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Tenth Circuit puts Colorado marriage case on hold

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Tenth Circuit Court of AppealsThe Tenth Circuit appeal in the Colorado same-sex marriage case has been put on hold “pending further order of th[e] court.”

The parties to the case have been ordered to inform the court “within 10 days of a decision on the petitions for writ of certiorari pending before the Supreme Court of the United States in Kitchen v. Herbert, Supreme Court No. 14-124, and Bishop v. Smith, Supreme Court No. 14-136.”

If nothing happens in those cases after 30 days, the parties have to file a status report.

Read the filing, thanks to Equality Case Files:

14-1283 #207452 – Order Holding Case by Equality Case Files


  • 1. ragefirewolf  |  September 19, 2014 at 8:19 am

    Hurry up, SCOTUS!!

    Wake me up when it's September 30th. Haha.

  • 2. Corey_from_MD  |  September 19, 2014 at 8:28 am

    Maybe we will have the "circuit split" in the 6th Circuit before then…

  • 3. RnL2008  |  September 19, 2014 at 8:39 am


  • 4. ragefirewolf  |  September 19, 2014 at 8:50 am

    Hmm, maybe. ZZZzzzZZZzzz

  • 5. ragefirewolf  |  September 19, 2014 at 8:51 am


  • 6. Corey_from_MD  |  September 19, 2014 at 8:52 am

    That is about all that is left now….

  • 7. Zack12  |  September 19, 2014 at 11:20 am

    From what I understand, the state lawsuit is still due to be heard next month so there is still a good chance we will have marriage equality in CO very soon.

  • 8. Ragavendran  |  September 19, 2014 at 11:39 am

    Someone mentioned that they called up the CO Supreme Court to verify that news (that there is a hearing late September) and it turns out to be false. There is no hearing scheduled there in either of the two cases (the ME case or the Hillary Hall case). I don't even know what stage the briefing is at. Unfortunately, CO court records are incredibly hard to lay hands on. All we know from the last order is that the CO Supreme Court sua sponte ordered that the records in the Hillary Hall case be transferred directly to them by October 20. Nothing on the merits of ME.

  • 9. Jen_in_MI  |  September 19, 2014 at 11:42 am

    This is so irritating in light of Ginsberg's recent assertion that SCOTUS doesn't feel the need to rush to grant cert. The situation is more untenable by the day, but apparently the very real harms we are suffering while waiting for them to sh*t or get off the pot are just trivial asides. Yes, I am getting truly pissed about all these delays! LIFT THE STAYS.

  • 10. SeattleRobin  |  September 19, 2014 at 12:17 pm

    Yeah, I think that's what bothers me most, the mixed messages from SCOTUS.

    Message one: This marriage equality thing is for us to decide, so we're staying everything.

    Message two: We don't feel the need to decide it right away, we're content to allow a slow state by state movement, unless a circuit court comes along and disagrees. (Neglecting the fact that there is already an existing split from that older pre-Windsor case.)

    Well, for goodness sake, if #2 is true, then the stays on the "not urgent" cases serve no purpose! They're stopping the slow adoption in its tracks.

    I realize that Ginsburg is speaking for herself, and not officially for the court, but based on her phrasing I'm guessing the majority are in agreement with her. Which makes these stays without comment or rationale that much more infuriating.

    And all that is completely ignoring the fact that if the bans truly are unconstitutional, then any delay in granting relief in favor of "better timing" is pooping on the constitution.

  • 11. Roulette00  |  September 19, 2014 at 12:34 pm

    I think it's the politics of it. It only takes 4 Supremes to hear a case, but you need 5 to win it. It only takes 1 Supreme to stay a case if the appellant asks the right one, and surely the other Supremes know this.

  • 12. robbyinflorida  |  September 19, 2014 at 12:44 pm

    It only takes 4 votes to grant cert. It seems to me that we have them.

  • 13. ragefirewolf  |  September 19, 2014 at 12:49 pm

    Hasn't the full Court been staying the cases?

  • 14. franklinsewell  |  September 19, 2014 at 12:52 pm

    Here's an interesting article:

  • 15. franklinsewell  |  September 19, 2014 at 12:53 pm

    Sometimes the justice who has responsibility over a circuit can stay a case by him or herself, and sometimes they ask the whole court to weigh in.

