Sign Up to Receive Email Action Alerts From Issa Exposed
×

BREAKING: Ninth Circuit strikes down Idaho, Nevada same-sex marriage bans

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
UPDATE 8:21PM ET: The Ninth Circuit has issued its mandate in these cases. (Usually, this takes 21 days.) An order was filed at the same time.

UPDATE 2: Nevada will not appeal the ruling.
———-

The Ninth Circuit Court of Appeals has struck down same-sex marriage bans in Idaho and Nevada. The 95-page opinion appears to be unanimous.

From the opinion:

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

The opinion notes the court will issue a separate ruling in the Hawaii case soon.

EqualityOnTrial will have more on this soon.

Thanks to Equality Case Files for these filings

188 Comments

  • 1. RemC_in_Chicago  |  October 7, 2014 at 1:19 pm

    Dancing the Ninth Circuit Jig. (It requires two left feet—anyone care to join me?)

  • 2. franklinsewell  |  October 7, 2014 at 1:20 pm

    I will join!

  • 3. MacT89  |  October 7, 2014 at 1:20 pm

    My ignorance. Will this opinion impact any of the remaining states in the 9th?

  • 4. DoctorHeimlich  |  October 7, 2014 at 1:23 pm

    And so the next wave of SCOTUS appeals begins, this time led by Idaho. But since this too is a ruling striking the bans down, it seems likely we can expect a swift cert denial, and subsequent ripple effect on the other 9th Circuit states.

    So that "soon, 30 states" figure we've been hearing may need to be amended to "soon, 35 states!"

  • 5. JayJonson  |  October 7, 2014 at 1:25 pm

    Wonderful! It was expected but nevertheless exciting to hear it made official! Looking forward to reading the opinion.

    I am glad they beat Sutton, for this ruling increases the pressure on him. Does he rally want to go against yet another circuit, even the "liberal" ninth circuit?

  • 6. Swifty819  |  October 7, 2014 at 1:26 pm

    Interestingly enough, it says the opinion and concurrence were written by the same judge. Nice typo there.

  • 7. franklinsewell  |  October 7, 2014 at 1:31 pm

    Reinhard's addressing a different issue in his concurrence – about what the marriage right actually is. His opening sentence is: I, of course, concur …. He may have written both.

  • 8. samg68  |  October 7, 2014 at 1:33 pm

    That is correct, obviously the others didn't agree so he included it in a concurrence so the others could join the main opinion.

  • 9. guitaristbl  |  October 7, 2014 at 1:34 pm

    And to think some were complaining about the 9th being slow just an hour or so ago.

    Congrats to the couples of the 9th circuit who will soon be able to marry (if the 6th does not surprise us negatively soon) !

    These might have been the 2 days that advanced LGBT rights more than 40 years have done.

    I literally don't know what to say anymore.

    The writing is on the wall, let's end this.

    To Sutton : Do what you have to do. Fast !

  • 10. Swifty819  |  October 7, 2014 at 1:34 pm

    You mean as opposed to giving it to one of the other judges and then joining their opinion, I assume.

  • 11. franklinsewell  |  October 7, 2014 at 1:36 pm

    And to those who were married in other locales (like me)

  • 12. DaveM_OH  |  October 7, 2014 at 1:39 pm

    Posner again, in Footnote 13… Go Figure!

  • 13. Idaho and Nevada marriage&hellip  |  October 7, 2014 at 1:39 pm

    […] Ninth Circuit Court of Appeals struck down marriage bans in Idaho and Nevada. The three-judge court voted […]

  • 14. flyerguy77  |  October 7, 2014 at 1:42 pm

    hot damnnnnnnn

  • 15. guitaristbl  |  October 7, 2014 at 1:43 pm

    As expected Berzon concurred saying that there is also discrimination on the basis of sex. A very interesting approach.

  • 16. MichaelGrabow  |  October 7, 2014 at 1:44 pm

    Sixth circuit, come on down!

  • 17. SethInMaryland  |  October 7, 2014 at 1:47 pm

    MAN MAN MAN, ISN"T THIS SWEET? HEHEHEHEHE YES!!!!!!

  • 18. Ragavendran  |  October 7, 2014 at 1:47 pm

    "First, they argue that since same-sex families will not include both a father and a mother, a man who has a child with a woman will conclude that his involvement in that child’s life is not essential. They appear to contend that such a father will see a child being raised by two women and deduce that because the state has said it is unnecessary for that child—who has two parents—to have a father, it is also unnecessary for his child to have a father. This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response. We reject it out of hand."

    "The Coalition […] argu[es] that the effects of same-sex marriage might not manifest themselves for decades, because “something as massive and pervasive in our society and humanity as the man-woman marriage institution, like a massive ocean-going ship, does not stop or turn in a short space or a short time.” Given that the discriminatory impact on individuals because of their sexual orientation is so harmful to them and their families, such unsupported speculation cannot justify the indefinite continuation of that discrimination."

    There goes Monte's stick and balls theory.

