New Mexico: The New Gay Marriage Battleground As Judge Orders Issuance of Marriage Licenses

Unlike many states in America, the state of New Mexico never enacted explicit gay marriage bans through either statutes or an anti-gay amendment to the New Mexico Constitution.   As a result in the wake of the U. S. Supreme Court ruling in United States v. Windsor - which among other things correctly identified anti-gay animus as the real motivation behind DOMA - several counties in New Mexico have started issuing marriage licenses to same sex couples.  And as reported previously on this blog, the New Mexico attorney general has announced that he will not oppose the issuance of such licenses.  To further confuse the mix of legal directives, now a judge has ordered county clerks to proceed with the issuance of marriage licenses to same sex couples.  Here are highlights from BuzzFeed:

A New Mexico judge has ordered the county clerks of Bernalillo and Sante Fe counties to begin issuing marriage licenses to same-sex couples who apply and are otherwise qualified.

Because the clerk in Santa Fe County already began issuing licenses last week, as did the clerk of Dona Ana County, the addition of Bernalillo County into the mix makes a third county in the state where licenses will be issued to same-sex couples.

Issuing a peremptory writ of mandamus, Judge Alan Malott found Monday that the couples suing for a right to marry in one of the only states in the nation without either marriage equality or an explicit ban on such marriages have a “significant likelihood of success” on the merits of their lawsuit.   In reading his ruling in open court Monday, Malott said he ordered that:

New Mexico law, Malott found, “does not preclude nor prohibit issuance of a marriage license to otherwise qualified couples on the basis of sexual orientation or the gender of its members.”.

To the extent it is found to do so, “those prohibitions are unconstitutional and unenforceable under” New Mexico’s constitution, he ruled.

Bernalillo County Clerk Maggie Oliver and Santa Fe County Clerk Geraldine Salazar “shall comply with and perform” their duty to issue such licences.
Oliver and Salazar are “enjoined and restrained from refusing to issue” such licenses.

Malott is a district court judge in the Second Judicial District of New Mexico and was appointed to the bench by former Gov. Bill Richardson.

New Mexico Attorney General Gary King, meanwhile, has told that state’s Supreme Court in a third court challenge that any attempt to prohibit same-sex couples from marrying is unconstitutional.

It was not immediately clear who, if anyone, would appeal either last week’s or Monday’s court rulings. The question is relevant because neither ruling creates a final, definitive ruling about state law — a ruling that only could come from the state’s Supreme Court.

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Charlottesville, Virginia Considering Same-Sex Mariage Ordinance

Charlottesville City Hall

Charlottesville, Virginia, the home of the University of Virginia is among the most liberal cities in Virginia outside of perhaps Alexandria located just across the Potomac from Washington, D.C. Now, Charlottesville is considering an ordinance that will drive Ken Cuccinelli, the lunatic "Bishop" W. W. Jackson, and Mark Obenshain to have spittle flecked conniption fits: an ordinance extending benefits, including health care, to city employees with same-sex partners who were legally married outside Virginia.  The animus based Marshall-Newman Amendment seeks to bar any legal recognition of same sex relationships whatsoever.  Hence, such an ordinance would be tantamount to giving the knuckle dragging Neanderthals who pushed passage of the Amendment - and falsely advertised what it would mean - the middle finger.  The Daily Progress has details:

The Charlottesville City Council is considering an ordinance extending benefits, including health care, to city employees with same-sex partners who were legally married outside Virginia. In Monday’s council meeting, Councilor Dave Norris presented the legislation, which is identical to a July proposal in Richmond City Council.  

“Spouses, at such time it is permitted by state law, should be defined to include same sex partners in marriages that legally occurred in another state,” Richmond’s ordinance summary reads. “With the recent Supreme Court opinion regarding the Defense of Marriage Act … this definition of spouse is consistent with the federal definition of spouse.”

“I thought it was something that Charlottesville should do,” Norris said.

“The value in taking a symbolic stance is that Charlottesville supports equality,” Norris said.
Norris said he would like to see if there are ways to proceed with the ordinance “in the spirit of the Supreme Court ruling and fairness,” he said. “But it may end up that it would be symbolic.”

Vice mayor Kristin Szakos, who also supports the ordinance, said she thinks it can be a message of intent, even if it is not able to be acted upon.

Szakos said the city does currently provide “certain benefits to married couples,” but is not able to extend some benefits, including health care, to same-sex partners.


“If public response is any indication, the proposal will be supported overwhelmingly,” he said.  “I’ve heard only positive responses so far,” Szakos said.

Charlottesville needs to pass the ordinance and grant benefits.  Let Cuccinelli then file suit to enforce and unconstitutional Amendment.  Although Cuccinelli doesn't grasp the concept, the U. S. Constitution trumps the Virginia Constitution.

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New Mexico Atorney General Will Not Challenge Issuance of Gay Marriage Licenses

New Mexico has never enacted an anti-gay marriage constitutional amendment.  As a consequence, in view of the absence of a constitutional prohibition, the Ana County Clerk Lynn Ellins decided to start issuing marriage licenses to same-sex couples earlier today.  The bigger news, however, is that New Mexico Attorney General Gary King told reporters that he does not plan to challenge said marriage licenses, since he believes the bans on same-sex marriage to be unconstitutional.  Towleroad has details on the unfolding events in New Mexico.  Here are highlights:

After Doña Ana County Clerk Lynn Ellins decided to start issuing marriage licenses to same-sex couples earlier today, state Attorney General Gary King told reporters that he does not plan to challenge said marriage licenses, since he believes the state's current ban on same-sex marriage to be unconstitutional. In another bit of possibly good news, King also told press that he would not challenge any other county clerk should they make the same decision, although he did warn that the licenses could be ruled invalid if the state Supreme Court deems the decision unlawful.

King's decision comes after a prior legal challenge to New Mexico's ban on same-sex marriage, another one that he has chosen not to defend. According to the Associated Press, same-sex couples in Las Cruces have already started taking advantage of the decision. "I was in a coffee shop grading dissertations when my partner sent me an email saying, `you want to get married?'" said Char Ullman, 51. "I went home to brush my teeth and headed to the courthouse."



