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Seventh Circuit to hear arguments in two marriage cases on August 26

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Seventh Circuit Court of Appeals will hear arguments in marriage cases from Wisconsin and Indiana on August 26.

The appeals court had initially set oral arguments for August 13, but that order was subsequently canceled.

The arguments will take place three weeks after the Sixth Circuit Court of Appeals hears six cases (including Kentucky’s new appeal) from four states whose officials are attempting to reinstate their bans after district courts based in those states invalidated them.

Also in the Seventh Circuit, the request for all judges on that appeals court to hear the case initially has been denied. State officials filed the request for an initial en banc hearing in both the Wisconsin and Indiana cases. The order notes only that a majority of active judges have voted to deny the request.

Thanks to Equality Case Files for these filings

53 Comments

  • 1. brandall  |  July 28, 2014 at 8:18 am

    If this was not the New York Times, I would not bother to share it. Form your own opinion about what they are trying to accomplish with this piece.

    Ruling Poses Potential Obstacle at Supreme Court for Same-Sex Marriage
    http://www.nytimes.com/2014/07/29/us/politics/rul

  • 2. RemC_in_Chicago  |  July 28, 2014 at 8:55 am

    For me, this was the heart of the article: "But it would not be hard to draw the opposite conclusion. The amendment came in the wake of a 2003 decision allowing same-sex marriage in Massachusetts, and the amendment’s sponsors said it was needed to ensure that nothing similar happened in Oklahoma.

    It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage,” James Williamson, a Republican state senator and an author of the amendment, said at the time."

    To read the between the lines, I get that the message as saying that, while some may argue for legal reasons that no animus existed, the singling out of a single group to be widely "disadvantaged" must be viewed with suspicion, per Kennedy.

  • 3. sfbob  |  July 28, 2014 at 9:10 am

    Holmes' reasoning, and that of Roberts and Scalia, is rather silly. Kennedy certainly has it right that "animus" does not require some sort of "wild-eyed hatred" but simply an inclination to impose a different standard on a disfavored minority. And to fail to see that that is what's going on.

    Ultimately however I don't think the animus issue will play that much of a role in the path to nationwide marriage equality. While it would be convenient to have the ultimate decision simultaneously include a finding that sexual orientation should be a suspect class, that has a downside: as has been widely noted, the question is not about the "right to same-sex marriage" but about the right to marriage. The right to marry is a fundamental right and thus the choice of partner is implicated in that right. Strict scrutiny is required to limit the right to marry and this has been affirmed repeatedly. So for the purpose of obtaining full marriage equality, the fact that we are talking about gay people marrying is in a sense irrelevant. People get to exercise freedom of choice as to who they marry and any limitation on that freedom requires compelling justification and narrow tailoring. That cannot be shown in the case of the choice to marry a person of legal age with whom there is no issue of consanguinity and who is not already in a legal marriage, regardless of the gender of either person choosing to form the couple.

  • 4. brandall  |  July 28, 2014 at 9:18 am

    Key West couple is asking a Florida appellate court to fast track a ruling on the same-sex marriage ban to the Florida Supreme Court.

    …sought an emergency motion to lift the stay Monday, but Garcia rejected it.

    Bondi has 14 days to file her appeal with the FL SC.
    http://www.miamiherald.com/2014/07/28/4259312/key

    http://www.local10.com/news/key-west-couple-asks-

  • 5. robbyinflorida  |  July 28, 2014 at 9:24 am

    The Times references Susannah W. Pollvogt, who is about to join the law faculty at Washburn University, wrote "But there are clear political costs to lower state and federal courts to deciding this issue across the board based on the poorly articulated dignity concerns of Windsor."

    I don't believe that dignity was "poorly articulated," It came up 17 times in the Windsor decision.
    Keep in mind that Washburn University in Topeka, KS ranks 115th for law schools. I'm not sure why the NYT would quote someone from a third tier school.

