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New petition to review Virginia same-sex marriage case filed at Supreme Court

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
Prince William County Circuit Court Clerk Michele McQuigg has filed a petition in the Supreme Court asking the Justices to review the Fourth Circuit Court of Appeals decision striking down Virginia’s same-sex marriage ban. This is the last expected petition: Norfolk County’s Circuit Court Clerk filed his own petition, and Virginia’s attorney general, Mark Herring, filed one as well.

The Justices hold their first conference on September 29, where they’ll look at several petitions for review and possibly decide whether to take one up.

SCOTUSBlog has more:

A key facet of the new petition, McQuigg v. Bostic (not yet assigned a docket number), was a suggestion that the Court put its primary focus on the basic issue of state power to restrict marriage to opposite-sex couples, thus leaving aside for now the separate issue of state authority to refuse to recognize already existing same-sex marriages. Even so, the new filing also gave the Court an optional bit of advice about taking on the recognition issue, too.

The petition filed for Prince William County Clerk Michele B. McQuigg is now the fifth to reach the Court on the controversy after a wave of lower court rulings — striking down state bans in almost all of the cases so far — that had followed the Supreme Court’s decision fourteen months ago in United States v. Windsor, on the federal Defense of Marriage Act. Other cases are moving toward the Court, but none of those is yet ready for a petition to be filed because they are awaiting appeals court decisions.

The normal timing rules of the Supreme Court may mean that the McQuigg petition was filed too late to be ready for the Justices to examine at their first private Conference of the new Term — on September 29. That is the session at which lawyers in other cases have been aiming as they hurried to file the needed papers.

Decisions from the Sixth and Seventh Circuits are pending, and the losing party in those cases will likely ask the Justices to hear them as well.

Thanks to Equality Case Files for these filings

93 Comments

  • 1. Ragavendran  |  August 29, 2014 at 12:37 pm

    One of the claims made by McQuigg stands out here. She says that she, and not Rainey, has standing to ask the court to rule on the right to marry in Virginia, but when it comes to the marriage-recognition part, it is Rainey and not she that has standing. If the Supreme Court agrees, then it would be very convenient for the Court to separate the issues if it wants to, and grant cert according to which issue(s) the Court wants to address. (That is, we need not wait for a case like Ohio's marriage-recognition-only case to reach the Supreme Court for it to be able to isolate just that thread of the issue.)

  • 2. Mike_Baltimore  |  August 29, 2014 at 12:41 pm

    Not wanting to help the states that ban recognition of 'certain' marriages from other states, but their argument about not recognizing marriages performed in other states would be enhanced if they actually did look at marriages from other states, and determine if those marriages were 'good or bad'.

    As an example, in Pennsylvania, first cousin marriage is not allowed. Many PA couples who are first cousins get around that law by going to a neighboring state (except OH, DE and WV), get married, then return to PA to live the rest of their lives, and PA recognizes them as a married couple. Indiana also recognizes first cousin marriages legally performed in other states.

    In fact, I can't think of any law the states enforce (except Marriage Equality) where someone married in another state is prosecuted, or their marriage not recognized by the state. Even Wisconsin's 'underage marriage' law is now in effect moot, since all but three states have the same age for marriage as WI, and the remaining three have ages above the age allowed in WI. Has WI enforced any of the other provisions of that law? Not that I've heard.

    I can take solace that if any state now tries to 'review' marriages from other states, it is too late to affect current court cases, and most such attempts likely would be ruled unConstitutional as an infringement on the Constitutional right to travel and live where one wants.

  • 3. Ragavendran  |  August 29, 2014 at 12:49 pm

    Plaintiffs and Intervenor in Nevada's Sevcik have filed their briefs due today at the Ninth Circuit specifically addressing the issue of whether Intervenor CPM has standing or not:

    Plaintiffs' Brief: http://www.scribd.com/doc/238091181/12-17668-243
    Intervenor CPM's Brief: http://www.scribd.com/doc/238110515/12-17668-244

    Plaintiffs point out that CPM is a defendant here, and therefore, need not demonstrate standing for this case (and CPM agrees on this point in their brief), and the issue need only be addressed if the Plaintiffs prevail here and none of the other defendants appeal further and CPM alone tries to do so. I guess Sandoval's brief on this issue will be filed soon.

  • 4. sfbob  |  August 29, 2014 at 1:05 pm

    An excellent set of points. I believe the recognition of non-sanctioned marriages played a part in the federal court decision that was issued in Florida this week (or was it last week?). The judge noted that the state can't use federalism (in the form of some sort of absolute sovereignty) as the basis for defending its marriage equality ban when it routinely recognizes marriages performed in other states, other than those involving same-sex couples, thereby countenancing other states' definitions of marriage.

  • 5. franklinsewell  |  August 29, 2014 at 4:00 pm

    I don't know if Sandoval via Atty. General Catherine Cortez-Masto will file a brief on this issue, because they informed the court they would no longer defend the law.

  • 6. Ragavendran  |  August 29, 2014 at 4:11 pm

    Yeah, good catch! They've been absent on PACER for a while. I just checked, and in an early August filing, they said the following, addressed to the court clerk:

    Dear Ms. Dwyer:
    This is to acknowledge receipt of the hearing notice given for oral argument in the case listed above. I also wish to respectfully indicate that counsel for Governor Brian Sandoval does not intend to appear or to present argument at the hearing.

    Wow, so it's just going to be the Plaintiffs against CPM during oral argument!

  • 7. franklinsewell  |  August 29, 2014 at 4:28 pm

    I wish I could afford PACER. I went a little crazy when I first logged onto it, so I've been avoiding it. 😉

    My own opinion after reading the letter-briefs is that Intervernor has standing to argue before the 9th. I think Intervenor will attempt to appeal the 9th's pro-ME ruling, but the Supremes will deny that attempt.

