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Decision expected in Pennsylvania marriage equality case today

LGBT Legal Cases Marriage equality Marriage Equality Trials

The ACLU of Pennsylvania’s website says that the federal district court judge hearing Whitewood v. Wolf, one of the challenge to the state’s statutory same-sex marriage ban, will issue his decision today. The ACLU says:

The landmark case to win the freedom to marry in Pennsylvania is expected to be decided on Tuesday, May 20, 2014.

After the court’s ruling, we will be hosting Decision Day rallies all across the state where we hope to celebrate a favorable ruling for marriage equality!

The decision is expected after 2PM. Judge John E. Jones, nominated by President George W. Bush, is presiding over the case.

The case is a challenge to the state’s laws banning same-sex marriage and recognition of out-of-state same-sex marriages. It was filed by the ACLU on behalf of 21 Pennsylvanians.

168 Comments

  • 1. Ragavendran  |  May 20, 2014 at 7:57 am

    The court website provides for a way to be automatically notified as soon as the opinion is released: http://www.pamd.uscourts.gov/?q=news/judge-jones-

  • 2. Ryan K.  |  May 20, 2014 at 8:07 am

    Thanks for that, I'm now registered. This is my birth state, so I am very curious to see how this opinion comes down. Would a federal judge treat the case any differently given it is a state statute vs. an amendment to the state constitution? I would imagine either falls based on the US Constitution, but just seems like a constitutional amendment would need more (or I should just look at it as it's easily to rule a statue unconstitutional).

  • 3. Kevin  |  May 20, 2014 at 8:10 am

    The approach from the judiciary would not be any different.

  • 4. Scottie Thomaston  |  May 20, 2014 at 8:25 am

    This is a federal case, so the question is just whether the ban violates the federal Constitution. The standard is the same whether it's a statute or a constitutional amendment.

  • 5. DrPatrick1  |  May 20, 2014 at 8:25 am

    In state court, a statute must withstand both the state and federal constitutions. A constitutional amendment, properly enacted, would require extreme circumstances that I cannot fathom to be declared unconstitutional by that state's constitution. Thus, it would have only to withstand the federal constitution. (Despite some interpretations of the AR ruling, I do not believe the judge really meant that the AR amendment was ruled unconstitutional by the AR constitution. If the ruling relies on that interpretation, it will be overruled. However, it is a much more grounded interpretation to conclude he meant it was unconstitutional by the federal constitution, and the state laws were unconstitutional by both.)

    In Federal court, only federal law, and the federal constitution, are considered. Thus, a state constitutional amendment and a state law would be considered the same way.

  • 6. Corey from Maryland  |  May 20, 2014 at 8:31 am

    NOM hasn't stepped with an "emergency" to stop the ruling. What gives?

  • 7. TKinSC  |  May 20, 2014 at 8:35 am

    Will this make it legal in South Carolina?

  • 8. Rose  |  May 20, 2014 at 8:35 am

    I'm registered also, but my guess is a stay will be issued, right? or is PA like Oregon?

  • 9. James  |  May 20, 2014 at 8:37 am

    Pennsylvania is in the 3rd circuit, which has 7 judges appointed by Democratic presidents (4 Clinton, 3 Obama) and 5 by a Republican (all G.W. Bush) with two vacancies. A 7-5 split is almost dead even, I really don't like those odds. Wish Obama could appoint two more judges and fill those vacancies.

  • 10. James  |  May 20, 2014 at 8:39 am

    What? No, this case involves Pennsylvania. The post is rather clear about that.

  • 11. Randolph Finder  |  May 20, 2014 at 8:42 am

    Honestly, the major question left in my mind is whether this gets to the Supreme Court in the 2014-2015 session or the 2015-2016 session. I know that theoretically the string of 13 wins could be unbroken until the last circuit court ruling that there has to be Marriage Equality in Alabama, but I *seriously* doubt it.

  • 12. Margo Schulter  |  May 20, 2014 at 8:43 am

    Kevin, I agree: a federal court may and indeed must find either a usual state statute or a state constitutional amendment (often more specifically a voter-enacted measure, whatever its margin of electoral success) unconstitutional if and only if it transgresses protections of the federal Constitution.

    Some defenders of marriage bans are trying to read into the recent Schuette decision sustaining a voter measure in Michigan against racial affirmative action a doctrine that voter decisions shouldn’t be overruled by the federal courts. However, as Judge Candy Dale explained in her recent decision striking down the Idaho marriage ban, Schuette only applies to measures that don’t violate the federal Constitution. And there’s some very famous language, often cited in the recent and ongoing federal marriage decisions, from West Virginia State Board of Education v. Barnette (1943): “[F]undamental rights may not be submitted to vote; they depend on the outcome of no elections.”

  • 13. Rik  |  May 20, 2014 at 8:49 am

    Don't worry, we'll get to you eventually 😉

  • 14. Quest  |  May 20, 2014 at 8:50 am

    Who cares? It's a bible thumping, worthless, Republican black hole. We fly over it. The aforementioned media stereotypes are hicks!

  • 15. James  |  May 20, 2014 at 8:50 am

    IANAL, but I can't see this not getting to the Supreme Court this October for the '14-'15 session. I mean, to delay would requite BOTH the 10th and the 4th to drag their feet for so long that they don't rule until next year. Considering that all briefs have been filed and oral arguments completed in both, I can't see that happening.

  • 16. Michael Grabow  |  May 20, 2014 at 8:51 am

    When will everyone stop replying to TKinSC?

  • 17. Margo Schulter  |  May 20, 2014 at 8:51 am

    DePatrick1, the Arkansas decision of Judge Piazza, now on appeal before the Arkansas Supreme Court, may be the exception that proves the rule. Normally, a state constitutional amendment is definitive at the state level: thus California’s Proposition 8 passed in 2008 withstood a state constitutional challenge (which then Attorney General Jerry Brown supported), the California Supreme Court ruling that indeed the voters had very broad powers to amend the California Constitution, even if fundamental rights were altered.

    However, Arkansas may be special because there’s a provision in its Constitution, Article 2, Section 29, that may set a limit on amendments inconsistent with Section 2, its Declaration of Rights. This is precisely the kind of provision not present in the California case, for example.

