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READ IT HERE: Opening brief in Fifth Circuit challenge to Texas same-sex marriage ban

LGBT Legal Cases Marriage equality Marriage Equality Trials

The opening brief in DeLeon v. Perry is finally here after several delays. The challenge to Texas’ same-sex marriage ban had been appealed to the Fifth Circuit back in February, after the federal judge overseeing the case struck down the ban.

Texas officials filed the opening brief in defense of the ban. You can read it here thanks to Equality Case Files.

14-50196 #14288 by Equality Case Files

137 Comments

  • 1. DoctorHeimlich  |  July 29, 2014 at 10:31 am

    In keeping with the delayed submission, I'm going to read it later.

  • 2. sfbob  |  July 29, 2014 at 10:33 am

    I tried to read it. Really I did. I made it three pages in and had to stop. Clearly the state of Texas is having no truck with the Supremacy Clause, nor with Equal Protection, nor with any Supreme Court decisions on Equal Protection and Due Process handed down since 1993. Nor with logic for that matter.

  • 3. hopalongcassidy  |  July 29, 2014 at 10:33 am

    Just recall the most absurd points in previous ones and you'll have all you need to know. The only difference is that the 5th has more members who will embrace the stupidity in this brief.

  • 4. debater7474  |  July 29, 2014 at 10:34 am

    Texas' attorneys could file a picture of a potato as a brief and the 5th circuit would still rule in their favor. Even on the off chance that we did get a favorable panel, it would be overturned en banc. It's lose/lose.

  • 5. brandall  |  July 29, 2014 at 10:36 am

    LMAO….perfect sentence.

  • 6. MichaelGrabow  |  July 29, 2014 at 10:39 am

    Am I the only one holding out hope on a positive ruling from the Fifth Circuit?

  • 7. hopalongcassidy  |  July 29, 2014 at 10:43 am

    Maybe…I wanted to be a pessimist but never thought I had the ability…

    ๐Ÿ˜‰

  • 8. debater7474  |  July 29, 2014 at 10:46 am

    Lol. No offense, but I think there is a difference between optimism and self-delusion. I admire your positive attitude, though.

  • 9. mjnichol  |  July 29, 2014 at 10:48 am

    Texas's first argument is right: if you use pure rational basis, then they win. But since Romer, SCOTUS has never used pure rational basis when deciding gay-rights cases. If they did, we would have lost them all. So, the first half of Texas's brief is wasted on rational basis arguments. I'm surprised how much time they spend on this, repeating over and over how rational basis allows the state to make virtually any decision it wants (as long as the legislators are not mentally ill). Certainly true, but completely irrelevant in this case.

    Then Texas claims that it's not discrimination because even straight people can't marry someone of the same-sex. Again, SCOTUS is on a different page "we have declined to distinguish between status and conduct". So, another wasted argument.

    Their final arguments are even weaker: "Baker v Nelson still applies". Really? And "we should let this go through the democratic process".

    Oh, and gay people are not a suspect class because they more political power than a few years ago. Yet race and gender are still suspect classes, even though those groups have far more political power than gay people. And lack of political power is not a requirement for suspect classification in any case.

    I guess the reality is that there are really no good arguments at this point.

  • 10. BenG1980  |  July 29, 2014 at 10:56 am

    No, you're not the only one. I'm still cautiously optimistic about our chances to remain undefeated, but it will take some luck in the more conservative circuits. I think we fared relatively well with the 6th Circuit draw, but we'll hopefully know more next week.

  • 11. RemC_in_Chicago  |  July 29, 2014 at 11:11 am

    No, it doesn't look like they have any good arguments, nor would we expect them to. After reading the dissenting opinion in the Bostic case, what struck me is how strongly a judge's personal perspective will color how he or she chooses to interpret a case. The dissent essentially comes down to "I don't like gay people, gay people are icky, gay people are inferior to straight people, the idea of gay people getting married is ludicrous, and you can't make me think otherwise." This, in response to a lucid, logical ruling from the majority judges. All we would need is one like him, plus one like the 10th's Kelly, and this panel of 3 judges for the 5th circuit would be the first to interrupt the unbroken list of rulings in our favor.

  • 12. BillinNO  |  July 29, 2014 at 11:14 am

    My God. They're still hanging their hat on Baker v Nelson?

  • 13. Bruno71  |  July 29, 2014 at 11:14 am

    I'd say I'm more pessimistic than optimistic about the 5th, but I'm a pessimist by nature. However, I don't think it's anywhere near a "done deal" in any circuit.

  • 14. BillinNO  |  July 29, 2014 at 11:23 am

    It depends. We have already had one Federal District Judge in the Circuit rule in our favor; then there's that case before Judge Feldman in New Orleans that seems more promising every day. Would we have dared hope for such results a year ago? IANAL, but how many of these judges- Fifth Circuit included- really want to be overruled, and particularly remembered for having been the only judge to have gone against the tide of history? Again, IANAL, but isn't it one thing to differ with one fellow judge in another part of the country- and quite another thing to disagree with thirty other judges from all over the country who have weighted the same or similar claims in the constitutional balance?

  • 15. brandall  |  July 29, 2014 at 11:24 am

    4th CA Decision reactions from Olson & Boies – Audio

    The more interesting part starts at 2:45. Comments included Olson confirming he's never seen such a string of wins over a single constitutional issue, either Bostic or Kitchen or both could be taken up by SCOTUS (if they take up this issue) and in Bostic (7:25) someone will likely file an application to stay to the 4th or up to SCOTUS prior to August 14th.

    Listen here: http://voices.outtakeonline.com/2014/07/virginias

  • 16. BillinNO  |  July 29, 2014 at 11:25 am

    Maybe there's something they can use in the Magna Carta- its the only place they haven't looked…

  • 17. StraightDave  |  July 29, 2014 at 11:31 am

    You have to realize that Baker v Nelson is still the absolute best ammunition they have. None of their other arguments even come close. That's how shitty a hand they've been dealt.

  • 18. Bruno71  |  July 29, 2014 at 11:37 am

    Logically what you say makes sense, but we've already seen that ideologues like Kelly & Niemeyer seem to have no trouble contradicting such a wealth of recent jurisprudence. Neither will Thomas or Scalia. Where there's a will, there's a way.

  • 19. MichaelGrabow  |  July 29, 2014 at 11:47 am

    My thoughts exactly. I would add on that now they don't only have district court rulings that they would be disagreeing with.

  • 20. RnL2008  |  July 29, 2014 at 12:18 pm

    Here's a funny for ya folks….I know I needed one: http://lgbtfeed.com/post/if_only_we_had_a_vaccine

  • 21. brandall  |  July 29, 2014 at 12:25 pm

    And here is the really sweet story of the day and a little bit of ME history. Copenhagen Couple Celebrates 25 Years of Legal Recognition

    The world's very first same-sex couple to be legally recognized got hitched in 1989. Help the couple celebrate their silver anniversary by sending your own photos.
    http://www.advocate.com/politics/marriage-equalit

  • 22. Mike_Baltimore  |  July 29, 2014 at 12:36 pm

    Texas is arguing that "the state [can] make virtually any decision it wants (as long as the legislators are not mentally ill)."? That the state can do anything it wants (as long as the legislators are not mentally ill)?

