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Arkansas judge clarifies order in same-sex marriage case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Arkansas state sealAs EqualityOnTrial noted before, the Arkansas Supreme Court declined to issue a stay in the same-sex marriage case, and dismissed the appeal. The state supreme court agreed with the plaintiffs that the judge’s order in the case was not final, and that it needed to be clarified: he had inadvertently left out a statute that prevents clerks from issuing marriage licenses to same-sex couples.

Their ruling caused some confusion in the state, since it became unclear whether marriages could move forward and whether those marriages that had already been performed were legally valid. The plaintiffs in the case filed a motion asking the judge for a final order stating that he meant to declare all Arkansas laws challenged by the plaintiff unconstitutional and prevent the laws from being enforced by the state. They also asked him to issue his order retroactive to the date that his decision came down, so that there would be no question of the legality of existing marriages.

The judge has issued new filings in the case that have resolved these issues. He filed a final, appealable order (which can be read here) that specifically prohibits state officials from enforcing the ban; he also noted the order is retroactive.

The state, in its reply to the request for clarification, had asked him for a stay of any final order, which he denied.

The state has filed its notice of appeal to the Arkansas Supreme Court. Now that the judge’s order is final, it seems likely that court will act.

Several counties that had stopped issuing licenses when the state supreme court issued its ruling have now resumed issuing those licenses to same-sex couples.

EqualityOnTrial will have the filings as soon as we can get them…

Thanks to Kathleen Perrin for these filings

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

104 Comments

  • 1. DrPatrick1  |  May 15, 2014 at 2:59 pm

    Yay! I think AR will be our most likely chance to forgo a stay. I'll be keeping my fingers crossed!

  • 2. Zack12  |  May 15, 2014 at 3:10 pm

    Good question I saw on another thread and am posting it here.

    When these cases get to SCOTUS, could they throw out only the amendments that also ban the legal incidences of marriage (i.e. Virginia), because they prevent homosexuals from petitioning the state to enact ANY legal status, again sidestepping the question of whether same-sex marriage itself is a constitutional right? It would be similar to the reasoning in the Romer v Evans decision.
    This would throw out most of the constitutional amendments, but leave the statutory bans in place, thus returning the fight to state legislatures and state courts. Only a handful of states have amendments that ban same-sex marriage and not civil unions. SCOTUS could then simply ignore those.

    What is everyone's take on that?

  • 3. TKinSC  |  May 15, 2014 at 3:10 pm

    What got clearified?

  • 4. D.Henderson-Rinehart  |  May 15, 2014 at 3:14 pm

    I proposed that as one of the possible outcomes in Perry last year: Romer didn't require cities to enact non-discrimination policies; striking the state's ban down just meant that they had the option of doing so. Nobody seemed to think that would be a likely scenario.

    Now, since no plaintiff nor defendant in any of the cases is proposing that as an option for the courts, I doubt it would be the route taken at SCOTUS. It's still possible, just not very likely.

  • 5. Tim  |  May 15, 2014 at 3:16 pm

    My sense is they're aware that gays, the country, politicians on both sides, and business that employ and serve gay people are ready and want a definitive ruling on the whole package. They also see the polls. I think they're aware people would be perturbed if it got prolonged only to wind up back there again.

  • 6. DrPatrick1  |  May 15, 2014 at 3:32 pm

    They like to surprise us, and often do. They can do just about anything their interpretation of the constitution would allow. Having said this, I think this idea has been tried and failed in many different permutations (marriage, segregation etc). I think the goal is to get a case as pure as possible to SCOTUS, and force them to address the core dispute. It serves no one for this to get prolonged any more than is necessary. By a pure case, I mean one that is well defended, has no standing issues, and lays bare the essential questions.

  • 7. Zack12  |  May 15, 2014 at 3:36 pm

    I think that too. If nothing else, even states that don't have constitutional bans are facing federal lawsuits.
    Would make no sense to kick the can down the road yet again.

  • 8. montezuma58  |  May 15, 2014 at 3:36 pm

    We've got clearance Clarence.

  • 9. Lymis  |  May 15, 2014 at 4:00 pm

    I think it still comes down to marriage being a fundamental right of all citizens. The only way to allow a state to deny that to us under the federal constitution is to affirmatively declare that either we aren't citizens or that our relationships aren't valid.

    There was a point at which federal civil unions might have flown, with parallel state civil unions in all states. Those days are gone, and too many courts and states have declared that civil unions demean our relationships.

    SCOTUS could split the baby, but only if they accept a case where they can reasonably claim that the fundamental right issue was not before them.

    Otherwise, the only way they can ignore the fundamental right question is to ignore that issue while still affirmatively declaring that we must be granted marriage equality for some other compelling reason, so they don't have to declare it a fundamental right.

