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Supreme Court prevents same-sex marriages in Virginia from starting tomorrow

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
The Washington Blade reports:

The U.S. Supreme Court agreed to a stay Tuesday on a federal appeals court’s ruling against Virginia’s ban on same-sex marriage, blocking same-sex marriages from taking place this week in the Old Dominion.

Without explanation, the court announced in a single-page order it has stayed the ruling by the U.S. Fourth Circuit of Appeals in Schaefer v. Bostic, which affirmed Virginia’s prohibition on same-sex marriage is unconstitutional.

Although Chief Justice John Roberts is responsible for stay requests in the Fourth Circuit, the order indicates he referred the matter to the entire court. The vote by the Supreme Court on the decision isn’t included in the order.

Had the court declined to issue a stay, clerks’ offices in Virginia could have started distributing marriage licenses to same-sex couples at 8 am on Thursday. That’s when the Fourth Circuit was set to issue the mandate on its decision.

The Court was asked to treat the stay application as a petition for certiorari, but the order says the Court won’t do that: it notes that the case is stayed pending the filing of a petition by Clerk McQuigg.

Here is the order.

EqualityOnTrial will have more on this developing story…

Thanks to Equality Case Files for these filings

174 Comments

  • 1. Chuck_in_PA  |  August 20, 2014 at 12:19 pm

    Phoey!

  • 2. ragefirewolf  |  August 20, 2014 at 12:19 pm

    Well, then.

    I'm disappointed, but not surprised. They must wish to review this at some point then. Doesn't make sense otherwise.

  • 3. hopalongcassidy  |  August 20, 2014 at 12:20 pm

    Nothing like waiting until almost the last minute to be assholes.

  • 4. Bruno71  |  August 20, 2014 at 12:21 pm

    It's fairly reasonable to believe they will grant cert to a case, hopefully this term. I'm actually slightly relieved there wasn't a written ruling saying that the defendant intervenor was likely to succeed on appeal. I know that was highly unlikely, but I got a little paranoid the last hour or so. It's clear to me these stays are to protect SCOTUS as the ultimate arbiter on the issue, whether that's fair or not.

  • 5. Dave_wx  |  August 20, 2014 at 12:23 pm

    SCOTUS is likely to take on an ME case soon since the justices are forcing their own hands on this one.

  • 6. brandall  |  August 20, 2014 at 12:25 pm

    The greatest gay=stay ever. They could have provided some guidance. Any guidance. Shame on them.

  • 7. ragefirewolf  |  August 20, 2014 at 12:25 pm

    I was getting nervous too. They sure took their sweet time considering how terse the order was.

  • 8. Dave_wx  |  August 20, 2014 at 12:26 pm

    This also likely means other appellate courts will stay their own ruling until the Supreme Court decides the issue.

  • 9. Bruno71  |  August 20, 2014 at 12:27 pm

    Well, I think the last brief came…yesterday or Monday? Then Roberts would call a meeting of the 9 of them, and being it's vacay time maybe that took a little while to hammer down. I don't think it was such a long time, though the terse orders are always annoying as hell.

  • 10. ragefirewolf  |  August 20, 2014 at 12:27 pm

    Yeah, for real…

  • 11. DaveM_OH  |  August 20, 2014 at 12:27 pm

    Yup. Even if they're against ME. (I'm looking at you, 6CA.)

  • 12. brandall  |  August 20, 2014 at 12:32 pm

    You can't e-mail SCOTUS. They have nothing for collecting comments. You can mail them:

    Supreme Court of the United States
    1 First Street, NE
    Washington, DC 20543

    RE: Kitchen, Bostic and 22 other cases

    "Dear SCOTUS, if you are the guardians of our constitutional rights, that does not give you the right to delay them until June, 2015"

  • 13. Silvershrimp0  |  August 20, 2014 at 12:33 pm

    Too bad they couldn't just go ahead and grant cert along with the stay. They'll probably take no action on the cert petitions as long as possible. I guess we'll be waiting until the last day of the upcoming term before we hear them end of this.

  • 14. ranjitbahadur0  |  August 20, 2014 at 12:40 pm

    No one can be surprised, really.
    When even Ginsberg has explicitly said "Sure, sometime, but NOT NOW" it is obvious the SC is going to do everything they can to prevent any more same sex marriages, and put off recognition of the currently "in dispute" ones.

  • 15. sfbob  |  August 20, 2014 at 12:42 pm

    They pretty much covered their posteriors. "…pending timely filing and disposition of a writ of certiorari. Should the petition…be denied, this stay shall terminate automatically. In the event the petition…is granted, the stay shall terminate upon the sending down of the judgement of this court."

    They've asserted their intention to be the final arbiters on the matter. Let them put their money where their collective mouths are.

  • 16. brandall  |  August 20, 2014 at 12:42 pm

    "You Got to Give Them Hope" – Harvey Milk

  • 17. ragefirewolf  |  August 20, 2014 at 12:45 pm

    I'll be honest. I probably won't be writing a letter. Not because I don't care to make the effort, but because it is clear what SCOTUS wants out of this and it would be an exercise in futility.

  • 18. Zack12  |  August 20, 2014 at 12:48 pm

    Marriage equality will be decided on the last day of the next term, so by next June we'll either be really happy or really sad.

  • 19. ragefirewolf  |  August 20, 2014 at 12:50 pm

    "The stay shall terminate upon the sending down of the judgment of this Court"

    Is that the standard verbiage or something else?

  • 20. DaveM_OH  |  August 20, 2014 at 12:53 pm

    Pretty standard. Saying that "If we don't grant cert, the stay is over, and the 4CA opinion holds for the 4CA. If we do, the stay continues until we render judgment, and then we'll tell you whether the 4CA opinion is good or not."

  • 21. davepCA  |  August 20, 2014 at 12:53 pm

    Indeed. Of course today's news is a huge disappointment, and there is nothing that can be said to the couples in Virginia who were hoping to marry tomorrow that will lessen that, but we WILL win at SCOTUS.

  • 22. andrewofca  |  August 20, 2014 at 12:56 pm

    2 of my best friends got married in front of his bust at SF City Hall back during the 2008 "Summer of Love". Can't wait for it to be legal everywhere.

    Harvey would be cheering us on if he were here today, setbacks and all.

  • 23. Scottie Thomaston  |  August 20, 2014 at 12:57 pm

    Chris Geidner at Buzzfeed thinks that line is a signal that the Court may not have appreciated the way the Ninth Circuit issued its mandate so quickly in the Prop 8 case. That's just speculating, but it's interesting.

  • 24. brandall  |  August 20, 2014 at 1:03 pm

    If true, they are really not going to like the Ninth Circuit's line on their level of scrutiny applied in SmithKline and, hopefully, translated into their upcoming decision.

  • 25. EricKoszyk  |  August 20, 2014 at 1:06 pm

    I live in Northern VA. Does anyone know if there are any rallies planned today or this week because of this?

  • 26. Bruno71  |  August 20, 2014 at 1:13 pm

    I've wondered if Kennedy and the rest of the Windsor majority would think the 9th's heightened scrutiny interpretation was a little too presumptive. However, I don't see how disapproving of one thing the 9th does (with the Hollingsworth stay) has anything to do with something quite separate (the SmithKline interpretation on scrutiny)?

  • 27. brandall  |  August 20, 2014 at 1:19 pm

    I have not seen any come across my RSS feeds today. If I see one, I'll post it here for you.

  • 28. hopalongcassidy  |  August 20, 2014 at 1:22 pm

    Er, don't you mean even if they're "for" it?

  • 29. brandall  |  August 20, 2014 at 1:22 pm

    Because 9AC keeps pushing farther and faster then SCOTUS wants. That would be following Geidner's theory. SCOTUS is trying to figure out ME, they don't want to deal with heightened scrutiny and they certainly, absolutely don't want to deal with the remote possibility of creating a new suspect class.

  • 30. hopalongcassidy  |  August 20, 2014 at 1:24 pm

    Not that we will ever know, but I'd bet big odds it didn't amount to more than a handful of phone calls.\

  • 31. Corey_from_MD  |  August 20, 2014 at 1:28 pm

    Very likely. It seems like the bottom line is that there will be no more new states to allow marriage equality until SCOTUS decides to take a case in October and then to rule in June 2015. New states will be stayed or put on hold for now. I will check back in October and see what is happening.

