Sign Up to Receive Email Action Alerts From Issa Exposed
×

Fifth Circuit won’t fast track Texas same-sex marriage case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Texas state sealDeLeon v. Perry, a challenge to Texas’ same-sex marriage ban, is in the Fifth Circuit Court of Appeals after state officials appealed the federal judge’s preliminary order holding the ban unconstitutional.

The plaintiffs had asked the Fifth Circuit for a fast-tracked appeal in that court – the district court proceedings are stayed until the preliminary injunction issue is resolved – and state officials opposed the request. Although the state defendants never filed a brief in opposition to fast-tracking the appeal, the Fifth Circuit has denied the request without analysis or explanation.

There’s no timeline for briefing and argument set in the appeal.

The order was signed by Judge James Graves, who was nominated by President Barack Obama.

Thanks to Kathleen Perrin for these filings

For more information on De Leon v. Perry from The Civil Rights Litigation Clearinghouse, click here.

101 Comments

  • 1. Ragavendran  |  May 22, 2014 at 8:08 am

    I just mentioned this under a previous post, but it is more relevant here: This appeal should still have a faster-than-normal processing schedule, as it is a preliminary injunction appeal. Fifth Circuit Rule 47.7 provides:

    The following categories of cases are given preference in processing and disposition: (1) appeals in criminal cases, (2) habeas corpus petitions and motions attacking a federal sentence, (3) proceedings involving recalcitrant witnesses before federal courts or grand juries, (4) actions for temporary or preliminary injunctive relief, and (5) any other action if good cause therefor is shown.

    http://www.ca5.uscourts.gov/clerk/docs/5thcir-iop

  • 2. SeattleRobin  |  May 22, 2014 at 8:31 am

    More proof I guess that which President nominated the judge isn't a basis for guessing outcomes in these cases. Here's an Obama appointment putting the brakes on for no discernible reason.

  • 3. Rose  |  May 22, 2014 at 8:40 am

    All it means is it will EVENTUALLY get heard and DON'T expect a ruling in our favor, which will give us a split in rulings and head this to SCOTUS probably sooner than later….just my thoughts!!!

  • 4. Scottie Thomaston  |  May 22, 2014 at 8:42 am

    I wouldn't say it's putting the brakes on it, really. They are just choosing not to speed up the process.

  • 5. Michael Grabow  |  May 22, 2014 at 8:46 am

    I am confident that we will not see a single loss in court.

  • 6. StraightDave  |  May 22, 2014 at 8:58 am

    Logically, I agree we should not. What would a loss even look like these days? How could a plausible argument be constructed? Is there even a thin reed to grasp on to? To me, there's not even a scrap someone could cleverly exploit in an honest way.

    Now, if the judges were dumb or biased, sure. We've seen a couple already that are likely to vote us down – Kelly in the 10th, Niemeyer in the 4th, the District judges in NV & HI (who already did). At appellate level, one bad egg can get outvoted, so it's the district courts where we are still vulnerable.

  • 7. Chad  |  May 22, 2014 at 8:58 am

    not going to be a loss and DEF not going to be sooner rather than later Rose, as he just denied request to expedite. I don't anticipate any circuit splits. ME may become law of the land w/o ever reaching the Supreme Court.

  • 8. Andrew  |  May 22, 2014 at 9:07 am

    I agree. The slower this goes through the circuits the better, it gives the public time to change their opinions, and the more lower court rulings in favor of ME before an appeal, the better. If all circuits rule before SCOTUS can accept the case, and if the all rule the same, SCOTUS won't here the case. It would not look good for the institution of SCOTUS to appear so out of step with EVERY other court in the nation.

  • 9. Bruno71  |  May 22, 2014 at 9:19 am

    It'll be interesting to see of all the cases upcoming in district courts which judges act on their own prejudices against gay people. I'm not optimistic enough to think there aren't any, even post Windsor.

  • 10. Bruno71  |  May 22, 2014 at 9:22 am

    Especially if the 5th has to follow a great number of pro equality rulings, it may be harder for them to controvert such a wealth of jurisprudence in our favor that came before then.

  • 11. Warren  |  May 22, 2014 at 9:30 am

    I think this is one of the cases that the SCOUTS might accept if the Fifth Circuit upholds the TX ban on same sex marriage.

  • 12. Rose  |  May 22, 2014 at 9:34 am

    You forget, we already have a loss in the 8th pre-Windsor and that may be enough to send one to SCOTUS…….and you DON'T have to agree with me, but to think that we WON'T have any losses is just a bit wrong in my opinion!!!

    We have had losses already in Nevada and Hawaii at the District level, and though I DON'T want to see any losses, the reality is that we will see one post-Windsor and to ignore that is just setting one's self up for heartache…IMPO!!!

  • 13. Ragavendran  |  May 22, 2014 at 9:37 am

    I am not sure what the history of SCOTUS taking up preliminary injunction appeals is, but I personally haven't heard of any such situations being granted cert. (Someone with more case law knowledge should feel free to correct me here.) I would guess that even if the Fifth Circuit reverses the preliminary injunction granted by Judge Garcia and the plaintiffs appeal that to SCOTUS, it is unlikely to grant cert because it is an temporary order. The district court case will then pick up where it left off, and hopefully, proceed to a swift final decision. And of course, that will be appealed again, and so on. And besides, I am not even sure that a reversal of a preliminary injunction would constitute a circuit split, as it is not a final decision that is being appealed.

