Finishing the Job: With 15 states left to win, here’s how marriage is moving forward
December 22, 2014
Editors' Note: Freedom to Marry will update this post throughout the next few weeks as movement for marriage shifts and develops in the states where same-sex couples are still denied the freedom to marry. Last Updated 1/2
2014 was a historic year for the freedom to marry: We won the freedom to marry for same-sex couples once and for all in an additional 18 states, for a total of 35, and now, just 15 states continue to discriminate against same-sex couples (although same-sex couples can marry in some Missouri counties, and Florida will begin issuing marriage licenses on January 6 even as an appeal proceeds to the 11th Circuit). It's more important than ever that we push toward a national resolution on the freedom to marry - and in the coming weeks, we'll be continuing our work to move marriage forward - and win - nationwide.
In early November, the U.S. Court of Appeals for the 6th Circuit broke from a unanimous string of federal appellate rulings by upholding marriage discrimination, and now, parties in all 4 6th Circuit states (Kentucky, Michigan, Ohio, and Tennesse - plus Louisiana, where a federal judge ruled against the freedom to marry in September) are seeking review of that out-of-step decision from the United States Supreme Court. The Court has scheduled all five of the cases for review at its January 9 conference.
Freedom to Marry has always been committed to winning marriage for same-sex couples nationwide - and now, as momentum surges across the country, it is more important for supporters to do all they can to speak out for the freedom to marry nationwide. Here's what's going on in the 15 where same-sex couples continue to be denied the freedom to marry. Every day of denial in these states is a day too long - and the past year of momentum demonstrates more clearly than ever: America is ready for the freedom to marry.
States in the 6th Circuit
On November 6, 2014, the U.S. Court of Appeals for the 6th Circuit broke from a unanimous string of federal appellate rulings by voting to upholding marriage discrimination and reversing six pro-marriage rulings from the previous year. Now, legal teams and plaintiffs in all 4 states are seeking review from the United States Supreme Court. and the cases have all been distributed for the January 9 conference.
KENTUCKY (Updated 12/23)
The plaintiffs and legal teams in Bourke v. Beshear and Love v. Beshear (two federal marriage cases seeking the freedom to marry in KY and respect for marriages performed in other states) filed their petition for writ of certiorari on November 17, calling for review by the United States Supreme Court. The state has responded, also in support of certiorari, the plaintiffs replied to the response on December 22, and the case has been distributed for consideration at the January 9 conference. The legal challenges were brought by private firms Fauver Law Office and Clay Daniel Walton & Adams. This month, the American Civil Liberties Union and Jeffrey F. Fisher from the Standford Law School joined the case. Read the Petition.
MICHIGAN (Updated 12/23)
The plaintiffs and legal team in DeBoer v. Snyder (federal marriage cases seeking the freedom to marry in MI) filed their petition for writ of certiorari on November 17, calling for review by the United States Supreme Court. The state of Michigan has responded, also in support of certiorari, and the plaintiffs have waived their chance to reply to the response, and the case has been distributed for consideration at the January 9 conference. The legal challenge is led by private counsel Kenneth M. Mogill, Dana M. Nessel, Robert A. Sedler, and Carole M. Stanyar. Last month, Mary Bonauto of Gay & Lesbian Advocates & Defenders also joined the case. Read the Petition.
Meanwhile, a ruling is still pending in Caspar v. Snyder, a legal case seeking respect in Michigan for the 300+ marriage licenses issued by the state of Michigan in March 2014, following the ruling in DeBoer prior to the granting of a stay by the 6th Circuit Court of Appeals.
Michigan for Marriage, a coalition that Freedom to Marry has been proud to found and lead, is continuing to highlight grassroots support for the freedom to marry.
