Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:

• there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
• unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
• the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.

Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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Sometimes, doing nothing causes a great impact.  That is what happened this week when the SCOTUS issued an order denying certiorari in a batch of same-sex marriage cases.

Legal pundits, this Blog among them, felt sure the High Court would elect to take a look at the Utah case; one of the oldest and simplest percolating through the federal appellate world.  By not granting cert, the federal court rulings that have struck down state laws banning same-sex marriage in Virginia, Indiana, Wisconsin, Utah and Oklahoma stand.

Let the same-sex wedding ceremonies begin.  Now that the SCOTUS will not be hearing any of these cases, the appellate stays are lifted.  We here at the Law Blogger expect that a similar order denying cert in the Michigan case and the other Sixth Circuit cases could be issued by the end of the year.

By using federal appellate math, this means that same-sex marriage will be legal in 30 states.  At this point, probably the only way a case will be accepted by the High Court would be if a federal appellate circuit upholds a state law ban; so far this has not occurred.  Resolving conflicts among our federal appellate circuits is one of the functions of SCOTUS.

We will monitor this situation as the Supreme Court begins the 10th year of the Justice Roberts' Court.

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10th Year of the Roberts Court

By:  Timothy P. Flynn

Although they met for their first conference last Monday, the nine U.S. Supreme Court Justices convene today for the first oral argument of this term.  It could prove to be a very important term.

Last week, the Justices selected 11 more cases for briefing and argument during this term to add to their already crowded docket.  Notably absent so far on the docket is an order granting certiorari in any of the many pending same-sex marriage cases.

These days, it seems every other big-city lawyer has his or her mits on a pet same-sex marriage case they want SCOTUS to consider as the High Court draws ever closer to selecting the perfect such case.  These lawyers, it seems, are confident of a "same-sex" victory and thus, they anticipate the raw professional glory that comes from being on the winning side of a landmark case.

SCOTUS has many from which to choose, as cases are now pending from Oklahoma, Virginia, Utah, Wisconsin, and California, with plenty more in the federal pipeline.  Legal scholars believe the High Court will take up either the California or the Utah case.

The case from California features two heavy-hitting lawyers: Ted Olson and David Boies of Bush v Gore 2000 fame; they have joined forces for this epic civil rights struggle.  The Law Blogger has covered their case since its inception in 2009.  Also unique to the California case is that it is a class action law suit.

Utah was the first state to have their state law ban on same-sex marriage struck down by a federal court.  Now three other federal courts have similarly ruled.  One of the attractive features of the Utah case, in addition to being the first considered at the federal level, is that it is simple; involving a single gay couple.

Keep in mind folks, it is also possible that the SCOTUS will take a pass on the same-sex case menu this year due to a lack of conflict among the federal circuits.  It is in the High Court's nature to move slowly, deliberately waiting for exactly the right case, at exactly the right time.  We here at the Law Blogger sure do think that the time is now.

Meanwhile, the SCOTUS has other matters to decide.  Today, the Court hears whether the 4th Amendment protects a driver who had the tell-tale "broken tail light" which precipitated a cop stop and a search which yielded cocaine.

Tomorrow, the Court considers whether a lifer in an Arkansas prison has the right to grow a beard in accord with his new found Muslim faith; beards contravene the prison rules.  The inmate looks to a piece of relatively recent federal legislation that mandates prisons to allow inmates to freely practice their chosen religion.

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Colasanti and Ryder outside
Oakland Circuit Court in March

We here at the Law Blogger could not help but notice that same sex couple Frank Colasonti, Jr. and James Ryder were in federal court yesterday before U.S. District Judge Mark Goldsmith seeking injunctive relief to force the state to recognize what they say is a 25-year marriage.  The Oakland County couple were one of more than 300 to get married in Michigan immediately following federal judge Bernard Friedman's March 21st ruling that struck down our state constitutional ban of same-sex marriage.


The gay couple's attorney, University of Michigan Law Professor Julien Mortenson, was quoted in the Freep as saying, "the state cannot mandatorily divorce you."  Professor Mortenson asserted that the couple was properly married following Judge Friedman's ruling and that status cannot be undone, even if the SCOTUS reinstates Michigan's constitutional ban on gay marriage.