    Maybe Texas (and maybe you?) should read Article VI of the US Constitution, especially the second section:

    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

    Please note: There have been no changes to Article VI since it was adopted by the Constitutional Convention in 1787.

    If Texas wants to claim that they can pick and choose which parts of the US Constitution to observe (2nd Amendment and a few other bits and pieces), and which to discard if they want (especially the 14th Amendment), Texas will lose, even if the case has to go to SCOTUS for that loss, even on the issue of rational basis.

    And there ARE no good arguments Texas can use at this point, whether you 'guess' or not. If there were any good arguments left, the states would be using them, and not losing cases from coast to coast. They are not.

  • 23. ranjitbahadur0  |  July 29, 2014 at 12:37 pm

    The "problem" if you want to call it that is that virtually all of the favorable rulings have relied on a between-the-lines interpretation of the Windsor ruling.
    Until (if) SCOTUS makes it explicit, a Judge can still justifiably read something else between the lines, or nothing at all.

    Especially since SCOTUS is acting in a way that could be seen to suggest that they truly haven't made up their mind.
    Specifically, they not only blocked people in Utah from getting married, but they also blocked recognition of existing marriages when the district court and 10th circuit declined to do so in both cases. If you were of such a mind you could "read between the lines" that not only does SCOTUS not want any more marriages based on court decisions, but they intend to invalidate the ones that have taken place as well.

  • 24. ranjitbahadur0  |  July 29, 2014 at 12:43 pm

    Many Judges have already disagreed with the premise that "under rational basis the State must win". Sure the bar is lower, but there is *still* a requirement that there must needs be a "rational" link between the enacted statute and the interest it supposedly serves.

    Preventing same-sex couples from getting married will not cause more opposite-sex couples to get married, have kids, or raise them better. There is only an "irrational" link in this case. Rational basis does not mean the State can put forward any conceivable reasoning for a law, it still must make sense.

  • 25. BillinNO  |  July 29, 2014 at 12:46 pm

    They've been dealt- LOL

  • 26. RnL2008  |  July 29, 2014 at 12:51 pm

    Cool, I remember the first couple that was married by then Mayor Gavin Newsome on June 16th, 2008. It was a Lesbian couple who had been together for over 55 years, finally able to legally marry each other……unfortunately Del Martin passed in August of 2008. Here is their story:
    http://lgbthistorymonth.com/del-martin-phyllis-ly

  • 27. mjnichol  |  July 29, 2014 at 12:59 pm

    Ranjit: With regards to the benefits that flow from marriage, Texas has a limited amount of money and much choose who to give it to. If they give it to same-sex couples, then ultimately, someone else will have less money. It is a zero-sum game. Giving extra benefits to single people won't stop couples from marrying either, but the state will ultimately have less to spend on the couples and marriage will be less incentivised.

    Mike: I was talking about issues involving rational basis. Rational basis gives extreme deference to the lawmakers. I agree there are no good arguments left and that Texas wasted its brief talking about rational basis. No one could argue with a straight face that Romer, Lawrence, and Windsor apply pure rational basis. There is some kind of heightened scrutiny involved and Texas is silly to ignore that.

  • 28. RobW303  |  July 29, 2014 at 1:04 pm

    …how shitty a hand they've chosen to play. This isn't poker, where you can bluff, and smart players cut their losses.

  • 29. FredDorner  |  July 29, 2014 at 1:34 pm

    Note that the two stays which SCOTUS issued weren't made on the merits, or at least the ruling contained no argument. In fact the lower courts seem almost unanimous that a stay isn't warranted in these cases. So if you're reading between the lines the most you can conclude is that SCOTUS was interested in an orderly process.

  • 30. Steve  |  July 29, 2014 at 1:37 pm

    These are not the arguments of serious people.

  • 31. FredDorner  |  July 29, 2014 at 1:38 pm

    "Texas has a limited amount of money and much choose who to give it to."

    That would be a blatantly unconstitutional motive to deny marriage to one group of taxpayers while granting it to another.

  • 32. davepCA  |  July 29, 2014 at 1:45 pm

    It is also based on the false assumption that granting legal recognition of civil marriage always costs the state money, when in fact it shifts large amounts of responsibilities (and the cost associated with them) from the state to the couple. Marriage also BENEFITS the state, it's not a one-way 'gift' from the state to the citizens. The specific math that determines if an individual marriage puts the state in the red or the black is determined by each specific marriage individually.

  • 33. davepCA  |  July 29, 2014 at 1:49 pm

    No mjnichol, it has already been abundantly proven that these marriage bans don't even survive rational basis scrutiny. The actual effects achieved by them are not rationally related to a states interest or a legitimate goal for a law ('legitimate' meaning a goal that is in compliance with the principles of the Constitution).
    .

  • 34. mjnichol  |  July 29, 2014 at 1:59 pm

    That's a valid point. I haven't seen solid statistics on the financial net gain/loss to the state when it comes to marriage. I just know that personally, being married (and previously domestically partnered) has saved me a substantial amount in income tax each year.

  • 35. JayJonson  |  July 29, 2014 at 2:00 pm

    I agree with debater7474. The Fifth Circuit will do nothing that might remotely be considered "liberal" or "pro-gay."

  • 36. StraightDave  |  July 29, 2014 at 2:02 pm

    Well yes, that too. They had no cards to start with, just based on reality – that's what I meant. Everything was bogus from Day 1. They were never going to win in the long run. The only reasons they have chosen to play on are delusion and they're playing with somebody else's money. They're truly not smart players but the losses are not theirs personally. Only when it threatens them politically do they think twice about it.

  • 37. mjnichol  |  July 29, 2014 at 2:03 pm

    I guess my point is that whether the law is "legitimate" depends on gay people being recognized as a class, and not just a random group of people. And I think that SCOTUS has recognized us as a class.

    My bottom line is whether the ban survives rational basis or not is irrelevant, given SCOTUS precedent.

  • 38. BenG1980  |  July 29, 2014 at 2:03 pm

    I'm curious on what basis you think it's blatantly unconstitutional. I agree with you — because it would violate both due process and equal protection — but Texas denies the fundamental right to marriage applies in this case and claims that a classification based on sexual orientation is not suspect or quasi-suspect. So far, there's no SCOTUS precedent that would explicitly bind the 5th Circuit as to these precise issues. Assuming for the sake of discussion that the 5th Circuit agrees with Texas on just these two points, is there something more I'm missing that relates to taxing and spending?

  • 39. StraightDave  |  July 29, 2014 at 2:04 pm

    And no one has ever mistaken Perry and Abbott for serious people, glasses notwithstanding.