    Judge Piazza’s decision does specify both the Arkansas Constition and U.S. Constitution, and it will be the Arkansas Supreme Court which rules definitively as to the state Constitution.

  • 18. JayJonson  |  May 20, 2014 at 8:55 am

    It is an interesting question about whether an amendment to a state constitution can be unconstitutional on the basis of a state constitution. That issue, of course, was raised in the challenge to Proposition 8 in the California Supreme Court. That Court ruled that Prop 8 was constitutional, but a wonderful dissent by Judge Carlos Moreno is worth considering. He said the amendment was unconstitutional because it violated the state's equal protection clause: it was inconsistent with the state constitution itself. Had I been a member of that Court, I would have voted with Judge Moreno. (He, btw, was on the short list for a possible appointment to SCOTUS.)

    Interestingly, the majority decision upholding Prop 8 ironically strenghtened the domestic partnership law and affirmed that gay people deserve heightened scrutiny. They argued that the entire dispute was simply a question about a word, marriage. If that were the only issue, I doubt that either side would have spent such enormous amounts of money either passing or attempting to defeat the amendment.

  • 19. Margo Schulter  |  May 20, 2014 at 8:58 am

    Rose, Pennsylvania as far as I know has a party with both Article III and the intention of appealing if Judge Jones strikes down the marriage ban. So likely there would be a stay, at least until the Third Circuit rules on an appeal. The absence of any party with both Article III standing and a desire to appeal made Oregon, like California (after the Hollingsworth decision that Proposition 8’s proponents had no standing), a special situation.

  • 20. Ragavendran  |  May 20, 2014 at 9:07 am

    If a stay was requested, which I'm not sure it was, then it is possible that a stay (temporary or pending appeal) would be issued along with the order. Otherwise, there is no reason Judge Jones would issue a stay. I haven't looked at the State's briefs, so I'm not sure if they requested a stay. (They certainly did not request oral argument, because this decision is coming down today absent a hearing.)

  • 21. Randolph Finder  |  May 20, 2014 at 9:08 am

    As long as all of the Circuit Court rule in a single direction (presumably for Marriage Equality), the Supreme Court may choose not to take it up. OTOH, once two of the circuit courts disagree, then it is exceedingly unlikely that they wouldn't take it up. Having for example, Alabama *have* to allow Marriage Equality due to a decision by the 11th, but Mississippi allowed to ban SSM due to a decision by the 5th allowing their State Constitutional Amendment to stand would almost *guarantee* the court take it up.

  • 22. sfbob  |  May 20, 2014 at 9:08 am

    PA is different. Governor Corbett is a garden-variety Republican. On the other hand his arguments in various cases have ranged from tepid to ridiculous so perhaps he's just phoning it in and won't bother to appeal. On the OTHER other hand he has an election coming up and a base to appeal to. From what I gather, Corbett's not highly regarded by his constituents at the moment, for a variety of reasons. He's definitely vulnerable, in fact he's considered the governor most vulnerable to NOT winning re-election. If the case were to continue up to the election and were he to be defeated for re-election, a new administration could very well proceed as Oregon has.

  • 23. BillinNO  |  May 20, 2014 at 9:09 am

    So we will now have cases before 3rd, 4th, 5th, 6th, 9th and 10th Courts of Appeals?

  • 24. Ragavendran  |  May 20, 2014 at 9:12 am

    There is no question in my mind that the 4th and 10th will release timely opinions and timely denials of any requests for en banc rehearing (assuming a favorable opinion) so that (at least) three states knock on the doors of SCOTUS in time. The question is if they'll open that door during the upcoming term or not. If they don't, then marriage equality reaches all the states in the 4th and 10th circuits, which is still an enormous deal. If they do, then they do. They almost surely will have to open the door during their 2015-2016 term, because by then, the Fifth would have ruled against marriage equality, deepening a faint circuit split that would be caused once the 4th/10th rule (due to an old Seventh Circuit case).

  • 25. Scottie Thomaston  |  May 20, 2014 at 9:12 am

    I wonder the same thing.

  • 26. sae  |  May 20, 2014 at 9:14 am

    http://www.motherjones.com/politics/2014/05/gay-m

  • 27. Scottie Thomaston  |  May 20, 2014 at 9:14 am

    FWIW I reread the motions for summary judgment, and it doesn't look like there was a written request for a stay at all. No clue if they asked for one verbally or anything.

  • 28. Michael Grabow  |  May 20, 2014 at 9:14 am

    Hopefully not the third.

  • 29. HavingFun  |  May 20, 2014 at 9:16 am

    TKinSC is trying to annoy irritate everybody. Just ignore him.

  • 30. Ragavendran  |  May 20, 2014 at 9:18 am

    Third perhaps, if the State decides to appeal. But add the seventh. A narrow preliminary injunction issued in Indiana earlier this month is already being appealed.

  • 31. Ryan K.  |  May 20, 2014 at 9:23 am

    I can't imagine that the Governor doesn't appeal. I know the AG is on our side, but Governor loses existing base without appealing. The 3rd will join the many other circuits.

  • 32. TKinSC  |  May 20, 2014 at 9:24 am

    This is callous, and it makes me sad.

  • 33. DrPatrick1  |  May 20, 2014 at 9:25 am

    I love these types of discussions.

    I think you misread Moreno. He wrote that the constitution of CA has as a central core, equality. Prop 8 was not a simple issue, but a complete revision of the CA constitution because it changed this central core. Thus, he found, Prop 8 was a revision of the constitution and not a simple amendment. Those two things have different requirements under CA law, and thus Prop 8 was not properly added to the constitution.

    Thus, he did not find that the people of CA could not deprive GLBT's rights, but that they didn't do so by the rules in place at the time the amendment passed. If Prop 8 had met the criteria for passing a constitutional revision in CA, his opinion would have been different.

    I am not aware of any case where the substance of a constitutional amendment was found to be beyond the scope of the amendment process (to amend = to change! not speaking of the unique difference in CA law between amend and revise) based on that very constitution itself.

  • 34. TKinSC  |  May 20, 2014 at 9:25 am

    Ok, thanks Rik.

