This topic is continued from the previous essay.
2014-OCT-06: By a ruling of the U.S. Supreme Court, marriage equality becomes settled law in some states:
As discussed in the previous essay, the U.S. Supreme Court had recently received two appeals from the 10th U.S. Circuit Court of Appeals. The cases involved the Court's decision to legalize same-sex marriage in Utah and Oklahoma. On OCT-06, the U.S. Supreme Court issued its ruling refusing to grant certiorari. That is, they refused to accept these two appeals and other appeals from two other Circuit Courts of Appeals.
Ironically, OCT-06 was also the 16th anniversary of the murder by crucifixion of Matthew Shepard in Wyoming. This event is the first thing that comes to mind when many people consider Wyoming and the treatment of its LGBT community.
The Supreme Court's ruling made the pro-marriage equality decisions of the 4th, 7th, and 10th circuit fixed and final. Their rulings became settled law. In the case of the 10th Circuit Court, marriage equality came to Utah and Oklahoma directly.
However, in most cases of this nature, the Circuit Courts' ruling(s) also become implemented indirectly in all of the remaining states under each Court's jurisdiction. For the 10th Circuit Court, this :
There would have to be some very unusual circumstances in order to allow Colorado, Kansas and Wyoming to avoid implementing marriage equality. There appear to be no such circumstances:
A same-sex couple in Utah whose children are being harassed at school because their parents aren't married, who are deprived of the status of marriage, who are excluded from a few hundred state benefits given to married couples, and who have no access to the federal government's 1,138 programs, benefits, and protections for married couples
are in exactly the same situation as:
A same-sex couple in Wyoming whose children are being harassed at school because their parents aren't married, who are deprived of the status of marriage, who are deprived of a few hundred state benefits given to married couples, and who have no access to the federal government's 1,138 programs, benefits, and protections for married couples.
New Mexico is also within the jurisdiction of the 10th Circuit Court. However, the New Mexico Supreme Court legalized same-sex marriage during 2013-DEC. 1
Some of the states that were indirectly affected by the U.S. Supreme Court's ruling quickly changed their practices and started to issue marriage licenses to qualified same-sex couples. However. Wyoming has decided to fight to retain its policy of marriage inequality and discrimination against same-sex couples. The odds against the government being able to succeed are extreme. However, if Governor Matt Mead (R) and Attorney General Peter Michael (R) had capitulated and accepted marriage equality without a fight, their party's voters might revolt on election day, which was less than a month from OCT-06.
Unlike most states, the position of Attorney General is not an elected position. The individual is appointed by the Governor. Thus the decision to fight or capitulate to marriage equality is ultimately the Governor's to make, alone.
2014-OCT-07: New lawsuit is launched, seeking marriage equality in Wyoming:
The day after the U.S. Supreme Court's decision to not grant certiorari to 4 lawsuits involving marriage equality, a rally was held at the Albany County courthouse in Laramie, WY. A same-sex couple, Theresa Bingham and Linda Maheffey went through the traditional ritual of asking the Laramie County Clerk Debra Lathrop for a marriage license. They were refused. The clerk wrote in a letter to the couples that she needed clear direction from the courts before she could issue a marriage license to a same-sex couple. 2
Four same-sex couples filed a new lawsuit with the federal District Court in Wyoming. It is called "Guzzo v. Mead." The plaintiffs are seeking a preliminary injunction and temporary restraining order so that they could immediately start to marry. Three of the plaintiff same-sex couples are currently unmarried and wish to marry in their home state of Wyoming. The fourth couple was married in another state and want Wyoming to recognize their marriage.
Their lawsuit is patterned after the case that legalized same-sex marriage in Utah. It was issued by the 10th Circuit Court of Appeals in the lawsuit Kitchen v. Herbert, (2014) which is now considered by most commentators to be settled law for Wyoming and the other five states under this Court's jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, and Utah.
Chris Stoll is a senior staff attorney at the National Center for Lesbian Rights (NCLR) and is assisting the plaintiffs in this case. He said:
"By not issuing (marriage) licenses now, that means Wyoming is not complying with the law in the 10th Circuit, and that’s why we’ve brought this case, to bring them into compliance." 2
Federal Judge Scott Skavdahl of the U.S. District Court for Wyoming will preside over the lawsuit. The hearing begins during the morning of Thursday, OCT-16 in Casper, WY.