    You can't argue that you have a justiciable injury just because someone says you have animus/are bigots.

    (And, since I'm from Nevada, I can say that the leader of the "Coalition to Protect Marriage" does have animus and is bigoted towards gay folk.)

  • 8. Zack12  |  August 29, 2014 at 4:33 pm

    Their last brief that they filed blew up in both of their faces.
    Also, both have their eyes set on higher political offices (Senate) and would like this issue to go away.

  • 9. Rick55845  |  August 29, 2014 at 5:25 pm

    They who, please? Sorry, I'm not familiar enough with the Nevada case to figure out who you are referring to. :)

  • 10. Elihu_Bystander  |  August 30, 2014 at 6:01 am

    This may be what is being referred to: CMP first filed an answering brief and had to go back and submit a supplemental answering brief. Here are the links.

    CPM Answering Brief DTD 21-JAN-14 http://cdn.ca9.uscourts.gov/datastore/general/201

    CPM Supplemental Answering Brief DTD 13-FEB-14 http://cdn.ca9.uscourts.gov/datastore/general/201

    Keep in mind this case was decided pre-Windsor and that the plaintiffs lost at the district court. The state prevailed. Therefore, it is the Plaintiffs who are the appellants, and they are seeking a reversal of the district ruling.

    As a result of the SmithKline case, the state appellees withdrew their answering briefs and have stated their previous position is now indefensible and have withdrawn from the case. That leaves CPM the only defendants supporting the marriage bans.

  • 11. JayJonson  |  August 30, 2014 at 6:35 am

    I assume that the referents in the phrase "both have their eyes set on higher political offices" are Governor Sandoval and Attorney General Cortez-Masto. Is this correct?

  • 12. Ragavendran  |  August 30, 2014 at 8:54 am

    While the defendants Sandoval et al. might have conceded that their position is indefensible, they still continue to enforce the law. They might have withdrawn their briefs and refused to appear at oral argument, but technically they are still proper defendants in this appeal. But you are right that CPM is the only one defending the law now.

  • 13. andrewofca  |  August 30, 2014 at 10:42 am

    Great article on Judge Posner. I think I'm developing a judicial crush on him.

    “Look, they could have trotted out Edmund Burke in the Loving case. What’s the difference?"

    http://ethicsalarms.com/2014/08/30/ethics-hero-ju

  • 14. robbyinflorida  |  August 30, 2014 at 10:58 am

    What day is the NV hearing?

  • 15. Zack12  |  August 30, 2014 at 11:25 am

    Yes to both.
    Cortez-Masto in particular got a HUGE backlash from the Democratic base for her brief which had many of the anti-gay talking points we've all come to know and love.

  • 16. Ragavendran  |  August 30, 2014 at 12:34 pm

    September 8. We'll know the panel Tuesday morning.

  • 17. Zack12  |  August 30, 2014 at 1:41 pm

    Let's hope it is a good one.
    A negative ruling would likely be reversed en banc but I'd rather not go down that road.

  • 18. Ragavendran  |  August 30, 2014 at 5:47 pm

    I'd rather a negative ruling be appealed directly to the Supreme Court so we bombard them as much as possible, but yeah – fingers crossed for a good panel announcement on Tuesday.

  • 19. OctaA  |  August 31, 2014 at 1:45 am

    http://www.pinknews.co.uk/2014/08/30/hawaii-gover

    Thought this article was interesting. I remember seeing a comment soon after the hawaii primary discussing this and pointing out that all the legislators who voted for marriage equality won their primaries and that Ige is also a supporter of marriage equality so why vote for Ige if you wanted to stick it to Abercrombie for his support of marriage equality?

    But Abercrombie seems to believe that his support for marriage equality was the reason, or at least a factor in the reason he lost the primary.

  • 20. Zack12  |  August 31, 2014 at 6:53 am

    The issue is that a negative ruling could set us back with Prop 8 and elsewhere in the 9th.
    Would rather not see that happen.

  • 21. JayJonson  |  August 31, 2014 at 7:16 am

    He seems to blame the loss on the fact that Hawaii has an open primary in which Republicans can vote on the Democratic race. Lots of religious folk, who usually vote Republican, were incensed that Abercrombie called a special session of the legislature to push through marriage equality. The result was the ugly specter of busloads of ill-informed bigots lined up to make hateful comments during the public comment sessions, and continued resentment by them against Abercrombie in particular. They know they cannot reverse the decision, but they wanted to punish Abercrombie and they did. Ige supported marriage equality, but he did not take a leadership role. He certainly will not support any attempt to change the marriage equality law, but he is not the great champion of lgbt rights that Ambercrombie is.

  • 22. Zack12  |  August 31, 2014 at 9:25 am

    Still, I don't like him saying this.
    There were many reasons he lost, marriage equality is at the bottom of that list.

  • 23. Ragavendran  |  August 31, 2014 at 11:19 am

    Oh, you mean if SCOTUS denies cert in every marriage equality case? That's all the more unlikely if, as we are hypothesizing for this discussion, the Ninth affirms the district court in Nevada's case, since that would guarantee a post-Windsor circuit split if one doesn't exist by that time already. If they grant cert in at least one of them (probably too late for Nevada specifically), then whatever they say is the law in the entire country, including the Ninth. So, I don't see a difference in asking the Ninth to rehear en banc versus going directly to SCOTUS in this case. Perhaps I'm missing something here?

  • 24. FredDorner  |  August 31, 2014 at 12:26 pm

    Of all the things for Zack to worry about that seems to be at the very bottom of the list. Given heightened scrutiny I have a hard time seeing any panel affirming Sevcik, even the judge who opposed the heightened scrutiny standard.