    Best wishes until then everyone!

  • 32. Bruno71  |  August 20, 2014 at 1:30 pm

    There's always been talk about how the 9th was the most overturned circuit (though I think that may not be true anymore), etc. I would *hope* that they don't have a blanket disdain for the 9th Circuit's work, but of course it's quite possible with some of the Supremes. Kennedy doesn't seem to like the concept of scrutiny anyway, so he may just shrug it off as much as he can.

  • 33. Zack12  |  August 20, 2014 at 1:33 pm

    The 6th circuit now has the "honor" of being the most overturned circuit.

  • 34. RLsfba  |  August 20, 2014 at 1:35 pm

    Rather than collapsing the comments on the ninth circuit thread, I'll post here. I called the court in SF to inquire about overflow. They said there are TVs in the cafe, and it sounded like they have overflow rooms ready. I was asked if I was requesting overflow accommodations, I said yes, someone is supposed to call me back. Here's the court link http://www.ca9.uscourts.gov/content/view.php?pk_i

    I got a call back. There are no tickets, no formal line procedures. Seems like they are ready for larger crowds as they develop with overflow rooms. The court opens at 8:30 am. I bet local TV news will stop by and see what's going on.

  • 35. bayareajohn  |  August 20, 2014 at 1:38 pm

    Yes, at this point courts around the country will look for ways to postpone all such cases, awaiting guidance. It's not an unreasonable position… what's the point in hearing and ruling when the outcome will be out of their hands with no short term advantage to any party.

  • 36. dingomanusa  |  August 20, 2014 at 1:39 pm

    So is there a deadline Clerk McQuigg.has to file the petition?

  • 37. Chuck_in_PA  |  August 20, 2014 at 1:43 pm

    This action indicates that if any additional states are to permit ME it will be due to State Legislative action, or court decisions in State Courts basing they decisions on laws and constitutional amendments being prohibited by the earlier wording of citizens protections under the unamended state constitutions. So progress is possible, perhaps in Arkansas, Alaska, West Virginia, and some other states. Don't surrender hope prematurely. There are plenty of dedicated lawyers working on behalf of ME in all the remaining 31 states.

  • 38. mario315  |  August 20, 2014 at 1:52 pm

    If Chris Geidner is correct, then the speculation I've read here about SCOTUS being sensitive about bringing back the bans in California, Oregon, and PA. may NOT be something we can hang our hats on, right ?….

    Can anyone help with precedent/ background for SCOTUS issuing such a horrific ruling in June 2015, ie. saying 9th Circuit erred in dissolving the Hollingsworth stay prematurely ???

  • 39. Bruno71  |  August 20, 2014 at 1:54 pm

    Some thoughts on things after today…

    – Today's decision, and the way in which it was handled, further underscores the theory that "gay = stay" is all about SCOTUS exercising its power to decide this particular issue on its own timetable. The lack of in-depth comment further suggests that they want to try to go as far as they can in not tipping their hand on the final decision
    – I don't believe that denial of cert on all ME cases this term is impossible at this point. They may simply not have come to any decisions on that yet, or each justice may be holding their own decision close to their vest.
    – However, I believe RBG's comments recently strongly suggest that they will grant cert on a case if it's properly before them.
    – One possible way for SCOTUS to delay outcome is to relist until all current appeals courts finish up. That would mean waiting for decisions from the 6th, 7th, and 9th Circuits.
    – Conversely, the 6th, 7th, and/or 9th Circuits could all put their decisions on hold pending SCOTUS cert, which would force their hands to act sooner. All eyes should go to these circuit courts in the next couple of months.
    – It is still possible another state or more will have ME before a SCOTUS decision, if it happens through that state's own court system and either the state decides not to appeal or SCOTUS denies cert. Seems not that likely nonetheless.
    – SCOTUS would look AWFUL if they decide against ME and put the situations in California, Pennsylvania, and Oregon in doubt. They should strongly consider the repercussions of such a move.

  • 40. brandall  |  August 20, 2014 at 1:54 pm

    Can you cite where you are getting this from? Here is the 6th's ranking data from the StatPack @ ScotusBlog "Circuit Scorecard":

    Rank 2013: #6 highest for reversals
    Rank 2012: Tie for #1 with 4 other AC's for reversals
    Rank 2011: Tie for #1 with 3 other AC's for reversals
    Rank 2010: #2 highest for reversals
    Rank 2009: #1 highest for reversals

    This is not weighted by the number of cases. The 6th certainly ranks towards the top, but it is not "the most overturned."
    http://www.scotusblog.com/reference/stat-pack/

  • 41. brandall  |  August 20, 2014 at 2:00 pm

    There is one more possibility besides those you mention above. The November elections could provide changes in Gov's and/or AG's who are pro ME. Two possibilities are FL and WI. I'm not predicting the outcomes of those elections, I'm just saying they could drop their appeals and allow ME.

  • 42. Corey_from_MD  |  August 20, 2014 at 2:04 pm

    All red states. Going to be a slog. If anything happens then it will very likely be stayed. Nevertheless I hope that there can still be some progress while we wait for SCOTUS to take a case in October. All the best, Pennsylvania Chuck. We will meet again in October.

  • 43. Bruno71  |  August 20, 2014 at 2:10 pm

    It seems to me if SCOTUS really had a huge problem with the way the 9th dissolved the stay, they could've addressed that when the bigots brought the motion before them to put the stay back in place last summer. I think too much is being made out of this, even if they are sort of winkingly referencing that in some way.

    SCOTUS has to be sensitive about CA, OR, & PA to some degree, the question is will it trump their procedural hurdles and affect their ultimate constitutional interpretation? They can claim it's not their responsibility if they throw those 3 states into disarray, since those cases never properly came before them. It would be a cold slap, but it's not impossible. Hopefully we never find out.

  • 44. brandall  |  August 20, 2014 at 2:20 pm

    She has 90 days from the date of the opinion to do so, which gives her until mid-October.

  • 45. Nyx  |  August 20, 2014 at 2:23 pm

    “- It is still possible another state or more will have ME before a SCOTUS decision, if it happens through that state's own court system and either the state decides not to appeal …”

    Nevada?

  • 46. Bruno71  |  August 20, 2014 at 2:28 pm

    There's no state court case for Nevada right now (maybe there should be), and of course the federal case went against us at the district level. Doubt we'll see Nevada have ME sooner than next summer.

  • 47. davepCA  |  August 20, 2014 at 2:37 pm

    I think it's been clear that, at SOME point, we will have made all of the progress outside of the courts that we can reasonably expect to make (I'm not saying we're definitely at that point right now, there could still be some more progress before we actually hit that point), and that, once we reach that point, there will be a gap in time while all of the remaining pending trials go into a holding pattern waiting for SCOTUS to rule on whichever case they decide to take up.

    Which will likely feel pretty damned frustrating while our rights are left out in the waiting room one last time, with no tangible measure of progress. But once we get that SCOTUS decision, we'll very likely see rapid progress in all of the remaining states virtually simultaneously, comparable to what happened with interracial marriage bans after the Loving decision.

  • 48. Nyx  |  August 20, 2014 at 2:38 pm

    Yes, the 9th Circuit is the slowest court, but the case is coming before it in a few weeks.

  • 49. Bruno71  |  August 20, 2014 at 2:50 pm

    I'm not so certain that the government of Nevada won't appeal the case if it goes against the state. It's true they're not defending the case, but that doesn't mean they won't appeal it (see: Herring). Also, the 9th could put everything on hold in deciding these cases until SCOTUS decides on certs and possibly the merits of a case.

  • 50. hopalongcassidy  |  August 20, 2014 at 2:52 pm

    After their Hobby Lobby debacle, I would not trust this court any further than I can dropkick the goddamn Washington Monument. I think they are ALL a bunch of craven cowards with the integrity of a dead garden slug.

  • 51. hopalongcassidy  |  August 20, 2014 at 2:57 pm

    Wouldn't that be mid-November?…or are we talking about different opinions? It's damned confusing.

  • 52. Bruno71  |  August 20, 2014 at 2:57 pm

    The truth is, the next edition of this court may be even worse for us than this current one. Who knows when RBG or Breyer or Kennedy will leave the court? It could very well be under a Republican president and Congress. Unfortunately, we have to assume this is our best chance, with Kennedy having proven he's on our side on 3 very important occasions. We have to take our case to this court, before it changes.