    Moreover, the four factors that must be considered for a preliminary injunction are very similar to those for a stay. This alone might be reason enough for a very conservative Fifth Circuit panel to cite to SCOTUS's Kitchen stay and say that a preliminary injunction is not warranted here. That would also allow them to dodge the issue of considering the merits of the case altogether. Maybe I'm speculating too much here… what do y'all think?

  • 14. Michael Grabow  |  May 22, 2014 at 9:46 am

    Seeing a loss post-Windsor isn't a "reality", it's a possibility.

  • 15. Margo Schulter  |  May 22, 2014 at 9:46 am

    Rose, I very much agree that we need to be open to the possibility of some loss(es) somewhere as our case goes through the various federal district and circuit courts. The open question is whether pre-Windsor cases will be perceived by SCOTUS as really having the force of a circuit split in more than a technical sense, as opposed to a split in post-Windsor circuit decisions. Having the Fifth Circuit rule later rather than sooner might actually help us, as others have suggested.

  • 16. Zack12  |  May 22, 2014 at 9:52 am

    Diarmuid O'Scannlain of the 9th circuit will certainly act on his prejudices if he gets the marriage equality cases.
    I strongly suspect he's the one that asked for the en banc hearing on Smithkline.
    Even if they uphold it, it has delayed hearing the marriage equality cases which I suspect was the whole point.
    He can't put aside his religious beliefs anymore then Scalia can.

  • 17. Warren  |  May 22, 2014 at 9:58 am

    Did the 8th case use Baker Vs Nelson to support the ban? Any case accepted by the SCOTUS should make Baker vs Nelson irrelevant. The 9th Circuit will over rule the District Courts ruling based on SmithKline Beecham v. Abbott. So, far it looks like TX might be the only case we may lose. However, you really don't know until the ruling is released.

  • 18. Corey in Seattle  |  May 22, 2014 at 10:01 am

    I am not a lawyer, so I could be far off base, but SCOTUS issued its stay in Kitchen until the Tenth could rule on it. It was not stayed indefinitely.

    In this case, it seems the preliminary injunction would expire anyway, at the very moment a Kitchen-like stay would, so why would they? To stay such a preliminary injunction until the Fifth ruled would have no effect, because this is already what happens. Or so I read it, anyhow.

  • 19. Zack12  |  May 22, 2014 at 10:10 am

    Yes they did but that was Pre-Windsor. It's a whole different ballgame now.

  • 20. jdw  |  May 22, 2014 at 10:25 am

    Hard to see this as a negative. There are Circuits where we'll get decisions that are likely to be extremely positive. I'd just as soon see the 5th take it's time with this while the 10th and 4th hand down their decisions, and perhaps the 9th can get off their asses on Sevcik.

  • 21. Steven  |  May 22, 2014 at 10:59 am

    ** Why is everybody saying we will lose at 5th Circuit of Appeals? Please stop it!! We will see what happens.. We don't know that for a fact: We can take a good step at a time.. As now I believe other districts upholds marriage equality cases and if one district does not SCOTUS could say RECONSIDER The case before appealing to us… In that way, the district, like 5th, would have a very hard explaining why their decisions are different and opposite of other cases… I believe SCOTUS wanted hold off on full marriage equality ruling before we get more states and cases aboard…

  • 22. Bruno71  |  May 22, 2014 at 11:15 am

    No doubt we've seen a few bigots a the circuit appeals level already.

  • 23. Phillip  |  May 22, 2014 at 11:48 am

    The fifth circuit will say the gay marriage ban is legal because the circuit is full of very conservative members. Look at every major Supreme Couft ruling that had major cultural charges like roe v wade or the flag burning case. They all stem from Texas. Texas will most likely be the only case that goes against gay marriage. If by some chance the fifth circuit says gay marriage is legal then it might never get to the Supreme Court. If you support gay marriage you should hope the fifth goes against gay marriage so gay rights are deemed constitutional

  • 24. Steven  |  May 22, 2014 at 12:02 pm

    We don't know that!!! Please stop it Remember before Prop 8 case most everybody in LGBT community was saying its too soon when AFER took the case,.. Where are we now? I believe SCOTUS will take a case if they decide differently than other cases.. That's why they "hold off" on a marriage equality ruling…

  • 25. Ragavendran  |  May 22, 2014 at 12:03 pm

    I used to think the same way. I even thought that it would be nice for the panels of the 10th and 4th circuits to have a casual chat at some Starbucks to toss a coin to decide that one of them rules for and the other rules against so the issue would be all but certain to be forced down the Supremes' throats during their upcoming term. But I'm starting to rethink my superficial view now. I think the reason one would prefer that the circuit courts unanimously strike down gay marriage bans is that the issue will then have a good chance of getting resolved without ever getting to the Supreme Court. Even the most experienced readers of the Supremes' tea leaves cannot predict with high confidence that the Court will rule in favor of same-sex marriage if it gets there. A negative ruling at the SCOTUS level would be an enormous blow, as (depending on how sweeping it is) it will bind almost every court in the nation to uphold their state constitutional marriage bans. Not to sound pessimistic here, just want to be realistic.