    Personally I'd like to see the Idaho case get on the SCOTUS docket precisely because of the heightened scrutiny analysis used in that ruling and the finding that the ban was rooted in anti-gay animus. It also explicitly addresses the heightened scrutiny analysis used in Windsor, so it's a perfect opportunity for SCOTUS to clarify the issue for the other circuits.

  • 25. andrewofca  |  August 31, 2014 at 1:09 pm

    Would be nice, but somehow I doubt we'll get heightened scrutiny from SCOTUS. Even Kennedy wouldn't vote for a new suspect class.

  • 26. bayareajohn  |  August 31, 2014 at 1:16 pm

    I agree that the Court does not seem to want to add new suspect classes. This is why the equal protection and fundamental right paths are appealing, they can trigger heightened scrutiny without regard to suspect classes.

  • 27. Marekweber  |  August 31, 2014 at 1:46 pm

    I'd go further. Abercrombie's comments are a repudiation and betrayal of the gay community. He's effectively claiming that supporting gay rights in a blue state is politically toxic to the point of being a kamikaze mission. How is that supposed to help our cause? This plays entirely into the bigots' hands. Brian and Maggie can now point to Abercrombie's comments and say, "Here's a governor who freely admits that he was defeated for supporting same-sex marriage."

    The truth: Abercrombie was defeated because he was an ineffectual, chronically unpopular governor who fell foul of the Hawaii Democratic machine. His numbers were in the toilet long before he called the special session. Democrats sensibly abandoned him because he was a weak candidate who would have lost to a Republican challenger. Now that he's fallen flat on his face, he's trying to rewrite history and blame the gays for his defeat. He wants people to believe that he would have romped to victory if only he had not associated himself with the toxic cause of marriage equality. (Which his primary opponent also supported!) And after dealing an ace to the bigots, he expects gay people to revere him as some sort of self-sacrificial champion.

    With political instincts like this, it's no wonder he burned every bridge and got his ass kicked in the primary. It's a wonder he ever got elected in the first place.

  • 28. FredDorner  |  August 31, 2014 at 2:03 pm

    "Even Kennedy wouldn't vote for a new suspect class."

    And yet that's exactly what he implicitly did in his Windsor ruling, as every federal court since has noted. Moreover the 2nd Circuit explicitly used heightened scrutiny in their Windsor ruling and SCOTUS accepted that without comment.

  • 29. Ragavendran  |  August 31, 2014 at 2:06 pm

    Ninth Circuit will video stream the oral arguments LIVE:
    http://www.ca9.uscourts.gov/content/view.php?pk_i

    Public seating in Courtroom One will be extremely limited and likely to be quickly filled. Those unable to get a courtroom seat will be able to watch live video in viewing areas elsewhere in the building. This will be the same video streamed to Internet viewers.

  • 30. Ragavendran  |  August 31, 2014 at 2:21 pm

    A sufficiently bigoted worst-case panel could simply rubber-stamp this brief (starting at Page 8) from CPM that argues, first, why SmithKline doesn't apply here, and second, even if it applies, Nevada's laws withstand it. I think that is what Zack is alluding to, and I would tend to agree, provided we get such a worst-case panel.

  • 31. Ragavendran  |  August 31, 2014 at 2:28 pm

    This keeps bringing me back to this point I've raised before. Legal scholars, please enlighten me here: what does SCOTUS mean when they say in a ruling that they "affirm" the lower court? Does it mean they affirm their holding? Their reasoning as well? What? The Second Circuit, in Windsor, did explicitly say that DOMA is subject to intermediate scrutiny under the Cleburne factors. If the Supreme Court, in saying "we affirm", also approved this, then why isn't heightened scrutiny for sexual orientation still not considered the law of the land?

    The Second Circuit also held that Baker does not foreclose Windsor's claim. But only deeper in the opinion do they explain the reasons why and one of the reasons is that Baker is no longer good law because doctrinal developments have overruled it. Did the Supreme Court affirm all of this as well? Legally, if it did, why is Baker still such a big issue?

  • 32. Ragavendran  |  August 31, 2014 at 2:41 pm

    You mean due process and fundamental right paths – the ones that the Fourth and Tenth Circuits took. I agree. With equal protection, there are two paths – one is that even under equal protection, laws are subject to strict scrutiny regardless of the classification used when a fundamental right is being denied. Second, if that is not the case, then you get to the levels of scrutiny based on the classification that is used for unequally treatment.

    But the district judge from Kentucky, in Love, seemed to think, and explicitly said so in his opinion, the opposite:

    This Court’s opinion differs in that it does not determine whether Kentucky’s laws interfere with a fundamental right. The Court’s chief reason for declining to do so is its careful reading of Windsor, which suggests that the Supreme Court is unwilling and unlikely to view the right Plaintiffs seek to exercise as fundamental under the Constitution.

    I really want the Supreme Court to use equal protection and heightened scrutiny – that would take care of all sexual orientation based discrimination in all states in one fell swoop. Not just marriage.

  • 33. Zack12  |  August 31, 2014 at 2:42 pm

    Thank you Rag.
    NOt trying to be an alarmist but simply pointing out the fact that the wrong panel could really ruin our day.
    For us, the worst case panel will be one that has Diarmuid O'Scannlain with Jay Bybee or Carlos Bea on it.
    They have voted with O'Scannlain each time he has tried to muck up any equality case with an en banc hearing, I'm sure they'll have no qualms doing just what you suggested.

  • 34. Mike_Baltimore  |  August 31, 2014 at 4:19 pm

    According to the 'legal dictionary', suspect class applies to:
    "A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy."

    Under heightened scrutiny, ME couples are not included as a suspect class. Suspect class is reserved ONLY for strict scrutiny. What heightened (aka intermediate) scrutiny means is that the governmental entity needs to specifically identify the important government interest the law or policy being challenged furthers in a way that is substantially related to that interest.

