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BREAKING: Arkansas judge strikes down state’s same-sex marriage ban

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Arkansas state seal

A state judge in Arkansas has struck down the state’s same-sex marriage ban as unconstitutional under the federal Constitution’s Equal Protection Clause.

The judge wrote:

Regardless of the level of review required, Arkansas’s marriage laws discriminate against same-sex couples in violation of the Equal Protection Clause because they do not advance any conceivable legitimate state interest necessary to support even a rational basis review.

And responding to arguments that the ban was supported by a majority of voters:

Furthermore, the fact that Amendment 83 was popular with voters does not protect it from constitutional scrutiny
as to federal rights. The very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. W.Ya. State Bd. of Educ. v. Barnette,319 U.S. 624,638 (1943). The Constitution guarantees that all citizens have certain fundamental rights. These rights vest in every person over whom the Constitution has authority and, because they are so important, an individual’s fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Id. at 638.

There does not appear to be a stay along with the opinion.

The decision can be read here. The case is Wright v. Arkansas.

Equality On Trial will provide updates as we read the opinion.

Thanks to Kathleen Perrin for these filings

For more information on Wright v. Arkansas from The Civil Rights Litigation Clearinghouse, click here.


  • 1. davep  |  May 9, 2014 at 3:01 pm


  • 2. gayathomemom  |  May 9, 2014 at 3:01 pm

    Holy Sh!t! Arkansas? LOL

  • 3. Corey from Maryland  |  May 9, 2014 at 3:05 pm

    Take that NOM!

  • 4. Richard L  |  May 9, 2014 at 3:05 pm

    I'm not surprised. Let's see what the stay situation looks like, I hope it is refused.

  • 5. Rich  |  May 9, 2014 at 3:06 pm

    I love Fridays!

  • 6. TKinSC  |  May 9, 2014 at 3:08 pm

    How did this happen?

  • 7. Bruno71  |  May 9, 2014 at 3:10 pm

    Assuming no stay from this judge, I guess the stay requests would go to an Arkansas state appeals court, and then the Arkansas Supreme Court. Barring any stay there, it could go to SCOTUS?

  • 8. Rik  |  May 9, 2014 at 3:13 pm

    You confuse me. On some threads you seem to be pro-equality and then sometimes you say douchey things like this.

  • 9. Ragavendran  |  May 9, 2014 at 3:20 pm

    I concur – this judge will probably refuse the request. The State will probably directly file an emergency request with the Arkansas Supreme Court, bypassing the Court of Appeals. The Arkansas Supreme Court, which unanimously upheld a 2010 decision striking down the ban on unmarried couple adoption, hasn't changed much since then. If they deny the stay, then, yes, the next stop will be SCOTUS.

  • 10. davep  |  May 9, 2014 at 3:21 pm

    Why don't you read the ruling for yourself and find out exactly how it happened? Just like you could have already read the rulings in the previous cases and found out just how idiotic and irrelevant your stupid trolling remarks have always been. There's the California Prop 8 trials, New Jersey, New Mexico, Utah, two trials in Texas, Oklahoma, Michigan, Virginia…. There's PLENTY of information available that clearly reveals precisely how and why these laws that deny the rights and protections of civil marriage to same sex couples are unconstitutional.

    Take an hour or two to stop your ridiculous trolling, pull your head out of the sand, read the rulings and learn the truth.

  • 11. LK2014  |  May 9, 2014 at 3:33 pm

    So will Arkansas same-sex couples be getting married this weekend?

  • 12. jpmassar  |  May 9, 2014 at 3:38 pm

    The order came after county clerks offices closed for the week. But they can expect a flood of applicants Monday morning. Pulaski County Clerk Larry Crane said he'd be ready with software to issue gender-neutral marriage licenses Monday morning

  • 13. Ragavendran  |  May 9, 2014 at 3:40 pm

    Fingers crossed that there won't be an emergency stay by a higher court over the weekend…

    His office says it will appeal Piazza’s ruling, and will ask Piazza “issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter."

  • 14. David ROH  |  May 9, 2014 at 3:52 pm

    The ruling explains succinctly why marriage equality trumps all the nonsense being spewed by religionist extremists. Beautifully written. The closing comment concerning Mildred Loving eas especially touching. Huge Thank You! to Ms. Perrin for the post to Scribd.

    (Member of the Restore Our Humanity Board)

    P.S. Utah's Judge Shelby gets a nod on page 7. ๐Ÿ˜€

  • 15. Stefan  |  May 9, 2014 at 3:52 pm

    I'm actually not sure they would appeal it to the Supreme Court. I know the adoption ban, which was struck down citing the US Constitution, was not appealed to them.

  • 16. Ragavendran  |  May 9, 2014 at 3:54 pm

    You may be right. The Arkansas AG claims to support gay marriage personally. Perhaps he will drop it beyond a certain stage.

  • 17. wetdog  |  May 9, 2014 at 3:58 pm

    Sorry for the down vote, fat fingers.

  • 18. David ROH  |  May 9, 2014 at 4:03 pm

    Sand? I was thinking a completely different location. ๐Ÿ˜‰

  • 19. Fr. Bill  |  May 9, 2014 at 4:04 pm

    It is in a state court. If the Ark SC refuses a stay it would only apply to Ark. Also, if I read his decision correctly, Judge Piazza ruled that the Arkansas Constitutional amendment and the ARK statue banning SSM were unconstitutional under both the US Constitution and the Arkansas Constitution. If the ARK SC refuses a request for a sty, would SCOTUS have jurisdiction to issue a stay and,if so, would they be likely to do so in light of the Ark SC's failure to issue one interpreting it's own state constitution?

  • 20. Rakihi  |  May 9, 2014 at 4:09 pm

    From the decision:

    "And, as Justice Scalia has noted in dissent, 'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples."

    Man, how many times have lower court judges cited Scalia in explaining why these marriage bans are unconstitutional?

  • 21. Fr. Bill  |  May 9, 2014 at 4:12 pm

    Off topic but the Hawaii AG has announced that he is withdrawing from the HI case before the Ninth Circuit and will not defend the appeal. Does this leave anyone with standing in the case? If not, would this speed things up in the Ninth Circuit on other cases pending before it?

  • 22. Pat  |  May 9, 2014 at 4:12 pm

    in other states, some clerks extended their opening hours during the weekend following a ruling. Is it possible that something similar happens here too?

  • 23. TKinSC  |  May 9, 2014 at 4:22 pm

    Does this mean that it passed?

  • 24. Fr. Bill  |  May 9, 2014 at 4:24 pm

    Does anyone know the guidelines/rules under Arkansas procedural practice and law that govern stay orders? I would imagine a cautious judge might wish to have this briefed and perhaps hear arguments on the motion to stay. Is there provision to go to the ARK SC for an "emergency stay"? If so what constitutes an emergency?

  • 25. Fr. Bill  |  May 9, 2014 at 4:25 pm

    PS mahalo a nui loa – thanks very much- for all the work you do on this site.

  • 26. sfbob  |  May 9, 2014 at 4:28 pm

    Not sure what you mean. Nothing has "passed." A state-level judge has ruled that Arkansas's ban on marriage equality violates the US Constitution based on the very same reasoning as Windsor and every single one of the other subsequent federal court rulings on marriage equality. With each new ruling there is additional precedent for each judge in each new case to draw from.

  • 27. sfbob  |  May 9, 2014 at 4:30 pm

    If I understand correctly, a stay–but not an "emergency stay"–is being requested. I'm not sure how this might play out since this is, after all, a state court ruling rather than a federal court ruling.

  • 28. Ragavendran  |  May 9, 2014 at 4:30 pm

    You're welcome, Bill :)

  • 29. ebohlman  |  May 9, 2014 at 4:31 pm

    Does this decision apply to all of Arkansas now or only to Pulaski County until an appeal is decided?

  • 30. Stefan  |  May 9, 2014 at 4:37 pm

    Presumably all of Arkansas, though some county officials will likely drag their feet a bit at first.

  • 31. ebohlman  |  May 9, 2014 at 4:40 pm

    Jackson has been separated from Sevcik (they were originally parallel-tracked, though not consolidated) so it shouldn't affect any pending cases.

  • 32. Bruno71  |  May 9, 2014 at 4:42 pm

    I believe SCOTUS would surely have jurisdiction as the case involves federal law issues. As for the Arkansas Constitution stuff, this is new territory. No state court before has overturned a constitutional amendment banning same-sex marriage after it's been put in place, using that very state constitution.

  • 33. Ragavendran  |  May 9, 2014 at 4:47 pm

    Interesting. The Ninth Circuit had set a new briefing schedule, on the issue of whether the enactment of the marriage legislation renders the appeal moot or not. According to the mootness briefing schedule, the opening brief was due April 25, the answering brief May 27, and the optional reply brief 14 days from submission of the answering brief.

    Both the Governor and the Plaintiffs filed opening briefs on April 25, and they were in perfect agreement that the "repeal of the challenged same-sex marriage ban moots the appeal", and asked the Court to vacate the district court's order and judgment. Further, both briefs argued that Baker is not controlling, sexual orientation requires at least heightened scrutiny, and that Hawaii's ban must fail even rational basis review.

    Then, on May 6, the Governor's office, in a letter, said that they won't be submitting an answering brief because, well… they agree with the Plaintiffs, and they have nothing more to say.

    The Ninth Circuit will probably grant the parties' joint request to moot the appeal, and vacate the district court's order and judgment. There is nobody left that can appeal this decision to SCOTUS.

    Nevada's Sevcik case, which was originally coupled with the Hawaii appeal and put on a parallel track, was decoupled in February when the Court agreed to "expedite" the former case. So, the resolution of the Hawaii case shouldn't affect Sevcik in any way.

  • 34. Ragavendran  |  May 9, 2014 at 4:57 pm

    Here's the rules for a stay pending appeal. There is no mention whatsoever of an emergency stay – I guess it is open to interpretation and at the discretion of the court.
    It is possible that there will be a temporary stay to allow time for briefing on the motion to stay, just like in the Michigan case.

  • 35. Mike in Baltimore  |  May 9, 2014 at 5:03 pm


    A case war brought in court, and a judge ruled on the case.

  • 36. KarlS  |  May 9, 2014 at 5:06 pm

    What the fuck is wrong with you? Have you sought treatment for what looks for all the world like a serious case of schizophrenia? Get some HELP…NOW.

  • 37. Zack12  |  May 9, 2014 at 5:09 pm

    And here I thought Oregon was going to be the 18th state with marriage equality.

  • 38. TKinSC  |  May 9, 2014 at 5:10 pm

    "[If] I read his decision correctly, Judge Piazza ruled that the Arkansas Constitutional amendment … banning SSM w[as] unconstitutional under … the Arkansas Constitution."

    You read it correctly. This judge would have declared Prohibition unconstitutional. Whatever your position on SSM, you can't justify a judge arrogating to himself the authority to declare constitutional provisions unconstitutional.

    If SCOTUS were to decide the obvious, namely that an Arkansas constitutional provision cannot violate the Arkansas constitution, then the remaining justification for the decision would be the US Constitution, and SCOTUS would thus have jurisdiction to issue a stay (as would any lower federal court).

  • 39. TKinSC  |  May 9, 2014 at 5:11 pm


  • 40. davep  |  May 9, 2014 at 5:12 pm

    …. I believe that what you are seeing are two different commenters. One is an anti-gay troll, who has frequently made idiotic and obnoxious anti-gay remarks that contribute nothing to the discussion and provide nothing more than cheap insults and NOM bumper sticker rhetoric, and the other is a more recently created account made by someone else to troll the troll with all of those 'closet case' comments seen in a previous discussion thread..

  • 41. TKinSC  |  May 9, 2014 at 5:13 pm

    " No state court before has overturned a constitutional amendment banning same-sex marriage after it's been put in place, using that very state constitution."

    The very idea of this is untenable on its face, and should result in an immediate stay from a higher court, and quite possibly the judge's disbarment for abuse of authority.

  • 42. TKinSC  |  May 9, 2014 at 5:14 pm

    Thanks sf. I remember this one now. It was the one with the 20 or so nice couples that were in the courtroom in Arkansas. Real moving testimony. It stuck out, because they kept talking about "the couples, the couples". I was rooting for them. I actually wanted this one to pass.

  • 43. TKinSC  |  May 9, 2014 at 5:16 pm

    Which is quite strange, considering that Scalia never said such a thing.

  • 44. Mike in Baltimore  |  May 9, 2014 at 5:19 pm

    The above should read "A case was "

    (Blankety-blank laptop. I can't wait to get a desktop back.)

  • 45. Ragavendran  |  May 9, 2014 at 5:27 pm

    The Judge certainly mentioned the inconsistency of Amendment 83 with Article 2, Section 2 of the Arkansas Constitution in Page 8. He writes that Amendment 83 "is an unconstitutional attempt to to narrow the definition of equality (as stated in Article 2, Section 2 of the Arkansas Constitution)." But then, his ruling concerns both Act 144 of 1997 and Amendment 83 of 2004. Since his order simultaneously says that Act 144 and Amendment 83 are "unconstitutional," without being specific as to which constitution, I think the best way to resolve the ambiguity is as follows:
    (a) Act 144 is in violation of both the Arkansas and US Constitutions.
    (b) Amendment 83 (whose purpose and effect conflicts with Article 2, Section 2 of the Arkansas Constitution) violates the US Constitution.

  • 46. Ragavendran  |  May 9, 2014 at 5:33 pm

    He did. See

  • 47. Mike in Baltimore  |  May 9, 2014 at 5:37 pm

    I was hoping Maryland would be 7th (matching it's 'admission' to the union), but a few states slipped in ahead of Maryland, making it the 10th.

    And technically, as of June 1, 2014, Illinois's law allowing ME kicks in (although for all intents and purposes, it already is in effect), so it will 'officially' (and almost certainly) become the 18th state (plus DC).

  • 48. TKinSC  |  May 9, 2014 at 5:37 pm

    Got it. Thanks.

  • 49. Bruno71  |  May 9, 2014 at 5:39 pm

    Not really, if the ACT of putting said amendment in the Arkansas constitution (the vote and subsequent amendment) was unconstitutional at the time it happened. Anyway, we'll see what happens. It probably doesn't matter what his rationale was in re the Arkansas constitution, because he's on very solid and popular footing when it comes to his reading of the federal law, especially after the Windsor ruling.

  • 50. Rakihi  |  May 9, 2014 at 5:40 pm

    Does TKinSC EVER read court decisions before spouting off an opinion? LOL

  • 51. Ranjit  |  May 9, 2014 at 5:42 pm

    Illinois is already counted amongst the 17 :)

    I guess we shall find out Monday morning if there will be an appeal (almost certain ?) and associated stay (almost certain ?).

  • 52. Thomas  |  May 9, 2014 at 5:45 pm

    You should read the Arkansas constitution. It contains this clause at the end of the enumeration of the rights of the citizens of Arkansas: 29. Enumeration of rights of people not exclusive of other rights – Protection against encroachment.
    This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void." Thus no other provision of the Arkansas constitution can deprive anyone of the enumerated rights. I don't know if any other state has such a provision.

  • 53. KarlS  |  May 9, 2014 at 5:45 pm

    Which is demonstrative of the mess that can arise from making amendments to Constitutions so easy to accomplish. (A problem that so far has been restricted to State Cons and should warn us of the danger)

  • 54. Warren  |  May 9, 2014 at 5:56 pm

    Another win for JUSTICE!

  • 55. Fr. Bill  |  May 9, 2014 at 5:58 pm

    I wouldn't be so sure that Judge Piazza will issue a stay order – he seems to take fundamental human cnd civil rights very seriously – as a judge should. What the Arkansas SC will do is a too-up. They didn't stay Judge Piazza's earier decision.

  • 56. Ragavendran  |  May 9, 2014 at 6:01 pm

    I may be wrong, but on a quick skim, I think the adoption ban was an act and was struck down citing the Arkansas constitution. The Arkansas Supreme Court refused to rule whether it violates the US Constitution. See Conclusion in this PDF:
    So that case couldn't have been appealed to SCOTUS.

  • 57. Mike in Baltimore  |  May 9, 2014 at 6:04 pm

    Nah. He/she/it just let's his/her/it's NOM and bigot talking points get posted, then he/she/it makes a post blaiming his/her/it's "I'm still in the closet' self speak.

  • 58. davep  |  May 9, 2014 at 6:05 pm

    Sigh. No.

  • 59. Retired_Lawyer  |  May 9, 2014 at 6:06 pm

    Ragavendran, your reading of the Judge's decision on this point is correct. The Judge refers to the U.S. Constitution being violated by Amendment 83 of the Arkansas Constitution. In general, a Judge should be applauded for concise writing; and this Opinion is concise. But I had to re-read this passage twice, because the Judge was a little too terse. Anyway, it is a heartening piece of work, especially as it relies on and refers to some of the leading recent U.S. District Court decisions on marriage equality.

  • 60. StraightDave  |  May 9, 2014 at 6:35 pm

    OR will be 18th. They'll be done long before AR because OR won't appeal. They're just waiting until NOM's final 15 milliseconds of fame are up next Wed.

  • 61. Mike in Baltimore  |  May 9, 2014 at 6:38 pm

    Illinois is NOT already included in the 17 allowing ME.

    In no particular order (except MA, the first state allowing ME):
    1. Massachusetts
    2. Maine
    3. New Hampshire
    4. Vermont
    5. Rhode Island
    6. Connectucut
    7. New York
    8. New Jersey
    9. Delaware
    10. Maryland
    11. Iowa
    12. Minnesota
    13. New Mexico
    14. California
    15. Washington (state)
    16. Hawaii
    17. (technically as of June 1, 2014) Illinois.

    Washington, D.C. also has ME, and is considered one of the jurisdictions with ME, but D.C. is NOT a state.

    In other words, YOU may count today as later than June 1, 2014, but the calendar I (and most people) recognize says May 9, 2014 is about 3 weeks PRIOR to the effective date of ME in Illinois on June 1, 2014. And one gets to 18 by counting D.C. (and to remind you, D.C. is NOT a state, otherwise it would have two Senators and a Congressperson in the US Congress).

  • 62. StraightDave  |  May 9, 2014 at 6:45 pm

    Friggin Wikipedia is already on top of it. They list AR as a SSM state with no asterisk. They even colored in the state dark blue. In fairness, in the text they mention no stay has been issued. Therefore, SSM is the law of the land at the moment. All the clerks offices' currently being closed is just a formality, apparently. It's legal!
    We'll see what Sat or Mon bring to the picture. Any reports of rioting in the streets yet?

  • 63. Guest  |  May 9, 2014 at 6:47 pm

    I think what Ranjit implied (and what the list above indicates) is that, not counting Illinois (until 6/1/14) or D.C. (not a state), 16 states currently have full marriage equality.

  • 64. RCChicago  |  May 9, 2014 at 6:58 pm

    I find it fascinating to see the common threads that link these rulings—judges quoting the same cases, utilizing the same quotes to make their points. It's pretty wonderful.

  • 65. StraightDave  |  May 9, 2014 at 7:05 pm

    People are getting married all over IL now, legally, inside the state boundaries. They might have to drive a bit further in some cases, but that's only an inconvenience. Both the state and Fed govt's recognize them.

  • 66. SeattleRobin  |  May 9, 2014 at 7:16 pm

    At this point I'm not convinced the rules regarding stays are relevant. It seems like judges are just doing as they please, some issuing them and some not. In several instances the states didn't meet the requirements in a glaring fashion, but still got one. And honestly, it seems the stay denying judges have been almost as capricious.

  • 67. Mike in Baltimore  |  May 9, 2014 at 7:29 pm

    What 'ranjit' said (NOT implied) , was present tense, not 'implied' future tense.

    "Illinois IS already counted amongst the 17 :)"

    The court order you and others may be thinking of applied ONLY to Cook County. Two additional counties (maybe more?) joined Cook County in allowing 'early ME weddings', but the state law remains with an effective date of June 1. Since June 1 is in the future, Illinois does NOT currently have ME in the entire state, just in a few, scattered, pockets.

  • 68. Rakihi  |  May 9, 2014 at 7:33 pm

    Meanwhile in Oregon: Backers of exemption to serving gay weddings drop their initiative, will file lawsuit in court instead.

  • 69. Guest  |  May 9, 2014 at 7:39 pm

    Mike in Baltimore: "Illinois is NOT already included in the 17 allowing ME."

    … but t's either 17 counting IL, or 16 not counting IL. Also, these totals don't include DC (not a state), AR (likely imminent appeal), or any of the other states with federal cases currently stayed pending appeal.

  • 70. StraightDave  |  May 9, 2014 at 7:47 pm

    Like that's gonna have better odds?
    SCOTUS just declined to hear the NM photographer's case. Lower courts will quickly take the hint.

  • 71. Mike in Baltimore  |  May 9, 2014 at 7:55 pm

    Does that mean EVERY county in Illinois is 'giving out' marriage licenses to all who apply (including same sex couples) today, May 9, 2014, or will some (most?) counties wait until June 1 before 'giving out' marriage licenses to all who apply, including same sex couples?

  • 72. Sagesse  |  May 9, 2014 at 8:35 pm

    There's this song running through my head…

    Queen. Another One Bites the Dust.

  • 73. StraightDave  |  May 9, 2014 at 8:56 pm

    The latter, of course. But I'm sure you know that.

    But my point was that any SS couple who wants to get married in IL can do that today, with varying degrees of inconvenience (or none at all). You don't have to be a resident of the county that issues your license. You don't even need to get married in said county. You just need to receive, pay, and return your paper work to one of the cooperating counties. You can have your marriage ceremony anywhere in the state you like. No SS couples are prevented from getting married in IL. Is that perfect? No. But there are NO LEGAL RESTRICTIONS to getting married, just some awkward geographical barriers to navigate.

  • 74. Ragavendran  |  May 9, 2014 at 8:58 pm

    Here it is. The AG has asked Judge Piazza for "an immediate stay":
    He is also filing an appeal with the Arkansas Supreme Court (bypassing the appeals court). And here is the filing, thanks to Kathleen:

  • 75. Eric Koszyk  |  May 9, 2014 at 9:32 pm

    Could this person be two people?

  • 76. Eric Koszyk  |  May 9, 2014 at 9:34 pm

    It would be better if both their accounts were shut down. We really don't need trolls here. This place seems like it's going downhill.

  • 77. Eric Koszyk  |  May 9, 2014 at 9:37 pm

    Are there any jurisdictions open tomorrow for people to get marriage licenses?

  • 78. TKinSC  |  May 9, 2014 at 10:49 pm

    How come you have a big red -72 next to your name when your comment shows on the The Recent Comments section on the top left of the site? I don't get it. I've seen that a few times and have been wanting to ask.

  • 79. Ragavendran  |  May 9, 2014 at 11:13 pm

    Just read their request. It's pretty ordinary. They're not even trying. I guess they had to come up with it at such short notice… or not (they might have anticipated that they'd lose). It's all blah blah blah every state has had their ruling stayed, so you should stay too.

