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BREAKING! Lawyers file briefs, show confidence of marriage victory at Supreme Court

WASHINGTON DC – Lawyers for gay and lesbian couples from Michigan, Ohio, Kentucky and Tennessee filed opening briefs today in the historic marriage cases at the U.S. Supreme Court, and later sounded very confident of victory during a national conference call with the media.

Nine of the lawyers involved in the cases before the nation’s high court spoke for nearly an hour on Friday morning, and not one of them envisioned a scenario in which they see the justices standing in the way of legalizing same-sex marriage nationwide.

Even when pressed by San Diego Gay & Lesbian News about the possibility of winning only a partial victory, Susan Sommer, Director of Constitutional Litigation at Lambda Legal who is involved in the Ohio case, appeared skeptical that the high court would not go all the way in endorsing marriage equality for all Americans. Echoing other lawyers who spoke today, Sommer described the legal briefs filed today as “really powerful arguments” and said it is difficult to imagine that a majority of the justices would not be persuaded by those arguments.

The lawyers outlined the issues as ranging from birth to death, showing how young couples who want to start families face numerous legal challenges to protect their children or how elderly couples struggle with life-and-death decisions involving health care, survivor benefits and inheritances.

Several of the lawyers hoped to get a ruling based on “heightened scrutiny” in order to fight the anti-gay “religious freedom” bills that have begun cropping up in Red States in response to the legalization of same-sex marriage. To date, 37 states, the District of Columbia and a number of American Indian tribes have embraced marriage equality.

Amicus briefs supporting the plaintiffs in the four cases are due to be filed by Friday, March 6. And the high court set March 17 as the date to learn the names of the lawyers who will argue in favor of same-sex marriage. To date, the various lawyers involved in the four cases have not settled on who will be giving the oral arguments before the high court.

Oral arguments will take place the week of April 27 – either on Monday, Tuesday or Wednesday, according to the lawyers. A decision is expected near the end of June.

During the morning, the first 90 minutes of oral arguments will be devoted to the main question: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

After that, there will be 60 minutes exploring the secondary question: 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?

Here are the four marriage cases before the Supreme Court:

The Michigan story, told by GLAD

Lawyers for Michigan nurses April DeBoer and Jayne Rowse, who seek to marry in their home state of Michigan, today filed their opening brief with the U.S. Supreme Court. The Court agreed to hear their case, DeBoer v. Snyder, along with marriage-related cases from Ohio, Tennessee and Kentucky this Term, potentially setting up a resolution to the country’s ongoing conversation about marriage equality which has now stretched over two decades.

“Each day and each development brings us closer to knowing whether we will be able to marry and make our family as safe and secure as it can be,” DeBoer said. “We’re both proud and humbled to be representing so many families who have the same hopes and dreams that we do.”

DeBoer and Rowse are hospital nurses and the parents of four children they have adopted, two with special needs, two of whom were fostered first. They originally challenged Michigan's adoption code so that they could adopt their children jointly and provide them the security of having two legal parents. They later amended their lawsuit to challenge 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.

“Marriage is a commitment like no other in society,” said Carole M. Stanyar, one of the attorneys representing DeBoer and Rowse. “We argue that when couples cannot marry, their families, including their children, are denied a fundamental freedom as well as the status, dignity, security, stability, and legal protections that marriage confers. It’s time to bring that injustice to an end.”

In addition to Stanyar, the DeBoer-Rowse family is represented by 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).

“This is a case that started because of April and Jayne’s concern for their children,” Nessel said. “Marriage brings stability to families. It tells children that they have, and always will have, two parents. For the children of same-sex parents, allowing their parents to marry dispels the notion that they are inferior. Marriage brings dignity to adults and children alike.”

After a nine-day trial in February and March of 2014, federal District Court Judge Bernard A. Friedman struck down Michigan’s ban on marriages and “any similar union,” concluding that “the guarantee of equal protection must prevail.” The state immediately filed an appeal. On Nov. 6, 2014, the Sixth Circuit Court of Appeals overturned Friedman’s decision and those of courts in Ohio, Tennessee and Kentucky. All of those cases are now before the Supreme Court.