    Strict scrutiny requires narrowly tailored and least restrictive means to further a compelling governmental interest.

  • 35. ebohlman  |  August 31, 2014 at 5:16 pm

    A classification subject to intermediate scrutiny is commonly called a "quasi-suspect" class.

  • 36. jm64tx  |  August 31, 2014 at 5:33 pm

    No he didnt.

    "The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State."

    "This opinion and its holding are confined to those lawful marriages."

    That is clearly not a new suspect class. That is merely saying what the State gives the federal government cannot take away.

  • 37. jm64tx  |  August 31, 2014 at 5:37 pm

    Notice what they said:

    "The judgment of the Court of Appeals for the Second Circuit is affirmed".

    IOW, the 2nd circuit opinion and its holding are not affirmed … only the judgment is correct.

  • 38. Sagesse  |  August 31, 2014 at 5:55 pm

    I don't understand your concern. It is hard to imagine a decision like that would withstand en banc review in the 9th Circuit.

  • 39. Zack12  |  August 31, 2014 at 5:58 pm

    Indeed… I lost a LOT of him respect for him with this Marek.

  • 40. Zack12  |  August 31, 2014 at 5:58 pm

    It wouldn't but it would muck up everything in the mean time.

  • 41. Ragavendran  |  August 31, 2014 at 6:46 pm

    Okay, I'm going to be nitpicky here, in an effort to understand the legal intricacies. Please bear with me.

    I looked up the actual judgment of the Supreme Court and you are correct – it only says the following:

    ON WRIT OF CERTIORARI to the United States Court of Appeals for the Second Circuit.
    THIS CAUSE came on 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 affirmed.

    So far so good. Now, I searched PACER records for the judgment by the Second Circuit in the case, and only found the mandate, which, for some reason, was issued only a couple of months ago, 05/30/2014. The mandate does say the following:

    IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED in accordance with the opinion of this court.

    The mandate was issued only recently (containing the predated judgment), so that can't be what the Supreme Court affirmed, right? The opinion doesn't contain an order or judgment in itself.

    The district court's judgment dated 07/07/2012, which the Second Circuit affirmed in its mandate issued just recently, states:

    ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Order dated June 6, 2012, Plaintiffs motion for summary judgment is granted and Defendant-Intervenor's motion to dismiss is denied; the Court declares that section 3 ofthe Defense of Marriage Act, 1 U.S.C. § 7, is unconstitutional as applied to Plaintiff; Plaintiff is awarded judgment in the amount of $363,053.00, plus interest and costs allowed by law; each party shall bear their own costs and fees; accordingly, the case is closed.

    So, strictly speaking, the Supreme Court affirmed the Second Circuit's "judgment" (what that is is still unclear to me; for now, I assume it is the part quoted above from the mandate) which in turn affirmed the district court's judgment that DOMA is unconstitutional as applied to the Plaintiff. So, strictly speaking, looking only at the judgments of these courts and ignoring the opinions, the district court didn't declare DOMA facially unconstitutional, meaning the Supreme Court also didn't do that, right?

  • 42. Marekweber  |  August 31, 2014 at 10:13 pm

    To be clear, I don't think he REALIZES that this is what he's doing. I don't mean to imply that he's a homophobe, or deliberately trying to aid bigots. He's just being a self-aggrandizing schmuck, and going wildly off message. It's sad, because I had a lot of affection for him after he called the special session.

  • 43. bayareajohn  |  September 1, 2014 at 1:23 am

    One is part of the other but they are separate… welcome to the Law where distinctions are sometimes more important than differences.

    A JUDGEMENT is the disposition of the case. Anything other than the ORDER is part of the OPINION and is guidance, not law in itself. Look up DICTUM, it's everything in a judgement document that isn't the order. It usually explains the rationale behind the finding, and becomes PRECEDENT in that it says how to decide future cases that are similar. A Court can affirm an order below, but completely disagree as to why. Or they can reverse, vacate, or remand (with or without instruction on a point of law) an order below where they agree with the reasoning, but the jurisdiction, standing, error, or some other defect require.

    You argue precedent when it favors your case. You DISTINGUISH precedent from your case when you want a different outcome. Note that if you successfully distinguish your case, you do not overturn the precedent, you set a new one that illuminates the deciding principles that require different outcomes.

    Or, as in Baker, you can attack the value or appropriateness of a precedent based on changed conditions outside the facts of the case.

    Shades of grey. Many nuances. This is not posted as legal instruction, but rather as a passing view, a simplification that I'm sure others will happily add to or subtract from.

  • 44. Zack12  |  September 1, 2014 at 2:05 am

    I don't think he's homophobic or trying to aid the bigots but he just did throw us under the bus and make it seem like supporting gay marriage even in a Blue state is a losing issue, despite the fact the rest of the candidates targeted for yes votes in Hawaii survived their primaries.
    More or less another example of why he lost.

  • 45. jm64tx  |  September 1, 2014 at 4:42 am

    The case at the second circuit was up on an appeal from a summary judgment…

    Summary judgments are ALWAYS reviewed de novo … which means with no deference to the court below…

    So in this case …

    The district court made an order …

    The second circuit entered judgment ….

    SCOTUS affirmed…

    Second circuit issues mandate

    Mandate must be followed

  • 46. JayJonson  |  September 1, 2014 at 6:52 am

    I don't think he is throwing us under the bus. He is simply pointing out a reality. The bigots will do whatever they can to punish proponents of equal rights.

    He said, "Republicans crossed over en masse to vote in the Democratic primary, and then the religious factor came in. Doctrinally I was outside the circle and paid for it." He argued that voters were urged to choose his opponent by their religious leaders.

