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Surprisingly Strong Colorado Victories

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By Matt Baume

This week I’m back in California, where we just celebrated one year of marriage equality. It was in late June that the AFER’s case to overturn Prop 8 finally concluded and equality was restored. Now, we’re awaiting a ruling in AFER’s Virginia case. We’ve already won at the district court level, and now the Fourth Circuit could rule on an appeal any day.

Also this week, a Colorado judge will allow marriages to continue, even though the state’s marriage ban is still on the books. A ruling from the U. S. Supreme Court means marriage is safe in Pennsylvania. We have a new case in Idaho, briefs in multiple states, and a new survey in Louisiana.

We have two huge rulings in Colorado this week. The first is a state court ruling that Colorado’s marriage ban violates the U. S. Constitution. The second is a ruling that Boulder County Clerk Hillary Hall can continue to issue marriage licenses, even though the ban hasn’t yet been overturned.

Boulder has been issuing licenses for about a week. And following the ruling that they can continue, they’ve been joined by Denver and Pueblo County. Hundreds of couples have so far been married in Colorado. Attorney General John Suthers has promised to appeal the ruling to try to stop the marriages. But Governor John Hickenlooper has asked him not to, saying that the licenses put Colorado on “the right side of history.”

Marriage equality won another victory in Pennsylvania last week, this time from the U. S. Supreme Court. Justice Samuel Alito rejected an attempt by a local clerk to stop the marriages.

Wisconsin and Indiana are both on the fast track to a marriage decision. Last week the 7th Circuit set and expedited schedule that should have both states fully briefed by mid-August.

The opening brief in Indiana is due on Tuesday of this week. And a brief in a Texas case is due on Wednesday. And we’re expecting a ruling any day now in a case from Key West, Florida. At a hearing last week, anti-gay lawyers claimed that marriage equality has “negative consequences” but couldn’t actually name any.

There’s a new lawsuit in Idaho. A lesbian veteran has sued the state for the right to be buried next to her spouse. And a new survey in Louisiana shows that support for marriage equality is still low, at 32%, but steadily rising year after year.

All in all, it’s been an intensely busy week for marriage equality victories — with more likely to come.

210 Comments

  • 1. brandall  |  July 15, 2014 at 8:06 am

    Matt, Florida actually has two rulings we're expecting. Key West and Miami-Dade. The Miami hearing was held one week before Key West. Of course, this does not mean the decisions would come down in that order. I know it's a lot of cases to keep track of.

  • 2. BillinNO  |  July 15, 2014 at 8:36 am

    There was a poll taken in Baton Rouge- I think it was by the Baton Rouge Advocate some months ago: I want to say that ME was polling around 50% in BR. 32% statewide sounds low- even for us here in La. I'll look for that poll…

  • 3. BillinNO  |  July 15, 2014 at 8:39 am

    Here's one: http://digbatonrouge.com/louisiana-survey-gay-mar

  • 4. BillinNO  |  July 15, 2014 at 8:40 am

    Here's one for East Baton Rouge Parish- a conservative parish BTW. http://theadvocate.com/home/6212854-125/survey-mo

  • 5. MichaelGrabow  |  July 15, 2014 at 8:48 am

    Speaking specifically to this criticism, I feel it's a bit nit picky. I think everyone knew what he was saying.

  • 6. Dann3377  |  July 15, 2014 at 8:53 am

    I'll take STUCK DOWN AND UNENFORCEABLE over the alternative any day! Let's worry about the meaningless details later. Some people are never happy.

  • 7. F_Young  |  July 15, 2014 at 8:55 am

    I don't think it is inaccurate to say that the Colorado ban is still on the books, since it is. It would be more precise to say "Though the decision striking down the marriage ban remains stayed,"

    I appreciate Matt's review of the previous week's developments.

  • 8. debater7474  |  July 15, 2014 at 9:04 am

    Great news on Colorado – the state supreme court has five Democratic appointees and two Republican appointees. I think that bodes well for us moving forward.

  • 9. Terence  |  July 15, 2014 at 9:16 am

    Worth noting in that article, is the sentence "Same-sex marriage is not legal in Louisiana, although it is legal in nine states……" Only nine? Tale a look at the date – June 11, 2013, not much more than a year ago. That's now gone up to 19, and a further 14 (if my counting is OK) with bans set aside, in whole or in part.

    "Nine" states with ME feels like ancient history – not just 13 months ago!

  • 10. MichaelGrabow  |  July 15, 2014 at 9:27 am

    I count 13 bans (in whole or in part) struck down, but stayed.

    CO, KY, IN, WI, ID, AR, UT, OK, VA, TX, MI, OH, and TN

  • 11. Fledge01  |  July 15, 2014 at 9:32 am

    Its legal in all 50 states. That's what the courts are telling us. Courts don't change laws, they only state what the state of the law currently is. This is why its ok for the clerks in Boulder to issue licenses even though their is a ban. The ban is not valid law. The only thing the appeals court stayed was the requirement that government entities have to follow the law of the land (which is marriage equality is a constitutional right afforded to all couples).

  • 12. DaveM_OH  |  July 15, 2014 at 9:45 am

    You missed WY and KS. But you're overcounting OH and TN, where a right to *get* married has not been fully litigated yet.

  • 13. Ragavendran  |  July 15, 2014 at 9:49 am

    Yes, our chances of the CO Supreme Court affirming Crabtree are good. But I'd still be surprised if the Court doesn't intervene to stop Boulder, Denver and Pueblo Counties from issuing licenses.

  • 14. RCChicago  |  July 15, 2014 at 9:51 am

    Also, I think we can include IL since the ban was struck down by the court even after the legislative body votes for ME. It was the decision by the judge that allowed marriages to begin sooner than the June 1, 2014 date mandated by state law.

  • 15. SPQRobin  |  July 15, 2014 at 9:53 am

    The Croatian Parliament today approved a civil unions law by a 89-16 vote.

    It had been in the works by the centre-left government for quite some time, and now it's finally approved. The law provides nearly all of the rights of marriage, but same-sex marriage is constitutionally banned since conservative groups forced a referendum in December 2013.

    More information in the following links:
    http://www.pinknews.co.uk/2014/07/15/croatia-passhttp://joemygod.blogspot.com/2014/07/croatia-apprhttp://www.vecernji.hr/hrvatska/sabor-usvojio-zakhttp://www.index.hr/vijesti/clanak/od-kolovoza-u-https://en.wikipedia.org/wiki/Recognition_of_same

  • 16. BenG1980  |  July 15, 2014 at 9:58 am

    But the IL decision is not stayed, and the case is now moot because the statute is fully in effect. A comprehensive list of favorable marriage equality rulings in the U.S. would begin with HI, VT and MA. And then only MA actually resulted in marriage equality shortly thereafter because HI overturned the ruling by statute and state constitutional amendment and VT opted to use the "separate but equal" loophole in the decision and enacted civil unions.

  • 17. DaveM_OH  |  July 15, 2014 at 9:59 am

    I think in this case IL is included in the 19+DC with full ME, not among the 13+2 with stayed judicial rulings.

  • 18. MichaelGrabow  |  July 15, 2014 at 10:12 am

    I was under the impression that Terence was not including WY and KS in his 14.

    In regards to OH and TN, that's where the "in part" comes from.

  • 19. RCChicago  |  July 15, 2014 at 10:12 am

    Ah, I stand corrected. "Not stayed." I read too fast.

  • 20. ragefirewolf  |  July 15, 2014 at 10:33 am

    Has the Colorado governor really asked the AG not to keep up the appeal and the AG is doing so anyway? How is the AG elected there, does anyone know? If he is appointed by the Governor, is there a repercussion to not following his orders?

  • 21. ragefirewolf  |  July 15, 2014 at 10:35 am

    I think you are oversimplifying the concept here. Your interpretation is an interesting one though.

  • 22. BillinNO  |  July 15, 2014 at 10:40 am

    The Attorney General is elected by popular vote; he is not appointed by the Governor, who is a Governor by the way- not a King.

  • 23. ragefirewolf  |  July 15, 2014 at 10:45 am

    I realize that he is not a king, which seems remarkably and unnecessarily snide of you to say. If the AG in Colorado was a part of the executive branch, which they sometimes are, there would be consequences to not following the chief executive's order.

  • 24. Rik_SD  |  July 15, 2014 at 10:46 am

    Did I miss something? I don't recall Wyoming or Kansas… or are you just including all 10th circuit

  • 25. scream4ever  |  July 15, 2014 at 10:54 am

    I actually think the district decisions give them much leway to follow suit and deny the stay, which would essentially mean game over for Suthers.

  • 26. DaveM_OH  |  July 15, 2014 at 10:56 am

    If we're going to count UT, we have to count WY and KS. Logic below:

    There are 4 possibilities at this point:

    1. 10CA is summarily reversed w/o argument, per curiam of SCOTUS. All bans in 10CA jump back into force, no effect on the rest of the nation. Epsilon probability.

    2. 10CA is reversed after argument. All bans around the nation jump back into force, as SCOTUS remands all other pending cases for judgment consistent with their opinion in Kitchen. 33% probability.

    3. 10CA is affirmed after argument. All bans around the nation are unconstitutional, as all pending cases are ordered to be resolved consistent with Kitchen. 66% probability.

    4. Cert is denied in Kitchen. All bans in the 10CA are overturned, as all pending cases in 10CA must follow 10CA precedent.
    1% probability.

