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A Quick Roundup of #10thCircuit Hearing with Audio

Marriage Equality Trials

As I process the the audio that was just posted on the court’s website today (short link here: http://1.usa.gov/1kOoXaq), there are a few quick resources that you may grab your interest. Please feel free to add any favorite helpful links for this case in the comments.

You will also want to check out RestoreOurHumanity for the livestream of the immediate response after the hearing completed. The audio feed gave me a few problems, but you will find some other interesting content in addition to the stored livestream. Hopefully that video will be corrected soon.

The best place for instantaneous reaction from the oral argument was unsurprisingly twitter. I’ve been following the #10thCircuit hashtag, and it is certainly worth a few refresh cycles today. Reporter Ben Winslow, of Salt Lake’s Fox 13 tweeted that he thought the judges were leaning 2-1 in favor of marriage equality.

Winslow also has some comments in his feed from the plaintiffs, with Derek Kitchen stating that he is “humbled and proud” at the performance of his attorneys and the serious consideration that the three judges provided. For his part, Utah Attorney General Sean Reyes says that he apologized to the plaintiffs for their pain, but that it was his duty to defend the law.

After originally planning to attend the hearings, I was unable to make the trip. But I’m excited to write a little bit about the oral argument from afar. I’ll be back shortly with some more thorough analysis.

66 Comments

  • 1. Bruno71  |  April 10, 2014 at 12:25 pm

    Holmes apparently asked how this case differed from Loving. Very optimistic he'll swing our way.

  • 2. Rose  |  April 10, 2014 at 12:29 pm

    It could be a 2-1 in our favor, but possible a 3-0 ruling……..the AG or attorney for Utah is just all over the place…….hearing the audio right now!!!

  • 3. Zack12  |  April 10, 2014 at 12:39 pm

    Regnerus was their whole defense of why the ban was needed.
    Since Judge Friedman destroyed that, they literally had nothing left.

  • 4. Retired lawyer  |  April 10, 2014 at 12:45 pm

    The Washington Post sent Robert Barnes, who covers the Supreme Court, to Denver. His report indicates that the panel is leaning 2-1 in favor of plaintiffs. I will issue the usual reminder that appeals in the Federal Courts depend on the written submissions, and not the oral arguments; and that the questioning of counsel at oral arguments is not predictive of the result. Still and all, everything available so far looks good for us. The letter last night from the State withdrawing any reliance on Mark Regnerus, almost literally at the last moment, cannot have helped the defense.

  • 5. Ragavendran  |  April 10, 2014 at 12:50 pm

    I just finished listening to the audio. Kelly came down very strongly against our side (he was nearly blocking our attorney towards the end of her time not letting her speak, asking haughty rhetorical questions), and Lucero very strongly for us. I'd put that down as 1-1 for sure. Now, with Holmes, he seemed to think that the State's argument would pass a rational-basis review but not heightened scrutiny. So it would likely come down to what level of scrutiny he decides to apply. And here, though he has been bold in denying Utah a stay, I'm not sure he'd be willing to go so far as to hold that heightened scrutiny should apply. I'm cautiously optimistic that Holmes would eventually rule for us, but I'm still much disturbed by the oral argument. (Then again, as some have pointed out, it is not prudent to rely too much on oral argument in speculating on the outcome.)

  • 6. john  |  April 10, 2014 at 12:58 pm

    What bothered me was one judge gave credence to the small sample size criticisms of the social science research. It's still not conclusive on child outcomes, so the state has a rational basis to set public policy.

  • 7. grod  |  April 10, 2014 at 12:58 pm

    Attorney Gene Schaerr did not do a good job in representing Utah. It may be the justices were asking too many questions. But the condition of his throat [constant clearing] was imo a metaphor for the condition of his mind; irritated, stressed and not clear. Attorney Peggy Tomsic did a significantly better job of replying to the judges’ questions. And in holding her train of thought. But at times, she too struggled to succinctly answer questions. What both attorneys ought to have done was discard their prepared text, and in the economy of time – briefly answer questions

  • 8. Rose  |  April 10, 2014 at 12:59 pm

    I would agree that to change one's defense at the last minute is probably NOT going to bode well for them…..and though I agree with Ragavendran that the Justices came down hard on the plaintiff's attorney…..I think they were just playing more devil's advocate than going against us……..but it will be interesting to see how they rule…….and remember that next week they will hear a similar argument from Oklahoma!!!

