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Marriage equality updates in the Seventh and Tenth Circuits

LGBT Legal Cases Marriage equality Marriage Equality Trials

In the Seventh Circuit Court of Appeals, as we noted earlier today, the challenge to Wisconsin’s same-sex marriage ban has now joined challenges to Indiana’s ban.

In a motion filed this afternoon, the plaintiffs challenging Wisconsin’s ban asked the Seventh Circuit to fast-track their appeal, and to have it heard by the same panel hearing the challenge to Indiana’s ban. The request also contained a proposed briefing schedule, though in a footnote, the brief suggested that they would comply with an even faster schedule. Their proposed schedule is as follows: “Opening Brief to be filed by July 25, 2014. Response due by August 8, 2014. Reply due August 15, 2014.”

In an order, the Seventh Circuit granted the request. They set the briefing schedule: “Appellant’s brief due on or before 07/23/2014[]. Appellee’s brief due on or before 08/04/2014 [].” The text entry also noted that “argument will be set by separate court order.”

Also filed this afternoon: state officials in Indiana are requesting that all Seventh Circuit judges hear their appeal. The Seventh Circuit’s rules note that petitions for en banc are generally disfavored, so it may not be granted; however, if it were, it’s possible that both the Indiana and Wisconsin cases would be heard initially en banc. The filing argues that the question of same-sex marriage is one of “exceptional importance”, and that there’s a risk of non-uniformity since there are cases from different states being heard by the appeals court.

Tenth Circuit Court of AppealsIn the Tenth Circuit Court of Appeals, the same three-judge panel that heard and decided Kitchen v. Herbert declined to stay the district court’s order in Evans v. Utah, the case involving same-sex marriages that were performed in Utah before the Supreme Court issued its stay in Kitchen. The district court had issued a preliminary injunction requiring state officials to recognize those marriages pending the outcome of the full appeal in the Tenth Circuit. Today’s order means the state will have to comply with recognizing the marriages. However, the Tenth Circuit has temporarily stayed today’s order until July 21, so that the state can ask the Supreme Court for a stay. UPDATE: Ben Winslow is reporting that Utah’s attorney general will ask the Supreme Court for a stay. A request would first go to Justice Sotomayor in her capacity as Circuit Justice for the Tenth Circuit.

UPDATE 2: The Utah Attorney General’s Office confirmed to EqualityOnTrial that they will seek a stay from the Supreme Court: “”In response to the United States Court of Appeal for the Tenth Circuit denial of stay in Evans v. Utah, the State is prepared to file an Application for Stay before the United States Supreme Court in the coming days to avoid uncertainty, as noted by the dissenting Judge on the Tenth Circuit. The State recognizes that pending cases regarding same-sex marriage in Utah impact the lives of many individuals and families and is diligently seeking uniform certainty through proper and orderly legal processes until Kitchen v Herbert is resolved.”

Thanks to Kathleen Perrin for these filings

180 Comments

  • 1. jpmassar  |  July 11, 2014 at 5:02 pm

    Zounds!

  • 2. Scottie Thomaston  |  July 11, 2014 at 5:09 pm

    Friday nights suck.

    There's more news I'm about to have to update: Reports that Utah AG will ask SCOTUS for stay.

  • 3. jpmassar  |  July 11, 2014 at 5:25 pm

    Who is SCOTUS overseer for Utah?

  • 4. Scottie Thomaston  |  July 11, 2014 at 5:26 pm

    Sotomayor

  • 5. BenG1980  |  July 11, 2014 at 5:43 pm

    If, by "suck," you mean "provide a wonderful opportunity for late-breaking marriage equality news," then I wholeheartedly agree. 😉

  • 6. brandall  |  July 11, 2014 at 6:21 pm

    Scottie, your first comment line is such a brilliant piece of journalism! LMAO

    Monday's SCOTUS telephone conference call: "Why can't we all just get along"

  • 7. Ragavendran  |  July 11, 2014 at 6:38 pm

    I expected the Tenth Circuit to grant the stay, especially as they had been sitting on this motion for over a month. So, I'm pleasantly surprised. In retrospect, given that all along this matter was before the Kitchen panel, it is not surprising they ruled this way. I commend the Tenth Circuit for taking the lead in standing up to SCOTUS fearlessly for the second time. Of course this is a different issue, but we never know the breadth and expansiveness of the "gay-means-stay" doctrine – we have a chance to find out now.

    Do we know if the Indiana plaintiffs agree or oppose the initial en banc motion? What do the Wisconsin plaintiffs think of this? And, given that the Sixth Circuit unanimously rejected initial en banc review despite the same arguments being put forth there, and the potential for more conflict as there were appeals from four states there, how likely is it that a majority of the Seventh Circuit vote to grant this request?

  • 8. brandall  |  July 11, 2014 at 6:49 pm

    This will be the 4th appeal to SCOTUS since the rulings started. 1) Kitchen marriages in progress, 2) NOM standing in Oregon, 3) "Won't give up" County Clerk in PA, 4) Kitchen already married status. So, from January, the current trend is to appeal to SCOTUS every 6 weeks. I'll say Sotomayor will deny the request since the 10th procedurally followed all the rules.

  • 9. Ragavendran  |  July 11, 2014 at 6:51 pm

    I'm risking a breach of EoT rules here by posting this totally unrelated to gay rights, and I suspect I might get down-voted, but this was just mind-blowing to me – especially since I'm from India where cops are most often feared by the public – that this guy was talking back to the cop and throwing case law at the officer. I am far from pro-gun, but this exchange was shocking to me. https://www.youtube.com/watch?v=RZHfylk2j3o If this guy did this in India, he would be taken under custody and stripped down to his underwear and beaten up beyond recognition.

  • 10. BenG1980  |  July 11, 2014 at 6:57 pm

    It will be interesting to see what Sotomayor does, since the last time she referred the motion to the full court. Alito's denial of the PA motion might prompt her to go it alone and deny this one, but then Utah could go right to Scalia for a rubber stamp approval. If I had to bet, I'd say she'll refer this motion to the full court and it will be denied (after a telephone conference since some of the justices have left DC for the summer).

  • 11. Ragavendran  |  July 11, 2014 at 7:00 pm

    I agree that she'll refer it to the full court, but I'm not so sure about the denial. Kelly is smart – he didn't write a four page dissent for nothing. His dissent is more detailed, whereas the majority opinion provides minimal, if any, justification, simply saying that Utah has not made the required showing that the stay is warranted. (And brandall, the Tenth also procedurally followed the rules in denying the Kitchen stay in December.)

  • 12. Zack12  |  July 11, 2014 at 7:12 pm

    I suspect the refusal to grant the stay is also a way of sending a message about how Utah has ignored deadlines and flat out screwed up this case from the start.
    Keep in mind when the ruling was handed down one of the reasons a stay wasn't granted is because Utah forgot to ask for one, which even a law student that hasn't finished their first year would know to do.
    Since then it's been a mess on their parts and I suspect that is because the Mormon Church and the Utah Eagle Forum can't accept that their religious beliefs aren't an acceptable reason to ban marriage equality.
    Let's see where it goes from here.

  • 13. StraightDave  |  July 11, 2014 at 7:23 pm

    That was awesome! Knowledge is power. No rules broken here. We're entitled to a little entertainment on the usual slow weekend. I also give the cop credit for not losing his cool. Not being bowed down to does not always go over well with some of these guys. Training certainly has improved lately.

  • 14. BenG1980  |  July 11, 2014 at 7:36 pm

    I agree, very entertaining! My sympathies lie with both the cop and the law student here. Clearly the cop was only trying to do his job by responding to a call, but the student knew he had the law on his side and justifiably did not back down. That was also an impressive recitation of case law under pressure!

  • 15. Ragavendran  |  July 11, 2014 at 7:42 pm

    This can never be said enough times – thank you Scottie for being ever alert and bringing us simply the best coverage on marriage equality in a timely manner. It's not going to get any easier from here on out (evidenced by the previous post about several appeals that are moving fast now), but you can surely count on having our support, encouragement and gratitude behind you :)

  • 16. DrPatrick1  |  July 11, 2014 at 7:50 pm

    I admit to getting it wrong after the 10th denied the stay, I thought SCOTUS would deny. However, I think this is different. I am not aware of any precedent for invalidating a whole class of lawful marriages. The CO happenings are akin to SF in 2004 and those marriages were invalidated, but it was the actions of a rogue Mayor and County clerk with no legal precedent behind them.

    However the marriages in UT were legally performed and I just can't see this as the same question as whether the state should be compelled to issue the licenses. Having said that, I don't think a denial of a stay would be as likely to portend an ultimate favorable SCOTUS ruling on ME.

    I predict Sotomayor will deny a stay and the issue will die (the emergency stay issue will die. UT will still pursue invalidating these marriages, but on a slower, more routine path, not the emergency path they are seeking now).

  • 17. Zack12  |  July 11, 2014 at 7:55 pm

    Good article on Judge John Heyburn II, the judge who just overturned the gay marriage ban in Kentucky. http://www.law360.com/articles/552603/the-bluegra
    Such a shame that so many of the Republican judges on the bench aren't like him.

  • 18. Ragavendran  |  July 11, 2014 at 7:57 pm

    Good points! But if Sotomayor denies the stay, I'm sure Utah will ask the full court or some other justice – I don't think it'll die there. And by the way, what is the briefing schedule in the Tenth Circuit for this appeal? Has one been issued yet? As an appeal involving a preliminary injunction, it automatically is bestowed with a certain level of expedited consideration, according to the rule book.

  • 19. Ragavendran  |  July 11, 2014 at 8:00 pm

    I'm being asked to subscribe… Any other source that offers a free reading of this article?

  • 20. DrPatrick1  |  July 11, 2014 at 8:05 pm

    Indeed they will ask another justice, who will turn it over to the full court, which will deny the emergency stay request.

    The appeal will proceed, but the emergency nature of this request will end.

    I have been wrong before, but I don't think the previous SCOTUS stay says much about how this stay request will end.

  • 21. Zack12  |  July 11, 2014 at 8:10 pm

    Maybe browse it on inprivate settings?
    That is how I was able to view it.

  • 22. Ragavendran  |  July 11, 2014 at 8:24 pm

    Ah – I tried both Chrome's Incognito and IE's Inprivate, and didn't work. Maybe it doesn't work in India.