Ever since the 5-4 SCOTUS ruling in United States v Windsor in 2012, same-sex marriage advocates and the ACLU have argued in lower courts across the nation that the case applies to states' power to ban same-sex marriage; the argument is that Windsor's holding should be applied to the states such that any state constitutional ban or other law based on a sexual preference classification, is unconstitutional under the United States Constitution.

Problem:  the Windsor case did not apply to state laws; only federal benefits that were being denied to Ms. Windsor due to a sexual preference classification.  Most of the post-Windsor cases involve state constitutional bans against same-sex marriage.

In the case of the Oakland County couple, Colasanti, a retired school administrator, is unable to name his partner of more than a quarter-Century as the surviving spouse on his state pension.  Other Michigan same-sex couples have filed suit because the ban on same-sex marriages has affected couples' rights to obtain insurance benefits, to adopt children, and other rights enjoyed by heterosexual Michiganders.

Inevitably, this civil rights issue is heading to the SCOTUS.  But the High Court is being very selective about which case(s) it will select for briefing and argument.

In recent weeks, SCOTUS has denied pleas from Virginia and Utah same-sex marriage couples who, like here in Michigan, were legally married in the short period between the issuance of a pro-same-sex marriage decision in federal court and the issuance of an injunctive stay pending appeal.  The cases from Utah may be ready for a full SCOTUS review in the next term.

The High Court  -in denying the emergency injunctive relief requests to recognize the marriages of those couples lucky enough to squeeze through the county clerks' offices before the appellate stays were issued-  is clearly signaling a desire for an orderly appellate review process.  Everyone knows that right case is on its way to that Court.

Each of these cases pit our civil right to marry the person of our choice against a state's power to legislate such matters, often via voter-approved referendum or initiative.  That is why this blog describes it as the civil rights struggle of our time.

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The DeBoer same sex marriage and adoption case made big news in Michigan last spring when, following a bench trial, federal judge Bernard Friedman invalidated Michigan's ban against same-sex marriages.  The Michigan Attorney General filed an appeal to the United States Sixth Circuit Court of Appeals and had the ruling stayed, almost immediately.

A series of 6 cases from each of the states within the geography of the Sixth Circuit were argued on the same day before a 3-judge panel to determine whether banning same-sex marriage is constitutional.  Interestingly, and as a matter of legal convenience, Michigan, Ohio, Kentucky, and Tennessee each have a state constitutional provision banning same-sex marriage.

The cases have pitted states rights and conservative groups against those that believe the right to marry is a fundamental right under the United States Constitution.

According to news reports from those present at the nearly 4-hour session, the judges wore their politics on their robes.  Judge Martha Craig Daughtrey, a Clinton appointee, seemed to favor the gay marriage advocates, while Bush appointee Judge Deborah Cook sparred with her left-leaning colleague.  As is often the case with 3-judge panels, one jurist stays poker-faced; this time, it was Bush appointee, Judge Jeffery Sutton.

Since the SCOTUS decision in United States v Windsor, nearly every state's federal court system has cultivated a same-sex marriage case, usually challenging the constitutionality of a state law that bans or limits the rights of same-sex couples.  Many of these cases are now on appeal in the federal Circuits.

A common legal thread to the cases is whether the so-called "heightened scrutiny" should be brought to bear on a statutory classification based on sexual orientation or preference under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  The Supreme Court left this question open in its seminal Windsor decision.

This blogger was down in Cincinnati in June arguing a civil rights appeal, I have yet to receive a decision on my case.  So it could be the end of the year before we hear how the Sixth Circuit is going to decide the matter.

It looks to us over here at the Law Blogger that the SCOTUS will have to grant certiorari on one or more of these cases percolating up through the appellate courts.

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Last December, we blogged about federal judge Robert Shelby's ruling that Utah's same-sex marriage ban was unconstitutional.  Between his December 20, 2013 ruling and when the SCOTUS suspended the ruling on January 6, 2014  -pending resolution of the State of Utah's appeal to the 10th Circuit Court of Appeals-  some 1300 gay Utahans were hitched.

Now, with the 10th Circuit refusing to grant the state additional stay time for their appeals, the question before SCOTUS is whether to recognize these same-sex nuptials until a definitive ruling makes its way to the SCOTUS.  A senior federal judge from Salt Lake City ruled in May that Utah had to honor all same-sex marriages that occurred prior to the High Court stay.

