Showing posts with label Gay Bans. Show all posts
Showing posts with label Gay Bans. Show all posts

April 22, 2018

Laws Banning Being LGBT Need To Be Banned~~List of Commonwealth Countries Banning Being Gay

Gay rights activists from Commonwealth countries are demanding that laws banning homosexuality should be overturned.
Campaigner Peter Tatchell has said people face violence and imprisonment just because they are gay.
The British Foreign Secretary, Boris Johnson, promised the Olympic diver Tom Daley that he would raise the issue at the Commonwealth summit. 
So, where is homosexuality still outlawed?
There are 53 countries in the Commonwealth and most of them are former British colonies.
Out of those, 37 have laws that criminalize homosexuality.
That number will fall by one after a court ruling in Trinidad and Tobago this month found that laws banning gay sex were unconstitutional
Tom Daley poses with two medal he won at the the Budapest 2017 FINA World Championships on July 22, 2017 in Budapest, Hungary.However, there may be an appeal.  Many of the laws criminalizing homosexual relations originate from British colonial times. 
And in many places, breaking these laws could be punishable by long prison sentences.
The International Lesbian, Gay, Bisexual, Trans and Intersex Association (Ilga) monitors the progress of laws relating to homosexuality around the world. 
According to its research, there have been arrests for homosexual acts in 15 Commonwealth countries in the last three years.
For instance, in 2017 the BBC reported that 40 men in Nigeria had been arrested during one weekend for performing homosexual acts.
Some observers note that the risk of prosecution in some places is minimal. 
For example, a 2017 report on Jamaica by the UK Home Office said that Jamaica was regarded as a homophobic society but that the "authorities do not actively seek to prosecute LGBT persons". 
On the other hand, some countries' existing laws have been tightened, including Nigeria and Uganda. 
Countries that criminalize homosexuality today include criminal penalties against women who have sex with women, although the original British laws applied only to men.
An Indian gay rights activist protests a ruling in the Supreme Court in 2013 that upheld a law which criminalises gay sex.Meanwhile, activist groups say the ability of lesbian, gay, bisexual and trans (LGBT) organizations to carry out advocacy work is being restricted.
A spokesperson from the Commonwealth Secretariat said: "We work with national human rights commissions to help encourage national dialogue when it comes to LGBT rights. 
"They are in the unique position of being able to advise government and parliament." There is a global trend toward decriminalizing same-sex acts and some Commonwealth countries have taken similar steps in the last few years. 
Despite many differences among Commonwealth countries, similar legal frameworks and a shared language make advocacy and initiatives for reform easier, says Tea Braun, director of the Human Dignity Trust, which advises on gay rights legal cases.
For instance, in Belize, laws that criminalize same-sex acts were struck down by the court in 2016 and in the same year, the parliaments in the Seychelles and Nauru voted to decriminalize homosexuality. 
The year before, Mozambique dropped a colonial-era clause outlawing "vices against nature". 

What next?

Campaigners around the world are involved in a number of legal cases and some high profile ones may come to a conclusion in the near future. 
This year the high court in Kenya is due to announce a judgment on whether it will remove sections of its penal code that criminalize homosexuality. 
A decriminalization case has been started in Botswana.
Judges in the Supreme Court in India said they will review a colonial-era law that was reinstated in 2013
The Indian law that banned gay sex was initially overturned in 2009.
Meanwhile, Sri Lanka has included references to sexual orientation and gender identity in its revised draft constitution.

The full list of countries where homosexuality is outlawed:

Botswana, Cameroon, Gambia, Ghana, Kenya, Malawi, Mauritius, Namibia, 
Nigeria, Sierra Leone, Swaziland, Uganda, Tanzania, Zambia, Bangladesh, Brunei Kingdom, India, Malaysia, Pakistan, Singapore, Sri Lanka, Antigua and Barbuda Barbados Dominica, Grenada, Guyana, Jamaica, St Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Kiribati, Papua, New Guinea, Samoa, Solomon, IslandsTonga, Tuvalu.

