Why gay marriage opponents have lost

The Washington Post’s conservative blogger, Jennifer Rubin, has an interesting theory as to why opponents of gay marriage have lost the debate: They’re arguing religion.

[G]ay marriage opponents have lost the argument with the public and the courts because what was once a matter of defending social consensus has evolved into a plea for enforcement of one set of religious norms in a diverse society. Without evidence of harm to others, there is no constitutionally acceptable reason to preserve the distinction.

Now, to some degree, the argument also boils down to “majority rule.”

The majority didn’t like gay marriage, so it was easy to argue against. When the public finds something icky, you don’t need a terribly good argument to beat it back.

But now that a majority of the public supports the right of gays to marry, the vaunted Republican hate groups, like the Family Research Council, are forced to come up with actual arguments that can pass legal, political and social muster, and they can’t.

All they have left is their religion, and their religion says gays are icky. Yet some religions don’t say that. And regardless of there being a disagreement among religions on the matter, courts aren’t really big on making religion into law (unless it’s religion we all agree on, then get a bit flaky at times). But we all don’t agree on this one, and a majority of us no longer agree with religion on it either.

So yet again, changing social mores are leading to changing legal and political mores.

In the end, prejudice loses because the over-judgemental emperor has no clothes. And while no one cared about that fact when the majority thought gays were abnormal, now that society has finally come around, gay marriage opponents simply look small-minded, backwards and mean.

At the beginning they had no real arguments, in part because they didn’t need them. And now, they don’t exist.

And that’s why they lost.

Virginia House of Delegates Approves Resolution Hiring Lawyers to Defend State's Gay Marriage Ban

Republicans in the Virginia House of Delegates passed a resolution Thursday that would authorize the chamber to hire legal counsel to defend the sate's gay marriage ban. 

In January, Virginia Attorney General Mark Herring announced he would not be defending the state's discriminatory ban in court. 

GayRVA reports:

HR 566 started as a move to allow the branch to hire a lawyer to “represent the House of Delegates to halt any attempt by the Governor to expand the Medicaid program without the explicit approval of the General Assembly.”

But in language added in a reprinting of the bill today, a clause was added which would allow the republican dominated house to hire private council to defend the state’s ban on same-sex marriage.

Specifically, it would allow the Speaker of the House, William J. Howell R-53 to hire counsel to represent the legislative body in state courts and gain the power to remove the AG for his “improper role in challenging Virginia’s marriage laws.”

The employed counsel would then be able to “represent the position of the Commonwealth in pending litigation involving the challenge to the constitutionality of Virginia’s marriage laws”

Responded Herring's Director of Communication Michael Kelly:

“Every court that has reviewed Virginia’s marriage ban has agreed with Attorney General Herring’s analysis and the author of Virginia’s modern constitution has said the Attorney General acted within his authority and duty. This is just an anti-equality measure wrapped up in the guise of the law."

Seattle Court Orders HIV+ Man to 'Cease and Desist'

Health officials secured a court order telling a man who has infected at least eight people with HIV to stop spreading the virus that causes AIDS.

The King County Superior Court order issued Sept. 4 orders the man to follow a health department cease and desist order and to show up for counseling and treatment appointments, The Seattle Times reported Thursday.

The name of the man was not released to protect his privacy.

He was diagnosed with HIV in 2008 and has spread the disease through unprotected sex, Public Health Seattle & King County said.

If he fails to follow the order he could be jailed for contempt of court.

"We're not trying to criminalize sexual behavior here," said Dr. Matthew Golden, director of the department's HIV/STD control program. "We are trying to protect the public's health. And we're trying to make sure that everyone gets the care they need, including the person involved in this."

The man has been told to disclose his status to sex partners and advised on how to practice safe sex, according to court papers.

Despite the counseling, eight people diagnosed with HIV from 2010 through June named him as a sex partner.

Health officials said the man ignored the department's cease-and-desist order and failed to show up for medical appointments. The agency filed for court enforcement of its order, saying his conduct continued to endanger public health.

The public-health agency has sought legal enforcement of its cease and desist orders only once before, in 1993, in the case of a sex worker who eventually left the jurisdiction.

