When I started law school in 1978, a gay law graduate’s legal right to admission to the bar was recognized in just two states – New York, fortunately for me, being one of them. In 48 states and the District of Columbia, it was still at least theoretically possible to deny bar admission to lesbians and gay men on the ground that homosexuality demonstrated lack of “good moral character,” one of the criteria for admission.
Indeed at that time, only the District of Columbia had a law on the books prohibiting employment discrimination against gay people. (Pennsylvania prohibited anti-gay discrimination only in state employment.) So even once a gay law student graduated and was admitted to the bar, she generally had no legal right to actually get a job.
Furthermore, being gay meant in those days that a person was likely to be a criminal, because gay sex in those days was a crime in almost every state, including New York. For my first summer internship, in 1979, I worked for the Lambda Legal Defense & Education Fund, a gay rights organization then led by a lawyer named Margot Karle. One of the cases I worked on that summer was People v. Onofre.
Ronald Onofre had a relationship with another man. At some point, the other man decided that sex with men was wrong, but that his involvement with Mr. Onofre could be excused if he hadn’t consented. He submitted a rape complaint to the police, and Mr. Onofre was arrested.
As luck would have it, the couple had taken some photographs of themselves. I personally never saw the photos, but, as Ms. Karle put it, the photos left no doubt that the relationship had been consensual. (I’ve always imagined it was the smiles on their faces.) But instead of charging the complainer with perjury or filing a false complaint, the police charged Mr. Onofre with consensual sodomy, which was then a crime under section 130.38 of New York state’s penal law.
Mr. Onofre challenged the constitutionality of that law. He lost in the Onondaga County trial court, and it was his appeal that I worked on in the summer of 1979. Mr. Onofre won his appeal, and he also won the prosecution’s further appeal to New York’s top court, the Court of Appeals, in 1980.
As it happens, my legal career took me to the New York state attorney general’s office in the mid-1980s. I was assigned to a division that defended state agencies and officials in litigation. But prestige in the office came from the progressive, reform-minded litigation the office did under then-Attorney General Robert Abrams. So lawyers in my division were encouraged to keep a look-out for litigation ideas that would shed glory on our division’s managers.
In 1985, the U.S. Supreme Court agreed to decide whether private, consensual sodomy could constitutionally be criminalized. I proposed that Attorney General Abrams file a friend of the court brief on behalf of Michael Hardwick, a Georgia man who had been arrested in his own bedroom on charges of consensual sodomy, an offense then punishable under Georgia law by imprisonment for up to 20 years.
We wrote and submitted our brief, but in a 5 – 4 decision issued 29 years ago next week, Justice Byron White rejected the assertion of a man’s constitutional right to engage in private, consensual sex with another man. Justice White called the claim “facetious.” To be “facetious” is to treat a serious subject with deliberately inappropriate humor – to be flippant. In other words, Justice White was saying that the claim of constitutional right was not even sincerely asserted; the whole case was a sick joke. That was in 1986.
I have noted that, especially with important social issues, the Supreme Court often gets it wrong before it gets it right. Not until 2003 did the Supreme Court get it right – in Lawrence v. Texas, when Justice Anthony Kennedy wrote a 6 – 3 decision finding the constitutional claim not only not “facetious,” but in fact correct. Justices Antonin Scalia, William Rehnquist, and Clarence Thomas bitterly dissented. It was very important to them that states retain the legal ability to throw gay people in jail for having sex in private.
By 2003, the question of same-sex marriage had developed into a serious national issue. In 1993, the Hawaii Supreme Court ruled that exclusion of same-sex couples from legal marriage could only be justified by “compelling evidence” under the judicial standard of “strict scrutiny.” The Court sent the case back to the trial court to determine whether the state had “compelling evidence” for could survive “strict scrutiny.”
The Hawaii Supreme Court did not then, and never did, find a legal right for same-sex couples to marry. But the mere possibility that it might sent anti-gay forces into national paroxysms, resulting in the infamous Defense of Marriage Act, passed by veto-proof majorities in both houses of Congress, and signed into law by President Bill Clinton in 1996. DOMA precluded the federal government from honoring any same-sex marriage, and authorized states to refuse to honor any same-sex marriage. Mini-DOMAs proliferated across the states in a panicked defense against the same-sex couples perceived to be facetiously massing at the gates.
