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Ninth Circuit: Idaho marriage case to proceed with three-judge panel

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals has denied Idaho’s request to hear Latta v. Otter, the challenge to the state’s same-sex marriage ban, with a panel of eleven judges. The state asked the court for an initial en banc hearing; in most circuit courts, that would mean all of the judges in the circuit, but since the Ninth Circuit is so large, en banc review consists of a panel of eleven judges.

Latta will be heard on September 8 along with cases from Hawaii and Nevada. Each side in the Idaho case will have 30 minutes, while each side in the Nevada case, Sevcik v. Sandoval, will have 15 minutes, and each side in Jackson v. Abercrombie, the Hawaii case, will have 10 minutes.

The identity of the judges on the panel will be announced on the Monday of the week preceding the argument.

Thanks to Equality Case Files for these filings

Updated to add link to rule about the panel announcement

102 Comments

  • 1. Zack12  |  August 19, 2014 at 11:47 am

    Hawaii is kind of a moot point isn't it?
    As for the judges, N. Randy Smith ruled against us in Prop 8 so it's a safe bet he would do so again if he is one of the judges.
    Jay Bybee and Carlos Bea have also made it clear they are opposed to gay marriage and have said so in both of the dissents written by the chief bigot of the 9th circuit and one of the judges who can put Scalia to shame in the bigotry department Judge Diarmuid O'Scannlain.
    In case you're wondering, he is the judge that asked for an en banc hearing in Prop 8 as well as Smith Kline solely to delay the equality movement.
    He will not only rule against us but be really nasty in doing so.
    The only good thing is that a negative ruling against us in the 9th will go bye bye in a heartbeat due to En Banc.

  • 2. RnL2008  |  August 19, 2014 at 12:06 pm

    So, could we lose all of the cases being heard that day by this panel? Are they going to ignore the higher scrutiny requirement as well?

    Somehow they won't be hurting the Marriage Equality fight!!!

  • 3. MichaelGrabow  |  August 19, 2014 at 12:08 pm

    Won't the requirement of heightened scrutiny make overturning the decisions virtually impossible?

  • 4. Bruno71  |  August 19, 2014 at 12:12 pm

    Just to be clear, the panel hasn't been chosen yet, right? I think Zack is just laying out the justices most inimical to us. The vast majority of 9th Circuit justices are pro-equality.

  • 5. Ragavendran  |  August 19, 2014 at 12:16 pm

    They obviously can't ignore SmithKline, but there is plenty of BS in Idaho's briefs that offers rationales for distinguishing ME cases from SmithKline that they can just agree with and get around the precedent.

  • 6. DaveM_OH  |  August 19, 2014 at 12:17 pm

    Eww, BS in the briefs.

  • 7. Ragavendran  |  August 19, 2014 at 12:17 pm

    The panel should have already been chosen by now, so they have time to go over the briefs and prepare for argument. They won't be revealed until the Monday of the week preceding argument, in this case, September 1.

  • 8. Roulette00  |  August 19, 2014 at 12:18 pm

    A really unlucky panel could, in theory, find some grounds on which to uphold the ban(s). It would not remain so for long.

    A judge, likely O'Scannlain, tried a sua sponte en banc request on the SmithKline case, hoping to review and reverse heightened scrutiny. The rest of the Ninth didn't bite. Inference: most of the Ninth is okay with their stance on SSM and gay rights. It's a fair bet that if a panel of conservatives tries to bypass heightened scrutiny or otherwise defy Ninth precedent on SSM, that some judge will sua sponte right back and en banc the panel's decision. Chance to overturn: high. It would be, at best, a token defiance on idiot principles, the kind conservatives have excelled at in court of late.

  • 9. Retired_Lawyer  |  August 19, 2014 at 12:20 pm

    Yes

  • 10. Ragavendran  |  August 19, 2014 at 12:22 pm

    Well, if a rogue panel does uphold Nevada's and Idaho's ban, a request for rehearing en banc or an appeal to the Supreme Court are both options to the Plaintiffs. Only when neither happens and the time to do so expires does the opportunity become available for one of the circuit judges to sua sponte request for an en banc rehearing.