    I think the way the baby is going to be split this time is the exact reverse- declaring marriage to be a fundamental right and declaring it applies to us, so that they can ignore the question of whether ALL LGBT rights require heightened scrutiny throughout the country. They may grant marriage as a way of punting that particular ball downfield.

  • 10. Lymis  |  May 15, 2014 at 4:02 pm

    The ruling said the ban on marriage was unconstitutional, but didn't specifically declare the law that forbid anyone in the state from issuing a marriage license to a same-sex couple to be unconstitutional as well, leaving the state in a position where it was illegal to issue a license for a marriage that must be allowed.

    He fixed that.

  • 11. Al Milo  |  May 15, 2014 at 4:03 pm

    This is good news! However, why do gays have to plan our marriages around judicial stay rulings. Now you can't get married/now you can/now you can't/now you can. Very frustrating. Straight couples don't have to plan their marriages during these often brief windows of time! We practically have to drop whatever we are doing and rush to the local county office or miss our opportunity to get married.

  • 12. Margo Schulter  |  May 15, 2014 at 4:03 pm

    Oregon Attorney General Ellen Rosenblum’s briefing, and the oral arguments of her colleagues, maybe address the problems likely to arise even in a “best possible world” where States were required to recognize out-of-State marriage and provide domestic partnerships. It’s complicated, leaves people’s rights often uncertain, and still involves dignitary injury.

    Justice Ginsburg’s reference to full marriage and “skim milk” marriage in the SCOTUS arguments last year referred to the denial of benefits under Section 3 of DOMA, struck down in Windsor, but could equally to apply to domestic partnerships permitted where marriage is still barred.

  • 13. Margo Schulter  |  May 15, 2014 at 4:10 pm

    A clean and decisive way to resolve the issue without getting into sexual orientation as a suspect or quasi-suspect category is gender discimination: clear, and already governed by intermediate scrutiny. Saying that a woman could marry the spouse of her choice but for the fact that person is also a woman, or likewise for a man seeking to marry a man, is analogous to miscegenation statutes, as in Loving.

    Further, under decisions such as United States v. Virginia (1996), intermediate scrutiny requires an “exceedingly persuasive” justification. And “Moms and dads are not interchangeable” is a statement about gender roles. So it’s possible, if one wishes, to use existing precedent to strike the laws as a simple case of gender discrimination, leaving the other questions open.

  • 14. KarlS  |  May 15, 2014 at 4:13 pm

    Gimme ham on 5, hold the Mayo

  • 15. Michael Grabow  |  May 15, 2014 at 4:13 pm

    To protect the children.

  • 16. montezuma58  |  May 15, 2014 at 4:22 pm

    Do you like movies about gladiators?

  • 17. davep  |  May 15, 2014 at 4:24 pm

    …. and because, apparently, truly equal treatment without these unnecessary legal shenanigans and hassles would make the baby Jesus cry.

  • 18. Bruno71  |  May 15, 2014 at 4:24 pm

    "Passengers sure to die! Passengers sure to die!" There's a sale at Penney's!

  • 19. Big Rick  |  May 15, 2014 at 4:32 pm

    To protect the history and tradition of denying us our fundamental right to marriage, of course.

  • 20. montezuma58  |  May 15, 2014 at 4:38 pm

    Surely you're not serious.

  • 21. davep  |  May 15, 2014 at 4:44 pm

    I am. And don't call me Shirley.

  • 22. Corey from Maryland  |  May 15, 2014 at 4:49 pm

    Butter just got clearified

  • 23. AndyinCA  |  May 15, 2014 at 6:30 pm

    @Al Milo: If it's any comfort, I bet Mildred & Richard, and all the other interracial couples of that era went through this same shit too… having to plan when/where they could get married, fearing whether their marriage would get annulled, and even worse, getting arrested, etc.

  • 24. TKinSC  |  May 15, 2014 at 6:36 pm

    No – you're one of the 2 approved Daves.

  • 25. Dr. Z  |  May 15, 2014 at 7:28 pm

    Chump don't want no help, chump don't get no help.

  • 26. Steven  |  May 15, 2014 at 7:34 pm

    I have been reading some counties in Ark are still refusing to issue marriage licenses to same-sex couples. Can they do that despite Judge's orders? http://news.yahoo.com/arkansas-judge-strengthens-

  • 27. Bruno71  |  May 15, 2014 at 7:37 pm

    Any county clerks that were defendants in the case should have to start issuing licenses immediately. The others can probably claim they don't fall under the court's jurisdiction, until advised otherwise by the AG or the Arkansas Supreme Court.

  • 28. Big Rick  |  May 15, 2014 at 8:52 pm

    Under what conceivable theory could a portion of a state's constitution and several statutes with statewide applicability be considered constitutional in some counties, but not in others?

