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BREAKING! Supreme Court taking up marriage cases!

WASHINGTON, DC – After meeting in private conference today, the U.S. Supreme Court agreed to take up gay-marriage appeals from Michigan, Ohio, Kentucky and Tennessee. It promises to be a landmark session, which means a ruling will be made by the end of June.

Read the order HERE. The order states:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

Evan Wolfson, president of Freedom to Marry, was overjoyed.

"The Supreme Court's decision today begins what we hope will be the last chapter in our campaign to win marriage nationwide - and it's time," Wolfson said.

"Freedom to Marry's national strategy has been to build a critical mass of marriage states and critical mass of support for ending marriage discrimination, and after a long journey and much debate, America is ready for the freedom to marry. But couples are still discriminated against in 14 states, and the patchwork of discrimination harms families and businesses throughout the country. We will keep working hard to underscore the urgency of the Supreme Court's bringing the country to national resolution, so that by June, all Americans share in the freedom to marry and our country stands on the right side of history," he said.

Currently, 36 states and the District of Columbia permit same-sex marriage, and a federal judge in South Dakota ruled earlier this week that the gay-marriage ban there was unconstitutional. So the tipping point has arrived and public support for marriage equality is firmly in the majority. The pressure mounts for the justices to decide the marriage issue for the remaining states.

The high court sidestepped the gay marriage ruling in the United States v. Windsor case, a landmark decision announced on June 26, 2013.

“70% of Americans now live in a state with marriage equality, and that number was considerably lower the last time these justices considered whether to take up a marriage case,” said Charles Joughin, a spokesman with the Human Rights Campaign.

With South Dakota's ban struck down, but stayed pending appeal, gay marriage bans now exist in 13 states -- North Dakota, Nebraska, Missouri, Arkansas, Louisiana, Texas, Mississippi, Alabama, Tennessee, Kentucky, Ohio and Michigan – though those bans are under legal attack and some of them already struck down but under appeal.

Last Friday, the Fifth Circuit Court of Appeals based in New Orleans, Louisiana heard three gay marriage cases that were appealed following district court rulings. In two of the cases, involving Mississippi and Texas, judges ruled that state bans on same-sex marriage were unconstitutional. And in the third case, the federal judge ruled that Louisiana’s ban on gay marriage was constitutional.

The Fifth Circuit historically has been among the most controversial and conservative appellate courts in the land. But court observers noted that the three-judge panel that heard the three cases seemed to be split, 2-1, in favor of equality.

Brian Silva, Marriage Equality USA’s executive director, said it is time for the Supreme Court to rule for equality.

“It’s time for America to no longer be a house divided when it comes to the freedom to marry. 36 states and the District of Columbia already have marriage equality. LGBTQ couples should no longer be excluded in the remaining 14 states, Puerto Rico, and other US territories,” Silva said.

“We urge the Supreme Court to affirm the near unanimous consensus of the over 55 courts who have ruled in favor of marriage equality over the last 18 months. Lesbian, gay, bisexual, and transgender people are part of the fabric of America. We look to the Supreme Court to recognize once and for all that we should have the same freedom to marry that all other Americans enjoy and that we should have full constitutional protections in all aspects of our lives,” said John Lewis, MEUSA’s Legal and Policy Director.

Steve Huesing, Michigan native and MEUSA’s Board President stated: “When my partner proposed to me over three years ago, I had no doubt in my mind that I wanted to spend the rest of my life with him. We dream of marrying, surrounded by family and friends, in the backyard of my sister’s beautiful home nestled in the woods in Michigan. But our dream remains unfulfilled because the 6th Circuit federal appellate court upheld Michigan’s exclusion of sex couples like us from marriage. Time is running out for my elderly mother, whom we really want to be there because of the intimate bond we share with her. We now turn to the Supreme Court to establish marriage equality for all Americans, including our family.”
“I’ve talked to countless Americans from all across the country and from many different walks of life in the years I’ve worked for marriage equality. What I’ve found is that the vast majority of Americans have the common sense to recognize our shared humanity and believe that LGBTQ people should have the basic freedom to marry the person they love. I hope and expect that the Supreme Court will make that vision a legal reality through the cases it agreed today to decide,” said Tracy Hollister, MEUSA’s Program Manager.

Michael Keegan, president of People For the American Way Foundation, said the marriage cases will throw a spotlight on the divided court.

“This is unquestionably an important step towards marriage equality for all Americans,” Keegan said. “Since the Sixth Circuit got this wrong and denied people in four states their basic rights, the Supreme Court did the right thing by taking these cases. Now the Court needs to do the right thing by making a clear statement about the Constitution’s guarantee of fundamental equality for all people. The time is long overdue for every American to have the right to marry the person they love.”