  • 35. Seth from Maryland  |  May 20, 2014 at 9:28 am

    i'm not so sure Corbett is wanting to appeal , he's be tryining hard to keep his name away tied from defence of the law

  • 36. Rose  |  May 20, 2014 at 9:29 am

    Remember folks that the 8th already has ruled against Marriage Equality concerning Nebraska and even though it was pre-Windsor, it still stands……..so, my guess is that SCOTUS may have an appeal in 2014-2015 term and another in 2015-2016 UNLESS the right question is presented before the High Court regarding clarity of a Fundamental Right……either marriage is a FUNDAMENTAL right for every American citizen without regard to specific gender requirements or it's not and I DON'T believe it's not a Fundamental right!!!

  • 37. Michael Grabow  |  May 20, 2014 at 9:29 am

    I know the chances may be slim, but I don't want to assume that it's going to happen. I like to hold out hope for reason and logic.

  • 38. JayJonson  |  May 20, 2014 at 9:30 am

    You may be correct. I remember that some of the suits in Strauss were about whether Prop 8 should have been an amendment or a statute. But I know he said, that Prop 8 "strikes at the core of the promise of equality that underlies our California Constitution." Upholding it, he said, "places at risk the state constitutional rights of all disfavored minorities." That seems to indicate that he found it internally inconsistent with the state constitution itself and therefore unconstitutional. Alas, his argument was not joined by any of the other Justices.

  • 39. Ragavendran  |  May 20, 2014 at 9:32 am

    Oops – Eighth, not Seventh (in my last parenthetical clause). Thanks, Rose.

  • 40. Michael Grabow  |  May 20, 2014 at 9:32 am

    It hasn't only been judges appointed by Democrats to rule in our favor…

  • 41. Seth from Maryland  |  May 20, 2014 at 9:35 am

    exactly , we have won a lot of case withs bush appointes

  • 42. DrPatrick1  |  May 20, 2014 at 9:36 am

    Your quotes are spot on! He used that analysis to find it was a revision and not an amendment, and thus not properly enacted. He said that because equality was so clearly important to the CA constitution pre Prop 8, and prop 8 so clearly has inequality as its purpose, that it fundamentally changes what the CA constitution is, and thus revises more than just whether the domestic union between two men can be called a marriage.

  • 43. BillinNO  |  May 20, 2014 at 9:37 am

    I know this is off-thread, but has Inniss v. Aderhold (Georgia) been scheduled for motions or oral arguments? I see that WI goes to trial in August and MO follows in September.

  • 44. Farley  |  May 20, 2014 at 9:38 am

    Such a worry wart. Have you not seen the Republican appointed judges ruling on equality? Judge Jones, who will rule today, was appointed by GW Bush. If you step back and look, this is getting beyond political party. Besides en banc, if needed, would look good.

    President Obama nominated one candidate on 2/6/14 for a vacancy, and the other still needs a nomination.

  • 45. StraightDave  |  May 20, 2014 at 9:39 am

    @Ragavendran
    You seem to be implying that if SCOTUS does not grant cert to the 4th and 10th appeals in the next term, they will somehow "expire" or implicitly have cert denied by Jun'15. ("If they don't [open that door], then marriage equality reaches all the states in the 4th and 10th circuits").

    What are the real options? Must SCOTUS dispose of all cases by end of term, one way or another?

  • 46. DrPatrick1  |  May 20, 2014 at 9:40 am

    I have to thank this site. I have learned, and continued to learn, so much about our laws and constitution. Before Prop 8 trial tracker, now EOT, I had never read a court opinion (well, I did read Lawrence…) and now I read them all the time. It has helped me to better articulate my own core beliefs. Again, thank you!

  • 47. Lance  |  May 20, 2014 at 9:41 am

    What's the old 7th circuit case you refer to?

  • 48. Ragavendran  |  May 20, 2014 at 9:42 am

    Sorry, as I mentioned above, it should have been the Eighth, not Seventh – my mistake. It is the Bruning case (out of Nebraska) that Rose mentions above.

  • 49. Lance  |  May 20, 2014 at 9:43 am

    I think WI is finished briefing in June and a decision could come after that negating the need for a trial. Ragavendran would know for sure.

  • 50. DrPatrick1  |  May 20, 2014 at 9:45 am

    The base is important in the primary, and mostly for the unknown candidate. In the general, it is far more important to appeal to the moderate vote. This is why progressive people are disappointed in Obama. To beat Hillary he had to run to her left, but has been a far more moderate president than most progressives, and even most conservatives thought. Sure they complain he is to far to the left, but no objective person could argue he is much more moderate than how he campaigned in '08.

  • 51. Ragavendran  |  May 20, 2014 at 9:45 am

    By not opening the door, I meant cert denied. I doubt that they will hang on to a petition for cert for a long time, especially when the lower court's decision is stayed, but they can do anything they want. They don't "have to" dispose of all cases by end of term.

  • 52. Michael Grabow  |  May 20, 2014 at 9:45 am

    I agree with this wholeheartedly!

  • 53. Guest  |  May 20, 2014 at 9:47 am

    It is also true. The GDP of South Carolina is less than half the GDP of San Francisco, yet South Carolina has six times the population of San Francisco. It is a welfare state that doesn't carry its own weight in the republic.

  • 54. DaveM  |  May 20, 2014 at 9:52 am

    SCOTUS can do whatever it wants. Cert Granted means an argument, Cert Denied means the appellate decisions hold – but SCOTUS can sit on that egg as long as they like. By tradition, they will dispose of every case that has been Distributed to Conference by the last week in June, either denying or scheduling for the following Term.

    As I wrote earlier, in order to schedule a case for arguments by the end of April 2015 ("October Term 2014"), it has to be granted cert by Jan 20, sent to Conference by Jan 16, which means all briefs in by Jan 9. The briefing schedule is 130 days long from the final judgment of the appellate court, which takes us back to September 1, 2014.

    SCOTUS will continue granting cert petitions after Jan 20, 2015, until their last Orders issue for the Term, on Monday, June 22nd. But cases granted after Jan 20 will be docketed for OT15 – which may mean no opinion until June of 2016.

  • 55. sam  |  May 20, 2014 at 9:52 am

    I thought a motion for summary judgement was filed in WI, so presumably the judge could grant that at any time?