  • 11. Zack12  |  August 19, 2014 at 12:27 pm

    The only two judges that agree with him were Bybee and Bea.
    I'm not worried about a negative ruling, just annoyed at the amount of time it would take to overturn it.

  • 12. Zack12  |  August 19, 2014 at 12:29 pm

    Per what Ragavendran said, the panel has already been chosen but we won't know who they are until September.
    If we get a combo of those judges, it will be merely waiting for the negative ruling to come (with whatever crap they can pull out of thin air) and the en banc ruling to overturn it.
    Let's hope that doesn't happen.

  • 13. ranjitbahadur0  |  August 19, 2014 at 12:52 pm

    If a panel were so inclined they need not consider the merits at all.
    They could fall back on Baker v Nelson and rule that federal district courts have no authority over marriage legislation, and overturn all decisions without ever applying scrutiny.

    If the panel were so inclined of course.

  • 14. RnL2008  |  August 19, 2014 at 1:19 pm

    Okay…didn't know that…….thanks for the info!

  • 15. RnL2008  |  August 19, 2014 at 1:19 pm

    So, only a few more weeks to wait it out……got it!

  • 16. RnL2008  |  August 19, 2014 at 1:20 pm

    I agree…let's hope that we get a panel more in our favor!

  • 17. RnL2008  |  August 19, 2014 at 1:21 pm

    Well, so far the Justices have ignored the guidelines for a stay…….somehow….I figure a Judge can pull anything outta of his/her azz….hopefully that doesn't happen!!

  • 18. hopalongcassidy  |  August 19, 2014 at 1:46 pm

    Yes, which is why we should change diapers and politicians often…and for the same reason. πŸ˜‰

  • 19. Alan948  |  August 19, 2014 at 1:48 pm

    Zack12: "Hawaii is kind of a moot point isn't it?"

    The Hawaii case is still ever-so-slightly non-moot because Bob McDermott's claim that the marriage equality law violates the state constitution is still pending in the state courts.

    He lost in the trial court in April, and in July the state supreme court agreed to take the appeal directly (so that people only need to wait for him to lose twice rather than three times), and the opening brief was filed yesterday. It's case no. SCAP-14-0000843.

  • 20. hopalongcassidy  |  August 19, 2014 at 1:48 pm

    They could invalidate rulings from other Circuits? How does that work, exactly?

  • 21. sfbob  |  August 19, 2014 at 1:55 pm

    I don't think that's correct. As far as I know any decision they make would apply only within the 9th Circuit.

    Any decision the panel makes is going to be appealed. The losing side will request a hearing en banc or else file for cert directly.

  • 22. sfbob  |  August 19, 2014 at 1:57 pm

    Listen for the McDermott to be laughed out of court. The amendment passed in 1998 give the state legislature the power to ban or permit marriage equality. The legislature chose to do the latter. End of discussion.

  • 23. Bruno71  |  August 19, 2014 at 2:08 pm

    This was discussed before, but many think the suit is moot anyway. The plaintiffs in the case can now be married in Hawaii, if they weren't already, so they really have no basis on which to ask for relief in court. While the Hawaii marriage situation may change later, the 9th Circuit really has no control over that until and unless it happens. The case should be dismissed as moot.

  • 24. robbyinflorida  |  August 19, 2014 at 2:10 pm

    A great article in Slate about Judge Smith with a link to Maggie Gallagher being pissed off by his "very timid dissent."
    http://www.slate.com/articles/news_and_politics/j

  • 25. Bruno71  |  August 19, 2014 at 2:12 pm

    I think what ranjitbahadur0 meant to say instead of "rule" is that the hypothetical 9th panel could interpret the current situation to be that federal district (and appeals courts) cannot rule on marriage legislation due to a lack of a federal question as a precedent arising from Baker.