  • 27. DaveM_OH  |  July 15, 2014 at 11:00 am

    The AG is popularly elected in 43/50 states. Only in Alaska, Hawaii, New Hampshire, New Jersey and Wyoming is the AG appointed by the governor; and then yes, the Gov could summarily dismiss the AG for failure to follow the Gov's order.
    https://en.wikipedia.org/wiki/State_attorney_gene

  • 28. BenG1980  |  July 15, 2014 at 11:03 am

    I disagree that it's an oversimplification. Fledge01 sums up about a century of SCOTUS jurisprudence regarding fundamental rights in that statement, but it's accurate. The fundamental rights have been there in the Constitution all along, but some of them weren't immediately recognized because they aren't all explicitly stated in the text. Assuming that the fundamental right to marry applies in these cases, marriage equality is legal now and has been legal nationwide since 1868.**

    ** Edited: Although the Constitution was ratified in 1788, the Fourteenth Amendment wasn't ratified until 1868. My original reply incorrectly cited the earlier year.

  • 29. Rik_SD  |  July 15, 2014 at 11:04 am

    Even with precedent in the 10th, they still need to be litigated independently, right? They ultimately fall, but there is no current judgement

  • 30. DaveM_OH  |  July 15, 2014 at 11:09 am

    With all due respect, now we're back to the question of enforceability. Is a law that's written, but legal judgments binding on that jurisdiction say "Thou shalt not enforce this law" still a law?

  • 31. Mike_Baltimore  |  July 15, 2014 at 11:11 am

    In Colorado, the AG is elected. An appointment may be made by the Governor to fill a vacancy in the office (similar to the appointed Senators in the US Senate), but for a full term as the state's AG, the candidate must be elected at the next General Election of state officials. (I'm not sure what happens if the appointment is made before a General Election that does not involve state officials – the appointment might be until a 'state officials' General Election, or it might be a 'partial-term' appointment until the next election.)

    Colorado AG Suthers was first appointed to the office of AG in 2005 (when that position became vacant), then ran in the 2006 and 2010 General Elections when state-wide elections for state officials occurred. Since Colorado has a term limit law, Suthers is ineligible to run in 2014, as he has been 'termed out' under that law. Apparently the Colorado term-limit law is pretty clear in saying it is the number of General Elections for that specific office the incumbent has won consecutively.

    Since the AG and Governor are both elected, and don't run as 'a ticket', they don't have to follow the orders of other state officials. Others' pleas may offer moral suasion, but that is about it. There is no legal reason the AG must listen to the Governor, let alone consider, or even follow, the Governor's advice (although it will be funny [for me, and I suspect many others] for the bigot Suthers to get shot down several more times before he leaves office).

  • 32. tornado163  |  July 15, 2014 at 11:14 am

    Would they? After Loving v Virginia, did interracial couples in the other dozen or so states with bans still in place have to sue to get married there?

  • 33. MichaelGrabow  |  July 15, 2014 at 11:28 am

    Another list of opinions at 2:30pm, another day with no ruling.
    http://www.ca4.uscourts.gov/opinions/daily-opinio

  • 34. JayJonson  |  July 15, 2014 at 11:32 am

    Yes. And by the same logic, the County Clerks are not obligated to follow the orders of the Attorney General, for they also are independently elected officials. That was a crucial aspect of the Boulder judge's ruling that Clerk Harriet Hall could continue issuing marriage licenses to same-sex couples despite the admonition of the Attorney General.

  • 35. dingomanusa  |  July 15, 2014 at 11:36 am

    Thanks for pointing those things out, I up voted your posts.

  • 36. Dave_wx  |  July 15, 2014 at 11:37 am

    The clerks usually post opinions a few minutes after 2:30 so we'll find out if it's today at literally any moment.

    Edit: Oops I was looking at yesterday's list. Oh well it'll come soon enough.

  • 37. dingomanusa  |  July 15, 2014 at 11:41 am

    and nothing on the Oklahoma case either! I betcha we see some well written opinions on both cases, ya think?

  • 38. Mike_Baltimore  |  July 15, 2014 at 12:04 pm

    Even a bit earlier, two cases, both with nationwide implications, and SCOTUS had to rule ONE time, not on individual cases:

    Civil Rights Act of 1964 – 'Heart of Atlanta Motel, Inc. v. United States', decided in 1964.

    School desegregation and the concept of separate is NOT equal – 'Brown v. Board of Education of Topeka', decided in 1954.

  • 39. ragefirewolf  |  July 15, 2014 at 12:11 pm

    Thank you for actually answering my question :)

  • 40. brandall  |  July 15, 2014 at 12:42 pm

    Brief flied today in support of ME filed by religious organizations in the 6th AC.

    I've always thought the rights of religious organizations to support ME have an interesting argument to not have their rights to perform ME trampled by other religious organizations. I've seen one or two other briefings use this position. Here is the latest one filed today. I'm disappointed that there are no large, mainstream protestant churches signing on to these yet. And of course, no religion should have a say in any of our rights, but part of this is a PR battle. Here is the brief:
    https://www.au.org/files/Ohio%20Marriage.pdf

  • 41. brandall  |  July 15, 2014 at 1:04 pm

    CO: Suthers in Federal Court Today [reposted, update to follow]

    This is now a full-time job for the AG. Appeal to the CO Supreme Court was filed yesterday afternoon. Score reminder: AG – 0, Clerk Hall – 2 http://denver.cbslocal.com/2014/07/15/federal-jud….

  • 42. brandall  |  July 15, 2014 at 1:06 pm

    The Colorado Supreme Court sets quick deadlines for both sides

    Briefs due next Wednesday. Follow-up briefs on Thursday.

    A ruling on that injunction is unlikely to be handed down before Thursday. The state supreme court generally releases rulings on Mondays, but could decide to weigh in sooner.
    http://www.9news.com/story/news/local/politics/20

  • 43. RnL2008  |  July 15, 2014 at 2:04 pm

    There is NO legal "GAY" or "SAME-SEX" marriages……NO "GAY" or "SAME-SEX" marriage licenses have EVER been issued…….what DOES exist is the right to marry for either Same-sex couples or opposite-sex couples in roughly 20 states and DC.

    There is NO differences with regard to State issued marriage licenses between Same-Sex couples or opposite-sex couples!!!

    We will NEVER truly know what our founding fathers feel, but seeing as Gays and Lesbians were around in their time, I'm sure they would NOT have been as surprised as you think……my guess is they wrote the Constitution in such a way as it could grow as this Country grew!!!

  • 44. Margo Schulter  |  July 15, 2014 at 2:08 pm

    This assigning of probabilities to different SCOTUS outcomes is more of a parlor game than an exact science, of course :) — but here’s how I’d see some possible outcomes, more of a statement of my own legal tastes, maybe, than any ability to read the tealeaves accurately!

    (1) SCOTUS summarily reverses CA10 — very unlikely;

    (2) SCOTUS grants cert. and reverses CA10, favoring States’ rights rationale to distinguish Windsor, and finding that marriage bans only need pass and do pass usual rational-basis review — ~10%?

    (3) SCOTUS grants cert. and affirms CA10, whether on CA10’s substantive due process or “fundamental right to marriage” basis; or under Equal Protection Clause with heightened scrutiny for sexual orientation a la CA2 (Windsor) and CA9 (SmithKline); or under Equal Protection Clause with “fluid Kennedyesque scrutiny” weighing actual legislative purposes vs. harm to those facing discrimination — maybe ~70%;

    (4) SCOTUS grants cert. on set of cases including both right to marry and right of recognition for out-of-state marriages, or recognition cases only, and hands down ruling striking recognition bans on Windsor-like rationale, or “right to remain married” concept, in effect also striking DOMA Section 2 — maybe ~5%?; and

    (5) SCOTUS denies cert., lets CA10 (and various other) circuit decisions for marriage equality take effect while letting percolation continue for another year or so — maybe ~10% (may imply that Chief Justice Roberts decides to vote against cert and allow a “decent interval” for ME to become national norm before joining and maybe becoming author of carefully limited but still landmark decision for nationwide ME).

  • 45. Margo Schulter  |  July 15, 2014 at 2:18 pm

    RnL2008, I totally agree: As CA10 and many others have quoted SCOTUS, The right of marriage “is of fundamental importance for all individuals.”

    Given the trope of some NOM supporters that we must put scare quotes around “marriage,” even when a State has legislatively adopted marriage, sometimes through a popular ballot measure — if so, then people who insist on the scare quotes might accept the same titles that some pro-NOM rhetoric assigns to federal or other judges following the relevant Constitution(s).

    How about Dictator of Washington, Czar of Maine, or Monarch of Maryland?

  • 46. Zack12  |  July 15, 2014 at 2:20 pm

    Nope, if they had wanted to put a stop to it, they would have done it tonight.

  • 47. TegaCayHennessy  |  July 15, 2014 at 2:33 pm

    Since the "marriages" are invalid regardless, I guess they figure there's no harm in letting same-sex couples pay for a souvenir.

  • 48. brandall  |  July 15, 2014 at 2:34 pm

    Federal Judge Moore to Rule by July 25th

    Says he will decide by July 25 whether to order Colorado to immediately allow gay couples to marry.

    I must be tired. I don't remember a Judge Moore in any of the CO cases. Is this a new filing with a new case #? Ragavendran, are you still awake?
    http://www.koaa.com/news/federal-judge-considers-

  • 49. RnL2008  |  July 15, 2014 at 2:35 pm

    The question is this…"ARE THOSE MARRIAGES TRULY INVALIDATED?" I don't believe they are……but we will have to see when all is said and done!!!

  • 50. davepCA  |  July 15, 2014 at 2:37 pm

    That's the same troll, RnL. Just a new name. Disregard.

  • 51. hopalongcassidy  |  July 15, 2014 at 2:39 pm

    You scared the shit outta me…the only Judge Moore I ever heard of is that asshole Roy from Alabama………….

    :-)

  • 52. RnL2008  |  July 15, 2014 at 2:41 pm

    Got it and will do……..have a great day Dave:-)

  • 53. OctaA  |  July 15, 2014 at 2:45 pm

    I think this is a case filed on July 1st in the district court of Colorado called Burns v Hickenlooper case no 1:14-cv-01817.

