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This week in Marriage Equality, the major event was that SCOTUS issued a stay of the Fourth Circuit ruling that Virginia's marriage ban is unconstitutional. Some had hoped that the justices would deny the motion for a stay because this was an appellate court ruling following a long string of favorable marriage equality rulings in numerous cases around the nation. They issued the stay nevertheless (as most experts actually expected).

In two other cases in two different states, federal judges ruled that the marriage ban(s) in those states were unconstitutional. Judge Jones ruled that Indiana's ban on out of state marriages of same sex couples is unconstitutional. He had ruled this way in four other Indiana cases, so it came as no surprise that he ruled the same way in this last of the five Indiana marriage equality cases. The Seventh Circuit will hear oral arguments in marriage equality cases out of Indiana and Wisconsin next week. And, in Florida, Judge Hinkle ruled Florida's ban(s) on marriages of same-sex couples unconstitutional. Although four other state judges had rules the same way, this was the first federal judge to rule on Florida's marriage ban(s). Judge Hinkle has issued a stay pending resolution of the cases before the SCOTUS, and an appeal to the eleventh circuit is expected. If so, that means that marriage equality cases have reached the appellate level in the fourth, fifth, sixth, seventh, ninth, tenth, and eleventh circuits. You can read more about the Florida ruling at Steveningen's excellent diary here.

The Ninth Circuit denied Idaho's request to (initially) hear its marriage equality case en banc.  That case will be heard before a three judge panel on September 8 in San Francisco along with marriage equality cases out of Hawaii and Nevada. In addition, the panel directed the defendant intervenors in the Nevada case to be prepared to answer questions regarding Article III standing in that case.

The Tenth Circuit has issued a stay in the marriage equality case out of Colorado. The district court had originally issued a temporary stay, and the tenth circuit has extended it (pending appeal).

Professor Garrett Epps penned a very interesting article in The Atlantic. It is entitled "The Twilight Of Antonin Scalia." You can read the entire column here. Here are some of my favorite paragraphs:
Since Scalia’s appointment in 1986, he has succeeded brilliantly in seizing the spotlight, establishing himself as a conservative hero. He told one questioner to “get over it!” when asked about Bush v. Gore, and responded to pro-choice protesters with an indecent Sicilian hand gesture. Confronted politely by a gay student, he snapped, “If we cannot have moral feelings against homosexuality, can we have it against murder?”

But Scalia may have outdone himself in his 2013 dissent in the case of United States v. Windsor. For years, he has been unrelenting in opposing constitutional protections for gays and lesbians. In his 2003 dissent in Lawrence v. Texas, Scalia warned darkly that the Court majority “has largely signed on to the so-called homosexual agenda” even though “many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their homes.”

In Windsor, the Court’s majority struck down Section 3 of the Defense of Marriage Act, which forbade federal recognition of same-sex marriages that were legal under state law. In an opinion by Justice Anthony Kennedy, the majority concluded that its “purpose and effect” were “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

The opinion was the triumph of the “homosexual agenda” Scalia had denounced. The majority opinion, Scalia wrote in a slashing dissent, meant the end of state laws restricting marriage to opposite-sex couples.

With stunning swiftness, federal district judges have heard and decided challenges to state same-sex marriage bans, and by May 2014, a dozen judges had struck them down—first in Utah; then in rapid succession, Ohio, Illinois, Virginia, Kentucky, and even Texas. Judges young and old, male and female, gay and straight, Republican and Democrat, read Windsor and saw in it a logic that doomed state efforts to confine marriage to its “traditional” function as a union of man and woman. And some of what they read was not in the majority opinion but in Scalia’s dissent. In fact, about half of the opinions explicitly cited Scalia’s words.

Scalia’s dissent strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.

Scalia has had nearly 30 years to alter the law, and in many ways, he has succeeded. Yet the pique of confronting error, the pleasure of forecasting doom, has led him over and over into rhetorical excess, until at last his Windsor dissent helped cement one of conservatism’s most stinging defeats.

Originally posted to Kossacks for Marriage Equality on Fri Aug 22, 2014 at 02:06 PM PDT.

Also republished by LGBT Rights are Human Rights and LGBT Kos Community.

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