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Equality news round-up: Gay juror case ends, and more

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals

UPDATE: – A Boulder, CO, judge has ruled that the county clerk can continue issuing marriage licenses to same-sex couples. The ruling is here.

– Denver’s County Clerk is also beginning to issue marriage licenses to same-sex couples.

– The Ninth Circuit Court of Appeals has issued its mandate in SmithKline Beecham v. Abbott Laboratories, a case involving a juror who faced discrimination because of his sexual orientation. The case established that discrimination on the basis of sexual orientation will be reviewed in the Ninth Circuit using a more rigorous form of judicial scrutiny under the Equal Protection Clause. The court had declined to rehear the decision with an 11-judge panel, and now that the mandate has been issued, the case is final. The parties have said they won’t seek Supreme Court review. The case has implications for marriage equality cases in the Ninth Circuit.

– Indiana officials have issued a memo outlining the state’s position on Indiana same-sex marriages, and saying they’ll only recognize the marriage of one same-sex couple because the Seventh Circuit issued an order related to that couple.

– Federal Judge John Jones discusses Pennsylvania same-sex marriage ruling.

– One challenge to Arizona’s same-sex marriage ban is proceeding in federal court.

– Plaintiffs in the challenge to South Dakota’s same-sex marriage ban want the case decided on motions for summary judgment, not a full trial.

Thanks to Kathleen Perrin for these filings


  • 1. DocZenobia  |  July 10, 2014 at 8:17 am

    This means hello ME for Alaska, Arizona and Montana…

  • 2. SWB1987  |  July 10, 2014 at 8:21 am

    It sure does!

  • 3. SWB1987  |  July 10, 2014 at 8:22 am

    Come on Oklahoma and Virginia!! I'm dying for the appellate rulings on these!!

  • 4. jpmassar  |  July 10, 2014 at 8:35 am

    A bit of understatement, eh?

    The case has implications for marriage equality cases in the Ninth Circuit.

  • 5. ragefirewolf  |  July 10, 2014 at 8:43 am

    For real!

  • 6. MichaelGrabow  |  July 10, 2014 at 8:49 am

    Nevada and Idaho too, no?

  • 7. Roulette00  |  July 10, 2014 at 8:58 am

    Not as much, but yes. The Ninth has already scheduled the appeal for these two cases, so they will be appealed under heightened scrutiny. In MT, AK and AZ, there have been no district court cases at all.

  • 8. JayJonson  |  July 10, 2014 at 9:16 am

    Nice interview with Judge Jones, who is thoughtful and informative.

  • 9. brandall  |  July 10, 2014 at 10:10 am

    Judge: Boulder can continue issuing marriage licenses to same-sex couples

    Just out….I'm surprised.

    The judge said same-sex marriage is still technically illegal in Colorado but that Hall’s behavior was not harming anyone.

    The state was not able to meet it's "high burden" of proof at this state of litigation.

  • 10. Japrisot  |  July 10, 2014 at 10:11 am

    So exciting!

  • 11. DoctorHeimlich  |  July 10, 2014 at 10:15 am

    We were all hoping for a crack in the "gay means stay" wall to appear. I didn't expect it would happen here, though. What a pleasant surprise!

  • 12. dingomanusa  |  July 10, 2014 at 10:17 am

    And the legal eagles feathers are ruffled, bet they didn't expect that to happen so quickly.

    “The judge said same-sex marriage is still technically illegal in Colorado but that Hall’s behavior was not harming anyone. … Hartman also noted that every judge – including one in Colorado the previous afternoon – in the past year has ruled that gay marriage bans are unconstitutional and that Colorado’s prohibition is “hanging by a thread. … The ruling will be appealed by Attorney General John Suthers’ office, which defended the ban.”

  • 13. scream4ever  |  July 10, 2014 at 10:17 am

    This is going to propel the issue directly up to the state supreme court for a favorable ruling, and in the meantime likely result in more counties issuing licenses.

  • 14. brandall  |  July 10, 2014 at 10:17 am

    I hope Scottie and Kathleen are available to update and post the decision. I'm searching for it now.