Corporations To SCOTUS: Uneven Marriage Laws Are Burdening Our Business

Thirty major corporations have filed an amicus brief asking the Supreme Court to hear AFER's challenge of Virginia's same-sex marriage ban. On the list: Amazon, CBS, Deutsche Bank, eBay, Intel, General Electric, Levi Strauss, Nike, Oracle, Pfizer, Staples, Target, and Viacom. In general, the brief argues that the nation's uneven patchwork of marriage laws places an undue burden on corporations. An excerpt:

Amici include technology, materials, financial services, pharmaceutical, apparel, and entertainment companies; hoteliers and restaurateurs, service providers, consultants, and designers. Amici all share a desire to attract and retain a talented workforce. We are located or operate in states across the country, some of which recognize marriages of those of our employees whose spouses are of the same sex, and others that prohibit marriages between same-sex couples and refuse to recognize existing same-sex marriages. This dual and continuously shifting regime uniquely burdens amici. This legal uncertainty exposes us, as employers, to unnecessary cost, risk, and administrative complexity. In addition, this irresolution hampers our efforts to recruit and retain the most talented workforce possible, placing us at a competitive disadvantage. Our success depends upon the welfare and morale of all employees, without distinction. The burden imposed by inconsistent state laws of having to administer complicated schemes to account for differential treatment of similarly situated employees creates unnecessary confusion, tension, and ultimately, diminished employee morale.

List of the companies:

Is There Any Rational Case for Banning Gay Marriage?

Mario Anzuoni/Reuters

Competing with William Faulkner, Flannery O’Connor once wrote, is an inevitably losing proposition: “Nobody wants his mule and wagon stalled on the same track the Dixie Limited is roaring down.”

Federal District Judge Martin Feldman may feel like that luckless muleskinner today. His decision affirming a state ban on same-sex marriage appeared Wednesday. On Thursday, the Dixie Limited, in the person of Judge Richard Posner of the Seventh Circuit Court of Appeals, ran over him going the other way.

In an opinion for a unanimous three-judge panel, Posner upheld a district-court ruling that struck down same-sex marriage bans in Indiana and Wisconsin. The opinion is a Posnerian tour de force: clear, clever, thorough, witty, and—well—odd. It replies to most of the arguments Feldman accepted, including the most important one—that the courts should defer to the political process in matters of social policy.

At this point, we know all the arguments against marriage equality: Procreation. Tradition. Morality. Caution about social change. Democratic process. Feldman’s opinion had a kind of listless, get-off-my-lawn tone. You kids and your same-sex marriage, can just count me out, he seems to be saying. Procreation, slippery slope, democratic process, can I go now?

Posner’s tone is not fatigue but Five-Hour Energy. He does not rebut arguments against same-sex marriage, but rather (to paraphrase an old Southern threat) beats them to a pulp, puts the pulp into a sack, and then beats on the sack.

Same-sex marriage bans, he writes, violate the 14th Amendment’s prohibition on “deny[ing] ... the equal protection of the laws.” He chides the state defendants for ignoring the long history of discrimination against LGBT people:

Hatred, Denial, And The 'Gay But'

Something remarkable took place this week. Richard Posner, (left) a conservative federal appeals court judge, a man appointed by Ronald Reagan, (genuflect here) who looks and sounds like he came from central casting in response to a request for a cantankerous jurist, asked the attorney defending Wisconsin's same-sex marriage ban if hatred of gay people isn't the real genesis of the law. Even better, he didn't ask it like a man looking for an answer. He asked it like a man making an accusation.

It isn't everyday you get to hear a federal judge demand a gay rights adversary recognize for the record what the gay community has always known. Irrational, unreasonable hatred of gay citizens has allowed them to be assaulted, arrested, disrespected, deprived of their human and civil rights, and treated like second class citizens. That's the destructive energy that fuels the states' marriage equality prohibitions. If that isn't hate, what is?

Judge Posner: What concrete factual arguments do you have against homosexual marriage?

Mr. Samuelson: Well, we have, uh, the Burkean argument, that it’s reasonable and rational to proceed slowly.

Judge Posner: That’s the tradition argument. It’s feeble! Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference? There was a tradition of not allowing black and whites, and, actually, other interracial couples from marrying. It was a tradition. It got swept aside. Why is this tradition better?