  • 23. BenG1980  |  July 11, 2014 at 8:31 pm

    I Googled the headline and clicked on the link to law360 and was able to read it in Chrome.

  • 24. RnL2008  |  July 12, 2014 at 12:03 am

    Folks, here is my opinion about how we will fair on Marriage Equality………at this point SCOTUS will take a case in the 2014-2015 term, it will more than likely be Kitchen vs Utah and it will more than likely give us ME in all 50 States. I believe the ruling will be more like 6-3 in our favor and I believe the question that will be asked is If marriage is Truly a Fundamental right without regards to gender.

    I believe some will be surprised by the Justices in our favor, but not as surprised as the anti-gay folks will be……again, this is just my opinion and thoughts going forward.

    See, even with rulings like Citizens United and Hobby Lobby……..I still believe that SCOTUS will make the right ruling regarding an individual's right to marry…..otherwise if this doesn't go our way……..hell will freeze over before we see another ME ruling go our way!!!

  • 25. SeattleRobin  |  July 12, 2014 at 2:23 am

    Yeah, I think more citizens should know and exercise their rights. It's easier to lose them when they're not employed. On the other hand, I also believe that a person walking down the street carrying a firearm is a legitimate cause for concern. I'd call the cops if I saw that too. Too many nut cases seem to think that the solution to all their problems is to go on a shooting spree.

  • 26. RnL2008  |  July 12, 2014 at 5:21 am

    Why would SCOTUS do that? Marriage is about forming a legal kinship and siblings already have that!!!

  • 27. RCChicago  |  July 12, 2014 at 7:19 am

    Just downvoted the troll for you. It's frustrating, isn't it, when in the midst of a discussion utilizing rationality and legalities, and observations about real suffering, to see an interjection of close-minded, hard-hearted, determined ignorance. And it's sad to see how many self-proclaimed Christians reveal, by their insistent opposition, that empathy and compassion is lacking in them, although the bedrock of their religion is comprised of just these elements.

  • 28. harry_balz  |  July 12, 2014 at 8:28 am

    That worked w/ Firefox too

  • 29. Ryan K.  |  July 12, 2014 at 8:36 am

    I'm curious RnL, based on the Windsor ruling, which Justice do you believe will depart from the dissent in that case and join a Kennedy opinion along with the four more liberal Justices? I had high hopes that it would be 6-3 in Windsor with the CJ joining (or utopia 7-2 with Alito as well) but was disappointed to see a 5-4 ruling. I just don't see how the numbers change with a state-level marriage equality case, Kitchen or otherwise.

  • 30. RobW303  |  July 12, 2014 at 8:48 am

    That's a complete non-issue to any of these cases, as you well know. It's like asking if SCOTUS will also rule that married couples must wear matching clothes.

    Examined logically, however, the prohibition against sibling marriage is due to a concern for likely genetic defects in progeny. However, the government imposes no barrier to other people with inheritable genetic defects marrying and procreating. At the very least, the government should allow sibling marriages where the siblings are of the same sex or where one is incapable of begetting children (for instance, due to impotence or after menopause)–and if I recall, some states do allow this. The totally subjective "moral" objection (icky factor) should carry little weight—I'm not aware whether any state prevents step-relations from marrying. Perhaps we will soon see a wave of legal challenges to the blood relation restrictions–but not as a consequence of same-sex marriage, except being emboldened by seeing so many courts ruling with considered reflection rather than knee-jerk emotionalism.

    Similarly, the "slippery slope" argument that alarmists make—that same-sex marriage will set the stage for plural marriages, pedophile marriages or interspecies marriages—is distractive nonsense. Each of these forms is currently prohibited for entirely separate reasons, and if challenges are posed, they will be considered on their individual merits, not because gay marriage set some novel precedent that necessarily allows any other any other variation of marriage. There is no set "traditional" definition of marriage: it has been subject to flux since such formalized relationships first arose, and the present world sees many forms of marriage, with varying underpinnings. Plural marriages were a "traditional" biblical norm, as were pedophile marriages–many of the biblical patriarchs were both polygamists and pedophiles, with God's apparent blessing. The central issues in these other forms are fully-formed consent and an imbalance of power within the relationship, while any likening of same-sex or sibling marriage to bestiality reduces the intellectual sincerity of the arguer to zero. Just as your comment above does.

  • 31. Zack12  |  July 12, 2014 at 9:00 am

    I say it's going to be 5-4 in our favor.
    DOMA was clearly a bigoted statute yet Roberts and Alito voted to uphold it.
    The idea they'll turn around and say something differently about state laws is wishful thinking.

  • 32. Samiscat1  |  July 12, 2014 at 9:07 am

    Would Utah be asking for a stay pending the not-yet-existing appeal of Kitchen to SCOTUS? Would they be in a better position if they had submitted their Kitchen appeal before trying to get a SCOTUS stay on this Evans? If SCOTUS grants this stay, does it obligate them to take up Evans v. Utah to resolve it, or can it do so pending the likelihood of granting cert on some other upcoming case?

  • 33. BenG1980  |  July 12, 2014 at 9:32 am

    Rose, I agree with Ryan and Zack that your prediction of a 6-3 decision is just wishful thinking. It seems to me that the most likely candidate to have a change of heart would be Roberts, but his dissent in Windsor made it abundantly clear that he didn't want the lower courts to read the majority opinion as a green light for marriage equality.

    "We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples. That issue, however, is not before us in this case, and we hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry. I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us—DOMA’s constitutionality—but also a question that all agree, and the Court explicitly acknowledges, is not at issue."

    Alito went even further in his separate dissent, stating: "Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law. The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue."

    Thomas and Scalia aren't even worth considering.

    Until SCOTUS grants cert and holds oral argument in the next marriage equality case AND one of the dissenters in Windsor signals he is more open to our side's line of reasoning, I think our best hope is a 5-4 split in favor of equality.

    Furthermore, not to sound overly pessimistic, but there's no guarantee that Kennedy is prepared to go that far yet, as even Ginsburg said a year ago that there is a danger in the Court's moving too quickly on the issue. Obviously A LOT has changed since then, and I'm not really worried now that Ginsburg and Kennedy won't rule in our favor, but I think it's important to remember that that's where things stood just last year.
    http://www.huffingtonpost.com/geoffrey-r-stone/ju

  • 34. Zack12  |  July 12, 2014 at 9:51 am

    Indeed, but as Scalia pointed out in his dissent, Kennedy isn't stupid.
    If he had wanted a narrow ruling that would slowed the pace of marriage equality, he would have ruled on state's rights in striking down the ban.
    He didn't and Scalia correctly predicted that the court would be dealing with this issue sooner versus later.
    Bottom line, there will be some backlash but it still won't be like with Roe V Wade.
    They are two seperate issues and I've met many who support the former but not the latter.

  • 35. Ryan K.  |  July 12, 2014 at 9:58 am

    All the more reason a case needs to be granted during the next term while the five-member Windsor majority remains on the court. A loss of one of those Justices combined with a potential Senate confirmation process run by a GOP majority isn't what I want to endure and have my rights decide by. Now, if for some reason Scalia was no longer able to serve on the court and the Democrats retain the Senate and Obama can nominate a replacement…

  • 36. BenG1980  |  July 12, 2014 at 10:08 am

    Haha, now you're the one engaging in wishful thinking, Ryan. Would that Scalia were to depart the Court!

  • 37. Ryan K.  |  July 12, 2014 at 10:13 am

    I did go half-glass full there at the end with a wish upon a star kinda of moment. Maybe he will cut a deal with Ginsburg and they retire together!

  • 38. RnL2008  |  July 12, 2014 at 10:27 am

    That's okay….like I said, it's just my opinion and in reality it will probably be a 5-4 vote in our favor, but sometimes I believe it's best to be more optimistic!!!

  • 39. RnL2008  |  July 12, 2014 at 10:32 am

    See Ben, the problem is folks keep discussing "SAME-SEX" marriage and it simply DOESN'T exist…….we NEED to stop using the words "GAY" or "SAME-SEX" and just discuss MARRIAGE because that is what we are looking for the right of….and the question that MUST go in front of the high court is this……"Is marriage truly a Fundamental right without regards to a specific gender"? As long as folks keep using the words "GAY" or "SAME-SEX" in front of marriage it looks as if we are seeking some "SPECIAL" right and we're simply NOT doing that!!!

  • 40. RnL2008  |  July 12, 2014 at 10:34 am

    You could be right…….it is more likely to get a 5-4 vote, but I still stand by my opinion…….and I still believe that SCOTUS will do the right thing regarding individual rights!!!

  • 41. RnL2008  |  July 12, 2014 at 10:35 am

    I believe that Justice Scalia MIGHT be the one…….just because if the right question is presented to the high court, Justice Scalia will more than likely see it as a FUNDAMENTAL right and NOT a new right……again just my opinion!

  • 42. BenG1980  |  July 12, 2014 at 10:39 am

    Rose, I really, really, really hope you're right, but I also think it's really important to stay realistic about our chances.

    An adverse ruling by SCOTUS could take decades to overcome. It wasn't until Brown v. Board of Education (1954) that the Court overruled its completely immoral decision upholding "separate but equal" in Plessy v. Ferguson (1896). And, more recently, it wasn't until Lawrence v. Texas (2003) that the sodomy bans upheld in Bowers v. Hardwick (1986) were found to be unconstitutional.

  • 43. Ryan K.  |  July 12, 2014 at 10:46 am

    Hence why I only and always refer to this as marriage equality; no additional rights are being requested, just the same rights. And in just rereading Windsor now, I am reminded that Justice Kennedy utilized children and family as a big rationale for his decision, which he can rely upon when Kitchen or another cases reaches SCOTS: "The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

  • 44. Zack12  |  July 12, 2014 at 11:13 am

    Scalia will never, ever, EVER vote in favor for marriage equality.
    I know it's your own option but you need to learn some history on some of these judges.
    Scalia has made it clear he supports laws that put us in prison solely for having consensual sex in our own homes and wrote a dissent comparing us to pedophiles, zoophiles and murderers among other things.
    He has gone to continue that comparsion in interviews about us and has made it clear he doesn't view our community as being derserving of equal rights.
    So the idea the right question could get asked is wishful thinking.
    I'm not being harsh, just telling the truth when it comes to Scalia.
    He hates our community, plain and simple.

