1) CRAIG V.
MASTERPIECE CAKESHOP, CR2013-0008, Colorado Administrative Court, December 6,
2013 (public accommodations
discrimination in wedding).
2) COMMONWEALTH OF
AUSTRALIA V. AUSTRALIAN CAPITAL TERRITORY, [2013] HCA 55, Australia High Court,
December 12, 2013 (conflict of state
and federal marriage laws).
3) R V. REGISTRAR GENERAL, [2013] UKSC 77, U.K. Supreme Court, December 11,
2013 (Scientologist’s ability to solemnize marriage).
4) BN0. 04-CV-ROWN
V. BUHMAN, Case No. 2:11-cv-0652-CW, U.S. District Court, District of Utah,
December 13, 2013 (legality of
polygamy).
5) GRIEGO V. OLIVER, Docket No. 34,30, New Mexico Supreme Court, December
19, 2013 (same-sex marriage).
6) IN RE MARRIAGE OF DAVIS, No. 53A01-1305-DR-221, Indiana Court of Appeals,
December 20, 2013 (marriage and gender change).
7) OBERGEFELL V. WYMSLO, Case No. 1:13-cv-501, U.S. District Court, Southern
District of Ohio, December 23, 2013 (same-sex marriage).
8) KITCHEN V. HERBERT, Case No. 2:13-cv-217, U.S. District Court, District
of Utah, December 20, 2013 (same-sex marriage).
9) BISHOP V. UNITED STATES, No.
04-CV-848-TCK-TLW, U.S. District Court, Northern District of Oklahoma, January
14, 2014 (same-sex marriage).
10) IN
THE MATTER OF THE ADOPTION OF JOHN DOE & JOHN DOE I, Docket No. 41463,
Idaho Supreme Court, February 10, 2014
(adoption by unmarried couples).
11)
BOURKE V. BESHEAR, Civil Action No. 3:13-CV-750-H,
U.S. District Court, Western District of Kentucky, February 12, 2014 (same-sex
marriage).
12) BOSTIC V.
RAINEY, Civil No. 2:13cv395, U.S. District Court, Eastern District of Virginia,
February 13, 2014 (same-sex marriage).
13) LEE V. ORR, Case No. 13-cv-8719, U.S. District Court, Northern District
of Illinois, February 21, 2014 (same-sex marriage).
14) TANCO V. HASLAM, Case No. 3:13-cv-01159, U.S. District Court, Middle
District of Tennessee, March 14, 2014 (same-sex marriage).
15) DEBOER V. SNYDER, Civil Action No. 12-CV-10285, U.S. District Court, Eastern
District of Michigan, March 21, 2014 (same-sex marriage).
16) HENRY V. HIMES, Case No. 1:14-cv-129, U.S. District Court, Southern
District of Ohio, April 14, 2014 (same-sex marriage).
17) BASKIN V. ROGAN, 1:14-cv-00355-RLY-TAB, U.S. District Court, Southern
District of Indiana, April 18, 2014 (same-sex marriage).
18) A.L.F.L. V.
K.L.L., No. 2014-CI-02421, Texas District Court, Bexar County, April 22, 2014
(same-sex divorce).
19) ALASKA V.
SCHMIDT, Supreme Court No. S-14521, Alaska Supreme Court, April 25, 2014 (property
tax exemption for same-sex couples).
20) Recent Law
Review Articles (topics: marriage & liberty, religious exemptions,
reasoning of marriage cases, animus).
21) News
Stories (topics: unmarried couple adoption).
CRAIG
V. MASTERPIECE CAKESHOP
CR2013-0008
Colorado
Administrative Court
December
6, 2013
Bakery owner
declined to make a wedding cake for a same-wedding. The couple seeking the cake
filed a complaint with the Colorado Civil Rights Commission which referred it to
an Administrative Law Judge.