Mr. Samuelson: The tradition is based on experience. And it’s the tradition of western culture.

Judge Posner: What experience! It’s based on hate, isn’t it?

Mr. Samuelson: No, not at all, your honor.

"No, not at all your honor"? I don't hate gay people. I'm just standing here before you trying to keep them from the pursuit of happiness that is every American's birthright. 

There seems to be a new strategy afoot by the anti-gay forces, who for years have been successful at depriving gay Americans of equal treatment by vilifying them. For the last half century, since the time when Harvey Milk urged gays to "come out, come out wherever you are," every passing year makes that character attack less productive. It was one thing when gays could be cast as deviants and criminals and mentally ill, but people don't like their sons and brothers and friends called names and disrespected. As a result, the traditional "God hates fags" rhetoric has been softening. Gay rights opponents are transitioning to a new, more devious posture. The words may sound kinder, but the message is not. 

The same politicians, pundits and priests who once stood proudly and proclaimed their opposition to gays with words like "abomination", now preface their anti-gay remarks with a phrase like: "I don't hate gay people, but..." or "I have nothing against gay people but..." I named this tactic the "gay but" a few years ago after Rick Santorum was ballsy enough to speak those very words on camera.

What you need to remember about the "gay but" phenomenon is that what comes after "I don't hate gays but..." is usually an example of the hatred the speaker has just denied.

The Penguin Dictionary of Psychology defines hate as a:

"deep, enduring, intense emotion expressing animosity, anger, and hostility towards a person, group, or object."[2] Because hatred is believed to be long-lasting, many psychologists consider it to be more of an attitude or disposition than a temporary emotional state.

So do we know anyone who fits that "deep enduring hostility" description? How about the two anti-gay presidential contenders pictured at the top of this page: Rick Santorum, who compared gay sex with bestiality and Mike Huckabee, who blamed gays for the Sandy Hook massacre? Not so long ago, both of those gentlemen were proud to be leading the homophobe circus parade.

Surprise! Rick Santorum still thinks gay marriage must be fought like the terrorism that gave us 9/11, but Rick Santorum 2.0 does not hate gays. Here's what he said:

"I have nothing, absolutely nothing against anyone who’s homosexual. If that’s their orientation, then I accept that..."

And do you know who else doesn't hate gays? Mike Huckabee. Yes, he still doesn't think gay people should be able to marry or adopt, but here's what the new and improved Mike Huckabee said at the Iowa Faith and Freedom convention:

“I’m not against anybody. I’m really not. I’m not a hater. I’m not homophobic. I honestly don’t care what people do personally in their individual lives..."

These new "I have nothing against gays" demurrals seems to be catching on among conservatives. Of course, the truth is the hatred is still there, and it's not hard to find. It's usually on display on the other side of that "gay but".

I don't hate gays but... I don't think they should be allowed to marry.
I don't hate gays but... I don't think they should be able to adopt.
I don't hate gays but... I don't think school children should know they exist.
I don't hate gays but... I don't think they should receive healthcare benefits for their partners.
I don't hate gays but... I think an employer should be able to fire him if he finds out.
I don't hate gays but... I don't think religious people should have to serve them.
I don't hate gays but...I think they should remain celibate.
I don't hate gays but... I think they should stay in the closet.

Can you imagine what these guys would be like if they did hate gays? (That was sarcasm, don't leave me angry comments.)

Every one of those "I don't hate gays" statements is an oxymoron. A contradiction in terms: I don't hate gays but... here's how I hate gays.

As you become aware of the new talking points by the same old talking heads, you will find they will often the follow the "gay but" by a religious excuse.

"I don't have anything against gays but the bible says..."

This is yet another oxymoron. If you feel you must not bake a wedding cake for a lesbian couple because of the bible, then, yes, you do have something against gays: your religious denomination of choice. That excuse is like being tried for a lynching and claiming it wasn't your fault because you're a member of the KKK and that's what they instructed you to do. So drop the "I have nothing against gays." You do. You can choose to follow one of the many churches out there worshiping a god that doesn't ask believers to hate anyone. Yes, I said hate. Many excuses have been proffered over the centuries, but denying someone his human rights is never an act born from respect.