  • 40. JayJonson  |  July 29, 2014 at 2:04 pm

    Your premise that we would never even under "rational basis" is not the case. Several district judges ruled in our favor using rational basis scrutiny. Rational basis does not mean that any absurd justification will do.

  • 41. Steve  |  July 29, 2014 at 2:11 pm

    That's illegal. You can't save money by discriminating against a specific group. If they want to save money they can cut the benefits for ALL married couples.

  • 42. brandall  |  July 29, 2014 at 2:24 pm

    CO Supreme Court orders Boulder County to stop issuing same-sex marriage licenses

    IT IS ORDERED that Colorado Court of Appeals Case Number
    2014 CA 1368, State Of Colorado v. Hillary Hall, in her official capacity as Boulder County Clerk and Recorder, shall be transferred forthwith from the Colorado Court of Appeals to this Court Pursuant to C.A.R. 50(b), and the record on appeal shall be filed with the Colorado Supreme Court on or before October 20, 2014.

    IT IS FURTHER ORDERED that Respondent Hillary Hall, in her official capacity as of Boulder County Clerk and Recorder is hereby stayed under C.A.R. 8 from issuing marriage licenses to same-sex couples pending resolution of this appeal.

    BY THE COURT, EN BANC, JULY 29, 2014.
    http://www.courts.state.co.us/Media/Opinion_Docs/

  • 43. BenG1980  |  July 29, 2014 at 2:31 pm

    Bummer! So the Colorado Supreme Court took this one away from the appellate court. Has anyone requested that the Supreme Court similarly take the other state cases that went to the merits of marriage equality?

  • 44. brandall  |  July 29, 2014 at 2:36 pm

    Not that I am aware of.

  • 45. ragefirewolf  |  July 29, 2014 at 2:39 pm

    It is relevant to your argument since you said very plainly that we would have lost under rational basis review – and that is absolutely incorrect, as the evidence to the contrary is abundant thus far.

  • 46. brandall  |  July 29, 2014 at 2:40 pm

    The lack of any urgency seems to imply gay & lesbian ME fundamental rights are different from other fundamental rights. They are overruling Hartman. They are signaling denying ME is not harming anyone and they'll deal with this in the Fall.

  • 47. FredDorner  |  July 29, 2014 at 2:41 pm

    "my point is that whether the law is "legitimate" depends on gay people being recognized as a class, and not just a random group of people"

    That's a false assumption. Under rational basis review the state still needs to show that the sexual orientation or relative gender of a couple is reasonably related to some legitimate state purpose in regards to marriage, and the courts so far haven't found any state's claims credible in that regard.

  • 48. mjnichol  |  July 29, 2014 at 2:43 pm

    I would argue that those courts (just like SCOTUS) were using rational basis "with bite" rather than plain rational basis.

  • 49. FredDorner  |  July 29, 2014 at 2:48 pm

    "I'm curious on what basis you think it's blatantly unconstitutional."

    Arbitrariness for one, as well as an equal protection violation. Assuming for the sake of argument the premise to be true (that marriage costs the state), the state could save a lot more money by denying marriage to straight couples rather than targeting a small minority for unequal treatment. It could probably "save" just as much money by denying marriage to redheads or the left-handed.

    For the same reasons it would be equally unconstitutional to deny tax refunds to gays, even though the state could more certainly save money by doing that.

  • 50. BenG1980  |  July 29, 2014 at 2:50 pm

    Actually governments legally discriminate against specific groups all the time in order to save or raise money. Just read the Internal Revenue Code for countless examples. It's only illegal if the discrimination violates a constitutional right (e.g., due process or equal protection) or can't pass rational basis review.

  • 51. mjnichol  |  July 29, 2014 at 2:53 pm

    Valid point, but I think we differ on how deferential rational basis is. I would argue that rational basis has never really been used to decide a case involving a class of people (whether gay people, hippies, etc.). It's mostly been used for economics-based cases.

  • 52. sfbob  |  July 29, 2014 at 2:53 pm

    It would appear that Abbott is of the opinion that any argument which can be articulated is sufficient to meet the standard of rational basis even if the argument is scarcely plausible.

    "The district court's contrary conclusion rests on a misapplication of rational basis review. Rational-basis review does not require a precise means-end fit between a law and its stated objectives, and it does not require a State to produce evidence that a law will achieve its objectives. Nor is a State required to show that same-sex marriage will under-mine the State's interests in encouraging responsible environments for procreation; it is enough if one could rationally believe that opposite-sex marriages will advance the State's interests in procreation to a greater extent than same-sex marriages. The district court never denied that one could rationally hold this belief."

    There are of course more problems with this than are worth fully covering. The first is that the actual purpose of marriage is not what Abbott claims it is and a second is that his argument even on that basis is almost certainly not valid.

  • 53. Rick55845  |  July 29, 2014 at 2:54 pm

    What money will I get from Texas when it recognizes my marriage?

  • 54. sfbob  |  July 29, 2014 at 2:55 pm

    The argument only makes sense if one assumes that any goal articulated by or on behalf of the State is "legitimate."

    It comes down to an argument that is no more substantive than "we don't want to and you can't make us."

  • 55. sfbob  |  July 29, 2014 at 3:03 pm

    That is likely to be the case if you and your spouse are both employed, but you must keep in mind that there are other aspects to the financial implications of marriage as well, not all of which will apply in any given case. For example:

    One spouse is employed, the other is not. In a non-equality state, each spouse's income is considered separately in determining eligibility for things like Medicaid. In a marriage equality state, the incomes of both spouses (including unemployment benefits) would be added, potentially rendering the unemployed person ineligible for Medicaid and thus saving the state some money.

    In addition, employers incur costs by having to account for benefits to couples whose marriages are not recognized. This ends up being in part a cost to the employer but can also wind up having implications for the employer's tax liability. Further the cost savings of being married may well result in additional income available to the couple for spending on consumer goods and services, thereby contributing to the local and state economy.

  • 56. Steve  |  July 29, 2014 at 3:07 pm

    Depends in your income and employment situation. There are all kinds of benefits and tax breaks if you're in the right income bracket. Which usually happens when only one partner works and the other has little to no income. Health care is a huge benefit too, because employers will cover one's spouse.

  • 57. Rick55845  |  July 29, 2014 at 3:09 pm

    I live in Texas. My husband and I were married in New Mexico earlier this year. I continue to hope that the 5th will rule in our favor after considering all the briefs and arguments presented to them. There have been many rulings on marriage equality in our favor by state and federal district court judges, and now by two federal courts of appeal, in the last year. Collectively, the reasoning and opinions in our favor have been quite strong. The two circuit court dissenting opinions were laughably lame and transparently bigoted. It's difficult for me to imagine that many more circuit court judge will suspend reason and vote against us.

