Sign Up to Receive Email Action Alerts From Issa Exposed
×

Florida judge strikes down marriage equality ban, ruling applies to one county only

LGBT Legal Cases Marriage equality Marriage Equality Trials

Florida state sealBig news out of Florida today, where a state judge overturned the state’s constitutional ban on marriage equality.  The AP reports:

The ruling was issued Thursday by Circuit Judge Luis M. Garcia and applies only to Monroe County, which covers the Keys. The lawsuit contended that the same-sex marriage ban approved by voters in 2008 violated the U.S. Constitution’s guarantee of equal protection under the law. The judge says licenses could be issued starting Tuesday.

Attorney General Pam Bondi and ban supporters argued that the referendum vote should be respected and that Florida has sole authority to define marriage in the state. The Florida amendment defined marriage as a union between one man and one woman.

Under Garcia’s decision, same-sex couples will not be able to obtain licenses until July 22, and until it is reviewed by a state appeals court, the ruling applies only to Monroe County.  Two other courts in the state are also currently considering marriage equality cases and could issue rulings soon.  On July 2, a judge in Miami-Dade county heard arguments made by lawyers for six same-sex couples living in that county, and a federal district court judge in Tallahassee is considering arguments as well.

Florida’s marriage equality ban passed in 2008 and banned both marriages and domestic partnerships for same-sex couples.

Update (3:45 p.m.): Florida Attorney General Pam Bondi has appealed Judge Garcia’s decision, and will likely seek a stay pending appeal to ensure no marriages take place.

353 Comments

  • 1. ragefirewolf  |  July 17, 2014 at 12:47 pm

    The judge probably did that to avoid colliding with the other pending state cases, I think. Judges can issue narrow rulings like that.

  • 2. DaveM_OH  |  July 17, 2014 at 12:49 pm

    Jacob,
    Per my post on the other thread:
    Fla. R. App. P. 9.310(b)(2) states that such a notice of appeal (filed by a public official in official capacity) shall effect an immediate stay of the lower court's decision. There is no need to file a separate motion for a stay.

  • 3. hopalongcassidy  |  July 17, 2014 at 12:58 pm

    Oh shit, sorry, I completely missed that he's a state judge, I thought it was Federal District Court. Too many cases for my old tired brain. Thanks for the reply.

  • 4. brandall  |  July 17, 2014 at 1:08 pm

    The Monroe case decision was issued by Chief Circuit Judge Luis Garcia, appointed by Jeb Bush and reelected in 2002 and 2008

  • 5. Mike_Baltimore  |  July 17, 2014 at 1:09 pm

    I think it's more like a Federal Court system ruling – the ruling only applies in the jurisdiction the judge sits in. When a Circuit Court rules, the decision only applies in the jurisdictions covered by that Circuit.

  • 6. BenG1980  |  July 17, 2014 at 1:14 pm

    Based solely on the fact that the state had to intervene, it seems the plaintiffs originally only sued the county clerk. That leads me to believe the plaintiffs just asked for county-wide relief and that's what they received.

  • 7. Waxr  |  July 17, 2014 at 1:38 pm

    I moved from California to Florida this past February. I now live in the Tallahassee area. The large number of Churches gives me the impression that the people here are very religious, and that includes the relatives we stayed with until we found our own place.

    Our Florida relatives are opposed to ME on religious grounds, but accept the fact that it is coming and do not make an issue of it. That seems to be the feelings of most Floridians. There is little reference to the ME trials on TV or in the newspapers. The governor has said little about it. However, AT Pam Bondi is strongly opposed to ME and will put up a fight.

  • 8. scream4ever  |  July 17, 2014 at 1:42 pm

    Also of note:

    Either party or the 3d District Appeals Court could move that the FL SC resolve this issue promptly, as it is "of great public importance or have a great effect on the proper administration of justice throughout the state[,]" bypassing the appellate level. (Fla R. App. P. 9.125(a)) The parties have 10 days to make this motion.

  • 9. Bruno71  |  July 17, 2014 at 1:50 pm

    Had you seen this? Your mayor is pro-equality, at least: https://www.youtube.com/watch?v=gIIYi5wRyQg

  • 10. hopalongcassidy  |  July 17, 2014 at 2:36 pm

    Be careful up there in the panhandle, there seems to be a lot of toxic stuff leaking down from Alabama that makes those denizens crazy. And also the I-4 corridor which I never understood even when I lived at the west end of it. Much of the rest of the state is relatively sane. Except Little Havana but that's Cuba North and doesn't much matter anyway.

  • 11. Terence  |  July 17, 2014 at 2:56 pm

    As a foreigner (UK resident), I'm constantly rooting for ME progress, US and worldwide, and greatly appreciated the informative news updates and intelligent discussions on this site.

    However, as a Saffer (South African), I'm deeply grateful that we didn't have to go through these tortuous proceedings (legal, legislative, and ballot initiatives) to get to our own equality – in marriage, adoption, employment, the lot, countrywide.

    That's because when our brand new democratic constitution was negotiated, our equivalent of your founding fathers had the wisdom to build into it this bill of rights clause – the first in the world to specify "sexual orientation" as a protected class (but sadly, not gender expression or identity):

    ******

    9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

    (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

    (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

    (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

    (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

    ******

    It took only a few test cases before the constitutional court to confirm that this "equality"includes rights to adoption, military service, participation in partner pension / medical insurance schemes, and the like – and the right to marriage, although that took a few years of prodding to get it through parliament.

    (It probably helped that a senior judge on the court, Justice Edwin Cameron, is an openly gay, openly HIV positive man)

    Twenty years on there's still extensive prejudice and homophobia (this IS Africa), but in practical, legal terms, equality is entrenched, and embraced by all the major political parties.

  • 12. scream4ever  |  July 17, 2014 at 3:02 pm

    I honestly think Bondi wants this done before election day, and will likely support the move to push it directly to the state supreme court.

  • 13. netoschultz  |  July 17, 2014 at 4:24 pm

    I don't agree with that. The Pennsylvania was made by a judge in the United States District Court for the Middle District of Pennsylvania and the ruling was effective statewide. The same was with California ruling. The ruling applies to all the state where the judge sits in. Not only the counties inside his district.

  • 14. F_Young  |  July 17, 2014 at 4:26 pm

    "(but sadly, not gender expression or identity)"

    Has a test case been tried in South Africa to fit gender expression or identity under sex, gender or disability? Sex and disability have been found to include gender identity by some courts in the US and Canada.

    When a law lists both sex and gender (which legally means the two words must have different meanings), as South Africa's constitution does, I cannot imagine that gender could mean anything other than gender expression.

  • 15. JayJonson  |  July 17, 2014 at 5:08 pm

    This is not a federal court ruling. It is a state court ruling. I suspect that a District Judge cannot issue rulings that affect the entire state. If it is appealed and upheld, then it may impact the entire state.

  • 16. BenG1980  |  July 17, 2014 at 5:26 pm

    It seems that Wikipedia hasn't been updated yet with this development. It will be interesting to see how the mapmakers handle the one county applicability. http://en.wikipedia.org/wiki/Same-sex_marriage_in

  • 17. StraightDave  |  July 17, 2014 at 6:03 pm

    The quick stay probably stopped this dead in its tracks for now. NM, WI, and IL went through such a half-baked situation for quite a while. Nothing unusual anymore, it seems. I don't think wikipedia got involved at the county level, but there were enough other contributors to pick up the slack.

  • 18. Margo Schulter  |  July 17, 2014 at 6:17 pm

    This is a decision with a few grammatical flaws and typos, as has been pointed out, but also with its own rather concise beauty and charm. The conclusion about the Constitution preferring liberty and equality in many different settings had a simple poetry to it which makes it memorable: Judge Garcia has his heart in the right place.

    As has been pointed out, the evidence of animus in some of the amicus briefs was an additional catalyst, although animus can be a tricky issue and determining the intent of a ballot measure often no so easy (with federal DOMA, the legislative record as brilliantly presented in the oral argument made it a rather clear issue).

  • 19. Zack12  |  July 17, 2014 at 6:34 pm

    Keep in mind in Florida a stay is automatic no matter the case is so in this case, the gay means stay didn't come into play here.

  • 20. Ryan K.  |  July 17, 2014 at 6:58 pm

    Logically it still doesn't make sense that a state law and state constitutional amendment can be ruled unconstitutional by virtue of the US Constitution, 5th and/or 14th Amendment, and only apply to one county. If the state statue and the amendment are unconstitutional, why would I as a constituent of Broward County still be bound by an unconstitutional law. Talk about due process!

    Practically I get it, as only the Clerk of Monroe Country was listed as a defendant. There should be some template that each lawsuit uses as to who to include in your list of defendants so that when a ruling goes our way, it has the most impact. Why would they ask for summary judgement on the State of Florida recognizing out-of-state marriages if none of the plaintiffs were married out of state? That's a simple ruling on standing that anyone can make.

    Believe me, THRILLED by the decision, and happy for my brothers and sisters in Monroe County and I'm sure there is celebrating going on at Duval Street in Key West tonight. Here's hoping the Miami-Dade decision can have more breadth to it to have a greater impact.

  • 21. remc_in_chicago  |  July 17, 2014 at 6:59 pm

    Golly. While I never lived anywhere remotely close to Little Havana, I am Cuban and don't consider myself or anyone else I know to be insane. Folks from "Cuba North" were among those who filed the first complaint in Florida and were among the lawyers going to bat for the guys in Key West. Judge Garcia was born in Chicago in 1963—likely son of Cuba exiles. Still, while we have to (unfortunately) count Rubio as own own, on the flip side, we've got Illeana as the first Republican in Congress to support our causes.

  • 22. Zack12  |  July 17, 2014 at 7:09 pm

    It's frustrating but it's how these things often work in state court.
    If the Florida SUpreme Court knocks the ban down though, it's pretty much game over, as only SCOTUS could put a stop to them.

  • 23. Ryan K.  |  July 17, 2014 at 7:13 pm

    I moved from MI to FL in October 2000, right around the last time that the SCOTUS decided to put a stop on a SCofFL decision in an infamous 5-4 ruling.

  • 24. Ragavendran  |  July 17, 2014 at 7:13 pm

    I believe the declaratory portion of the judgement (the opinion) is the judge's opinion on the constitutionality of the Florida marriage ban regardless of the county it is being enforced in, i.e., the judge is not saying it's constitutional (or undecided) in other counties. But the injunctive part of the order, where he enjoins the clerk from enforcing the ban, only applies to Monroe County, because the judge does not have jurisdiction over other counties. I think that a similar logic was used by the Boulder County clerk in issuing licenses when the Tenth ruled against Utah – she reasoned that the declaratory logic of the opinion applied to all the states in the Tenth Circuit, but the stay only applied to Utah, because the Tenth lacked jurisdiction (in the context of the Utah appeal before them) to explicitly ask all states to pretend as if it's ruling hadn't come down.

  • 25. DACiowan  |  July 17, 2014 at 7:39 pm

    I'm one of the main mapmakers there (Dralwik) and we decided that in the absence of marriages being performed, since this ruling was one county to leave the map be. If the FL SC rules in favor of marriage statewide but stays the ruling, or the US District Court rules against the marriage ban, then Florida will be gold.Likewise I proposed a blue stripe on Colorado but without official court and state recognition the three CO counties don't earn the state a stripe. The map talk page has all the details.

  • 26. Mike_Baltimore  |  July 17, 2014 at 8:12 pm

    The original argument was that the clerk refused to give the plaintiff party a marriage license. I don't believe county-wide relief for anyone else was requested.

    So yes, in effect, it was a request for county-wide relief, but the judge came to the conclusion that the county clerk was following state laws and the state constitution, and that those state laws and the state constitution pronouncements on this subject were not legal under the US Constitution, so that is why he struck down the laws and provision in the constitution.

    However, apparently his powers are limited to ONLY one county, thus his ruling only applied to one county, not to the entire state.

  • 27. FredDorner  |  July 17, 2014 at 10:15 pm

    I like how the judge noted that the bigoted nonsense in the amicus briefs was evidence of the very animus which those briefs claimed didn't exist.

  • 28. Terence  |  July 17, 2014 at 10:46 pm

    Have there been any test cases? I don't know. (I've lived in the UK the past ten years) In practice, I think the clause is applied pretty broadly, as you suggest. Government employment, eg, is fully inclusive. In the military, trans people are not only able to serve, but can even have the costs of surgery carried by the services, just like all their other medical costs. I would think that major corporation would also interpret discrimination law equally broadly. It's likely that the omission matters more in symbolism than in law – but symbols are important.

  • 29. Ragavendran  |  July 18, 2014 at 12:37 am

    Off-topic, but I came across this heartbreaking story and I just had to share it. This is the city (Chennai/Madras) where I grew up and am visiting right now, though not in the same neighborhood (or even close). This is but a small example of the tyranny of the police coupled with political power that the poor, not-so-well-to-do people have to endure in this country. Warning: Graphic language/description.

    Part 1: http://gaysifamily.com/2014/06/13/singara-beautif
    Part 2: http://orinam.net/ajay-raped/

  • 30. Ryan K.  |  July 18, 2014 at 5:10 am

    Yup, jurisdiction is only applicable to the county he is a judge in. So any approach in Flroida to go through state court means the means to get it relevant for state wide impact is through appeal and affirmation at the Florida Supreme Court.

  • 31. ragefirewolf  |  July 18, 2014 at 5:41 am

    No need to be sorry, haha. I was just answering your question. :)

  • 32. BenG1980  |  July 18, 2014 at 6:31 am

    Thank you for your work there. I think we all greatly appreciate those maps. When I originally commented, there was no mention of the case at all in the introductory paragraphs of the article or on the list of stayed decisions. I guess waiting for a higher court to rule is the simplest approach. I will definitely read the talk page. Thanks again!

  • 33. Randolph_Finder  |  July 18, 2014 at 6:34 am

    Seems like we have half of the map talk page regulars here on EOT. Tinmanic is here too, I believe. :)

  • 34. F_Young  |  July 18, 2014 at 6:54 am

    Yes, heartbreakingly tragic, but Ajay has incredible strength to have survived what he did.

  • 35. JayJonson  |  July 18, 2014 at 7:03 am

    Yes to what Ragavendran says above. In addition, there is a practical reason to limit jurisdiction. There are hundreds of state court judges and magistrates, and some of them are simply political hacks and local pols. To allow them to rule a state-wide law invalid without check could create chaos (real chaos, not the kind of faux chaos claimed by Utah or the Colorada Attorney General). Hence, the limit to a single county. But when it moves to the appellate courts (especially the Florida Supreme Court), the scope of the rulings will increase as the decision is upheld. I expect that when the Miami-Dade ruling is released, the two cases will be consolidated and expedited to the state Supreme Court.

  • 36. Ryan K.  |  July 18, 2014 at 7:54 am

    Completely agree, which is why I tried to indicate in my "practically" part why I quasi-understood; maybe this one just hit closer to hime since I am two counties north of Monroe where this occurred.

    One inquiry I was trying to find is if the Appellate Court (thought I read or someone stated it would be the 3rd Appellate Court of FL) rules before the FL Supreme Court, would that have the statewide impact, or is its jurisdiction only for counties that it handles appeals for (similar to US Circuit Court of Appears for Federal Districts under it) and only the FL Supreme Court could produce a ruling that invalidates the statue and amendment statewide?

  • 37. DaveM_OH  |  July 18, 2014 at 8:16 am

    WE HAVE BISHOP!

    Win! http://www.ca10.uscourts.gov/opinions/14/14-5003….

  • 38. BenG1980  |  July 18, 2014 at 8:16 am

    Ruling in Bishop!

    http://www.ca10.uscourts.gov/opinions/14/14-5003….

  • 39. JayJonson  |  July 18, 2014 at 8:16 am

    "Appeals Court Rules Oklahoma Same-Sex Marriage Unconstitutional." Just saw this headline, but the post had no details. Has the Bishop decision been issued?

  • 40. SWB1987  |  July 18, 2014 at 8:19 am

    Yup!! http://m.washingtonpost.com/national/court-rules-

  • 41. jpmassar  |  July 18, 2014 at 8:20 am

    "We STAY our mandate pending the
    disposition of any subsequently-filed petition for writ of certiorari. "

  • 42. SWB1987  |  July 18, 2014 at 8:29 am

    If I read it correctly it was dismissed on standing issues while the ban was still found as unconstitutional

  • 43. Pat_V  |  July 18, 2014 at 8:29 am

    I love Fridays!
    Now could we pleaaaase get the 4th circuit Michigan case as well?

  • 44. DoctorHeimlich  |  July 18, 2014 at 8:31 am

    It has indeed!
    https://www.ca10.uscourts.gov/opinions/14/14-5003

  • 45. hopalongcassidy  |  July 18, 2014 at 8:35 am

    Here's the link to the ruling…it is a long one https://www.ca10.uscourts.gov/opinions/14/14-5003

  • 46. DaveM_OH  |  July 18, 2014 at 8:36 am

    In Plain English (As I understand it):

    Oklahoma's constitutional ban on equal marriage falls due to the same analysis performed in Kitchen, however they are not (yet) forced to recognize out-of-state marriages.

    Judge Holmes writes a separate concurrence to illustrate that the District Judge did not make a finding of animus, and neither does the 10CA, so this ban fails even rational basis review w/o animus – the lowest bar.
    The Barton couple, who sought foreign recognition, still sued the "wrong" official, and so lacked standing to have their California marriage recognized. The 10CA apologizes for insinuating Barton should sue a clerk; instead, the Bartons should have filed a tax return as "married filing jointly" and waited until the state kicked it back, then sued the state treasurer.

    This decision is stayed pending a certiorari petition.