Week of 2014-OCT-12: The court fight for/against marriage equality:
Jeran Artery is the chairperson of Wyoming Equality. In a letter to supporters, he wrote:
"This is it. As early as the end of (this) week, we will very likely receive a definitive ruling on [the future of] marriage in Wyoming."
Chris Stoll will represent the plaintiffs at the hearing. He said:
"The state is obligated to comply with the 10th Circuit’s ruling. Whether it is a state or federal state court action, the freedom to marry will be coming to the state of Wyoming before too long." 2
How Governor Mead got it wrong:
There are about 27 states in the U.S. with Defense of Marriage amendments to their state constitution that call for marriage inequality and discriminate against same-sex couples. To our knowledge, every Governor and Attorney General in the U.S. must swear an oath of office promising that they will follow both their State Constitution and the U.S. Constitution. Problems crop up when the two documents conflict.
- In some of these 27 states, the state's leaders will attempt to uphold their state constitution.
- In other cases, they will consider the federal constitution to be more important. They will attempt to follow the requirements of the due process and/or the equal protection clauses in the 14th Amendment of the U.S. Constitution, as interpreted by the courts in their area. Among the approximately 35 federal court decisions since mid-2013 about marriage equality, all but one court has ruled that the federal Constitution requires federal, state and local governments treat people equally, including giving them equal access to marriage.
In spite of the heavy odds in favor of marriage equality becoming the law of the land, Governor Matt Mead (R) issued a statement saying that he would order the Attorney General to try to preserve the amendment to the state constitution that bans marriages by same-sex couples. Governor Mead issued a statement on OCT-06, saying:
"Today’s decision by the U.S. Supreme Court has no impact on the case before the Wyoming District Court. The Attorney General will continue to defend Wyoming’s constitution defining marriage between a man and a woman.
On the surface,Governor Mead's statement sounds reasonable. However, if one actually takes the time to read the Wyoming Constitution, the Governor's statement falls apart. A reporter for the Wyoming Tribune Eagle did exactly that and reported that the Wyoming Constitution does not have a Defense of Marriage amendment to be defended. Marriage inequality is preserved in Wyoming only by a simple statute #20-1-101, a marriage law passed by the Legislature.
To add to the irony. the Wyoming Constitution actually contains an equal protection clause which appears to require the state to not discriminate against the LGBT community. That is:
- Wyoming statute #20-1-101 would appear to be unconstitutional, when it is compared either to the state or federal constitution.
Governor Mead (R) seems to be violating his oath of office twice: once by refusing to uphold the federal constitution and once by refusing to uphold the state constitution.
This might raise the question among some observers as to whether Governor Mead was sincere when he took his oath of office to defend the state Constitution if he was unaware of its the equal protection clause and unaware that it did not have a Defense of Marriage amendment.
If the Attorney General is expected to uphold the Wyoming Constitution, then he should argue in favor of marriage equality because of the state Constitution's equal protection clause.
If the Attorney General is expected to uphold the U.S. Constitution, then he should argue in favor of marriage equality because of the federal Constitution's equal protection and due process clauses in its 14h Amendment.
Attorney General Peter Michael (R) may thus have to choose between twice violating his oath of office which also calls upon him to uphold the state and federal constitutions, or to be fired from the job. That is a terrible predicament in which to be placed.
Pete Gosar (D) who is running for Governor against Governor Mead (R) commented:
"Now that Governor Mead has been made aware that the Wyoming constitution does not define marriage, I hope that he will consider the 10th Circuit Court ruling when deciding whether to waste additional taxpayer resources by keeping the ban on (same-sex) marriage for all Wyoming families in place in the state. 2
Jeran Artery of Wyoming Equality said:
"I wonder what Matt (Shepard) would think if he were alive today to see all this progress we’ve made in Wyoming and how hearts and minds have changed. I would really hope that if I could have a conversation with him that he would say, ‘Job well done. You are changing Wyoming and it makes me proud'."
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
Ryan Gorman, "Idaho and Wyoming refuse to recognize same-sex marriages despite court rulings," AOL, 2014-OCT-08, at: http://www.aol.com/
Gregory Nickerson, "Wyoming’s stalemate on same-sex marriage may break this week," WyoFile, 2014-OCT-14, at: http://wyofile.com/
Copyright © 2014 by Ontario Consultants on
Originally published: 2014-OCT-16
Last updated 2014-OCT-22
Author: Bruce A Robinson