  • 9. Zack12  |  April 10, 2014 at 1:04 pm

    There were parts of Judge Holmes statements today that gave me hope and then other statements like the ones you pointed out that made me nervous.
    It sounds like he is going to be in our favor but who knows?
    As for Judge Kelly, he sounds like a bigot, simple as that. As someone pointed out on Towleroad, that is sadly impossible to avoid, as Bill Clinton was the only Democrat in office between 1981- 2009.

  • 10. Ragavendran  |  April 10, 2014 at 1:04 pm

    I sincerely hope and wish that you are right, Rose! With Oklahoma, in addition to their constitutional amendment, if I recall right, there is also DOMA Section 2 that is being challenged. There is an appeal and a cross-appeal there. It seems unfair they get only 15 minutes per side with more issues to deal with than Utah. But no one is asking for extra time (so far).

  • 11. Tim  |  April 10, 2014 at 1:06 pm

    Which judge?

  • 12. john  |  April 10, 2014 at 1:07 pm

    "Yes, but we have to understand what marriage is….. "

    Not sure the judges are going to buy the states proffered definition.

  • 13. DrHeimlich  |  April 10, 2014 at 1:14 pm

    I agree that it's likely Kelly will vote against us, but his body language wasn't as aggressive as it might have sounded in the audio. He was actually rather passive for the bulk of the argument, until the very end. He perked up and got aggressive when the subject of animus came up.

    My read is that he's one of those people who resents being painted with the "bigot" brush. The sort of person that thinks a "bigot" is the sort of person who burns crosses on your lawn and leads a lynch mob — and that anything less than that is not bigotry. (We have first and second degree MURDER in our legal system, for crying out loud. Is it so unthinkable that there could be levels of bigotry?)

    In any case, I think among many other great moments Lucero brought about for our side, two in particular are key for anyone like Kelly who might want to rule against us. 1) Doesn't everything in Windsor completely foreclose any questions lower court judges might ask anyway? 2) How do you square a policy that's supposed to be "for the kids" with the fact that it leaves the children of gays and lesbians out in the cold? Lucero set it up that for Kelly to vote against, he's going to have to write an opinion that somehow answers those two questions.

    Tall order.

  • 14. Rose  |  April 10, 2014 at 1:18 pm

    Well, the challenge to Section 2 of DOMA is going to be a hot button……my guess is how can one justify recognizing a heterosexual couple's legal marriage, but NOT the legal marriage of a Same-Sex couple……I can't wait to hear their argument for that!!!

    I just finished listening to the entire hour and 5 minutes of oral arguments and this is my take or opinion:
    1) I don't believe that the Justices actually believe that the State would win on just a rational bases, if they thought that…they would have granted the stay themselves and they didn't!!

    2) I don't believe the Justices buy ANY of the arguments regarding parenting and raising of children as being better with a mom and a dad!!

    3) I HONESTLY believe in a strong 2-1 ruling at the very least in our favor…….but NOT based on what was discussed, but what is in the briefs presented to the court before today.

    4) I have been wrong before like with regards to the passing of Prop 8, but I have not been wrong in my belief of us winning this battle and I don't believe Utah will succeed at this level or the next…..now the waiting begins!!!

  • 15. Bruno71  |  April 10, 2014 at 1:19 pm

    Why would you feel he wouldn't be willing to apply heightened scrutiny, if it's true as you say that he seems to think the state could pass the rational basis test? We've already seen the 9th Circuit apply heightened scrutiny in the Smithkline Beecham case, so why not here?

  • 16. Ragavendran  |  April 10, 2014 at 1:26 pm

    Yeah, I thought Schaerr did better (but still bad) in the last few minutes with his rebuttal than earlier on. And what's with repeatedly talking about polygamy? One of my lawyer friends says about Schaerr's polygamy references:
    "He keeps intentionally bringing up polygamy to plant that seed of the whole slippery slope thing, without ever actually saying that. He's no dummy, that's a smart move."
    And indeed, towards the end, one of the judges (I'm inclined to think Kelly) brought it up in the slippery slope context.

  • 17. John  |  April 10, 2014 at 1:27 pm

    It was in the audio towards the end, I couldn't tell which judge was commenting on the small sample size of the social science research being one of the criticisms. If they read the Michigan ruling it should put that to rest. Small sample sizes are a valid methodology and so many have provided the same result.