    Kelly dissented again, with the same analysis he wrote in Kitchen, acknowledging that he once again failed to persuade his colleagues.

  • 47. BenG1980  |  July 18, 2014 at 8:37 am

    Quickly skimming, it looks like they only dismissed the non-recognition portion of the claim.

  • 48. JayJonson  |  July 18, 2014 at 8:44 am

    Thanks to DaveM_OH, DoctorHemilich, and Hopalongcassidy for linking to the decision. Having waded through this long, complex, at times utterly bewildering decision, I now understand what took so long for it to be released. Thanks to DaveM_OH for explaining it in plain English.

  • 49. BenG1980  |  July 18, 2014 at 8:46 am

    That would be the Bostic case out of Virginia, but yes, stay turned until 2:30 EDT this afternoon.

  • 50. Pat_V  |  July 18, 2014 at 8:50 am

    Oh yeah, damn, so many going cases!

  • 51. Roulette00  |  July 18, 2014 at 8:57 am

    Failed to persuade his colleagues, meaning, he simply pretended that Kitchen v Herbert never happened (or was wrong) and this appeared as a brand new case before him. Convenient.

    It would have been more in holding with the principle of stare decisis to say, "IF Kitchen stands, then this stands."

  • 52. JayJonson  |  July 18, 2014 at 8:58 am

    I can see why it may be politically expedient to avoid accusations of animus against the legislatures and people who vote for bans on same-sex marriage, but such avoidance denies reality. There is ample evidence that the predominant (if not entire) purpose of these bans was to disadvantage and to stigmatize gay people and our relationships.

    The pretense that the bans were not enacted out of animus also flouts the Windsor decision in which Kennedy quite specifically found animus in the enactment of DOMA.

    I guess the pretense allows those who opposed same-sex marriage a means of saving face by crediting their ludicrous claims that their interest is only in "protecting marriage." If the bans may be stricken on another basis, especially the recognition that marriage is a fundamental liberty right that also includes the right to choose a partner of the same gender, then I guess we can live with the fiction that those who banned us from equal rights were not doing so out of animus.

  • 53. RnL2008  |  July 18, 2014 at 9:09 am

    If those who who are supposedly trying to "PROTECT" the institute of marriage……why aren't they fighting to end divorce? See, they DON'T truly care about the children, or stable families……what they want is to continue to hate us, yet NOT sound like they're hating us!!!

  • 54. RnL2008  |  July 18, 2014 at 9:19 am

    Okay….question…..Is the marriage ban UNCONSTITUTIONAL in Oklahoma? Did the couples NOT file the right lawsuit challenging the out-of-state recognition part? I'm a bit confused as I got to page 10 and seriously got real confused!!!

  • 55. brandall  |  July 18, 2014 at 9:27 am

    It figures the 10th would come out this particular morning since we came down to Monterrey last night, I did not sleep well and slept in. I just woke up. Perhaps I'll go back to bed about 11:30 am and the 4th will be released today!

  • 56. debater7474  |  July 18, 2014 at 9:27 am

    Does getting Bishop mean we don't get Bostic, because the 4th now has to add references to their opinion/dissent?

  • 57. RemC_in_Chicago  |  July 18, 2014 at 9:30 am

    Regarding what could happen next in Florida, for those who are interested, I got the following from one of the lawyers in the Federal case: "If the judge grants or denies the motion, there would be no further need for a hearing on the motion. He said in April that he would decide whether he wanted a hearing only once we finished filing all the papers on the motion—that was completed on May 27, and he hasn’t scheduled a hearing, so I think it’s safe to say that we won’t have a hearing on the motion. If the judge grants the motion, the state will have to decide whether to seek a stay and whether to appeal the decision."

  • 58. MichaelGrabow  |  July 18, 2014 at 9:34 am

    Ugh!

  • 59. brandall  |  July 18, 2014 at 9:34 am

    SCOTUS Evans: Once you are all done digesting Bishop, here is the response from the RESPONDENT's OPPOSITION TO APPLICATION TO STAY PRELIMINARY INJUNCTION PENDING APPEAL to SCOTUS filed last night. This is Evans (not Kitchen) which wants to have the Utah marriages prior to the SCOTUS stay recognized by Utah.
    https://www.aclu.org/sites/default/files/assets/o

  • 60. DaveM_OH  |  July 18, 2014 at 9:38 am

    The constitutional ban on performing marriages in Oklahoma is unconstitutional. Oklahoma is not (yet) forced to recognize marriages performed in other jurisdictions, because an official who would have the duty to recognize or withhold recognition was not sued.

    Moral of the story: Courts *love* tax cases. Instant standing and real harm if the state is taking your money, and you know who to sue. See also Edie Windsor.

  • 61. brandall  |  July 18, 2014 at 9:40 am

    My suggestion…..No one should be allowed to divorce until their youngest child turns 18. Although I'm being sarcastic, it would be very interesting to see what the anti-ME groups have to say about that idea. If this was really about the children and not veiled homophobia, then they should be passing State constitutional laws and propositions.

  • 62. BenG1980  |  July 18, 2014 at 9:42 am

    I doubt Bishop will significantly delay Bostic, if at all, since the court treated both Kitchen and Bishop the same on the merits. The only difference between them was the complication regarding standing which precluded the court from addressing the merits of the non-recognition claim in Bishop.

  • 63. scream4ever  |  July 18, 2014 at 9:49 am

    I've heard the cause of the delay is likely due to waiting to see how the Supreme Court handles the stay in Utah marriage recognition case.

  • 64. RnL2008  |  July 18, 2014 at 9:52 am

    So, then ANOTHER lawsuit must be filed in order to get the recognition part overturned, correct?

  • 65. StraightDave  |  July 18, 2014 at 9:53 am

    The court did gracefully point out in the end that recognition by OK may ultimately be derived from Kitchen, so all is not lost. In fact, this apparent "loss" may actually be moot for the following reason. Even if the recognition case had been won today by Barton, it likely would not take effect until settled by SCOTUS, probably next June. That's the same time Kitchen would be settled, so Barton winning or losing today would have the same end result.

    "The frustration that may be engendered by the court’s disposition today should be tempered, however. Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen casts serious doubt on the continuing vitality of Part B. See 2014 U.S. App. LEXIS 11935, at *4 (“A state may not . . . refuse to recognize [a] marriage . . . based solely upon the sex of the persons in the marriage union.”). "

  • 66. RnL2008  |  July 18, 2014 at 9:56 am

    Oh, I so agree with you there, but they won't because it's NOT about the children or stabilizing the traditional family……it's all about the hate for a group of individuals they DON'T even know!!!

  • 67. RnL2008  |  July 18, 2014 at 9:59 am

    Still, it is hard to have a partial loss with such a strong victory, but in the end…I believe you are right……..SCOTUS will decide this issue my guess sooner rather than later by the end of next term…..and Gay and Lesbian couples have waited this long…….a little longer will be well worth the wait as long as we win at SCOTUS!!!

  • 68. DaveM_OH  |  July 18, 2014 at 10:06 am

    Thanks Dave.

    The citation you provide here is the Court's acknowledgment that Barton doesn't have standing, but Kitchen, if affirmed should mandate foreign recognition:

    Plaintiffs Archer and Call (in Kitchen et al.) were married in Iowa, and sought to file UT returns as married filing jointly (ed. note – a tax case!)

  • 69. DACiowan  |  July 18, 2014 at 10:09 am

    I believe the next level up, the Third Appellate Court, would only cover its counties (Miami-Dade and Monroe). However, iirc the AG is going straight to the Florida Supreme Court.

  • 70. Roulette00  |  July 18, 2014 at 10:19 am

    You would also need laws that require a rapist marry his victim(s) and laws that permit polygamy for cheating spouses. Also, you'd put down laws that only childless soldiers may be stationed overseas.

  • 71. debater7474  |  July 18, 2014 at 10:23 am

    As we move towards the Supreme Court's decision, I thought it might be useful to go back and look at Justice Kennedy's views on cases dealing with gay rights issues. As I see it there, were five major cases dealing with gay rights-related issues.

    Romer v. Evans (1994)
    Boy Scouts of America v. Dale (2000)
    Lawrence v. Texas (2003)
    Christian Legal Society v. Martinez (2010)
    United States v. Windsor (2013)

    Justice Kennedy took the pro-gay position in every decision but Boy Scouts of America v. Dale, in which he said that the boy scouts should be allowed to ban gay members, thus providing the fifth vote to a five-four majority.

    It's although worth noting, for those who are optimistic about Roberts, that he voted against us in both Christian Legal Society v. Martinez and United States v. Windsor.

  • 72. BenG1980  |  July 18, 2014 at 10:25 am

    Interesting. Why would that be? There obviously haven't been any marriages yet of same-sex couples in Virginia. The analogous Utah situation would be the stay issued by the 10th Circuit along with its ruling in Kitchen, not the Supreme Court's decision on a stay pending appeal in Evans.

  • 73. brandall  |  July 18, 2014 at 10:36 am

    Bondi appealed yesterday to the Third District. The District court has the option of passing this on directly to the Florida SC at their discretion.

    "NOTICE IS GIVEN that the State of Florida, Intervenor-Defendant in this matter, appeals to the District Court of Appeal, Third District, the final order of this Court issued on July 17, 2014"
    http://myfloridalegal.com/webfiles.nsf/WF/JMEE-9M

  • 74. brandall  |  July 18, 2014 at 10:38 am

    "If" true, that theory would only cover the past 48 hours. The 4th is normally much faster at issuing its' decisions. They are now way overdue.

  • 75. JayJonson  |  July 18, 2014 at 10:41 am

    Back to the question of animus discussed above. Although the Tenth Circuit affirmed Judge Kern's ruling, they (or at least Holmes and Kelly) go out of their way to distance themselves from his conclusion that the marriage ban was motivated by impermissible "moral disapproval" homosexuality.

    Judge Kern specifically cited the legislative and electoral history of the prohibition. From the remarks made by legislators and other supporters of the state constitutional amendment, he said that it is apparent that the only motivation for the ban was religious-based disapproval of homosexuals and homosexuality, which is not a permissible state interest.

    It is hard not to see this decision as intended to steer the Circuit away from the approach taken by Judge Kern, which I find more truthful and more consonant with Windsor. But, if I recall correctly, some commenters here see an advantage in abandoning the animus issue. I would love to hear again why that is a good idea.

  • 76. Bruno71  |  July 18, 2014 at 10:41 am

    I wonder how he voted on cert in the Elane Photography and California "ex gay" therapy cases.

  • 77. Japrisot  |  July 18, 2014 at 10:42 am

    Well, the holding of CLS v. Martinez did not implicate gay rights in a way that would be relevant to present litigation, Ginsburg's dicta notwithstanding.

  • 78. MichaelGrabow  |  July 18, 2014 at 10:44 am

    The insanity never fails to reach new levels.

    The Christian Family Coalition of Florida called the ruling a “corrupt decision,” and a “judicial lynching of nearly 8 million Florida voters” who voted to ban same-sex marriage in 2008. John Stemberger, who led that 2008 campaign, said he would keep fighting. “This is an issue worth dying for,” said Stemberger, president and general counsel of the Florida Family Policy Council in Orlando. “Every domestic partnership, every single civil union, every couple that cohabitates, these arrangements dilute and devalue marriage.” Stemberger said he wasn’t “daunted” by Garcia’s ruling, nor was he surprised. “The court was very hostile to our position,” he said. “This is a very sad day for Floridians. This is an entirely illegitimate process. The judge had no legal authority in this decision.”

  • 79. DACiowan  |  July 18, 2014 at 10:44 am

    Thanks for the reminder; I was conflating her actual appeal with speculation that the Third DC would just forward her appeal to the FLSC.

    Florida is the last state of the seven that have over 10 million people not to have equal marriage or a stayed ruling.

    (CA, NY, IL, PA – marriage, TX. OH – stayed ruling)

  • 80. SWB1987  |  July 18, 2014 at 10:45 am

    How does this EOT not have this up yet? It's been like two hours

  • 81. debater7474  |  July 18, 2014 at 10:45 am

    The question before the court was whether it was permissible for the school to not accept student groups that banned gay members, and so at some level that implicates your view of gay people and of whether discrimination against them is legitimate.

  • 82. BenG1980  |  July 18, 2014 at 10:48 am

    Scottie doesn't seem to be around. He hasn't posted since Monday. It IS summer after all. :)

  • 83. brandall  |  July 18, 2014 at 10:49 am

    I should have added that AG Bondi is up for reelection. Now that she is committed to the appeal, slow rolling this until after November would be her obvious strategy to pander to her base.

  • 84. DACiowan  |  July 18, 2014 at 10:51 am

    Related to the Colorado cases, here is an NPR story on the Boulder County Clerk who tried to issue licenses way back in 1975. Glad to see she's here to see the current progress.
    http://www.npr.org/2014/07/18/332344999/colo-cler

  • 85. bythesea66  |  July 18, 2014 at 10:54 am

    Perhaps at NN2014?

  • 86. Zack12  |  July 18, 2014 at 10:55 am

    It's nice to see the bigots admit that despite the claims of some folks that say they would be happy with us having marriage rights if it's called something else (seperate but equal never works) that in reality they don't want us having ANY rights, no matter how small they are.
    As for the other part, that is my only fear when these bans get struck down.
    Sooner or later, one of these extremists is going to try and pull something, let's just hope they aren't successful.

  • 87. DACiowan  |  July 18, 2014 at 10:59 am

    SPQRobin as well.

    One major reason I hang out here is how efficient you guys are at finding rulings. Several of the case links on Wiki are sources that first appeared here.

  • 88. hopalongcassidy  |  July 18, 2014 at 11:00 am

    I lived in a Cuban neighborhood in Tampa and while some of the folks there were okay, the vast majority were far-rightwing assholes. I'm sure that is not the case in Chicago. I am about the most non-Hispanic looking person in America but I have traveled extensively through much of the world and I speak fluent Spanish, a fact I rarely ever divulged when at home in Tampa…you would be amazed (or maybe not) at some of the things I overheard when they thought their conversations were encrypted. I can't count high enough to note all the times I heard the word 'maricon',
    uttered with a sneer. The guy who most violently opposed marriage equality in the FL trial (not this one in Monroe County) is very much a Cuban immigrant with his mis-named "Democrat …something or other" gang of thugs.

  • 89. Randolph_Finder  |  July 18, 2014 at 11:06 am

    Forgot about him. BTW, I'm Naraht on Wikipedia. Sometimes I think the talk page on the map is Pro-ME enough that some of the regulars on the talk page should be sent here. :)

  • 90. sfbob  |  July 18, 2014 at 11:07 am

    The recognition part is inevitable and, if it doesn't follow directly from Bishop will follow from whichever case the Supreme Court decides to take and rule upon. If the ban on performing marriages is ruled unconstitutional then there really is no basis on which to refuse to recognize marriages performed elsewhere. A simple "we refuse to recognize those marriages because that's our policy" does not suffice since the state will typically recognize out of state marriages; the refusal would have to at least pass rational basis and it would fail to because all of the rationales are the same as those that have already been debunked repeatedly, including in Bishop itself.

  • 91. Randolph_Finder  |  July 18, 2014 at 11:09 am

    At one point the idea was brought up to actually do a map with all of the counties on it. *that* would have been considerably more painful, especially when during the times when New Mexico, Utah and Illinois had large number of counties coming to different conclusions based on court cases. (Now, I think it is just Colorado and Florida that have county specific decisions)

  • 92. DoctorHeimlich  |  July 18, 2014 at 11:10 am

    Judge Holmes' concurrence in the Bishop case is actually more compelling reading than the majority opinion itself, and I see it as an interesting way of prodding Justice Kennedy.

    Much has been written about how Kennedy's trilogy of gay rights opinions (Romer, Lawrence, Windsor) all failed to explicitly declare gays and lesbians as a suspect class deserving of heightened scrutiny. People who know much more about the Supreme Court than I do have suggested that Kennedy not only doesn't want to create a new suspect class, but that he may not be supportive in general of the whole equal protection "three tiers of scrutiny" framework — and that he's avoiding mention of it in these opinions for that reason.

    Now the Ninth Circuit (in SmithKline) seized on the way these opinions were written to rule that they DID use heightened scrutiny, in deed if not in word. In this Bishop concurrence, Judge Holmes is floating an altogether different interpretation — that the Supreme Court (and Kennedy) have created in these and other cases an entirely different sort of judicial review: "animus jurisprudence."

    Holmes then lays out a rather persuasive argument for the inherent LIMITATIONS of animus jurisprudence. He says that once you find animus, that's the end of the inquiry — the law is unconstitutional. And because that remedy is so absolute, the search for animus has to be very particular. Holmes then argues that Supreme Court precedent establishes only two ways to find animus: the law has to be unusually wide ranging in scope (Romer; stopping ALL anti-discrimination protections in ALL contexts), or has to be a notable departure from past law (Windsor; DOMA making Federal definitions of marriage when previously, only States did that). And because those are the only two defined tests, and State level same-sex marriage bans don't run afoul of either, animus can't be used as a line of reasoning in these cases.

    (Of course, we all would agree that animus was a factor in the passing of these laws, but Holmes is probably right in saying no previous court case provides a legal test for reaching that conclusion.)

    In short (too late), what it seems to me that Holmes is very subtly and respectfully putting Kennedy in checkmate:

    * You don't want to make new law by designating a new suspect class? Well, too late, you HAVE made new law by introducing animus jurisprudence.
    — and —
    * As you've defined it so far, animus jurisprudence is MUCH more limited in its reach than the existing scrutiny tests.