March 15, 2017

From Iran to Iraq Lesbian Caught in Travel Bans

President Trump's revised travel ban – which suspends visas from six predominantly Muslim countries and suspends refugee admittances – goes into effect at 12:01 a.m. March 16. It covers citizens of Somalia, Sudan, Iran, Yemen, Syria and Libya and has been denounced by more than 130 foreign policy experts. 
Iraq, included in the original ban Trump announced, is no longer on the list of affected countries. But the new order is still affecting some in Iraq who are seeking asylum in the U.S. 
NPR reached an Iranian lesbian asylum seeker in the Iraqi city of Erbil, just as she realized her hopes of reaching the U.S. would almost certainly be dashed by the revised executive order. She gives her name as Bahar – she's afraid to reveal her family name because it could cause problems for her family back in Iran. 
Bahar says her initial optimism has turned to depression and anxiety, as her relocation process has dragged on for nearly two years. 
"I don't really know what to do, I was hoping so much that I could get my flight to America before the crackdown resumed," she says. "My whole time here I've been under pressure – I was not just criticized, I was assaulted, both for being Iranian and being lesbian." She says human rights groups are aware of her situation, "but so far, there's no way forward for me, I'm stuck." 
Bahar says the problems she faced back at home did not come from her own family, but from relatives of her partner, who condemned lesbian relationships as immoral and sought to cause trouble for her. Bahar says things came to a head in 2014. 
"I traveled to the Pride March in Istanbul," she says, "and when I got home, the government found out where I'd been and began to make trouble for me. I was told I was likely to be arrested and prosecuted." 
She says the pressure grew so great that she and her partner ended their relationship, and Bahar fled to Erbil. She says it took her nearly a year-and-a-half to get her main U.S. asylum interview. Just last month, she was elated to get her medical exam completed, thinking it meant approval to travel to the U.S. would follow shortly. 
But in the meantime, the new administration in Washington launched its campaign to stem immigration, especially from Muslim countries — though administration officials deny the executive orders on immigration amount to the "Muslim ban" Trump promised as a candidate. 
When the U.S. court system blocked the initial travel ban, Bahar remained hopeful. But her case wasn't yet given final approval. Now she's facing the reality of being trapped in Erbil for an extended period. 
"It's been two years, I have very bad financial problems, and things are difficult for me here in Erbil," she says. "This is a very conservative, religious society and I face lots of problems here. People criticize the way I look, the way I dress, they ask why do I dress like a boy?" 
She says she lost her job and had to move to new quarters, and the new travel ban — which she learned about from a reporter — has left her feeling desperate. 
"I'm completely depressed, and I don't know what to do," she says. 
Part of the problem, she says, is feeling completely isolated. She says she has yet to connect with any other LGBT asylum seekers in Erbil. 
"As far as I know, I'm the only Iranian LGBT case in Erbil, maybe the whole of Iraq," she says. "I can't get any information out of [the U.N. refugee agency], the only bits of information I get are from Iranian refugees in Turkey. The only thing I can do is try to keep my spirits up and not give up hope." 
A State Department official declined to comment on Bahar's case in response to NPR's request. 
NPR has interviewed other LGBT Iranians in similar situations. Two gay men who made their way out of Iran to Turkey are now safely in the U.S. Iranians say they’ve seen that the system can work – but if and when it might work for Bahar and others in her situation is now a painfully uncertain question.

 NPR. To see more, visit

December 22, 2014

Social Media Apps Killing Cruising Bars in NZ


SHUT DOWN: Paul Heard has closed his bar, Urge, calling it a "tough" move.

SHUT DOWN: Paul Heard has closed his bar, Urge, calling it a “tough” move.  

Social media apps are killing the gay bar scene, claiming as their latest victim New Zealand's longest-running gay venue.
Urge in Auckland is the ninth gay bar to shut down in New Zealand over the past two years because of dwindling patronage, echoing the closures of international gay hotspots in New York, San Francisco and Sydney.
Sociologist Michael Stevens blames the internet, as apps such as Grindr, and social change, render such venues redundant.
"In the past you had to go to a venue to meet other LGBT [lesbian, gay, bisexual, transgender] people, today you don't."
Now people can just grab a phone, swipe left or right according to preference - at work, in bed or in a meeting.
Social change, particularly the legalising of gay marriage, has also played a role.
"Gay bars were a safe place to see a friendly face and not be judged," said Shane Way, event manager and performer for Hamilton's gay bar Shine, which shut down in March.
"These day it's become more accepted in society so gay people don't just go to gay bars."
But this doesn't translate to equality, said Stevens: "It's still not true to say that a gay couple can walk into any venue, hold hands, kiss and dance together in the same way straight couples can."
Urge co-owner Paul Heard announced the bar’s closure this month after 17 years, describing it as the "toughest day I've had". 
He bought the bar with former romantic partner and current business partner, Alan Granville, nearly 10 years ago.
"We actually met at Urge and bought it when the owner was in bad health so we could save it."
Stevens said many LGBT venues, like Urge, were set up in cheap fringe areas of the city 10 or 20 years ago but that real estate is now more desirable. In 10 years, rent and rates have skyrocketed from $66,000 a year to nearly $200,000.
And cheaper alcohol at supermarkets encourages punters to "pre-load" before hitting town.
"They are businesses and need to turn a profit but they have also operated as community centres and meeting points."
Heard has watched the impact of the internet on the gay community. "People's ability to communicate on a one-to-one basis has changed. I get guys in the bar sitting on their phone chatting to somebody on the other side - the app says they're zero metres away.
"Winter is our worst time for customers. Years ago it didn't seem to bother them but now they can stay at home and find someone who will come to their door, literally."
He's worried about the loss of a community, saying men still don't come through the front door because of the fear of stigma.
"There's a reason Urge is so hard to find - we don't have rainbow flags flying out the window. Anybody can feel safe here, especially younger guys who are coming to terms with the whole thing. People might go more underground again."
We're yet to see the full impact of hook-up apps, said social media researcher Richard Pamatatau.
"With internet dating, people looked at that as a thing for people who were desperate losers but now there's no shame in doing it.
"There will always be that moment where someone spies the beautiful girl across the bar and that chemistry happens, there's just more choices now - you can say if you like beards or sporty people."
So will Tinder (the "straight" hook-up app) do to straight bars what Grindr has done in the gay community? "The challenge is for hospitality to find ways to challenge this new technology, I don't know how, though."
 - Stuff