  • 26. ranjitbahadur0  |  August 19, 2014 at 2:25 pm

    Yes , what I was pointing out was a way for a 9 Circuit Panel to avoid the requirement of heightened scrutiny if they wanted to.

  • 27. brandall  |  August 19, 2014 at 2:32 pm

    Reading this article from 2 1/2 years ago is interesting and insightful to point out that nothing has changed.

    I love "The dissent has no clothes." True then, even truer now.

  • 28. robbyinflorida  |  August 19, 2014 at 2:48 pm

    Brandall, are there links to the NV and ID briefs?

  • 29. sfbob  |  August 19, 2014 at 2:50 pm

    I suppose that's possible. But the only way that makes sense (and forgive me for repeating myself here) is if one reads Baker as constituting some sort of gag order…a "no federal court may rule on this topic." The reasoning is circular. Baker is a precedent. It can only be changed by a subsequent ruling from SCOTUS. But if no federal court can contest the precedential value of Baker then there's no opportunity for SCOTUS to review the question again.

  • 30. davepCA  |  August 19, 2014 at 2:56 pm

    I am confident in the 9th Circuit. And I'm looking forward to seeing some of you other EoTers at the hearings here in SF on the 8th.

  • 31. Japrisot  |  August 19, 2014 at 2:59 pm

    We already have heightened scrutiny in the ninth circuit.

  • 32. brandall  |  August 19, 2014 at 3:06 pm

    Hey, Judge Sutton! – Wanna watch what happens when you put gay rights up for a vote? #2
    http://www.fayettevilleflyer.com/2014/08/19/tuesd

    Live video NOW: http://www.accessfayetteville.org
    CLICK on the government channel icon at the top right. Ordinance vote is coming up on the agenda

  • 33. Bruno71  |  August 19, 2014 at 3:08 pm

    To be maybe a bit generous to the other side, it may boil down to a difference of opinion on how a court works. Some like Kelly & Niemeyer (and probably Sutton) think courts should strictly and blindly follow SCOTUS precedent (at least when it comes to these kinds of issues that make them uncomfortable…but their disingenuousness is another topic altogether). Others like the dozens of other district courts and the 4th & 10th majorities on those panels feel that courts can take new looks at previously decided issues under new lenses. I'm not sure the other side's version is completely invalid, but I tend to think it's meek and avoidant.

  • 34. Roulette00  |  August 19, 2014 at 3:17 pm

    I disagree that the case is moot, but we shall see.

    The basis for pursuing the suit lies in the wording of Hawaii's constitutional amendment: effectively, the legislature has the power to ban SSM. McDermott's brain-damaged case was that the legislature ONLY had the power to ban, thus did not have the power to un-ban, or the power to not ban, or the power to refrain to ban, as it were. McDermott's case was shot down in court.

    However, that constitutional amendment remains. At any time the Republicans could seize a critical election and wield that power. The lawsuit is to strip Hawaii of that power altogether.

    I could be wrong on the details. It's been a while since I looked into it.

  • 35. Bruno71  |  August 19, 2014 at 3:21 pm

    The Republicans could seize control in Illinois, New Hampshire, Vermont, and a host of other ME states and do the same thing. The problem is, there has to be a harm and a controversy before the court. Some plaintiffs saying "in the future they may dissolve our marriage" just doesn't cut it. If anything could be found unconstitutional about Hawaii's amendment, it would be that the power of their courts was somehow illegally curtailed by the legislature and the people. But I don't think a same-sex couple would be the proper plaintiffs for such a challenge. We will see, as you say.

  • 36. Ann_S  |  August 19, 2014 at 3:27 pm

    See you there!

  • 37. Margo Schulter  |  August 19, 2014 at 3:30 pm

    The critical distinction here was that Baker v. Nelson was a summary decision on a mandatory appeal, which indeed has precedential value (as opposed to a mere denial of cert., which the Court might have preferred if that option had been available in 1972), but is subject to erosion by “doctrinal developments” in a way that a SCOTUS decision after full briefing and arguments isn’t.