    It doesn't look like Piazza will stay his ruling immediately. The Arkansas Supreme Court Justices, according to Judgepedia, are surprisingly liberal leaning, so there is a likelihood of them not granting a stay either. Will the State then appeal to Alito? He'll gladly grant the stay.

    My knowledge of case law is very limited, but the only instance I'm aware of where the US Supreme Court stayed a state court's decision was in Bush v. Gore, but that was an extraordinary case, and it was a stay pending appeal to SCOTUS itself, as opposed to stay pending appeal to a higher state court as is the case here. Anyone know of other examples?

  • 80. TKinSC  |  May 9, 2014 at 11:32 pm

    Yes, there is:

  • 81. TKinSC  |  May 9, 2014 at 11:35 pm

    Notice the Jesus statue and picture of the church on the front page of this government site. Oh, brother. You've got to be kidding me, right? How tacky. And they get to hand out marriage licenses to LGBTs who have been waiting years for them. Looking forward to reports tomorrow.

  • 82. Guest  |  May 9, 2014 at 11:37 pm

    "Illinois is NOT already included in the 17 allowing ME. "
    And to prove your point, you provide the list of 17 states, among which you INCLUDE Illinois…

  • 83. TKinSC  |  May 9, 2014 at 11:45 pm

    Thanks for pointing that out. Giving a thumb up for you.

  • 84. TKinSC  |  May 10, 2014 at 12:01 am

    You spend time (transcribing), money (PACER), research, and thought on this issue. Your contributions are invaluable. This site would not be the same without you. You're an important supplement to the front page posts.

    Thank you.

  • 85. Ragavendran  |  May 10, 2014 at 12:08 am

    A limited report on some counties:

  • 86. TKinSC  |  May 10, 2014 at 12:10 am

    Why so technical on this? It's suffocating. Love the passion, but this is a little overboard.

  • 87. TKinSC  |  May 10, 2014 at 12:11 am

    Thank you Guest. I saw that too. He's well intentioned, but he hurts my head sometimes.

  • 88. TKinSC  |  May 10, 2014 at 12:16 am

    It is moving. It 's like everything is coming together as it should be. So much better than the struggle.

    It will only help the mental health of LGBTs in the long run. Acceptance builds self-esteem.

  • 89. TKinSC  |  May 10, 2014 at 12:17 am

    Terrific news!

  • 90. TKinSC  |  May 10, 2014 at 12:19 am

    I will also add this will save the LGBT side precious resources that won't have to be spent on this. Not to mention the ugly public divisiveness of it.

  • 91. Rose  |  May 10, 2014 at 12:29 am

    Just out of curiosity…..what does smoking have to do with the right to marry?

    Also, percentages mean NOTHING if one doesn't know the methodology used…… other words, NO ONE knows how many smokers really are Gay or Lesbian!!!

  • 92. TKinSC  |  May 10, 2014 at 12:41 am

    I take it you smoke? It seems to have inadvertently pushed a button. The article, assuming you didn't read it through, make a lot of sense. It's well known the smoking rate is unfortunately higher for LGBTs.

    Why do you shout in caps so much and pour on the exclamation points? Stress? I'm sure some others have wondered that here, but are being "polite" by not saying anything. Your passion for equality is commendable. Just don't let it blind you to the bigger picture.

    From the article:
    Instead, the solution to the LGBTQ smoking crisis is, essentially, to do nothing—nothing more, that is, than we’re already doing to promote gay rights across the country. Every time a states’ citizens give the thumbs-up to gay marriage, every time a federal judge grants basic equality to gay people, a new generation of LGBTQ youth becomes a little less prone to self-hatred and self-destruction. Supreme Court Justice Anthony Kennedy’s insistence that gay people deserve equal dignity probably did more to curb smoking among gay youth than any anti-smoking ad ever could. As gay people become more accepted in mainstream life, so, too, will gay teens feel less tempted to exorcise their agony with risky behavior like smoking. But until gay people are truly welcomed in all facets of society, gay kids will keep turning to those vices that, in the midst of such overwhelming bleakness, provide a fleeting (and ruinous) moment of relief.

  • 93. Guest  |  May 10, 2014 at 3:40 am

    Since you love being pedantic and pointing out everybody's small mistakes, it's probably appropriate to let you know that "it's" talking points should be spelt "ITS".

  • 94. Pat  |  May 10, 2014 at 3:51 am

    Damn, so all county clerks that open on Saturday happen to be anti-gay?

  • 95. grod  |  May 10, 2014 at 4:03 am

    Mike – 16 of the 102 counties offer licenses. Taking into account population by county, counties offering licenses comprise 70% of the state's population over 18.

  • 96. Dr. Z  |  May 10, 2014 at 4:22 am

    Eureka Springs is (was?) a pretty little town in the Ozarks. I visited there as a kid. It's not far from Branson MO, however, so it's entirely possible it's become a tourist trap in the four decades or so since I was there. I seem to recall a lot of antique shops. The Jesus statue is Christ of the Ozarks, as I dimly remember.

    If you're allergic to tacky then stay away from any major tourist destination in the South, particularly small towns.

  • 97. Dr. Z  |  May 10, 2014 at 4:35 am

    Guessing you're British or Australian? "Spelt" is considered a spelling mistake by most Americans. (Not by me. I used to work for a Canadian telecom company and to this day spell "dialing" as "dialling").

  • 98. Guest  |  May 10, 2014 at 4:48 am

    I hope a reporter will ask Ms. Currie which part of Judge Piazza's order is so confusing to her that she needs to obtain guidance from the court. It seems to me that his opinion made it clear that marriage equality should be implemented immediately.

  • 99. Dr. Z  |  May 10, 2014 at 5:10 am

    This "who came first" thread gets rehashed every time we have a major victory. It's kind of our version of doing a little touchdown dance in the endzone, nothing more.

    And since we ARE rehashing it, I will repeat my opinion that we should be counting the year when each legislative/legal/electoral victory occurred rather than the dates when the first licenses were issued statewide. But I hate reducing history to the bland memorization of dates.

  • 100. Zack12  |  May 10, 2014 at 6:21 am

    Pretty much. In other places they all happened to get "sick" at the same time.

  • 101. Retired_Lawyer  |  May 10, 2014 at 7:25 am

    Rahki, thanks very much for bringing this good news to the spotlight. The LGBT community in Oregon will save a lot of time, money, and aggravation in not having to oppose a discriminatory initiative. Let the ant-gay contingent sue. Lawsuits asserting a right to violate civil rights laws have a long and unsuccessful history. At least a suit of the kind described will give John Eastman of Chapman University something to do, assuming Judge McShane turns down his attempted intervention in the Geiger case.

  • 102. TKinSC  |  May 10, 2014 at 7:56 am

    Christ of the Ozarks? Thanks. That gives context.

    Thanks too for the tip on tacky. Tacky can be fun. When I saw the Jesus picture, it made me think how some municipalities try to blur the lines between separation of church and state or flaunt their religiosity to the exclusion of others. And those ones usually aren't pro-equality. It fed a stereotype.

  • 103. Retired_Lawyer  |  May 10, 2014 at 8:04 am

    In other news, the Associated Press is reporting today that in the Bostic case to be heard by the Fourth Circuit on Tuesday, May 13, more than 50 friend of the court (amicus) briefs have been filed, totaling more than 2,100 pages.

  • 104. TKinSC  |  May 10, 2014 at 8:14 am

    I couldn't tell from her county site if she would normally be open today. If she is and she's handing licenses out to opposite sex couples, she better be handing them out to same-sex couples.

    Let's not start using "caution" as a crutch not to serve same-sex couples. Instead, what should be normal is, when there is no stay issued on these decisions, licenses are handed out like normal and, if needed, they work their way through the courts like the ones that were in UT and MI should a stay subsequently be granted. Each time an LGBT has to go through all these hoops to be treated like non-LGBT couples, it reinforces the ridiculousness of holding these couples back to the average person and then the "antis" get less comfortable in their place because they can't feel superior to others. Some of them become supporters or at least tamp it down, because it's uncomfortable being an outsider. Might not be the most idealistic way to become a supporter, but it has the same effect.

  • 105. Thomas  |  May 10, 2014 at 8:18 am

    1st license issued in Eureka Springs at 10:00 a.m. per joemygod post.

  • 106. TKinSC  |  May 10, 2014 at 8:21 am

    It's interesting and sometimes surprising how quick the anti-equality is caving on some of their initiatives. It might be due to conditioning of seeing them so steadfastly stay on a sinking ship. I wonder what their "boardroom" meetings look like? Still trying to get conditioned to the positive changes happening with this.

  • 107. TKinSC  |  May 10, 2014 at 8:24 am

    Yeah. Thanks, and thank you Christ of the Ozarks. I'm liking you better all the time.

    Here is the context:

  • 108. TKinSC  |  May 10, 2014 at 8:29 am

    Pictures of happy couples in Arkansas. This gave me the happy tingling feeling.

  • 109. TKinSC  |  May 10, 2014 at 8:30 am

    Look at this older woman, cane and all. Very moving.

  • 110. TKinSC  |  May 10, 2014 at 8:33 am

    I think the woman with the cane was a lawyer in the case. Even better. Look how happy this couple is.

  • 111. TKinSC  |  May 10, 2014 at 8:40 am

    Some levity this AM from Louis C.K.

  • 112. TKinSC  |  May 10, 2014 at 8:46 am

    Male happy couple. It's great they even found some matching white suits to wear.

  • 113. SoCal_Dave  |  May 10, 2014 at 8:47 am

    YOU are giving advice on posting??? Just when I thought I couldn't stand to see another post from you, you go and get funny. Or is this now your 3rd personality?

  • 114. Chad  |  May 10, 2014 at 8:53 am

    looks like marriage licenses are being issued in AR!

  • 115. Chad  |  May 10, 2014 at 8:58 am

    and marriages are underway!!!!

  • 116. TKinSC  |  May 10, 2014 at 9:05 am

    This blog is good for updates.

    Excerpt from the current post:
    As we reported earlier today, the Association of Arkansas Counties has scheduled a conference call for county clerks and county attorneys at 2 p.m. today to discuss ramifications of the Piazza ruling.

  • 117. jpmassar  |  May 10, 2014 at 9:12 am

    First Same Sex Marriages Take Place in Arkansas. As it happened in tweets.

  • 118. StraightDave  |  May 10, 2014 at 9:14 am

    Here's were a responsible AG is supposed to step in and exercise his role of providing legal advice to state agencies. The only correct legal advice, of course, is "as of 5pm 5/9/14, marriage is available to all couples otherwise qualified and licenses should be issued until a court informs us otherwise". That's one of the reasons AR has an AG. Where is he?

  • 119. StraightDave  |  May 10, 2014 at 9:19 am

    I'm actually a bit surprised AR could move so fast. But I guess there are encouraging pockets to be found everywhere and people willing to be out, even in the South.

    I just wish they had held the ceremony under the friggin statue, since the govt seems to want it to be part of their whole deal. Seems it's only fair.

  • 120. TKinSC  |  May 10, 2014 at 9:21 am

    Having an affair?

    How can we protect the Sanctity of Bigotry with all of these equal rights breaking out?

  • 121. TKinSC  |  May 10, 2014 at 9:25 am

    Let's remember this the when the next wall falls in the South. I think this is instructive. People are ready. I'm looking at you Florida.

  • 122. StraightDave  |  May 10, 2014 at 9:27 am

    As noted in another thread, the audio recording will be available online within a couple hours afterward at….
    I. Can't. Wait.

    The opponents' arguments have all been shredded to bits by 7 or 8 other courts in the meantime. How are they gonna even show up with a straight face now?

  • 123. TKinSC  |  May 10, 2014 at 9:36 am

    31 for the pro-equality side:

    21 for the anti-equality side:

  • 124. TKinSC  |  May 10, 2014 at 9:45 am

    Did anyone see this? What a great idea. This is under the radar, bit its initiatives like this that are subtly impactful. This would not<'i> be happening with a President Romney.
    <a href="
    ” target=”_blank”>

  • 125. Rose  |  May 10, 2014 at 10:09 am

    Congratulations to the newlyweds<3

  • 126. TKinSC  |  May 10, 2014 at 10:12 am

    I agree. I think most count when it passed and not its effective date. Then it can be put in the Win column.

  • 127. Ragavendran  |  May 10, 2014 at 10:38 am

    I like the phrase "fighting Kennedy with Kennedy" in this article.

  • 128. TKinSC  |  May 10, 2014 at 10:51 am

    The link is broken. 404 error.

  • 129. ragefirewolf  |  May 10, 2014 at 11:06 am

    I think people think you're a troll because you say contrary things in an attempt to be sarcastic or satirical but you're coming off as confused and incorrect. It doesn't hurt to give more thought to your posts before you put them out there.

  • 130. Dr. Z  |  May 10, 2014 at 11:11 am

    If it's tacky you're after, try Branson Missouri or Gatlinburg Tennessee.

  • 131. Ragavendran  |  May 10, 2014 at 11:12 am

    Oops! Copy-Paste Mixup. Here is the link:

  • 132. TKinSC  |  May 10, 2014 at 11:15 am

    He did have an affair. That's the origins of the comment. I realize that may not be common knowledge. I just learned of it when he came out in "personal" support for marriage equality.

  • 133. Dr. Z  |  May 10, 2014 at 11:19 am

    Also this week, the Oregon judge is holding a hearing on NOM's intervention request on Wednesday May 14.

  • 134. Steve  |  May 10, 2014 at 11:24 am

    Who are you and what have you done to TKinSC?

  • 135. Dr. Z  |  May 10, 2014 at 11:27 am

    Hm, interesting. Wonder if that was a provision added when Arkansas was readmitted to the Union. If so, maybe there's a chance that other ex-Confederate states could have a similiar provision?

  • 136. TKinSC  |  May 10, 2014 at 11:29 am

    Busy week ahead for marriage equality:
    Monday: 5/12 All Briefs Due in Whitewood v. Wolf (PA)
    Tuesday: 5/13 Oral Arguments in Bostic v. Schaefer (VA)
    Wednesday: 5/14 Decision on NOM intervention and possible decision on merits (?) (OR)
    Thursday: 5/15 5/15 Oral Arguments in Palladino v. Corbett (PA)


  • 137. Dr. Z  |  May 10, 2014 at 11:31 am

    Actually I think it's pretty funny. Let's just roll with TK for a while, who knows what will happen.

  • 138. ragefirewolf  |  May 10, 2014 at 11:49 am

    I think you missed my point entirely

  • 139. Thomas  |  May 10, 2014 at 11:49 am


  • 140. Ragavendran  |  May 10, 2014 at 12:08 pm

    Also on Monday: Optional reply brief due in Ohio's Obergefell appeal at the Sixth Circuit.
    Also on Tuesday: Oral argument before the Alaska Supreme Court in the Harris case (same-sex survivor benefits case).
    On Wednesday: Not necessarily a decision on NOM's intervention. Oral argument will be held on NOM's motion to intervene.
    Also on Wednesday: Last day for Ohio to file notice of appeal in Henry – I'm surprised they still haven't appealed Judge Black's decision. If they don't do it by Wednesday, Judge Black's "stay pending appeal" will lapse, won't it?
    (Also early next week, expect drama from Arkansas on emergency stay requests, appeals, etc. and sometime in the next ten days, expect to learn whether SmithKline has been voted to be reheard en banc by the Ninth Circuit.)

  • 141. Zack12  |  May 10, 2014 at 12:19 pm

    It won't fly.
    Marriage equality and AA are two whole different ballgames.

  • 142. Ragavendran  |  May 10, 2014 at 12:27 pm

    Yeah, like Peggy Tomsic pointed out in the article – she said it perfectly. They are comparing apples and oranges.

  • 143. Zack12  |  May 10, 2014 at 12:42 pm

    Plus, if they want to know what luck they'll have, all they have to do is look what Kennedy did with the VRA and DOMA.
    He took an ax to both of them.

  • 144. DaveM  |  May 10, 2014 at 1:06 pm

    Ragavendran, you must've missed my post in the Ohio thread. The Columbus Dispatch reported DeWine filled the appeal on Friday.

  • 145. Ragavendran  |  May 10, 2014 at 1:19 pm

    Oh I see. We're being flooded with so many TKinSC posts that I miss out on such important updates! It's not showing up in PACER yet, though. I wanted to grab the appellate case number.

  • 146. TKinSC  |  May 10, 2014 at 1:23 pm

    We know that some Republican appointed judges side with equality while many Democratic ones do. Of note, with the confirmation of President Obama's nominee earlier this week to the Tenth, the court is now full with & Democrats and 5 Republicans. Could be fortuitous if there's a request for en banc.


  • 147. TKinSC  |  May 10, 2014 at 1:24 pm

    7 Democrats and 5 Republicans

  • 148. TKinSC  |  May 10, 2014 at 1:32 pm

    This was posted yesterday in Prop 8 Trial Trackers. You may want to consider joining this group or at least lurking in it. They almost always have posts there before here. It's run by Kathleen Perrin and Scottie gets most of his stuff from her (as we see in his thanks to her). That's why the updates come later here.

  • 149. Ragavendran  |  May 10, 2014 at 1:37 pm

    Thank you. I'm well aware of that group. It's closed and I've asked to join for a while now. They are too busy or they don't want me there. I haven't checked them out since yesterday morning, so I must have missed this bit of news.

  • 150. TKinSC  |  May 10, 2014 at 1:44 pm

    My request was pending for several weeks. Katherine holds the keys. If you post on her page letting her know (it's open for posting) she'll get the message and likely respond. I think she gets them right away as she's pretty quick. She is a busy woman but responds to comments. Hope to see you there.

    Her page:

  • 151. davep  |  May 10, 2014 at 2:10 pm

    This is wonderful! I've been stuck on an airplane since this morning, traveling home from a week of working out of town, and I'm just now seeing the news that marriage licenses were being issued to same sex couples in Arkansas today. Excellent news for this fine Saturday afternoon!!

  • 152. Mike in Baltimore  |  May 10, 2014 at 2:13 pm

    When I was in college, a friend of mine had a US father and a Canadian mother. His mother said at first, she would look at a word to see if it was spelled correctly (in Canadian) and automatically know it was spelled differently in 'American English'. That worked for about 15 years. Then she became so 'Americanized', she didn't know which was correct, and which wasn't.

  • 153. Retired_Lawyer  |  May 10, 2014 at 2:18 pm

    Thank you for posting that information, TKinSC. It is very useful.

  • 154. Mike in Baltimore  |  May 10, 2014 at 2:39 pm

    And then we have cases like Washington state and Maryland, where the legislature passed ME, but then it was put on the ballot, and the people had to vote on it.

    Do we count when it passed the legislatures (in early 2012 in both states), or when the voters approved the measure (in November 2012)?

    Or do we ignore the effective date entirely? In Maryland, it was January 1, 2013, written into the legislation.

    It is the effective date that I rely on. If someone commits a crime the day before they turn the age of majority for that crime, even if the trial occurs 2 years later, the accused is tried as a minor. The date the crime occurred is the controlling point.

    This is why almost all who have studied history (as I have) are so adamant about effective dates, and not other factors.

  • 155. SHOEFLINGER  |  May 10, 2014 at 2:44 pm

    Is this going to get stayed? I'm getting squeamish in suspense.

  • 156. Ragavendran  |  May 10, 2014 at 3:45 pm

    Odds are it will get stayed, probably by the Arkansas Supreme Court (despite it being surprisingly liberal leaning) if not by Judge Piazza. The more pressing question is when the stay will come, and how many couples manage to get their licenses by then. Hopefully there is enough time before a temporary stay is issued. (Usually a higher court will issue a temporary stay during which time the court asks for briefs from both sides to decide whether a permanent stay pending appeal is warranted.)

  • 157. Ragavendran  |  May 10, 2014 at 3:55 pm

    Thanks for the tip! I wasn't able to post on her timeline, but I sent her a message on Facebook instead. It goes to her "Other" folder, but I hope she sees it soon :)

  • 158. TKinSC  |  May 10, 2014 at 5:50 pm

    Update on issuing further licenses from Association of Arkansas Counties conference call earlier today. Ragavendran is right. This next week will be interesting in Arkansas.

  • 159. TKinSC  |  May 10, 2014 at 6:00 pm

    Marone a mi. Count both.

  • 160. TKinSC  |  May 10, 2014 at 6:05 pm

    Good news. Organizers of 2016 Arkansas marriage equality initiative are "stepping back" as the issue is appealed. Why put it to a popular vote at this point?

  • 161. TKinSC  |  May 10, 2014 at 6:55 pm

    It's true that the two cases have material differences, so that a decision in one does not determine the other. However, the same can be said of the Windsor decision. Suffice it to say that the ruling in the AA case weighs in favor of letting democracy decide contentious issues such as gay "marriage", and counsels restraint by the courts.

  • 162. Rakihi  |  May 10, 2014 at 7:05 pm

    I'm not sure if someone else already posted this, but here's NOM's reply as to why it should be allowed to intervene in the Oregon case:

  • 163. TKinSC  |  May 10, 2014 at 7:10 pm

    That bunch is like reasoning with a Corn Flake.

  • 164. TKinSC  |  May 10, 2014 at 7:12 pm

    Alright I suppose that gives him *some* leeway. However, the passage of a constitutional amendment doesn't sound to me like one of the "general powers of government", nor does it sound like one of the "laws" that this provision voids. Indeed, it is a dangerous thing to tell the people that they can't change their constitution if they so desire. The only (now relevant) provision of the U.S. Constitution that can't be amended is equal suffrage for states in the Senate.

    And in any case, considering that nobody who passed this provision likely had any inkling that it would require same-sex "marriage", I think it fair to say that SSM is *not* one of the rights, enumerated or otherwise, contemplated by this provision.

  • 165. TKinSC  |  May 10, 2014 at 7:23 pm

    I can't edit my posts so I'll add this. I forgot to mention that state constitutions are subject to compliance with the federal constitution, and that people will get over their reluctance especially since popular opinion has changed since it was passed in 2004. Readers here know that the US Constitution is not subject to the whims of people on any given day anyway – fortunately.

  • 166. TKinSC  |  May 10, 2014 at 7:29 pm

    As I understand it, Amendment 83 is part of the Arkansas Constitution. Therefore, Act 144 cannot violate the Arkansas Constitution unless Amendment 83 is itself an invalid amendment. I'm extremely skeptical of the notion that a constitutional provision cannot be overridden by a future constitutional provision (this assumes, of course, that the original provision meant what the judge said it meant). At the very least, the command should be explicit, something along the lines of "No amendment to this constitution may be made which shall deny or disparage any of the rights contained herein."