“That said, this is likely to be yet another five-four decision from the Court that gave us Citizens United and Hobby Lobby and gutted the Voting Rights Act. That should be a reminder that our fundamental rights are in jeopardy in our nation’s highest court — and the future of the Court and these rights will be in the next President's hands. Americans should be able to depend on the Supreme Court to defend the rights of ordinary Americans — whether that’s the right to marry, or to vote, or to be treated fairly on the job, or to control their own reproductive health," he said.

“Today is an important step towards full equality for same-sex couples — and a powerful reminder that every American should be concerned about the balance of the Supreme Court,” Keegan said.

Cases before the U.S. Supreme Court

The focus falls on these four cases coming out of the Sixth Circuit Court of Appeals, where a three-judge panel voted 2-1 to uphold gay marriage bans in Michigan, Ohio, Kentucky and Tennessee.

Maureen Johnston of SCOTUSblog sums up those cases:

Robicheaux v. George
Issue: Whether a state’s constitutional and statutory bans denying same-sex couples the freedom to marry and recognition of their marriages validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

Bourke v. Beshear
Issue: (1) Whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by prohibiting gay men and lesbians from marrying an individual of the same sex; and (2) whether a state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment by refusing to recognize legal marriages between individuals of the same sex performed in other jurisdictions.

DeBoer v. Snyder
Issue: Whether a state violates the Fourteenth Amendment to the U.S. Constitution by denying same-sex couples the right to marry.

Tanco v. Haslam
Issue: (1) Whether a state violates the Due Process or Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution by depriving same-sex couples of the fundamental right to marry, including recognition of their lawful, out-of-state marriages; (2) whether a state impermissibly infringes upon same-sex couples’ fundamental right to interstate travel by refusing to recognize their lawful out-of-state marriages; and (3) whether this Court’s summary dismissal in Baker v. Nelson is binding precedent as to petitioners’ constitutional claims.

Obergefell v. Hodges
Issue: (1) Whether Ohio’s constitutional and statutory bans on recognition of marriages of same-sex couples validly entered in other jurisdictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution; and (2) whether Ohio’s refusal to recognize a judgment of adoption of an Ohio-born child issued to a same-sex couple by the courts of a sister state violates the Full Faith and Credit Clause of the U.S. Constitution.

The divided Sixth Circuit has the distinction, in American history, of being the first appellate court to uphold the discriminatory ban on gay marriage. This perked the interest of the Supreme Court, because it was the first time that marriage-equality supporters lost after a long string of victories including at the Fourth, Seventh, Ninth and Tenth Circuit Court of Appeals.

Plaintiffs react to today's news

The Tennessee plaintiff couples are Dr. Valeria Tanco and Dr. Sophy Jesty of Knoxville; Army Reserve Sergeant First Class Ijpe DeKoe and Thom Kostura of Memphis; and Matthew Mansell and Johno Espejo of Franklin.

They are represented by Shannon Minter, Christopher F. Stoll, and David C. Codell of the National Center for Lesbian Rights (NCLR), Tennessee attorneys Abby Rubenfeld, Maureen Holland, and Regina Lambert, and the law firms of Sherrard & Roe PLC and Ropes & Gray LLP.

“This is an important day because it means that our family will finally have an opportunity to share our story with the Court and explain how this discriminatory law hurts us each day,” said Tanco, who has a young daughter with Jesty. “We live in fear for ourselves and our little girl because we don’t have the same legal protections in Tennessee as other families. We are hopeful the Supreme Court will resolve this issue so we no longer need to live in fear.”

Minter, NCLR's legal director, said: “Currently, same-sex couples in many states face a constitutionally intolerable situation because their home states treat them as legal strangers. Even legally married couples can instantly lose the protections of marriage if they travel or move to a state that does not recognize their marriages. We hope the Supreme Court will finally bring an end to the harms that same-sex couples and their children face when they are treated unequally and excluded from marriage.”

The Michigan case involved April DeBoer and Jayne Rowse, a couple raising adopted children without joint parental rights.

Now a committed couple for more than 10 years, DeBoer and Rowse are both hospital nurses and the parents of four special-needs children whom they fostered and then adopted. They originally challenged Michigan's adoption code so that they could adopt their children jointly rather than as "single" individuals, and provide them the security of having two legal parents. They later challenged the state's marriage ban since it keeps April and Jayne, as well as the children, from being legally recognized as a family and from the protections other families enjoy. They argue that state laws banning marriage equality violate the U.S. Constitution's guarantees of equal protection and due process.

"We are now that much closer to being fully recognized as a family, and we are thrilled," said DeBoer. "This opportunity for our case to be heard by the Supreme Court gives us and families like ours so much reason to be hopeful."