  • 16. tornado163  |  September 19, 2014 at 1:07 pm

    There's already a circuit split. The 8th Circuit voted against us in 2006. I'm a bit surprised Bruning isn't brought up more often as a reason for SCOTUS to take up a case regardless of the 6th Circuit.

  • 17. Ragavendran  |  September 19, 2014 at 1:13 pm

    I'm sure every cert petition right now before the Justices mentions this. It's just that SCOTUS probably doesn't consider that significant in light of the change in the legal landscape due to Windsor. At least Ginsburg doesn't.

  • 18. Ragavendran  |  September 19, 2014 at 1:14 pm

    Yes, in all three instances that a stay was issued, it was referred to the full Court.

  • 19. sfbob  |  September 19, 2014 at 2:32 pm

    The author has this to say:

    "A Court known for its bold assertions of judicial supremacy may be seeing that a passive virtues approach minimizes controversy."

    One could certainly respond that the choice to tread cautiously in the area of marriage equality after issuing very controversial decisions like Citizens United and Hobby Lobby and the decision which resulted in passage of the Lily Ledbetter Act reflect an interesting sense of priorities. The author himself notes that the pro-equality rulings in the lower courts have not triggered any significant backlash; while the so-called "freedom of religion" bills passed or nearly passed by some states could be taken as such those would not and could not impact directly on marriage equality as such. Any direct backlash has already occurred, in the form of states' marriage equality bans following the Hawaii Supreme Court ruling in 1993 and the Massachusetts ruling in 2003. That's about it. The backlash has happened; it's time to move forward.

  • 20. robbyinflorida  |  September 19, 2014 at 5:55 pm

    The only real backlash has been from Brian Brown and Tony Perkins, but who's listening?

  • 21. Mike_Baltimore  |  September 19, 2014 at 7:07 pm

    Off topic (and if previously reported, I apologize):

    Several organizations have petitioned DoJ to recognize 'same-sex' marriages (aka ME) of couples in WI, AR, and IN who were married prior to stays being put in place.

  • 22. ragefirewolf  |  September 19, 2014 at 7:12 pm

    Right, but as Raga just mentioned, that hasn't happened so far

  • 23. Zack12  |  September 19, 2014 at 7:24 pm

    I'm sure we'll see those "religious freedom" bills pop up again when the bans are struck down.

  • 24. Mike_Baltimore  |  September 19, 2014 at 8:48 pm

    Also off topic (and again, if previously reported I apologize):

    Seems the US Census will now categorize and report same-sex married couples as ‘families’:

  • 25. Mike_Baltimore  |  September 19, 2014 at 9:11 pm

    Also off topic (and again, if previously reported I apologize):

    Some bad news:

    The governor of Mississippi has gained approval from the state Supreme Court to intervene in a case to fight ME and lesbian divorce:

    Prominent in the article are our 'good friends' at the ADF and FotF.

  • 26. RnL2008  |  September 19, 2014 at 9:54 pm

    Are ya really surprised by the Governor's stance? I mean he's NOT much different than Senator William Knight was, who by the way brought us Prop 22.

    These so called parents would do ANYTHING to show their children just how wrong they are and that's seriously what is so pathetic about them!!!

  • 27. Ragavendran  |  September 19, 2014 at 10:34 pm

    What nonsense:

    “Justice Ginsburg’s comments implied that the merits of the state constitutional amendments defining marriage as one man and one woman were such that the Supreme Court would have to overturn them with haste, if upheld by the Sixth Circuit Court of Appeals,” he said.

    This is completely false. She never implied that the Supreme Court would have to "overturn them with haste." She didn't imply anything on the merits either way. How ridiculous!

    In addition to her comments on the matter, he noted that the justice has officiated same-sex marriage ceremonies — yet another act that he believes is problematic.

    How about Justices who have not officiated same-sex marriage ceremonies? Isn't that problematic then? Also, Ginsburg is a woman and a champion of equal rights for women. Isn't that problematic when it comes to sex-discrimination cases where women are disadvantaged? Again, how ridiculous!