While the 10th Circuit seems inclined to uphold Judge Shelby's ruling, it is providing the state time, in the form of a temporary stay, to crank-up the machinery to get the entire matter stayed by the SCOTUS.  Utah's Attorney General has until next Monday to file their briefs with the Supreme Court.

The Attorney Generals of the various states have taken one of two approaches in these federal court civil rights cases: aggressively pursue all avenues on appeal when a state law ban on same-sex marriage is invalidated by a federal court judge; or take the defeat of the state law in stride and abandon the appeal. Both Utah and Michgian's Attorneys General have taken the former approach.

It is a safe bet, although we here at the Law Blogger do not know for sure, that every state in the union has at least one same-sex marriage case pending in federal court.  So it will only be a matter of time before SCOTUS grants certeriorari in a post United States -v- Windsor case to more fully develop the constitutional civil rights jurisprudence of same-sex marriages.

For now, however, it is nearly a full-time job just keeping up with the caseload; it seems every month brings a new decision and a new twist to the analysis.

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Unlike here in Michigan where the Attorney General has successfully stayed federal judge Bernard Friedman's ruling striking down Michigan's constitutional provision banning same-sex marriages, Governor Tom Corbett announced last week that Pennsylvania will not challenge a similar federal judge's ruling on same-sex marriage.

This makes Pennsylvania the 19th state, along with the District of Colombia, to allow same-sex marriages. Pennsylvania's constitutional ban has been on the books since 1996; federal judge John Jones ruled the ban unconstitutional.

Not surprisingly, politics affected the outcome in the Pennsylvania case.  Governor Tom Corbett is embroiled in a tough re-election campaign and is thought to be vulnerable to his Democratic challenger in this fall's general election. This is compounded by the fact that the Governor has a Democrat as his Attorney General who has gone on record stating Pennsylvania's ban is unconstitutional.

The interesting thing for us over here at the Law Blogger is the fast pace of the litigation now pending in nearly every state in the union.  The ultimate civil rights showdown, however, awaits the marble steps and pillars of the SCOTUS; perhaps in the term after next.

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Citing the infamous Dred Scott decision and Loving v Virginia, a circuit court judge in Little Rock, Arkansas last Friday continued an unbroken procession of states to strike down state law bans on same-sex marriage.  Circuit Judge Christopher Charles Piazza's 13-page opinion in Wright v Arkansas held that the state law ban, arising from a voter-approved constitutional amendment back in 2004, was:

an unconstitutional attempt to narrow the definition of equality.  The exclusion of a minority for no rational reason is a dangerous precedent.

The same-sex marriage ban sailed through the 2004 state election with 75% of Arkansan voters approving the measure.

Perhaps because of this, in conjunction with his duties to uphold the laws of his state, Arkansas' Attorney General Dustin McDaniel filed a motion on Monday with the Arkansas Supreme Court to stay Judge Piazza's decision.  As occurred here in Michigan in the DeBoer case, no sooner was the ink dry on Judge Piazza's opinion, when county clerks began issuing marriage licenses to same-sex couples.

In squarely addressing this civil rights issue, Judge Piazza refused to follow a 2006 decision from the federal 8th Circuit Court of Appeals [the federal appellate circuit which includes the state of Arkansas] which upheld a Nebraska state law ban on same-sex marriage.  Judge Piazza held that the 8th Circuit's decision pre-dated the seminal SCOTUS decision in United States v Windsor.

Arkansas' ban on same-sex marriage is also being challenged in federal court in the case of Jernigan v Crane; the federal judge in that case is currently considering AG McDaniel's motion for summary judgment.

So the same-sex civil rights saga continues across the nation.  We here at the Law Blogger will attempt to keep abreast of the multiple fast-paced developments.

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By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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Michigan's first couple
with their lawyer.

United States District Court Judge Bernard Friedman, in a historic ruling, not only held that Michigan's ban on same-sex marriages, set forth in our state constitution, violates the U.S. Constitution, he also refused to stay his ruling.  This means that marriage licenses are being issued here in Oakland County and across the state as this post is being composed.