  • 53. mario315  |  August 20, 2014 at 3:00 pm

    Man, this is very sobering analysis for the next 10 months which await us…. Over at Jo.My.God blog many posters for the first time are taking a pessimistic view of June 2015, based on today's SCOTUS order and Chris Geidner's analysis…

    I hope the ACLU starts to focus heavily now on the State Courts to see if we can make some inroads there outside SCOTUS oversight…. Make sense ?

  • 54. Bruno71  |  August 20, 2014 at 3:05 pm

    There was no new light shed today as a result of this grant. It would've been great if they had denied the stay, signalling an end to marriage discrimination, but it didn't happen. It was ALWAYS a possibility that they'll rule against us, but we should all remain as confident as we were before. If Geidner's speculation is true, it only speaks to procedure and nothing else. Nothing very important has changed today, in my opinion.

  • 55. DoctorHeimlich  |  August 20, 2014 at 3:12 pm

    Yes, I think the alarmist reaction is uncalled for.

    I haven't seen people read so much into a single sentence from SCOTUS since… well… Baker v. Nelson.

  • 56. hopalongcassidy  |  August 20, 2014 at 3:13 pm

    Of course, but I'm not going to cut this bunch any slack because the future incarnation of it might be worse. That's like singing Kum By Yah to a group of homophobic little pricks with baseball bats chasing you down the street with not very nice intentions.

    On edit…I'm not all that ecstatic with RBG's tepid support either.

  • 57. brooklyn11217  |  August 20, 2014 at 3:15 pm

    I believe the 90 days starts from when the Fourth Circuit issued its opinion…I don't believe that the clock for McQuigg gets to start again today…so 90 days from July opinion takes us into October for her deadline to file.

  • 58. Nyx  |  August 20, 2014 at 3:15 pm

    "…Also, the 9th could put everything on hold in deciding these cases until SCOTUS decides on certs and possibly the merits of a case."

    But no petition for a writ of certiorari has been accepted.

  • 59. brandall  |  August 20, 2014 at 3:16 pm

    Bostic 4th Decision was 7/28/14. 90 days would be 10/26/14. So, late October. I hope you concur. If not, we'll work it through.

  • 60. andrewofca  |  August 20, 2014 at 3:16 pm

    Awesome! I wish I could upvote you more than once 😉 Both for agreeing with your sentiment, and for your wit.

  • 61. Bruno71  |  August 20, 2014 at 3:19 pm

    Correct. They may choose to wait until SCOTUS acts on those writs of cert, and if they grant one, they may wait until SCOTUS decides the case.

  • 62. brandall  |  August 20, 2014 at 3:26 pm

    I concur. I think part of the media/columnists hype doesn't help either ("setback from SCOTUS"). Today's decision was a disappointment for those hoping for a shortcut. It signals nothing else.

  • 63. RLsfba  |  August 20, 2014 at 3:31 pm

    I agree, they are going to stall as long as possible. They don't care about making sense of anything. Whatever the final decision it will not be definitive, wiggle room will be included like allowing states to set their own marriage rules, but they can't ignore valid marriages from other states. Do they want to declare ME the law of the land, I think not. They want to do as little as possible. They are divas.

  • 64. Bruno71  |  August 20, 2014 at 3:37 pm

    If they decide to do the recognition decision, then we'll know when they grant cert. Because they cannot grant cert on a case like Kitchen or Bostic and expect to get away with that decision. They can, however, if they grant cert on Obergefell, for example. I personally believe they'll grant cert on a full equality case.

    My biggest nightmare for a "dodge" or a "punt" is if they decide to take one of the full ME cases and bogusly decide on civil unions or something similar. I know that it's unlikely and very controversial around here, but it may be the only way to rule against marriage equality without precluding future cases from a finding of full equality. i.e. "Let's see how civil unions do in terms of equality in Utah. If they don't work, come back and we'll sort it out next time."

  • 65. sglaser2  |  August 20, 2014 at 3:39 pm

    Yet another possibility is yet another incompetent Atty General. It would probably be yet another temporary window, but the engineer in me makes me mention it :-)

    Lower Courts have to rule eventually. If they decide our way, they can stay things IF ASKED, but we've seen that they are not always asked.

  • 66. Fortguy  |  August 20, 2014 at 3:50 pm

    Nevada already is at work on a legislative solution. Their legislature has already approved a constitutional repeal of their ME ban. Law requires that the next session of their legislature after the intervening Nov 2014 election also approve the repeal before sent to voters probably Nov 2016. Obviously, a successful court conclusion would speed things up considerably, but they have at least demonstrated that they are far ahead of any other state legislature or ballot initiative process going forward without court action.

  • 67. sfbob  |  August 20, 2014 at 3:54 pm

    It seems unlikely to me that they would go in favor of civil unions because of the implications for federal benefits. Unless of course they decide to instruct the federal government to treat civil unions and domestic partnerships like marriages. For a bunch that claims to want to rule narrowly and not legislate from the bench that would be some enormous amount of overreach on their part, but they don't seem to be terribly concerned with consistency so…who knows?

  • 68. Eric  |  August 20, 2014 at 3:55 pm

    It signals that the continued denial of the fundamental rights of a group of citizens is perfectly fine with SCOTUS.

  • 69. Zack12  |  August 20, 2014 at 3:58 pm

    Just imagine what the reaction will be if the 6th rules against us.

  • 70. brandall  |  August 20, 2014 at 4:00 pm

    Ah, you are correct there. You know the procedural process for the stays is trashed and this is my pet rant. It is possible another AC case could be appealed to SCOTUS, but that will result in the same ruling as today.

    How do you sue the Supreme Court for not following its' own stay procedures and methodologies? Actually, that is an interesting question I'd love to hear from others about.

  • 71. Eric  |  August 20, 2014 at 4:00 pm

    There is already ample evidence from multiple states that separate but equal under the guise of civil unions/domestic partnerships does not work. Also, the question of CU/DP is not before the court. They would be truly activist if they created a new legal designation absent anything from the legislative branch.

  • 72. robbyinflorida  |  August 20, 2014 at 4:06 pm

    It will be interesting to see what happens in Texas. If SCOTUS rules in favor of ME there will be calls for Texas to secede from the union. It will be right in the middle of the presidential election and Perry could be in a rough position.

  • 73. brandall  |  August 20, 2014 at 4:22 pm

    UT / Evans – Defendant's Reply to Plaintiff's Response for 30-day Extension

    "Utah has never disputed that plaintiffs genuinely feel subjected to hardship in this matter, and [Utah] never would," Utah Federal Solicitor Parker Douglas wrote on behalf of the Utah Attorney General’s Office. "Notwithstanding, one-time, 30-day extensions are routinely granted by the [10th Circuit]. Such a modest extension is merited in this matter."

    BS, this is a fundamental rights case for marriages licensed, but not recognized. It is technically more of a rights infringement than the Kitchen case. If they really, really cared, they would file a motion saying the State messed up by not correctly requesting a stay and so only these folks should be allowed to have their rightfully obtained licenses. Case closed.
    http://www.sltrib.com/sltrib/politics/58318294-90

  • 74. JayJonson  |  August 20, 2014 at 4:33 pm

    Bruno, I agree with your skepticism about Geidner's reading of the final line. But perhaps I don't fully understand the locution "sending down of the judgment of this Court." It sounds to me that this indicates that the judgment of the Court would become effective immediately. If so, that would be even faster than the 9th Circuit vacated the stay in Hollingsworth. When that was challenged, Kennedy quickly denied the challenge.

    Am I missing something?

    I don't think there is any reason to be pessimistic about what will happen in June 2014 PROVIDED that there is no change in the composition of the Court.

  • 75. davepCA  |  August 20, 2014 at 4:39 pm

    Yes, I' sure there will be plenty of sound and fury, signifying nothing, coming from the usual loud-mouthed bigots in a number of places. They are free to do so, and it will have no effect on the couples who will have gained recognition of their rights. It will be nothing more than pointless grandstanding and pandering to the lowest of their base.

  • 76. JayJonson  |  August 20, 2014 at 4:46 pm

    No. They are not going to impose a judicial accommodation like "civil unions." That would be contrary to both the liberal and conservative factions. Scalia et al. will see that as judicial activism, while Ginsburg et a. will see it as "separate but unequal."