  • 18. DrHeimlich  |  April 10, 2014 at 1:27 pm

    Yes, it was Kelly who brought of polygamy again near the very end. Though at an earlier point in the proceedings, Lucero all but laughed at it being brought up.

  • 19. Pat  |  April 10, 2014 at 1:29 pm

    After a ruling is issued (when is that expected more or less?), is there still a big chance that a request will be made to have the case reheard en banc?

  • 20. Ragavendran  |  April 10, 2014 at 1:30 pm

    Oh, that's just speculation, based on his conservative track record. That's why I preceded it with "though he has been bold in denying Utah a stay". Holmes could very well be inclined to reach that conclusion like the 9th did by a careful analysis of Windsor, as our side's attorney spent some time arguing for today, and of course I want him to do so, but just based on what I heard, and with his conservative background in mind, I think it less likely. (As for the 9th, Reinhardt is a liberal judge.)

  • 21. Steve  |  April 10, 2014 at 1:35 pm

    This coming from a Mormon and from Utah in general is very, very funny. They talk about "centuries old traditions", but in Utah marriage between a man and woman has only existed since the very late 19th century.

  • 22. Zack12  |  April 10, 2014 at 1:40 pm

    Someone just tweeted that a line of questioning does NOT indicate how a judge is going to rule and I have to agree with him on that.
    I remember N. Randy Smith seeming to be on our side during Prop 8 and then being the no vote.
    Here's hoping the same thing doesn't happen with Holmes.

  • 23. Kevin  |  April 10, 2014 at 1:41 pm

    I have probably listened to ~100 oral arguments in state and federal courts over the past years and I have come away from this one with the following observations. First, the forcefulness of arguments on the other side seemed to box appellants into an extremely narrow path to victory consisting of a) rational basis, and b) Windsor is pure federalism, not equal protection or due process; and c) SSM poses an abstract/speculative "harm" constituting a legitimate state interest, and d) the nexus between Amendment 3 and this "harm" is that laws 'teach' something in the abstract. There are far, far too many convincing ways to arrest that logic that I doubt even Kelly could write that opinion. Further, this is not the kind of argument you hear from a legal team that is even remotely confident in winning the day; usually attorneys will want to concede some points so as not to seem obstinate, but Schaerr was concessionaire out of the gate, even admitting that the children of same-sex couples would be better off if their parents were able to marry and making bizarrely inapt distinctions between the stigma in Windsor (where gay couples could wed in New York, but not receive federal benefits) and the stigma here (where gay couples can marry elsewhere, but not receive rights/benefits/recognition in Utah). Normally oral arguments break down into: we win for two reasons, and, each reason having, say, three different planks, judges say 'well I'm not going to give you plank 1, 2, or 3' and attorneys say 'it doesn't matter, we still win because x, y, and z." The exact opposite happened here, which makes me think that the writing is on the wall and appellants are trying desperately to thread an impossibly tiny needle.

    Second, I would note that the panel appeared to be hyperaware of the recording and broadcast of the proceedings. Not only did they allow for lengthy preamble on both sides before interjecting with a question (normal in many far less profiled cases where the first five minutes really involve them getting their bearings), but so many of their questions concerned mundane, unarguable black letter law that they appeared to be staging their own conscientiousness, e.g., 'counselor, what is the standard of review in the case?'

    Third, in terms of demeanor, Schaerr did his best to appear reasonable in the face of some unanswerable questions given appellants' position. I think of all the arguments I have heard on this issue, his was probably the best you could do (again, given the idiocy of the arguments advanced). On the other hand, I would have appreciated some more gusto from Ms. Tomsic, especially on the issue of the 'legitimate state interest' that she could have shut down with a statement regarding real harms to gay families as opposed to the state's abstract speculation.

    Overall though, I expect either a unanimous or 2-1 panel to affirm.

  • 24. Michael Grabow  |  April 10, 2014 at 1:42 pm

    "The state has a compelling interest in ensuring adequate reproduction, and conversely, in avoiding a definitional change that (over time) could send its birth rate below replacement levels — as has already happened in a number of nations and U.S. states that have adopted a genderless definition," their brief states.

    I would like the names of those nations and states.