Meanwhile, the New Mexico Supreme Court has been asked to streamline and expedite all pending challenges to the state's mariage equality ban, partially thanks to Jen Roper and Angelique Neuman. Roper reportedly suffers from terminal brain cancer, and wishes to tie the knot with her partner before she passes. 

At present, New Mexico's Republican Governor Susana Martinez has yet to issue a comment on today's events.

From a legal perspective, I believe that Attorney General King is 100% on the money.  Hopefully, New Mexico wall join the list of pro-gay marriage states.  Meanwhile, we can expect the Christofscists to attack Mr. King.

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Quote of the Day: The Abuse of Domestic Spying

I continue to find the level of domestic spying on citizens in America frightening - not to mention a violation of the U.S. Constitution's provisions against unlawful search and seizure.  Yet Barack Obama and others have continued to defend the unconstitutional practice using the excuse that it is necessary to fight terrorism and national security.  The Nazi regime used the national security ruse in the 1930's and we all know what that lead to down the road.  The potential for abuse is simply too great and there are in truth no effective controls in place to prevent abuse should someone in the government decide to do so.  In a post Andrew Sullivan sums things up well after at first defending the practice.  The final straw for him was the holding and interrogation of reporter Glenn Greenwald's husband: 

When the NSA leaks burst onto the scene, I was skeptical of many of the large claims made by civil libertarians and queasily sympathetic to a program that relied on meta-data alone, as long as it was transparent, had Congressional buy-in, did not accidentally expose innocent civilians to grotesque privacy loss, and was watched by a strong FISA court.

Since then, I’ve watched the debate closely and almost all the checks I supported have been proven illusory. The spying is vastly more extensive than anyone fully comprehended before; the FISA court has been revealed as toothless and crippled; and many civilians have had their privacy accidentally violated over 3000 times. The president, in defending the indefensible, has damaged himself and his core reputation for honesty and candor. These cumulative revelations have exposed this program as, at a minimum, dangerous to core liberties and vulnerable to rank abuse. I’ve found myself moving further and further to Glenn’s position.

What has kept me from embracing it entirely has been the absence of any real proof than any deliberate abuse has taken place and arguments that it has helped prevent terror attacks. This may be too forgiving a standard. If a system is ripe for abuse, history tells us the only question is not if such abuse will occur, but when. So it is a strange and awful irony that the Coalition government in Britain has today clinched the case for Glenn.

A disclosure upfront: I have met David Miranda as part of a my friendship with Glenn Greenwald. The thought of his being detained by the British police for nine hours because his partner embarrassed the American government really sickens me at a gut level. 

My obvious question is: what could possibly lead the British security services to suspect David of such ties to terror groups? 

[A]lthough David was released, his entire digital library was confiscated – including his laptop and phone. So any journalist passing through London’s Heathrow has now been warned: do not take any documents with you. Britain is now a police state when it comes to journalists, just like Russia is.

In this respect, I can say this to David Cameron. Thank you for clearing the air on these matters of surveillance. You have now demonstrated beyond any reasonable doubt that these anti-terror provisions are capable of rank abuse. Unless some other facts emerge, there is really no difference in kind between you and Vladimir Putin. You have used police powers granted for anti-terrorism and deployed them to target and intimidate journalists deemed enemies of the state.

You have proven that these laws can be hideously abused. Which means they must be repealed.

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Slate: Ken Cuccinelli’s Sodomy Obsession

Ken Cuccinelli's obsession with sodomy continues to make Virginia a laughing stock around the country and also shows the way Kookinelli would govern if Virginians are stupid enough to allow him to be elected to the Governor's mansion by the right wing extremists that nominated him for governor in the first place.  Time and time again, Cuccinelli has demonstrated that laws and mean what he wants them to say, not what their plain language states, and that he thinks he is above the rulings of the highest courts in the land.   In his frivolous appeal the the United States Supreme Court, Cuccinelli asks the Court to utterly ignore the plain, unequivocal wording of Virginia's "crimes against nature" law which as written applies to EVERYONE, gay or straight, adult or minor, married or unmarried.  Who is guilty and who can be prosecuted is left purely to the whims of prosecutors. Policing every bedroom across Virginia is not what I'd call an example of smaller government.  But then again, a smaller government less intrusive government is not what Cuccinelli wants.  He wants a theocracy.  An article in Slate looks at Cuccinelli's insane and very dangerous arguments for making all sex outside of the so-called "missionary position" illegal.   Here are excerpts:

Ken Cuccinelli, Virginia’s attorney general, has garnered more than his share of national attention over the years, with high-profile legal crusades against global warming researchers, Obamacare, and abortion clinics. But it’s his recent war on consensual sodomy in the commonwealth that has raised the most eyebrows as the gubernatorial candidate has made the issue a centerpiece of the final months of his campaign.

His critics, including the ladies of The View and Jay Leno, have responded to Cuccinelli’s quest to reinstate Virginia’s anti-sodomy or, “Crimes Against Nature” law, with snickers and winks. The law is plainly unconstitutional—according to both a 2003 U.S. Supreme Court decision and a federal appeals court—and giggling about the attorney general’s creepy preoccupation with Virginians’ consensual oral sex makes for an easy comic target. But that focus obscures the real—even original—sin undergirding Cucinelli’s latest legal push: It’s a call for judges to read statutes to mean what they don’t say; a call for outright judicial activism, for freewheeling judicial interpretation—qualities legal thinkers on the right usually deplore.

It has long been the mantra of Republican politicians that judges—especially elitist federal judges—should never, ever legislate from the bench. Now consider Attorney General Cuccinelli’s approach to Virginia’s sodomy law. The anti-sodomy statute, 18.2-361, applies to “any person” that “carnally knows any male or female person by the anus or by or with the mouth.” Yes. It bans all oral and anal sex. And for those who partake, the legal consequence is a felony conviction, possible imprisonment, and lifelong status as a sex offender.

In March, the federal court of appeals struck down the Virginia sodomy law and threw out MacDonald’s conviction for reasons clear to anyone who’s ever watched Ally McBeal. Lawrence v. Texas, the 2003 Supreme Court decision about Texas’ anti-sodomy statute, held that states can’t regulate private consensual sexual activity amongst adults. The court of appeals’ position, that state anti-sodomy laws simply do not survive post-Lawrence, is the same position taken by attorneys general in other states, including the prior Virginia attorney general. That should end it, right?