The DeBoer-Rowse family is represented by Michigan attorneys Carole M. Stanyar; Dana Nessel of Nessel and Kessel Law; Kenneth Mogill of Mogill, Posner & Cohen; Wayne State University Law Professor Robert Sedler; and Mary Bonauto of the Boston-based Gay & Lesbian Advocates & Defenders (GLAD).

"By choosing to hear the DeBoer case, the Court now has the opportunity to end the injustices facing gay families in Michigan and so many other states, and to ensure that same-sex couples nationwide are free to move for work, school, or to care for elderly parents without jeopardizing their family's security," said Nessel.

"Our families, communities and the schools all see us as a family," Rowse said. "We juggle our jobs and a houseful of children and wouldn't have it any other way. Soon, we hope to have the same recognition and share the same protections and responsibilities as all other families."

Jon W. Davidson, Legal Director and Eden/Rushing Chair at Lambda Legal, had this to say.

“After years of struggle and the dedicated work of thousands across the movement, we are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage,” Davidson said. “While these cases will carry the marriage standard before the Supreme Court, they represent literally dozens of cases in state and federal courts nationwide and the collective effort of Lambda Legal, NCLR, the ACLU, GLAD, and other sister LGBT groups and private (often pro-bono) counsel dating back years.”

“From the early stirrings in Hawai`i in 1993 to the critical victories in Massachusetts, California, Iowa, and New Jersey to the breath-taking triumphs of recent months, we all can take pride in what together we have accomplished,” Davidson added.

The American Civil Liberties Union and Stanford Law School Supreme Court Litigation Clinic are co-counsel in the two Kentucky cases, Bourke v. Beshear and Love v. Beshear, brought by lawyers at Clay Daniel Walton & Adams and the Fauver Law Office. These cases challenge Kentucky’s anti-marriage laws on the ground that they violate due process and equal protection provisions of the U.S. Constitution. The ACLU along with Lambda Legal and Gerhardstein & Branch are also co-counsel in the Ohio case, Obergefell, et al v. Hodges.

“We are thrilled the court will finally decide this issue,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project. “The country is ready for a national solution that treats lesbian and gay couples fairly. Every single day we wait means more people die before they have a chance to marry, more children are born without proper protections, more people face medical emergencies without being able to count on recognition of their spouses. It is time for the American values of freedom and equality to apply to all couples.”

The plaintiff couples in the two lawsuits are denied the freedom to marry the person they love, and denied recognition of valid marriages entered into in other jurisdictions. From the birth of children to the death of beloved partners, same-sex couples in Kentucky are unable to enjoy the rights, responsibilities, and privileges of married life that their different-sex counterparts in Kentucky take for granted.

Paul Campion and Randy Johnson met in the summer of 1991 and have been together ever since. They live in Louisville and are raising four children together. When Paul was diagnosed with prostate cancer at 46, the family not only had to navigate the stress of his illness but was also faced with a host of legal questions about whether and how Randy would be recognized by medical providers during Paul's treatment.

“We are hopeful this review means we will soon be able to enjoy the rights and protections associated with marriage. Because of Paul’s cancer, the potential for an unfortunate, untimely death has worried us that I would be vulnerable to discriminatory laws that do not recognize us as a family,” Johnson said.

What would be the impact of a ruling in favor of marriage equality?

The Williams Institute at UCLA said a high court ruling in favor of marriage equality would apply nationwide and also impact Puerto Rico and American territories.

Key nationwide statistics include:

• As of today, more than three-quarters (75.8%) of same-sex couples across the country are living in the 36 states where they can marry and more than seven-in-10 (70.4%) Americans are living in states that allow marriage for same-sex couples.

• Williams Institute research suggests that there were 690,000 same-sex couples in the U.S. in 2013 raising an estimated 200,000 children. As many as 30,000 of those children are being raised by married parents.

• Recent Williams Institute analyses suggest that the number of married same-sex couples, estimated to be as high as 130,000 in 2013, has increased by more than 50% over the last 3 years.

• Fourteen states, home to nearly 30% of the U.S. population, (AL, AR, GA, KY, LA, MI, MO, MS, ND, NE, OH, SD, TN, TX) and Puerto Rico continue to enforce bans on same-sex marriage.

• In 2014, courts prohibited 19 states, home to 32% of the U.S. population, from enforcing their bans on same-sex marriage on federal constitutional grounds (AZ, AK, CO, ID, IN, FL, KS, OK, OR, PA, NC, NV, MT, SC, UT, VA, WI, WV, WY).

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Ken Williams is Editor in Chief of SDGLN. He can be reached at ken@sdgln.com, @KenSanDiego on Twitter, or by calling toll-free to 888-442-9639, ext. 713.