  • 26. grod  |  May 22, 2014 at 12:04 pm

    Will we not know by May 23 the 9th circuit appeal court the outcome if en banc vote in SmithKline Beecham v. Abbottcase. If no re-hearing then a final order can be issued, and the court can proceed with Sevcik

  • 27. Bruno71  |  May 22, 2014 at 12:04 pm

    The Texas case was ruled in our favor at the district level. The 5th Circuit is in New Orleans. Also, if all circuits deem gay marriage legal, then we don't need the Supreme Court on the issue. There are other issues which may get us a higher level of scrutiny later on from SCOTUS.

  • 28. Bruno71  |  May 22, 2014 at 12:09 pm

    "Even the most experienced readers of the Supremes' tea leaves cannot predict with high confidence that the Court will rule in favor of same-sex marriage if it gets there. " I'm not sure about that. Given the voting records on LGBT issues by the 5 Windsor majority justices, I think the only way they could go against us is if the personnel of the court changes. Then again, I'm not an experienced tea leaf reader so much as an interested observer.

  • 29. AndyinCA  |  May 22, 2014 at 12:09 pm

    Also, remember a circuit split isn't needed for SCOTUS to take the case. They may have forced themselves to take an ME case (particularly the Utah one), by explicitly staying Shelby's ruling.

    Although, the more I think about it, there is a ton of healthy national debate happening, so the more courts that rule on ME without (or prior to) SCOTUS taking it, the better for us all in the long term. Justice Ginsburg was right, after all.

  • 30. Bruno71  |  May 22, 2014 at 12:10 pm

    If the 4th and/or 10th rule in our favor, we have a circuit court split already with the 8th. Voila.

  • 31. Zack12  |  May 22, 2014 at 12:15 pm

    Hopefully they will be in the dissent category.

  • 32. Zack12  |  May 22, 2014 at 12:20 pm

    Pre Windsor though.
    More to the point, Scotus doesn't take up anything until they want to. They could choose to wait next term if we get favorable rulings.

  • 33. Bruno71  |  May 22, 2014 at 12:26 pm

    Yes, I agree. The timing has always been the top concern here I think, not what's on their plate. Of course, they have to grant or deny cert to these cases, but they'll do it however they want. But if people are using the circuit split argument, in truth the 8th's ruling does count, even if it's pre-Windsor.

  • 34. Mike in Baltimore  |  May 22, 2014 at 12:33 pm

    When Circuit Court judges are nominated, it is almost mandatory that at least one Senator from the nominees' home state agree to (and sponsor) the nomination. A distant second choice is to get a Senator from another state in the Circuit (Senator Landrieu is NOT necessarily a safe bet for a Dem. President and nominee, certainly not for a liberal nominee). Third choice is to get a senator from an adjoining state to agree to and "sponsor" the nominee. Of all the states surrounding the 5th, New Mexico is the 'safest', but it still is not very 'safe' for the liberal side of the aisle. OK? AR? TN? AL? Not at all.

    The 5th Circuit is composed of the states of Texas, Louisiana and Mississippi (I don't think you can get a more conservative trio of states). States that individually are more conservative? Maybe (OK comes to mind), but not a trio of contiguous states comprising a single Circuit.

    Realistically, right now there is very little opportunity for a re-making of the 5th Circuit. Maybe in a decade or two, but not right now.

  • 35. Duster  |  May 22, 2014 at 1:00 pm

    Or we can get Democrat presidents that will hopefully make the SCOTUS more liberal to put thee conservative 5th circuit in its place.

  • 36. Pat  |  May 22, 2014 at 1:05 pm

    Also, you mention above that the Texas case is special because it is a preliminary injunction appeal. Does that mean that if the 5th Circuit rules against marriage equality, that would not really constitute a circuit split with other likely wins in the 10th and 4th?
    And therefore this might not even incite SCOTUS to take a case to resolve that.

  • 37. Ranjit  |  May 22, 2014 at 1:09 pm

    Without thinking about any timeline, the next three Justices who are likely to retire are Breyer, Bader-Ginsburg, and Kennedy. So for the forseeable future you would need a Liberal (Democrat ?) President with a co-operative Senate just to make sure that SCOTUS isn't pulled even further to the Right.

  • 38. Ragavendran  |  May 22, 2014 at 1:22 pm

    I'm not sure I understand. The issue before the Fifth Circuit is not whether to stay the preliminary injunction issued by Garcia, it is whether to overturn it and let the case proceed to trial or summary judgment at the district court level.

  • 39. Ragavendran  |  May 22, 2014 at 1:44 pm

    Well, again, I put on my speculator and tea leaf reader hat here and this is also based on a conversation I had with a lawyer friend about the oral argument in Hollingsworth last year. I'm also going to try to temporarily put on an opponent lawyer's hat for this comment.