  • 19. mariothinks  |  October 7, 2014 at 1:48 pm

    Sometimes the American judiciary gets it wrong, but I have never been more proud of our judiciary than I have been these past two days. Thanks to the plaintiffs and all the brave gay men and women who have fought for us, including attorneys. And I'm especially grateful for Posner. I don't think we would've been here so fast if it wasn't for him. He has given the judiciary the courage to do what is right and use common sense thinking. No one has destroyed arguments against same sex marriage like that man. I love all of you who have supported this movement. Thank you! God bless America! Gay marriage will be the law of ALL of the land VERY SOON!

  • 20. franklinsewell  |  October 7, 2014 at 1:48 pm

    I love when judges reject arguments "out of hand."

  • 21. Ragavendran  |  October 7, 2014 at 1:48 pm

    Footnote 12: "He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs,and rock-and-roll."

  • 22. flyerguy77  |  October 7, 2014 at 1:50 pm

    is there a stay????????? the big question of the day!!!!!!!

  • 23. franklinsewell  |  October 7, 2014 at 1:51 pm

    "To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional."

  • 24. DaveM_OH  |  October 7, 2014 at 1:52 pm

    What's Next for the Ninth:

    Mandate should issue in no more than 21 days. Circuit Justice for the 9th Circuit is Kennedy. Now it's *really* on his plate. All stay applications must be first addressed to him. He will likely refer to the court – and as Rose would ask – is "gay means stay gone for good?"

    In Alaska is pending Hamby v. Parnell. It has not proceeded to trial yet; a summary judgment motion is surely being drafted as we speak. If Latta is unstayed, Hamby will win and equality would come to the Northern Frontier.

    In Arizona is pending Majors v. Jeanes. Same deal as AK.
    In Montana is pending Rolando v. Fox. Same deal again.

  • 25. franklinsewell  |  October 7, 2014 at 1:53 pm

    "But a primary purpose of the Constitution is to protect minorities from oppression by majorities."

  • 26. SethInMaryland  |  October 7, 2014 at 1:53 pm

    it be the same effect like whats going on in NC or Colorado, Arizona and Alaska lower courts will have to follow the 9th circuit because it's binding them together

  • 27. MichaelGrabow  |  October 7, 2014 at 1:54 pm

    This is great stuff.

    Reinhardt also points out that if Nevada and Idaho really wanted to increase the number of children raised by their married biological parents, “they would do well to rescind the right to no-fault divorce, or to divorce altogether,” noting, “Neither has done so.” If biological parents were a priority, “they might do better to ban assisted reproduction using donor sperm or eggs, gestational surrogacy, and adoption,” but again, “Neither state does.”

    In his conclusion, Reinhardt asserted that “the lessons of our constitutional history are clear: inclusion strengthens rather than weakens, our most important institutions,” citing examples such as school integration improving education, opening juries to women, and ending “Don’t Ask, Don’t Tell.” “When same-sex couples are married, just as when opposite-sex couples are married,” he determined, “they serve as models of loving commitment to all.”

  • 28. Ragavendran  |  October 7, 2014 at 1:54 pm

    Great timing, as Alaska's case Hamby v. Parnell is coming up for summary judgment hearing this Friday, October 10th. Piece of cake for the district court.

  • 29. davepCA  |  October 7, 2014 at 1:55 pm

    YES, it will overturn the same sex marriage bans in those other states as well, and pretty quickly, but not totally automatically. In the pending trials in those other states, our side will likely point out to the court that the court should rely on this 9th circuit decision and they will request that the court just rule in their favor based on this ruling. It's more than just a simple formality, but it's most likely a short process and a 'done deal'. If any of those lower courts decides to ignore this ruling and issues a ruling against our side (not very likely!), it would quickly be corrected by the 9th circuit.

  • 30. JayJonson  |  October 7, 2014 at 1:55 pm

    My God, I had no idea that even our opponents would claim that by getting married we were driving heterosexual couples to "sex, drugs, and rock-and-roll"!!!

  • 31. DaveM_OH  |  October 7, 2014 at 1:55 pm

    Not in the Opinion. Otter can ask the 9th to stay itself (ha ha), for en banc rehearing (ha ha, denied), and he can go beg Justice Kennedy for a stay (oh boy).

  • 32. micha1976  |  October 7, 2014 at 1:56 pm

    Another trolling of Scalia, quoting his Lawrence dissent:
    "Both states give marriage licenses to many opposite-sex couples who cannot or will notreproduce—as Justice Scalia put it, in dissent, “the sterile and the elderly are allowed to marry,” Lawrence, 539 U.S. at 604–05—but not to same-sex couples who already have children or are in the process of having or adopting them."

  • 33. RnL2008  |  October 7, 2014 at 1:56 pm

    Now Dave, were you mentioning me for a reason? I hope a Stay is NOT issued in this case……but if it is, may it be a swift lift….lol!!!