    As for the federal constitutional claims, the following points should be noted:
    1) The state is in the 8th circuit, whose appeals court has already ruled that same-sex "marriage" is not required by the 14th Amendment (Citizens for Equal Protection v. Bruning).
    2) The Windsor decision expressly limits its application to relationships already legally recognized as marriages by the state involved, and hence does not overrule Bruning.
    3) Every federal court that has attempted to say that Windsor means what Windsor expressly denies meaning has either stayed its decision or had it stayed by a higher court (including the Supreme Court in the Utah case).

  • 167. TKinSC  |  May 10, 2014 at 7:35 pm

    The link is slow-loading, but even without reading it I can assure you Scalia never said same-sex "marriage" bans are unconstitutional. (That's what I meant by "such a thing", not the cited quote.)

  • 168. Ragavendran  |  May 10, 2014 at 7:37 pm

    See Thomas's comment above. Arkansas's Constitution seems to be special in that it includes language that allows future amendments to be struck down if they are in violation of the enumerated rights.

    Regarding Bruning, the federal appeals court does not bind Arkansas state courts (even on federal issues). The only federal court that binds state courts is the US Supreme Court, on federal issues.

  • 169. TKinSC  |  May 10, 2014 at 7:44 pm

    Yes, because those were federal laws. We're talking about state laws now.

  • 170. TKinSC  |  May 10, 2014 at 7:44 pm

    I want to clarify some of what I wrote:

    1) I should've wrote that Windsor will inform any subsequent ruling so that will likely change Bruning precedent.
    2) I forgot to put air quotes around the word marriage so that was a slip (perhaps subconscious). The Windsor decision as well as Lawrence and Romer inform the path that the next marriage case will take. For me to suggest otherwise, is seen as grasping in moments of lucidity.
    3) I suspect that this is changing but I'm not clearly seeing it due to my agenda. Each time the LGBT couples are marrying there's not much of a reaction. I think we're reaching a critical mass in acceptance. But I can't always see that. If I'm being honest with myself, the stays are only being granted to bring "order" to the process and not due to eventual likelihood of outcome. It's clear the courts have given considerable latitude with stay grants on this.

  • 171. TKinSC  |  May 10, 2014 at 7:47 pm

    Please see my comment below. I was composing while you were posting.

  • 172. Ragavendran  |  May 10, 2014 at 7:48 pm

    Thanks for your assurance, but nobody claimed that Scalia said that. Read Rakihi's comment again, carefully.

  • 173. TKinSC  |  May 10, 2014 at 7:56 pm

    I should've put that state laws are subject to compliance with the federal constitution. Hopefully, this clarifies.

  • 174. TKinSC  |  May 10, 2014 at 7:59 pm

    I'm confused.

  • 175. Ragavendran  |  May 10, 2014 at 8:01 pm

    Count me in :)

  • 176. StraightDave  |  May 10, 2014 at 8:09 pm

    I gotta disagree. This comparison focuses on the wrong point. It is not "contentiousness", per se, that carries the weight for democratic resolution. It is the lack of any constitutional concerns that gives free reign to democracy.

    Any issue can potentially be contentious. If a constitutional right is involved, then it carries supreme weight. If not, then let the voters duke it out on everything else. Contentiousness is simply not part of the equation. That's the way the system was designed, and brilliantly so, IMO.

  • 177. TKinSC  |  May 10, 2014 at 8:11 pm

    Ragavendran: do you know how to have the comments on this site not collapse again after each post? Some days (like today) it does that and others it doesn't. I've tried different browsers. I don't see a way to do it by looking at the site. Thanks in advance.

  • 178. TKinSC  |  May 10, 2014 at 8:15 pm

    Thanks I see it differently now and am swayed. There was also a quote Ragavendran posted when the AA decision came out from Kennedy that swayed me too, but I've since forgotten it. I don't remember what it was or else I'd try to find it. But it was a good one that put the kabosh on using the decision against the LGBTs.

  • 179. DrPatrick1  |  May 10, 2014 at 8:40 pm

    Windsor expressly limits it's application to those legally married because that was the issue before them. Because the issue was not before them in Windsor, they could not resolve the issue of whether the US constitution allows a state to deny equal access to GLBT couples to civil marriage. This is precisely why all of these cases are being heard today.

    The legal analysis used to decide Windsor, STRONGLY suggests, along with Lawrence, Romer, Loving, Griswald, etc, that our US constitution does not permit the States to treat their LGBT citizens differently with respect to marriage.

    The 2 cases with the strongest precedential value against this ascertian, Baker and Bruning are easily dispatched. Baker relied on Bowers which was expressly overruled by Lawrence. It still makes it into some legal briefs, but is rightly dispatched by virtually every Judge who considers it. Bruning has limited precedential value, and as it was pre Windsor, its value post Windsor has declined.

    Scalia rightly foresaw a day (today) where the legal reasoning used in Windsor would inspire lawsuits across this country, and predicted our side would find much success in the courts (unanimous success thus far).

    The writing is on the wall, and it spells EQUALITY!

  • 180. TKinSC  |  May 10, 2014 at 8:49 pm

    I agree with you with one exception. Baker was "decided" (if you can call it that) years before Bowers so that comparison is erroneous. Do you have another way to make that point? I would like to see it so I can reference it in the future.

  • 181. TKinSC  |  May 10, 2014 at 8:49 pm

    Oh, and one more thing: the federal constitution says nothing about a right, or even an equal right, to gay "marriage", and this fact thus cannot be undone by the whims of a few rainbow-flag wavers on any given day (unless they happen to be wearing black robes over their rainbow scarves, in which case they can temporarily go against the Constitution, but like nudging a bowling pin, it will right itself eventually and they will end up looking quite foolish).

  • 182. TKinSC  |  May 10, 2014 at 9:08 pm

    Ooh, I got a little snarky here. I'm not sure what I was talking about with the t will right itself eventually and they will end up looking quite foolish line. I should've given an example but didn't.

    After I submitted this comment, I found I was really complicating this issue by saying there was no equal right to gay "marriage. What I thought of later to say is that there is a right to marriage plain and simple and no air quotes needed. No qualifiers are needed with the word marriage. It is a fundamental right, and I see the courts are seeing that too regardless of the genders of the parties involved.

  • 183. Ragavendran  |  May 10, 2014 at 9:12 pm

    I don't think you can control it. It happens after the total number of comments exceeds 100. Replies to older comments get collapsed automatically.

  • 184. Big Rick  |  May 10, 2014 at 9:17 pm

    You are so cute! Well, at least this identity among all your multiples is.

  • 185. TKinSC  |  May 10, 2014 at 9:23 pm

    I did read Thomas's comment, and responded to it. I don't believe the text he cites declares the state constitution unamendable in any way. (But it is ironic that the judge ends up amending it himself by construing it to contain a right that had never been acknowledged in the history of the state.)

    As to the federal question, you may actually be right. So assuming you are, let me ask you: If a same-sex "married" couple in California tries to get a "divorce" decree from a state court, do you think the state court will deny the existence of the marriage, citing Prop. 8? If not, will they have to do their own analysis to find Prop. 8 violative of the federal constitution? (Recall that the California Supreme Court didn't do so, and that the federal court that eventually struck it down was merely a district court that didn't even have jurisdiction over the entire state, unlike the appeals court here.)

    My question similarly arises for all the federal court orders from other states. If a marriage is legally whatever a state court says it is, then wouldn't it be the case that a federal court (other than the Supreme Court) can't order a state to recognize a marriage at all? I mean, suppose the Indiana Supreme Court declares invalid the "marriage" of that one same-sex couple who got a federal injunction ordering the state to recognize it. Then what?

    And you may not be right, in fact. A Kentucky court granted an adoption to a same-sex couple during the brief window when a federal judge's order for the state to recognize same-sex "marriages" from other states was in effect.

    Finally, one could argue that lower federal courts shouldn't have jurisdiction at all over state law, since Article III of the U.S. Constitution grants the Supreme Court original jurisdiction over cases in which a state is a party; however, I've yet to see anybody make this argument.

  • 186. davep  |  May 10, 2014 at 9:28 pm

    Hey TK troll #1 – First, marriage IS a right. The Supreme Court has ruled on this repeatedly. And regardless of that – there's no 'right' to own a house, and no 'right' to get a college degree, and no 'right' to any number of other things that citizens often aspire to achieve. BUT – there IS a right to Equal Protection under the law and there IS a right to Due Process.

    And that means we can't make laws that pointlessly deny only certain groups of people the ability to own a house, or get a college degree etc., simply as a way for one group to express disapproval of the targeted group and subject them to harmful denial of equal legal treatment.

    Again, stop making a fool of yourself with your idiotic trolling and take the time to read the rulings and learn the truth. The truth will set you free. Your ignorance of it will make you look like a douchebag.

  • 187. TKinSC  |  May 10, 2014 at 9:32 pm

    Good to know. Thanks.

  • 188. StraightDave  |  May 10, 2014 at 9:32 pm

    I think it was this one, from Ragavendran. And I agree with you on it's value and relevance.

    "Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here.

    And from the slip opinion:

    This case is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. Here, the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged. Rather, the question concerns whether, and in what manner, voters in the States may choose to prohibit the consideration of such racial preferences.

    When it comes to individual constitutional rights, Kennedy's Loving disclaimer in his Windsor opinion remains untouched. People's constitutional rights cannot be voted upon. "

  • 189. Ragavendran  |  May 10, 2014 at 9:37 pm

    Well, I think you may be confused about what a binding precedent is. Here is a primer for you (esp. page 4):

    I am too tired right now to answer your specific questions, but hopefully the tutorial would clear it up. State and federal courts are parallel, and while state courts bind federal courts on issues of state law, the only federal court that binds state courts on issues of federal law is the US Supreme Court. This is a fact. Believe me :)

  • 190. TKinSC  |  May 10, 2014 at 9:45 pm

    Right . Think of it like a house. The constitution is a foundation. Equal Protection and Due Process are the walls. Within those walls are all the rights the Supreme Court has determined are safe and protected within that house (i.e. constitution). Sometimes analogies help, but this one seems to use his head as a door knocker so there's not much hope.

  • 191. davep  |  May 10, 2014 at 9:50 pm

    Sheesh, that thing really reads like a bunch of sour grapes. Sounds like the losers over at NOM are developing a real chip on their shoulder.

  • 192. TKinSC  |  May 10, 2014 at 9:51 pm

    Sorry, need to clarify some of what I *just* wrote:

    1) I meant "should've written". I can be such a grammar dunce sometimes. And since Windsor expressly denied application to state laws, it really is incapable of changing the direct on-point precedent established by Bruning.
    2) I meant "scare quotes" not "air quotes", which as everyone knows is a form of body language and not a feature of text. And since I used the phrase "legally recognized as marriages" there was no reason to note the distinction between actual marriages and same-sex "marriages".
    3) Not only am I a grammar dunce, but I am also a legal process dunce. Obviously, a stay is not going to be granted to give order to a process when a decision that would create disorder if overruled, likely won't be. I mean, why would SCOTUS deny so many loving Utah couples the right to "marry" (and throw 1322 already-existing "marriages" into legal limbo) if they were going to eventually grant it later on? Especially considering the two lower courts saw no reason to grant the stay? I mean, that's just stupid.

    Finally, I'm really sorry for being a troll who is so convinced of the weakness of my position that I have to resort to posting under somebody else's handle. It is really uncouth of me, but I can't help it; I was born this way.

  • 193. Ragavendran  |  May 10, 2014 at 9:53 pm

    Oh, and I forgot to respond that even if Amendment 83 wasn't challenged and is unambiguously still a part of the Arkansas Constitution, Act 144 would still violate Article 2 Section 2 of the Arkansas Constitution (according to the opinion), and is therefore unconstitutional. A law is unconstitutional if it violates any section of the constitution. (As Judge Piazza clarified in his opinion, Amendment 83 left Article 2 Section 2 untouched, and didn't have language indicating that it overruled Article 2 Section 2.)

  • 194. TKinSC  |  May 10, 2014 at 9:55 pm

    Thanks. Who wrote the last paragraph? It doesn't appear to be from the slip.

  • 195. StraightDave  |  May 10, 2014 at 10:00 pm

    Frggin Wipedia is already on top of it. They list AR as a SSM state with no asterisk. They even colored in the state dark blue. In fairness, in the text they mention no stay has been issued. Therefore, SSM is the law of the land at the moment. All the clerks offices' currently being closed is just a formality, apparently. It's legal!

  • 196. StraightDave  |  May 10, 2014 at 10:05 pm

    That could have been my cut/paste error. It's possibly just Ragavendran's own commentary.

  • 197. Ragavendran  |  May 10, 2014 at 10:06 pm

    Yours truly.

  • 198. Ragavendran  |  May 10, 2014 at 10:08 pm

    Are you really StraightDave? Your username is not linked to his intensedebate profile, as it usually is.

  • 199. Ragavendran  |  May 10, 2014 at 10:09 pm

    Here's an in-depth FAQ-type article that expresses and raises many of the concerns others have raised here, most notably about the Judge's ambiguity about which constitution is violated, and whether a state constitutional amendment could be ruled unconstitutional under that same constitution. It seems that the Iowa Supreme Court did that in 2009…

    One thing is clear – this particular situation stands out from all the rest of the States for many reasons, and there are several "grey area" questions, in terms of the legal effect of the ruling, appellate jurisdiction, etc.

  • 200. DrPatrick1  |  May 10, 2014 at 10:12 pm

    Tiresome, but I read it. The implications of what they request, specifically that they can represent specific yet unnamed interests and solely because they say so…! If the clerk was a registered member of a buyers club, could they intervene as well? Preposterous. IANAL, but this cannot be allowable!

    In general, our judicial system is set up as an adversarial system. Indeed, this is required in an appellant situation. However, the jurisdiction granted the court is due to the fact that the relief sought is within the purview of the court to grant, and without such a judgement, said relief cannot be granted. The plaintiffs, being denied a marriage certificate, clearly can seek relief from the defendants. Just because the defendants agree with the plaintiffs, does not erase the role of the court. Indeed, in uncontested divorce proceedings, the court is still necessary to make a final judgement. The authority granted the court to rule is due to the fact that relief cannot be obtained without the ruling, not because the court is asked to mediate a dispute. Indeed, one can imagine nearly limitless examples of court proceedings where no controversy exists, or where opposing sides are in agreement.

  • 201. StraightDave  |  May 10, 2014 at 10:19 pm

    I am, indeed. Occasionally I find I am not logged in and so I think I show up this way. I'm not too picky about it and often just slap my handle in the box without logging in again. I've never spotted any imposters (yet).

  • 202. TKinSC  |  May 10, 2014 at 10:21 pm

    1) I apologize for slipping into being superior again but it's the basis of my position when I'm in anti mode. I see Windsor indicated state laws are subject to compliance with the US Constitution. States' "rights" do not supersede the constitution. Thank you to the many commenters that have to keep reminding me of that.
    2) I'm getting a little haughty here again but I did mean air quotes since I'm not entirely sure of what I'm talking about at times. But I like to use scare quotes (see I admitted that) too to make others feel inferior and me better about my lot in life. I meant to use the air quotes, because some states do let LGBTs marry so that was my mistake. I should really read what I type before commenting on it.
    3) Wow, am a dunce and just don't get it. I live in Opposite World. Allowing LGBT marriage to commence in Utah again will in no way create disorder. They'll simply start marrying again. Simple. I just noticed I forgot to use air quotes around loving. I need to learn more how the court works. I am short-sighted.

    Finally, I'm really sorry for being a troll who is so convinced of the weakness of my position that I have to resort to saying the same things repeatedly, never getting a clue, using somebody else's handle. It is really uncouth of me, but I can help it; I choose to be this way.

  • 203. Ragavendran  |  May 10, 2014 at 10:23 pm

    Oh okay. This comment by TKinSC above got me worried:
    "Finally, I'm really sorry for being a troll who is so convinced of the weakness of my position that I have to resort to saying the same things repeatedly, never getting a clue, using somebody else's handle. It is really uncouth of me, but I can help it; I choose to be this way."

  • 204. TKinSC  |  May 10, 2014 at 10:32 pm

    That is strange. I've never seen that before.

  • 205. TKinSC  |  May 10, 2014 at 10:32 pm

    "Windsor expressly limits it's application to those legally married because that was the issue before them."

    Then they needn't have said so. All they had to do was say "DOMA is demeaning and therefore unconstitutional." But they didn't stop there. They talked throughout about the state's plenary authority over marriage (subject to constitutional limitations of course, but that is a truism, not a "disclaimer of enormous importance"), and that the "marriage" at issue was recognized by the State according to its "new insight" and desire to rectify *what it saw* as inequality. It was the federal government's putting "a thumb on the scale" of what was properly a state matter, for no other purpose than to demean (which I disagree with, but we'll go with what the Court said), that violated Ms. Windsor's due process right. If New York had refused to recognize the marriage, the Supreme Court would have had no reason to intervene. And, of course, they explicitly said so at the end of their decision. (Not only that, but when a federal judge tried to say Windsor meant what you say it means, the Supreme Court slapped him down with a stay.)

    And your resort to other cases does not support you. To wit briefly:

    Lawrence – right to privacy, nothing to do with homosexuality except that such was the nature of the alleged violation
    Romer – right (under the rational basis test!) not to be targeted for unequal treatment for no other reason than animus toward a class(again, no specific relation to homosexuality, except that that was the nature of the provision at issue; Windsor most closely resembles this case)
    Loving – right not to be free from racial discrimination (where strict scrutiny applies and a state is generally not free to exercise its authority in such a way except in extreme cases)
    Griswold – right of marital privacy (and access to contraception, which same-sex couples need … why?)
    Baker – If you mean "Baker v. Nelson", it was decided 14 years before Bowers (and only 5 years after Loving). Whatever the Court meant in Loving, they expressly affirmed it did not imply a right (or an equal right) to same-sex "marriage".
    Bruning – Not sure what you mean by "limited", but it is currently the controlling case on the question of a right to same-sex "marriage" in the 8th circuit, and it says "No." (And again, not only does Windsor not change that, but it *expressly denies* changing it.)

    Scalia was right in his prediction (and some might say it was a self-fulfilling prophecy, considering how much he has been cited in the very orders fulfilling it), but even he did not say that the reasoning of Windsor demanded that it come to pass. Most importantly, neither did the majority.

    "The writing is on the wall, and it spells EQUALITY!"

    Equality is already here. Everybody, gay or straight, has the right to marry. But marriage is by definition the union of a member of both sexes, and gays do not have a right to an alteration of that definition that suits their personal preference. And even if they did, that is for the Supreme Court to say, not for lower courts to devine that they will say.

  • 206. TKinSC  |  May 10, 2014 at 10:39 pm

    Don't bother reading this one. I just keep saying the same thing over and over ad nauseum to my party of one. So many make cogent arguments on this site but it just doesn't register for me. Is there anything that could help me with that? My mind is a film real with the end flapping in the breeze.

  • 207. DrPatrick1  |  May 10, 2014 at 10:40 pm

    I think I am confused, or perhaps I have it exactly correct…

    Iowa had a Marriage Statute, not a constitutional amendment, which prohibited marriage equality. It was a statute which was struck down in the unanimous and historic IA SC ruling.

    After the ruling, there was an attempt to amend the constitution of IA to prohibit marriage equality, and that attempt was ultimately fruitless and has since been abandoned.

    I will have to read very carefully this ruling, but I find it hard to believe that a constitutional amendment can be found unconstitutional on the basis of that very constitution. The only way I can see, is like in Strauss v Horton, the amendment itself was not properly before the people. Of course in Strauss, the CA SC found the amendment to be properly before the people, which required the federal court intervention in Perry to find it unconstitutional via the US constitution.

    It seems to me the most logical analysis is that he found the Amendment to be contrary to the US constitution, and the Statute to violate both the US constitution as well as the Amendment 83-less AK constitution.

    The importance of this distinction, aside from being necessary for the legal analysis to withstand scrutiny, is that if his decision relies on Federal law, in this case the US Constitution, then SCOTUS may have final say. If, however, the decision rested solely on state law, then SCOTUS has no jurisdiction.

  • 208. TKinSC  |  May 10, 2014 at 10:41 pm

    He's a troll posting under my handle. That said, it's kind of funny how Rose reacts when she even *thinks* she disagrees with someone.

  • 209. TKinSC  |  May 10, 2014 at 10:43 pm

    Look at that last paragraph. I'm telling LGBTs equality is already here. Did you get the memo? You all got it wrong. You can go home now. I got it right, because I get to say what's equal for your life. So silly. No wonder why you all get so impatient with me.

  • 210. TKinSC  |  May 10, 2014 at 10:49 pm

    Pot meet kettle.

  • 211. TKinSC  |  May 10, 2014 at 10:58 pm

    For goodness sake, such "problems" getting ready to issue marriage licenses when some LGBTs have been waiting decades. I think the clerks rise to the occasion and handle it.

  • 212. TKinSC  |  May 10, 2014 at 11:02 pm

    "nobody claimed that Scalia said that"

    Then we agree. :-)

  • 213. Zack12  |  May 10, 2014 at 11:03 pm

    Is there some action that can be taken by the people who run this board?
    Allowing one or two people to derail each and every thread needs to end.

  • 214. DrPatrick1  |  May 10, 2014 at 11:06 pm

    Indeed, he argues, rather persuasively, that AR's Marriage laws (defined earlier as amendment 83 and statute 144) are unconstitutional by the Equal Protection Clause of the US constitution, uses Federal rules in how to apply that clause to cases, and thoroughly references Federal Precedents in doing so. Clearly he is implicating the US Constitution.

    Where, in my opinion, some are becoming confused is when he writes, "In this case, Article 2 S 2 was left intact by the voters, but in Amendment 83
    they singled out same-sex couples for the purpose of disparate treatment. This is
    an unconstitutional attempt to narrow the definition of equality."

    He is saying that by leaving Article 2 Section 2 of the AR Constitution intact, which he earlier wrote, "Article 2, S2 of the Arkansas Constitution guarantees Arkansans
    certain inherent and inalienable rights, including the enjoyment of life and
    liberty and the pursuit of happiness," amendment 83 attempts to carve out a specific group from the equality pie, and the US Constitution does not allow this, based on Equal Protection Analysis of the 14th amendment.

    I have tried to read and reread this several times to see if there is any fair reading of his ruling to suggest that he is trying to declare Amendment 83 unconstitutional by the AR constitution, yet I cannot interpret it that way. Rather he is using a different part of the AR constitution to highlight how clearly Amendment 83 violates the US Constitution.

  • 215. StraightDave  |  May 10, 2014 at 11:08 pm

    Yeah, I see your point and pretty much agree with it.
    But, that seems to leave us with
    1) Act 144 is void.
    2) Amendment 83 is still intact, which would have made Act 144 redundant anyway.

    That apparently leads to:
    3) Act 144 is unconstitutional
    4) Amnd 83 is NOT unconstitutional, even though it may say exactly the same thing as Act 144. And even though Act 144's unconstitutionality is based on what it says.