    Abercrombie also said losing was worth it to pass a law legalizing gay marriage. "There's no way I could live with myself if I thought I was diminishing another human being's ability to reach their full capacity," Abercrombie said.

    That reference to his being "doctrinally" outside the circle is probably an allusion to the anti-semitism of the religious bigots who targeted him.

    The point is not that "supporting gay marriage even in a Blue state is a losing issue"–after all, Ige also supports marriage equality–but what we already know: the opponents of equal rights have no scruples about using all sorts of loopholes to further their bigotry.

  • 47. Ragavendran  |  September 1, 2014 at 8:45 am

    Thanks for the clarification, bayareajohn and jm64tx. So this does mean that tracking the judgments down the hierarchy starting at the Supreme Court, the district court's judgment became final on May 30, 2014 when the Second Circuit finally issued its mandate. But Windsor got her relief last year itself? So issuing mandate and entering judgment is all just a formality? I mean, technically, could the federal government have waited until May 30, 2014 to grant the required relief to Windsor? And also, since the district court judgment didn't declare DOMA Section 3 as facially unconstitutional, could the federal government technically have not done what it did and gotten away with just granting benefits to Windsor?

  • 48. Ragavendran  |  September 1, 2014 at 8:48 am

    BREAKING: We have our panel for the Ninth Circuit: REINHARDT, GOULD and BERZON. Apparently, it didn't matter that today is Labor Day, a federal holiday. They released the panel anyway!

    I think it is safe to say we have this in the bag. We've lucked out again – this is undoubtedly a near-best-case panel! Reinhardt and Berzon were part of the unanimous SmithKline panel, and Reinhardt himself wrote the majority opinion there. We could expect a quick opinion from him – the easiest route is to just refer to SmithKline for heightened scrutiny and be done with it. They don't even have to consider the fundamental right argument.

  • 49. Sagesse  |  September 1, 2014 at 8:53 am

    Common sense is so liberating. Listening to the 7th Circuit oral arguments was… relaxing. Listening to strained, illogical, tenuous arguments being given polite credence, while the real arguments are unspoken because they are completely unacceptable… it wears on the nerves.

    This is an uplifting read.

    Gay Marriage and the Limits of Tradition [Reason.com]
    http://reason.com/archives/2014/09/01/gay-marriag

  • 50. JayJonson  |  September 1, 2014 at 9:20 am

    What a relief. SmithKline will prevail.

  • 51. Ragavendran  |  September 1, 2014 at 9:21 am

    I'm mildly concerned with Gould, as he has been labeled a conservative, despite having been appointed by Clinton. An older profile labels him a moderate. I know that conservative or moderate doesn't mean that he will vote against us, but let's see – does anyone know his track record on gay rights or similar cases? (As an aside, he suffers from MS, and appears at oral argument through video from Seattle.) Here's an inspiring interview he gave recently about overcoming his struggles with MS – my "snap judgment" from this video alone is that there is no way this guy is going to vote against our rights. (Similar interviews in this video series were given by Gregory (4th) and Williams (7th) here and here.)

    Of course, this hardly matters to the outcome, as Reinhardt and Berzon are already, undoubtedly, on our side, but I'm contemplating the chances of this being a unanimous (and hence, speedy) opinion.

  • 52. netoschultz  |  September 1, 2014 at 9:42 am

    http://www.nytimes.com/2008/05/22/us/22gay.html?_… On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.

    Its a case about dont ask, dont tell. I think he will vote in our side

  • 53. Ragavendran  |  September 1, 2014 at 9:50 am

    Perfect, thank you! SmithKline is to equal protection what Witt was to due process. I didn't realize Gould wrote the majority opinion in Witt!

    Background: SmithKline performed a careful analysis of Windsor and determined that the Court applied heightened scrutiny for equal protection without actually saying so explicitly. Reinhardt's opinion there heavily relied on Gould's opinion in Witt which had similarly carefully analyzed Lawrence and determined that the Court applied heightened scrutiny for due process without actually saying so explicitly (read Section III entirely, starting from Page 10).

  • 54. Ragavendran  |  September 1, 2014 at 9:52 am

    Yes, undoubtedly this is going to be another unanimous victory for us. I wonder if this panel took notes during the Seventh Circuit oral arguments and whether they plan to out-perform the Posner-led demolition we saw there.

  • 55. netoschultz  |  September 1, 2014 at 9:56 am

    Wasn't the majority opinion in the Prop 8 case also made by Reinhardt? I think it will be another 3-0 ruling in our favor

  • 56. Zack12  |  September 1, 2014 at 9:57 am

    Pretty much the best panel we could have gotten.
    I'm not sure about Gould but Reinhart and Berzon were not only part of the SmithKline panel but they are two of the most liberal jurists on the bench.
    It will be fun to watch them tear the bigots apart.
    It's also nice to know we stayed away from the bigots on this one.

  • 57. Ragavendran  |  September 1, 2014 at 9:58 am

    Yep! Undoubtedly.

  • 58. Ragavendran  |  September 1, 2014 at 9:59 am

    Zack, see my other comment above – netoschultz points out that Gould wrote Witt which is the due process counterpart to SmithKline. I revise my assessment to "the best panel ever".

  • 59. Zack12  |  September 1, 2014 at 10:16 am

    The best part of this is Reinhardt will get a chance to write an option striking down the gay marriage bans again, more forcefully I imagine.

  • 60. Ragavendran  |  September 1, 2014 at 10:35 am

    This just caught my eye. There is a picture at 2:30 in the video interview of Judge Gregory (4th Circuit) that I linked above. It shows Gregory, Sutton, Cook(?), Roberts among others with George W. Bush – looks like the White House.