  • 6. DoctorHeimlich  |  July 28, 2014 at 9:26 am

    It's insane to me that while our justice system is able to recognize at least three levels of severity to murder (first and second degree, and manslaughter), so many of these judges seem incapable of imagining degrees of bigotry. They envision only one brush, and think we're tarring everyone with that most extreme version of bigotry when we speak of animus.

    You see the same thing in the Supreme Court rulings dealing with women and race. Unfortunately, Kennedy seems to join with the RATS (Roberts, Alito, Thomas, Scalia) in those kinds of cases, imagining that the only form of racism is the kind that burns crosses, and the only form of sexism is denying a woman a right to vote.

    I suppose we should be grateful that Kennedy has thus far recognized the truth when it comes to LGBT issues, but it is aggravating that he has a cognitive dissonance that blinds him to applying the same compassion in other areas of law.

  • 7. Steve  |  July 28, 2014 at 9:28 am

    The judges who refuse to find animus are cowards and mostly they are sucking up to religion. Either it's fear of backlash from Christians or a naive desire to see the best in people. But looking at the evidence and legislative records it's blatantly obvious the motivation was a dislike of gay people. Everything else is just a rationalization.

  • 8. brandall  |  July 28, 2014 at 9:36 am

    Colo. AG asks state Supreme Court to stop gay marriages in Boulder County

    This will be interesting…..I really, really hope they turn him down.

    Suthers says that unless the high court acts now, the earlier ruling affecting Denver will be undermined. http://www.therepublic.com/view/story/ab965bd1471

    http://www.dailycamera.com/boulder-county-news/ci

  • 9. RnL2008  |  July 28, 2014 at 9:52 am

    I'm sorry to say I disagree with Justice Holmes…….these bans came about because of the original ruling from the Hawaii State Supreme Court regarding the right to marry in 1993, seems that giving Gays and Lesbians a right they already had scare folks and basically set up Amendments and the Passing of DOMA all because States were trying to find a way to eliminate Court rulings that are currently taking place!!!

    There was only one reason to enact laws regarding consensual Sodomy between adult men and there is ONLY one reason to make bans ELIMINATING the right to marry for Gays and Lesbians…..and folks it's call ANIMUS!!!

    Do you honestly believe that a law would be enacted to prevent heterosexuals from marrying the person of their choosing for ANY reason? Nope, all you have to do is read the ruling in the Zablocki vs Redhail ruling to understand that a FUNDAMENTAL right can NOT be infringed upon and just because folks are using the term "SAME-SEX" or "GAY" in front of the word marriage……doesn't mean marriage is NOT a fundamental right for Gays and Lesbians!!!

  • 10. Margo Schulter  |  July 28, 2014 at 9:54 am

    While the Holmes concurrence may be debatable, I don’t see it as a serious barrier to marriage equality, even if Justice Kennedy accepts its logic. Either substantive due process (the fundamental right of marriage) or equal protection would remain as a basis to overturn the marriage bans.

    I do understand the logic of Judge Holmes: in contrast to either Romer (1996) with its sweeping state constitutional amendment prohibiting any protection for Lesbian/Gay people, or to Windsor with its unusual exercise of federal legislative power in the realm of marriage coupled with a legislative history documenting “moral disapproval” as a main motive, for a State merely to seek a continuation of the status quo might seem distinguishable.

    The Tenth Circuit’s fundamental rights analysis is one alternative, of course. But a different route in keeping with Justice Kennedy’s style might be a fluid equal protection analysis. Rather than getting involved with the question of which tier of scrutiny is appropriate (rational, intermediate, or strict), Justice Kennedy could simply weigh the importance of marriage for “all individuals” (Zablocki) and the impact on the children of same-sex couples (as he did in Windsor) with the justifications, tenuous and questionable at best, offered by States defending these bans.

    In effect, this might be similar to “rational basis review with bite,” and could leave open the question of whether sexual orientation might eventually be recognized by SCOTUS as calling for intermediate scrutiny (if the traditional three-level scheme as it developed in the 1970’s is to be retained) as the Second Circuit did in Windsor and the Ninth Circuit in SmithKline.