    When there’s such a usual decision, as opposed to a summary one, in place, then indeed SCOTUS doctrine says that lower courts (state or federal) should grant SCOTUS the prerogative of overruling its own decisions!

    Sometimes, however, even this rule is honored in the breach — at least by a SCOTUS plurality or majority. For example, in Roper v. Simmons, 543 U.S. 551, 593-594, Justice O’Connor in her dissent criticizes the main opinion for not reprimanding the Supreme Court of Missouri for ruling that it is unconstitutional under the Eighth Amendment to impose a death sentence for a crime committed before the offender reached the age of 18, despite the binding precedent of Stanford v. Kentucky (1989).

    Now Stanford was certainly a fully briefed case, and Roper overruled it “only” 16 years later — as opposed to the summary dismissal in Baker, reconsidered after some 41 years.

  • 38. RQO  |  August 19, 2014 at 4:04 pm

    Attract a large crowd or lynch mob? Isn't Fayetteville next to Camp LeJeune? Perhaps some G & L Marines will show up in uniform and ask the locals to support the troops.

  • 39. Ragavendran  |  August 19, 2014 at 4:07 pm

    How do we recognize an EoTer? I think it might be a good idea to meet Sunday (7th) evening for coffee or something where all EoTers in the area can drop in and mingle? What would be a good time and place, Dave?

  • 40. hopalongcassidy  |  August 19, 2014 at 4:09 pm

    Wrong Fayetteville!… I wondered too, since there are several in the USA…this one is in Arkansas, the home of the Univ of Ark., my own sister's Alma Mater and just a hoot & holler from me. πŸ˜€

  • 41. andrewofca  |  August 19, 2014 at 4:09 pm

    Meek & avoidant is a good way of putting it. I feel like there are several conservative leaning judges who might find the Baker argument an appealing way out of having to rule.

  • 42. Bruno71  |  August 19, 2014 at 4:12 pm

    Marriage Discrimination Struck Down Again in Indiana
    http://www.bilerico.com/2014/08/marriage_discrimi

  • 43. DACiowan  |  August 19, 2014 at 4:16 pm

    Quick correction: Fayetteville, NC is next to Fort Bragg, which is Army. Camp LeJeune is a hundred miles away in Jacksonville.

  • 44. Mike_Baltimore  |  August 19, 2014 at 4:20 pm

    "I think what ranjitbahadur0 meant to say. . . ."

    Wouldn't it be best if 'ranjitbahadur0' gave his/her explanation of what he/she said, rather than someone else giving an interpretation of what they think someone else said?

    Your interpretation might be correct, but then again, it might not.

  • 45. davepCA  |  August 19, 2014 at 4:24 pm

    Excellent! Really love the fact that the governor got called back onto the carpet.

  • 46. Bruno71  |  August 19, 2014 at 4:25 pm

    I'll comment how I please, thanks very much for the "advice."

  • 47. davepCA  |  August 19, 2014 at 4:33 pm

    Maybe some spot in the Castro? A lot of coffee places tend to close early on Sundays so I think we'd have better luck with a regular restaurant. There are a limited number of restaurants in the neighborhood that can handle a party of more than four – some options would be Firewood on 18th Street at Diamond, or La Taza just a few doors down from there.

    What do you guys think?

    FYI, Ragavendran will be staying at my place starting Saturday evening so he & I will be driving into SF together to meet up with y'all.

    Raga – Ann & I have met at previous events so we'll at least be able to spot each other.

  • 48. andrewofca  |  August 19, 2014 at 4:37 pm

    How early are folks thinking of going?

  • 49. davepCA  |  August 19, 2014 at 4:43 pm

    It's a bit difficult to predict just how many people will be there, and therefore how early you need to be to assure you get in & get a seat. One the one hand, none of these hearings are about California, so that may reduce the number of people interested in attending. On the other hand, there are THREE hearings back to back, which could increase the number of people interested. And we don't know if they will decide to open up an overflow room with a closed video feed….

