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What will the Tenth Circuit do with Utah marriages?

Don’t read too much into court decision to reject a stay: experts

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National LGBT Bar Association, Gay News, Washington Blade

It’s unclear what the Tenth Circuit will do over Utah same-sex marriages. (Image via wikimedia)

As celebrations continue in Utah following its surprise entry as a marriage equality state, one lingering question is whether the U.S. Tenth Circuit Court of Appeals will allow gay couples to continue to marry there.

The court will face two questions regarding the ruling by U.S. District Judge Robert Shelby that the state’s ban on same-sex marriage is unconstitutional. First, whether to institute a stay on Utah’s same-sex marriages as it considers the decision on appeal, and second, whether to overturn or uphold the district court decision.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, said Sunday the Tenth Circuit’s previous rejections of a stay are no indication it’ll decide the same way the next time around.

“I know the 10th circuit declined to issue a stay today, but that decision is consistent with standard procedure, which provides that the district court should rule on a stay request before the appellate court responds,” Goldberg said. “The decision does not tell us what the court will do if and when the stay request is properly presented.”

Appeals courts have made various decisions on whether to institute a stay on same-sex marriages as marriage equality litigation has advanced. The U.S. Ninth Circuit Court of Appeals issued a stay on same-sex marriages after it determined California’s Proposition 8 was unconstitutional. But the New Jersey State Supreme Court refused to stay a lower court’s ruling in favor of marriage equality, prompting New Jersey Gov. Chris Christie to drop his defense of the marriage ban.

State officials — Utah Gov. Gary Herbert and the Utah attorney general’s office — have repeatedly sought stays on the weddings, but have been rebuffed by both the district court and the Tenth Circuit. However, the appeals court allowed officials to refile yet again. The Tenth Circuit could make a decision on a stay at any time and is expected to do so soon, perhaps on Christmas Eve.

Brian Brown, president of the National Organization for Marriage, is calling on the Tenth Circuit to issue a stay on the same-sex marriages.

“This decision provokes a constitutional crisis,” Brown said. “Not only is it unlawful, it roils the body politic and does great damage to the people’s confidence in the judicial system itself as a lone federal judge attempts to usurp the sovereignty of the state. We call on the Tenth Circuit to grant an immediate stay so that our higher courts can carefully and thoughtfully consider the profoundly important issues raised by this case.”

In the event that the Tenth Circuit rejects a stay, state officials could take their request to the U.S. Supreme Court.

Rick Hasen, a professor of law and politics at University of California, Irvine, said via Twitter that the request would go to U.S. Associate Justice Sonia Sotomayor, who could refer the issue to the entire court.

Jon Davidson, legal director for Lambda Legal, said determining which way the Supreme Court will rule on a stay is difficult — even with the precedent of declaring Section 3 of the Defense of Marriage Act unconstitutional.

“Given that couples are now marrying in many other states without any harm to anyone, the Court might choose simply not to get involved at this point, but, as I’ve said, I can’t make any prediction at this point with any degree of confidence,” Davidson said.

Regardless of whether or not the court issues a stay, state officials — Gov. Gary Herbert and newly appointed Utah Attorney General Sean Reyes — have the right to automatic appeal, so the Tenth Circuit has no option but to take up the case on its merits.

The makeup of the U.S. Tenth Circuit Court of Appeals is split just about down the middle between judges appointed by Democrats and Republicans. Three were appointed by President Obama, one by President Clinton, one by President George H.W. Bush, and four by President George W. Bush, making for a 4/5 split of Democratic vs. Republican appointees. There are also two vacancies on the court.

Davidson nonetheless said the political affiliation of the president who appointed a judge doesn’t necessarily predict the way they will decide a case.

“Of course, who appointed a judge does not necessarily tell you how a judge would rule, as some appointees of Democratic presidents have been quite moderate or even, in some states, somewhat conservative, and a number of Republican judges throughout the country have ruled in favor of marriage equality,” Davidson said.

It’s also hard to predict which combination of judges will decide the Utah case. Just as two judges on the court have denied previous stay requests in the case, certain motions, including motions to stay, are randomly assigned to a rotating two-judge panel. In the event of a tie, those judges may request that a third judge be added to decide the matter.