The judge said
it is “a distinction without a difference” that the owner objects to same-sex
weddings rather than the complainants’ sexual orientation. The court said: “The
salient feature distinguishing same-sex weddings from heterosexual ones is the
sexual orientation of its participants. Only same-sex couples engage in
same-sex weddings. Therefore, it makes little sense to argue that refusal to
provide a cake to a same-sex couple for use at their wedding is not ‘because
of’ their sexual orientation.” The court said there was no free speech
violation because the owner “was not asked to apply any message or symbol to
the cake, or to construct the cake in any fashion that could be reasonably
understood as advocating same-sex marriage” and the “act of preparing a cake is
simply not ‘speech.’” For the court, “compelling a bakery that sells wedding
cakes to heterosexual couples to also sell wedding cakes to same-sex couples is
incidental to the state’s right to prohibit discrimination on the basis of
sexual orientation.” In regards to free exercise, “refusal to provide a cake
for Complainants’ same-sex wedding is distinctly the type of conduct that the
[U.S.] Supreme Court has repeatedly found subject to legitimate regulation”
because it “is against the law,” “adversely affects the right of Complainants
to be free from discrimination in the marketplace,” and “the impact upon
Respondents is incidental to the state’s legitimate regulation of commercial
activity” so there was “no valid claim” for free exercise. The court ordered
the baker to cease and desist” for “refusing to sell them wedding cakes or any
other product Respondents would provide to heterosexual couples.”
COMMONWEALTH
OF AUSTRALIA V. AUSTRALIAN CAPITAL TERRITORY
[2013]
HCA 55
Australia
High Court
December
12, 2013
Australian national law provides “that a marriage
can be solemnized in Australia only between a man and a woman.” The Australian
Capital Territory enacted a law defining marriage as “the union of 2 people of
the same-sex to the exclusion of all others, voluntarily entered into for
life.” The national government challenged the state law.
The court held the federal Parliament has power to
define marriage to include same-sex couples and that federal law “regulates the
creation and recognition of the legal status of marriage throughout Australia”
and current national law contains “the implicit negative proposition that the
kind of marriage provided for by the Act is the only kind of marriage that may
be formed or recognized in Australia” so the state law is “inoperative.”
R V. REGISTRAR
GENERAL
[2013] UKSC 77
U.K. Supreme
Court
December 11,
2013
A couple wanted to be married in a Church of Scientology but the law did
not recognize the church as a “’place of religious worship.’”
The court noted that UK law allows marriages in non-religious settings
but these can “not incorporate any form of religious service” so unless
Scientology buildings could be used for religious weddings, Scientologists
would “be under a double disability, not shared by atheists, agnostics, or most
religious groups” because “they could have a service in their chapel, but it
would not be a legal marriage, and they could have a civil marriage on other
‘approved premises’” but could not use religious forms. Thus, the court ordered
the church be allowed to be used for religious wedding ceremonies.
BROWN
V. BUHMAN
Case
No. 2:11-cv-0652-CW
U.S.
District Court, District of Utah
December
13, 2013
A man and four
polygamous wives challenged a Utah statute defining bigamy as “’when, knowing
he has a husband or wife or knowing the other person has a husband or wife, the
person purports to marry another person or cohabits with another person.’” The
Utah Supreme Court has interpreted this to provide that “’the bigamy statute
does not require a party to enter into a second marriage (however defined) to
run afoul of the statute; cohabitation alone would constitute bigamy pursuant
to the statute’s terms.’”
The court
first held that “no ‘fundamental right’ exists to have official State
recognition or legitimation of individuals ‘purported’ polygamous
marriages—relationships entered into knowing that one of the parties to such a
plural marriage is already legally married in the eyes of the State.” The
court, though went on to hold that the U.S. Supreme Court’s 19th
Century decision upholding a ban on polygamy, Reynolds v. United States, “is
not controlling for the cohabitation” element of the Utah law and applied
“strict scrutiny to the prohibition of religious cohabitation that this simple
phrase effects in the State of Utah.” Though “the cohabitation prong” is
facially neutral, it “is not operationally neutral.” To the court, a law
prohibiting “fraudulently obtaining a second marriage license in order to enter
into a purportedly legal second marriage while still married to someone else
(bigamy)” would be constitutional. Here, however, “virtually all prosecutions
under the” Utah law “have been of individuals engaging in religious
cohabitation.” The court said the state had to show the law is “a narrowly
tailored means of advancing a compelling state interest.” The court concluded
that “the incongruity between criminalizing religious cohabitation but not
adulterous cohabitation, or rather selectively prosecuting the former while not
prosecuting the latter at all, demonstrates that the cohabitation prong is not
narrowly tailored to advance a compelling state interest.” The court
specifically rejected the state’s asserted interest in “strengthening or
protecting the institution of marriage” since the court believed current law
“encourag[es] adulterous cohabitation over religious cohabitation that
resembles marriage in all but State recognition.” It rejected the interest in
preventing fraudulent marriages since the parties to this case are not seeking
legal recognition. Finally, the court discounted the state’s interest in
preventing ancillary crimes (i.e. underage marriages) since without the law,
“investigators and prosecutors can focus directly on the independent crimes
that are being committed.” The court found the “neutral applicability” test for
free exercise violations was not relevant here because the cause combined free
exercise concerns with “Freedom of Association,” “Substantive Due Process,”
“Equal Protection,” “Free Speech” and “Establishment Clause” claims. The court
said the anti-polygamous cohabitation law was “void for vagueness” and was
without a rational basis.