  • 25. George  |  April 10, 2014 at 1:44 pm

    Assuming the panel is 2-1 in favor of marriage quality, I doubt there will be en banc review. Among the active judges, there are 6 judges appointed by Democrats and 5 appointed by Republicans. Assuming one of the Republicans on the panel votes in the plaintiff's favor, it would be very unlikely the court would reverse en banc. On other other hand, if it is 2-1 in favor of the state, we may see an en banc hearing. It may also be that the judges will want en banc review because it is a very contentious issue.

  • 26. Ragavendran  |  April 10, 2014 at 1:49 pm

    A ruling could be expected in 2-6 months, according to Washington Post's Robert Barnes. I agree with George's comment below regarding the likelihood of en banc rehearing (sua sponte or otherwise).

  • 27. Corey  |  April 10, 2014 at 1:51 pm

    As well as the trend line by which causation can be established. Birth rates go downward as prosperity goes upward; suddenly same-sex marriage is legal, but it is not itself the cause of low birth rates. It's specious logic and argument ipse dixit (ie, it is so because I said so).

  • 28. bleubitz2014  |  April 10, 2014 at 1:53 pm

    Extra time for argument is helpful for the Judges, but for the most part, the written briefs are where the decision is won or lost.

  • 29. CarrotCakeMan  |  April 10, 2014 at 1:54 pm

    Something tells me Judge Holmes knows what Mildred Loving (bless her heart) wrote about marriage equality:

    I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

    I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.
    http://www.freedomtomarry.org/page/-/files/pdfs/m

  • 30. Ragavendran  |  April 10, 2014 at 1:54 pm

    I was struggling to contain myself when I listened to Schaerr's flimsy attempt to distinguish the stigma of same-sex couples in Windsor and in this case. He seemed like he was walking the plank there.

  • 31. Bruno71  |  April 10, 2014 at 1:54 pm

    I think your outlook has been sound, but a conservative track record alone wouldn't convince me he wouldn't go that far. Especially given his ruling on the stay, as you noted, and some of his questions including the one comparing this to the Loving case. It's really hard for me to see this case falling short in the hands of Holmes and Lucero at the moment. En banc, on the other hand…

  • 32. CarrotCakeMan  |  April 10, 2014 at 1:56 pm

    Anti-gays make that false comparison in an attempt to demonize and dehumanize LGBT Americans.

  • 33. Ragavendran  |  April 10, 2014 at 2:03 pm

    Agreed! Indeed, it is quite possible, and I think this is what you're getting at, that most of Holmes's questions that followed his Loving comparison could have been an attempt at convincing himself (and perhaps, others) rather than arguing against the fact that heightened scrutiny should apply. As many have cautioned, the line of questioning of a judge could have a very different meaning from what it may appear to indicate.

  • 34. Zack12  |  April 10, 2014 at 2:07 pm

    It should be noted that by the time this ruling comes down, Nancy Moritz will likely have been confirmed to the 10th circuit, thus putting another Democrat on the circuit for us.

  • 35. JayJonson  |  April 10, 2014 at 2:08 pm

    I think the discussion of animus left much to be desired. I wish Peggy Tomsic had just quoted Justice Kennedy in Windsor on animus. If I recall correctly, he pointed to the very name of the Defense of Marriage Act as evidence of animus.

  • 36. Kevin  |  April 10, 2014 at 2:20 pm

    It's funny because one of the most virulently homophobic nations in the world, Russia, has an alarmingly low birth rate.

  • 37. Tim  |  April 10, 2014 at 2:22 pm

    En banc on the other hand is 6 Dems appointees to 5 Republican. With Dems more likely to vote pro-equality than Reps to go anti-equality (and some ruling in the pro column), how do you think that would turn out? Even brighter.

  • 38. Kevin  |  April 10, 2014 at 2:23 pm

    The polygamist slippery slope is a red herring, and the judges know this. There is simply no comparing allowing same-sex couples to enter into an institution with a pre-existing legal framework to finding a Constitutional right to polygamy, which would require overhauling innumerable state statutes, family law, property, wills and trusts, criminal law, etc.

  • 39. phillip  |  April 10, 2014 at 2:24 pm

    Nit picking here, but here discussion of animus was not her finest moment. Still she did an awesome job.

  • 40. Kevin  |  April 10, 2014 at 2:25 pm

    Not to mention the comment that *every* district court to have considered the issue post-Windsor has held marriage bans unconstitutional.

  • 41. JayJonson  |  April 10, 2014 at 2:27 pm

    It irritated me greatly that Kelly seems to set far more store by the dissents in Windsor than by the majority opinion written by Justice Kennedy.