    It is possible, however, that SCOTUS may take a marriage recognition case and require that states recognize same-sex marriages performed in other states without declaring that same-sex marriage is a fundamental right that must be performed in every state.

    That would not be a just solution, but it would be consistent with a federalism approach that would recognize the primacy of states in the formulating marriage policy while also requiring a reciprocal recognition of other states' marriages.

  • 77. Bruno71  |  August 20, 2014 at 4:49 pm

    Let's say the 4 liberal justices are for full marriage, and the 4 most conservative justices are for nothing. Kennedy says, "civil unions or nothing" to the 4 liberal justices. Voila, you have civil unions. People seem to think these justices "can't" do things. They can do just about anything if they can come up with any sort of rationale for it, especially if one justice holds the key to a compromise ruling.

  • 78. Bruno71  |  August 20, 2014 at 4:49 pm

    Yes, they'd probably have to address the federal recognition of CU's issue in the ruling or at a later date.

  • 79. Bruno71  |  August 20, 2014 at 4:51 pm

    The question before the court is the rights of same-sex couples. Sure, they're asking for marriage, but SCOTUS (or as I address below in response to JayJonson, maybe just Kennedy) may see CU's, DP's, or some sort of delineation of "equivalent rights without the name" as an interim solution. I agree there's evidence against CU's, especially out of New Jersey, but is that being presented to the court in any of the briefs as of yet? Will it? I wouldn't be surprised if it doesn't come up in any of them, because neither side wants that.

    Don't get me wrong, I don't think this would be fair or likely, but it would achieve a certain kind of dodge if they're so inclined.

  • 80. RQO  |  August 20, 2014 at 5:01 pm

    As William F. Buckley (residing in posh NW CT on Texas Oil money) was always stating: Ideas have consequences". Anyone who lives anywhere near Texas, and Texans (I'm in CO) hears the secession threat and secretly thinks, to quote Dr. Seuss; "Marvin K. Mooney, would you please go now".

  • 81. StraightDave  |  August 20, 2014 at 5:06 pm

    My bet for the lone exception to staying everything is Sevcik in NV. Once the 9th rules (if it ever does), that's it. No reasonable appeal seems possible. Oh sure, there might be the odd clown who tries to barge in at the last minute, but SCOTUS has shown in OR and PA to not be too impressed with those guys. Neither party will ask for a stay, so none should be gratuitously given. The intervenors will whine and be rightly ignored, without standing. The 9th knows enough not to go down that path again.

  • 82. Sagesse  |  August 20, 2014 at 5:08 pm

    If we're speculating….

    I was certainly expecting a stay. There just doesn't seem to be any justification, or difference between the two cases, for staying Utah, but not Virginia.

    On the plus side, it is almost certain they will grant cert… to A case, if not this one. What would be the point of staying decisions across the country and then not taking any of them.

    The 'almost certain'… I suppose they could hold them all waiting for a circuit split. If the 6th doesn't split, perhaps they'll hang in there and wait to see what the 5th does. No split, perhaps they deny cert and let ME be decided by the circuit courts.

    Wandering further down the yellow brick road… if they deny cert, then Baker must be dead. If federal courts can rule on ME, there must be a federal question.

  • 83. RQO  |  August 20, 2014 at 5:10 pm

    No vote, no opinion, nada. We're in Oz again. Rather than "Surrender Dorothy" it's "pay no attention to the man behind the curtain". All perfectly reasonable, legally, but the lack of humanity is frustrating. All together now – take a very deep breath and turn the other cheek. I DO wish this issue is resolved before the political pendulum swings.

  • 84. RQO  |  August 20, 2014 at 5:14 pm

    LONG history of 9th being ignored. See 1031 real estate exchange history back in the 70's/80's – and THAT was just an accounting/tax rule.

  • 85. RQO  |  August 20, 2014 at 5:21 pm

    Nevada is well on it's way to approving ME at the ballot box, but their system for repealing constitutional amendments requires a NEW legislature to vote a second time on the issue before forwarding it on to a general election ballot. Think the earliest will be 2016??? Comment from Nevadan, Please.

  • 86. SeattleRobin  |  August 20, 2014 at 5:21 pm

    In this instance though I agree that SCOTUS wouldn't go there. The issue being put before them is about the right to marriage itself. The cases are not merely about being granted a list of the specific rights that come with marriage. It's all about access to the actual institution of marriage. Deciding that CUs are an equitable compromise would be deciding an entirely separate case that no one has brought to the court.

    Plus, I think we're too far past that point and the justices on both sides know this. It's already been proven in state courts that states "experimenting in the laboratory" with such a status consider it to be a mostly failed experiment.

  • 87. StraightDave  |  August 20, 2014 at 5:27 pm

    Y'all are totally on drugs to even mention CU at this point. It's not on the table, and would be the height of legislating a pseudo "solution". Windsor put a stake in that idea, anyway. Beyond nuts. Please stop wasting the comment count :)

  • 88. Fortguy  |  August 20, 2014 at 5:31 pm

    Oh, goody goody! The followers of the Old Way of Thinking convince themselves in their echo chambers that everyone in the state thinks the way they do. If you want to awaken the long-prophesied emerging majority of the New Texas that would be blue for the next two generations, let them seriously try. It would be the best thing since Gov. Gray and Prop. 187 turned California from purple to a perennial hopeless cause for the GOP. Bring it on!

  • 89. SeattleRobin  |  August 20, 2014 at 5:31 pm

    I'm not following why California is being lumped in with Oregon and Pennsylvania as being put in doubt by an adverse ruling by SCOTUS on ME. The California case was unique, in that the right to marriage was granted and then taken away. That's not the same issue as whether states are required to grant ME in the first place. So a SCOTUS ruling on general ME couldn't reverse the situation in California.

  • 90. RnL2008  |  August 20, 2014 at 5:36 pm

    All it would do is DELAY Marriage Equality until 2016……at least that is my opinion!!!

  • 91. StraightDave  |  August 20, 2014 at 5:36 pm

    The "taken away" part was the 9th's ruling that got tossed out on standing. The district court's ruling that remains was a straight-up equal protection and/or fundamental rights deal. It was the 9th who watered it down to try to sneak it by SCOTUS.

  • 92. RnL2008  |  August 20, 2014 at 5:39 pm

    Somehow I DON'T see SCOTUS creating a separate but UNEQUAL scenario!!!

    Brown vs The Board of Education would be brought up and it would be hard for SCOTUS to rule that CU's or DP's would be directly equal to Marriage…….and that argument has already been presented in the California cases I believe!!!

  • 93. RnL2008  |  August 20, 2014 at 5:42 pm

    As well as have to change ALL documentation to include the terms Civil Unions, DP's and whatever else a state might opt to call it and it will STILL not be EQUAL to the term "MARRIAGE".

    See, in my opinion the question would have to be why do some Gay and Lesbian couples get to use the term "MARRIAGE" while others have to use the term Civil Unions or DP's. This alone would create a separate but UNEQUAL situation!!!

  • 94. Bruno71  |  August 20, 2014 at 5:45 pm

    I agree on principle but disagree that SCOTUS will in any way be required to address it in the manner you lay it out. They are presented with a case by plaintiffs who are seeking a solution for a harm. If SCOTUS believes that CU's could adequately address that harm, then it is an option for them regardless of what the plaintiffs ask for. Let's not forget that in the prop 8 case hearing, even Ginsburg seemed to suggest that CU's were a step above nothing. Faced with CU's or nothing, they may view it as a compromise.

  • 95. Bruno71  |  August 20, 2014 at 5:50 pm

    I realize you're trying to be funny, but I don't view my comment as "nuts," "pseudo," or "wasting" anything. I am not "on drugs." I'm not presenting it as a probability, but something I fear is possible with a highly contentious issue in front of a highly ephemeral court. I think if you want to do anything but address the issue of what I brought up, it's you who's wasting the comment count.

  • 96. Bruno71  |  August 20, 2014 at 5:54 pm

    Of course all this is true. I'm certainly not arguing otherwise. But that doesn't mean SCOTUS will defer to this logic, if it buys them some "percolation" time.

  • 97. Fortguy  |  August 20, 2014 at 6:01 pm

    No one would have thought just a few months ago that we would have such a string of unbelievable court victories. We cannot count on the federal courts alone being our road to full equality. We were prepared in the past for the long, hard slog of signing petitioners for ballot initiatives, twisting the arms of legislators where we can, mounting challenges in state courts where we have favorable judges, and using the public approval we have in most states.

