U.S. Supreme Court adds same-sex marriage cases to Sept. 29 agenda

WASHINGTON — The Supreme Court has formally added same-sex marriage cases to the justices’ agenda for their closed-door conference on Sept. 29.

The action Wednesday does not mean that the court will decide that day to hear state appeals of lower court rulings that struck down bans on same-sex marriage. But the late September conference will be the first time the justices have the issue before them. The meeting will be the justices’ first since late June.

Appeals have been filed from Indiana, Oklahoma, Utah, Virginia and Wisconsin. The gay couples who won in each case in the lower courts also favor Supreme Court review.

The justices could put off deciding whether to take up the issue of marriage equality until January and still be able to issue a decision by late June.

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Clinton adviser: LGBT rights a defining achievement of Obama’s presidency

While many liberal policy goals have proved elusive during Barack Obama’s presidency, there have been dramatic advances on the issue that once seemed quixotic — the legalization of same-sex marriage.

Marriage equality was not a cause embraced by Obama until late in his first term, yet he is now a fervent supporter.

For gay rights activists, the pace of change has been striking, and one former Democratic adviser boldly proclaims LGBT rights could be a defining achievement of Obama’s presidency.

There are now 19 states that allow same-sex marriage, compared to two in 2008. Bans in the remaining states are being struck down by federal judges at a rapid rate that could presage a Supreme Court ruling legalizing it nationwide.

What’s distinctive about the marriage campaign is that it has been able to proceed at the state level, unencumbered by the paralyzing gridlock in Congress. In contrast, efforts by Obama and his Democratic allies to overhaul the immigration system, tighten gun control laws, raise the federal minimum wage and combat climate change have run aground in the partisan divides on Capitol Hill.

The paramount Obama initiative that did clear Congress — his health care overhaul — remains entangled in various controversies and its long-term legacy is uncertain. On immigration and many of the other issues, he’s resorting to unilateral executive action, often angering his critics on the right while failing to fully satisfy activists on the left.

Given those realities, Richard Socarides, a former Clinton White House adviser on gay rights, makes a case that same-sex marriage and other gay rights advances represent a singular achievement for progressives during the Obama presidency.

“Barack Obama has accomplished more progressive social change on gay rights than anything else,” Socarides said.

During his first term, Obama helped change military policy so gays could serve openly, but said his views on same-sex marriage were still “evolving.” Under constant pressure from gay-rights activists, he endorsed it in 2012, and since then his administration has moved aggressively to maximize federal recognition of married gay couples even in states that ban same-sex marriage.

“The reason why he has that record now is because, publicly and privately, we really held his feet to the fire,” said Socarides, referring to the activists’ pressure.

Neera Tanden of the Center for American Progress, a liberal think tank, said the changes unfolding at the state level on marriage equality reflects evolving public opinion and the growing influence of 18-to-29-year-olds. Among millennials, support for gay marriage is stronger than for other age groups.

“You have a country that is diversifying, and at same time you have a House of Representatives that is kind of a block against the wishes of the rising majority,” said Tanden, the CAP’s president.

Obama’s stance on same-sex marriage and LGBT rights will guarantee him “a very strong progressive legacy,” said Ethan Geto, a gay rights lobbyist and Democratic political consultant in New York.

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Will the U.S. Supreme Court finally settle the issue of marriage equality?

Mark Shermin, AP

WASHINGTON — Both sides in the same-sex marriage debate agree on one thing: It’s time for the Supreme Court to settle the matter.

Even a justice recently said she thinks so, too.

The emerging consensus makes it likely that the justices soon will agree to take up the question of whether the Constitution forbids states from defining marriage as the union of a man and a woman. A final ruling isn’t likely before June 2015, but a decision to get involved could come as soon as the end of this month.

“I don’t see a lot of reasons for them to wait,” says Dale Carpenter, a gay rights expert at the University of Minnesota law school. “You have almost no one at this point opposed to certiorari,” the legal term for high court review.

Officials in five states in which marriage bans were struck down by federal courts have rushed their appeals to the Supreme Court, in time for consideration by the justices when they meet in private on Sept. 29. Moving at breakneck speed, at least for the legal system, Indiana and Wisconsin filed appeals on Tuesday, just five days after the federal appeals court in Chicago struck down their state bans.

The Chicago decision itself came just nine days after judges heard arguments, extremely fast for a process that usually is measured in months. Officials in Oklahoma, Utah and Virginia also have appealed to the Supreme Court.

Adding to the momentum, the winners in all those cases – who typically want to preserve their lower court victories and would normally oppose Supreme Court review – want the justices to weigh in. As expected, so do the losers.

In all, 36 states, encompassing both those that allow same-sex marriage and those that don’t, want the justices to join the fray. Thirty businesses, including Alcoa, Amazon, eBay, General Electric, Intel, NIKE, Pfizer and Target, say the Supreme Court should extend same-sex marriage nationwide because the “current patchwork of state laws causes employees justifiable uncertainty about how their employers and governments will treat their familial relationships.”