Judge Posner asked an audacious question about the genesis of the same-sex marriage ban:

"It’s based on hate, isn’t it?"

"No, not at all" answered Wisconsin Assistant Attorney General Timothy Samuelson - and then came the "gay but". Mr. Samuelson told the Judge his very good reason for keeping loving couples from marrying is because of "experience".

Experience? What does that even mean? Trust us, we've come across their kind before and we learned from that experience society will collapse if we allow them to legally make a life with the person they love?

Gay Widower Shares Heartbreaking Story Of Why He's Suing Alabama

No story breaks the heart quite like one about love.

In a conversation with HuffPost Live's Marc Lamont Hill about whether Alabama is falling behind in the nationwide fight for lesbian, gay, bisexual and transgender equality, the story took a more personal turn.

Paul Hard, an associate professor and department counselor at Auburn University,opened up about how he was denied access to his husband's hospital room after he was killed in a car accident. Hard said he "had to stand and plead to be allowed into his room" but was forbidden because of Alabama's ban on gay marriage.

"The nurse that I saw in the emergency room that said, 'I’m sorry, but I can't let you see David,' apologetically and very tearfully later on said, ‘I’m sorry. I would have let you in if I could,'" Hard said. "This law makes unwilling accomplices of decent people."

The "final straw," however, was when Hard found out that his husband's death certificate read "never married." Even though the couple had legally wed in Massachusetts, Alabama did not recognize the marriage or grant Hard any legal standing over his partner's will. Hard is now suing Alabama to challenge the state's ban on same-sex marriage.

He added that the more personal the fight of LGBT rights becomes, the more likely change is to happen.

"Very often folks here in Alabama say, 'You know, I voted for that law, but I would never have put you through what you’ve gone through,' Hard said. "It's one thing ... as a matter of my personal principal to stand up for traditional marriage, however that's understood to be. But when [opponents] start seeing the human toll that takes on people and how that affects other human beings, I’ve seen people back up from that."

Subway Owner Invents Evil Scheme to Screw Workers Out of Pay!

You know what hard-working minimum wage employees need? No, it’s not unions to protect them from shady business practices and protect their rights–that’d be silly. They need to be paid less money–and a Subway franchise in Washington D.C. is leading the charge.

Erwin Moya, an employee of the Subway franchise, filed a lawsuit in federal court on Wednesday alleging that his employer systematically shortchanged him for two years ending in June. Moya’s employer created fictional employees in order to keep Moya below 40 hours a week officially while still working him 70 hours on average.

“To hide Plaintiff’s very high number of hours worked per week, Defendant regularly paid Plaintiff about half of his wages under his name and about half under a fictional employee name, typically, Ever Ventura,” the complaint states.

“Sometimes during Plaintiff’s employ, Defendant took it one step further to attempt to hide [minimum wage and overtime] violations by paying Plaintiff under the payroll of another Subway owned by Defendant or its agents or owners,” the complaint continues.

On top of that, Moya was paid $7.25 per hour–less than the minimum wage that was in effect in D.C. while he was employed. As if that wasn’t enough, he was also shorted 45 hours’ worth of pay shortly before his employment ended.

The lawsuit can be found here.

Ugandan Court Tosses Out Country's Anti-Homosexuality Act

A Ugandan court has invalidated the country's Anti-Homosexuality Bill, declaring it illegal because it was passed by parliament without quorum.

The AP reports:

The panel of five judges on the East African country's Constitutional Court said the speaker of parliament acted illegally when she allowed a vote on the measure despite at least three objections — including from the country's prime minister — over a lack of a quorum when the bill was passed on Dec. 20.

"The speaker was obliged to ensure that there was a quorum," the court said in its ruling. "We come to the conclusion that she acted illegally."
The ruling was made before a courtroom packed with Ugandans opposing or supporting the measure. Activists erupted in loud cheers after the court ruled the law is now "null and void."

With the procedural nature of the ruling, activists and petitioners were not able to argue that the anti-gay measure discriminated against LGBT Ugandans in violation of the country's constitution.

The AP adds:

Nicholas Opiyo, a Ugandan lawyer who was among the petitioners, welcomed the ruling but said there is still a missed opportunity to debate the substance of the law. "The ideal situation would have been to deal with the other issues of the law, to sort out this thing once and for all," Opiyo said.
A colonial-era law that criminalizes sex acts "against the order of nature," still remains in effect in Uganda, allowing for the continued arrests of alleged homosexual offenders, Opiyo said.