GRIEGO V.
OLIVER
Docket No.
34,306
New Mexico
Supreme Court
December 19,
2013
Same-sex
couples challenged New Mexico’s marriage law on state constitutional grounds.
The court
first held that the mere fact that the state’s marriage statutes used both
“gender-neutral and gender-specific terminology” did not mean the legislature
intended to recognize same-sex marriages. The court said same and opposite sex
couples are similarly situated because marriage and procreation are not linked in
New Mexico law since the statutes do not require “applicants for a marriage
license to attest to their ability or intention to conceive children through
sexual relationships” and fertility “has never been a condition of marriage,
nor has infertility ever been a specific ground for divorce.” The court said
that rather than procreation, the “purpose of New Mexico marriage laws is to
bring stability and order to the legal relationships of committed couples by
defining their rights and responsibilities as to one another, their property,
and their children, if they choose to have children.” The court said the law
did not constitute sex discrimination because the law “does not result in the
unequal treatment of men and women.” The court pointed to discrimination laws
including “sexual orientation” as proof that “the LGBT community was . . . a
discrete group which has experienced a history of purposeful unequal treatment
and acts of violence.” The court also said “members of the LGBT community do
not have sufficient political strength to protect themselves from purposeful
discrimination.” The court applied intermediate scrutiny to the law and said
the law did not survive this analysis. The court rejected concerns with
“promoting responsible procreation and “responsible child-rearing” since
“opponents admitted that they lacked evidence to show that allowing same-gender
marriages would result in married couples divorcing at an increased rate.” The
court also said “moral disapprobation of homosexual activity and tradition” are
not valid justifications. Children are not important, the court said, to New
Mexico’s marriage laws which only require “partners’ exclusive and permanent
commitment to one another and the State’s interest in their stable
relationship.” The court also suggested “same-gender couples are as capable of
responsible procreation as are opposite-gender couples.” The court said
same-sex couples are harmed by the inability of their parents to divorce. The
court decided not to strike down laws but instead construed “civil marriage” to
“mean the voluntary union of two persons to the exclusion of all others.”
IN RE MARRIAGE
OF DAVIS
No.
53A01-1305-DR-221
Indiana Court
of Appeals
December 20,
2013
A man legally
changed his sex designation on his birth certificate and subsequently sought a
divorce but the trial court said “the marriage was voided when both parties
became female.”
The court of
appeals said Indiana law “does not automatically void a marriage that was
initially valid in Indiana simply because one of the parties to the marriage
has changed his or her gender” and to “conclude that the parties’ marriage
somehow became void when the gender was changed on [plaintiff’s] birth
certificate would permit [the husband] to effectively abandon her own child,
even though the parties were validly married at the time of the child’s birth
and even though [he] is the child’s father.”
OBERGEFELL
V. WYMSLO
Case
No. 1:13-cv-501
U.S.
District Court, Southern District of Ohio
December
23, 2013
A same-sex couple who had gone from Ohio to Maryland to marry sought to
have Ohio recognize the marriage for purposes of designating one of the men as
the surviving spouse in the event the other were to die.