    Take Justice Kennedy, admittedly a guy who has historically been a big advocate of federalism, state's rights, but in a few cases, has recognized individual fundamental right violations of such great magnitude that he voted to strike down such laws. Here's a couple of his statements last March:

    JUSTICE KENNEDY: I — I think there's -­ there's substantial — that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more.

    JUSTICE KENNEDY: The problem — the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was.

    So, Kennedy's position on the whole child-rearing argument resonates pretty much with Judge Holmes's position in the recent Tenth Circuit argument. Both of them seem to recognize that at best, the research is inconclusive. And so, in Judge Holmes's words:

    JUDGE HOLMES: […] It seems to me, […] under rational basis review, I don’t see how you win. Because they have a… because if it’s inconclusive, and they have a risk, and they have a valid basis to address it.

    Thus, Kennedy might just be inclined to go with the State's judgment on this factor and say states have the right to decide what to do with this inconclusive factor. This would also be totally consistent with his Windsor opinion, where he was only talking about "state sanctioned marriages" and his continued references to the state's "decision" to extend the right of marriage to same sex couples. Of course, this logic then also is in favor that he should find state marriage recognition bans unconstitutional.

    Moving on to Loving, yes, he made a citation to that case in Windsor to bring out a constitutional disclaimer, but notice his subtle attempt to distance the same sex marriage situation from the interracial marriage situation during oral argument in Hollingsworth:

    MR. OLSON: […] And — and I don't want to abuse the Court's indulgence, that what I — you suggested that this is uncharted waters. It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial — prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.

    JUSTICE KENNEDY: It was hundreds of years old in the common law countries. This was new to the United States. So — so that's not accurate.

    Again, he attempts to shield his skepticism regarding gay marriage being a brand new social construct from criticism especially pertaining to the Loving comparison.

    My reasoning might have some flaws, and please do point them out, but going by the above, I think that while Kennedy might be comfortable striking down the recognition portion of state bans (as those marriages are also state sanctioned, by other states), he might be less likely to strike down marriage bans entirely. This is why perhaps it is better that SCOTUS wait until next year to take up an appeal from a case that only seeks marriage recognition.

    Okay, now I take off all the hats that I put on at the beginning of this comment :)

  • 40. Ragavendran  |  May 22, 2014 at 1:57 pm

    I'm not sure, Pat. I guess it would depend on how the Fifth rule – how much of the merits they wish to delve into. They could decide that a preliminary injunction is not warranted and the case should proceed to trial or summary judgment without one, without getting too much into the merits (of course, they have to, to discuss the "likelihood of success" factor). Also, I'm not sure that SCOTUS frequently entertains appeals of preliminary injunctions – I do not know enough case law to make a definite statement. The last case I know of is in 2008, Winter v. Natural Resources Defense Council where the Supreme Court ordered a vacatur of a preliminary injunction affirmed by the Ninth Circuit, taking issue with the way the lower court balanced of the four-factors, and not addressing the merits of the case. One report of this case noted:

    This case was accepted by the Supreme Court in an unusual posture: as a challenge to a preliminary injunction, rather than to the merits of petitioners’ statutory claims.

    http://en.wikipedia.org/wiki/Winter_v._Natural_Re

  • 41. Ragavendran  |  May 22, 2014 at 2:12 pm

    Regarding the Kitchen stay, that was only a stay until the Tenth Circuit ruled, so it doesn't obligate them to take up the case. If they grant another stay after the Tenth rules, then that might obligate them into taking up the appeal. I personally don't believe they would do that.

  • 42. JayJonson  |  May 22, 2014 at 3:20 pm

    The problem with this analysis is that those comments that Justice Kennedy made in the oral arguments bear no resemblance whatever to what he actually wrote in Windsor, where he didn't dither about whether gay people were good parents. Instead, he forcefully attacked DOMA for the harm it did to the children of gay parents.

  • 43. Ragavendran  |  May 22, 2014 at 3:41 pm

    Again, I'm taking the adversarial role here (and in all future comments just in this thread) for a moment. I noted that that his oral argument comments were consistent with his Windsor opinion because he didn't have to address the parenting factor when talking about state sanctioned marriages. Being a strong federalism-nut, he was 100% deferential to the states in Windsor. As far as he was concerned, the fact that the state chose to confer the right of marriage upon same sex couples was enough. He didn't have to take a position on the parenting argument because it wasn't necessary – he could give a rat's ass what the federal government cared about gay parenting – those arguments simply were not relevant. But in the absence of a state not having made that decision to grant the right to same sex couples, he is very wary of entering the "uncharted waters" like he said during oral argument.

  • 44. jdw  |  May 22, 2014 at 3:41 pm

    I'm at a loss why people think this will only go up if there's a conflict among Circuits. Was there one when they took up Perry?

  • 45. Ragavendran  |  May 22, 2014 at 3:45 pm

    I think people think the chances of it going up are much better if there's a conflict. Yeah, you are right – there doesn't have to be a conflict. And yes, I believe Bruning (upholding Nebraska's ban in 2006) was a conflicting case back then.

