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Idaho same-sex marriage case moves to Ninth Circuit Court of Appeals

LGBT Legal Cases Marriage equality Marriage Equality Trials

UPDATE 12:12PM ET: The plaintiffs have filed their opposition to a stay.

UPDATE 2 %:05PM ET: The Ninth Circuit has issued a temporary stay pending their consideration of the emergency motion for a stay. This means marriages that would have taken place tomorrow will now be on hold. The one-sentence order says: “Before: LEAVY, CALLAHAN, and HURWITZ, Circuit Judges. The district court’s May 13, 2014 order is temporarily stayed pending this court’s disposition of appellants’ emergency motions for a stay pending appeal”


Latta v. Otter, the challenge to Idaho’s same-sex marriage ban, is now in the Ninth Circuit Court of Appeals. A federal magistrate judge struck down the ban this week and denied the state’s request for a stay. The ruling didn’t go into effect immediately: that’s set to happen Friday, May 16, at 9AM MDT.

Now, the state has filed its notices of appeal, noting that the case will go to the Ninth Circuit.

The state is asking the Ninth Circuit for a stay to prevent the issuance of marriage licenses to same-sex couples on Friday. The motion is for an “emergency” stay to prevent “unseemly chaos” and “further litigation” over the legality of possible marriages.

Monte Neil Stewart, who is currently involved in defending Utah’s same-sex marriage ban, filed the emergency stay request in this case. His brief points to that case as one reason a stay should be granted: “Utah, its administrative agencies, its same-sex couples, and its citizens generally have been plunged into uncertainty, chaos, and confusion over the marital status of the same-sex-couples who got marriage licenses in that State before the United States Supreme Court stepped in.”

The filing argues that the state is likely to succeed on the merits of its appeal, suggesting that Idaho’s ban “recognizes and valorizes” the roles of both a mother and a father in a child’s life and “[w]ith its Parent A and Parent B,” same-sex marriage creates “the risk of increased fatherlessness, with all its well-known attendant ills, but also the risk of increased motherlessness.”

The Ninth Circuit currently reviews laws that discriminate on the basis of sexual orientation under a more rigorous form of judicial scrutiny, but the filing suggests that no matter what type of scrutiny is used, the state is likely to succeed.

The same-sex couples who are plaintiffs will likely file a response.

Thanks to Kathleen Perrin for these filings

For more information on Latta v. Otter from The Civil Rights Litigation Clearinghouse, click here.

184 Comments

  • 1. Rose  |  May 15, 2014 at 8:10 am

    Idaho is NO more likely to succeed on the merits of it's case ANYMORE than Utah, Oklahoma, Virginia or ANY other state will succeed on their same arguments, in fact……my guess is at the end of the day, they will lose based solely on the fact that procreation is irrelevant to one's right to marry!!!

  • 2. StraightDave  |  May 15, 2014 at 8:27 am

    More good news! Monte Stewart is now on the case. I feel much better now.
    His Appeal to the 9th that is linked above is the usual joke.

    "This case is a contest between two mutually exclusive and profoundly different social institutions, each vying to bear authoritatively the name of “marriage.”

    … suppress the man-woman marriage institution and put in its place a genderless marriage regime. And that regime will be what marriage is for everybody"

    So I guess hetero marriages will now become "genderless", too? That might surprise them. No wonder they're gonna revolt at SSM….not.

    Is Monte the only bigot lawyer in ID, or is he just the best they've got?

  • 3. Michael Grabow  |  May 15, 2014 at 8:40 am

    Sounds like the same argument that Judge Niemeyer made on Tuesday in Richmond.

  • 4. Steve  |  May 15, 2014 at 8:44 am

    Gay couples are already have children. Married or not. Idiots.

  • 5. StraightDave  |  May 15, 2014 at 8:45 am

    This guy is a laugh a minute…

    "Plaintiffs and the district court wrongly believe that tradition and history are insufficient reasons to deny fundamental rights to an individual. "

    Is he hoping the 9th misses the double negative? I'm pretty sure SCOTUS rightly believes that tradition and history are insufficient reasons to deny fundamental rights to an individual. [… innumerable cites possible here….]

  • 6. SeattleRobin  |  May 15, 2014 at 8:45 am

    Oi. It was so refreshing to listen to the arguments at the 4th Circuit the other day and not hear that idiotic phrase "genderless marriage" used. Now here it rears its ugly head again.

  • 7. DaveM  |  May 15, 2014 at 8:51 am

    It's like a bad Western.
    Otter's counsel has given the 9th "Until High Noon…" to grant his relief, "or else!" he'll petition Kennedy and the full SCOTUS.

  • 8. Zack12  |  May 15, 2014 at 8:55 am

    Keep in mind Idaho has a large Mormon population so it's not a shock to see Monte Stewart here.
    He is the go to Mormon lawyer in cases like this.

  • 9. Ragavendran  |  May 15, 2014 at 9:11 am

    Plaintiffs file opposition to emergency stay:
    http://www.scribd.com/doc/224347173/14-35420-5

    "Whatever merit rote reliance on Kitchen may have had in earlier cases, there is now a compelling basis for performing a substantive analysis of the required factors, including the required balancing of harms."

  • 10. Margo Schulter  |  May 15, 2014 at 9:19 am

    StraightDave, the double negative doesn’t seem to me a problem in that sentence, but rather the adverb wrongly. Strike that word, and it’s absolutely correct that not only the plaintiffs and Judge Dale, but also SCOTUS, have asserted or held that the long history of a law or practice is an insufficient ground to deny fundamental rights violated by the practice.

  • 11. Eric  |  May 15, 2014 at 9:24 am

    It's about time someone pointed out that these judges need to start following the law and make stay decisions based on the merits, rather than tradition.

  • 12. jpmassar  |  May 15, 2014 at 9:28 am

    Who decides whether to issue the stay on the Ninth Circuit in this case?

  • 13. Ragavendran  |  May 15, 2014 at 9:29 am

    "During the month of May Judges Leavy, Callahan, and Hurwitz are assigned to consider ready substantive motions matters. In the event of recusal or unavailability, we will draw another judge at random to consider the matter(s) in question."

    Reagan, Bush Jr., Obama (respectively)

    http://www.ca9.uscourts.gov/content/motionspanel….

  • 14. StraightDave  |  May 15, 2014 at 9:35 am

    That was an impressive response, drawing attention to the massive case law built up since the Kitchen stay, as well as the 9th's heightened scrutiny that caused NV to withdraw their hopeless appeal.
    Result: Absolutely no likelihood of success.

  • 15. Thomas  |  May 15, 2014 at 9:39 am

    I think that quote is the most amazing sentence I have read in all the bizarre anti-ME legal filings. It really leaves one speechless.

  • 16. davep  |  May 15, 2014 at 10:04 am

    Wow. When I see stuff like THAT in these briefs from the opponents it makes me think the opponents are getting pretty hysterical and panicky. According to this nut case, we should stop basing our legislative system on the Constitution, and instead, we should base it on something like Shirley Jackson's "The Lottery".