  • 28. montezuma58  |  September 20, 2014 at 6:01 am

    Alabama has filed a response in Hard v. Bentley. I don't have a link to it but a few excerpts can be found here:

    Sounds mostly like a pompous rewording of the typical anti equality arguments. But it does contain one silly point I haven't heard yet. According to the state mother and father are some sort of government position.
    "Alabama's marriage law secures the rights of children by codifying the ancient, common-law offices of father and mother.."

  • 29. DACiowan  |  September 20, 2014 at 7:55 am

    And here's to the government of Mississippi
    In the swamp of their bureaucracy they're always bogging down
    And criminals are posing as the mayors of the towns
    They're hoping that no one sees the sights and hears the sounds
    And the speeches of the governor are the ravings of a clown
    Oh, here's to the land you've torn out the heart of
    Mississippi find yourself another country to be part of!

  • 30. Sagesse  |  September 20, 2014 at 7:56 am

    This lengthy article attempts to track the funding behind the World Congress of Families and Alliance Defending Freedom, both organizations with ties to NOM and Brian Brown, and Family Research Council and Tony Perkins, along with other 'usual suspects'. While fewer Americans may be listening, or at least believing, their export of hate continues.

    I'm not a fan of the 'expose' style of writing, but they have dug deep, and I would bet there is more than a little fact behind what they've found. I almost didn't post this, and I don't post it as an endorsement, but rather so that folks can glean from it what they will.

    The Secret Antigay U.S. Money Behind The WCF and the Global Evangelical War on LGBT Rights [TWOCares]

  • 31. Corey_from_MD  |  September 20, 2014 at 8:54 am

    The Blaze is mostly right wing crap in print.

  • 32. sfbob  |  September 20, 2014 at 9:49 am

    There's no doubt we will. However, no matter what they claim to do and no matter what they succeed in doing there is one thing they will not be able to do: they will not be able to "nullify" our marriages nor will they be able to prevent us from marrying. We may find it necessary, depending on the nature of those bills, to contest provisions that claim to give public officials the right not to issue us licenses or officiate at our civil marriages. Those attempts will be hateful but not successful. There's a big difference between working for a "closely held corporation" (Iike Hobby Lobby) and working for a government: if you work for the latter you don't get to pick and choose your clients.

  • 33. RQO  |  September 20, 2014 at 10:42 am

    Hard to get info on the CO S.C. is an understatement. They don't even send out smoke signals. Website NEVER helpful.Last fall I faxed a congratulations to Dr. Brinkman & Ms. Burd when they filed suit and got a response, but asking them now seems like invasion of privacy, so that's out.Their lawyer's published number voice mailbox is permanently full. For all the open meetings/info. laws we have in CO, the S.C. is a glaring exception.

  • 34. Zack12  |  September 20, 2014 at 11:49 am

    And yet these same people will say nothing about cases where Clarence Thomas rules on cases in which his wife's far right groups are personally involved in the outcome of the ruling.
    That is a clear conflict of intrest and yet nothing is said.
    Scalia has no problem giving his option on gay rights and other issues, no calls for him to step down either.

  • 35. Mike_Baltimore  |  September 20, 2014 at 12:33 pm

    Actually, I'd guess the Governor of Mississippi would not put up much of a fight (and probably would back it) if someone proposed that private businesses could deny service to 'colored people', Jews, Muslims, Irish, non-Xians, etc., if providing such service went against their 'personal religious beliefs'.

    Some day, the US might be rid of such bigots (but I doubt it – the US Civil War was about 150 years ago, but we still have racists among us).

  • 36. RnL2008  |  September 20, 2014 at 1:02 pm

    There are still those folks who believe that interracial marriages should have remained illegal and that Blacks should be regulated to entering the back door and if these folks could, they'd do the same thing to Gays, Lesbians and especially Transgender individuals!!!

    This in my opinion is one of the things wrong with this Country……..I guess some even believe it is NOT okay to take "In God we Trust" off of our coins and remove God from certain oaths, like one when folks enlist in the Military!!!