  • 58. BenG1980  |  July 29, 2014 at 3:09 pm

    I personally agree with those reasons, but they're the same arguments we're using to oppose the marriage equality bans themselves. If the 5th Circuit decides that due process and equal protection don't apply to the bans, then I doubt it would have any particular problem with the state's spending argument on any other constitutional grounds because the state would be treating all similarity situated (married vs. unmarried) couples the same. The arbitrariness argument could work against the bans, but not against treating married couples differently than unmarried couples.

    I just don't see how the one argument is any more blatantly unconstitutional than the rest.

  • 59. FredDorner  |  July 29, 2014 at 3:24 pm

    " I think we differ on how deferential rational basis is."

    Fortunately SCOTUS already found in Cleburne that rational basis review isn't toothless and that treating one group of persons differently from another must reasonably be related to a legitimate state purpose. So far the courts haven't found any state's claims in regards to their marriage bans to be credible.

    Also it seems odd that you claim to be gay but are channeling the arguments of bigots. Are you a re-reg of that TKinSC troll?

  • 60. sfbob  |  July 29, 2014 at 3:25 pm

    I believe this was taken up in the Michigan case. You'll recall that the original suit was not about marriage but about the ability to adopt jointly. The judge noted that there was no case because the couple were not married, and the state did not permit unmarried couples to adopt. The judge suggested it would be best for the plaintiffs to challenge the state's marriage amendment; since marriage was a requirement for a couple to adopt, he couldn't rule in their favor if they weren't married, but could do so (and eventually did) if they showed they were impermissibly prevented from marrying and therefore qualifying to adopt jointly.

    There is a difference between treating married and unmarried couples differently because a couple does not chose to avail themselves of marriage, and denying couples a benefit because they're unable to marry.

  • 61. BenG1980  |  July 29, 2014 at 3:28 pm

    Yes, that's exactly the point I was trying in vain to articulate. Thank you for expressing it more clearly!

  • 62. FredDorner  |  July 29, 2014 at 3:36 pm

    "Actually governments legally discriminate against specific groups all the time in order to save or raise money."

    Of course they do, but for that discrimination to be constitutional it must further a legitimate objective and be applied consistently so that it doesn't differentially impact similarly situated persons. So far all the arguments the states have offered about marriage utterly fail that test. For example you couldn't deny gay couples a "procreation tax credit" on the basis that they can't procreate while simultaneously granting that credit to infertile straight couples.

  • 63. Margo Schulter  |  July 29, 2014 at 3:40 pm

    The Texas brief does have some predictable arguments with which we’re familiar from lots of these cases, like “responsible procreation,” but also what are at least in my experience some unique touches.

    First, the idea that “same-sex marriage isn’t in the Constitution, so mandating it under the Fourteenth Amendment violates Article V by imposing a constitutional amendment on the States” is a bit creative. I wonder what effect such a wording would have on Justice Kennedy if the Fifth Circuit writes in this way, but the logic suggests that SCOTUS marriage jurisprudence at least since Loving has been an act of judicial usurpation in “inventing new rights.”

    For example, where does the Constitution say that parents owing child support have a “right to marriage,” the holding of Zablocki v. Redhail (1978)?

    There’s also a bit of a new angle on that old standby, Baker v. Nelson. As usual, we get a refusal to recognize that while a summary affirmance or dismissal was a judgment on the merits (unlike a denial of cert., which the Court might have preferred in many of the relevant cases), it has less precedential value over the years and decades than a holding reached after a full hearing. So far, that’s par for the course: disregarding the “doctrinal developments” exception, and quoting language SCOTUS has used to that its precedents reached after full briefing and argument are binding on lower courts until SCOTUS says otherwise, no matter how much recent cases may seem to point in a different direction. What’s new, you may ask.

    What’s new is the wrinkle that Texas introduces: even if marriage bans are now a substantial federal question, with Baker v. Nelson no longer valid on that point, the case is still binding precedent that the bans are constitutional! (see numbered p. 30 of brief, identified at the top of page as p. 42 of the document).

    In short, as the drama continues, Texas seems to have set a new benchmark when it comes to jumping the jurisprudential shark.

  • 64. BenG1980  |  July 29, 2014 at 3:40 pm

    I totally agree with you, assuming someone has asked the court to immediately take up the Denver/Adams County case and it has ignored the request. Alternatively, the court could be signaling it would take that case too, if a party would simply ask.

  • 65. RQO  |  July 29, 2014 at 3:41 pm

    I believe the plaintiffs' attorney in the Brinkman case DID ask the Supreme Court to hear ME expeditiously while AG Suthers did not (rather pointedly), and the SC declined while simultaneously staying the lower court's order. Hate to say this, but their are recent/current examples of cases – school funding and school vouchers – where the CO SC has taken eons.

  • 66. ebohlman  |  July 29, 2014 at 3:43 pm

    He's legitimately playing devil's advocate: he's said previously that none of the anti-marriage arguments are good. It's just a thought exercise to see how our arguments would fare under simple rational basis (as Abbott claims should apply) rather than Moreno/Cleburne/Romer "rational basis with bite".

  • 67. BenG1980  |  July 29, 2014 at 3:51 pm

    I think that's exactly what I said in the remainder of my reply above. :)

  • 68. brandall  |  July 29, 2014 at 4:01 pm

    Brinkman – "Also on 7/14, AG Suthers filed a notice of appeal of the merits of these cases to the Colorado Supreme Court, and sought a stay (of the issuance of licenses in Denver and Adams County) pending appeal via emergency motion. On 7/18/14, the Colorado Supreme Court en banc granted the state’s emergency motion for a stay pending appeal, “in light of the stay entered by the Trial Court.”"
    https://www.aclu.org/lgbt-rights/same-sex-marriag

  • 69. Margo Schulter  |  July 29, 2014 at 4:02 pm

    Fred Dorner, your comment ties in beautifully with a point concerning the Texas brief, which goes to possibly unprecedented lengths when it comes to watering down “rational basis.” And your reference to Cleburne is exactly on point!

    What Justice Kennedy can be expected to do, whether we call it “rational basis with bite” or “fluid nonternary review (i.e. not divided into three discrete tiers of scrutiny),” is carefully to weigh the equities at stake on each side. In Cleburne, people with intellectual disabilities were the class in question, not itself a “suspect class” because such disabilities can affect one’s ability to contribute to society.

    However, the human impacts of an ordinance discouraging facilities for people with intellectual disability — as opposed to less stringent regulation for centers addressing the needs of senior citizens, for example — could be considered and weighed against the alleged justifications for the discrimination.

    This has very much been Justice Kennedy’s approach in Romer, Lawrence, and Windsor. Just any conceivable rationale won’t do!

    One critically important focus of Justice Kennedy in Windsor that the State of Texas blithely ignores is the well-being of all children, including those of same-sex couples who suffer a real dignity harm far outweighing any hypothetical economic “efficiency” of giving marriage benefits only to couples deemed most likely to procreate.