The court said “the right not to be deprived of one’s already-existing
legal marriage and its attendant benefits and protections” is a fundamental
right. The court decided to apply “intermediate scrutiny” because “Ohio is
intruding into—and in fact erasing—Plaintiffs’ already-established marital and
family relations” and Ohio’s law treating “same-sex couples married in other
jurisdictions as a disfavored and disadvantaged subset of people has a
destabilizing and stigmatizing impact on them.” The court said that under
intermediate scrutiny, the state’s “vague, speculative, and unsubstantiated
state interests do not rise anywhere near the level necessary to counterbalance
the specific, quantifiable, and particularized injuries evidenced here and
suffered by same-sex couples when their existing legal marriages and the
attendant protections and benefits are taken from them by the state.” The court
said the state “has the exclusive power to create
marriages” but not to “nullify
already-established marriages.” The court said the state had “unjustifiably
created two tiers of couples”—those whose out-of-state marriages would be
recognized and those whose out-of-state marriages would not. The court said
this distinction classified on the basis of sexual orientation. Orientation,
the court concluded, required heightened scrutiny because gays and lesbians had
experienced a “history of discrimination,” are not “distinctively different
from other groups in a way that” affects society, “[a]s political power has
been defined by the Supreme Court for purposes of heightened scrutiny analysis
gay people do not have it,” and sexual orientation us immutable because
“[t]here is now broad medical and scientific consensus” in favor of that
position and “sexual orientation is so fundamental to a person’s identity that
one ought not be forced to choose between one’s sexual orientation and one’s
rights as an individual—even if such a choice could be made.” The court
rejected any possible justification for the law, saying “the fact that a form of
discrimination has been ‘traditional’ is a reason to be more skeptical of its
rationality.” It also said: “Even if it were rational for legislators to
speculate that children raised by heterosexual couples are better off than
children raised by gay or lesbian couples, which it is not, there is simply no
rational connection between the Ohio marriage recognition bans and the asserted
goal, as Ohio’s marriage recognition bans do not prevent gay couples from
having children.” The court said this conclusion means the law was “passed
because of, not in spite of, its burden on same-sex couples.”
KITCHEN V.
HERBERT
Case No.
2:13-cv-217
U.S. District
Court, District of Utah
December 20,
2013
Same-sex
couples challenged Utah’s marriage laws.
The court
first concludes that the due process right to marry protects “a public
commitment to form an exclusive relationship and create a family with a partner
with whom the person shares an intimate and sustaining emotional bond.” Thus,
the court said Utah was depriving same-sex couples of the right to marry. The
court also concluded the marriage laws were sex discrimination because the sex
of the parties was taken into consideration in the legal definition of
marriage. Although that finding would require heightened scrutiny, the court
said the laws lacked even a rational basis since the purposes of the law are
not connected to the law’s effect. The court says that the only reason the
state might want to link marriage and procreation is to make all opposite-sex
couples have children. Since, he notes, some married opposite-sex couples don’t
have children, recognizing only husband-wife unions as marriages is irrational.
The court concluded the law was unconstitutional.
BISHOP
V. UNITED STATES
No.
04-CV-848-TCK-TLW
U.S.
District Court, Northern District of Oklahoma
January
14, 2014
Same-sex
couples challenged the constitutionality of Oklahoma’s marriage laws.
The court
first said that the Baker v. Nelson dismissal of a same-sex marriage claim by
the Supreme Court was not controlling because “there have been significant
doctrinal developments in Supreme Court jurisprudence since 1972” like creation
of “a new form of heightened scrutiny” and the decisions in Romer v. Evans, Lawrence v. Texas and Windsor
v. United States. In regards to the latter, the court said it “interprets
Windsor as an equal protection case holding that DOMA drew an unconstitutional
line between lawfully married opposite-sex couples and lawfully married
same-sex couples.” The court said the law discriminated against the “relevant
class” of “same-sex couples desiring an Oklahoma marriage license” because “the
timing” of the marriage amendment “in relation to certain court rulings and the
statements in the public domain before passage . . . raise the inference that
it was adopted, at least in part, for the purpose of excluding the class from
marriage.” The court did reject the claim of sex discrimination saying: “Common
sense dictates that the intentional discrimination in this case has nothing to
do with gender-based prejudice or stereotypes, and the law cannot be subject to
heightened scrutiny on that basis.” Rather, the court said the discrimination
was based on orientation because “same-sex marriage [] is so closely correlated
with being homosexual that sexual orientation provides the best descriptor for
the class-based distinction being drawn.” The court said that “upholding one
particular moral definition of marriage . . . is not a permissible
justification.” It also said there was “no rational link between excluding
same-sex couples from marriage and the goals of encouraging ‘responsible
procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally
procreative’ toward marriage” since “[c]ivil marriage in Oklahoma does not have
any procreative prerequisites” and when a same-sex couple is raising a child,
not allowing them to marry would hinder the goal of reducing “children born
outside of a marital relationship.” As the court put it, “the ‘carrot’ of
marriage is equally attractive to procreative and non-procreative couples, is
extended to most non-procreative couples, but is withheld from just one type of
non-procreative couple.” The court also said the law is not likely to cause
same-sex couples to seek opposite-sex spouses and some opposite sex couples are
bad parents. The court said arguments that same-sex marriage would have a
negative impact is “impermissibly tied to moral disapproval of same-sex
couples” and are only threats “to one view of the marriage institution—a view
that is bound up in procreation, one morally ‘ideal’ parenting model, and
sexual fidelity.”