 

But even with the tide of legal authority against him, Cuccinelli decided to appeal the case to the Supreme Court, arguing that Virginia’s anti-sodomy statute has no constitutional problem, if—as he concedes, and only if—the high court would just interpret the terrifyingly broad sodomy law to apply only to sex involving 16- and 17-year-olds.

The legal position Cuccinelli pushes creates truly bizarre results, which is normally a sign for reviewing courts that something smells funky. Asking a federal court to turn a state anti-sodomy law into an anti-statutory rape law means that if MacDonald had engaged in ordinary intercourse with a 17-year-old girl every day for a month, he would not face a felony conviction or be a sex offender. He’d just be that guy. But his decision to solicit oral sex, even his decision to just phone her and ask for it, under the imaginarily rewritten law, requires both.

Cuccinelli’s proposed revision to Virginia’s sodomy law would also mean that those older than 15 can legally consent to sex, yet, have no right of sexual privacy in actually having sex. Or, to put it differently, Virginia could charge any 16- and 17-year-old with felony sodomy simply because they happened to choose oral or anal sex over vaginal sex. That’s a scary prospect for all parents in Virginia, but especially for those parents raising gay teens. Leaving a statute of that sort on the books doesn’t protect children over the age of consent. It criminalizes their choice of conduct and leaves the state to decide when it’s benign.
For what possible reason should we give Cuccinelli, or the federal courts, open-ended discretion to go after some acts of consensual sodomy, but not others—when he’s made plain that he thinks one particular class of sodomy is “intrinsically wrong?” And in light of that fact that exactly such back-from-the-dead “crimes against nature” statutes are being used right now in states like Louisiana by overzealous and vindictive police officers to openly harass gay couples, what possible reason could there be to reinstate them?

It’s hard to tell whether Cuccinelli is now begging federal courts to legislate from the bench because he needs a campaign boost, or because he really does want them to police—on an ongoing, “trust me”—basis, the private sex lives of all Virginians and the sexual conduct of all its teenagers. The first scenario is an example of the sad state of Virginia politics. The second is just plain scary. Either way, begging out-of-touch, elitist, liberal federal courts to make ad hoc decisions about which private sex acts are “unnatural” could not be a less conservative goal.

When all is said and done, Kookinelli's ultimate target is gay Virginians.   He is a zealot who cannot be trusted and, in my view, is down right insane.  We do not need someone like him in the governor's mansion.  We don't need him in any elected office whatsoever.  The Constitutional Daily, after asking whether or not Kookinelli has ever committed sodomy with his wife gets to the real issue plaguing Kookinelli:

But we will speculate about Ken Cuccinelli. There's a good chance he's had a little bit of sodomy at some time. And maybe it was a bad experience for him. In fact, it's quite likely it was a bad experience for him, because anyone who's ever followed the story of an ardent anti-gay advocate knows how the story always ends. Ken Cuccinelli is probably gay.

His anti-gay campaigning is probably a manifestation of his own internal struggle. Most people don't feel that strongly about gays, even your typical redneck who will agree with the most homophobic stuff you can think of at the end of the day really doesn't care. The people who do care are the ones fighting their nature because for them homosexuality is an issue that dominates their own lives, and so they think the rest of the world is as concerned as they are.

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You Can Still Be Arrested for Being Gay in Red-State America

Following up on the last post, it is necessary to note that because of the deliberate twisting of Gospel passages and the spinelessness of politicians who prostitute themselves to the Christofascists, gays in red state America need to be concerned that they can still be arrested for being gay.  Leading the charge is Virginia GOP gubernatorial candidate  Ken Cuccinelli who wants to reinstate Virginia's sodomy statute.  Cuccinelli is blowing a smoke screen as to his real agenda, but past police stings in Virginia Beach and elsewhere in the Commonwealth make it clear that gays remain the special target of this statute which as currently written makes certain kinds of sex acts always a felony.  An article in Slate makes it clear that Virginia is not the only state where gays are targeted.  Here are article excerpts:

Last week, the Advocate reported some troubling news out of Louisiana: Since 2011, at least a dozen men have been arrested on a count of “attempted crimes against nature”—that is, an offer to have sex with another man. Even worse, the arrests were part of a sting operation in which undercover officers propositioned men, lured them into an apartment, then promptly arrested them and brought them to jail. The latest arrest occurred on July 18.

Sound retro? It is and it isn’t. On the one hand, Louisiana’s actions are patently, almost comically unconstitutional. It’s been a decade since the U.S. Supreme Court ruled in Lawrence v. Texas that “the liberty protected by the Constitution allows homosexual persons the right ... [of] intimate conduct with another person.” That 6–3 ruling struck down every anti-sodomy law in the country, legalizing homosexuality—as well as any kind of sexual contact between consenting adults, gay or straight.

On the other hand, rejecting Lawrence has long been in vogue in red states. Ten years after Lawrence, 13 states, all of them red or red-leaning, have kept their anti-sodomy laws on the books. And three of them—Kansas, Oklahoma, and Texas—explicitly outlaw consenting sex between people of the same sex. In much of red-state America, then, being gay remains officially illegal.

Yet these laws aren’t merely symbolic. Same-sex couples in North Carolina and Texas have been arrested for “homosexuality conduct” in recent years. And as the Louisiana debacle illustrates, overzealous law enforcement officers feel enabled by the law to arrest, prosecute, and generally humiliate gay people simply for being gay.

The continuing presence of anti-sodomy laws can’t be blamed on absentminded legislators, either. Equality advocates have mounted significant efforts in all 13 states to repeal these laws in the wake of Lawrence—efforts that failed in the face of conservative resistance. In Virginia, the endeavor actually backfired: An attempt to revoke the state’s “crimes against nature” statute led the legislature to reaffirm the anti-sodomy law—more than a year after Lawrence.

Virginia’s law has returned to the spotlight in recent months as Ken Cuccinelli, the state’s current attorney general, has centered his gubernatorial campaign on an effort to enforce Virginia’s Crimes Against Nature law. Cuccinelli was integral to the defeat of the 2004 repeal bill, and nearly a decade later, he remains strangely fixated on an issue settled long ago by the highest court in the land.