November 7, 2014

US 6th Circuit judges behind the last badge of gay marriage bans rulings


A look at the judges on the 6th U.S. Circuit Court of Appeals panel that on Thursday upheld anti-gay marriage laws in Ohio, Michigan, Kentucky and Tennessee:
Nominated by: President George W. Bush
Commission date: May 7, 2003
Education: University of Akron, bachelor's and law degrees.
Prior legal experience: Includes justice on Ohio Supreme Court, 1995-2003; judge on Court of Appeals of Ohio, Ninth Appellate District, 1991-1995.
Noteworthy: In January, Cook authored the majority opinion reinstating Kentucky's ban on grocery stores and gas stations selling liquor. She also took part in a case over the use of the title "Soul Man," concluding in October 2013 that the movie "Soul Men" and its soundtrack bore some resemblance to Sam Moore, known as "The Legendary Soul Man," but not enough to warrant a copyright violation. Cook publicly apologized for making two political donations after she was appointed as a federal judge, a position in which she is barred from making such contributions.
Nominated by: President Bill Clinton
Commission date: Nov. 22, 1993
Education: Vanderbilt University, bachelor's and law degrees.
Prior legal experience: Includes associate justice, Tennessee Supreme Court, 1990-1993; associate judge, Tennessee Court of Criminal Appeals, Middle Division, 1975-1990.
Noteworthy: Daughtrey was in the majority in a landmark decision that overturned Michigan's ban on affirmative action in college admissions. She was part of the panel, and later the full court, that took issue with how opponents tried to bar such affirmative action, concluding that the provision ran afoul of the Equal Protection Clause of the 14th Amendment because it put an extraordinary burden on minorities who would have to launch their own statewide petition drive to try to undo the law. The Supreme Court later upheld the Michigan provision.
Nominated by: President George W. Bush
Commission date: May 5, 2003
Education: Williams College, bachelor's degree; Ohio State University, law degree.
Prior legal experience: Includes Ohio state solicitor, 1995-1998; private practice.
Noteworthy: Sutton, a well-respected conservative jurist, made the decisive vote in 2011 in the first ruling by a federal appeals court on President Barack Obama's health care overhaul, when the panel agreed with the administration that the government can require a minimum amount of insurance for Americans. Sutton's opinion raised questions and noted the unusual nature of a law directed at someone who chooses inaction, referring to those "who prize that most American of freedoms: to be left alone."

Read more here:

October 10, 2014

All These Gay Marriage Bans on the way to the bon fire

UPDATE: Gov. Phil Bryant statement:
"In 2004, over 86 percent of Mississippi voters supported a constitutional amendment providing that marriage in Mississippi is valid only between a man and a woman. I will continue to uphold the constitution of the state of Mississippi."
The Fifth Circuit Court of Appeals, which covers Mississippi, could provide the catalyst for the Supreme Court to decide the gay marriage issue once and for all, nationwide.
And it's likely, many legal experts believe, bans on gay marriage such as Mississippi's will fall.
"I am opposed to same-sex marriage, but I believe the time has come for people of faith in Mississippi to prepare for the overturning of our constitutional ban on it," said state Rep. Andy Gipson, House judiciary chairman.
Here's why:
• The U.S. Supreme Court on Monday refused to hear appeals from five states where federal appeals courts declared same-sex marriage bans unconstitutional. This will essentially expand same-sex marriage to 11 states covered by these districts, bringing the total to 30.
• The cases the high court let slide were all federal rulings against gay marriage bans. A ruling from another district appeals court upholding a state's ban would essentially force the U.S. Supreme Court to step in and deal with conflicting rulings. The conservative Fifth Circuit or Sixth Circuit are the most likely to uphold a same-sex marriage ban.
• The Fifth Circuit Court of Appeals on Tuesday agreed to expedite hearing cases challenging Texas' and Louisiana's bans on gay marriage. Early this year, a Texas federal judge ruled the ban was unconstitutional, but issued a stay pending the state's appeal. A Louisiana federal judge recently upheld that state's ban.
• With the Supreme Court this week allowing the decisions against the state bans to stand, legal experts say it's unlikely the court would then rule in favor of any state bans.
"It's really hard to imagine the Supreme Court would have allowed thousands of same-sex couples to get married, including in some very conservative areas like Utah, and then turn around and say, 'Just kidding, there's nothing wrong with state bans,'" said Sarah Warbelow, legal director for the Human Rights Campaign.
Mississippi attorney Wesley Hisaw said, "If the federal government can't discriminate on same sex marriage, logically, how could the state discriminate?" Hisaw is representing Lauren Czekala-Chatham, who is suing to have Mississippi recognize her California same-sex marriage so it can grant her a divorce.
A DeSoto County Chancery judge in 2013 ruled Mississippi's Constitution and laws prevent granting a divorce. The state Supreme Court has agreed to hear Czekala-Chatham's appeal. Gov. Phil Bryant, represented by a Christian legal group, is intervening in the case, opposing the appeal.
Hisaw said he doesn't know when the state high court might hear the case or rule, but it's possible Czekala-Chatham's case "could be the one that goes up there" to the U.S. Supreme Court if it were decided and appealed before other federal cases.
In Mississippi and other Bible Belt states, the gay marriage issue remains contentious.
"I do think the bans are in jeopardy because of out-of-control, rogue renegade judges at every level of our federal judiciary," said Bryan Fischer, director of issue analysis at the Tupelo-based American Family Association. "The federal judiciary has become the place where the Constitution and democracy go to die."
Fischer said federal government and courts should have no jurisdiction over state marriage laws.
"There is no mention of the word marriage or homosexuality in the federal Constitution, so it should be left exclusively to the states," Fischer said.
Brian Little of Crystal Springs, who recently married his longtime partner in an out-of-state ceremony, said the courts are needed to establish fairness.
"Had the South voted on ending slavery or segregation, I'm not sure when those would have ended," Little said. "The courts are here to make educated and fair decisions that are blind, noble and above the level of the general population …. I wish the Supreme Court would go on and strike (same-sex marriage bans) down nationwide."
Gipson, who is also a Baptist minister, said he believes his opposition to same-sex marriage is consistent with the views of most Mississippians. He points to the 2004 vote on a constitutional amendment to prohibit same-sex marriages being conducted or recognized in Mississippi. It passed with 86 percent of the vote.
But Gipson said that legally, the writing appears to be on the wall for such bans with federal courts.
"I've said that preaching at my church," Gipson said. "It's coming. People of religious conviction need to be processing what this means for the culture, and how we will respond to these issues in coming years – how we will maintain our religious convictions in this environment.”
Geoff Pender, The Clarion-Ledger
 Geoff Pender at (601) 961-7266 or Follow @GeoffPender on Twitter.