  • 11. dlejrmex  |  July 28, 2014 at 10:00 am

    I love your RATS acronym. It made me smile. Thanks.

  • 12. Eric  |  July 28, 2014 at 10:18 am

    Because that is how far down the list one must go to find an anti-gay law professor that will say something publicly.

  • 13. RnL2008  |  July 28, 2014 at 10:20 am

    Awwww, that would be a shame……NOT!!!

  • 14. Fledge01  |  July 28, 2014 at 10:28 am

    Animus is an undefined term in law. It is legitimate for a judge to think it requires a sinister motive. I disagree, but I can find no piece of law that I could use to say that either side is wrong other than past opinions. Its vague. I think one thing to note is that most people who now support gay marriage at one time in their life did not support it. They may have even had gay children whom they accepted lovingly both personally and in their sexual orientation, and perhaps they themselves are gay. Perhaps there is a conflict in people who just feel the religion's doctrine should always be the thing that controls their opinions. Look at other situations. What about having only a men's club or a women's club. Is there animus or simply a desire for men to want to find a setting to foster their bromances? I think what the judges who do not find animus in gay marriage bans are saying is that even though many of the ban's supporters clearly have animus against gays. At least some of the ban supporters may be the biggest supporters of gay rights, participating in Pride parades etc, fighting in court for civil unions. The animus may be with them too, to an extent, but it may be so small that its hard to label it that way. 1% animus, 99% love and support for gay relationships, but they are raised believing that marriage can only be between a man and a women. They may even support removing any government involvement in marriages requiring every couple to only get civil unions with the government and reserving marriage as only a religious tradition. All I am saying is that animus is not an obvious conclusion in a legal sense.

  • 15. Steve  |  July 28, 2014 at 10:31 am

    Or that the only form or corruption is handing someone envelopes of cash in return for a direct and immediate action.

  • 16. BenG1980  |  July 28, 2014 at 10:33 am

    BOSTIC is posted. Affirmed. http://pacer.ca4.uscourts.gov/opinion.pdf/141167….

  • 17. DACiowan  |  July 28, 2014 at 10:35 am

    Aw Yeah

  • 18. BenG1980  |  July 28, 2014 at 10:39 am

    As expected, it's a 2-1 split decision. Judge Floyd wrote the majority opinion (I thought it would be Judge Gregory) and Judge Niemeyer wrote in dissent.

  • 19. FredDorner  |  July 28, 2014 at 10:40 am

    I disagree with Holmes on several points but he's right that it's easier for a court to discern animus from the public record of a legislature than it is from a public referendum where the motives of voters aren't generally part of the public record. Obviously the only real motive for such popular referenda is animus, but it's a different matter for a court to conclude that.

  • 20. MichaelGrabow  |  July 28, 2014 at 10:40 am

    Yes!!!

  • 21. hopalongcassidy  |  July 28, 2014 at 10:43 am

    "…no evidence of animosity toward gays"????????????? If this moron thinks this is true he is the dumbest sonofabitch to ever sit on a judge's chair…and if he doesn't he is a goddamn liar. With friends like this asshole, who needs enemies. Yes, I know he reluctantly concurred with the ruling, that doesn't make him any less stupid.

  • 22. FredDorner  |  July 28, 2014 at 10:50 am

    "What about having only a men's club or a women's club. Is there animus or simply a desire for men to want to find a setting to foster their bromances? "

    Private clubs are completely irrelevant to the topic (except that freedom of association is part of the right to marry). The issue here concerns legal rights and legal benefits, and the desire on the part of bigots to deny those rights to a disfavored minority. .The animus is abundantly clear, just as it was in regards to mixed-race marriage.

    At least some of the ban supporters may be the biggest supporters of gay rights, participating in Pride parades etc, fighting in court for civil unions."

    So fighting for a minority to be subjected to separate and unequal is a form of support? That'll be news to most folks. Also, all the red states and confederate states ban civil unions too.