  • 54. Zack12  |  July 15, 2014 at 2:49 pm

    Just a notice folks, until the Mods come along and delete his posts AGAIN, don't engage with the troll.

  • 55. brandall  |  July 15, 2014 at 2:49 pm

    Yup, I forgot/missed that one. Why doesn't the CO AG file an emergency motion in Canada while he's at. Geez, too, too many cases for just one state.

  • 56. TegaCayHennessy  |  July 15, 2014 at 3:02 pm

    Hopefully s/he'll come along again :-)

  • 57. brandall  |  July 15, 2014 at 3:03 pm

    Yes! Everyone please help keep this site manageable.

    And if you are unsure of who the commenter is, click on the username in the comment. That will take you to a new page . If there is no history of comments other than in the last hour, it is probably "it"…Several of us hit the report button as fast we can, but the admins are not always available instantly.

  • 58. ebohlman  |  July 15, 2014 at 3:05 pm

    No, because that was a SCOTUS decision and therefore immediately applies nationwide without further litigation because a contrary decision at a lower level could never survive appeal. A ruling by a circuit court, on the other hand, requires further litigation in the underlying districts because even though a contrary decision wouldn't survive an appeal to the circuit, it could still be appealed to the SCOTUS after a perfunctory appeal to the circuit..

  • 59. davepCA  |  July 15, 2014 at 3:14 pm

    The trolls can continue to flail and grasp at straws, but it doesn't change the facts, and it doesn't do anything to allow them to construct a legitimate argument. And the truth is that laws which denied same sex couples equal access to civil marriage:

    – Subjected a targeted group to denial of equal legal treatment,

    – harmed the targeted group in doing so by denying them access to vast numbers of legal rights and protections,

    – failed to advance a states interest in the process or serve any valid purpose for a civil law which would legitimize the law or justify allowing this harm and unequal legal treatment to continue.

    Such laws have therefore repeatedly been found to violate basic constitutional principles of Equal Protection and Due Process, in trial after trial, all across the country, and the opposition has not been able to offer a single valid argument to counter this. It's all just pointless whining, fueled by childishly petty and irrational prejudice.

  • 60. Pat_V  |  July 15, 2014 at 3:16 pm

    Actually, a more annoying mistake in this summary is when he says: "Wisconsin and Indiana are both on the fast track to a marriage decision. Last week the 7th Circuit set and expedited schedule that should have both states fully briefed by mid-August. The opening brief in Indiana is due on Tuesday of this week."

    Actually, the Wisconsin and Indiana cases have been consolidated and they won't just be 'fully briefed by mid-August', but hearing has actually already been set for August 13! It seems that Matt could at least read the EoT updates before posting…

  • 61. Bruno71  |  July 15, 2014 at 3:16 pm

    I think it's fueled by frustration at losing, and lashing out with animus subsequently. Exactly what we've proven goes on, in court, for the last couple of decades.

  • 62. brandall  |  July 15, 2014 at 3:46 pm

    3:44 PM…And with the click of the admins button…poof, the troll and its comments are gone. The garden, the little furry animals and the children are all safe. My grandmother loved and collected trolls. I few of them were her grandmothers that came by wagon to Iowa.When she passed away, we had to figure out how to sell over 100 of them. Too bad we can't figure out how to sell this troll, perhaps to NOM.

  • 63. davepCA  |  July 15, 2014 at 3:50 pm

    NOM already owns this one.

  • 64. daveinasheville  |  July 15, 2014 at 4:01 pm

    Our march of progress won't be much deterred by a few bitten ankles :-)

  • 65. RnL2008  |  July 15, 2014 at 4:02 pm

    I'm NOT actually responding to you brandall……..just wanted to info the moderators that I have no ability to respond to half the comments as their reply button is not active for me…….also, I am unable to post comments without having to reply to someone at the top of this thread…..not sure what is going on….but please fix it soon….thanks!!!

  • 66. brandall  |  July 15, 2014 at 4:09 pm

    Sorry to hear that. I've never personally seen that problem. Did it happen yesterday where the admins did not delete any threaded comments or did it just show up today after the #$^$ attack and parts of threads were deleted?

  • 67. davepCA  |  July 15, 2014 at 4:27 pm

    Try refreshing the page (or getting off the site and back on again). You may be trying to reply to comments that have already been deleted, if they were part of a thread that got deleted. They will still be appearing on your screen momentarily until you refresh, but you won't be able to reply to them.

  • 68. Japrisot  |  July 15, 2014 at 4:33 pm

    OT: But today the Fifth Circuit upheld the University of Texas' race-conscious admissions program. You might recall Fisher v. Texas was heard by the Supreme Court the same year as Hollingsworth and Windsor. The Supreme Court sided with the white challenger, who argued that the UT admissions program was not narrowly tailored, and remanded to the Fifth Circuit with instructions to apply an even stricter scrutiny (with the expectation that the conservative circuit would comply and rule the admissions policy was unconstitutional). Today, the Fifth Circuit gave a giant middle finger to the higher court by refusing to do so. A remarkable example of a circuit court of impeccable conservative credentials refusing to follow Roberts' court into a morass of extreme right-wing ideology.

  • 69. JayJonson  |  July 15, 2014 at 4:52 pm

    I don't believe that the Fifth Circuit in general is unwilling to wade into a morass of extreme right-wing ideology. This must have been a lucky cast of the die that put a few reasonable people on a panel in a circuit that is mostly made up of extreme right-wing ideologues.

  • 70. RnL2008  |  July 15, 2014 at 5:51 pm

    Hi brandall….it's ONLY been today, even signed out and signed back in to see if that would fix the problem……no such luck!!1

    The reply buttons are not active on the lower have of this thread, at least for me……..but I can see certain comments and reply from here on up!!!

    Sort of strange if ya ask me!!!

  • 71. Ragavendran  |  July 15, 2014 at 5:52 pm

    I agree. This is an unusual panel with all three senior judges. The Carter and Reagan appointees affirmed and the Bush Sr. appointee dissented. We're likely to get active judges assigned to our case, who are more in line with our expectations from this circuit.

  • 72. Ragavendran  |  July 15, 2014 at 6:04 pm

    I disagree that denying cert has only a 1% chance. Also, there is another possibility, which would be a setback, but not a major one: the Supreme Court might refuse to find that the fundamental right to marry extends to same-sex couples (i.e., disagree with the Tenth Circuit) and remand the case to the Tenth asking them to explicitly consider the issue as a sexual orientation based discrimination equal protection case (instead of as a fundamental right case), which would require fresh determination of the level of scrutiny and a fresh analysis consistent with that determination. This was Judge Heyburn's premise in his recent Love opinion.

  • 73. brandall  |  July 15, 2014 at 6:07 pm

    Two new, separate Australian polls put ME support at probably the highest in the world. 72% and 68% support full, legal SSM (both polls have a margin of 2% error).

    Australia is the opposite of our current U.S. state-by-state ME battle. In 2012, the High Court determined that all laws with respect to marriage were an exclusive power of the Commonwealth and that no state or territory law legalising same-sex marriage or creating any type of marriage could operate concurrently with the federal Marriage Amendment Act (2004) which limits marriage to one man and one woman.

    So, Australia's challenge is the opposite of the U.S. They can't use the courts, they need the Commonwealth Parliament to change the law. And so far, the current slate of politicians need to work across party lines to put the votes together. Heavens, could your just imagine our current House of Reps trying to do this.
    http://www.theguardian.com/commentisfree/2014/jul

  • 74. brandall  |  July 15, 2014 at 6:23 pm

    Thank you for the reply. There must be a bug in threads where your comments are below a comment being deleted by the Admin during today's afternoon attack. You had several replies in there. I never reply (no editorial comment here, just a statement of fact) and so I don't ever encounter the problem. I did some reading on IntenseDebate technical configurations (I'm an IT guy) and a user deleted thread deletes all comments cleanly. However, the Admins clean up by removing/blocking the abusing user account and that automatically deletes everything below that user's comment (that's why they all disappear in an instant). It's highly possible that method messes up the database entries (and where your can reply from) for your comments. I'll try to research this to see if there is a reported bug to IntenseDebate.

  • 75. Mike_Baltimore  |  July 15, 2014 at 6:32 pm

    The question (which I don't think has been decided by the courts) is whether the County Clerks DO, in fact, have independent interpretation of the state and court laws and rules, or are their jobs purely ministerial?

    In Pennsylvania, the courts have determined that the job of the Clerk of the Orphan's Court (the office that accepts or rejects marriage applications) hold a ministerial job, and thus do NOT have standing in courts. Clerks of the various Orphan Courts in Pennsylvania are elected.

    In Virginia, County Clerks (who are the heads of the offices that accept or reject marriage applications) have been determined to actually have more than ministerial jobs, as evidenced by County Clerks being named defendants. County Clerks in Virginia are elected.

    The commonality? Clerks of the Orphan Court in Pennsylvania, County Clerks in Virginia, and the Attorney General of Colorado do NOT run on 'a ticket' with the respective Gubernatorial candidates of the various states. The President and Vice President of the United States do, as do the Governor and Lt. Gov. in many states.

    Equating election to mean the office holder does or does not have independence of action is doing nothing more than ignoring the facts.

  • 76. brandall  |  July 15, 2014 at 6:32 pm

    Which court? District or Supreme?

    What's funny is I remember you and I engaging two weeks ago on the chances of Clerk Hall getting past first base. Boy, we both certainly did not call that one exactly right. Now, I want to see her make it al the way to home plate. That would be similar to the NM scenario.

  • 77. Ragavendran  |  July 15, 2014 at 6:41 pm

    Supreme. In this case, I'm oh-so-happy to have guessed wrong :)
    But this is the Supreme Court – come on… they're not going to stand and watch state officials openly defy current state law, are they? We'll see. I'm waiting to be shown that I'm wrong again!