    I feel like Holmes is telling Kennedy: you either have to go all the way on the scrutiny issue, or you have to flesh out your animus doctrine more fully.

  • 93. sfbob  |  July 18, 2014 at 11:10 am

    I know you are being somewhat sarcastic or rhetorical here but I will note that if the state's interest is in providing as stable basis for children to be raised in, opposing divorce could quite well be viewed as having the opposite effect. Why would parents be more effective at parenting if they're stuck in a marriage they'd just as soon leave? If anything, the level of conflict could well be viewed more disadvantageous to the well-being of the children than allowing the parents to split up and re-marry.

  • 94. davepCA  |  July 18, 2014 at 11:15 am

    And rich people can't send their under-18 kids off to boarding schools cuz "kids need a mom & a dad".

  • 95. RnL2008  |  July 18, 2014 at 11:18 am

    The argument has always been…."but what about the children" argument……it's the argument used by Frank Schubert and his idiot gang with Prop 8 and Question 1 in Maine……..and my point is this….how is denying the right to marry for Gays and Lesbians going to keep married heterosexuals from divorcing and thus causing their children to be raised by either a single parent or an extended family…….the point is IT WON'T and that's where their argument is totally flawed in my opinion……….sometimes it is better for "the children" if their parents split up and thus become happier individuals, which may lead to being better parents……but let's face reality, just because two people can procreate DOESN'T mean they should!!!

  • 96. JayJonson  |  July 18, 2014 at 11:23 am

    Very interesting. Thanks!!!

  • 97. Eric  |  July 18, 2014 at 11:24 am

    Oklahoma brought no-fault divorce to the nation back in the 50's. The "pro-family" groups never mention that.

  • 98. sfbob  |  July 18, 2014 at 11:27 am

    One interesting item from the ACLU brief:

    "There is no conflict among the lower courts with respect to whether married
    couples have a protected liberty interest in their existing marital relationship…"

    This would appear to speak to the question of recognition of marriages performed out of state generally. If you're married, you're married until you file for and obtain a divorce. If that is an uncontroversial statement than how could any state refuse to acknowledge a marriage performed in another state?

  • 99. MichaelGrabow  |  July 18, 2014 at 11:28 am

    On that note: GOP Montana Attorney General Tim Fox has asked a federal court to uphold his state's ban on same-sex marriage because it does not discriminate against gay people.

  • 100. brandall  |  July 18, 2014 at 11:29 am

    Nothing from the 4th today. Only one published decision. Not Bostic.

  • 101. Japrisot  |  July 18, 2014 at 11:30 am

    Today's published Fourth Circuit opinion was argued one day after Bostic. We are getting close.

  • 102. Ragavendran  |  July 18, 2014 at 11:32 am

    Reposting my earlier observation on this brief here: "I love the spin that the Plaintiffs put on this. They're saying that when the district court and the Tenth Circuit refused to stay the injunction, if SCOTUS intervened and granted a stay due to the irreparable harm it perceived (as Utah claims), then what took place in the window when there was no stay should indeed have been irreparable – that is, the marriages cannot be undone. Wow – I didn't see this brilliant argument coming! Overall, a very strong response."

  • 103. Marekweber  |  July 18, 2014 at 11:34 am

    I see two decisions: Wildon Cordova v. Eric Holder, Jr. and US v. James Roudabush, Jr.

  • 104. JayJonson  |  July 18, 2014 at 11:35 am

    CLS v. Martinez is crucial to gay rights, especially the majority's insistence that sexual activity is intrinsic to sexual orientation, which punctured CLS's contention that it was not discriminating on the basis of sexual orientation but on sexual practices. This is not mere dicta.

  • 105. brandall  |  July 18, 2014 at 11:35 am

    OMG, will you just give it up already!

    PA Clerk Appeals Ruling Denying Request To Intervene In Gay Marriage Case

    She is denied by the District Court, the Third and SCOTUS and now wants the Third to hear her appeal en banc.

    Can she even do that after being denied by the SCOTUS? Has anyone seen this chess move before?
    http://www.ontopmag.com/article.aspx?id=19038&amp

  • 106. bythesea66  |  July 18, 2014 at 11:38 am

    More like checkers…

  • 107. davepCA  |  July 18, 2014 at 11:38 am

    I may be one of the commenters you refer to, although I would characterize it as 'not relying on the animus argument' rather than 'abandoning' it. Yes, it's obvious that anti-gay animus is central to these marriage bans. But the goal is to win the case, and there are several other arguments that win it without relying on animus.

    All of our arguments, including the animus issue, are based on facts, logic, and law. But the animus issue tends to provoke strong emotional responses and extreme defensiveness far beyond those reactions caused by other arguments. This is because, although a few people freely acknowledge their anti-gay animus, most people don't, and react strongly to such an accusation. They don't want to look at the fact that their actions and attitudes define them as something they don't like – a bigot – especially when they arrived at those actions and attitudes by way of things like religious beliefs. So perhaps it's best to let the history books reveal the animus, as they have done with the civil rights movement in the 60s, and concentrate now on winning the cases as quickly and efficiently as possible with the arguments that accomplish this most easily.

  • 108. debater7474  |  July 18, 2014 at 11:41 am

    LOL. Talk about desperate. Can an appeals court sanction someone in a situation like this?

  • 109. dingomanusa  |  July 18, 2014 at 11:42 am

    Sounds like she may have some future political ambitions and is doing this to pander to the right wing base.

  • 110. debater7474  |  July 18, 2014 at 11:43 am

    Far right conservatism does not play well here in Pennsylvania. Just ask Rick Santorum how his 2006 senate election went.

  • 111. Mike_Baltimore  |  July 18, 2014 at 11:48 am

    And if the out of state married couple had sued the state tax official, I have a feeling that the 10th would have stated it is moot as the District Court couldn't rule on the matter – it should have been filed in tax court.

    Basically, I don't think the 10th Circuit wants to rule on the out of state marriages of people now living in Oklahoma, and will find any excuse to not make a ruling on the subject.

  • 112. sfbob  |  July 18, 2014 at 11:50 am

    I heartily agree with you there. When the CLS v Martinez was issued, the statement which ran (approximately) "we decline to distinguish between orientation and behavior" struck me at the time as having enormous import for future cases.

  • 113. Bruno71  |  July 18, 2014 at 11:51 am

    More like patty-cake.

  • 114. Bruno71  |  July 18, 2014 at 11:54 am

    It's very insightful. However, I doubt Kennedy likes being "read" either. It'll be quite interesting to see his response, if there ever is one, in the inevitable national marriage case.

  • 115. Dave_wx  |  July 18, 2014 at 11:54 am

    I would expect the Bostic opinion to be released someday next week.

  • 116. Bruno71  |  July 18, 2014 at 11:56 am

    Another coherent and winning argument from a highly capable Republican AG.

  • 117. hopalongcassidy  |  July 18, 2014 at 11:57 am

    Maybe the 'chess move' is, since the story in that link calls it an "en blanc" hearing, that she wants an all white panel to look at it?

    /goofy

  • 118. StraightDave  |  July 18, 2014 at 12:00 pm

    All death spirals look like this…. completely over the edge. I take it as a good sign.
    Even so, this guy has packed a record number of paranoid phrases into one paragraph.
    corrupt decision
    judicial lynching
    worth dying for
    illegitimate process
    judge had no legal authority

    He must see his easy meal ticket going down the drain. Perhaps he and Brian Brown should go buy a "family" farm up in Nova Scotia

  • 119. davepCA  |  July 18, 2014 at 12:00 pm

    Got a link to Tim Fox's request? I could use a good giggle.

  • 120. Bruno71  |  July 18, 2014 at 12:01 pm

    If SCOTUS were to deny cert on both the Utah & Oklahoma cases, it should follow that the findings on foreign recognition in Kitchen controls in Oklahoma as well.

  • 121. StraightDave  |  July 18, 2014 at 12:02 pm

    wtf? Is he trying to troll the court instead of us. Shades of tk, may he rest in peace

  • 122. Bruno71  |  July 18, 2014 at 12:03 pm

    Nova Scotia has marriage equality. They need to grab Eugene Delgaudio, Bryan Fischer, Matt Barber, Peter LaBarbera and others, and head over to Eastern Ukraine.

  • 123. brooklyn11217  |  July 18, 2014 at 12:06 pm

    Long time reader, and finally created an account., because the above comment clearly shows a lack of knowledge. As a parent of a child who got an excellent boarding school education, thanks to thousands of $s in financial aid, you should know that many non-rich children attend these schools. And, we parents don't "send them off" because we don't want them, we work hard to provide them opportunities that they couldn't get at home.

    Perhaps your comment was meant completely sarcastically, but I felt the need to educate you on the reality of the situation.

  • 124. Bruno71  |  July 18, 2014 at 12:07 pm

    TK has been pulling a Santai-Gaffney. Stopped by yesterday for a short time and was quickly eradicated again. But he keeps trying.

  • 125. Mike_Baltimore  |  July 18, 2014 at 12:08 pm

    One of the things any state does when it receives an application for marriage is whether either couple is currently married to a third person in another jurisdiction (foreign or domestic), and if so, the application is denied (or if later discovered, then the party(ies) are prosecuted, usually on charges of lying on the application and/or bigamy).

    In my opinion, if the state goes to such effort to make sure neither couple is married in another jurisdiction, they are implicitly acknowledging that marriages in other jurisdictions are also marriages in the jurisdiction where a new marriage is sought, thus they are recognizing any and all marriages from other jurisdictions (except same-sex marriages, and are doing so for no logical reason). The recognition of any and all marriages except same-sex marriages shows, to me, that there is explicit animus against the LGBT community.

  • 126. Bruno71  |  July 18, 2014 at 12:08 pm

    If you're truly a long time reader of this site, you should have known that was a sarcastic comment from davepCA, and not bothered to "educate" him on things he likely already knows.

  • 127. StraightDave  |  July 18, 2014 at 12:11 pm

    Some lawyer is being paid some dark money to keep this afloat. This clerk doesn't know the Third Circuit from the Third World. For private entertainment purposes only, folks.

  • 128. SeattleRobin  |  July 18, 2014 at 12:11 pm

    I agree with what Dave said. On the one hand, animus is plainly obvious when looking at the history and facts. It gives me immense personal emotional satisfaction when a court of law recognizes and comments on the animus.

    But when looking at everything as a whole picture, my emotional desires take a back seat to what is going to take us furthest down the road. The sooner we gain more harmony, the better it is for everyone.

    Rubbing people's faces with their bad behavior will only create additional resentment and defensiveness. That puts a speed bump in the road. Many good people voted for the bans in every state, often due to ignorance, and they have now come to regret their votes. We gain nothing by trying to make them feel bad about it, instead we should embrace their current support.

    And the people who are true, deep down to the core bigots? They can't hear the truth. It can't penetrate.

    For the sake of history I would like the existence of animus to be recognized in the official record. But like Dave said, whether or not that happens, it will still be in the history books.

  • 129. BenG1980  |  July 18, 2014 at 12:16 pm

    Only the published opinions have precedential value. Unpublished options are non-binding, so brandall is rightly only counting the one issued today that will be published (Cordova v. Holder) and ignoring the unpublished case (U.S. v. Roudabush).

  • 130. dingomanusa  |  July 18, 2014 at 12:16 pm

    Its up over at https://www.facebook.com/EqualityCaseFiles He's probably at NN2014

  • 131. Mike_Baltimore  |  July 18, 2014 at 12:18 pm

    In 'defense' of Kennedy on the BSA case, the BSA is by law and in fact an independent, non-governmental entity, thus Kennedy was more or less boxed in when following that reasoning.

    I don't agree with the manner SCOTUS ruled, as the BSA is much more an 'official' governmental organization than almost all other organizations. There are many references to the BSA in Congress, more so (or so it seems) than other non-governmental organizations.

  • 132. brandall  |  July 18, 2014 at 12:26 pm

    Blanc – from Proto-Germanic *blankaz (“bright, shining, blinding, white”

    Oh, now I get it. She wants only white judges to agree with her.

  • 133. Mike_Baltimore  |  July 18, 2014 at 12:29 pm

    I read those 'comments' last night in a Miami-Herald article (I'm fairly certain it was the Miami-Herald, although it might have been in some other publication, or on the web site of some other entity), and laughed as I read them.

    Lots of animus displayed because there is nothing to demonstrate how and why.

    In other words, no FACTS are given.

  • 134. Steve  |  July 18, 2014 at 12:36 pm

    She is just a willing pawn for the anti-gay industry. They need a figure head to achieve standing and there is no shortage of fools.

  • 135. davepCA  |  July 18, 2014 at 12:37 pm

    Yes, brooklyn11217, it was an entirely sarcastic remark, to point out the fallacy of relying on the meme of 'kids need a mom and a dad' as a way for one group to try to impose irrational, harmful, and needlessly restrictive laws on another group, which ultimately end up harming the affected kids rather than helping any kids. It would obviously be irrational and harmful for people to impose such a restriction on sending kids to boarding school based on such an 'argument'.

  • 136. MichaelGrabow  |  July 18, 2014 at 12:37 pm

    http://helenair.com/news/state-and-regional/monta

  • 137. Steve  |  July 18, 2014 at 12:41 pm

    Courts just need to look at the statements made by politicians when the laws were passed. Did they have only real reasons (they don't even have to be rational at this stage), or was it just an endless stream of "gay sex is icky", "gay will rape our children" and "gays will be the end of civilization" as it usually is?

  • 138. Ragavendran  |  July 18, 2014 at 1:08 pm

    Here's my two cents on the future of Utah's and Oklahoma's bans, should the Supreme Court grant cert. The Tenth Circuit declared that the fundamental right to marriage includes the right to marry a person of the same sex and therefore analyzed the bans under strict scrutiny. The KEY point here is that the majority refused to even consider the alternative equal protection argument that the bans are sexual-orientation-based discrimination and/or gender-based discrimination, much less undertake the analysis of whether sexual orientation is a suspect/quasi-suspect class and what level of scrutiny should be applied.

    The liberal justices of the Supreme Court (and perhaps us audience) could breathe a little easy due to this type of an opinion, because, if the Supreme Court grants cert, the Windsor majority can almost certainly either:

    (a) Affirm. (Apart from swing-vote Kennedy, I have my doubts with Kagan too regarding this line of reasoning by the Tenth, who I heard someone else comment doesn't believe that the Constitution could be interpreted to imply a fundamental right to same-sex marriage.)

    (b) Reverse and Remand as follows: They disagree with the rationale used by the Tenth Circuit and remand the case to them with specific instructions to analyze the state bans under the discrimination-based equal protection claim, determine the appropriate level of scrutiny, etc. (This amounts to punting, and Kennedy, should he disagree with the Tenth, would probably prefer this outcome to one where the Court outright upholds the bans.)

    Of course, (a) is the ideal outcome, and the punting option (b), would be a setback, but NOT FATAL, and would only be possible precisely because of the narrow way the Tenth Circuit chose to write their opinion. Had the Tenth discussed the alternative and struck down the bans under rational basis, the punting option (b) wouldn't exist, and the Court would be "pushed to a corner," so to speak, forced to either affirm or fatally reverse and uphold the state bans as constitutional under rational basis.

    The brilliance of the Tenth's opinion lies in its narrow path to application of the highest level of scrutiny, and thereby opening the door for the Supreme Court to punt again (instead of fatally upholding the bans), should they disagree (and/or feel that the nation isn't ready yet). I don't know if any of what I said makes sense to anyone – I tried to put down my thoughts as clearly as possible. Sorry if it is too confusing, or if it seems to be too randomly speculative.

    (My definition of fatal = only way to repeal bans is by popular vote)

  • 139. Japrisot  |  July 18, 2014 at 1:23 pm

    Yes. In two ways. There are some courts that will brand individuals as "problematic litigants." The court may also sanction this appellant's dipshit attorneys who cannot take no for an answer.

  • 140. debater7474  |  July 18, 2014 at 1:30 pm

    For the last time, Kagan did NOT say she doubted the constitutional right to same sex marriage. For anyone who is uneducated about her position, here is the video: http://www.youtube.com/watch?v=oVHsQDc8NmI

  • 141. JayJonson  |  July 18, 2014 at 1:45 pm

    Christian colleges and other organizations have been trying to get away with such bs for a long time. Gordon College in Massachusetts, whose president recently joined a letter asking President Obama to include a robust religious exemption in his forthcoming executive order forbidding discrimination by federal contractors, pretends that they don't discriminate against gay people as long as they don't actually do anything gay. But Salem, Massachusetts has ended a contract with them because a city regulations says they cannot contract with organizations that discriminate. The mayor said their college requirement that prohibits homosexual activity violated the city antidiscrimination ordinance. You cannot prohibit homosexual activity and also pretend that you are not discriminating against homosexuals. That is the real significance of CLS v. Martinez.

  • 142. JayJonson  |  July 18, 2014 at 1:50 pm

    Thanks Seattle Robin and DavepCA. I see the political reasoning here.

    Do you have any concern that the 10th Circuit ruling may suffer from not following Windsor closely enough?

  • 143. sfbob  |  July 18, 2014 at 1:52 pm

    Kagan's statement that might seem superficially troubling is in fact the result of a rather clever sleight-of-hand on her part. The constitution contains no specific right to any "kind" of marriage, so for her to say (as she did) that the constitution doesn't include a right to same-sex marriage is the right answer to what, unfortunately for her questioner, was simply the wrong question.

    Marriage is a fundamental right and therefore to deny that right to a same-sex couple is just as unconstitutional as denying it to an interracial couple or a couple consisting of an incarcerated person and a civilian or to a dead-beat dad…well, I hope everyone gets the point. There are no "kinds" of marriage. There is just MARRIAGE. Interesting under the circumstances that the Utah AG would have claimed that gay/lesbian couples who married between December 20, 2013 and January 6 of this year had entered into "interim marriages." We didn't create a new kind of marriage but it appears the state of Utah wants to.