IN THE MATTER OF THE ADOPTION OF JOHN DOE &
JOHN DOE I
Docket No. 41463
Idaho Supreme Court
February 10, 2014
A “long-time
domestic partner” sought to adopt the children of the other partner without
terminating the parent’s rights. A magistrate judge denied the petition to
adopt because the two were not married.
The supreme
court said that the phrase “’any adult person’” in the state’s adoption statute
means “a human being over the age of 18” and that marital status of that person
is not relevant. The court also said there was nothing in Idaho law that
requires that an adoptive parent be married.
BOURKE V. BESHEAR
Civil Action No. 3:13-CV-750-H
U.S. District Court, Western District of Kentucky
February 12, 2014
Same-sex
couples in Kentucky sued to challenge state law that prevents the recognition
of out-of-state same-sex marriages.
The court said
the Supreme Court’s decision in United
States v. Windsor “establishes certain principles that strongly suggest the
result here.” The principles the court identifies are that “the actual purpose
of Kentucky’s laws is relevant to this analysis to the extent that their
purpose and principal effect was to treat two groups differently” and “such an
amendment demeans one group by depriving them of rights provided for others.”
The court said the Kentucky law could not be justified by being “rooted in
tradition.” The court said other proposed interests in marriage have “failed
rational basis review in every court to consider them post-Windsor, and most courts pre-Windsor.”
The court says the laws are “not rationally related” to any child-centered
purposes because “Kentucky does not require proof of procreative ability” and
“no one has offered evidence that same-sex couples would be any less capable of
raising children or any less faithful in their marriage vows.”
BOSTIC V. RAINEY
Civil No. 2:13cv395
U.S. District Court, Eastern District of Virginia
February 13, 2014
Same-sex
couples challenged Virginia’s marriage law.
The court said
the couples had standing to challenge the law because they “suffer humiliation
and discriminatory treatment on the basis of their sexual orientation.” The
court first rejected the claim that Baker
v. Nelson was controlling because “doctrinal developments since 1971 compel
the conclusion.” In regards to the due process claim, the court said Virginia’s
marriage laws “limit the fundamental right to marry to only those Virginia
citizens willing to choose a member of the opposite gender for a spouse.” Thus,
the court said strict scrutiny should apply. The court said “tradition alone
cannot justify denying same-sex couples the right to marry any more than it
could justify Virginia’s ban on interracial marriage.” The court said it “must
perform its constitutional duty in deciding the issues currently presented
before it. Notwithstanding the wisdom usually residing within proper deference
to state authorities regarding domestic relations, judicial vigilance is a
steady beacon searching for an ever-more perfect justice and truer freedoms for
our country’s citizens.” Although the court said “the welfare of our children
is a legitimate state interest” it said “needlessly stigmatizing and
humiliating children who are being raised by the loving couples targeted by
Virginia’s Marriage Laws betrays that interest.” It also rejected the fit
between the state’s child-centered interest and the marriage laws “because
recognizing a gay individuals will marry, or how other individuals will raise
families.” The laws are unconstitutional, the court says, because they “they
target a subset (gay and lesbian individuals) who are similarly situated to
Virginia’s heterosexual individuals and deprive that subset of the opportunity
to marry.”
LEE V. ORR
Case No. 13-cv-8719
U.S. District Court, Northern District of Illinois
February 21, 2014
Same-sex
couples sought a court order that they be issued marriage licenses before the
effective date of a state statute redefining marriage. Their petition was
unopposed by the county clerk being sued and the attorney general.
The court said
“[t]here is no dispute here that the ban on same-sex marriage violates the
Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution and infringes on the plaintiffs’ fundamental right to marry”
because “the defendant and intervenor have joined in plaintiffs’ motion. Since
the parties agree that marriage is a fundamental right available to all
individuals and should not be denied, the focus in this case shifts from the
‘we can’t wait’ for terminally ill individuals to ‘why should we wait’ for all
gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther
King, Jr.: the time is always ripe to do right.” Even though the court found
the current marriage law facially unconstitutional its ruling only applied to
Cook County.