  • 78. F_Young  |  July 15, 2014 at 6:43 pm

    brandall: "They can't use the courts."

    Why not? Has the High Court of Australia already rejected a challenge to the same-sex marriage ban in the federal Marriage Act? Or is it not possible to challenge the marriage ban under the Sex Discrimination Act or the constitution?

    If there is no way of challenging the marriage ban in the courts, has anyone considered filing a communication with the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights, claiming sex discrimination? Or would this be unrealistic?

    I find it frustrating and puzzling that Australia still does not have marriage equality despite overwhelming popular support.

  • 79. Ragavendran  |  July 15, 2014 at 6:45 pm

    The Seventh Circuit has denied Indiana's request for its case to he heard initially en banc. The court also denied Wisconsin's request to join Indiana's motion above and said that if Wisconsin wants an initial en banc hearing, it must move the Court on its own. How embarrassing for WI:
    http://www.wsbt.com/news/local/wisconsin-bid-for-

  • 80. bayareajohn  |  July 15, 2014 at 6:47 pm

    He's all but admitted he's paid to troll. Denied a variety of other charges, but sidestepped in his replies about being a pay-for-hater.

  • 81. brandall  |  July 15, 2014 at 6:50 pm

    Yes, I saw that. Is this because the two cases are not combined, but are being reviewed together? I'm still learning…

  • 82. Ragavendran  |  July 15, 2014 at 6:56 pm

    On July 11, the Seventh Circuit ordered thus in response to the WI motion:
    The motion to expedite appeal and consolidate cases for argument is GRANTED. Appeals nos. 14-2526 and 14-2386 are CONSOLIDATED for argument and disposition.
    So this means the cases are on a parallel track and will be heard by the same panel. Note the disclaimer "for argument and disposition." This means that briefs and other motions must be filed separately.

  • 83. brandall  |  July 15, 2014 at 6:59 pm

    Got it. Your response makes sense (bloody web news articles).

  • 84. Ragavendran  |  July 15, 2014 at 7:05 pm

    Another slap in the face for WI:
    Recall that on July 11, within a matter of hours, the Seventh Circuit immediately granted the Wisconsin plaintiffs' motion to expedite and consolidate the appeals without waiting for a response from the state. Wisconsin then objected to this order and asked for a five day extension to file their opening brief. That request has also been denied.

  • 85. Ragavendran  |  July 15, 2014 at 7:14 pm

    Oops – I misread the news article in haste. There hasn't been a decision yet about whether or not to hear Indiana's appeal initially en banc. The Court only rejected Wisconsin's attempt to piggyback on Indiana's motion. Sorry!

  • 86. brandall  |  July 15, 2014 at 7:28 pm

    The High Court has said the right to marry is specifically in the Constitution and only the Parliament has the power to modify the definition. They have further commented on the changing world outside of Australia, but won't step in.

    "The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable."

    I can't answer why their HRC has not been engaged.
    http://hrlc.org.au/high-court-of-australia-recogn

  • 87. Mike_Baltimore  |  July 15, 2014 at 10:13 pm

    I thought the Evangelical Lutheran Church in America (ELCA) had originated or signed a brief in a recent case (when and where, I can't recall). The ELCA is considered the second largest mainline Protestant church in the US.

  • 88. scream4ever  |  July 15, 2014 at 11:57 pm

    I meant state supreme court sorry. I highly doubt they will touch this case even on the off chance Suthers appeals it.

  • 89. F_Young  |  July 16, 2014 at 2:20 am

    brandall; "I can't answer why their HRC has not been engaged."

    Thanks, brandall.

    I don't know enough to say if the anti-discrimination laws administered by the Australian Human Rights Commission would offer a remedy, but I believe they would in Canada, for example, quite apart from the Canadian Charter of Rights and Freedoms, which is part of the Constitution and also offers a remedy.

    Canadian anti-discrimination laws have been held to be quasi-constitutional; so, they would override conflicting laws. And the scope of Canadian anti-discrimination laws is broadly interpreted; they apply to public services, which I believe would be interpreted to include licenses issued pursuant to marriage laws.

    If by HRC you meant the UN's Human Rights Committee, perhaps it was because its decisions are not legally enforceable. However, they can be influential. The Toonen v Australia decision eventually resulted in the repeal of Australia's sodomy laws.

  • 90. JayJonson  |  July 16, 2014 at 6:38 am

    The Boulder court held BOTH that the Clerk's office was a ministerial one and ALSO that the fact that the Clerk was an independently elected official was material in his decision. That was why he said the decision was a close call, but he ultimately decided that the Attorney General had not made a case that permitting the same-sex marriages to continue would irreparably harm the state. The Colorado Supreme Court may disagree. Or may not.

  • 91. JayJonson  |  July 16, 2014 at 6:45 am

    The news reports say that the decision will be appealed to SCOTUS, but I would not be surprised that it is reversed in an en banc proceeding. A couple of years ago a 5th circuit panel ruled that Louisiana had to issue a birth certificate for a child born in Louisiana but adopted by a same-sex couple from New York naming his new parents as his parents and sealing the original birth certificate. This is the procedure routinely followed in Louisiana when children are adopted by opposite-sex parents. Unfortunately, the state asked for an en banc hearing. There the perfectly reasonable decision was reversed.

  • 92. Roulette00  |  July 16, 2014 at 9:29 am

    Speaking for myself, I find your criticism unhelpful and tone-deaf. You say he makes "severe errors" and is "causing harm." I understand that you are passionate about accuracy but these seem like exaggerations. I suggest you a) direct your criticism in a private message where Matt is likely to see it and b) offer something constructive, like your assistance in fact-checking. Matt's videos are widely reposted on the web and I doubt he combs the comments everywhere for suggestions; besides, criticism is best done in private. Complaining on a public forum is unlikely to have the effect you want.

  • 93. Alan  |  July 16, 2014 at 10:25 am

    I marvel at your gumption for calling out when other people are being snide and then turning around and making snide comments back by simply dismissing everyone else as "annoying" (your word, not mine).

  • 94. brandall  |  July 16, 2014 at 11:33 am

    There is only one published opinion from the 4th today. Not Bostic.

  • 95. MichaelGrabow  |  July 16, 2014 at 11:35 am

    I was hoping more would show up soon…nine weeks yesterday.

  • 96. brandall  |  July 16, 2014 at 11:48 am

    Well….here is something to ponder….

    Connecticut Supreme Court rules gay marriage widow has legal rights predating gay marriage law
    http://www.therepublic.com/view/story/fdeee5f50b0

  • 97. RnL2008  |  July 16, 2014 at 11:50 am

    Problem fixed……I can now post in this thread again…..yeah!!!

  • 98. Bruno71  |  July 16, 2014 at 11:58 am

    Excellent ruling. It's one thing to not be married by choice, and another because you have no legal recourse at the time.

  • 99. ragefirewolf  |  July 16, 2014 at 1:19 pm

    I appreciate everyone's feedback about my public criticism of Matt. Except for this comment, I will delete all of my negative ones. I'm sorry for the initial one coming off the wrong way.

  • 100. ragefirewolf  |  July 16, 2014 at 1:22 pm

    The troll was back? All of "his" comments must already be gone. I don't see them.

  • 101. ragefirewolf  |  July 16, 2014 at 1:23 pm

    Very interesting

  • 102. ragefirewolf  |  July 16, 2014 at 1:24 pm

    I'm sorry. My criticism was not meant as snide, but I can see how it came off that way to everyone. I deleted my comment. I didn't mean to cause so much offense.

  • 103. zackyma  |  July 16, 2014 at 1:25 pm

    The US constitution has a bill of rights and a 14th amendment; Australia's doesn't. So while in the US, you have constitutional guarantees against due process and equal protection violations, in Australia you don't.

    The High Court of Australia has already ruled that racist laws are constitutional. One of their justices even quipped, that if Parliament passed a law to kill all blue-eyed babies, that law would be constitutional. Given that, it is very unlikely they will find that sex discrimination or sexual orientation discrimination to be unconstitutional.

    As to the ICCPR optional protocol, that is a process which can take years, and you run the risk that the Committee may give a negative decision. Its members are drawn from many countries, and I think they are aware of the political context in which they operate, and they may fear that a positive ruling may cause such blowback from some countries as to threaten their own institution.

    The focus of mainstream marriage equality activism in Australia right now is reaching out to politicians, especially moderates on the conservative side of politics, to try to build support for legislative change. I think that is the right strategy for Australia's specific situation.

  • 104. ragefirewolf  |  July 16, 2014 at 1:27 pm

    No, you are right. Let's call it a bad day and leave it at that.

  • 105. zackyma  |  July 16, 2014 at 1:32 pm

    The Australian Human Rights Commission is a bit of a toothless tiger. It is an independent body, but its powers are mostly limited to issuing non-binding reports. So maybe someone could convince it to issue a report saying Australia's marriage equality ban violates human rights. But such a report would not be legally binding, and the government could ignore if they felt that could politically get away with that.

    Canada's Charter of Rights and Freedoms is quasi-constitutional. It is not part of the constitution, but the constitution refers to it. Australia has no equivalent. In Australia, there is no single charter or bill of rights, instead there are a bunch of separate UN conventions and anti-discrimination statutes. Australia's constitution doesn't give those conventions or statutes any special legal status different from other treaties and statutes.

  • 106. ragefirewolf  |  July 16, 2014 at 1:32 pm

    Thank you, Mike. That's exactly what I was asking for. :)

  • 107. ragefirewolf  |  July 16, 2014 at 1:35 pm

    No, you are right. I should've worded my comment less severely and with a different implied tone. I appreciate your constructive criticism.