August 27, 2014

Fed Judge Bristled at the stupid arguments against Bans Vs Gay Marriage


 Federal appeals judges bristled Tuesday at arguments defending gay marriage bans in Indiana and Wisconsin, with one Republican appointee comparing them to now-defunct laws that once outlawed weddings between blacks and whites.
As the legal skirmish over same-sex marriage shifted to the three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago, more than 200 people lined up hoping to get a spot in the hearing room.
Attorneys general in both states are trying to reinstate bans that were ruled unconstitutional in June. The outcome of the case also could directly affect hundreds of couples who were married after federal judges overturned the bans but before their rulings were put on hold pending appeal.
Gay marriage is currently legal in 19 states as well as the District of Columbia, and momentum is building for more states to recognize it. Advocates have won more than 20 court victories around the country since the U.S. Supreme Court struck down a portion of the Defense of Marriage Act that prohibited the federal government from recognizing same-sex marriage in 2013.
Judge Richard Posner, who was appointed by President Ronald Reagan, was dismissive when Wisconsin Assistant Attorney General Timothy Samuelson repeatedly pointed to 'tradition' as the underlying justification for barring gay marriage.
"It was tradition to not allow blacks and whites to marry — a tradition that got swept away," Posner said. Prohibition of same-sex marriage, he said, is "a tradition of hate … and savage discrimination."
Posner frequently cut off Indiana Solicitor General Thomas Fischer, just moments into his presentation and chided him to answer his questions.
At one point, Posner ran through a list of psychological strains of unmarried same-sex couples, including having to struggle to grasp why their schoolmates' parents were married and theirs weren't.
"What horrible stuff," Posner said. What benefits to society in barring gay marriage, he asked, "outweighs that kind of damage to children?"
The answer has to do with "procreation," Fisher answered.
"All this is a reflection of biology," Fisher said. "Men and women make babies, same-sex couples do not… we have to have a mechanism to regulate that, and marriage is that mechanism."
Some couples whose marriages are in limbo lined up outside the 25th-floor courtroom as early as 5 a.m. Among them was Ruth Morrison, a retired Indianapolis Fire Department battalion chief. She noted that because Indiana won't recognize the woman she married in another state as her wife, she wouldn't be able to pass on pension and other benefits if she dies.
"Now Indiana tells us our promises are only good if our spouses are of the opposite sex," Morrison, wearing a fire department uniform, said during a rally ahead of the hearing Monday night.
Lawyers representing both states, along with attorneys for the American Civil Liberties Union and Lambda Legal, a national group working for gay rights, were allotted 20 minutes each to argue their case.
Besides Posner, the judges who heard the case were Ann Claire Williams, a Bill Clinton appointee, and David Hamilton, appointed by President Barack Obama. It's unclear when the court might issue a ruling.
A voter-approved constitutional amendment bans gay marriage in Wisconsin. State law prohibits it in Indiana. Neither state recognizes same-sex marriages performed elsewhere. The lawsuits raise similar arguments on behalf of several gay and lesbian plaintiffs, contending that the bans violate the U.S. Constitution's equal protection guarantee.
Van Hollen noted that Wisconsin has traditionally defined marriage as a union between a man and woman. Zoeller has maintained that his state has a legitimate interest in promoting traditional marriage as a means of encouraging environments where biological parents raise their children.
The ACLU and Lambda Legal have essentially reiterated their equal protection arguments in appeals court filings, arguing that the bans deny gay couples state and federal legal protections and benefits that married straight couples enjoy.
"The freedom to marry is a core aspect of personal liberty for all Americans," the ACLU said in its briefs.
There was some levity during the hearing. As Samuelson struggled to offer a specific reason for how gay marriage bans benefit society, he suddenly noted a yellow courtroom light signaling his allotted time was up.
"It won't save you," Williams told him, prompting laughter in court.
Samuleson smiled, and said: “it was worth a try."
sources: AP and USA Today

August 6, 2014

Challenges to gay bans have been falling like dominoes


State bans on same-sex marriages have been falling around the country since last summer, when the Supreme Court ordered the federal government to recognize state-sanctioned gay marriages. The remaining state bans all face legal challenges to overturn them, and a federal Court of Appeals in Cincinnati will hear arguments Wednesday on cases from Kentucky, Michigan, Ohio and Tennessee.
Gay couples can marry in 19 states and the District of Columbia. A look at where cases pending in other states stand:    ARKANSAS: A state judge in Arkansas’ largest county struck down the state’s gay marriage ban, saying it has “no rational reason” for preventing gay couples from marrying. The state Supreme Court brought the marriages to a halt and is weighing state officials’ appeal. The state has until Sept. 8 to file its argument.