When Justice Kennedy wrote the 6 – 3 majority opinion in Lawrence v. Texas, he had already written a pro-gay decision in Romer v. Evans. That case involved a provision in the Colorado constitution, adopted by popular referendum, that precluded municipalities from enacting any law that would give protection to gay people against discrimination. Justice Kennedy wrote for a 6 – 3 majority in that case, concluding that Colorado’s constitution uniquely burdened gay people’s ability to change the law through political activism, that the provision could have been motivated only “animus” toward gay people, and that a “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
The Romer v. Evans case was something of an outlier; the Colorado constitutional provision involved was so far out there that Justice Kennedy’s decision was not taken as an indication of any greater interest in the constitutional rights of gay people. But when Justice Kennedy – a lifelong Republican and a Ronald Reagan appointee – wrote the majority decision in Lawrence v. Texas, attention was paid.
At that point the path to constitutional recognition of same-sex marriage started to become clear, and Justice Kennedy was the North Star by which the path was navigated. Challenges to DOMA were argued in terms intended to appeal to Justice Kennedy’s rationale in Romer: that uniquely burdening the interests of gay people to obtain legal protections through political activity is constitutionally impermissible.
And sure enough, in 2013, Justice Kennedy wrote the decision by which the Supreme Court, 5 – 4, struck down the DOMA provision that barred the federal government from recognizing same-sex marriages. Justice Scalia famously predicted that constitutional recognition of same-sex marriage would soon and surely follow, and, of course, he was right. Just two years later, Justice Kennedy has written another 5 – 4 majority decision concluding that the United States Constitution precludes the states from excluding same-sex couples from legal marriage.
There was a certain logic to the Court deciding that private, consensual gay sex is constitutionally protected before deciding that same-sex marriage is constitutionally protected: it would be a little odd to say that a couple has a constitutional right to get married but not a constitutional right, as they used to say, to consummate the marriage. But even today, the federal government and 18 states have no laws precluding employment discrimination against gay people. Five more states have laws prohibiting anti-gay employment discrimination only in state employment. Only 17 states prohibit housing discrimination against gay people.
In the short span of my legal career, in just the last 37 years, gay people have made remarkable gains, and I think the rapid growth in popular acceptance of same-sex marriage stands as an excellent proxy measure of those gains.
But there remains work to do. Although we now enjoy a nationally recognized legal right to get married and have sex, in much of the country we have no legally recognized right to obtain housing or employment. We can count on conservatives to push hard to wall off the rights we have won, as they are doing with laws to allow public servants to deny marriage licenses to those whose marriages offend their religious sensibilities – that is, same-sex couples.
Yesterday’s victory was enormously important, but the battle is not yet won.
Charleston, South Carolina may never lose its association with slavery and rebellion. Antebellum South Carolina was the foremost advocate of nullification, and with a majority of its population enslaved to a minority, was perhaps the most economically dependent on slavery. South Carolina was the first to secede from the Union.
Charleston was one of the commercial and cultural capitals of the Old South. The Civil War began in Charleston, with the bombardment of Fort Sumter. Charleston, like South Carolina as a whole, remained at the forefront of segregation and racial oppression for nearly a century after reconstruction.
But something has happened in Charleston in recent decades, something many of us Northerners haven’t fully appreciated: Charleston has dramatically parted ways with the rest of its state.
After emancipation, many freed slaves fled the countryside for the relative protection of Charleston. Charleston’s population became as much as three-quarters black, and remained about half African-American until just a few decades ago. These demographics profoundly influenced Charleston’s politics in both pre-Civil Rights and post-Civil Rights eras: first the white minority ruthlessly suppressed African-American votes; more recently African-Americans became an essential voting bloc.
South Carolina was governed by Democrats from Reconstruction until 1975, when the state elected the first of five Republican governors. Charleston has not had a Republican mayor since Reconstruction. In other words, as Southern conservatives moved from the Democratic to the Republican party, Charlestonians moved from being conservative to being modern Democrats.
The current mayor of Charleston, Joseph Riley, Jr., took office in 1975. In the characterization of the New York Times, Riley “has been a singular political phenomenon, a white Southern progressive whose sympathy for black causes early in his career prompted conservative whites to derisively call him L.B.J., for Little Black Joe.” In 2000, Riley helped lead the protests against the display of the Confederate flag above the state capitol in Columbia. He joined New York Mayor Michael Bloomberg’s Mayors Against Illegal Guns.