    It may take us longer to get there, but our opponents must begrudgingly accept when votes show them to be in the minority instead of handed down through "activist federal judges" even though we hate on principle the idea of our rights being held up for popular vote. In the end, the networks we create gaining legislative and electoral majorities in the states will be needed for our next big battle: ending discrimination in employment, housing, and public accommodation everywhere.

  • 98. weaverbear  |  August 20, 2014 at 6:10 pm

    A decision on what forms of contraception a company must provide insurance coverage for made by five Catholic men. My mind still boggles at that.

  • 99. Ragavendran  |  August 20, 2014 at 6:13 pm

    Today's stay is distinguishable from the Prop 8 stay in one crucial aspect. The Prop 8 stay that was in place was issued by the Ninth Circuit, not the Supreme Court, so the Ninth was free to lift it whenever it wanted to, separate from other proceedings in the case. Any party to the case was free to object to it and as we know, there was an emergency application to Justice Kennedy to reinstate the stay which was denied. But today's stay was issued directly by the Supreme Court, so the Supreme Court controls when it is lifted – the matter is entirely out of the Fourth Circuit's hands. That is, if cert is granted and the opinion is released on June 29, 2015, then the Fourth Circuit cannot do anything to lift the stay. It will be lifted only after 25 days when the Supreme Court enters judgment and sends a certified copy of the same down to the Fourth Circuit.

    Also, PACER shows that the mandate (formally dismissing the appeal for lack of jurisdiction) in Hollingsworth was issued by the Ninth Circuit only on August 8, 2013, and in accordance with the rules. Here's the last few entries in Hollingsworth from PACER:

    12/10/2012 Received notice from the Supreme Court. Petition for certiorari GRANTED on 12/07/2012. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, 2 of the Constitution in this case. Supreme Court Number 12-144.
    06/26/2013 Received copy of Supreme Court opinion dated 06/26/2013. The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. Supreme Court No: 12-144.
    06/28/2013 Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) The stay in the above matter is dissolved effective immediately.
    07/29/2013 Received certified copy of Supreme Court 06/26/2013 judgment. On Writ Of Certiorari to the USCA for the Ninth Circuit. This Cause came to be heard on the transcript of the record from the above court and was argued by counsel. On Consideration Whereof, it is ordered and adjudged by this Court that the judgment of the above court is vacated, and the case is remanded to the USCA for the Ninth Circuit with instructions to dismiss the appeal for lack of jurisdiction. Supreme Court case number: 12-144.
    08/06/2013 Order filed for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) In accordance with the Supreme Court’s opinion of June 26, 2013 as well as the resulting judgment, this appeal is dismissed for lack of jurisdiction. The clerk is directed to issue the mandate forthwith.
    08/06/2013 MANDATE ISSUED. (SR, MDH and NRS) Costs taxed against Appellant in the amount of $120.60.

    So you see, the Ninth Circuit had full discretion on when to lift its own stay. The fact that it did so before the Supreme Court entered judgment and sent over the certified copy of the same, was NOT in violation of any rule. And it did wait until it received the certified copy of the Supreme Court judgment before entering its own judgment and issuing its mandate, which was in compliance with all the rules.

  • 100. brandall  |  August 20, 2014 at 6:20 pm

    If you are saying we now have wait for marriage licenses to be issued 25 days after SCOTUS enters judgment (late July), you are not making us feel better on this particular day.

  • 101. Ragavendran  |  August 20, 2014 at 6:22 pm

    There is a formal "questions presented to the Court" section in petitions for writ of certiorari. My understanding may be wrong, but unless the question of civil unions is included there, the Court has no business talking about it, and if it does, that will likely be an extraordinary departure from its practice.

  • 102. peterplumber  |  August 20, 2014 at 6:27 pm

    WEll, as someone said here the other day, SCOTUS granting the stay certainly means they plan to take up this or another ME case. Why else would they grant a stay? The only other hope we can have is that the stay is in force pending petition by the clerk. So let's say she submits her petition, and they don't like it, they can deny grant cert, then the stay dies.

    What worries me most is if we lose in SCOTUS and they say ME is not a right. What happens to us here in California and other states which won the right to marry by court order?

  • 103. weaverbear  |  August 20, 2014 at 6:29 pm

    A question for all here, and from it clearly IANAL.

    So, at what point does this stay disappear? If McQuigg gets her legal papers filed with the court asking for an appeal by late October, how long can SCOTUS sit on it? Can a case sit from one year's session to the next without cert either being granted or denied? What happens if this is NOT the case SCOTUS grants cert on? What happens if they grant cert in Kitchen, but not Bostic?

    While I'm not holding my breath, if there is no split in the circuits, which assumes we win in the appeal just heard in the 6th, as well as the 7th and the upcoming one in the 9th, could the court simply sit on things until the appeal in the 5th is heard (Leon)? If that's the case, are the stays then indefinite?

    I'm not pessimistic here, as much as anxious. Looking at the next election cycle, it's a coin toss of the Dem's losing control of the Senate, and should that happen, just how long will Kennedy, Breyer and RBG remain on the court? As mistrustful as I am of the court as it stands currently, if any of those three are replaced, I fear the court taking an even further shift to the right.

  • 104. Ragavendran  |  August 20, 2014 at 6:35 pm

    I'm disappointed by today's stay, but I'm hoping that the Court will choose at least one of the three appeals now before it to grant cert, holding on to the other cases until it is disposed of, just like what happened with Windsor – the court picked Windsor from the pool, decided it on June 26, and on June 27 denied cert in all other related appeals.

  • 105. Ragavendran  |  August 20, 2014 at 6:37 pm

    I know, but I'm just clarifying what today's stay order says :(
    (By the way, it is 25 days after the opinion is issued when the judgment is entered, so we won't have to wait for another 25 days.)

  • 106. Bruno71  |  August 20, 2014 at 6:38 pm

    Geidner is referring to the fact that SCOTUS still had a say in what happened in Hollingsworth because the bigots had 25 days or so to request a rehearing. The procedure of the case hadn't reached it's finality. So, Geidner makes a speculation that SCOTUS is telling any lower courts to wait until the finality of judgment. Certainly after judgment is final, the stay would dissolve and the judgment would take immediate effect, but I guess the question is: "when is it final?" When SCOTUS says so, I presume.

  • 107. Ragavendran  |  August 20, 2014 at 6:39 pm

    Here's when it is final: http://www.law.cornell.edu/rules/supct/rule_45

  • 108. Bruno71  |  August 20, 2014 at 6:39 pm

    Thanks, this is the first answer that makes sense to me in terms of something that can shackle the court's ability to rule in such a manner. I'd like to know more about to what degree this section ties or doesn't tie the hands of SCOTUS on the issue. Also, how explicitly does a solution need be spelled out for the justices' consideration? If the words "civil unions" or "marriage equivalent" aren't included in the request for cert, are the justices indeed not to look at those types of solutions?

    I have to say, though, I'm still skeptical about the idea that only solutions presented by the parties to the case can be considered by SCOTUS. One often hears about cases around the country where judges go out on limbs and surprise everyone.

  • 109. Ragavendran  |  August 20, 2014 at 6:47 pm

    IANALE, but I think I can answer your questions with reasonable accuracy – others feel free to correct me if I'm wrong. SCOTUS theoretically can hold cert petitions across terms, but as far as I know, they don't do that. If cert is granted in Bostic and they decide favorably next year, then the judgment usually issues 25 days after the opinion is released, and assuming there are no rehearing petitions filed, it will be at least 25 days after the big news headlines before the stay is lifted.

    If the Supreme Court grants cert to another ME case, it will likely hold on to Bostic until the other case is disposed off. If the decision in the other case is favorable, cert will likely be denied in Bostic and the stay immediately dissolves. (If the decision in the other case is unfavorable, cert will be granted in Bostic along with a summary reverse and remand order.)

    Yes, the Court can sit on the cert petitions and wait for a circuit split, in which case the stays are indefinite, but I think it unlikely.

  • 110. weaverbear  |  August 20, 2014 at 6:58 pm

    many thanks – I half expected you might be first to reply. I always look forward to reading your postings – they're clear, concise, thoughtful and without exception, non-incendiary and for that clarity and civility, I thank you.