There’s no easy legal remedy for these holdout states. . . . . reactionary politicians and homophobic police chiefs will almost certainly continue to use these laws to intimidate and denigrate gay citizens. A decade after the Supreme Court found that matters of sexual intimacy are “central to the personal dignity and autonomy” guaranteed by the Constitution, too much of red-state America still formally outlaws homosexuality. 

Regular readers know why I believe Cuccinelli remains "strangely fixated" on sodomy.  He's another Ed Schrock.   He's out to persecute gays to hide his own closeted status.

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Ken Cuccinelli's Sodomy Obsession. Would He Prosecute Grandmothers?

As I have noted in prior posts, my own conjecture on why GOP gubernatorial candidate Ken Cuccinelli is so obsessed with Virginia's unconstitutional sodomy statute is because he is a self-loathing closet case (college contemporaries thought he was gay and I continue to receive a trail of rumors) who takes his marching orders from the Christofascists at The Family Foundation.   To mask the real source of his obsession, Cuccinelli has made it a campaign claim that the sodomy statute be saved to allow the Commonwealth to protect minors from sexual predators.  This, claim, like most of what Cuccinelli claims, is untrue.  A post at the Bilerico Project expands on some of the issues I addressed previously that cut Cuccinelli off at the knees on these dishonest lies.  And a post in Huffington Post underscores that long married heterosexual couples would be made felons under the statute that Cuccinelli seeks to reinstate.   The man is mentally ill in my view.  Here are excerpts from the Bilerico piece:

To my understanding, it's your perspective that if you don't criminalize me, a professional in my mid 30s, from butt-loving my 31 year old boyfriend, that it will open the door to legalize sodomy between adults and minors.

I assume you took the Virginia Bar Exam. The criminal law portion of it ensures that you know that the age of consent in Virginia is 15 (unless a detainee in a detention center). While I don't agree with the age difference of the man you're trying to convict and his "victim," it could have still consensual in Virginia, since the girl was 17. However, you don't need a "Crimes Against Nature" statute to convict the man. There are other statutes you could use, such as the statute against solicitation. This covers sodomy.

In addition, if you want to protect people under the age of consent, there are already statutes in place for that, including: § 18.2-61. Rape. § 18.2-63. Carnal knowledge of child between thirteen and fifteen years of age. § 18.2-64.1. Carnal knowledge of certain minors. § 18.2-67.1. Forcible sodomy. § 18.2-67.2. Object sexual penetration; penalty. § 18.2-67.3. Aggravated sexual battery; penalty. § 18.2-67.4. Sexual battery. § 18.2-67.4:1. Infected sexual battery; penalty. § 18.2-67.4:2. Sexual abuse of a child under 15 years of age; penalty. § 18.2-67.5. Attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery, and sexual battery.

The only reason these don't protect minors between 15 and 17 is the age of consent. If there are already all of these laws on the books to protect people under the age of consent, but they don't protect all minors, why not raise the age of consent if you're so concerned? That would be a narrow tailoring of the law to suit your purpose. It would also be something that doesn't affect consensual relations between people of voting age.

If the government's purpose is to protect minors, criminalizing consensual adult sexual activity is irrational. Your question of the age of consent and the definition of what types of sex are allowable between consenting adults are completely different questions.

Why would you make consenting adults criminally liable for something that's already criminal if non-consensual, and why would you use government funds to do it? You'd have to hire more police and more prosecutors to handle the increased caseload and increase the already ridiculous expenditures on corrections facilities.

As for the impact of Cuccinelli's quest to save the unconstitutional law, a piece in Huffington Post underscores the pernicious nature of the statute:

Never in my 79 years, nearly 59 of them married to the only man I have ever known, did I imagine being able to say -- much less write -- this:

I am guilty of sodomy.  For that matter, so is my husband, pleasurably so.

We live in Virginia, home base for all our married -- as well as courting -- years. And in Virginia, the state's anti-sodomy law is again front and center. The law describes sodomy as "crimes against nature," which include all oral as well as anal sex, even between consenting adults, and is to be prosecuted as a felony. In other words, ordinary human behavior, criminalized.

Having the statute invalidated by the Appeals Court could easily have been have been the end of the matter. But it's Virginia. And it's an election year.  .  .  .  .  So, the present Attorney General and Republican candidate for governor, Ken Cuccinelli, has appealed the Fourth Circuit's decision to the Supreme Court and requested a stay of the ruling pending the appeal. The Chief Justice has asked the other side for a response by next Monday. We shall see. That I might conceivably be guilty of sodomy had never remotely crossed my mind until the issue bounced brashly into the news. 

[T]he net effect of the Attorney General's attempt to reinstate the Crime Against Nature Law has been to make Virginia once again a laughing stock, open to legitimate ridicule.

What outrages me is that this law is a not-even-thinly-disguised attack on homosexuality and plays into only sometimes-coded anti-gay rhetoric. Indeed, all the anti-sodomy laws that remain on the books fit that description. Apparently, legislatures are not removing them even though they are effectively unenforceable because too many politicians fear the effect that would have on their reelection chances.  Cuccinelli's views on homosexuality are widely known. 

This grandmother is correct.  Gays are the real targets of the sodomy statute and it is used to impose harsher sentences and longer prison terms.  That's Cuccinelli's real goal.  He wants to punish those who are having the kind of sex he knows in his heart he desperately wants himself.  The man needs to be not only defeated in November but outed.  

Bring me a credible witness who will sign a sworn affidavit and let's take this closet case down.

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Louisiana Police Arresting Gay Men Under Unconstitutional Sodomy Law

In various posts this blog has noted GOP gubernatorial candidate for Governor of Virginia Ken Cuccinelli's obsession with gays and re-instituting Virginia's sodomy statue which was invalidated by the United States Supreme Court's ruling in Lawrence v. Texas and more recently by a ruling of the U. S. Court of Appeals for the Fourth Circuit.  Why some ask is this so important to Cuccinelli?  A situation out of Louisiana demonstrates why maintaining sodomy statutes is so important to the Christofascists and zealots like Cuccinelli.  It allows them to entrap gays and hit them with felony charges rather that the mere misdemeanor charges that would apply to prostitution and/or soliciting for sex.  The Virginia statute governing prostitution and solicitation reads as follows:

§ 18.2-346. Prostitution; commercial sexual conduct; commercial exploitation of a minor; penalties.