  • 37. guitaristbl  |  September 20, 2014 at 2:08 pm

    Hello everyone ! I have been looking into, in more depth, the possible outcomes of the cases before the 6th circuit given justice Ginsburg's comments and stubbled over the extremely interesting analyses and discussions in the comments on this site, which have provided more insight than I have been able to see around the web as a whole regarding these cases !
    I am not a lawyer of any kind (or even american for that matter) but I am extremely interested and invested in the judicial proceedings of marriage equality in the US, to the point I have acquainted myself with all the judicial and legal establishment in the US, along with the judicial history of the matter of civil rights.
    The 10th circuit decision in the Colorado case seems reasonable, given that, to my understanding, goes as far as the September 29th conference and whether SCOTUS grants review to a ME case on that date, right ?
    I do have some questions though :
    1) The 10th circuit decisions have been issued by a 2-1 majority of a 3 judge panel, right ? A different panel hearing the Colorado case is binded by the Kitchen and Bishop decisions ? Can a panel of judges with different ideological and legal views on the issue reverse the circuits decision in the circuit itself since an en banc hearing did not occur ?
    I had this question for quite some time but my curiosity intensified once I read O'Scannlain's dissent when the 9th circuit denied to hear en banc the smithkline decision which applied heightened scrutiny to sexual orientation in that circuit..Does he have to apply heightened scrutiny if he is on a panel judging a case that involves sexual orientation in the future ?

    2) In the hypothetical scenario SCOTUS waits for all circuits to weigh in the decision (all that may have a case before them that is – that excludes the DC,2nd and possible 3rd given that the PA appeal of the clerk seems to go nowhere – also the 1st may have the Puerto Rico case before it but I wonder if a case from the commonwealth is worth waiting for from the SCOTUS even in that scenario) and all circuits (ignoring the harsh realities of the 5th and possibly the 8th) fall on the side of marriage equality, is the court more likely to deny cert or is there any chance to grant cert and overturn every circuit in the country ? I know its very hypothetical given that certain judges on the 5th would uphold laws barring interracial marriage for that matter but still, it would be an interesting scenario..

    3) This is a more specific question about the chances of the equality side pevailing in the 6th circuit, since it has become such a key point according to RBG's statement. I have heard that Sutton will be the swing vote but I read another analysis saying that Sutton is most definately upholding the bans and Cook who has issued some pro-LGBT decisions in the past (not aware of them just saying what I read) may be the swing vote. Will the 7th circuit ruling by Posner influence Sutton given that he holds him in high regard apparently ? Can Sutton go against marriage equality after RBG's statement just to trigger the SCOTUS to grant cert more quickly ? Finally, is it worth it for the losing side, if we assume that it's the plaintiffs to ask for an en banc hearing from the 6th. As far as I am aware if a court of appeals grants the petition for an en banc hearing, the 3 judge panel decision is rendered unimportant, right ? And I do believe there might be more sympathetic judges to marriage equality in the 6th than those who heard this case (I remember Bush appointee judge Helene White being against granting the stay in the Michigan district court ruling, if that's any indication for instance). In general what would be the chances of prevailing in an en banc hearing in the 6th, for those who know the history of the judges there ?

    4) Final question..Is it true that judges Kennedy and Posner enjoy a close friendship and mutual admiration and if so can that influence Kennedy's views based on Posner's decision ?

    I know my questions may be overwhelming a bit but I have been looking for an appropriate forum to ask them for quite some time..Keep doing the great job you are doing !

  • 38. Ragavendran  |  September 20, 2014 at 5:22 pm

    Welcome, guitaristbl! I'm a fellow non-lawyer and non-American. For starters, here are some limited answers to your questions…

    (1) Any three-judge panel of the Tenth Circuit is always bound by prior judgments by the Tenth Circuit and may not overturn or contradict such precedent unless there is an intervening Supreme Court precedent. By this logic, yes, O'Scannlain is bound to apply heightened scrutiny in any future sexual orientation discrimination case in the Ninth Circuit when he is sitting on a three-judge panel, unless an en banc panel of the Ninth Circuit or the Supreme Court determines otherwise.

    (2) I doubt SCOTUS will wait, as many court watchers have pointed out. I agree with Lyle Denniston's excellent recent analysis on SCOTUSblog. It is unlikely they will wait and simply hold on to cert petitions for a long time waiting for every circuit court to rule.

    (3) I don't know much information about the Sixth Circuit judges, but I wouldn't count on Cook more than Sutton to rule in our favor. And given that not even a single judge on the Sixth Circuit voted for an initial en banc hearing, I doubt a majority will vote to rehear en banc regardless of the outcome.