  • 45. Rakihi  |  July 12, 2014 at 11:29 am

    I'm a bit more optimistic that Roberts will be a sixth vote in favour of Marriage Equality.

    He may have serious flaws as a SC justice, but he's not stupid. For one thing, he hasn't turned 60 yet and is doubtless planning on serving on the court for decades to come. He doesn't want his legacy and credibility on the court tainted by an opinion that will doubtless be likened to the infamous Plessy v. Ferguson decision.

    Last year's court cases allowed Roberts to duck the issue of whether the fundamental right to marry applies to gays and lesbians. He won't be able to get away with that in many of the upcoming cases.

    And let's face it, even someone as smart as Roberts can't magically conjure up a convincing argument against Marriage Equality where none exists. Given that his own marriage has failed to produce biological offspring, he sure won't be able to trot out the "Marriage is for procreation" canard.

    Also, if he's in the majority, as chief justice it's his prerogative to assign who will write the opinion, or he could even write it himself, which would allow him to limit its impact to just marriage rather than the wider question of whether or not anti-gay discrimination should officially be subjected to a higher level of scrutiny.

  • 46. JayJonson  |  July 12, 2014 at 11:39 am

    Roberts did NOT duck the issue last year. He went out of his way to say that he believed DOMA to be constitutional. He could have ducked the issue by saying only that the Bipartisan Legal Advisory Group or the federal government lacked standing, but he deliberately said that he believed DOMA to be constitutional. If he believed DOMA to be constitutional, he will certainly believe that Utah's state ban is constitutional.

  • 47. JayJonson  |  July 12, 2014 at 11:45 am

    Yes, the Court needs to rule quickly while we have a 5-vote majority. Should any of the justices retire, no one that Obama nominates will be approved. Republicans will filibuster any nomination by the President. If either Kennedy or Ginsburg, the most likely candidates for retirement, should step down, a decision of the right to marry will be at best 4 to 4. It is simply not plausible than any of the justices who voted in favor of DOMA would suddenly find that a state ban on same-sex marriage is unconstitutional.

  • 48. brandall  |  July 12, 2014 at 11:53 am

    RnL – I agree with you because SS or gay comes off as extending something to us and that just pisses me off. If I were running HRC when all of this started, I would have used "non-recognition laws" or "marriage bans"….simply because it emotes something is wrong. Just my 2 cents. We are where we are.

  • 49. BenG1980  |  July 12, 2014 at 12:03 pm

    I completely agree. If you read my post above (and every one of my other posts on this site), I consistently use the term "marriage equality." Alito and Roberts are who you need to convince, not me. :)

  • 50. RnL2008  |  July 12, 2014 at 12:04 pm

    Yep and as long as folks continue to use those words in front of the word marriage it makes it look like we are seeking something else besides just the right to marry…….and that's what the anti-gay folks want to continue to perpetrate!!!

  • 51. RnL2008  |  July 12, 2014 at 12:06 pm

    He may NOT want to, but the one thing about Scalia that is true….is he does to some degree believe in the Constitution and it will be hard for him to vote against that which has already been ruled a FUNDAMENTAL right….just saying……..and just to let you know, I do know something about the various Justices!!!

  • 52. harry_balz  |  July 12, 2014 at 12:08 pm

    It would be a rare event indeed if a person on his way to commit mayhem or mass murder would be walking down a street openly displaying a firearm. There is no more reason to fear an armed person in public not wearing a uniform than one who is wearing one.

  • 53. RnL2008  |  July 12, 2014 at 12:21 pm

    True…….the ones who can do the convincing seem to NOT do it……the rest of us just get to sit and wait and hope that the lawyers going in front of these Justices are prepared to be grilled!!!

  • 54. RnL2008  |  July 12, 2014 at 12:23 pm

    I see your point, but remember…..it's been a little over a year since the ruling on Section 3 of DOMA and he has family that is Gay or Lesbian who might, just might have given him some reason to see this differently…….I'm NOT saying he will, but if there is a small chance…we need to take it!!!

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

    Addressing your viewpoint on the term ME, I just had another thought after I wrote the comment to RnL below. I'd wager a $1,000 that HRC, ACLU, NCLC, et al did some heavy national market research on the terms SSM, ME, bans, non-recognition, etc. ME probably scored higher and they had to have taken into account the lower courts and SCOTUS. They needed a single phrase that would appeal to both the political and the legal aspects of this effort. Putting my personal opinion aside, they did what was best for the combined audiences they needed to reach.

    I thought the term ME came into use in the middle of the last decade. I just remember "gay marriage". But, it turns out that phrase goes back to well before 1990!

    Ari Waldman wrote a long and interesting article on what marriage terms to use before the courts in 2012: http://www.towleroad.com/2012/02/marriageequality

  • 56. Zack12  |  July 12, 2014 at 12:46 pm

    Rose, he had a lesbian cousin whom he invited to the hearings on Prop 8 and DOMA.
    A cousin that recounted on numerous stations the hardships she and her wife had faced due to these bans.
    He knew a family member that was personally affected by these bans, a family member he claims to love.
    And he voted against her in DOMA and more or less stated he saw nothing wrong with the bans.
    I know you want to see the good in people but here's the brutal truth.
    For many bigots that support bans, having a gay or lesbian family member doesn't change a darn thing for them.
    They remain just as bigoted as they ever were.
    We only need five votes and I think we have them. I'm not going to worry about the bigots who aren't going to be moved no matter what.

  • 57. Zack12  |  July 12, 2014 at 12:48 pm

    Scalia has no qualms voting against groups he doesn't like and completely ignoring the Constitution to validate his far right viewpoints.
    He is a no vote, period.

  • 58. brandall  |  July 12, 2014 at 12:50 pm

    To BenG1980:

    "Elena Kagan Says She Likes To Hunt With Antonin Scalia"
    http://www.huffingtonpost.com/2012/10/19/elena-ka

  • 59. Steve  |  July 12, 2014 at 1:22 pm

    Hunting accidents happen. Ask Dick Cheney

  • 60. Steve  |  July 12, 2014 at 1:25 pm

    It's hard to believe that you know anything about Scalia

  • 61. Fledge01  |  July 12, 2014 at 1:27 pm

    Kennedy's ruling in DOMA, as Scalia pointed out, changed the framework from which the judges will be analyzing the law. Who knows, maybe even Scalia will say he has no choice now but to support Marriage Equality based on the DOMA ruling. I do feel that prior to DOMA there was a somewhat valid legal argument that DOMA was in fact constitutional (I didn't agree with that argument at all, but if you look at the law through the eyes of someone who was raised and lives in a bigotted culture, the right to marriage equality isn't obvious under the law).

    However, the impracticality now of having so many people being recognized as being married federally and not having their state recognizing it, changes everything. The fact that people are married on one side of the bridge, but not on the other side changes things. Amy families having their marriage status changed each month when the move to a new base… Even if their was a good argument against marriage equality before and you didn't find a fundamental right for marriage equality before, this past year creates a legal motivation to find that right today.

  • 62. BenG1980  |  July 12, 2014 at 2:07 pm

    Not to mention that conservatives/strict constructionists/originalists like Scalia have long railed against what they consider to be the "discovery" of fundamental rights "within the protected penumbra of specific guarantees of the Bill of Rights" that are not explicitly written in the Constitution (quoting Griswold v. Connecticut, 1965).

  • 63. BenG1980  |  July 12, 2014 at 2:20 pm

    lol. Note that I chose my words above carefully. I intentionally didn't specify the terms under which such a departure would take place as I wouldn't wish death or incapacitation on any political opponent, but accidents do happen.

  • 64. JayJonson  |  July 12, 2014 at 3:11 pm

    Although SCOTUS expects lesser courts to follow their precedents, the Justices themselves do not necessarily do so. Romer did not cause Scalia to rule that gay people should not be subject to imprisonment; Lawrence did not cause Scalia to believe that the relationships of gay people should be accorded dignity. The Justices do not consider themselves bound by previous rulings unless it suits them. I would be surprised–nay, astounded–if any of the four justices in the minority on DOMA cast a vote in favor of marriage equality when Herbert or some other case reaches them.

  • 65. RnL2008  |  July 12, 2014 at 3:21 pm

    Hi Zack…….I still hope that Chief Justice Roberts has grown some over the last year…….or maybe he hasn't………I still believe that given the right circumstances that Justice Scalia will be that 6th vote and NOT Roberts……but hell, I've been known to be wrong on many occasions!!!

  • 66. RnL2008  |  July 12, 2014 at 3:22 pm

    Oh and just so ya know…..it matters NOT if you agree with me, dislike my opinion and mark me down or if you think I'm nuts……..I'm still entitled to an opinion and I'm still on the side of Marriage Equality……so, for those who feel it necessary to give me negative thumbs down…….I just laugh at you………..enjoy your day!!!

  • 67. harry_balz  |  July 12, 2014 at 4:08 pm

    I see at least 2 cowering paranoid readers have declined to think.

  • 68. sfbob  |  July 12, 2014 at 4:16 pm

    Well I'd like to think you could be right, but in my experience, Scalia is so incredibly opposed to us having any rights that he will say just about ANYTHING, no matter how much it contradicts legal precedent, the plain wording of the Constitution, or what he said in a different opinion on another subject, just to avoid deciding something in our favor.

  • 69. Steve  |  July 12, 2014 at 4:23 pm

    "I've never wished a man dead, but I have read some obituaries with great pleasure." – incorrectly attributed to Mark Twain

  • 70. dingomanusa  |  July 12, 2014 at 4:41 pm

    Rose I respect your opinion, and gave you an up vote. Some people just can't seem to accept differing opinions so they vote down. I wouldn't take it personally.

  • 71. Margo Schulter  |  July 12, 2014 at 5:04 pm

    With SCOTUS, it is true both that all constitutional questions are in principle open, so that precedent is not absolutely binding; but also that the justices often do find it correct to accept as precedent previous decisions from which they dissented.

    A classic example of not feeling bound to precedent is provided by Justices Marshall and Brennan from 1976 on, expressing their conviction (despite Gregg v. Georgia, which ruled otherwise by 7-2) that the death penalty invariably violates the Eighth Amendment by dissenting from denial of certiorari or of a stay of execution in every capital case. With grim, I reflect that in a few of those cases, “Gay means stay” might have saved a life.

