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

Veterans' Benefits and Same-Sex Marriage

As summer concludes and the federal bureaucracy returns to their Washington offices, the fall-out from SCOTUS' United States v Windsor decision continues.  The latest example of bright-line policy declarations comes from Eric Holder, the U.S. Attorney General, regarding veterans benefits for same-sex couples.

In his letter last week to House Speaker John Boehner, the AG instructs Congress that the Executive Branch will no longer be enforcing various sections of federal law dealing with benefits to veterans and their spouses.  To the extent that the targeted portions of the statute mirrored definitions of a married couple as defined in the Defense of Marriage Act, they are stricken.

The effect of this new policy is to open up the availability of federal benefits to same-sex spouses of service members, both active duty and reserves.  Citing the Fifth Amendment's equal protection clause, as well as a recent federal judge's decision that the targeted provisions of the federal veterans benefits statute were unconstitutional on 5th Amendment equal protection grounds, Holder advised Congress that enforcement of these provisions were no longer appropriate.  In doing so, he also remarked that instances where the Executive Branch cannot enforce federal law are, "appropriately rare."

All of these policy pronouncements coming out of Washington over the past few months points to the massive task of re-writing a significant portion of the United States Code in light of the demise of DOMA, and in favor of valid same-sex marriages.  We here at the Law Blogger, while recognizing the significant gains this civil rights struggle has made, have to wonder how well-accepted these new federal laws and regulations will be across the board and throughout the country.

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Posted in: Attorney General Eric Holder,equal protection,Fifth Amendment,same-sex marriage,SCOTUS,Veterans Administration

Same-Sex Marriage: State Legislatures to County Family Courts

Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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Posted in: 14th Amendment,divorce,equal protection,New Mexico,same-sex marriage,SCOTUS,Texas