“We are hoping that the Court will look at families like April and Jayne’s and conclude that denying them the freedom to marry violates our nation’s most cherished and essential guarantees,” Bonauto said. “It is time to end the legal bans that single out same-sex couples for disrespect and instead allow them to make this unique promise to one another and provide greater protection and security for their families.”

Michigan Petitioners Brief

The Tennessee story, told by NCLR

Three couples challenging Tennessee’s marriage ban filed a brief in the Supreme Court of the United States today, asking the Court to rule that same-sex couples have the freedom to marry and thereby put an end to “a checkerboard nation in which same-sex couples’ marriages are dissolved and reestablished as they travel or move from state to state.”

The couples’ brief argues that the Supreme Court “should not permit any state to deprive another generation of lesbian and gay persons of the opportunity to participate fully in marriage.”

The Court will have an opportunity to bring an end to the serious harms that destabilize the lives of same-sex couples in the small minority of states that continue to deny them the freedom to marry when it hears oral argument in the case, as well as cases from Kentucky, Michigan, and Ohio, later this spring. The Court is expected to issue its decision by the end of June.

The Tennessee plaintiff couples are Dr. Valeria Tanco and Dr. Sophy Jesty; Army Reserve Sergeant First Class Ijpe DeKoe and Thom Kostura; and Matthew Mansell and Johno Espejo. Each couple legally married in another state before moving to Tennessee, which refused to respect their marriages.

They are represented by Shannon Price 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, William L. Harbison and other attorneys at the Nashville law firm of Sherrard & Roe PLC, and Douglass Hallward-Dreimeier and other attorneys at Ropes & Gray LLP.

“We’re hopeful the Court will recognize that our family is just like other families in Tennessee,” said Tanco, who has an 11-month-old daughter with Jesty. “Even though we were married when we moved to Tennessee, Tennessee doesn’t see us as a family or give us any of the legal protections that other married couples have. We are grateful to have this chance to explain to the Court why this discrimination hurts us and our daughter.”

Minter, who serves as 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.”

On Oct. 6, 2014, the U.S. Supreme Court declined to review federal appeals court decisions striking down marriage bans in Utah, Oklahoma, Virginia, Indiana, and Wisconsin, allowing marriage equality to begin in those states. Same-sex couples can now marry in 37 states and the District of Columbia.

The Sixth Circuit Court of Appeals on Nov. 6, 2014 created a conflict with the other federal appeals court decisions when it upheld laws banning marriage equality in Tennessee, Kentucky, Michigan, and Ohio. Plaintiffs in those cases asked the Supreme Court to review their cases, which the Court agreed to do.

Kentucky Petitioners Brief

Learn more about the case HERE.

The Ohio story, told by ACLU

Lambda Legal, the American Civil Liberties Union (ACLU) and Ohio-based Gerhardstein & Branch today filed their brief with the U.S. Supreme Court in Henry v. Hodges and Obergefell v. Hodges arguing that Ohio’s ban on recognizing the legal marriages of same-sex couples violates the Due Process and Equal Protection Clauses of the U.S. Constitution.

The brief argues that it is unreasonable for states to adopt a “wait and see” attitude towards the potential long-range consequences of allowing same-sex couples to marry or of recognizing those marriages: “While the State awaits…. [m]ore children in Ohio will be denied protections for their families, more beloved spouses will die denied the final solace and dignity of recognition of their marriages, and more families will suffer countless daily harms from relegation to second tier status…they should not be required to wait any longer.”

“Babies won’t wait to be born and illness and death aren’t choices,” said Susan Sommer, Director of Constitutional Litigation at Lambda Legal. “As long as marriage bans exist anywhere in this country, they will reach into the lives of families headed by same-sex couples and wreak havoc no matter where they live. This simply cannot continue.”

