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Ninth Circuit receives briefs in gay juror discrimination case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
In the Ninth Circuit Court of Appeals, the judges have gotten briefing on whether to rehear SmithKline Beecham v. Abbott Laboratories en banc, or with a larger panel of judges. At least one judge on that appeals court has called for a vote on rehearing en banc, and in March, the parties were order to respond.

The case involves a juror who was dismissed because of his sexual orientation, in a case involving a drug that treats HIV. The Ninth Circuit held that, like race and sex, sexual orientation is a classification that warrants a heightened form of judicial scrutiny. In other words, the burden shifts in cases challenging a classification or law based on sexual orientation: in those cases, the people defending the law have to prove that it’s substantially related to an important government objective; in the more lenient form of review, rational basis, it would be on the gay person challenging the classification to prove that all the reasons given for it in court aren’t rational.

The Ninth Circuit reviewed the Supreme Court’s decision in United States v. Windsor, concluding that although the Court didn’t say what form of review it was using, they analyzed it under a framework that’s typically associated with higher than usual scrutiny.

AbbVie, a spin-off of Abbott Labs, had previously said they wouldn’t challenge the decision, either in the Ninth Circuit or the Supreme Court. In its new filing, the company says that en banc review is warranted because “the issues presented are critically important—both doctrinally and practically—and will affect every jury trial in this Circuit.”

Importantly, they’re not asking the Ninth Circuit to review the heightened scrutiny holding, and they’re not asking for a review of the holding that jurors can’t be discriminated against based on their sexual orientation. Rather, they focused on the sort of “nuts and bolts” of analyzing claims that jurors have been discriminated against. They suggested the Ninth Circuit should have compared the juror who was struck with jurors outside the protected class at issue.

They also raised the point that privacy will be an issue in future claims, stating that the panel should have done more to address policy concerns:

Jurors’ sexual orientations are rarely self-evident. A juror’s race or gender may be uncertain, but those cases are the exception. By contrast, not knowing a juror’s sexual orientation is the norm. As Judge Wilken put it: “there is no way for us to know who is gay and who isn’t here, unless somebody happens to say something.”
[…]
Asking every juror whether he or she is gay poses obvious problems. Many might decline to answer—or might answer untruthfully, a potential crime—for fear of losing their privacy or the potential “ramifications” thereof—“job loss, being disowned by friends and family, or even potential physical danger.” Op. 33. Others might have principled objections to disclosing highly personal information under courtroom pressures. Still others might be unsure. All of these factors may result in underreporting gay jurors.

SmithKline opposes rehearing. “The panel decision does not create any conflict with Ninth Circuit precedents or other courts of appeals’ decisions,” they wrote, and further, “[p]rohibiting jurors from being struck based on their sexual orientation does not pose practical implementation problems—let alone problems that should give this Court pause before protecting an obvious constitutional right.”

Their filing suggests that the Ninth Circuit analyzed the Windsor decision correctly, and reached the correct conclusion.

The Ninth Circuit judges will vote on whether to rehear the case.

Thanks to Kathleen Perrin for these filings

72 Comments

  • 1. Retired_Lawyer  |  April 22, 2014 at 11:06 am

    This post concerns another subject. Today (April 22, 2014) the Supreme Court decided Schuette v. Coalition, a case concerning race preferences in higher education which were eliminated in Michigan by a State Constitutional Amendment. Reversing the 6th Circuit, the Supreme Court upheld the Amendment. No opinion received majority support. The plurality opinion, written by Justice Anthony Kennedy (Windsor, Lawrence, Romer v. Evans) contains on page 15 of the slip opinion this potent, and, I hope, foreshadowing passage: "The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. … [S]cores of other examples teach that individual liberty has constitutional protection, and that liberty's full extent and meaning may remain yet to be discovered and affirmed." Re-read that last phrase, that the full extent of individual liberty remains to be discovered by the Supreme Court. That passage is not, repeat, not necessary to the holdings of the case. I view it as great, good news of Justice Kennedy's state of mind, and wanted to share it with all of you.

  • 2. Ragavendran  |  April 22, 2014 at 11:11 am

    Thank you! Kennedy wields a mighty pen, indeed.