    The state statutes and the state constitutional amendment that Judge Piazza struck down as unconstitutional cannot apply to only the counties named as defendants. If those laws stand, they stand for all counties in Arkansas. If they fall, they fall for all.

  • 29. bayareajohn  |  May 15, 2014 at 9:08 pm

    Sorta like minority voters in the south.

  • 30. davep  |  May 15, 2014 at 9:12 pm

    Yes, of course. What we are seeing is the last petulant foot stamping of some clerks who just really really don't wanna do it, waaa. They will make one or two more transparent attempts to stall, like saying "I need my direct supervisor to tell me in writing" etc. It's happened before. They will shut up and start issuing the licenses the moment the court gives them a wake up call.

  • 31. Zack12  |  May 15, 2014 at 9:12 pm

    And that is exactly what they are going to do until the ASC weighs in.

  • 32. Zack12  |  May 15, 2014 at 9:15 pm

    Saw it here in NY. The courts and AG more or less told them they would arrested if they didn't do their jobs or at least have their deputy clerks do it.
    Some resigned, others simply had others do it for them but either way, they gave in.

  • 33. grod  |  May 15, 2014 at 9:28 pm

    Zack: state asks ASC for stay while the number of marriage nears 500. http://posting.arktimes.com/media/pdf/wright_et_a

  • 34. Ragavendran  |  May 15, 2014 at 9:40 pm

    Utah AG could be charged with contempt of court: http://www.deseretnews.com/article/865603289/Judg

    "Judge Andrew Stone summoned Reyes and two state health department officials to a hearing June 16 to 'show why they should not be held in contempt for their willful disregard and refusal to obey the Decree of Step-Parent Adoption.'"

    (News posted here from the Prop 8 Trial Trackers Facebook Page. Thanks, Kathleen.)

  • 35. StraightDave  |  May 15, 2014 at 10:05 pm

    Bastards! They don't give a damn about children or families and have just proven it. Their actions accomplish nothing of value. You just don't screw around with families like this. May they all rot in hell.

  • 36. Big Rick  |  May 15, 2014 at 10:08 pm

    This was an interesting section of the state's emergency request for a stay…

    4. Absent a stay, there is likely to be a repetition in Arkansas of the confusion and uncertainty as seen prior to the entry of the stay by the United States Supreme Court in Herbert v. Kitchen, supra, and as already seen in Arkansas in the days since the Court’s May 9 order that did not include a stay. Only this Court or the United States Supreme Court can decide the constitutionality of Arkansas’s marriage laws in a way that commands the respect, allegiance, and compliance of the entire State – and until this Court or the United States Supreme Court provides that decision, any lower court ruling is subject to reversal.

    They seem to be saying that a ruling on the constitutionality of a law by a court lower than the Arkansas Supreme Court does not command any respect.

  • 37. Tim  |  May 15, 2014 at 10:14 pm

    PA: Palladino update (Inside the courtroom)
    http://www.slate.com/blogs/outward/2014/05/15/pen

  • 38. sfbob  |  May 15, 2014 at 10:34 pm

    That was pretty amazing. The state's own attorney can't even muster the gumption to do anything more than assert that the state's legislative decisions MUST be deferred to.

    "What interests of Pennsylvania are served by excluding same-sex couples from marriage? And there, again, the state wouldn’t go.

    "So it’s come to this: The state’s reasons for opposing same-sex marriage are now unspeakable."

  • 39. Ragavendran  |  May 15, 2014 at 10:38 pm

    This made me laugh – to think that the State even had the balls to make such an argument:
    "And the economic impact argument (which, oddly, Judge McLaughlin said she found the strongest of the batch) is, frankly, just silly. Excluding any group from the benefits of marriage, including those married on a Tuesday, will save the state money. The issue is whether the exclusion is independently justified."

  • 40. Dann  |  May 15, 2014 at 10:53 pm

    Your absolutely right StraightDave. I read this blog every couple hours and just when I think it's all going to be ok something like this pops up. What a bunch of mean, heartless bastards!

  • 41. StraightDave  |  May 15, 2014 at 10:57 pm

    Since the time most of these cases began, usually last year, a ton of stuff has changed, either in the case law or the public demolition of stupid excuses. Now that all those thin branches are being sawed off, the only thing left is trying to not look even stupider. Verbalizing their real reasons is a sure loser.

  • 42. SeattleRobin  |  May 15, 2014 at 11:15 pm

    Yeah, I don't think they can duck the fundamental right aspect at this point. And if they can't, nothing but marriage will be acceptable.

    I'm still ticked that SCOTUS didn't directly address sexual orientation as a class and level of scrutiny in Windsor. I'd been thinking maybe they'd finally have to this next time. But if it's decided on a fundamental right basis, then they still don't need to address it, because that automatically requires strict scrutiny.