Mayor Riley is credited with revival of the city’s economy, and Charleston is today culturally and politically all but unrecognizable from the point of view of its Civil War-era past. In 2006, while South Carolinians as a whole imposed a ban on same-sex marriage by a 56-point margin, a majority of Charlestonians opposed the ban. Today, although Charleston’s black population is down to about a quarter of the city, five of 12 City Council districts are represented by African-Americans. (By comparison, in New York City, which like Charleston is about 25 percent African-American, 11 of 51 City Council seats are held by African-Americans.)
After this week’s racist mass murder in Charleston’s Emanuel African Methodist Episcopal Church, Mayor Riley has been clear-eyed and resolute. While the right-wing has decided that the shooting was an attack on Christians and religious freedom, Riley has decried gun proliferation and worked for racial unity.
Jon Stewart was so disturbed by the attack that he devoted his customary introductory monologue to it, suspending comedy for the night. He referred to streets named for Confederate generals, and to the Confederate battle flag that still flies on the capitol grounds in Columbia, and he called them “racial wallpaper” – part of the American background that gains little explicit notice but subtly colors people’s moods.
We used to post signs that said things like “Whites only.” We got rid of those signs, but our national hallways are still wallpapered with Confederate flags and busts of Confederate generals, and the message remains the same: African-Americans need not apply; don’t even try; you do not belong. Daily life in America is rife with little messages that African-Americans do not belong. Those messages are part of American culture; they are our racial wallpaper.
Confederate nostalgia is a pretense. A Confederate flag bumper sticker certainly identifies the car’s owner as white; African-Americans do not frame portraits of Stonewall Jackson in their homes. Confederate nostalgia is a means to suppress African-Americans by denying them a sense of belonging and is therefore a means to preserve white supremacy – just as clearly as, if less violently than, the marauding terrorism of the Reconstruction era Ku Klux Klan.
This week’s mass murder of nine African-Americans by a white man who was given their courtly Southern hospitality is merely one more demonstration that America will not know peace until our walls are stripped clean of our racial wallpaper.
Media commentators are confused. On the one hand, they say, we’re on the same side as Iran fighting against ISIS in Iraq, but on the other hand, we’re on the other side from Iran opposing the Houthi rebellion in Yemen. The media confusion has been attributed to policy confusion in the White House.
But I think the Obama policy at work here is perfectly clear.
The Obama position on ISIS has been one of limited opposition – air attacks in Syria and Iraq, modest non-lethal support for the least objectionable Syrian rebels, and more expansive military support for the Iraqi government; but no combat troops on the ground. Our opposition to ISIS in Iraq derives from ISIS’s threat to the democratically elected Iraqi government – not because Iraqi democracy is well established, but on the contrary because Iraqi democracy is so fragile.
Iran also opposes ISIS, but that doesn’t make Iran our friend or ally. There is no reason to think that Iran is at all concerned about Iraqi democracy. Iran is concerned to retain Shiite rule in Iraq, and therefore the threat to Iraq from ultra-Sunni ISIS is a threat to Iranian interests. In other words, the U.S. opposes ISIS because they are terrorists, and Iran opposes ISIS because they are Sunni.
In Yemen, the circumstances are different but the principles are similar. Until 1990, Yemen was two separate countries: the Yemen Arab Republic, or North Yemen, and the People’s Democratic Republic of Yemen, or South Yemen. North Yemen was predominantly Shiite, and South Yemen was predominantly Sunni. The re-united country of Yemen is about 65 percent Sunni.
The president of North Yemen was Ali Abdulla Saleh, a Shi’a who became the president of united Yemen in 1990. He held onto rule until the Arab Spring – a Shi’a tyrant suppressing a Sunni majority by brutal force. In this respect Saleh was the mirror image of Saddam Hussein, a Sunni tyrant suppressing a Shiite majority in Iraq. Saleh’s ouster was one of the great victories of the Arab Spring.
Saleh left power in compliance with an internationally negotiated agreement. He was succeeded by his vice president, Abd Rabbuh Mansur Hadi, who is a south Yemeni Sunni. Hadi formed a national unity government with the opposition party, but Saleh retained influence – his son, for instance, remains a prominent general in the Yemeni military.