    But often the justices feel bound by precedent, at least until they have a majority ready to overrule it. That was the position of Justice Stevens in 2008, shortly before his retirement, when in Baze v. Rees he wrote a concurring rather than dissenting opinion expressing his view that the death penalty was unconstitutional, but declining to break from the precedent of Gregg unless or until four colleagues agreed.

    One motivation for Chief Justice Roberts to take a pro-ME position in a coming case could be a desire both to shape and limit the scope of the ruling, and to achieve a positive heritage. He might also feel, as has been pointed out, that the complications under our federal system raised by a patchwork quilt of marriage laws calls for the resolution of a pro-ME ruling on narrow grounds (with the Tenth Circuit showing the way, another facet of the already recognized fundamental right of marriage under the Due Process Clause).

  • 72. bayareajohn  |  July 12, 2014 at 5:12 pm

    Disagreeing with you is not the same as not thinking. And you get more pluses when you aren't deliberately insulting. Your aggressive choice of name doesn't help readers take you as a positive contributor either. You may find downvotes on your more neutral comments too, carryover from this one and your name.

    It's not that rare for killers to brandish and not conceal on their way to mayhem. Review the Utah shootings. Certainly not rare enough to presume exposed guns to mean ALL-OK,

    I believe that thinking people who see a person in public carrying one or more assault-capable weapons exposed makes a reasonable presumption that the weapons were brought in order to be used. And death may be a breath away, by intent or by accident.

  • 73. bayareajohn  |  July 12, 2014 at 5:16 pm

    See that? Positive comment, helping, downvoted probably because you pissed folk off above when you called them names.

    I upvoted here, FYI, Not so much above where you chose to be offensive.

  • 74. Steve  |  July 12, 2014 at 5:40 pm

    Of course people can have differing opinions. That doesn't mean they can't simply be wrong.

  • 75. BenG1980  |  July 12, 2014 at 5:47 pm

    Here's an interesting article published in 1990 in the Duke Law Journal that discusses Scalia's approach to fundamental rights adjudication based on his plurality opinion in the case Michael H. v. Gerald D. (1989).
    http://scholarship.law.duke.edu/cgi/viewcontent.c

    "In Michael H., Justice Scalia expressed concern over the Court's propensity for invalidating legislation on the basis of the fourteenth amendment's due process clause, and he implied that judicial activism has undermined the legitimacy of the Court. Justice Scalia urged the adoption of his approach to fundamental fights adjudication as a means to avoid arbitrary decisionmaking by jurists."

    I find it impossible to believe that Scalia would ever rule in favor of marriage equality by overturning state marriage bans and non-recognition laws. Ever, ever, ever.

  • 76. SeattleRobin  |  July 12, 2014 at 6:12 pm

    Based on the few things I've read or seen, I think the issue with Scalia is that he's very old school on this subject. He believes that gay people (he'd say homosexuals) are morally corrupt sexual perverts. As such, we are individuals who have made bad choices, or are too weak-willed to restrain our baser instincts.

    Understanding that viewpoint is important because, if the above is true, homosexuals are not really a minority in the traditional understanding of the word in relation to laws and protections. Morally debased individuals (not a group, community, or minority) do not have a right to protection of the very thing that makes them morally debased. To someone who thinks this way, it's insanity to believe the government would or should.

    Obviously I don't agree with any of that. But when you don't start from the premise that most people are born with their orientation and that it's mostly impossible to change, and instead believe it's entirely a moral issue, the logical outcome is entirely different.

    It's infuriating, but believe it or not, my wrath and disgust with Scalia's stance finally made me able to think about it and finally comprehend at least somewhat where people like him are coming from. The good news is, the majority of newer generations don't believe as he does, so they have a totally different idea of what is right and fair under the law.

  • 77. RnL2008  |  July 12, 2014 at 6:17 pm

    Oh, I don't……been on other blog sites before and have dealt with all sorts of folks in that time and if people want to vote me down instead of engaging in a debate……it just shows me how shallow they are………there are some on this site that I have seen posting for a number of years and respect their viewpoint….sorry they can't respect mine!!!

    Peace:-)

  • 78. RnL2008  |  July 12, 2014 at 6:22 pm

    I could be totally wrong with regards to Justice Scalia…….but only time will tell and we will probably see come June of 2015………I still think that he will vote in our favor just to NOT look like a two-faced individual and lose ALL credibility…..but again…just my opinion……..frankly, I'd have NEVER thought he would have been in the majority on the Standing issue with regards to Prop 8…….so, see……miracles could happen.

  • 79. BenG1980  |  July 12, 2014 at 6:36 pm

    I agree it's very ironic that Justice Scalia's vote in Hollingsworth v. Perry helped restore marriage equality to California, but, unfortunately, the impact of the decision on the California ballot proposition system was arguably anti-democratic.

    "In rejecting an appeal by private supporters of California’s Proposition 8 on standing grounds, the U.S. Supreme Court installed new limitations on the citizen initiative process that will strip ballot measure backers of judicial redress and effectively immunize some court decisions from appeal, experts say." http://www.faegrebd.com/webfiles/Prop 8 Stand…

  • 80. Zack12  |  July 12, 2014 at 7:30 pm

    My final word on this subject.
    Scalia is NOT, I repeat, NOT going to vote in our favor.. EVER.
    He views as people that deserve to burn in hell and he won't give a damn how many courts rule otherwise.
    There is NO circumstance under which he would vote for us, NONE.
    I know you want to think otherwise but that is the truth.

  • 81. BenG1980  |  July 12, 2014 at 8:14 pm

    Perfect quote. Of course my natural curiosity (some would argue obsessiveness) forced me to Google it to determine the actual source. Turns out it's anonymous — but, quite appropriately in the context of legal cases, famed ACLU lawyer Clarence Darrow apparently said something quite similar. http://www.thewire.com/national/2011/05/mark-twai

  • 82. RnL2008  |  July 12, 2014 at 9:04 pm

    Sorry Zack, but that's NOT the truth, it is however your opinion, but UNLESS you have a crystal ball and can read into the future……..NO ONE knows for sure how Justice Scalia will vote……he could follow his standard course and vote against us, as you see it…OR he could vote in our favor, but that really is NOT going to happen just because your opinion is one way and mine is another….so, we wait and see!!!

  • 83. RnL2008  |  July 12, 2014 at 9:06 pm

    Interesting, that somebody like me, who is NOT a lawyer, but is educate…would have a follower………..I will probably disappoint you Ben, but hopefully we can have some decent conversations.

    Enjoy the rest of your weekend!!!

  • 84. DocZenobia  |  July 12, 2014 at 9:34 pm

    Scalia has no problem with us being sent to prison. In fact he was cited extensively in the recent Indian Supreme Court decision reinstating the sodomy laws. Scalia thinks that if it wasn't unconstitutional in 1789 then it's not unconstitutional today. I'd venture a guess he'd think it was perfectly legal to burn us at the stake.

  • 85. DocZenobia  |  July 12, 2014 at 9:36 pm

    Scalia's son runs a gay "conversion" ministry. The apple didn't fall far from the tree there.

  • 86. DocZenobia  |  July 12, 2014 at 9:45 pm

    Given that there has been a unanimous series of fed and state rulings since Windsor, and that the polling is strongly turning in our direction, and that all but the most zealous Republicans desperately want to change the subject, and that Kennedy has consistently ruled in our favor and that an opinion in our favor would let him author a landmark decision that would cement his reputation as one of the most consequential Supreme Court justices in history…

    …I wouldn't lose much sleep over how this decision is going to fall. Kennedy is the judge who said Bowers was wrong at the time, and is still wrong today.

  • 87. DocZenobia  |  July 12, 2014 at 9:51 pm

    I'm not fond of the voting mechanism, but a negative vote only denotes disagreement. It's possible it could mean something more from some, but the only thing you can validly conclude is some degree of disagreement.

  • 88. RnL2008  |  July 12, 2014 at 10:26 pm

    To be truthful…….if someone wants to disagree with me, then all they have to do is post a comment in disagreement……..I don't care one way or the other, but I'm the sort of person to explain at least why I disagree with someone's comment….but then…that's just me!

    This issue is certainly a hot button item and like I stated……..there have been certainly surprises along this ME journey…….and anything is possible….maybe NOT probable…..but only time will tell.

    I'm certainly NOT a fan of Justice Scalia's and he has made some of the worse anti-gay comments I've read….but that DOESN'T mean that he can't get out of his own way to vote for something he has stated was a Fundamental right…….unless of course he DOESN'T mind looking like a hypocrite!!!

  • 89. BenG1980  |  July 12, 2014 at 10:40 pm

    I do agree with you as things stand today, given the yet unbroken string of victories in the district, circuit and state marriage equality cases that speaks volumes. But it was a different landscape in May and June of last year, both immediately before and immediately after the Windsor and Hollingsworth decisions, with considerably less clarity.

    The major points I'm trying to make (perhaps less than clearly) are: 1) even a 5-4 split in our favor would be a monumental win, and 2) our side should be careful not to be over-confident and unrealistic because the stakes remain so high.

    While a 6-3 or 7-2 decision would be awesome, let's not start chasing ghosts at a time when we have victory within our grasp.

  • 90. RnL2008  |  July 12, 2014 at 10:46 pm

    I would tend to agree with you about being overly optimistic or becoming over confident………but I also still believe that individual rights means something to the Justices on the Supreme Court….though after the Hobby Lobby ruling, I'd have to admit that I have some concern going forward with this current make-up of SCOTUS……..hopefully though President Obama gets at least a chance to change the High Court one more time before leaving office……another wait and see concern!

  • 91. BenG1980  |  July 12, 2014 at 11:02 pm

    Thanks, Rose. You too! And I love your enthusiasm. Being a lawyer is over-rated. We can be so boring sometimes. :)

    Reading your profile summary about following marriage equality since before the passage of Prop 8 makes me reminisce about my own interest in the topic.

    As an openly gay law student starting in 2002, my area of concentration was family and juvenile law, and I clerked for a lesbian attorney who helped establish the first co-parenting agreements for LGBT couples in Ohio. In the summer of 2004, my boss and her wife got married in Provincetown, MA during the first summer it was legal following the Goodridge decision in late 2003. At the time, it just seemed so pointless to me, because of the federal DOMA and the marriage bans and non-recognition laws in Ohio and so many other states. However, since DOMA has fallen and many more states have adopted marriage equality one way or another, I have recognized how prescient my boss was back then. It's been remarkable to watch the steady progress since the early state cases (e.g., Massachusetts, Connecticut, Iowa), the first state statutes (e.g., Vermont, DC, New York), and the original state referenda (e.g., Washington, Maine, Maryland).