  • 46. davep  |  May 22, 2014 at 3:49 pm

    No, but there is a good chance that they took up Perry largely so they could address the separate issue of whether defendant interveners have standing to appeal. The state of CA said they did, and the 9th relied on that and agreed, and SCOTUS ruled no, they do not. Letting that situation stand could have opened a huge Pandoras box on any number of issues beyond ME. In that SCOTUS ruling, they never did weigh in on the merits of the Prop 8 decision at all, just the question about standing for defendant interveners.

  • 47. JayJonson  |  May 22, 2014 at 4:08 pm

    But while Justice Kennedy invoked the federalist argument to say that the valid marriages in New York could not be dishonored by the federal government, that was not the sole or even the most important part of his decision. He also made the central question of same-sex marriage an equal protection issue, in which gay couples were singled out simply to be made unequal, and he expressed particular sympathy for the effect such unequal treatment had on gay and lesbian families, including the children of gay and lesbian parents. Were he really concerned that gay marriage was like entering "uncharted waters" he would not have written Windsor the way he did. If his only concern was state's rights, he would have limited his opinion to striking down DOMA because it violated state's rights and said nothing about equal protection. Since he did not so limit his analysis, it is very difficult to see how a state ban on same-sex marriage can overcome the equal protection/due process violations that the majority opinion in Windsor found in the section of DOMA that they struck down.

  • 48. JayJonson  |  May 22, 2014 at 4:14 pm

    Yes, you are right. The standing issue turned out to be one in which a very unusual coalition was cobbled together to dismiss Perry. It teases my imagination to wonder what kind of decision Justice Kennedy would have written about Perry, had he been able to persuade Ginsburg, Breyer, and Kagan to join him and Sotomayor in reaching the merits of the case. I suspect that he simply poured into Windsor some of his passion for equal rights that would have been the core of the decision he wanted to write in Perry. But, of course, that is only speculation.

  • 49. Bruno71  |  May 22, 2014 at 4:17 pm

    They took it up because Roberts wanted to get at the standing issue and the other 3 conservatives wanted to overturn the 9th's decision. But let's not forget that saying that those intervenors have no standing is a statement in and of itself. SCOTUS says that the average heterosexual person and their marriages are not hurt by same-sex couples marrying, even if they said it in a roundabout way.

  • 50. JayJonson  |  May 22, 2014 at 4:23 pm

    Precisely.

  • 51. Ragavendran  |  May 22, 2014 at 4:24 pm

    Yes, he brought out an equal protection issue, and rightly so he should have, in which a subset of gay married couples were singled out from the set of all married couples. He was concerned about the equal protection issue there in addition to federalism. Every single mention of about the children is in a paragraph where he clearly refers to married same sex couples. And I just did a simple search of the opinion and found that Kennedy has taken the utmost care to qualify, without exception, every single mention of same sex couples within the married context. And as if that wasn't clear enough, he said in the end that "this opinion and its holding are confined to those lawful marriages."

    I'm not saying he is not sympathetic to children of unmarried same sex couples who wish to be married – I think it very likely that he is, but that does not follow, in a strict sense, from his Windsor opinion. (If he is sympathetic to the children of unmarried same sex couples and cares about their welfare and benefits, and I believe he is, then he could say that, as far as this parenting factor is concerned, a state that allows same sex couples to adopt cannot rationally raise this as an issue in denying them the right to get married.)

  • 52. Ragavendran  |  May 22, 2014 at 4:28 pm

    He seemed to be exploring during oral argument the possibility of a DIG. He could also have affirmed the Ninth Circuit's ruling (narrow grounds applying only to CA) which would have had the same effect anyway. (I'm speculating too.)

  • 53. Tef  |  May 22, 2014 at 6:51 pm

    The only thing that may be of some concern is that I have heard it said that the Fifth Circuit, based in New Orleans, is one of the Most Conservative courts in the country. However, with all of the precedents in other regions and states they will surely have to contend with that as well in issuing their ruling which of course can still be appealed to the highest court. I just hope they can be fair about it.

  • 54. Dren  |  May 22, 2014 at 7:06 pm

    It is a real shame that the Texas Attorney General, Republican Greg Abbott, now running for governor, has to spend all of those Millions of dollars fighting an issue that concerns working, tax-paying, and voting citizen’s human and civil rights! Just think of what else that money could be used for. For better schools, bridges, roads, farmers, cleaner water, jobs etc. But no, Conservatives in that red state with their one-track mind feel they need to defend the indefensible. That’s truly sad and they’re doing it at Our Expense!

  • 55. TxLawyer  |  May 22, 2014 at 7:17 pm

    "This opinion and its holding are confined to those lawful marriages."

    Please define "those lawful marriages" to which Windsor applies.

  • 56. Ragavendran  |  May 22, 2014 at 7:35 pm

    Marriages legally performed in states that allow them.

  • 57. Bruno71  |  May 22, 2014 at 7:50 pm

    I always appreciate "devil's advocate" or even pessimism. I find it quite helpful to know all sides and all possibilities.