A. Any person who, for money or its equivalent, (i) commits adultery, fornication, or any act in violation of § 18.2-361 or (ii) offers to commit adultery, fornication, or any act in violation of § 18.2-361 and thereafter does any substantial act in furtherance thereof is guilty of prostitution, which is punishable as a Class 1 misdemeanor.

B. Any person who offers money or its equivalent to another for the purpose of engaging in sexual acts as enumerated in subsection A and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution, which is punishable as a Class 1 misdemeanor. However, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony. 

Virginia's sodomy statute which applies to married heterosexual couples too as written reads as follows:

§ 18.2-361. Crimes against nature; penalty. 

A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony . . .

Note that ONLY when a minor is involved does the charge increase to felony status.  However, under the sodomy statute (which is still on the books in Virginia thanks to the efforts of Cuccinelli and Del. Bob Marshall), any solicitation is a felony even when a minor is not involved.   As a result, the sodomy statute is the preferred vehicle to harass and prosecute gays.  Cuccinelli claims the sodomy statute is needed to protect minors, but in fact the current prostitution statute already covers minors and increases the offense to the felony level.

But back to the situation in Louisiana.  As John Becker at The Bilerico Project report, Louisiana is doing precisely what Cuccinelli wants to do: target gays under an unconstitutional law in order to charge them with more serious offenses with much more severe punishments:

Sheriff's deputies in the Louisiana parish (county) of East Baton Rouge are entrapping, arresting, and booking gay men in undercover sex stings, according to an investigation by the Baton Rouge Advocate.

It's not about prostitution, as no money ever changes hands and no sex-for-money deals are worked out prior to arrest. It's also not about public sex (although such a sting would still be problematic, for reasons I've discussed previously). No, these men are being targeted, solicited, and then arrested simply for consenting to sexual activity at a private residence.

Since 2011, the newspaper found that least a dozen men have been arrested in East Baton Rouge Parish in similar sting operations, the most recent taking place just ten days ago. And how does the office of Sid J. Gautreaux III, Sheriff of East Baton Rouge (right), justify them? Why, by pointing to Louisiana's anti-sodomy law, of course! Casey Rayborn Hicks, a spokeswoman for the Sheriff's Office, told the Advocate:

"[The anti-sodomy law] is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature. Whether the law is valid is something for the courts to determine, but the sheriff will enforce the laws that are enacted."

When Lawrence was handed down in 2003, Louisiana's then-attorney general issued a statement declaring the state's anti-sodomy statute unenforceable. The unconstitutional ban remains on the books because legislators have so far refused to repeal it, but the state legislature's obstinance doesn't miraculously grant local officials the power to enforce voided laws.

In each of the cases examined by the Advocate, District Attorney Hillar Moore III has refused to press charges due to the absence of any actual criminal activity. So this clearly has nothing to do with enforcing the law or preserving the peace, and everything to do with singling out and humiliating gay men.

Sheriff Gautreaux's shameful stunt has disturbing echoes of an earlier time in America when gay sex was illegal and LGBT establishments and cruising grounds were frequently raided by police in order to shame and intimidate the local LGBT community, satisfy the public's lust for all things salaciously taboo, and fulfill society's seemingly endless desire to claim moral superiority.

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Pennsylvania County Begins Offering Same-Sex Marriage Licenses

The hate merchants and Christofascists at the National Organization for Marriage ("NOM") have their panties in a major wad over the issuance of marriage licenses to same sex couples by the Montgomery County, Pennsylvania, county registry.  Huffing and puffing NOM is calling the actions "lawlessness" even though NOM has no problem violating campaign finance laws all across the country with open abandon.  As always, NOM's hypocrisy is stunning.  The county register rightly determined that Pennsylvania's gay marriage ban is unconstitutional in light of the ruling in United States v. Windsor, and therefore began issuing licenses.  Think Progress has details:

Alicia Terrizzi and Loreen Bloodgood obtained a marriage license and were wed a short time thereafter Wednesday in Montgomery County, Pennsylvania, despite a state law banning same-sex marriage. The County’s Registry of Wills, Bruce Hanes, had been contacted by another couple earlier in the week about the possibility, and after consulting with his solicitor, Michael Clarke, decided that issuing same-sex licenses was the proper way to honor his oath to uphold the Pennsylvania constitution:

Based upon the advice of Mr. Clarke, my own analysis of the law and mindful of the Attorney General’s belief that Pennsylvania’s marriage laws are unconstitutional, I decided to come down on the right side of history and the law…

When I took the oath of office 19 months ago, I swore to uphold the U.S. and the Pennsylvania Constitutions. Article 1 Section 1 of the Pennsylvania Constitution, aptly entitled “Inherent rights of mankind,” says “all men are born equally free and independent, and have certain inherent and indefeasible rights, among which is “pursuing their own happiness.”

Article 1, Section 26 of the Constitution says, “Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.”

Furthermore, Article 1 Section 28 says, “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Pennsylvania Attorney General Kathleen Kane announced earlier this month that she would not defend a federal challenge to the state’s law banning same-sex marriage because she believes it to be unconstitutional. Unlike many states, Pennsylvania does not have a constitutional amendment enforcing discrimination against gay couples, only a state law. A group of 23 plaintiffs, including ten couples, two of their children, and a widow, are challenging that law in federal court.

The fate of these marriages is unclear, but for now, Hanes has the support of the Chair and Vice Chair of the Montgomery County Board of Commissioners, who called it a historic day. Presumably, he will continue to offer such licenses unless some form of legal action prevents him from doing so.

