Supreme Court Justices Antonin Scalia and Clarence Thomas
Supporters of gay marriage have been on a roll: In the past year, federal courts across the country have nullified same-sex marriage bans in more than a dozen states.
Yet these victories are complicated by the lack of a national legal standard on gay marriage: For now, it remains a state-level question. But that could change if the US Supreme Court steps in. Last week, the high court announced that it will review a package of seven gay-marriage cases from five states in late September when it chooses which cases to consider in their 2014-2015 term.
Legal experts say it's likely that the court will hear at least one of the cases. "I think they're going to take a case," says Dale Carpenter, a professor of civil liberties law at the University of Minnesota law school. "The only question is which one. They know whichever they take, it's going to be momentous."
This cluster of cases centers on two key questions: All seven ask SCOTUS to consider whether a state law limiting marriage to a union between a man and a woman violates the 14th Amendment. Six of the seven cases also raise the question of whether states must recognize same-sex marriages performed in other states.
"I think they're going to take a case. They know whichever they take, it's going to be momentous."
The Supreme Court ruled on two landmark gay marriage cases in 2013: Hollingsworth v. Perry, which overturned California's Proposition 8, and US v. Windsor, which invalidated the Defense of Marriage Act. But neither weighed in on the constitutionality of same-sex marriage bans, leaving the choice to allow gay marriage up to each individual state. If the court takes one of these new cases, it's likely that its decision will have a broad and more definitive impact. "Should they decide that the 14th Amendment actually protects the rights of same-sex marriage, that would have the effect of being binding on the federal government," says Jane Schacter, a professor at Stanford Law School.
The cases before the court involve the 14th Amendment's guarantees to equal protection under law and due process. If the high court rules that it is a violation of either promise for one state to deny a marriage license to a same sex couple, then it would become unconstitutional for any state to do so. Any state that failed to comply with the ruling, Carpenter elaborates, "would face immediate lawsuits—a complete waste of time and money."
It's anyone's guess which case (or cases) SCOTUS may choose. The justices will choose between three Virginia cases, and one each from Utah, Indiana, Oklahoma, and Wisconsin. Ted Olson and David Boies, the attorneys on one of the Virginia cases, successfully argued Hollingsworth v. Perry last year. The attorney on one of the other Virginia cases is Paul Smith, who has argued multiple cases before SCOTUS, including Lawrence v. Texas in 2003, which struck down state sodomy laws. Carpenter says that the cases from Utah, Indiana, or Wisconsin might prove the most comprehensive choices for the court. "Utah, Indiana, and Wisconsin involve the marriage issue and the recognition issue and the state attorney generals are fully defending those laws. You have all the elements together in those cases," he says. "The Supreme Court might want to just take a very clean case in which you've got the state squarely taking the position and defending its law."
The Supreme Court could take multiple cases or all of them. It could also consolidate cases, something the court has done in the past with hot-button issues. (For example, 1954's landmark Brown v. Boardof Education combined six desegregation cases.) "All these plaintiffs want to be the chosen one," says Schacter. "But it wouldn't surprise me at all if they take more than one case."
Here's a closer look at all seven cases being considered by the court, and what's at stake in each:
1. Herbert v. Kitchen (Utah): SCOTUS briefly dealt with this case earlier this year. In December 2013, a federal district court struck down Utah's ban on same-sex marriage. Weddings began immediately. In January, the high court issued a temporary stay, putting a halt to marriages while the state's appeal was considered. In June, the 10th Circuit Court of Appeals upheld the lower court's ruling that the state's same-sex marriage ban was unconstitutional.
2. Smith v. Bishop (Oklahoma): First filed in 2004, this case originally sought both to overturn Oklahoma's ban on same-sex marriages and to recognize marriages performed in other jurisdictions. In January, a district court judge ruled that the state's ban is unconstitutional, but dismissed the portion of the lawsuit addressing marriages from other states, ruling that the plaintiffs lacked standing. Both sides appealed to the 10th Circuit Court of Appeals, which affirmed the district court on both counts. In its appeal to SCOTUS, the state of Oklahoma is asking the court to rule exclusively on the marriage question.
3. Bogan v. Baskin(Indiana):This case began as three separate suits filed on behalf of a widow and 11 couples. Several plaintiffs have same-sex marriage licenses from other states that are unrecognized in Indiana. In June, a district court judge consolidated the suits into Baskin, and struck down the state's ban on gay marriage. He did not stay the decision, allowing marriage licenses to be issued immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court's decision.
4. Walker v. Wolf (Wisconsin): In February, the American Civil Liberties Union filed this case on behalf of eight same-sex couples, three of whom had married in other places. In March, a district court judge denied the state's requests to dismiss the case. In June she ruled in favor of the plaintiffs, overturning Wisconsin's ban on same-sex marriage. Her ruling was unclear on whether marriages could begin or not: Still, clerks in some cities began marrying couples immediately. Earlier this month, the 7th Circuit Court of Appeals upheld the lower court's decision.