    There's no question in my mind that Kennedy was and probably still is hesitant to make a national ruling overturning all those bans prematurely. The other liberal justices are hesitant too. The problem for them is that as much as we all tout that SCOTUS is all-powerful and can do what it wants, it really does have to work within the framework of its own rules of jurisprudence. So, SCOTUS can't have a case come before them and say "well we won't say there's a constitutional right to SSM and we won't say there isn't, we're just not sure yet. Come see us in 10 years." Their options are a) grant cert and constitutional right to SSM b) grant cert and no constitutional right to SSM c) deny cert. I feel that despite the hesitancy on the topic of the timing, there's no way the 5 Windsor judges will ever vote that there is no constitutional right to SSM. They'll either tackle the issue or punt by denying cert. If their hand is forced by the conservative justices again, I truly and strongly believe they will go with option a.

  • 58. Bruno71  |  May 22, 2014 at 8:17 pm

    Disagree. Kennedy likes to rule as narrowly as possible. If a case came before him that only dealt with out-of-state recognition, he'd be just fine with ruling narrowly.

  • 59. Zack12  |  May 22, 2014 at 8:41 pm

    Which means they would punt on the 10th and 4th if they rule in our favor, as that's a ban on all of it.

  • 60. SeattleRobin  |  May 22, 2014 at 8:48 pm

    Plus, the recognition issue deals more closely with due process. I'm not sure that aspect has been highlighted enough in these cases because they focus so much on equal protection. But the idea behind due process is that you can't take something from a group of people by fiat. You have to go individually and prove your case against them.

    When a married couple moves to a non-recognition state, they don't just lose the social construct of marriage, they are deprived of property by the state, but without any judicial proceeding.

  • 61. Bruno71  |  May 22, 2014 at 8:55 pm

    If the conservatives are loath to grant cert this time, I would think there would be a good possibility of that happening in those cases. I do, however, think that Kennedy won't shy away from the national ruling if he must address it. I think he was ready to in the Hollingsworth case if the standing off-ramp hadn't been taken, and I think it would've been favorable to us.

  • 62. Bruno71  |  May 22, 2014 at 8:56 pm

    That seems to me a very important point. A state could probably get away with recognizing the marriage as something else though, like a civil union or whatever they'd want to rename it.

  • 63. Zack12  |  May 22, 2014 at 9:13 pm

    I do as well.
    But if we're going to wait on a narrow ruling, it'd come from the 6th as believe those are the places where the recognition lawsuits are all coming from.

  • 64. Zack12  |  May 22, 2014 at 9:14 pm

    Which is going to be a problem for a lot of those states since they ban those as well.
    They shot themselves in the foot doing that. It only proves animus even more.

  • 65. Bruno71  |  May 22, 2014 at 9:36 pm

    Well, this hypothetical SCOTUS ruling would overturn those bans to the point where they'd HAVE to recognize the marriages as SOMETHING. How they addressed it and with what nomenclature, they'd have to figure it out.

  • 66. StraightDave  |  May 22, 2014 at 9:49 pm

    Not an option, see Brown v Board of Ed..
    "separate is inherently unequal"

    It's all or nothing, and "nothing" doesn't fly anymore..

  • 67. Ragavendran  |  May 22, 2014 at 9:58 pm

    Yes – a recognition case isn't gonna be ready for SCOTUS until their 2015 term, so it's likely they punt on the 10th and 4th this term and take up a recognition case next term.

  • 68. TxLawyer  |  May 23, 2014 at 4:05 am

    you might note that the 10th circuit appeal is not over until it issues its mandate. If a cert petition is filed with SCOTUS and SCOTUS accepts, then the 10th circuit will not issue its mandate until the SCOTUS disposition … so if SCOTUS finds error and remands, then the 10th circuit appeal will resume. Thus, the Kitchen stay is really a stay until SCOTUS has ruled or denied cert.

  • 69. TxLawyer  |  May 23, 2014 at 4:17 am

    Right – but Kennedy was referencing states that VOLUNTARILY recognized SSM (i.e. by state action). So how does that apply in a state where a ban has been struck down?

  • 70. StraightDave  |  May 23, 2014 at 5:51 am

    Doesn't that mean that Kitchen could be in limbo for a long time? If UT spends their 90 days before requesting cert and then SCOTUS wastes another 2 months like it did in Hollingsworth, does the stay remain in effect that long since the mandate cannot be issued in the meantime?

    What I'm starting to hear is that the 10th's stay lasts until the mandate, not simply until the initial ruling, even if SCOTUS does not specifically grant its own further stay. Is that right?

  • 71. StraightDave  |  May 23, 2014 at 5:59 am

    A poor layman would think that it's obvious that the marriage right attaches to the individual, which the Feds cannot then take away or dilute. Whether the respective state was officially "happy" about the situation would be quite irrelevant. I would think the fact of the marriage is the salient point. The substance of a right cannot depend on how that right was achieved (court, legislature, referendum), or who else is grumbling on the sidelines.

    IANAL

  • 72. JayJonson  |  May 23, 2014 at 6:33 am

    That is certainly the interpretation that the federal government has given to Windsor. Otherwise, it would recognize only the marriages that are recognized by the state of residence in which the couple resides. My husband and I live in a red state that does not recognize our Massachusetts marriage, but the feds do. I suspect, however, that if Romney had been elected President, the feds would read Windsor as narrowly as Ragavendran does in his devil's advocate mode. But all the post-Windsor district court rulings has read Windsor much more broadly than that.