  • 111. mario315  |  August 20, 2014 at 6:59 pm

    I'm sorry , but this Virginia AG is an asshole…. I just read Chris Geidner's story from yesterday (prior to today's SCOTUS order) where he explains how "strange" the AG's brief to SCOTUS was…. That it looks more like a Law School Exam Essay, arguing BOTH sides of the ME arguments objectively, creating a situation that may come back to haunt us later if this is the case that is granted cert…. Check out the Geidner piece if you haven't already….

    At this point, I hope to God this is NOT the case that we have to rely on for Marriage Equality nationwide….. The thought of this AG handling Oral Arguments next Spring before SCOTUS makes me ill…. I know it's Olson & Boies but the AG would have a role in there also, right ?

  • 112. Ragavendran  |  August 20, 2014 at 7:00 pm

    Actually, now that I think about it, it doesn't have to be that way. For example, consider the following situation. SCOTUS grants cert in Kitchen and holds on to Bostic until Kitchen is decided. Suppose a favorable opinion is released on June 29 in Kitchen. SCOTUS will likely then deny cert in Bostic the very next day (just like it did with the other Windsor appeals), which would mean (according to the wording in today's order) that the stay will dissolve immediately and marriages can begin! And the Kitchen stay was issued by the Tenth Circuit, so it can lift it whenever it wants to after June 29 (the interpretation of the phrase "until the Supreme Court resolves the dispute" in its stay order is up to the Tenth) and hopefully soon like the Ninth did last year. I hope this is more clarifying than confusing.

  • 113. weaverbear  |  August 20, 2014 at 7:01 pm

    Funny, but I never checked to see how the court officially dealt with 8 other cases they had to choose from when they took Windsor and Perry. Thanks for this clarity.

  • 114. Ragavendran  |  August 20, 2014 at 7:03 pm

    You're most welcome :)

  • 115. Bruno71  |  August 20, 2014 at 7:03 pm

    He's politically wishy-washy enough that he may just opt out of any argument. He wouldn't be necessary for our side, for sure.

  • 116. peterplumber  |  August 20, 2014 at 7:04 pm

    I had to look. I don't know why because I always get PO'd when I do, but I went to the NOMblog to see what they had to say.
    We had called upon the Court to take this step and are gratified that they will now be able to carefully consider the issues. This is another indication that the rush to judgment declaring marriage to be unconstitutional is not only premature, but incorrect. The US Supreme Court has determined that states have the right to define marriage and we remain confident that they will uphold all the various traditional marriage laws and constitutional amendments that have been wrongly invalidated by federal judges.
    Sounds like Brian Brown thinks him calling upon SCOTUS had something to do with their decision. I certainly hope the justices are not swayed so easily.
    Then he goes on to spin the continuation of the stay to mean that now SCOTUS has made a determination about ME. Bullshit. Such nonsense. I have never met Brian Brown, but if I ever do, I think I will punch him in his gut, just because he is full of shit.

  • 117. Ragavendran  |  August 20, 2014 at 7:07 pm

    Yes, and while you're at it, kick him in the direction of a law school.

  • 118. Ragavendran  |  August 20, 2014 at 7:11 pm

    I dunno, Bruno. This would be a question for a court observer. Maybe Lyle from SCOTUSblog?

  • 119. Ragavendran  |  August 20, 2014 at 7:12 pm

    There is no doubt now that the Tenth Circuit will issue a stay of the Colorado district court ruling in Burns tomorrow or Friday. AG Suthers wasted no time in filing a supplemental authority with a copy of today's Supreme Court order attached.

  • 120. Ragavendran  |  August 20, 2014 at 7:22 pm

    Like others have said, even if the US Supreme Court holds on to cert petitions or grants any of them, I think ME could come to other states independently due to pending state court litigation, unless a stay of proceeding is requested and granted if and after the US Supreme Court grants cert in a case. I think the states where such litigation is furthest along and whose Supreme Courts could potentially rule in favor of ME by next summer are Arkansas, Colorado, and possibly Florida. Besides, Nevada too, if after the Ninth rules in favor, it also denies to stay pending disposition of timely filed cert petition by intervenor Coalition for the Protection of Marriage (who doesn't have standing to do so, since the NOM and Santai-Gaffney stay denials will be controlling).

    Both the Arkansas and Colorado cases have reached their respective Supreme Courts. For those interested, you can follow the development in the Florida case at the state appeals court level directly here:
    http://jweb.flcourts.org/pls/ds/ds_docket?p_casey
    The Court is waiting for a reply from Appellees Huntsman et al. to Pam Bondi's response by August 23 and will then decide whether to certify the appeal directly to the Florida Supreme Court.

  • 121. bayareajohn  |  August 20, 2014 at 7:44 pm

    NOM is absolutely desperate to appear relevant. If they can step in front of a stay and convince their contributors that they made it happen, the donations might continue a while longer.

  • 122. Rick55845  |  August 20, 2014 at 8:12 pm

    Perhaps you're over thinking this. I don't believe the SCOTUS can or will do what you're suggesting.

    None of the plaintiffs in any of these cases are asking the courts to devise a generalized solution to a harm. They aren't asking any court or justice to invent, suggest, or to impose a solution to address their complaint.

    They are all specifically seeking the right to marry and/or the right to have their marriage recognized, and to have the state prohibitions declared unconstitutional.

    CU is not a component of their suits, not discussed in their briefs, and is not on the table at all. Whether a judge opines about CUs or DPs or not, it's not going to be imposed as a solution or a substitute for a ruling on the constitutionality of state same-sex marriage or recognition bans.

  • 123. Bruno71  |  August 20, 2014 at 9:21 pm

    I respect your opinion, but I still can't see how the simple fact that the plaintiffs aren't *asking* for civil unions or marriage equivalents prevents the justices from taking that option to resolve the case should they think it would do so. Remember, this is if we're assuming that one or more of them aren't ready to impose the "50 state solution" yet, but also are not willing to find no constitutional right to marriage equality either. What exactly is stopping them from doing this, other than "it's not in the briefs"? What are the justices bound by?

  • 124. Bruno71  |  August 20, 2014 at 9:23 pm

    Well, looking at the dreaded upvotes/downvotes, apparently I AM all those things. I'm obviously not worthy of this site, and will not frequent the comments section anymore. Thanks for the memories.

  • 125. StraightDave  |  August 20, 2014 at 10:08 pm

    Well, if they don't like the 50 vs 0 options, they can always deny cert and slow-walk the whole thing for another couple years while the circuits keep piling up in the victory column. What 5 of them are going to have a really hard time doing is going backward now. I just don't see it. We could be at 35 states next June without SCOTUS or the 6th. They wanted percolation, and they got it.
    Anyway, I apologize for my ultra-snarkiness earlier, but some rendition of it was probably unavoidable.

  • 126. bayareajohn  |  August 20, 2014 at 10:39 pm

    TWO downvotes [at the time of your resignation] and you turn and run? What kind of world would LGBT have if we all were so damned worried about people agreeing with us? Go. Find a place where everyone agrees, of course that's a place where no one dares have an opinion. We'll wait right here and argue about when you'll be back, fearlessly downvoting each other if it occurs to us to do so. Or not.

    Cartman sez, "Screw you guys, I'm going home" anytime someone has an idea that isn't his. Are you Cartman? Stan is willing to be ridiculed for feeling differently, and while he doesn't like it, it makes him stronger and he's often right. Are you Stan?

    Really. Two downvotes and you can't take it. Maybe you are too fragile for the Internet. Too bad, I thought you had interesting things to say.

  • 127. jjcpelayojr  |  August 20, 2014 at 11:54 pm

    For SCOTUS to say ME is not a right would go against Turner v Safley, Zablocki, Lawrence, Windsor, Loving and countless other precedents used for jurisprudence.

    Despite my disappointment against the stay, there's honestly very little reason (e.g. Baker) for SCOTUS to NOT grant ME.

  • 128. jjcpelayojr  |  August 21, 2014 at 12:00 am

    While I join others in the disappointment in the stay, it's not unexpected. However, with the mounting federal cases stayed as a result of waiting on a SCOTUS cert, whichever case the SCOTUS picks, I do hope that the lawyer for that case points out that countless thousands of U.S. citizens are suffering harm as a result of SCOTUS decision on ME. And the more cases that are stayed, the merrier. For to uphold marriage bans would be to fragment the equal protection clause that allows citizens to transport their marriages across state lines, which has NEVER been an issue amongst states, until the LGBT community wanted access to the right.

