making Illinois the 16th state in our Union to legalize gay marriage.  Last week, Democratic Governor Pat Quinn, writing on a desk said to be used by President Abraham Lincoln, used 100 pens to ink the law into full force and effect.

The law, officially known as the Religious Freedom and Marriage Fairness Act, takes effect June 1, 2014.  Illinois recognized "civil unions" prior to the crucial votes putting the bill over the top by state legislators earlier this month.

34 states still prohibit same-sex marriage under the law.  The practice is far from universally accepted, despite the momentum that the civil rights has garnered over the past 24-months, especially in the wake of the SCOTUS's seminal United States v Windsor decision.  The local Catholic Bishop near Springfield, IL lamented the execution of the new law with a feigned exorcism.  Really?

It will not be too long before the movement picks-up a few more states by judicial decree thanks to the Windsor decision.  Some state legislatures, on the other hand, are not planning to stray from the traditional view of marriage any time soon.

Politics and politicians being fickle, we suggest you stay tuned for further developments.

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Posted in: Abraham Lincoln,civil union,Governor Pat Quinn,same-sex marriage,SCOTUS,United States v Windsor

Ohio's Patch in the Same-Sex Marriage Quilt

Since the SCOTUS decisions in United States -v- Windsor and Hollingsworth -v- Perry last summer, the civil rights push for same-sex marriage equality has picked-up momentum throughout the country.

State legislatures and federal bureaucrats have taken action across the land, as we noted at the Law Blogger here, here, here, and here.  State and federal judges are making decisions on a variety of same-sex marriage cases in the wake of the SCOTUS rulings on the issue; check-out our post on the same-sex adoption case pending in federal court in Detroit, here.

Now Ohio has a contribution through a federal judge's ruling on Friday in a case involving who can be named on a decedent's death certificate as a surviving spouse.

The cases involve two gay couples from Cincinnati who were married in states that recognized gay marriage.  Each couple lost a partner; the surviving partner sought to be named on their decedent's death certificate for practical purposes such as burial, as well as for symbolic reasons.

The funeral director was added strategically as a plaintiff; his attorneys requested that the chief of Ohio's health department be ordered to instruct all funeral directors and coroners to list same-sex surviving spouses on death certificates.  Attorneys for the State of Ohio sought to have the funeral director removed as a party to the civil rights litigation.

The federal judge's ruling is significant to the extent that it allowed the funeral director to remain a party in the case thereby making the judge's ultimate decision in the case applicable to all same-sex married couples in Ohio and other states.

Regardless of the final decision of the federal district court judge in this case, like the same-sex adoption case currently pending here in Michigan, these matters will be appealed to the United States Sixth Circuit Court of Appeals and then, possibly on to the SCOTUS.  We here at the Law Blogger see these separate cases, percolating up from adjacent states at the same time, as potential for consolidation when and if they are considered by the SCOTUS in the not-so-distant future.

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Posted in: death certificate,funeral director,Hollingsworth v Perry,same-sex marriage,SCOTUS,United States v Windsor

Michigan Same-Sex Marriage Case Scheduled for Hearing

By: Timothy P. Flynn

Earlier this year, United States District Court Judge Bernard Friedman held in abeyance the case challenging Michigan's ban on gay marriage until SCOTUS decided the United States v Windsor case in June.  Now, in the wake of Windsor -which struck down the Defense of Marriage Act banning federal benefits to gay couples- a hearing has been scheduled for mid-October in the Michigan case.

April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, filed the federal law suit because Michigan law prevents them from adopting each other's children.  The Michigan Attorney General is opposing the suit, asserting the couple's claim merely seeks to avert a valid Michigan law: the 2004 constitutional amendment defining a legal marriage as solely between a man and woman.

This case has been attracting much attention with Judge Friedman allowing several groups to file briefs in the case.  The Michigan Catholic Conference, on one side, asserts that the 2004 Marriage Amendment advances a valid state interest: the preservation and proliferation of family life through traditional marriage.  On the other side, a group of law professors at the Cooley Law School, along with other constitutional law scholars from across the country, assert that Michigan's Marriage Amendment should be subjected to a "heightened scrutiny" on the basis the amendment does not advance a legitimate state interest.

Whatever Judge Friedman does in this case, his decision will be appealed to the Sixth Circuit Court of Appeals in Cincinnati and then on to the SCOTUS, with perhaps a post-Windsor companion case or two. We here at the Law Blogger knew that it would not be long before Michigan joined in the fray of what has become the civil rights issue of our time.

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Posted in: adoption,April DeBoer,Cooley Law School,DOMA,Jayne Rowse,Judge Bernard Friedman,Marriage Amendment,Michigan Catholic Conference,same-sex marriage,United States v Windsor

SCOTUS Hears Same Sex Marriage Cases Today

We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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Posted in: 14th Amendment,California,David Boies,Hollingsworth v Perry,Justice Ruth Bader Ginsburg,Proposition 8,Roe v Wade,same-sex marriage,SCOTUS,Ted Olson,Texas,United States v Windsor