5, 6, and 7. Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (Virginia): These three cases are different iterations of a suit filed in July 2013 by plaintiffs Timothy Bostic and Tony London, who seek to get married in Virginia. Carol Schall and Mary Townley joined the case in September 2013. They were legally married in California in 2008, but their union is not recognized in the Old Dominion. This has made it impossible for Schall to formally adopt her own daughter. In February, a district court judge ruled on all three cases, concluding that the state's laws barring in-state gay marriages and prohibiting recognition of out-of-state marriage licenses is unconstitutional. In July, the 4th Circuit Court of Appeals affirmed the lower court's ruling. A fourth case, Harris v. Rainey, a class action suit, has been incorporated into Rainey v. Bostic.
World Congress of Families ally Vladimir Yakunin (right) meets with Vladimir Putin at the Russian president's official residence outside Moscow.
This Wednesday, activists from around the world will gather in Moscow for a conference titled "Large Families: The Future of Humanity." The gathering in the Russian capital will focus on defending "the way of life of large families" and includes workshops on topics such as the "natural family" and the role of media in promoting "the values of a traditional family."
Originally, the World Congress of Families had scheduled a similarly titled conference, "Every Child A Gift: Large Families, the Future of Humanity," to take place in Moscow this week. The Illinois-based WCF, as I have reported previously, has promoted anti-gay and anti-abortion policies around the globe, perhaps most actively and successfully in Russia. WCF has helped host at least five major gatherings in Russia since 2010, providing venues for American evangelicals to present their ideas to Russian legislators, religious leaders, and activists.
Yet in July, after the United States and the European Union leveled economic sanctions against Russia in response to its incursions into Ukraine, WCF canceled its Moscow confab, citing "uncertainties" due to the new rules and the "possible liability arising therefrom." These were legitimate concerns: Two of the WCF's key Russian allies had been placed on a list of individuals sanctioned by the Treasury Department, making conference planning complicated, and possibly forbidden.
When Mother Jones contacted WCF, Jacob and Feder were still on the list of organizers with the sanctioned Mizulina. Two days later, the list disappeared.
However, the upcoming Large Families conference looks a lot like a barely rebranded version of the original WCF event. Beyond its nearly identical title, the new conference will take place in the same location, on the same dates, and with a similar schedule, according to research by the Human Rights Campaign. This week's event also advertised some of the same organizers as the scrubbed meeting: WCF managing director Larry Jacobs and WCF communications director Don Feder were listed on the forum's seven-member organizing committee.
As of last Friday, when Mother Jones asked WCF for comment, Jacob and Feder were still on the list of organizers. By Sunday, the committee list had disappeared from both the English and Russian versions of the website of the Istoki Fund, an endowment run by Vladimir Yakunin, a close adviser to President Vladimir Putin who codirects several of the conference's sponsoring organizations. The original page, including the committee list, is archived here. A copy of the original press release on the site of another Yakunin-affiliated conference sponsor has also vanished. (Here's the Russian original.)
Also on the committee list was Elena Mizulina. In March 2014, the Treasury Department's Office of Foreign Assets and Control (OFAC) sanctioned several dozen top Russian government officials including Mizulina, a member of parliament, and Yakunin.
Both Mizulina and Yakunin are among WCF's heartiest supporters. Mizulina sponsored both pieces of anti-gay legislation that caused international uproar in the run-up to the Sochi Winter Olympics in February. WCF has expressed support for these laws. She has met repeatedly with Jacobs, has attended a number of WCF's Russian events, and has invited a WCF planning committee member to speak before Duma members about anti-gay policies.
The billionaire Yakunin helped pay for the 2011 Moscow Demographic Summit, the WCF's first major conference in Russia. Last spring, he launched Istoki, a fund that backs three charities—two co-run by him, and a third headed by his wife, Natalia. All three organizations have ties to WCF's work in Russia. Three of the Large Families conference's five sponsors are affiliated with Yakunin: the Sanctity of Motherhood Foundation, the Center for National Glory, and St. Andrew the First-Called Foundation. The latter two are run by Yakunin and all three are funded by Yakunin's Istoki fund.
Yakunin and Mizulina are currently on OFAC's Specially Designated Nationals and Blocked Persons list. Once someone is on the list, American citizens and businesses "are generally prohibited from dealing with them," according to OFAC, which administers economic and trade sanctions. Sanction rules hinge on what counts as "dealing" with an SDN, which isn't clearly defined. "If a US individual or entity wanted to deal with a sanctioned entity on the SDN list, we would encourage them to reach out to OFAC for guidance on a case-by-case basis," a Treasury spokeswoman told Mother Jones. "Generally what is prohibited are 'dealings' with SDNs. Doing business or doing transactions—all of that is covered in the regulations. But dealings is a general term." She said that the agency does not comment on specific cases.