  • 23. Mike_Baltimore  |  July 28, 2014 at 11:13 am

    Many judges are striking down the laws without using animus as a reason. If they used animus as the reason for striking down the law, their opinions would be much shorter, maybe even a page or so.

    In any event, they are striking down the law without using animus as the reason, so that should be an indicate that there are many more reasons than animus to the GLBT community that makes the laws UNConsitutional, such as equal protection?

  • 24. Bruno71  |  July 28, 2014 at 11:20 am

    We've seen every case since Windsor go in our favor, but with different rationales. It seems to me it's becoming less about what the outcome will be, and more about how that outcome will be reached.

  • 25. Mike_Baltimore  |  July 28, 2014 at 12:26 pm

    Don't forget that the attorneys defending Arizona are arguing that when Arizona passed it's marriage ban, 'the law was not instituted out of malice, but as a means to protect the marriages of heterosexual couples and their children'.
    ( http://www.advocate.com/politics/marriage-equalit… )

    So say the attorneys from the 'Alliance Defending Freedom' (ADF).

    They don't say how ME will harm the marriages of heterosexuals, and the children of those heterosexuals – I guess we all should just 'know' how the marriages of heterosexuals are harmed, and thus how the children will be harmed.

    Also, no word on how ADF has decided that the children of parents who are united under ME are not affected, or if so, how the 'damage' is mitigated by the ban.

  • 26. sfbob  |  July 28, 2014 at 12:34 pm

    Given the views of some of those people I suspect that they really believe that discouraging us from marrying each other will result in us leaving our "lifestyle" behind and marrying someone of the opposite sex. Why anyone should believe that anymore is hard to fathom but I don't doubt that's ultimately what they believe.

  • 27. Bruno71  |  July 28, 2014 at 12:53 pm

    I think what they believe is that we should be treated as pariahs. They've likely given up on the idea of their "ex-gay" therapy working to eradicate homosexuality in a large-scale fashion (I'm sure they still believe individuals can be changed). But let us suffer, as their Big Fairy Man In The Sky wants us to for our "sin," and don't give our relationships any official recognition whatsoever as punishment. It's just straight-up religious-based animus for the purpose of exclusion and humiliation.

  • 28. Jen_in_MI  |  July 28, 2014 at 1:01 pm

    To call Niemeyer's weak-sauce whining an actual dissent does a disservice to the label. It's baseless, already debunked, and smacks of sore loserism.

  • 29. LikesOkra  |  July 28, 2014 at 1:20 pm

    I have a question about attending the Aug 26th hearing at the Seventh Circuit. But first – since I’m new to commenting here – let me just say how much I’ve enjoyed lurking and reading the excellent posts and comments at this site.

    So I live and work in Chicago and would love to attend the 7th Circuit hearing on 8/26. Anyone here with experience attending any of the other district or appeals level hearings or trials have advice on what time one needs to show up to get a seat? Or anything else I should know about attending? Thanks so much!

  • 30. DoctorHeimlich  |  July 28, 2014 at 1:28 pm

    I attended the Kitchen hearing at the 10th Circuit here in Denver. The hearing was scheduled for 10am. They were handing out numbers, and even though I showed up three hours early, I barely got into the courtroom itself before it filled up. So if you're serious, my major bit of advice would be, plan on taking the day off work, and show up WELL ahead of time.

    Procedures may differ in the 7th, so I would suggest you either watch their web site to see if they announce any plans in advance for handling the hearing (the 10th did), or simply call them yourself and ask.
    https://www.ca7.uscourts.gov/

    (312) 435-5850

  • 31. RemC_in_Chicago  |  July 28, 2014 at 1:46 pm

    I contacted the offices of the Court. The trial begins at 9:30. The courtroom is on the 27th floor and opens at 9:00. It holds about 50 to 60 people. The clerk's office said there won't be an overflow room made available. The building opens at 7. I believe the arguments are scheduled to be about 20-30 minutes for each side, but my memory could be misleading me. As for your essential question about what time to show up to get a seat…that's the $64 million question. If anyone who's attended similar hearings can chip in, I too would like to know. Maybe Scottie may have an idea after August 6th…

  • 32. MichaelGrabow  |  July 28, 2014 at 1:58 pm

    I attended the Bostic hearing at the 4th Circuit here in Richmond. The scheduled start time was 9:30am, I got there at 8am and was one of the first people in the overflow courtroom that was set up with audio and video feeds. I would highly recommend going if you are able to.