    Under Kennedyesque review, however we describe it, there is precisely the weighing of the known human consequences of discrimination against any alleged justification, with a judicial discretion to disregard post hoc or invented rationales.

    This isn’t exactly the same as finding animus, although it’s often the elephant in the room: it’s saying that to let these flimsy justifications outweigh or eclipse the harm to same-sex couples and their children would violate the meaning of the Fourteenth Amendment Equal Protection Clause.

    Also, what Texas doesn’t care to acknowledge is that even apart from the fundamental right to marriage, same-sex marriage touches on intimate relationships and decisions where minimalism rational basis is inappropriate. That’s where Justice Kennedy’s landmark precedents are totally applicable and of impressive weight.

    Minimalistic rational review remains relevant for economic types of classifications not impinging on such privacy and relationship interests — and in such areas, it does trim back on some of the laissez faire ideology once read into the Constitution by SCOTUS in the name of “substantive due process.” But the sphere of Griswold v. Connecticut (1965), including marriage and (non)procreation as its starting point, has served as a realm for a new flowering of substantive due process. Here Texas may be less wise than King Canute, who commanded the sea to recede only to prove the limits of his regal powers.

  • 70. Steve  |  July 29, 2014 at 4:10 pm

    I still think that was a somewhat stupid argument. There is no good reason to not allow an unmarried couple in a committed relationship to adopt. It's precisely the adoption that creates a legal connection, although not between the couple itself, between both parties and the child. And the adoption contract can be used to pursue legal claims (e.g. child support, custody) in case they split up.

    Sure, two random people shouldn't be able to adopt. But adoption agencies make case to case decisions anyways and take lots of factors into account. They can easily see if a couple has a relationship that would be a good place for a child. A piece of paper doesn't change anything there.

  • 71. sfbob  |  July 29, 2014 at 4:15 pm

    There is probably a more accurate term for me to have used in my final sentence than "unable." For example, an adult and a minor are "unable" to marry each other because the minor is statutorily considered incapable of giving consent. A single person and a person currently in another legal marriage are "unable" to marry (each other) because one party already has a legally-recognized relationship with a third party to whom they are not biologically related. And a person already related to a second person is "unable" to marry that other person (depending on where the state draws the line) because…well I actually think the most facially neutral way to describe it is that they already have a legally-recognized relationship to each other, similar to that of someone currently married to a third party only with the addition of there being some sort of pre-existing familial relationship, more or less attenuated… and in each case the couple's lack of ability to marry is not considered constitutionally suspect.

    Perhaps it is better to say that there is a difference between treating married and unmarried couples differently because a couple does not chose to avail themselves of marriage and denying couples a benefit because they are illicitly prevented" from availing themselves of the right to marry.

  • 72. davepCA  |  July 29, 2014 at 4:18 pm

    No, in this case the law is still not legitimate regardless of whether SCOTUS recognizes LGBTs as being entitled to protections as a distinct 'class'. For example, people with green eyes are not considered a 'class' of people who have been historically subjected to discrimination, or who are lacking political power as a group, etc., but that doesn't mean you can make a law that singles them out and disadvantages them, and then try to justify this as 'advancing the states interest in saving money' or whatever. The line which is drawn around the targeted group by the law has to make sense. And laws that deny protections of civil marriage to same sex couples fail that test. They are both irrationally under-inclusive and irrationally over-inclusive when the justifications for them are based on arguments relating to procreation, which is a big smoking gun that those aren't the real reasons the law was enacted at all. They are post-hoc rationalizations that fail logical scrutiny.

  • 73. BenG1980  |  July 29, 2014 at 4:18 pm

    I agree. Unfortunately there's no additional constitutional ban on bad public policy. lol

  • 74. sfbob  |  July 29, 2014 at 4:24 pm

    In states where adoption by unmarried couples is permitted there are, I believe, standards by which the state determines if the relationship is sufficiently "serious" that the couple could be relied upon to provide adequate care and support for the child.

  • 75. sfbob  |  July 29, 2014 at 4:34 pm

    As I understand it, the standards for rational basis are to pretty low when mere economic interests are at stake (that is when one side in a case either gains or loses a financial interest at the expense of the other) but, as articulated particularly in Romer vs Evans, are to be viewed as requiring a higher standard of means-ends connection when issues of rights of various kinds are the issue.

  • 76. RnL2008  |  July 29, 2014 at 4:48 pm

    The State's recognition and encouragement of opposite-sex marriages increases the likelihood that natural and procreative couples will produce children, and that they will do so in the contexts of stable lasting relationships.

    How does DENYING the right to marry for Same-Sex couples or deny recognizing their legal marriages from other states have ANY affect on heterosexuals? The statement that is above my question comes from the defendants brief for the 5th Circuit!!!

    Tell me something folks…..has my marriage affected ANY of you? Has my being married caused you to be more/less responsible sexually? If the answer is NO, than this statement is BIG TIME BS!!!

  • 77. Eric  |  July 29, 2014 at 5:02 pm

    At least the court refers to them as "marriage licenses [issued] to same-sex couples", rather than "same-sex marriage licenses."

  • 78. davepCA  |  July 29, 2014 at 5:06 pm

    This comment identifies one of the main flaws that is central to the brief's argument. The trial is not attempting to determine whose view about "what marriage is" is the "right" one, or determine in what ways marriage is beneficial to opposite sex couples. The brief pretends that this were the case, but it is not so.

    The trial is specifically examining ONE LAW that was created specifically to bar same sex couples from accessing civil marriage and all of the rights, protections and responsibilities that flow from this, and determining whether the effect of that law results in an unconstitutional violation of the rights of the affected citizens.

    And since opposite sex couples had the exact same encouragement to marry, stay married, and procreate responsibly both before and after the law was enacted, all of those justifications for the law are irrational and false. The REAL effect of the law, and thus the real PURPOSE for it, is that it disadvantages same sex couples and denies them legal treatment that is granted to others, and this denial fails to advance a legitimate states interest. It boils down to discrimination for its own sake.

  • 79. sfbob  |  July 29, 2014 at 5:33 pm

    I agree it's a stupid policy which doesn't apply in all states. In fact the Arkansas Supreme Court determined a number of years ago that their state's ban on gay couples adopting was unconstitutional (based entirely on state constitution arguments). And this despite the fact that Arkansas still has a marriage equality ban in its constitution, though it's been overturned at the district court level, and otherwise provides for no legal recognition for gay or lesbian couples. So clearly there is no requirement that a couple be married and states that don't permit us to marry can create criteria for allowing unmarried couples (gay or straight) to adopt.

  • 80. brandall  |  July 29, 2014 at 5:39 pm

    IN – ACLU won’t file a lawsuit to compel the state to recognize the same-sex nuptials performed in the Hoosier State when marriage equality was briefly legal there because of the U.S. Supreme Court’s decision to block state benefits to same-sex couples married in Utah.

    “If we won, a stay would likely be entered immediately and nothing would change."