    (4) I'm not aware of any close Posner-Kennedy relationship – sorry.

  • 39. guitaristbl  |  September 20, 2014 at 5:50 pm

    Thanks a lot for your answers, they do answer certain points of my questions quite eloquently.
    The first point is a relief, although it sounds deeply problematic from a judicial point of view. I mean of course I am happy that such decisions are binding but I do wonder how "fair" it may be. Let's take for example the 7th circuit. Yes the equality side was lucky enough to have the only two judges appointed by a democrat (plus the chief justice being appointed by a democrat) on the panel but had it been two other justices another precedent might have been set for that circuit…It sounds rather unreliable to me, even if it works in our favour thus far.

    I do agree that SCOTUS won't wait that long for sure, especially given that the 8th does not even have a case before it yet. Another fear that crossed my mind though is that at best we will have a 5-4 majority, that's almost certain. Much have been said about Kennedy being the deciding vote etc but how sure can we be about the rest of the liberal wing ? Even RBG has adviced caution and said that Roe for example might have been a wrong decision given the backlash. Breyer is also more relatively moderate at times and may also fear a sweeping ruling. I know that its SCOTUS, anything can happen but while we can solidify the 4 votes in opposition (I had some hopes that Roberts may vote with the eventual majority in Windsor but since it did not happen in a case about a federal law I can't see it happening on state laws), I am not quite certain the 4 votes in favour are there either, to get to the whole "what Kennedy thinks" game (he has also adviced caution at social issues btw).

  • 40. Mike_Baltimore  |  September 20, 2014 at 6:39 pm

    RBG, on many occasions, has stated that the Roe ruling may have been 'too early', but I don't ever recall hearing her say it should have been ruled differently.

    The same outcome could have been with the 'Loving' ruling in 1967, but no one made a HUGE fuss about it. It was only after 1990 (more than 23 years after the ruling) that polling found a majority of Americans (of voting age) who agreed with the ruling, after all. Now? An estimated 90%+ agree with the ruling.

  • 41. guitaristbl  |  September 20, 2014 at 6:51 pm

    Maybe I should have phrased it another way and say that "it might have been a wrong decision at the time given the backlash" but I do understand what you are saying.

    The polling argument is a strong one given that a majority according to every latest poll approves of mariage equality. I wonder how much the court cares about that though or if it may even work against us at this point. Trying to look into Kennedy's mind is difficult but Scalia has put it very eloquently both in his Lawrence and Windsor dissents : these rulings rationally lead to striking down marriage bans. Funny that he says that though. If he had any integrity or respect for precedent as he himself defines it, he should vote in favour of equality given only his statement in the windsor dissent. Yet somehow I do not see that happening. And I wouldn't put my money on him writing the majority opinion in case Kennedy sides with the conservatives on marriage equality. He would be eager and tempted to overrule windsor for sure and would find support from Thomas and Alito at the very least I think.

  • 42. JayJonson  |  September 21, 2014 at 6:53 am

    I think you misunderstand Kennedy and the four liberals. They will do the right thing if they have the appropriate case before them.

    The real question is whether the 6th Circuit rules soon. If the 6th Circuit should rule in our favor, it may well be that the Court denies cert to all the marriage cases before them and thereby lifts the stays against the decisions. That will expand the number of marriage equality states to a majority of the states and signal that other circuits should rule the same way.

    Should the 6th Circuit rule against us, as many predict they will, SCOTUS is likely to grant cert to one or more of the cases pending before them now (or to the 6th Circuit cases). If they grant cert, they will rule 5-4 in favor of marriage equality, likely on the basis of equal protection.

    There is no reason to think that Kennedy is waivering on the issue. Or the four liberal (actually, moderat) members of the Court.

  • 43. guitaristbl  |  September 21, 2014 at 7:04 am

    I do not misunderstand them but we should be cautious and prepared for the worse. Kennedy is more on the conservative side of moderate. In the 5-4 decisions he is usually with the 4 conservatives. Yes gay rights is an issue he sides with liberals most of the times but unlike Windsor this is an issue where two issues he believes in (state rights and gay rights) conflict. He was in the Schuette majority (writing the opinion) the last term, upholding a constitutional ban on affirmative action, in a ruling that pointed out the importance of the "democratic process".In his own words : "[t]here is no authority in the Constitution of the United States or in this Court's precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters".This sounds so broad that seems dooming for marriage equality cases to be honest at this point and has been used by opponents in courts till now.He could have narrowed it down to affirmative action or racial inequality cases but he didn't, he wrote it that broad. I am hopeful but we should be prepared for the next day if the ruling does not go our way, that's all I am saying.