  • 33. davepCA  |  July 28, 2014 at 2:01 pm

    I can't give specific guidelines on when to show up because it varies from trial to trial depending on how well it is publicized, the seating capacity, whether they hand out numbers to secure your spot, etc.

    BUT – a few other things to be aware of:
    1. You may not be allowed to bring large items into the court room, even after passing through metal detectors, so leave the laptop / tablet / backpack at home.
    2. You will not be allowed to bring any kind of protest sign in with you. If there is a rally planned outside before the hearing, don't bring a sign that you really want to keep.
    3. Similar issue with any clothing that includes some kind of political statement. No slogans emblazoned across your shirt. Some stuff like a rainbow color scheme may be in a gray area, and if the security staff at the entrance decide it's not allowed, you won't have the option to argue with them and you will be out of luck. So don't chance it.
    4. Turn off your cel phone while in the court room. You don't want to be THAT guy.

  • 34. LikesOkra  |  July 28, 2014 at 3:11 pm

    Thanks for all the replies so far – this is really helpful. Hope I'll be able to attend …

  • 35. sfbob  |  July 28, 2014 at 3:15 pm

    Somewhat off-topic: Does anyone know whether comments regarding today's Fourth Circuit decision have been disabled? I find I can edit comments I've posted there but can't post any new ones or reply to any. The "reply" buttons have all been grayed-out. No such problem posting in this thread though.

  • 36. DACiowan  |  July 28, 2014 at 3:16 pm

    Working for me; I just posted there.

  • 37. davepCA  |  July 28, 2014 at 3:18 pm

    Check just above where the comments start – are you still logged in? (Even if it says you are, you might try logging out & back in again & see if that fixes it).

  • 38. sfbob  |  July 28, 2014 at 3:19 pm

    Weird. Clearly I can post on this topic; just not on the other one. I've already sent a message to tech support.

  • 39. davepCA  |  July 28, 2014 at 3:21 pm

    ….didn't the same thing happen to Rose recently? Hmm.

  • 40. sfbob  |  July 28, 2014 at 3:21 pm

    I've done that several times. What's even stranger is that NOW some of the reply buttons are live but others aren't. I really don't know what the heck is going on.

    Update: never mind; now they're all disabled again. I guess I jinxed it. And anyway I obviously have no problem posting a comment to THIS thread.

  • 41. sfbob  |  July 28, 2014 at 3:25 pm

    I wonder if its some sort of site traffic thing.

    What I've noticed is that when I am at work I have to log out and log in periodically (and sometimes frequently); same when I am traveling and need to use my phone to comment. That doesn't seem to happen with my home computer. But since I do most of my commenting here during the day on weekdays, it can be a bit irksome. I don't seem to have similar problems with other sites that require a log-in, such as Daily Kos. I've been logged in there for months.

    I made a donation to the site; was hoping that maybe a bribe would fix things (just kidding of course). I did get a nice thank you message from Scottie but the problem still exists.

  • 42. BenG1980  |  July 28, 2014 at 3:43 pm

    I'm having exactly the same issue trying to reply to comments — only on that thread — from my phone. I really hope I can post from my laptop tonight. lol

    Update: I'm having the same problem on my laptop. As Rose mentions below, this happened to me once before when the troll was around, but I don't know why it's happening today.

    Further update: Now I'm inexplicably able to comment on that thread again. I'm not sure why or how, but at this point I don't really care as long as it keeps working.