Citing United States v Windsor, the federal court ruled that Article I, section 25 of Michigan's Constitution violated the Equal Protection clause of the U.S. Constitution, as applied to the states through the 14th Amendment's Due Process clause.  Judge Friedman concluded his 30-page opinion in very plain terms:

In attempting to define this case as a challenge to the 'will of the people', state defendants lost sight of what this case is really about: people. No court record of this proceeding could ever fully convey the personal sacrifice of these two plaintiffs who seek to ensure that the state may no longer impair the rights of their children and the thousands of others now being raised by same-sex couples. It is the Court's fervent hope that these children will grow up, 'to understand the integrity and closeness of their own family and its concord with other families in their communities and in their daily lives.' [quoting SCOTUS language from Windsor]

Because Judge Friedman refused to stay the effect of his ruling to accommodate an appeal from the state defendants, the Michigan Attorney General filed an emergency motion for a stay with the United States Sixth Circuit Court of Appeals.  Look for Judge Friedman's ruling to be appealed and consolidated with other similar federal court rulings on same-sex marriages currently pending throughout the Sixth Circuit [Michigan, Ohio, Kentucky, and Tennessee].

Meanwhile, however, game on!  Before the press even got hold of the DeBoer opinion and order, county clerks in Ingham, Oakland, Washtenaw and Muskegon announced Saturday hours for the express purpose of issuing same-sex marriage licenses.

According to the Freep, the first official same-sex marriage took place shortly after 8:00 am today in the lobby of the historic Mason courthouse.

Update: Sunday, 03/22/2014.  Not so fast.  In an apparent reverse of their earlier indication that they were not planning to interfere with Michigan's federal same-sex marriage case, the U.S. Sixth Circuit Court of Appeals issued a temporary stay until this Wednesday, "to allow a more reasoned consideration of the [Michigan Attorney General's] motion to stay.". This means that no more same-sex marriage licenses can be issued by the county clerks until the federal appellate court lifts the stay.

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Judge Bernard Friedman
Sorting through the experts

This morning, closing arguments are scheduled in the same-sex marriage trial over which U.S. District Judge Bernard Friedman has presided the past two weeks.  Judge Friedman, having denied cross motions for summary judgment in the case, gets to decide the constitutionality of two Michigan statutes: the ban on same-sex marriage [approved by a 57% voter initiative in 2004], and the prohibition of gay adoptions.


The trial began with the testimony of Oakland County Clerk Lisa Brown; she indicated that she is prepared to "follow the law"
which, depending on how Judge Friedman rules, may include issuing marriage licenses to same-sex couples.  [Note: the Law Blogger has been tracking this issue in other states like New Mexico where county clerks have been issuing such marriage licenses on the heels of post-Windsor federal court rulings striking state law bans on gay marriage.]

Brown, also a defendant in the case, has made her personal views known: she believes that gay couples are denied marriage licenses unfairly.  She testified about a state-wide memo issued by the Michigan Attorney General last fall to Michigan's 82 county clerks instructing them not to issues such licenses, regardless of how Judge Friedman decided the DeBoer case.

Other than the one county clerk, the trial has consisted of a parade of expert witnesses.  Select sociologists, professors and legal experts all had their moments to shine during the trial.  While this has been a quick trial, we here at the Law Blogger wonder whether these experts have aided the trier of fact in deciding the case, or whether they have polluted Judge Friedman's courtroom with junk science.

For their part, experts for the gay parents have attempted to blackboard data in support of their equal protection claim that children raised by gay parents have measurable outcomes on a par with traditional parents.  The Plaintiffs' experts have also drawn parallels with interracial families, concluding that Michigan should join what these experts depict as a strong trend toward social acceptance of gay marriages.

Experts for the state, on the other hand, painted a consensus that no reliable sociological data yet exists to support the Plaintiff's case; they also contend that traditional families, with a Mom and Dad, have the best child outcomes, citing to statistical reports they say support this conclusion.

Finding his testimony would, "add nothing to the case", Judge Friedman disqualified the state's first expert, Catholic philosopher and author Sherif Gergis.   Then there was the state's final expert, Canadian economist Douglas Allen; he testified, unequivocally, that unrepentant gay couples faced eternal damnation.

Is Judge Friedman now better informed?  Or does he have to digest a full-plate of junk science, with religious seasoning?