  • 129. jjcpelayojr  |  August 21, 2014 at 12:03 am

    Yes, but even if that state supreme court ruled in favor of ME, the state officials can appeal to the federal level, and even if they know they'll lose, they are essentially assured a "stay" on each subsequent decision. Anything they can do during an election year to show they did their best in staving off the homosexual agenda to their constituents will be their myopic vision to serve their constituents.

  • 130. Lynn_E  |  August 21, 2014 at 12:29 am

    Civil Unions as a solution would cause more problems than it would solve. You have to remember that CUs were also seen as a solution to elderly couple's problems keeping their Social Security Survivor Benefits. If the Federal Government suddenly acknowledges one class of CUs, and holds them equivalent to marriage, it changes standing for all purposes. At this stage, that ship has sailed.
    And don't pay attention to upvotes/down votes. The negatives were likely a reaction to the thought of "separate but equal" rearing its ugly head, and not to be taken personally.

  • 131. Margo Schulter  |  August 21, 2014 at 1:20 am

    The weird thing I realized from reading Chris Geidner on Attorney General Herrings brief in favor of stay is that — given the task at hand — I really enjoyed Herring’s approach, and felt no contradiction between saying the case for marriage equality is very strong, and yet there is enough uncertainty to warrant a stay.

    The critical point here might be the meaning of “fair prospect” or “reasonable probability.” The latter standard comes up in deciding whether, in a Sixth Amendment case on whether a criminal defense attorney rendered ineffective assistance of counsel (IAC) where the court finds that the attorney’s performance was deficit, there was prejudice — that is, a “reasonable probability” that the result would have been different with competent counsel.

    “Reasonable probability” doesn’t mean 50%, but some substantial possibility of a different result.

    So one could well have a Herring-like perception, “Yes, there’s enough uncertainty to warrant finding prejudice and remanding for a new trial; but a new verdict of conviction is what almost everyone is expecting.”

    It’s a bit like a defense attorney’s perception: “Yes, the prosecution has made enough of a prima facie case to prevent a directed verdict of not guilty; but I’m quite confident that the jury is going to acquit.”

  • 132. Sagesse  |  August 21, 2014 at 3:52 am

    Plus, all the 9th did was issue their mandate a few days in advance. They would have issued it regardless. Not the same a granting heightened scrutiny when the SC wishes they hadn't.

  • 133. RLsfba  |  August 21, 2014 at 4:33 am

    Great clip about ME armagayddon in Ireland.
    http://www.breakingnews.ie/discover/irish-parody-

  • 134. Zack12  |  August 21, 2014 at 5:06 am

    From my understanding, the only court they could appeal to would be SCOTUS.

  • 135. JohnnyInVA  |  August 21, 2014 at 5:48 am

    Before June, I wouldn't have thought that your scenario, Bruno, would have been possible. Normally the court only addresses the question directly before it, and CU don't show up in any of these cases.

    But then Hobby Lobby was handed down. SCOTUS outright handed a solution that wasn't directly part of the case (because if they had, I think the court probably would have struck that down, too, unfortunately). Now while Hobby Lobby wasn't an outright mandate on using this other means for getting free birth control to HL's female employees, it was clear that that option being available played a part in weakening the administration's case.

    That said, my worry is that this opens up the possibility that Kennedy could rule against marriage and say "hey, look, I know not having rights and whatnot stinks, but there's this other option that legislators, you're welcome to try: civil unions". Alternatively, I think it's entirely possible Kennedy could rule against marriage by say that giving gay couples access to equal rights is the real issue before the court and that civil unions are the minimum but there is no constitutional right to call your relationship a "marriage".

    I'm hoping that this is unlikely, but Hobby Lobby definitely makes me worried that it's possible. Please, someone, talk me off the ledge!

  • 136. JayJonson  |  August 21, 2014 at 6:13 am

    Thanks, Ragavendran, for the detailed timeline.

  • 137. JayJonson  |  August 21, 2014 at 6:21 am

    Please don't bail on us, Bruno. You make some excellent comments. Just because some of us don't agree with all of them doesn't mean that you are not appreciated or even that you are wrong.

  • 138. Dann3377  |  August 21, 2014 at 6:49 am

    Wait what?! CIVIL UNIONS? How on earth did we go from MARRIAGE to cu? I read this site everyday and I post occasionally so I want to voice my opinion on this. 19 states with ME, dozens of wins in state, federal and circuit courts, (forget about that bogus bigot Tennessee judge) lawsuites filed in every state and thousands of LEGALLY MARRIED COUPLES in Wisconsin, Utah, Arkansas, Michigan and Indiana. We've come so far and so fast and with public opinion on our side not to mention these bans are CLEARLY a violation of the 14th Amendment and then some, we will not lose at the SCOTUS. I refuse to believe that all these judges in courts across the nation got is wrong. The mere mention of cu or dp at this point IMO is asinine and not even worthy of discussion. It's not even in the realm of a possibility IMO.

  • 139. brandall  |  August 21, 2014 at 6:51 am

    My dearest virtual buddy, that is a TERRIBLE idea. It would legitimize him if he could state he was a lawyer. Maybe we can kick him in the direction of a waste recycling school. He already knows a lot about this topic.

  • 140. brandall  |  August 21, 2014 at 6:58 am

    It just dawned on me there is one good reason for the awful gay=stays and all the courts pending their cases. ADF and NOM won't have any cases in motion, they can't claim they despartely need money to fight all of these cases. And if SCOTUS does not grant writ on Bostic, they won't have a case where they are the lead counsel. Obviously, this has nothing to do with which case (s) SCOTUS selects nor the outcome of our quest.

  • 141. brandall  |  August 21, 2014 at 7:05 am

    Don't rule out the elections in November. FL Gov and AG contests are up in the air. Bondi is polling tightly in FL against one of the two potential Democratic rivals. Crist is basically tied with Scott. The primary for the Democratic AG's is next week. Stay tuned.

  • 142. brandall  |  August 21, 2014 at 7:24 am

    I concur and my fingertips typed nothing in reply to those comments. As a daily contributor, yesterday's "greatest gay stay" was frustrating to a lot of folks including me. Some folks were even angry. Even though there was a slim to none chance of the stay being denied, there was a hope we would be pleasantly surprised. Commentors scattered all over the place in the if's and what's. I can understand.

    DoctorHeimlich commented, "I think the alarmist reaction is uncalled for."….That sums it up best for Wednesday, 8/20/14. Now, back to MARRIAGE EQUALITY.

  • 143. F_Young  |  August 21, 2014 at 7:29 am

    Lively claims to already have a Law degree, a Juris Doctor of Law from Trinity Law School (in Santa Ana, California) as well as a certificate in human rights from the prestigious International Institute of Human Rights in Strasbourg, France.
    http://www.defendthefamily.com/pfrc/archives.php?…

  • 144. brandall  |  August 21, 2014 at 7:36 am

    Trinity: "The Center for Human Rights provides research and educational opportunities for the integration of biblical principles and international human rights laws."

    IIHR (Strasbourg): "This program provides students with the opportunity to examine contemporary human rights issues from a Christian perspective"

    With the Bible on their side, they are always right. /EyeRoll*

    * Not meant to disparage those with Christian values who don't "crusade" to make the U.S. a theocratic country.
    http://lawschool.tiu.edu/what-we-do/the-center-fo

  • 145. rob2017  |  August 21, 2014 at 7:37 am

    Well, yes, I am very disappointed about yesterday's decision as my fiancé and I were planning to be married in Arlington this morning. I feel "empty" right now. We may decide to get married in Maryland instead and hope that our marriage will eventually be recognized in VA, where it counts.

  • 146. MichaelGrabow  |  August 21, 2014 at 7:39 am

    Can someone confirm if he would have any involvement with the oral arguments? He did not when the case was in front of the fourth circuit.

  • 147. ragefirewolf  |  August 21, 2014 at 7:49 am

    Unfortunately your second statement isn't quite true. Lower courts can either postpone their cases until SCOTUS rules or stay any and all rulings until SCOTUS rules. I hope they don't, but it's not looking good so far.

  • 148. jjcpelayojr  |  August 21, 2014 at 7:52 am

    My mistake, you are correct Zack12. Serves me right for writing things with 3 glasses of wine in me:).