The consistency of the Tenth Circuit stands in contrast to the U.S. Ninth Circuit of Appeals, which has a 27-15 split of Democratic vs. Republican appointees and has a reputation for being a liberal court. The court affirmed California’s Proposition 8 was unconstitutional on the basis that marriage rights for gay couples can’t be rescinded once initially offered, and upheld California’s law prohibiting widely discredited “ex-gay” conversion therapy for minors.

As far as previous rulings, as state officials have noted in their requests for a stay on Utah same-sex marriages, no judge in the Tenth Circuit — at the district or the appeals level — has ever issued an opinion on marriage equality besides Shelby. As the judge noted in his ruling, the Tenth Circuit had determined in 2008 that sexual orientation discrimination doesn’t merit heightened scrutiny, but Shelby said that doesn’t matter because Utah’s ban on same-sex marriage doesn’t pass rational basis review.

But there is precedent for pro-gay rulings in the Tenth Circuit. In 2007, the appeals court in the case of Finstuen v. Crutcher struck down under the Full Faith & Credit Clause an Oklahoma statute barring recognition of adoptions by same-sex couples finalized in another state.

The timing for when the Tenth Circuit will make a decision regarding the appeal also remains in question. As Columbia University’s Goldberg noted, the process can take about a year, but there’s no standard timeline.

“Usually it can take up to a year, or even more, for an appeal to be briefed, argued and decided,” Goldberg said. “In marriage cases, there is a compelling reason for courts to act more quickly because people are being actively denied their rights, but there are no strict rules on the timetable.”

Davidson said it will take at least three months before a briefing is completed in the Kitchen case, but it could be considerably longer if parties seek an extension. More time is needed for oral arguments and for judges to write their decisions.

“Sometimes the period between notice of appeal and decision can be as short as six months or so, and sometimes it can be a matter of years,” Davidson said.

Shelby’s ruling had the distinction of being the first ruling on a marriage ban as a result of a federal lawsuit following the Supreme Court decision against DOMA. While other courts in New Jersey and New Mexico instituted marriage equality following the high court decision, these lawsuits were in state court, not federal court.

However, it’s not the most advanced marriage equality lawsuit. The case against Nevada’s ban on same-sex marriage, Sevcik v. Sandoval, is pending before the U.S. Ninth Circuit Court of Appeals. It remains to be seen which of these two cases, or yet another, will be the first marriage equality lawsuit to reach the Supreme Court in the aftermath of the decisions this year.

However the Tenth Circuit decides, the decision from Shelby is expected to have an impact on other courts evaluating the issue of marriage equality.

Davidson said Lambda Legal submitted a copy of the ruling to the U.S. District Court for the Western District Court just before it allowed a lawsuit challenging a state ban on same-sex marriage in Virginia to proceed.

“Judge Shelby’s opinion is very persuasive, in my view, and I think it will be given significant consideration by other judges deciding these issues,” Davidson said.

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4 Comments

4 Comments

  1. Gay Kleven

    December 24, 2013 at 1:26 pm

    Interesting read

  2. Peter Fiske

    December 24, 2013 at 3:59 pm

    very interesting read for those of us committed to marriage equality…

  3. Ron Lafond

    December 24, 2013 at 7:12 pm

    Great article, Chris. Best summation of the state of play nation-wide and of the procedural issues. It would be great if you could keep reporting on these lawsuits, as I know there are lawsuits at various stages of execution going on in nearly 20 states now. I had thought Michigan, Pennsylvania, and Virginia were most likely to be next before the surprising decision in Utah.

  4. Greg Lambert

    December 24, 2013 at 8:17 pm

    I hope that if things there stay open for same sex marriage that the ruling can start a precedent and could help get other states to change.

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National

Does a potential overturn of Roe imperil LGBTQ rights?

Some fear that Obergefell marriage decision could fall

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Protests outside the U.S. Supreme Court on Dec. 1. (Photo by Cathy Renna)

The oral arguments before the justices of the United States Supreme Court had barely ended in the case brought by the state of Mississippi defending its law banning abortion after 15 weeks, Dobbs v. Jackson Women’s Health Organization, when alarms were set off in legal circles as some argued that Obergefell v. Hodges — the same-sex marriage decision — would be in danger should the high court rule to overturn Roe v. Wade.

Florida State University law professor Mary Ziegler, appearing on NPR’s ‘Heard on All Things Considered,’ told host Mary Louise Kelly that there was a basis for concern over whether the court would actually overrule its precedents in other cases based on the questions and statements raised during the hearing by the conservative members of the court.