  • 17. Margo Schulter  |  May 15, 2014 at 10:13 am

    It is a bit humorous that the two most persuasive (alleged) precedents the people favoring a stay have to offer are Baker v. Nelson, a summary disposition which might be kindest to say has been eroded away by the “doctrinal developments” of the past 42 years; and the stay in Kitchen, which is supposed to cause Judge Dale to disregard clear Ninth Circuit precedent.

    In that alternative universe of jurisprudence, “Tradition is more than adequate reason to deny fundamental constitutional rights” is more a self-evident postulate than a Freudian slip.

  • 18. DrPatrick1  |  May 15, 2014 at 10:13 am

    What a way to summarize the entire dispute! One side believes history and tradition alone can deny fundamental rights to an individual. The other side believes a wrong that has been done a thousand times is still a wrong.

  • 19. Margo Schulter  |  May 15, 2014 at 10:18 am

    One of the ironies of the motion for a stay is how Schuette gets cited, followed by arguments for so-called gender diversity in parenting — in effect, a gender-based quota for all valid marriages!

  • 20. SeattleRobin  |  May 15, 2014 at 10:32 am

    I'm just now reading the State's request for a stay from the 9th Circuit, and wow, it's really a piece of work. Many of the anti-equality lawyers (wisely) attempt to sound as reasonable and rational as possible, considering they're stuck with presenting irrational arguments.

    But this guy is just scribbling his bias and prejudice all over the paper for the world to see. He keeps insisting that allowing gay people to marry will suppress straight marriages, and replace them with a regime that devalues the roles of mothers and fathers.

    Oddly, even though gay people have been marrying here for a year or so, my sister has voiced no complaints about her marriage to her husband being suppressed, or that her children are no longer clear on who she is to them. Maybe it takes longer before that stuff kicks in? It's a puzzle.

  • 21. Margo Schulter  |  May 15, 2014 at 10:32 am

    DePatrick1, that point really was brought home to me when I checked out a 1797 reprint of Edward Coke’s Third Part of his Institutes written around the 1620’s, which has a chapter on “Buggery or sodomy,” following others on such topics as “Heresie” and “Of felony by conjuration, witchcraft, sorcerie and inchantment.”

    Under a statute passed in the 25th year of Henry VIII, hanging was the penalty for sodomy between men. As might often be expected, Lesbians are invisible (although they were being tried and sometimes sent to the galleys in Andalusia during this same general era). However, women do figure under this statute as perpetrators of “buggery with a beast.”

    As Lord Coke notes, the statute is directed to “any person,” so that women are included. “And the rather, for that somewhat before the making of this act, a great lady had committed buggery with a baboon, and conceived by it, &c.” Maybe that was the zoological Regnerus study of its era.

  • 22. JayJonson  |  May 15, 2014 at 10:36 am

    And one side clearly has not read Lawrence v. Texas.

  • 23. Greg  |  May 15, 2014 at 10:39 am

    What is the emergency, exactly?

  • 24. DrPatrick1  |  May 15, 2014 at 10:42 am

    Exactly! You can disagree all you want, just as Scalia routinely does, but the law of the land is that moral disapprobation, history, tradition, alone can not be used to deny rights (let alone to deny a fundamental right, or to deny a right from a suspect class).

  • 25. Big Rick  |  May 15, 2014 at 10:42 am

    The state will have to start issuing marriage licenses to same sex couples by tomorrow if a stay isn't granted. The state contends that would create chaos.

  • 26. sfbob  |  May 15, 2014 at 10:50 am

    Can't they get any decent lawyers?

  • 27. davep  |  May 15, 2014 at 10:50 am

    I really like the way to trashes those idiotic 'arguments' about how lack of a stay would cause 'irreparable harm' to the state, and the even more baseless rationale from the state about how failing to grant a stay would cause confusion and harm for the PLAINTIFFS.

    No, the state has to show how lack of a stay would cause irreparable harm/confusion/etc. to THE STATE, not to the plaintiffs. It doesn't get to use a 'it's for your own good' argument, even if it did have any merit, which it doesn't – lack of access to the legal protections and surety of civil marriage is what is ALREADY causing confusion and harm to the plaintiffs as their rights are variously recognized and ignored depending on where they are and which government agency they are interacting with, and a stay would PROLONG that. Bottom of page 16 through page 18.

  • 28. Michael Grabow  |  May 15, 2014 at 10:52 am

    I can't recall exactly when, but it was used at one point. This obviously doesn't help much, but I'm pretty certain it was by the attorney with the shaved head…McQuigg's maybe?

  • 29. davep  |  May 15, 2014 at 10:55 am

    These types of "give 'em enough rope" briefs from the opponents may be as valuable to our side as the briefs from our own lawyers.

  • 30. Michael Grabow  |  May 15, 2014 at 10:55 am

    It'll be just like Twister!

  • 31. Michael Grabow  |  May 15, 2014 at 10:56 am

    My job just blocked access to scribd for some reason. Does anyone know where I can see them aside from there?

  • 32. Eric  |  May 15, 2014 at 10:57 am

    Rather, the state admits that its future behavior will create chaos.

  • 33. Margo Schulter  |  May 15, 2014 at 11:04 am

    Since I often have problems with my text-based browser accessing complete documents on scribd, one solution is to search for cached versions of the text on Google. Sometimes the caching process takes a while.

  • 34. Margo Schulter  |  May 15, 2014 at 11:07 am

    Depending on whether it’s Mountain or Pacific time, maybe depending on where the Ninth Circuit ruling would be coming from, I guess we’re either at or fast approaching that “High Noon.” In a strange way, the “Western” flavor is a bit of comic relief.

  • 35. StraightDave  |  May 15, 2014 at 11:17 am

    Well, now that you bring up Lawrence, it just so happens that in the very same paragraph as the quote above, Monte (can I please call him Python?) tells us we are all misreading Lawrence. He then proceeds to tell us black is white.

    "..our laws and traditions in the past half-century are of the most relevance here.
    And [in Lawrence] the recent history demonstrated a decided trend away from criminalization of homosexual relations." I take it he's agreeing with
    Lawrence.

  • 36. StraightDave  |  May 15, 2014 at 11:17 am

    (cont.)
    Just as that starts to look like a logical lead-in to something like "similarly, the last decade has demonstrated a decided trend away from marriage restrictions", he suddenly goes inside-out and somehow tries to use that reference to prove *his* point that recent history is worthless (in contrast to Lawrence). He does that by stopping the calendar at 2003, as if nothing has happened since.

    "Here, by contrast, the relevant history and tradition are that no State permitted same-sex marriage until 2003. And even abroad, no foreign nation allowed same-sex marriage until after the Netherlands did so in 2000."
    Q.E.D.

    See, it never happened. We're still in the dark ages. No historical evolution to see here, folks. Just keep on moving.

  • 37. LK2014  |  May 15, 2014 at 11:18 am

    I just finished reading the Plaintiff's Response opposing the stay request – it is well worth reading.

    Very thorough, well-written, and provides cumulative persuasive arguments built on the rapidly increasing number of previous decisions that have all created a new terrain today than even when the US Supreme Court granted the stay through state appeal in Utah.