    The first hearing starts at 9:30AM, so at this point I'm guessing I would want to arrive maybe 8AM-ish? Just my guess.

  • 50. Ragavendran  |  August 19, 2014 at 4:49 pm

    For me, maybe 6:30am or 7am. I'm more paranoid about not getting a seat, as I'm flying there from Boulder for the sole reason to sit in for the two hours of argument. If it is like the Sixth Circuit, they hand out tickets to you and once you get a ticket, you are free to roam around until the seating commences, and if that happens, that's time enough to have a relaxed breakfast :)

  • 51. RQO  |  August 19, 2014 at 4:55 pm

    Hmm and oops. No wonder my draft status was Z-2897.

  • 52. andrewofca  |  August 19, 2014 at 4:56 pm

    Thanks Davep & Raga. I haven't yet decided if I can go – I'll be out of town the week after & work will be crazy that week, but it would definitely be a great experience.

  • 53. Zack12  |  August 19, 2014 at 5:02 pm

    Someone made a note about the fact that the Supreme Court made the Prop ruling null and void.
    Thus a negative ruling in the 9th could set us back in that circuit.
    Let's hope the orginial three judge panel is a good one.

  • 54. davepCA  |  August 19, 2014 at 5:13 pm

    You got it, Ragavendran! I'll get you there as early as you want. It's the least I can do for all the great contributions you are making here.

  • 55. davepCA  |  August 19, 2014 at 5:14 pm

    Hope to see you there!

  • 56. Ragavendran  |  August 19, 2014 at 5:20 pm

    Hey, thanks! I'm also prepared to take the 30-minute BART ride if you decide that you'd rather come later :)

  • 57. brandall  |  August 19, 2014 at 5:22 pm

    I can wear a "go niners" shirt?

    I will be coming from New York City and won't get into San Francisco until 9 PM. Unfortunately, probably a bit too late to catch up with all of you, although I do live in the middle of the Castro. I am for getting there at 6:30 or 7 AM.

  • 58. robbyinflorida  |  August 19, 2014 at 5:32 pm

    Meek as in timid?

  • 59. Ann_S  |  August 19, 2014 at 5:40 pm

    Kathleen will be staying with me starting Sunday, so my schedule will be at her command (kowtows).

  • 60. GregInTN  |  August 19, 2014 at 6:15 pm

    Note that Sept. 1 is the Labor Day holiday.

  • 61. GregInTN  |  August 19, 2014 at 6:25 pm

    Most of the discussion about Baker seems to focus on whether Romer, Lawrence, & Windsor make Baker obsolete as a precedent. It seems to me that a better fit for ignoring Baker is the fact that SCOTUS granted cert in Hollingsworth and asked for briefs on the merits. Even though they didn't reach the merits, I think the mere act of granting cert in Hollingsworth is sufficient indication by SCOTUS that they no longer consider Baker binding precedent. Interestingly, I did see that point mentioned in one of the cert petitions (Oklahoma I think). What do others think of this argument?

  • 62. davepCA  |  August 19, 2014 at 6:31 pm

    I think that's a very good point.

  • 63. davepCA  |  August 19, 2014 at 6:32 pm

    Sorry to hear you won't be able to meet with us on Sunday, but it will be great to see you again on Monday!

  • 64. davepCA  |  August 19, 2014 at 6:34 pm

    Yay!! It will be great to see the both of you. As the date gets closer, please be sure to let us all know if you two have plans for Sunday evening, or if you can meet up with others, okay? See ya then!

  • 65. Ragavendran  |  August 19, 2014 at 6:53 pm

    Yes, that is a good point, but legal issues aside, there is a technicality – since it takes only four votes to grant cert, it cannot be inferred that a majority of the court considers Baker no longer binding.