  • 92. sfbob  |  July 12, 2014 at 11:24 pm

    Certainly everyone is free to use the rating system as they wish. Actually I often uprate comments I disagree with as long as they are simply expressing a point of view different from my own. People say things I wasn't aware of or haven't considered or else I disagree as a point of principle or strategy. Anything that moves the conversation forward, even if it's a bit contrarian, is worth saying (in my opinion). I save the negative votes for comments that are rude or disrespectful or trollish.

    While my assumption is that most everyone who comes to this site–other than the obvious trolls and other types who just like to stir sh!t up–does so because they support marriage equality, that doesn't mean, at least to me, that we can't have different viewpoints on all sorts of things–strategy, tactics, what's a good idea and what isn't, what something that's taken place might mean. Also I don't think there's any point in downrating bad news. Bad news may suck but it's part of reality.

  • 93. RnL2008  |  July 12, 2014 at 11:34 pm

    Well, through the last 6 years of me doing my part with regards to ME, I've gotten to know a couple of lawyers who have given me some kudo's for learning so much about how our system truly works…….I use to read all of the briefs and rulings completely…now, most just seem to do a lot of copying and pasting from each other and the argument is old from the anti-gay folks……..but reading the comments from this site really has helped me continue to learn.

    I appreciate your comments and look forward to them as this fight wages on!!!

  • 94. sfbob  |  July 12, 2014 at 11:50 pm

    Thanks for that. It was tough going but hopefully I understood it.

    The crux of the matter is that Scalia is just fine with using "tradition" as the basis for upholding a law. I don't seem to be able to cut and paste and I don't want to have to type the whole thing out myself but the assertion is that Scalia uses tradition not merely as a guide but as the entire basis for his judicial philosophy when it comes to fundamental rights adjudication. If we traditionally banned it, that's good enough for him. The biggest issue is that the definitions of "tradition" and "traditional" are subject to manipulation in the interest of the jurist's favored prejudices.

  • 95. sfbob  |  July 12, 2014 at 11:56 pm

    I certainly understand why many have a problem with the outcome of Hollingsworth vs Perry for the reasons you have cited. I must confess that I hold a different view: I was quite disturbed that the California Supreme Court granted the proponents of ballot initiatives the right to defend them when elected officials refuse to do so. When I was younger I used to think that ballot measures (which were virtually non-existent where I grew up) were just the most wonderful thing in that they expressed "the will of the people" and that sort of thing. After having moved to California and now having lived here for almost thirty years, I find the initiative system to be so problematic that, I must admit, I was happy to see the Supreme Court turn things back. I never felt that the proponents of Prop 8 had a particular and concrete interest in the invalidation of the Proposition any more than did the folks who voted in favor of it and that as a result the governor and the attorney general were quite within their rights to kill it by refusing to defend it. I realize that there are compelling reasons in support of the contrary and I accept and respect that others are going to disagree with me here but…well there are just a host of reasons why I was happier with the result even if it led to what some view as a less robust win for us than we might have wished for.

    For what it's worth, and pertinent to the discussion below, I uprated your comment even though my views on the issue happen to differ.

  • 96. bayareajohn  |  July 13, 2014 at 1:45 am

    The main times I downvote are when I feel a post is arrogant, intolerant, abusive, willfully myopic, or intentionally offensive or agitating. Challenging the writer with a reply often is pointless troll-feeding. The other reason is when someone poses an opinion, as an opinion, that I simply disagree with. No malice, no insult, no cowardice, just, "I don't think so". I think folks who insist that voting without comment is cowardice simply can't stand missing a chance to argue. I see no reason to take it personally when I'm downvoted, either.

    People can use the votes as they wish. I'm not impressed with folk who tell other folk how they have to use a system they don't own.

  • 97. Rakihi  |  July 13, 2014 at 3:34 am

    I re-read the part of my post you took issue with to see if I misspoke. Having done so, I stand by what I wrote:

    "Last year's court cases allowed Roberts to duck the issue of whether the fundamental right to marry applies to gays and lesbians. He won't be able to get away with that in many of the upcoming cases."

    Roberts may have proffered his opinion that DOMA was constitutional, but his utter failure to provide a justification for that belief beyond a single sentence ("Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.") is, I would argue, tantamount to ducking the issue.

    When Marriage Equality returns the Supreme Court, Roberts will either have to vote in support, or explain why he thinks the fundamental right to marry extends to childless couples, deadbeat parents, inmates, and really just about everyone else EXCEPT for gay couples.

  • 98. F_Young  |  July 13, 2014 at 3:47 am

    DocZenobia: "a negative vote only denotes disagreement."

    I agree.

    I prefer a downvote than yet another post explaining their disagreement. If everybody who disagreed with somebody's posts posted their own counter-argument, the site would be quickly buried with arguments that would be nearly impossible to follow; in fact, it's leaning in that direction already..

    Downvoting instead of arguing is not a sign of shallowness anymore than an upvote is.

  • 99. RQO  |  July 13, 2014 at 5:05 am

    About Scalia and Prop 8/Hollongsworth- remember Windsor was running concurrently. A theory floated by several writers at the time went that the 4 ultra conservative judges granted cert to Hollingsworth thinking they could "win", and when they saw Kennedy running the other direction, bailed as expeditiously as possible. Alas, I do not think Scalia will ever vote, in any way shape of form, for LGBT rights. He thinks "simple moral disapproval" is sufficient justification.

  • 100. Fledge01  |  July 13, 2014 at 6:17 am

    The votes against DOMA last year on SCOTUS should not necessarily be seen as being a vote for or against Marriage Equality in each state, at that time last year. There are several reason the court chooses narrow rulings. One is because the larger issue is not before the court. Another is that the majority couldn't get enough votes to make it a majority if they extended their thinking to the larger issue. Third, is that sometimes the court simply wants to slow the pace of drastic legal changes.

    Clearly the four dissenters would not have ruled that states are required to allow marriage equality last year. Perhaps Kennedy didn't believe that the right to marriage trumped state's rights. Perhaps all the judges thought such a drastic change was too quick for juris prudence.

    Regardless, of the four justices that couldn't even come around to vote with Kennedy last year, at least Robert's has a strong desire to focus on the role and function of the court in how he rules that can trump how he might otherwise rule. He, as all justices have said, they don't always rule how they think the law should be. They all compromise at times on their opinions simply to create a stronger majority rather than always having a 5-4 split. This current court has a very strong tendency to compromise and that is shown in how very few rulings are 5-4 (13%) this past term versus the 63% that were a unanimous. They limit the scope or change ideas to try to get to that point.

    One thing even many of the conservatives hate is to change a ruling within just a few years. Doing so hurts the institution of SCOTUS. Precedent has different weight to different judges, but regardless, it always has more weight the more recent the previous opinion. In that light, Kennedy's ruling last year will make it very hard for the court to craft an opinion against marriage equality that doesn't end up making a mockery of Kennedy's words last year in DOMA.

  • 101. JayJonson  |  July 13, 2014 at 6:39 am

    To say that Congress was amply justified to adopt DOMA is not to duck the issue. it is to confront it head-on and without ambiguity. It is to say that the law was entirely rational and should have been accorded deference.

    He will say the exact same thing about state DOMAs. He will likely phrase it like this: "Under our federal system of government, states may adopt policy decisions about marriage that differ from state to state. It is not the role of this Court to decide which policy decision is appropriate for each state. Judicial restraint requires that we respect our federal system and allow each state to determine its policy on the question of same-sex marriage."

    He will also, as he did in the oral arguments re Windsor, scoff at the notion that gay people lack political power and say that as public opinion changes on the issue, states may well change their marriage laws via the legislative process. But in any case, marriage regulations are traditionally the province of the states and should remain so.

  • 102. Ragavendran  |  July 13, 2014 at 7:15 am

    It remains to be seen what BS Utah will put forth in their application to SCOTUS for a stay. I'm guessing they'll pull all the stops. I don't think so, as the justices are unlikely to read cert petitions during recess. No, nothing obligates SCOTUS to do anything.

  • 103. JayJonson  |  July 13, 2014 at 9:25 am

    Attorney General Holder has declared that the Justice Department will argue that state bans on same-sex marriage are unconstitutional if SCOTUS grants cert to Herbert or other marriage ban case.

    Read more here: http://www.pinknews.co.uk/2014/07/13/eric-holder-

    Meanwhile, Chris Christie tells Republicans that they should continue fighting marriage equality.
    Read more here: http://time.com/2978824/chris-christie-gay-marria

  • 104. Sagesse  |  July 13, 2014 at 9:29 am

    What happens when the rights (fundamental or otherwise) of the parties and others are in conflict. In the case described in the Duke article, what about the rights of the child, who seems to be pawn in the case, rather than a party?

    It seems to me if the court is going to opine that the rights of Party A prevail… say, Hobby Lobby's owners… they should also have to consider the rights of the other parties affected… say, Hobby Lobby's employees… and explicitly say why the religious freedom of Hobby Lobby's owners deserves to be respected and the liberty rights of its employees do not. It would make for some pretty uncomfortable wording in Supreme Court rulings… which they can now choose to ignore, rather than address.

  • 105. SeattleRobin  |  July 13, 2014 at 9:39 am

    I'm pretty sure no state allows sibling marriage, even when inability to procreate is proven. Some states allow first cousins to marry once they are beyond child bearing years.

    The step relationship aspect is kind of interesting. I don't remember which state this was, but one of the briefs or decisions I read included the full statute on who was prevented from marrying, and close step relationships were included in the prohibitions. (Basically, if prevented in blood relationships, also prevented in step relationships.)

    On the one hand that makes sense because there's the issue of undue influence or coercion by a person who has had an authoritative role over the other. On the other hand, it's not difficult to imagine situations where the individuals met as adults, and with no blood ties the prohibition seems pretty shaky. But not all states have these same rules.

    In general though, I think that it's important to understand that the taboo against incest is one of the strongest taboos existing in our culture. As a people we tend to get more open-minded about a lot of things over time, but that isn't one of them. As an example, a few years ago I read an excellent new book from fantasy author Tanya Huff. But many of her fans were disgusted and outraged at the incest in the book. The "incest" that had them all atwitter was between cousins.