"If this were my client, I would advise them to pull out of the joint planning committee immediately," says an expert on international sanctions.
"The Office of Foreign Assets and Control has incredible discretion, so we always urge caution when interpreting these types of terms," says Eric Lorber, an associate attorney at Gibson, Dunn & Crutcher who has written extensively on international sanctions.
Lorber says it's not possible to determine whether WCF is in violation of the sanctions without full knowledge of what exactly Jacobs and Feder are doing to assist Mizulina and Yakunin and what benefits, financial or otherwise, WCF or the Russians may be receiving. "What they are doing is extremely risky," he writes in an email. "It depends on the specifics of the circumstances, but there definitely are possible routes for those folks to violate US sanctions on the SDNs." He concludes, "If this were my client, I would advise them to pull out of the joint planning committee immediately."
In an email to Mother Jones, WCF managing director Larry Jacobs distanced WCF from the Moscow conference:
Some World Congress of Families personnel plan on attending the conference and supporting our Russian civil society friends who are working to protect the unborn child and the natural family. Though some of us will be present, as was agreed by the International Planning Committee many months ago, the WCF is not financially supporting the conference in Moscow this week and we have not lent our name to what should be a very interesting conference.
In another statement sent to Mother Jones, Jacobs wrote that "WCF Communications Director Don Feder and I will be there to attend and speak as individuals and not as representatives of the World Congress of Families."
However, Jacobs and WCF did not respond to questions about his or Feder's apparent participation in the organizing committee. They also did not respond to requests for clarification on what sort of interactions Jacobs or Feder may have had with Mizulina or Yakunin. They also did not answer questions about whether they have asked OFAC for guidance on obeying the sanctions.
Jacobs also denied WCF involvement in next week's conference in an email to BuzzFeed. "It's NOT a World Congress of Families event and any one who calls it that is wrong, mis-informed or lying," he wrote. WCF's June newsletter, which announced the new Moscow conference, also said that "these events are being held independent of World Congress of Families." Yet one of the Russian organizers, Alexey Komov, implied the opposite in a July interview with the Russian newspaper Nezavisimaya Gazeta, saying that the conference is being organized "with the participation of…the World Congress of Families."
Interacting with the conference's cosponsors, particularly Yakunin's foundations and the endowment fund that supports them, isn't necessarily prohibited by sanctions. It depends on whether Yakunin maintains 50 percent ownership of any of the groups, as well as several other factors, explains Lorber. "Merely dealing with the entities that are run by an SDN…wouldn't be a problem," he notes. "However, if, in the course of those dealings, the WCF employees had any dealings with Yakunin (such as having him participate in negotiations or exchanging anything of value with him), that activity would be sanctionable."
WCF will not have to contend with diplomatic intrigue and sanctions as it plans its next international meeting. Shortly after canceling its event in Moscow, it announced that its 2015 international conference will be held in Salt Lake City. In his email, Jacobs clarifies that just as the WCF's work in other countries isn't an endorsement of their governments, "our presence there should not be construed as supporting all of the policies of the Obama Administration."
Update (10/14/2014): This afternoon, the Supreme Court blocked a ruling from the US Court of Appeals for the Fifth Circuit that had shuttered most of Texas' abortion clinics. Thirteen clinics in the state will be able to reopen tomorrow, according to the New York Times.
On October 2, the Fifth Circuit overturned a Texas district court ruling from August that had blocked the ambulatory surgical center provision of HB2—arguably the most onerous for abortion clinics—from kicking in on September 1, 2014. The appeals court decision left just eight clinics open in the state, all in metro areas, leaving nearly a million women more than 150 miles from their nearest clinic.
Today's Supreme Court's order blocked portions of the Fifth Circuit's ruling that upheld HB 2's surgical center provision, as well as the requirement that doctors performing abortions at McAllen and El Paso clinics must have admitting privileges at a nearby hospital.
Update (8/29/14): Judge Lee Yeakel of the US District Court in Austin blocked a key provision of HB 2 today. This portion of the law, which required abortion clinics to meet the standards of hospital-like ambulatory surgical centers, was set to go into effect Monday, September 1.
The state of Texas has already announced it will appeal Judge Yeakel's decision to the US Court of Appeals for the Fifth Circuit in New Orleans. This past March, the Fifth Circuit upheld a different provision of HB 2, reversing a block on the rule also issued by Yeakel.
At the new Planned Parenthood clinic in Dallas earlier this month, exam rooms were stocked, desks, chairs, and computers were installed, and even a few phones had started to ring. Construction workers came in and out, and the waiting room stood empty, save for a corner stack of moving boxes.