    I'm sad to see we are not fighting on every front, every day. But, just as Cooper in NC sees the writing on the wall to not waste tax dollars, our ME organizations certainly need to do the same when the answer is now to wait for SCOTUS cert (or no cert).

    See more at: http://www.washingtonblade.com/2014/07/25/aclu-wo

  • 81. SeattleRobin  |  July 29, 2014 at 5:47 pm

    The central issue there is how the question is being framed. If you frame it as, the state and voters believe that offering marriage to couples who can naturally procreate is in the best interests of the state, that's not a flawed argument and under rational basis it has legs.

    But the laws being challenged don't do that. Instead they specifically ban gay people from access to marriage. So the correct question isn't why is the state offering marriage to natural procreators, it's why is the state banning only one subset of non-natural procreators. And there's no good answer to that question, even under rational basis.

    The states have figured this out by now, so they have to try and reframe the question to make their case. So in a sense the state is correct that people could rationally believe that offering marriage to straight people better advances the state's interests in procreation. Their problem is that the bans in question don't do that. The bans have zero effect on what is provided to straight couples.

  • 82. SeattleRobin  |  July 29, 2014 at 5:53 pm

    That line is never going to get old.

  • 83. RnL2008  |  July 29, 2014 at 6:02 pm

    Nicely stated dave……..I totally agree with ya, but I do believe that the 5th just might find some strange way to rule against us!!!

    I DON'T see how, but then, that HASN'T stopped the anti-gay bigots so far!!!

  • 84. KahuBill  |  July 29, 2014 at 6:06 pm

    not to be cynical but is the CO SC an elective office and, if so, is anyone up for re-election this fall?

  • 85. F_Young  |  July 29, 2014 at 6:10 pm

    Off-topic: "Change is possible: Former 'ex-gay' activist Yvette Schneider 'celebrates the worthiness and equality of all people'"

    Part 1: https://www.glaad.org/blog/change-possible-former

    Part 2: https://www.glaad.org/blog/qa-former-ex-gay-activ

    Thanks, Box Turtle Bulletin: http://www.boxturtlebulletin.com/2014/07/29/66126

  • 86. brandall  |  July 29, 2014 at 6:11 pm

    AG Suthers is not seeking reelection. But, that does not mean he won't run for some other position in the future.

  • 87. KahuBill  |  July 29, 2014 at 6:22 pm

    I was wondering if the court itself is elected in CO

  • 88. Sagesse  |  July 29, 2014 at 6:47 pm

    Are Anti-Gay Activists Bigots? A Brilliant, Disturbing New Book Says Yes. [Slate]
    http://www.slate.com/blogs/outward/2014/07/29/ste

    A different take on the question. Sounds like it's worth reading.

  • 89. brandall  |  July 29, 2014 at 6:55 pm

    The Justices are appointed by the Governor of Colorado to serve a term of ten years after an initial two year term from a list of three finalist candidates nominated by a Blue Ribbon Commission established by the state constitution.[2] At the end of each term, Justices face a retention election at which voters can choose to retain or not retain a Justice
    http://en.wikipedia.org/wiki/Colorado_Supreme_Cou

  • 90. StraightDave  |  July 29, 2014 at 7:09 pm

    Can anyone explain what Abbott is referring to in the TX appeal?

    "Finally, there is no guarantee that Kitchen will produce a ruling on the merits, as there are jurisdictional issues lurking in that case"

    First I've heard of anything like that. I thought Kitchen was a pretty clean case.

  • 91. Margo Schulter  |  July 29, 2014 at 7:14 pm

    To understand the Texas brief, reading the District Court decision in Sevcik v. Sandoval is very relevant and helpful! In fact, that’s the source for some of the most frank and many would say also outrageous passages as to “rational justifications” for marriage bans.

    Of special note are pp. 31-32 and n. 7 (slip opinion, November 26, 2012), where Judge Robert C. Jones writes concerning civil marriage: “Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.” The pre-Windsor decision in Hawai`i, Jackson, is cited at this point by the Court.

    But footnote 7 is even more remarkable, in pointing out that the issue isn’t whether permitting same-sex couples to marry would actually affect the rights of different-sex couples in any way, but whether these heterosexual “spouses or prospective spouses might feel this way” in some “conceivable” scenario where such reactions (not necessarily themselves having any rational basis!) “might have detrimental societal effects.”

    The footnote continues: “One might argue by analogy that the expected reaction of bigots would be an insufficient reason for a state to refuse to implement policies of racial equality, but the analogy would be flawed, because race-based distinctions command strict scrutiny under the Equal Protection Clause, whereas sexual-orientation-based restrictions command only rational basis scrutiny.”

    That’s an indication of how “rational” these bans are!

  • 92. RQO  |  July 29, 2014 at 7:15 pm

    Brandall has the 1966 process described. This Nov. only Justice Boatwright (appointed 2011) is on the ballot. Given the silence of R politicians on ME lately, there is zero possibility he'd be recalled if the S.C. proclaimed ME tomorrow.

  • 93. KahuBill  |  July 29, 2014 at 7:16 pm

    Thanks for your reply. I googled the matter and found out that Justice Boatright's and Justice Marquez's terms expire in 2015 and are up for retention election in 2014. The filing deadline is August 4 and the election is November 4. According to some articles I browsed, the Colorado Supreme Court is one of the most politicized Courts in the US. Cuts both ways I guess.

  • 94. Rick55845  |  July 29, 2014 at 7:34 pm

    Perhaps he confused Kitchen with Bishop v Smith (Oklahoma)?

  • 95. RQO  |  July 29, 2014 at 7:36 pm

    However, the comment that AG Suthers may run for Mayor of Colorado Springs perfectly explains why he is doing everything to delay ME (without the social embarrassment of saying he's against it). CO Spgs. is where the No-tax TP's, Focus on Family, Air Force Academy and 3 bases, anti gun limit, you name its are based, with county judges and sheriff a bit shady to boot. Ronald Reagan would be primaried from the Right there.

  • 96. RQO  |  July 29, 2014 at 7:38 pm

    I did, too. I suspect this is the equivalent of "be very, very afraid!!!".

  • 97. StraightDave  |  July 29, 2014 at 7:42 pm

    It is not unthinkable for them to adopt the TX brief wholesale and put their names to it. All it takes is 2 Kelly/Niemeyer clones and it's done. If one can inhabit the 10th and the 4th, then surely two such can be found in the 5th. And I wouldn't expect en banc to fix things, either.

    I think the 5th is too late to the party to make much difference. Either Kitchen closes the books next June or SCOTUS keeps on denying cert until TX justly gets to be the final nail in the coffin in June'16. By then, there should be only about 10 states left.

  • 98. andrewofca  |  July 29, 2014 at 7:57 pm

    My best friend and his partner got married the day after that – on June 17th. It was my honor to be their best man. That was a beautiful summer in California.