  • 3. davep  |  April 22, 2014 at 11:15 am

    Nice. Kinda reminds me of this quote about liberty, and how it continues to be revealed, from the Lawrence ruling:

    "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

  • 4. ebohlman  |  April 22, 2014 at 11:46 am

    IIRC, the Sixth Circuit has been the most-overturned appellate court in recent years.

  • 5. Ragavendran  |  April 22, 2014 at 11:51 am

    At the same time, this classic Kennedy federalism line also jumped out: "There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters." Again, this looks like a case like Windsor where both equal protection and federalism align, instead of oppose.

  • 6. JayJonson  |  April 22, 2014 at 11:57 am

    I thought that was the Ninth.

  • 7. ebohlman  |  April 22, 2014 at 12:02 pm

    Used to be, but for the last 5 years it's been the Sixth: http://en.wikipedia.org/wiki/Sixth_Circuit_Court_

  • 8. R Griffin  |  April 22, 2014 at 12:17 pm

    Justice Kennedy also wrote the following in his opinion: "Deliberative debate on
    sensitive issues such as racial preferences all too often
    may shade into rancor. But that does not justify removing
    certain court-determined issues
    from the voters’ reach.
    Democracy does not presume that some subjects are either
    too divisive or too profound for public debate." I wonder if marriage equality one of these issues?

  • 9. Cherylg  |  April 22, 2014 at 12:53 pm

    Oregon – another 9th Circuit case, hearing tomorrow.
    NOM wants toninser itself, re Judge McShane. Motion to intervene…

    Doc 86, Filed 4/21/14, 4-pg Case 13-cv-1834 Case 13-cv-2256
    . – scribd.com/mobile/doc/213233696
    http://media.oregonlive.com/mapes/other/memorandu
    – Eastman's Motion to intervene
    – Expedited hearing requested
    – It mentions "Declaration of Brian Brown". doc# ?

    Proposed Intervenor attorneys
    Roger K. Harris (local atty, Lake Oswego) – Harris signed the filing.
    John C. Eastman

    On 4/21, phoned and emailed attorneys of all parties. See list of names.
    ALL parties in the consolidated cases declined to consent to his motion.
    ——

    footnote hints they want to go after Michael McShane.

    Footnote 1. After this motion was prepared and ready to file, counsel for Proposed Intervenor was made aware of information that may warrant a motion for recusal.
    Counsel will review that information and, if warranted, file a motion to recuse forthwith.
    ===========================================================
    http://www.oregonlive.com/mapes/index.ssf/2014/04

    JUST made aware of Michael McShane?!! OBVIOUS lie.
    McShane has been a federal judge in OR for over a year,
    openly gay from the start.

    Eastman mentions Judge McShane in this Apr 17 Oregon Live article.
    so he knew earlier than the 17th.
    In time to badmouth Mcshane, scare up nasty comments in the online paper …

  • 10. Ragavendran  |  April 22, 2014 at 1:27 pm

    And here's Judge McShane's ORDER:
    Oral argument on plaintiff's motion for summary judgement was scheduled on January 22, 2014, for tomorrow afternoon. Today, a proposed intervenor represented by California counsel, moves this court to postpone argument while the court considers their motion to intervene filed at 11:00 P.M. last night. The Motion to Postpone 92 is DENIED as untimely. In order to brief and participate in any motion for summary judgement, the proposed intervenor must first demonstrate it has standing to intervene. The court will not issue a decision on summary judgement pending resolution of the motion to intervene. If intervention is allowed, the court will schedule a second briefing schedule on summary judgement or the court will set the matter for trial. All responses to the Motion to Intervene 86 are due May 2, 2014. Proposed intervenor is to reply by May 9, 2014. Oral argument on the motion to intervene 86 is set for 9:00 A.M. on 5/14/2014 in Courtroom 2 of the Eugene Courthouse before Judge Michael J. McShane. The attorneys are to appear in person. Ordered by Judge Michael J. McShane.

    So it seems like he is being respectful of NOM's Motion to Intervene, but at the same time, declined their efforts to disrupt tomorrow's oral argument – a very classy response. What's a little sad is that he has said that he will NOT rule on the summary judgment motion until NOM's Motion to Intervene has been fully considered and decided upon, so we can't expect a ruling until after mid-May.

