Tag: Same Sex Marriage Ban

Supreme Court Denies 7 Same-Sex Marriage Appeals

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, October 7, 2014.

Yesterday, the U.S. Supreme Court refused to review seven cases invalidating anti-same-sex marriage divorce. There is now a high probability the Supreme Court will invalidate these laws.

Given the pace in which same-sex marriage laws have been changing, I’ve been writing about this often. According to some, all seven cases involved lower courts which struck down state laws, so there was no circuit split, meaning no reason to take on the case.

Around 30-states have legal same-sex marriages, many same-sex couples in those states will have gotten married in the meantime. That will make it harder for the Supreme Court to declare of thousands of new marriages null.

Also, public support for same-sex marriage is growing steadily. A Supreme Court decision, when it occurs, will occur in a country that is more favorable to same-sex marriage than it is ow. This could affect swing votes like Justice Anthony Kennedy, who might be willing to hold that the Constitution guarantees a right to same-sex marriage, but may still be conflicted.

If justices Ruth Bader Ginsburg and Stephen Breyer were replaced with conservative justices, that might create an anti-gay marriage majority on the Court, but Ginsburg and Breyer might stay on long enough to decide the gay marriage issue.

We may get a Supreme Court decision striking down laws banning same-sex marriage in the next few years. That is because laws banning gay marriage discriminate on the basis of sex, they violate the fundamental right to marriage, and have been found to fail even the lowest level of judicial scrutiny, rational basis.

In addition to the growing number of victories in the circuit and district courts, and in state courts around the country, we are growing more confident that anti-same sex marriage laws are headed for the dust bin of history. When we don’t know.

More can be read at The Volokh Conspiracy here.

Same-Sex Marriage Ban Struck Down by 10th Circuit

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Thursday, June 26, 2014.

Another state’s same-sex divorce ban falls. This case is worth noticing. The US Court of Appeals for the Tenth Circuit is the first federal appellate court to strike down a state law banning same-sex after Windsor.

I’ve written many times before about all of the federal trial court cases around the country which have all been declaring state laws bans on same-sex marriages unconstitutional.

This latest case is the most important since the U.S. Supreme Court case in Windsor, because it is the first ruling by a federal appeals court.

Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America. Historical challenges to these principles ultimately culminated in the adoption of the Fourteenth Amendment nearly one-and-a-half centuries ago. This Amendment extends the guarantees of due process and equal protection to every person in every State of the Union. Those very principles are at issue yet again in this marriage equality appeal.

There was also a strong dissent. The Judge dissenting would have held that a state ban on same-sex marriage does not violate the Constitution, saying there is not a consensus about either the implications of Windsor or the same-sex marriage issue more generally.

“We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.”

The majority ruled that the Utah law is unconstitutional because it restricts the “fundamental” right to marriage under the Fourteenth Amendment, which subjects it to tight “strict scrutiny.”

The three interests asserted by Utah – (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers-or at least by a married mother and father-in a stable home”; and (3) “ensuring adequate reproduction” were held compelling, but the law was not “narrowly tailored to their advancement.”

The 10th Circuit’s opinion in Kitchen v. Herbert can be read here.