    We're on wobbly legal ground here, which is what usually happens when you pass stupid laws for stupid reasons without thinking through it clearly.

    The safest path out of this is to rely strictly on federal law during the upcoming appeal.

  • 216. davep  |  May 10, 2014 at 11:09 pm

    ….. so in the same comment, you say that the legal definition of marriage is for the states to decide, not the federal government, and then you follow that up with "that is for the Supreme Court to decide, not for lower courts"…. Sheeesh, you are talking yourself into smaller and smaller circles with your rhetoric.

    And puhlease, "marriage is by definition the union of a member of both sexes"? Except in all of the cases where it is between two people of the same sex. It's been happening in this country for about a decade now already. Pull your head out and face the facts. Looks like you haven't read a dictionary in a few years. Check Webster's and the Oxford dictionary definition of 'marriage' and you will see that the current versions include references to the fact that marriage includes same sex couples.

  • 217. TKinSC  |  May 10, 2014 at 11:15 pm

    Thumb up, but sadly the people who "run this board" aren't here much. Lately there's been gaps of posts. Hopefully, they're ok.

    The troll issue has been going on for quite some time. It would be great for it to be addressed. The New Civil Rights Movement uses intensedebate with registered profiles. You know that – I've seen you there. Could they set it up like that?

  • 218. davep  |  May 10, 2014 at 11:15 pm

    Yup, I think that sums it up well. Thanks.

  • 219. DrPatrick1  |  May 10, 2014 at 11:16 pm

    I first posted this below, but I hope to have you read this in direct response here as well.
    Indeed, he argues, rather persuasively, that AR's Marriage laws (defined earlier as amendment 83 and statute 144) are unconstitutional by the Equal Protection Clause of the US constitution, uses Federal rules in how to apply that clause to cases, and thoroughly references Federal Precedents in doing so. Clearly he is implicating the US Constitution.

    Where, in my opinion, some are becoming confused is when he writes, "In this case, Article 2 S 2 was left intact by the voters, but in Amendment 83
    they singled out same-sex couples for the purpose of disparate treatment. This is
    an unconstitutional attempt to narrow the definition of equality."

    He is saying that by leaving Article 2 Section 2 of the AR Constitution intact, which he earlier wrote, "Article 2, S2 of the Arkansas Constitution guarantees Arkansans
    certain inherent and inalienable rights, including the enjoyment of life and
    liberty and the pursuit of happiness," amendment 83 attempts to carve out a specific group from the equality pie, and the US Constitution does not allow this, based on Equal Protection Analysis of the 14th amendment.

    I have tried to read and reread this several times to see if there is any fair reading of his ruling to suggest that he is trying to declare Amendment 83 unconstitutional by the AR constitution, yet I cannot interpret it that way. Rather he is using a different part of the AR constitution to highlight how clearly Amendment 83 violates the US Constitution.

  • 220. DrPatrick1  |  May 10, 2014 at 11:21 pm

    Indeed you are correct, Baker preceded Bowers, my bad.

    In any case, it seems SCOTUS will almost certainly take up one of these cases and dispatch Baker soon. It is a shame it has persisted so long.

  • 221. Ragavendran  |  May 10, 2014 at 11:22 pm

    The keyphrase seems to be "unconstitutional attempt" – could it be that he's saying that the legislative act number whatever that put Amendment 83 on the ballot violated the Arkansas Constitution? Meaning that it wasn't properly before the voters? (I don't recall if this amendment came before the voters through the legislature or an initiative.)

  • 222. TKinSC  |  May 10, 2014 at 11:22 pm

    So you would shut down an account on a forum run by IntenseDebate because somebody decided to, well, debate?

  • 223. Ragavendran  |  May 10, 2014 at 11:24 pm

    Right. Hopefully the Arkansas Supreme Court rules more clearly than Judge Piazza did.

  • 224. TKinSC  |  May 10, 2014 at 11:35 pm

    Now that I think about it intensedebate is a comment hosting service that Equality on Trial is using. Essentially, it's just a name. And Equality on Trial is a forum used to advance equality and not hold it back, and it's implied that's what the comments would support. My misunderstanding with the debate comment.

  • 225. DrPatrick1  |  May 10, 2014 at 11:42 pm

    I referenced the SCOTUS cases to say that one builds upon another, ultimately arriving at where we are today. Griswald established a right to privacy, allowing women to use birth control. This ruling more clearly separates procreation and marriage than any other. Romer declared it unconstitutional to carve out a subset of the population from access to the State in ways others remained entitled. Lawrence made it unconstitutional to use moral disapprobation alone to make something a crime. Windsor simply said that IF a state decided to grant a marriage, the Federal Govt could not exclude that marriage from Federal law. It expressly did not address whether a state MUST allow such a marriage in the first place.

    When taken together, we Americans, have a right to privacy in our own personal relationships, we cannot be set aside and denied access to our government, moral disapproval alone cannot be the justification for denying us access to the same rights afforded other couples, and as the Federal Government does not have a right to deny our marriages exist, the States will not have a right to withhold from us a fundamental right granted all others.

    The argument that VA law applied equally to blacks and whites did not hold up in Loving, and the argument that gays and straights are equally disallowed to marry the same sex will not hold up here.

    I will agree with you that whether a state can discriminate using its marriage laws will continue to be a legal question until SCOTUS finally addresses it head on. Until then, it is clearly a majority opinion that when it finally does address the issue, Precedent will dictate that SCOTUS WILL ULTIMATELY find it is unconstitutional for a state to deny an otherwise similarly situated same sex couple a marriage license.

  • 226. TKinSC  |  May 10, 2014 at 11:48 pm

    I just read one of the briefs for the "pro-equality" side. (People of Faith for Equality)

    Quite honestly, they shouldn't have even wasted the time, and wasting the court's time can only backfire. The entire brief is just a summary of all the bad things Virginia has done in the past, and a loose attempt to associate Virginia's current ban on same-sex "marriage" with all the bad historical things that were outlawed by the 14th Amendment.

    Needless to say, the entire effort is a non-starter. Nobody disputes that many states did bad things in history. But none of those things have anything to do with what marriage is, and what it has always been. That some jurisdictions are supposedly "seeing the light" and changing their policies does not automatically impugn those who choose to keep the current understanding of the definition and purpose of marriage.

    Did you know that a male slaveowner was not allowed to marry a male slave in Virginia in 1703? It's true! And it's obviously because Virginia hated "teh gays" and still does today!

    Pathetic. If all the "pro-equality" briefs are as bad as this one, prepare for a unanimous reversal of Judge Wrong-Allen's diatribe.

  • 227. TKinSC  |  May 10, 2014 at 11:58 pm

    Oh, brother. I let my spunky side show here. I'm trying to do that more and more with mixed results. I still keep going in circles with my logic and failed to mention the 30 other amicus briefs. But you all saw it here on this date – a unanimous reversal of Judge Allen. Please bookmark and remind me when the 4th circuit's ruling comes out. I deserve no less from you.

    My naivety is making me cute.

  • 228. TKinSC  |  May 11, 2014 at 2:19 am

    Encouraging quote from the Republican Speaker of the AR House:

    "Trying to impeach a Judge because you don't like his or her decision notwithstanding the subject matter is absurd and goes against hundreds of years of the way our great country has conducted business under our three branches of government. Circuit judges are elected by the people, as are our appellate and state Supreme Court judges. The appellate process needs to run its course. Our forefathers saw the importance of our constitution and system of self-governance. That system has worked well for a long time and make us who we are as a country. I won't support any effort to undermine that."

    He actually sounds fair and balanced. And intelligent!

    Did you know that the AR legislature site lists the Church Affiliation of each member on it's site? Reminder: this is a government site. Reason 4,011 why I don't live there. Can you list Atheist?

  • 229. SeattleRobin  |  May 11, 2014 at 2:40 am

    Stop with the "air quotes" stuff already. Air quotes are from a verbal conversation, when you make quotation marks in the air with your fingers. Since this is a text medium, actual quotation marks are being used.

  • 230. SeattleRobin  |  May 11, 2014 at 3:03 am

    Actually it depends. For many crimes the person would be tried as an adult. The DA has to make a case for why the person should be tried as an adult. With a one day difference in date that wouldn't be too difficult.

  • 231. grod  |  May 11, 2014 at 4:25 am

    Chad: 15 licenses were issued by the 1:00 pm closing time! It was Clerk Correia, after consultation with lawyers, who directed that licenses be issued. Re: the 2:00 pm conference call, the consensus was that the lack of proper forms was an adequate ground to refuse issuance of a license. Only other clerk's office who intends to obey the judge's order on Monday morning is Pulaski Co – with the largest population of the 75 counties. Despite inquiries elsewhere. It is unlikely that Judge Piazza will issue a stay as he had been asked during the hearing in advance of his ruling. It will go to the State Supreme Court. Expected to take 3 days – if granted.

  • 232. clark  |  May 11, 2014 at 4:30 am

    It's so funny to see NOMs website these days. Their top headline says 'Marriage Continues to Win'. It's a true statement but in an ironic way. A year ago they were still parroting the line about how 31 states had marriage bans…Now almost half of our states have marriage equality or have had their IntergaYcial marriage laws struck down…Perhaps the biggest thing that stands out about this is that its become such a non-issue that people are starting be more surprised to find out their states don't have equality than if they do.

    The news today about Michael Sam, and that adorable kiss, being plastered all over the internet is just icing on the cake. I don't really care that he got picked late, because he friggin got picked! Now I just hope he can navigate through the media spotlight and gets to play ball and follow his dream. It's the very worst possible outcome for the haters. Young gay kids having visible role models they can aspire to be like without being ashamed.. I don't even like football, but the story is a big deal.

  • 233. Deeelaaach  |  May 11, 2014 at 5:14 am

    You're right TKinSC, the Constitution doesn't say anything about marriage equality. It doesn't say anything about heterosexual marriage either. In fact, it doesn't mention marriage at all. Nor does it distinguish between sexual orientations among other things. Ergo, by your own logic or lack thereof, there is no right to any kind of marriage at all since it's not granted in or spelled out in the Constitution in any way.

    Aside from the Bill of Rights, the Constitution is pretty much strictly a document about how our government is formed and what it does. It is *not* a list of laws or a document spelling out most rights we hold today. The Constitution cannot possibly spell out every right that a person possesses or will ever possess as it cannot predict situations beyond even our dreams, let alone the dreams of the Founding Fathers. It does spell out a few in the Bill of Rights, but Amendment IX ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.") indicates the listed rights are not the full extent of the rights we hold.

    Continuing to use this seldom used but easy to debunk argument/straw man (try a simple text search of the Constitution for cryin' out loud) doesn't hold you in good stead. Using the oft stated intent of the Founding Fathers, usually the next step to deny basic rights after using your above argument, ignores history along with ignoring the text of the Constitution and the use of logic also.

    Ignorance is one thing, but willful ignorance (i.e. don't confuse me with the facts) is quite another, if in fact willful ignorance is a problem for you. If it is, willful ignorance will not work for you at all on this site. If you continue to ignore facts, we can't help you here. We can only help you change your mind – we can't change it for you.

    Here's my attempt to help you for the day, if you really do want help as you've said before: First here is a link to a site where you can get the text of the Constitution.… or

    Let me also give you my own quick but half a**ed summary:
    Article I:How the Legislative Branch is constituted and what it does
    Article II:How the Executive Branch is constituted and what it does
    Article III:How the Judicial Branch is constituted and what it does
    Article IV:Full Faith and Credit; extradition between the states; Admission of States; Territories and Properties; Republican Form of government; defending the States
    Article V:Amending the Constitution
    Article VI:Debts and Engagements (Contracts?); Treaties; Supreme Law of the Land; Oath or Affirmation for Senators and Representatives; no religious Test for Office or public Trust
    Article VII:Requirements for Ratification
    Bill of Rights – amendments *enumerating* right of the people, not things denied to the people.

    Oh, and I invite anyone who knows better to make any corrections to the above quickly slapped together summary. I am all for education of the ignorant – especially if the ignorant person is me.

    So here's my rhetorical question for the day: When was the last time you read the Constitution? If you haven't read it since high school (or even in high school, lol), perhaps it's time to do so before you start saying what's is or is not in it. And use some logic too please as it really does help your arguments if you do.

  • 234. Steve  |  May 11, 2014 at 5:20 am

    Elected judges. One of the most stupid ideas in human history.

  • 235. Deeelaaach  |  May 11, 2014 at 5:24 am

    I think after my last post in answer to TKinSC, I'm no longer going to read all or most TKinSC posts. They're just too schizophrenic for me. I'm seeing three possibilities – TKinSC is on the fence in a really bad way, is really schizophrenic in some way, or is trying to use some strategery here (oh, I so love that so-called word). Or far worse, all of the above.

  • 236. Deeelaaach  |  May 11, 2014 at 5:47 am

    The argument that because "so and so did something, you should too" sounds like it came straight off the playground.

  • 237. Richard L  |  May 11, 2014 at 6:19 am

    Thank you NOM, just keep wailing. The more they say, and the more media, the more foolish they look. Here's a story on why they think they should intervene in OR. Reading the brief it seems to me that they are just whining and blaming someone else for their untimely actions.

    Especially in Arkansas, the media attention will only help ME.

  • 238. Deeelaaach  |  May 11, 2014 at 6:20 am

    I suggested this earlier in reply to Rose (I think). I think it's time to ask the admins to check the server logs to determine if TKinSC has multiple IP addresses in use or is using the same one (or a particular set). Because I don't want to stop reading the original TKinSC posts if there is indeed more than one person using this handle. Just as I would not want someone to stop reading mine if I had an imposter.

    Admins? Can you look into this?

  • 239. montezuma58  |  May 11, 2014 at 6:52 am

    So the state can just avoid the a court order by not issuing correct forms? Improper forms is an excuse not a reason. Sounds similar an old tact from long ago like saying one needs and drivers license yet not allowing certain groups to get a drivers license.

  • 240. Thomas  |  May 11, 2014 at 6:54 am

    and that all laws contrary thereto, or to the other provisions herein contained, shall be void.

  • 241. frigens  |  May 11, 2014 at 6:59 am

    SCOTUS commonly grant a stay if there is a fair likelihood that at least 4 members of the court would vote to grant certiorari when the issue reaches the high court. As you probably know that it take 5 votes to form the majority. So granting application for the stay doesn't mean that the court will reverse the ruling when it get to decide the merit. SCOTUS did not vacate the 9th circuit stay in Prop8 case for the same reason.

    And you should also know that there is "obvious" 4 votes to grant certiorari, let alone "likelihood" to vote.

  • 242. Thomas  |  May 11, 2014 at 7:08 am

    You are right that he did not explicitly declare amendment 83 unconstitutional under the state constitution. If however article 2, section 2 of the constitution does forbid banning marriage equality, as he seems to think it does, that alone means that Amendment 83 is null & void per article 2, section 29: "29. Enumeration of rights of people not exclusive of other rights – Protection against encroachment.
    This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void." Even provisions of the constitution as adopted in 1874 are invalid if they conflict with the rights in article 2.

  • 243. Eric Koszyk  |  May 11, 2014 at 7:32 am

    I disagree. It makes this discussion board confusing and almost useless. I donated money for this site when the group running it was asking for donations. I'm not sure I'll do that again in the future, unless it's moderated or some other solution is obtained.

  • 244. Retired_Lawyer  |  May 11, 2014 at 7:39 am

    If you would like to read a really fine amicus brief, I recommend the one submitted by GLAD (Gay and Lesbian Advocate and Defenders). Gracefully written, and cogently argued, it urges the Court to temper a rational basis analysis with skepticism when rights are involved that have been denied to gays.

  • 245. frigens  |  May 11, 2014 at 8:03 am

    In the system of common law, the underlying specific fact of the case is not as important as the rational that the court use. But nonetheless, by comparison, you said

    "Lawrence – right to privacy, nothing to do with homosexuality except that such was the nature of the alleged violation"

    and SCOTUS said

    "Our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, and education. … 'Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.'"

    I guess it has nothing to do with homosexuality? Language is quite explicit isn't it?

    Don't need to go all the way to explain every cases you quoted but I think you may purposely omitted cases like 'Bartlett' (The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts…)(see the plural form of court?) or 'Carey' (it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage…).

    It's easier to construe the meaning of each case to the specific face as presented, perhaps one is too afraid about what the court actually means?

    SCOTUS has once said "constitution undoubtedly imposes constraints on the State's power to control the selection of one's spouse…" Robert v. US Jaycees. Government's definition of marriage must comply with constitution, private definition of marriage is up for the private citizens to decide without undue interference from the government. And correct me if I'm wrong, we're not discussing YOUR definition of marriage in this topic, right?

  • 246. Dr. Z  |  May 11, 2014 at 8:13 am

    Quite possible. But it's also possible that TK's self-image is in flux. In the early stages of coming out we're all two people, a disordered mass of conflicting and mutually contradictory impulses. (See for example Tom Daley initially proclaiming he was falttered but that he wasn't gay, then he was bisexual, then he was gay, and now he's moved in with Lance Black.)

    Trolls beware: this site will change your worldview if you hang around long enough. It's happened before, which is why we engage with trolls rather than banish then like NOM does.

  • 247. davep  |  May 11, 2014 at 8:13 am

    Like a breath of fresh air. Thank you, Deeelaaach.

  • 248. Dr. Z  |  May 11, 2014 at 8:15 am

    Don't worry. I'll make up any funding deficit they experience from you leaving.

    Relax. You'll live longer.

  • 249. Eric Koszyk  |  May 11, 2014 at 8:15 am

    First of all, you're not debating. You're a troll. And other people are trolls trolling you. Why don't you use your real name like I do? Are you scared?

    Also this is not a debate site. There are plenty of sites devoted to that. This is a site devoted to disseminating pro- marriage equality information. People can disagree here about what a court decision might mean and that's fine, but this site is not for people to debate rather ME should or should not exist.

  • 250. grod  |  May 11, 2014 at 8:20 am

    Monte: It's the same stall by county clerks as was seen in Illinois. There it has taken 86/102 counties from February to June to update computer software to allow for same sex language and options. Where there is not a will, there is not a way. You rightly call it an excuse.

  • 251. Ryan K.  |  May 11, 2014 at 8:21 am

    Do we know the three appeals court judges that will preside over the oral arguments and rule on the appeal?

  • 252. Dr. Z  |  May 11, 2014 at 8:21 am

    Well, it's befitting the fact that Arkansas is (politically) the quirkiest state of the old Confederacy.

  • 253. Dr. Z  |  May 11, 2014 at 8:50 am

    It is certainly not true that "almost all who have studied history" are obsessed with effective dates, unless you count junior high history teachers who equate memorization of dates with historiography. Most historians look at threads of social change to identify forces, influences, and consequences. Dates are not particularly revealing in and of themselves except to the extent that world-changing events sometimes become associated with them: Nov 22 1963, Sept 11 2001, July 20 1969, June 28 1914.

    That's why I say we should be looking to when the battle happened in each state, not when the marriages became effective. We say that Germany was defeated on May 7 (or 8) 1945, not the day when the peace treaty was signed officially ending World War II in Europe. That didn't happen until September 12, 1990.

  • 254. Dr. Z  |  May 11, 2014 at 9:13 am

    This illustrates what I mean about dates not revealing much about history. Arkansas rejoined the Union in 1868; in 1874 it adopted a new constitution containing the provision that was just used to strike down the state mini-DOMA. Why does Arkansas
    Constitution contain this unusual provision? The short answer is that it was included to ensure that ex-Confederates could not be disenfranchised. The longer answer involves an armed insurrection, electoral fraud, martial law, and nearly 40 people killed. See

  • 255. Sagesse  |  May 11, 2014 at 9:23 am

    I don't know if this has been posted, but here's the record on same-sex marriages in Arkansas yesterday. Seems like a low-key response, relative to other states where a decision was issued on a Friday afternoon… the decision was expected, tho. This article has been picked up all over, but with different photos… the photos are great.

    Arkansas issues same-sex marriage licenses (AP/Washington Post]

  • 256. Ragavendran  |  May 11, 2014 at 9:28 am

    The panel has been picked, but we won't know until Tuesday morning. Chances are there will be at least 2 democratic appointees, given the current composition of the 4th Circuit.

  • 257. Mike LeBrady  |  May 11, 2014 at 9:29 am

    250+ comments? I've never seen so many on a post here. This will take awhile to get through. Go Arkansas.

  • 258. Ragavendran  |  May 11, 2014 at 9:34 am

    More than half are by a troll who's posting under "TKinSC". Do yourself a favor and skip those. Otherwise, be prepared for the roller-coaster ride of your life that'll even make Six Flags look like your neighborhood kids' playground.

  • 259. Pat  |  May 11, 2014 at 9:58 am

    Im already trying to ignore his posts but since about half of all comments have that name, it's getting difficult and risks making the whole comment section useless (sadly).

  • 260. TKinSC  |  May 11, 2014 at 10:15 am

    I found the answer, and thought I'd share. This is your reputation score . You posted a comment on The Heritage Foundation's blog (you're a brave one), it ruffled some feathers, and they gave you a bunch of thumbs down. They're a fairly grumpy group with an odd sense of humor. Thanks to them you have a bad online reputation. Anyway, look at the comment from Jorn Boost above yours. Mark Regnerus deserves highest praise. Seriously?

    Hope this helps.

  • 261. Sagesse  |  May 11, 2014 at 10:21 am

    From this morning:

    Defense Secretary Says Military’s Transgender Ban Should Be Reviewed [ThinkProgress]

  • 262. Sagesse  |  May 11, 2014 at 10:29 am

    The state's brief put the argument very well. If these people are anonymous, how can they be challenged, or verified? Do they exist? Are they members of NOM? Have they consented to have NOM use their 'names' (?) in this way? Are they persons who would be entitled/legally able to intervene in any event? Is there any basis to the claim that they fear (meaningful) reprisal?

  • 263. dann  |  May 11, 2014 at 10:30 am

    You have TKinSC to thank for all his/her crazy bs.

  • 264. TKinSC  |  May 11, 2014 at 10:36 am

    Offering a solution. There are a lot of Daves that post here, and it makes things confusing. Are there a lot of gay people named Dave? (except the straight one) I don't know any. Not that there's anything wrong with that. Maybe they're drawn to the internet, etc. Someone would have to study it.

    Here's the ask: Would some of the Daves consider changing their name to help the readers? Suggestions: Rodrigo, Tevin, Henry, etc. I haven't seen those yet. You could still add a descriptor: for example, MarvinFL. As a bonus it would give your comment more "pop" and make it more memorable.


  • 265. Eric Koszyk  |  May 11, 2014 at 10:45 am

    Again, this is why this site needs to be moderated.

  • 266. StraightDave  |  May 11, 2014 at 10:45 am

    u gotta be shittin me.
    I already added a descriptor to distinguish me from all the other Dave's. Nobody else has any problems telling us apart. You're the only one here with an identical twin. Maybe you should change.
    I assume this was the dumb TKinSC, right?