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Federal Court Orders Ohio Officials To Recognize Gay Couple’s Marriage

In a surprisingly fast reaction to the lawsuit filed by a couple in Ohio challenging that state's gay marriage ban, a federal judge in Ohio ordered Ohio state officials on Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.”  While the merits of the case have yet to be decided, the ruling my indicate how the Court plans to ultimately rule in the wake of the Windsor decision last month.  One can only wonder how the folks at NOM will try to describe this development as a "victory.  The New Civil Rights Movement has details.  Here are story highlights:

 

A federal judge has just ordered the state of Ohio to recognize a same-sex couple’s marriage, noting that not doing so would likely be considered discrimination and therefore unconstitutional. While the judge’s ruling does not invalidate Ohio’s constitutional amendment banning same-sex marriage, the wording of the judge’s ruling certainly calls it into question.

On July 11, after spending 20 years together, John Arthur and James Obergefell were married in Maryland, where same-sex marriage became legal this year. John Arthur is terminally ill with ALS, and the couple flew to Maryland to marry before Arthur’s death.

The couple had “hoped to be buried next to each other, to spend eternity together, but the state of Ohio and his spouse’s relatives won’t let him – because he married another man, John Arthur,”

Federal U.S. District Magistrate Judge Timothy Black has just ordered the state of Ohio to recognize the couple’s marriage.

“Black found that the Ohio Constitution on the issue ‘violates rights secured by the … United States Constitution in that same-sex couples married in jurisdictions where same sex marriages are valid who seek to have their out-of-state marriage accepted as legal in Ohio are treated differently than opposite sex couples who have been married in states where their circumstances allow marriage in that state but not in Ohio,’” Cincinnati.com also reported.

“According to the order, Obergefell and Arthur live in Cincinnati, Ohio, and ‘have been living together in a committed and intimate relationship for more than twenty years,’” Chris Geidner at Buzzfeed adds:

The order also notes “they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage.”

“The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse,’” Judge Timothy Black wrote in an order Monday.

Theoretically, this ruling could be the first step in tossing out as unconstitutional Ohio’s ban on same-sex marriage, but it’s important to note the ruling is a temporary restraining order and can only be applied, at least for now, to John Arthur and James Obergefell.

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House Republicans Cave On Defending Marriage Statutes

In a move that will cause spittle to fly amongst the Christofascist elements of the GOP base, House Republicans have announced that they will cease defending anti-gay marriage statutes akin to DOMA.  One must hope that with lawsuits multiplying and public approval of gay marriage soaring the sane elements left in the Republican Party will grow sufficient spine to politely tell the Christofascists to do something rude and crude to themselves.  Hate groups like Family Research Council and The Family Foundation here in Virginia may want to continue their rear guard war against modernity, but long term, the GOP has to face reality.  An article in BuzzFeed looks at the House GOP's capitulation.  Here are highlights:

House Republican leaders announced in a court filing Thursday that they will not defend remaining statutes similar to the Defense of Marriage Act that ban recognition of same-sex couples’ marriages.

The move comes three weeks and one day after the Supreme Court ruled in Edith Windsor’s case that the federal definition of marriage in DOMA was unconstitutional because it banned the federal government from recognizing same-sex couples’ marriages.

“[T]he House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute,” lawyers for the House Bipartisan Legal Advisory Group (BLAG), controlled by House Republicans, wrote about veterans’ benefits statutes that similarly ban recognition of same-sex couples’ marriages.

“The document from the legal team speaks for itself,” House Speaker John Boehner’s spokesman, Michael Steel, told BuzzFeed, when asked for comment on the move.

Judge Richard Stearns had asked the parties in a lawsuit addressing the rights of service members and veterans and their same-sex spouses to give “any reasons why judgment should not enter for plaintiffs in this case,” following the Supreme Court’s June 26 decision striking down Section 3 of DOMA.
In addition to challenging DOMA, the plaintiffs — led by Maj. Shannon McLaughlin, a judge advocate general in Massachusetts Army National Guard, and her wife, Casey — challenge two statutes in Title 38 of the U.S. Code regarding veterans’ benefits that define “spouse” as “a person of the opposite sex.”

BLAG’s lawyers on Thursday, however, wrote:

The Supreme Court recently resolved the issue of DOMA Section 3’s constitutionality. See United States v. Windsor, 570 U.S. __ (2013), 2013 WL 3196928 (U.S. June 26, 2013). The Windsor decision necessarily resolves the issue of DOMA Section 3’s constitutionality in this case. While the question of whether 38 U.S.C. § 101(3), (31) is constitutional remains open, the House has determined, in light of the Supreme Court’s opinion in Windsor, that it no longer will defend that statute. Accordingly, the House now seeks leave to withdraw as a party defendant.

The spokesman for House Minority Leader Nancy Pelosi, however, pushed for additional, immediate action.

“The Supreme Court’s ruling is clear. Rather than trying to delay justice for particular married gay and lesbian couples and their families, Speaker Boehner should immediately file motions to end House Republicans’ involvement in the remaining cases and stop spending taxpayer dollars to defend unconstitutional discrimination,” Pelosi spokesman Drew Hammill told BuzzFeed.

In addition to the McLaughlin case, there at least remains unresolved a case challenging similar statutes brought by Tracey and Maggie Cooper-Harris in federal court in California. Additional cases outstanding include Cardona v. Shinseki and Bishop v. United States.]

It will be interesting to see how NOM and Bryan Fischer try to describe these events as a "win" somehow. 

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PA Pastors Attack Attorney General for Refusing to Defend Unconstitutional Law

With all the corruption, hypocrisy and batshitery that surrounds much of organized religion - not to mention the fact that there is supposed to be no established religion in America - elected officials and the media continue give far to much attention and deference to those peddling myths based on stories passed down from wandering nomads of 2,500+ years ago and the unkown authors of the New Testament.  A case in point is the collective conniption fit by a bunch of wingnut pastors in Pennsylvania who are beside themselves with Pennsylvania Attorney General Kathleen Kane who has refused to defend that state's unconstitutional DOMA law against a lawsuit filed by the ACLU.  The Pittsburg Gazette looks at the spittle flect protestations of these windbags.  Here are highlights:

Citing Biblical verses, a group of pastors and conservative GOP state House members called on Attorney General Kathleen Kane to reconsider her decision not to defend the state's law against same-sex marriage.

Ms. Kane, a Democrat, made national headlines last week when she announced her decision not to defend the 1996 law, saying she believes it is unconstitutional. The law will now most likely be defended in a federal lawsuit by the Corbett administration's Office of General Counsel.

