Same-sex couples won the right to marry in Alaska and Arizona on Friday, after separate court decisions ended bans in those states. And a third ruling in Wyoming means same-sex marriages there will begin next week.
The rulings bookend two weeks of legal wrangling, triggered by a U.S. Supreme Court decision on October 6 that declined to hear appeals of marriage rulings from five states. The action lead to marriage equality becoming law in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and ultimately states under the jurisdiction of the U.S. Courts of Appeals for the 4th, 7th and 10th Circuits where bans were previously held as unconstitutional.
Within days, marriage equality arrived in Colorado (10th Circuit), West Virginia (4th) and North Carolina (4th) as those states either stopped defending their bans, or subsequent rulings were made under the controlling rulings of their Circuits. A ruling in Wyoming (10th) came Friday, leaving Kansas (10th) and South Carolina (4th) as the only states among those three Circuits where bans remain in place.
Meanwhile, out West, the U.S. Court of Appeals for the 9th Circuit struck down bans in Idaho and Nevada on October 7. That decision led to subsequent rulings in Alaska and Arizona, leaving Montana as the only state in 9th Circuit still enforcing their ban.
When the dust settled, the U.S. went from 19 states with marriage equality to 32 in the span of just two weeks.
Here’s a recap of this week’s developments:
The U.S. Supreme Court on Friday tersely denied the state of Alaska’s request to put a stop to gay marriages pending an appeal. “The application for stay presented to Justice (Anthony) Kennedy and by him referred to the Court is denied,” the one-sentence paragraph from the court said.
The denial means gay couples in Alaska who obtained marriage licenses earlier in the week could start getting married immediately.
A U.S. District Court judge on Sunday struck down the ban put in place by Alaska voters in 1998 limiting marriage to one man and one woman, ruling in a case brought by five gay couples who said the ban violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
The ruling cleared the way for gay couples to begin applying for marriage licenses on Monday, triggering a three-day wait period until ceremonies could be held. However, some judges waived the three-day requirement, and at least two same-sex couples have already married.
Marriage equality arrived in Arizona on Friday after a federal judge struck down the state’s ban on same-sex marriage and the state’s attorney general declined to appeal, saying continuing to fight the case would be futile and a waste of taxpayer dollars. The District Court ruling Friday overturns a 1996 state law and a 2008 voter-approved constitutional amendment that outlawed gay marriage.
With no waiting period in Arizona, same-sex couples began marrying immediately as county clerks in Phoenix, Tucson and around the state openly welcomed gay couples to obtain their marriage licenses.
In Florida, state Attorney General Pam Bondi, who has repeatedly called it her duty to defend the state’s ban on gay marriage, now wants the state’s highest court to decide whether it is legal. Her office filed a request late Monday with the 3rd District Court of Appeal in Miami that asks the court to immediately send two consolidated cases to the Florida Supreme Court for a decision.
In both cases, judges declared the state’s gay marriage ban unconstitutional. It’s not clear how soon the court could rule if it takes up the cases. There also is a separate federal case that could be decided before then.
Idaho began issuing marriage licenses to same-sex couples on Wednesday morning. Idaho leaders warned, however, that the fight over allowing gay marriage in one of the nation’s most conservative states is not over. While Gov. C.L. “Butch” Otter said he would not appeal the 9th Circuit Court decision to lift the state’s ban on gay marriage, he later promised that he would not give up defending Idaho’s constitution which defines marriage as between one man and one woman.
Prior to Wednesday, at least one same-sex couple had already married in Idaho. Tabitha Simmons and Katherine Sprague married last Friday after Latah County’s clerk, Susan Petersen, said she got the green light from the county prosecutor’s office.
The American Civil Liberties Union has asked a federal court to order Kansas to allow same-sex couples to wed while the group’s lawsuit against the state constitution’s ban is under review. The group argued in its filing in U.S. District Court in Kansas City that it is likely to prevail. It also said that denying the right to marry even for a short period would do irreparable harm to the two lesbian couples represented by the ACLU in the case. The group wants to immediately block the state from enforcing its gay marriage ban. Attorney General Derek Schmidt’s spokeswoman did not immediately return messages seeking comment.
Couples challenging Montana’s ban on same-sex marriage asked a federal judge Wednesday to decide the issue without going to trial. ACLU Montana legal director Jim Taylor says the 9th Circuit’s recent decision to strike down similar bans elsewhere in the West should convince U.S. District Judge Brian Morris to rule in their favor. Montana is part of the 9th Circuit and district judges use decisions from the appellate court as precedents for their rulings.
Montana is now the only state among the nine states that make up the 9th Circuit where a same-sex marriage ban is still being enforced.
Nevada began issuing marriage licenses on October 9 following the 9th Circuit ruling. State officials declined to defend the ban in court, and accordingly did not file an appeal. Gay marriage opponents who sought to intervene in the case, however, filed a request Monday asking the full 9th Circuit Court of Appeals to hear their case against same-sex unions in Nevada. In documents calling the issue “a question of historic importance,” the Coalition for the Protection of Marriage claimed bias by a three-judge panel of the court that last week struck down a 2002 Nevada constitutional amendment prohibiting gay marriage.