  • 61. Zack12  |  September 1, 2014 at 10:48 am

    Roger Gregory was a Clinton appointee that Bush renominated as a gesture of good will in the hopes that would mean rubberstamp approval of his far right nominees.
    Didn't work but Gregory was the start of a slow process that has transformed the 4th circuit from the most conservative court in the country to one of the most moderate/liberal ones.

  • 62. GregInTN  |  September 1, 2014 at 11:34 am

    As I recall, Reinhardt's Prop 8 opinion left a lot of people underwhelmed even though it ended on the right side. He seemed to go out of his way to make a poor fit with Romer in the hopes of having a narrow ruling which could be distinguished from either Baker or cases from other states without marriage equality. Hopefully, with the added precedent of Windsor, we will get a broader opinion this time.

  • 63. Mike_Baltimore  |  September 1, 2014 at 12:24 pm

    A "quasi-suspect" class is not the same as a suspect class. Race is not a consideration; religion is not a consideration; nationality is not a consideration; and 'alienage' (whether one is or is not a citizen) is not a consideration. Those are the four criteria SCOTUS uses for 'suspect' class.

    A chicken egg is a potential chicken, but not all eggs hatch. Thus, in those cases, there are no chicks to grow into chickens. Potential chickens is not the same as chickens.

    Andrewofca is probably correct in that Kennedy doesn't want to expand the definition of 'suspect' class, but 'quasi-suspect' is not used under strict scrutiny, just as gender is not considered under strict scrutiny. Many police and fire-fighting entities formerly didn't allow women to join because they 'knew' women didn't have the strength to do the job. We now have women in the police and fire departments because the courts told the police and fire-fighting entities to prove women couldn't do the job, and when women demonstrated that at least some could do the job, bye-bye to the 'knowledge' that women were incapable of doing the job. Because gender is not a 'suspect' class under strict scrutiny, gender is a quasi-suspect class under heightened scrutiny, in that the governmental entity needs to show evidence of why the statute, ordinance, regulation, or policy against women is needed to keep women out of those entities.

    State law can differ from Federal law in some cases. For example, California classifies sexual orientation as a suspect class under state law. Connecticut and Iowa classify sexual orientation as a quasi-suspect class under their respective state laws. In CA, ME court cases under state law must be conducted under strict scrutiny, where the governmenal entity MUST show a necessity to promote a compelling state interest when there is no less restrictive alternative method available to accomplish the governmental entity's interest. Under heightened (aka Intermediate) scrutiny, a court will likely uphold a discriminatory law under intermediate scrutiny if the law has an exceedingly persuasive justification, and applies to real, fact-based, and/or biological differences between the sexes. And biological differences must be reality-based (not 'tradition' based), as shown by women now being in police and fire-fighting entities. Women are not in those entities today because they were considered a 'suspect' class and the courts ruled in a strict scrutiny basis, but because the court cases were conducted in a heightened scrutiny basis. Those women who could demonstrate they could meet the requirements were allowed to join the entities they previously couldn't join at all.

  • 64. RnL2008  |  September 1, 2014 at 12:26 pm

    Thanks for this information……..Yeah, Justice Reihardt:-)

  • 65. andrewofca  |  September 1, 2014 at 1:46 pm

    Thanks Mike for the great posting & clarifications… I was actually thinking of quasi-suspect classes, such as gender. During oral arguments in Perry/Windsor, Kennedy mused whether gender could be used to knock down the bans. This was argued in the briefs too, as a way of triggering heightened scrutiny without explicitly giving gay people heightened scrutiny. I don't think the court has the appetite to explicitly label gay folks with any level of scrutiny.

    In fact, if the SCOTUS conservatives could engineer a situation where they granted cert on a case and explicitly framed the question to be argued as: "Should gay people get heightened scrutiny?" I'd be much less optimistic about our side winning. The 9th is too ahead of the rest of the country, and makes me nervous in this regard. I'm priveleged and fortunate to live in CA, but I recognize that in the rest of the USA, things are a lot more middle-of-the-road.

    Also… huge thank yous to all you weekend EoT'ers out there: I am awed by the amount of information folks share here, and am honored to be part of this group.

  • 66. andrewofca  |  September 1, 2014 at 1:56 pm

    Exactly. IMO Kennedy went out of his way NOT to call us a suspect/quasi-suspect class. He easily could have, given the lengthy paragraph he spent on the purpose and effect of DOMA to "demean", "humiliate", etc. I'm sure Kagan and other liberals would have signed on.

    My guess is either (a) Kennedy genuinely doesn't want to define any more suspect/quasi suspect classes, OR, more likely (b) Kennedy was deferring to the conservatives on this issue.

    Who knows what sort of horse-trading goes on in conference 😉

  • 67. Chuck_in_PA  |  September 1, 2014 at 2:00 pm

    Panel selected for the 9th Circuit review of NV, HA, and ID cases. THREE democratic appointees. Two from the SmithKline decision. Stephen Reinhardt, Ronald Gould, and Marsha Berzon. Saw this reported on JOEMYGOD blog. What great news!

  • 68. hopalongcassidy  |  September 1, 2014 at 2:02 pm

    Do we have a new state HA?

    Oh, Ha Ha Ha….
    j/k

  • 69. andrewofca  |  September 1, 2014 at 2:05 pm

    Zack12's got a point. If the 9th upheld the bans & went around Smithkline, this would give a lot of ammo to numerous other NOM-fueled causes in the 9th. And, the 9th moves at a slow pace.

    Although I do think that while it's a possibility, it's statistically unlikely. The bigots would need to win the judicial jackpot in the same way we did in the 7th. :)

  • 70. Chuck_in_PA  |  September 1, 2014 at 3:06 pm

    If I mistook the Hawaii abbreviation, it just means I need to visit there to refresh my knowledge about that wonderful place.