Opiyo also said he expects lawmakers will likely try to reintroduce a new anti-gay measure sometime in the future.

Christian Ex-gay Org Loses Court Battle Over London Bus Ads

Core Issues Trust — a Christianist group that sought to promote ex-gay therapy via London bus advertisements — have lost their appeal of a lower court ruling the absolved London Mayor Boris Johnson of any impropriety in banning their ads.

Making good on his 2008 pledge to make London the most “gay-friendly city in the world,” in 2012 Johnson banned the bus advertisements.

The ads read, “Not Gay! Ex-Gay, Post-Gay and Proud. Get over it!” and were a parody of similar ads placed by the UK LGBT group Stonewall that read, “Some people are gay. Get over it!”

In retaliation, the group sued even going so far to accuse Johnson for banning the adverts to court the gay vote during the 2012 election. In 2013, a judge ruled narrowly in favor of Johnson’s ban.

NC Attorney General Says He'll No Longer Defend State's Gay Marriage Ban Following 4th Circuit Virginia Ruling

North Carolina's Attorney General Roy Cooper said today that he would no longer defend the state's gay marriage ban following the Virginia ruling from the Fourth Circuit Court of Appeals, the News Observer reports:

Cooper said that in light of the decision it would be “futile” to continue arguing the North Carolina’s case against same-sex marriage.

“I have concluded that the state of North Carolina will not oppose the cases moving forward,” Cooper said before a bank of television cameras at his office in downtown Raleigh. “… Our office believes the judges in North Carolina are bound by this 4th Circuit decision.”

Four cases are currently challenging North Carolina's ban on gay marriage. Cooper's decision will not immediately affect NC, the paper says, because no judge has ruled there, but it does pave the way for further equality rulings.

Added Cooper: “Our attorneys have vigorously argued this case every step of the way … There are really no arguments left to be made.”

Chris Kluwe to Sue Minnesota Vikings for Withholding Results of Investigation into Homophobia Claims

Back in January, the Minnesota Vikings announced it had hired attorneys to lead an investigation into claims by former punter Chris Kluwe, who said in an article published on Deadspin that he was released from the team because of his gay activism.

Kluwe also claimed that special teams coordinator Mike Priefer unleashed a homophobic rant in his presence, saying, "We should round up all the gays, send them to an island, and then nuke it until it glows."

At the time, Kluwe said that he would sue the Vikings if the investigation turned up clean. But today Kluwe and his attorneys announced they would be suing the team for refusing to release the results of the recently-completed investigation, Pioneer Press reports:

"After the Vikings were given the investigative materials from Magnuson and Madel, in order to further maintain objectivity and integrity, the team engaged a nationally-prominent law firm -- Littler Mendelson P.C. -- to evaluate employment law matters and provide findings and recommendations to the Vikings," according to the team's Tuesday statement. "Those recommendations are to be provided to the team this week." 

Kluwe and Halunen held a press conference Tuesday morning to announce the lawsuit and denounce the team for reneging on what they said was a promise to make the investigation public. 

Halunen said he was contacted by Vikings' representatives on Monday and was told they do not intend to make the report available either to Kluwe or to the public. 

"At this point we have no choice but to file a lawsuit against the Vikings," Halunen said.

Kluwe told reporters that if the investigation results are released he will reconsider the lawsuit.

US: Judge rules against ‘gay cure’ therapy group, could force them to pay damages

A judge in New Jersey has ruled against a group which practiced ‘gay cure’ conversion therapy, ruling that they could be liable to pay damages to people affected.

Jews Offering New Alternatives for Healing (JONAH), which claim to be able to cure homosexuality, are the subject of multiple lawsuits over claims their therapy is harmful.

According to LGBTQ Nation, on Friday Superior Court Judge Peter Bariso ruled that JONAH could be liable to pay three times the therapy costs of four men, who say they were left with psychological damage after JONAH’s program.

According to court documents, as part of the therapy men were at points required to strip naked in front of each other, to beat an effigy of their mother, and to recite words said by people who had in the past abused them.