— COLORADO: A state judge struck down the state’s gay marriage ban July 9 but put the ruling on hold pending the outcome of a state appeal. Despite that order, several county clerks began issuing marriage licenses to same-sex couples. Colorado’s Republican attorney general, John Struthers, who is appealing has said he knows it’s only a matter of time until gay marriage is legal there, but that he’ll continue to defend the law. All documents in the case must be turned over by Oct. 20.
— FLORIDA: Judges in three counties have overturned the state’s gay marriage ban, but all stayed their rulings, meaning no marriage licenses will be issued for gay couples pending appeals. A separate lawsuit is pending in federal court seeking to overturn the gay-marriage ban statewide. 
— IDAHO: State officials have vowed to appeal a decision from a federal judge overturning the state’s same-sex marriage ban. A federal appeals court is scheduled to hear arguments Sept. 8.
— INDIANA: A federal judge struck down the state’s ban on same-sex marriage in June, and hundreds of gay couples wed before the state appealed. Arguments are scheduled in federal court in Chicago on Aug. 26.
— KENTUCKY: Attorney General Jack Conway has said he will not defend the state’s ban on same-sex weddings, but the state hired outside attorneys to handle its appeal of a judge’s ruling that overturned the ban. It’s among several appeals that will be heard by federal judges in Cincinnati on Wednesday.
— MICHIGAN: The 6th Circuit is reviewing Michigan’s same-sex marriage ban that was overturned by a federal judge in March following a rare trial that mostly focused on the impact of same-sex parenting on children.
— NEVADA: Eight gay couples are challenging Nevada’s voter-approved 2002 ban, which a federal judge upheld a decade later. The 9th U.S. Circuit Court of Appeals in San Francisco has scheduled arguments for Sept. 8.
  — OHIO: The challenge to the state’s ban is one of several before the Cincinnati-based appeals court that will hear them all Wednesday in a significant session in the wave of legal efforts around the country to overturn marriage bans.
— OKLAHOMA: An appeals court tossed the state’s ban on gay marriages last month but put its ruling on hold on hold pending an appeal, meaning same-sex couples can’t marry in Oklahoma for now. Gov. Mary Fallin has pledged to “fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans.” — TENNESSEE: A federal judge ordered the state to recognize three same-sex couples’ marriages while their lawsuit against the state works through the courts. Tennessee officials are appealing the preliminary injunction to the 6th Circuit in the spate of hearings Wednesday.
— TEXAS: A federal judge declared the state’s ban unconstitutional, issuing a preliminary injunction. The state is appealing to the 5th U.S. Circuit Court in New Orleans, which is expected to soon set a date to hear arguments.
— UTAH: The 10th Circuit Court of Appeals in Denver ruled this summer that Utah must allow gay couples to marry, finding the Constitution protects same-sex relationships, though it put the ruling on hold pending an appeal. The state filed its appeal Tuesday, asking the U.S. Supreme Court to take up the case and uphold the state’s ban.
— WISCONSIN: A federal judge in Madison struck down the state’s ban in June, leading to more than 500 same-sex marriages in the state before the judge put her ruling on hold. State prosecutors filed a brief with the 7th Circuit U.S. Circuit Court of Appeals in Chicago late last month arguing that no fundamental right to gay marriage exists. The court will hear arguments late this month.
— VIRGINIA: A federal appeals court panel in Richmond ruled last week that the state’s voter-approved prohibition on gay marriage is unconstitutional. A county clerk has asked to delay the ruling while it’s appealed to the Supreme Court. If no delay is granted — though the court typically allows them — marriage licenses could be issued 21 days after the ruling. — ELSEWHERE: Other states with court cases demanding recognition of gay marriage are: Alabama, Alaska, Arizona, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, West Virginia and Wyoming. Most lawsuits challenge same-sex marriage bans or ask states to recognize gay marriages done in other states.

May 28, 2014

A Choir of Consistent Judges Striking-down State Bans on Gay Marriage


The headlines are so consistent, they could be written by a computer: “Judge strikes down state ban on gay marriage.”

But the federal judges who have supplied an unbroken wave of victories across the country to supporters of same-sex marriage are more diverse than their rulings would suggest: white and black, gay and straight, nominated by Democrats (most of them) and chosen by Republicans (a few of them).
In Michigan, the message was delivered by a judge who took the bench while Ronald Reagan was president. In Utah, it came from someone who had barely celebrated his first anniversary as a judge.

What they share is a judicial view that would have been unthinkable a generation ago: The Constitution requires that the fundamental right to marry be extended to gay couples.

In Pennsylvania, where the state’s ban was struck down last week, U.S. District Judge John E. Jones III said he kept all 12 of the previous opinions by other federal courts on his desk when deciding his case.

District courts are the trial level of the federal judiciary, and, unlike rulings from appeals courts and the Supreme Court, the decisions of district judges do not create precedents for others to follow.

“But there has to be some kind of momentum effect” to the string of nearly identical rulings, said William Baude, a former clerk to Chief Justice John G. Roberts Jr. who teaches law at the University of Chicago and has closely followed the decisions.

Cases are randomly assigned, but nine of the district judges who have struck down the bans were appointed by either President Obama or former president Bill Clinton. Baude theorizes that the unanimity of the decisions may be a result of quick action by judges who strongly believe that the constitutional right to marriage must extend to gay couples.

Judges who disagree may be moving more slowly, he said. After all the previous decisions have gone a certain way, Baude said, “if you’re someone on the other side, you’ve got to think there’s a decent chance you’re going to be overturned or end up being on the wrong side of history.”

A rush to challenge bans

Since the Supreme Court ruled last summer that the federal government must recognize same-sex marriages performed in states where they are legal, there has been a race to have state bans declared illegal.