  • 15. brandall  |  July 10, 2014 at 10:19 am

    I love your thought of more counties joining in. New Mexico repeated.

  • 16. DoctorHeimlich  |  July 10, 2014 at 10:19 am

  • 17. dingomanusa  |  July 10, 2014 at 10:20 am

    Yeppers and maybe we'll see one or two clerks from other states issuing licenses!

  • 18. brandall  |  July 10, 2014 at 10:35 am

    Geez, the hearing was yesterday morning and the decision references yesterday afternoon's CO Adams County ruling. Did the judge and his clerks stay up all night?

  • 19. DoctorHeimlich  |  July 10, 2014 at 10:38 am

    They must have, as it's a very clearly written and well-researched ruling.

  • 20. Zack12  |  July 10, 2014 at 10:48 am

    They didn't waste any time did they?

  • 21. brandall  |  July 10, 2014 at 10:51 am

    Wow, this decision is laid out and explained much better than Crabtree's. The scope of citations is impressive…from DOMA, 9th Circuit, Adams County and even the City of SF.

    Also, it is obvious the AG erred in bringing in the witness from the Dept of Vital Statistics. It backfired since the witness stated they could handle any form changes. What was AG Suther's thinking?

    Also, it is interesting to note he makes no mention about any other county clerk's future actions. That was also a mistake of the AG in his initial filing. He assumed it was a no-brainer.

    Again, a big round of applause to the judge and his clerks. I really don't know how they did this in 24 hours.

  • 22. brandall  |  July 10, 2014 at 10:54 am

    Judge and clerks must have created the shell for the ruling staring last week when it was filed. They must have worked over the weekend. I'm surprised they didn't stuff in Alito's thumbs down from last night!

  • 23. Ragavendran  |  July 10, 2014 at 11:09 am

    I love that this judge cites the CO Supreme Court's historic Evans v. Romer preliminary injunction as evidence that despite the deferential presumption that blocking state law causes irreparable harm, there are situations such as those where fundamental rights are implicated, where such a concern is overruled. (This is not directly applicable to this case, so this is mentioned in a footnote 4.)

  • 24. brandall  |  July 10, 2014 at 11:14 am

    I am so glad you are still awake and did not miss this until the morning. I remember our chats about whether Hall was helping or hurting. I don't think either of us saw much or any chance of success.

    Since you know a bit about Colorado from your short residency, what other counties might possibly jump on the bandwagon and start issuing licenses (certainly speculative)?

  • 25. brandall  |  July 10, 2014 at 11:20 am

    Does anyone know when the clock runs out for the AG to file an appeal to the CO Supreme Court? I assume in CO they can bypass the CO Appeals Court for an emergency injunction.

  • 26. sfbob  |  July 10, 2014 at 11:24 am

    Denver County Clerk has now started issuing licenses.

    (scroll down aways to find the pertinent tweet)

    That didn't take long, did it?

  • 27. scream4ever  |  July 10, 2014 at 11:26 am

    Denver and Pueblo counties are now issuing licenses!!!

  • 28. Ragavendran  |  July 10, 2014 at 11:27 am

    I would still think other clerks will be wary, especially because the judge blatantly admits that there is a reasonable chance of success for the state at the end – that Hall could be found to have lacked authority to issue the licenses. In fact, that part of the opinion disturbingly reads almost like that's where this might be headed, unless either of the Kitchen and Brinkman stays are lifted or appeals affirmed. If I had to choose, I'd pick Denver. Certainly not El Paso or Larimer counties.

  • 29. DACiowan  |  July 10, 2014 at 11:29 am

    Here's the result map of the marriage ban amendment back in 2006:

    Pitkin County (Aspen) and San Miguel County (Telluride) are the two deep blue western counties and are progressive skiing towns, and it's worth keeping an eye on Larimer (Colorado State U) and Denver suburban counties.

  • 30. brandall  |  July 10, 2014 at 11:30 am


    "Equality Illinois surveyed all 102 Illinois counties and found that at least 3,274 marriage licenses have been issued and 1,694 civil unions converted to marriages in every corner of the state."

    That's over 10,000 human beings whose wait is over and done.

