Gay marriage is on a roll. In the last week or so, there have been quite a few advances on the gay marriage (aka marriage equality) front in more than a few states and locales.
Below, I have updates on at least 12 states in which things are happening this week on the gay marriage front, starting with last night’s (or early this morning’s) commencement of marrying gay couples in New Jersey.
Counting New Jersey, there are 14 US states (and the District of Columbia) where gay couples can currently marry.
BREAKING UPDATE: New Jersey Governor Chris Christie’s office has announced they’ve withdrawn the state’s appeal. It’s not clear if anybody else could take up the challenge and keep it going with the NJ Supreme Court, but it seems unlikely. Marriage equality is probably a done deal now in the Garden State.
As of Monday, 21 October, same-sex couples in New Jersey will no longer be relegated to their state’s former (manifestly unequal) ‘civil unions’ and instead be able to apply for actual marriage licenses. The NJ Supreme Court last week (Friday) denied the state’s request (read: Republican Governor Chris Christie’s request) to issue a stay on a lower court ruling from September. The actual court case will be heard by the NJ Supreme Court in January, but given the unanimous decision not to issue the temporary stay, most analysts are predicting a slam-dunk for gay marriage rights. From Friday’s decision:
“When a party presents a clear case of ongoing unequal treatment, and asks the court to vindicate constitutionally protected rights, a court may not sidestep its obligation to rule for an indefinite amount of time. Under those circumstances, courts do not have the option to defer.”
In New Mexico, eight of its counties (including three of its most populated) are continuing to issue and register marriage licenses to same-sex couples. Several of the counties were ordered by judges in August and September to issue the licenses, in one case (Los Alamos county) over the objections of its Republican county clerk.
This coming Wednesday, 23 October, the NM Supreme Court will hear arguments in a challenge that could decide once and for all whether the state will lose its asterisk (*) on the question of whether or not marriage equality is a civil right for gay and lesbian couples. This particular case to be presented is the one filed by the 33 county clerks who are essentially asking for statewide clarity and consistency, as the current patchwork situation and lack of clarity as to whether the state itself will recognize the marriages happening inside its own borders is untenable in the long run.
Previously, both the legislature and the courts had been dragging their feet, until one very brave county clerk, Lynn Ellins, decided gay and lesbian couples in New Mexico had been forced to wait long enough.
The asterisk, by the way, refers to New Mexico’s unique status among all the states in not having an explicit ban — legislative or constitutional — on gay marriage, and moreover, a plain reading of existing state law and constitution would strongly suggest that at minimum New Mexico should be required to recognize legal same-sex marriages performed in other states or countries. As state courts have ruled recently, so far it’s been unanimous among judges that the de facto ban is, in fact, unconstitutional. As a New Mexican resident, I’m optimistic.
Meanwhile, news out of Pennsylvania isn’t quite as optimistic on the marriage equality front, but that doesn’t mean nothing is happening. Montgomery county clerk D. Bruce Hanes did what New Mexico’s Sandoval county clerk Victoria Dunlap did nearly ten years ago and Lynn Ellins of NM’s Doña Ana county did in August: Decided it was simply unconstitutional to deny marriage licenses to gay and lesbian couples. Hanes, like Dunlap, was eventually ordered by a state court to cease-and-desist. However, over the course of two months, 174 licenses were issued.
There are at present (as far as I can tell) two cases in Pennsylvania courts challenging the constitutionality of its 1996 ban on gay marriage, and it’s openly being discussed that if the Republicans are sufficiently trounced in 2014 (GOP Gov. Tom Corbett is VERY unpopular), there might be a legislative move to enact same-sex marriage equality in the state. PA’s Attorney General Kathleen Kane (Dem) has said she won’t defend the state ban, calling it “wholly unconstutional.”
In Ohio, in late September, a gay man sued successfully to have his marriage recognized despite the state’s ban on same-sex marriage so that he would be listed as husband on his husband’s death certificate. Ohio Judge Timothy Black has since caught all kinds of hell from GOP bigots and homophobes, some even calling for his impeachment. Black based his ruling, by the way, on the historical presumption that out-of-state marriages are valid as long as they were legal where they were enacted. Recent polls have indicated that Ohioans are now in favor of marriage equality rights for gay and lesbian couples.
In Illinois, Democrats in the state legislature, led by Rep. Greg Harris, thought they had the votes to pass a same-sex marriage law — which the state Senate had already passed and Governor Pat Quinn had said he would sign. At present, Illinois has civil unions, and the new law would’ve converted the existing ones automatically into legal marriages within a year of the law’s enactment. Unfortunately, due to weirdness in Illinois’ legislative rules, instead of 60 votes to pass, due to the delay, the bill would need 71 votes — and state legislators have had to deal with a deluge of lobbying from the usual anti-gay homophobes — conservative GOP leaders, Catholic and Christian fundamentalist leaders, and so on. Meanwhile, two lawsuits have been given the green-light to challenge Illinois’ ban on gay marriage.