Asked by Kelly if she saw a legal door opening Ziegler affirmed that she did. Kelly then asked her, “Them taking up cases to do with that. What about same-sex marriage?”

Ziegler answered, “Yeah, same-sex marriage is definitely a candidate. Justices Alito and Thomas have in passing mentioned in dicta that they think it might be worth revisiting Obergefell v. Hodges – the same-sex marriage decision.

“And I think it’s fair to say that in the sort of panoply of culture war issues, that rights for same-sex couples and sexual orientation are still among the most contested, even though certainly same-sex marriage is more subtle than it was and than abortion was.

“I think that certainly the sort of balance between LGBTIQ rights and religious liberty writ large is a very much alive issue, and I think some states may try to test the boundaries with Obergefell, particularly knowing that they have a few justices potentially willing to go there with them.”

As almost if to underscore the point raised by Ziegler during the hearing, Associate U.S. Supreme Court Justice Sonia M. Sotomayor pointed out that the high court has taken and “discerned” certain rights in cases from the Constitution.

Along with abortion, the court has “recognized them in terms of the religion parents will teach their children. We’ve recognized it in their ability to educate at home if they choose,” Sotomayor said. “We have recognized that sense of privacy in people’s choices about whether to use contraception or not. We’ve recognized it in their right to choose who they’re going to marry.”

In following up the cases cited by Justice Sotomayor, Associate U.S. Supreme Court Justice Amy Coney Barrett asked Mississippi Solicitor General Scott Stewart, who was defending the state’s abortion law, whether a decision in his favor would affect the legal precedents in those cases cited by Justice Sotomayor.

In his answer to Justice Barrett, the state’s Solicitor General said cases involving contraception, same-sex marriage and sodomy wouldn’t be called into question because they involve “clear rules that have engendered strong reliance interests and that have not produced negative consequences or all the many other negative stare decisis considerations we pointed out.”

However, Lambda Legal Chief Strategy Officer and Legal Director, Sharon McGowan had a different take and interpreted remarks by Associate U.S. Supreme Court Justice Brett Kavanaugh to mean that the decisions in Lawrence v. Texas, which decriminalized private sexual intimacy between same-sex couples, and Obergefell v. Hodges, which struck down remaining bans on the freedom of same-sex couples to marry, would actually justify overturning Roe v. Wade.

In a publicly released media statement McGowan noted: “During today’s argument, Justice Kavanaugh suggested that two key Supreme Court decisions protecting LGBTQ civil rights—Lawrence v. Texas and Obergefell v. Hodges—support overruling Roe v. Wade and Planned Parenthood v. Casey.

‘To that we say, NOT IN OUR NAME. LGBTQ people need abortions. Just as important, those landmark LGBTQ decisions EXPANDED individual liberty, not the opposite. They reflected the growing societal understanding of our common humanity and equality under law.

“Just as the Supreme Court in Brown v. Board of Education rejected the lie of ‘separate but equal,’ the Supreme Court’s decisions in Lawrence and Obergefell appropriately overruled precedent where it was clear that, as was true with regard to race, our ancestors failed properly to acknowledge that gender and sexual orientation must not be barriers to our ability to live, love, and thrive free of governmental oppression. … 

“These landmark LGBTQ cases, which Lambda Legal litigated and won, and on which we rely today to protect our community’s civil rights, were built directly on the foundation of Casey and Roe. Our interests in equal dignity, autonomy, and liberty are shared, intertwined, and fundamental.” 

On Sunday, the Blade spoke with Shannon Minter, legal director for the National Center for Lesbian Rights, a national LGBTQ+ legal organization that represented three same-sex couples from Tennessee, whose case was heard by the U.S. Supreme Court along with Obergefell and two other cases.

Minter is urging caution in how people interpret the court arguments and remarks made by the justices.

“We should be cautious about taking the bait from anti-LGBTQ groups who falsely argue that if the Supreme Court reverses or undermines Roe v. Wade, they are likely to reverse or undermine Obergefell or Lawrence. In fact, that is highly unlikely, as the argument in Dobbs itself showed,” he said.

“The only reason Justice Kavanaugh mentioned Obergefell and Lawrence, along with Brown v. Board of Education, was to cite them as examples of cases in which the Supreme Court clearly did the right thing. All of those decisions rely at least as strongly on equal protection as on fundamental rights, and even this extremely conservative Supreme Court has not questioned the foundational role of equal protection in our nation’s constitutional law,” Minter stressed.