The range of cases seems to meet the standard set by Justice Ruth Bader Ginsburg when she predicted in an interview with The Associated Press in July that the court would not look for ways to avoid ruling on same-sex marriage, as it did for many years on interracial marriage bans.

“I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation,” Ginsburg said. “If a case is properly before the court, they will take it.”

The speed at which same-sex marriage has moved through the courts stems from the Supreme Court’s decision less than 15 months ago in U.S. v. Windsor to strike down a provision of the federal Defense of Marriage Act that denied a range of tax, health and veterans benefits to legally married gay couples.

Since that decision, nearly two dozen judges have relied on Justice Anthony Kennedy’s opinion for the court to extend the Windsor decision to strike down state same-sex marriage bans in every region of the country. Only one federal trial judge, Martin Feldman in Louisiana, has upheld a state anti-gay marriage law. Elsewhere, two appellate judges have dissented from rulings in favor of same-sex marriage.

“We all know this is going to be decided one step up,” attorney Monte Stewart said Monday in his court presentation in support of gay marriage bans in Idaho and Nevada.
“And we all know by whom,” said appellate Judge Stephen Reinhardt.

Reinhardt was referring to Kennedy, the deciding vote in the Windsor case and the author of all three major gay rights decisions at the Supreme Court stretching back to 1996.

“Justice Kennedy has built himself quite a legacy on gay rights issues,” said the University of Minnesota’s Carpenter, doubting that Kennedy would repudiate that legacy by casting a likely decisive vote against the right to marry.

The Windsor decision expressly left open the question of whether states could limit marriage to a man and a woman, yet “courts are all looking to the Supreme Court’s Windsor precedent as the rule of decision for challenges to state marriage laws,” Colorado and 16 other states that do not allow same-sex marriage told the court in support of the state appeals.

Gay and lesbian couples can now get married in 19 states and the District of Columbia. Judges in an additional 14 states have struck down prohibitions but put the rulings on hold pending appeals. The federal appeals court in Cincinnati could issue a decision at any time affecting Kentucky, Michigan, Ohio and Tennessee. Appellate judges in San Francisco heard arguments Monday over bans in Idaho and Nevada.

The situation is strikingly different from the last time a state’s same-sex marriage ban came to the Supreme Court – and that was only two years ago. Same-sex marriage then was legal in just six states.

“Talk about a journey. It’s a movement that took a long time to get going, but it has really snowballed in the last two years,” said James Esseks of the American Civil Liberties Union, which represents gay couples seeking to marry in Indiana, Virginia and Wisconsin.

Then, supporters and opponents of gay marriage squared off over whether the justices should even hear the case. Opponents urged Supreme Court review, while supporters pleaded with the justices to stay out of it. After all, they had won what they wanted in the lower courts, the invalidation of California’s Proposition 8.

The court eventually agreed to hear the California case as well as the federal Defense of Marriage Act case. The justices issued a technical ruling in the California case that eliminated Prop 8 but left for another day whether same-sex couples elsewhere have a constitutional right to marry.

The prevailing view is that day will soon arrive.

FLORIDA AG Pam Bondi Appeals Gay Marriage Rulings in Florida

MIAMI — Florida Attorney General Pam Bondi filed appeals late Friday on several rulings overturning the state’s ban on gay marriage.

The motion argues the sole legal issue is the constitutional validity of the state ban and any changes should come from voters, not the courts. Florida voters approved the ban in 2008.

Bondi’s office said the agency joined the appeals to promote an orderly and consistent resolution after several judges around the state recently overturned Florida’s ban on same-sex marriage. Bondi has asked judges to stop ruling on same-sex marriage cases until the U.S. Supreme Court decides whether states can ban gay marriage. A number of similar rulings around the country have been put on hold while appeals are pursued.

The Supreme Court is the ultimate authority and “that court has held that a traditional definition of marriage does not implicate federal due process or equal protection,” according to the motion.

Judges in four Florida counties — Palm Beach, Monroe, Miami-Dade and Broward — have overturned the ban. A federal judge has also overturned the ban. U.S. District Judge Robert L. Hinkle in Tallahassee ruled on Aug. 21 that the ban violates the 14th Amendment’s guarantees of equal protection and due process. Hinkle issued a stay delaying the effect of his order, pending possible appeals.

The latest Florida ruling came in a pair of lawsuits brought by gay couples seeking to marry in Florida and others who want to force Florida to recognize gay marriages performed legally in other states.

Bondi’s motion argues that the question is not whether the gay marriage ban is a good policy, but whether the ban rationally relates to a legitimate state interest.

The issue “is whether a challenger can demonstrate that there is not even a conceivable reason for Florida voters to define marriage as they have.” Bondi, a Republican, has appealed previous rulings striking down the ban. Hinkle’s ruling allows time for appeals in the federal case. Bondi wants the Florida cases to remain on hold pending a definitive national ruling on gay marriage by the U.S. Supreme Court.

No marriage licenses have been issued so far as the cases have either been appealed or judges have issued a stay to delay the effect of the ruling.

The Florida Supreme Court recently declined an appellate court’s request to consider the constitutionality of the state’s gay-marriage ban.