  • 71. hopalongcassidy  |  September 1, 2014 at 3:14 pm

    I was just being a smartass. I do that sometimes. 😀

  • 72. Ragavendran  |  September 1, 2014 at 3:18 pm

    Andrew, we have won the judicial lottery again! See the discussion under the third main comment from this one :)

  • 73. Zack12  |  September 1, 2014 at 3:41 pm

    Prop 8 was a unique case though in that it was the only ban to take away rights already granted.
    Not to mention the fact not having the AG or Governor defend it made it harder.
    Let's see what he does this time.

  • 74. GregInTN  |  September 1, 2014 at 4:32 pm

    In 1974 I got off of active duty from the Navy in Hawaii. I had my car with HI license plates shipped to CA. I then proceeded to drive around most of the mainland for a couple of months. At that time, when you purchased gas using a credit card the attendant would record your license plate number (and state) on the charge slip. Most folks would write either Ha or Haw for the state. A couple of times they asked me for the abbreviation. In my entire trip, there was only one time when the attendant got it right on his own. I was in Rawlins, Wyoming. The attendant had probably just gotten out of high school. When he brought me the charge slip to sign I was amazed that he had written HI for the state. I said "How did you know the abbreviation for Hawaii?". "I looked it up" came the reply.

  • 75. Mike_Baltimore  |  September 1, 2014 at 5:25 pm

    Didn't a GOTP idiot recently state that New Mexico was part of Mexico, therefore it is not a US state? And I don't think she was making that as a 'smartass' comment, but truly believed it.

    Hop a long? (an old joke:) Do you always sit on your brains? Most people (especially those who are actually smart) don't.

  • 76. F_Young  |  September 1, 2014 at 6:19 pm

    "Europe stands strong for traditional definition of marriage. U.S. Supreme Court should also allow states to choose."
    http://www.washingtontimes.com/news/2014/sep/1/eu

  • 77. Zack12  |  September 1, 2014 at 6:36 pm

    The problem is Ige also supported marriage equality so if they voted for him, they were simply replacing one pro-equality person with another.

  • 78. Ragavendran  |  September 1, 2014 at 6:37 pm

    Idaho's case is perfect and clean. No excuses there to strike down the ban, and affirm the lower court. However, there will almost surely be a stay pending a motion for rehearing en banc or filing of a petition for writ of certiorari to the Supreme Court.

    Nevada's case is odd, as in, state officials are not defending the ban, and an intervenor is arguing in favor of the ban instead. However, since the ban is still being enforced, a case or controversy exists, and it is the court's duty to strike down the ban. I'm not familiar with standard procedure – do appellate courts generally issue the injunction themselves, or simply reverse and remand with instructions for the lower court to issue the injunction? If it is the latter, there could be a delay in getting marriages started after the ruling comes out. But there will be no stay, as CPM clearly has no standing to appeal (though they'll probably try), and the state officials seem to be praying the issue will just go away.

    Odder still is Hawaii's case. There is no case or controversy now that the Hawaii legislature has legalized gay marriage, so the appeal is most likely to be declared moot. The problem is that the constitutional amendment is still alive and enforceable, and some future legislature can always use it to reverse gay marriage in Hawaii. Of course, it is highly unlikely that ME doesn't become the law of the Ninth Circuit by the time something like that happens, so, while it would lead to a Perry-like lawsuit, it would be quickly resolved in our favor.

    So, let's see what happens :)

  • 79. Ragavendran  |  September 1, 2014 at 6:57 pm

    At the end of the article, there is a description of its authors. Unsurprisingly, it reads:

    "Roger Kiska is senior legal counsel with Alliance Defending Freedom at its European office in Vienna, Austria. Joseph La Rue is legal counsel at the alliance’s headquarters in Scottsdale, Ariz."

    Now, I'm not saying the article is wrong, but it is a biased presentation of facts. It totally ignores what has been happening in the US in just the last year in terms of the federal judiciary's unanimous interpretation of the US Constitution, as well as three strong Supreme Court precedents in Romer, Lawrence, Windsor. Do there even exist such precedents in the European Court of Human Rights?

    Parallels and comparisons can only be taken so far. Unlike the US Constitution, the European Convention on Human Rights explicitly discusses marriage in Article 12. Yes, it is in gender-neutral terms, but sexual orientation is discussed nowhere in the whole document. On a quick search, it turns out the European Court has used the "prohibition of discrimination based on other status" provision in the convention to extend some protections to the LGBT community, but as far as I could see, they are narrow and don't compare with the scope and force of our Supreme Court's gay rights jurisprudence, or precedents in which the Court has steadily developed the understanding of the right to marry (since our Constitution doesn't say anything about it).

    I would even go so far as to say that the European Court's staunch refusal to admit what is clearly a gender-neutral definition of marriage in the European Convention of Human Rights as guaranteeing the right to marry a person of the same sex "discloses the Court's own failure to appreciate the extent of the liberty at stake." Lawrence v. Texas, 539 U.S. at 566-67. And not the other way round.

  • 80. Zack12  |  September 1, 2014 at 7:23 pm

    An En banc will certainly happen, the three bigoteers will see to that.

  • 81. Ragavendran  |  September 1, 2014 at 7:42 pm

    If you're talking about a sua sponte en banc call, that can only happen after the expiration of the time for filing a petition for panel rehearing or rehearing en banc by the losing party. G.O. 5.4(c)(3). In this case, I'm sure Idaho will see a lost cause in asking the Ninth Circuit to rehear en banc and will probably directly petition the Supreme Court for cert. At that point, it doesn't matter if a sua sponte en banc call is made, unless the Supreme Court doesn't take up any ME case this term – not fairly likely.