OHIO (Updated 12/23)
The plaintiffs and legal team in Obergefell v. Hodges and Henry v. Hodges (federal marriage cases seeking respect in OH for marriages legally performed in other states) filed their petition for writ of certiorari on November 14, calling for review by the United States Supreme Court. The state of Ohio has responded, also in support of certiorari. The plaintiffs filed a reply brief on December 21, and the case has been distributed for consideration at the January 9 conference.. Both cases were filed by Gerhardstein & Branch Co., LPA and Newman & Meeks Co., LPA, with the ACLU joining Obergefell and Lambda Legal joining Henry. Read the Petition.
Why Marriage Matters Ohio, a coalition that Freedom to Marry has been proud to found and lead, is continuing to highlight grassroots support for the freedom to marry.
TENNESSEE (Updated 12/23)
The plaintiffs and legal team in Tanco v. Haslam (federal marriage case seeking respect in TN for marriages legally performed in other states) filed their petition for writ of certiorari on November 14, calling for review by the United States Supreme Court. The state of Tennessee has responded, opposing certiorari, on December 19, the plaintiffs waived their chance to reply, and the case has been distributed for consideration at the January 9 conference. The case was filed by the National Center for Lesbian Rights, as well as attorneys Abby Rubenfeld, the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert. Read the Petition.
States in the 5th Circuit
On January 9, 2015, the U.S. Circuit Court of Appeals for the 5th Circuit will review three federal marriage cases - one from Texas and one from Mississippi, in which the state's marriage bans were struck down in February and November 2014, and one from Louisiana, in which a federal judge issued one of the few federal rulings upholding marriage discrimination.
An oral argument is scheduled for January 9, 2015 before the U.S. Court of Appeals for the 5th Circuit in a federal marriage case, De Leon v. Perry, which has long been pending before the 5th Circuit. Earlier this fall, dozens of amici briefs were filed in the case, including one signed by more than 200 faith leaders and one by dozens of Texas First Responders for the Freedom to Marry. The case is being led by Akin Gump Strauss Hauer & Feld LLP.
On November 24, counsel in the case filed a request to the District Court requesting that the stay in the ruling be lifted, but the request was denied by a District Court judge.
In November 2014, Freedom to Marry was proud to launch, in partnership with Equality Texas, Texas for Marriage, a new campaign dedicated to amplifying the voices of same-sex couples and the wide breadth of support from Texans of all walks of life.
An oral argument is scheduled for January 9, 2015 before the U.S. Court of Appeals for the 5th Circuit in a federal marriage case, Robicheaux v. George, in which a federal judge upheld marriage discrimination in September. It is one of just two federal marriage cases that have received anti-marriage rulings this year. Lambda Legal has joined the case as counsel.
Meanwhile, plaintiffs in the Robicheaux case are seeking review prior to judgment from the United States Supreme Court. They filed their petition on November 20, and the state responded quickly, also in support of certiorari. Plaintiffs waived their chance to reply, and the petition has been distributed for the Supreme Court's January 9 conference, after which time the Court could announce that they are granting review in the case.
In a separate case in state court, Costanza and Brewer v. Caldwell, a Circuit Judge ruled in favor of the freedom to marry, requiring Louisiana to respect the marriages of same-sex couples performed in other states and affirming that the anti-marriage amendment in Louisiana violates the due process and equal protection clauses of the 14th Amendment. The ruling was nearly immediately appealed by the state, triggering the decision to be placed on hold. A schedule for next steps in the case is unclear.
An oral argument is scheduled for January 9, 2015 before the U.S. Court of Appeals for the 5th Circuit in a federal marriage case, Campaign for Southern Equality v. Bryant, in which a federal judge struck down Mississippi's marriage ban. Lambda Legal has joined the case as counsel.
The lead attorney, Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison LLP, led the case that brought down the core of the so-called Defense of Marriage Act at the U.S. Supreme Court in June 2013. Plaintiffs are also represented by Mississippi attorney Robert McDuff of McDuff & Byrd, based in Jackson, Mississippi. The couples are Andrea Sanders and Rebecca Bickett, who want to marry in their home state, and Jocelyn Pritchett and Carla Webb, who are fighting for their marriage in Maine to be respected back home. You can read more about the legal case, Campaign for Southern Equality v. Bryant, HERE.