    Great argument (as noted above) about the growing body of decisions that should be considered, concluding with:

    "Since that decision, however, an unbroken wave of federal and state courts in every corner of the nation—including Arkansas, Illinois, Indiana, Kentucky, Michigan, New Mexico,
    New Jersey, Ohio, Oklahoma, Tennessee, Texas, and Virginia—have come to the
    same conclusion:

    in the wake of Windsor, marriage equality is a constitutional imperative. Not a single court in the nation has found to the contrary."

    Another great argument that the merits of each case should be individually considered, with well stated distinctions noted for this case.

    And wonderful points arguing that the State is not suffering harm, and that in fact, this decision is GOOD for the state and all citizens because:

    "The enforcement of constitutional rights is always in the public interest because “all citizens have a stake in upholding the Constitution.” Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)."

    Great delineation of the harm suffered by same-sex couples for EVERY DAY that justice is delayed, and notes that:

    "Moreover, many of the protections marriage provides—such as the right to receive social security benefits as a surviving spouse—hinge directly on the length of the marriage. Therefore, by preventing couples who wish to marry now from doing so, a stay would have irreparable consequences for many couples who will be denied benefits or receive significantly diminished protections as a direct result of that delay."

    Very eloquent arguments too about the effects of confusion, insecurity, and stigma on same-sex families of this continuing chaos and delay that prevents us from the security offered by marriage. All around an uplifting read.

    I hope they are successful in obtaining denial of a stay!

  • 38. AndyinCA  |  May 15, 2014 at 11:28 am

    To quote Peggy Tomisic, who argued for marriage equality in Utah, at pretty much the exact same moment 6 months ago, when she was arguing against a stay of Shelby's ruling: "The cloud of confusion that the state talks about is only their minds."

  • 39. Steven  |  May 15, 2014 at 11:31 am

    Idaho's request for an emergency stay lacks of reasons for stay, but I see 9th CC will grant the stay like other cases.. Stay is proper for now….

  • 40. LK2014  |  May 15, 2014 at 11:32 am

    Arkansas – Judge Piazza just sent a letter saying he will issue his Final Order later TODAY and make it RETROACTIVE to Friday!
    http://www.arktimes.com/

  • 41. AndyinCA  |  May 15, 2014 at 11:32 am

    didn't you hear? Marriage Equality will unleash a giant sharknado.

  • 42. StraightDave  |  May 15, 2014 at 11:32 am

    He might get away with some of his crap in Utah-north, but a shift from the 10th to the 9th Circuit might come as culture shock to him

  • 43. sae  |  May 15, 2014 at 11:37 am

    Palladino v Corbett: Pennsylvania out of state marriages

    Same old arguments: promoting procreation, protecting children, upholding tradition and reducing business expenses.

    Read more: PGN-The Philadelphia Gay News. Phila gay news. philly news – Arguments held in marriage recognition case

    http://epgn.com/view/full_story/25116543/article-…?

  • 44. StraightDave  |  May 15, 2014 at 11:38 am

    Exactly right. We often don't even need our own briefs as a result.
    "Hi, I'm Animus and this is my co-counsel, Irrational."

  • 45. Lymis  |  May 15, 2014 at 11:38 am

    Because marriage has barely survived a half-century of being "raceless."

  • 46. StraightDave  |  May 15, 2014 at 11:40 am

    It's only chaos if ID tries to not recognize their own legal marriages they just issued, like UT did. This is purely self-inflicted chaos. If they just followed the court's order, everything would be fine.

  • 47. Guest  |  May 15, 2014 at 11:42 am

    "You're on company time, not your own," was the explanation given to me after blocking my access to SCOTUSBlog. My heart goes out to ya.

  • 48. Lymis  |  May 15, 2014 at 11:42 am

    I thought it was a gaynado.

  • 49. Lymis  |  May 15, 2014 at 11:45 am

    Cool, let's sue all the other county clerks for retroactive contempt of court.

    But seriously, good news!

  • 50. ChillPill  |  May 15, 2014 at 11:46 am

    [youtube 5a4ukdnvurE http://www.youtube.com/watch?v=5a4ukdnvurE youtube]

  • 51. StraightDave  |  May 15, 2014 at 11:46 am

    Yee-haa! That makes all the recent marriages still valid and removes that cloud of uncertainty. Nice job

  • 52. Whistleblower  |  May 15, 2014 at 11:49 am

    Marriages are back on in Arkansas! (At least in Pulaski County. )http://www.pulaskiclerk.com/

  • 53. Ragavendran  |  May 15, 2014 at 11:53 am

    Final order has been entered by Judge Piazza:
    (a) Final Order and Rule 54(b) Certification
    (b) Order entering above nunc pro tunc
    (c) Order denying defendant's motion for immediate stay
    This matter is now ripe for a renewed and proper appeal.

  • 54. Bruno71  |  May 15, 2014 at 11:55 am

    Thanks!

  • 55. davep  |  May 15, 2014 at 11:55 am

    Hmm. I can see how it may be accurate to say that granting the stay might be "typical", or perhaps "status quo", but is it "proper"? I don't see how.

  • 56. StraightDave  |  May 15, 2014 at 11:57 am

    A temporary 7-day stay to properly brief and argue a "stay pending appeal", followed by a prompt denial of the stay, would not be a terrible result. A thoughtful consideration & denial by the 9th might go down easier with SCOTUS than just a quick, cold un-argued dismissal….especially since Reinhart's not on the motions panel :)
    I believe we will still have to get this past SCOTUS somehow.

  • 57. Ragavendran  |  May 15, 2014 at 11:59 am

    "for the reasons stated in this Court's Order entered May 9,2014 and herein, Amendment 83 of the Arkansas Constitution, Act 146 of 1997, $ l(b)-(c) (codified at Ark. Code Ann. 9-11-208 (aX1)-(2)) aod Act 144 of 1997 (Ark. Code Ann. $$ 9-11-107(b) and 109) violate the Equal Protection and Due Process Clauses of the United States and Arkansas Constitutions, and are hereby declared unconstitutional;"

  • 58. sam  |  May 15, 2014 at 12:01 pm

    The funny thing about this now is that the Arkansas Supreme Court, in getting Piazza to clarify the ruling, has removed the only marginally convincing reasoning to stay it…

  • 59. Ragavendran  |  May 15, 2014 at 12:03 pm

    "A ruling by McLaughlin is expected within the next several weeks."

    Several? Hmm… Would she wait to see how Whitewood, the other Pennsylvania case plays out in the neighboring district?

  • 60. Whistleblower  |  May 15, 2014 at 12:06 pm

    I think these AR Sup. Justices just know how this is going to end and want to enshrine a new legacy into the history of Arkansas when future generations look back. How ironic.

  • 61. Eric  |  May 15, 2014 at 12:07 pm

    Calling him Hall would be more appropriate, he keeps trying to offer the judges a different door to pick.

  • 62. Bruno71  |  May 15, 2014 at 12:09 pm

    Maybe that's what they wanted all along. But we'll see how it goes with the stay request part deux.

  • 63. Whistleblower  |  May 15, 2014 at 12:09 pm

    http://www.arkansasmatters.com/media/lib/183/f/e/

    There you have it, folks!

  • 64. davep  |  May 15, 2014 at 12:10 pm

    Bah! I get a 'page cannot be displayed' message from that link. Got more info or another link??

