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  1. #1
    Virginia Is for Lovers Alnitak's Avatar
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    Idaho Marriage Ban Declared Unconstitutional

    US District Judge Candy Dale stuck down Idaho's ban on same sex marriage. This is the first such decision from a George W Bush appointee.

    According to the ruling, the injunction will take effect Friday, May 16 at 9:00 a.m.

    http://www.freedomtomarry.org/page/-...tterRuling.pdf

    Quotes to follow...

    Idaho will be the 21st state to issue licenses, and the 24th to have its ban thrown out.
    Last edited by Alnitak; May 13th, 2014 at 05:04 PM.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    It was a nice read, but longer than usual. These are some of the best quotes.

    The opinion begins with a quote from Justice Blackmun whom wrote the decision in Roe v. Wade

    "It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority.

    — The Honorable Harry Blackmun"

    "This conclusion reaffirms a longstanding maxim underlying our system of government—a state’s broad authority to regulate matters of state concern does not include the power to violate an individual’s protected constitutional rights." p. 3

    Much of the ruling describes the six plaintiffs. Here is one that demonstrates Judge Dale's empathy and understanding.

    "Demeaned but undeterred by this experience, the couple [Sheila Robertson and Andrea Altmayer] wishes to be married “so that other people understand that we are a family, in a permanent life-long relationship.” p. 11

    "The Supreme Court also has recognized that the liberty guaranteed by the Fourteenth Amendment extends beyond the Bill of Rights to “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.” p.20

    “'The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men' and women. Loving v. Virginia (1967)." p. 21

    "Although marriage is not mentioned in the Bill of Rights, the Supreme Court has uniformly treated marriage as an established fundamental right." p. 22

    "[The defendants'] “new right” argument attempts to narrowly parse a right that the Supreme Court has framed in remarkably broad terms." p. 25

    "If every individual enjoys a constitutional right to marry, what is the substance of that right for gay or lesbian individuals who cannot marry their partners of choice?" p. 26

    "Just as the Ninth Circuit was “bound by [Windsor’s] controlling, higher authority” when deciding SmithKline, this Court is bound to apply Windsor’s heightened scrutiny to Idaho’s Marriage Laws." p. 35

    "Had the Supreme Court disagreed with the Second Circuit [in Windsor], it would not have applied heightened scrutiny." p. 36

    "The Laws’ legislative history makes their exclusionary purpose even clearer. Idaho Code Sections 32-201 and 32-209 were both amended in the mid-1990’s, at a time when no state recognized same-sex marriage." p. 38

    "...it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation." p. 42


    "‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.' Lawrence (Scalia, J., dissenting).

    Although the Court finds Idaho’s Marriage Laws were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor. " p. 42


    "... the link between the interest in protecting children and Idaho’s Marriage Laws is so attenuated that it is not rational, let alone exceedingly persuasive." p. 43

    "... it bears repeating that the “[a]ncient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe (1993)." p.44

    "...the value of marriage derives from a place beyond the law’s reach." p.46

    "There is no evidence that allowing same-sex marriages will have any effect on when, how, or why opposite-sex couples choose to marry." p.46


    "No heterosexual couple would be denied the right to marry for failure to demonstrate the intent to procreate.

    ...

    To claim that civil marriage is somehow tied to a governmental interest in procreation is to 'threaten the legitimacy of marriages involving post-menopausal women, infertile individuals, an individuals who choose to refrain from procreating.' Bostic v. Rainey (2014)" p.46

    "everyone from multiple divorcees, “dead-beat dads,” ... to prison inmates ... may marry as long as they marry someone of the opposite sex. Yet Plaintiffs—six of whom have children or step-children—are deemed unworthy of marital benefits because they might be less fit parents according to an inconclusive body of scientific literature." pp. 46-47


    "Idaho’s Marriage Laws fail to advance the State’s interest because they withhold legal, financial, and social benefits from the very group they purportedly protect—children." p. 48

    "Even in rational basis cases, the Supreme Court has rejected the argument that cost-cutting is a sufficient reason for denying benefits to a discrete group." p. 49

    "...the dispositive principle in this case is that “fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” W. Va. Bd. of Educ. v. Barnette(1943)." p. 54

    "... 10 federal courts across the country have in recent months reached similar conclusions on the very issues present in this case." p. 55

    "'[T]he history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded.' United States v. Virginia, 518 U.S. 515, 557 (1996)." p. 56

  3. #3
    Virginia Is for Lovers Alnitak's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    I have been corrected that Judge Dale is a magistrate judge appointed by the court, not Bush. Thus we are still without an opinion from one of his appointees.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Idaho governor C. L. Otter filed for a stay of the decision on Monday, even before any decision was made.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    About halfway through reading the decision, I started wondering if the "place of celebration" rule would apply to marriages contracted in Muslim countries between adult males and little girls. That would be a scary thought!