    Just for that…you need to contact me so that you can by some Girl Scout nuts:-)

  • 34. DaveM_OH  |  October 7, 2014 at 1:56 pm

    Yeah, except the mandate hasn't actually issued yet… 😛

  • 35. Elihu_Bystander  |  October 7, 2014 at 1:57 pm

    Dito

  • 36. davepCA  |  October 7, 2014 at 1:58 pm

    Wow. THAT was awesome : )

  • 37. franklinsewell  |  October 7, 2014 at 1:58 pm

    Does anyone think Kennedy would grant the stay given the recent refusal to hear a case?

  • 38. DaveM_OH  |  October 7, 2014 at 1:58 pm

    Hey, I'm busy selling Boy Scout popcorn! 😀

  • 39. Retired_Lawyer  |  October 7, 2014 at 1:59 pm

    The opinion for the Court was written by Judge Reinhardt, and is based on an equal protection approach. Judge Reinhardt also filed a concurring opinion, supporting the "fundamental right" (substantive due process) approach. Judge Berzon filed another concurring opinion, saying that he finds gender discrimination as well.

  • 40. Ragavendran  |  October 7, 2014 at 1:59 pm

    Right, but the judge can wait for the mandate and then quickly issue the opinion. I doubt there will be stays, in light of what the Supreme Court did yesterday.

  • 41. Ragavendran  |  October 7, 2014 at 2:01 pm

    I don't think there'll be any more gay stays. I'll be shocked if SCOTUS grants a stay after what they just did yesterday.

  • 42. franklinsewell  |  October 7, 2014 at 2:01 pm

    To all my colleagues here who explained what will happen in the 9th's ruling… Here it is: "The judgement of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court for the prompt issuance of an injunction permanently enjoining …"

  • 43. RnL2008  |  October 7, 2014 at 2:02 pm

    You buy nuts and I'll buy popcorn……deal?

  • 44. DaveM_OH  |  October 7, 2014 at 2:02 pm

    Playing devil's advocate for a minute – there's a possibility.
    The 9th applied heightened scrutiny. If Kennedy thinks that's inappropriate, he might grant a stay.

  • 45. DaveM_OH  |  October 7, 2014 at 2:05 pm

    Deal!

  • 46. franklinsewell  |  October 7, 2014 at 2:06 pm

    From Reinhardt's concurrence

    "I would also hold that the fundamental right to marriage, repeatedly recognized by the Supreme Court, … is properly understood as including the right to marry an individual of one's choice."

  • 47. Zack12  |  October 7, 2014 at 2:06 pm

    What a truly amazing week.

  • 48. franklinsewell  |  October 7, 2014 at 2:06 pm

    hmm.

  • 49. cpnlsn88  |  October 7, 2014 at 2:07 pm

    I ABSOLUTELY love that Reinhardt is concurring with himself (in part). A lot of work went into this opinion(s). Nevertheless I think it was written a long time ago but Reinhardt said – yeah the first draft's basically done but just to make sure I'm going to read some textbooks of constitutional law and reread every brief and ruling in any same sex marriage case at state or federal level, which might take a while'. Then yesterday he said 'Yep, I'm done, ruling good to go, let me do a final spell and citation check'. My imagination only, of course.

    What a week!

  • 50. BenG1980  |  October 7, 2014 at 2:09 pm

    I doubt he would issue a stay solely on the issue of heightened scrutiny only to later concur with the end result (i.e., marriage equality). SCOTUS could take up a case to "correct" the Ninth on scrutiny without keeping people from getting married in the meantime. There would need to be a more compelling difference from the other cases to warrant a stay at this point.

  • 51. SethInMaryland  |  October 7, 2014 at 2:09 pm

    i kinda wonder if maybie the Nevada ruling might be implemented soon , the gov and att gen are no longer defending theban, maybie they will agree to follow the ruling right away like colorado

  • 52. SeattleRobin  |  October 7, 2014 at 2:10 pm

    I can't imagine it. The stays were granted to maintain status quo until SCOTUS made a decision. Well, they've decided not to decide, so there would be no purpose anymore. Since the circuit court rulings are all in effect for the other cases, there would be no reason to prevent this one from also going into effect.

  • 53. ebohlman  |  October 7, 2014 at 2:11 pm

    Also see p.19:

    They appear to contend that such a
    father will see a child being raised by two women and deduce that because the state
    has said it is unnecessary for that child—who has two parents—to have a father, it
    is also unnecessary for
    his
    child to have a father. This proposition reflects a crass
    and callous view of parental love and the parental bond that is not worthy of
    response.

  • 54. weaverbear  |  October 7, 2014 at 2:11 pm

    Ah, but with what happened yesterday, will Idaho appeal? Given SCOTUS' action yesterday, and the lack of any split so far, will Idaho read the handwriting on the wall?

  • 55. JayJonson  |  October 7, 2014 at 2:12 pm

    Reinhard gives no quarter in his excoriation of the flimsy arguments devoid of any credible evidence offered by the attorneys for Idaho and the Nevada Coaltion.

  • 56. Randolph_Finder  |  October 7, 2014 at 2:14 pm

    And it's still only Tuesday.