  • 267. Bill  |  May 11, 2014 at 10:53 am

    I know we have a lot of cases pending at every level of the process, but I wonder where we expect the next decision. Will 10th Circuit Appeals be next?

  • 268. TKinSC  |  May 11, 2014 at 11:02 am

    I would say you're fine. You already have a descriptor, and you're straight which is memorable on LGBT site. You've got "pop". My vote would be to keep your name and ONE (max) of the gays ones can be Dave. It would be helpful for the other ones to change though.

  • 269. Keith  |  May 11, 2014 at 11:20 am

    I disagree: moderation on sites like/similar to this one sometimes leads to bullying/biases censorship or suppression of others' views and can cause far more problems. If one thinks another person(s) is a troll, then just ignore them and/or don't read their posts. The trolls will always find their way into forum sites unfortunately that's a nuisance we all have to deal with.

  • 270. Ragavendran  |  May 11, 2014 at 11:24 am

    Hmm… I expect Oregon and Idaho and Indiana to be next for the month of May (Indiana because the Judge heard argument on summary judgment on the 2nd. Unless, the proceedings in Baskin are stayed pending the preliminary injunction appeal before the 7th). The 10th Circuit is not expected to rule until June/July at the latest, but who knows?

  • 271. BillinNO  |  May 11, 2014 at 11:27 am


  • 272. Keith  |  May 11, 2014 at 11:30 am

    Everything I've read thus far doesn't indicate a lot of people rushing to get married in Arkansas. I'm wondering how many couples got married on Saturday or if we'll see bigger rush early Monday morning.

  • 273. Rose  |  May 11, 2014 at 11:42 am

    I believe I heard like 10 couples got married on Saturday……..but even if ONLY 1 couple got married…….at least they had the right to do so and that's what matters most, in my opinion!!!

  • 274. TKinSC  |  May 11, 2014 at 11:45 am

    Are they posting on DailyKos? I don't recall seeing them there but perhaps I'm wrong.

  • 275. TKinSC  |  May 11, 2014 at 11:58 am

    Whose comments are must read for you? Rating the commenters.

    You know who they are, right? The commenters whose comments you love to read, and read those first. Then there are those where your eyes glaze over. Then those in-between. “.

    Here’s my ranking. If you’re not mentioned, it’s not on purpose. There are a lot here. Each category is in no particular order. "It” means I don’t know your gender and don’t want to type him/her (the English language needs a fix for that).

    Must Read:

    -Ragavendran: has facts, access to case info, usually timely, active participant, is humble if makes a mistake. Can be sensitive if people give thumbs down. (not sure why) . Keeps case calendar so bonus points.

    – DrHeimlich: smart, easy to read info, went to 10th circuit arguments

    -Retired_Lawyer: smart, pithy, lawyerly analysis. Polite. Seems to know its stuff. Love.

    – Sagesse: to the point updates. Quick to read or skip if already know.

    -DrPatick1: usually some good stuff there so worth the read

    -Pat: mainly here due to case calendar it keeps, but also tries to get things right, has passion and that’s admirable

    -Dr. Z: open, easy to read, goes with the flow, has sense of humor. Love.

    -davep: this ones got spunk, and I like it. The smarts and passion are there. Would be fun at a bar or over a casual dinner

    -StraightDave: he is fine. I do read them. Can be funny. Almost a tweener.

    – sfbob: all around added value. Comments read almost all the time.

    -Scottie Thomaston: with baited breath. Always wondering if he might know more info on the post and add it in the comments (like he has special equality access.)

    -ebohlman: knows legal stuff. Definite added value.

    – Drive-byers: read. They may have a nugget.


    – Bruno71: not particularly memorable, but I’m sure I’ve got nuggets from him

    -Zach12: well intentioned, has more nuggets recently, can be a downer, does add value, net positive

    – Fr. Bill: don’t know enough to comment but suspect he fits here

    -Thomas: adds value but I have to be in the mood to mentally digest it

    -SeattleRobin: cute dog avatar, worth reading but not memorable at the moment, tries to be a helper

    – Deeelaaach: Hmm. Well-intentioned posts can be long and meandering. My heart goes out. Net positive

    -KarlS; Guys got spunk – love that. Is an atheist so bonus points. I think can be a bit of a downer though if I remember correctly

    -Rik: passion and funny. Short and sweet

    – Eric Koszyk: Quizzical and serious.

    – Rose: barely a tweener. The passion is there. Possible case of rose-colored glasses at times? Too many caps and exclamation points. Not the first comments I read but has occasional nuggets. Well-intentioned. Has defensiveness about smoking so likely smoker. May jump to conclusions (fits with caps/exclamation points persona)

    -Rakihi: just fine

    -grod: almost a must-read. Usually, will read but occasionally skip and go back to

    -lymis: see grod

    -montezuma58: see grod

    -ragefirewolf: I read but would consider as a “too soon to tell”

    -dann- good stuff. Has humor – like it. More.

    Last Read / Skip / ?

    -Mike in Baltimore: no question the passion is there which is commendable, but goes on long meandering tangents which cause the eyes to glaze over. I‘ve been conditioned to skip. The skipping is subconscious at this point.

    – gayathomemom: ?

    – Guest: TBD

    -DaveM: too many Daves so not sure who this one is

  • 276. Guest  |  May 11, 2014 at 12:41 pm

    Could it be that Judge Piazza was appealing to the sort of argument Justice Kennedy employed in the Rome caser?

  • 277. Guest  |  May 11, 2014 at 12:42 pm

    *Romer case

  • 278. grod  |  May 11, 2014 at 12:55 pm

    15 before closing at 1:pm according to the local senior country clerk. One was reportedly a re-marriage of a valid out-of-state marriage. At closure, more than a dozen couples were in-line. On Monday, if no stay is granted only two county offices plan to issue licenses to same sex couples. Utah moved decidedly more quickly than this!

  • 279. Dr. Z  |  May 11, 2014 at 1:02 pm

    I always read Mike in Baltimore. He can be a little prickly but he knows his stuff.

    In fact the only people I don't read are the haters, who are becoming few and far between.

  • 280. DrPatrick1  |  May 11, 2014 at 2:23 pm

    I don't think you are correct. A constitution establishes rules by which to govern. It, as written AND as interpreted by the judicial branch, controls what laws can look like, and limits the effects of those laws. It also establishes a way by which it can be amended. Our own US Constitution has been amended to directly contradict a previous portion of the Constitution (think slavery, prohibition, etc). Once amended, the amendment, if contradictory, controls.

    When a direct contradiction does not exist, there can be room for different interpretations, thus the importance of the Judicial Branch. However, that does not mean the clear language of the amendment can be overruled by a previous portion of the constitution.

    This is different from statutory governance. Here a previous law can, in fact, establish rules for how a subsequent law can be made, or should be interpreted. The way to directly contradict the previous law is to expressly do so in a new law or constitutional amendment.

    I am not aware of any example is US history where an amendment has been declared unconstitutional by the very constitution it was amending (the amendment could be declared unconstitutional if it was not properly enacted in the first place. But this analysis does not consider the content of the amendment but the process by which it was passed.)

    An example was Strauss v Horton in CA. They attempted to have prop 8 declared unconstitutional via the CA constitution. They argued that the amendment process requires a potential amendment to contain a single subject, as marriage law affects so many other laws, they argued Prop 8 did not deal with a single subject, therefore was not properly before the voters. They did NOT rule that prop 8 was constitutional according to the US Constitution, as that issue was not before them. Remember at the time, the major GLBT organizations were worried about establishing a negative precedent with SCOTUS, they took great pains to limit issues to state law at the time. That is where the Foundation for equal rights stepped in and sued in federal courts that Prop 8 was not constitutional by he federal constitution.

  • 281. DrPatrick1  |  May 11, 2014 at 2:35 pm

    DrPatrick1 is just too long winded. Whoever knows if the post is worth reading. Comments sometimes longer than the article! LOL

  • 282. davep  |  May 11, 2014 at 2:53 pm

    And here we see the type of inane babbling that trolls resort to when they have lost the debate and have absolutely nothing to offer on the actual topic. Grow up. And you can just call me 'Dave'.

  • 283. TKinSC  |  May 11, 2014 at 3:05 pm

    I would say this has worked itself out. It makes the most sense for the 2
    Daves to be StraightDave and davep (or just 'Dave'). They're the most active participants. First come, first serve.

  • 284. TKinSC  |  May 11, 2014 at 3:09 pm

    Thanks Dr. Z. I'll give Mike in Baltimore another look.

    I didn't realized there was a lower quantity of "haters". I would say that's an indirect sign of progress.

  • 285. TKinSC  |  May 11, 2014 at 3:38 pm

    This was very informative and worth the read. I suggest you copy/paste it on future comments as needed. History has shown there will likely be some.

    It's ignorant to say the constitution mentions marriage. Thankfully judges don't take such a simpleton approach.

  • 286. TKinSC  |  May 11, 2014 at 3:44 pm

    "Can you list Atheist?"

    Sure, but you have to call it Unitarian Universalist.

  • 287. TKinSC  |  May 11, 2014 at 3:51 pm

    The official English pronoun for an indeterminate gender is "he". However, "they" is common enough to be acceptable.

  • 288. TKinSC  |  May 11, 2014 at 3:59 pm

    But I think it still needs changing. They can do better than a male pronoun, "he", which could be construed as historical deference to the male gender and a word, "they", that initially implies a plural.

  • 289. TKinSC  |  May 11, 2014 at 4:05 pm

    But the fact that it is contentious in and of itself weighs heavily in favor of it being a proper issue to be resolved by the democratic process. After all, it is no stretch to say that contentious issues could hardly have had constitutional amendments passed to remove them from debate, since their very contentious nature would keep the amendment from having enough support.

    It should be remembered that the Constitution was not handed down from on high. It is a product of We the People, and therefore cannot mean anything other than what We the People intended it to mean. And certainly there is no provision of the Constitution that was intended by We the People to enshrine a right to same-sex "marriage".

  • 290. TKinSC  |  May 11, 2014 at 4:07 pm

    I will check out Deeelaaach's comment and likely revise this.

  • 291. Christian  |  May 11, 2014 at 4:07 pm

    I read that the sponsors of the Oregon marriage initiative want to drop the effort if the ban is struck down, but won't the law have to be repealed eventually anyway? Like that part in the Oregon Constitution from 1850 that had to be repealed which banned blacks from owning land or even living in the state.

    Or how Prop 14 was repealed by Prop 7 in 1974.

    Wouldnt it be better to get it out-of-the-way right now? And it's not as if the resources don't exist in Oregon to do it, and how hard could the opponents possibly fight these days? They're nearing bankruptcy and the majorities they had in 2000, 2004, and 2008 don't exist anymore. They've lost the fight on discrimination and now they've lost the fight on marriage.

    I say they should repeal the legacy of 2004 and move into the 2010s

  • 292. DaveM  |  May 11, 2014 at 4:13 pm

    So. The problem with saying "Just Read the Constitution" is that what the Constitution means is dependent on who interpreted it — and if you're poorly informed, you might come to a different conclusion than what the black-robed folk have.

    The Constitution is a quick, 5-ish page read. Try
    " CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS, AND INTERPRETATION" as published by the GPO. Weighing in at 2800 pages, crossreferenced, footnoted, and fully expository on what caselaw actually has said the Constitution says.

  • 293. TKinSC  |  May 11, 2014 at 4:14 pm

    Tangentially related to marriage, but I'm finding the Michael Sam draft news inspiring.

    Recap from The Advocate.

    The couple together. I like how they're just being themselves so naturally. This could sway me.

  • 294. TKinSC  |  May 11, 2014 at 4:17 pm

    Another Dave? It's above the 2 Dave limit started earlier today and is getting confusing.

  • 295. DaveM  |  May 11, 2014 at 4:19 pm

    It's ok, I don't know who you are either. But that doesn't matter.

  • 296. DaveM  |  May 11, 2014 at 4:22 pm

    Raga's points are fair – at the district level. None of those cases are at the appellate level.

    I expect Bishop and Kitchen handed down on the same day. Whether it beats Bostic out of the 4th, that's an open question to me. The 4th does tend to turn around opinions very quickly.

  • 297. TKinSC  |  May 11, 2014 at 4:24 pm

    Florida case update. Update on one of the cases. Hearing Wednesday.


  • 298. Big Rick  |  May 11, 2014 at 4:26 pm

    This site needs a moderated forum to augment or replace the comment system. A forum would be easier for people to navigate than this crippled reply-hiding comment system, and would help users to avoid or ignore obnoxious internet fauna.

  • 299. davep  |  May 11, 2014 at 4:31 pm

    We are everywhere. We walk among you.

  • 300. TKinSC  |  May 11, 2014 at 4:31 pm

    Agree on the reply/hiding comment system. The best tool you have for now is to sort by Last Activity.

  • 301. Fluffyskunk  |  May 11, 2014 at 4:33 pm

    TKinSC was originally an anti-gay troll, then someone else or possibly two someones started posting comments under the same handle to troll the original troll. HTH.

  • 302. TKinSC  |  May 11, 2014 at 4:35 pm

    I see that.

    Congrats on being the 300th comment. It's fitting one of the Dave's gets it, but the odds were stacked in your favor

  • 303. Margo Schulter  |  May 11, 2014 at 4:36 pm

    Reading Judge Piazza’s opinion, I see one sentence at p. 7 suggesting that this is an explicit ruling under the Arkansas Constitution, “This position is unsuccessful from both a federal and state constitution perspective.”

    At p. 8, in a passage raised earlier here, Judge Piazza first quotes Article 2, Section 2 of the Arkansas Constitution, “All men are created equally free and independent,” and then explains that “Amendment 83 is an unconstitutional attempt to narrow the definition of equality.”

    Please let me acknowledge that the reliance on the Arkansas Constitution, thus basing the decision on an “adequate and independent state ground” not subject to federal review, might have been made yet clearer; and that much of the opinion does rest on Windsor and its various progeny in the lower federal courts. However, the presence of a claim raised squarely under the State’s Constitution is stated early, at p. 2: “The plaintiffs contend that these prohibitions infringe upon their due process and equal protection rights under the Fourteenth Amendment of the United States Constitution and Article 2, Section 3 of the Arkansas Constitution’s Declaration of Rights.”

    Curiously, while I find it fairly clear that there’s an adequate and independent state ground here, I’m not so further whether it’s under Article 2, Section 2 (which Judge Piazza quotes at p. 7) or possibly also Article 2, Section 3, cited at p. 2: “The equality of all persons before the law is recognized and shall ever remain inviolate;…”

    Unless there’s a more recent precedent, Michigan v. Long, 463 U.S. 1032 (1983) might be the most relevant case as to when a state decision involving rights under that State’s own Constitution rests on “adequate and independent state grounds.” Justice O’Connor’s opinion for the Court, id. at 1040-1041, holds that when “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any state law ground is not clear from the face of the opinion,” then the Supreme Court will assume that the state court reach its result “because it believed that federal law required it to do so.”

    However, Justice O’Connor adds, id., “If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”

    So this is a really interesting federalism question, and I’d love to see how others read Judge Piazza’s decision in terms of how Michigan v. Long might apply if the Arkansas Supreme Court reaches the same result. Of course, since it would be the appellate decision that might or might not be reviewable under Michigan v. Long, let’s hope that that Court agrees with Judge Piazza and makes the reliance on the Arkansas Constitution absolutely indisputable.

  • 304. davep  |  May 11, 2014 at 4:37 pm

    Actually, no it's won't really 'have to' be repealed at any point. It can stay on the books, but the court rulings render it unenforceable and reduce it to nothing more than a reminder of what used to be. There are many such instances of old laws, long since ruled unconstitutional, which technically remain on the books just because nobody has bothered to remove the now-purposeless wording of the law.

    But yeah, like a lot of people, I think it would 'feel better' if all of these overturned laws were removed, even if they are clearly no longer in effect.

  • 305. Michael  |  May 11, 2014 at 4:47 pm

    Thank you.

  • 306. davep  |  May 11, 2014 at 4:53 pm

    You have absolutely no idea what you are talking about.

    You are trying to argue that rights should sometimes be subjected to majority vote, and that this is determined by whether or not the issue is contentious….


    Nope. You have that completely backwards. The fact that something is a right (like marriage, and all of the additional subsequent rights that flow from access to civil marriage) means it is NOT to be subjected to majority vote. Especially when the issue is a right applied to a minority of the population. Otherwise you have nothing more than tyranny of the majority, with the larger group being allowed to trample the constitutionally guaranteed rights of others via abuse of the democratic process.

    According to your "logic", there would be no need for the Constitution, the Bill of Rights or the Supreme Court, and their long-established purpose of protecting the rights of the individual and the minority from an unjust vote of the majority or an unjust legislature who might other wise freely violate their rights.

    You don't even know what a "right" is. Yikes.

  • 307. davep  |  May 11, 2014 at 5:11 pm

    Yeah, the problem with replies getting collapsed when there are more than 100 of them below the article doesn't happen very often, but of course when it does, it's often on the most newsworthy articles that people are most interested in, which is the worst time to make a comment section difficult to navigate. But this has been an issue since day one on this site, there have been repeated requests to see what can be done about it, and apparently it is something that can't be resolved without a major overhaul of the site.

    The trolls are another matter. This site is usually not bothered by them, but when they do show up, IT WOULD REALLY BE GREAT IF THE SITE ADMINS WOULD STEP IN AND CLEAN THINGS UP. All I can suggest is that everyone who finds the troll activity detrimental to the site should make liberal use of the REPORT button found at each comment, as well as the "visit our support page" link at the very bottom of the page to repeatedly bring this issue to the attention of the site admins.

  • 308. Margo Schulter  |  May 11, 2014 at 5:21 pm

    In support of davep: A good example of cleaning up the statute book is now going on here in California, where SB 1306 passed in the Senate by 25-10 on May 1, and will establish gender-neutral language for marriage and remove the California Defense of Marriage Act (Proposition 22). But, in the meantime, marriage rights are in effect, and a campaign to repeal the unconstitutional Proposition 8 won’t be necessary, thanks to Judge Walker’s historic federal ruling as left in place by Hollingsworth v. Perry.

  • 309. StraightDave  |  May 11, 2014 at 5:27 pm

    I'm more impressed that I made TKinSC's "he" list than his Must-Read list. I notice davep wasn't quite so lucky :)

  • 310. JustMe  |  May 11, 2014 at 5:46 pm

    What happened in here?

  • 311. Margo Schulter  |  May 11, 2014 at 5:58 pm

    On Oregon: it looks on all fours with Hollingsworth v. Perry to say that NOM hasn’t a leg to stand on when it comes to Article III standing.

  • 312. Kevin  |  May 11, 2014 at 6:22 pm

    Possibly. There are a number of factors that limit Supreme Court review of state court decisions. The doctrine of independent and adequate state grounds prevents the Supreme Court from reviewing the decision of a state's highest court if the ruling is adequately supported by state law and if the state law jurisprudence at issue is independent from federal law. In other words, imagine a case where plaintiffs go to a state court asking for a judgment that a municipal ordinance is unconstitutional as violative of both the First Amendment of the Federal Constitution and some similar provision of their State Constitution. If they prevail through the state appellate process and the state courts analyze the law under both the Federal and State Constitutions, the Supreme Court may not hear that case.

    Importantly, in order for this rule to apply, the state law rationale must be both independent of federal law and adequate to support the judgment of the court. For example, if state law incorporates or correlates closely with federal law, then the rational is not truly independent and the Supreme Court may review the case. Similarly, if the state law portion of the opinion cannot support the judgement of the court, then it is inadequate and the Supreme Court may review the case.

    The judge in this case clearly based much of his opinion on Windsor, Loving, and other federal law. But he also included a discussion of Arkansas Constitutional law on p. 13. The principal case he cited there, Jegley v. Picado, was decidedly exclusively on state law. For the Supreme Court to have jurisdiction over this case, it must first determine whether this constitutes an independent and adequate state ground. At the very least this question will require briefing and may slow the process. At most it may insulate the eventual Arkansas Supreme Court opinion from further review.

    One caveat: this applies to final judgments, not stays; although, I would have to think that if the court believed it has no authority to adjudicate a case, it would also think it has no authority to stay a state court proceeding.

  • 313. Christian  |  May 11, 2014 at 7:27 pm

    Well you're correct that there's no legal requirement for them to be repealed. But it precludes the possibility of those laws ever returning to force. Or more costly litigation like happened after prop 8 was struck down and the Supreme Court closed 'Perry V. Schwarzenegger'.

    Like I said, the reason for them to be repealed is so their mere legacy can be totally dead. Headstone and all. After all, those words are still evil reminders of a painful past.
    And I think, like you, that is reason enough alone for them to be repealed.

  • 314. Eric Koszyk  |  May 11, 2014 at 7:34 pm

    Earlier today I made a request on their Facebook page for them to please do something about this situation. Maybe if enough people made a request they would look into it.

  • 315. Margo Schulter  |  May 11, 2014 at 7:50 pm

    Kevin, I agree that “possibly” is the right word. And thanks for your focus on what is the crux of Michigan v. Long: the question whether there’s an independent state ground, as opposed to a reading of a state constitution that’s based on a reading of federal law.

    Under Michigan v. Long, if the question of dependence on federal law is unclear or ambiguous, SCOTUS may review the decision. Justice Stevens, in his eloquent dissent, would favor a preference not to review; but it’s the majority that makes the law. So if the Arkansas Supreme Court agrees with Judge Piazza on the Arkansas Constitution, they could make the declaration described by Justice O’Connor that the decision rests on independent state grounds, quite apart from the federal claims flowing from Windsor that they are also addressing.

  • 316. ragefirewolf  |  May 11, 2014 at 8:18 pm

    I am so confused right now. Apparently I am part of some new "sometimes I'm a troll and sometimes I talk about stuff" guy's review of commenters. Just a heads up, if any of you read Towleroad, you can kinda figure out who the trolls are before they head over here.

  • 317. TKinSC  |  May 11, 2014 at 8:23 pm

    I post at Towleroad.

  • 318. Dr. Z  |  May 11, 2014 at 8:27 pm

    Yes, it should be removed and it will be removed. However, don't kid yourself that this would be a free move in southern and eastern Oregon. There are still plenty of people (read: Mormons) who oppose marriage equality. A high profile initiative to erase an unconstitutional Amendment 36 would still be expensive and divisive, an unnecessary risk, and divert resources away from the Governor and Senator races where the Democrats, while leading, are still vulnerable.

    Better to take care of this later, at a time and place of our own choosing when passions are no longer running high over SSM – like, after SCOTUS strikes them all down. There's no hurry and there's no fear. In fact, it might be justice to put this on the ballot after a few years, to remind the voters of the future of the dangers of using the initiative process to browbeat minority groups.