  • 11. SPQRobin  |  April 22, 2014 at 1:40 pm

    I guess now they will go screaming "This gay judge denied to hear the defendants of traditional marriage! We are silenced by the gays!"

  • 12. SPQRobin  |  April 22, 2014 at 1:49 pm

    I am not too sad about having a later ruling, because Oregon United for Marriage said they would not go forward with the ballot initiative if the judge rules by May 23, and I would prefer to have the ballot initiative go forward and get rid of the constitutional amendment. It would be the first time this happened, and all the campaigning wouldn't be for nothing.

  • 13. Michael Grabow  |  April 22, 2014 at 1:54 pm

    They have said though, that this would allow them to shift their focus onto the "religious liberty" bill.

  • 14. Zack12  |  April 22, 2014 at 1:58 pm

    I have to disagree. It is still a crapshoot that the ban would be repealed and more to the point, I'm loathed to have people vote on our rights.
    As for the rest, NOM has no shot and they know it, they are simply delaying justice at this point.
    More to the point, while the "religious freedom" bill is still being worked out, there is a good chance it could end up on the ballot. We don't need to be fighting two battles at once if we can help it.

  • 15. Cherylg  |  April 22, 2014 at 2:08 pm

    Here's the flurry of NOM filings, All Filed 4/21/14

    Doc 86, 4-pg motion to intervene, http://www.scribd.com/mobile/doc/219577361

    Doc 87, 27-pg Memo in support of Doc 86. http://www.scribd.com/mobile/doc/219577368

    Doc 88, declaration of Brian Brown, 4-pages. It sounds like Brown wrote it himself.
    http://www.scribd.com/mobile/doc/219577363

    Doc 89, 14-pg – http://www.scribd.com/mobile/doc/219577373
    NOM argues on pp 13-14: Lack of Article III Jurisdiction, Collusive Suit.
    No defense or intervention, No case or controversy.
    ===========================================

  • 16. Eric Koszyk  |  April 22, 2014 at 2:12 pm

    What is the deadline for the "religious liberty" bill?

    When will we know if it will or will not be on the ballot?

  • 17. Eric  |  April 22, 2014 at 2:24 pm

    The anti-judiciary crowd likes to claim the Ninth, while ignoring that it is the biggest and busiest circuit. One would expect less appeals from low volume backwater circuits.

  • 18. Colleen  |  April 22, 2014 at 2:48 pm

    Brown: "Hi I am here to represent three people who totally live in Oregon but they don't want to say who they are because the gays will get them and also because I may have made them up in my head."

  • 19. Craig Nelson  |  April 22, 2014 at 3:03 pm

    The fact he will not rule until disposing of the 11th hour request for intervenor status gives him time to write the first draft of the judgment so it may not be long delayed after that point.

    I am sure the question of whether NOM can establish standing will be dealt with on factual/legal grounds but the NOM/Brian Brown statement about the unnamed people that will have particularized harm leads me to doubt there can be true standing that would be established after briefing on the matter. Prior to Prop 8 being dealt with we were in the dark on some of this. After Hollingsworth standing is now more effectively defined in a way that gives little room for maneuver. Whatever his order in this matter I don't see that an outside organisation can have standing to appeal to the 9th Circuit who, having been slapped down by SCOTUS in Hollingsworth, no doubt have little appetite for further rounds (and remember those intervenors had the authorization of the Californian Supreme Court and were the people who originated the actual constitutional amendment).

    NOM will though have some room to claim it did what it could and is still fighting.

  • 20. Stefan  |  April 22, 2014 at 3:10 pm

    I believe it's the end of July.

  • 21. SeattleRobin  |  April 22, 2014 at 4:15 pm

    Are there any experts here who can say what case law is concerning third parties stepping in on behalf of unnamed intervenors? It seems that by allowing them to remain anonymous, third parties could make up anything they want without having to substantiate it. It also removes the transparency necessary for our justice system.

    On the anonymous intervenors themselves, it seems like the clerk would have standing. Not sure about the wedding person. Doesn't the SCOTUS decision in the Prop 8 case apply, denying a voter standing?

    One thing that really made my eyes pop out in NOM's answer to the complaint is on page 8. NOM denies that the two men can be parents to any children because it is biologically impossible. With that one statement they just tossed out the parentage of every straight couple with adopted or AI conceived children!