    The Court rarely likes to address any issue they don't have to, so if they ditch it again that leaves us hanging on the more common and everyday issues that come up in courts. It leaves wide open the claim that since SCOTUS has never ruled when presented opportunities, rational basis is always correct. So infuriating when the four prong test makes it obvious there should always be heightened scrutiny!

  • 43. SeattleRobin  |  May 15, 2014 at 11:34 pm

    That argument and wording appears to be taken directly from the requests for a stay in the Idaho case.

  • 44. Tim  |  May 15, 2014 at 11:38 pm

    What is the latest on the AZ cases? The Senate confirmed 6 Obama AZ District court nominees in the last 2 days. I think the cases were assigned to an AK judge covering in AZ. Curious if there are any updates at all.
    http://en.wikipedia.org/wiki/List_of_federal_judg

  • 45. Margo Schulter  |  May 15, 2014 at 11:59 pm

    SeattleRobin, one view of Justice Kennedy is that he’s rather not be bound to a few tiers or levels of scrutiny, but make a case-by-case determination by weighing the equities, very much as you have summed them up.

    And, of course, given both the fundamental nature of the right to marriage, and the nature of sexual orientation as at least a quasi-suspect class, that gets us home regardless of what the “level of scrutiny” is called (or not). One term, evidently used by Lawrence Tribe, that came up in the Oregon oral argument on April 23 is “double helix,” sort of uniting due process (fundamental right) and equal protection. Judge McShane wanted to understand how the two relate, and the double helix was one suggested answer.

  • 46. SeattleRobin  |  May 16, 2014 at 12:10 am

    This reminds me of Judge Walker's frustration in the Prop 8 trial. He seemed genuinely dismayed that the intervenors weren't putting on a better case. But that's what happens when you really don't have much to stand on to start with, and what you do have is easily swept out from under you.

  • 47. RCChicago  |  May 16, 2014 at 5:04 am

    Thanks so much for posting this. I knew the hearing took place yesterday but hadn't found any updates about it.

  • 48. StraightDave  |  May 16, 2014 at 6:00 am

    Why June 16 … a month? He should do it right now. Maybe the judge it just trying to provide some leverage for improved behavior by the AG, but it shouldn't take a month. If the AG doesn't comply in a week, he certainly isn't going to comply any better in a month.

  • 49. Ragavendran  |  May 16, 2014 at 6:22 am

    No significant updates, except for a couple. The case first filed, Connolly v. Brewer, was assigned to Judge Sedwick, Senior U. S. Judge for the District of Alaska, a Bush Sr. appointee. The second case, Majors v. Horne, was assigned to Judge Wake, U. S. Judge for the District of Arizona, a Bush Jr. Appointee. On April 15, Judge Sedwick refused to consolidate the two cases, but agreed that the cases should be before the same judge, and thus, Majors got transferred over to him as well. Majors is still at an early stage, with some recent drama by the now infamous Chris Sevier who wants to intervene to marry his computer. Plaintiffs have filed their summary judgment motion in Connolly, and the remaining deadlines are as follows: Defendants' response to Plaintiffs' motion and Defendants' cross-motion for summary judgment are due by June 10, Plaintiffs' response to Defendants' motion and Plaintiffs' reply in support of their motion are due by June 30, and Defendants' reply in support of their motion is due by July 21.

    Apart from his usual motion to intervene, in this case, Chris Sevier is also pleading to be granted ECF privileges as a "member of a third tier sexual orientation class."

  • 50. Ragavendran  |  May 16, 2014 at 6:24 am

    I agree. Perhaps this is the normal pace for such procedures in courts…

  • 51. Dr. Z  |  May 16, 2014 at 6:55 am

    I believe the reason SCOTUS keeps dodging the scrutiny question is because Kennedy doesn't like the whole scrutiny framework they set up a few decades ago. It's not because he's got lingering doubts about us. Unfortunately for Kennedy (and for us) he's never been able to devise a workable alternative that could attract the votes of four of his colleagues; it's also become entrenched in the law. So Kennedy continues to resist it in his legal opinions, all the while the answer is pretty obvious to everyone else.

  • 52. Ragavendran  |  May 16, 2014 at 7:33 am

    As the Idaho judgment eloquently pointed out, "the Supreme Court [, in Windsor,] affirmed the Second Circuit without questioning (or even discussing) the lower court’s express holding" that sexual orientation as a class merits heightened/intermediate scrutiny. So Kennedy did affirm heightened scrutiny in Windsor by not expressly discussing or objecting to, but affirming, the Second Circuit's opinion.