  • 106. JayJonson  |  July 13, 2014 at 9:57 am

    Re the discussion above about whether any of the Justices who were in the minority in Windsor might change their votes in the next marriage equality case SCOTUS considers: I think it is delusional to believe that any of the four would find that the fundamental right to marry extends to same-sex couples. However, I think it possible that Roberts might join a finding that all states are required to recognize valid same-sex marriages that have been performed in other states. The full faith and credit clause of the Constitution is also an aspect of federalism.

    That would not be the ruling we desire and deserve, but it would be an important step forward. Not only would it extend marriage to same-sex couples who could afford to travel to another state, but it would put a great deal of economic pressure on states to enable their citizens to marry at home. National conventions and sports events would boycott states that had not achieved marriage equality. Soon, most states would allow same-sex couples to marry. The ones that did not would be considered backward and retrogressive: read Mississippi, Alabama, Oklahoma.

    However, I do expect that if the Court's composition remains the same, there will be a 5-4 ruling authored by Kennedy that strikes down state bans on same-sex marriage as a violation of equal protetection and establishes a fundamental right for same-sex couples to marry.

  • 107. BenG1980  |  July 13, 2014 at 9:58 am

    Thanks for the upvote, and I upvoted you. I think there are valid arguments on both sides of this issue, and you make a persuasive case. It just seems to me that since the whole point of the referendum system is to allow voters to change the law when elected officials refuse to do so, allowing elected officials to get away with not defending such changes while simultaneously barring the proponents from appealing adverse court cases undercuts the entire the system.

    I was thrilled with the end result in Hollingsworth because it led to the restoration of marriage equality in California, but I can imagine many other contexts in which I'd want to see a ballot proposition zealously defended. It's another question whether the referendum system itself is useful or should be done away with, but Hollingsworth merely neutered the system and left it in place.

  • 108. LK2013  |  July 13, 2014 at 10:18 am

    Thanks. There are folks in NJ who are deluded enough to think that Christie "secretly" supports marriage equality, despite his open opposition to it. Maybe this article will hammer home that he is a through-and-through di*k on the subject. Note that he mentions the possibility of future legislation to un-do marriage equality, too. Make no mistake about his energetic opposition to anything good and just for NJ citizens, and others.

  • 109. DACiowan  |  July 13, 2014 at 10:18 am

    WTF Christie, I thought you wanted independent voters.

  • 110. SeattleRobin  |  July 13, 2014 at 10:23 am

    Your point about Roberts and possible support of striking down marriage recognition bans coincides with what I've said, that the argument against those bans is even stronger than against the bans on issuing marriage licenses.

    It's one thing to say it's state policy that you can't marry here. It's an entirely other thing to say that if you're already married your marriage will be unmade by state law if you move here.

    Leaving aside equal protection and fundamental rights, the former is a state exercising their right to set domestic policy. The latter is a state dissolving a contract without consent of the parties to the contract. There's a higher bar to get over to make that constitutional.

  • 111. BenG1980  |  July 13, 2014 at 10:25 am

    Nope, not anymore. He gave up the appeals in NJ before his reelection as governor. Now that he's been reelected, he needs to pander to the right-wing base of his party nationwide in anticipation of the 2016 presidential primary season. Only if he wins the presidential nomination will he want independent voters again.

  • 112. JayJonson  |  July 13, 2014 at 10:33 am

    Yes. Your last paragraph is especially significant.

  • 113. JayJonson  |  July 13, 2014 at 10:35 am

    He wants the Republican nomination first, then he'll pretend to be a "moderate," hoping that independent voters will forget what he had to do to get the Republican nomination.

  • 114. Steve  |  July 13, 2014 at 10:36 am

    Again with the "it's just a disagreement" BS. They just don't get that this is about people's lives.

  • 115. SeattleRobin  |  July 13, 2014 at 10:42 am

    I have mixed feelings about it. In Washington we have the initiative process for citizens. (A referendum is when the legislature passes a law and then it's put up for a vote of the people for final approval.) I have seen some great initiatives and some bloody awful ones. Sometimes Washingtonians are smart, and sometimes just plain stupid in our voting. But I do treasure the right of citizens to enact law.

    If an initiative that I felt strongly for was not being defended by the state I would be spitting mad. I would definitely think that someone else would have the right to intervene in defense.

    But I think the chance of it all falling apart is fairly small. First, it's rare for the state to not defend its laws. When that decision is made there is usually an excellent reason for it. Second, in a case where there isn't, that doesn't mean that citizens can't intervene and have standing in the higher courts. Depending on the law and the situation of the individuals, it's entirely possible they do have protectable particularized interests.

    Hollingsworth really only says that if you're not being hurt as an individual by the law being struck down, then you don't have the right to waste the court's time because you're feeling butthurt.

  • 116. BenG1980  |  July 13, 2014 at 11:20 am

    Thanks for the correction regarding terminology. I also think you're right that I was overlooking the fact that some ballot initiatives could implicate particularized harm to members of the general public on both sides of the initiative and there wouldn't be any issue with standing in those cases.

  • 117. Rakihi  |  July 13, 2014 at 11:21 am

    The strongest legal argument in favour of marriage equality is, and always has been that marriage is a fundamental right.

    If Roberts does indeed refuse to engage our strongest argument by not even attempting to explain why he thinks the fundamental right to marry ends with opposite-sex couples, then I think he is ducking the issue.

  • 118. SPQRobin  |  July 13, 2014 at 11:27 am

    News from Germany:

    Rumors have emerged that Angela Merkel will voluntarily step down as Federal Chancellor. I suspect she wants to succeed Herman Van Rompuy as President of the European Council, whose term ends this November. ( http://www.spiegel.de/politik/deutschland/rueckzu… )

    The relevance is that Merkel has always been a de facto veto to any progress for LGBT rights (unless ordered to by the Constitutional Court).

    Her successor is rumored to be Ursula von der Leyen, who seems to be more socially liberal. She has been minister for Family and Social Affairs, and while she didn't clearly voice her support for full equality, her words indicate that she gets it where things are heading and that she is in favor of progress. ( http://german.ruvr.ru/2013_06_13/Adoptionsrecht-f… )

    I can't wait for Germany to finally get full equality; hopefully in the coming year.

  • 119. Steve  |  July 13, 2014 at 11:45 am

    This means little. Merkel has been a roadblock, but it's a parliamentary democracy. Ultimately, it's up to the parties what to do. No matter what the Chancellor says. And the conservative party has been against any advance in gay rights *ever*.

    Adoption rights only happened because the highest court ordered them to do it.

  • 120. StraightDave  |  July 13, 2014 at 11:47 am

    It would be one thing if states refused to recognize *any* outside marriages, or even just marriages from certain states with disagreeable policies. But it's something else entirely to only recognize a subset of legally indistinguishable marriages from some other specific state. Surely, FF&C cannot be read to disregard equal protection requirements. Two couples holding identical legal documents must be treated equally with respect to those documents.

    A no-brainer. This would simply be Windsor applied in a different context.

  • 121. RnL2008  |  July 13, 2014 at 12:04 pm

    Well, as I have stated before….we are ALL entitled to our opinions about whether Justice Scalia will or won't vote for GLBTQI rights……..we will have to wait and see.

  • 122. SPQRobin  |  July 13, 2014 at 12:06 pm

    True, but don't underestimate the importance of party leaders and the members of the cabinet; they determine the policy and legislation. You've got SPD in government who wants LGBT equality, and up to now they always got a definite NO from CDU/Merkel. When you have a supportive Chancellor, there is at least some room for moving forward.

    It's entirely possible I was too optimistic. It's because I am sooo tired of Germany lagging behind.

    Fact is also that they are bound by the coalition agreement, which vaguely says that "existing discriminations will be eliminated", which was always interpreted as "we will fix what the Constitutional Court tells us to".

  • 123. Steve  |  July 13, 2014 at 12:53 pm

    You are entitled to your own opinions, but not your own facts. I don't want to be hard on you, but this is an infuriating American trait. Some things simply are as they are and won't change by debating them.

  • 124. DACiowan  |  July 13, 2014 at 12:59 pm

    I really hope this is the opportunity gay couples in Germany have been waiting for. I'd love to have the most populous fully European country to have equal marriage without having to wait for the SPD to win power.

  • 125. brandall  |  July 13, 2014 at 1:06 pm

    In the last 2 or 3 days someone commented about ME in the Virgin Islands. Well, here is an update I just found from the local VI newspaper.

    Buckley's same-sex marriage bill sparks fierce debate
    http://virginislandsdailynews.com/news/buckley-s-

  • 126. RnL2008  |  July 13, 2014 at 1:17 pm

    Well, you haven't proven ANY facts……..and you want to continue to believe as you see fit……well, I'm damn proud to be an American and I understand that things change……maybe NOT always the way I'd like, but ANYONE can have a changed opinion if the RIGHT argument is presented!!!

  • 127. Zack12  |  July 13, 2014 at 1:55 pm

    No they won't.
    There is NO argument that can be presented that will change Scalia's mind about us.
    You want facts? The fact is Scalia has stated again and again he views us as sinners and thinks moral disapproval is a valid reason to treat us as second class citizens.
    Every single case there has been involving our community he has ruled against us.
    I'm sorry but you are hoping for something that will never happen.
    It will be 5-4 or 6-3 (maybe Roberts joining in) but Scalia will be a no vote, period.

  • 128. RnL2008  |  July 13, 2014 at 2:07 pm

    AGAIN……..what part of my comments do you CONTINUE to NOT get?

    I've stated my OPINION and you continue to state yours…..okay, I GET IT, but what has been done in the past is NO guarantee that it will happen in the future…….people can change, now whether Justice Scalia will or not is YET to be seen!!!

  • 129. Steve  |  July 13, 2014 at 2:16 pm

    So what? What does your opinion matter when it's just fact-free wishful thinking? You are merely posting wild fantasies that have nothing to do with reality.

    I wouldn't say it if that just had happened once or twice. But you stated those fantasies about a dozen times and it adds nothing.

  • 130. harry_balz  |  July 13, 2014 at 2:50 pm

    What exactly is an "assault capable weapon"? I hear idiotic terms like that thrown around by ignorant "news" people who ought to know better than to betray stupidity all the time but it sure as hell doesn't stop them.