    Then when the matter of tradition was addressed, I found myself humming the song of that name from Fiddler on the Roof....

    Aside from that, it was an enjoyable read. I liked the thoroughness especially -- no stone unturned.

    My favorite line:

    ...the value of marriage derives from a place beyond the law’s reach.
    Last edited by Kulindahr; May 13th, 2014 at 08:45 PM.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    It is a large forest of trees that still must be felled...but as each one is cleared....there is more sun shining on us.
    Last edited by rareboy; May 14th, 2014 at 02:51 AM.

  7. #7

    Re: Idaho Marriage Ban Declared Unconstitutional

    I do not know what it is going to take to get the Supreme Court to make a definitive ruling that shuts down this campaign of Catholics, Baptist, Methodists and Mormons to finally back off and allow the marriage of adults to be decided by the people who want to get married. I know how the Civil Rights leaders of another era felt with this constant one step forward and two steps back. Perhaps America needs "Jim Crow" laws on the books so we can discriminate against the next group that tries to use our water fountains. I am disgusted at the leaders across the board who continue to drag their feet fighting common sense and reasonable laws. It is a travesty that the U.S. continues to embrace Putin's Russian code of morality and the sharia of backward nations.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Yeah, you do realize tromploeil that U.S. law is how we are making progress - that's like the opposite of embracing Putin's "code" whatever that might be and Sharia law.

    While you may be disgusted with the fundie wing-nuts, let's not bitch about a system that seems to be giving us everything we ask of it.
    ATTACK OF THE LIBERAL ELITE

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Great article on Idaho getting ready for the start of marriage equality at 9 a.m. tomorrow morning local time.

    Gay couples, county clerks prepare for Friday marriages in Idaho

    [Ada County Clerk Chris] Rich is not sure how many gay couples to expect Friday, so he's bringing in six additional staffers. "We are going to put all our resources out there," he said.

    Canyon County Clerk Chris Yamamoto is also preparing for a busy Friday. "We will be open for business and we will handle business," he said.
    Idaho's county clerks will get a crash course Thursday on how to comply with Judge Dale's ruling via an online training session, said Idaho Association of Counties Executive Director Dan Chadwick.

    He said he is not aware of any county clerk who intends to defy the judge's ruling and refuse to grant the licenses.

    "Some have asked what would happen if they don't comply. I told them, 'The court's injunction will be the law of the state. You took an oath to uphold the laws. That is your legal and ethical obligation because you were elected as a clerk. What you do personally is entirely up to you,' " he said.
    The article also notes that Idaho imposes a fine and up to six months for misdemeanors.
    Last edited by Alnitak; May 15th, 2014 at 11:57 AM.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by tromploeil View Post
    I do not know what it is going to take to get the Supreme Court to make a definitive ruling that shuts down this campaign of Catholics, Baptist, Methodists and Mormons to finally back off and allow the marriage of adults to be decided by the people who want to get married. I know how the Civil Rights leaders of another era felt with this constant one step forward and two steps back. Perhaps America needs "Jim Crow" laws on the books so we can discriminate against the next group that tries to use our water fountains. I am disgusted at the leaders across the board who continue to drag their feet fighting common sense and reasonable laws. It is a travesty that the U.S. continues to embrace Putin's Russian code of morality and the sharia of backward nations.
    I think the suit challenging the bans as a violation of religious liberty will have a big impact. That should have been done long ago, but at least someone has finally done it.

    Freedom of religion is BIG in the US. When serious churches, not just fringe groups, insist that their religious liberties are being violated, that has to sway a lot of people. My guess is it's sufficient to get a 7-2 ruling from SCOTUS, because it would let a couple of justices act/vote to uphold religious liberty while being able to not even have to address the Fourteenth Amendment issues.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Bad news

    The ruling has been temporarily stayed by the 9th Circuit Court of Appeals.

    The appeals court judges — Judges Edward Leavy, Consuelo Callahan, and Andrew Hurwitz — issued a temporary stay until the 9th Circuit decides whether to issue a stay that will last throughout the state’s appeal.

    No Friday Same-Sex Marriages In Idaho
    Judge Leavy is a Reagan appointee on senior status, Callahan was appointed by GW, but considered a moderate, and Hurwitz by Obama.



    Federal appeals court puts Idaho gay marriage ruling on hold pending appeal

    The appellate court ruling puts a halt to plans for a “Party for Marriage Equality” scheduled for Friday morning at the Ada County Courthouse. Gay rights advocates were arranging the event.


    Several Idaho residents who a re ordained had offered to officiate weddings for free, and some photographers had offered free wedding photos to same-sex couples. Other residents pledged on social media sites to cover the $30 marriage license fee for gay and lesbian couples.
    Sad...
    Last edited by Alnitak; May 15th, 2014 at 01:16 PM.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Alnitak View Post
    Bad news

    The ruling has been temporarily stayed by the 9th Circuit Court of Appeals.