States in the 11th Circuit
Currently before the U.S. Circuit Court of Appeals for the 11th Circuit is one federal marriage case from Florida, in which the marriage ban was struck down in September 2014. Briefing schedules take the cases likely through the start of 2015, but an oral argument is not yet set.
FLORIDA (Updated 1/2)
On December 19, the United States Supreme Court denied the state of Florida's request to extend a stay in this federal case seeking the freedom to marry, meaning that same-sex couples should be able to get marriage licenses starting when the stay is set to expire, on January 5, 2015. Previously, a federal judge (on November 5) and the 11th Circuit Court of Appeals (on December 3) denied the state's request to alter the stay in this ruling. The decision means that same-sex couples will have the freedom to marry while the appeal in the case proceeds to the 11th Circuit. On January 1, 2015, the federal judge clarified in his ruling that the decision applies state-wide, impacting all counties and mandating that same-sex couples have the freedom to marry throughout Florida.
January 6 will be a wonderful day in Florida - but it doesn't mean that the fight is over in the Sunshine State: As same-sex couples begin to marry in Florida, the appeal will proceed to the 11th Circuit, where a favorable ruling would secure the freedom to marry once and for all in Florida and pave the way for marriage in Alabama and Georgia. The Florida cases are Armstrong v. Brenner, filed by private counsel, and Secretary, Florida Dept of Health v. Grimsley, filed by the American Civil Liberties Union of Florida on behalf of SAVE, an LGBT organization in Miami, and almost a dozen married and unmarried same-sex couples seeking the freedom to marry or respect for their marriages legally performed in other states.
If you're a same-sex couple seeking information on how to marry in Florida on January 6, click here.
In late December, more than 25 amici briefs were filed to the 11th Circuit in support of the freedom to marry, representing more than 200 faith leaders, dozens of employers, and more than 200 First Responders who support the freedom to marry in Florida.
Separately, two consolidated state marriage appeals (Huntsman v. Heavilin and Pareto v. Ruvin) are pending before the 3rd District Court of Appeals in Florida State Court. In each case, judges have ruled in favor of the freedom to marry. A different state marriage case is pending before the Florida 2nd District Court of Appeals, with briefing happening now. And one final state marriage case, which received a ruling in December in favor of the freedom to marry, resulted in one same-sex couple being able to divorce in Broward County, FL.
A federal case, Inniss v. Aderhold, is currently pending in federal court. On October 22, Attorney General Olens filed a reply brief on a Motion to Dismiss in the case, and a ruling is expected soon. The case is led by Lambda Legal and private counsel from Bryan Cave and White & Case. Earlier this year, the legal team added a new plaintiff family to the case, Beth and Krista Wurz, who were married in 2010 and are now seeking respect for their marriage. The women are raising seven children together, including five placed with them through the foster care system - but because their marriage is not respected, they are unable to jointly adopt their children.
Jeff Graham, Executive Director of Georgia Equality, said earlier this month, “On behalf of everyone at Georgia Equality, we want to thank Beth and Krista for joining the lawsuit. While it has long been a best business practice to extend benefits to the spouses and partners of same-sex couples, unfortunately the State of Georgia does not treat their LGBT employees with that same sense of fairness. By joining this lawsuit, they are giving voice to the tens of thousands of state employees who are denied the benefits and protections that other married co-workers enjoy."
Georgia marriage supporters are also looking toward the 11th Circuit's Florida marriage case, since a positive ruling there would impact Georgia's marriage ban, too.
Three federal cases are pending in Alabama seeking respect for the marriages of same-sex couples legally performed in other states. Motions for summary judgment have been filed, but none of the cases have seen much movement in recent weeks.
Alabama marriage supporters are also looking toward the 11th Circuit's Florida marriage case, since a positive ruling there would impact Alabama's marriage ban, too.