Soon, we'll all know whether Michigan's anti-gay statutes will pass constitutional muster; at least at the initial trial stage.  Then its on to the appeals, where the DeBoer case will be consolidated with other similar cases percolating through the Sixth Circuit here in Michigan, and in Ohio, Kentucky and Tennessee.

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The family at the heart of the case.

To be sure, there will be a "battle of the experts" in Downtown Detroit this week and next at the Theodore Levin federal courthouse.  Today is the commencement of the trial ordered by U.S. District Judge Bernard Friedman between the lesbian couple seeking to overturn Michigan's adoption and same-sex marriage laws on equal protection grounds, and Michigan's Governor and Attorney General who seek to enforce our state law ban on such arrangements.

Of course there is much publicity surrounding the case today on the Internet; and for a very good reason.  This case stands out among all the same-sex cases percolating across our nation for the reason that Judge Friedman declined to grant either side's dispositive motions back in October, electing to evaluate evidence in the case during a scheduled two-week trial.

Now, bring on the experts.  Both sides claim to be able to support their case with "scientific" evidence.

For their part, the lesbian couple -April DeBoer and Jayne Rowse- plan to capitalize on expert testimony from new studies that conclude children raised by same-sex couples have just as much promise and opportunity as children raised by traditional parents.  Their lawyer told the Freep yesterday:

We have sociologists, child growth experts, and psychologists (who) uniformly agree that child outcomes for children raised by gays and lesbians is just as promising as those kids raised by heterosexuals.

 The State of Michigan's legal team has its own arsenal of experts to provide testimony in this case.  In addition, it has been beating the drum that Judge Friedman, sitting in federal court, should not be making this decision because the voters of Michigan decided the issue via voter initiative back in 2004.

Judge Friedman had the opportunity to make a legal ruling on the merits of the respective positions last October, but ordered a trial instead.  We here at the Law Blogger now wonder whether this trial will be an exposition of modern child development theory, or a parade of junk science.  Stay tuned to be enlightened on these issues.

Whatever Judge Friedman decides, he will be appealed to the Sixth Circuit Court of Appeals in Cincinnati sometime later this year; the case could be headed to the SCOTUS.

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As the same-sex marriage civil rights issue winds its way through our federalist system of governance, there are two distinct paths taken by proponents.  One is where state legislatures promulgate laws allowing same-sex marriages; the other is where state officials capitulate in on-going post-Windsor federal litigation challenging same-sex marriage prohibitions.

Oregon now joins Virginia and Nevada as the latest states no longer willing to defending state constitutional bans on gay marriage in the wake of the SCOTUS Windsor decision.  In 2004, voters in Oregon passed "Measure 36" -a state law banning same-sex marriage- by a 57% margin; two federal lawsuits challenging the constitutionality of Measure 36 were subsequently lodged in federal court and have dispositive motions pending [similar to the recently denied dispositive motions in the DeBoer case grinding onward here in the United States District Court for the Eastern District of Michigan in Detroit].

In one of those lawsuits, Oregon state officials announced their capitulation in a responsive pleading.  The case involves a lesbian couple who were married during the brief interval where Oregon allowed same-sex marriages, prior to the passage of Measure 36.

Two years post-Windsor, we see this civil rights issue picking-up steam.  Significant legal developments occur nearly each week posing a challenge for us here at the Law Blogger to keep up with the pace of the changes.

As always, we will do our best to keep our readers informed.

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This time, the Commonwealth of Virginia is trying to get it right.  Perhaps tired of seeing his state being on the wrong side of history, Virginia Attorney General Mark Herring announced a stunning about face that is quite rare in the law: Virginia will not only drop its opposition to litigants seeking to overturn Virginia's constitutional ban on same-sex marriage, it has joined forces with the challenging litigants.

Constitutional scholars will recognize the significance of Virginia's about face.  The Commonwealth has lost a series of landmark civil rights cases over the past half-century.

For example, in the wake of the landmark 1954 decision in Brown v Board of Education, desegregating all public schools, the Commonwealth responded first, by refusing to comply with the decision, then taking the unusual step of closing their public schools from 1959 to 1964, until the SCOTUS righted the ship in Griffin v Prince Edward County.  Then in 1967, SCOTUS decided Loving v Virginia striking down the state law prohibiting interracial marriages.