During an interview with Bloomberg magazine, David Cortman, of the Scottsdale, Ariz.-based anti-LGBTQ legal group Alliance Defending Freedom, which has been listed by the Southern Poverty Law Center as an extremist hate group, said “two things in particular distinguish abortion from those other privacy rights: the right to life and the states’ interest in protecting a child.”

Cortman, whose group urged the justices to allow states to ban same-sex marriages, said those other rights may be just as wrong as the right to an abortion. “But the fundamental interest in life that’s at issue in abortion means those other rights are probably not in any real danger of being overturned.”

But Cortman is of the opinion that there is little impetus among the court’s conservatives to take up challenges to those cases.

However, the fact that the six to three makeup of the high court with a conservative majority has progressives clamoring for the public to pay closer attention and be more proactively engaged.

Kierra Johnson, executive director of the National LGBTQ Task Force, in an emailed statement to the Blade underscored those concerns:

“Reports and analysis coming out of Wednesday’s Supreme Court hearing on Dobbs v. Jackson Women’s Health Organization are extremely disturbing and represent a threat to our individual constitutional rights to privacy and autonomy. There is no ‘middle ground’ on what the Constitution guarantees and what was decided decades ago with the Roe v Wade decision. 

“This is about liberty, equality, and the rule of law, not the political or partisan views of those sitting on the bench. The unprecedented decision to remove a constitutional right recognized by the Supreme Court 50 years ago would set back civil rights by decades. ….

“Abortion access is essential, and a fundamental right under the U.S. Constitution. Bans on abortion are deeply racist and profoundly sexist – the harshest impacts fall on Black and Brown women and pregnant people and on our families and communities.

“If you think this decision will not affect you, think again: a wrong decision by the Supreme Court means you, too, will lose your bodily autonomy, your ability to own your own personal and community power. This is not just about abortion; it is about controlling bodies based on someone else determining your worthiness. This is a racial justice issue. This is a women’s issue. It is an LGBTQ issue. It is a civil rights issue. These are our fundamental rights that are at stake.”

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Minnesota

Minnesota middle school principal ousted for displaying Pride flag

Critics ramped up attacks on the career educator- some compared her to the Devil after publicly associating with LGBTQ+ people and students

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Screenshot via Marshall Public Schools, YouTube Channel

MARSHALL, Mn. — A former middle school principal in Minnesota who lost her job after displaying a Pride flag alleges in a federal lawsuit that the school system retaliated against her for supporting LGBTQ+ students.

Mary Kay Thomas filed the complaint against Marshall Public Schools in the U.S. District Court of Minnesota Tuesday after anti-LGBTQ+ middle school staff, parents, students and local clergy began efforts to remove the Pride flag that she put up in her middle school’s cafeteria in 2020 as a part of an inclusiveness effort.

According to the lawsuit, Thomas has been a teacher and principal for more than three decades with a long track record of success. She held the principal position at Marshall Middle School for 15 years, receiving contract renewals, pay raises and praise for her performance.

“But when Thomas decided to display an LGBTQ Pride Flag in the school cafeteria in early 2020, everything changed,” reads the complaint. 

Thomas refused to take down the Pride flag as critics ramped up attacks on the career educator. The lawsuit alleges that some even compared her to the Devil after publicly associating with LGBTQ+ people and students. 

“Sadly, the Marshall School District has sided with these critics,” her lawyers wrote. 

What followed was an “escalating series of adverse actions” taken by the Marshall School District, said the lawsuit. She claims that the school targeted her by threatening her employment, conducting a “bad-faith” investigation, putting her on indefinite involuntary leave, suspending her without pay and putting a notice of deficiency in her personnel file. 

The complaint says that the deficiencies were “false, distorted, and/or related to Thomas’s association with members of the LGBTQ community.”

Thomas also claims that the District attempted to get her to quit by removing her as principal and assigning her to a “demeaning ‘special projects’ position.”

At one point, Marshall Public Schools Superintendent Jeremy Williams, who is named as a defendant in the case, told Thomas he could “make this all go away” if she stepped down, according to the complaint. 

The school removed the Pride flag in August 2021 after settling a lawsuit brought by residents who opposed it. 