States in the 8th Circuit
In the 8th Circuit, two federal marriage cases have received rulings this year, with a Missouri ruling now on appeal to the 8th Circuit Court of Appeals and an Arkansas federal case not yet appealed to the appellate court. Other challenges are pending in North Dakota and South Dakota. In Minnesota and Iowa, same-sex couples already have the freedom to marry.
ARKANSAS (Updated 1/2)
A decision is still pending in a state marriage case, Wright v. Smith, which was considered by the Arkansas Supreme Court on November 20. Supporters of the freedom to marry across Arkansas - including 43 faith leaders in Arkansas and dozens of First Responders - filed "friend-of-the-court" briefs in the case. On January 1, several new members of the Arkansas Supreme Court were sworn in, and a further decision in the marriage case could be delayed because of this court turnover. It is unclear whether there will be need for an additional oral argument in the case.
A separate case, Jernigan v. Crane, received a ruling in November 2014 in favor of the freedom to marry from U.S. District Judge Kristine Baker. The ruling was appealed to the 8th Circuit on December 23, 2014. In early December, same-sex couples delivered more than 1,100 signatures from Arkansas marriage supporters urging Attorney General McDaniel to let the ruling stand.
Marriages between same-sex couples are officially respected in Missouri, now that the Attorney General and Governor have said they will not appeal a ruling from Friday, October 3, and in St. Louis, Missouri, a state judge declared that city officials must issue marriage licenses to same-sex couples, which is ongoing now, with several counties following suit.
In November, a federal judge also ruled in favor of the freedom to marry in Lawson v. Kelly, with the decision on hold. Attorney General Koster appealed that decision in December, and the case is now before the 8th Circuit Court of Appeals.
Plaintiffs in the case have asked the 8th Circuit to either expedite the appeal or vacate the district court's stay in the case, which would allow same-sex couples to marry statewide as the appeal proceeds. No decision has yet been issued on that motion.
The ACLU, the ACLU of Nebraska and same-sex couples filed a legal case seeking the freedom to marry in November 2014 - Waters v. Heineman. A hearing in the case is scheduled for January 29, 2015.
Two federal legal challenges are pending seeking the freedom to marry in North Dakota. In both, Jorgensen v. Montplaisir, filed by Lambda Legal, and the other, Ramsay v. Dalrymple, filed by Joshua Newville of Madia Law LLC and Debra Voigt of Burd And Voigt Law Office with the National Center for Lesbian Rights as co-counsel, the legal teams have filed motions for summary judgment, seeking immediate relief for the same-sex couples represented in the case, with Lambda adding additional supplemental briefs in light of all of the movement at the U.S. Supreme Court this month. The cases are fully briefed and a ruling could come down at any point.
One federal legal challenge is pending seeking the freedom to marry in South Dakota. The case, Rosenbrahn v. Daugaard, filed by Joshua Newville of Madia Law LLC and Debra Voigt of Burd And Voigt Law Office with the National Center for Lesbian Rights as co-counsel, had a hearing on the defendants' motion to dismiss the case on Friday, October 17, with a ruling issued soon after allowing the case to proceed for a full ruling.
Other Areas Where Marriage is Moving Forward
On October 21, a U.S. District Court Judge broke from the nearly 50 judges in states across the country who have ruled in favor of the freedom to marry this year by dismissing a legal challenge to Puerto Rico's marriage ban. The next step is the 1st Circuit Court of Appeals, where love will win. The opening brief in the 1st Circuit appeal is due on January 26.
Note: Same-sex couples officially have the freedom to marry right now in Alaska, Idaho, North Carolina, and South Carolina, although opponents of the freedom to marry are still pursuing last-ditch attempts to reinstate harmful marriage bans, including asking the United States Supreme Court to grant certiorari in their cases. Despite this, the ruling from the U.S. Court of Appeals for the 9th Circuit - and the U.S. Supreme Court's decision to deny review in the five marriage cases in October 2014 - indicate that their efforts are unlikely to succeed.