 

On Wednesday morning, a group from the Pennsylvania Pastors Network and several Republican House members said they believe Ms. Kane must reconsider.

 

"The issue is one of defending heterosexual marriage," said Sam Rohrer, president of the pastors network. Mr. Rohrer is a former state representative and 2010 Republican gubernatorial candidate before losing in the primary to now- Gov. Tom Corbett.

 

Mr. Rohrer added, "We see a moral imperative for heterosexual marriage due to the revealed truth of God based on eternal law."

It is far past time that fundamentalist religious belief be eliminated from the nation's laws both  at the state and federal level.  These pastors are free to belive whatever garbage they want, but they do NOT have the right to force their ignorance and bigotry on others.  Would that politicians had the spine to tell them so.  One article reader summed up reality well:

Nothing at all is happening to heterosexual marriage. There is nothing about "traditional marriage" that needs defending. The marriage equality movement was never an effort to make homosexuality compulsory for everyone. The overwhelming majority of humans are Straight, and they will continue to date, get engaged, marry, and build lives and families together as they always have. None of that is going to change when Gay couples do the same.

These laws are all about stigmatizing and punishing gays for refusing to conform to the Christofascists' dogma.  It's all about animus and nothing else.  Which is precisely why DOMA was struck down in the Windsor ruling.  

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Gay Marriage Lawsuit Puts PA Governor Tom Corbett in Bind

Other than slashing social safety net programs, nothing warms the heart of the Christofascist base of the GOP more than bashing gays and stigmatizing us in every way possible.  However, with the rapid rising in support for gay marriage, we may be about to see an example of where pandering to the party base could prove toxic in a general election.  The case in point is Pennsylvania Governor Tom Corbett (pictured above) who must decide whether or not to defend Pennsylvania' anti-gay marriage law now that that state's Attorney General has announced that she will not defend the law which she describes as "wholly unconstitutional."  A piece in Politico looks at the quandry that Corbett faces.  Here are highlights:

Pennsylvania Gov. Tom Corbett, who’s suffering from low approval ratings and has a tough reelection battle looming next year, is facing yet another politically difficult decision: whether or not to stand up for the Keystone State’s same-sex marriage ban.

State Attorney General Kathleen Kane, a Democrat, said Thursday that she wouldn’t defend the ban in court — raising the issue on a state level for the first time since the Supreme Court ruled against the federal Defense of Marriage Act.

Since Kane has declined to defend the law, the responsibility falls to Corbett to decide what to do. Pennsylvania General Counsel James D. Schultz said in a statement Thursday afternoon that Corbett’s office “will continue to review the lawsuit” — and took a swipe at Kane.

Corbett faces a rock-and-hard place decision. If he opts to defend the law — he’s expressed support for it in the past — Corbett will draw ire from a Democratic base that already despises him. If he chooses not to defend it, he risks alienating the members of his own party he needs for reelection next year.

By defending the law, said Muhlenberg College pollster Chris Borick, Corbett would be “going counter to general public opinion in the state — but he has to worry first about his very lukewarm support within his own party.”

GOP strategist Ray Zaborney said he doesn’t think the issue “cuts one way or another” in the state. But Zaborney said Democrats are certain to attack the governor if he defends the law.

The GOP should never have allowed the Christofascists to hijack the party and take over city and county committees.  These people are zealots and extremists and, in my view, will yet be the death of the GOP.

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Why Virginia's Gay Marriage Ban Violates the 14th Amendment

One should never expect modern day Virginia to do the right thing willing.  At least not so long as the Virginia Republican Party is controlled by far right Christian extremists and their equally self-centered Tea Party cousins, the vast majority of whom describe themselves as "conservative Christians."  Lobotomized Christians might be a more apt description, in my opinion.  While the recent U. S. Supreme Court rulings did not directly impact Virginia's foul anti-gay Marshall-Newman Amendment (which amended the Virginia Constitution's Bill of Rights to take away rights), language in United States v. Windsor has set the stage for a constitutional challenge under the 14th Amendment to the U. S. Constitution which - contrary to what Ken Cuccinelli believes - DOES supersede Virginia's Constitution.  A column by Delegate Scott Surovell sketches out why Virginia will eventually see its anti-gay marriage ban fall.  Here are highlights:

There are two important issues.  First, whether Virginia allows gay marriages to take place in Virginia.  Second, whether Virginia recognizes gay marriages performed in other states.  The Supreme Court has not addressed Virginia's power to ban gay marriage.  However, United States v. Windsor puts Virginia in violation of the 14th Amendment.

The way the law stands today, the Supreme Court has not told Virginia that it must legalize gay marriage nor has it said Virginia's gay marriage ban is constitutional.  But it has effectively told Virginia that we must recognize gay marriages created in other states.  Virginia's Constitution specifically prohibits this and  puts Section 15-A of the Constitution of Virginia in violation of the 14th Amendment of the United States Constitution.

United States v. Windsor makes clear that government must recognize unions created in other states.

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.   The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. . . .

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose in equality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  

The due process and equal protection provisions of the 14th Amendment explicitly apply not only to the Federal Government, but also to the states. 

No state may abridge the privileges and immunities of any of its citizens, or deny them due process of law or equal protection of the laws.

The 14th Amendment contained this language to prevent southern state legislatures from economically and politically disenfranchising freed slaves after the Civil War through the Black Codes which restricted black's movement, required year-long labor contracts, prohibited gun ownership, and made Blacks incompetent witnesses in court.  Virginia can no longer marginalize gay residents. 

There is an entire moral, religious, ethical backdrop to all of this which could fill ten articles.  I'm only focusing on the basic constitutional analysis above in this article.  Aside from the legal issues, I also believe it's morally wrong to marginalize people for who they love. 

I agree with his analysis and the only question is how long it will be before a federal lawsuit is filed challenging the constitutionality of the Marshall-Newman Amendment under the United States Constitution.  For me, that day cannot come soon enough.