  • 66. GregInTN  |  August 19, 2014 at 7:04 pm

    Thank you for the explanation. I figured there was something I was overlooking. I guess another reason is that if SCOTUS had denied cert in Hollingsworth that would have left the 9th's opinion in place (which was decided the other way in spite of Baker). Thus, one could argue that granting cert in Hollingsworth would have been the way for SCOTUS to re-affirm Baker.

  • 67. Ragavendran  |  August 19, 2014 at 8:18 pm

    Oops – yeah. So September 2, then :)
    Another reminder that I'm not American!

  • 68. DrPatrick1  |  August 19, 2014 at 8:33 pm

    Except they will be bound by the Abbott precedent

  • 69. RLsfba  |  August 19, 2014 at 8:35 pm

    I think I'll be able to go, taking bus and BART from Oakland at about 6:30. Thanks to you all for the great commentary. I've been watching this since all the coming storm ads around Prop. 8. In the past year it is a sea change. Where are you staying that'll take you a 30 minute ride?

  • 70. DrPatrick1  |  August 19, 2014 at 9:07 pm

    Which is why a ruling on the merits must affirm heightened scrutiny, or at least acknowledge it. However, a panel can avoid a favorable ruling by citing Baker

  • 71. Japrisot  |  August 19, 2014 at 9:24 pm

    Not at all. The panel can easily say that the bans fail rational basis and take a complete pass on the scrutiny question. The panel can re-endorse SmithKline. The panel can avoid SmithKline entirely by addressing only the Due Process/Fundamental Rights challenge. There are many things an appellate panel can do.

    The chance of a 9CA panel citing Baker to punt? 0. Absolute 0. Less than 0. Is it a possibility? Sure. It's a possibility in the sense that it's also possible our sun will nova in the next ten minutes. Not going to happen.

  • 72. DrPatrick1  |  August 19, 2014 at 9:39 pm

    Not sure what is up with the hostility.

    Baker is today legal precedent in the US. It binds lower courts, UNLESS THERE ARE DOCTRINAL DEVELOPMENTS. An unfavorable judge could easily cite Baker in a quick ruling against ME.

    As far as I can determine, Ranj pointed out that an unfavorable panel could avoid the Smithkline precedent in the 9th by citing Baker. This seems factually true.

    It seems to me that without sidestepping using Baker, it would be impossible for an unfavorable ruling to get around Smithkline to do so.

    A favorable ruling not citing Smithkline would seem preposterous. Why reinvent the wheel when the rims are already built and awaiting the tires!

    While constructive debate often leads us to a better place, this hostile post seems an ill fit with this site…

  • 73. scream4ever  |  August 19, 2014 at 10:34 pm

    Baker does not carry sweeping precedent because it was not a formal decision.

  • 74. RnL2008  |  August 19, 2014 at 11:04 pm

    Ya know…….I really liked you before you made that comment…….lol….j/k:-)

    You're probably a Giants fan as well, right?

    There goes all my respect for ya….again…..just kidding!!!

    GO DODGERS/GO RAMS!!!

  • 75. bayareajohn  |  August 19, 2014 at 11:15 pm

    Any Fayetteville followup? I find nothing on GOOGLE…

  • 76. Jen_in_MI  |  August 19, 2014 at 11:23 pm

    Amen my friend! As I consistently find you to be a thoughtful contributor at this site, I am going to continue to rely on your better judgment. πŸ˜‰

  • 77. Japrisot  |  August 19, 2014 at 11:37 pm

    I think you are reading hostility where none is present or was intended.

    As you yourself point out by saying "a favorable ruling not citing Smithkline would seem preposterous," there is a large set of outcomes that includes all possibilities, and a smaller set that includes only those possibilities that are provided for by real-world, rubber-meets-the-road constraints. To take up your example, it is absolutely possible, in the larger sense, that the court could decline to apply SK. In my earlier post I noted that the court could, following the Tenth Circuit, rule on the fundamental rights question (applying Windsor, Witt, etc.), which is *distinct* from the equal protection question presented by SK. You believe, and I would agree with you, that such an outcome is "preposterous," meaning that while it is technically possible, it is so unlikely as to take it outside the realm of practical possibility.