  • 57. davepCA  |  October 7, 2014 at 2:15 pm

    I think chances are better than 'maybe', I think it's highly likely.

  • 58. jdw_karasu  |  October 7, 2014 at 2:16 pm

    Rack that one for the list of Best Quotes From ME Opinions. :-)

  • 59. Ragavendran  |  October 7, 2014 at 2:19 pm

    "To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in “family values.”"

  • 60. jdw_karasu  |  October 7, 2014 at 2:21 pm

    Only worrisome thing, the judge is:
    http://en.wikipedia.org/wiki/Timothy_Mark_Burgess

    He's bound by the 9th, but he also could dick around a bit. Hopeful there will be some coverage of the hearing and we can get a reading of the tea leaves from his questioning.

  • 61. Mike_in_Houston  |  October 7, 2014 at 2:25 pm

    Note the delicious footnote 12 on page 21:

    He also states, in conclusory fashion, that allowing same-sex marriage will
    lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital
    affairs, take on demanding work schedules, and participate in time-consuming
    hobbies. We seriously doubt that allowing committed same-sex couples to settle
    down in legally recognized marriages will drive opposite-sex couples to sex, drugs,
    and rock-and-roll.

  • 62. guitaristbl  |  October 7, 2014 at 2:26 pm

    Oh the continuing trolling of Scalia's dissent both in Lawrence and Windsor that is also present in this opinion is immensly satisfying…

    "Additionally, as plaintiffs argue persuasively, Idaho and Nevada’s laws are
    grossly over- and under-inclusive with respect to procreative capacity. Both states
    give marriage licenses to many opposite-sex couples who cannot or will not
    reproduce—as Justice Scalia put it, in dissent, “the sterile and the elderly are
    allowed to marry,” Lawrence, 539 U.S. at 604–05—but not to same-sex couples
    who already have children or are in the process of having or adopting them."

  • 63. guitaristbl  |  October 7, 2014 at 2:28 pm

    Already noted above. But if indeed such an argument was made by the state, then it deserves an ironic, humiliating and funny response really.

  • 64. micha1976  |  October 7, 2014 at 2:28 pm

    Berzon's concurrance is longer than the opinion of the court. She really champions her sex discrimination theory…

  • 65. guitaristbl  |  October 7, 2014 at 2:29 pm

    He may be a G.W Bush appointed but let's not judge since Bush appointees have ruled in favour of equality (10th Circuit, Kentucky). Even if he is a bigot, there's little he can do now.

  • 66. Ragavendran  |  October 7, 2014 at 2:30 pm

    Judge Sutton's Trilemma: http://www.scotusblog.com/2014/10/symposium-judge

  • 67. guitaristbl  |  October 7, 2014 at 2:37 pm

    "As plaintiffs note, Nevada has been a veritable pioneer in changing these (described before that sentence about women's rights in marriage) practices,
    enacting (and benefitting economically from) laws that made it among the easiest
    places in the country to get married and un-married."

    I knew those Vegas drunk marriages would come into play at some point lol !

  • 68. JayJonson  |  October 7, 2014 at 2:38 pm

    This is such a strange decision. I would love to have been a fly on the wall at the conference in which the panelists discussed the case. I suspect that the three at once agreed that the bans were unconstitutional. Reinhardt and Berzon may both have wanted to write the decision, but could not convince Gould to go along with that they really wanted to rule–Reinhardt on marriage as a constitutional right that must be extended to include the right to marry the person of one's choice and Berzon on striking down the bans because the discriminate on the basis of sex and sexual stereotypes as well as sexual orientation.

    Apparently, Gould would only go along with equal protection, so to get a unanimous decision we get in effect three decisions: the unanimous opinion of the court, plus the separate concurrences by Reinhardt and Berzon.

    I like all three justifications for striking down the bans!

  • 69. Fledge01  |  October 7, 2014 at 2:38 pm

    There certainly will be no stay issued by the ninth. I doubt any state will even ask for a stay. But if they do they will not get it from the ninth and if they go on to request a stay from SCOTUS, they will also be denied. There is no way SCOTUS will prevent couples in the 9th from getting married when they just allowed couples elsewhere to get married the other day. Furthermore, I doubt this will even get appealed by any state.

  • 70. guitaristbl  |  October 7, 2014 at 2:40 pm

    "The official message of support that Governor Otter and the Coalition wish
    to send in favor of opposite-sex marriage is equally unconstitutional, in that it
    necessarily serves to convey a message of disfavor towards same-sex couples and
    their families. This is a message that Idaho and Nevada simply may not send."

    That last sentence especially is blunt and direct in a great way. But this whole passage presents much of the essence of this opinion imo

  • 71. guitaristbl  |  October 7, 2014 at 2:42 pm

    It's definately the first time I see a judge concurring to his own opinion !

  • 72. FredDorner  |  October 7, 2014 at 2:43 pm

    If Idaho appeals it will create the opportunity for SCOTUS to clarify the heightened scrutiny issue.