  • 53. Ragavendran  |  May 16, 2014 at 7:42 am

    The amendment has been authoritatively interpreted as equivalent to concerning sexual orientation based discrimination by the Colorado Supreme Court, and the US Supreme Court expressly acknowledged that Court's authority in doing so. From Romer:

    "The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado’s Supreme Court—which establishes that the amendment’s immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment—and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2."

  • 54. Eric  |  May 16, 2014 at 7:46 am

    All laws burdensome to gays alone should be subject to heightened scrutiny.

  • 55. Ragavendran  |  May 16, 2014 at 7:54 am

    BREAKING: Texas Fourth Court of Appeals just ordered Judge Barbara Nellermoe to vacate her April 22 order that declared the Texas marriage ban unconstitutional. There seems to have been a procedural hiccup, similar to the one in Arkansas. The order notes that Judge Nellermoe should have provided "notice to the attorney general as required by the Texas Government Code prior to conducting a hearing or ruling upon the constitutionality of Texas state laws."

  • 56. sfbob  |  May 16, 2014 at 7:59 am

    She forgot to say "May I?"

  • 57. Michael Grabow  |  May 16, 2014 at 8:02 am

    I would assume so, but just to confirm, this has no bearing on Judge Garcia's ruling, correct?

  • 58. sfbob  |  May 16, 2014 at 8:04 am

    Judge Garcia is federal judge, right? So there should be no effect.

  • 59. Bruno71  |  May 16, 2014 at 8:06 am

    Still, I wouldn't put it past them to keep kicking it down the road if they can come up with "principled manners" by which to do so. However, it would be tough to see how they could remove constitutional amendments without also removing the statutes that prevent same-sex marriages. If they specify the ruling to Virginia's amendment and don't require other marriage specific statutes to fall as well, that would be a rather murky river to navigate, legally speaking. But no,I wouldn't put it past them either.

  • 60. SeattleRobin  |  May 16, 2014 at 8:08 am

    Actually, he says "even though I am a member of a third tier sexual orientation class." It's not as one or because of it. He doesn't bother to define what a third tier sexual orientation class is, I've never heard the term before.

    He basically makes no sense in the entire request, and displays a lot of paranoia. He talks about being a wounded vet. I wonder if he suffered some kind of head/brain injury. I feel badly if so, but he shouldn't be gumming up the work of the courts, it's wasting tax payer dollars.

  • 61. Thomas  |  May 16, 2014 at 8:09 am

    The state seems blissfully unaware that this is a state case in state courts in part based on the AR constitution. Federal precedents would seem to me to have little force.

  • 62. Steve  |  May 16, 2014 at 8:11 am

    Fanatical religious extremists like the Mor(m)ons truly think they are above the law.

  • 63. BillinNO  |  May 16, 2014 at 8:21 am

    I wonder if anyone now living will still be walking the Earth when the Ninth rules on Nev. This thing is like Jarndyce v Jarndyce…

  • 64. Zack12  |  May 16, 2014 at 8:26 am

    There is another case that is delaying them be able to hear it, which was the intention of the bigoted judges that wanted the en banc hearing on the heightned scrunity

  • 65. SeattleRobin  |  May 16, 2014 at 8:34 am

    As far as adoption goes, I don't know if any states still prohibit it. The law in Florida was in effect until recently, but I don't know if that was the last one. As far as other laws, the answer is I don't know. I'm no expert on the laws in all 50 states.

    But there have been plenty of other laws in the past, including regarding employment and prohibiting bars from serving us. Without adequate protection, there's no saying new attempts won't be made in the future to pass new laws. Without ENDA it's still perfectly legal to discriminate against gay people in regards to things like employment and housing in 29 states.

    Which brings up the point that how a case is scrutinized doesn't only apply to laws which directly target gay people. The recent SmithKline case is a good example of how discrimination can reach into all areas of life.

  • 66. Ragavendran  |  May 16, 2014 at 8:45 am

    We should hear within the next 10 days on whether SmithKline has been voted to be reheard en banc. I expect that the moment that comes out, oral argument in Sevcik will be scheduled. I fear that one of the judges who made the sua sponte en banc call in SmithKline might have been chosen to be part of the merits panel in Sevcik and hence the delay.

  • 67. BillinNO  |  May 16, 2014 at 8:51 am

    "Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means…. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; … old Tom Jarndyce in despair blew his brains out … but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless"

  • 68. SeattleRobin  |  May 16, 2014 at 8:51 am

    The State's interest in stability is exactly the same, regardless of the gender composition of the married couple. The State's interest in family stability is primarily related to preventing people from becoming a burden to the state. People in a stable relationship are less likely to become indigent or require foster care for children. And people who are married tend to have longer lasting, more stable relationships. This is true no matter if the couple is same-sex or opposite-sex.