TANCO V. HASLAM
Case No. 3:13-cv-01159
U.S. District Court, Middle District of Tennessee
March 14, 2014
Three same-sex
couples challenged Tennessee law declining to recognize same-sex marriages contracted
in other jurisdictions. The couples sought a preliminary injunction.
The court said
“plaintiffs here are likely to succeed in their challenge to Tennessee’s
Anti-Recognition Laws” because “defendants offer arguments that other federal
courts have already considered and have consistently rejected,” i.e.
federalism, that Windsor only applied to the national government and the
“state’s interest in procreation.” The court said the injunction was necessary
because the “state’s refusal to recognize the plaintiffs’ marriages
de-legitimizes their relationships degrades them in their interactions with the
state, causes them to suffer public indignity, and invites public and private
discrimination and stigmatization.”
DEBOER V. SNYDER
Civil Action No. 12-CV-10285
U.S. District Court, Eastern District of Michigan
March 21, 2014
Same-sex
couples challenged Michigan’s marriage law. The court held a trial on the state
interests in marriage.
The court said
the defense witnesses “clearly represent a fringe viewpoint that is rejected by
the vast majority of their colleagues across a variety of social science
fields.” The court said the law “does not advance any conceivable legitimate
state interest” because the testimony at trial “disproved [the] premise” that
marriage between a man and a woman “provides the optimal environment for
raising children.” The court also said “Michigan law does not similarly exclude
certain classes of heterosexual couples from marrying whose children
persistently have had ‘sub-optimal’ developmental outcomes.” The court said
that it was not a valid justification for the law that the state was
“proceeding with caution” in making social change because such a purpose is not
valid “when constitutional rights are implicated.” The court said “tradition
and morality” are not rational bases and that neither is federalism since “the Windsor and Loving decisions stand for the proposition that, without some
overriding legitimate interest, the state cannot use its domestic relations
authority to legislate families out of existence.”
HENRY V. HIMES
Case No. 1:14-cv-129
U.S. District Court, Southern District of Ohio
April 14, 2014
After the
decision in Obergefell v. Wymslo
which applied only to one couple, more same-sex couples challenged the law
preventing recognition of out-of-state same-sex marriages.
The court,
relying on its earlier decision held the law was “facially unconstitutional and
unenforceable under any circumstances.” The court said the law created a
“classification, relegating lesbian and gay married couples to a second-class
status in which only their marriages are deemed void in Ohio.” Specifically,
the court held: “There can be no circumstance under which this discriminatory
classification is constitutional as it was intended to, and on its face does,
stigmatize and disadvantage same-sex couples and their families, denying only
to them protected rights to recognition of their marriages and violating the
guarantee of equal protection.” In addition to repeating the legal analysis in Obergefell, the court said the “marriage
recognition bans also implicate the parenting rights of same-sex married
couples with children,” by “refusing to recognize [same-sex marriages, the]
state unlawfully intrudes into the realm of private marital, family, and
intimate relations specifically protected by the Supreme Court,” “Disparate
treatment of children based on disapproval of their parents’ status or conduct
violates the Equal Protection Clause,” and the plaintiffs have an individual
“right to full faith and credit for their New York adoption decree.” The court
also added additional reasons for rejecting the interests the state said were
served by the law. First, “given that all practicing attorneys, as well as the
vast majority of all citizens in this country, are fully aware that
unconstitutional laws cannot stand, even when passed by popular vote,
Defendants’ repeated appeal to the purportedly sacred nature of the will of
Ohio voters is particularly specious.” In regards to child-centered interests,
the court said that in Windsor, “the
Supreme Court found those arguments so insubstantial that it did not deign to
acknowledge them.”
BASKIN V. BOGAN
1:14-cv-00355-RLY-TAB
U.S. District Court, Southern District of Indiana
April 18, 2014
A same-sex
couple challenged Indiana’s law declining to recognize same-sex marriages
contracted in other jurisdictions and sought a preliminary injunction.
The court said
that “as a general rule, Indiana recognizes valid marriages performed in other
states.” The court said “if the state wishes to differentiate between people
and make them unequal, then it must have at least a legitimate purpose.” The
court said the state cannot have as its rationale encouraging those who create
children to care for them because “Indiana generally recognizes marriages of
individuals who cannot procreate.” The court said an injunction was appropriate
because “the state experiences no harm when it is prevented from enforcing an
unconstitutional statute.”