    So too with Baker. While the court is not legally precluded from invoking Baker to dismiss the challenges, the judicial climate in which the court is operating (which includes some 25+ ME decisions which all reach the merits in spite of Baker, and far more importantly the important 9th Cir precedents of SK and Witt) makes it virtually impossible for the court to do so.

    In re your criticism of my post above, I really can't see hostility in it, but I apologize if that is how you received it.

  • 78. Sagesse  |  August 20, 2014 at 3:42 am

    Baker is still being debated BECAUSE it had no briefing or reasoning behind it. It says marriage equality has no place being considered in a federal court at all. It's pretty easy for anyone with a functioning brain to get past that by looking at subsequent doctrinal developments, but any federal judge with an archaic view of their role can use it to punt. All Baker says is that ME is not a federal matter.

  • 79. DaveM_OH  |  August 20, 2014 at 4:24 am

    The ordinance passed, with an amendment increasing protection for churches.
    http://5newsonline.com/2014/08/19/hundreds-show-u

  • 80. JayJonson  |  August 20, 2014 at 6:27 am

    Dr. Patrick's comment was assuming a panel made up of the Ninth Circuit bigots mentioned above who will do anything to halt the spread of marriage equality. In that circumstance, his speculation that they may hide behind Baker is quite plausible. Of course, as has also been pointed out above, such a ruling would soon be vacated by an en banc review. The point is that a rogue panel might well grasp at the last remaining straw, which is Baker, as we have seen in the recent dissents and in the outlying Tennessee state ruling.

    But there is no reason to think that these cases will be decided by a rogue panel. Most judges in the Ninth Circuit will do the right thing. They will rule in light of SmithKline.

  • 81. JayJonson  |  August 20, 2014 at 6:32 am

    I am delighted to read that so many of you will be attending the hearings! I know that will lead to very interesting accounts of the nuances of the arguments. I wish I could be there. Alas, my husband is experiencing some medical issues.

  • 82. DrPatrick1  |  August 20, 2014 at 6:42 am

    Like sutton in the 4th

  • 83. DrPatrick1  |  August 20, 2014 at 6:42 am

    And I apologies for my misinterpretation of your comment

  • 84. Marriage Equality Round-U&hellip  |  August 20, 2014 at 6:52 am

    […] USA, Idaho: The Ninth Circuit denied the state’s request for a full en-banc hearing. The case will be heard on 9/8, along with others from Hawaii and Nevada. full story […]

  • 85. ragefirewolf  |  August 20, 2014 at 7:02 am

    Mootness can be avoided in otherwise seemingly moot cases where they meet certain exceptions. In this case the ability of the legislature to take marriage away from LGBT couples even though it has granted it at the moment could be considered a "voluntary cessation" from the disapprovable action.

  • 86. ragefirewolf  |  August 20, 2014 at 7:03 am

    They could say the Amendment gives the legislature power to take the fundamental right of marriage away. Because the Amendment is so specific to that end, it might actually work.

  • 87. Elihu_Bystander  |  August 20, 2014 at 7:06 am

    I would think 0700 would be better. There is a lot in interest in these cases.

  • 88. Ragavendran  |  August 20, 2014 at 7:22 am

    Correct – if they had looked past the standing issue, they could have overturned the Ninth by reaffirming Baker, so cert alone is not conclusive either way.

  • 89. Ragavendran  |  August 20, 2014 at 7:24 am

    Oh, I'm staying with Dave in Oakland, fairly close to a BART station.

  • 90. Marriage Equality Round-U&hellip  |  August 20, 2014 at 7:42 am

    […] USA, Idaho: The Ninth Circuit denied the state’s request for a full en-banc hearing. The case will be heard on 9/8, along with others from Hawaii and Nevada. full story […]

  • 91. brandall  |  August 20, 2014 at 7:48 am

    Luckily for the two of us, you will not have to disavow me. I throw an "Auntie Mame" party during the Super Bowl. I know more about Baker, Romer, Lawrence, Hollingsworth, Windsor, Kitchen, and Bostic, than I do about any professional sports team.