  • 69. Zack12  |  May 16, 2014 at 8:51 am

    http://www.lgbtqnation.com/2014/05/ark-supreme-co
    I can't tell if this is a good or bad thing. Could we possibly see a stay by this afternoon?

  • 70. Steve  |  May 16, 2014 at 8:55 am

    Weirdly, single persons can adopt in all states. But not all states allow couples to adopt. Some even ban second-parent adoptions.

    Which just makes no sense whatsoever. They indirectly allow couples to adopt it's always possible for just one of them to adopt the child. But that actually creates problems for the children.

  • 71. Corey from Seattle  |  May 16, 2014 at 9:02 am

    Sorry, TKNSC. Marriage as a unique social institution exists for a man and a woman for no reasons other than tradition due to procreation. Stipulating for the moment that gays do not procreate (we all know that gays can and do, but for the sake of argument let's say otherwise), the inescapable conclusion is that since other non-procreating couples (the voluntarily childless, the elderly, the infertile) are not similarly excluded, the justification of excluding gays on procreating grounds cannot stand. Once you take away procreation all you have left is "we have always done it that way." Even that isn't true, as any cursory examination of history and the Bible will show. Hell, even Jesus' mom was cheating on her fiancé.

    Does the state have an interest in stable couples getting together, even if those couples have no kids? Sure. Marriage streamlines inheritance and frees up the courts; combined households are easier to cover with municipal services like police and fire, sewage and power lines; stable households use fewer welfare services and pay higher taxes. Is there a reason those benefits can only accrue to the states from male-female pairs? No.

  • 72. SeattleRobin  |  May 16, 2014 at 9:02 am

    Good grief. I'm finding this overlooking of basic procedures to be really disheartening. Not just in regards to these cases because they interest me, but because our justice system shouldn't be turning out such sloppy work. It ends up creating more work for all involved, forces citizens to pay more in legal and attorney fees, and costs the taxpayers more money.

  • 73. StraightDave  |  May 16, 2014 at 9:09 am

    So what's the remedy here, just throw the whole thing out and start over? Not filing paperwork hardly seems a big enough sin to cancel out justice and create innocent victims.

    Now, if she legally needed to get the AG's approval to make such a ruling, that's different. So vacate the ruling, go get the approval, then issue it again. Problem solved.

    Oh, AG Abbott won't approve it because he's running for Governor and that would piss off his base? OK, let's see how obstructing justice plays with the rest of the electorate. It's TX, so who knows.

    (Edit: Wait, what am I saying? A court needs approval from the executive branch?!?!?? No way. Maybe it's just send him a notice. And you can't just do it now? You have to vacate the ruling? Messed up state.)

  • 74. Zack12  |  May 16, 2014 at 9:09 am

    I have no doubt that he is. Sad to say but Bush Jr was able to make his mark on the 8th and even a couple of the Clinton nominees aren't a sure thing.
    The 9th isn't the liberal haven it used to be.

  • 75. Margo Schulter  |  May 16, 2014 at 9:12 am

    SeattleRobin, Chris Sevier’s three “tiers” — rather different than the rational-basis/intermediate/strict tiers of scrutiny away from which Justice Kennedy might prefer to move — are essentially (1) “Traditional marriage”; (2) Same-sex marriage, which in Sevier’s view should be viewed as equivalent to (3) Marrying a (nonhuman) animal or an object such as “my porn-filled Apple computer.”

    The idea is that it would be unfair to grant recognition to (2) but not to (3), for which he wants to be the champion — not really, but to say that same sex unions are no more valid than him marrying his computer.

    Putting aside the bizarre aspects such as the view that Apple and HP are engaging in “the largest distribution of porn in the world,” it’s the old homophobia: the view that LGBT people are simply addicted to sex, no different from people like Sevier who want to marry their computers or other objects.

    It’s a total negation of the idea of love, family, and mutual commitment, and an expression of the animus behind marriage bans generally, and the skimpy “rational justifications” that have frustrated Judge Walker and Judge McShane, for example.

  • 76. grod  |  May 16, 2014 at 9:20 am

    ASC moves up deadline by 3 days to this afternoon for comments on request for stay of marriage ruling which two of the most populated counties issues licenses. http://www.arktimes.com/ArkansasBlog/archives/201

  • 77. StraightDave  |  May 16, 2014 at 9:22 am

    Apart from the panel composition, the SmithKline result is crucial to Sevcik. If en banc is granted, SK would likely have to be completed before Sevcik is heard. —-> many more months.

    If heightened scrutiny gets tossed out (if that's even still an open question), that would reshuffle the Sevcik deck. They might still end up with the same answer, but via a different route.

    Anyway, I thought the en banc clock had run out more than a week ago. Am I wrong?