  • 31. Japrisot  |  July 10, 2014 at 11:35 am

    Amazing. One by one the dominoes fall.

  • 32. Ragavendran  |  July 10, 2014 at 11:39 am

    Wow – source for the Pueblo news, please? Who tweeted or reported it?

  • 33. scream4ever  |  July 10, 2014 at 11:44 am

    I highly doubt the state supreme court would invalidate the licenses though, considering they will be striking down the ban near or at the same time anyways.

  • 34. DoctorHeimlich  |  July 10, 2014 at 11:53 am

    Here's the source on Pueblo (reportedly, starting tomorrow where Denver is starting today):

  • 35. DaveM_OH  |  July 10, 2014 at 12:01 pm

    49 days to appeal to the CO Appeals (Colorado Appellate Rules 4(a))

    42 days if seeking certiorari directly from a trial court in the CO Supreme Court. (Colorado Appellate Rules 52(a)).

  • 36. Bruno71  |  July 10, 2014 at 12:09 pm

    This will be a real test of how Democratic judges act. We saw the Arkansas SC put a stay on marriages there, let's see what Colorado does. They are more likely than the lower court judge to do so, but I also highly doubt they'd invalidate the marriages unless SCOTUS overrules the 10th Circuit.

  • 37. brandall  |  July 10, 2014 at 12:14 pm

    Thank you! I asked this before Denver and Pueblo popped out of the marriage oven.

    Do you think AG Suthers is having a really bad day?

    Hmmm…Adams County case…I lost…Stop Clerk Hall…I lost…Denver/Pueblo…OMG, I forgot to cover the bases if I lost with Clerk Hall…Hickenlooper?….Nope, no support….Ah, I'll win at the Supreme Court…let's see what they did in Romer v Evans:

    "Denver District Court judge granted the preliminary injunction and the Colorado Supreme Court upheld the district court’s decision, stating “[t]hat Amendment 2 was passed by a majority of voters through the initiative process as an expression of popular will mandates great deference. However, the facts remain that `[o]ne’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

  • 38. Bruno71  |  July 10, 2014 at 12:14 pm

    I always find the pattern sad where residents of a big city (in this case Denver) are in favor of equality but the suburbs are not. I wonder what this map would look like today.

  • 39. brandall  |  July 10, 2014 at 12:18 pm

    Check my comment higher up about Romer and the CO SC. The Hall case is not supposed to be the definitive ME case for CO, but the AG has now lost control and we are not in the South. I think the AG is close to checkmate.

  • 40. davepCA  |  July 10, 2014 at 12:19 pm

    So do I understand the Colorado situation correctly?

    1. The court rules the state's same sex marriage ban unconstitutional…
    2. But it issues a stay, not because of any of the four REAL requirements for issuing a stay, but just because another court has done so (Kitchen, in Utah)…
    3. The Clerk disregards the stay and issues licenses to same sex couples based on the merits of the ruling informing her that the ban was unconstitutional, and she is upholding the Constitution, rather than enforcing an unconstitutional law…
    4. The state takes THAT to court, and now the court decides there is no justification for a restraining order and rules the Clerk can continue to disregard the stay, because NOW they are paying attention to the real requirements for a stay and pointing out that they have not been met……?

    I'm not complaining about the fact that couples are being allowed to marry, but it sure seems to reveal just how irrational and unjustified the stays are.

  • 41. Bruno71  |  July 10, 2014 at 12:25 pm

    Still, this is I'm sure a very different CO SC than the one in 1995. Perhaps a more "liberal" one, I don't know, but different. And never underestimate a jurist's desire to get technical about things. This may have little or nothing to do with ME and everything to do with how they view the actions of the clerk.

  • 42. SeattleRobin  |  July 10, 2014 at 12:29 pm

    I just read the order concerning the Colorado clerk situation, and I admit that I'm surprised at the outcome. Based on the way the judge laid everything out and weighed the balance of harms, it seems clear that he could have easily ruled the other way. It appears to me that what ultimately tipped the balance in the clerk's favor was that the judge took very seriously the high bar the state had to get over in order to be granted an injunction. Another judge could have written this same exact opinion, but not thought the bar is quite so high and grant the injunction.