The Houthi rebellion originated in 1992 as a religious movement among northern Shiites. When Saleh attempted to crack down in 2004, the movement became an armed insurgency. The insurgency intensified after Hadi, a Sunni, took power in 2011. Only somewhat ironically, the Houthi insurgency is now allied with Saleh loyalists.
Obama Administration policy is to support the Hadi government and oppose the Houthi-Saleh rebellion. In recent weeks, Sunni governments from Morocco to Pakistan formed a military coalition to intervene on behalf of the Hadi government.
As with ISIS, our motivation is not necessarily the same as the motivation of the others fighting our common foe. The Sunni coalition is motivated to rescue the Sunni Hadi and protect the Sunni majority in Yemen from Shiite Houthi rule. Conversely, Iranian support for the Houthi is motivated by Iran’s desire to promote Shiite power. President Obama is motivated to protect the more legitimate, less brutal and more democratically inclined Hadi government from restoration of the Saleh tyranny.
As with our opposition to ISIS, our opposition to the Houthi-Saleh alliance is limited – mainly drone strikes and reconnaissance, but no ground troops.
So far from confused, situation-specific policy-making, the Obama approach is guided by three clear principles. First, the U.S. has intervened to oppose terrorist groups like ISIS or Al Qaeda. Second, the U.S. has intervened to defend governments with claims to democratic legitimacy, like Iraq and Yemen, from overthrow by less legitimate, less democratic threats. And third, American military involvement has been modest.
It is all too commonplace to say that the Arab Spring accomplished nothing – the notion being that the overthrow of dictators in Libya, Tunisia and Yemen only resulted in the substitution of stable tyranny for unstable civil war. But that’s a stunningly short-sighted view of things.
Democracy does not spring fully developed from the brow of a tyrant. Even our own enlightened founders did not create a pluralistic democracy – it took four score, seven years and a terrible Civil War to end the enslavement of Americans by Americans. Building pluralist democracy is all the harder for a society emerging from decades of brutal dictatorship.
Tyrannical rule breeds social pathologies that don’t just go away with the death of the tyrant. The Arab Spring unleashed those pathologies – pulled the lid off the pressure cooker. Condemning the Arab Spring because four years later there are only two, all-too-imperfect Arab democracies (Iraq and Tunisia) entirely misses the point.
It has already taken a century and a half, and Americans have still not fully healed the pathologies of our slave-holding past. Sunni-Shiite hostility will not die quietly either. But in neither case does that mean we should not start. I believe that ISIS and Al Qaeda and all their ilk are products of those pathologies. The difficulty Shiite Iraqis are having sharing power with Sunnis – the difficulty that Shiites and Sunnis have sharing power anywhere – is another product of those pathologies.
Here’s what’s good about events in the Middle East. Iraqis elected their own government for the first time in 2010. It was disappointing that Iraqi voters chose Nouri al-Maliki over the more secular Ayad Allawi. Al-Maliki excluded Sunnis from power, which certainly facilitated ISIS’s quick blitz into Iraq in 2014. Even al-Maliki’s supporters realized that Shiites could not govern without Sunni cooperation, so they pushed al-Maliki aside after the 2014 elections and selected the more inclusive Haider al-Abadi as prime minister.
Meanwhile, the whole Muslim world has turned against ISIS. The horrific immolation of the Jordanian air force pilot ended all sympathy for ISIS’s opposition to Syria’s Bashar al-Assad. Iraqi Sunnis who have been freed from ISIS rule are, at least for now, eager to make common cause with Iraqi Shiites.
Another thing that’s good is that Middle Eastern countries are taking the lead in their own defense. The coalition of many countries fighting against ISIS is without precedent where Americans weren’t in the lead. Many Americans say that Islamic terrorism can’t be beaten until Muslims lead the fight. Well, this is what that looks like.
There is no small risk that these fights will degenerate into a region-wide civil war between Shiites and Sunnis. Thus the fourth American principle must be containing sectarian aggression by either Sunnis or Shiites. A good start is our continuing negotiations with Iran, part of a multilateral effort to contain that country’s nuclear ambitions.
I may be in the minority here, but I see lots of promise in developments in the Middle East. But it’s a long game, and Americans are impatient for short-term success. It concerns me that some on the right are once again clamoring for war, this time against Iran. It concerns me that many believe that President Obama’s Middle East policies have failed, suggesting that we need to be either more aggressive or less engaged. I think we’re just where we should be – participating, but not taking point.