    For what it's worth, I have no worries about Kagan. She is clearly on our side.

  • 144. JayJonson  |  July 18, 2014 at 1:59 pm

    Just because SCOTUS grants cert to a decision does not mean that they have to agree or follow or even comment on the ratinale for the decision at the District or Appellate level. They are quite free to "affirm" the outcome of a decision without endorsing the rationale. The Appellate decision in Windsor had little overlap with Kennedy's decision at SCOTUS.

    I think that SCOTUS will grant cert to Kitchen (which, if I remember correctly, will then be called Herbert) and will find that state bans on same-sex marriage unconstitutional. The rationale may well be quite different from that articulated by Lucero and Holmes.

  • 145. davepCA  |  July 18, 2014 at 1:59 pm

    IMO, I don't think that a ruling which simply neglects to echo a previous argument about animus and just rules in our favor based on all of the other iron-clad arguments (Equal Protection, evidence of real harm caused by the ban, lack of evidence of any rational purpose for the ban) is a problem. Of course that's different from, say, a ruling that would disagree with a previous ruling about animus, and try to argue that there isn't any animus. THAT kind of 'not following' a previous ruling would be bad, as well as factually incorrect.

  • 146. sfbob  |  July 18, 2014 at 2:00 pm

    I suppose it would be interesting to create a test case by having a man or a woman in a same-sex marriage go to an anti-equality state and attempt to marry a person of the opposite sex. Either the state doesn't recognize the existence of the prior marriage and permits someone to be legally married to two different people or else it recognizes the prior marriage and thereby violates the state's own constitution or statutes (or both). And makes itself out to be incredibly hypocritical either way.

  • 147. StraightDave  |  July 18, 2014 at 2:04 pm

    Regardless of the case chosen or the rationale used, there is one constant we can count on. Scalia is sure to entertain us with a whole new vocabulary.

  • 148. Steve27516  |  July 18, 2014 at 2:11 pm

    News from the AP:
    "Top Colorado Court halts gay marriages, citing ban"
    http://www.sfgate.com/news/us/article/Top-Colorad

  • 149. brooklyn11217  |  July 18, 2014 at 2:15 pm

    And more "gay means stay" from SCOTUS…..Utah does not have to recognize "interim marriages."
    http://www.buzzfeed.com/chrisgeidner/supreme-cour

  • 150. DoctorHeimlich  |  July 18, 2014 at 2:22 pm

    Well, the plot thickens. Today's order from the CO Supreme Court only orders Adams County (which wasn't issuing licenses anyway) and Denver County to stop, as they were the targets of the original lawsuit. That leaves Boulder and Pueblo County in the clear for the moment.

    Cue Suthers' latest hissy fit in 3… 2…

  • 151. Zack12  |  July 18, 2014 at 2:29 pm

    I know some friends that were married in Utah and come next time they file their taxes, they are putting down married on all the state forms and daring the state to come after them.
    Enough is enough.

  • 152. Zack12  |  July 18, 2014 at 2:43 pm

    Sadly knew it was coming in a way though.
    This IS how the system is supposed to work sorry to say, same thing happened with Prop 8 and Edie Windsor with DOMA.

  • 153. sfbob  |  July 18, 2014 at 2:47 pm

    And if the state should come after them, their response should be clear: "If the Supreme Court rules in our favor then we were in fact married and our taxes were filed correctly. If the Supreme Court rules against us, we can file amended returns. And since we filed our taxes based on the decision issued by the Tenth Circuit Court of appeals, we were legally married at the time our taxes were filed. Meanwhile things are in limbo and there is no reason for us to do anything at this point. So back off if you don't want us filing another lawsuit."

  • 154. RobW303  |  July 18, 2014 at 2:58 pm

    Not quite. Barton was an active case at the Circuit level, so the non-recognition part could have been resolved quickly and without further opportunity for appeal. Now a new case will need to be introduced and, despite precedent, could be appealed by state officials just to delay things—no, Judge Holmes, no animus at all! That said, given the ineptitude of the Barton counsel, maybe it's all for the best.

  • 155. Zack12  |  July 18, 2014 at 3:01 pm

    One think to keep in mind when talking about the fact New Mexico and New Jersey didn't have stays issued on the gay means stay.
    Both of those states had unique circumstances that made that possible.
    New Mexico in not having a law for or against same sex marriage and New Jersey having a prior ruling that Civil Unions must be equal to marriage, which the DOMA ruling made impossible.
    This is how the legal system plays out, as crappy as it sounds.

  • 156. dingomanusa  |  July 18, 2014 at 3:01 pm

    “The delay ordered Friday [by SCOTUS] will be in effect until the Tenth U.S. Circuit Court of Appeals rules on the state’s claim that those marriages did not have full legal status when performed. The state’s lawyers have called them “interim marriages.” The Circuit Court, however, has already given a strong hint that the state’s appeal is likely to fail. … The fact that the Justices have issued delay orders, however, does not necessarily forecast how they will vote when the same-sex marriage issue is actually before them in a formal appeal — on the right to marry and on the right to have existing marriages officially recognized.” http://www.scotusblog.com/2014/07/utah-gets-delay

  • 157. davepCA  |  July 18, 2014 at 3:10 pm

    Not sure what the point of that remark is. It's been common knowledge (at least around here) that there was a strong likelihood of this development. Were you under the impression that nobody was aware of this?

  • 158. RobW303  |  July 18, 2014 at 3:12 pm

    There was also the big problem that the plaintiffs only challenged the constitutional amendment, not the statute as well. Kelly made this a major point in his dissent, and even the majority had a stiff time rationalizing why challenging the amendment was nevertheless sufficient. But will SCOTUS accept this argument? Still, not relevant to Bostic.

  • 159. Bruno71  |  July 18, 2014 at 3:13 pm

    Apparently flattering themselves that somehow their reading of the situation was 100% correct and anyone who debated the fine points of the issue was 100% wrong.

  • 160. Bruno71  |  July 18, 2014 at 3:16 pm

    "everyone"? "completely unprecedented"? I think you need to go back and reread those comments yourself.

  • 161. Bruno71  |  July 18, 2014 at 3:22 pm

    I didn't disagree with you on the outcome of this motion, just pointed out your hypocrisy in agreeing with the reasoning behind Utah's briefs while also agreeing with the outcomes in Oregon and Pennsylvania. The fact that SCOTUS granted this motion (which I always 100% believed they would do, you can check out other posts of mine) does not prove that you or the Utah attorneys won based on their reasoning. And I find your "told you so" remark to be, yet again, another example of your consistently obnoxious and condescending tone on this site. This will be the last time I respond to you on ANY issue because of your behavior.

  • 162. DoctorHeimlich  |  July 18, 2014 at 3:23 pm

    …1:
    http://www.thedenverchannel.com/news/politics/sta

    "The order directly applies only to the clerks in Denver and Adams Counties, because they are involved in the case before the Supreme Court, but the message should be clear enough. We assume that all the state's clerks will heed the Supreme Court's direction without requiring more wasteful litigation."

    "Wasteful litigation," huh? I never thought I'd say it, but Suthers and I apparently agree on something.

  • 163. dingomanusa  |  July 18, 2014 at 3:24 pm

    There are probably just as many people reading the comments on this site who weren't aware OR might not follow all the comments here. Or not as up on everything as some are.

  • 164. davepCA  |  July 18, 2014 at 3:26 pm

    Everyone commenting said that a stay would be 'unprecedented'? Seems to me that there have been lots of comments about how there OUGHT not be one, based on the four points used to determine the question, but there has always been an acknowledgement of the 'gay means stay' dynamic in which these four points have been repeatedly disregarded, and that therefore additional stays were certainly likely.

  • 165. Eric  |  July 18, 2014 at 3:28 pm

    Holmes was engaging in apologetics. His reasoning was tailored to reach a non-animus conclusion.

    Substitue slavery for same-sex marriage and see how his reasoning reads regarding a lack of animus.

  • 166. Zack12  |  July 18, 2014 at 3:32 pm

    Stays were granted in Prop 8 and DOMA as well, no surprise it would be done here as well.

  • 167. Eric  |  July 18, 2014 at 3:35 pm

    This is not how the system is supposed to work. Secret court orders are un-American.

    The way it is supposed to work is that fundamental rights are not stayed, unless a damn good reason is articulated by the court. These stays without justification merely illustrate the cowardice of the judiciary.

  • 168. Eric  |  July 18, 2014 at 3:42 pm

    What is unprecedented is the issuance of stays without any justification from the court.

  • 169. Zack12  |  July 18, 2014 at 3:58 pm

    This isn't the court of the 50's and 60's sorry to say.
    If nothing else, this highlights how important the next elections will be.
    Ginsburg, Kennedy,Breyer and Scalia aren't getting any younger.
    The next couple of elections will determine if we have a SUpreme Court that will move us foward again or drag us back to the 1850's.

  • 170. RnL2008  |  July 18, 2014 at 4:25 pm

    I had read an article a while back that somewhere that was happening, I think it was like in Indiana, but I could be wrong….a Same-Sex couple married in like Iowa, it wasn't going to be recognized in Indiana and the AG or some District Attorney was giving advice to the sort of if we don't recognize the Same-Sex marriage the person could come and just get married as if they were never married before………and in my mine that clearly shows just how some states view our legal marriages!!!

  • 171. RnL2008  |  July 18, 2014 at 4:30 pm

    I think that's what the ProtectMarriage .com folks tried to say about Prop 8 when it was overturned……what about the voters!!!

  • 172. RnL2008  |  July 18, 2014 at 4:36 pm

    What a stupid biotch……she ISN'T delaying anything and she is just wasting her time and the Courts time……someone needs a HUGE timeout!!!

  • 173. sfbob  |  July 18, 2014 at 4:37 pm

    I believe that the stay on the initial decision in Herbert included no justification. If I'm not mistaken the Supreme Court does not normally include a justification when they issue a stay of this sort. It's just: The (District Court's/Circuit Court's) ruling is stayed. It is so ordered. The end.

  • 174. TDGrove  |  July 18, 2014 at 4:42 pm

    I believe you are referring to North Dakota's AG. According to him you could get married to a same sex spouse in California, then come to ND and marry an opposite sex spouse. Just more scare tactics, but at least a bit of originality I guess.

  • 175. RnL2008  |  July 18, 2014 at 4:45 pm

    I agree Eric…..why have guidelines in place if NO Court is going to follow them…….all this does is give the Utah AG and Governor the impression that somehow they will win once they get to SCOTUS and I DON'T personally believe they will!!!

  • 176. JoshLmno  |  July 18, 2014 at 4:46 pm

    Gosh, so sick of these stupid stays with no good reason. I expect a stay in each case from now on even though there is no good reason for most if not all of them. >_<

  • 177. RnL2008  |  July 18, 2014 at 4:48 pm

    Thank you…I knew it had to do with a state close to Iowa….sorry for calling it Indiana, not that they probably wouldn't have done it…..but again thank you for the correction!!!

  • 178. Sagesse  |  July 18, 2014 at 5:00 pm

    Apologies if this has been posted already.

    Breaking: Obama To Sign LGBT Anti-Discrimination Executive Orders Monday [New Civil Rights Movement]
    http://www.thenewcivilrightsmovement.com/breaking

    Looks like it will have reasonable, historical religious exemptions.

  • 179. Eric  |  July 18, 2014 at 5:04 pm

    By historical and reasonable, you mean Bush Era.

  • 180. Eric  |  July 18, 2014 at 5:07 pm

    Elections matter, that's what people said back when Democrats had the largest majorities in Congress in a generation and the White House. Yet, ENDA didn't happen and DOMA remained on the books.

  • 181. Zack12  |  July 18, 2014 at 5:07 pm

    That is indeed what they think.
    I don't think it's true but it's all they have.

  • 182. RobW303  |  July 18, 2014 at 5:10 pm

    BTW, Santai-Gaffney's at it again: now requesting an en banc hearing for standing at the Circuit Court of Appeals, after having been denied at every other level, including a panel of that same court and SCOTUS (by Alito, no less!) She's like a squished worm that keeps wriggling. Auditioning to be a Fox News "pundit"? Getting in line for Tammy Bruce's spot, just on the off chance? Or just delusional?

  • 183. robbyinflorida  |  July 18, 2014 at 5:31 pm

    Tallahassee is in the "Bible Belt". South of Ocala is much more progressive especially the coastal cities. the St. Pete Mayor marched in Pride, small and large cities,and counties have
    domestic partnership and anti discrimination laws. Some 13 million people live in central and South Florida. More than half the entire population of Florida. Florida has 29 electoral votes. Only Texas and California have more. Obama won the popular Florida vote by 3 points, and Pam Bondi is a discussion better left for another time..

  • 184. DocZenobia  |  July 18, 2014 at 5:33 pm

    Agreed, the only justification is SCOTUS demanding that nothing is final until they say so – but only on this one issue. Kinda hard to generalize a rule of law from that. (See: Bush v Gore; Hobby Lobby)

  • 185. DocZenobia  |  July 18, 2014 at 5:37 pm

    No, the way it is supposed to work is that there is a generalizable set of guidelines for all appelate situations, that are not cherry picked by SCOTUS when it suits them. But sad to say, this is merely the latest example of a longstanding pattern of the legal system conveniently disregarding its own rules where we are concerned.

  • 186. davepCA  |  July 18, 2014 at 6:01 pm

    Thanks, Sagesse. Although I find that article confusing – It states that Obama will be amending a couple of prior executive orders regarding federal contractors to add sexual orientation & gender identity to the list of groups protected from discrimination… okay… but then it refers to a different executive order, 11246, which "allows religious-affiliated federal contractors to discriminate on the basis of religion"…. but that's not the same as being allowed to discriminate on the basis of sexual orientation or gender identity… huh?

    Then it summarizes: "In short, the President has moved to give LGBT people protections no greater and no less than other minorities that have earned them since the time of President Johnson." Which is very good.

    But THEN it refers to ANOTHER executive order, 13279, which again is about 'protecting faith-based groups'….. huh?

  • 187. StraightDave  |  July 18, 2014 at 6:01 pm

    Is Suthers really this dumb? He somehow forgot(????!?!?!?) to include Boulder, which started this whole circus and where most of the marriages have taken place? If he really thinks his "obligation is to defend the state's laws", he's doing a pretty shitty job of it no matter which side you stand on. Meanwhile, the hero of the month, Hillary Hall, must be laughing her ass off, as she's still in the clear for the moment.
    And I thought the WI guy was a hollow stump. What a sitcom!!

  • 188. Sagesse  |  July 18, 2014 at 6:42 pm

    I take it to mean "not the objectionable, expanded religious liberty exemption in the ENDA bill passed by the Senate". If this article is correct, he's not changing any religious exemption that now applies.

    This is my take, so feel free to disagree… but it's as though Obama has said to Congress: you want a broader religious exemption? Pass ENDA.

  • 189. sfbob  |  July 18, 2014 at 6:55 pm

    That appears to be what it means. So a religious-based organization can give preference to a member of its own religion (which I believe was the intent of the 2002 GW Bush Executive Order) but it use religious belief as a reason to discriminate on the basis of sexual orientation or gender identity.

  • 190. sfbob  |  July 18, 2014 at 6:59 pm

    The other reason why no stay was issued in New Jersey is that New Jersey case was decided only based on the state's constitution so there was no possibility for anyone to pursue it further in federal court. I believe that was the case in New Mexico as well.

  • 191. DocZenobia  |  July 18, 2014 at 7:02 pm

    Maybe it's telling this was part of the concurrence, not the majority opinion.

  • 192. sfbob  |  July 18, 2014 at 7:05 pm

    The Scotusblog post makes the following statement:

    "The Supreme Court has twice turned down other efforts to delay same-sex marriage — in Oregon and Pennsylvania — but in both of those situations, the plea for postponement was made by someone other than state officials. In both of the orders issued regarding Utah, the pleas were made by state officials. The Court obviously regards those as having more merit."

    I would question whether that final sentence is necessarily accurate. Of course since the Supreme Court has not provided a justification for issuing those stays one can only speculate, however it would appear that, if anything the Supreme Court is doing nothing more than allow the state some time and opportunity to present its case(s). If SCOTUS is granting the state more deference that is not a commentary on the validity of the state's argument; it is little more than a courtesy.

  • 193. RnL2008  |  July 18, 2014 at 7:38 pm

    I believe these religious exceptions are nothing more than pandering to the Evangelistic Fundamentalist and they are WRONG……..there is already plenty of religious exceptions based under the 1st Amendment and either these religious organizations give up their precious tax-exempt status or be happy with what is already guaranteed them under the 1st Amendment…..they CAN'T have it both ways and frankly, I'm sick and tired of them playing both ends……religious beliefs are a choice and to say that choice has more protection than my right to be who I am is just pathetic and infuriating in my opinion!!!

  • 194. Mike_Baltimore  |  July 18, 2014 at 7:46 pm

    From downtown Denver to downtown Boulder (downtowns, as that is where I suspect the clerks offices are located) is about 30 miles, and 38 minutes.

    For someone getting married, that is a distance (and time) that probably would be fairly trifling.

    And for those who live in Denver County NW of Denver, the distance and time would be even less.

    It looks like Suthers really is that dumb, as he didn't make sure to close all the loopholes. It really looks like he's attempting to be dumber than the AGs of WI and UT (he of the 'I forgot to ask for a stay of the ruling, let's waste more taxpayer money by asking higher courts with dumb and stupid requests they'll reject'.)