  • 43. Bruno71  |  July 10, 2014 at 12:29 pm

    I guess the easy explanation is it's two different state courts. Also, the stays in place both on the federal and state levels don't necessarily preclude what the clerk is doing, they just don't, at the moment, enjoin the end of enforcement of the ban. This court today basically said, "she's not hurting anyone, whatever," not that it's legal.

  • 44. brandall  |  July 10, 2014 at 12:31 pm

    To your 3rd point:

    Nancy Leong, a University of Denver law professor, said Hartman's ruling effectively allows government officials to sometimes disobey state law if they believe it violates the nation's founding principles. "I read his opinion to say a certain level of what we may call civil disobedience is permissible under the U.S. Constitution," Leong said.

    She said that, in the abstract, it seemed unlikely a judge would permit a government official to do something contrary to state law. But things play out differently in the notoriously liberal Colorado city known as "The Berkeley of the Rockies."

  • 45. cpnlsn88  |  July 10, 2014 at 12:38 pm

    Strange situation. Is it at least theoretically possible that the Colorado state supreme court might rule that there is a right to marry based on the merits of the case and the precedent of the 10th Circuit and that the requirements for a stay are not met under state law?

  • 46. Ragavendran  |  July 10, 2014 at 12:40 pm

    Yes, but not likely for several months at least.

  • 47. brandall  |  July 10, 2014 at 12:44 pm

    Why months? Wouldn't Suthers be able to file an emergency motion for immediate relief to the CO SC? I'm assuming we are referencing the Hall case and not Adams County. I'm missing something here. Thanks!

  • 48. Bruno71  |  July 10, 2014 at 12:47 pm

    The 10th Circuit ruling (as with the other dozens of federal district court rulings in our favor) will only act as a guideline for the CO SC, not a binding precedent. The Colorado SC can certainly enjoin the state to issue marriage licenses equally without a stay, thus circumventing the SCOTUS stay on the entire 10th Circuit. There's also a possibility that the state could ask for and get a stay from SCOTUS pending appeal after the CO SC ruling.

  • 49. Ragavendran  |  July 10, 2014 at 12:52 pm

    An emergency motion can only lead to a stay (or, perhaps, at most a preliminary injunction). A final decision on the merits of the Colorado ban (which is what I thought cpnlsn88 was referring to, as an appeal of the Adams County case) will have to allow for briefing schedules and oral argument, which will take months even in an expedited situation. Of course there could be an emergency appeal to the CO Supreme Court on the Hall case and the court could issue an injunction in a matter of days, but they cannot do so (and certainly not in such a short time) by ruling on the constitutionality of the marriage ban first.

  • 50. Japrisot  |  July 10, 2014 at 12:53 pm

    If Suthers petitions the CO SC for emergency relief from Judge Hartman's ruling, the court will be limited to the narrower question of whether a county clerk may, at her discretion, take action that contravenes state law but complies with a stayed declaratory judgment and injunction from the 10th circuit. The doctrine of constitutional avoidance precludes them from reaching the broader question of whether CO voters may permissibly withdraw marriage rights from gay and lesbian citizens under the US Constitution.

  • 51. brandall  |  July 10, 2014 at 12:59 pm

    Duh (palm to forehead)…Of course. My brain is one-tracked on how Suthers is now going to plug all the holes in the county licenses. So, the CO SC could take the Hall case and run it through all the steps. But won't because it is the narrower case.. Thanks (and also to Japrisot).

  • 52. Ragavendran  |  July 10, 2014 at 1:02 pm

    You're welcome. And I think Japrisot explained it better than I did – the Court is limited to ruling only on the precise issues that are required to resolve the questions presented to it.

  • 53. brandall  |  July 10, 2014 at 1:07 pm

    Wisconsin: Van Hollen has filed the appeal on the very last possible day. True to his word…darn it.

  • 54. Bruno71  |  July 10, 2014 at 1:09 pm

    And we saw what even this lower court judge wrote about that narrower question: "A clerk’s issuance of marriage licenses is undisputedly a ministerial act – if the requirements are met or not met, a clerk has no discretion." It seems unlikely to me that the CO SC would continue to allow these licenses.