  • 73. RnL2008  |  October 7, 2014 at 2:44 pm

    Hey Dave,
    Here's my e-mail address:
    l-rjr@hotmail.com

    I look forward to honoring this deal:-)

  • 74. RnL2008  |  October 7, 2014 at 2:46 pm

    I wonder how long SCOTUS will take to deny the appeal from Idaho? Any guesses?

  • 75. franklinsewell  |  October 7, 2014 at 2:49 pm

    It's really a QUADRILEMMA now. 😉

  • 76. DACiowan  |  October 7, 2014 at 2:49 pm

    The Monday conference after they get the petition for cert?

  • 77. DACiowan  |  October 7, 2014 at 2:50 pm

    I leave the house for three hours, and this is what happens. Sweet.

  • 78. sfbob  |  October 7, 2014 at 2:51 pm

    In principle it should overturn all remaining marriage equality bans within the Ninth Circuit.

  • 79. cpnlsn88  |  October 7, 2014 at 2:52 pm

    Joking aside it seems a well argued ruling with erudite and well thought out (and referenced) concurrences. Much to think about in all three opinions.

  • 80. DACiowan  |  October 7, 2014 at 2:52 pm

    I wonder if that will give anti-ME groups a bustle in their hedgerow, but hopefully they will just let it be without screaming for us to "Gimme shelter!"

  • 81. sfbob  |  October 7, 2014 at 2:53 pm

    Yes I loved that one too.

  • 82. sfbob  |  October 7, 2014 at 2:54 pm

    There has been considerable debate as to whether or not an approach based on sex discrimination was the way to go or not. Berzon's arguments were quite compelling in this respect.

  • 83. JayJonson  |  October 7, 2014 at 2:55 pm

    Perhaps the panel decided to go only with equal protection in the actual decision as the better part of valor. I do not see SCOTUS having any problem with that justification (even with heightened scrutiny), but they may have objected to the other justifications, especially the gender discrimination argument. I found that argument completely convincing, but SCOTUS has been reluctant in applying that to discrimination claims filed by gay people though they have done so with discrimination claims filed by transgender people.

  • 84. RnL2008  |  October 7, 2014 at 2:55 pm

    That long…..lol!!

  • 85. Steve  |  October 7, 2014 at 2:56 pm

    I'm not so sure. There might be rock and roll at some gay weddings.

  • 86. franklinsewell  |  October 7, 2014 at 2:57 pm

    About Arizona: http://www.azcentral.com/story/news/arizona/polit

  • 87. JayJonson  |  October 7, 2014 at 2:58 pm

    I think some Idahoans are angry with the governor for spending so (relative) much on defending the ban. They may see the writing on the wall and pressure him not to appeal. (On the other hand, Monte Stewart will probably be able to convince him that the bonding angle will get some traction at SCOTUS.)

  • 88. guitaristbl  |  October 7, 2014 at 2:59 pm

    "When Virginia told Virginians that they were not free to marry the one they loved
    if that person was of a different race, it so grievously constrained their “freedom of
    choice to marry” that it violated the constitutional rights even of those citizens who
    did not themselves wish to enter interracial marriages or who were already married
    to a person of the same race. Id. When Idaho tells Idahoans or Nevada tells
    Nevadans that they are not free to marry the one they love if that person is of the
    same sex, it interferes with the universal right of all the State’s citizens—whatever
    their sexual orientation—to “control their destiny.""

    "Fundamental rights defined with respect to the subset of people who hold them are fundamental rights misdefined.
    The question before us is not whether lesbians and gays have a fundamental right
    to marry a person of the same sex; it is whether a person has a fundamental right to
    marry, to enter into “the most important relation in life,” Maynard v. Hill, 125 U.S.
    190, 205 (1888), with the one he or she loves. Once the question is properly
    defined, the answer follows ineluctably: yes."

    "We, as judges, deal so often with laws that confine and constrain. Yet our
    core legal instrument comprehends the rights of all people, regardless of sexual
    orientation, to love and to marry the individuals they choose. It demands not
    merely toleration; when a state is in the business of marriage, it must affirm the
    love and commitment of same-sex couples in equal measure. Recognizing that
    right dignifies them; in so doing, we dignify our Constitution."

    That last sentence.

    This concurrence of Reinhardt on the constitutional right to marry is the 2nd most satisfying part of a ruling to read thus far after Posner's scathing ruling. It's marvelous, simply marvelous. This analysis on Loving and the claims of defendants of the bans that "all have the same rights under those bans" is so well thought and argued. It incorporates exactly the right answer to the "creating a new constitutional right " argument opponents put forward. Oh couldn't the other 2 just join on this one ?

  • 89. JayJonson  |  October 7, 2014 at 3:01 pm

    When will we know anything about Montana and Arizona? (Apparently, there will be a hearing in the Alaska case soon.) Can attorneys for the plaintiffs in the Montana and Arizona cases file for a quick hearing and summary judgment in light of the Ninth Circuit's ruling today?

  • 90. RnL2008  |  October 7, 2014 at 3:01 pm

    Not much traction I would imagine, but the anti-gay folks will NOT go quietly into the night!!!