  • 65. LK2014  |  May 15, 2014 at 12:11 pm

    Yay !!!

  • 66. Chris M.  |  May 15, 2014 at 12:12 pm

    It's Raining Men! Hallejulah!

  • 67. StraightDave  |  May 15, 2014 at 12:15 pm

    Doesn't this now eliminate the excuses of some counties that not all the laws were properly struck down? It appears they're all now really on the hook, baring a last-minute flurry over stays.

  • 68. FilbertB  |  May 15, 2014 at 12:17 pm

    Nunc pro Tunc! :) I love nunc pro tunc! :)

  • 69. Guest  |  May 15, 2014 at 12:18 pm

    Try this one it works http://www.pulaskiclerk.com/

  • 70. Bruno71  |  May 15, 2014 at 12:19 pm

    Yeah, although the majority of them could probably still claim that the ruling only applies to the counties that were defendants in the case?

  • 71. davep  |  May 15, 2014 at 12:23 pm

    Hmm. That link leads to the original ruling from last week, dated 5/9. I'm wondering where Whistleblower is seeing something specifically about marriages resuming today?

  • 72. Craig  |  May 15, 2014 at 12:25 pm

    Agree. Wonderful. Great that there is a clarification it is both under the US and Arkansas Constitution. Very potent.

  • 73. Zack12  |  May 15, 2014 at 12:26 pm

    I think only a ruling from the Arkansas Supreme Court will make it settled law for all, just like in New Mexico.

  • 74. Margo Schulter  |  May 15, 2014 at 12:33 pm

    Whistleblower, I simply went to arkansasmatters.com and found the story, “Judge Piazza says no to stay” or the like. Thank you for bearing the good tidings!

    And given the Arkansas Supreme Court track record on striking sodomy laws pre-Lawrence and mandating adoption equality under the Arkansas Constitution, your suggestion of another legacy for justice seems to me also quite likely.

  • 75. Whistleblower  |  May 15, 2014 at 12:33 pm

    Look below, I posted the one from today. The clerk's office took down the link above once the Ark. Sup. Ct. denied the stay but also stated the provision prohibiting clerks from issuing marriages was still valid. As soon as that all changed today the above link once again posted the original order –like magic. Keep in mind the above order from Friday still stands. Today's order is simply an augmentation clarifying that there was a clerical error in Friday's opinion–but that opinion is still good because today's order is retroactive.

  • 76. KarlS  |  May 15, 2014 at 12:34 pm

    And they all have a half-moon carved on them…

  • 77. sae  |  May 15, 2014 at 12:34 pm

    Good question… The judgement could come any day now since that case went to summary judgement and the briefs were due May 12th t.

  • 78. Margo Schulter  |  May 15, 2014 at 12:34 pm

    davep, I noticed that too — but it’s the links after the Pulaski one that are to Judge Piazza’s new orders.

  • 79. Rose  |  May 15, 2014 at 12:37 pm

    I'm NOT so sure that the 9th will AUTOMATICALLY grant the Stay, but they could…..we will have to wait and see!

  • 80. Whistleblower  |  May 15, 2014 at 12:37 pm

    9th Circuit just granted the stay re Idaho case.

  • 81. sam  |  May 15, 2014 at 12:37 pm

    It does occur to me that if they were minded to stay the ruling anyway there wouldn't be a need to address this until the appeal reaches them. But if they aren't minded to stay they'd need clerks to have clear instruction so the legality is plain while the appeal goes on.

  • 82. LK2014  |  May 15, 2014 at 12:38 pm

    Ugh. Temporary stay in Idaho just granted by 9th Circuit.Court … not sure time frame …
    http://www.idahostatesman.com/2014/05/15/3186508/

  • 83. StraightDave  |  May 15, 2014 at 12:39 pm

    And that's why I really think they wanted it cleaned up, to eliminate any ambiguities and avoid going in circles for weeks.

  • 84. Seth from Maryland  |  May 15, 2014 at 12:40 pm

    oh well -_- , the ninth circuit ruling will be coming soon anyway

  • 85. Ragavendran  |  May 15, 2014 at 12:42 pm

    Not surprising, given the composition of the motions panel. This is the usual practice, what the Sixth Circuit did as well. Grant a temporary stay to allow time for proper briefing and then decide whether to grant the stay pending appeal or not.

  • 86. Ragavendran  |  May 15, 2014 at 12:43 pm

    Not exactly. It's a temporary stay, while they decide whether or not to grant the requested stay pending appeal.

  • 87. Seth from Maryland  |  May 15, 2014 at 12:44 pm

    it run through untill the supreme court is done with jujst like the perry case

  • 88. Whistleblower  |  May 15, 2014 at 12:44 pm

    Well, I don't see the temporary stay as a setback. I think it's logical after the Sup. Ct. granted a stay in the 6th Cir. However, by no means do I think the issuance of a stay has anything to say about the merits. In the end, I am confident there will be a 50 stay ruling embracing marriage equality. SCOTUS just wants an orderly implementation and an opportunity for both sides to be heard – although there is no doubt we have 5 votes. Look what just happened in AR. There is no way SCOTUS is going to un-marry people and create different subclasses of gays and lesbians. Not going to happen.

  • 89. Margo Schulter  |  May 15, 2014 at 12:45 pm

    Maybe the Ninth Circuit is taking a leaf from the Sixth Circuit’s book with the temporary stay — but with circuit precedent here making the anti-equality side so unlikely to succeed that a longer stay would be unjustified.

  • 90. Ragavendran  |  May 15, 2014 at 12:46 pm

    But no hearing on the summary judgment motion? A decision without a hearing? Like what happened in Bishop and Bourke?

  • 91. davep  |  May 15, 2014 at 12:46 pm

    Thanks WB. Yup, I see the order from today, which is great, but do we know if marriages have actually resumed in Arkansas yet? I've done a search for brand-new news reports from the last hour, and all of them only confirm the release of the final order but don't say that marriages have actually started again….

  • 92. Seth from Maryland  |  May 15, 2014 at 12:46 pm

    yea it is temporary stay but it become permant just like perry untill it makes it through the supreme court

  • 93. Bruno71  |  May 15, 2014 at 12:48 pm

    On the other hand, sometimes it's just about being anal retentive and making sure all i's are dotted and t's crossed. We can't know for sure. I'm somewhat confident, though, that regardless of the stay, this Arkansas SC rules in our favor ultimately.

  • 94. Margo Schulter  |  May 15, 2014 at 12:49 pm

    Whistleblower, as someone who has committed my share of typos and glitches, I can’t resist your description of what our opponents might want: a “50 stay” solution! Of course, it’s the 50-state solution that we can look forward to, hopefully within a year or two.

  • 95. davep  |  May 15, 2014 at 12:50 pm

    …found one, which includes this quote:

    "With the judge's action, Pulaski County Clerk Larry Crane says he'll immediately resume issuing marriage licenses to same-sex couples."
    http://ualrpublicradio.org/post/judge-strikes-all

  • 96. Bruno71  |  May 15, 2014 at 12:52 pm

    The Arkansas Times stated that Pulaski Co. is issuing licenses again.