  • 131. bayareajohn  |  July 13, 2014 at 2:58 pm

    Stupidity, ignorance, and intolerance are often displayed along with arrogance. You provide a good example.

    If you can't understand what a weapon capable of use in assault might be, I surely hope you aren't carrying one.

  • 132. RnL2008  |  July 13, 2014 at 3:01 pm

    Just like your opinions MUST add NOTHING to the discussion as well…you AREN'T any better just because something of interest comes outta your azz!!!

  • 133. Lynn_E  |  July 13, 2014 at 3:02 pm

    Utah has pushed the deadlines and asked for additional time at each stage in the proceedings, even when told that time would not be available (and the delays and extensions have been allowed). They are taking these actions on purpose. They know the case (Kitchen) will be decided against them, and Evans will be moot at that point. But they are going to continue their mean-spirited denial of equality as long as they can.

  • 134. Lynn_E  |  July 13, 2014 at 3:25 pm

    I rarely down vote (other than trollish comments), and I generally agree with the other commenters. We can disagree on points of interpretation, procedure or semantics without hurting feelings.
    And as an aside, I don't think Scalia minds looking like a hypocrite. He has built an entire career on it.

  • 135. Zack12  |  July 13, 2014 at 3:53 pm

    Indeed he has.
    One has to simply look at the VRA and DOMA rulings where he gutted one thing passed by COngress and wanted to uphold the other to see proof of that.

  • 136. brandall  |  July 13, 2014 at 5:38 pm

    Ragavendran – I just had the time to thoroughly read your paper on ME in India that you linked earlier in the week. I remember reading about the 2013 ruling, but I knew little of the legal history. What a tale! Things that popped out were 1) Section 377 going all the way back to 1862, 2) 377 being in the IPC and a nationwide code/law, 3) 2 weeks of SC oral arguments, and of course, 4) the unbelievable statements made by the SC judges leading to their 2013 decision.

    The recent SC ruling on transgender rights made me curious about the eunuchs reference. That lead me to read a research paper on Luanda dancers which was a topic I knew nothing about. It is quite a twist that transgenders now have more rights than LG's. That area will be the next battle after ME in the U.S.

    Thank you for posting this. Is oral argument on the curative petition ruling expected anytime soon. Also, would a ruling against 377 make SSM legal nationwide in one fell swoop?

  • 137. F_Young  |  July 13, 2014 at 6:16 pm

    Off-topic, but it may interest you to note that, of the eight teams in the World Cup quarter-finals, only Germany, Costa Rica and Columbia do not have marriage equality. None of the countries that criminalize homosexuality made it to the quarter-finals.

    Germany was the only country without full marriage equality in the semi-finals and finals, though, same-sex partners do enjoy many of the benefits of marriage due to case law.

    I find it ironic that none of the most homophobic and patriarchal countries in the world reached the semi-finals despite their veneration of the World Cup as the ultimate test of supreme masculinity.

    I only wish some of the winning players had been out and had celebrated the win with a big, enthusiastic smooch on worldwide television, to put the icing on the cake.

  • 138. SeattleRobin  |  July 13, 2014 at 10:41 pm

    We're with you in that whole tiresome (and embarrassing) in lagging behind thing.

  • 139. SeattleRobin  |  July 13, 2014 at 10:56 pm

    I must have missed seeing the link and I'd be interested in reading it too. Can you or Ragavendran repost it?

  • 140. Ragavendran  |  July 13, 2014 at 11:22 pm

    Here you go: http://ecee.colorado.edu/ragad3/GayRightsLegalUS-

    (brandall, thanks for taking the time to read my ramblings – your observations and questions are thoughtful – I'll respond to your questions soon.)

  • 141. RnL2008  |  July 14, 2014 at 12:39 am

    From what others have informed me regarding the FF&C…..it DOESN'T necessarily apply to marriages, though it does seem to be discriminatory that a legal marriage of an opposite-sex couple is recognized in ALL 50 states and other US territories, but the same legal marriages of Same-Sex couples are NOT……we need to get Section 2 of DOMA ruled UNCONSTITUTIONAL in order for our marriages to truly be recognized just like any other legal marriage is!

    I mean if one marriage is legally recognized in a State other than the State the marriage was solemnized in….then every legal marriage should have that same recognition.

  • 142. F_Young  |  July 14, 2014 at 3:04 am

    Newspaper article: "The Supreme Court already has required all states and territories to recognize same-sex couples who are legally married for the purposes of federally required benefits."
    …..the Supreme Court ruled in June 2013 with the turnover of DOMA's Section 3 that marriage is now a union between two persons. The federal government recognizes, as a result, all same-sex marriages."

    This is incorrect, right? By striking down section 3 of DOMA (wich interprets the word "marriage" in federal laws as meaning only opposite-sex marriage), the Windsor case does not not require states and territories to do anything. It only applies to the federal government and it only ALLOWS it to recognize same-sex marriages, and does not overturn any federal law that expressly recognizes only opposite-sex married couples, right?

    Newspaper article: "Comments on the website call same-sex marriage an abomination and a threat to the "moral fiber of society." One commenter spoke of his or her son, who committed suicide.
    "My son used to be gay, but I beat it out of him. 2 weeks later he killed himself. If we keep being gay legal more kids may choose to be gay and eventually kill themselves," the person said, citing a Bible passage from the Book of Leviticus."

    The comment was posted 13 days ago and signed by "Christian Mann": http://www.change.org/petitions/governor-and-legi….

    I realize that this was probably posted sarcastically. Still, is this not enough for the police to launch an investigation for assault, and find out the identity of the poster and take it from there if justified?

    I'm sure that every single day, thousands of fathers across the US beat their gay son, and I wouldn't be surprised if, every day, a gay son kills himself due to such abuse. Yet, I'd like to believe that a parent would not be so indifferent or even proud of this horrible case of constructive honor killing as to post about it online.

    But I'm not that naive anymore.

    Newspaper article: "The organization was started after the death of a 16-year-old boy, Jamal Richardson, who was fatally beaten – as prosecutors in his case suggested – because he was different. His body was found at the time in a church under construction."

    Richardson's family claimed that he was killed because he was gay. http://stcroixsource.com/content/news/local-news/

    If so, his name should be added to the long list of dead gays who have traditionally been such a boon to church building. /s

  • 143. JayJonson  |  July 14, 2014 at 6:23 am

    Well, we now have Ian Thorpe, Australia's greatest Olympian. Maybe his coming out will influence the Parliament to pass marriage equality. See: http://www.glbtq.com/blogs/ian_thorps_painful_com

    Also, a new poll says that over 70% of Australians support marriage equality. See: http://www.joemygod.blogspot.com/

  • 144. JayJonson  |  July 14, 2014 at 6:33 am

    Yes, Scalia's vote on Prop 8 was hardly a vote in favor of marriage equality. He voted to dismiss the case on the question of standing because he did NOT want a decision on the merits that would have declared a fundamental right to marry. The Prop 8 case, on its face, was a far more likely case to decide whether marriage was a fundamental right than the Windsor case. Scalia voted the way he did so that issue would not be decided. That a byproduct of that vote was that marriage equality returned to California was, from his point a view, just unfortunate collateral damage.

  • 145. DaveM_OH  |  July 14, 2014 at 7:23 am

    The 6th Circuit Panel composition for 7/29-8/1 is out: http://www.ca6.uscourts.gov/calendar/documents/07

    Next Monday we will get the panel assignment for the Marriage cases.
    However – doing a little analysis: Judges selected for the first week's worth of cases generally do not sit for the second week of cases.

    So, what does that mean?

    It means we've gone from a 9-6 R-D court to a 5-4 R-D court (Judge White was originally nominated by Clinton and confirmed in a horse-trading agreement for Kethledge). Both Obama appointees are off the list (Stranch and Donald), but so are the most conservative members (Batchelder, Boggs, and Kethledge).

    The remaining pool of active judges is 3 Clinton appointees (Moore, Cole, and White), and 4 interesting GWB appointees: Griffin and McKeague, who were part of the Gang of 14 deal to head off the nuclear option in 2007-2008; Cook, who though considered for Alito's seat has written opinions in the past strongly supportive of rights to privacy; and Sutton, who wrote the first opinion by a conservative judge that the ACA is in fact constitutional.

    All in all, a pretty good draw for week 1.

  • 146. Randolph_Finder  |  July 14, 2014 at 7:39 am

    QF had 5 with SSM equality (Argentina, Brazil, France, Netherlands, Belgium). Germany has governmental recognition of SS relationships.
    I'm not sure which of the 8 in the QF would be viewed as worst on LGBT rights, between Costa Rica and Colombia. I *guess* Costa Rica , but both Costa Rica and Colombia are *miles* ahead of some of the countries that didn't make the QF (Algeria, Iran, Russia, etc.).

    Note, this would be more or less expected given FIFA rankings. Out of the top 16 teams according to FIFA rankings (as of 5 June 2014)
    Full ME: Spain, Brazil, Portugal, Argentina, Uruguay, England, Belgium, US (Part), Netherlands,
    Government Recognition: Germany, Switzerland
    No Government Recognition, but Same Sex activity legal: Colombia, Italy, Greece, US(Part), Chile, Ukraine

    (With France at number 17)

    In fact in South America, the top 3 squads (BRA, ARG, URU) are in the 3 ME countries. :)

  • 147. BenG1980  |  July 14, 2014 at 7:45 am

    I agree this looks like an auspicious development. I wouldn't mind having either Cook or Sutton on the marriage equality panel, though hopefully not both.

  • 148. Ragavendran  |  July 14, 2014 at 8:17 am

    What about the senior judges? Looks like most panels consist of two active judges and a senior judge.

    I don't want Guy or Clay. They were behind an utterly ridiculous opinion in granting a stay of the preliminary injunction for Tennessee to recognize the marriages of three couples.

  • 149. DaveM_OH  |  July 14, 2014 at 8:18 am

    And by 5-4 I meant 4-3. Sorry for the error.

    But yes, what Ben said – and Sutton is probably marginally preferable to Cook. Sutton was a Constitutional Law prof and has lectured in the past at Harvard and Ohio State. However, he cut his judicial teeth clerking for Justices Powell and Scalia.