    Also even if the 6th circuit rules in our favour I do not think they will deny cert. Actually a pro equality ruling from the 6th has the potential of slowing things down when it comes to the enactment of marriage equality than a ruling against. There is no chance they deny cert. Denying cert means they establish precedent for the decisions brought from other circuits and the 4 conservatives at the very least won't allow that (it only takes 4 judges to grant cert after all). They will grant cert regardless of what the 6th decides in hopes of getting Kennedy with them and reverse the pro equality rulings from the appeals courts (or they may even wait for the 5th to rule against equality – slowing things down even more).

    There is good reason to think that Kennedy may hesitate I think. He has suggested caution many times on such issues, he is a moderate on the more conservative side judge and he believes in state rights. It is true that the growing number of circuits ruling in favour of equality may play a role into influencing him but you can never know. So all I am suggesting is caution and having a plan B for the next day.

  • 44. JayJonson  |  September 21, 2014 at 7:08 am

    Someone observed in an earlier thread that Ruth Bader Ginsburg is the only sitting SCOTUS Justice to have officiated at a same-sex wedding. After today that will no longer be true. Justice Elana Kagan is officiating this afternoon at the wedding of one of her law clerks, Mitchell Reich, to his partner Patrick Pearsall, who is also an attorney.

    Former SCOTUS Associate Justice Sandra Day O'Connor has also officiated at at least one same-sex wedding.

  • 45. Marekweber  |  September 21, 2014 at 7:48 am

    People are overstating Kennedy's commitment to "state's rights". He had no problem curtailing state's rights in Lawrence v. Texas, when he trampled on the right of states to enforce sodomy laws. Lawrence was a bold decision, directly overturning a recent Supreme Court ruling. To invalidate SSM bans requires no overturning of precedent; instead, the precedent (Loving v. Virginia) is clearly in favor of it. If Kennedy was bold enough to invalidate sodomy bans, he should be bold enough to invalidate SSM bans.

  • 46. guitaristbl  |  September 21, 2014 at 7:57 am

    I agree with that train of thought and Romer being about an approved amendment from the people strengthens that scenario. We should not forget though that when Lawrence came about, about one fourth of states had sodomy bans on the books (unfortunately the majority of those still do even if they cannot enforce them). Right now more than half the states do not have marriage equality. We should consider the possibility of Kennedy feeling more comfortable acting when a minority of states ban same sex marriage.
    Not trying to play the devil's advocate here, just putting down possible scenarios…

  • 47. JayJonson  |  September 21, 2014 at 8:06 am

    There is no reason to think that Kennedy will hesitate. He is not on the "conservative side of moderate" when it comes to gay rights. Indeed, he has been by far the boldest and most eloquent defender of gay rights in the history of the Court. I cannot image that the person who wrote the decisions in Romer and Lawrence and Windsor will not uphold the decisions striking down state same-sex marriage bans.

    Your interpretation of Schuette is breathtakingly misinformed.

    As to whether the 4 conservatives will use the power of granting cert in the way you suggest is unlikely. They will probably vote against granting cert in the marriage equality cases because they know that the result will be a decision that immediately brings marriage equality throughout the nation.

  • 48. guitaristbl  |  September 21, 2014 at 8:12 am

    I just quoted Kennedy from Schuette, nothing more.
    I still do not trust Kennedy 100 % on this issue that conflicts state rights and gay rights. His unwillingness to set a standard of review for cases on sexual orientation all these years further enhances my insecurity.
    Also let's not forget that he was in the majority that upheld the ban on gay members the boy scouts had back then.
    I think your way of thinking on the conservatives and their willingness to grant cert is very simplistic personally.
    For all I think, Kennedy is still up fro grabs from both sides.

  • 49. JayJonson  |  September 21, 2014 at 8:18 am

    Yes, Marekweber. Lawrence was a bold decision. And in a sense Romer was even bolder because it made clear that laws based on animus are unconstitutional. He invalidated not just a law but a state constitutional amendment.