  • 43. RnL2008  |  July 28, 2014 at 4:17 pm

    I'm right there with you….my wife and I will be celebrating our 6th wedding anniversary in a couple of weeks, not one heterosexual couple has been prevented from getting married and to the best of our knowledge, we are NOT aware of any couple having decided NOT to have babies directly because of we got married…….in fact we have a friend who is planning her wedding in February, in spite of the fact that she KNOWS my wife and I are legally married……imagine that!!!

  • 44. RnL2008  |  July 28, 2014 at 4:22 pm

    It has happen to myself, it's a glitch in the system and I just report it……it's happen mostly after the mod has come in and removed a particular troll….but I don't know why it's happening today!!!

  • 45. RQO  |  July 28, 2014 at 8:26 pm

    Sweeping animus under the rug has its appeal; we do, after all, have to live with each other. I like my 28 y.o. daughter's rule of thumb – people who didn't like ME through 2010 or 11 are forgiven. Past that, there's an issue. So while we can try to ignore animus, I rather think that's akin to insisting the Civil War was about state's rights, not slavery. Even most of the North took a while to conclude the latter, and the 5th circuit still hasn't gotten there.

  • 46. Eric  |  July 28, 2014 at 8:52 pm

    Why 2010 and not when the Hawaii courts ruled?

  • 47. Ragavendran  |  July 28, 2014 at 10:10 pm

    Slate had a similar article a while ago. Yes, Romer and Windsor were animus cases. But I agree with others above who said animus need not play a role in the Supreme Court's decision in this matter. They will probably take the Lawrence route which is the easiest route, and one that would be most consistent with previous cases on marriage such as Loving, Turner, Zablocki, etc. Just take the fundamental rights angle, like the Tenth and Fourth have now done, without inspecting whether sexual orientation should be a suspect or quasi-suspect class – that question will come into play in the next great battle over the "religious freedom" and "discrimination" bills. If the Supreme Court were to take the alternative approach and declare heightened scrutiny for sexual orientation based discrimination, that would, in addition to striking down the marriage bans, also kill discrimination/religious freedom bills, and the Supreme Court generally likes to take the narrowest route possible to specifically address the issue at hand.

  • 48. ebohlman  |  July 28, 2014 at 10:18 pm

    Note that most of the Phelps family went to law school there.

  • 49. SeattleRobin  |  July 28, 2014 at 10:48 pm

    I think Fledge was trying to point out something I said a few days ago, and then putting it into the existing legal framework.

    In between cheerleaders and foaming at the mouth bigots there is an entire sliding scale of opinions. Many people have slid to the equality side from a previous anti side. A lot of those people believe in the main that gay people should have equal rights, but marriage was a sticking point. Not for logical reasons, and often not for religious ones, but for cultural reasons. I've known quite a few people like that. They never had an issue with me being gay, but still thought marriage was strictly for opposite-sex couples for reasons of tradition.

    Then Fledge pointed out that animus is not a clearly defined concept in jurisprudence. There's no agreed upon test, so it's in the eye of the beholder for individual judges.

    When you combine those two things you get judges declaring there was no animus, even when there's a clear history of discrimination. Obviously some animus exists, we all see it clearly. But in context it can sometimes be understandable when a judge finds none (or at least not enough to declare it as the primary reason for the bans). Other times finding no animus is an expression of the judge's own animus, but it's pretty clear when that happens.

  • 50. RemC_in_Chicago  |  July 29, 2014 at 6:44 am

    "To protect the marriages of heterosexual couples and their children"…from what? The implication in such a statement is that heterosexual couples need to round up behind a protective fence, their children securely couched in their arms, to protect them from the big, bad, gay bogeyman. It reminds me of German posters prior to WWII about the "Jewish menace." Also, it's infuriating that they reason that this protection of heterosexual couples and their children has to occur at the expense of non-heterosexuals, because we all 'know' who's superior, right? Good luck to our friends in Arizona—if the ADF lawyers' argument is anything like what they argued in Miami-Dade, there's reason for hope.

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