The Southern Poverty Law Center filed the lawsuit against the group, founder Arthur Goldberg and counselor Alan Downing in 2012, alleging they violated the Consumer Fraud Act.

Legal director David Dinielli said: “These self-proclaimed experts inflicted grave damage upon our clients, who believed JONAH’s claims that it could ‘cure’ them of being gay.”

“These young men were left with guilt, shame and frustration.

“No amount of money can fix the damage JONAH caused, but recognizing that JONAH can be held accountable for the cost of repairing that damage is an important step.”

The trial against JONAH is expected to take place next year.

Judge Tells Florida Anti-Gay Groups Same-Sex Marriage Doesn’t Affect Them

A state court judge has just denied a request by three anti-gay organizations who asked to be given standing to defend Florida’s ban on same-sex marriage. Circuit Court Judge Sarah Zabel ruled that Florida Family Action, Inc. (FFAI), Florida Democratic League Inc. (FDL), and People United to Lead the Struggle for Equality, Inc. (PULSE) did not have standing and would not be allied to be parties to the case because they “will not be directly and immediately affected if others enter into a same-sex marriage, or are prevented from entering into a same-sex marriage.” The judge added that the “validity of their own marriages will not be affected,” regardless of the trial’s outcome.

Judge Zabel appeared to have dealt with the groups firmly, noting that the three groups “also assert that they have a direct and immediate interest in this case because granting the requested relief would infringe upon their right to free speech, free exercise of religion, and ‘other rights attendant to operating businesses and non-profit organizations in accordance with the definition of marriage as currently memorialized in the Florida state constitution.’”

Judge Zabel ruled that the case, Pareto v. Ruvin, “will not and could not have any such impact on such rights. Allowing or disallowing the plaintiffs to marry imply would not affect anyone’s right to state their opinions about their marriages or same-sex marriages in general, and would not interfere with anyone’s religion business, or non-profit organization.”

Nadine Smith, CEO of Equality Florida Institute, one of the plaintiffs in the lawsuit, stated that “Judge Zabel reached the proper conclusion in denying extremists seeking a platform for their anti-gay rhetoric the right to intervene in this case,” and added that the “lawsuit is about fundamental, constitutionally protected rights that are violated by a measure that does real harm to our families. We look forward to the day when Florida joins the 19 other states and the District of Columbia, where judges have come to the conclusion that such a ban is indefensible.”

Judge Zabel will hear the case on July 2.

Rick Santorum Supported The Judge Who Just Struck Down Pennsylvania's Gay Marriage Ban

As Pennsylvania's gay marriage ban fell in court on Tuesday, the judge behind the ruling has a history of support from a notable Republican name.

U.S. District Court Judge John E. Jones III has served the Middle District Of Pennsylvania since 2002. He was unanimously confirmed by the U.S. Senate in July of that year, and one of his supporters leading up to that decision was then-Sen. Rick Santorum (R-Pa.).

Via Slate's David Weigel, who unearthed Santorum's March 2002 comments after Jones' nomination:

“Attorneys Jones and Conner are highly qualified to assume the important role of Judge and the duty of protecting the Constitution and ensuring the effective operation of our judicial system,” Santorum said. “Since the onset of the war against terrorism, our federal judiciary has taken on an even higher level of importance, and it is imperative that we provide our courts with the resources necessary to enforce the rule of law. These judgeships are vital to our national security goals, and I urge my colleagues to work with the President to fill these vacancies in a timely manner.”

In a November 2013 interview with "The Colbert Report," Santorum was asked whether traditional marriage advocates have lost the issue against legalizing benefits for same-sex couples.

"I think the real problem here is marriage has slipped away from us," Santorum said. "Marriage has devolved into just a romantic relationship between two people. And that's not what marriage is."

GAY MARRIAGE OPPONENTS CONCERNED UTAH APPEAL MIGHT BE DISMISSED OVER STANDING

Questions have being raised about standing in the 10th Circuit appeal of Kitchen v. Herbert, the ruling striking down Utah's ban on gay marriage, and some believe the court could dismiss the case because the proper defendants were not named in the suit. 

The plaintiffs named the governor, the attorney general and the Salt Lake County Clerk in the case.

