State of the Union - the lawsuits of the 50 US states

[g_roch]

People outside the US may not realize that the national government does not determine who is or is not married in the United States. Each individual state sets its own rules about who can and cannot get married, and how.

In all cases, for the government to recognize the marriage, the government must issue a license. Then there must be a ceremony (which may be in a church, but doesn't have to be performed by any religion). And then the signed license must be returned to the government. Then and only then are you considered married under the law.

This means that marriage is very complicated, especially because there is a national law that says one state doesn't have to recognize the lawful marriage of another state.

To sort through this confusion of laws, constitutional amendments and lawsuits, someone has helpfully made a map that is (hopefully) accurate (for now). Things are changing VERY fast though.

2014 January 22

GayMarriageLawsuitsMap.jpg

2014 February 12
LawsuitMap.jpg
2014 March 10
Civil Marriage March 10 2014.png

[willboy]

I can only comment on my own state Oregon. The state now recognizes same sex marriages from other states as legally married in Oregon. There are two federal lawsuits pending to declare the constitutional amendment unconstitutional. Also there will be a referendum on the November ballot to repeal that constitutional amendment. In my opinion Oregon will soon join the 17 other states allowing gay marriage. The state government from the governor on down are 100% in favor of gay marriage.

[pamegraie]

thanks Dave for this. Although aware of some parts of your legal system it leaves ignorant at times.

I'm still surprised not in all states theres are pending lawsuits to challenge the amendments or what legal barries they put in place in those states.

[willboy]

There are some 40 federal lawsuits pending in many different states. Three important cases will go to trial soon, Virginia, Pennsylvania, and Michigan. There really is a lot of legal activity. Utah and Oklahoma recently had their state constitutional amendments declared unconstitutional, both of those states are appealing the rulings. Nevada is also at the 9th circuit court for a ruling. What is interesting is in both Pennsylvania and Virginia the state attorney general is refusing to defend the ban in court.

[g_roch]

Well, in general, to sue for marriage, you have to have been denied a marriage license or recognition of your marriage.

However, a compelling story makes a big difference too, so you'll see a lot of families and couples with a terminally ill partner in these suits.

Finding people in these situations, especially in rural states, who are also willing to receive a LOT of media exposure (and potentially put themselves and their children at risk of attack), can be extraordinarily difficult.

[willboy]

That is very true, the job of finding the right plaintiffs can be difficult. What is encouraging to me is this sweeping tidal wave of change in the country. This will only result in many more lawsuits. For example young people 18-39 favor gay marriage by 70%, this is huge and crosses political and red/blue states. I expect that by the election in 2016 the majority of states will have marriage equality.

[g_roch]

That is very true, the job of finding the right plaintiffs can be difficult. What is encouraging to me is this sweeping tidal wave of change in the country. This will only result in many more lawsuits. For example young people 18-39 favor gay marriage by 70%, this is huge and crosses political and red/blue states. I expect that by the election in 2016 the majority of states will have marriage equality.

Four years ago I would have called you crazy for saying that, but now, I have to agree. The opponents of equality have publicly announced that they have lost their cause in the United States, and have begun pouring resources heavily overseas. Hence the backlash in Africa, with crazy claims straight out of the 1950's US. But even there, you are seeing voices speaking up.

China and Vietnam have spoken explicitly to marriage equality. India and China will come around in the next 20 years or so, due to their heavy exposure to the West and their well-educated, middle-class population. Australia and the US are less than 10 years from full equality. And at that point, the majority of the world population - and the overwhelming majority of the world economy - will be in marriage equality countries.

And all of this within our lifetimes. Wow.

[willboy]

The real end of the fight will be when the supreme court rules on gay marriage. I don't expect that will happen anytime soon, as they really appear to want to sidestep the states right vs. 14th amendment issue. In my opinion the supreme court will let any ruling by the appeals courts to stand by not taking an appeal to the high court. At some point in time they will have to rule, but by that time the makeup of the court could be different, and the majority of states will have marriage equality. There is also the DOMA issue of not recognizing gay marriages from other states, which flies in the face of the full faith and credit clause of the constitution.

[g_roch]

I also read an interesting interpretation of the First Amendment that the Establishment Clause doesn't permit private businesses that offer public accommodations (sell things / services to non-members) from establishing a specific faith as a source of policy. That could be interpreted to mean that discrimination is unconstitutional. And if it's unconstitutional for private entities, it's unconstitutional for governments.

Nobody has actually exercised this clause, but should it prove its merits in the courts, it means that equality is supported by two interpretations of the 1st amendment, the 14th amendment (especially backed up by the 1931 interpretation of the 10th amendment), and the Full Faith and Credit Clause.

Now all of this is a serious stretch, of course, and has never been tested in courts, but it is interesting nonetheless.

[willboy]

I believe that the 10th circuit will consolidate the Utah and Oklahoma cases as they are almost identical. That court should rule by summer, and if they rule the states bans are unconstitutional, then those states will file an appeal with the SCOTUS. It will be interesting to see if the court takes their appeal, I think they won't, and we will add two more states with marriage equality.

[jockboy87]

I compiled the list of 30 here based on my own research.

These cases are only the ones seeking the freedom to marry. There are many more just seeking recognition or other rights.

State	Caption	Hearing/Trial Date
Oklahoma	Bishop v. Smith	4/17/14
Nevada	Sevcik v. Sandoval
Michigan	DeBoer v. Snyder	2/25/14
Utah	Kitchen v. Herbert	4/10/14
Arkansas	Wright v. Arkansas Jernigan v. Crane	4/17/14
Pennsylvania	Whitewood v. Wolf Commonwealth v. Hanes Ballen v. Corbett	6/9/14
Virginia	Bostic v. Rainey Harris v. Rainey
North Carolina	Fisher-Borne v. Smith
Kentucky	Franklin v. Beshear Kentucky Equality Federation v. Beshear Love v. Beshear
Texas	McNosky v. Perry De Leon v. Perry Zahrn v. Perry
South Carolina	Bradacs v. Haley
West Virginia	McGee v. Cole
Oregon	Geiger v. Kitzhaber Rummel v. Kitzhaber (Consolitated)	4/23/14
Tennessee	Tanco v. Haslam
Colorado	Brinkman v. Long McDaniel-Miccio v. Colorado
Idaho	Latta v. Otter	5/4/14
Arizona	Connolly v. Brewer
Louisiana	Robicheaux v. George
Florida	Pareto v. Ruvin
Wisconsin	Wolf v. Walker

[willboy]

Good work, I think 30 sounds about right too.

[jockboy87]

Good work, I think 30 sounds about right too.

Thanks. There are more still, perhaps 20 or so cases that are more limited in scope. A number of those just seek recognition, and some seek specific rights.

[g_roch]

I've added the map indicating the state of affairs as of March 10.

Seventeen states plus Washington DC have marriage equality. Twenty-four have lawsuits seeking to either grant marriage equality or recognize out of state marriages. Five have lawsuits seeking to grant privileges generally reserved to married couples.

That leaves just North Dakota, South Dakota, Georgia and Mississippi without pending lawsuits related to marriage equality.