  • 42. Bruno71  |  April 10, 2014 at 2:27 pm

    One would think, yeah. But without a specific knowledge of each justice's track record, I'd hesitate to say anything for sure.

  • 43. Steve  |  April 10, 2014 at 2:28 pm

    It's the case in some European countries, but those trends started decades earlier when birth control became widely available.

  • 44. Tim  |  April 10, 2014 at 2:30 pm

    Isn't male still considered a gender? Isn't female still considered a gender? If not, what is?

  • 45. Tim  |  April 10, 2014 at 2:32 pm

    I'll take it even more so than even today's panel.

  • 46. sam  |  April 10, 2014 at 2:33 pm

    That may not be a bad thing. Sure, Kelly made it clear he wouldn't sign up to an opinion that held that there was animus; but it's not a central issue, Shelby didn't find animus. Arguing too hard on that point side-point would have overstated its importance.

  • 47. davep  |  April 10, 2014 at 2:40 pm

    Yeah, I would LOVE to hear them spell out the "logic" that explains how giving a marriage license to same sex couples, instead of forcing those couples to live without those legal protections, CAUSES a reduction in procreative activity among other couples. What idiots.

  • 48. Bruno71  |  April 10, 2014 at 2:42 pm

    I could see an en banc review just to extend the proceedings, under the assumption that the SCOTUS justices want equality to come as slowly as possible.

  • 49. sam  |  April 10, 2014 at 2:46 pm

    I think that's probably how much of the questioning in the hearing should be viewed; more about how they wouldn't rule than how they would. The clearest example was in their searching for a statement about article 3 standing.

  • 50. Kay  |  April 10, 2014 at 2:48 pm

    Animus is in Amendment 3 itself, not only marriage, but anything else that gives any benefits whatsoever will not be recognized by the state of Utah.

    Not only will you not inherit the 401k and IRA, you are completely disinherited from anything else. Yup, no animus there….

  • 51. Jae  |  April 10, 2014 at 2:56 pm

    I think the judges were struggling with does a State have the right to define it's own marriages. To me if there is very little evidence that exist that shows harm or does not show harm to the State, will they be able to rule on what ifs? I thought in court if you didn't have evidence they had to rule based on what was submitted not what ifs. But neither side had evidence to contradict the other …What does a court do with lack off evidence?
    Can someone explain the scrutiny and what difference it will make? They seemed reluctant to go against the scrutiny of the other previous judge if they didn't is that a win or lose for the Pro SSM side

  • 52. sam  |  April 10, 2014 at 3:00 pm

    You know that, I know that, the state knows that. But we are talking judicial politics. We don't need them to find animus, and if stating that there was would make a justice uncomfortable in ruling on the greater prize, then it's a small price to pay.

  • 53. davep  |  April 10, 2014 at 3:30 pm

    (PART 1) Short answer, yes, the state can make it's own laws to regulate civil marriage, but not when doing so violates a principle of the U.S. Constitution (like Equal Protection).

    Regarding the requirement for evidence or 'what ifs' that the state can rely on for building an argument, the states choices depend on what level of 'scrutiny' the court deems is appropriate for laws that target LGBT citizens.

    If the court considers that laws which target LGBT citizens should receive heightened scrutiny', The burden is on the STATE to prove that the law is necessary and advances an important 'states interest (like ensuring public safety, protecting national security, assuring a sound financial policy, etc.). Good luck with that!

  • 54. davep  |  April 10, 2014 at 3:31 pm

    (PART 2) But even if the court considers that laws targeting LGBT citizens only need to receive 'rational basis' scrutiny, which puts the burden on OUR side to show there's no valid purpose for the law, and the state doesn't have to carry as much burden of proving they have a reason for it, there is still that pesky word "rational" in there. They can't just name any random irrational 'reason' for the law. There has to be some possible rational connection between the actual effect of the law and the reason they give for enacting it. And so far, they can't even do that. All they have are illogical 'reasons' like 'giving gays a marriage license can lead to a reduction in procreation (oh? how?) or reasons that are simply not a states interest in the first place, like 'to express disapproval of homosexuality as an accepted lifestyle'. They got nothin'.