  • 73. DaveM  |  May 23, 2014 at 6:55 am

    SCOTUS' stay is "pending the disposition of the appeal." Which means the stay is in effect until the appellate court issues their Mandate.
    http://www.law.cornell.edu/rules/frap/rule_41

    Basically – the Mandate issues after the 14-day clock for rehearing/en banc petitions runs out, and even then the losing party can request a 90-day stay pending disposition of their (as-yet unfiled Certiorari petition) – which the Circuit Court could choose to grant, or SCOTUS could choose to grant.

  • 74. Ragavendran  |  May 23, 2014 at 7:11 am

    No, I don't think Kennedy makes that distinction.

  • 75. Ragavendran  |  May 23, 2014 at 7:15 am

    Oh, you're right! Thanks for pointing that out. Sheesh, is this a downer or what!

  • 76. Valquiria  |  May 23, 2014 at 7:23 am

    Scalia is 78, older than both Kennedy (77) and Breyer (75).

  • 77. Retired_Lawyer  |  May 23, 2014 at 7:26 am

    The stay would remain in effect until issuance of the mandate by the 10th Circuit, but the mandate would not be issued, and the stay would continue in effect if a petition for certiorari is filed. It would not end until and upon final disposition by the Supreme Court. So, yes, Kitchen v. Herbert could be in the legal mill for a long time. If the Supreme Court were to deny cert, then the clerk of the 10th Circuit would enter the mandate and the stay would automatically end. If the Supreme Court were to grant cert, then it would have jurisdiction of any issues regarding stays.

  • 78. Marriage Equality Round-U&hellip  |  May 23, 2014 at 7:37 am

    […] USA, Texas: The Fifth Circuit will not fast-track an appeal of the state’s marriage equality lawsuit. full story […]

  • 79. Steven H  |  May 23, 2014 at 7:38 am

    I don't think we know that at all. Many of the remaining states haven't just refused to grant benefits to same-sex couples, they're refusing to "recognize" the existance of any "marriage-like" relationship between two individuals of the same sex. If a couple has common property soley because the spouses are married, I don't think there's any reason to assume that one of the rump states will honor the fruits of that marriage.

  • 80. TxLawyer  |  May 23, 2014 at 8:56 am

    Actually, the Texas case hasnt been ruled on at all. Only a preliminary showing of likely success, which is all that is required for a premlinary injunction.

    Merits have not yet been reached.

  • 81. StraightDave  |  May 23, 2014 at 9:14 am

    You know we've crossed a serious line when we're into "rump" states already. It may be a big majority rump, but it's still logically, legally, and morally a rump, IMO. The synonym with "ass" also earns it bonus points.

  • 82. Jesse  |  May 23, 2014 at 11:31 am

    Yes, but if a state selectively chooses which out of states marriages it will recognize, then Baker still can't be a precedent because now you have a 14th amendment question that states must defer to.

  • 83. Bruno71  |  May 23, 2014 at 11:49 am

    We'll see, it all depends on how they feel I guess. Let's hope the 4th and 10th ruligns go as we feel they will.

  • 84. Bruno71  |  May 23, 2014 at 11:51 am

    It's an option if the case before them is for couples in a state demanding recognition for their out of state marriages (Ohio, Kentucky), and Kennedy wants to rule narrowly. And he usually wants to rule as narrowly as possible on these LGBT rights cases. Kennedy can't be bothered with these pesky precedents and levels of scrutiny most of the time.

  • 85. Bruno71  |  May 23, 2014 at 11:52 am

    Sorry, but to me that's the same difference.

  • 86. Eric  |  May 23, 2014 at 11:59 am

    Kennedy was not 100% deferential to the states in Windsor.

    He was deferential to the states, subject to certain constitutional guarantees.

    From Windsor:

    Subject to certain constitutional guarantees, see, e.g., Loving v. Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the States,” Sosna v. Iowa, 419 U. S. 393.

    The anti-gay like to cherry pick, as they are wont to do, and leave off the first phrase when discussing Windsor. Windsor was a 14th Amendment case, not a 10th Amendment case.

  • 87. Ragavendran  |  May 23, 2014 at 2:52 pm

    Oh yes, of course. I meant that he was 100% deferential to the states in that despite his admitted fear about entering uncharted waters, the fact that some states have made gay marriage legal was enough for him to rule that the Feds must recognize those mariages with NO questions asked – no BS fears of gay parenting, for example. That's the sense I meant that statement. Your point is well taken, though.

  • 88. Jesse  |  May 23, 2014 at 3:57 pm

    they took up Perry I think to solidify other precedents to correct for Arizonans for Official English and Karcher v. May, right?

  • 89. jdw  |  May 23, 2014 at 4:26 pm

    I don't know who would have joined him in a DIG?

