Attaining same-sex marriage and equal rights for the Lesbian,
Gay, Bisexual and Transsexual (LGBT) community in Wyoming
2014-OCT: In a surprise move, the U.S. Supreme
may require marriage equality in Wyoming.
This topic is continued from the previous essay.
2014-OCT-05: Status of same-sex marriage in Wyoming and in the rest of the U.S.:
As of OCT-05, same-sex couples could routinely obtain marriage licenses and subsequently marry in 19 states and the District of Columbia. Wyoming was not one of these states. At that time, about 45% of Americans lived in areas of the country where same-sex couples could marry. There were 31 states where same-sex marriage was not permitted due to statutes passed by their state Legislatures or, more likely, by amendments to the state Constitutions passed by the voters. 1 On OCT-05, there were about 70 active lawsuits seeking marriage equality in various states. There was at least one active lawsuit in each of these 31 states that banned same-sex marriages.
Three-judge panels at a total of three U.S. Circuit Court of Appeals had recently issued rulings for four of these lawsuits affecting five states. Three decisions were by a 2:1 vote; the remaining one was unanimous. All four rulings were in favor of legalizing marriage equality. Of particular interest to Wyoming were:
- A ruling by a three-judge panel of the same Circuit Court upholding an Oklahoma District court decision legalizing SSM in that state. On JUL-18, the Circuit Court ruled that Oklahoma's Constitutional ban on SSM was unconstitutional. The decision had also been appealed to the U.S. Supreme Court. More details.
- A ruling by a panel of three judges in the 10th U.S. Circuit Court of Appeals upholding a Utah District Court decision legalizing SSM in that state. On AUG-05, Utah appealed that ruling to the U.S. Supreme Court. More details.
Both of these rulings were stayed so that same-sex couples could not actually obtain marriage licenses and be married while everyone waited for the U.S. Supreme Court to act on these appeals.
Media commentators at the time debated what the response of the U.S. Supreme Court would be. The Justices could grant certiorari -- decide to accept an appeal -- of none of the cases, of one case, or of a group of cases. The near universal consensus was that the high Court would select one or two cases, announce their decision to grant certiorari in late 2014, hold hearings in the Spring of 2015, and announce their ruling in late 2015-JUN. Commentators speculated whether the high court's eventual decision would make marriage available to same-sex couples across the entire country.
They did just that in another marriage-related case, Loving v. Virginia, almost five decades ago in 1967. At that time, the high court made interracial marriages available throughout the U.S. At the time, 72% of adults in the U.S. opposed
interracial marriage. Also, 48% felt that marrying a person of another race should
be prosecuted as having performed a criminal act.
2014-OCT-06: The surprise decision by the U.S. Supreme Court that indirectly affected Wyoming and five other states:
This time, the U.S. Supreme Court marched to a different drummer.
On OCT-06, the high Court announced that it would not grant certiorari to any of the four lawsuits from three Circuit Courts of Appeals. 2 The four lawsuits involved were from five states:
- Virginia which is under the juridsiction of the 4th Circuit Court of Appeals in the Eastern U.S. Other states in this Circuit Court are West Virginia, along with Maryland, North Carolina, and South Carolina.
- Utah and Oklahoma which are under the juridsiction of the 10th Circuit Court of Appeals in the Midwest and West. Other states in this Circuit Court are Colorado, Kansas, New Mexico, and Utah.
- Indiana and Wisconsin which are under the juridsiction of the 7th Circuit Court of Appeals in the Midwestern U.S. Illinois is also in this Circuit Court.
Same-sex marriage thus became final and the stays were lifted in all five states involved in the four lawsuits: Virginia, along with Indiana, Oklahoma, Utah, and Wisconsin with the stroke of a pen.
Some minor housekeeping tasks were quickly cleaned up, and same-sex couples in these five states were able to start purchasing their marriage licenses, either on Monday, OCT-06 or -- in the case of residents of Indiana -- on the next day.
Having same-sex marriage suddenly come to five additional states over a 48 hour interval had never happened before in U.S. history. Same-sex couples could now marry in any of 24 states or the District of Columbia. This was very close to forming a majority of jurisdictions in the U.S. that had attained marriage equality. Some pro-marriage equality groups considered that once a majority of states attained marriage equality, and a majority of Americans lived in states with marriage equality, and national support for same-sex marriage exceeded 60% then the U.S. Supreme Court would likely make marriage equality the law of the land in all 50 states.
Reactions by the Lesbian, Gay, Bisexual and Transgender community (LGBT) were mixed. There was much joy that marriage equality had come to loving, committed couples in five more states. The Internet was flooded with pictures of many happy couples. Some were holding their marriage licenses; others were getting married; still others were kissing. But the community was also saddened that there was now no possibility that the Supreme Court would rule marriage by same-sex couples to be legal across the entire country in mid-2015.