  • 195. davepCA  |  July 18, 2014 at 7:55 pm

    Ah, got it. Thanks guys. Seems pretty good to me.

  • 196. Zack12  |  July 18, 2014 at 8:04 pm

    Here's the thing.. there WILL be a backlash when a ruling comes down in our favor.
    I think the five (and I still think it will be a 5-4) choice, are slowly but surely trying to get the country ready for that.

  • 197. RQO  |  July 18, 2014 at 8:29 pm

    "Of course we're good to (insert minority here)! Why, every Thanksgiving we invite them into the dining room and show them a picture of a turkey."

  • 198. StraightDave  |  July 18, 2014 at 8:33 pm

    I hope you meant "but it can't use religious belief…".

  • 199. SeattleRobin  |  July 18, 2014 at 8:36 pm

    I think that animus and ignorance share equal billing as to why these bans were so successful. Given that, I don't see how leaving out discussion of animus really hurts anything. Since the arguments for striking down the bans are so strong without touching on that aspect, it's difficult to imagine the Supremes thinking the panel made a serious error. Instead I would imagine they'd appreciate caution in that area. In general, the court seems pretty reluctant to impugn voters. (Legislators seem to be considered more fair game )

  • 200. Mike_Baltimore  |  July 18, 2014 at 8:38 pm

    I haven't seen a post or comment on a recent ruling from Connecticut. My apologies if this is not new news to people:

    "Ruling Sparks Debate on Retroactive Gay Rights"
    ( http://abcnews.go.com/US/wireStory/connecticut-co… )

  • 201. SeattleRobin  |  July 18, 2014 at 8:55 pm

    I think Scotusblos is overstating things. In the Oregon and Pennsylvania cases the people requesting the stays weren't even close to having standing. That's the key difference, not that it was citizens vs. state officials. (I'm not saying that SCOTUS doesn't lend more weight to state officials, just that that isn't the conclusion to draw given this set of facts.)

  • 202. SeattleRobin  |  July 18, 2014 at 9:04 pm

    If sfbob's interpretation is correct, I don't have any problem with that. It's entirely reasonable to me that a religious organization is allowed to give preference to people of the same faith. That is distinct from whether they are allowed to discriminate.

  • 203. Ragavendran  |  July 18, 2014 at 9:10 pm

    Oh I see. I'm sorry I went by what someone else recently said on the subject. In this video she is clearly trying to avoid directly answering the question.

  • 204. Margo Schulter  |  July 18, 2014 at 9:11 pm

    One thing that the Tenth Circuit decisions also leave Justice Kennedy and colleagues free to do is a Windsor-style analyis under Equal Protection not specifically focusing on animus, nor on discrete tiers of scrutiny, but taking a more fluid or flexible approach and weighing the scant or questionable “justifications” (e.g. “tradition” and simple inertia) against the harms to the partners prevented from marrying, and any children they may have.

    Of course, Kennedy is also free to follow the Tenth Circuit’s own substantive due process approach. But if some members of the Court find that less fashionable, then a “weigh-the-equities on a case-by-case basis” ruling is an alternative under the Equal Protection Clause.

    For example, to illustrate this possible style of equal protection analysis, the Court might find that theoretically there could be undesirable unintended consequences, but that such speculations, although “rational,” are outweighed by the harm done to couples denied the right to marriage, or to have their marriages recognized at the state level, and to their children. This leaves open the possibility that something a bit less than the “exceedingly persuasive” justification required under intermediate scrutiny might have been enough to sustain the bans — but while there might be rational arguments, they’re rather positively unpersuasive, and the harms are just too great to let fear, uncertainly, and doubt justify this level of discrimination.

  • 205. Ragavendran  |  July 18, 2014 at 9:11 pm

    I absolutely agree – I was pointing out that if SCOTUS chooses not to affirm for any reason, they have an out due to the nature of the Tenth's decision, and they don't have to automatically uphold the state bans.

  • 206. Ragavendran  |  July 18, 2014 at 9:23 pm

    Wait, I thought one of the appeals to the Supreme Court was directly from the Boulder County Court which was solely regarding the Boulder County Clerk. (And the other one was on the merits of the state's ban that involved Adams and Denver Counties.) How could the top court then NOT have jurisdiction to address the actions of the Boulder clerk then? Am I missing something?

    UPDATE: Here is the order. The heading indicates that it is within the context of the Brinkman case, in which, of course, the court's jurisdiction is limited to Denver and Adams counties. And looking at the emergency motion that the AG filed, I now understand. The AG bungled. He filed the emergency motion within the scope of the Brinkman case, tying the top court's hands as to their jurisdiction. He should have also included (or filed a separate motion) appealing the Hall case from Boulder County Court and that would have allowed them to address the Boulder issue. But he didn't.

  • 207. sfbob  |  July 18, 2014 at 9:34 pm

    Yes. I really need to do a better job of proofreading when I post. Not that that guarantees anything.

  • 208. RQO  |  July 18, 2014 at 9:36 pm

    Ragavendran, are you back in CO? Brandall? News reporting on Colorado Supreme Court stay of licenses in Denver and Adams counties only (linked to the one district judge's stayed ruling) makes sense – maybe, and AP even got that wrong. Press seems more confused than I am.
    Was this necessary, or the CO Supreme's choice? What else is AG Suthers up to to stop Boulder and Pueblo clerks? With SCOTUS' stay of the Utah "interim marriages" (I thought those were just for Kardashians) and the 10th C.A. stay for Oklahoma, CO fed judge Moore will stay his decision next week? Suthers is reported to want to keep the issue OUT of the CO Supreme Court – presumably because he'll lose more slowly with SCOTUS – but what is going on to get the issue heard on the expedited basis everyone keeps saying they want?

  • 209. sfbob  |  July 18, 2014 at 9:37 pm

    Well since the court doesn't provide reasons all I can do is guess. My assumption is that there MAY be people whose guesses are more educated than mine are (that is, attorneys or legal scholars who have experience with the inner workings of the Supreme Court) but other than that your guess is as good as mine. Or possibly better.

  • 210. sfbob  |  July 18, 2014 at 9:41 pm

    Will there be backlash? I suppose some backlash will be inevitable but I strongly suspect that it will be rather limited. The religious right is already busy managing their expectations of the outcome, saying things like "marriage equality will happen; it's inevitable but we still don't like it." Of course there's gonna be some fanatics who will be outraged but they'd be outraged unless the Supreme Court were to reverse every single pro-gay decision back to Romer vs Evans and then reinstate even the state sodomy bans that the states themselves decided to repeal. But those people are a small and diminishing minority even among evangelicals.

    At the end of the day, when the inevitable court ruling comes down, there'll be a few days of hysterics on the part of the usual suspects and then it'll pretty much calm down. The thing is that most people at this point understand that, whether they favor or oppose it, full marriage equality is not likely to affect their daily lives in any discernible way.

    Our right to marriage is a fundamentally different sort of issue than access to abortion. I don't believe the arguments regarding limiting abortion really have any merit but at the very least one can see that people who really believe that a fertilized egg is already a sentient being are going to continue view abortion as a form of state-sanctioned murder (forgetting of course that many of the same people have no problem with capital punishment and don't want struggling families with small children to receive any form of government assistance). In our case, nobody gets killed…or even "killed."

    I'd predict that very soon after we achieve our goal, perhaps 98% of those who emphatically opposed us will begin to wonder why they ever got so worked up over marriage equality in the first place and not a few of them will begin to feel more than a bit foolish about it.

  • 211. Corey_from_MD  |  July 18, 2014 at 9:43 pm

    I received this reply from a post to joemygod.com regarding the SCOTUS decision. It seems plausible, but curious to read feedback.

    "The main marriage case in Utah was already decided in our favor in the 10th Circuit. Utah is in the process of seeking review by SCOTUS. That will take place over the summer and when the Justices come back in October, they will be able to rule on the petition. We would probably hear from them in November or December.

    If they don’t take it, then the 10th Circuit decision stands, the stay is vacated, and marriage equality comes to Utah and the other states in the circuit. This would also resolve the “interim marriage” issue. If they do take it, then it would be briefed and argued in early 2015, with a decision in June 2015. They could also sit on the petition for a while, waiting for other circuits to catch up, and then take a group of these cases all at once. For as long as this matter is pending, the interim marriages will remain in limbo."

  • 212. sfbob  |  July 18, 2014 at 9:54 pm

    Seems plausible to me too.

  • 213. sfbob  |  July 18, 2014 at 10:00 pm

    I don't think you really need to apologize. Many people were discomfited by Kagan's testimony at the time; I know I certainly was.

    And the fact is that it is fairly easy to misconstrue the liberty interest at stake even sometimes–actually more than sometimes–by those who support marriage equality. The right to marry doesn't belong to a particular class or to classes of individuals, it belongs to each individual. That basic premise frequently gets lost.

  • 214. Margo Schulter  |  July 18, 2014 at 10:04 pm

    Whether SCOTUS has been following the traditional criteria for stays depends, for example, on what a “fair prospect” of reversal means. Maybe this could be interpreted simply to mean that the state marriage bans are a reserved issue, it’s new territory, and the outcome is not in effect predetermined.

    Of course, politics might make “fair prospect” get read a bit more freely than in some other contexts — maybe just “some substantial possibility.” It’s maybe like asking whether, in practice, “reasonable doubt” gets differently conceived by jurors depending on the seriousness of the charges in a criminal case.

  • 215. Ragavendran  |  July 18, 2014 at 10:21 pm

    I'm not back in CO yet – not until mid-August! Colorado Summary:

    (1) My take on what the CO Supreme Court did (explained in another comment above, probably lost in the numerous nested threads): Here is the order. The heading indicates that it is within the context of the Brinkman case, in which, of course, the court's jurisdiction is limited to Denver and Adams counties. And looking at the emergency motion that the AG filed, he clearly bungled. He filed the emergency motion within the scope of the Brinkman case, tying the top court's hands as to their jurisdiction. He should have also included (or filed a separate motion) appealing the Hall case from Boulder County Court and that would have allowed them to address the Boulder issue. But he didn't. Talk about proper application of the law and judicial restraint from the top CO court!

    (2) The AG is simply saying that since the CO Supreme Court stopped Denver and Adams, clerks across the state should take that as a sign and refrain from issuing any marriage licenses. That's all he is doing at the moment.

    (3) A hearing in the Burns federal case on the motion to stay is coming up on Tuesday. The AG will doubtless vigorously argue for a stay from the district court, which, quite frankly, is bound by the Tenth Circuit and has no choice but to grant a stay. And even if Judge Moore doesn't (and assuming he does grant the uncontested motion for preliminary injunction), the AG only has to ask the Tenth and they will surely issue a stay within days. The only question is whether there will be a "marriage window" of the kind we've seen in Michigan, Arkansas, Utah, Indiana, Wisconsin, etc.

    (4) Neither the plaintiffs nor the AG, as far as I know, have formally asked the CO Supreme Court to expedite the Brinkman appeal. They have the option to petition for that, I guess.

  • 216. montezuma58  |  July 18, 2014 at 11:29 pm

    In the Burns case could the judge decide not to decide? If he did that there would be nothing for him to stay. If the federal case were the only one going on I could see the judge ruling due to the AG agreeing to the proposed injunction. That would most likely lead to a stay either from the judge himself or higher up.

    But given that the Colorado AG is ceding in federal courts yet fighting the same issue in state court I think the federal judge could justifiably say he will wait until the issue is exhausted in the state courts.

  • 217. Ragavendran  |  July 19, 2014 at 12:14 am

    That's what the AG wants too. The motion to stay that is coming up for a hearing next week is not just the motion to stay a possible preliminary injunction, but a motion to stay the proceedings of the case pending final disposition of Kitchen by the Tenth Circuit. So they want the federal court to rule quickly granting a preliminary injunction and then staying it and all other proceedings in the case. Not deciding on a preliminary injunction motion is possible but not probable – it would run counter to the very idea of the relief sought by the moving party in a preliminary injunction – that's why it is called "preliminary".

  • 218. scream4ever  |  July 19, 2014 at 1:29 am

    The state supreme court could still move on Brinkman even with a stayed injunction since a ruling from them would override a federal district ruling.

  • 219. F_Young  |  July 19, 2014 at 2:35 am

    sfbob: "Will there be backlash?"

    Yes, it's already happening, but we may not recognize it yet because they are adopting a new strategy. They are focusing less on stopping marriage equality. which they recognize will happen, and their new strategy is to push for "religious liberty" (i.e. special rights) laws to allow them and the businesses they own to discriminate against all LGBTs, whether married or not, with impunity.

  • 220. ragefirewolf  |  July 19, 2014 at 2:44 am

    Oh, the library is SO open for business. Doesn't matter if he likes it or not. :)

  • 221. ragefirewolf  |  July 19, 2014 at 2:48 am

    "Go sit in the corner until you've learned not to file useless lawsuits and subsequent legal motions, young lady!"

    Love it, Rose, love it. Bravo on the time out image! 😀

  • 222. Ragavendran  |  July 19, 2014 at 2:56 am

    I don't quite follow you – The comment you replied to was completely about the federal case, Burns. Can you please clarify? Thanks.

  • 223. Alan948  |  July 19, 2014 at 3:41 am

    "Not deciding on a preliminary injunction motion is possible but not probable – it would run counter to the very idea of the relief sought by the moving party in a preliminary injunction"

    Wouldn't it be even more oxymoronic to "grant" a preliminary injunction but simultaneously stay it, thereby providing no actual preliminary relief? That's what I can't wrap my head around. I think it would be more sensical (and more in keeping with SCOTUS's stay orders) to simply deny the preliminary injunction motion and stay the case pending the outcome of Kitchen.

  • 224. RnL2008  |  July 19, 2014 at 4:39 am

    You're welcome………it's like when do those types of folks get? My guess is NEVER and who ever her legal representative is should be disbarred for giving her crappy legal advice!!!

    Until getting involved with certain public blog sites, I'd have NEVER believed the serious amount of stupid individuals in this Country……..and Stupid should hurt!!!

  • 225. Ragavendran  |  July 19, 2014 at 4:49 am

    Absolutely. If you recall, this was precisely the reason Judge Crabb of Wisconsin refused to entertain the preliminary injunction motion there and instead offered to move expeditiously to summary judgment. She said the same thing – what is the point of granting a preliminary injunction if I have to stay it immediately?

    Even though denying the preliminary injunction motion and granting and staying it have the same outcome, they are different in spirit. I think most judges look at them as two independent questions – whether to grant the preliminary injunction or not, and whether to stay it or not. Therefore, the fact that granting and staying is the same as not granting cannot be a grounds for not granting it in the first place.

  • 226. RnL2008  |  July 19, 2014 at 4:55 am

    I would agree with your thought process except for the fact that there is NO "SAME-SEX" marriage and as long as that word is used, the anti-gay folks will continue to use their flawed argument regarding it……and that's why we (meaning Gays, Lesbians and our supporters) NEED to stop using that term!!!

    Marriage is a FUNDAMENTAL right per every SCOTUS ruling regarding the issue….we don't refer to the Loving decision as interracial marriage, and we SHOULDN'T refer to our marriages as "GAY" or "SAME-SEX" marriages because in reality, we are just seeking to have the right to marry the person of our choosing without being told that that person MUST be of the opposite-sex of ourselves!!!

    The question that NEEDS to be asked of SCOTUS is this in my opinion, "Is Marriage TRULY a Fundamental right regardless of the gender make-up"? Because you are correct, either we are being discriminated against because of our Sexual Orientation or because of Gender Discrimination and if Marriage is one of those extremely personal decisions like when to have children and buying a house, then how can someone tell us who we should marry…..I mean if you change the word from Race to either Sexual Orientation or Gender, then basically you'd have the same argument used in Loving vs Virginia!!!

    See, here's a question I have repeatedly asked to the anti-gay folks and have never truly received an answer……I have the fundamental right to marry ANY man I want WITHOUT question, even if I just met him 10 minutes ago, but all of a sudden that right to marry is NO longer Fundamental when I opt to marry the woman of my choosing and I'm told that folks NOW have a right to vote on my right to marry…….see, that's what DOESN'T make ANY sense to me…..does someone have a answer to this?

  • 227. RQO  |  July 19, 2014 at 5:27 am

    Thanks. I did not guess AG Suthers may have made a mistake (his reputation is, or was, better). I am coming to conclusion he is talking neutrality, but privately anti-ME and will act accordingly. The Governor, thankfully, got reeled back in from his kumbayah moment with Suthers and is now safely back to supporting ME ASAP.
    Finally found some detail on the CO SC's ruling – they denied requests from Suthers and the plaintiffs to expedite hearing the Brinkman appeal. According to Ralph Ogden, plaintiff attorney, that makes a state decision unlikely til "early next spring".

  • 228. Sagesse  |  July 19, 2014 at 5:27 am

    The New York Times seems to be slightly less confused by what the proposed Executive Orders entail:

    Obama to Issue Order Barring Anti-Gay Bias by Contractors [NYT]
    http://www.nytimes.com/2014/07/19/us/politics/oba

  • 229. haydenarwen  |  July 19, 2014 at 6:02 am

    Well, the 4th's ruling is pending. the 6th will be heard in two weeks ( Panel selected this Wed)…… Concerning two bans MI/KY as well as the other recognition cases ( in MI case there is a stipulation that it may not be heard and a decision could be rendered – I thought initially the chances of that happening to be slim to none…. but might the odds have increased now because the MI case was a trial…… and we will now have 3 rulings 2 from 10th and one from 4th!!! THOUGHTS???????? a final question…. Might SCOTUS have the 10th, 4th , 6th and 9th too choose from if the latter three circuits have issued decisions by 12/25/14 ???