  • 91. guitaristbl  |  October 7, 2014 at 3:06 pm

    I say let's wait and see what Idaho officials will do. I believe they are delusional enough to file for writ of cert, which will be denied most probably by SCOTUS if the 6th does not uphold the bans till then. Now when the petition will be submitted and when the denial of cert will come is uncertain of course.

  • 92. franklinsewell  |  October 7, 2014 at 3:28 pm

    I wonder if Idaho will petition for a rehearing.

  • 93. TimATLGA  |  October 7, 2014 at 3:28 pm

    So if the mandate will issue 7 days after the expiration of the time for filing a petition for rehearing or 7 days from the denial of a petition for rehearing, does anyone know when the deadline is for filing a petition of rehearing?

  • 94. JayJonson  |  October 7, 2014 at 3:29 pm

    In another thread, I asked what the consequences for an appellate judge were of being overturned by SCOTUS. It seems not much, at least in a material sense.

    With that in mind, I wonder if Sutton has an incentive to do the wrong thing here even if he knows that he will be overturned by SCOTUS. If he and Cook(the woman who seemed so opposed to us) ruled to uphold the bans, the decision might soon be overturned, but it might make him and her heroes to the Republican right wingers. It almost certainly would make him a leading candidate to be appointed to SCOTUS by the next Republican president. He is a young man for an appellate judge and seems to have aspirations to the Supreme Court. How better to distinguish himself from other possible candidates than to endear himself to the Republican base?

    Somebody please talk me down from this speculation.

  • 95. FredDorner  |  October 7, 2014 at 3:31 pm

    Berzon nails it:
    "Idaho and Nevada's same-sex marriage proscriptions are sex based, and these bans do serve to preserve 'invidious, archaic, and overbroad stereotypes' concerning gender roles. The bans therefore must fail as impermissible gender discrimination."

  • 96. Rik_SD  |  October 7, 2014 at 3:32 pm

    http://en.wikipedia.org/wiki/Same-sex_marriage_in

    yay!

  • 97. franklinsewell  |  October 7, 2014 at 3:36 pm

    The deadline for filing a petition for rehearing is 14 days after the issuance of the decision.

  • 98. FredDorner  |  October 7, 2014 at 3:36 pm

    Berzon got right what Judge McShane in Oregon got flat wrong.

  • 99. jdw_karasu  |  October 7, 2014 at 3:41 pm

    Worrisome, not a long term disaster.

    Best case: he knows the 9th will reverse him if he upholds the ban, so he tosses in the towel.

    Worst case: he dicks around to drag things out

    Even with the worst case, the 9th will strike the ban down.

  • 100. sfbob  |  October 7, 2014 at 3:44 pm

    I hope you're right. I can however foresee people like Butch Otter fighting on to the bitter end (as we're seeing in South Carolina as well) even though the conclusion is forgone.

  • 101. guitaristbl  |  October 7, 2014 at 3:45 pm

    Berzon's concurrence, unlike Reinhardt's may not sit well with SCOTUS though, or many other courts for that matter. By reading it, I feel like the judge found a chance to unravel her personal opinions on gender discrimination and the treatment of women in marriages in the past, than talk about same sex marriage. Indeed the majority of this extremely lengthy concurrence is about other things than same sex marriage. It'sl like Berzon was looking for a long time to write a manifesto of feminism and found that chance. I do not object to her opinion in anyway of course but some parts felt a bit unfitted to this opinion in my opinion.

  • 102. sfbob  |  October 7, 2014 at 3:47 pm

    Wasn't heightened scrutiny based on sexual orientation as a suspect class part of at least one of the other Circuit Court rulings?

  • 103. Japrisot  |  October 7, 2014 at 3:55 pm

    She's like that in real life too.

  • 104. Margo Schulter  |  October 7, 2014 at 3:57 pm

    sfbob, yes, the Second Circuit applied intermediate scrutiny in Windsor, with Justice Kennedy neither agreeing nor disagreeing on that point, maybe because of his taste for a style of Equal Protection review (in Windsor, through “reverse incorporation” of equal protection principles through the Due Process Clause of the Fifth Amendment with respect to federal DOMA) based more on a weighing of equities than on discrete tiers of scrutiny (rational basis, intermediate, strict). Judge Posner of the Seventh Circuit, similarly, likes the approach of weighing benefits and harms or costs of a given piece of legislation, but did indicate that marriage bans require some level of what would be called heightened scrutiny because Lesbians and Gays fit the criteria for a suspect or quasi-suspect class, to use the tier-based terms.

  • 105. cpnlsn88  |  October 7, 2014 at 4:01 pm

    I am not here to talk you down – only time will tell. I only say that writing opposing (to us) rulings just got a bit harder. No Baker for one thing – or at least a bit of challenge to write that up. Basically can the Baker section and see what you've got left. Time will tell. 6th rules for us – marriage equality gets extended to 4 states. They rule against and SCOTUS has to take the case and rule definitively. Either way is good.