    I tend to agree that if he wanted to go "narrow" he could have followed the 9th's ruling. That would have been a rather massive punt if he envisioned having Bans dragged up to SCOTUS again, which he had to know was going to happen. But given the states that were adding ME around that time, putting CA with 20% of the US population in the ME column, mixing in those likely to do so sooner rather than later (RI, DE and MN) and those with some potential (IL), perhaps the thought was that he would be faced with more of a "It's no big deal" feeling in the country by the time he dealt with it next.

    Could he have misread how rapidly and drastically Windsor would change the world, even among some GOP Judges?

    Seems like it, and that he probably thought he wouldn't get a case back for 3+ years perhaps?

    Anyway, I think if he had been forced to rul straight up on Perry without the Standing issue, he would have either confirmed the 9th's punt job, or would have gone the full monty of supporting Walker's ruling. It's just hard to see that he went down the Romer and Lawrence path and if forced to rule, he would uphold bans.

  • 90. jdw  |  May 23, 2014 at 4:28 pm

    I highly doubt that Roberts & Scalia would agree with you on that "not hurt" part. :)

  • 91. jdw  |  May 23, 2014 at 4:48 pm

    You are really pessimistic. :)

    I can't imagine the Kennedy will chose to punt on the 10th & 4th so that he can use Recognition to further put Bans down the road. Is he hoping that a GOP President is elected in 2016, RBG dies and is replaced by another conservative to his right, and those 5 can uphold the remaining bans and start rolling back the rights Kennedy has extend over the past two decades? :)

  • 92. SeattleRobin  |  May 23, 2014 at 9:14 pm

    Kennedy didn't draw any distinction between states that voluntarily adopted SSM through legislative or voter actions and states that had it forced on them via a court (like Massachusetts). They're all legal marriages, so his statement applies to all of them.

  • 93. SeattleRobin  |  May 23, 2014 at 9:22 pm

    I don't see it. There is plenty of existing evidence from states that have collected data that civil unions are second class, even when in legal terms they are designed to be the same. It's not an option for ruling narrowly when it can't pass constitutional muster on separate means unequal.

  • 94. SeattleRobin  |  May 23, 2014 at 9:28 pm

    Property in this area doesn't only mean physical possessions. It can refer to a lot of different things, such as being stripped of inheritance rights. (This was the specific injury in Windsor. Because her marriage wasn't recognized, she was taxed over $300k, whereas as a widow there would have been no tax burden.)

  • 95. SeattleRobin  |  May 23, 2014 at 9:37 pm

    Yeah, but I'm pretty sure Scalia plans to die in the harness

  • 96. Matt  |  May 26, 2014 at 7:48 pm

    It's difficult to imagine that any judge would try to ignore or explain away a long series of recent, well reasoned rulings in our favor. An adverse decision would be clearly at odds with precedent. If the judge were later nominated for a higher appointment, they'd be controversial at best. Still, we have to be vigilant until the last ban is irreversibly overturned. A loss at this point is unlikely, but not impossible.

  • 97. Straight Ally #3008  |  May 26, 2014 at 8:38 pm

    What we may see are a few 2-1 decisions in appellate courts; I think that it's easier to dissent when you know you're basically voicing an opinion for the losing side (as Judge Niemeyer may do in the 4th Circuit) rather than deciding the outcome as in a federal hearing.

  • 98. davep  |  May 26, 2014 at 9:51 pm

    And winged monkeys "might" fly out of your butt and carry you off to the moon.

  • 99. Liti-Gator  |  May 27, 2014 at 8:51 am

    Just because a few lawless district courts strike down marriage, doesn't mean that will hold through the appellate courts. One lawless district judge in Nebraska has already been overruled, unanimously, by the Federal 8th circuit appellate court. The latter upheld Nebraska's ban on same sex marriage. Scotus made clear in the doma case last year, that STATES define marriage, and federal courts stay out of the way!! That's why scotus stayed the Utah decision striking their ban. If scotus thought that decision correct, they wouldn't have bothered. Also, Baker v. Nelsonn, scotus precedent upholding bans on ssm, is still the law of the land, notwithstanding these lawless district courts.

  • 100. Miriam  |  June 7, 2014 at 11:17 am

    My personal opinion is that the 5th Circuit knows it needs to affirm but REALLY doesn't want to. It wants to reverse, but it also doesn't want to be the lone dissenting Circuit that forces SCOTUS to enshrine Scalia's temper tantrum of a dissent as the basis for the most significant civil rights case since Brown v. Board of Ed. If there is no split in the circuits, SCOTUS can decline to rule on ANY same sex marriage case, thus quietly letting Scalia off the hook while at the same time making same sex marriage constitutional in all 50 states. Every judge on the 5th Circuit dreams of being nominated to SCOTUS, and none of them wants to be ditched because they are known as the judge who penned the 21st century's answer to Plessy v. Ferguson and in the process humiliated the Right's pet judge. Therefore, the 5th circuit is doing everything they can to not be the 1st circuit to rule on the issue, hoping that their wishy-washy but inevidable affirmation of same sex marriage won't be noticed.

  • 101. Rory  |  June 7, 2014 at 11:38 am

    "Democratic" presidents is the non-Fox, proper English reference.

Having technical problems? Visit our support page to report an issue!