    In Nevada's case it is certainly possible that there might be a sua sponte call for en banc rehearing, as nobody with standing will appeal further.

  • 82. Mike_Baltimore  |  September 1, 2014 at 8:18 pm

    For me to see that it's probably an extremely biased article is to see what the name of the publishing media is.

    The Washington Times was founded in 1982 by a subsidiary of the Unification Church under Sun Myung Moon. In 2010, it went mostly to the Internet, but still has sales boxes near Capital Hill, especially on the known routes of the TP members. It was notorious for being an extremely CONservative paper, and is still known as such. Guess why it's most well known nickname in the DC area is 'the Moonie paper'?

    Personally, if I owned a bird, I wouldn't insult the bird by using the Moonie paper as the cage liner.

  • 83. Terence  |  September 2, 2014 at 1:21 am

    Also important is to note that unlike the US, "Europe" is not a single country, but a loose coalition of several independent states, with widely differing cultures and traditions. Countries of the former Soviet bloc in the East are hostile to ME, but in Western Europe, it's completely ridiculous to suggest that "Europe" stands strong for traditional marriage – quite the reverse is true. This Wikipedia map for Europe clearly shows that full ME already exists across most of Western Europe (Ireland and Finland will likely go dark blue soon), and only Italy still has no civil unions: that too, could change quite soon.
    http://en.wikipedia.org/wiki/Recognition_of_same-

  • 84. Sagesse  |  September 2, 2014 at 3:46 am

    In a recent profile of Justice Scalia, he noted that the Washington Times is the only newspaper that he and Mrs Scalia read daily. Boggles the mind.

  • 85. Chuck_in_PA  |  September 2, 2014 at 6:39 am

    That's OK. I should be more careful. Sometimes good news for our side just gets me excited and I want to share it as fast as possible. I suspect I am far from alone in acting that way.

  • 86. JayJonson  |  September 2, 2014 at 6:50 am

    A Virginia lawyer is not as happy with Judge Hinkle's recent decision striking down Florida's ban on same-sex marriage. Read the email Walter Kubitz, a senior lawyer at Becker and Poliakoff, sent to the full firm of over 170 lawyers, to express his disgust for an insight into what our opponents really think. http://www.pinknews.co.uk/2014/09/02/us-senior-la

  • 87. hopalongcassidy  |  September 2, 2014 at 7:55 am

    I guess I don't get the joke. I just grabbed the hopalong name when I signed up here because I had just watched an old re-run of the show from the 50s when I regularly tuned it in. It's kind of accidental I know the state abbreviations because when they first came out with them (along with zip codes) I was running the computer department and needed to reprogram the payroll and other utilities (using Fortran no less) and thought of a quick way to convert the state 'numbers' they had used for years…I just put all 50 into a character array, "ALAKARAZCACOCT….." and so on, made it easy to pull out the abbrev with a simple subscript…I used it so much it stuck in my memory.

  • 88. hopalongcassidy  |  September 2, 2014 at 8:09 am

    Lawyers already have often-deserved reputations as being assholes (but certainly not all are) but one that is also a bible-thumping fundie is the supreme manifestation of assholism. http://www.godisimaginary.com

  • 89. Dann3377  |  September 2, 2014 at 8:11 am

    Exactly! This is the United States and ME will be law of the land. We can not have people married in one state then more to another and be unmarried. And thats just one of the countless reasons why. Apples and oranges here. The comparison doesn't hold water. The article is totally biased!

  • 90. Japrisot  |  September 2, 2014 at 8:24 am

    Anyone may complain to the Virginia state bar, and I would encourage you to do so. The form is here:
    http://vsbc.vipnet.org/

  • 91. Mike_Baltimore  |  September 2, 2014 at 10:59 am

    It's not your display name.

    You don't get 'smart ass'? You admitted to being one sometimes.

    (Hint – brains are usually not in the ass, and the parts of the body that don't have brains are considered dumb. Someone who admits to being a smart ass [even if only occasionally] thus admits that they sit on their brains – [and not by doing head stands] ).

    Oh, and most people back when Zip Codes and two letter state abbreviations were introduced (in 1963) quickly learned the codes they needed, and didn't have to use a computer script or subscript. Memory was more highly valued then than using a crutch.

  • 92. Margo Schulter  |  September 2, 2014 at 4:27 pm

    bayareajohn, my layperson understanding is a bit different. A court’s opinion includes the holding itself, and the reasoning required to reach it; and sometimes obiter dictum, or dictum in short, something “said in passing” or, as Justice Breyer once put it, “en passant.” It’s a kind of observation on the side, not part of the holding in this case, but possibly of interest in future cases. Thus dictum is not precedent, unlike the holding itself, but can be cited in future cases in support of a given position.

    For example, in Trop v. Dulles (1958), SCOTUS held that the punishment of denaturalization or loss of citizenship (here inflicted for military desertion) is a cruel and unusual punishment forbidden by the Eighth Amendment. The Court said that this Amendment draws its meaning from “evolving standards of decency that mark the progress of a maturing society.”

    That’s part of the holding, and has been quoted in lots of Eighth Amendment cases since. But there’s also a remark — not required to decide Trop — that as of that time (1958), while there are powerful arguments against the death penalty, it was widely enough used and accepted that it could not be deemed to violate the Eighth Amendment.

    A future SCOTUS decision might use the Trop standard to find the death penalty unconstitutional, as Justices Marshall and Brennan held in their opinions from Furman v. Georgia (1972) on. That would be saying that the dictum in the Trop ruling no longer holds — but that Trop itself, with its “evolving standards” test, is still the law.

  • 93. Margo Schulter  |  September 2, 2014 at 4:49 pm

    I must admit that I’d like to be fundamental-right-married in a Lesbian way to Judge Dale’s opinion in Idaho — a real classic!

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