Nineteen states and the District allow same-sex marriages, and there are lawsuits in every state — except one, North Dakota — that bars the unions. Challengers have been successful in each case that has been decided, including in conservative states such as Texas, Oklahoma and Utah.

As a result of legislative and judicial decisions — some written with sweeping, history-making language — gay marriages are allowed in every state on the Eastern Seaboard from Maryland to Maine. On the other coast, gay Americans are free to marry from the Mexican border to the Canadian line.

“This is how the country is understanding this issue now,” said James Esseks, director of the ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project. “When judge after judge after judge says the Constitution requires it, that makes a difference to Americans who know this country is governed by the Constitution and the law.”

But supporters of the marriage bans say it’s important to remember that these judges have the first word, not the last.

“They can have all the district judges they want,” said John Eastman, a law professor at Chapman University and chairman of the board of the National Organization for Marriage.

“I quite frankly think they’re building up a big head of steam for the Supreme Court to slap them down.”

Jones, the judge in Pennsylvania, has made controversial decisions before. A 2005 ruling that teaching the theory of “intelligent design” in public schools violated the separation of church and state brought death threats to him and his family.

He is a protege of former governor Tom Ridge (R) and a onetime Republican congressional candidate whose judicial nomination was supported by then-Sen. Rick Santorum (R). Jones braced for “incoming fire” for last week’s decision, he said in a telephone interview, “but the response has been muted.”

The judges’ rulings have come since the Supreme Court’s decision in United States v. Windsor last year struck part of the federal Defense of Marriage Act.

On the one hand, Supreme Court Justice Anthony M. Kennedy said in the majority opinion that states traditionally have defined the requirements for marriage. But on the other hand, he dismissed arguments about procreation and tradition that have been used to justify bans on same-sex marriage.

More than the federalism argument, district court judges have found the lesson of Windsor to be Kennedy’s view that non-recognition of same-sex marriages by the government imposes “a disadvantage, a separate status, and so a stigma upon” the couples and their children.

The judges have also widely cited Justice Antonin Scalia’s fiery dissent in the Windsor case. Scalia said the reasoning in Kennedy’s opinion “arms well every challenger to a state law.”

“I thought Justice Scalia called it the way he saw it,” Jones said in the interview. “I think he was right and very prescient” about how the Supreme Court will act when it receives a case that directly asks the constitutional question.

Rulings lofty and personal

Like some of the other district court rulings, Jones’s decision employs sweeping language. He concludes his 39-page ruling: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Jones said that while he did not think the case was difficult to decide, he “agonized” over how to write his opinion.

“To say I thought it was historical would make me look like an egomaniac,” he said. But unlike other opinions that might be read only by lawyers, “I knew this would be read by a broader audience, and I wanted to take a little more time” to make sure it was more accessible.

Other decisions have had a personal tone. In Virginia, Judge Arenda L. Wright Allen, the commonwealth’s first female African American federal jurist, began her opinion with a 180-word statement from another African American woman from Virginia — Mildred Loving. Loving was married to a white man, and it was their suit challenging Virginia law that led the Supreme Court in 1967 to declare state bans on interracial marriage unconstitutional.

Wright Allen’s opinion, which closed by quoting Abraham Lincoln, was an unapologetic defense of a federal judge’s duty to strike democratically approved laws that violate constitutional standards. “When core civil rights are at stake, the judiciary must act,” wrote the judge, who was nominated by Obama in 2011.

The opinion in the Oregon case was also quite personal. Judge Michael McShane, who has yet to celebrate his first anniversary on the federal bench, is one of nine openly gay federal judges. He has raised a 20-year-old son with a former partner and is helping to raise the nephew of his current partner.

Judges recuse themselves when they have a financial interest in a case or when it especially affects them. But a group that considered asking McShane to drop the case declined to do so after he made clear that he and his partner do not intend to marry.

McShane’s ruling touched on the hardships of growing up gay.

“Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin,” he wrote. “I remember that one of the more popular playground games of my childhood was called ‘smear the queer’ and it was played with great zeal and without a moment’s thought to today’s political correctness.”

He also said that he is aware of the “legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says ‘dad . . . that is so gay.’ ”

Moving up the ladder

Conservative critics of the rulings say some of the decisions read more as policy statements than legal opinions, with flowery language that could be seen as being written for history books.

“Some of them think they are writing short stories,” Eastman said.

Esseks and other supporters of same-sex marriage think the rulings are eloquent. “What is being created is an environment in which the Supreme Court is going to be comfortable ruling for the freedom to marry,” he said.