  • 22. Retired_Lawyer  |  April 22, 2014 at 4:20 pm

    Not one single mention of Hollingsworth v. Perry, or its holding that citizen intervenors cannot appeal an injunction that binds governmental officials. I cannot say that this glaring omission comes as a surprise considering NOM's behavior in the past. Apart from every other consideration, this proposed intervention is untimely, and timeliness is a prerequisite. I look forward to the oppositions that will be filed by the real parties.

  • 23. Dr. Z  |  April 22, 2014 at 4:47 pm

    I strongly disagree. A ballot campaign would be an expensive, risky, and ugly way to get an unconstitutional law like Amendment 36 off the books. Look at all the resources it will divert from the congressional and state races. Look at the impact those ugly ads will have on LGBT youth. Look at the surge in antigay hate crimes that always accompany these campaigns. Look at the elderly same-sex couples who don't have time on their side.

    I suspect NOM did this deliberately as a way of delaying the ruling just long enough to force a ballot campaign against Amendment 36 so we would have to divide our time and resources, and confuse the voters (vote Yes on A, vote No on B.)

  • 24. Eric  |  April 22, 2014 at 4:58 pm

    The parties have to be identified to the court and their harm must be particularized and go beyond what would apply to anyone else.

    The clerk is an agent of the state and doesn't have standing when the people she works for decide not to appeal.

    Don't accept anything NOM files, they are not known for their honesty or compliance with the law.

  • 25. SeattleRobin  |  April 22, 2014 at 5:20 pm

    On the clerk issue, does that vary depending on state laws? If a county clerk is an appropriate party to sue, why isn't another clerk an appropriate party to intervene as a defender, no matter what the Attny General decides?

  • 26. Bruno71  |  April 22, 2014 at 5:28 pm

    It does vary depending on state laws. In Oklahoma and Virginia, clerks have been deemed to be the correct defendants, while in California it's the AG and governor.

  • 27. Dr. Z  |  April 22, 2014 at 5:49 pm

    The Oregon SC already settled this in Li and Kennedy v. Oregon. Clerks do not have standing.

  • 28. Dr. Z  |  April 22, 2014 at 6:32 pm

    The real delaying tactic will be the recusal motion.

    How does standing differ between an intervention in district court vs standing to appeal?

  • 29. Citizen Juries « Ci&hellip  |  April 22, 2014 at 6:41 pm

    […] Ninth Circuit Receives Briefs in Juror Discrimination CaseDate: 4/22/14Source: equalityontrial.com […]

  • 30. M.-  |  April 22, 2014 at 7:34 pm

    Off-topic question: Does anyone know what's going on with the Nevada case? It's taking so long! Thanks!

  • 31. Dr. Z  |  April 22, 2014 at 7:57 pm

    They're still growing the special flax that will then need to be refined into the paper they'll use to publish the hearing schedule.

  • 32. Mike  |  April 22, 2014 at 8:15 pm

    Some interesting news from Ohio, which clears up a major question. Freedom Ohio today received clearance for a revised ballot measure repealing the current gay marriage ban and replacing it with a provision providing for equal marriage. The clearance allows Freedom Ohio to *BEGIN* to collect signatures for this measure.

    This suggests that Freedom Ohio was lying repeatedly throughout the year when it told multiple media sources that it ALREADY HAD enough signatures gathered to put a measure on the ballot this November. Freedom Ohio refused to show the press those petitions containing hundreds of thousands of names, and I could find very little evidence online of the truly massive, labor-intensive effort which would have been required to actually gather all those signatures. Nor is there any evidence from Freedom Ohio's financial disclosures that it had enough cash to fund adequately such an effort. So either it never had these signatures to begin with and was blatantly lying for some reason, or by some mysterious process it actually obtained all those signatures but bizarrely is now chucking the entire effort in order to start a new measure. Either way, Freedom Ohio comes off as a bit wack, IMHO.

    But the great news is that the nightmare scenario in which they forced a ballot measure fight this year – with lower turnout, a more conservative electorate, and with no time to prepare – will not be happening. Either Ohio's marriage ban will be killed in the federal courts or, failing that, it will be up for a vote in 2016.