Excerpt from the brief: “Being married would mean little if the government were free to refuse all recognition to a couple’s marriage once the vows are made and the license is signed. When a couple knits their lives together through marriage, making promises of enduring support and care, they vow to be wed until death - not state lines – ‘do us part.’”

“Crossing state lines is a momentous event for married same-sex couples, because states like Ohio erase our marriages when we do, turning us into legal strangers in contexts from birth to death,” said James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender & HIV Project. “That’s cruel - when you’re married, you’re married. Over 50 courts have ruled in favor of marriage equality since DOMA was struck down in 2013. We look to the Supreme Court to side with fairness once more.”

Al Gerhardstein, counsel of record from Gerhardstein & Branch, said, “Ohio has become an island of intolerance for same-sex couples. Crossing into Ohio annuls the marriages of same-sex couples from thirty-seven states where they are permitted. This is outrageous and must stop. We argue in the brief that the 2013 Supreme Court ruling in US v. Windsor requires Ohio to recognize marriages from other states. It is exciting that the case will be heard this term. Love can’t wait.”

Henry v. Hodges, filed in February 2014, and Obergefell v. Hodges, filed in July 2013, demonstrate the importance of marriage to families through the life span, from the birth of their children through the death of a spouse and beyond. The Henry plaintiffs seek respect for their out-of-state marriages, including recognition for both spouses as parents of the couples’ children, on birth certificates and through life. The Obergefell plaintiffs are widowers fighting to be listed on the death certificates of their deceased husbands, who they married out of state. The Sixth Circuit Court of Appeals ruling upholding discriminatory marriage bans in Ohio, as well as Michigan, Kentucky and Tennessee, was the first federal circuit court ruling after the Supreme Court’s watershed 2013 Windsor decision to uphold such bans, departing from decisions from the Fourth, Seventh, Ninth and Tenth Circuits. The U.S. Supreme Court granted review of the Sixth Circuit ruling in January. Oral argument will likely be at the end of April 2015.
Read more about Henry v. Hodges on Lambda Legal’s case page HERE.

Tennessee Petitioners Brief

The Kentucky story, told by ACLU

The American Civil Liberties Union, Stanford Law School Supreme Court Litigation Clinic and Kentucky-based firms Clay Daniel Walton & Adams and the Fauver Law Office today filed their brief with the U.S. Supreme Court in two Kentucky cases that challenge the state’s laws barring same-sex couples from marrying and barring the recognition of same-sex couples’ marriages from out of state.

The groups represent couples in Bourke v. Beshear and Love v. Beshear who seek the freedom to marry in Kentucky and recognition of marriages legally performed outside of Kentucky. These cases challenge Kentucky’s marriage bans on the grounds that they violate the due process and equal protection provisions of the U.S. Constitution.

“Lives are wrecked when states like Kentucky exclude lesbians and gay men from the status and protections that come with marriage or nullify one partner’s status as a parent or spouse,” said James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project. “Over 50 courts have ruled in favor of marriage equality since DOMA was struck down in 2013. We look to the Supreme Court to side with fairness, equality and love once more.”

The briefs filed today argue that the Commonwealth’s marriage bans violate the due process and equality protections of the Fourteenth Amendment.

“Petitioners make no extreme demands. Instead, they ask merely to be treated like everyone else – that is, free to enter into society’s most revered form of mutual association and support, and worthy of the stature and crucial protections that marriage affords,” states the attorneys’ brief.

“We are optimistic that the Court will finally recognize equal marriage rights for our clients and other loving, committed couples all over the country,” said Dan Canon of Clay Daniel Walton & Adams.

On January 16, 2015, the U.S. Supreme Court granted review of a federal appeals court ruling that upheld bans on the freedom to marry and recognition of marriages of same-sex couples legally performed in other jurisdictions in Kentucky, Michigan, Ohio and Tennessee. Its review sets the stage for final resolution of the debate about marriage equality for same-sex couples nationwide.

More information about the case is available HERE.

Kentucky Petitioners Brief

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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.