  • 319. Dr. Z  |  May 11, 2014 at 8:31 pm

    Dave's not here.

  • 320. Dr. Z  |  May 11, 2014 at 8:43 pm

    It's debatable. From what I've been able to gather, the 1868 Arkansas Constitution (under which the state reentered the Union) explicitly disenfranchised ex-Confederates. After six years of sometimes bloody fighting during the late Reconstruction era, the Democrats regained control and passed the Constitution of 1874. This document contained a provision – Article 2 – which the authors apparently meant to be immune to any amendment and could only be voided by adopting an entirely new constitution. I don't think that can, or should, be taken lightly. I'm unaware of any comparable situation arising in American jurisprudence. It goes back to constitutional questions about the war itself, and of readmittance to the Union.

    Probably the closest analogy might be the Constitution of Germany, which takes account the unique nature of the conflict and upheaval that produced it. These issues are even larger than SSM.

  • 321. Dr. Z  |  May 11, 2014 at 8:55 pm

    Try "sie" or "hir." They were popular on the Usenet back in the '90s on soc.motss (members of the same sex) and and rec.arts.bodyart.

  • 322. Dr. Z  |  May 11, 2014 at 8:57 pm

    Maybe they are aware, they just don't see it as a crisis. I certainly don't.

  • 323. Rakihi  |  May 11, 2014 at 9:03 pm

    I was still a kid when my state passed its anti-gay marriage amendment.

    Even though it is now defunct because of a change in the law, the amendment itself continues to defile the state constitution with its presence.

    I would love the chance to walk into a voting booth and drive a stake into its heart with my ballpoint pen.

    Even better would be if the amendment were replaced with a formal apology for abusing the democratic process by submitting our rights to a vote in the first place.

  • 324. DrPatrick1  |  May 11, 2014 at 9:16 pm

    Dr Z- indeed it would require a rather unique wording. I am no where near legal minded enough to see if this seems true, or is how the AR SC would see it.

    On the other hand, the judge in this case was quite clear that it violates the US Constitution. Though this does add a layer of appellate review (SCOTUS), this is much more familiar legal territory, and might actually help set a nationwide precedent.

  • 325. TKinSC  |  May 11, 2014 at 9:19 pm

    The (legal) definition of marriage is for the states to decide, because *same-sex "marriage" is not a right*. But *even assuming* it now is because of Windsor, it is not the place of lower courts to say so, particularly when the Windsor decision all but explicitly says otherwise: "This opinion, and its holding, apply only to those valid marriages". (Perhaps slightly paraphrased, but that's the gist.) So if Windsor really does mean what the lower courts say it means, it is for the Supreme Court to say so, and for the lower courts to obey prior precedent (and what Windsor explicitly said) unless and until they do.

    And marriage was, is, and always will be the union of a man and a woman. Even if the word "marriage" changes meaning, it will change to something other than marriage (rather like "gay" now means something other than "happy"). But marriage, as understood throughout history and particularly by the Supreme Court, is *only* a man and a woman.

    Mirriam-Webster has two separate definitions, 1a being the true definition and 1b referring to the same-sex perversion. This accounts for alternate usage of the term without denying the true nature of the word. (You will note that there is not one definition saying "the union of two people".)

  • 326. Dr. Z  |  May 11, 2014 at 9:20 pm

    There is a provision in the current Arkansas constitution that bars officeholders from being atheist. No kidding. It hasn't ever been enforced or challenged, but it's there – just as the sodomy laws were there, signifying societal disapproval even without enforcement.

  • 327. TKinSC  |  May 11, 2014 at 9:37 pm

    And to those that start pointing their fingers at me, the only reason it could arguably not be a perversion for me to post here is because I'm still closeted. You'll note I haven't denied that once.

    It's a well-known fact closeted folks are drawn to LGBT sites so, in a perverse way, they can learn more about themselves by observing, because they don't have the courage to be fully out. Some like me, but not all, will cast judgements on the community in an effort to hold them back and what they despise in themselves. Basically, I'm putting my conflicted stew in the palm of your hands or your keyboard if you will.

    In my gut, I feel the Supreme Court will ultimately rule for the plaintiffs in these cases.

  • 328. TKinSC  |  May 11, 2014 at 9:47 pm

    With all due respect, you are misinterpreting SCOTUS cases. They do not "build" on one another. Each one answers the question(s) put before it. None of them answers, or is meant to answer, any future questions.

    You may or may not be right about what SCOTUS will ultimately do (and Scalia certainly agrees with you), but as of yet they have not done so, and the precedent of Baker (and Bruning, in the 8th Circuit) remains good — i.e. *controlling* — law, that should not be contradicted at all by a lower court, much less without an immediate stay as was done in Utah, Michigan, and now Arkansas.

    "the States will not have a right to withhold from us a fundamental right granted all others."

    For the umpteenth time you are not barred from marriage. There is no law in any state that says "Gays can't get married." (Compare that to Colorado Amendment 2 which said "Gays can't sue".)

    You want to get married? Find a consenting unrelated unmarried adult of the opposite-sex and go do it! Or, alternatively, move to one of the perverted states that will go along with the pretense of you being "married" to someone you by definition cannot be married to. But stop complaining that you're being denied the right to marry just because you happen to live in a decent state and aren't interested in finding someone who fits the true criteria of a spouse. Because there is nothing in the Constitution that says states have to go along with perversion, even if (as Windsor says, and *only* says) the federal government must go along with those states that choose to do so.

  • 329. TKinSC  |  May 11, 2014 at 10:09 pm

    Here is a picture of me. I don't look perverted, but I'm obsessed with the word. Interesting, huh?

    This a pretty accurate depiction on the average day. Not bad looking, huh? For women only, of course or not.

  • 330. TKinSC  |  May 11, 2014 at 10:10 pm

    "I guess it has nothing to do with homosexuality? Language is quite explicit isn't it?"

    Again, Lawrence references homosexuality because that was the issue before them. But the rationale used to decide the case was the constitutional right to private consensual intimate conduct for *everyone*, regardless of sexual orientation. And I will remind you that Lawrence (as well as Windsor) expressly distanced its own reasoning from the implication that states would have to allow same-sex "marriage".

    I didn't omit any case purposely; I cited the ones given in the comment I was replying to. And I never said that there are no constitutional restraints on the majority's democratic power. Certainly if a state wants to keep blacks from marrying whites, Jews from marrying atheists, or people whose names end in -czyk from marrying people whose names begin with O'-, it's going to have to have a very good reason. But the limitation of marriage to opposite-sex couples is not just another arbitary restriction; it's *what marriage is*, and is, at least in part, the very reason marriage is a fundamental right in the first place.

    My definition of marriage is the true definition, virtually unquestioned throughout human history (and in particular when the 14th Amendment was ratified). Any other definition is just pretend (even if it carries legal weight). While states may have a right to lie (and have the federal government go along with it), they also have a right not to lie, and to offer the title and benefits of marriage only to those couples who are actually married.

  • 331. TKinSC  |  May 11, 2014 at 10:22 pm

    To support my point, I offer this.

  • 332. TKinSC  |  May 11, 2014 at 10:38 pm

    Are you sure this is a pro-ME fansite? I mean, the name is "Equality On Trial". If you saw a "George Zimmerman On Trial" website would you presume it was just for pro-George Zimmerman people?

    I don't think I've engaged in debate on this site over the policy question of ME (though I no doubt have made my feelings known). The policy question is ultimately for states to decide, and it is indeed that very issue (whether states can decide it) that I am debating here.

  • 333. TKinSC  |  May 11, 2014 at 10:50 pm

    Keep in mind it's almost 2:00 AM in SC. I have no life as confirmed by this app I tested for the developer. Plus I'll throw Zimmerman in the mix.

  • 334. davep  |  May 11, 2014 at 11:00 pm

    At the very least, it fills the reply threads with an abundance of pointless time-wasting garbage that you have to wade through to get to the useful information and legitimate discussion. And filling the threads with large numbers of irrelevant off-topic and/or trollish remarks quickly pushes the reply comment past 100, which collapses the replies sooner than would otherwise happen, and makes it awkward to read through the comments. It's an annoying and childish nuisance.

  • 335. TKinSC  |  May 11, 2014 at 11:04 pm

    Not a bad exposition, but you leave out an important point: Just because there are unenumerated rights doesn't mean that every possible right that someone would like to have is one of those rights.

    The right to marriage has been deemed essential to ordered liberty and the survival of the human species. The right to same-sex "marriage" has not.

    Now, you might say "but the list of rights gets expanded all the time; just look at Lawrence v. Texas". True enough, and unlike most of my fellow conservatives I believe that concepts such as "equal" and "liberty" can change, not in meaning, but in applicability over time with successive generations.

    But that change has to come *from* the people, not be dictated *to* the people by the courts. For example, in Lawrence the Supreme Court noted that most states had abandoned their sodomy laws, and others (such as Kentucky and Georgia) held them violative of the state constitution. And the laws that remained were rarely enforced (understandable, as it would be very hard to do so without violating the 4th Amendment).

    It was *against this backdrop* that the Court thus concluded that the constitutional right to privacy included the right to private, non-commercial sexual conduct between consenting adults. It was not out of the blue, or due to some new insight by the Court, or as part of some "rhetorical shift" (as the judge in Oklahoma put it).

    If one day 40 or so states decide to legalize same-sex "marriage", then the question of whether SSM is a constitutional right can be revisited. In the meantime, it is not.

  • 336. davep  |  May 11, 2014 at 11:10 pm

    Once again, you reveal that you have no clue what you are babbling about. All you have to offer is threadbare anti-gay rhetoric. You have no argument. The best you can do is spew pointless anti-gay insults and try your best to dodge any actual debate on the topic. How's that working out for your side these days?

  • 337. davep  |  May 11, 2014 at 11:15 pm

    Okay then, tell us:

    What would the state defendants in these trials need to prove to the court in order to show that these laws denying civil marriage to same sex couples do not violate the U.S. Constitution, and can therefore be allowed to remain in effect?

    And why haven't they been able to do it?

    Tick. Tock.

  • 338. TKinSC  |  May 11, 2014 at 11:22 pm

    Just joshing you guys. I would've been against Lawrence 10 years ago. You're too smart to believe otherwise, and in 10 years I'll support marriage for LGBTs. I believe that's when they say the knuckle draggers will get tired of dragging their knuckles and cave. Though I prefer to call myself prudently cautious.

  • 339. davep  |  May 11, 2014 at 11:28 pm

    Rather than tossing out your bog-standard NOM talking points, which have all been easily and repeatedly debunked here, in court, and elsewhere, why not try to actually address the real topic? Like so:

    All civil laws must serve a valid purpose. They cannot exist simply to allow one group to express disapproval of another group, or target a group for denial of equal legal treatment and harm that group, or impose discrimination for its own sake. Any law which subjects a group of citizens to different legal treatment and which disadvantages that group must at the very least be able to survive Rational Basis scrutiny, meaning there must be some rational relationship between the actual effect of the law and the stated goal for the law, and that stated goal must be the advancement of a legitimate States Interest.

    So – what valid purpose is served by a law that harms same sex couples and their children by denying them the rights and protections of civil marriage? Name it.

    And good luck with that. None of the lawyers tasked with trying to defend these laws has ever been able to do so.

  • 340. TKinSC  |  May 11, 2014 at 11:32 pm

    Because the people are supposed to do these things. Just give them a chance – there are still 60-70 cases left. The tide will turn on the 10 (or is it 11?) consecutive wins. Something somewhere is going to shift and something else will cause a change to happen to shift it. I sense it.

    I still think the bans will be upheld by the Supreme Court 7-2 due to the aforementioned shifts and changes. Mark my words. I will bet a banana on it.

  • 341. davep  |  May 11, 2014 at 11:43 pm

    You didn't answer the question at all. You offered no argument to answer the question of what the state needs to prove to show that these laws comply with the Constitution and can be allowed to stand.

    You can't.

    It really looks as if you haven't read any of these rulings and have no idea WHY these laws are being found to violate the U.S. Constitution. And you're just so blindly opposed to same sex couples being afforded the same important rights and legal protections for their families that other families take for granted that you are just wishing and assuming that there 'must' be some argument to support your anti-gay views.

    If you're so sure about that, okay, what is the argument that will win the case for the state? And why haven't they ever offered it in any of these trials? They have had every opportunity to offer any argument, any evidence, any facts. And yet they have no argument to show that these laws serve ANY legitimate purpose that a law ought to be serving. Why is that?

  • 342. TKinSC  |  May 11, 2014 at 11:51 pm

    To your first question, It's based on a hunch or a gut feeling more than an argument.

    To your second question, they haven't offered it because it's still just a hunch. Another way of saying it is that it's in the hunch stage and not blossomed into an argument yet.

    What I'm really arguing for is that the courts and the states will eventually get my sense or hunch, and that's what will turn the tide, become the states' arguments, and the rest will be history.

  • 343. davep  |  May 11, 2014 at 11:53 pm

    You are once again trying to imply that the recognition of rights is subject to majority rule. Nope. Not even close.

    And in case you haven't noticed, the courts have repeatedly ruled that laws which deny access to civil marriage to citizens seeking to legally marry, simply because their partner is the same sex, violate the U.S. Constitution. These rulings explain this very clearly. You should try reading some of them. Such laws single out a targeted group for different legal treatment, harm that group, and fail to serve any legitimate purpose or advance any states interest in the process. This renders the law harmful, counterproductive, unnecessary, and unconstitutional.

  • 344. davep  |  May 12, 2014 at 12:01 am

    …. so, when asked 'what would the state have to prove in order to show that these laws against same sex marriage don't violate the Constitution', your answer is "I don't even know what they would have to prove, never mind whether they would actually be able to do so. I just wish there was something". Does that about sum up your "argument"?

    All laws must serve a valid purpose. They can't just impose harmful denial of equal legal treatment to a targeted group for the purpose of imposing discrimination for it's own sake. That has never been a valid purpose for a law. These laws fail the most basic tests for constitutional compliance. Your willful ignorance and denial is remarkable.

  • 345. Pat  |  May 12, 2014 at 12:02 am

    I have a dream… That there would be a technical way to automatically ignore all the comments from this troll. His BS probably make over half of all 350 comments to this thread, which has been completely hijacked and is becoming useless…

  • 346. TKinSC  |  May 12, 2014 at 12:13 am

    I'm an app davep. My comments are randomly dispersed in timing on these threads.

    The only reason I'm here is to make your arguments better.

    If you remember nothing else from this, please remember that. What you and the others say in response to me sharpen your arguments. I see it here all the time – many of you are good. And many of you are well-equipped because of me and those like me. Your side is winning quite rapidly because of me and those like me.

    I would say relax but I'll save that for after the final battle as I'm here to ensure you win it. Without that I have no purpose.

  • 347. davep  |  May 12, 2014 at 12:29 am

    Such an 'app' would be unnecessary, since there is nothing especially complex or challenging about the question of constitutional compliance of a civil law that denies equal protection and serves no legally valid purpose in the process.

    We have a Constitution which mandates Equal Protection, Due Process, and just treatment for our citizens. When our legislature or our voting public screws up and tries to make laws that violate these mandates (whether due to animus and prejudice or due to less hostile motives like plain ignorance), those harmed by the law take their grievance to the courts. Once they prove that they are indeed harmed by the law, and the state is unable to show that the law serves some legitimate purpose that justifies allowing this harm and unequal legal treatment to continue, the law is revealed to violate these constitutional requirements.

    Sheesh it's not rocket science.

  • 348. TKinSC  |  May 12, 2014 at 12:42 am

    The everyday person doesn't know all this or think about it/ You have had to learn it to adapt to an adverse society of which I'm a part thus proving my point.

    I think this is all going to work out fine. You saw I'm pro-Lawrence now. I didn't even know that.

  • 349. TKinSC  |  May 12, 2014 at 12:49 am

    Of course, you're begging the question now. The laws *do not* single out a targeted group for different legal treatment. The marriage laws apply equally, across the board, and merely make explicit the longstanding definition of marriage that has long been in place.

    I suppose one could say the marriage laws "harm" gay people in the sense that they are not interested in marrying according to those laws while straight people are. But mere unequal "harm" does not render a law unconstitutional. For example, I am "harmed" if I buy a lottery ticket and my numbers don't come up but somebody else's do. The state will treat us unequally: the other guy gets millions, I get squat. That does not mean the state's differential treatment of us is unconstitutional. Or for another example, a law prohibiting alcohol sales "harms" an alcoholic who is itching for a drink, but doesn't harm a teetotaler. Yet again, the law applies equally to alcoholic and teetotaler alike, and is not unconstitutional.

    And the legitimate interests that marriage serves are many. (For details, check the briefs.) Now, judges may or may not personally agree that those reasons justify the law, but absent a clear invidious purpose it is not a judge's place to substitute his policy preferences for those of the legislature/people.

    Finally, the mere fact that until 5 years only one state allowed same-sex "marriage", and 33 (34 counting California) still prohibit it today, weighs heavily against any suggestion that such a thing was meant to be included as a right under the Constitution that *those same states* ratified.

    So like I said, get 40 states to join the cause, and then we can talk about a SCOTUS ruling for the other 10. Until then, you're just whistling in a hurricane.

  • 350. lolker  |  May 12, 2014 at 12:53 am

    I really have no objections to you posting here, but damn, you sure love to hear yourself talk! Or should I say read yourself writing?

  • 351. davep  |  May 12, 2014 at 12:53 am

    Well obviously it's working out 'fine'. The issue of civil marriage for same sex couples is advancing far faster than any other equal rights movement in American History, and it is still accelerating. That's not the point.

    You said that you were here to debate this. But with just a couple of questions, it was quickly revealed that you have no idea what determines whether a law can be allowed to remain in effect or whether it violates our Constitution.

  • 352. TKinSC  |  May 12, 2014 at 1:03 am

    I don't even know what I mean with this. How can I help you sharpen your arguments if I get the facts wrong? The first LGBT marriage was in MA 10 years ago. Not five. Sorry about any mix-up. I'm a little klutzy with facts.

    Here's a story to illustrate my point;
    A while back I went to one of the local CVSasis. There was a man selling Girl Scout cookies with his niece and her two friends. A buxom woman with a cane in a wheel chair with rubber bands on her legs wheeled by. She ended up by oranges (back when they used to sell them) and Tylenol. They sold less cookies that day due to the rain.

  • 353. TKinSC  |  May 12, 2014 at 1:05 am

    I do believe you are (or at least may be) right, but that raises the (I think) very interesting questions I raise above. Take your time when you're not so tired and check them out; I'd like to know what you think, at the very least about what it means for how California state courts should/will handle Prop. 8.

    And assuming you're right, I reiterate (with the backing of Article III) that lower federal courts should not even be in the business of ruling on the constitutionality of state laws.

  • 354. SeattleRobin  |  May 12, 2014 at 1:10 am

    You need to do some studying up on history and various cultures. To claim that marriage is always understood as only between a man and a woman is ridiculous. That isn't even true in our own country, let alone across the planet and down through time. Heck it isn't true in the Bible either.

  • 355. TKinSC  |  May 12, 2014 at 1:17 am

    But as I think about it. Cases don't start at the appellate level so scratch that – they should start in the lower courts even if about state laws since that's where the determination of fact occurs. The appellate level will get their shot after the lower has theirs.

  • 356. TKinSC  |  May 12, 2014 at 1:18 am

    "And you should also know that there is 'obvious' 4 votes to grant certiorari, let alone "likelihood" to vote."

    Yes, of course. The question is, why didn't Judges Shelby, Friedman, and Piazza (or Bacharach or Holmes from the 10th Circuit) know that? (Or maybe they do and, being the activists they are, decided they were gonna stick it to their respective states anyway?)

  • 357. TKinSC  |  May 12, 2014 at 1:21 am

    Is there a one-pager fact sheet has all this? Nothing too long.

  • 358. davep  |  May 12, 2014 at 1:21 am

    Sheeesh, that entire comment of yours is old, old, rehashed rhetoric that has already been thoroughly debunked. First, all of the recently enacted U.S. laws and state amendments that were put in place shortly after the initial events regarding same sex marriage ten years ago were most definitely enacted to specifically target same sex couples. The legislative debates which enacted them, and the political ads which aired to the public at the time made no attempt to hide their purpose and their anti-gay animus. These laws were created specifically to prevent gay couples from legally marrying. This is a matter of well-established judicial record now, and it is part of the evidence that has overturned these laws. Trying to argue otherwise is childish wordsmithing.

  • 359. davep  |  May 12, 2014 at 1:23 am

    Second, your "argument" that this doesn't harm these couples is specious. It's no different than the "argument" used by racists in the Loving trial when they said 'The law doesn't discriminate! They can marry someone of the same race, just like everybody else!!'. And the court made their views about this type of 'argument' very clear. The right to marry includes the right to marry the consenting person whom you choose to marry. It is a fundamental aspect of a person's autonomous self determination for their own life. And there is no states interest served by such a law that would require someone to abandon the one person they wish to marry and marry someone that they don't wish to marry just to access the rights and legal protections of civil marriage.

  • 360. davep  |  May 12, 2014 at 1:23 am

    And yes, civil marriage advances several states interests, but that is not the question. The question is what states interest is advanced by DENYING marriage to same sex couples? And there is none. This denial of equal access, and denial of all the subsequent rights and legal protections that come from civil marriage, is a clear case of unequal legal treatment which harms the targeted group and which fails to advance any states interest in doing so.
    Then you make a ridiculous remark about how states did not allow same sex couples to legally marry until recently. This fails to provide any argument for why laws which deny the rights and protections of civil marriage to same sex couples should be allowed to stand, or how they could possibly be shown to comply with the constitutional mandates for Equal Protection and Due Process. Your remark wasn't any kind of argument at all.

    (BTW, you think California prohibits civil marriage for same sex couples? Are you aware of the ruling that overturned Prop 8 and allowed same sex marriage to resume in California? I assure you, same sex couples are legally marrying in California).

  • 361. TKinSC  |  May 12, 2014 at 1:23 am

    By activists, I mean a judge that doesn't do what I'd like them to.

  • 362. Pat  |  May 12, 2014 at 1:25 am

    OK, I even counted the comments… (yes, it's kinda sad, but this is what this thread has become). Out of 350 comments there are now 115 by TKinSC… Writing many comments is not a problem but since almost none of them bring anything useful, it destroys the whole purpose of the comment section.
    As Eric was saying above, "this is not a debate site. There are plenty of sites devoted to that." The purpose had always been to discuss what court decision may mean and dissect all the legal steps of court cases. If the whole comment section is now devoted to convincing a troll that marriage equality is OK, count me out…

  • 363. TKinSC  |  May 12, 2014 at 1:26 am

    But was Prop 8 done correctly?

  • 364. TKinSC  |  May 12, 2014 at 1:30 am

    Don't go Pat. We love your spreadsheet. You even made it to the Must Read ranking in large part due to that. And, yes, this makes 116. I know.