A.L.F.L.
V. K.L.L.
No.
2014-CI-02421
Texas
District Court, Bexar County
April
22, 2014
A same-sex
couple married in Washington, D.C. sought a divorce in Texas.
The court said
it had jurisdiction because the state constitutional provision specifying that
same-sex marriages have no legal effect was found unconstitutional by a federal
district court. Also, one of the spouses has a child the parties were raising.
The court said that in D.C. where the marriage was contracted the non-parent
spouse would be recognized as a second legal parent and “failure in Texas to
afford the same presumption of parenthood to the wife of a child’s birth mother
as it does to the husband of the birth mother violates the Equal Protection
Clause.” The court also said: “By denying their parents the right to marry,
Texas has created a suspect classification of children who are denied Equal
Protection of the law under the Fourteenth Amendment. Immutable protections for
the children born of same-sex marriages require the same protections as those
born from mother marital and intimate relationships.” Finally, the court held
the “marriage certificate . . . is an order to which Texas must give full faith
and credit.”
ALASKA V. SCHMIDT
Supreme Court No. S-14521
Alaska Supreme Court
April 25, 2014
Same-sex
couples challenged a law granting a property tax exemption for “the assessed
value of the residence of an owner who is a senior citizen or disabled veteran”
but which denies “the exemption for that portion of the property occupied by a
person other than the spouse of an eligible applicant.” So, “the full value of
the exemption will not be granted to [an] unmarried couple.” The trial court
found the discrepancy unconstitutional.
The state supreme court said the state’s marriage amendment should not
“be interpreted as denying benefits to same-sex couples” and that it “does not
explicitly or implicitly prohibit the State from offering the same property tax
exemption to an eligible applicant who has a same-sex domestic partner that the
State offers to an eligible applicant who has a spouse.” The court said that
since, “(1) Same-sex couples cannot marry or have their marriages recognized in
Alaska, and (2) because they cannot marry, same-sex couples cannot obtain the
benefits of the tax exemption to the same extent as married couples,” the trial
court was correct to say that “’[i]n Alaska, a marital classification facially
discriminates based on an individual’s sexual orientation.’” The court also
said that “for purposes of this appeal, there is essentially no difference
between married couples and opposite-sex couples who want to marry.” Here “the
law treats same-sex couples differently from opposite-sex couples if it
prevents same-sex couples from becoming eligible for the benefits at issue.” The
court held the asserted “governmental interests ‘in cost control,
administrative efficiency, and promotion of marriage’” are legitimate but the
law here “is not sufficiently related to those interests” because the
“government cannot adequately protect its tax base and minimize cost without
discriminating between similarly situated classes” and “giving the full benefit
only to married couples will not encourage same-sex domestic couples to leave
their partnerships and enter into heterosexual relationships with an intention
to marry.”
RECENT
LAW REVIEW ARTICLES AND BOOKS
Richard
Stith, On the Legal Validation of Sexual
Relationships in The
Jurisprudence of Marriage and Other Intimate Relationships 143 (2010). Describing the tension
between liberty and validation of same-sex marriages.
James M. Oleske, Interracial and Same-Sex Marriages: Similar
Religious Objections, Very Different Responses 50 Harvard Civil Rights-Civil Liberties Law Review __
(forthcoming 2014). Argues that law “authorizing [religious exemptions from
facilitating same-sex marriages] threaten the constitutional right of same-sex
couples to equal protection.”
Courtney M. Cahill & Geoffrey
Christopher Rapp, Does the Public Care
How the Supreme Court Reasons? Empirical Evidence from a National Experiment
and Normative Concerns in the Case of Same-Sex Marriage 93 North Carolina Law Review __ (forthcoming
2014). Argues that the thesis that Supreme Court’s reasoning in marriage cases
affects public opinion is not supported by empirical evidence.
Dale Carpenter, Windsor Products: Equal Protection from
Animus __ Supreme Court Review
__ (forthcoming 2014). Describes a “constitutional anti-animus principle” that
the author argues springs from a footnote in a 1938 case.
NEWS STORIES
Dareh
Gregorian, “Couple Who Are Just Friends Allowed to Adopt, Judge Says in
Landmark Ruling” New York Daily News, January 3, 2014 at http://www.nydailynews.com/news/national/friends-adopt-judge-landmark-ruling-article-1.1565408?print.
Reporting trial court decision allowing a joint adoption by two friends who
live in separate households.