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Cuccinelli Asks Supreme Court to Uphold Virginia's Sodomy Statute

Ken Cuccinelli's gubernatorial campaign claims that Cuccinelli, a/k/a Kookinelli, is focused on jobs and issues that matter to most Virginians.  You'd never know that based on his request filed today for the U. S. Supreme Court which struck down for a second time recently by the U.S. Court of Appeals for the 4th Circuit, the most conservative Circuit Court of Appeals in America (it was struck down the first time by the U.S. Supreme Court's ruling in Lawrence v. Texas in 2003 that ruled a similar Texas statute to be unconstitutional).  

In his ludicrous explanation for his appeal, Kookinelli claims that the sodomy statute is key to prosecuting sex crimes even though numerous other statutes give prosecutors plenty of bases for prosecuting wrongdoers.  No what's special about the sodomy statute is that it criminalizes any form of sex that isn't engaged in via the so-called missionary position.  It is part and parcel with the Christofascist agenda that sex should never be enjoyable and certainly should never depart from their rigid - might we also say frigid if we think of sodomy statute supporter, Victoria Cobb, president of The Family Foundation? - views that sex is only for procreation and one had better not like it.  The other reason Kookinelli lusts to keep the sodomy statute on the books is that it imposes far higher penalties on "deviant" sex crimes than the rest of the panoply of laws available to prosecutors.  Here are details from the Virginian Pilot on Kookinelli's appeal (which will no doubt send the far right crowd into near orgasms since they can't have them during sex):

Attorney General Kenneth Cuccinelli on Tuesday asked the U.S. Supreme Court to uphold Virginia's anti-sodomy law, arguing that a lower court misinterpreted the scope of the justices' 2003 decision invalidating a similar law in Texas.

In a 2-1 decision in March, a panel of the 4th U.S. Circuit Court of Appeals declared that Virginia's law against oral and anal sex is unconstitutional. [The 4th Circuit also refused Kookinelli's request for a rehearing en banc]

Virginia's so-called "crimes against nature" law was the basis for a 47-year-old man's conviction of criminal solicitation for allegedly demanding oral sex from a 17-year-old girl. In the appeal, Cuccinelli claims the Supreme Court's Lawrence v. Texas decision applied only to sex acts involving consenting adults, not those between an adult and a minor.

Claire Guthrie Gastanaga, executive director of the ACLU of Virginia, said she was disappointed that Cuccinelli chose to appeal the ruling.  "I think that's a waste of the state's resources," she said. "By appealing, he's trying to breathe life into a law that is clearly unconstitutional."

The appeals court's ruling came in the case of William Scott MacDonald, who was convicted of violating a Virginia law making it a felony for any adult to order a person under age 18 to commit a felony. MacDonald claimed his conviction for that offense was improper because the underlying felony was based on an unconstitutional law. The appeals court agreed.

Gastanaga said that rather than appeal the 4th Circuit's decision, Cuccinelli should work with the General Assembly to draft a constitutional law protecting older minors.

The decision to appeal is certain to provide campaign fodder for Democrats who already have accused Cuccinelli and his GOP ticket mates of pursuing an anti-gay, socially divisive agenda.

And lest we forget how virulently anti-gay Kookinelli is (despite persistent rumors that, gasp, he may have violated the sodomy statute himself in the past) , the Virginian Pilot also reports on Cuccinelli's brief to the U.S. Supreme Court in the gay marriage case to be decided tomorrow.  Here are story excerpts:

Cuccinelli led a group of 19 Republican attorneys general in filing a 55-page brief with the court in late January opposing legal recognition of gay marriage. In one passage, their brief seeks to undermine the notion that if same-sex couples can be parents, they should also be legally allowed to get married:

"Responsible parenting is not a justification for same-sex couple marriage, as distinguished from recognition of any other human relationships. It is instead a rationale for eliminating marriage as government recognition of a limited set of relationships. Once the natural limits that inhere in the relationship between a man and a women can no longer sustain the definition of marriage, the conclusion that follows is that any group of adults would have an equal claim to marriage."

Kookinelli is a flaming asshole and, based on the rumors that come my way, a hypocrite.  My offer stands: If someone will come forward with reasonable proof that Kookinelli is another Ed Schrock or Larry Craig and sign a sworn affidavit affirming the information, I will happily do all I can to take his sorry ass down.  If you don't believe me, ask Ed Schrock or former "ex-gay" poster boy Michael Johnston, if you can find either of them.   All it will take is believable evidence and a detailed sworn affidavit.

 

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Waiting on Proposition 8 and DOMA Decisions

As many of us wait and wonder what will happen with the Supreme Court rulings, a great "plain English" overview of both Hollingsworth v. Perry and United States v. Windsor can be found here at SCOTUS Blog.  Personally, I am hopefully optimistic on the DOMA case.  On Proposition 8, I suspect that the Court's ruling will do nothing for members of the LGBT community in anti-gay states like Virginia.  We will likely remain second class citizens subject to state sponsored discrimination in a modern day version of segregation.  Here are brief excerpts on the two cases:

To the extent that you can make any predictions based on the oral argument, Windsor and her supporters may have reason to be cautiously optimistic.  The Court’s four more liberal Justices – Justices Ginsburg, Breyer, Sotomayor, and Kagan – seemed to be squarely on her side.  They may also have a vote from Justice Anthony Kennedy (who is often regarded as the swing vote on the Court) to strike down the law as well, although perhaps for a different reason.  Generally a staunch supporter of states’ rights, he seemed troubled by the idea that with DOMA Congress was trying to regulate marriage – which, he seemed to indicate, has traditionally been the role of the states.

But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all.  The case may have a fatal procedural flaw.  In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case.  But this is not, as you may have figured out by now, the average case.  Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional.  And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.

The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s.  Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples.  Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage.

The sponsors of Proposition 8 defended it in court, because the State of California refused.  The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.

There is a threshold question of “standing” that piqued the interest of several Justices – the Chief Justice and the Court’s four more liberal Justices in particular – who seemed inclined at oral argument to hold that the sponsors of Proposition 8 lacked the legal right to defend it in court. 

[T]he Court could simply dismiss the case on the ground that it had made a mistake in taking it on. The one thing that didn’t seem likely after the oral argument was what some supporters of same-sex marriage had long feared:  a decision holding that the state’s ban on same-sex marriage is constitutional.  

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