Religious and social conservatives were generally shocked at this sudden development. There were many references to lawless courts, to rogue judges, and to courts, Attorneys General, and Governors ignoring the will of the people. The latter was a reference to amendments to state constitutions that had banned marriage equality and were now found unconstitutional because they violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. There were calls for Congress to initiate a new amendment to the U.S. Constitution so that these two clauses longer applied to marriages. That would allow the voters in individual states to amend their state constitution to ban marriage for any group that was disfavored by a simple majority of voters, and have their amendments found constitutional by the courts. This is called the "tyranny of the majority." Preventing that was a major concern of the founding fathers of the U.S.
The affects of the U.S. Supreme Court's decision on OCT-06 went far even further than directly affecting five states: Indiana, Oklahoma, Utah, Virginia, and Wisconsin. It also indirectly affected six more states. When a ruling of a Circuit Court becomes final, it normally becomes applicable to all of the other states under the jurisdiction of the same Circuit Court. This would imply that same-sex couples in six other states with same-sex marriage bans, who were also under the jurisdiction of the 4th, 7th, and 10th Circuit Courts, should be allowed to marry. These states are West Virginia, along with Colorado, Kansas, North Carolina, South Carolina, and Wyoming. These will take a bit of time to sort out, because some of the legislators, Attorneys General and/or Governors in these states are strongly opposed to marriage equality.
The ripple effect of the Supreme Court's decision of OCT-06 is a game-changer, It impacted five states directly. It either has or is expected to bring marriage equality to six other states indirectly. It is also expected to influence additional states as various federal courts take notice of the trend towards marriage equality in their own rulings elsewhere in the country.
As of 2014-OCT-24, the Kansas and South Carolina goverments were still resisting the decision of the Supreme Court by defending their same-sex marriage bans.
How Wyoming and five other states became affected by the U.S. Supreme Court's decision:
When, as in this situation, a decision by a federal Circuit Court of Appeals becomes final, then the ruling directly affects the state from which the lawsuit originated. It may or may not also affect other states under the jurisdiction of the same Circuit Court.
For example, consider an environmental lawsuit that originated in Utah and involves a species of fish found only in large salt water lakes. A ruling by the 10th Circuit Court of Appeals that became final would directly affect Utah because of its Great Salt Lake. However, it would not affect the other five states under the jurisdiction of the 10th Circuit Court of Appeals: Colorado, Kansas, New Mexico, Oklahoma, or Wyoming -- because they have no large salt lakes within their borders.
However, since the lawsuit that originated in Utah involved marriage equality, then it would probably affect marriage laws in the other five states over which the 10th Circuit Court has jurisdiction. This is because there is no real difference in same-sex couples in these states:
- Since about 5% of every generation of newborns across the U.S. will grow up to find that they are gay or lesbian, and
- Since about another 5% of newborns in every state will find out later in life that they are bisexual, and
- Since most people are social beings,
- Then, a small but significant minority of people in every state will probably fall in love with a member of the same sex, will want to make a lifelong commitment to that person, and marry them.
Thus the nature of same-sex marriages in Utah is identical to that in the other five states.
It is probable that since marriage equality is settled law in the 10th Circuit Court of Appeals, that court's decision on marriage equality in Utah and Oklahoma will also be found to be binding on Wyoming, as well as Colorado and Kansas. (New Mexico had previously legalized same-sex marriage during 2013-DEC). Over the next weeks, it should be obvious which states will gracefully accept marriage equality by this path and which ones will enthusiastically fight to retain discrimination against the LGBT community.
For the same reasons, it was probable that same-sex marriage would be legal all states handled by the 4th Circuit Court of Appeals in the Eastern U.S., and the 7th Circuit Court of Appeals in the midwest
When the smoke clears, most expect that the U.S. Supreme Court's decision on OCT-06 might increase the number of states attaining marriage equality from 19 to about 30. That is, all couples, whatever their gender makeup, will be able to marry -- assuming that they meet age, financial, and genetic closeness requirements -- in 60% of the states in the U.S. plus the District of Columbia.
Many religious and social conservatives in Wyoming undoubtedly believe that this indirect approval of marriage equality is unfair to them. It will happen simply because Wyoming is under the jurisdiction of the 10th Circuit Court of Appeals. When the boundaries of the 8th and 10th Circuit Courts of Appeals were drawn many decades ago, Wyoming could have easily ended up in the 8th Circuit Court. Then, Wyoming would not have been affected by the decision by the 10th Circuit Court in the Utah case.
The following information source was used to prepare and update the above
essay. The hyperlink is not necessarily still active today.
- "High court ruling may lead to gay marriage in 30 states," USA Today, 2014-OCT-06, at: http://www.usatoday.com/
- A government map of the U.S. showing the 11 federal Circuit Courts of Appeal can be seen at: http://www.uscourts.gov/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-15
Last updated 2014-OCT-21
Author: Bruce A Robinson