  • 56. AndyInCA  |  May 20, 2014 at 9:52 am

    Judge Jones may be a GWB appointee, but his rulings include finding intelligent design unconstitutional… so he can't be a complete conservative nut. (Agreed, ruling that teaching schoolkids about the Flying Spaghetti Monster is unconstitutional is a pretty low bar), but still.

    Have hope :)

  • 57. Rose  |  May 20, 2014 at 9:54 am

    You're welcome!!!

  • 58. DaveM  |  May 20, 2014 at 9:54 am

    They don't "have to" – but they almost always do, if the case has been Distributed. If the case isn't Distributed, it'll simmer over the summer for the Long Conference in September.

  • 59. Ragavendran  |  May 20, 2014 at 9:58 am

    Inniss was filed only a month ago, so it is still in early stages. No motions yet. The Missouri case has a hearing on summary judgment motions (not a trial) scheduled September 25, in State Court.

  • 60. sam  |  May 20, 2014 at 10:00 am

    I lose track, has there been a hearing on the summary judgement in WI?

  • 61. BillinNO  |  May 20, 2014 at 10:02 am

    If only the Framers or Founding Fathers had included a constitutional mechanism along the lines of the rules of 'Bingo', we could just win five states across or up-and-down and then call it a day.

  • 62. davep  |  May 20, 2014 at 10:03 am

    Just on the off chance that you are a legitimate commenter and not one of the various TK trolls, you may want to consider changing your user name to something completely different. I suspect that having that user name be associated with the troll accounts is what is causing the negative reactions you get to your comments.

  • 63. Ragavendran  |  May 20, 2014 at 10:03 am

    Yes, briefing on summary judgment in Wisconsin's Wolf was completed just yesterday! Judge Crabb could schedule oral argument or decide to rule without one in June/July. A decision could render the trial scheduled for August 25 moot.

    And Kentucky's Love is done briefing next week, so we could hear from Judge Heyburn in June as well.

  • 64. Ragavendran  |  May 20, 2014 at 10:08 am

    I cannot agree more. I only joined last Fall, and by now I can read an entire legal opinion and understand almost everything that is written. What an amazing learning experience! I'm actually considering law school as a backup option if my upcoming Fall job search goes awry!

  • 65. Michael Grabow  |  May 20, 2014 at 10:08 am

    I cannot overstate the brilliance that was the Supreme Court’s decision last year in US v. Windsor. While gay civil rights advocates were disappointed that the Windsor decision “only” struck down DOMA, rather than legalizing gay marriages nationwide, Windsor ended up being a brilliant move tactically. The decision was so broad that it basically required state and federal courts across the land to find in favor of gay-marriage advocates. But, the decision stopped short of simply declaring victory nationwide. Instead, it required advocates in each state to file suit, so that our victories would happen piecemeal, one by one, state by state. This made each individual victory, while still joyous, less threatening at the same time, as for most Americans it was happening “over there” in another state. This not only gave Americans time to let the victories sink in, to let the concept of “gay couples getting married” sink in, but it also is leading to a sense of inevitability, which will eventually make a 50-state victory on marriage a gradual long-drawn-out yawn rather than a casus belli for the majority of the population.

    http://americablog.com/2014/05/pennsylvania-court

  • 66. weaverbear  |  May 20, 2014 at 10:13 am

    I'm sorry, but please define IANAL. I'm not clear what it stands for.

  • 67. davep  |  May 20, 2014 at 10:13 am

    As far as I can tell, TKinSC is a legitimate commenter asking questions and is not engaging in inflammatory or insulting troll activity. That would be TKNSC. Are they the same person? I dunno. Maybe the mods could determine that and handle this. Or at least they could respond to all of the commenters here who have been requesting that something be done.

  • 68. Michael Grabow  |  May 20, 2014 at 10:15 am

    I am not a lawyer.

  • 69. davep  |  May 20, 2014 at 10:17 am

    It means "I am not a lawyer" (implying 'so I'm not absolutely sure about this legal matter, but here's what I think is true').

  • 70. Eric  |  May 20, 2014 at 10:17 am

    Windsor was a disappointment, SCOTUS could have simply issued a one sentence ruling reminding everyone that marriage has been and is still a fundamental right, subject to substantive due process.

  • 71. Seth from Maryland  |  May 20, 2014 at 10:22 am

    i agree, there just wan't enough states the first time we went to the supremes but we are at 18 strong and have had several court victorys now , so when we see the supremes next timewe be a lot stronger with more momentum then we had last time

  • 72. Scottie Thomaston  |  May 20, 2014 at 10:24 am

    Well it's just me right now and there are appeals in 5 circuits and about 70 marriage cases I'm reading briefs in every single day. I've talked to the EOT team about the troll issue but there is only so much I can personally do right now.

  • 73. Bruno71  |  May 20, 2014 at 10:25 am

    TKNSC is a serious commentator who just happens to be a bigot. TKinSC is a troll who's probably trying to make the bigot look like a troll. They're both idiots.

  • 74. Seth from Maryland  |  May 20, 2014 at 10:26 am

    i diagree with eric, Windsor was the groudwork to what have now , even though your 100% right it should been ruled like that but we just didn't have enough states yet for them to take that leap

  • 75. weaverbear  |  May 20, 2014 at 10:26 am

    @ both davep and Michael Grabow, Many thanks to both of you for clarity on that.

    FYI, IANAL as well, but married to one, and my husband is always telling me I am more versed on what is happening on the legal front with regard to ME than he. I owe a good part of that to the discussion that goes on here on these boards, so to all of you posting, my thanks. (Even at times the trolls, because yes, they often are hateful, but sometimes they help focus and get others to clarify things in response to their ignorance and spite, and for some of us here that can be helpful.)

  • 76. Seth from Maryland  |  May 20, 2014 at 10:28 am

    any timeframe when this ruling is going to be released?

  • 77. Scottie Thomaston  |  May 20, 2014 at 10:29 am

    After 2PM is all I know.

  • 78. Rik  |  May 20, 2014 at 10:29 am

    Just wanted to point out that we all appreciate your time and efforts!