  • 108. davepCA  |  July 16, 2014 at 1:39 pm

    I gotta say – it restores my faith in humanity when someone takes responsibility and acts like an adult (especially on the internet, where this can be a pretty rare event!). Well done, and thank you for the example, ragefirewolf.

  • 109. ragefirewolf  |  July 16, 2014 at 1:49 pm

    Thank you, Dave. I'm glad that I was able to leave that impression. I think more people should take responsibility for their own actions, good or bad. You can thank my father for that attitude. He did a good job of instilling it in me, I guess, haha.

    Oh, the blushing cheeks. >.<

  • 110. brandall  |  July 16, 2014 at 2:11 pm

    Latest twist ….. Federal court delays Indiana same-sex marriage appeal hearing
    http://www.indystar.com/story/news/2014/07/16/fed

    And Wisconsin http://journaltimes.com/news/state-and-regional/w

    I would believe this implies they are going to get en banc. The 9th now may be heard before the 7th depending on the dates.

  • 111. StraightDave  |  July 16, 2014 at 2:45 pm

    Given that the 7th just denied Indiana's en banc motion,I find it hard to reach the conclusion that the 7th will change it's mind in 24 hours. My guess* is that WI will be given a little more time for briefing to keep them in sync with IN without feeling shortchanged
    But who knows.

  • 112. dingomanusa  |  July 16, 2014 at 2:46 pm

    I wonder if the AG's in those two states decided to try for a full panel of ten hoping the cases are heard together. Seven out of the ten sitting judges on the 7th Appeals are GOP appointed, doesn't sound good for us if they do an en banc for Indiana and Wisconsin.

    "The hearing, which had been on an expedited schedule, was set for Aug. 13. Today, however, the court canceled that date. It is not immediately clear why the court took that action, but one possible factor is the state’s request last week to have the appeal heard by all 10 of the judges on the 7th U.S. Circuit Court of Appeals, rather than a three-judge panel.
    http://www.indystar.com/story/news/2014/07/16/fed

  • 113. RnL2008  |  July 16, 2014 at 2:47 pm

    I thought Wisconsin was in the 6th not the 7th….am I wrong? I also thought that en blanc was denied to Wisconsin once before….again was I wrong? Oh please help end my confusion…….j/k…lol!!!

  • 114. brandall  |  July 16, 2014 at 2:48 pm

    See Ragavendran's comment above. They denied the petition because it was not filed properly. "if Wisconsin wants an initial en banc hearing, it must move the Court on its own"

  • 115. brandall  |  July 16, 2014 at 2:52 pm

    WI is in the 7th. KT, MI, OH, TN are in the 6th. See my reply to StraightDave above on what is happening.

  • 116. brandall  |  July 16, 2014 at 2:58 pm

    I do not doubt this is what WI and IN are hoping for. I am not worried. We've been through a gauntlet of GOP judges and keep winning. We could see a split decision (not the first time), but I don't see how we loose based on the 22+ wins. And, no one is bringing anything new to the table to defend their positions.

  • 117. Samiscat1  |  July 16, 2014 at 3:05 pm

    Well, if I'm not mistaken, Richard Posner is a justice on the 7th (appointed by Reagan), and his view here is encouraging: http://www.becker-posner-blog.com/2012/05/homosex

  • 118. Bruno71  |  July 16, 2014 at 3:10 pm

    Also, the fact that the 7th instructed Indiana to recognize the marriage of one couple, in my eyes, bodes well for our chances. I just can't see how they could get away with doing that and then have that marriage rescinded later. Unless the panel that decided it is completely out of touch with the en banc panel. Much more worried about the 6th.

  • 119. brandall  |  July 16, 2014 at 3:19 pm

    Wow. More than encouraging, he has a fundamental belief that "homosexuality is innate. That has to work well with "fundamental rights." He packed in quite an overview. I hope he authors the ruling.

    Thank you for finding and sharing this. 10 up votes!

  • 120. dingomanusa  |  July 16, 2014 at 3:24 pm

    Posner's blog on "Homosexual Marriage" is awesome and comforting to know he is likely to rule for us. Samiscat1, Thank you for finding that blog at http://www.becker-posner-blog.com/2012/05/homosex

  • 121. brandall  |  July 16, 2014 at 3:28 pm

    Here is a more in-depth article. The ruling by the CT SC was 6-0! I am trying to find the ruling since I would love to read how they based their findings. As RnL2008 pleasantly reminds us, there is no gay marriage, the right was always there. This affirms that line of thinking.

    Another interesting fact: Massachusetts is the only other state where such a case was debated. That state's highest court ruled in 2008 against a lesbian widow seeking to sue for loss of companionship. The CT case was about applying Connecticut legal precedent, not gay marriage.
    http://www.greenfieldreporter.com/view/story/fdee

    UPDATE 3:45 PM – This AP story just went viral across the country. NY Times, Wash Post, LA Times, SF Chron and 100's of small towns media outlets everywhere are carrying the story. NOM, et al will pick this up and now say "not only do they want their marriage rights, they want them retroactively and no one else get thats. It's another "special" right.

  • 122. DoctorHeimlich  |  July 16, 2014 at 3:51 pm

    The opinion is here:
    http://www.jud.ct.gov/external/supapp/Cases/AROcr

  • 123. brandall  |  July 16, 2014 at 4:21 pm

    Thank you. That was very interesting reading. A good portion of it is the SC remanding the AC for not recognizing it should have raised the issue for the Plaintiff "would have been married, if they could" (Plaintiff did not raise this in their arguments). They based their retroactive ability for the Plaintiff's claim based on their own CT state cases. This will be used as a blueprint for these types of cases elsewhere.

  • 124. brandall  |  July 16, 2014 at 4:28 pm

    As we all expected: Utah files emergency request with SCOTUS over same-sex marriage recognition

    Filed Wednesday. http://fox13now.com/2014/07/16/utah-files-emergen

  • 125. Bruno71  |  July 16, 2014 at 4:38 pm

    Hate to say it, but I expect SCOTUS to grant the stay here. Otherwise it would desecrate the temple of "Gay Means Stay," and tip their hands as to how they'd go on Kitchen .

  • 126. brandall  |  July 16, 2014 at 4:54 pm

    The Emergency Application is at the bottom of the Fox13 link above.

    First, the Defendants need to get new software to generate their pleadings. OMG, the typo's and overwrites are awful. Ragefirewolf, have a stiff scotch nearby if you are going to read this.

    They are relying on Kelly (dissented in the 2-1 ruling) that the district court and the 10th do not have the power they claim to.

    I agree there is a game over "tipping their hand". It will go before the full court.

  • 127. DocZenobia  |  July 16, 2014 at 4:57 pm

    Wow, the Utah AG didn't just ask for a stay, but a summary reversal of Kitchen (if I understood them correctly.) Just when you thought the Utah AG's office might be running low on stupid, they reveal vast new untapped reserves of it.

  • 128. brandall  |  July 16, 2014 at 4:59 pm

    Maybe I read too fast. What page(s) did you pick this up?

  • 129. RnL2008  |  July 16, 2014 at 5:02 pm

    Nope, the ANTI-GAY folks seem to have the commodity wrapped up for Stupid……..there is NO way that SCOTUS will grant a full reversal on both the Lower Court's ruling and the 10th, no matter what the hell Kelly believes……..at least NOT without losing TOTAL credibility!!!

    JMPO……..I've been known to be wrong before……..but I just can't see this happening!!!

  • 130. DocZenobia  |  July 16, 2014 at 5:02 pm

    Reported on Towleroad
    http://m.mippin.com/mip/plus/story.jsp?&id=35

  • 131. brandall  |  July 16, 2014 at 5:08 pm

    "The Applicants respectfully request that the Circuit Justice issue the requested stay of the district court’s order and preliminary injunction pending appeal." That is all they are asking for.

    There is the usual response to the 4 reasons for granting a stay where, of course, they believe the decision will be reversed. '

    They are not asking for a reversal in the filing.

  • 132. brandall  |  July 16, 2014 at 5:10 pm

    Didn't this all start because Utah did not request a stay in their initial filings? I see no mention of this little "oophs" anywhere. If the district court has refused the stay, that would be a different matter.

  • 133. Bruno71  |  July 16, 2014 at 5:18 pm

    So what do you think of the situations in Oregon and Pennsylvania, where there was no appellate review after a district court judge overturned a state's marriage ban? Is it OK if the defendants in the case say it is?

  • 134. RnL2008  |  July 16, 2014 at 5:23 pm

    This is NOT just one District Judge…….the 10th has also ruled on this case and ruled in favor of the plaintiffs as well…….and the AG NEVER asked for an en blanc review, just opted to appeal to SCOTUS……so, what was wrong with the process again?

    We have single District rulings all of the time…….but when it comes to the right to marry, all of a sudden the ANTI-GAY idiots think they have a right to deny that which has already been ruled a Fundamental Right by SCOTUS………and though it is true that the cases were all male/female at the time….NO WHERE was it stated that marriage was ONLY a Fundamental Right for some and not others………..and if we substituted "GENDER" for race, I believe SCOTUS would rule in our favor!!!

    I'm not down-voting you, but I am telling you why I disagree with your comment!!!

  • 135. debater7474  |  July 16, 2014 at 5:23 pm

    If the state's democratically elected officials agree then I suppose the answer is yes. Do you really think that district courts can go around creating fundamental rights and ordering unwilling states to recognize them without appellate review? Does that apply to any right, or just the right to same sex marriage because we are in favor of that right? What if a judge rules that everyone has the right to an RPG or a hand grenade? Do we immediately let people start purchasing them? That would be insane.