The Salt Lake Tribune reports:

On Tuesday, Utah’s lead counsel Gene C. Schaerr (pictured)  drew attention to a question posed to both sides by a three-judge panel at the 10th Circuit Court of Appeals last week regarding whether the lawsuit targeted the appropriate state and county officials...

...If the court finds that they’re not, the appellate judges may decline to rule in the case, leaving Judge Robert J. Shelby’s ruling to stand as law in Utah.

Questions from the court during arguments last week have led some to believe they are considering this, the paper adds:

During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate.

Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

"You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

Schaerr insists that the officials named have standing to defend the case:

The explanation several Utah county clerks gave was they were waiting on direction from the attorney general or governor’s office as to how they should handle the situation.

This, Schaerr states in his letter to the court, is further proof that with or without the Salt Lake County clerk, the governor and the attorney general are within their jurisdiction to appeal the case to the 10th Circuit and, perhaps, beyond.

"Utah marriage licenses are issued by county clerks [...] not by court clerks," Schaerr wrote. "Plaintiffs’ suit thus satisfied the demands of Article III standing."

Court sides with MoveOn over Jindal

Gov. Bobby Jindal’s (R) administration in Louisiana picked an unusual fight recently, taking MoveOn.org to federal court, accusing the progressive activist group of violating trademark rules when it put up billboards criticizing Jindal’s opposition to Medicaid expansion.

 

So far, that hasn’t turned out well for the Republican governor: a federal judge ruled yesterday afternoon that the Baton Rouge-area billboard is legally permissible.

In his original court filings, [Lt. Gov. Jay Dardenne] said the national liberal organization improperly mimicked his office’s trade and tourism branding in its satirical billboard posted just outside of the state capital. But U.S. District Court Judge Shelly Dick disagreed Monday, siding with MoveOn.org in stating the group’s free speech rights trumped the state’s case.

 

“The State has failed to demonstrate a compelling reason to curtail MoveOn.org’s political speech in favor of protecting of the State’s service mark,” Dick said in her ruling. She added “irreparable injury” would not be caused to Louisiana’s tourism campaign if the ad remained in place.

For those who haven’t been following this dispute, Louisiana is one of several red states that refuse to adopt Medicaid expansion, despite the fact that he policy would bring coverage to nearly a quarter of a million low-income residents. It led MoveOn.org to put up a billboard that reads, “LOU!SIANA Pick your passion! But hope you don’t love your health. Gov. Jindal’s denying Medicaid to 242,000 people.”

Ninth Circuit Court To Liberty Counsel: Didn't We JUST Tell You To Fuck Off?

Back in August a three-judge panel of the Ninth Circuit Court of Appeals rejected the Liberty Counsel's demand that the court overturn their loss before a federal district court in their incessant campaign to repeal California's ban on the "ex-gay" torture of LGBT youth. Unswayed by those two losses, the following month the Liberty Counsel filed an en banc demand that the full 29-judge Ninth Circuit reconsider the earlier panel's ruling. This week the Ninth Circuit Court told the Liberty Counsel, "Didn't we just tell you to fuck off?

Via press release from the National Center for Lesbian Rights:

Today, the full U.S. Court of Appeals for the Ninth Circuit let stand an earlier decision by a three-judge panel of the same court upholding Senate Bill 1172, a California statute enacted in 2012 that protects minors from dangerous and ineffective mental health treatments that falsely claim to be able to change a young person’s sexual orientation. The California Legislature enacted the law to prevent state-licensed mental health professionals from attempting to change the sexual orientation or gender expression of minor patients. The Legislature based the law on the unanimous consensus of the nation’s leading medical and mental health associations that such purported treatments have no scientific basis and put children at risk of serious harms, including depression and suicide. In the lawsuit that the Ninth Circuit ruled in today, the statute was challenged by therapists who wish to engage in these practices on minor patients and who argued that the law violated their right to freedom of speech. In August 2013, a panel of the Ninth Circuit held that California’s law was a permissible regulation of medical treatment to protect public health and safety and did not violate the free speech rights of therapists. The Ninth Circuit’s ruling today allows that decision to stand, thereby ensuring that California’s law will remain in effect.

California's law was defended by state Attorney General Kamala Harris and the NCLR, who represented Equality California.