  • 55. RCChicago  |  July 10, 2014 at 1:21 pm

    "Darn it" is right. While expected, there was for me a glimmer of hope that he might go the way Corbett did in PA. Still, the 7th District Court of Appeals is down the street from where I work. If the hearing is open to the public, I hope to be there.

  • 56. Randolph_Finder  |  July 10, 2014 at 1:34 pm

    Well El Paso County (Home of Co Springs) will still be red.

  • 57. Zack12  |  July 10, 2014 at 1:35 pm

    It sucks but let's be honest, his actions in the past showed him to be a bigot so this is NOT a shock in any way shape or form.

  • 58. RQO  |  July 10, 2014 at 1:47 pm

    CO: Geeze, I go work on the irrigation a few hours then find all hell broke loose. We seem to have a popular revolt – and it is far more popular than I dared hope – and stay the gays and stalling get a kick in the pants. If Pueblo County is issuing licenses, all of a sudden the revolt has jumped the political fire lines around Boulder & Denver.
    I agree, AG Suthers is not going to be able to contain the issue on his terms, or at all, regardless of law. He retires next year; not on the highest note.

  • 59. Zack12  |  July 10, 2014 at 1:47 pm

    Depressing to see how many ballot measures to ban same sex marriage were put up that year.

  • 60. Japrisot  |  July 10, 2014 at 1:49 pm

    I haven't read what Hartman wrote yet. I would, however, note that Suthers is asking for equitable relief which gives the court quite a bit more leeway in deciding whether to craft a remedy and, if so, what shape it should take. I am therefore a bit less pessimistic than you.

  • 61. brandall  |  July 10, 2014 at 1:51 pm

    Side conversation with RQO….Irrigation? Me too! I was doing the pastures 2 weeks ago. Everytime I came inside…nothing…everytime I went back out to rotate the valves…boom…new decisions.

  • 62. JayJonson  |  July 10, 2014 at 2:08 pm

    Another factor is that, while issuing marriage licenses is a ministerial function, a Colorado County Clerk is an elected official not a subordinate of the AG or the Governor. That made the bar very high for the Attorney General's request for a temporary restraining order and injunction. In addition, the fact that the same-sex marriage licenses could easily be kept track of by other offices, such as the one that keeps vital statistics, meant that the state would not suffer any irreparable damage if the Courts would eventually rule against ssm. (I.e., they could easily be invalidated and purged from the system.) And since Clerk Hall had warned the same-sex couples who were issued licenses that their marriages could be invalidated meant that they knew the risk they were taking. Hence, the AG's arguments that the state was in legal chaos and was being irreparably harmed, and that the poor same-sex couples were also experiencing great harm, were all rendered silly in light of the actual circumstances. The judge did the right thing.

  • 63. scream4ever  |  July 10, 2014 at 2:08 pm

    They could, but the SCOTUS has been keen to ignore appeals from state supreme courts.

  • 64. LK2013  |  July 10, 2014 at 2:16 pm

    As of right now (5:15 PM EST), at that link the Pueblo info is crossed out. Apparently they are re-thinking issuing licenses tomorrow..

  • 65. JayJonson  |  July 10, 2014 at 2:23 pm

    I don't think it is obvious what the CO SC would do. The judge did note that issuing a marriage license is a ministerial function. But he also stressed that Colorado County Clerks are independent elected officials. That is, they are not appointed by the Governor or Attorney General. Hence, he said, the Attorney General had a high bar to overcome before he could be granted a temporary restraining order or an injunction against Clerk Hall. Judge Hartman felt that the AG had not established that by issuing marriage licenses to same-sex couples, especially when the marriage ban is hanging by a thread, would cause any harm either to the state or to the couples, who had been warned that their marriages could be invalidated.