  • 33. Stefan  |  April 22, 2014 at 8:25 pm

    It's likely that the case will be heard during the week of May 12th. The reason it hasn't been officially posted yet is probably due to a lazy clerk.

  • 34. Ragavendran  |  April 22, 2014 at 8:42 pm

    I agree that the clerk who is in charge of scheduling has probably dozed off, but I was under the impression that the schedule must be official at least a month before. Maybe it isn't a hard and fast rule…

  • 35. Ragavendran  |  April 22, 2014 at 8:51 pm

    No, I don't think there was any blatant lying – just a misunderstanding. This whole thing is a big mess. See this article. There are TWO ballot measures making the rounds:

    FreedomOhio has been collecting signatures for two years for an amendment defining marriage as between two consenting adults and exempting "religious institutions" from performing or recognizing a marriage.

    Freedom Ohio has enough signatures (more than 650000) to put this first measure on the ballot this year. BUT, since there has been opposition over the language of this first measure, they had to amend it and get it re-approved, and the re-approval just happened:

    James said his group will begin the new push by contacting the more than 650,000 people who signed its initial petition.

  • 36. Zack12  |  April 22, 2014 at 8:54 pm

    Indeed..as you said the real goal here is to force a recusal hearing, which won't happen.
    No judge will want to open that door no matter how liberal or conservative they are.

  • 37. Colleen  |  April 22, 2014 at 9:24 pm

    It's cheap advertising– this will get NOM onto the news and into the papers, where I wager they'll talk less about marriage and more about "deeply held religious beliefs", in preparation for that appalling ballot measure they're trying to get going.

  • 38. Kevin  |  April 22, 2014 at 10:14 pm

    Yeah, I actually disagree with most of the posters here who expressed shock that they waited so long to file this. My suspicion is they could not find an attorney who was willing to put his or her name to it. Failing to even mention Supreme Court precedent seemingly on all fours (or perhaps all threes) with the present circumstance can be grounds for sanction.

  • 39. Lynn E  |  April 22, 2014 at 11:08 pm

    Guaranteed to elicit some "emergency" fund raising, however.

  • 40. Stefan  |  April 22, 2014 at 11:46 pm

    Yah I'm not sure but I'm sure it doesn't need to be since the briefs are submitted.

  • 41. Sam  |  April 23, 2014 at 12:35 am

    Maybe they are waiting to see what happens with Smithkline? Makes sense, the hearing was cancelled about the same time as they would of found out about the vote call.

  • 42. Mike in Baltimore  |  April 23, 2014 at 12:52 am

    In other news, the Supreme Court of India has agreed to reconsider it's December 2013 decision to recriminalize homosexuality in the South Asian country.
    ( http://www.washingtonblade.com/2014/04/22/india-s… )

  • 43. Mike in Baltimore  |  April 23, 2014 at 12:59 am

    I'm sure the people of Michigan, Ohio, Kentucky and Tennessee appreciate being called residents in a "backwater circuit".

    I may be incorrect, but I wouldn't bet on it.

  • 44. Sagesse  |  April 23, 2014 at 3:44 am

    "..on page 8. NOM denies that the two men can be parents to any children because it is biologically impossible."

    Way to bait the gay judge who is raising children. Not sure that's going to have the desired effect.

  • 45. Dr. Z  |  April 23, 2014 at 4:37 am

    I don't think NOM's goal is to win the case, they know that's impossible. That's why the Oregon Family Council, our local bigots, didn't even bother – they've got enough problems on their hands qualifying their gay Jim Crow measure for the November elections.

    In my estimation NOM is trying to delay a ruling until after May 22. That's the date by when Basic Rights Oregon requested a ruling from Judge McShane so BRO (and its elective arm Freedom to Marry) can decide whether to file their initiative to repeal Amendment 36, Oregon's DOMA law.

    By delaying a ruling and forcing BRO to file the repeal initiative, NOM gains a fundraising vehicle and sows confusion among voters, who must vote Yes on the Amendment 36 repeal but No on the Jim Crow measure. NOM can also blame the "radical homosexual activist judge" boogeyman for its inevitable loss in the courtroom, another plus for them since they always try to position themselves as the true victims. There are a couple of convenient ready-made stories to bolster their narratives in Melissa's Sweet Cakes (fined for violating nondiscrimination laws) as well as another more recent case in Portland's Sellwood neighborhood that has so far garnered less attention – you can bet NOM is about to fix that.