The Blade reached out to Williams for comment but did not receive a response. However, according to the Marshall Independent, Williams did release a statement on the matter. 

“Marshall Public Schools is committed to the education of every child and has strong policies and practices in place against discrimination, against both students and staff members. The school district is committed to creating a respectful, inclusive, and safe learning and working environment for students, staff and our families,” Williams said. “While the school cannot comment about the specific allegations made in the complaint, the school district strongly denies any allegation of discriminatory conduct. The school will vigorously defend itself against these allegations.”

In addition, Thomas alleges that she resisted unwanted sexual advancements from school board member Bill Swope. She claims she told Williams about the sexual harassment.

As of Thursday, the school has not filed a response, and no hearing has been scheduled yet. 

Thomas is seeking a jury trial, damages and reinstatement as principal of Marshall Middle School.

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National

Matthew Shepard honored at National Cathedral

Daylong services held to mark his 45th birthday

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Matthew Shepard, gay news, Washington Blade
Matthew Shepard Thanksgiving and Celebration at the National Cathedral in 2018. (Blade file photo by Michael Key)

The parents of gay University of Wyoming student Matthew Shepard, who was murdered in a 1998 hate crime that drew international attention to anti-LGBTQ violence, were among those attending a day of religious services commemorating Shepard’s 45th birthday on Wednesday at the Washington National Cathedral.

The services, which the Cathedral organized in partnership with the Matthew Shepard Foundation, included tributes to Shepard at the Cathedral’s St. Joseph’s Chapel, where his remains were interred in a ceremony in 2018.  

“Matthew Shepard’s death is an enduring tragedy affecting all people and should serve as an ongoing call to the nation to reject anti-LGBTQ bigotry and instead embrace each of our neighbors for who they are,” the Very Rev. Randolph Marshall Hollerith, Dean of Washington National Cathedral, said at the time of Shepard’s interment.

“In the years since Matthew’s death, the Shepard family has shown extraordinary courage and grace in keeping his spirit and memory alive, and the Cathedral is honored and humbled to serve as his final resting place,” Hollerith said.

The first of the Cathedral’s Dec. 1 services for Shepard began at 7 a.m. with prayers, scripture readings, and music led by the Cathedral’s Rev. Canon Rosemarie Logan Duncan. The service was live streamed on YouTube.

An online, all-day service was also held from 8 a.m. to 5 p.m. that Cathedral officials said was intended to “connect people around the world to honor Shepard and the LGBTQ community and pray for a more just world.”

The Shepard services concluded with a 5:30 p.m. in-person remembrance of Shepard in the Cathedral’s Nave, its main worship space. Among those attending were Shepard’s parents, Dennis and Judy Shepard, who have said they created the Matthew Shepard Foundation to continue their son’s support for equality for all.

A statement released by the Cathedral says a bronze plaque honoring Matthew Shepard was installed in St. Joseph’s Chapel to mark his final resting place at the time Shepard was interred there in 2018. 
Following the Cathedral’s Dec. 1 services for Shepard, the Adams Morgan gay bar Pitchers hosted a reception for Dennis and Judy Shepard, according to Pitchers’ owner David Perruzza.

One of the two men charged with Shepard’s murder, Russell Henderson, pleaded guilty to the charge after prosecutors agreed not to seek the death penalty for him. The second of the two men charged, Aaron McKinney, was convicted of the murder following a lengthy jury trial.

Prosecutors said McKinney repeatedly and fatally struck Shepard in the head with the barrel of a handgun after he and Henderson tied Shepard to a wooden fence in a remote field outside Laramie, Wy., on Oct. 6, 1998. Police and prosecutors presented evidence at McKinney’s trial that McKinney and Henderson met Shepard at a bar in Laramie on that day and lured him into their car, where they drove him to the field where authorities said McKinney fatally assaulted him.

Shepard died six days later at a hospital in Ft. Collins, Colo., where he was taken after being found unconscious while still tied to the fence.

In a dramatic courtroom scene following the jury’s guilty verdict for McKinney, Dennis Shepard urged the judge to spare McKinney’s life by not handing down a death sentence. He said that out of compassion and in honor of his son’s life, McKinney should be allowed to live. The judge sentenced McKinney to two consecutive terms of life in prison without the possibility of parole, the same sentence given to Henderson.

(VIDEO COURTESY OF THE WASHINGTON NATIONAL CATHEDRAL VIA YOUTUBE)
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