  • 78. Ragavendran  |  May 16, 2014 at 9:31 am

    Even without SmithKline, the Sevcik panel could reach the same conclusion as the SmithKline panel by a careful analysis of what Windsor did, or, as Judge Dale pointed out in her opinion this week, by simply interpreting Justice Kennedy's lack of discussion or explicit disagreement (but instead, a blanket affirmation of) with the Second Circuit's holding that sexual orientation deserves heightened/intermediate scrutiny as the Supreme Court's indirect affirming of heightened scrutiny.

    The clock ran out last week. The judges have two weeks to vote from then. It beats me why they need fourteen days to say "yes" or "no". So we'll know by next week what the Court has decided.

  • 79. montezuma58  |  May 16, 2014 at 9:31 am

    Seem like a formality. I'd think anything filed would be the same as what was filed a couple of days ago.

    It could also mean a denial of a stay is coming this afternoon. It's hard to say. To me it seems if they were inclined to issue a stay they would have done it the other day and gymnastics over the statutes would have been a moot point for the moment.

  • 80. Ragavendran  |  May 16, 2014 at 9:38 am

    The case is remanded (there may be a better technical term to describe this) to Judge Nellermoe. The appeals court has been respectful enough to ask her to vacate her own order instead of jumping in and doing it itself. Once she does it, she would have to give official notice to the AG before rehearing the case. Of course the AG cannot dictate how she decides to rule after rehearing, but I guess according to Texas law, he had to be given the chance to defend Texas laws.

  • 81. Margo Schulter  |  May 16, 2014 at 9:39 am

    What I’m mainly aware of on SmithKline is that neither party wants the holding for intermediate scrutiny itself revisited or changed. SmithKline, the prevailing party, is happy with the decision as is. As for Abbott Laboratories: “Abbott does not request review of the panel’s holding that heightened equal protection scrutiny applies to classifications based on sexual orientation, or of its decision extending Batson v. Kentucky, 476 U.S. 79 (1986), to sexual orientation. Abbott condemns discrimination in all forms, including in jury selection….”

    Rather, Abbott urges that the court grant en banc review to examine the appropriate procedures for implementing Batson in the area of sexual orientation, and argues that in fact no discrimination occurred in this case. On the Ninth Circuit site, the last update is April 17.

  • 82. Zack12  |  May 16, 2014 at 9:39 am

    The goal of some them is to delay, delay, delay, simple as that. That's why the 14 day deadline is dragging on.

  • 83. Margo Schulter  |  May 16, 2014 at 9:58 am

    One bit of Arkansas news: an attempt failed to pass a resolution in the Legislature against marriage equality. The sponsor, Republican Senator Jason Rapert, also wanted to invalidate the hundreds of marriages that have occurred. story.

  • 84. StraightDave  |  May 16, 2014 at 10:02 am

    Was the AG the only one in Texas who didn't know this case was going on? Who was defending it – the official defendants?

    If it's really true that the judge just didn't follow what seems like a pretty significant requirement, that is indeed shocking.

  • 85. Corey from Seattle  |  May 16, 2014 at 10:05 am

    Laws do not have to mention gays explicitly to be burdensome. Being excluded from protection is also a burden.

    In many places, you can be fired for being gay, to name just one instance. Other classes are explicitly offered protection (race, creed, color, disability, ethnicity, nationality, gender) but not sexuality. I bet there are places that can refuse to rent you an apartment, or pay you lower wages, or a number of other offenses, because the laws specifically protect everybody but you. Think that's not a burden?

  • 86. Ragavendran  |  May 16, 2014 at 10:08 am

    A.L.F.L. is the Petitioner and K.L.L. is the Respondent. Petitioner and Respondent were married in D.C. in 2010. The divorce case is A.L.F.L. v. K.L.L. I believe the marriage ban wasn't directly challenged. There are no other parties to this case. A.L.F.L. only petitioned for a divorce and "orders regarding conservatorship, possession and access, child support, and a division of the marital estate." Judge Nellermoe decided that in order to settle the case, it was necessary to consider the constitutionality of the Texas marriage ban. The appeals court, stopping short of accusing Nellermoe of judicial overreach, now says that if she indeed thought that the question of the constitutionality of the marriage ban was crucial in the case, then the Texas AG should have been notified and summoned for a hearing so that he got a chance to respond by arguing why not and/or defend the ban. Seems fair to me.

  • 87. StraightDave  |  May 16, 2014 at 10:12 am

    That's just more sand onto the no-stay scale. It would be really poor form to squeeze the losing side out of weekend prep time, since the original deadline for a response was Mon. But if it's no stay, then it makes perfect sense to just say so now and save everybody a lot of unnecessary work. Now go stir your tea leaves.

