same-sex marriage

Robert Barnes, writing in the Washington Post, says the possibility of a landmark ruling for same-sex marriage and LGBT rights is looming large over the Supreme Court's upcoming term. A ruling in favor of same-sex marriage "could serve as a surprising legacy of an otherwise increasingly conservative court," Barnes notes. Justice Anthony M. Kennedy, who has authored the most important decisions in protecting the rights of LGBT Americans, likely would be the swing vote in that decision.

Barnes also notes that the court could take up challenges to state laws restricting access to abortion and challenges to the federal subsidies for consumers who bought health insurance on federally run Affordable Care Act exchanges.

The U.S. Supreme Court will be meeting in conference Monday to consider whether to take up the issue of same-sex marriage, writes U.S. News and World Report's Tierney Sneed: "The petitions come from four separate decisions out of three different U.S. Courts of Appeal on cases emanating from five different states."

Garrett Epps, a constitutional law professor, said the Supreme Court isn't likely to take up the issue until a circuit court of appeals upholds a ban on same-sex marriage, leading to a split among intermediate federal appellate courts.

Also at issue is whether bans should be rejected on equal protection or due process grounds: "Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination."

A Louisiana judge has ruled that the state's ban on same-sex marriage is unconstitutional in the case of a couple seeking recognition of their California nuptials, KSLA News reports. A federal judge ruled earlier this year that the state-level ban on same-sex marriage is constitutional, reasoning that "gay marriage supporters failed to prove that the ban violates equal protection or due process provisions of the Constitution."

SCOTUSBlog's Lyle Denniston reports that the Supreme Court will look at the same-sex marriage cases in which governmental officials are seeking to have their bans on same-sex nuptials restored. The court will have a conference on the cases September 29, Denniston reports: "Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both." Some of the cases also asks the justices to specify a standard for scrutinizing the constitutionality of laws that implicate LGBT rights, Denniston adds.

The Seventh Circuit ruled today that Indiana's and Wisconsin's bans on same-sex marriage are unconstitutional, the Associated Press reports. Judge Richard Posner, writing for the court, opined that “'the challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously,'” the Wisconsin Gazette reports.

Yesterday, U.S. District Judge Martin Feldman, who sits in Louisiana, became the first judge to rule that a state-level ban on same-sex marriage was constitutional, the AP also reports. According to the news wire, Feldman opined that "gay marriage supporters failed to prove that the ban violates equal protection or due process provisions of the Constitution. He also rejected an argument that the ban violated the First Amendment by effectively forcing legally married gay couples to state that they are single on Louisiana income tax returns. Furthermore, states have the right to define the institution of marriage, Feldman wrote."

Earlier this month, a Tennessee state-court judge likely became the first in the country to uphold a state's ban on same-sex marriage since the U.S. Supreme Court struck down the federal Defense of Marriage Act as unconstitutional, according to Daily Kos. The ruling came in the case of a same-sex couple who got married in Iowa and seek to get divorced in Tennessee. The judge opined that the definition of marriage '“should be the prerogative of each state. That neither the federal government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility, which is to provide a framework of laws to govern the safety and wellbeing of its citizens.”'

According to the Associated Press, U.S. Supreme Court Justice Ruther Bader Ginsberg says the justices won't duck the issue of same-sex marriage after several courts around the country have found bans on same-sex marriage unconstitutional. She expects a case on the issue to be heard by June 2016.

The Fourth Circuit has become the second circuit court of appeals to uphold a state ban on same-sex marriage as unconstitutional. The Tenth Circuit already ruled that Utah's ban and Oklahoma's bans are unconsitutional, and now the Fourth Circuit has ruled the same for Virginia's ban. The Fourth Circuit, 2-1, ruled today that "'denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the (U.S. Constitution's) Fourteenth Amendment cannot countenance,'" Reuters reports.

There has been a flurry of legal activity eroding Colorado's ban on same-sex marriage. Most recently, a federal judge rejected Colorado Attorney General John Suthers' request to halt proceedings after the judge's decision declaring Colorado's ban on same-sex marriage unconstitutional, the Denver Post reports. Both state and federal judges have declared the ban unconstitutional, and "some attorneys and advocates have accused Suthers of standing alone in opposition," the Post further reports.

The Tenth Circuit has once again acted to strike down a state ban on same-sex marriage. The same panel of judges, 2-1, that voted to strike down Utah's ban on same-sex marriage voted to strike down Oklahoma's ban on same-sex marriage, USA Today's Richard Wolf reports. The dissenting judge, Judge Paul Kelly, is the first federal judge to oppose same-sex marriage in any case, USA Today reports.