    Windsor is not based on state's rights, it is based on equal protection and the fact that DOMA was enacted out of animus. The very same principles will lead him to declare state bans on same sex marriage unconstitutional.

    As for Boys Scouts of America v. Dale, it was a freedom of association case. (Or at least, that is how the BSA framed it.) Kennedy has been a very strong defender of individual rights, and it was on that principle that he joined the majority in that case.

  • 50. Ryan K.  |  September 21, 2014 at 8:27 am

    While I am in agreement with you on overstating the commitment to states rights especially in the case of due process and equal protection, I do hope there is explicit overriding of Baker v. Nelson, as that was post Loving, and still used by some as precedent.

  • 51. Eric  |  September 21, 2014 at 9:02 am

    No, you made a much of inferences, then threw in a quote out of context. The key portion of Kennedy's quote was "this policy determination."

    How can you say his ruling is overly broad, when he was referring to a specific policy determination?

    Kennedy isn't a conservative, he is a libertarian. That's why he believes a private organization can determine its own membership.

  • 52. guitaristbl  |  September 21, 2014 at 9:10 am

    I believe it reflects a way of thinking. Lawrence and Romer are good points indeed but as I said above Lawrence came at a time when a minority of states had sodomy bans. At times the SCOTUS waits on such cases to be a majority consensus when it comes to state policies before intervening.

    As for the libertarian part, I see nothing Libertarian in Town of Greece or even Hobby Lobby. Yes both can be interpreted as freedom of association by some but had a strong element of overpowering religious belief imposed on others.

    All I am saying here is that I am hopeful and positive given the momentum in federal courts but we should be prepared for everything.

  • 53. JayJonson  |  September 21, 2014 at 1:53 pm

    Interesting article in the NYTimes this morning entitled "The Moment at Hand."

    In it, their SCOTUS-watcher Linda Greenhouse concedes that "it would come as no great surprise if the Supreme Court takes a pass this term" on granting cert to a marriage equality case, but nevertheless concludes that "All my court-watching experience tells me that. But still, it’s hard to resist the sense that there is a moment at hand. You could almost call it a parade."

  • 54. FredDorner  |  September 21, 2014 at 3:31 pm

    That's quite a good article and it provides detailed context for how things have progressed on this issue.

  • 55. scream4ever  |  September 21, 2014 at 7:33 pm

    But they could still rule on the merits. Suthers has filed his notice of appeal for Brinkman so it's clear to them it'll reach them eventually.

  • 56. BenjiCA  |  September 22, 2014 at 7:42 am

    As much as I want SCOTUS to take up the case, I have to agree with Ms. Greenhouse: until there is a circuit split, SCOTUS won't take up the case. One could read Ginsburg's recent comments as tea leaves that this is the court's inclination.

    So then, the question becomes: will they outright deny cert, thus allowing the appeals courts decisions to be affirmed; or will they just sit on the cases, thus keeping everything in limbo until there is a circuit split (I'm guessing from the 5th). And if it's the latter, the 5th may decide to just drag out the case for years, similar to the Oklahoma case that took 10 years to be heard and decided.

  • 57. JayJonson  |  September 22, 2014 at 7:51 am

    That is NOT what Ms. Greenhouse says. She says that it would not be a great surprise if they don't take the case, but that she thinks that they will: " it’s hard to resist the sense that there is a moment at hand. You could almost call it a parade."

    It is not likely in any case that the Court will just sit on the cases.

  • 58. JayJonson  |  September 22, 2014 at 7:54 am

    See the beautiful video of the poem by Richard Blanco "Until We Could," which was commissioned by Freedom to Marry."

    More about it here:

  • 59. franklinsewell  |  September 22, 2014 at 8:24 am

    Another day without any word from the 6th.

  • 60. rob2017  |  September 22, 2014 at 11:29 am

    How are we to distinguish between SCOTUS not granting cert this term (and holding it for future consideration), and not granting cert and dropping the stays? Would the first require just silence and the latter some sort of announcement/ruling? When would we know? The prospect of SCOTUS staying the 4th, 7th and 10th circuit decisions and then postponing indefinitely on hearing any of the cases is very upsetting to me.