    So from NOM's perspective there is no downside to this. They were going to lose in court anyway, but by filing their frivolous delaying motions they benefit themselves.

  • 46. Retired_Lawyer  |  April 23, 2014 at 5:11 am

    No, marriage equality is not one of these issues, because it concerns a RIGHT. Racial preferences in the form of affirmative action, are in the realm of policy disputes, having arisen in the courts as a means of shaping injunctive relief to cure the results of past discriminatory treatment.. There is no right to racial preferences.

  • 47. Retired_Lawyer  |  April 23, 2014 at 5:46 am

    NOM, like any other membership organization, would only have to make a few minimal allegations concerning its interest in the litigation for permissive intervention, which involves the discretion of the court. Intervention as a matter of right ordinarily requires a showing of a particular well-defined interest, such as a mineral interest in land in dispute. The reason why permissive intervention usually doesn't have a standing component is that, presumably, there are already two parties to an actual dispute, thus satisfying Article III's requirement that there be a "case or controversy" for a federal court even to adjudicate a dispute. NOM's fatal mistake, in my view, was waiting until the night before a scheduled summary judgment argument to seek intervention. If this is not untimely, then what would be? The concept of timeliness as a requirement for these motions must mean something. As for recusal, neither that or any other motion will be heard from NOM unless and until intervention is granted. Finally, and I apologize for the length, standing to appeal means that the party must show a particularized injury from the order being appealed. If NOM is allowed to intervene, there is zero chance of its being allowed to appeal any injunction that does not order NOM to do something or restrain it from doing something. NOM's bluster about an appeal deserves to be called preposterous. That issue would be governed by the Supreme Court's decision in Hollingworth v. Perry. Dennis Hollingworth and the others who supported prop 8 were allowed to intervene at the district court level, but had no standing to appeal, because they were not affected by the injunction to any extent than all other citizens.

  • 48. Retired_Lawyer  |  April 23, 2014 at 5:59 am

    That would be my guess too. If Smithkline is not given en banc reconsideration, then heightened scrutiny will be the standard to be applied; but it would make sense to wait to find out which standard will apply to a case before hearing the case.

  • 49. Retired_Lawyer  |  April 23, 2014 at 6:04 am

    This is welcome news.

  • 50. Dr. Z  |  April 23, 2014 at 7:49 am

    Hm. But Judge McShane has a reputation for leaning over backwards to be fair, especially with the threat of a recusal motion lingering in the background. Timely or no, it wouldn't surprise me too much if he allowed their intervention even though NOM has no standing to appeal and they have no case to present. Otherwise the judge would be in the awkward position of throwing out a portion of the Oregon Constitution that was enacted by the voters but is not being defended by any other party.

    There goes our "bingo."

  • 51. Larry  |  April 23, 2014 at 8:45 am

    So in NOM's eyes, adoption doesn't exist?

  • 52. Ragavendran  |  April 23, 2014 at 8:51 am

    Small correction… it hasn't agreed (yet) to reconsider: "it would consider a motion to reconsider" but even this level of openness is most welcome news! The article says the Court is expected to hear oral argument next week to decide whether or not it will reconsider its decision (i.e., grant the curative review petition). This article is much more clear in what the roadmap is: http://www.livemint.com/Leisure/niu1YzYdbkJpTikDR

  • 53. Steve  |  April 23, 2014 at 8:56 am

    It's the same way they say gay people can't be married because marriage is between a man and woman. They are always playing word games.

  • 54. Eric  |  April 23, 2014 at 9:41 am

    If defendants choose not to defend their unconstitutional behavior, why should the judge step in and provide them with a defense against their will?

  • 55. Dr. Z  |  April 23, 2014 at 10:08 am

    For the same reason that Judge Walker permitted ProtectMarriage.com to intervene when the Gov and AG of California refused to defend Prop 8.

  • 56. Rose  |  April 23, 2014 at 10:42 am

    If NOM knew the State WASN'T going to defend….why ask to intervene 2 days before oral arguments if NOT to delay the proceedings?

  • 57. Eric  |  April 23, 2014 at 10:46 am

    But, ProtectMarriage.com was the initiative sponsor, whereas NOM is some group from out of state. The two groups are not similarly situated.