  • 136. RnL2008  |  July 16, 2014 at 5:25 pm

    From the above article:
    “Utah believes it is highly likely — and certainly likely enough to warrant a stay — that at least four Justices will vote to grant certiorari if the district court’s decision is affirmed, and that at least five Justices will agree with Judge Kelly that the district court’s sweeping legal conclusions ‘simply cannot be’ — and emphatically are not — ‘the law.’ Indeed, the district court’s misunderstanding of the legal status of a law subject to a non-final decision of unconstitutionality is so fundamentally erroneous, and arises in a context of such importance to all of the states and to this Court, that a summary reversal could well be in order,” he wrote. http://fox13now.com/2014/07/16/utah-files-emergen

  • 137. DocZenobia  |  July 16, 2014 at 5:29 pm

    I see what happened. It was from a press release by the Utah Special Assistant AG, it wasn't in the actual emergency appeal to SCOTUS. Good thing for them that it wasn't, because the SAAG would have been laughed out of court.

  • 138. RnL2008  |  July 16, 2014 at 5:32 pm

    Thank you…I knew someone would fix my confusion……lol!!!

  • 139. weshlovrcm  |  July 16, 2014 at 5:32 pm

    Yes. I was one who thumbed you down yesterday, just because I thought your criticism was too harsh, bordering on mean, but more importantly it should've been done in private. Clearly, you've thought this over during the past day and that is all I hoped to see. Your concern about accuracy was not wrong, just the way in which you conveyed it, imo. Thank you for all your efforts on here.

  • 140. Bruno71  |  July 16, 2014 at 5:32 pm

    It's not an easy answer, but I don't see how the situations in OR & PA are much different than in UT other than that the elected officials chose not to appeal. It's still a district court justice finding (not "creating") fundamental rights and enjoining the state to act accordingly. This is what Justice Kennedy had an issue with and called a "one-way ratchet," but I fail to see how it's different if Gov. Corbett gives his stamp of approval or not. For example, from the point of view of your hypothetical: what if said district court judge in Texas finds (or creates) the fundamental right to a grenade, and then Gov. Perry says "hot damn!" It's the same difference, isn't it?

  • 141. brandall  |  July 16, 2014 at 5:33 pm

    "It was on that basis that the district court held that the court-ordered issuance of marriage licenses gave Plaintiffs "vested rights” in their new-found marital status. And it was on that basis that the court ruled that the reinstatement of Utah’s laws by this Court’s stay order was akin to a reenactment of a previously repealed state law, and hence that Utah’s subsequent refusal to recognize Plaintiffs’ marriages violated federal due-process retroactivity principles."

    The SC did not reenact a previously repealed state law. They granted a stay with no comment. No laws were ever actually repealed.

  • 142. DocZenobia  |  July 16, 2014 at 5:33 pm

    The problem is that you are incorrectly framing the situation as "create a vested right" (i.e. to something termed "same-sex marriage") rather than recognizing that the state has impermissibly created a suspect class of same-sex couples for the purpose of denying them access to an existing fundamental right (i.e. "marriage".) Rose is right about this.

  • 143. DocZenobia  |  July 16, 2014 at 5:34 pm

    What fundamental right was created here?

  • 144. debater7474  |  July 16, 2014 at 5:37 pm

    You are acting as if adversity is not a meaningful difference in terms of the law or society, but it absolutely is. Whether a state's democratically accountable officials agree with a district court's decisions is important – they were elected by the people, and whether we like it or not they speak for the people. So I think there is a meaningful difference between a state that is wiling to accept a court's decision and a state that's not willing to accept a court's decision.

  • 145. debater7474  |  July 16, 2014 at 5:40 pm

    What fundamental right was created if a judge ordered that people must be allowed to purchase rpg's and hand grenades? I'm not creating a fundamental right, I'm just recognizing that those are part of someone's ALREADY EXISTING second amendment rights. Your argument goes both ways.

  • 146. debater7474  |  July 16, 2014 at 5:44 pm

    Wrong. By that logic, if a judge orders that the people of a state are allowed to buy hand grenades and RPG's, he's not creating a fundamental right, he's just recognizing that you cannot exclude those things from the already existing overarching fundamental second amendment right.

  • 147. Bruno71  |  July 16, 2014 at 5:46 pm

    Meaningful, perhaps, but the end result is the same. Wouldn't you be screaming from the rafters if Rick Perry & a Texas District Court judge found the right to hand grenades? You're saying that the politicians in PA & OR (& CA) gave legitimacy to the district court rulings by not appealing, so would you then say that Rick Perry gives legitimacy to the hypothetical ruling in Texas? To me, it's pretty much the same situation, even if some important people (elected state politicians) in some cases have rubber-stamped it.

  • 148. BenG1980  |  July 16, 2014 at 5:46 pm

    Rose, only because I've noticed this error a couple times in your replies, the term is "en banc" (pronounced "on bonk"), French for "in the bench."

    Other than that, I completely agree with everything you stated above.

  • 149. DocZenobia  |  July 16, 2014 at 5:47 pm

    What the hell are you talking about with RPGs and hand grenades? I asked you what fundamental right was "created" (oxymoron) by the judge in the Utah case. Answer my question, then we'll discuss whether the Second Amendment is relevant.

  • 150. RnL2008  |  July 16, 2014 at 5:51 pm

    Thank you….I do try to not make silly errors like that……..to many times some folks will call ya names for not spelling words correctly………my bad:(

  • 151. brandall  |  July 16, 2014 at 5:51 pm

    Does the Utah Special Ass't AG's website have a thumbs-down where we can all hit him for a wrong, non-factual, erroneous press statement?

    Thank you for finding where this wrong info was introduced. I thought maybe I was reading the wrong Emergency Application Stay Preliminary Injunction Pending Appeal, Kitchen v Evans, dated July 16, 2014. LOL

  • 152. DocZenobia  |  July 16, 2014 at 5:51 pm

    You are the one who introduced the idea of "creating" fundamental rights. Be specific. If you think the Utah judge created a fundamental right, what right do you think that was? Leave the Second Amendment out of it.

  • 153. debater7474  |  July 16, 2014 at 5:55 pm

    No, you are avoiding the logical consequences of your own logic. I'll accept that the judge did not create a a fundamental right if you don't think that he did. He merely allowed an excluded class into an already existing right without appellate review. Fine. But by that logic, a judge is also allowed to order an unwilling state to allow previously excluded rpg's and hand grenades into the already existing fundamental right to bear arms, and he is able to allow people to start purchasing them immediately if there is no stay. If you say that a judge can do whatever he wants with these fundamental rights cases without appellate review first, that is the conclusion of your own logic, whether you like it or not.

  • 154. BenG1980  |  July 16, 2014 at 5:55 pm

    Haha, I'm certainly not calling you any names, and I think your point is exactly right!

    As I wrote here yesterday, there is about a century of SCOTUS jurisprudence on this topic. All of the fundamental rights have been there in the Constitution all along, but some of them weren't immediately recognized because they aren't all explicitly stated in the text. Assuming that the fundamental right to marry applies in these cases, marriage equality is legal now and has been legal nationwide since the Fourteenth Amendment was ratified in 1868.

  • 155. RnL2008  |  July 16, 2014 at 5:59 pm

    I knew you weren't calling me any names…….just my experiences with other blog sites…….lol!!!

    Oh and I did read your comment from yesterday and found it very interesting……at least I think we have the same opinion…just express it differently.

  • 156. DrPatrick1  |  July 16, 2014 at 6:37 pm

    Wrong, (I am only going to respond so I can call out that I believe you to be tkinsc. I could be wrong, but I doubt it)

    DocZenobia has it correct. The district court, just like district courts across this country, found that the state carved out a suspect class of citizens for disparate treatment under the law. It is not constitutional to do so, at least not in this case. When UT did not ask for a stay, and UT government officials issued the licenses, UT is being required, at least until the final review of the original case completes, to recognize those marriages. It does not mean that if UT ultimately wins in SCOTUS UT will continue to be required to recognize those marriages, that answer will come once the second case, the recognition case, is resolved, which cannot happen until the original case is concluded.

    The EMERGENCY stay request was denied, meaning that the judge weighed the risks to both sides if the order is ultimately overturned, and found that given the unlikelihood that it would be overturned, and the relative non burden on the state if it is ultimately reversed, an emergency stay is not warranted. This does not mean the state is certainly to lose the case, only that the burden is so high for them to win, that it is unlikely they will meet that burden.

    I am over simplifying this of course.

    The same applies if you were talking about CO but accidentally said Utah.

  • 157. davepCA  |  July 16, 2014 at 6:44 pm

    Your logic is flawed. You are comparing a denial of rights (marriage) being unequally applied to one subset of citizens for no valid reason, to a law about weapons that applies to everyone equally. You are trying to argue as if the weapons have rights, and changing the law about what kind of weapons can be purchased is a recognition of those rights held by weapons. Weapons do not have rights. Citizens have rights. And they must be applied equally unless there is a legitimate reason to restrict them in an unequal manner.

  • 158. brandall  |  July 16, 2014 at 6:47 pm

    While you are all working this through with one another. This is not our "special visitor". Just click on his name in blue and you will see he has contributed many good thoughts and information in the past since the login accounts were made mandatory. Obviously, there is a debate going on right now on this one subject.

  • 159. brandall  |  July 16, 2014 at 6:55 pm

    Putting aside what the fundamental right is, you don't believe or want the ability for a "[district] judge to do whatever he wants with these fundamental rights cases without appellate review first." Am I capturing the essence of the discussion correctly?

  • 160. DrPatrick1  |  July 16, 2014 at 6:56 pm

    Apparently there is evidence you are not TK. My apologies. Your tone is very reminiscent of our troll and I was confused.

    I appreciate a good debate and controversy.

  • 161. Mike_Baltimore  |  July 16, 2014 at 6:57 pm

    "The Colorado Supreme Court may disagree. Or may not."

    Which is why I stated "The question (which I don't think has been decided by the courts) is whether the County Clerks DO, in fact, have independent interpretation of the state and court laws and rules, or are their jobs purely ministerial? " When I wrote that comment, I should have stated COLORADO courtS.