  • 230. montezuma58  |  July 19, 2014 at 6:13 am

    I'm not sure override would be the correct term. The Colorado SC could reach its own conclusion about the Brinkman case independent of what happens in the Burns case.

    The only way I could see the federal courts stopping any state court actions is if the sate rules in favor of marriage equality then a subsequent federal court rules that states do not have any authority to do so. That's possible if the state courts decision relies entirely on the states interpretation of federal issues. But if the state relies in part on Colorado principles in any ruling it gets tricky.

    To me the federal courts stepping in an telling the state courts to hold off before anyone knows what the final product of the state courts is would be treading into the judicial activism that many anti equality people rant about. It's also counter to the principal of federalism on which they wish to rely. But then again logical consistancy has never been their hallmark.

  • 231. Ragavendran  |  July 19, 2014 at 6:17 am

    Rose, I couldn't agree more with you that marriage is a fundamental right that includes the right to marry someone of the same sex. But it is not 100% certain that we have five votes on this rationale at SCOTUS. (But I sure hope that we do.) To us, supporters, it seems like a no-brainer, right? How can marriage be a fundamental right but NOT include choosing someone of the same sex? But the justices' minds are really strange, (mostly) brilliant, and unpredictable. In the off-chance that they don't, then I'm glad this Tenth Circuit ruling gives them a kinder way "out" – the ability to postpone, for example, if the conservative four vote to grant cert and force the issue on the other five.

    Regarding the term same-sex marriage, I understand your point, but I want to politely push back just a little, if that's okay. I was simply using the term as a shortcut/proxy for "marriage between persons of the same sex". Think of it as a qualifier, an adjective if you will, like "beautiful marriage", "lovely marriage", "Indian marriage" (marriage in India or between Indians depending on the context), etc. where the intent is simply to qualify them when saying something about them. For example, if someone says something derogatory about "Indian marriages", I might be offended, but not because they used the term "Indian marriages". Anyway, that's just me :)

  • 232. Ragavendran  |  July 19, 2014 at 6:26 am

    I think instead of "override", a correct way of saying it is that a ruling from the state supreme court would render unnecessary a ruling in the federal district court. For example, if the CO Supreme Court is the first to rule (say next spring) striking down the ban on federal grounds, then it will not be nice manners for the federal district court to continue the case without asking for briefing on why the case should even continue and do the plaintiffs not already have the relief they have sought. Similarly, if SCOTUS denies cert, and marriage equality comes to Colorado through federal courts, then it would not be nice for the CO Supreme Court to continue the case at the state level, even if they can.

  • 233. hopalongcassidy  |  July 19, 2014 at 6:40 am

    To the extent they're able to legally exercise that kind of discrimination, it will inevitably subject them to diminishing returns as changing demographics continue to flow against them…they will find themselves like the kid who built a lemonade stand and put up a sign "Lemonade $500.00"…figuring he only needed to sell 2 or 3 a day to get rich!

  • 234. JayJonson  |  July 19, 2014 at 7:01 am

    If they were trying to get the country ready for a national marriage equality ruling, the better way would simply allow the state and circuit rulings to be implemented. The country would notice that the sky didn't fall, the fish still swam, and the corn was still green.

  • 235. JayJonson  |  July 19, 2014 at 7:11 am

    Yes, but they may also think that if thousands and thousands of same-sex couples marry in these states, they will be held responsible for dissolving the marriages if they rule against us. They may simply be exercising a kind of judicial prudence as well as asserting their power. As you suggest, the justices know that the ruling will be a 5-4 ruling in favor of marriage equality, but they want to maintain control. Their principal loyalty is to the Court.

  • 236. JoshLmno  |  July 19, 2014 at 7:38 am

    I thought it would be released weeks ago since every report on it said it would be released any day now lol. I guess any day now has no expiration date. Just kidding but I'm really eager for that one :-)

  • 237. JoshLmno  |  July 19, 2014 at 7:50 am

    I was wondering the same thing yesterday and even today no new posts. Maybe we can get the comments over 300 in this post commenting on the other stories. I wonder how many comments in this post are actually about the FL case and how many are about OK and UT.

    I'm not complaining, just surprised and I do appreciate all the work that goes into this site. The folks who run it have a lot going on I'm sure. Thank you!

  • 238. Ragavendran  |  July 19, 2014 at 7:50 am

    If we obtain marriage equality through the non-discrimination rationale as opposed to the fundamental rights rationale, that is, if we are declared a quasi-suspect class, then these religious freedom laws will be hard pressed to survive heightened scrutiny.

  • 239. DoctorHeimlich  |  July 19, 2014 at 7:55 am

    Unless the 4th is uncharacteristically slow here, their ruling in the VIrginia case (Bostic) should come down before the end of July. It seems all but certain the Supremes will have their choice of that case, Kitchen (Utah), and Bishop (Oklahoma). There seems little need for them to hear more than one.

    Bishop is right out. The procedural deficiencies in that case are complex for us non-lawyers, but seem sadly straightforward as a matter of law. The 10th Circuit (and District Court before them) issued a decision on the standing issues that's consistent with Supreme Court precedent on Article III. Unless they want to overrule Oklahoma state law and say that somehow at the Federal level, a state Constitutional amendment does NOT override and encompass related statutes, there's no loophole for them to kick the case. And if they're going to be forced to reach the merits on same-sex marriage anyway, they might as well take a better crafted case.

    Between Kitchen and Bostic, my money is on Kitchen. But I think it will be VERY telling if they pick Bostic instead. For one, they've heard from Ted Olsen and David Boies on this issue once already, which in my mind is a slight disincentive to taking that case. Then there's the fact that the Virginia Attorney General has decided not to defend the law and argue in support of the plaintiffs. My thinking is that if the Supremes choose Bostic, then there's at least the possibility that they're looking for an escape hatch on the underlying issue of same-sex marriage, and might rule instead on a standing issue again — whether someone who agrees in a lower court's judgment has right to appeal. (It's hard to imagine they'd FIND that escape hatch, since the adversarial county clerks are still parties in the case. And it's not like escaping would buy much of a delay, with so many other cases knocking on their door. But nevertheless, we've seen the SCOTUS conservatives grasp at thinner straws recently.)

    Kitchen has a purely adversarial case at every step of the process, plus it has the related issue of the Evans case, and the Utah marriages that would have to be ruled on at some point anyway if the underlying question of same-sex marriage isn't decided definitively, one way or the other, in SOME case. So I think Kitchen is the clear leader.

    That said, when the DOMA cases came before SCOTUS in the previous term, I believe they were rescheduled across multiple conferences. They didn't take a case at the first possible opportunity, waiting instead for more options before deciding on Windsor. So even if the 6th Circuit cases aren't ready by the start of the term, it's not out of the realm of possibility that SCOTUS would wait and reconference Bostic, Kitchen, and Bishop until the 6th Circuit cases ARE submitted for review.

    If that happens, or if the 6th just moves uncharacteristically fast and issues their rulings in time, then I do have to wonder if DeBoer (Michigan) has the edge over Kitchen. It too has a fully adversarial case history, AND it has the related issue of marriages conducted before a stay was issue. But it also has the bonus of a full trial conducted at the District level, and thus evidence to be considered. (It has a small procedural wrinkle of the judge inviting the plaintiffs to amend their original adoption law challenge to a full marriage equality challenge, but that doesn't seem to be a substantial mark against it.)

    Again, I feel it might be telling if SCOTUS opts to wait for DeBoer rather than taking up Kitchen. That would probably indicate a desire to go all the way, and have the evidence to draw on to support it.

  • 240. DocZenobia  |  July 19, 2014 at 7:59 am

    I think we're saying the same thing. The problem here is that the court is trying to have it both ways: articulating a general rule for stays, and also dealing with ME situations where the universal social standard is that marriage is a permanent change in status that can only be severed in cases of divorce or erroneous issue of invalid licenses. They're not doing a very good job of managing these ad hoc exceptions, and they undoubtedly know it, which is why I think they will grant cert to the Kitchen case.

  • 241. JoshLmno  |  July 19, 2014 at 8:02 am

    What I hate most about these statements is that far too many people believe what people like Stemberger say. This guy is flat out lying about how our governmental system is designed to work. People hear/read these lies and repeat them and get all mad about the decisions. Not very Christian to lie and mislead people, not to mention bear false witness against us GLBT people.

    Good point, Zack12, that they were lying when they said they're ok as long as we don't get to be "married." Another of their lies which we knew all along. It should be clear that these groups are far from Christian since pretty much everything they say is lies.

  • 242. scream4ever  |  July 19, 2014 at 8:19 am

    ^^^Yes that's what I meant to say.

  • 243. JoshLmno  |  July 19, 2014 at 8:20 am

    I agree this would be a more honest approach to protecting marriage and since it impacts far more people than gay couples it should have been their top priority. As we know, they're nothing but hypocrites and liars.

    Instead of simply banning divorce they should try to make implanted birth control until married laws and mandatory marriage training courses. If you don't pass the course you can't get married and the implanted birth control is not removed. If they really want to protect marriage and kids they need to ensure people are not having kids before they're married and that people are matched up with the right spouse so the marriage will be happy and endure until death. 😉

  • 244. scream4ever  |  July 19, 2014 at 8:21 am

    New rulings kept being released so they needed to update it.

  • 245. JoshLmno  |  July 19, 2014 at 8:23 am

    This is a general question about nested comments. Can a feature be added at the top of the comments that would expand all comments? I'd really like that feature. Would anyone else like that option and is it possible?

  • 246. JoshLmno  |  July 19, 2014 at 8:28 am

    Do they really have to update it? I mean what happens if two rulings occur on the same day? Do the circuits communicate and say ok you go first and then we'll update ours? If not and other rulings keep coming out the ones not released would be in an endless loop of updating and never get released.

  • 247. JayJonson  |  July 19, 2014 at 8:28 am

    Thanks for this very informative post. It provides a great analysis of the possible considerations that will go into choosing the right case.

    I wonder if SCOTUS might grant cert to two cases–one about recognition of marriages performed elsewhere and one about the right to marry? It may be, however, that the plaintiffs in Kitchen and Bostic include both couples who want to marry and couples who want their out-of-state marriages performed elsewhere, so it may not be necessary to consider another case. Still, SCOTUS might want to grant cert to, say, the first Kentucky case and the Obergefell case from Ohio, which are only about recognition of marriages performed elsewhere.

    I think it possible that there might a justice or two that might support the notion that a state must recognize legal same-sex marriage performed in another state even if they don't believe that a state must itself perform same-sex marriages.

    I can visualize two rulings issued in June 2015: one a 5-4 ruling in favor of marriage equality and a 6-3 ruling requiring that states recognize same-sex marriages performed in other states.

  • 248. Ragavendran  |  July 19, 2014 at 8:33 am

    They could also wait and consolidate multiple cases. They've previously combined five cases (out of Kansas, South Carolina, Virginia, Delaware, DC) into one in Brown v. Board of Education.

  • 249. JoshLmno  |  July 19, 2014 at 8:41 am

    Would be nice if they could roll it all into one and determine that excluding SS couples is unconstitutional and that states must recognize those marriages regardless of state or country where they were legally performed. I guess each case has it's own issue and they only rule on that specific issue. Interesting to think about.

  • 250. DoctorHeimlich  |  July 19, 2014 at 8:49 am

    Yes, another possibility. I would think any kind of consolidation of cases would DEFINITELY indicate that they're looking to decide the underlying issue of same-sex marriage. How could they not, with such a variety of subtly different circumstances in so many cases? Though a consolidation might also indicate a desire to rule specifically on secondary aspects of the cases as well. (The AG issue in Bostic, the standing and/or encompassed statute issue in Bishop, etc.)

  • 251. RQO  |  July 19, 2014 at 9:45 am

    CORRECTION: on a more careful reading of the DPost, it was only the plaintiffs that asked the CO Supreme Court for expedition. AG Suthers did not, as far as I can tell. This is disappointing.

  • 252. brandall  |  July 19, 2014 at 9:51 am

    Unfortunately, no. The IntenseDebate platform that runs the commenting system we use automatically collapses the threads after 100 total comments. They currently do no offer an "expand all threads" option.

    There is a bit of logic and reasoning to this. At EoT, Scottie and others generally create a new news article every day or so. This generates a new comments section attached to that article and we have 1-250 comments.

    Other sites can have 1,000's of comments and threads. The download time of an expand all feature could be huge This is why you have to expand a thread individually.

    I hope this answers your question.

  • 253. JoshLmno  |  July 19, 2014 at 10:11 am

    Yea, makes some sense although not everyone would expand all and the download time doesn't seem like it would be so bad just for text as compared to video, pictures and music which are so common today. It's fine as it is, but would still like it if it is ever available.

    It's much better than USA Today's comment format where it overlays the comments on the article and I can't seem to scroll down w/o grabbing the bar on the right side with the mouse pointer. I'm not the most tech savvy so maybe there is a way, but I don't see how to simply scroll with the arrow or pgdn. Anyway, have a great weekend all!

  • 254. brandall  |  July 19, 2014 at 10:12 am

    RQO – I am down on the beach near Monterrey hosting a family reunion for my in-laws. I was cooking dinner for the masses while all these decisions were flying out Friday afternoon. Figures….I am just catching up this morning.

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

    I should add, I don't agree with how IntenseDebate handles this. I could think of multiple ways to write the software to mitigate users with high speed vs low speed connections. They continue to develop the ID platform and perhaps someday they will have the feature we both would like to have.

  • 256. JoshLmno  |  July 19, 2014 at 10:19 am

    According to Brian Brown people are too afraid to openly support discrimination, at least that's what he claimed in Oregon I think. He's so full of shit that's why he's called Brown. But you're right she's a fool to keep at this.

  • 257. brandall  |  July 19, 2014 at 10:25 am

    United Individual States of America

    “Today's ruling is another instance of federal courts ignoring the will of the people and trampling on the rights of states to govern themselves. In this case, two judges have acted to overturn a law supported by Oklahomans. Their decision will be appealed and, I hope, overturned. As governor, I will continue to fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans.” Oklahoma Gov Mary Fallin.

    Is it really possible that every Governor opposing ME does not understand the legal relationship between "states rights" and the Constitution? We could substitute the above statement replacing Oklahoma for Utah and every other state that had their ban overturned. This is not leadership, but pandering and pretending to be ignorant. And…the press does little to push back on how Federalism really works.

  • 258. RnL2008  |  July 19, 2014 at 10:48 am

    Oh, I do agree with you on many points and I don't mean to sound like I'm nit picking, but it is very important that when this issue gets to SCOTUS that it be the right question for them otherwise, I do believe there is an off chance that they MIGHT rule against us…..I mean it wouldn't be the first time…all we have to do is look at Bower and then look at how long it took for Lawrence to overturn that…….if we lost at SCOTUS this time, it would set our fight back and we would have to basically start over………but this is a chat site and I do see it as a qualifier and should understand that we all know exactly what we are fighting for…….and by the way, thanks for the response:-)

  • 259. RnL2008  |  July 19, 2014 at 11:51 am

    I've read some scary stuff about the Governor of Oklahoma…….man, she is NOT a person who should have been voted into office…..she is totally ANIT-GAY, wants to charge the people of Oklahoma a surcharge for opting to use Solar power and a list of other crap….you just wouldn't believe.

    I have friends and relatives who live in that State and OMG, it is way NOT a 21st thinking State!!!

  • 260. RnL2008  |  July 19, 2014 at 11:55 am

    You should read this about Governor Fallin: http://thinkprogress.org/climate/2014/04/16/34273

    And this is another issue Governor Fallin had changed: http://truthinamericaneducation.com/tag/mary-fall

  • 261. Waxr  |  July 19, 2014 at 12:06 pm

    We can't conclude that Kennedy is responsible for the omission of heightened scrutiny in those decisions. When a justice writes a decision, it must be in words that at least four of the other justices will concur with. The inclusion of "heightened scrutiny" may have turned one of the justices off to the point that it would have resulted in the loss of that essential fifth vote. Supreme Court decisions are almost always compromises.

  • 262. Steve  |  July 19, 2014 at 12:08 pm

    And in typical Republican family values fashion she cheated on her husband with her bodyguard.

  • 263. DACiowan  |  July 19, 2014 at 12:11 pm

    The two senators there aren't much better, perhaps capped off (bottomed out?) by the Posterboard Incident:
    https://en.wikipedia.org/wiki/Jim_Inhofe#LGBT_rig

  • 264. RnL2008  |  July 19, 2014 at 12:23 pm

    Wow, can we say HYPOCRITE???

    I know it's do as I say, NOT as I do…..what a whiner she is!!!

  • 265. RnL2008  |  July 19, 2014 at 12:24 pm

    I've read about those idiots as well……this state is NOT the State folks want to live in under it's current State Government officials!!!

  • 266. scream4ever  |  July 19, 2014 at 12:54 pm

    Can you provide a source? Even without it being expedited I don't see how they couldn't hear it and rule by the end of the year, assuming it's appealed directly to the state supreme court.

    Hopefully the federal court ruling handed down next week will force them to act quickly.

  • 267. scream4ever  |  July 19, 2014 at 1:32 pm

    Going by this, it doesn't look like the denial was to expedite the trial, but instead to grant "emergency relief", i.e. emergency summary judgement. The same thing happened with the New Mexico supreme court and they still heard the case on an expedited basis. Also, the federal ruling next week could really change things too remember.
    http://www.scribd.com/doc/234392784/Colorado-v-Br

  • 268. Bruno71  |  July 19, 2014 at 2:12 pm

    They're in limbo in Utah (and the other states that don't recognize same-sex marriages), but are still recognized by the federal government.