  • 61. JayJonson  |  September 22, 2014 at 11:59 am

    SCOTUS is not required to act on the petitions for cert. They usually do, of course. But they can simply take no action at all. I agree that for them to do nothing and thereby allow the stays to remain would be very upsetting.

    Here are their options. 1) They can grant cert and then schedule hearing on one or more of the seven cases pending before them; 2) They could ask for the advice of the Solicitor General to see what the position of the US government is in the cases and then act after they hear from the SG; 3) They could delay until they see what the Sixth Circuit says; if the Sixth Circuit rules against us, they almost certainly will grant cert to a marriage equality case; 4) They could just go ahead and deny cert to one or all the pending cases, which would lift the stays on the cases denied; or 5) They could do nothing, which would leave us in limbo.

    I think the odds are good that they will do something. Either grant cert in one or more of the cases (which would halt everything until they they hear and rule on these cases) or deny cert (which would lift the stays and signal that the Circuits can go ahead and rule in our favor).

  • 62. Mike_Baltimore  |  September 22, 2014 at 12:02 pm

    My understanding is that an announcement would be required in any case. An announcement(s) that a request for cert is accepted or denied, or an announcement that SCOTUS is holding the request for cert until a later date (and from my understanding, no future date need be given, just that SCOTUS is continuing to hold the cert).

    If SCOTUS doesn't accept or deny certs, I think this will push the 6CA to issue a ruling sooner than later. And since I think the ruling will go against us, but several judges don't want a ruling by the 6CA to be issued but would rather let SCOTUS 'do the dirty work' for them. SCOTUS not acting on the requests for cert it now has could work in our favor, as a ruling against us would almost certainly be quickly appealed, thus 'forcing' SCOTUS to hear ME cases (Circuit split) and issue a ruling in June 2015 rather than June 2016. I don't see much danger that SCOTUS will rule against us.

  • 63. rob2017  |  September 22, 2014 at 12:05 pm

    Thanks much for the clarification, Jay and MIke.

  • 64. sfbob  |  September 22, 2014 at 12:16 pm

    If court were to deny cert in all of the cases and thereby allow marriage equality in all three of the circuits, it would strongly signal that any other circuit which rules against us would run the risk of having its decision overturned.

  • 65. Mike_Baltimore  |  September 22, 2014 at 12:25 pm

    One thing many are forgetting is that the 'Lawrence' decision not only overruled state's sodomy laws, but also those laws that defined sodomy as between people of the opposite sex OR sodomy between people of the same sex, as well as directly overruling/overturning a recent previous SCOTUS ruling on this issue. (For SCOTUS, 'recent' seems to be any ruling less than 50 years old. For instance, 'Plessy' was not overturned until 'Brown' 58 years later, and then the ruling only partially overturned 'Plessy' – it took the Civil Rights Act of 1964 and the Voting Rights Act of 1965 to effectively completely overturn 'Plessy', and those were Acts of Congress, not SCOTUS. I think SCOTUS would have eventually finished off 'Plessy', but how long would it have taken?).

    In other words, the ruling that Kennedy authored in the 'Lawrence' case was an extremely sweeping ruling (not a narrow ruling), and also a ruling that was very anti- state's rights.

    Justice Kennedy does support state's rights, but not when there is no legitimate justification for the state to act in any manner it wishes.

  • 66. JayJonson  |  September 22, 2014 at 12:47 pm

    Yes, Lawrence was not a narrow ruling at all, but, as you say, "an extremely sweeping ruling."

    The 5-justice majority (to strike down Bowers, a 6-justice majority to strike down Texas's sodomy law) did not simply say that people can practice certain sex acts, but that gay men and lesbians are "entitled to respect for their private lives. . . . The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

    The Court recognized that what was at issue was liberty itself. Justice Kennedy wrote, "The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons."

    Moreover, the Court recognized the stigmatizing effect of sodomy laws and of Bowers v. Hardwick. Of the latter, Justice Kennedy wrote, "Its continuance as a precedent demeans the lives of homosexual persons."

    No wonder Scalia was so incensed and predicted that Lawrence would lead to same-sex marriage. The sweeping ruling held that our relationships are entitled to respect and dignity. Those words must have pierced his hard, cold heart, and not in a good way.

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