    If the courtS had been decided on whether issuing marriage licenses was or was not merely magisterial, would the local magistrate have stated that the Colorado Supreme Court might disagree? Why hasn't the local magistrate followed the decision of the Colorado Supreme Court?

    Maybe because the Colorado Supreme Court has not yet spoken on this subject, thus the courtS have not come to any conclusion of whether issuing of marriage licenses is purely ministerial, means the courtS have not ruled on this subject? (In my thinking, one local magistrate has ruled, one court has ruled, but courtS have not ruled.) (And yes, I realize that I capitalized the 's' in courts to make it a bit clearer that there is more than one court in Colorado that will weigh in on this subject.)

    And you seem to be hung up on the comment that the office holders attained their office by election. You are aware that I also stated that they (meaning Governor, AG and county clerks) do not run on 'a ticket' (meaning you vote for one and the other is automatically voted for), as DaveM_OH, for instance, pointed out (in a response further up in this column) that in Colorado, the AG is NOT appointed by the Governor (not in so many words, but Dave listed the states in which this is the case, thus by process of elimination, it is easy to figure out that Colorado does not have an appointed [by the Governor] AG.)?

  • 162. DrPatrick1  |  July 16, 2014 at 7:05 pm

    The president and VP run together, but I can find nowhere in the constitution anything giving the president the right to dismiss or otherwise reprimand the vp for not abiding the president's wishes. I'm not sure what that has to to with anything, however.

    On the other hand, it is often true that the chief executive can dismiss or force to resign a subordinate he/ she appointed. In CO where the AG is not appointed, the request from the governor is only a means for him to express his opinion, and in so doing to notify the electorate of his contrary position.

  • 163. F_Young  |  July 16, 2014 at 7:14 pm

    No, the Charter is part of Canada's Constitution:
    http://www.pch.gc.ca/eng/1355760105725/1355760725
    http://www.pco.gc.ca/index.asp?lang=eng&page=

    Specifically, it is part 1 of the Constitution Act, 1982, which repatriated Canada's Constitution from the UK:
    http://laws-lois.justice.gc.ca/eng/const/page-15….

    You may be confusing the Charter with the Canadian Human Rights Act, which is the federal anti-discrimination law, and as such is quasi-constitutional, or possibly with the Canadian Bill of Rights, which is supposedly a quasi-constitutional federal law, but in fact was largely ignored by the courts.
    http://www.pco.gc.ca/index.asp?lang=eng&page=

  • 164. Ragavendran  |  July 16, 2014 at 7:18 pm

    This is a different issue, where Utah did request a stay and the district court denied it, and just last week, so did the Tenth. Even if you are referring to the "marriage window" that started it all, Utah did ask for a stay later at the district court that denied it, and so did the Tenth, again. I don't believe the district court would have granted the stay had Utah asked for it in a timely manner. (I'm not defending Utah, but just my opinion that the oops moment shouldn't be relevant for this application.)

  • 165. brandall  |  July 16, 2014 at 7:31 pm

    Yes, I was referring to the day the District court issued the ruling (Dec) and there was no stay requested by Utah. Since this was the very first case, the "gay equals stay" trend did not exist. Had the state requested a stay and it was granted, there would be no "orphan" marriages and consequently none of this current SCOTUS review would be happening. Of course, there could have been a proper stay request and it was denied and we'd be at the same place we are at now.

  • 166. JayJonson  |  July 16, 2014 at 7:32 pm

    The question of whether a stay is warranted has nothing to do with "creating" a fundamental right. It has to do with whether the appellant has met certain conditions and whether the granting of a stay would harm the parties. That is the question that the (in this case, very conservative) District Judge, and the Tenth Circuit panel answered when they denied a stay. The Supreme Court may reach a different conclusion. They are not likely to tell us why, and we should probably refrain from too much speculation as to their reasons, which may be quite different from one Justice to another.

  • 167. debater7474  |  July 16, 2014 at 7:38 pm

    If you read the Utah brief, you will find extensive analysis of why the creation of a fundamental right is an issue with regards to this stay. In cases that create a new vested right, there is a whole line of jurisprudence.

  • 168. debater7474  |  July 16, 2014 at 7:41 pm

    The point is that lone district judges cannot force an unwilling state to recognize a new vested right without appellate review. I don't think that's an unreasonable position, with regards to the hypothetical I posed in terms of the second amendment.

  • 169. Ragavendran  |  July 16, 2014 at 7:42 pm

    Oooh – sorry for the confusion. I misread the article in haste as denying Indiana's en banc request, and I couldn't edit it due to a response, so I added an update afterwards that you probably missed.

  • 170. debater7474  |  July 16, 2014 at 7:43 pm

    I don't mean to upset anyone! I just like try to see both sides of an argument when it comes to the law, and when I think the other side is legally right then I will say so even if I don't agree with their overall position.

  • 171. Jen_in_MI  |  July 16, 2014 at 7:45 pm

    I have a lot of respect for you, friend. You're a valuable part of our community. Well done.

  • 172. ragefirewolf  |  July 16, 2014 at 7:49 pm

    Thank you, Jen. :) That's very much appreciated.

  • 173. Ragavendran  |  July 16, 2014 at 7:51 pm

    Looking at both the WI and IN dockets, here's the timing of the events, which could tell us something about why this strange sua sponte decision came about:

    (1) Indiana files a petition for initial en banc hearing on 7/11
    (2) Court consolidates Indiana and Wisconsin cases on 7/11
    (3) Wisconsin tries to join Indiana's motion on 7/14
    (4) Court sets Aug 13 argument date for both cases on 7/14
    (5) Court denies Wisconsin's try to piggyback on Indiana's en banc motion on 7/15
    (6) Wisconsin files a petition for initial en banc on 7/16
    (7) Court removes both cases from their Aug 13 calendar on 7/16

    Looking at this sequence, I am almost certain that because the Court needs time to consider and schedule the en banc hearing if granted, the appeals have been removed from the August 13 calendar – they must have run out of all en banc slots. So it is likely they'll be moved to September.

  • 174. Ragavendran  |  July 16, 2014 at 7:54 pm

    Here's hoping we WIN in the WI+IN appeals :)
    (cue the facepalm)

  • 175. brandall  |  July 16, 2014 at 7:57 pm

    Got it. Now we are at the crux of the discussion and I understand what you are saying. If the Prop 8 case did not have the "Yes on Prop 8" group, there would have been no one to appeal and there would have been one single judge whose decision changed who can participate in marriage for the entire state of CA (and reversed the "will of the people"). Factually, that is a huge change from one single judge. That would be the end of the debate for CA.

    You would like to see certain far reaching decisions be subject to a higher review before anybody implements anything. I can understand what you are concerned about, but I don't believe that exists in our judicial system.

  • 176. DrPatrick1  |  July 16, 2014 at 7:58 pm

    It happens all the time. Appeals courts to not grant all appeals, and the SCOTUS grants an exceptionally few Certs. This does not mean the appeals court cannot hear an appeal, and nothing the district court did will preclude appellate review

  • 177. ragefirewolf  |  July 16, 2014 at 8:02 pm

    "Lone district judges" absolutely can "force" states, willing or otherwise, to recognize a fundamental right being denied without appellate review. States have the right to appeal, but there is never a guarantee for a stay on a district court decision, from the same court or from the appellate court (or SCOTUS). Whether or not to stay that decision is within the realm of that particular judge's discretion on the immediate harms. The Utah district judge saw more harm for the plaintiffs than the state. That is within his power to do. Welcome to 200 years of jurisprudence in the United States. I'm sorry you don't like it, but that's how things work.

  • 178. debater7474  |  July 16, 2014 at 8:09 pm

    Wrong. No federal court has ever held that a plaintiff can acquire vested rights as a result of an unstayed, non-final district court order, because such a rule creates an end-run around the normal appellate process and largely innoculates the unstayed, non-final decision from effective appellate review.

  • 179. ragefirewolf  |  July 16, 2014 at 8:09 pm

    You keep saying "creation" of a fundamental right. Fundamental rights are not created. That's why they are fundamental. They are recognized as not being followed all along, such as the right to marriage – not straight marriage, gay marriage, or purple people-eater marriage – MARRIAGE IN GENERAL AS A RIGHT UNTO ITSELF, which the district court and every other district court so far, AND the 10th Circuit, found that same-sex couples couldn't be excluded from as a protected class. There is a huge difference between marriage as a fundamental right and finding a "right to same-sex marriage," which no court has found so far. I sincerely wish you would see that.

  • 180. Eric  |  July 16, 2014 at 8:10 pm

    The Utah brief is wrong. Nowhere in the decision was a new fundamental right created. And there is a whole line of jurisprudence around the irreparable harm caused by the denial of a fundamental right.

    Your Second Amendment analogy is equally flawed. The right to bear arms, unlike marriage, is an enumerated right.

  • 181. brandall  |  July 16, 2014 at 8:18 pm

    I believe you just shifted the discussion by now bringing in "unstayed and non-final orders." The Emergency Appeal to SCOTUS mentions 27 times the action was based on a non-final district order. Are we in agreement that, like it or not, a single judge having a final order has the power we discussed above?

  • 182. brandall  |  July 16, 2014 at 8:22 pm

    I SO agree with you. There was a beautiful summation by one of the recent District judge decisions that effectively said, the the fundamental right has always been there, it was just not seen. I tried to find that statement to no avail.

  • 183. brandall  |  July 16, 2014 at 8:31 pm

    Bonus point question that I have no knowledge of. How many cases (or what is the percentage of cases) that are heard en banc a year? It is obviously judge resource intensive to do this.

  • 184. sfbob  |  July 16, 2014 at 8:48 pm

    I hope I won't be boring anyone with this observation, which I believe I have made before. I believe it bears repeating and is pertinent to this discussion.