Even in announcing that his office will no longer oppose the pending legal challenge to the Commonwealth's ban on same-sex marriage, AG Herring stated that Virginia would continue to enforce the ban until the federal court rules on the case next week.  The expected outcome in the case, considering United States v Windsor, is that the Commonwealth's ban will be declared unconstitutional.

In announcing the policy reversal, AG Herring applauded the litigants even though as a state legislator, he voted for the ban.  This goes to show how civil rights struggles progress over time and how our constitutional jurisprudence continues to evolve.

02/14/2014 Post Script:  Now it's official.  Federal Judge rules in a strongly-worded opinion that Virginia's ban on same-sex marriage is unconstitutional.

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As predicted here at the Law Blogger, 2014 will be a banner "floodgate" year relative to same-sex marriage cases.  Yesterday, federal judge Terence Kern issued a 68-page opinion that struck Oklahoma's constitutional provision limiting marriage between a man and a woman.

The effect of Judge Kern's ruling is stayed pending appeal to the 10th Circuit.  As our nation's marriage law jurisprudence deepens with a collection of cases spread across the 11 appellate circuit courts, there is no doubt that one of these cases will make it to the SCOTUS to supplement United States vs Windsor.

The Oklahoma case, Bishop vs United States, pending long before the Windsor decision was handed down, challenged the marriage definitions of the Defense of Marriage Act and the Oklahoma state constitutional provisions expressly prohibiting same-sex marriage.  Oklahoma's constitutional provisions were passed by voter initiative in 2004 and provide:

A. Marriage in this state shall consist only of the union of one man and one woman.  Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

B.  A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.

C.  Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.

Well, you can probably kiss these restrictive prohibitions good bye for good if the momentum of our federal marriage law continues apace from the SCOTUS Windsor decision.

The Bishop case has been kicking around for nearly a decade.  The two lesbian couples that make up the plaintiffs in the case already have been to the 10th Circuit once on appeal, successfully challenging a summary judgment, changing lawyers upon remand, and amending their complaint to include finely-tuned constitutional allegations and bringing the case against the United States as well as the State of Oklahoma.

The now-struck constitutional provisions set forth above have counterparts in many states, including here in Michigan.  Each of these states have lawsuits, or will soon have lawsuits, seeking declarative relief that such provisions are unconstitutional under our federal constitution.

At some point along the way, another case or two will be granted certiorari by the SCOTUS so that the matter can be settled across the nation, presumably along the lines of Loving vs Virginia; the decision that struck Virginia's state law proscribing inter-racial marriage.  This case could come in the next term, or it could be a decade out.

In the meantime, this blog will continue to chronicle the state-by-state struggle for same-sex marriage that has become the civil rights struggle of our time.

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A proactive clerk in Dona Ana County, New Mexico began issuing same-sex marriage licenses last August in the wake of the SCOTUS' same-sex marriage decision in United States v Windsor.  Other county clerks began doing the same thing, attracting the attention of the New Mexico Association of Counties after a few hundred marriage licenses had been voluntarily issued to gay couples.

In some New Mexican counties, clerks were court-ordered by county circuit judges to issue the same-gender marriage licenses while in still other counties, the clerks rejected marriage license applications from same-gender couples. Uncertainty in the law arose relative to the marriage issue in this state.  One of the lawsuits swiftly made its way through the NM courts.

Last week's case making New Mexico the 17th state in the Union to officially recognize same-sex marriage, Griego vs New Mexico, holds that although state marriage laws do not expressly prohibit same-sex marriage, taken as a whole, they have that effect.  Therefore, New Mexican marriage laws, being subjected to the court's "heightened scrutiny" were found to violate the Equal Protection clause of the NM constitution.

The Supreme Court of New Mexico held:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.  Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified.  Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution.  We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law.

 To accomplish this, the NM Supreme Court exercised its power of superintending control, expressly granted by the state  constitution, over all inferior [trial] courts and, by extension, the county clerks where state marriage licenses are issued.  Some legal critics and state legislative opponents will see this as the poisonous fruits of an activist court.

We here at the Law Blogger have been tracking this civil rights movement since the early-days of the Perry case in California back in 2009.  What we are noticing now is the significantly increased and fervent pace of these decisions across the nation.