  • 149. brandall  |  August 21, 2014 at 7:55 am

    Unlike the stay motion where there were 3 parties with 3 different positions, he will be entitled to request to be heard since he represents Rainey. However, unlike the stay motion, he is in agreement with the Plaintiff's the ban is unconstitutional. Hopefully, he will have previously worked out an agreement with Boies & Olson to cede a formal request for time.

  • 150. ragefirewolf  |  August 21, 2014 at 7:57 am

    Dave is unfortunately correct. The 6CA could very well rule against marriage equality and will likely stay that position now that SCOTUS has stepped out in front and made it clear it will keep this up.

    Unless they aren't. Could it be they will let the 9th or 7th Circuit's slide by? I doubt it. Just watch them be as unpredictable as they are unknowable (or try to be).

  • 151. brandall  |  August 21, 2014 at 7:58 am

    Yup. And we are going to see a ton of motions to delay pending SCOTUS starting today. I am counting up how many cases "could" take this path right now.

  • 152. LK2013  |  August 21, 2014 at 9:17 am

    rob2017, condolences on the delay affecting your marriage plans in Virginia. I encourage you to just head to Maryland and marry because you will accomplish FEDERAL recognition at least for your marriage.

    Plus there are many rights which depend on the length of marriage, not just its initial recognition.

    So it is best to start the clock ASAP.

    Once the Federal government announced August 29, 2013 that if you marry in any state legally, you will be afforded Federal marriage rights even if your own (backwards) state does not recognize your marriage, we headed to New York and married in early September 2013. I could not bear to wait a minute longer for New Jersey to continue with the bs delays and court battles. Fortunately, NJ got marriage in late October, but it could have ended up in the same situation so many other states are in now, if Christie had not dropped his appeal. Who knows what the future holds, so we went for the sure thing now.

    Why wait?

  • 153. davepCA  |  August 21, 2014 at 9:50 am

    I think I stand corrected – there IS something that can be said to the couples in Virginia, and I think LK2013 just said it very well.

  • 154. brandall  |  August 21, 2014 at 9:52 am

    LK2013 is right on about securing your legal place in line for various benefits.

    However, getting married in Arlington seems to be important to you and getting married in Maryland is not. We were married at our place in SF. That was important to us. So, if VA is where your heart is set on getting married, wait it out. But, you should start planning now. The wedding planners are going to be very busy in July and/or August 2015.

  • 155. davepCA  |  August 21, 2014 at 9:56 am

    Look down a few comments to dann3377 and related responses. No need for any of us to be distracted by these random and unfounded 'whatif' concerns.

  • 156. davepCA  |  August 21, 2014 at 10:00 am

    I have noticed that I'm getting fewer and fewer emails from NOM. (I'm on their list so I can keep tabs on them). Lately they just don't seem to have anything to say…….

  • 157. brandall  |  August 21, 2014 at 10:03 am

    Here's the latest on NOM from this morning and it is actually good news. Stupid of them because it will drop the $$$:
    http://www.towleroad.com/2014/08/nom-leader-jenni

  • 158. davepCA  |  August 21, 2014 at 10:06 am

    That. Was. Hilarious. Thanks! : )

  • 159. FilbertB  |  August 21, 2014 at 10:12 am

    Hi Bruno – if you look at the history of your comments you will see you have received MANY up votes -and that is because you are a valuable and insightful member of this board. Please do not quit the board.
    Please continue to comment.
    We should all of us here note that in this thread and in some other threads we are dealing with possible outcomes, "reading the tea leaves", speculation on possibilities. We can disagree and frankly we call all do this without saying things that would hurt someone's feelings. We are all here in this thread supporting marriage equality. We are all a family of like-minded people.
    I hope that you read this, Bruno and will return.
    Respectfully,
    Fil

  • 160. davepCA  |  August 21, 2014 at 10:13 am

    Well, speak of the devil – I just this moment got an email from NOM!

    It's their bog-standard plea for cash, this time trying to leverage the news about the stay. It's hilarious! Here's an excerpt:

    "Yesterday, the US Supreme Court intervened to grant a stay — a delay in the implementation of a lower court's ruling pending legal appeal — in Virginia, halting the redefinition of marriage in its tracks in the Old Dominion!"

    "Let me remind you that one of the conditions for overturning a lower court's decision in granting a stay is the reasonable expectation of victory on appeal!"

    …. and they put that last bit in BOLD, too, so they are really really excited about their expectations of victory! …..Wow.

  • 161. brandall  |  August 21, 2014 at 10:20 am

    TEASER ALERT

    The kid in the box …. OMG….

  • 162. rob2017  |  August 21, 2014 at 10:52 am

    Well, NOM is correct in interpreting one of the criteria in granting a stay. Unfortunately SCOTUS doesn't seem follow those rules anymore (or they may, which has me a bit worried).

  • 163. sfbob  |  August 21, 2014 at 11:10 am

    It seems pretty evident to me that SCOTUS issued the stay for the sole purpose of controlling the process by which marriage equality becomes legal nationwide. Nothing more than that should be read into it.

    That isn't really a correct application of the rules but then again, if the Supreme Court violates its own rules, who is there to complain to? It's not as though anyone has the authority to overturn THEIR decisions other than through new legislation. And given how effective the current Congress is, that's just not gonna happen.

  • 164. brandall  |  August 21, 2014 at 11:26 am

    I tried to raise the question of how to change the AC and SCOTUS stay process yesterday, but it was buried in the avalanche of comments over yesterday's ruling. If you would….suppose I'm Sen. Soandso and I want a new stay legislature that says, "in the event of a fundamental rights issue, where two or more Appeals courts rule a right is being denied, there shall be no stays allowed at the AC or SCOTUS level." I would take that to Congress to be passed? Just curious about the process and not my way too simple example.

  • 165. Ragavendran  |  August 21, 2014 at 12:09 pm

    Well, I didn't expect him to get a law degree. Oh no. I was thinking more along the lines that when he tries to toot his horn and sell his BS there, he'll get soundly thrashed by the school and be credibly exposed to his donors/followers as to what a quack he is :)

  • 166. Ragavendran  |  August 21, 2014 at 12:15 pm

    It would depend on the rationale of the State Supreme Court. If they rule only on the basis of the state constitution, like it seems possible for example in AR, then there will be no more appeals.

  • 167. brandall  |  August 21, 2014 at 12:21 pm

    At 8am in the morning (when you posted this) or are you in Australia?

  • 168. Dr. Z  |  August 21, 2014 at 12:29 pm

    Correction: really happy or really pissed off and determined not to take this lying down. If ever there was a valid analogy to Roe, it's that SCOTUS ruling against ME would be courting a huge, determined political backlash.

  • 169. Dr. Z  |  August 21, 2014 at 1:27 pm

    Well, if SCOTUS ultimately rules against us, they can look forward to a couple million pissed off queers showing up in Washington for the first of what is likely to become a series of protests aimed straight at them. That happened after Bowers – the Great March in 1987 was a direct reaction.

  • 170. sfbob  |  August 21, 2014 at 1:35 pm

    To be honest I don't know to what extent the legislative branch can dictate procedure to the judicial branch. There are separation of powers implications to that.

    As far as I know the courts pretty much prescribe their own rules. And here's the thing: suppose a a law were passed in the form you suggest and suppose the Supreme Court simply chose to ignore the law and issue a stay anyway. What recourse could there possibly be? The Supreme Court basically answers to nobody. The only thing to be done would be to impeach the lot of them which I doubt Congress would be willing to do for reasons that should be obvious. And of course who is it that presides over an impeachment hearing? Why…the Chief Justice of course.

  • 171. brandall  |  August 21, 2014 at 1:44 pm

    Bruno – yesterday was a rough day for a lot of us. Emotions were running high and I really expected a bunch of virtual disagreements to break out just because folks were very ticked off. Please reconsider. You add value to this site.

  • 172. Dr. Z  |  August 21, 2014 at 2:19 pm

    Furthermore, any proported "solution" mandating civil unions would subject the court to widespread criticism that they'd pulled another Plessy v Ferguson, one of the worst decisions in SCOTUS history. They won't go there IMHO.

  • 173. jjcpelayojr  |  August 21, 2014 at 4:36 pm

    the first post I made that Zack replied to was at midnight…3+ glasses of wine into the evening:)

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