    Sad...
    I really didn't expect that from the Ninth. Do we know who the three-judge panel was?

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Kulindahr View Post
    I really didn't expect that from the Ninth. Do we know who the three-judge panel was?
    I edited their names in quickly. It won't be the same panel that hears the merits, if it ever gets that far. The 9th is still holding Sevcik, but it might schedule arguments soon after the en banc request in SmithKline expires.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Alnitak View Post
    I edited their names in quickly. It won't be the same panel that hears the merits, if it ever gets that far. The 9th is still holding Sevcik, but it might schedule arguments soon after the en banc request in SmithKline expires.
    Ah -- you fast man!


    I keep wishing we had a whole army of judges like the one that was killed in the barbaric attack on Giffords -- from what I read, he was an avid supporter of all individual rights, and didn't believe in putting things off with stays when it was obvious there was no chance for the 'bad guys' to win. Sad that I can't remember his name.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Kulindahr View Post
    Sad that I can't remember his name.
    John Roll [Wiki]

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    Re: Idaho Marriage Ban Declared Unconstitutional

    This is really surprising coming from the 9th.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by rareboy View Post
    This is really surprising coming from the 9th.
    We have to remember that getting an initial response from the Ninth is like playing the lottery -- everything depends on the panel drawn.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    The 9th would have to REALLY walk back their (temporary as it turned out) Walker decision, no?

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by JackinSea View Post
    The 9th would have to REALLY walk back their (temporary as it turned out) Walker decision, no?
    It would be a disaster for the 9th Circuit to reinstitute Proposition 8 and soon to be defunct Measure 36.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    I didn't mean re-instating Prop 8, but that as I recall their decision was pretty much a smackdown along the lines of the ID and AR judges?

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by JackinSea View Post
    I didn't mean re-instating Prop 8, but that as I recall their decision was pretty much a smackdown along the lines of the ID and AR judges?
    There is no guarantee it will be any of the same judges. There are 29 active judges. That's a lot.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Kulindahr View Post
    We have to remember that getting an initial response from the Ninth is like playing the lottery -- everything depends on the panel drawn.

    I understand that but once the 9th has issued a decision...and the Supreme Court has indicated the direction that they think the issue will take, one might expect that it would influence the future decisions by circuit courts.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by rareboy View Post
    I understand that but once the 9th has issued a decision...and the Supreme Court has indicated the direction that they think the issue will take, one might expect that it would influence the future decisions by circuit courts.
    Just in a point of pedantry, the federal appellate courts are styled "courts of appeals" for thirteen circuits. There was a circuit court system but it was abolished a century ago.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Alnitak View Post
    Just in a point of pedantry, the federal appellate courts are styled "courts of appeals" for thirteen circuits. There was a circuit court system but it was abolished a century ago.
    Because the SCOTUS justices got tired of traveling around to hear cases.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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    Re: Idaho Marriage Ban Declared Unconstitutional

    From the US Court of Appeals for the 9th Circuit

    • Permanent stay granted.
    • Expedited schedule granted.
    • Opening briefs due June 19, answer due July 18, and optional reply due two weeks after answer.
    • ORAL ARGUMENTS will be held the week of September 8


    Ordering judges are the same panel as before: LEAVY, CALLAHAN, and HURWITZ

    Judge Hurwitz offers a lengthy discussion on the abuse of staying these rulings, but professes the inability to do so because of the Supreme Court.

    via EQCF: http://www.scribd.com/doc/225351720/1-13-cv-00482-11
    Last edited by Alnitak; May 20th, 2014 at 05:02 PM.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Given that courts don't work (much) over the summer, this seems like a decent expedite of the case to me.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by JackinSea View Post
    Given that courts don't work (much) over the summer, this seems like a decent expedite of the case to me.
    Indeed, and it seems that the judges will decline the rehearing in SmithKline at their Thursday conference, hence the order for oral arguments. The August schedule has yet to be released, so that will be another month. If Sevcik is still delayed any further, they might even be heard by the same panel.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Interesting letter to the editor of Talking Points Memo from an Idaho resident:

    http://talkingpointsmemo.com/edblog/...ality-in-idaho


    The writer points out that Idaho will soon be forced by the federal government to allow same-sex marriages. But, even after that happens, it will still be legal there for employers to fire same sex couples for marrying, or for landlords to evict same-sex couples because they have chosen to marry. Married same-sex couples in Idaho will not be allowed to file joint state income taxes, as can their heterosexual counterparts. In other words, Idaho may be forced to grant marriage licenses to same sex couples, but the state will not necessarily accord to gay marriages the same rights as straight marriages.