Most of the legal pundits, commenting last summer as the nation awaited the SCOTUS decisions in Perry and Windsor, assumed that same-sex marriage would evolve slowly like the prior civil rights struggles for racial and gender equality.  As we can see from the brisk state-by-state output, the pace of change is quickening.

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Increasingly, same-sex marriage cases erupting across the nation are finding their way into federal court.  In the post United States v Windsor marriage jurisprudence, couples are challenging state constitutional bans on gay marriage by leaps and bounds.

Christmas Eve saw two important cases pending in federal courts in Utah and Ohio continue the momentum toward recognition of same-sex marriages.

The latest state to test these waters is Utah where three same-sex couples filed suit in federal court against the Governor and the Attorney General challenging Utah's state law ban against gay marriage.  The federal court judge assigned to the case recently ruled that the Utah marriage law violated the couples' due process rights and their equal protection under the law.

Utah's AG immediately filed an emergency appeal in the 10th Circuit Court of Appeals to stay the federal judge's order while his appeal is pending.  The AG's motion to stay was denied in a concise 2-page order issued by the 10th Circuit on Christmas Eve.

Without a stay in place, the floodgates were opened and exploited by couples awaiting recognition of their marital status: 300 couples were married in Salt Lake County alone.

Meanwhile, in Ohio, the federal court judge presiding over the death certificate challenge, the subject of an earlier blog post, ruled that valid out-of-state same sex marriages must be reflected on Ohio death certificates.

This momentum will undoubtedly continue as the Windsor decision takes root.  As this post is being written, our blog roll is lighting-up with decisions arising out of cases in New Mexico, Indiana and Oklahoma.  Stay tuned as we try to stay abreast of significant developments.

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Springfield, Illinois, the Land of Lincoln, was the site of the execution of a law making Illinois the 16th state in our Union to legalize gay marriage.  Last week, Democratic Governor Pat Quinn, writing on a desk said to be used by President Abraham Lincoln, used 100 pens to ink the law into full force and effect.

The law, officially known as the Religious Freedom and Marriage Fairness Act, takes effect June 1, 2014.  Illinois recognized "civil unions" prior to the crucial votes putting the bill over the top by state legislators earlier this month.

34 states still prohibit same-sex marriage under the law.  The practice is far from universally accepted, despite the momentum that the civil rights has garnered over the past 24-months, especially in the wake of the SCOTUS's seminal United States v Windsor decision.  The local Catholic Bishop near Springfield, IL lamented the execution of the new law with a feigned exorcism.  Really?

It will not be too long before the movement picks-up a few more states by judicial decree thanks to the Windsor decision.  Some state legislatures, on the other hand, are not planning to stray from the traditional view of marriage any time soon.

Politics and politicians being fickle, we suggest you stay tuned for further developments.

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Twenty years ago, a state court ruling from Hawaii sparked the same-sex marriage movement that has now become the civil rights struggle of our time.  Today, a Hawaiian state court ruled that same-sex marriage was legal in the 50th state to join the Union.

Hawaii now joins 14 other states to legalize same-sex marriage.  Just last month, it was the New Jersey Supreme Court adding their state, at least temporarily, to the growing list of states recognizing gay nuptials.  Illinois will become the 16th state later this month at a ceremony where the now-passed legislation will be formally signed by the Governor.

In the case of Hawaii, their Supreme Court ruled back in 1993 that a guarantee of legal equality could eventually lead to legalized gay marriage.  Largely due to the manner in which that High Court's ruling came down, it never developed any legal traction and was effectively overruled in 1998 by that state's voter initiative amending their state constitution to restrict legal marriage to opposite-gender couples.

Many of our readers will recognize this Pacific constitutional amendment as the precursor to the federal Defense of Marriage Act [DOMA]  -marriage is legal as only between a man and a woman-  recently struck down by the SCOTUS.  Legal scholars have suggested that DOMA was a federal legislative reaction to the surprising initial same-sex decision by the Hawaiian Supreme Court; the first such ruling in the coutry.

Like racial equality and gender equity, this ground is not easily gained.  There is nothing like a civil rights struggle to demonstrate the evolution of our federalist system of government.

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