    During her confirmation hearing, Justice Kagan was asked if she believed the Constitution included a right to same-sex marriage (that was the expression being used). She answered that she did not believe such a right existed. Of course the phrasing of the question was and is pertinent. It may have been a "softball" question coming from a friendly Senator; I don't recall who asked it. It served a purpose however. When the time comes Justice Kagan will certainly participate in a ruling affirming marriage equality and will do so without having changed her mind or having perjured herself. She understands that there is only one kind of constitutionally-supported civil marriage in this country AND that gay men and lesbians cannot be excluded from exercising that right based on the gender of the person they seek to marry any more than a member of any race can be excluded from exercising that right based on the race of the person they choose to exercise it with. And that all previous jurisprudence which failed to acknowledge that right is and always has been in error.

  • 185. Bruno71  |  July 16, 2014 at 8:49 pm

    Indeed, when a law is declared constitutional, the way it's supposed to work in our current judicial system is that the burden is on the executors of that law to show why they shouldn't be enjoined to stop enforcement immediately . The truth is, SCOTUS and other courts have actually taken this stance that matters of import and far reach should be subject to higher review before implementation. That's what "gay means stay" seems to be all about. That is also why there's very little chance that SCOTUS will explicitly tell Utah to recognize these marriages, even though there's a very strong chance they will survive whatever final word SCOTUS has on Kitchen .

  • 186. debater7474  |  July 16, 2014 at 8:56 pm

    I already saw that. She was asked about it during confirmation by Senator Jon Kyl of Arizona on the judiciary committee. She was referring to the current state of the law at the time of her confirmation, not whether or not she believed the constitution contains such a right.

  • 187. debater7474  |  July 16, 2014 at 8:57 pm

    http://www.youtube.com/watch?v=oVHsQDc8NmI

  • 188. Bruno71  |  July 16, 2014 at 8:58 pm

    I find everything you say in this post admirable, however your tone at times can come across a bit too unnecessarily adversarial. A good argument is advanced by logic and reason, not bluster.

  • 189. DocZenobia  |  July 16, 2014 at 9:40 pm

    debater7474 is not a troll. He/she has been here for a while now and likes to play devil's advocate.

  • 190. DocZenobia  |  July 16, 2014 at 9:49 pm

    I don't think there is enough evidence available to assess what SCOTUS will "probably" do. For every Utah there has been an Oregon. At this point nobody anywhere can predict what SCOTUS will do because they seem to be making it up as they go along. The normal guidelines for granting a stay were tossed out by SCOTUS in the Kitchen case, and now the inherent legal contradictions of "gay means stay" are increasing rather than decreasing pressure on SCOTUS.

  • 191. Bruno71  |  July 16, 2014 at 10:56 pm

    We all may have an opinion on what's probable or not, or how logical (or consistent) SCOTUS is being. Oregon & Utah were different situations. One (Utah) would've tipped their hand more than the other (Oregon). We'll see what happens though, hope I'm wrong.

  • 192. RnL2008  |  July 16, 2014 at 11:55 pm

    Here is an interactive map to help us keep score per say: http://www.lambdalegal.org/pending-marriage-equal

    Thank you Lamba Legal!!!

  • 193. F_Young  |  July 17, 2014 at 3:25 am

    "Here is an interactive map to help us keep score…"

    Here is Wikipedia's version of the map: http://en.wikipedia.org/wiki/Same-sex_marriage_in

    …and here's the accompanying article in Wikipedia: http://en.wikipedia.org/wiki/Same-sex_marriage_in

  • 194. DaveM_OH  |  July 17, 2014 at 5:38 am

    Per Lyle at SCOTUSBlog, Justice Sotomayor has asked for a response from Evans' attorneys by Friday at 10am. The appeal for a stay is docketed as 14A65.
    http://www.scotusblog.com/2014/07/utah-challenges

  • 195. remc_in_chicago  |  July 17, 2014 at 5:45 am

    I want to express my appreciation of debater7474's argument. Bruno71's observation that the bluster threw everyone off shows how difficult an online, essentially anonymous debate can be. The nuances are missing that can otherwise tip off the speakers' intention. The points you have all made contributed to a lively and thoughtful discussion. It's the details you've all brought up that embody the same kind of intellectual gymnastics taking place throughout the country on this issue, for good or ill. Thanks for caring enough to comment, everybody. (PS. I changed my profile name from RCChicago).

  • 196. RQO  |  July 17, 2014 at 5:52 am

    I appreciate Debater7474's comments, and those of the rebutters, above. I'm sure many judges are thinking the same thoughts. There is a large difference between the examples access to RPGs and ME in terms of common sense and experience. ME has been readily available for as long as ten years in some US states, with no apparent harm caused. RPGs have been available for 10 years in places like Iraq and Afghanistan, with much harm. This distinction might occur to judges and justices, though after Citizens United and Hobby Lobby I am not certain practical consequences are high on their list of criteria.

  • 197. LK2013  |  July 17, 2014 at 6:05 am

    Speaking of maps to keep score of equality, it is startling to compare the maps for the progress of marriage equality with the maps for the abolition of slavery. I've been reading Sue Monk Kidd's wonderful book The Invention of Wings, and I started looking again at the progress of emancipation across the USA. Check out the similarities:

    Marriage Equality: http://en.wikipedia.org/wiki/Same-sex_marriage_in

    Abolition of Slavery: http://tinyurl.com/ny3294x

  • 198. MichaelGrabow  |  July 17, 2014 at 6:05 am

    I want to leave work, drive the two miles over the fourth circuit court, knock on the door, and ask when the judges will be ready.

  • 199. brandall  |  July 17, 2014 at 6:36 am

    Great idea, but we would still have to wait for whatever that date is. Can't you just take them to lunch and ask them what is their final decision? I'll send you my credit card number to cover the lunch.

  • 200. MichaelGrabow  |  July 17, 2014 at 7:09 am

    I do love food and not working, this sounds like a much better plan.

  • 201. hopalongcassidy  |  July 17, 2014 at 7:14 am

    As long as you're out, would you stop by Denver and ask the 10th what the hell is the holdup on Bishop?

    😉

  • 202. brandall  |  July 17, 2014 at 7:41 am

    If you don't want to read Utah's rambling filing, I highly recommend you read Lyle's summary of the situation and Utah's positions (see link above). He did an excellent job.

  • 203. ragefirewolf  |  July 17, 2014 at 8:15 am

    I'm not bored! :) Seeing that she agreed on Windsor, I'm sure we don't have to worry too much about her vote.

  • 204. ragefirewolf  |  July 17, 2014 at 8:16 am

    Thank you, Eric. I wasn't sure how to put the rebuttal to the Second Amendment argument into words.

  • 205. StraightDave  |  July 17, 2014 at 8:23 am

    Completely twisted and disingenuous claim by UT:

    "The couples who managed to get married under that judge’s ruling should not be allowed to bring about a change in state law just by obtaining a marriage license, the state contended. "

    They have this backwards. The couples obtained marriages licenses because the state law had changed, not the other way around. This is enough to cast presumptive doubt on all the rest of their argument. I hope it's rejected without comment.

  • 206. remc_in_chicago  |  July 17, 2014 at 9:04 am

    Thanks for alerting us to this. I love the quotes around "interim."

  • 207. Eric  |  July 17, 2014 at 9:18 am

    Your Second Amendment analysis is overly broad. As with any enumerated right, depriving one of the right to bear arms is subject to substantive due process. The government must have a compelling governmental interest, the interest must be narrowly tailored, and the restriction must further the compelling interest.

    In truth, with the proper permits, citizens can own RPG's and hand grenades. It would be kind of hard for the government to argue that law abiding citizens can't have RPG's or hand grenades, while selling those very same items to non-citizens.

  • 208. StraightDave  |  July 17, 2014 at 9:39 am

    My guess is they're torturing themselves over the out-of-state recognition part of this. They may want to do the right thing but can't figure out how to make it all look legal and proper after previously telling the plaintiffs to sure the wrong officials. (that may have been a different panel, but it still has the court's name and credibility attached to it)

    The licensing part should just be copy/paste from Kitchen, so something weird is going on.

  • 209. StraightDave  |  July 17, 2014 at 9:54 am

    Not the least bit startling to me. In fact, I think it should be highly predictable. All the same preconditions are present – religion, low education, ignorance, fear, aversion to differences. Come back next decade with a survey of "Muslim immigration".

  • 210. sfbob  |  July 17, 2014 at 2:49 pm

    The question was about the state of current law at the time of her confirmation. She wisely and appropriately noted that she had previously said there was "no constitutional right to same-sex marriage." There is clearly a cat-and-mouse game going on in her testimony. Kyl is trying to get her to, in effect, take a position on marriage equality–and on DOMA– in the guise of saying what is or is not in the Constitution. She isn't having it. Her previous statement was given in the context of her confirmation hearing for the post of Solicitor General. Basically she had been asked if she was competent, as solicitor general, to defend DOMA before the Supreme Court. She said what she had to say; the real reason she said what she did was that she is a professional and not necessarily because she thought DOMA was good law.

    I'm not certain how these things get decided really but if I recall correctly it was the DOJ's determination that DOMA was unconstitutional and that the administration should not defended that allowed Kagan's successor as Solicitor General to speak against DOMA at the Windsor hearing. It would not have been up to the Solicitor General's office to make such a determination independently.

    It should be pretty obvious to anyone that the Constitution doesn't include a right to any particular category of marriages and I am certain Senator Kyl knew that to be the case.

    FWIW I just got back from a business trip to Arizona (a few minutes ago) where the local and state primaries are in full swing. Pretty shocking to see so much hate on display there and I'm glad to be back home in California where my rights and the rights of other minorities are recognized in the law even if it's still necessary for some to go to court to get those rights vindicated.

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