  • 365. davep  |  May 12, 2014 at 1:31 am

    "…how California state courts SHOULD / WILL handle Prop 8"???

    Are you aware of the fact that Prop 8 was overturned and same sex couples began legally marrying again in California about a year ago?

  • 366. davep  |  May 12, 2014 at 1:33 am

    Ah yes, blame the judge instead of actually reading the court ruling, finding out why the ruling happened the way it did, and discussing the merits of the case. That's about as stupid as a legal argument can get.

  • 367. TKinSC  |  May 12, 2014 at 1:41 am

    The problem is you turn the question on its head. The question should be: Why do states offer marriage in the first place and how does allowing same-sex couples to marry advance that goal?

    There are several reasons for marriage, but primarily it is about ensuring the stability of relationships that tend to produce children, and uniting through legal kinship the families of the two people whose children will (obviously) be biologically related to them.

    That answers the first question.

    The answer to the second is, it doesn't.

    Case closed, the state wins.

    I will add, though, that the state does not force anyone to be part of a same-sex couple. If they choose to do so, they know the consequences.

  • 368. Lynn E  |  May 12, 2014 at 1:53 am

    What happened? Someone fed a troll.

  • 369. Margo Schulter  |  May 12, 2014 at 2:25 am

    On Judge Piazza’s decision and the Arkansas Constitution, I can see two possible distinctions from Strauss v. Horton, the original challenge under the California Constitution to Proposition 8.

    The first point, already a topic of discussion, is that Article 2 of the Arkansas Constitution has language which might be read as excluding a usual voter initiative as a way of amending the Constitution in such a way as effectively to abrogate or compromise certain provisions of the Declaration of Rights — as opposed to a constitutional convention or the like. Here’s one article, if I can type the URL accurately .

    The other possible distinction is that while Strauss v. Horton generally stands for the proposition that even basic protections of the California Constitution can be altered by a simple majority vote adopting an amendment, the Court noted that Proposition 8 withheld the name “marriage” from same-sex partnerships but did not otherwise restrict their rights as domestic partnerships with, as the Court saw it, equivalent rights. (Especially post-Windsor, of course, the availability of federal benefits for married couples might have this a distinction with rather concrete financial as well as dignitary aspects — if Judge Walker and Hollingsworth had not made that whole question happily moot.)

    In Arkansas, Amendment 83 was more sweeping, possibly ruling out any civil union or domestic partnership similar to marriage. This greater restrictiveness, if seen to clash with Article 2, Section 2 and/or 3, might seem more like the kind of radical constitutional revision possibly beyond the scope of the usual amendment process.

  • 370. Margo Schulter  |  May 12, 2014 at 2:33 am

    Since my URL seems to not to have been in the right format at 369 for the article on the Arkansas Constitution and the marriage ban, I’ll invite people to Google it: Jennifer Lynn Carleton, “Life, Liberty and the Pursuit of Matrimony: The Constitutional Implications of Arkansas’s `Amendment Concerning Marriage’,” 64 Arkansas Law Review 383 (2011).

  • 371. RNJ  |  May 12, 2014 at 3:28 am

    I've been encouraged by all of the recent court outcomes, but then I get worried after I read the following post on another forum:

    This is going to be interesting when it gets to the Supreme Court, and it will have to, because separate appeals courts have issued differing rulings.

    Justice Kennedy (joined by Ginsburg, Breyer, Sotomayor, and Kagan) was very clear in United States v. Windsor, 570 U.S. 12 (2013), that marriage is a state issue, with the federal government having very little (if any) power to touch it.
    Subject to certain constitutional guarantees, see , e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,” Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws may vary from State to State, but they are consistent within each State.
    The last two sentences of Kennedy's opinion state:
    The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
    (Emphasis mine.)

    Kennedy argued against DOMA from both a federalist, state's-rights position, and from an equal-protection, due-process position. It appears that he threw in that last sentence about applicability because he did not intend for the equal-protection, due-process argument to recognize a new, universal right to same-sex marriage. He intended to limit it only to those marriages which the states chose to create.

    He might not be inclined, if one of these cases comes before him, to agree that the Constitution guarantees a "right to gay marriage," because such an argument would be missing the federalist component. After putting so much emphasis on state's rights in Windsor, would he be willing to turn around and say that the states don't have the right to decide what is and is not a marriage within their own borders?

    It could get interesting.

    What about 18-year-olds in Nebraska and 20-year-olds in Mississippi who can't get married? Is that an equal protection violation?

    First-cousins-once-removed cannot get married in KY, NV, WI, and WA. In NH, you cannot marry a first cousin even if one of you is adopted. Plus, if you're married to your adoptive first-cousin and you move to NH, the state will not recognize your marriage.

    Eleven states void consanguineous marriages of its residents performed out-of-state. Three states void all prohibited out-of-state marriages.

    On the other hand, 20 states don't restrict first-cousin marriage at all.

    Now where is the equal protection violation here? These laws have been around for over 200 years, and they have always been conflicting, and they may even seem discriminatory. But they've never been overturned by the federal courts. They are a state issue.

  • 372. RNJ  |  May 12, 2014 at 3:40 am

    A little about me. I'm a gay male, married in California and living in Oklahoma. We've been together for 19 years. This SSM rollercoaster is getting old. I posted the above post to get your opinions.


  • 373. Zack12  |  May 12, 2014 at 4:12 am

    Yup, and the people who run the site won't do anything to make the trolls go back under the bridge either.

  • 374. chad  |  May 12, 2014 at 5:42 am

    They are lined up already outside the courthouse in Pulaski Co:

  • 375. TKinSCGayMarriageBad  |  May 12, 2014 at 5:46 am

    "And why haven't they been able to do it?
    Tick. Tock."

    LOL you're getting hella trolled by the guy trolling me. I've yet to respond to this. To make things easier, I've added my view to my name. He may still troll me, but at least he can't make it seem like I keep changing my mind. (Though it is funny to see you argue with someone who agrees with you.)

    Anyway, here's my response:

    First of all, the state defendants don't need to show anything at all. Laws are presumed constitutional until proven otherwise. The plaintiffs need to show that there is no conceivable valid justification for the distinction that the law draws between same-sex and opposite-sex couples. All defendants have to do to guarantee victory (before a fair and responsible court) is to offer up one justification that sounds plausible, whether or not the court agrees with it or *even* whether or not it was the actual reason for the law.

    They have yet to be successful in this endeavor because all the low-level "mailroom" judges entrusted to rule fairly and impartially on the law can't resist the temptation to issue a landmark ruling heralding the "new age of equality" or some such BS. And, like you, they think of Windsor as the wink and the nod that gives them the green light to do just that (even though Windsor specifically said otherwise).

    That's why you have:
    – Judge Shelby making the ridiculous assertion that Virginia's anti-miscegenation laws withheld the right to marry from a targeted minority
    – Judge Black referring to the Pennsylvania governor comparing same-sex "marriage" to incest … in a case from *Ohio* (and really, what's so bad about incest, if same-sex "marriage" is hunky-dory?)
    – Judge Friedman making the ridiculous assertion that speculation of future harm is not a rational basis for withholding a constitutional right (it is indeed a rational basis, which is why deprivation of constitutional rights is subject to higher scrutiny; or if he means the constitutional right to be treated equally, then he begs his own question, as this right depends on the rationality of the law)
    – Judge Piazza declaring a state constitutional amendment as violative of the state constitution.

    These judges are so giddy about what they are about to do that they don't bother to check their analyses for consistency (much less validity).

    I think you're going to see a different story at the appellate level, where judges have to discuss their decisions among each other, and are further removed from the states involved and therefore can better resist the temptation to "stick it" to those states just because they can.

    And once appellate courts start smacking down the lower courts permanently instead of temporarily with stays, then the walk of shame can begin for those judges who were so damn sure of themselves that they couldn't be bothered even to stay their ruling to avoid the resulting legal chaos that would arise in case they were overturned, *or even* (as was done in Massachusetts and South Africa, where the ruling was *unappealable*) to give the legislature time to adjust statutes accordingly.

  • 376. JayJonson  |  May 12, 2014 at 6:12 am

    Whoever gave than analysis is whistling in the wind. There are 5 votes in favor of declaring a right to same-sex marriage. Kennedy did not have to address that issue in Windsor, but he will in the next term. States regulate marriage all right, deciding on waiting periods, consanguinity, etc. But they cannot violate equal protection and due process. The very logic that struck down the federal DOMA will also strike down state DOMAs.

  • 377. Corey from Maryland  |  May 12, 2014 at 6:24 am

    TKinSC, who cares whether or not you are swayed? The EGO, mercy…

  • 378. Steve  |  May 12, 2014 at 6:25 am

    So are you Rick/Jason/Ratbastard? Maybe post something misogynistic. Then it would be obvious.

  • 379. Retired_Lawyer  |  May 12, 2014 at 6:32 am

    Cheer up. To begin with, Justice Kennedy avoided basing Windsor on a theory that marriage is exclusively up to the States. His opinion mentions State laws to show that a general Federal law on marriage (DOMA) was unusual, and therefore suspicious (not a word used by Justice Kennedy). He then goes on to show other unusual features of DOMA, in what looks like a heightened scrutiny analysis–which he doesn't say he is doing–but which function he is performing. He also goes out of his way to reaffirm that State marriage laws must meet U.S. Constitutional standards. Justice Kennedy restricted his opinion to lawful marriages, because the case of Edith Windsor involved only that –not a civil union or a domestic partnership. He also restricted the opinion to sec. 3 of DOMA, because, again, that was the only section before the Court. The Court traditionally builds precedents on a case by case basis, going no further than necessary.

    As for the notion that States do not recognize each others' (mixed sex) marriages: hogwash. Couples married in one State don't become unmarried in another, by reason of age or degree of relation. The whole subject of the sometimes hilarious differences was covered by law prof
    William Eskridge, in his 1996 book, The Case for Same-Sex Marriage Notice, by the way, that, unlike the legislation aimed at us, none of the varied State laws on other marriage aspects singles out a class of people (gays) for disparate treatment. Stay tuned. So far, every Federal and State Judge in every same-sex marriage case since Windsor (June 26, 2013) has gone our way.

  • 380. Retired_Lawyer  |  May 12, 2014 at 6:44 am

    In the above,there should be a period in the fifth line from the bottom after the word Marriage.

  • 381. Thomas  |  May 12, 2014 at 6:47 am

    I quoted the actual wording of article 2 section 29 in my comment. How the AR SC will see it only time will tell. If they sustain the circuit courts decision based on the AR constitution the decision will be final. I of course hope they do.

  • 382. NoGays  |  May 12, 2014 at 6:48 am

    No Gays! If the people vote NO to gay marriage in Arkansas then thats how it should be. What Gay would want to live in a state where plainly they are not wanted. If they want to get married move to another state we don't want that live style here. As you see in Arkansas "Keep Arkansas Clean." I myself am sick and tired of gays being pushed down everyones throat. Go back in the closet or just wake up and realize it's not right it's sick!!!!!!!!

  • 383. StraightDave  |  May 12, 2014 at 7:05 am

    SSM used in a Toyota car Ad.
    Take a bow my LGBT friends. You have arrived.

    …and a follow-on newspaper article about the ad.

  • 384. grod  |  May 12, 2014 at 7:16 am

    Decision applies to [ at least] six counties, at least 3 counties have issued licenses. At least 100 have received licenses!

  • 385. Hal  |  May 12, 2014 at 7:34 am

    Are you quoting from one if the state briefs?

  • 386. Dr. Z  |  May 12, 2014 at 7:35 am

    After all the confusion in this thread (378 posts!) it's almost refreshing to see that some trolls are still kickin it old school.


  • 387. Randolph Finder  |  May 12, 2014 at 7:36 am

    When was the last time that NOM and the anti-Marriage Equality forces won *anything*? (May 2012 with North Carolina Amendment 1?)

  • 388. StraightDave  |  May 12, 2014 at 7:59 am

    There is some value in flushing them out of the weeds, knowing who your enemies are, knowing what they're telling each other, and being able to shame them in public. They do themselves no favors, nor gain any traction. Yeah, its a damn nuisance sometimes, but we gain more than they do. Personally, I just skim past their crap if it looks repetitive. But if EoT chose to ban repeat offenders of zero value, I certainly wouldn't sue them.

  • 389. Ragavendran  |  May 12, 2014 at 8:19 am

    Yes, Kennedy does mention the disclaimer that "this opinion and its holding are confined to those lawful marriages." Going by that, however, at the very least, it means that same sex marriages that were legally performed in one state should be recognized by another state, for the same reasons (minus the federalism reason, obviously) that they should be recognized by the federal Government, correct? So Kennedy can't contradict his Windsor rationale and rule that states need not even recognize same sex marriages legally performed in another state. So what you've read on the other forum is missing this big huge chunk – one that Kennedy hasn't ruled out. In the worst of worst cases, he has allowed himself room to comfortably rule that states must recognize same sex marriages, even if he is against recognizing a right to marriage for same sex couples (but I doubt the latter).

    And regarding the marriages that are not allowed in certain states (18-year-olds in Nebraska, 20-year-olds in Mississippi, first cousins, etc.) a majority of those states do recognize those same marriages if legally performed in another state (with the exception of three states). If a state can pick and choose what illegal marriages it can recognize within its borders with no rational basis, that is an equal protection violation, as was pointed out in no uncertain terms in the recent Ohio ruling by Judge Black.

  • 390. Big Rick  |  May 12, 2014 at 9:17 am

    Actually I think he just likes to muddy the waters and waste other people's valuable time.

  • 391. wkrick  |  May 12, 2014 at 9:17 am

    Wow, the comments on this Time article are awful…

  • 392. RNJ  |  May 12, 2014 at 9:25 am


    Thanks for the encouraging words. SSM is something I never thought would happen in my lifetime and marriage is something I've only dreamed of until recently. Now that I'm married (on a federal level only) I feel 1/2 married. Closer than not married, but not good enough.


  • 393. BillinNO  |  May 12, 2014 at 9:25 am

    So at least five Arkansas counties are refusing to issue marriage licenses 'until the Supreme Court (of Arkansas???) rules on the matter'. Do they have the legal right to take such a position? Seems to me if no stay is issued then the judge could order them to comply…

  • 394. BillinNO  |  May 12, 2014 at 9:33 am

    From ABC NEWS 1 hour ago: "In Fayetteville, the home of the University of Arkansas, clerks issued 23 licenses to same-sex couples Monday morning and one to a heterosexual couple. The women who work in the office used White-Out to correct the documents' formatting where necessary.

    "On our licenses, it automatically prints 'Mr.' and I told the girls just to change that to 'Ms.'" Washington County Clerk Becky Lewallen said."

    (Remember White-out the next time a clerk says she doesn't have da right form :-)

  • 395. davep  |  May 12, 2014 at 9:37 am

    Yes, I know how Rational Basis review works. And these laws have repeatedly been shown to not even survive rational basis review. There's that pesky word "rational" in there. When NOBODY is able to offer any conceivable rational justification for the law, and there is not a single States Interest advanced by the law, and the law clearly results in harmful denial of equal legal treatment, case closed. Every one of the supposed 'justifications' and 'purposes' offered by the defendants, even as specious post-hoc rationalizations which clearly have nothing to do with the real reasons the law was enacted or the blatantly unconstitutional purpose it was intended to actually serve, fails to survive any kind of examination for logical validity.
    And the appeals courts will rule the same, because the issue is the same, and the facts are the same. These laws are unnecessary, harmful, unjust, and fail to advance any states interest or serve any purpose that a law ought to serve.

  • 396. Rose  |  May 12, 2014 at 9:43 am

    That would be my understanding…….and as long as NO stay has been issued, they are NOT in compliance with the ruling!

  • 397. wkrick  |  May 12, 2014 at 9:44 am

    According to this article, there are just three counties that are issuing licenses now…

    "That leaves just three counties that are still granting the licenses, including: Marion, Pulaski and Washington."

  • 398. NoSoupForYou  |  May 12, 2014 at 9:47 am

    You're an odd duck. Try meditating.

  • 399. Rose  |  May 12, 2014 at 9:47 am

    Glad to inform you of this but Gays and Lesbians are ENTITLED to live ANYWHERE they want and be treated like normal American Citizens with the same right to marry as you have:-)

    My suggestion is for you and other haters to STOP thinking about what others are doing and mind your own damn business… have the right to your opinion, you DON'T have the right to prevent others from having their rights!!!

  • 400. Lilly  |  May 12, 2014 at 9:55 am

    Not sure if you're new to reading articles online that mention gays, but sometimes the comments are "awful" – depending on site – yet that seems to be changing.

    Thanks for the heads-up, I guess.

  • 401. Big Rick  |  May 12, 2014 at 9:59 am

    I'd love it if the 5th circuit would uphold Judge Orlando Garcia's ruling in De Leon v Perry. But I think that if any circuit were to overturn a pro-SSM ruling, it would be the 5th.

  • 402. Rose  |  May 12, 2014 at 10:01 am

    Sorry, but NOT a smoker and I use caps strictly for emphasis when I feel the need to. I am extremely passionate about Marriage Equality as well as Gender Equity for the most part and I have done a lot of research and reading on this subject……though lately, reading the briefs has become a bit difficult as they have all become the same and to me, total BS for denying the right to marry.

    If folks STOPPED referencing the right to marry for Gays and Lesbians as "GAY" or
    "SAME-SEX" marriage, this fight would probably NOT be so difficult, but that is strictly my opinion. My wife and I have been married 6 years in August and our marriage license is NOT any different than all of the other marriage licenses issued from June 2008 until November 17th, 2008.

    You are entitled to skip my comments or rate them as you like, but I am here to continue to learn on this fight and add what I feel is important articles and thoughts.

    By the way, it would be nice if you posted in a more consistent manner. I mean, if there are 2 posters using the same name, it gives the impression you are flip-flopping on the issue.


  • 403. wkrick  |  May 12, 2014 at 10:05 am

    Oh, I've seem my share of awful comments, but usually on more right-leaning websites. Time always struck me as more middle-left.

  • 404. Mod  |  May 12, 2014 at 10:05 am

    This thread is now CLOSED. It's approaching 400 comments and has become unruly to navigate. Please post in subsequent threads. There is one from from Matt directly above this. If you try posting in this one, a loud buzzer will go off. Not good if you're in a coffee shop or at work.

    Thank you for your continued participation and support. It's an honor to serve you.

  • 405. davep  |  May 12, 2014 at 10:13 am

    Many of the appeals courts will certainly rule on the merits, and in our favor, based on facts and the most basic principles of Constitutional Law. But if one of them does rule against us based on their personal religious views or whatever, boom – that's a circuit split, and SCOTUS will then take up the issue and will rule in our favor, forcing the 'straggler states' to repeal their unconstitutional civil marriage restrictions sooner than would have happened otherwise.

  • 406. Guest  |  May 12, 2014 at 10:13 am

    TKinSC strikes again, trying to stifle conversation.

  • 407. davep  |  May 12, 2014 at 10:18 am

    I gotta test this buzzer thing…..

  • 408. TKinSC  |  May 12, 2014 at 10:18 am

    Thanks for the additional background. Congratulations on your marriage. I'm happy for you both.

    I agree completely with your 2nd paragraph. Marriage is marriage. I understand using the term marriage equality, but what is a clear way to explain it in a newspaper headline? For example, "Marriage Legal For Same-sex Couples in Arkansas". Would you use that? I think "gay" and "same-sex" are used for expediency perhaps. Would like other suggestions on this though.

  • 409. davep  |  May 12, 2014 at 10:19 am

    Nope. no buzzer. I suspect the comment was not from a mod. I have seen them post here, and when they have, it was not under a user name of "Mod".

  • 410. Mod  |  May 12, 2014 at 10:24 am

    Thank you for the feedback on the buzzer. It's still in testing. Regardless, Matt does need some love. With the exception of last week, his threads are historically under-commented. Last week was likely an anomaly since we had a gap in front-page posts.

  • 411. Rashi  |  May 12, 2014 at 10:35 am

    This is a troll of the original TKinSC. He didn't put quotes around the word marriage in his name and he consistently does that.

    Disregard. Try again TKinSC blah, blah, blah

  • 412. Zack12  |  May 12, 2014 at 10:43 am

    Posted and didn't get a buzzer.
    As for the number of posts, I sent a comment about that. One poster is more or less spamming the board with gibberish. Is there any way we can block his comments?

  • 413. davep  |  May 12, 2014 at 10:43 am

    Go back to your Xbox, troll.

  • 414. Rose  |  May 12, 2014 at 10:56 am

    I think it is used just as a way to make some statement and it shouldn't be, seeing as a Fundamental right is all that Same-Sex couples are fighting for, but if one uses "GAY" or "SAME-SEX" in front of marriage, then it appears to those who DON'T want it as something "SPECIAL" instead of what it truly is……just the right itself!

  • 415. davep  |  May 12, 2014 at 11:11 am

    No, but you can use the 'report' button, or a couple of other methods of notifying the site staff, like the "visit our support page" link at the very bottom of the page. I'm hoping the folks who run the site will take steps to keep things running well. This site provides a lot of valuable info and it's not okay to allow some petty childish antics to interfere with that.

  • 416. Equality On TrialArkansas&hellip  |  May 12, 2014 at 11:14 am

    […] week a state judge struck down the ban, and declined to issue a stay along with his decision. Same-sex couples got married over […]

  • 417. BillinNO  |  May 12, 2014 at 11:40 am

    Reminds one of the 'Massive Resistance' we had against integration in Virginia in the 60's. I hope they are ordered to comply.

  • 418. StraightDave  |  May 12, 2014 at 11:42 am

    So Carroll Cty was the only one issuing on Sat, but than changed their minds on Mon while other counties moved forward?!?!

    Anybody know what the official "excuse" was for regressing? I find that suspicious and disturbing. They've already demonstrated that they know what the right thing to do is.

  • 419. Bruno71  |  May 12, 2014 at 11:48 am

    I read something that they got a letter from some attorney, don't know the specifics of it. Was Carroll one of the defendant counties?

  • 420. Bruno71  |  May 12, 2014 at 11:53 am

    Arkansas should focus less on cleanliness and more on education.

  • 421. TKinSC  |  May 12, 2014 at 12:13 pm

    Understand that, but how should it be written in newspaper headlines? That is important. Someone needs to figure that out. Would that be a job for the GLAAD?

  • 422. Guest  |  May 12, 2014 at 4:43 pm

    Ha ha, diseased Christian bigot, you have no power or control. Your religion is pathetic. I spit on your bible.

  • 423. JustMe  |  May 12, 2014 at 4:48 pm

    A press release Sunday from Attorney David Hogue on behalf of the county lists three reasons:

    "1. Circuit Judge Christopher Piazza did not grant the Plaintiffs’ request for an injunction barring the Defendants from enforcement of Act 146 of 1997, Amendment 83 to the Arkansas Constitution, Arkansas Code § 9-11-208 or Arkansas Code § 9-11-107(b), as they requested.