  • 269. Bruno71  |  July 19, 2014 at 2:18 pm

    At this point I'd guess they'd only take a recognition case if they wanted to wait on deciding the national ME issue. They could grant cert to the Ohio and/or Kentucky and/or Tennessee cases and deny cert to the rest, including Utah & Virginia. That would leave ME mandated in the 4th & 10th Circuits, but not the most conservative circuits (population-wise) like the 5th & 11th. But all would have to recognize foreign same-sex marriages.

  • 270. Bruno71  |  July 19, 2014 at 2:28 pm

    So it doesn't look like we'll have a stay-less marriage ruling in Colorado for some time: in the federal courts, "gay means stay" is in effect, and it doesn't look like the CO SC will decide the case until at least the end of the year. So in the meantime, will Suthers appeal the ruling on the Boulder licenses now that they're continuing to be handed out?

  • 271. Bruno71  |  July 19, 2014 at 2:34 pm

    We can't 100% conclude it, but can make a good guess based on his past writings for the majority on civil rights cases. In Romer, Lawrence, & Windsor, each ruling eschewed the application of scrutiny. It seems more likely to me that his thinking on the issue is the narrowest and most center of the justices in the majority for each ruling, thus the common thread of not addressing scrutiny.

  • 272. Bruno71  |  July 19, 2014 at 2:36 pm

    They haven't posted during the last few days which is a bit odd, but they almost never post a new thread on weekends anyway. Probably don't expect anything 'til Monday, though we may be be pleasantly surprised sooner.

  • 273. StraightDave  |  July 19, 2014 at 2:39 pm

    Inhofe's speech to the Senate:

    "I'm really proud to say that in the recorded history of our family, we've never had a divorce or any kind of homosexual relationship."

    Note the weasel word "recorded'. You really think anybody's going to record stuff like that? Sounds like skeletons to me.

  • 274. Steve  |  July 19, 2014 at 2:52 pm

    Or tell him at all. They'd just move far, far away.

  • 275. Mike_Baltimore  |  July 19, 2014 at 3:24 pm

    My father died before I was 2.5 YO. Several years later, my mother remarried, but my first step-father died less than five months later, THEN six months after he died, his daughter (my half-sister) was born.

    Eventually, my mother remarried, but by then I was less than one month from my 15th birthday, my brother had just turned 16 (we were born 13 months apart); our sister was a bit more than three years old.

    If every child needs a mother and a father their entire pre-adult lives, my brother, my sister and I sure didn't have that situation in our life. And yet, we all turned out pretty well (IMO) – my brother (before he died of kidney cancer) farmed and drove a long-haul truck; my sister works for a bank; and I retired from the Federal government after working for it for more than 30 years.

    So take your self-righteous 'a child needs a father and a mother' attitude and flush it into the deepest part of the ocean. And along with that attitude, you can send your 'need to educate [us] on reality' also, as your 'reality' is almost certainly not the same as anyone else's reality.

  • 276. scream4ever  |  July 19, 2014 at 3:24 pm

    Well not necessarily since the federal judge deciding on the injunction next week could open the door to marriages statewide, assuming a final ruling isn't handed down, similar to what happened in Wisconsin. That could cause the state supreme court to hear it very quickly.

  • 277. brooklyn11217  |  July 19, 2014 at 3:43 pm

    Let's all relax and take a deep breath for a bit. We are on the same side. I'm a gay man raising a daughter with my partner. I certainly don't believe in "needs a mother and a father." All I wanted to do was "educate" some people about boarding-school stereotypes and that only rich kids go there. Our daughter went to a boarding school thanks to generous financial aid. I'm sorry if anyone was offended…..

  • 278. Bruno71  |  July 19, 2014 at 3:47 pm

    But even if there's a window where gays could get married, I assume there wouldn't be permanent equality in the state for awhile. It doesn't seem to me like the CO SC is going to hear this that quickly, and even in New Mexico when they finally decided to take on the case, it took a few months for a ruling. My point being that this could go on for at least a few months if not longer, and the Boulder/Pueblo marriage licenses won't stop unless Suthers figures out how to stop them.

  • 279. davepCA  |  July 19, 2014 at 3:55 pm

    Mike, you may want to re-read that comment. Brooklyn wasn't invoking the anti-gay 'kids need a mom & a dad" meme at all. This commenter was taking exception to my remark (not realizing that it was entirely sarcastic) which mentioned boarding schools in an example of an irrational legal restriction that could theoretically be imposed if that meme were actually given force to shape our laws. Nobody in this discussion is invoking that anti-gay rhetoric. This is just a couple of misunderstandings about what another commenter meant.

  • 280. SeattleRobin  |  July 19, 2014 at 8:30 pm

    Funny you should say that. In my Utopian fantasy, birth control that works on both males and females is in the water supply, like fluoride. In order to get pregnant, both birth parents would need to purchase the antidote at a pharmacy (no prescription). Ta-da, most unwanted pregnancies avoided and we end up with more healthy children. Sadly, even if we had the pharmaceutical know how, voters wouldn't allow such a thing. After all, the fluoride is a commie plot, don't ya know. This would be worse!

  • 281. SeattleRobin  |  July 19, 2014 at 9:26 pm

    Even though it doesn't sound like it has the strongest chance over others, I've been rooting for the Michigan DeBoer case to be THE case accepted and used to make marriage equality the law of the land.

    My reason is because when people are studying the case decades from now, the case history includes a full trial. Everything is there in one tidy package. Evidence of a history of discrimination, evidence of how lack of access to marriage harms families, proof of how flimsy the arguments supporting the bans are, leading to a clear picture of how animus and ignorance were the true reasons. Proof of how social scientists had to scramble to try and support their personal opinions with science and could only do so by engaging in science so sloppy not even a judge will buy their results.

    Someone interested in marriage equality as a historical topic could follow this one case from the Supreme Court all the way back to its genesis as an adoption case and learn pretty much everything they need to know on the subject.

  • 282. SeattleRobin  |  July 19, 2014 at 9:39 pm

    The no homos in the family ever thing is so ridiculous. It's safe to say that everyone has queers who had (secret) relationships in their family tree. But most of us will never know who they were. Even being out now doesn't help me to know if my great great uncle Ody, who was a bachelor until the day he died (in his 90s), was gay, or was just happy being single.

  • 283. davepCA  |  July 19, 2014 at 9:48 pm

    Reminds me of the time Iran's former president Ahmadinejad told an audience full of American college students that they 'didn't have homosexuals in Iran'. The audience burst into loud laughter. It also says something about this jerk Inhofe that he shares the same idiotic views as someone like Ahmedinejad….

  • 284. Ragavendran  |  July 19, 2014 at 9:59 pm

    "How do you explain gay marriage to an 8-year-old?"
    http://www.sun-sentinel.com/news/fl-mayocol-b0720

  • 285. RnL2008  |  July 20, 2014 at 12:27 am

    Easy…make it age appropriate…..it's really not that hard and my guess is they understand better than adults think they will!!!

    I just found this site on my facebook page and thought I'd share: http://lgbtfeed.com/

  • 286. dingomanusa  |  July 20, 2014 at 2:34 am

    I recall one college student sarcastically saying to a TV news reporter Ahmadinejad's statement they 'didn't have homosexuals in Iran' was correct "because Iran killed all their gays."

    Shortly after that I remember when the images started appearing on the Internet of men being hanged in Iran because they were gay.

    On Senator Inhofe….
    “Senator Inhofe claimed to have no knowledge of David Bahati the Uganda legislator sponsoring the “Kill The Gays” bill and his association with “The Family” – it is near-impossible that Bahati could have had any interactions with the group without Inhofe being well aware of who he was and why he was present.” http://thinkprogress.org/lgbt/2012/03/16/446164/s

  • 287. Marekweber  |  July 20, 2014 at 4:55 am

    I like Louis C.K.'s response to that question. "It's your shitty kid. You fucking tell them. Two guys can't get married because you don't wanna talk to your ugly child for five minutes?"

  • 288. Sagesse  |  July 20, 2014 at 5:57 am

    Therese Stewart has been confirmed as a California appeals court judge.

    PROP 8 ATTORNEY BECOMES JUDGE [Keen News]

    "Therese Stewart, the lesbian attorney for the City of San Francisco who helped argue the case against Proposition 8 in the historic Perry v. Schwarzenegger trial in 2010, has become a California appeals court judge. The California Commission on Judicial Appointments voted unanimously to confirm Stewart on Thursday. Governor Jerry Brown nominated Stewart, 57, last month, along with openly gay appeals court judge Jim Humes to be the court’s presiding judge."
    http://www.keennewsservice.com/2014/07/20/speed-r

  • 289. haydenarwen  |  July 20, 2014 at 6:31 am

    I totally agree about the Deboer case!!! It seems tighter and cleaner all the way around.

  • 290. JayJonson  |  July 20, 2014 at 7:13 am

    Yes, the DeBoer case would be an excellent choice. Judge Friedman does a wonderful job of eviserating Regnerus. In addition, our expert witnesses were eloquent and informed–everything the opposition was not.

  • 291. F_Young  |  July 20, 2014 at 7:34 am

    Assuming the kid doesn't know anything about sex, all you say is "Some families have a mother and a father, some have a mother, some have a father, some have two mothers and some have two fathers."

    It's that simple.

  • 292. JoshLmno  |  July 20, 2014 at 8:06 am

    "…to overthrow the millennia-old idea that it is a man and a woman who make a married couple" One of their favorite lies to rile up their blind followers. A man and woman still make a married couple. That hasn't changed

    "…government-paid courts" I suppose they'd prefer if courts were paid by their churches?

    They had to throw this bit in there, "…a homosexual judge, Vaughn Walker, later overturned the vote of the people on Prop 8."

    "…ignoring the will of the people and trampling on the right of states to govern themselves." Repeating the lie, misleading people how our government works.

    "…marriage between a man and woman is much more than that (an emotional union) and benefits society through strengthening families and communities." Marriage for gay couples benefits society in exactly the same ways.

    "…these activist judges are undermining the legitimacy of the courts in the eyes of a majority of Americans." No, that's what you and your lies are attempting to do.

    Judicial fiat, kowtowing! Haha, they love that phrase and word. It just goes to show how powerful us gays are. The judges are utterly afraid of us which forces them to write such well-reasoned legal opinions.

    From the comments section:
    "gypsy314 • I say rid America of the liberal judges and the gays and homosexual by any means. I see a great battle coming soon and it will clear things up And America will be Gods country fully once again. I pray for the lost souls " This is what articles like this and all the lies in it incites. Clearly this is not a real Christian response.

    Sunshine49 "It is already a statistical fact that the white, Anglo-Saxon race is dying out in America because they are not having as many children as the minorities. Add to that the fact that the majority of minorities are in the lower income brackets (and Democrat voters) and you have a dumbing down of American." Wow, do I smell white supremacist posting on wnd? Imagine that. Sunshine is doing her part to dumb down America*n* by herself.

    "Too bad nu,tters, you are, and always will be, fre, aks. You will never be able to 'make' people accept you." The last part is true and no one is trying to make this person accept us.

    "Don't try and force good people to do the wrong thing" Again, the idea that we want everyone to get gay married. So misguided. They get that idea from the way these articles are written and full of lies.

    I can't believe I wasted so much time on this exercise, gah!

  • 293. JoshLmno  |  July 20, 2014 at 8:17 am

    Excellent point! One of the highlights of the court rulings this past year was when Judge Friedman said, “The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration,”

  • 294. JoshLmno  |  July 20, 2014 at 8:45 am

    Although most guys fall in love with women, some guys fall in love with other guys so they may get married to a guy if they're lucky enough to find the right one. That's all it means to be gay, being attracted to people of the same gender. Most people are attracted to people of the opposite gender, some are to both and some are only attracted to those of the same gender. All are equally valid and good. Any questions, little kid? Ok then, go outside and play.

  • 295. hopalongcassidy  |  July 20, 2014 at 8:52 am

    It's WorldNetDaily, one of the biggest hateful, knuckledragging, vile magnets for hypocrites and bigots in America. They are a bunch of insane morons.

  • 296. Steve  |  July 20, 2014 at 9:37 am

    Beat me to it.

    Also children aren't sex obsessed like fundamentalist religionists. If you explain straight sex to them, they think it's disgusting too. But they do understand love and affection. Understanding that sometimes a boys like boys and girls like girls takes a couple of seconds for them.

  • 297. RnL2008  |  July 20, 2014 at 11:31 am

    I refer to it as World Nut Daily…….because like you stated it is a knuckle dragging supposed news site just like Lifesite News and MassResistence!!!

  • 298. RnL2008  |  July 20, 2014 at 11:32 am

    Good for her……I know she will be a great Judge!!!

  • 299. RnL2008  |  July 20, 2014 at 11:45 am

    Gotta love the anti-gay folks……EVERY Judge who rules against them is an ACTIVIST Justice……..that alone is just to funny and then to mention the ruling regarding the Brown family…..NO Judge ruled that Polygamy was legal….just that the Cohabitation law was UNCONSTITUTIONAL…….Kody Brown still CAN'T marry more than one of his wives legally…..and he can call the others whatever he wants!!!

    This article is just another pathetic attempt to try and continue to "BLAME IT ON THE GAYS FOR GETTING MARRIED…..here's the song: https://www.youtube.com/watch?v=rixkck8QnjY

  • 300. Bruno71  |  July 20, 2014 at 12:03 pm

    Are you not familiar with the fact that the WND is a conspiracy site that sort of crosses The Free Republic and The National Enquirer? No offense, but we really don't need that type of stuff pasted here. If we pay too much attention to that fringe rag, our heads might explode!

  • 301. Steve  |  July 20, 2014 at 12:08 pm

    Wing Nut Daily works too

  • 302. Bruno71  |  July 20, 2014 at 12:08 pm

    Judge Friedman went above and beyond for us in the way he operated the proceedings. Encouraging the plaintiffs to broaden the scope of their suit, holding a full hearing, and ruling for equality. I certainly wouldn't mind if it makes it there.

  • 303. RnL2008  |  July 20, 2014 at 12:11 pm

    Yes it does…….the very first time I ever read that supposed new site, I thought it was real, but others showed me the errors of my ways rather quickly……..and now I can see it for what it really is…..just another anti-gay, anti-whatever site!!!

  • 304. Corey_from_MD  |  July 20, 2014 at 12:57 pm

    There is no point reading what WND has to say. It is worthless dribble.

  • 305. sfbob  |  July 20, 2014 at 1:08 pm

    Well I suppose it IS "real." But so is Faux Noise. And the Limbaugh fellow. He does actually exist. And WND isn't a parody site; they take themselves VERRRRY seriously there.

    WND is real. And insane.

  • 306. Zack12  |  July 20, 2014 at 4:28 pm

    You are forgetting that many of the Democrats were blue dogs who were no allies of ours.

  • 307. TravisDKidd  |  July 20, 2014 at 5:19 pm

    I am so happy to see that people are willing to disregard the rules and continue to "post" where he isn't welcome, even after the owners have made it clear they want him to stay away. The "courage" it takes makes my heart flutter like a Palmetto leaf in the wind.

  • 308. BenG1980  |  July 20, 2014 at 7:16 pm

    Actually, I think the composition of the 6th Circuit panel will be announced tomorrow (Monday, 7/21) morning.

  • 309. Ragavendran  |  July 20, 2014 at 8:38 pm

    No, honestly, I had no idea. Like I said, my initial outrage turned into amusement while I was going through the comments so I thought I'd post it. It was not my intention to offend anyone and I apologize if I did.

  • 310. bayareajohn  |  July 20, 2014 at 10:54 pm

    AS has been suggested often, MORE TOPICS would mean fewer overloaded, meandering, and collapsed super-topics.

    Once again, if -some- pre-cleared and reliable volunteers that frequently post news into unrelated topics (because there is no other choice)… were allowed the capability to start topics when they have news, we would far less often hit the 100 message limit, and provide far better service to readers by not mixing radically different topics.

    Frankly, the very fact of seeing "334 messages" at the top is discouraging for readers. Likely many of us feel we don't have time to slog through that many. Let alone to pry into it a second, third, or more times to see replies.

  • 311. RnL2008  |  July 21, 2014 at 12:15 am

    I agree…….you have to open everything up to follow some discussions!!!

  • 312. RnL2008  |  July 21, 2014 at 12:57 am

    I wonder how he came to that conclusion? Oh, that's right….because we can marry anyone of the opposite-sex like our residential troll keeps says……what a joke!!!

    I have mentioned posting on topix's many times and we have a guy who basically insists the same thing……saying that sexual labels have only been in place for like the last century……..but trying to use the fact that all men have the right to marry all woman and regardless of sexual labels, there are ONLY two genders……I'll have to post one of his comments one time so you can see what some use to justify their position!!!

    Here is what I'm talking about:
    Pietro Armando posted:
    Rights can be exercised, and applied on the basis of sex. Thus the right to marry, enter into a legally recognized union of husband and wife, is applied to men and women equally.
    You invoke "religious marriage" frequently enough as part of your "tradition" mantra even though it's wholly irrelevant to a discussion of civil marriage law.
    So why then, have some courts invoked it?
    And while you generally avoid invoking your religious beliefs in your arguments about procreation and marriage
    Interesting….. A sincere thank you for noticing that I avoid invoking my religious beliefs. I try not to base my opinion on that.
    it's not difficult to see the Catholic teachings underlying your arguments, whether it's marriage, procreation, or medically assisted procreation.
    Needless to say, I'm a cradle Catholic, attend mass sporadically. That is but one facet, after all, we are all products of our upbringing-family, ethnicity, siblings, economic background, education, etc. The old saying, "where one stands depends on where one sits", applies here.
    As to the medically assisted procreation, I view it not through a religious lens, but rather as a married father, and ethically. I don't favor intentionally creating children in such a way as to sever them from their biological roots. http://www.topix.net/forum/news/gay/TCR09D1CUDAO9

    This is just one of many by this poster who believes that only conjugal marriage is what should be allowed………this site is much better at having real discussions on this issue…….on topix, Pete just loves to repeat the same comments over and over again…..no matter how many times he is told about things like a compelling state interest and why should a Same-Sex relationship be called marriage!!!