Benjamin Solomon Carson, Sr., is a retired neurosurgeon of astonishing accomplishment. At just 33 years old, he became the director of pediatric neurosurgery at Johns Hopkins Hospital. In 1987, he led a team of surgeons through a 22-hour procedure to separate conjoined twins who had been joined at the back of the head – the first such successful separation.
On his retirement from surgical practice in 2013, Carson raised the possibility of a move to politics, but left the decision “in the hands of God.” And Dr. Carson did take up politics. In 2013, he began writing a weekly column for the Washington Times, and he has made himself a prominent presence on-line, at political events, and on the political talk shows. In 2014, the previously non-partisan Carson joined the Republican party as “a pragmatic measure” in preparation for the 2016 presidential campaign.
For the most part, Carson voices standard-issue Tea Party positions. “Law-abiding citizens,” for example, “should have every right to own all legal weapons.” He favors a flat tax – a fixed percentage of income to be paid by all income-earners – that he likens to a “tithe.” He rejects evolution, he compares liberalism to slavery and totalitarianism – and, of course, the Affordable Care Act is “the worst thing that has happened in this country since slavery.”
Dr. Carson made his assault on Obamacare at a national prayer breakfast in 2013, with President Obama sitting a few feet away. His speech was so political and so hostile to the sitting president that even Fox News contributors found it to be “inappropriate” to the event, and one said that Dr. Carson should apologize to President Obama. Carson’s defense was that “somebody has to be courageous enough to stand up to the bullies” – the President of the United States presumably being the “bully.” Then he said, “What I would like to see more often in this nation is an open and intelligent conversation, not people just casting aspersions at each other.”
Ben Carson is, not at all surprisingly, adamantly against same-sex marriage. As a Christian, he says, he loves all people, including gay people, and he wants gay couples to have all the rights of married couples – except for the marriage part. He was discussing this with Chris Cuomo on CNN yesterday morning. As the interview proceeded, it became apparent that Carson in effect blames gay people for their sexual orientation – prompting Cuomo to ask the obvious question: do you think that gay people choose to be gay?
Carson’s answer was unhesitating and unequivocal, and he repeated it when Cuomo restated the question: “Absolutely.”
Cuomo next asked Carson why he believed that, and here’s the thing you need to pay attention to. Here is the scientific mind at work, the wunderkind of brain surgery at Johns Hopkins: “many people go into prison straight — and when they come out [sic], they’re gay.”
I’ve never been to jail in my life, at least not as a prisoner – a couple of law school classes, a summer job, three terms as a judge, a few visits to see an in-law. I have actually met a couple of gay people who have been to jail, but all of them were gay when they got there. The huge majority of gay people I know have never been to jail, even for law school classes. I myself knew I was gay by the time I was 11 years old, well before prime imprisonment age.
By yesterday afternoon, controversy was a-swirl. Dr. Carson acknowledged that he did not actually know how every single person “came to their sexual orientation,” and he apologized to those he had offended – presumably, those of us who did not choose to become gay while doing time. He went so far as to acknowledge a theory that sexual orientation is genetically determined.
Remembering his base, Dr. Carson concluded by blaming the “liberal media” for the controversy: “every time I’m gaining momentum, the liberal press says, let’s talk about gay rights – and I’m just not going to fall for that anymore.” Still, he insisted, marriage is for one man and one woman: “We have something that’s worked just fine for thousands of years to create a nurturing environment for raising children, and I think that’s where we ought to leave it.”
The New York State Assembly has been in Democratic hands since the Democratic wave election of 1974. Since then, there have been five speakers of the Assembly. The current speaker, Sheldon Silver, has served more than half of that time, since 1994.
The list of New York Assembly speakers includes some great names, like Hamilton Fish II and Al Smith. But the list of speakers also includes some scoundrels, especially over the last 40 years.
Stanley Steingut was elected speaker in 1974, despite reports that he used his political connections to funnel money to his law firm and his two insurance firms. While speaker, Steingut was indicted by the Brooklyn district attorney on charges that he had promised a job in exchange for a contribution to his son’s New York City Council campaign. The indictment was ultimately dismissed on the ground that all of the alleged actions had occurred in Manhattan, and thus the Brooklyn D.A. lacked jurisdiction to prosecute. Although Steingut escaped criminal punishment, voters punished him at the polls, electing an insurgent to Steingut’s seat in 1978.