  • 106. DACiowan  |  October 7, 2014 at 4:02 pm

    Hillary wins in 2016, gets to replace Ginsburg, Scalia, and Kennedy with progressives, we have a 6-3 progressive edge on the court and if Sutton does get on, he just gets outvoted.

    :)

  • 107. Pat_V  |  October 7, 2014 at 4:09 pm

    Great news!
    Just a question about the actual situation on the ground.
    Has there been reports of marriage licenses being issued to same-sex couples in all of the 5 states directly affected by yesterday's non-decision (VA, IN, WI, OK, UT) as well as Colorado?
    Just to confirm: these are indeed the 6 new states that are currently issuing same-sex marriages, right? Or is it not effective in all 6? And are there any other new states in addition to these 6 that are already issuing licenses?

    Any guess as to which states will start issuing marriage licenses in the next few days and at which dates? Guessing contest anyone?

  • 108. Japrisot  |  October 7, 2014 at 4:12 pm

    Berzon is a she. 😀

  • 109. Rik_SD  |  October 7, 2014 at 4:17 pm

    my understanding is that all are http://www.freedomtomarry.org/blog/entry/live-blo

  • 110. ebohlman  |  October 7, 2014 at 4:17 pm

    My guess is that Otter (acting on behalf of Monte Stewart) will ask for en banc review just to delay things. Doubt it will be granted, but it will slow things down.

  • 111. ragefirewolf  |  October 7, 2014 at 4:18 pm

    A-wiggle wiggle wiggle!!!

  • 112. jdw_karasu  |  October 7, 2014 at 4:21 pm

    This remains the most satisfying part of a ruling to read:
    https://ecf.cand.uscourts.gov/cand/09cv2292/files

    It's all part of one whole, building from background to testimony to credibility to findings of fact that filled one's heart and made you weep with joy to the hammer of the legal conclusions. From start to finish, it won't be topped… can't be topped.

    That's the greatness of Judge Walker's ruling: it's not about bullet point quotes that can be pulled out and make you laugh or feel good. Instead, it's 136 pages that make your soul soar.

  • 113. ebohlman  |  October 7, 2014 at 4:22 pm

    Arizona's already been briefed and argued, and even resulted in a preliminary injunction involving a death certificate. The decision could be issued any day now (though it might have to be stayed until the mandate issues, which will be the 28th unless there are some shenanigans).

  • 114. JayJonson  |  October 7, 2014 at 4:29 pm

    I agree with you that SCOTUS will not like her concurrence, which is probably why Reinhardt and Gould would not join her in going there. I think she makes great points and were I on the bench, I'd join her. But I think SCOTUS has rejected this argument a couple of times before in regard to discrimination on the basis of sexual orientation. On the other hand, several Circuit Courts have found that discrimination against transgender people is a form of discrimination on the basis of sex and sexual stereotypes.

  • 115. BobxT  |  October 7, 2014 at 4:30 pm

    If sutton upholds the bans he would be sending gay marriage right back to the court that has just voted that they don't want to deal with it right now. That can hardly make him popular with the Supremes.

    well, we'll see

  • 116. sfbob  |  October 7, 2014 at 4:30 pm

    Ah well…if Hillary does win in 2016 there won't be anyone to nominate Sutton anytime soon. Too bad for him I guess, right?

  • 117. JayJonson  |  October 7, 2014 at 4:33 pm

    Yes, there have been marriage licenses issued in the six states you cite. I am not certain that all county clerks in all six states have been issuing licenses, but I know that county clerks have been ordered to do so.

    I know that a couple in Kansas was turned down when they sought a marriage license.

  • 118. franklinsewell  |  October 7, 2014 at 4:37 pm

    The AP is reporting that the 9th Circuit previously issued a stay in the Idaho case and that their Attorney General believes that stay is still in effect.

  • 119. JayJonson  |  October 7, 2014 at 4:38 pm

    Yes. Judge Walker's opinion is a classic piece of legal writing, destined to be celebrated for many years to come.

  • 120. franklinsewell  |  October 7, 2014 at 4:38 pm

    Freedom to Marry says that the Arizona case will not be fully briefed until October 27?

  • 121. guitaristbl  |  October 7, 2014 at 4:43 pm

    Oh gosh the 90 pages of today's opinion and the endless articles since yesterday have left my brain incapable of reading fully this ruling. It's definately historic though and I will save it for future reading :)

  • 122. ranjitbahadur0  |  October 7, 2014 at 4:44 pm

    Hah.
    As much as people would wish for this to happen, the next three Justices to leave the Court are in all likeliness Breyer, Kennedy, and Ginsburg.

    With the Senate almost certainly in Republican hands after this November we might wind up with a 6-3 anti marriage equality court for decades to come.

  • 123. davepCA  |  October 7, 2014 at 4:45 pm

    Precisely! Nevada says straight couples can get married in a drive-through "chapel" in a drunken blackout by some guy in an Elvis costume, but same sex couples who have already spent decades supporting each other and building a family together cannot?? "Sanctity of marriage" my foot.