  • 313. RnL2008  |  July 21, 2014 at 2:39 am

    Here's another article that the anti-gay folks thinks justifies their position: http://www.cpjustice.org/stories/storyReader$1178

  • 314. haydenarwen  |  July 21, 2014 at 4:44 am

    will it be today or Wed as Wed will be 2 wks away

  • 315. DaveM_OH  |  July 21, 2014 at 5:21 am

    They typically post on Monday. I would expect to see the calendar by 10am EDT.

  • 316. hopalongcassidy  |  July 21, 2014 at 6:44 am

    They are virtual Dominionists who want an American Theocracy. They're frightening only because they're not as tiny and insignificant as, say, the Westboro gang of crazies.
    (Look at the 'mission statement' on their 'about us' page) http://www.huffingtonpost.com/2011/09/01/5-facts-

  • 317. MichaelGrabow  |  July 21, 2014 at 7:28 am

    FL Gov. Rick Scott Waffles On Marriage

    Fox 4 reporter Warren Wright asked the Governor, "Are you and Pam Bondi going to challenge the same sex ruling on Gay Marriage in Monroe County?" Governor Scott said, "People have different views. In 2008, Florida decided it would be a traditional marriage state. So the Attorney General will make the decision to go forward. But from my standpoint and probably hers, nobody wants discrimination. We have a court system that people have an opportunity to go to court and make sure their views are expressed." Fox 4 followed up, asking, "Are you saying you would like for Pam Bondi to refrain from pursing this?" "Well, its completely Bondi's decision what she does," replied Governor Scott.

    When pressed further by reporters, Scott insisted on talking about his job creation plan.
    http://www.jrn.com/fox4now/news/Gay-marriage-issu

  • 318. haydenarwen  |  July 21, 2014 at 7:30 am

    are you saying it wil lbe today

  • 319. Ragavendran  |  July 21, 2014 at 7:32 am

    Our panel for the Sixth Circuit hearings is Daughtrey, Sutton, Cook:
    http://www.ca6.uscourts.gov/calendar/documents/08

    Daughtrey is a senior judge nominated by Clinton, and the other two are George W. Bush appointees. I'm hoping one of them (along with Daughtrey) is sane enough to be on the right side. We have women in a panel for the first time! But our streak of getting two GOP and one DEM nominees continues.

    For what it's worth, Sutton was the first republican-nominated judge who ruled in favor of Obamacare. But see: "Judge Sutton has been recognized as the intellectual engine behind a conservative movement of the jurisprudence of the Sixth Circuit as the author of many majority en banc opinions representing the Republican-appointed judges." And – wait for it – he clerked for Scalia!!! And Cook was supposedly considered to replace Sandra Day O' Connor. Both Sutton and Cook were confirmed two years after being nominated – the democrats were not in favor.

  • 320. DaveM_OH  |  July 21, 2014 at 7:33 am

    Panel is out:

    Daughtrey, Sutton, Cook

    Daughtrey is a Senior Judge appointed by Clinton.
    Sutton was appointed by GW Bush, and was the first GOP-appointed judge to rule in favor of the ACA.
    Cook was appointed by GW Bush, elevated from the Supreme Court of Ohio. She is conservative, strongly so where individual privacy is concerned.

    A challenging draw.
    http://www.ca6.uscourts.gov/calendar/documents/08

  • 321. BenG1980  |  July 21, 2014 at 7:37 am

    Yes, challenging, but I don't think insurmountable.

  • 322. haydenarwen  |  July 21, 2014 at 8:06 am

    Guess we will just have to wait and see!!!!

  • 323. StraightDave  |  July 21, 2014 at 8:09 am

    That sounds like Cook is our wildcard this time. I don't recall Democrats being in favor of Vaughn Walker, either, so there you go. The 6th is a little special in that they have 6 cases piled up in front of them, all with very similar district rulings. That's a lot of weight for a halfway sane judge to suddenly say, "Nahhh, all of you guys were wrong". There are some lost causes out there, like Kelly in the 10th, but they seem to be a minority in most places. Considering the overall composition of the 6th, this doesn't feel too bad, especially when you take into account the persuasive precedent existing in 2014. It's not exactly going out on a limb to say "yeah, me too".

  • 324. BenG1980  |  July 21, 2014 at 8:15 am

    I mostly agree. I don't think either Sutton or Cook is a "lost cause" in the mold of Kelly. As DaveM_OH said above, it's a challenging draw. But I could still see either one of the Republicans ruling in favor of marriage equality, and I actually view Sutton as the more likely wildcard than Cook.

  • 325. StraightDave  |  July 21, 2014 at 8:17 am

    @DaveM can you clarify?
    "conservative" and "individual" can cut both ways. Historically, conservative meant a strong individual streak regarding autonomy and responsibility. But current right-wing conservatives seem to show little respect for individual choice that goes against their notions of how everybody else ought to behave. So which flavor is Cook?

  • 326. brandall  |  July 21, 2014 at 8:31 am

    Florida – Monroe County – Monday, the attorneys for Jones and Huntsman filed an emergency motion to have the marriage stay lifted

    The attorneys wrote that Jones and Huntsman will likely suffer "irreparable harm" if it isn't, and that the state is likely to lose on appeal.
    http://www.keysnet.com/2014/07/21/497872/keys-men

    A good overview of the Monroe case and the cases currently in Florida:

    Saunders said, Monroe Clerk Amy Heavilin is ready. The office has already changed its marriage-license forms. “The current vows say ‘husband and wife,’ and we changed them to ‘first spouse, second spouse,’ ” Saunders said Friday. “But with the stay, we are now in limbo.”

    Read more here: http://www.bradenton.com/2014/07/21/5264635/flori

  • 327. DaveM_OH  |  July 21, 2014 at 10:04 am

    Complicated answer.
    Cook wrote the original opinion in US v. Domenech (2010), in which she upheld a right to privacy in renting a hotel room on behalf of alleged drug and weapons traffickers. However, she also signed on to the panel's revisitation of that case in 2011 in which the officers established more probable cause, and reversed herself. So it's hard to pin down conclusively…
    http://www.ca6.uscourts.gov/opinions.pdf/10a0326phttp://www.ca6.uscourts.gov/opinions.pdf/11a0467n

  • 328. Ragavendran  |  July 21, 2014 at 10:32 am

    That's a good trait, isn't it? A judge who is willing to reverse herself instead of being egotistically stubborn? Seems like someone with an open mind that you could reason with…

  • 329. Bruno71  |  July 21, 2014 at 10:38 am

    How many female judges have ruled against marriage equality? The only one I can think of is CASC justice Carol Corrigan.

  • 330. BenG1980  |  July 21, 2014 at 10:48 am

    Also Martha Sosman in Massachusetts and Christine Vertefuille in Connecticut.

  • 331. Bruno71  |  July 21, 2014 at 12:25 pm

    Thanks. Anyone know of any more? All 3 were dissents and took place in or before 2008.

  • 332. JoshLmno  |  July 21, 2014 at 5:50 pm

    Haha, I had been thinking the same thing that wnd and one news now are tabloids. They have no actual journalism, just sensational opinion pieces that the crazies take as real news. I can just hear them saying, "Well it was on wnd or onn so it must be true!"

  • 333. Bruno71  |  July 21, 2014 at 7:29 pm

    Found a few more:
    from the NY case–Judges Susan Phillips and Victoria Graffeo
    from the WA state case–Barbara Madsen

  • 334. BenG1980  |  July 21, 2014 at 7:50 pm

    Cook did not show evidence of an open mind between 1996 and 2002 in a long-running case that involved interpretation of the Ohio Constitution as it relates to public school funding. Ironically, now-6th Circuit Judge Jeffrey Sutton was the Ohio Solicitor General at the time who originally defended the state.

    http://www.dispatch.com/content/stories/local/200

    Quote 1:

    But as they went around the table, that quickly became impossible.

    Cook dug in her heels. School-funding decisions, she said, were left by the people to the governor and lawmakers, not the court. She never budged from that position.

    "I always thought that was so bizarre, because the state never raised that argument," [Justice Paul E.] Pfeifer said. "The state never argued that the Supreme Court of Ohio doesn't have jurisdiction to interpret the constitution."

    Quote 2:

    "Cook's position was pretty clear: No way; that's it," [Justice Evelyn Lundberg] Stratton said. "I tried to be open-minded. I said, 'OK, I've heard the evidence, read the briefs; I'm going to look at whether there's anything here that might persuade me.' "

    Quote 3:

    [Chief Justice Thomas J.] Moyer and Stratton had hoped to persuade Cook to change her position, but she remained intransigent.

    Quote 4:

    Cook, once again, didn't budge, and Moyer and Stratton reluctantly joined her. After going out on a limb to prescribe a school-funding remedy in DeRolph III, Moyer was prepared to fine-tune that remedy and get rid of the case. However, he couldn't get a fourth vote.

  • 335. Zack12  |  July 21, 2014 at 8:53 pm

    Sutton is going to be the swing vote and he is pretty big on state's rights himself.
    Bottom line, other then Helene White (who was originally nominated by Clinton) the 6th circuit Bush nominees are in the mode of Scalia and Alito as far as their rulings go.
    You can even read articles that they have gotten more conservative as the 4th has become more liberal.
    Next to the 5th and the 8th, the 6th circuit was always going to be the one to worry about depending on the "luck" of the draw.
    And IMO, with this panel of judges, we will get that split of a ruling against us.
    Anything can happen but I'm not holding my breath that Cook and Sutton will be on our side.

  • 336. RnL2008  |  July 21, 2014 at 9:03 pm

    Interesting assessment Zack…….I have NEVER heard of these Justices and will have to "check" their records…….if what you say is correct…..we will have our split and SCOTUS will have to step in this next term!!!

  • 337. Ragavendran  |  July 21, 2014 at 9:55 pm

    No one thought Holmes would be on our side before he joined Bacharach in denying Utah the emergency stay in December. Let's wait and see what happens.

  • 338. Ragavendran  |  July 21, 2014 at 10:37 pm

    Wow, that's a fantastic story, worthy of a documentary or movie. Thanks for sharing, BenG. It seems Cook put her foot down and stayed out of all the drama (from what we know of the case). I still can't believe one of the justices came so close to suggesting putting the whole General Assembly in jail. Imagine if/when the stories about Kennedy's trilogy of Romer, Lawrence, Windsor, and the future case that'll win us marriage equality comes out.

  • 339. Margo Schulter  |  July 21, 2014 at 11:49 pm

    One question: if the Sixth Circuit rules 2-1 against us, might en banc review be granted, given the importance of the issue and other overall makeup of the Sixth?

  • 340. RnL2008  |  July 22, 2014 at 12:12 am

    Not really in limbo……the new licenses can still be used for opposite-sex couples getting married and when the Stay is lifted or the issued resolved…..then they are ready for Same-Sex couples as well!!!

    Here in California before the passage of Prop 8, the state used what Massachusetts was using for their marriage license aka Party A/Party B, until a heterosexual couple sued because they wanted Groom and Bride on the application, well after the passage of Prop 8, the State still used the Party A/Party B format until the 17th of November…….the State decided that it couldn't keep changing the format and knew Same-Sex couples would probably regain their right, so the licenses today have a box to check for each individual. The first person data now is a check box for either Bride or Groom. The second person data is the same way. California also allows the couple to legally change their name on their marriage application just in case neither party wants to use the typical Groom's last name or they want to hyphen it!!!

    Also each County sets the price or cost of a marriage application/license, and it is usually paid in cash. The price can range from like $94.00 in the San Francisco as low as $50.00. We paid $64.00 for our license!!!

  • 341. haydenarwen  |  July 22, 2014 at 4:30 am

    The atty representing Deboer – Ken Mogill, Carole Staynor and Dana Nessel come from one of the Finest Law firms in MI.
    They all are very skilled, precise, sharp and knowledgeable at their craft.Since I know one of their law partners each time new info rulings etc come out…. I have been emailing Jon all the links, rulings etc…. to help keep them in the loop of the vastly positive changing landscape.

  • 342. DaveM_OH  |  July 22, 2014 at 5:18 am

    Oh Geez… The DeRolph cases. Wow. I grew up in Columbus (in an affluent district) and I remember so much of the mumbo jumbo about school funding.

    If I remember correctly, it basically ended with the SCOH saying "Yeah, it's unconstitutional what the state is doing. We've suggested our remedy, but we have zero power to enforce. So the Assembly needs to create a constitutional scheme. We have no idea what that'll look like."

  • 343. DaveM_OH  |  July 22, 2014 at 5:30 am

    The 6th will have an interesting challenge synthesizing all these cases together, primarily because of DeBoer.

    To recap:
    TN: Tanco is just a preliminary injunction. The Court doesn't need to let this case lead their judgment.
    OH: Obergefell is about death certificates, and Henry is about birth certificates. Again, the Court can let these follow from their other cases.
    KY: Bourke deals with foreign recognition, and Love with in-state solemnization. Both were reached on summary judgment by Judge Black. These cases are the most similar to Kitchen, Bostic, and basically all the cases thus far decided – except DeBoer.

    And now we come to MI: DeBoer. The only case to have a *trial* thus far. Because DeBoer was not decided on summary judgment, the appellate court will not take the record _de novo_ – that is, from scratch – as they will do (and are obligated to do) for the summary judgment cases. CA6 is required to accept the findings of *fact* made by the lower court. They can assess for errors of *law*. Go back and read the case – essentially, all of section II is non-negotiable and must be accepted at face value by CA6. This may turn the case in favor of equality.
    http://deboervsnyder.files.wordpress.com/2014/03/

  • 344. haydenarwen  |  July 22, 2014 at 5:39 am

    Since my partner and I live in MI, we followed the Deboer case as well as hearing from an atty whose partners are litigating it. I am very confident that a combo of factors our trial, the Judgement, the women April and Jayne and the attys who rep us….. will do well and be affirmed

  • 345. jdw_karasu  |  July 23, 2014 at 6:21 pm

    Think we all saw it likely that we'd draw at least 2 GOP judges on this given the make up of the court.

    One of the important things to keep in mind is that this is Judge Friedman's case from Michigan. He went the fully monty on it, knowing he would be sending it up to the 6th. The first post-Perry trail that I can recall. It wasn't as detailed of a walk through a finds of fact as Walker's was, but he wasn't brief, and was more than willing to smack down bad witnesses. He's not just a fellow GOP judge, but a RR judge who has 15 more years on the bench than they Sutton & Cook do. It's not as if Circuit Judges need to, or even care to, show respect for their elder party members on the lower court. But this one… there some hope that one of those two would either (i) find that difficult to do, or (ii) find Friedman's ruling compelling.

    Looking at Sutton & Cook, you don't find that red flags akin to "Notre Dame" and "Fordham Law" that Kelly had.

    I think a 3-0 would be a reach, but a 2-1 isn't out of the question.

  • 346. Ragavendran  |  July 23, 2014 at 6:58 pm

    I agree. And the same goes for Judge Crabb's Wisonsin opinion with the Seventh Circuit, which was extremely thorough even without a trial. (Also, she's 75 and has been on the bench for four decades.)

    I wish the Fourth Circuit would rule before August 6 so we have three out of three appellate victories before the Sixth hears oral argument.

  • 347. jdw_karasu  |  July 24, 2014 at 1:08 pm

    It would be nice. When do you think it's going to drop?

    We're not going get Niemeyer in Bostic, so that will be another 2-1 Dem/GOP split in all three cases / two panels. Not sure if it pre-hearing / post-hearing timing will make much difference. Perhaps just having the ruling comfortably in advance of the 6th having to sit down and decide the case post-hearing might be good enough to add another element to sway either Sutton or Cook.

  • 348. StraightDave  |  July 24, 2014 at 1:39 pm

    I actually think having Bostic in the bag a couple of days before Aug 6 will change the atmosphere in the 7th's courtroom.

    "Why are we going through this again?"
    "I think that point has been recently debunked, for the n'th time."
    "Excuse me counselor, but don't you read the newspaper?"

  • 349. MichaelGrabow  |  July 24, 2014 at 1:51 pm

    "Excuse me counselor, but don't you read the newspaper?"

    I might just pay to hear that quote haha.

  • 350. jdw_karasu  |  July 24, 2014 at 2:13 pm

    I don't see the two GOP judges in the 6th doing that. :)

    Pretty much everything was debunked by Friedman's ruling anyway. It's not like they need another Circuit to make them get snarky. :)

  • 351. Equality On TrialFlorida &hellip  |  July 25, 2014 at 3:30 pm

    […] judge, in Monroe County, recently invalidated the ban. That ruling only applies in Monroe County, and it appears this one only applies to […]

  • 352. Equality On TrialAnother &hellip  |  August 4, 2014 at 3:14 pm

    […] decision is stayed pending appeal. Two other Florida judges, from Miami-Dade County and Monroe County have also struck ruled in favor of same-sex […]

  • 353. Get the Chinese Mainland &hellip  |  September 26, 2014 at 1:48 am

    Get the Chinese Mainland Details at Wikipedia

    Equality On TrialFlorida judge strikes down marriage equality ban, ruling applies to one county only » Equality On Trial

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