  • 150. DaveM_OH  |  July 14, 2014 at 8:24 am

    Ragavendran,

    Clay is an Obama appointee, and he's already booked into week one.
    Senior Judge Guy is also booked in week one.
    A panel need not include a Senior judge – and probably for a decision of this import they would use neither a senior judge or a judge from another court sitting by designation (as they are in week one – Hood, Watson, and Black).

    The Senior Judges not already assigned panels in week one are as follows:
    Keith (Carter, b. 1922), Merritt (Carter, b. 1936), Norris (Reagan, b. 1935), Suhrheinreich (GHWB, b. 1936), Daughtrey (Clinton, b. 1942), and Gilman (Clinton, b. 1942). 4-2, Democratic appointees; but probably not the be-all, end-all, as generational considerations may come into play as well.

  • 151. OctaA  |  July 14, 2014 at 8:29 am

    I thought Clay was a Clinton appointee, not Obama.

  • 152. DaveM_OH  |  July 14, 2014 at 8:36 am

    Octa, you are correct. I misread my spreadsheet. Thanks for the correction!

  • 153. Ragavendran  |  July 14, 2014 at 8:36 am

    Good – Clay and Guy are ruled out then! (And Gilman is assigned in the very first panel on July 29, so he should be off your list.)

    You are right that a panel need not include a senior judge, and so far, both the Tenth and Fourth circuits haven't had a senior judge in their marriage equality cases. That's promising. Fingers crossed!

  • 154. brandall  |  July 14, 2014 at 8:44 am

    What the heck does this mean?

    Chris Christie: “When I know that I’ve been defeated you don’t bang your head against a wall and spend taxpayer money to do it,” he said, explaining his decision. “Absent a change in the legislature, I think at the moment it’s settled law in New Jersey.”

    So, let's say the legislature changes to 100% Republicans tomorrow morning. They would pass what to stop ME?
    http://time.com/2978824/chris-christie-gay-marria

  • 155. StraightDave  |  July 14, 2014 at 8:47 am

    To clarify what I meant above, FF&C may not necessarily apply to marriage, and I regret having implied that. Expressed more fully, the DOMA-2 exception to FF&C (for what it's worth) purported to give the states "permission" to enact their own state-level DOMA. It's those state DOMA's that are what's actually unconstitutional and what need to be struck down. Federal DOMA-2 had no true legal effect and was merely another slap in the face.

    Congress does not have the power to give the states permission to enact unconstitutional laws. Those laws must stand or fall on their own. If Congress had said that no out-of-state marriages whatsoever will be recognized, that might pass FF&C muster, but that is not what they did. What they did was anti-equal protection, on its face, but it's still the states who are left holding the smoking gun.

  • 156. OctaA  |  July 14, 2014 at 8:49 am

    So assuming that all 3 judges are active ones, what would our ideal panel be?

    Moore, Cole and White (3 Clinton appointees)?

    And assuming we ended up with at least one Republican judge, which Clinton appointee would we least mind them being replaced with.

  • 157. Ragavendran  |  July 14, 2014 at 8:55 am

    Thanks for reading the long article! Even though the Court ordered an expeditious oral argument, it hasn't been scheduled yet, and there is no way to know when it will be scheduled. Hopefully later this year or early next. (Yes, that is considered "expedited" by Indian standards!)

    Marriage is a whole different battle. India's marriage laws are so complicated. There is a Hindu Marriage Act and Special Marriage Act. It'll be decades before marriage between people of the same sex is allowed.

  • 158. Dann3377  |  July 14, 2014 at 8:57 am

    Its called pandering. The guy is a complete idiot.

  • 159. DaveM_OH  |  July 14, 2014 at 8:58 am

    Octa: A bit of history, but not sure how to lay odds here:

    Moore clerked for Blackmun, a reliably liberal SCOTUS Justice in his later years.

    Cole was a civil rights litigator for the DOJ under the Carter administration, and was the first African-American to make partner at Vorys, Sater, Seymour, Pease, the most prestigious Columbus-area law firm.

    White was nominated to provide counterbalance for Kethledge.

  • 160. Ragavendran  |  July 14, 2014 at 9:00 am

    White is good. She dissented in the opinion that granted the stay of the Michigan decision. Rogers is bad – he granted that stay. He is assigned to only one case in the first week, so he may be available for more in week two.

  • 161. StraightDave  |  July 14, 2014 at 9:00 am

    I read that yesterday and thought Christie was nuts or just not paying close attention to a sloppy off-the-cuff remark. The law was struck down by a NJ court, based on a previous decision of the NJ SC in the Lewis v Harris case from nearly a decade ago. The legislature can't do a damn thing about it. They certainly spent a hell of a lot of time farting around and NOT doing anything about it when they had the chance, but it's now out of their hands. Christie is looking more like a blowhard every day.
    EDIT: In fairness, the Leg did finally pass a ME bill which Christie vetoed. But there's no going back now.

  • 162. JayJonson  |  July 14, 2014 at 9:14 am

    Not quite. The NJ legislature passed a marriage equality bill that Christie vetoed. They were waiting until they got the necessary super majority to override the veto when the New Jersey District ruled and then the NJ Supreme Court refused to grant a stay of the ruling. That is when Christie caved. The NJ legislature was prepared to override Christie's veto even after same-sex marriages began, but at the behest of gay activists and organizations, the Democratic majority abandoned the plan to override the veto. The problem was that the bill that would have been passed contained a broad religious exemption that was not included in the judge's decision. The gay organizations decided (rightly, imo) that it would be foolish to simply give a religious exemption to discriminate.

  • 163. Bruno71  |  July 14, 2014 at 9:15 am

    A future legislature could theoretically pass a referendum on to the public. That's never going to happen though.

  • 164. brandall  |  July 14, 2014 at 9:18 am

    Indiana: Gov. Mike Pence's general counsel instructed state agencies last week not to recognize the marriages that were performed during that gap. The policy applies only to state agencies that report to Pence's office and would affect state services controlled by those agencies, such as food stamps or the ability to file jointly for state taxes.

    "These marriages were lawful and valid when they were entered into and we do not believe that they can be retroactively voided," Falk [legal director of the ACLU of Indiana] said in the letter, which was mailed to the attorney general's office on Friday.

    If I remember correctly in Utah the AG told the clerks to not process the licenses. In Indiana, are they processing the licenses, but SSM couples are being limited on access to state supplied benefits?
    http://www.wisconsingazette.com/trending-news/fed

  • 165. brandall  |  July 14, 2014 at 9:56 am

    Here's 377 again. But, now I know what it means!

    Singapore: Top court tackles challenge to 1938 gay-sex ban
    http://www.businessweek.com/news/2014-07-13/singa

  • 166. Zack12  |  July 14, 2014 at 9:56 am

    Sad to say but the 6th circuit is definately Bush's court now.
    They have already succeeded in getting one liberal judge to retire and from what I've read, the dislike between the two groups is so bad now that they don't even lunch together like the old timers did.
    Not only that but sans Helene White, all of Bush Jr's judges are members of the Federalist Society, a far right wing group that seeks to turn the clock back the 1950's.
    In their minds, the people voted to ban same sex marriage so we either need to put it on the ballot again or just suck it up and move to a state that allows it.
    I'm not comfortable with the 6th hearing these cases, not at all.

  • 167. RCChicago  |  July 14, 2014 at 10:20 am

    Given the positive rulings from judges previously thought to be against us in this region, I hope we can be cautiously optimistic that common sense, fairness and blind justice will prevail. I've been betting on the 5th as the one to nervously watch out for.

  • 168. scream4ever  |  July 14, 2014 at 10:26 am

    The 5th circuit will drag it out so they don't have to issue a ruling. They know they will be on the wrong side but also don't want to rule in our favor.

  • 169. Zack12  |  July 14, 2014 at 10:32 am

    Indeed, since the fall of DOMA, the bigots have been on the dissenting and losing side.
    As Thinkprogress pointed out, that is going to change at some point, and I have the 5th followed by the 8th at the top of that list with the 6th on there as well.

  • 170. scream4ever  |  July 14, 2014 at 10:49 am

    Or maybe it won't change lol

    The 5th and 8th will never rule on cases due to the previously mentioned reason for the 5th and the fact that the 8th previously ruled against equality in 2006. I think the 6th will perhaps rule narrowly (just recognition vs. full legality).

  • 171. Zack12  |  July 14, 2014 at 10:59 am

    I think that as well for the 6th which is my only fear at the Supreme Court.
    That they will simply rule on recognition and not full equality, even though I think the horse has left the barn on that one.

  • 172. Bruno71  |  July 14, 2014 at 11:06 am

    What's the outlook at the 11th?

  • 173. Zack12  |  July 14, 2014 at 11:19 am

    Also not good probably.
    Keep in mind all of the Clinton judges came when Republicans controlled the Senate so they are going to be more on the conservative side then liberal.
    Bill Pryor, George W's only appointee to that court is a sure no vote along with pretty much anyone St. Ronnie Or Bush Sr put in.
    It's why the FL lawsuit was filed in state court, much better shot there.

  • 174. Zack12  |  July 14, 2014 at 11:23 am

    Just read on Equality Florida's Twitter that a ruling they thought would be coming soon might not be coming for a few more weeks.
    Let's hope that isn't the case.

  • 175. scream4ever  |  July 14, 2014 at 11:36 am

    They maybe want to wait until Bondi has the official Republican endorsement so she'd be less likely to appeal the ruling.

  • 176. RnL2008  |  July 14, 2014 at 11:41 am

    I do understand your point, and I would tend to agree with ya…..just one more thing that needs to be tossed in my opinion!!!

  • 177. DaveM_OH  |  July 14, 2014 at 12:13 pm

    Other news from the 7th today: leaders of secular groups can solemnize marriages just the same as a minister.

    “An accommodation cannot treat religions favorably when secular groups are identical with respect to the attribute selected for that accommodation,” Center for Inquiry, Inc. v. Marion Circuit Court Clerk.
    http://www.washingtonpost.com/news/volokh-conspir

  • 178. Zack12  |  July 14, 2014 at 12:31 pm

    A judge shouldn't take that into account even though she likely will.

  • 179. SeattleRobin  |  July 14, 2014 at 12:43 pm

    Thanks!

  • 180. Equality On TrialSeventh &hellip  |  August 7, 2014 at 1:31 am

    […] week, the appeals court consolidated the two cases, putting them on the same briefing schedule, and allowing them to be heard by the same three-judge […]

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