  • 97. Seth from Maryland  |  May 15, 2014 at 12:55 pm

    i agree but i'm not sure the supreme will do it all at once , it's possible they may just reject some of the appeals letting the stay to that circuit or just affairming the ruling without broading it uyp

  • 98. StraightDave  |  May 15, 2014 at 12:57 pm

    It is hard to parse this …

    "Amendment 83 of the Arkansas Constitution, … and… [various other laws]… violate the Equal Protection and Due Process Clauses of the United States and Arkansas Constitutions"

    any other way than that Amnd 83 violates the rest of the AR Const. So according to AR law, you can't put in an amendment like that, as long as the AR SC agrees.

    There's been plenty of discussion about this we don't need to rehash, but this judge seems to make a very clear statement. I contrast this with Prop 8, that the CA SC said was constitutional by definition.

  • 99. Rose  |  May 15, 2014 at 1:00 pm

    It's UNFORTUNATE in my opinion when there are guidelines for granting a Stay, but regardless of my personal feelings, this is just a step in the process….at least when the Governor gets slapped on appeal……he CAN'T say he DIDN'T get his day in Court!!!

  • 100. Steven  |  May 15, 2014 at 1:02 pm

    Not surprised

  • 101. Richard L  |  May 15, 2014 at 1:03 pm

    Republican candidate for governor of Idaho supports ME. Mr. Brown may be a character, but his message was broadcast just the the Butch Otter's and the big-bearded one who only recited the bible. It is pretty surprising to hear. To me, Brown is the only one who speaks from reality.
    http://www.oregonlive.com/mapes/index.ssf/2014/05

  • 102. Guest  |  May 15, 2014 at 1:05 pm

    Lousy Christian behavior rewarded again, at our expense.

  • 103. Ragavendran  |  May 15, 2014 at 1:05 pm

    Some news out of Kentucky:
    (1) http://www.courier-journal.com/story/news/2014/05
    (2) http://www.courier-journal.com/story/news/politic

  • 104. sam  |  May 15, 2014 at 1:07 pm

    A clear reason they have for issuing the stay in Kitchen in such a unanimous fashion is so that tens of thousands of marriages aren't conducted that they later might wish to void. They don't want to their hands tied. Letting whole circuits go would be an anathema to a court that has essentially said it will have the final say. I think it's more likely they'll just sit on petitions for certiorari until they feel there's been enough review of the question.

  • 105. Bruno71  |  May 15, 2014 at 1:16 pm

    Right. I was thinking about that today. If the California constitution said explicitly "the people can't proffer a ballot question that amends the CA constitution to make any other donuts but glazed legal," and then the people did just that, would that make jelly doughnuts legal or illegal? So it wasn't quite as explicit when it came to marriage equality, but you had the CA SC saying in the May 2008 "Marriages" ruling that the CA constitution protects the rights of same-sex couples to marry. And then the people vote on something that says the exact opposite. I still believe that state prop 8 case was never argued properly, and its judgment was entirely faulty based on previous rationale.

  • 106. Bruno71  |  May 15, 2014 at 1:19 pm

    At this rate, we could have cases coming to them from the 4th, 6th, 9th, and 10th around the same time. I wonder if they'd wait past those.

  • 107. Whistleblower  |  May 15, 2014 at 1:19 pm

    Seth–While I can't read into the future, one thing that I am certain of is that the Sup. Ct. is not going to allow a circuit split on an issue as important as this one. That would in essence say -under the federal constitution your right to marry depends on what that Circuit court says in your jurisdiction- that simply will not happen. This is all or nothing, baby!

  • 108. Bruno71  |  May 15, 2014 at 1:20 pm

    I wouldn't put it past them. Their ultimate goal may be to keep marriage equality out of Mississippi as long as possible. If marriage equality is here to stay in Arkansas, though, that might hasten things.

  • 109. Zack12  |  May 15, 2014 at 1:25 pm

    The 5th as well. At some point, one of the circuits will split.

  • 110. KarlS  |  May 15, 2014 at 1:26 pm

    Yeah but a hard man is good to find.

  • 111. Guest  |  May 15, 2014 at 1:34 pm

    Plus there are no states in the 1st or 2nd circuits without marriage equality (although Puerto Rico is in the 1st, where a case was reportedly filed recently.)

    Also, don't forget that the 8th Circuit ruled against marriage equality in 2006 (Citizens for Equal Protection v. Bruning), so there will technically be a split as soon as any one circuit rules in our favor. Of course, that was a pre-Windsor case.

  • 112. FilbertB  |  May 15, 2014 at 1:41 pm

    You bring up so many excellent points -here and in other comments. Please feel free to disagree with me, but the sense i have is that the conventional wisdom of a circuit split before the SCOTUS granting cert is not very likely anymore. If the SC wanted the issue to percolate, it instead went into a full boil! After the stay in Kitchen, I think the SCOTUS will take the first case presented to them from the circuit courts where there is no question about standing. I also think the issue is so compelling and it will prove irresistible to the SC. It seems clear to me that the judges are carefully reading each ruling. For many judges, this may be the most read and important ruling of their judicial career. I am certainly going to pay attention to the ruling by the 10th (or the first circuit court ruling) as I think many District court judges with pending cases are waiting to read that opinion.
    Thank you, again!

  • 113. Ragavendran  |  May 15, 2014 at 1:44 pm

    The 5th seems to be taking its sweet time with the preliminary injunction appeal (maybe jealous of the 9th). It was filed on March 1, and on April 14, there was a motion by the Plaintiffs to expedite the appeal. The State of Texas was asked to file a response by April 28. That deadline has long passed, and there has been no response. How careless is the Texas AG and his counsel? And how lax is the 5th Circuit in not doing anything since the deadline?

  • 114. Big Rick  |  May 15, 2014 at 1:44 pm

    I think you mean the supreme court granted a stay in the 10th circuit, not the 6th. That was KItchen. No stay request for rulings in the 6th have reached to the SCOTUS, as the 6th Circuit has stayed all of the lower court's orders in its jurisdiction.

  • 115. Margo Schulter  |  May 15, 2014 at 1:46 pm

    Question: how long could SCOTUS wait on a cert petition in order to keep a stay in place? And might letting circuit-level decisions for equality take effect, unlike the early district court decisions, be a way to let things percolate for a short period, with the conflict likely raised by the Fifth Circuit then bringing about cert?

  • 116. sam  |  May 15, 2014 at 1:46 pm

    Maybe they think if they just act like it never happened it will all go away….

  • 117. StraightDave  |  May 15, 2014 at 1:49 pm

    The 2nd article is the best. It about all the bogus arguments KY is making in its appeal, like keeping the birth rate up to help the economy prosper. The Family Foundation of Kentucky says the state had no choice but to make these arguments because liberal judges have rejected all the other ones about "tradition, morality and family values." So, of course, now they're getting laughed at by everybody.

  • 118. LK2014  |  May 15, 2014 at 1:54 pm

    This is all the 9th Circuit Court Temporary Stay decision states, so it is possible that they could lift the stay after considering it further:

    "Before: LEAVY, CALLAHAN, and HURWITZ, Circuit Judges.