    2. Even if he had, Defendant Melinda Reynolds was dismissed from the action before final arguments were made, denying her an opportunity to defend her position. As she was not a final party to the case, the judgment can not be enforced against her.

    3. Further, with all due respect to the Third Division Circuit Court of Pulaski County, a circuit court does not establish or strike down statewide law. That would be the role of the State Supreme Court. This case has simply not yet reached that level.

    Given the above, Ms.Reynolds will continue to uphold state law, as she is sworn to do. If and when that law changes, so will her practice in Faulkner County."

  • 424. Fluffyskunk  |  May 12, 2014 at 6:17 pm

    I have a feeling that those report emails go straight into the site admins' spam folder. I've reported lots of spam bots in the past and none of their posts were ever deleted.

  • 425. TKinSCGayMarriageBad  |  May 12, 2014 at 8:56 pm

    "These laws were created specifically to prevent gay couples from legally marrying."

    Not true. Gay (more precisely, same-sex) couples *already* couldn't marry — and in fact *had never been able* to marry — because that is definitionally impossible. The provisions at issue were passed to prevent liberal activist courts from misconstruing the law and the English language.

    The legislative debates are irrelevant, as the constitutionality of a law (at least, under the rational basis test) does not turn on what the legislators were thinking. That said, whatever anti-gay animus was in place was directly related to the fact that gays were trying to undermine marriage by having its definition legally altered. They stop trying to have recognition of their abnormal relationships imposed on the government, and animus towards them goes away.

    (Continued; apparently this comment system doesn't like long comments anymore.)

  • 426. TKinSCGayMarriageBad  |  May 12, 2014 at 8:57 pm


    "This is a matter of well-established judicial record now, and it is part of the evidence that has overturned these laws."

    You do not overturn a law based on "evidence". You overturn it (or not) based on what it says. Unless the state has a special duty under heightened scrutiny to justify a law, it rises or falls on its own merit, not on an analysis of the minds of those who passed it. That is Con Law 101.

  • 427. TKinSCGayMarriageBad  |  May 12, 2014 at 9:03 pm

    "Second, your 'argument' that this doesn't harm these couples is specious"

    I specifically admitted they were harmed. I suppose most laws help some and harm others. That is irrelevant to their constitutionality.

    "The right to marry includes the right to marry the consenting person whom you choose to marry."

    You better tell that to the State of Maryland, which has a hateful, bigoted, unconstitutional law that prohibits people from marrying their grandparents. Can you believe the nerve of Maryland to think courts wouldn't notice that spiteful provision whose only purpose and effect is to keep loving couples apart?

  • 428. TKinSCGayMarriageBad  |  May 12, 2014 at 9:32 pm

    That is not the question at all. It would be like saying "Sure, education advances a state's interest, but what state interest is there in DENYING a free education to adults when it is granted to children?"

    The fact is, state resources are not unlimited. The granting of benefits harms the state. The question is do the benefits of granting marriage outweigh the costs? For opposite-sex couples, the answer is (on average) "Yes", and for same-sex couples it is (on average) "No". (This ignores the potential social costs of abandoning the notion that marriage exists primarily to legally unite mothers with fathers.)


  • 429. TKinSCGayMarriageBad  |  May 12, 2014 at 9:35 pm

    "Then you make a ridiculous remark…."

    If same-sex marriage has never been allowed in more than half the states, then it is ludicrous to think that the constitution *that those same states ratified* somehow requires it. Whatever the 14th Amendment may mean, it cannot mean something that has always been repugnant to the public policy of the vast majority of states.

  • 430. TKinSCGayMarriageBad  |  May 12, 2014 at 9:39 pm

    "I assure you, same sex couples are legally marrying in California."

    The California Constitution delares marriage to be the union of only a man and a woman. If same-sex couples are "marrying" there, they are doing so in violation of California law. The fact that the governor has been ordered to pretend otherwise, and is gladly complying with that order because he is a traitor to his own state, doesn't change that.

    And as Ragavendran has pointed out, California state courts are not bound by the federal court order. So those same-sex couples who are "marrying" in California are going to need a lot of luck getting a "divorce" there if their "marriages" don't work out.

  • 431. TKinSCGayMarriageBad  |  May 12, 2014 at 9:50 pm

    LOL try to keep up. (I responded to you about this point in another post; hopefully you will pay attention there since you obviously didn't here.)

  • 432. Zack12  |  May 12, 2014 at 9:51 pm

    Then interacial couples that married in several of the SOuthern states until the mid 2000's have invalid marriages as well, because that's when many of them got around to getting their bans off the books.

  • 433. TKinSCGayMarriageBad  |  May 12, 2014 at 9:55 pm

    I will think about this and get back to you. I try to respond to all my fans.

  • 434. TKinSCGayMarriageBad  |  May 12, 2014 at 9:58 pm

    Dude, do you mind at least reading the discussion before responding? This thread involves the decision not to grant a stay when they knew (or should have known) that the Supreme Court was going to.

  • 435. TKinSCGayMarriageBad  |  May 12, 2014 at 10:27 pm

    "When NOBODY is able to offer any conceivable rational justification for the law"

    They have been offered. But the judges, like you, have made up their mind beforehand, closing their eyes, putting their hands over their ears and yelling NYAH NYAH YOU'RE JUST A BUNCH OF BIGOTS.

    "And the appeals courts will rule the same"

    Doubtful, but no sense going back and forth on it. Time will tell.

    "These laws are unnecessary … and fail to advance any states interest or serve any purpose that a law ought to serve."

    The millions who passed them beg to differ. But I guess davep knows better than them.

  • 436. StraightDave  |  May 12, 2014 at 10:28 pm

    Dude, a court doesn't have to try to second-guess SCOUTS. In fact, that's a very bad practice. Here's why. If SCOTUS were inclined toward a stay, they'll get there anyway. But if they weren't, the appeals court might inappropriately impose a stay, which SCOTUS then lazily leaves in place assuming there was a good reason for it, when in fact the only reason was to second-guess SCOTUS. A court should never do anything for any other reason than it believes it to be the right thing at the time.

  • 437. TKinSCGayMarriageBad  |  May 12, 2014 at 10:31 pm

    LOL a name is not meant to be grammatically correct.

  • 438. StraightDave  |  May 12, 2014 at 10:37 pm

    It's called Google. Do your own homework!

  • 439. Rose  |  May 12, 2014 at 10:48 pm

    Evening………I see this sort of troll all the time on another blog site I participate on and the one thing I have learned is you CAN'T fix stupid no matter how much duct tape you use…….this poster believes that eventually the tide will turn back to before Windsor and that time is gone…..and the State DOES have to prove why there is a compelling interest to keep marriage the status quo and so far they HAVEN'T been able to do that and as long as they use ridiculous arguments like responsible procreation, or lower birth rates……then in my opinion they will CONTINUE to lose!!!

    I have been married almost 6 years and my marriage has had NO affect on the marriages of family or friends, nor on their right to have babies…….and though it is true that Gays and Lesbians CAN'T naturally procreate between themselves……..neither can the marriages of countless opposite-sex couples who I know….yet we DON'T deny them the right to marry because in reality….these folks DON'T really care about the children, they just DON'T want Gays and Lesbians to have the right to marry.

  • 440. DrPatrick1  |  May 12, 2014 at 11:24 pm

    This is, in fact, where our jurisprudence is today. Generally, the judicial branch interprets the laws, as written, only under the lens of the specific facts in a case. In Windsor, the facts were that a legally married woman was being forced to pay a tax that other legally married people are not. There was no question as to whether in her home of residence (for tax purposes, it is your legal residence that determines which state's laws will matter) she was married, as both sides agreed that for NY purposes, she was legally married. The majority opinion found that in addition to the federal government violating her equal right to due process/ equal protection under the 5 th amendment (for modern legal issues, ie those unrelated to slavery, think of the 5th amendment as placing limits on the federal government not to discriminate against its people just as the 14th amendment places those same restrictions on the states) because they were treating identically legal marriage licenses from NY differently, but that in doing so they violated states rights because the right to control marriages is reserved by the states, and DOMA effectively forced the states that allowed marriage equality to treat their gay and married citizens differently. That was the issue before them, so it shouldn't be surprising to anyone that the language they used was restricted to discussing couples that were already married.

    Whether a state would be forced to treat all of its citizens the same was not before them, and if they were so inclined to demand equality, they would not use a states rights argument. Little in the US constitution limits the authority of the states. It controls how each state should be represented in the federal government (though not how those representatives should be selected or replaced in cases of vacancy), it establishes federal supremacy (such that state laws that conflict with federal laws, in those few areas where the federal government can regulate, then the federal law will trump the state law, and that includes the US Constitution trumping each state's constitution), and the 14th amendment limits the states' ability to discriminate against its citizens. There may be a few other things, I am not a constitutional law scholar. I'm just a MD doctor.

    So, in order for the US constitution to declare a state law or state constitution unconstitutional, it would have to be found to violate one of the few areas that actually limit the states. With marriage, the states have always had the say, and Windsor supported that longstanding truth. The federal government could not invalidate what was unquestionably under state control.

  • 441. davep  |  May 12, 2014 at 11:25 pm

    You have absolutely no idea what you are babbling about. You clearly have no idea what determines whether a law is or is not constitutional. You have no argument. All you are doing is wasting perfectly good electrons with your pointless trolling.

  • 442. DrPatrick1  |  May 12, 2014 at 11:26 pm

    However if a state were to refuse a requested marriage license application, it could do so, as the state can control marriage, AS LONG AS IT DOES NOT VIOLATE THE 14th Amendment. It seems to be the only limit on the states' ability to control marriage (again there may be others, I am not a constitutional law scholar.) So, the only question remaining is, does denying access to marriage equality based on sex, or sexual orientation (even the best among us are conflicted whether the discrimination is based on sex, because a man cannot marry a man, but even a gay man could marry a woman, or whether it is sexual orientation because the effect of the gender discrimination has a disparate impact based on sexual orientation) violate the 14th amendment. SCOTUS precedent states there are multiple reasons to discriminate (not allowing a blind person a drivers license) and most are logically sound. However there are certain rights which are so fundamental, that any basis for discrimination must withstand serious rigor to hold up. This isn't to say that there are not legal ways to discriminate, but the burden for proving it is legal falls to the state. We call these FUNDAMENTAL RIGHTS and marriage has been so declared at least a dozen times at SCOTUS, so if we can prove all we are talking about is Marriage, and not some special entity like gay marriage, then heightened scrutiny applies, and the state must prove that denying marriage to gays is necessary for the state to function. This is something very few people think the state could do, and if the justices see it this way, we win!

    Precedent also states that there are certain circumstances where a targeted minority could be discriminated against, where the right at stake was not so fundamental as to require a special test. They stated that in such circumstances, the fact that the law targeted a specific minority could make it suspicious for violating equal protection principles (it is not a fundamental right that you obtain a drivers license. However you cannot discriminate on the basis of race or gender in giving out a drivers license). They established certain criteria (like immutability, long standing prejudice, and an inability to resolve the dispute using the majority rules of our voting booths) which when met, could require laws targeting such a minority for a more strenuous test to see if it is legal discrimination. In general, there have been only a few times where the court has recognized such a minority. Race and gender have both been recognized as areas where laws that discriminate based on either have to withstand this heightened scrutiny. (This is why some argue that marriage inequality is an illegal discrimination based on gender, which itself is an already established minority for heightened scrutiny. However, Baker used this line of reasoning in the 70's and was turned away by SCOTUS so it set bad precedent for us).

    Our side argues that clearly sexual orientation meets the established criteria set forth by SCOTUS to see whether we are such a minority, and that as such, these laws should be struck down as they do not withstand that heightened scrutiny. Fortunately/unfortunately, anti GLBT laws to date that have been found unconstitutional, have been ruled that way as SCOTUS has ruled that there wasn't even a plausible rational reason for the law in the first place, so it had to be struck down before considering whether Gays were a "suspect class" meaning they merited the higher scrutiny.

    As there have been dozens of cases fighting for equality, and targeting closer to the heart of the discrimination against gays, it seems likely that SCOTUS will be forced to answer the more pivotal questions they seemed to have been ducking for so long. I think the appearance of them ducking the core issue, is only a result of them dealing with the specific question before them.

    Whether it is constitutional for any state to deny 20 or 18 year olds, or first cousins, or any other distinction, can only be answered by the judicial branch, and they can only answer such a question after it is asked, in the form of a lawsuit. (Who knew SCOTUS had the authority to stop a recount the state Supreme Court ordered to continue, where for much of our country's history, it was understood that the constitution gave the authority over elections to state law, and the providence of state law to the exclusive purview of the states, until BUSH V GORE?)

  • 443. davep  |  May 12, 2014 at 11:26 pm

    You have no idea what you are babbling about.

  • 444. DrPatrick1  |  May 12, 2014 at 11:29 pm

    Excellent and concise. I could learn a thing or two from you!

  • 445. davep  |  May 12, 2014 at 11:32 pm

    Uuuuh, no. The 'justifications' that have been offered are completely idiotic 'arguments' that don't survive the slightest application of basic logic.

    Examples of the "rationales" for the law: "It encourages responsible procreation!". Nope. Denying civil marriage to same sex couples has no effect on the procreative activities of potentially procreative couples. And none of the others make any more sense than that one. It's ridiculous.

  • 446. davep  |  May 12, 2014 at 11:37 pm

    How about this one: "Think of the kids! Kids need a mom and a dad!". Nope. Denying civil marriage to same sex couples doesn't turn them into an opposite sex couple, it just forces them and their children to live without some important legal protections. It is counterproductive to actual states interests related to the welfare of children. It harms the kids in these families, and provides no benefit to any other families. What a stupid 'argument'.

  • 447. davep  |  May 12, 2014 at 11:40 pm

    And if you want to speak for the millions who passed the laws and you think you can name a states interest that these laws advance which makes these laws necessary, and name a legitimate purpose for these laws which justifies the harm and denial of equal legal treatment imposed on the targeted group, go ahead. You haven't even tried to do so. Because you can't. Neither could any of the lawyers tasked with defending these laws. You. Have. No. Argument.

  • 448. davep  |  May 12, 2014 at 11:42 pm

    obvious troll is obvious

  • 449. DrPatrick1  |  May 13, 2014 at 12:31 am

    You have a point. Alas, you missed mine. I did not say that a past case means to settle a future case. I agree it is only able to settle the case at hand. HOWEVER, the legal analysis used to decide a case sets a precedent whereby all subsequent cases must be considered in light of the majority opinion of all previous cases. The only way for a case to no longer set that precedent, if if the court explicitly says so, as in Bowers.

    My point was that the legal analysis which established a right of privacy, was further used to extend the right of privacy to non commercial consensual adult sexual activity. One case was built on the foundation of constitutional law as understood post Griswold. Likewise, present and future cases must make their claims in a post Lawrence, post Romer, and post Windsor world. Perhaps I am not as eloquent as Mr Scalia, but it seems to me this is exactly what his dissents have stated. While he explicitly admits the ruling in Windsor does not dictate marriage equality throughout the states, he suggests the legal analysis by the majority seems to necessitate the expansion of our tree of liberty to include the LGBT.

  • 450. DrPatrick1  |  May 13, 2014 at 12:39 am

    Indeed it would be final. I cannot express strongly enough how unlikely this scenario is. What is worse, though it would help those in AR, it would do nothing for the rest of this country. I want a clean case, well represented on both sides, making the best arguments each side has left. Such a case would settle the legal issues for the whole country, and I think undoubtedly in our favor!

  • 451. TKinSCGayMarriageBad  |  May 13, 2014 at 1:46 am

    Nobody is questioning your right to marry. If you're a guy, find a girl and get married! I wish you both the best! If you're a girl, find a guy!

    Just be sure you're prepared for the commitment that marriage involves. I'd hate to see you unhappily divorced because you thought marriage was some sort of key to carefree happiness.

  • 452. TKinSCGayMarriageBad  |  May 13, 2014 at 2:16 am

    "Whoever gave than analysis" backed it up with extended quotes from the decision. Unless you're Kennedy's personal psychologist, you offer nothing in support of yours. (And need I remind you, Kennedy is not a majority.)

  • 453. TKinSCGayMarriageBad  |  May 13, 2014 at 4:37 am

    I believe you fail to appreciate the differene between federal law and state law. A state's plenary authority over marriage is meaningless if it can be subverted simply by hopping on a plane and getting married on the destination airport's tarmac. States have never been forced to recognize out-of-state marriages. While the law of most states generally allows reconition even if the marriage woud have been illegal if done in state, states are not limited to an all-or-nothing choice in this regard. Ohio's constitution makes clear that same-sex "marriages" are not marriages under Ohio law, and this applies to recognition of out-of-tate "marriages: as well, regardless of how Ohio treats real out-of-state marriages, whether or not they would have been legal if done in state. (Continued)

  • 454. TKinSCGayMarriageBad  |  May 13, 2014 at 4:45 am


    (Typo: third line from bottom, the colon after "marriages" should be a closing quote)

    And contrary to Judge Black's wholly illegitimate ruling, if Ohio can prohibit a marriage in-state for a given reason without violating the Equal Protection clause, then it can prohibit recognition of a law-evading out-of-state marriage for the same reason without violating the clause, even if it allows other law-evading marriages to stand. There is no inherent equality of all law-evading marriages, and Ohio may differentiate between them for the same reasons it may — whether it does or not — differentiate between such marriages done in-state.

    (To clarify, Ohio does not distinguish between cousin marriages and same-sex "marriages" performed in-state; both are illegal. However, if it wished, Ohio could make cousin marriage legal without making same-sex "marriage" legal, and hence Ohio may (and does) recognize law-evading cousin-marriages but not law-evading same-sex "marriages". Of course, the Full Faith and Credit Clause might require Ohio to recognize an out-of-state marriage that *it would have allowed* in-state, but we're obviously not talking about such a case.)

  • 455. TKinSCGayMarriageBad  |  May 13, 2014 at 5:05 am

    "He also goes out of his way to reaffirm that State marriage laws must meet U.S. Constitutional standards."

    He makes a passing mention of the truism that state authority over marriage (like any state power) isn't *completely* immune from constitutional attack. He hardly "goes out of his way" to make the point; I don't think he devotes more than one line of the opinion to it.

    "As for the notion that States do not recognize each others' (mixed sex) marriages: hogwash. Couples married in one State don't become unmarried in another, by reason of age or degree of relation."

    But that is due to comity, not to any constitutional mandate. For the first time in history, states' public policies in terms of who should be allowed to be considered married differ vastly enough so that comity can no longer be extended in every case, and the freedom of states to differ has now become relevant. (Continued)

  • 456. TKinSCGayMarriageBad  |  May 13, 2014 at 5:07 am


    "unlike the legislation aimed at us"

    There is your fatal mistake. The legislation isn't "aimed" at you, or any class in particular. It is a generally applicable law that merely makes explicit the millenia-old understanding that marriage can only exist between a man and a woman. The law may very well harm gays more than straights, but that is merely a disparate impact, which does not per se constitute a 14th Amendment violation.

  • 457. TKinSCGayMarriageBad  |  May 13, 2014 at 5:11 am

    Gays and Lesbians DO HAVE the same right to marry in EVERY SINGLE STATE!

    I guarantee you, if Elton and Ellen walked up to a county clerk in Georgia and asked for a marriage license, the clerk would be more than happy to issue it to them.

  • 458. DaveM  |  May 13, 2014 at 12:40 pm

    The appeal has been docketed now and given a case #.
    14-3464 Brittani Henry, et al. v. Lance Himes, et al.

  • 459. ragefirewolf  |  May 16, 2014 at 10:35 am

    What is wrong with you? Do you just play stupid for kicks? You occasionally post things of substance and then you act a fool.

  • 460. ragefirewolf  |  May 16, 2014 at 10:40 am

    Incorrect. Kennedy quite frequently makes the majority decisions on important cases, as he did in Windsor. He has also consistently made the majority in favor of gay rights. Kindly go away, child.

  • 461. Ragavendran  |  May 16, 2014 at 10:52 am

    "However, if it wished, Ohio could make cousin marriage legal without making same-sex "marriage" legal, and hence…"

    Therein lies the logical flaw. It could, if it wants (assuming that such a law passes constitutional muster). But it doesn't. So, it can't do it for "marriage recognition" without, at the very least, a rational basis. Perhaps you disagree with me (and all other judges who have ruled on this point) that there is a rational basis. Well, then, let's wait and see how SCOTUS settles the disagreement.

  • 462. ragefirewolf  |  May 16, 2014 at 10:54 am

    You are completely ignoring the Privileges and Immunities Clause, therefore your argument is invalid.

    Article IV, Section 2, Clause 1

    "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

    This isn't even an Amendment. It's part of the original Constitution. In fact it inspired a similar clause in the 14th Amendment:

    Amendment XIV, Section 1, Clause 2

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

  • 463. ragefirewolf  |  May 16, 2014 at 11:05 am

    Are you quoting one of the failed state briefs as well? :)

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  • 465. Schteve  |  May 18, 2014 at 2:49 am

    The act of amending a state constitution cannot be unconstituional according to that same constitution by definition. It can only violate the federal constitution.

  • 466. Schteve  |  May 18, 2014 at 8:47 pm

    "A law is unconstitutional if it violates any section of the constitution."

    Amendments necessarily modify and take precedence over earlier parts of the constitution. According to your suggestion, selling alcohol is unconstitutional thanks to the Eighteenth Amendment.

  • 467. Big Rick  |  May 18, 2014 at 10:28 pm

    Hardly. The Eighteenth Amendment that you are referring to is not part of the Arkansas Constitution, it is part of the Constitution of the United States. Article 2 Section 2 of the AK Constitution bears no relation to it whatsoever. Read more carefully next time before you reply, and make sure you know what you're talking about.

  • 468. TKinSC  |  May 19, 2014 at 5:46 am

    Kennedy only makes a majority when 4 others agree with him. And any of the other 4 could equally be said to "make" the majority. Kennedy's vote counts no more than any of the others'.

  • 469. TKinSC  |  May 19, 2014 at 5:56 am

    The rational basis for non-recognition is exactly the same as the rational basis for non-performance: same-sex "marriages" are not marriages, and Ohio's constitution prohibits lying about that. Mind you, Ohio could (if its own constitution permitted it) recognize out-of-state same-sex "marriages" without allowing them in-state, as New York and Maryland had done, but Ohio is not required to do so. Same-sex "marriages" violate Ohio's public policy more than cousin marriages to, and Ohio may constitutionally extend comity to one but not the other.

    The Supreme Court will most likely not settle this disagreement. It will rule either that both legalization and recognition of SS"M" are required, or (more likely, IMO) that neither is. The idea the one is but not the other is constitutionally untenable.

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