  • 79. Seth from Maryland  |  May 20, 2014 at 10:30 am

    ok thanks :)

  • 80. sam  |  May 20, 2014 at 10:32 am

    I would not give it that much credit tbh. It has become clear that Windsor wasn't really about DOMA at all, but generally how gay families are viewed under the constitution. In that sense it set the stage. The real problem with Windsor is that it was written by Kennedy. I say that because while it is civil rights case, Kennedy appears to eschew the methods of previous courts in dealing with them, he doesn't seem to like legal constructions like scrutiny for example. This left everyone confused about what to do, we can all look back now and say it was inevitable, but it really wasn't in the early days.

    Really much of the praise must go to Shelby's Kitchen. It clarified the way forward when the ideologically torn SCOTUS could not. This surely must be one of the most influential district court rulings in a long time.

  • 81. davep  |  May 20, 2014 at 10:35 am

    Thanks, Scottie! Just an acknowledgement that you guys are getting the reports about it and are aware of the issue goes a long way.

  • 82. FilbertB  |  May 20, 2014 at 10:39 am

    Thank you, Scottie. I cannot even begin to express my appreciation of all that you do. Please accept my sincere thanks.

  • 83. davep  |  May 20, 2014 at 10:42 am

    Someone who resorts to cheap anti-gay insults and who advocates for gay people being harmed, having bad outcomes for their marriages, etc., is clearly not a 'serious commenter'. They may sincerely think they have a legitimate argument against allowing same sex couples to legally marry, but that behavior isn't an objective argument. It's trolling. And it should not be allowed on this site.

  • 84. sfbob  |  May 20, 2014 at 10:43 am

    So…18 minutes and then we can begin hitting "refresh."

  • 85. StraightDave  |  May 20, 2014 at 10:43 am

    Gov Corbett is running unopposed in the GOP primary, so appearing more moderate has no downside. I don't know if he has any wise political advisors to tell him the train is leaving the station. But he needs to find some moderate votes somehow.

    "one poll showed that fewer than half of the state's Republicans believed he deserved another term."
    http://cumberlink.com/news/local/govt-and-politic

  • 86. sam  |  May 20, 2014 at 10:46 am

    See the first post above, you can apply to get an email alert when it's up.

  • 87. StraightDave  |  May 20, 2014 at 10:50 am

    Perry gave them an easy way out. I still believe standing was a problem and I wouldn't have wanted to open that can just for the sake of a win. The future side effects would have been unpleasant.

  • 88. Seth from Maryland  |  May 20, 2014 at 10:52 am

    Corbett wants no part of this case, he's been trying to get himself untied to defence of the law

  • 89. Craig  |  May 20, 2014 at 10:53 am

    I'm of a slightly different view. I think Windsor is an absolutely brilliant ruling which, along with Romer and Lawrence impel us on to where we are today. You cannot read Windsor and come to a different conclusion and if you do come to a different conclusion Scalia's glosses on the majority rulings will set you straight. For all of his faults Scalia is the perfect exegete of both Lawrence and Windsor.

  • 90. sfbob  |  May 20, 2014 at 10:53 am

    That would require me to open my personal email account on my work computer. Or keep on checking my phone. Far too much trouble either way. :)

  • 91. sfbob  |  May 20, 2014 at 10:55 am

    If Corbett has any wise political advisors he must not be listening to them; otherwise his administration wouldn't be hanging on by a thread. He is in serious danger of losing the next election.

  • 92. davep  |  May 20, 2014 at 10:56 am

    … and of course the 80 "Findings of Fact" in the Walker ruling for Prop 8.

  • 93. StraightDave  |  May 20, 2014 at 10:56 am

    Well if he had any balls he could do what his counterparts in VA and OR did. He can't very well secretly give tacit support to the defense while trying to appear detached in public. He has to pick a damn side and ride it.

  • 94. Seth from Maryland  |  May 20, 2014 at 10:57 am

    he's going to lose, i seen some of his a few days ago and they were just awful

  • 95. jdw  |  May 20, 2014 at 10:57 am

    This actually isn't a bad Circuit. 7-5 Dem is better than some.

    On one of the vacancies, Cheryl Ann Krause was reported out of the Judiciary Committee back in April. There are currently three Circuit nominations that have been reported out:

    Gregg Costa
    David Jeremiah Barron
    Cheryl Ann Krause

    This is the "daily" schedule that's updated for each session:
    http://www.senate.gov/legislative/LIS/executive_c

    You'll see Costa is getting set up to be confirmed today, with Barron's cloture coming after a Federal Reserve nomination (Fischer) after that.

    It's likely that Krause will be the next Circuit nomination to hit cloture, with the timing dependent on other nominations that are either (i) easier, or (ii) slightly more critical. I wouldn't be surprised if Krause isn't moved along to a higher place in the que because of that 7-5 in the 3rd.

    That said, they do need to nominate someone in Scirica's place. That's a "pick up" since Scirica was an RR judge, and would give us a nicer 9-5 cushion.

    FWIW, they are rocking and rolling at nominations right now. Since late April they've confirmed:

    4 Circuit Judges
    17 District Judges

    There are 12 Circuit vacancies, 6 with nominations pending, and those 3 that have been reported out. Of the other 3 pending nominations, 2 are in the problematic 11th (Pryor and Carnes) that are related to all those issues we've been reading about on the Boggs nomination and Obama's "deal" with the Georgia Senators.

    What we're looking at right now is likely a two stage process:

    * get in those that are reasonably easy
    * find a tipping point on Blue Slips

    We saw last year the tipping point with filibuster reform: the DC Circuit (Millett / Pillard / Wilkins nominations). The question on Blue Slips right now is where they want to make the tipping point.

    It's possible that they *don't* want to make it the 11th and specifically the Georgia Senators because they don't want to run the risk of it being a campaign issue where Nunn has a chance of gaining a seat we didn't think we had a real chance of say two years ago.

    If there's a political consideration like that, Leahy and Harry may look to push it in another Circuit where there is no impact on a race, and instead just a couple of asshole GOP Senators. Then let the 11th Circuit nominations lie a little low, and then revist them later in the year when it's under the radar.

    The problem is that a lot of the vacancies are in Circuits with similar Senate issues: pick ups (6th with KY, 11th with GA) or holds (4th with NC, 5th with LA). The vacancies in 3rd or 7th look like like the safer ones to try to force the Blue Slip issues.