  • 99. RnL2008  |  July 29, 2014 at 8:30 pm

    That's a scary thought that the 5th could have clones of Kelly and Niemeyer, but it is possible…..and I agree with your assessment, either Kitchen is the closer in June of 2015 or another case could close it out in June of 2016…….but either way, this issue will come to some conclusion by SCOTUS within the next year or so!!!

  • 100. mjnichol  |  July 29, 2014 at 8:32 pm

    I would be a funny kind of troll if I'm against gay rights, but I'm calling the Texas brief silly.

    Do you really want all of our rights to be based on simple rational basis? It is so easy for future SCOTUS justices to come along and overturn such a judgement with their nuanced interpretation of rational basis. Some judges give huge deference to rational basis.

    We have a much stronger case if we argue that rational basis doesn't cut it and if you really believe we deserve equal rights, you need to afford us heightened scrutiny.

  • 101. Mike_Baltimore  |  July 29, 2014 at 9:03 pm

    One way Texas could save money (if marriage does, in fact, cost the state money, which it almost certainly does not):

    Marriage licenses are counted, and when a divorce happens in El Paso, or Houston, or San Antonio, etc., the next couple wanting to get married can get married. Similar to the waiting list for tickets to sporting events (season or individual events).

    The same would apply when a marriage dissolves because of death of one or both in the marriage.

    Since Texas does not have a system to allocate marriage licenses, but distributes them to whomever is qualified and applies, the argument about marriage costing the state money may apply (but I doubt it). And even if it does cost the state money, the state ignores that cost.

    But even if marriage does cost the state money, Texas is NOT using that as an excuse to 'ration' marriage licenses. If it did, you might have a much stronger argument.

    And yes, rational basis gives deference to lawmakers (but not "extreme deference"). There still is a requirement, even for rational basis, that there is a reason for the law. The law can't be 'out of thin air', but, according to the Legal Information Institute (part of the Cornell University Law School):
    "To pass rational basis review, the challenged law must be rationally related to a legitimate government interest."

    Since Texas doesn't 'ration' marriage licenses, what is the legitimate government interest for the bigoted laws? And/or if marriage DOES cost the state money, and Texas is worried about it's 'limited amount of money', why doesn't it use that as an excuse to ration, or even eliminate, marriage licenses? That ts doesn't ration marriage licenses to heterosexual couples is a pretty good indication that if marriage does, in fact, cost the state money, the benefits of those marriages equal or exceed that loss.

    And I, for one, WILL argue, with a straight face, that the Romer, Lawrence, and Windsor cases were decided by SCOTUS on rational basis.

  • 102. Ragavendran  |  July 29, 2014 at 9:20 pm

    This reminds me that this same "financial" argument was made before (in the context of rational basis) and rejected by the Alaska Supreme Court in the recently decided Harris. In Schmidt, the precedent that this case heavily relied upon, the justices rejected the idea that the relevant similarly situated classes were married and unmarried couples (due to the Marriage Amendment getting in the way) and held that "the correct classes for comparison are same-sex couples who wish to marry and opposite-sex couples who wish to marry, not married couples and unmarried couples." Of course, the Alaska case is different because the lawsuits were targeted at specific benefits being denied to same-sex couples, not the Marriage Amendment itself, so the Justices had to work around it.

  • 103. debater7474  |  July 29, 2014 at 9:24 pm

    There was a question over whether there was jurisdiction because the county clerk did not appeal. However, all three members of the panel agreed that they jurisdiction. That's why Kelly's opinion was considered a dissent in part and concurrence in part.

  • 104. Fortguy  |  July 29, 2014 at 9:24 pm

    Be afraid. Be very afraid. Meet Judge Edith Jones

  • 105. FredDorner  |  July 29, 2014 at 9:25 pm

    "We have a much stronger case if we argue that rational basis doesn't cut it and if you really believe we deserve equal rights, you need to afford us heightened scrutiny. "

    Based on the history of persecution of gays it's pretty clear that sexual orientation should be a suspect class. But since it's not yet and these bans all fail a rational basis test anyway, they really should be struck down on that basis.

    Absent a circuit split if SCOTUS decides to hear one of the appeals from the states I suspect it'll be to clarify the implicit heightened scrutiny standard used in Windsor.

  • 106. Mike_Baltimore  |  July 29, 2014 at 9:34 pm

    Slight correction – AG Suthers is barred by the Colorado term limit amendment to the state constitution (Amendment 5, voter approved in 1990) from running for the AG position in 2014 (he served two consecutive, elected terms, but the amendment does not bar him from running for the AG position in 2018, 2022, etc.).

    That same amendment doesn't bar him from running for another office this year.

  • 107. Ragavendran  |  July 29, 2014 at 9:37 pm

    I agree in principle, but consider, from what Judge Holmes (who many of us would agree is a rational and reasonable judge) said during oral argument, we would have lost at the Tenth Circuit had he decided to apply rational basis. And we're now talking about the Fifth Circuit. Come on, there can be no question we'd lose under rational basis in the Fifth Circuit, which is so deferential to Texas that it might as well rule summarily in their favor without oral argument.

  • 108. Waxr  |  July 29, 2014 at 9:39 pm

    "Cases are often more complex than judges and lawers think, and their legal training gives them no comparative advantage in resolving the complex value comments and empirical questions that go into deciding questions such as whether same-sex marriage should be legal."
    page 34.

    It is certain that the judges deciding this case will disagree with the above statement. They know that there are some things which should never be up to the voting public. They also know that they have a better understanding of the law than either the public or politicians. The brief, as a whole, is an attack upon the judiciary. Why would they risk alienating the judges?

    The brief is written for the public. Not the Court. The politicians already know that they are going to lose in court, but in an election year, they want a built in excuse for losing.

  • 109. Ragavendran  |  July 29, 2014 at 9:52 pm

    I can't believe the Fifth Circuit actually ruled pro-abortion today: http://www.scotusblog.com/2014/07/last-abortion-c

  • 110. debater7474  |  July 29, 2014 at 9:55 pm

    It was 2-1, and it was a bit of an extreme case: the state essentially passed a law effectively outlawing abortion in the entire state. Given Roe V. Wade, it seems almost impossible to say that the law is constitutional without directly ignoring the supreme court. However, even given the unique nature of the circumstances, this ruling could still be overturned en banc. No one should take it as a sign that the fifth circuit will be reaching for the pride flags when the marriage equality cases reach them.

  • 111. Mike_Baltimore  |  July 29, 2014 at 10:00 pm

    They can't. According to CONservatives, US law and US court decisions shall not be based on 'foreign' laws, and since the Magna Carta is British, that would make it a 'foreign' law.

    (Never mind that almost all US law is actually based to some extent on the ideas and principles of the Magna Carta.)

  • 112. RnL2008  |  July 29, 2014 at 10:54 pm

    Maybe there is hope in the 5th after all<crossing fingers>

  • 113. Zack12  |  July 29, 2014 at 11:08 pm

    I agree, to put it bluntly, the 5th circuit is filled with people even further to the right of Judges Kelly and Niemeyer.