The coalition said a review before the full court is necessary because judges who were “favorably disposed to arguments for expanding the rights of gay men and lesbians” were assigned to the case. Critics note that opponents made no such claims when the judges were assigned to the case, in briefs or in oral arguments. Tara Borelli, the Lamba Legal attorney who won the Nevada appeal on behalf of eight same-sex couples, called the allegation of improper judicial selection “unfounded, desperate and sad.” A spokesman for the appeals court declined to comment.
Same-sex couples across North Carolina lined up for marriage licenses Monday morning — the first full day when they could do so following a judge’s order on Friday striking down the state’s constitutional ban on same-sex marriage. As of Monday morning, all 100 counties in North Carolina were issuing licenses to same-sex couples.
Meanwhile, a federal judge has allowed Republican lawmakers to intervene in a pair of challenges to North Carolina’s now-defunct gay marriage ban, potentially enabling them to appeal to the U.S. Supreme Court. House Speaker Thom Tillis and Senate leader Phil Berger’s appeal would go to the 4th U.S. Circuit Court of Appeals in Richmond, which ruled this summer that Virginia’s same-sex marriage ban was unconstitutional. That ruling led the way for North Carolina’s ban to be struck down.
And, a county magistrate has resigned a day after North Carolina officials were warned that refusal to perform gay marriages could lead to their being suspended or fired. The memo said state magistrates who refuse to marry same-sex couples are violating their sworn oaths, but Rockingham County Magistrate John Kallam Jr. said Thursday that when he took the oath, he didn’t know he’d be required to perform gay marriages. The state directive came after another county official refused to marry two men, citing religious objections, and others followed.
Attorneys have until next week to file motions in a lawsuit playing a key role in South Carolina’s debate over same-sex marriage. A federal judge on Tuesday gave attorneys until Oct. 23 to file, with another three weeks for responses. Gay marriage appeared imminent last week until the state Supreme Court ruled that South Carolina must wait the U.S District Court to rule in a case challenging the state constitution’s gay marriage ban.
Meanwhile, a second federal lawsuit was filed Wednesday asking a judge to declare the state’s constitutional ban illegal. The case was brought by a Charleston couple who applied for, but did not receive, a marriage license.
A federal judge heard arguments Friday on South Dakota’s attempt to uphold its gay marriage ban – but says she will file her decision later. The state argues that a lawsuit challenging the state’s gay marriage ban should be tossed because the 8th U.S. Circuit Court of Appeals affirmed Nebraska’s ban on gay marriage in a 2006 (pre-Windsor) ruling. The judge didn’t say when she would rule.
If the judge upholds South Dakota’s ban based on the 8th Circuit ruling in 2006, an appeal could result in a new post-Windsor decision in that Circuit, or conversely, create a split among the Circuits and set the stage for a U.S. Supreme Court decision.
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Gov. Scott Walker announced Monday that more than 500 same-sex marriages performed in June will be recognized by the state. There had been questions over whether those marriages would be legally recognized, since they happened when the gay marriage ban was blocked only temporarily. Walker issued a statement that said the state would be treating the licenses issued in June as valid.
A federal judge Friday ordered Wyoming to allow same-sex marriage but delayed the effect of his decision to give the state a week to appeal. Gov. Matt Mead’s office released a statement late Friday afternoon saying that the ruling is contrary to the governor’s personal beliefs but that the state would not appeal because any appeal would likely fail. He said the state would file notice with the court next week.
Wyoming has no waiting period, so same-sex couples will be able to begin marrying on Friday, October 24 at the latest (earlier, depending on when the state notifies the court that it declines to appeal).
Also Friday, the federal government said it will recognize same-sex marriages in seven more states and extend federal benefits to those couples. The announcement by the Justice Department covers Colorado, Indiana, Nevada, Oklahoma, Utah, Virginia, and Wisconsin, and was issued prior to Friday’s rulings affecting Arizona, Alaska and Wyoming.
Meanwhile, marriage equality advocates are closely monitoring developments in Montana (under the jurisdiction of the 9th Circuit); Kansas (10th Circuit) and South Carolina (4th Circuit), where federal courts must eventually side with the Circuit Court decisions.
As well, the U.S. Court of Appeals for the Sixth Circuit could rule at anytime on challenges to bans in Ohio, Michigan, Kentucky and Tennessee. The court heard arguments in those cases in August.
Observers speculate that the largely conservative 6th Circuit could be the first federal appeals court to uphold same-sex marriage bans, setting up the U.S. Supreme Court to eventually make a 50-state decision. Others, however, say that by declining to hear appeals from five states, the Supreme Court knowingly set the stage for marriage equality to advance in a dozen more states, sending a message to the Circuits as to how it might eventually rule.
U.S. Supreme Court Justice Ruth Bader Ginsburg hinted last month that “there will be some urgency” by the Supreme Court if and when an appeals court allows same-sex marriage bans to stand, as that would create a rift among the Circuits. She said if each appeals court falls in line with other rulings, there is “no need for us to rush.” Court watchers say these developments may be giving the 6th Circuit pause for thought.
So, how many states are actually allowing same-sex couples to marry? As of Saturday, same-sex marriage is legal in 31 states and the District of Columbia. (Wyoming would become #32 when the stay is lifted next week.)