"We're just waiting for furniture," said Kelly Hart, senior director of government relations for Planned Parenthood of Greater Texas, while giving a tour of the clinic, which opened to patients two weeks ago.
This facility, a preexisting ambulatory surgical center that Planned Parenthood purchased and refurbished, will cost the organization $6.1 million. It's an unexpected bill they've spent months fundraising to cover, because a year ago, Planned Parenthood had no plans for a new Dallas facility: A different clinic already provided safe, legal abortions and vasectomies to patients.
"It was working just fine," says Hart.
But come next week, abortions can no longer legally be performed at that old facility thanks to HB 2, the omnibus abortion bill that made national headlines last summer after Texas Sen. Wendy Davis' 11-hour filibuster. The law requires that abortions—though not vasectomies—be performed in ambulatory surgical centers, hospital-like facilities that specialize in outpatient surgery. This provision goes into effect on September 1.
Ahead of this deadline, women's health care providers have raced to meet HB 2's burdensome requirements, spending millions of dollars and countless hours of fundraising and construction labor. Converting a medical facility into a full-blown ambulatory surgical facility can be very expensive. Texas has 114 pages of regulations governing ASCs, which mandate wide, gurney-accommodating hallways, larger operating rooms, and sterile ventilation. According to one Texas provider, it will cost them about $40,000 more each month to operate an ASC than it would a regular clinic.
In the face of the law's requirements, all but eight abortion clinics in the state will close by September 1. Many were forced to lock their doors earlier this year as other HB 2 provisions went into effect, including a rule that required doctors to have admitting privileges at a hospital within 30 miles of where they perform abortions by the end of October 2013.
While supporters of HB 2 argue that the ASC requirements are vital for women's health and safety, medical groups, including the American College of Obstetricians and Gynecologists, have repeatedlynoted that typical doctor's offices are fully able to perform medically safe abortions, and that ASCs do little to enhance the standard of care. (Texas has required that second-trimester abortions take place in ASCs since 2003.)
Come September 1, about 750,000 Texas women will live 200 or more miles from the nearest abortion provider. There were only 10,000 women in that situation just a year ago.
Black residents of Ferguson, Missouri, the working-class city in northern St. Louis county where an unarmed black teenager was shot dead by police officers on Saturday, say the town has been a "powder keg" of racial imbalance for decades. "They treat us like second class all the way down the line," one black resident told the LA Times. A black city alderman said the ensuing protests are "a boiling over of tensions that had been going on for a long while."
Here's a by-the-numbers look at who lives in Ferguson, who's in charge, who gets stopped by police, and more.
A body is moved from the scene of a domestic mass shooting in Maine.
In Saco, Maine on Saturday night, 33-year-old Joel Smith used a pump-action shotgun to kill his 35-year-old wife, Heather Smith, his 12-year-old stepson, and the couple's two biological children, a 7-year-old boy and a 4-year-old girl, before turning the gun on himself. The horrific scene was discovered on Sunday morning after a concerned family friend called the apartment complex where the Smith family lived and asked a maintenance worker to check on them. In a statement to the media, a Maine State Police official called the mass shooting "one of the worst cases of domestic violence in Maine's history."
A photo of Heather Smith, left, and her sons from one of her Facebook albums Facebook
The night before the shooting, Heather Smith told a friend that her husband had threatened suicide earlier in the week, pointing a gun to his head, according to the Portland Press Herald. Joel Smith's mother, Jerys Thorpe, told the Herald that she'd long been trying to get her son to see a therapist for his depression. "His mind was just gone, he had to be," she said, regarding the murder-suicide. Research shows a strong correlation between suicidal thoughts and deadly domestic violence. As Maine Attorney General Janet Mills put it in a statement on Monday: "Recognizing the signs of abuse—and acting upon them—is key to preventing future tragedies like this."
Police investigators also said that the couple had been struggling with "domestic issues," including financial problems, but that they were aware of no protective court orders or history of abuse regarding the couple, who moved to Maine from Arizona about three years ago. But even if there had been such a history with the legal system, it's likely that Smith still would have been able to possess a gun, because state and federal laws generally do a poor job of keeping firearms out of the hands of domestic abusers. Most state laws overlook various groups of men who potentially pose a threat, including misdemeanant stalkers, abusive dating partners, and subjects of temporary restraining orders. And Maine is no exception—its laws are among the more lax, as this chart shows:
Moreover, data suggests that states with weaker gun laws regarding domestic abusers see more murders among intimate partners involving guns.
Three federal bills aimed at addressing these problems—opposed by the National Rifle Association—are currently stalled in Congress. But a handful of states have passed tougher laws this year, in part due to lobbying by groups such as Everytown for Gun Safety, and the issue may now be rising on Washington's radar: On Wednesday, the Senate Judiciary Committee holds its first-ever hearing on domestic violence and guns.