    Seven cities in Idaho currently have anti-discrimination ordinances which would protect gays against such abuse. But, the Republican Party in Idaho has added to its platform the removal, at the state level, of any local protections of gays from discrimination. In other words, Republicans are seeking to invite discrimination against homosexuals everywhere in Idaho as a matter of public policy. Republicans are implying that discrimination against married same-sex couples in Idaho is particularly desirable. They are doing this, apparently, in part as an act of defiance against the federal government for "interfering" in the state's licensing of marriage.

    In short, Idaho's message to gay people will be "we can't stop you from getting married, but you can still be fired or kicked out of your apartment for doing it."
    The writer also points out that this situation is not unique to Idaho. He expects it to become a routine means of resisting gay marriage rights in "red" states.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Good luck to them on that.

    I hope they do, because the Supreme Court can then sweep away all the discriminatory laws against homos once and for all.

    Time to clean this rancid mess up across the USA.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by T-Rexx View Post
    The writer also points out that this situation is not unique to Idaho. He expects it to become a routine means of resisting gay marriage rights in "red" states.
    They will spend millions of dollars on civil rights lawsuits and eternal damnation in history. No state can flout the 14th Amendment against any class but for the most compelling reasons, and the Supreme Court decided a long time ago that saving money is NOT a good enough reason.

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    Re: Idaho Marriage Ban Declared Unconstitutional

    These reactionaries bring to mind a group of grade school kids valiantly working to keep their sand castle intact against the incoming tide.

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

  32. #32
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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by Kulindahr View Post
    These reactionaries bring to mind a group of grade school kids valiantly working to keep their sand castle intact against the incoming tide.
    Segregation now! Segregation forever!

  33. #33
    JUB Addict T-Rexx's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    I just discovered that Alnitak did a thread on Jim Crow-style anti-gay laws while I was gone:

    http://www.justusboys.com/forum/thre...ail-Nationwide

    Some day, I'm going to beat that guy at something.

  34. #34
    Virginia Is for Lovers Alnitak's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by T-Rexx View Post
    I just discovered that Alnitak did a thread on Jim Crow-style anti-gay laws while I was gone:

    http://www.justusboys.com/forum/thre...ail-Nationwide

    Some day, I'm going to beat that guy at something.
    Lots of topics out there.

    We haven't discussed discrimination in a long while. Local efforts are still going on throughout the country and expanding protection at a somewhat quieter pace than marriage.

  35. #35
    JUB Addict T-Rexx's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    The point is that Idaho (and other red states) may try to use Jim Crow-style laws to limit the rights of gay marriage.

    I can't imagine that they will get very far with that, but I would not be very surprised to see them try.

  36. #36
    Virginia Is for Lovers Alnitak's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by T-Rexx View Post
    The point is that Idaho (and other red states) may try to use Jim Crow-style laws to limit the rights of gay marriage.

    I can't imagine that they will get very far with that, but I would not be very surprised to see them try.
    They won't get far, and if they try they will spend a fortune defending against litigation.

    Already Lehigh County in Pennsylvania is being sued for resisting equal health benefits. The county will probably relent quite soon.

    http://www.lehighvalleylive.com/alle...e_sues_ov.html
    Last edited by Alnitak; May 22nd, 2014 at 11:22 AM.

  37. #37
    JUB Addict Ninja108's Avatar
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    Re: Idaho Marriage Ban Declared Unconstitutional

    Quote Originally Posted by T-Rexx View Post
    The point is that Idaho (and other red states) may try to use Jim Crow-style laws to limit the rights of gay marriage.

    I can't imagine that they will get very far with that, but I would not be very surprised to see them try.
    You can be sure they'll try. The bigots have done in places like Vermont and New York so you know they'll do it in Red States.

  38. #38
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    Re: Idaho Marriage Ban Declared Unconstitutional

    Being an extraordinary issue, Governor Butch Otter has asked for an initial en banc hearing for the week of September 8 instead of the normal three judge panel.

    There is also a nice table of ongoing cases in Appendix 1 at the end of the motion.

    http://www.scribd.com/doc/227257326/14-35420-16

  39. #39
    Bammer's Papa
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    Re: Idaho Marriage Ban Declared Unconstitutional

    ^
    WTF is this?:

    legal suppression of the man-woman marriage institution
    Where has anyone asked that man-woman marriage be suppressed?

    "Thirty-one* states allow all qualified citizens to carry concealed weapons. In those states, homosexuals should embark on organized efforts to become comfortable with guns, learn to use them safely and carry them. They should set up Pink Pistols task forces, sponsor shooting courses and help homosexuals get licensed to carry. And they should do it in a way that gets as much publicity as possible. "

    --Jonathan Rauch, Salon Magazine, March 13, 2000

    *the number is now forty

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