  • 66. davepCA  |  July 10, 2014 at 2:29 pm

    Then quick, get back out there! : )

  • 67. Mike_Baltimore  |  July 10, 2014 at 3:11 pm

    In other news:

    IF somehow GOTP candidate Larry Hogan gets elected as Governor of Maryland (doubtful, as in the last 50 years, Maryland has elected 2 such governors [one full term (four years), one partial term (less than 2 years) ] AND Hogan is trailing by at least 12-15 polling points behind his general election opponent (sitting Lt. Gov. Anthony Brown), he states he will not try to repeal the current ME law in the state.

    BUT he will try to repeal the law on transgender rights signed by Governor O'Malley in May of this year. (Gov. O'Malley is an extremely popular governor in the state.)
    (… )

    At least in Maryland, the GOTP is partially listening to the electorate, but they still have a long, long way to go in order to be a political party respected by a majority of the electorate. The Tea Party is not especially strong in Maryland, but it has lots and lots of influence on the rest of the CONservatives in the state (partially explained by the location of Maryland next to DC).

  • 68. Bruno71  |  July 10, 2014 at 4:32 pm

    Hopefully there's a chance, then. But it's great to see Denver and Pueblo coming along for the ride now, so maybe that'll enter into it.

  • 69. Bruno71  |  July 10, 2014 at 4:33 pm

    The latest update to that page reads: Pueblo County acknowledges marriage equality and will begin issuing licenses at 8 am tomorrow.

    So it looks like a "go."

  • 70. brandall  |  July 10, 2014 at 5:30 pm

    Afternoon updates on Colorado county clerks besides Denver and Boulder:

    Just this afternoon Pueblo County Clerk Bo Ortiz announced he’ll start issuing same-sex marriage licenses Friday, but if the Bedenks weren’t already married, they wouldn’t be able to get hitched in Colorado Springs.

    “Gay marriage is still illegal, unconstitutional. Until the law changes, we have a duty to uphold the law as it is. When the legal dust has settled, we’ll go from there. We’re just not comfortable with breaking the law,” said Ryan Parsell, spokesman for El Paso County Clerk and Recorder Wayne Williams.

    Out west in San Miguel County, Clerk Kathleen Eerie said she hasn’t issued any licenses yet, but that’s largely because nobody in the small county has asked for one yet. If they do, Eerie said she’d follow the advice of her attorneys.

    “It [gay marriage] is going to happen,” said Eerie. “A lot more quickly than people expected.”

  • 71. ragefirewolf  |  July 10, 2014 at 5:42 pm

    I've never been so happy to be wrong :)

  • 72. Bruno71  |  July 10, 2014 at 7:30 pm

    At least there's only been 6 since then; 1 failed (Minnesota) and 2 have been overturned (California and Maine).

  • 73. Ragavendran  |  July 10, 2014 at 7:34 pm

    Suthers has since vowed to act swiftly:

    Suthers released a statement late Thursday afternoon in which he decried the "uncertainty" caused by the rulings in Adams and Boulder counties, saying it "cries out for resolution by the state's highest court."

    "It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized," Suthers said. "Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming."

  • 74. Zack12  |  July 10, 2014 at 7:54 pm

    At least he isn't going to drag it out like some other bigots are doing, he wants a ruling ASAP.

  • 75. scream4ever  |  July 10, 2014 at 8:01 pm

    And we will have no more mark my words!

  • 76. scream4ever  |  July 10, 2014 at 8:07 pm

    That's good news! It should be resolved soon then.

  • 77. scream4ever  |  July 10, 2014 at 8:41 pm

    I suspect he and Hinckelooper want this settled before election day.

  • 78. RQO  |  July 10, 2014 at 9:00 pm

    No, MUCH faster, keeping the issue out of the campaigns. Already a lot of very hot issues in CO, fracking among them. Almost zero politician statements against the Clerk and ME the last 2 weeks, and not that many for. Suddenly, we're the opposite of a political punching bag.

  • 79. eizverson22  |  July 11, 2014 at 6:22 am

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  • 80. Marriage Equality Round-U&hellip  |  July 11, 2014 at 7:43 am

    […] USA: The Ninth Circuit has wrapped up its work on a suit involving a gay juror that established that discrimination on the basis of sexual orientation will be reviewed in the Ninth Circuit using a more rigorous form of judicial scrutiny under the Equal Protection Clause. full story […]

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