    Anyway… I'm rambling while hitting refresh waiting for the Judge's opinion to drop. :)

  • 96. Michael Grabow  |  May 20, 2014 at 11:01 am

    It looks like we are clogging up that courts site. It's taking qutie a while to load when it doesn't give an error.

  • 97. F Young  |  May 20, 2014 at 11:01 am

    "The briefing schedule is 130 days long from the final judgment of the appellate court, which takes us back to September 1, 2014."

    That is, Court of Appeal decisions must be issued before Sept 1, 2014 to be decided by SCOTUS in June 2015, right?

    So, the only Circuit Court cases that would likely meet this deadline would be the Oklahoma, Utah and Virginia cases?

    If I recall correctly, the Michigan Governor said he wanted to bypass the Circuit Court and go directly to SCOTUS, but it's extremely unlikely that SCOTUS would agree to that, right?

  • 98. DaveM  |  May 20, 2014 at 11:02 am

    >That is, Court of Appeal decisions must be issued before Sept 1, 2014 to be decided by SCOTUS in June 2015, right?

    Correct.

    >If I recall correctly, the Michigan Governor said he wanted to bypass the Circuit Court and go directly to SCOTUS, but it's extremely unlikely that SCOTUS would agree to that, right?

    Also correct.

  • 99. sam  |  May 20, 2014 at 11:04 am

    Glad it's not just me…

  • 100. Dr. Z  |  May 20, 2014 at 11:07 am

    IMO, it's not a circuit split that will force the issue this time – it's the stays. Once any Corcuit court rules in our favor SCOTUS must decide whether to stay that ruling. If they stay then they must take the case. If they don't stay, it's possible they may never take a ME case (if all circuits rule our way.) But once SCOTUS allows ME to become the law in one circuit, the others will follow because SCOTUS will have its hands tied if it ever does take a ME case. After tens or hundreds of thousands of marriages have taken place, SCOTUS will never be able to the toothpaste back in the tube.

    Once the stay is lifted for one circuit, the outcome will no longer be in doubt. That's why they will be driving the outcome.

  • 101. Bruno71  |  May 20, 2014 at 11:08 am

    I guess that can be a matter of opinion. If by trolling one means anyone antagonizing the readership, then surely TKNSC fits that bill. I usually go by a troll being someone who deliberately acts like someone they're not in order to antagonize. TKinSC is more the traditional definition of a troll, but I don't object to your characterization of TKNSC either. But they are DEFINITELY both idiots who make coming to the comment sections on this site less and less comfortable every day.

  • 102. StraightDave  |  May 20, 2014 at 11:08 am

    With ~10M LGBT citizens in the US + 12M PA residents, it's apparent the PA IT admins haven't done any gay-math capacity planning before.

  • 103. sae  |  May 20, 2014 at 11:09 am

    Try the ACLU's twitter feed or facebook page
    https://twitter.com/aclupa https://twitter.com/hashtag/DecisionDayPA?src=hashttps://www.facebook.com/aclupa

  • 104. Michael Grabow  |  May 20, 2014 at 11:10 am

    Yeah, I don't consider the person replying with this to be a "serious commenter":

    Swifty819:
    People like me? One, you don't even know me. If you did, you'd know I'm a Christian that was born with a physical disability. And yet, you go ahead and sling mud at me.
    If you had any respect left, you just lost it.
    Good day.

    TKNSC:
    Christians don't try to undermine marriage. I'm sorry about your physical disability* but I hardly see how it's relevant, or how I "slinged mud" at you.

    *(and, if you're homosexual, your mental one)

  • 105. Bruno71  |  May 20, 2014 at 11:10 am

    Why must they take the case if they stay it? Can't they stay it pending consideration of granting or denying cert?

  • 106. Dr. Z  |  May 20, 2014 at 11:12 am

    I don't agree that they can do "whatever" they want. They cannot throw the judicial branch into chaos, or even create that perception. They are to some extent bound by the body of case law they have created; thus SCOTUS cannot be arbitrary or capricious or unfathomable. The federal and state courts must be able to follow the guidance they set. That means they are not quite the free agent they are sometimes made out to be.

  • 107. Bruno71  |  May 20, 2014 at 11:13 am

    Good point again, I missed that one, how awful. But I still believe this commenter is being honest with his/her opinions, whereas the other is a total fake. That's all I meant by using the word "serious."

  • 108. Michael Grabow  |  May 20, 2014 at 11:14 am

    Fair enough.

  • 109. sam  |  May 20, 2014 at 11:14 am

    Somebody needs to put more cash in the meter.

    Would be somewhat ironic if we crashed the site so they couldn't get the ruling out.

  • 110. weaverbear  |  May 20, 2014 at 11:14 am

    Michael,

    I'm inclined to agree with you. It may sound a bit "Uncle Tom-ish", but if you listen to Ruth Bader Ginsburg when she speaks about Roe, she thinks that blanket decision in favor of abortion rights got arch conservatives to dig in their heels, rather than continue on a more gradual evolution. I'm not certain I agree with her, but in seeing the assault the far right is making on reproductive rights, & the collateral damage that assault is having on women's healthcare in the states where those battles are happening, I'm not inclined to say she's wrong either. (This issue strikes very close to home for me – IANAL, IAAMD (I am an MD, one who provides women's health services.))

    I've been hanging on what's been happening with ME for the past 2 decades, when my husband first asked me to marry him and I said no. Thank God he had the determination to hang in there with me and ask me again (I said no again) and again (this time, I'd seen the light). I'm frankly not surprised that the ME states are clustered in specific geographics. Things have had a chance to spread out from key 'foothold' states (MA, CA & IA) is a way that has almost been organic. The larger straight community in New England, the West Coast and the Northern Mid-west have had an opportunity see that society did not fall apart when gay folk got to marry just like they do. We've become public and concrete in our example as everyday people, who have families, and jobs and who live right next door, rather than some nebulous 'boogieman' out there, to be feared.

    We've won the hearts and minds of the millennial generation. When my nephews from across the country looked at my husband and I and said, "Please tell us you got married" rather than ask if we had, that was a subtle, but telling difference in how their generation sees this issue. The state by state battle we are waging now, while hard on us, is I believe giving the parents and grandparents of the millennials, a chance to catch up with them in their views.