The rulings by McShane and Jones are not being appealed, and marriages have begun in Oregon and Pennsylvania. But most of the other decisions are being contested, and the action will move to the next rung of the federal judiciary, the appeals courts.

A panel of the U.S. Court of Appeals for the 10th Circuit in Denver already has heard arguments about the Utah and Oklahoma decisions. And three judges of the 4th Circuit in Richmond have heard the challenge to Wright Allen’s ruling.

It was unclear at those hearings whether the streak of victories for same-sex marriage proponents will continue. But the sharp sparring among the appellate judges makes it seem likely that the judicial unanimity will end.

By Robert Barnes

Alice Crites contributed to this report.

March 11, 2014

Court of Appeals with New Orders, Consolidates Challenges to VA. Marriage Bans


The U.S. Appeals Court for the Fourth Circuit on Monday issued three orders relating to two pending cases challenging Virginia's ban on same-sex marriage.
The first case, Bostic v. Rainey, was heard in February by U.S. District Court judge for the Eastern District of Virginia, Arenda L. Wright Allen, who found that Virginia’s constitutional amendment – known as the Marshall-Newman Amendment – defining marriage as solely between a man and a woman and prohibiting any legal recognition of same-sex relationships, is unconstitutional. Allen then issued a stay on her order, meaning that same-sex marriages may not be performed in the commonwealth until the Fourth Circuit rules on whether to uphold or overturn her decision following an appeal by opponents of marriage equality.  
The court agreed to an expedited schedule that Attorney General Mark Herring (D) had proposed in a motion agreed to by all parties. As a result, the opening brief from appellants, those seeking to uphold the ban, will be due March 28, with a response brief from the pro-marriage-equality side due April 11, and a reply brief from opponents of same-sex marriage due April 30.  
The court also approved the state's request to file a separate brief in the case, since Virginia's position on whether the ban is constitutional is different from other appellants' positions, a change that was announced by Herring at a January press conference. As a result, Virginia will file its brief on or before April 11, the same time as the appellees seeking to have Judge Allen’s decision upheld.
The Fourth Circuit court also tentatively scheduled oral arguments to be heard May 12 to 15.
Lastly, the court gave permission to the plaintiffs in Harris v. Rainey (formerly Harris v. McDonnell), Virginia's second case challenging the existing ban on same-sex marriage that is currently pending in U.S. District Court for the Western District of Virginia, to intervene in the Bostic case. As a result, the lawyers representing the Harris plaintiffs will be permitted to file their own brief at the same time as the Bostic appellees, allowing the court to hear arguments from all parties seeking to uphold Allen's ruling overturning the ban.
The Harris case was previously granted class action status on Jan. 31, meaning that any Virginia unmarried same-sex couple or one whose out-of-state legal marriage is not recognized may join the case. The case is still awaiting a decision from the U.S. District Court, but whatever the outcome, once the case is appealed it will be referred to the Fourth Circuit.
The last move, combining the two cases, comes after lawyers for the Bostic plaintiffs, including Ted Olson and David Boies, assisted by the American Foundation for Equal Rights (AFER), objected to an intervention by counsel in the Harris case, led by the American Civil Liberties Union (ACLU), the ACLU of Virginia, Lambda Legal and law firm Jenner and Block.
Nonetheless, AFER issued a press release following the Fourth Circuit's orders, celebrating the court's acceptance of the expedited schedule and welcoming the intervenors to the case.
"AFER is thrilled that the Fourth Circuit has granted its request to expedite the hearing schedule in our plaintiffs' marriage equality case," AFER Executive Director Adam Umhoefer said in the statement. "The Fourth Circuit clearly recognizes the importance of the Bostic case to thousands of gay and lesbian Virginians and their families, and AFER looks forward to presenting our arguments before the court in May. We welcome theHarris case as intervenors in support of our plaintiffs' case."
The ACLU, ACLU of Virginia and Lambda Legal also issued a joint press release celebrating the court's decision.
"We're thrilled that all of Virginia’s same-sex couples will be before the court of appeals together, arguing for the freedom to marry and bringing their many compelling stories to the common cause," Joshua Block, a staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, said in the statement.
"We are pleased the court granted our motion to intervene because the Bostic appeal could decide the fate of not only both couples involved, but also the entire class of more than 14,000 same-sex couples in Virginia whom we represent," said Greg Nevins, the counsel in Lambda Legal's Southern Regional Office. "We are still waiting for a decision in theHarris case, but allowing the Harris class to intervene in the Bostic case allows the two cases to be consolidated on appeal without delaying or disrupting either case. We want the freedom to marry to come to lesbians and gay men in Virginia as swiftly as possible.

Posted by John Riley

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