    The district court’s May 13, 2014 order is temporarily stayed pending this
    court’s disposition of appellants’ emergency motions for a stay pending appeal."
    http://www.ca9.uscourts.gov/content/view.php?pk_i

  • 119. Bruno71  |  May 15, 2014 at 1:57 pm

    I hope that if the 9th later imposes a permanent stay, they issue a statement as to what the rationale is. Or perhaps they could state that while the SCOTUS has set precedent for a stay in the Kitchen case, that they don't agree it meets the established criteria.

  • 120. StraightDave  |  May 15, 2014 at 2:01 pm

    I agree the Straus v Horton case took the wrong tack. They tried to argue the difference between "amendment" vs "revision", which aren't defined anywhere. There wasn't much legal support for that position. I think they wimped out of taking Prop 8 head-on as violating much of the rest of the constitution that was still intact. Might still have lost because the Chief Justice opined out loud in the hearing that "maybe the problem is that the CA Const is just too easy to amend".

  • 121. Margo Schulter  |  May 15, 2014 at 2:02 pm

    Bruno71, I’ll try without rehashing previous discussions to state the crucial distinction. It’s true that Proposition 8 amended the California Constitution so as, in effect, to overturn the California Supreme Court’s reading of that same Constitution in the Marriage Cases of 2008.

    And in Strauss v. Horton (2009), the Court held that this was a valid amendment, even though it impacted one aspect of a fundamental right, since that same Constitution set no limit on the voters’ power to enact such an amendment. This was in contrast to a “constitutional revision,” which would have required a more complicated process.

    But in Arksansas, there’s Article 2, Section 29 of the Declaration of Rights which does prevent any laws or constitutional amendments, short of a constitutional convention or the like, that abrogate the right protected by Article 2.

    Some of us in California feel that a provision like that of Arkansas would be desirable, and Attorney General Jerry Brown argued in Strauss that it should be read into the California Constitution. Unfortuntely, precedent wasn’t favorable.

    In short, it’s the authority of a California Supreme Court decision interpreting the Constitution which can be overriden by a voter constitutional amendment — versus the explicit restriction on amending the Constitution in Arkansas Article 2, Section 29.

  • 122. Bruno71  |  May 15, 2014 at 2:02 pm

    Even before that…when Kennard voted not to even hear the case. I don't think they would've won the case no matter what they tried, but I do believe they tried the wrong thing, for fear it was the only way they could possibly win I guess.

  • 123. Guest  |  May 15, 2014 at 2:04 pm

    As I noted above, there will technically be a split as soon as any one circuit rules in our favor because the 8th Circuit ruled against marriage equality in 2006 (Citizens for Equal Protection v. Bruning).

  • 124. Margo Schulter  |  May 15, 2014 at 2:11 pm

    On the Idaho case, the very powerful filing opposing the stay suggested, in the alternative, an expedited appeal: June 9 for Defendant’s opening brief; July 7 for Plaintiffs’ answering brief; and July 21 for any reply brief. (p. 20)

    So if the Ninth wants to minimize any possible friction with SCOTUS, that might be one option.

  • 125. Whistleblower  |  May 15, 2014 at 2:13 pm

    Sure, but the 8th's ruling was pre-Windsor so the 8th Circuit may reverse itself. Either way, this will only be resolved by SCOTUS and I predict that every pro-marriage ruling will be stayed until SCOTUS steps in–just like in the DOMA cases.

  • 126. Zack12  |  May 15, 2014 at 2:16 pm

    That was a pre-Windsor case so the courts could look at that differently.

  • 127. Margo Schulter  |  May 15, 2014 at 2:19 pm

    Guest, this raises the question of whether a split with a pre-Windsor decision would carry the same weight with SCOTUS as a split between post-Windsor holdings. Of course, if they want to take one of the first cases without standing or other issues complicating the main question, that might be academic.

  • 128. LK2014  |  May 15, 2014 at 2:25 pm

    Well, if they do issue a stay – which I strongly think they should NOT do based on the actual merits of the case – then I hope they also honor the request to EXPEDITE the case. It only made sense for the US Supreme Court to stay the Utah decision because of the expedited schedule. Even then I thought it stunk.

  • 129. Margo Schulter  |  May 15, 2014 at 2:26 pm

    Another question: might a SCOTUS case requiring the States to recognize legal marriages contracted in other States be the kind of incremental ruling that the Court might favor. In effect, it would be striking DOMA Section 2. Of course, that kind of decision disadvantages people not already married who have economic or medical issues making travel to another State a nontrivial or even impossible proposition.

  • 130. Rik  |  May 15, 2014 at 2:29 pm

    Piazza was way more thorough this time:

    that Plaintiffs' request for a pennanent injunction is GRANTED and the
    Court does hereby permanently enjoin all Defendants, including their offtcers,
    employees, agents, representatives, instrumentalities and political subdivisions
    from enforcing Amendment 83 of the Arkansas Constitution, Act 146 of 1997, $
    l(b)-(c) (codified at Ark. Code Ann. 9-11-208 (aX1)-(2)) and Act 144 of 1997
    (codified at Ark. Code Ann. $$ 9-11-107(b), -109); and all other state and local
    laws and regulations identified in PlaintifPs complaint or otherwise in existence to
    the extent they do not recognize same-sex marriages validly contracted outside
    Arkansas, prohibit otherwise qualified same-sex couples from marrying in
    Arkansas or deny same-sex maried couples the rights, recognition and benefits
    associated with marriage in the State of Arkansas.

  • 131. Seth from Maryland  |  May 15, 2014 at 2:33 pm

    couples marry in Arkansas, get ready for tears lol http://youtu.be/dtx99M4ePzI

  • 132. Pat  |  May 15, 2014 at 2:41 pm

    how many counties issue licenses?

  • 133. davep  |  May 15, 2014 at 3:28 pm

    "maybe the problem is that the CA Const is just too easy to amend".

    … I don't know if it's THE problem, but it's certainly A problem.

    And a big one. This process here in CA is a frikken mess.

  • 134. davep  |  May 15, 2014 at 3:31 pm

    Indeed. With the rapidly growing number of states that have ruled in favor of these marriage rights, but with stays in place during appeals, it's not just percolating or even boiling. It's a pressure cooker.

  • 135. davep  |  May 15, 2014 at 3:43 pm

    Thanks for that, Seth. Scenes like this, even though they have now played out again and again, in state after state, still get to me every time. This is what it's all about.

    For anyone who has not yet attended a day like this, I encourage you to do yourself a favor and make a point of it. The next time any state near you begins allowing these couples to marry, go and participate. You will be glad you did.

  • 136. Luke  |  May 15, 2014 at 4:21 pm

    How does the Idaho case affect Sevcik v Sandoval that is currently before the 9th circuit? Is it possible that the Idaho case would be rendered moot if the 9th circuit rules in favor of SSM in Sevcik v Sandoval, or will they be combined- causing MORE delays at the 9th circuit. For being the most 'liberal' circuit, they certainly have taken their time.

  • 137. Bruno71  |  May 15, 2014 at 4:23 pm

    It is, though let's not change it until we've stricken the bigoted language first.

  • 138. TKinSC  |  May 15, 2014 at 4:34 pm

    Where in the Constitution does it give the 9th Circuit Court authority to stay even for one second Dictator Candy Wagamuth Dale's unassailable and inerrant decree?