    When my 84 year old mother sends my husband a birthday card addressed to my son-in-law, and when my 87 year-old mother-in-law tells me I'm the best son-in-law she could have hoped for, I know the battle is going our way, that it's only a matter of time.

  • 111. Rik  |  May 20, 2014 at 11:14 am

    I hope this one goes well. I have been noting for sometime that with most of the northeast already blue on the wikipedia map, it makes PA stick out like a sore thumb! They are the only thing blocking the flow of equality :)

  • 112. sfbob  |  May 20, 2014 at 11:19 am

    I have a friend who works for the federal court system in IT. It's not the admins' fault; the courts really got shafted in this year's budget.

  • 113. JayJonson  |  May 20, 2014 at 11:20 am

    Me too. You and many others have taught me a great deal about these cases and the constitutional principles at play.

  • 114. Bruno71  |  May 20, 2014 at 11:22 am

    Also, a site like that doesn't normally get that kind of instantaneous traffic. I don't know if it'd be worth it to them just for these rare occasions.

  • 115. Seth from Maryland  |  May 20, 2014 at 11:22 am

    i think its about to come

  • 116. Dr. Z  |  May 20, 2014 at 11:24 am

    Then consider delegating the responsibility to some of the EoT regulars. Here is a draft set of guidelines for dealing with trolls.

    What is trolling? 
    1. Engaging in behavior that is deliberately disruptive. 
    2. Consistently employing language that is demeaning to LGBT persons. This includes using scare quotes as in gay "marriage." 
    3. Arguing that ME is bad, as opposed to arguing whether DOMA laws are constitutional. 
    4. Engaging in sophistry.

    What is not trolling? 
    1. Arguing that DOMA laws are constitutional – this should be permitted provided such arguments are grounded in legal case law, and that the poster engages in debate with pro-SSM legal arguments. A person like SHOETHROWER who throws out legal justifications against SSM but refuses to debate opposing points of view is a troll. 
    2. Personal disagreements and legitimate differences in perspective. 
    3. Flaming. Flaming is strongly discouraged but it is NOT trolling unless the intent is to demean LGBT persons. 

  • 117. Rik  |  May 20, 2014 at 11:24 am

    how can you tell?

  • 118. Guest  |  May 20, 2014 at 11:24 am

    Who chose the ill scaling infrastructure? Amazon AWS or an equivalent could distribute the decision for a few pennies.

  • 119. Seth from Maryland  |  May 20, 2014 at 11:25 am

    saw a news feed on the twitter feed , it say it come any min

  • 120. sam  |  May 20, 2014 at 11:25 am

    The cruellest thing, i just got an email alert.

    It wasn't the decision.

  • 121. Kevin  |  May 20, 2014 at 11:25 am

    Seconded.

  • 122. sfbob  |  May 20, 2014 at 11:26 am

    I hope so. And I hope we actually get to see it.

    Apart from that I can think of any number of naughty and inappropriate responses to your post (sorry, I just can't help it sometimes).

  • 123. Seth from Maryland  |  May 20, 2014 at 11:26 am

    we won i think

  • 124. Seth from Maryland  |  May 20, 2014 at 11:28 am

    i saw algbt feed that said that said victory

  • 125. sfbob  |  May 20, 2014 at 11:29 am

    At the rate things are going they'll need to read the decision from the courthouse steps.

  • 126. Seth from Maryland  |  May 20, 2014 at 11:29 am

    yea we won

  • 127. StraightDave  |  May 20, 2014 at 11:29 am

    What's the over/under on how many minutes it takes the map to turn blue if no stay is included?

  • 128. Ragavendran  |  May 20, 2014 at 11:29 am

    Ban struck down: http://thenewcivilrightsmovement.com/breaking-fed

  • 129. DaveM  |  May 20, 2014 at 11:29 am

    LGBTYouthAllies says it's on PACER. Raga, can you check?

  • 130. sfbob  |  May 20, 2014 at 11:30 am

    ACLU of Pennsylvania is reporting a favorable decision. The court's website is STILL overwhelmed.

  • 131. DaveM  |  May 20, 2014 at 11:30 am

    Wikipedia's already changed.

  • 132. sae  |  May 20, 2014 at 11:31 am

    WHOOOO HOOO PA!!!!!

    https://www.facebook.com/aclupa

  • 133. Bruno71  |  May 20, 2014 at 11:31 am

    Seen on twitter: "Federal judge in Pennsylvania strikes down state's ban on gay marriage. Former PA Sen. Rick Santorum will now be forced to marry his dog."

  • 134. sam  |  May 20, 2014 at 11:31 am

    Sounds like they gave up with the site and just let it leak…

  • 135. Michael Grabow  |  May 20, 2014 at 11:31 am

    Done!
    http://en.wikipedia.org/wiki/Same-sex_marriage_in

  • 136. Ragavendran  |  May 20, 2014 at 11:32 am

    Link: http://www.scribd.com/doc/225309614/Pennsylvania-

  • 137. Ragavendran  |  May 20, 2014 at 11:32 am

    Link: http://www.scribd.com/doc/225309614/Pennsylvania-

  • 138. Rakihi  |  May 20, 2014 at 11:32 am

    And Pennsylvania's been coloured blue on Wikipedia already.

  • 139. Rik  |  May 20, 2014 at 11:34 am

    I wonder if they have these all ready to go ahead of expected decisions

  • 140. _BK_  |  May 20, 2014 at 11:35 am

    That's always one of the first places I check! They're very speedy in updating the map. Love seeing that blue!

  • 141. sae  |  May 20, 2014 at 11:36 am

    It is now on KYW 1060 (Philly local new radio)

  • 142. StraightDave  |  May 20, 2014 at 11:36 am

    I'm sure they do. They've probably already got the 2015 version lined up now :)

  • 143. Rose  |  May 20, 2014 at 11:37 am

    Now, has a stay been requested or granted?

  • 144. StraightDave  |  May 20, 2014 at 11:38 am

    He just might like that!

  • 145. sam  |  May 20, 2014 at 11:38 am

    I love the paragraph naming

  • 146. sfbob  |  May 20, 2014 at 11:40 am

    We knew we could depend on you, Ragavendran.

