Saturday, November 01, 2014

180.1 - Good News: And the beat goes on

Good News: And the beat goes on

Starting, as always when possible, with some Good News, the news here is that the beat goes on. Friday, October 17 saw a three-fer on marriage equality.

First, on that day US District Court Judge Scott Skavdah ruled Wyoming's ban on same-sex marriage is unconstitutional.
Wyoming is one of the states affected by the Supreme Court's refusal to hear appeals from five states looking to overturn Circuit Court decisions striking down bans on marriage equality. Although Wyoming was not one of the states involved in those suits, it is in the 10th circuit, which is one of the circuits from which SCOTUS refused to hear appeals. That refusal meant the 10th Circuit Court of Appeals decision was final.

There was one striking difference between this ruling and other recent ones about marriage equality: Judge Skavdah wrote in his ruling that "the preferred forum" for addressing such issues is "public debate  and legislative action. However", he immediately said, "that ship has sailed." That is, because the Circuit Court had already ruled on the issue, finding such bans unconstitutional, he had no choice but to find as he did.

He stayed the effect of that ruling until October 23 to give the state a chance to appeal, but that evening, Wyoming Gov. Matt Mead said the state will not do so. Same-sex marriage has come to Wyoming.

Also on that Friday, US District Court Judge John Sedwick declared Arizona's ban on marriage justice to be unconstitutional, relying on the previous ruling to that effect by the 9th Circuit Court of Appeals, which struck down such bans in Nevada and Idaho.  Arizona is part of the 9th circuit. Sedwick ordered Arizona to "permanently cease" its ban on same-sex marriage and declined to issue a stray, so same-sex marriages can begin in Arizona immediately.

Finally, on that same day, October 17, the Supreme Court rejected a last-minute appeal from the state of Alaska, which had looked to block a ruling by US District Court Judge Timothy Burgess. That ruling had invalidated Alaska's first-in-the-nation state constitutional ban on same-sex marriage, as I reported last week. The refusal of SCOTUS to hear the appeal means same-sex couples in Alaska can begin getting marriage licenses as of now.

That effectively brings the number of states with legal same-sex marriage to 31.

There's something else here that I find interesting. To start with, I realize that all these decisions and appeals at various levels can sort of jumble together, so let me organize it this way: There are 11 federal Circuit Courts of Appeal in the US. Four of those circuits - the 4th, 7th, 9th, and 10th - have ruled that bans on same-sex marriage violate the US constitution. None have ruled otherwise. In addition, three of the circuits - the 1st, 2nd, and 3rd - are made up of states all of which have legal same-sex marriage. So seven of eleven circuit courts either have ruled in favor of same-sex marriage rights or it was never necessary to do so. So only four circuits have yet to be heard from. In one - the 8th - there is no case pending and in two others - the 5th and the 11th - the cases are moving through the courts but have not yet been heard at the appellate level.

The just leaves the 6th circuit. The 6th Circuit Court of Appeals heard oral arguments on a challenge to a ban on same-sex marriage the first week in August and based on what happened during those arguments, including the attitude that the members of the court appeared to be taking, it was thought likely by observers that the 6th Circuit Court would be the one to uphold the laws banning same-sex marriage.

But still there has been no decision. And since then came the refusal of SCOTUS to hear the appeals from those five states, which hints strongly that five members of the Supreme Court favor the position that bans on same-sex marriage must fall.

Judges hate to be overturned. So I am just wondering: Is the 6th Circuit Court deliberately waiting to watch developments, not wanting to be the first to stand against the tide of history, wanting perhaps even to find a way to use some form of Judge Skavdah's statement and say in some way "We don't think this is the proper forum but the decision is forced upon us" and so actually rule in favor of marriage equality?

I don't know and I'm certainly not counting on it, this is just some speculation on my part (although I will quite shamelessly pat myself on the back if it turns out to be true) but I will say that if the 6th Circuit Court does rule in favor of equality, that will be game over for the bigots. The real dead-ender fanatics - such as the institutional Catholic Church - will fight on, but most, I believe, would pack it in and move on to some other target for their need to hate.

With all the current irrational panic about Ebola, West Africans could do nicely. And there are always "illegal immigrants" - or even "illegal immigrants with Ebola," which is something Scott Brown was blathering on about the other day.

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