  • 58. bayareajohn  |  April 23, 2014 at 12:27 pm

    NOM can't expect to be allowed to intervene with this late showing. It's a showing, they expect to be denied, and they are already working on the press spin about how this so clearly shows that the rights of the RIGHT are systematically being trampled by actitvist gay judges. They win far more by being denied than by being heard.

  • 59. KarlS  |  April 24, 2014 at 1:40 pm

    I personally know a married couple, one male and one female, who are both gay.
    They don't have intimate relations, but then neither do a hell of a lot of 'normal' straight couples.

  • 60. KarlS  |  April 24, 2014 at 2:00 pm

    I would bet a thousand bucks against a cup of cold coffee that not more than 2% of the erstwhile citizens of those 4 states could tell you in which circuit they reside….

  • 61. bythesea  |  April 24, 2014 at 2:07 pm

    Probably a smidge too low, but I'd bet the percentage would be roughly the same in the other 46 states.

  • 62. bythesea  |  April 24, 2014 at 2:29 pm

    I do too. They are Southern Boomers who married legally to raise a child together with the legal protections marriage provides while not in a sexual relationship. Must be a happy and stable arrangement since their daughter must be in her late thirties by now and they're still together.

  • 63. Leo  |  April 24, 2014 at 2:37 pm

    I think they're comparing reversal rates (percentages), not absolute numbers. (But as ebohlman points out, the Sixth has surpassed the Ninth.)

  • 64. Mike  |  April 25, 2014 at 11:54 am

    I call BS. You don't spend nearly 2 years gathering 650,000 signatures and then chuck the entire effort and start from scratch because of some minor linguistic tweaks. There has been massive opposition to the entire 2014 effort from national groups and many Ohio groups, but Freedom Ohio had no problem responding with a big "we don't care". But this same group which blows off all critics is perfectly willing to to re-start the whole effort over linguistic tweaks? Nah, I ain't buying it.

    I think that they never had 650,000 signatures in the can. If they do have those signatures, let the press have a look. Reporters can agree not to disclose any specific names, but they should be able to inspect the thousands of petition pages filled with names. Let me know if that ever happens.

  • 65. Ragavendran  |  April 25, 2014 at 12:06 pm

    Let's wait and see what happens.
    https://freedomohio.com/press/?id=62

  • 66. Lee  |  April 25, 2014 at 12:07 pm

    I don't think they lied either. I've seen their financials and there is nothing that really indicates that they could not have have funded enough money getting those signatures. Quite frankly I can't help but wonder why you are putting so much effort into attempting to discredit them.

  • 67. Zack12  |  April 25, 2014 at 12:15 pm

    Because Ohio isn't Oregon.
    Putting it on the ballot this year in a mid term election where Democratic votes drop off by a lot is a fool's errand.

  • 68. DaveM  |  April 25, 2014 at 12:52 pm

    As an Ohioan, I know exactly what Circuit I'm in. And it's the only Circuit in which ME/ME-like cases have been litigated in all states within the Circuit, and all have won.

  • 69. KarlS  |  April 25, 2014 at 6:16 pm

    I went to the local WalMart this morning to pick up a few necessities (I am not a big fan of WM but it's either buy from them or drive 38 miles each way to another grocer)…I stood by the exit door for about half an hour and asked everyone who would pause long enough to listen "Can you tell me what Federal Circuit Appeals Court District we are in?"…of about 90 to a hundred people who responded, exactly ZERO knew we're in the 10th. I think my OP may have been overly optimistic. Yes, I know it isn't the 6th.

  • 70. Ragavendran  |  April 26, 2014 at 5:39 pm

    Check out the comments section of this article for some amusing misunderstandings: http://www.lgbtqnation.com/2014/04/appeals-court-

  • 71. Schteve  |  April 28, 2014 at 2:07 am

    That's irrelevant. The Supreme Court made clear that proponents have no greater interest in their initiative than do ordinary citizens. Walker agreed with that when he allowed them to intervene, seeing as he cited their lack of standing as a reason to not stay his order pending appeal.

  • 72. Michael Grabow  |  April 28, 2014 at 7:24 am

    Woahhh. That is kind of terrifying.

    Is that a site typically visited by much younger people?

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