  • 55. Rick O.  |  April 10, 2014 at 3:34 pm

    I'd like the names of the states and nations, AND THE TIMEFRAMES, TOO. I strongly suggest the numbers are coincident with the big recession. Birthrates go down as nations develop, but within developed nations they go down temporarily during recessions (as does household formation, etc. etc..)To wit: people put off having children til they feel their jobs and finances are secure. Another bogus statistic from the anti's and I shall surely cause a hurricane.

  • 56. Rick O.  |  April 10, 2014 at 3:41 pm

    Reading Scottie's review, I feel relieved that the judges didn't find any more ground in Utah's case than the state's public policy. And when Kelly mused that perhaps public policy outweighs constitutional rights, Lucero jumped down his throat with "I find that remarkable". As indeed, it is. So remarkable, in fact, that I suspect Kelly wouldn't want to base a decision on it, which leaves him where all the anti-ME folks are now: without good reason.

  • 57. sfbob  |  April 10, 2014 at 3:59 pm

    To put it a bit more bluntly, even under rational basis, the state cannot justify a prohibition on marriage equality simply on the basis of "because we don't want to grant it." One thing that should be kept in mind going forward is that, particularly with respect to current court cases where the only issue in question is whether a state should recognize a marriage legally performed elsewhere, states are going to have a very hard time attempting to justify singling out same-sex marriages for lack of recognition when their laws normally recognize other marriages from out-of-state even if they couldn't be performed in-state. And should Section 2 of DOMA become an issue (I am not clear whether or not it remains one in the Oklahoma case) that would fall for essentially the same reason: just because it it subject only to rational basis review, there's a big difference between that and a completely arbitrary distinction made for its own sake. The courts have ruled repeatedly that such a move would not withstand even the most generous reading of the constitution.

  • 58. Jae  |  April 10, 2014 at 4:08 pm

    Thanks, Very informative !!!!

  • 59. Steve  |  April 10, 2014 at 4:43 pm

    They aren't really the state's marriage. They belong to the couples. States should only be allowed to set some lose guidelines, but otherwise relationship law needs to be far, far more uniform throughout the country. This isn't the 18th century anymore. People travel and move all the time.

  • 60. sfbob  |  April 10, 2014 at 5:04 pm

    One further wrinkle occurs to me as well. Some of the procreation-based arguments made in defense of marriage equality bans run along the lines of "heterosexual couples can make babies, so they need to have access to marriage in order to protect those babies. Gay and lesbian couples can't make babies (we know of course that that isn't really true) so they don't need to get married." It occurs to me that any state argument along these lines should be to question whether a state has previously looked at a "need to be married" in establishing its criteria for marriage.

  • 61. sfbob  |  April 10, 2014 at 5:05 pm

    I find it remarkable to. It sort of speaks to my observation above that the state's public policy, when used to prevent a couple from marrying, cannot amount to nothing other than "because we don't feel like it."

  • 62. Dr. Z  |  April 10, 2014 at 5:57 pm

    Or, "we can't think of a good reason now, but we might someday and that's reason enough."

  • 63. skrekk  |  April 10, 2014 at 6:37 pm

    I was surprised Tomsic didn't mention the state recently refusing to change a birth certificate after a state court granted an adoption to a same-sex couple. That's not only evidence of animus, but an offense to the judiciary.

  • 64. ebohlman  |  April 10, 2014 at 7:12 pm

    The requirements on who can marry, with the exception of whether or not same-sex couples can marry, are already pretty uniform: there are small differences in allowable degrees of consanguinity and in the ages at which minors can marry with parental consent, but that's pretty much it except for administrative matters like whether non-residents can marry, whether there's a waiting period after issuing a license, and so on.

    So regardless of how much legal authority states have to set marriage requirements "for the children" or the like, they really aren't doing it except in this particular area. That makes gender-based restrictions look "both underinclusive and overinclusive" and their rationales look suspiciously like pretexts for animus.

  • 65. Randolph Finder  |  April 11, 2014 at 3:36 am

    One of the most significant countries to have birth rate below replacement is Japan, which doesn't have SSM. Yes, I believe majority of the countries with BRRR (mostly in Europe) have SSM but in many cases they also had BRRR before they had SSM. In fact chronologically, BRRR -> SSM works better than SSM -> BRRR.

  • 66. Guest  |  April 12, 2014 at 4:06 pm

    Did I hear it correctly that the attorney arguing against the ban answered that the ban was not motivated by animus? Was she out of her mind? Why do the Christians who snatch everyone's rights away act like a deer in the wind when they're justly called a nasty bigot for their hateful actions?

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