  • 147. Rik  |  May 20, 2014 at 11:41 am

    While Windsor ,the most recent apposite pronouncement by the Supreme Court, offers little concrete guidance, we glean from it and other Supreme Court jurisprudence that heightened scrutiny is, at minimum, not foreclosed. Indeed, in the tea leaves of
    Windsor and its forebears we apprehend the application of scrutiny more exacting than deferential.

    Having concluded that classifications based on sexual orientation are quasi-suspect, we proceed to apply intermediate scrutiny to the Marriage Laws inconsideration of their constitutionality.

  • 148. Corey from Maryland  |  May 20, 2014 at 11:42 am

    And by a George W Bush appointee. NOM, read it and weep!

  • 149. sfbob  |  May 20, 2014 at 12:06 pm

    1. Baker vs Nelson rejected as controlling precedent in light of "doctrinal developments." Judge Jones goes on to cite each and every decision from Windsor going forward. And rejects's the state's contention that the SCOTUS-imposed stay on Kitchen was based on Baker as "speculation."
    2. The state's further claim that the plaintiffs couldn't demonstrate a "harm" was likewise struck down. Of course there's harm both "cognizable" and "personal" (and therefore redressable) when the state refuses to grant you a marriage license or recognize your out-of-state marriage.
    3. Right to marriage is fundamental and resides with the person. Judge Jones goes on to cite the usual cases: Loving, Turner vs Safley (recognized the right of incarcerated persons to marry). This right is protected by the Due Process Clause of the 14th Amendment.
    4. The same logic requires that legal marriages from other states must be recognized. (Here Judge Jones cites several recent decisions in other marriage cases)
    5. No definitive Third District ruling involving sexual orientation. Windsor permits application of heightened scrutiny. Here we see the same reasoning as applied elsewhere, mainly that the level of analysis applied in Windsor does not appear to reflect "rational basis" and therefore there is every reason to use heightened scrutiny. See also Romer, Lawrence and, of course, SmithKline Beecham. Sexual orientation meets the definition of "suspect class." Apparently Pennsylvania advance the somewhat novel theory that while other places might have discriminated based on sexual orientation, Pennsylvania has not. Plus "things have gotten better lately." Judge Jones rejects this argument.
    6. Law tossed out as a violation of Due Process and Equal Protection. An order will be forthcoming. No mention of a stay in the decision. Stay tuned.

  • 150. sfbob  |  May 20, 2014 at 12:13 pm

    In case anyone had been worried, Judge Jones also issued the decision that banned teaching "intelligent design" as science.

  • 151. F Young  |  May 20, 2014 at 12:19 pm

    Yes, they have the map updated literally within minutes of the first report. Seconds even?

    I wish I knew how to thank them.

  • 152. Randolph Finder  |  May 20, 2014 at 12:31 pm

    But the dog won't. :)

  • 153. Randolph Finder  |  May 20, 2014 at 12:31 pm

    Yup. All Blue. :)

  • 154. Randolph Finder  |  May 20, 2014 at 12:33 pm

    The person who did that particular change is Tinmanic. https://en.wikipedia.org/wiki/User_talk:Tinmanic

  • 155. Randolph Finder  |  May 20, 2014 at 12:35 pm

    No, but not too difficult to change and re-upload. The states all have coding, so it isn't like using a fill tool, but rather simply changing underlying text.

  • 156. Lee  |  May 20, 2014 at 12:38 pm

    A Bush Jr appointee makes a ruling in our favor some right wing heads are spinning.

  • 157. Margo Schulter  |  May 20, 2014 at 1:38 pm

    Like Judge McShane yesterday, Judge Jones finds discrimination by sexual orientation, rather than also by gender (p. 24. n. 9_). which he finds “less compelling.” This suggests that the gender discrimination claim needs to be clarified and tied to gender role stereotypes which do play a part in these marriage bans (e.g. “Moms and dads are not interchangeable”).

    But the holding here for sexual orientation as a quasi-suspect class subject to intermediate scrutiny — while noting the rulings of other courts that not even rational-basis scrutiny is met — is significant, with Justice Scalia quoted to support this conclusion (p. 25).

  • 158. ebohlman  |  May 20, 2014 at 2:36 pm

    According to Wikipedia, briefing in the two Louisiana cases was supposed to be completed last week.

  • 159. ebohlman  |  May 20, 2014 at 2:38 pm

    Be aware that the job market for new law school graduates is fairly saturated right now, though that might not be the case three years from now.

  • 160. Biff  |  May 20, 2014 at 2:39 pm

    Do you have the Wikipedia link?

  • 161. guest  |  May 20, 2014 at 2:44 pm

    then please stop replying to all his comments!

  • 162. Ragavendran  |  May 20, 2014 at 2:49 pm

    Yup. A hearing in the consolidated cases, Robicheaux, is scheduled for June 25.

  • 163. Ragavendran  |  May 20, 2014 at 10:11 pm

    NOM has almost until the end of August to file a brief with the Ninth Circuit arguing why it should be allowed to intervene in Geiger. Apparently, it decided to wait it out rather than move SCOTUS with an emergency stay. It continues to surprise me.
    http://www.oregonlive.com/politics/index.ssf/2014

  • 164. StraightDave  |  May 20, 2014 at 10:57 pm

    By August, everybody in OR will already be married (except the cats and dogs), so it's pointless.

    But really – 90 days for intervention?!?!? Isn't the case now closed? I assume there is no outstanding appeal, since NOM would have to actually be in the case before they could appeal. Doesn't smell right to me.

  • 165. ragefirewolf  |  May 21, 2014 at 5:34 am

    Don't feed the troll!

  • 166. Ragavendran  |  May 21, 2014 at 5:58 am

    Well, NOM is appealing the order denying intervention, which it has standing to do. In the unlikely event that NOM convinces the Ninth circuit that it should be allowed to intervene, McShane's order will be vacated and briefs refiled and motions reheard. But we all know that's not going to happen.

  • 167. Rose  |  May 21, 2014 at 6:01 am

    I don't believe NOM will prevail.

  • 168. Deeelaaach  |  May 22, 2014 at 4:45 am

    Seconded. Since there are four replies before me, does that mean I'm sixthing his post, to coin a new word?

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