In Indiana, a proposed state constitutional amendment to ban both gay marriage and anything resembling it (civil unions, domestic partnerships) is apparently becoming ever more unpopular among Hoosiers. Especially when they learn it isn’t just about reserving the word ‘marriage’ to hetero couples, but would aggressively deny any and all rights to gay and lesbian couples. Depending on the wording of the question, opposition to the amendment ranges from 46 to 54 percent; in neither case does the “yes, pass it” side of the question lead. 64% of the polled Hoosiers said it wasn’t right to use the state constitution for this purpose — including 57% of Republican voters and 54% who identify themselves as ‘very conservative.’ A solid majority support either marriage rights (35%) or civil unions (38%), while just 28% said they opposed any recognition at all.
In Michigan, a federal judge delayed hearing a challenge to that state’s gay marriage ban until 25 February 2014 — a huge disappointment to the plaintiffs and gay rights activists who were hoping for a swift decision. (Oh well, it can’t all be good news.)
In Oregon, in a decision from last Wednesday, 16 October, even though gay and lesbian couples can’t get married in the state, state agencies will recognize same-sex marriages (and DPs and civil unions) performed in other jurisdictions — despite Oregon’s constitutional amendment defining marriage as ‘one man and one woman’. At present, Oregon has a domestic partnership registry, and gay rights groups are hoping to put a marriage equality measure on the ballot in 2014. And if that doesn’t work, there’s always the district court case filed on October 15th.
In Nevada, it’s one step back but two steps forward, hopefully. Last year, a U.S. District Judge upheld Nevada’s state constitutional amendment banning gay marriage. Last Friday, Lambda Legal filed a challenge with the 9th U.S. Circuit to attempt to overturn the ruling. Nevada legislators have begun the process of undoing their 2002 ban by voting this year to repeal it; the law must be passed again in 2015 and ratified by voters in 2016 to enact a repeal. Or if we’re lucky, it’ll just be overturned.
In North Carolina (?!!), Buncombe county Register of Deeds Drew Reisinger announced last week that he will begin accepting marriage license applications from same-sex couples, despite that state’s constitutional ban. Alas, he says he won’t actually issue the licenses, but instead plans to “seek the North Carolina Attorney General’s approval.” Well, NC AG Roy Cooper has already said no, despite saying he does support marriage equality — but still, it’s an important symbolic gesture of solidarity.
Hawaii has had civil unions for a while now, but also has a a same-sex marriage ban. That state’s attorney general has ruled that the legislature does have the authority to rescind the state ban, in that the amendment passed gave lawmakers the authority to restrict marriage — but does not rise to the level of a required ban. It says, “The legislature shall have the power to reserve marriage to opposite-sex couples.” Note how it doesn’t say “must” reserve marriage to opposite-sex couples. Hawaii Governor Neil Abercrombie has said he’ll call a special session of the legislature on October 28 to attempt to pass a marriage equality bill.
Virginia has had a gay marriage ban since 2006. Guess who’s going to challenge it? David Boies and Ted Olson, the super-lawyers who helped overturn Prop 8 in California. In fact, in the linked story, there are now a reported “dozens” of lawsuits being filed in state and federal courts throughout the country. Despite Virginia’s rather draconian ban on gay marriage (it outlaws everything, including anything resembling marriage, such as civil unions) having passed easily in ’06, a majority of Virginians now favor legalizing same-sex marriage. Boies and Olson think they might be able to pull off another “Loving v. Virginia” precedent. Ordinarily, I’d say they’re nuts for trying, but if anybody can win, it’s these two.
And in closing, some humor and schadenfreude… This is the pathetically inaccurate map that currently appears at the top of the anti-gay National Organization for Marriage (sic) Facebook page:
If the map were even close to accurate, California, New Jersey, and Oregon would be red, while the light blue states would include New Mexico (with a smattering of red counties), Colorado, Illinois, Pennsylvania, Ohio, Virginia, Michigan, Nevada, Hawaii… Just to name the obvious ones. In reality, it ought to look more like this (apologies in advance for the crude Photoshop color replacement work — I’m really not very good at it):
In truth though, everything dark blue up there should probably be light blue at this point, thanks to the Supreme Court’s DOMA decision and the inescapable fact that there’s been a seismic shift in public opinion nationwide on gay marriage.
In closing, I’m going to go ahead and ask the question that remains on everybody’s mind: Exactly WHY does that family up there appear to have one Mom and two Dads? Or is it Mom, Dad, and Dad’s down-low boyfriend?