  • 139. ebohlman  |  May 15, 2014 at 4:43 pm

    Unlikely that they'd be consolidated. It's possible that the decision in Sevcik could be a narrow one that would apply only to NV (civil unions not an adequate substitute for marriage), though even that would set some precedent depending on what they cited.

  • 140. TKinSC  |  May 15, 2014 at 4:54 pm

    Where in the world is such a person as Dictator Candy Wagamuth Dale, or their unassailable and inerrant decree?

  • 141. Bruno71  |  May 15, 2014 at 5:03 pm

    Assuming the 10th and 4th Circuits rule before the 9th, it'd be pretty strange for the 9th to rule narrowly while these more conservative courts rule broadly. If that happens.

  • 142. Bruno71  |  May 15, 2014 at 5:04 pm

    Both are in Boise last I heard.

  • 143. Margo Schulter  |  May 15, 2014 at 5:23 pm

    ebohlman, that sounds like the Solicitor General’s “nine-state solution” proposed to SCOTUS last year, and also one aspect of Attorney General Rosenblum’s reasoning in the Oregon case: there’s no rational basis for granting civil unions but refusing marriage.

    Given that the Ninth now has heightened scrutiny for sexual orientation, that kind of compromise seems even less likely. Solicitor General Verrilli thought that “California and other States with domestic partnerships cannot rationally deny marriage” (my paraphrase) was one starting point, but added that heightened scrutiny was appropriate, and would very difficult for any State to meet.

  • 144. davep  |  May 15, 2014 at 5:24 pm

    You got it!

  • 145. bayareajohn  |  May 15, 2014 at 5:32 pm

    Same world where one looney can monopolize the message areas of a public interest web site with intent to be as disruptive as his petty and pointless life allows him.

  • 146. sfbob  |  May 15, 2014 at 5:50 pm

    That would be Article III. The management of processes is as established by the federal court system itself.

  • 147. Zack12  |  May 15, 2014 at 5:50 pm

    Indeed… with the people in power doing nothing to stop him.

  • 148. LK2014  |  May 15, 2014 at 7:29 pm

    Beautiful … "let justice rain down from the mountains like water" … pretty amazing.

  • 149. grod  |  May 15, 2014 at 8:21 pm

    The order: http://media.idahostatesman.com/smedia/2014/05/15

  • 150. Dr. Z  |  May 15, 2014 at 9:17 pm

    Giving your chest a second thump for the sheer manly thrill of it? How about a big Tarzan yodel too? No?

  • 151. Dr. Z  |  May 15, 2014 at 9:25 pm

    "Temporary" for the Ninth Circuit means permanent anyplace else.

  • 152. Dr. Z  |  May 15, 2014 at 9:34 pm

    Thank you Seth.

  • 153. Dr. Z  |  May 15, 2014 at 9:45 pm

    They already have, with the Bruning case in the 8th Circuit in 2006 upholding Nebraska's DOMA law (if I recall correctly.)

  • 154. Dr. Z  |  May 15, 2014 at 9:49 pm

    The SCOTUS slapped a lid on a boiling pot when they stayed the Kitchen ruling. Incredible to think that happened less than five months ago.

  • 155. Dr. Z  |  May 15, 2014 at 10:00 pm

    And there shall in that time be rumors of things going astray. And the Young shall not know where lieth the things possessed by their Fathers, that their Fathers put there just the night before, around eight o'clock.

  • 156. sfbob  |  May 15, 2014 at 10:26 pm

    I presume you're referring to Section 2. Specifically this:

    "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact…"

    However it would appear that both the Supreme Court and the lower courts have interpreted "the supreme Court shall have original Jurisdiction…" to apply as well to the lower federal courts. At least there is no indication of it being otherwise. It seems rather clear that if there a jurisdictional question it would have already been raised. It does not appear as though even the states' counsels–at least in those states which are continuing to defend their marriage bans– have brought it up and neither have any of the federal judges who have thus far issued decisions.

  • 157. StraightDave  |  May 15, 2014 at 10:47 pm

    Back in the day (early 1800's) I believe the SCOTUS justices also served as circuit court judges, literally riding around the circuits themselves during their summer breaks. There were no separate circuit courts at the time. (I'm doing this from memory, not proof.)

    It might well be that, as part of that separation of responsibilities when the circuit courts were established, some of the jurisdiction also moved. If anyone can further clarify, please have at it.

  • 158. Big Rick  |  May 15, 2014 at 11:19 pm

    Neither. Marriage is already a fundamental associational right of every individual.

  • 159. Margo Schulter  |  May 15, 2014 at 11:47 pm

    StraightDave, I can certainly confirm that in the Founding Era and early 19th century, SCOTUS justices sometimes rode circuit also: and given the transportation available at the time, it was not necessarily always either pleasant or safe. Justice James Wilson, for example, in 1791 gave an address to one of the first federal grand juries in the Circuit Court for the District of Virginia. I’m familiar with it as a document which may be relevant to the original context of the Eighth Amendment.

    But the delegation of circuit duties changed, sometimes with the political climate. After a time when other judges dealt with the circuits, the Judiciary Act of 1802 put “circuit riding” back into the responsibilities of the justices, and could be seen in part as a not-so-desirable task for the mostly Federalist Court imposed as one mark of Jeffersonian ascendancy. This was one episode in the run-up to Marbury v. Madison.

  • 160. DaveM  |  May 16, 2014 at 9:21 am

    For discussion on Art III Sec 2 Cl 2, see p. 861 et seq.: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/pdf/G

    In the Judiciary Act of 1789 § 3 (Current update in 28 U.S.C. § 1251) , Congress granted concurrent jurisdiction to inferior Courts, giving SCOTUS an out from suits against a State.

  • 161. Warren  |  May 16, 2014 at 12:23 pm

    Is the SmithKline v. Abbott case on hold or in play? Since the court is now in the process of voting to decide if it would hold a hearing en bloc to review the ruling i.e., gays are no a protective class, is the ruling on hold or in play for this case?

  • 162. Ragavendran  |  May 16, 2014 at 12:24 pm

    The ruling is not on hold. According to 9th Circuit rules, the precedential effect of a ruling begins the day it is issued. A mandate hasn't been issued, but a stay of that ruling hasn't been granted either. So it is still in play, and indeed, was used by Judge Dale in her opinion.

  • 163. Greg  |  May 16, 2014 at 12:45 pm

    Don't anthropomorphize Idaho. Idaho really hates when you do that!

  • 164. Warren  |  May 16, 2014 at 4:43 pm

    Thanks! I do kind of recall Judge Dale saying something about the ruling.

    Also, "A federal judge on Friday said he'll issue a decision next week on a constitutional challenge to Oregon's same-sex marriage ban."

    Another state in the Ninth Circuit's justriction. I think only Alaska and AZ are the last two states in the 9th Circuit that has to allow same gender marriage.

  • 165. Guest  |  May 16, 2014 at 5:04 pm

    Let's just hope Judge McShane rules in favor of equality and the Oregon case never makes it before the 9th Circuit! None of the parties would appeal a favorable ruling.