  • 114. sfbob  |  July 29, 2014 at 11:08 pm

    Not only does withholding marriage from gay and lesbian couples not do what the state is trying to argue it does, the framing is out of keeping with how marriage laws generally work.

    Unlike a driver's license, for which one must qualify, the underlying assumption is that all citizens are entitled to marriage as a basic right and the reasons for withholding that right from a given person (or couple if you prefer) must be very narrowly construed.

  • 115. RnL2008  |  July 30, 2014 at 12:59 am

    Unfortunately, even though Baker vs Nelson DOESN'T apply to ANY case where the Same-Sex couples are ALREADY married…and it was applicable to ANY of the lawsuits in California, but that sure as hell DIDN'T stop the anti-gay folks from bringing it up!!!

  • 116. F_Young  |  July 30, 2014 at 3:22 am

    Forty African heads of state meeting in Washington:
    "Obama Urged to Address LGBT Rights in Africa. Advocates issue report on the dreadful state of LGBT rights in Africa, as world leaders and leading figures from the continent prepare for the US-Africa Leaders Summit'" http://time.com/3051783/obama-urged-to-address-lg

  • 117. Steve  |  July 30, 2014 at 3:36 am

    I wish other judges would quote it more often

  • 118. F_Young  |  July 30, 2014 at 5:09 am

    "No Human Right To Gay Marriage, European Court Rules"
    http://www.inquisitr.com/1377179/no-human-right-t

  • 119. MichaelGrabow  |  July 30, 2014 at 5:40 am

    See ruling on the abortion clinic yesterday.

  • 120. hopalongcassidy  |  July 30, 2014 at 6:53 am

    That story comes from Breitbart…I can not find any reference to this 'decision' in the court's page…
    http://www.echr.coe.int/pages/home.aspx?p=caselaw

  • 121. BillinNO  |  July 30, 2014 at 6:55 am

    Mike, my Conservative alter-ego would bristle at the thought that the law-ancestry we share (with Britain at the very least) would be off limits. We should be allowed to pull all the anti-gay animus we can find from Magna Carta and deploy it in whatever opportunistic- if incomprehensible- manner we find convenient. Its a bit like disowning one's grandparents to say we can't root our law and our bigotry in Magna Carta. If conservatives said that I'm sure they didn't really mean it.

    And I'm not sure what you make of our Code Napoleon here in Louisiana. Ceci n'est pas Americain non plus.

  • 122. BenG1980  |  July 30, 2014 at 7:08 am

    Bill, that's right. First-year law students routinely begin their legal educations by reading a handful of very old English cases for exactly that reason — American common law originated in English common law.

    While anything written in the Magna Carta wouldn't be binding on a U.S. court, just as the Articles of Confederation would not, I could imagine instances in which both could be used persuasively. I think what most conservatives like Scalia really object to is using modern foreign law in modern American cases.

  • 123. TDGrove  |  July 30, 2014 at 7:10 am

    Here is a link to an article from a friendlier source. This happened a couple of weeks ago but the catholic/culture warrior types just picked it up. The ruling reinforces other rulings the Court has made on the issue and in this same case. They are unwilling to force countries in Europe to legalize marriage equality. Didn't find the ruling yet but it is a legitimate ruling.
    http://www.pinknews.co.uk/2014/07/17/european-hum

  • 124. RemC_in_Chicago  |  July 30, 2014 at 7:49 am

    Love me that Judge Friedman. Bless his heart (really).

  • 125. JayJonson  |  July 30, 2014 at 7:52 am

    Yvette Schneider is simply a huckster who has discovered that the money preaching "ex-gay" conversion is drying up, so she has switched sides. Naturally, she has a new book to sell. I am amazed at the gullibility of people at Box Turtle Bulletin and GLAAD.

  • 126. BenG1980  |  July 30, 2014 at 7:55 am

    Did Judge Friedman (Michigan) say something like that, too? I think Steve was paraphrasing Judge Heyburn (Kentucky) who wrote: "These arguments are not those of serious people."

  • 127. RemC_in_Chicago  |  July 30, 2014 at 8:07 am

    Shoot, you're right. I had it in my head that it was Friedman, when he struck down the Regnerus study. But what he said was this: "The Court finds Regnerus's testimony entirely unbelievable and not worthy of serious consideration." Happy to join the Heyburn fan club as well.

  • 128. StraightDave  |  July 30, 2014 at 8:08 am

    Scalia sometimes objects to using modern American law in modern American cases, preferring to stick with the 18th century version.

  • 129. BenG1980  |  July 30, 2014 at 8:13 am

    Haha, well sadly that's also true!

  • 130. BillinNO  |  July 30, 2014 at 8:24 am

    Very, very old cases- like Wulfgifu v. Aelfwynn, Ethelberga et al.

  • 131. SeattleRobin  |  July 30, 2014 at 12:24 pm

    Yeah. The article she wrote and then her replies to the Q&A just seemed a bit off to me. Other than saying reparative therapy doesn't work, she wasn't at all critical of the groups she'd worked for. And how she phrased things was oddly dispassionate. It sounded more like she was just tired of the whole thing rather than having gone through a real change of heart.

  • 132. mjnichol  |  July 30, 2014 at 12:47 pm

    There are some really good arguments that rational basis is enough to overturn the Indiana marriage ban in the latest filing, especially around the over/under inclusiveness issue. I'm quite persuaded:
    http://equalityontrial.com/2014/07/30/read-plaint

  • 133. Sagesse  |  July 30, 2014 at 5:45 pm

    Hillary Hall Thwarted By Colorado Supreme Court – But Not Without Our Thanks [New Civil Rights Movement]

    "Since Hillary Hall took her stand for equality, Boulder County issued 202 licenses to same-sex couples. That's 404 thankful people."
    http://www.thenewcivilrightsmovement.com/hillary_

  • 134. Dr. Z  |  July 30, 2014 at 6:07 pm

    In Arizona as well, when they passed a law revoking DPs on the grounds that they were trying to cut budgets. That didn't fly in the federal courts, and neither will this argument by Texas (though the Fifth may well latch onto it before they are overruled by SCOTUS.)

  • 135. Equality On TrialREAD IT &hellip  |  September 9, 2014 at 10:11 am

    […] The opening brief can be read here. […]

  • 136. Spencer Lodge KIDS&hellip  |  September 22, 2014 at 12:37 pm

    Spencer Lodge KIDS

    Equality On TrialREAD IT HERE: Opening brief in Fifth Circuit challenge to Texas same-sex marriage ban ยป Equality On Trial

  • 137. Equality On TrialMarriage&hellip  |  September 25, 2014 at 2:10 pm

    […] Texas case is further along: the opening brief has been filed in the Fifth Circuit. The state’s brief is currently due by October […]

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