In 1991, Speaker Mel Miller was convicted of federal fraud charges related to a private real estate deal. He automatically lost his seat upon conviction, according to New York law, although his conviction was reversed on appeal. During his tenure, Miller vigorously opposed investigations into no-show jobs given to legislators’ friends, families and contributors, and actually asserted a violation of separation of powers when two legislators were indicted for paying campaign workers with state tax money.
Today, Assembly Speaker Silver was arrested on federal corruption charges alleging kickback and bribery schemes whereby Silver used his political and governmental power to feed business to allies in exchange for a hefty cut. This is on top of the income that Silver discloses, from the law firm of Weitz & Luxenburg. It has long been one of Albany’s great mysteries exactly what Silver does for the compensation he discloses. Silver himself maintains that Weitz & Luxenburg pays him to spend a few hours a week reviewing potential personal injury claims, referring those that “appear to have merit.”
New York State government is widely recognized as one of the most corrupt in the country, if not the most corrupt, and the power of the Assembly speaker is one of the keys to that corruption. The speaker is so powerful that law is not made in the sunlight, by legislators holding public hearings, but in back rooms – New York State government is famously run by “three men in a room” – the governor, the speaker and the majority leader of the Senate, cutting deals behind closed doors. Disclosure and transparency are minimal.
Another key to New York State’s corruption is gerrymandering. Legislative districts are drawn to minimize competition – each house of the legislature draws its own legislative lines. In a heavily Democratic state like New York, it takes no sleight of hand to ensure that the Democratic Assembly will remain Democratic. But the power of gerrymandering is proved in the Republican Senate – Republicans won control in 1938, and they have held it almost continuously ever since. Although voters adopted a provision last November that purported to reform the redistricting process, the measure was a “phony reform” that retains partisan control over redistricting.
Governor Andrew Cuomo ran on a platform of reform – as did one of his recent predecessors, Eliot Spitzer. Spitzer resigned after a prostitution scandal, having achieved no significant reform whatever during his 15 months in office.
Cuomo established a commission to investigate public corruption in 2013. The commission opened investigations into a number of state legislative leaders, including Speaker Silver, and Cuomo shut it down after less than a year. The United States Attorney in Manhattan responded by opening an investigation of his own – into the commission, into the commission’s investigative targets, and into Governor Cuomo’s alleged interference with the commission’s work.
It’s hard to say what it would take to clean up Albany if electing gubernatorial candidates who promise reform isn’t enough. Throwing the bums in jail one at a time hasn’t worked – we’ve been doing that for decades. Throwing Sheldon Silver in jail seems like a fine idea. Unfortunately, there’s no reason to believe that his successor won’t be just as corrupt as he is.
Same-sex marriage will become legal in Florida on January 5, making Florida the 36th marriage equality state.
On August 21, 2014, United States District Judge Robert Hinkle issued a preliminary injunction ordering Florida officials to stop enforcing Florida’s statutory and constitutional ban against same-sex marriage. A preliminary injunction is issued pending the conclusion of a case, when the plaintiffs show that they are likely to win the case. Even though Judge Hinkle’s injunction was only preliminary, his ruling clearly stated his conclusion that marriage equality is required by the United States Constitution, which supersedes contrary provisions of state law.
Judge Hinkle stayed his injunction until January 5, to allow for appeals. The state officials asked the federal Court of Appeals for the Eleventh Circuit to extend the stay, but the Court of Appeals refused, on December 3. The state officials then asked the Supreme Court to extend the stay, but that court refused also, on December 19, with only Justices Clarence Thomas and Antonin Scalia dissenting.
With the state’s options exhausted, Judge Hinkle’s stay will expire on January 5, his preliminary injunction will go into effect, and same-sex marriage will become legal across the state of Florida, the third most populous state in the country. On January 5, more than 70 percent of Americans will live in marriage equality jurisdictions.
Meanwhile, the Supreme Court at its conference session on January 9 will consider whether to hear appeals from the Sixth Circuit Court of Appeals. On November 6, 2014, that court upheld same-sex marriage bans in four states, setting the stage for the Supreme Court to rule, once and for all, that marriage equality is constitutionally required.