  • 88. Bruno71  |  May 16, 2014 at 10:27 am

    OTOH, marriage licenses are being issued to same sex couples in Pulaski as we speak, so one could guess the timeline being moved up could have to do with that. I obviously like your reading better though.

  • 89. bayareajohn  |  May 16, 2014 at 11:05 am

    TK skips the burden evaluation and simply doesn't think,
    It's his world, his rules, and we are just in it.
    He'll never understand that his smug acceptance of inequality comes from his accident of birth to a privileged group of currently (but fading) favored traits.

    Same reason so many "republicans" (see, we call can do the air quotes denigration) are bitter and freaking out as the country slowly rotates to inclusiveness. To them, equality equals loss.

  • 90. bayareajohn  |  May 16, 2014 at 11:13 am

    TK, Where people "don't have a right to alter or redefine the institution to suit their own proclivities", the dictatorship eventually falls.

    Marriage and all other institutions (even religions) have ALWAYS been altered – sometimes radically – to suit the perceived needs or fairness of the times. You are trapped in a myopic world defined around you. Perhaps you could find a message board in your world where your dementia is the norm as well… and leave this one.

  • 91. Ragavendran  |  May 16, 2014 at 11:18 am

    I still disagree that the Supreme Court drew a distinction between discrimination towards homosexuals and discrimination based on sexual orientation. A search for the term "sexual orientation" in their Romer decision and reading the surrounding text and neighboring paragraphs strongly suggests that there wasn't a distinction. But you are entitled to your opinion on that.

    As for the Cincinnati issue, you omit parts of the article that says that the Supreme Court first remanded the case back to the Sixth Circuit asking it to reconsider based on Romer, meaning that the Supreme Court, at the very least, acknowledged that it raised Romer-like issues. And when the Sixth Circuit upheld the law again, it did so based on the fact that it was a city-specific charter as opposed to a statewide amendment.

  • 92. Kevin  |  May 16, 2014 at 11:22 am

    I would counsel against engaging this individual at all.

  • 93. StraightDave  |  May 16, 2014 at 11:29 am

    Yes!!! We're losing our troll discipline, folks. And before you know it, we'll be bitching about the result.

  • 94. ragefirewolf  |  May 16, 2014 at 12:13 pm

    Ragavendran, I think I love you. XoD

    Thank you for all your hard work!

  • 95. StraightDave  |  May 16, 2014 at 12:14 pm

    Under the circumstances, seems fair to me too. Thanks a lot for the background info. Makes the situation look quite different now. They weren't suing the state, but the state was ultimately "at risk". Judge screwed up. Not a good career-enhancing move.

  • 96. StraightDave  |  May 16, 2014 at 12:23 pm

    Another bigot smacked down.
    Ark. lawmaker’s resolution calling for reversal of gay marriage ruling fails. This is the same guy who wanted to impeach Judge Piazza, which even the GOP Speaker wouldn't support.
    http://www.lgbtqnation.com/2014/05/ark-lawmakers-

  • 97. Ragavendran  |  May 16, 2014 at 12:28 pm

    Thank you, and you're welcome! We all need more love in this world :)

  • 98. bayareajohn  |  May 16, 2014 at 12:56 pm

    "in every state where it's legal to discriminate against gay people, it's equally legal to discriminate againt straight people"

    That makes it fair, because that discrimination is going both ways all the time… right?

    So if it's legal to discriminate against blacks, you'd argue that if it's also legal to discriminate against whites, it would make that OK. Whether in fact blacks were getting the far worse end of it.

    Just like it is equally legal for rich and for poor people to spend billions on political lobbying and elections. This is the fairness of the GOP.

  • 99. Mike in Baltimore  |  May 16, 2014 at 1:45 pm

    I don't think we are far from when Sevier gets treated by judges in a manner of how judges started treating Oily Taintz – contempt of court (with monetary fines and jail time) for filing suits that were stupendously imbecilic.

  • 100. Pat  |  May 16, 2014 at 2:53 pm

    Haha nice!
    By the way, where do we stand with the other PA case (Whitewood)? Is the June 9 trial still on? I thought they were wondering about whether it was even useful to hold a trial at all. Has there been an update on that?

  • 101. Equality On TrialArkansas&hellip  |  May 16, 2014 at 3:39 pm

    […] the circuit court judge who struck down the ban issued a new order clarifying his ruling in response to the state supreme court’s dismissal of the appeal. Their […]

  • 102. Margo Schulter  |  May 16, 2014 at 3:52 pm

    With Chris Sevier’s “right to marry my computer” intervention, the judge made it clear that the intervention was improper, so sanctions for frivolous filings seem not unlikely if he persists.

  • 103. Chrys  |  May 16, 2014 at 5:37 pm

    Pretty sure at this point we are just waiting for a ruling.

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