  • 92. brandall  |  August 20, 2014 at 8:02 am

    I am SHOCKED! Really SHOCKED. I watched about 3 hours of citizen after citizen coming up to the podium to air their thoughts. Since the vote was taken at 3:30 am, there must have been about 8 solid hours of citizen input. About 90% were against the measure. Most stated either "our town does not have a problem and we don't need this" or "the city council should not be allowed to take this vote and this should be put up to the vote of the entire population." There was one sane female attorney who clearly stated history has shown the majority should never be allowed to vote on minority rights.

    As with Houston's HERO, I'll bet there are signatures collected to put this into the next possible election to be put up for a popular vote to rescind it.

    Bravo to the Lafetteville City Council for voting 6-2.

  • 93. RnL2008  |  August 20, 2014 at 8:19 am

    Cool……..that's good to know:-)

    We may need to meet…….I live just 45 miles north of Napa!!!

  • 94. JayJonson  |  August 20, 2014 at 8:21 am

    See the article in the Washington Post about the continuing relevance of Baker: http://www.washingtonpost.com/politics/courts_law

  • 95. sfbob  |  August 20, 2014 at 9:08 am

    There are many plausible explanations as to why Baker is no longer precedent. Not least of those is the passage of DOMA, which created the substantial federal question Baker had previously said did not exist.

    I'm sorry to repeat myself on this topic but I do think it bears repeating. If there are conservatives who wish they could still use Baker as a precedent, they can blame themselves for the overreach involved in DOMA.

  • 96. sfbob  |  August 20, 2014 at 9:12 am

    If I am not mistaken, the Supreme Court ruled that nobody had standing at the federal level to appeal Judge Walker's ruling and therefore the Ninth Circuit's decision upholding Walker was null and void, but Walker's ruling itself was not.

  • 97. sfbob  |  August 20, 2014 at 9:13 am

    I would love to be part of that meet-up as well. I live in downtown SF (actually in SOMA). Would be great to add faces to all the names I see here.

  • 98. brandall  |  August 20, 2014 at 9:26 am

    9th Circuit Orals Filings:

    Here is ID: http://www.ca9.uscourts.gov/content/view.php?pk_i

    Here is NV: http://www.ca9.uscourts.gov/content/view.php?pk_i

    Sorry for the delay, I missed this one.

  • 99. davepCA  |  August 20, 2014 at 9:42 am

    Wonderful! We still have a couple of weeks to plan a meet-up, so as the date approaches I'll put a comment about it up near the top of some new article and we can use that to plan.

    Or – maybe the site can run a dedicated 'article' about this a few days before the hearing, like Friday 9/6, and we can use the comments section of that article as a dedicated place to connect & plan? I'll submit a request to the EoT folks.

  • 100. GregInTN  |  August 20, 2014 at 9:56 am

    I guess I had been focusing just on the actual wording in Baker ("dismissed for want of a substantial federal question") without considering the overall legal environment. I can't imagine that anybody could make the case that there isn't a "substantial federal question" at this point. Without actually citing Baker, the VA clerk McQuigg's petition for cert says that granting cert in Hollingsworth "conclusively establishes that the Supreme Court considers the question presented in this case to be substantial". I had interpreted that line as conceding that Baker was no longer binding.

  • 101. sfbob  |  August 20, 2014 at 10:30 am

    Sounds good and thanks for setting things up Dave.

    BTW, 9/6 is Saturday, not Friday. Sorry, I just couldn't help myself there. :)

  • 102. davepCA  |  August 20, 2014 at 10:50 am

    Doh! Typo. I meant Friday 9/5, because the site doesn't run new articles on the weekends, and that would give us a couple of days to make arrangements for a Sunday meet-up.

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