President Obama Nominates African-American Lesbian to Federal Bench

On Thursday, President Obama announced several nominees to federal judge positions, including Staci Michelle Yandle. Yandle, who runs a private practice out of Illinois, would become only the second ever African-American, lesbian federal judge if she is confirmed, and her nomination is an indication of the concerted effort President Obama has made to diversify the American judicial system. Yandle will likely fill the space being vacated in the District Court of the southern district of Illinois by Judge John Phil Gilbert when he takes senior status in mid-March. 

HuffPost reports:

“I am pleased to nominate these distinguished individuals to serve on the United States District Court bench," Obama said of Yandle and a handful of other nominees he put forward Thursday. "I am confident they will serve the American people with integrity and a steadfast commitment to justice."

Yandle's nomination puts her on track to become the second openly lesbian African-American federal judge in the country. Judge Deborah Batts, nominated by President Bill Clinton, was sworn in as a federal judge in Manhattan in June 1994. Batts took senior status in April 2012.

Yandle said in a July 2012 interview that the judicial world needs to be more accepting of the LGBT community.

"When I first started practicing, for a while I did not feel comfortable acknowledging my sexual orientation because I didn’t want it to cost me my job," she said. "I wanted to be judged on my merit and my merit alone. Many members of the LGBT community still have that fear. We are a traditional profession that is conservative in many ways."

Congratulations to Yandle on the nomination, and we will cross our fingers for her confirmation!

Federal District Court Declares A Religious Income Tax Exemption Unconstitutional

A federal district court judge has declared “unconstitutional” a portion of U.S. law that allows “a minister of the gospel” to not pay income tax on a specific portion of their compensation.

U.S. District Court Judge Barbara B. Crabb of the Western District of Wisconsin ruled that the so-called “parish exemption,” which allows religious ministers to avoid paying taxes on the value of their housing granted to them by their religious employers, “violates the establishment clause” of the U.S. Constitution and must be discontinued.

The law, 26 U.S. C. § 107(2), has been on the books since 1954.

The tax exemption was estimated to cost U.S. taxpayers $2.3 billion from 2002-2007 alone, likely more in the years since.

Heralding it as a “major federal court victory,” the Freedom From Religion Foundation, which brought the lawsuit along with their co-presidents, Annie Laurie Gaylor and Dan Barker, offered an explanation of yesterday’s ruling.

Ministers may, for instance, use the untaxed income to purchase a home, and, in a practice known as “double dipping,” may then deduct interest paid on the mortgage and property taxes.
“The Court’s decision does not evince hostility to religion — nor should it even seem controversial,” commented Richard L. Bolton, FFRF’s attorney in the case. “The Court has simply recognized the reality that a tax free housing allowance available only to ministers is a significant benefit from the government unconstitutionally provided on the basis of religion.”
Crabb wrote: “Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility. It is important to remember that the establishment clause protects the religious and nonreligious alike.”
The 1954 bill’s sponsor, Rep. Peter Mack, argued ministers should be rewarded for “carrying on such a courageous fight against this [godless and anti-religious world movement].”
“I agree with plaintiffs that §107(2) does not have a secular purpose or effect,” wrote Crabb, adding that a reasonable observer would view it “as an endorsement of religion.”
Crabb wrote that “the exemption provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise.”
All taxpayers are burdened by taxes, Crabb noted. “Defendants do not identify any reason why a requirement on ministers to pay taxes on a housing allowance is more burdensome for them than for the many millions of others who must pay taxes on income used for housing expenses.”

One study has estimated that in total, combined religious tax exemptions cost American taxpayers $71 billion each year.

The Foundation sued Jacob Lew, Secretary of the Treasury Department, and Acting Commissioner of the Internal Revenue Service, Daniel Werfel.

The ruling, which you can read in full, below, notes:

It is DECLARED that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.
Defendants [the government] are ENJOINED from enforcing § 107(2). The injunction shall take effect at the conclusion of any appeals filed by defendants or the expiration of defendants’ deadline for filing an appeal, whichever is later.

In other words, the ruling right now is on hold until the appeals process is complete.

It is not known if the government will appeal, but expect a full-throated attack from the religious right demanding the law be re-written to comply with the Constitution.