  • 166. Guest  |  May 16, 2014 at 5:11 pm

    9th Circuit States with Marriage Equality: California, Hawaii and Washington

    9th Circuit States with Appeals Pending: Idaho and Nevada

    Remaining 9th Circuit States/Territories: Alaska, Arizona, Montana, Oregon, CNMI, Guam

  • 167. StraightDave  |  May 16, 2014 at 5:54 pm

    While we're waiting a whole long weekend for Judge McShane to entertain us with his writing skills, a friend of mine in the "communications security business" slipped me a conversation he had intercepted last month.

    (Part 1)
    Some Guy in eastern Oregon: Hello?
    Brian Brown: Hi. I'm Brian Brown, President of the world's pre-eminent marriage defense organization, NOM.
    SG: Do I know you?
    BB: You probably do. I'm Brian Brown. I'm all over the news.
    SG: Whuddya want?
    BB: Have you heard about the trial they're having to try to wipe out your hard-earned gay-marriage amendment?
    SG: How could I miss it? Its all over the news, but I don't recall seeing you there.
    BB: Well, you may have an opportunity to help us out. Did you vote for this amendment 10 years ago?
    SG: I dunno, I guess so, maybe.
    BB: You don't know? How could you not remember such a critical act in the defense of our God-given rights?

  • 168. StraightDave  |  May 16, 2014 at 5:54 pm

    (Part 2)
    SG: Well none of us were paying much attention to it until one day a bunch of us boys started talkin' about how we would vote. Seems like if you were gonna vote NO you might get looked at funny.
    BB: But how would anyone know how you voted?
    SG: Well, we talk a lot out here and somebody was sure to ask sooner or later. If ya voted NO, you were probably gonna end up having to lie to yer neighbor about it, and that don't go down well out here. So we all just kinda agreed to vote YES. We thought it would keep things simpler that way.
    BB: Great! You're just the kind of guy I was looking for. How would you like to help us out?
    SG: What do I gotta do?
    BB: Just give us your name and let us use it in the court documents to help preserve the sanctity of marriage.
    SG: Huh? What the hell does that mean?
    BB: It means we're going to fight to keep that amendment you voted for safe and secure.
    SG: ummmmmm
    BB: What's wrong?

  • 169. StraightDave  |  May 16, 2014 at 5:55 pm

    (Part 3)
    SG: Well, we've been talkin' about it recently and folks out here are starting to change their minds about that. If word got out, I might end up with the crooked chair at the Saturday night checkers games. And besides….
    BB: Oh, don't worry about that. We'll take care of everything. They don't even have to know it was you.
    SG: [[click]]
    BB: [txt:] John, I got one!!

    ================================================
    IN THE FEDERAL COURT FOR THE DISTRICT OF OREGON

    Now comes the National Organization for Marriage…..

    …voter…
    …anonymous…
    …scared…

  • 170. Zack12  |  May 16, 2014 at 5:56 pm

    I see no reason for Judge Mcshane to stay his ruling, as there will be no one to appeal it.

  • 171. davep  |  May 16, 2014 at 6:10 pm

    Thanks! These remind me of those great stories (written by Carpool Cookie? Not sure now…) about the NOM Bus fiasco. Ah, good times.

  • 172. StraightDave  |  May 16, 2014 at 6:21 pm

    I think it was AnonyGrl, but yes, that was my inspiriation. I wanted to counter some of the gloom around AR, but keeping fingers crossed about OR on Mon. Remember, even though we lose all the stays we are winning all the judgments. That's what really counts, even though it is frustrating as hell and I agree they're all just chickenshit.

  • 173. Ragavendran  |  May 16, 2014 at 6:57 pm

    I do believe Oregon will be the first state to break the gay-means-stay-fever, but just vacuously – if there's no appeal, there can't be a stay pending appeal.

  • 174. davep  |  May 16, 2014 at 7:13 pm

    AnonyGrl! Of course!

  • 175. Guest  |  May 16, 2014 at 7:28 pm

    Assuming, of course, that he rules in favor of marriage equality!

  • 176. Zack12  |  May 16, 2014 at 7:33 pm

    I don't see any reason why he would be the one to break the streak. Anything can happen of course.

  • 177. seannynj  |  May 16, 2014 at 7:46 pm

    How could a gay judge rule against the right of gay couples to get married? It's almost unthinkable.

  • 178. grod  |  May 16, 2014 at 8:39 pm

    Sean: your system of justice is predicated upon a shared conviction that justice is blind, that the rule of law, built on precedents and rules of interpretation and scrutiny, is 'just'. T American citizens accept that the highest law is the constitution, including the bill of rights. Your judges are (s)elected on the bases in part of a demonstrated ability to set aside personal preferences/biases. Even then, appeal courts require greater numbers of deciders to ensure the system of justice isn't gamed. Decisions are aired in the public domain to foster credibility. Yet from appointment to highest authority decisions, partisan politics intrudes. Witness Idaho's governor threatening that he will go to a higher court if he doesn't get want he wants now. And NJ's Governor Christie threatening to do the same things. Indeed Arkansas' governor did the same things by going directly to the State Supreme Court – prematurely. Iowa's electors kicked judges off their Supreme Court because these individuals had integrity in interpreting the law in the context of a complaint. Of Judge Vaughn Walker, in June 2011, Chief Judge James Ware said “The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself,”

  • 179. grod  |  May 17, 2014 at 1:13 pm

    Sean: While I tried to address your comment in the below post, Judge Michael McShane's reply to an assertion that he should recuse himself because of your 'unthinkable', says it much better. It can be found at the end of the hearing on NOM request for intervener status: p 41-44. http://www.scribd.com/doc/224430921/TRANSCRIPT-Ge

  • 180. Margo Schulter  |  May 17, 2014 at 4:46 pm

    Question: In the recent Schuette case on the voter decision to ban affirmative action based on race, should those members of SCOTUS not belonging to minority categories which affirmative action programs aim to favor have recused themselves? (Their children or other relatives, for example, might reap a benefit in their college admissions.)

  • 181. SeattleRobin  |  May 17, 2014 at 5:29 pm

    It goes both ways though. In terms of potential bias there's no difference between a gay judge who might have an interest in getting married and a staunch Catholic judge who believes gay people should not have that right. If you're going to accuse the former of deciding based on personal interests then you should also accuse the latter. That's not a workable system, or you're left with trying to find an asexual atheist to hear the case.

  • 182. Lynn E  |  May 17, 2014 at 9:18 pm

    If SCOTUS thought this way, they certainly would have voided Judge Walker's ruling and taken Original Jurisdiction to reheat the Prop 8 case when it was before them last year. They apparently felt the jurisdiction lay with the lower Courts.

  • 183. Lynn E  |  May 17, 2014 at 9:19 pm

    Rehear – not reheat. Silly, silly autocorrect.

  • 184. lottery results may 2012  |  July 7, 2014 at 3:49 pm

    First off I would like to say wonderful blog!
    I had a quick question that I’d like to ask if you do not mind.
    I was interested to find out how you center yourself and clear your thoughts prior to writing.

    I have had a tough time clearing my thoughts in getting
    my thoughts out. I do enjoy writing but it just seems like the first 10 to 15 minutes are usually wasted simply
    just trying to figure out how to begin. Any suggestions
    or tips? Many thanks!

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