  • 124. guitaristbl  |  October 7, 2014 at 4:47 pm

    Her concurrence is bigger than the opinion itself even ! Her points about gender stereotypes on LGBT people is valid but I am afraid that conservatives will find good ground to attack her concurrence more than other, solid on equal protection grounds, rulings. Not that it matters but I do hope this concurrence does not make SCOTUS to see this ruling from a different point of view, compared to the ones it rejected already yesterday.

  • 125. davepCA  |  October 7, 2014 at 4:47 pm

    Quick! Leave the house again! We're still waiting for a couple more decisions!

  • 126. brooklyn11217  |  October 7, 2014 at 5:04 pm

    Why Breyer, Kennedy and Ginsburg, but not Scalia? He is 78, older than Breyer at 76. And if you follow Nate Silver, the Republican Senate is more likely right now, but with its odds seeming to be getting better for Democrats recently.

  • 127. SeattleRobin  |  October 7, 2014 at 5:05 pm

    I just finished reading the opinions. The very lengthy concurrence from Berzon has me saying, WOW!

    Until now I have never liked the sex discrimination argument against the marriage bans. I felt they were tepid, undermined the importance of genuine sex discrimination, and ignored the elephant in the room of orientation discrimination.

    While I still believe that orientation, not sex, is at the heart of these laws, I have to say that Berzon has completely sold me on the sex discrimination aspect. He laid it all out there, precisely and methodically, drawing on history, legal precedent, and social science. His long discussion of the changing legal sex roles in marriage would do any historian proud. And at the end he tied it all up in a neat little bow, explaining the intersection of sex and orientation discrimination.

    For anyone who skipped reading that part due to length, I recommend going back to it when you have time.

  • 128. guitaristbl  |  October 7, 2014 at 5:09 pm

    Berzon is a she actually. Other than that I agree that it's well written, but goes off at points turning into a feminist manifesto only to come at the end and tell us that discrimination on the basis of sexual orientation is actually a more inclusive pathway to review such cases. It's a concurrence that, unlike Posner's opinion, may not reasonate well with SCOTUS justices.

  • 129. SeattleRobin  |  October 7, 2014 at 5:20 pm

    I realized I had her gender wrong right after I posted. But my edit didn't go through because of your reply.

    Seriously, "feminist manifesto"? The whole thing is full of citations, not just a personal treatise under the mask of opinion.

  • 130. SeattleRobin  |  October 7, 2014 at 5:25 pm

    I liked all three opinions as well, and thought all of them were strongly written.

  • 131. SeattleRobin  |  October 7, 2014 at 5:30 pm

    Except, I'm not sure taking the winding path will slow anything down this time. Given Monday's events, I can't see the 9th staying their decision pending appeal. Earlier SCOTUS gave a clear message everything (with standing) would be stayed. Now they've given a clear message they aren't going to accept cert. An en banc request is just as futile.

  • 132. franklinsewell  |  October 7, 2014 at 5:36 pm

    WOW! The 9th Circuit is not playing! The mandate has been issued.

  • 133. brooklyn11217  |  October 7, 2014 at 5:37 pm

    Interesting and noted up top, is that they just issued the mandate!

  • 134. franklinsewell  |  October 7, 2014 at 5:37 pm

    The mandate has been issued!

  • 135. Corey_from_MD  |  October 7, 2014 at 5:40 pm

    Bring it, 6th Circuit!
    Bring it!
    Now!!!

  • 136. SeattleRobin  |  October 7, 2014 at 5:42 pm

    The long part about the history of marriage in the US isn't any different than what several other judges have written in their opinions on equal protection. She just went into more depth in order to support her finding of sex discrimination and how "genderless" marriage already exists, thus disposing of that defense. If she hadn't, I might consider it yet another tepid argument. As it stands, her opinion is so detailed and logical that it's almost impossible to refute, even for those who may not like it.

  • 137. guitaristbl  |  October 7, 2014 at 5:42 pm

    I never said it is unsupported or wrong. Just it may be striving off the cases at hand and that it may not fare well in SCOTUS should the court decide for some reason to hear this case.

  • 138. guitaristbl  |  October 7, 2014 at 5:43 pm

    We already have a mandate ? Did Otter or the Idaho AG make any comments on the ruling or announced any further action yet ?

  • 139. RnL2008  |  October 7, 2014 at 5:44 pm

    So, according to the mandate….NO Stay was issued, is that correct? And if so, why does the Idaho Spokesperson seem to think some stay is in effect?

  • 140. franklinsewell  |  October 7, 2014 at 5:48 pm

    The 9th Circuit issued a stay in the Idaho case after the U.S. District Court ruled and before the 9th heard the case.

  • 141. brooklyn11217  |  October 7, 2014 at 5:49 pm

    Otter made comments earlier today BEFORE the mandate issued.

  • 142. SeattleRobin  |  October 7, 2014 at 5:49 pm

    Pfft! It's a concurrence, SCOTUS can completely ignore it if they want to. Meanwhile, it may end up assisting in other kinds of cases down the road. Mainly though I was excited and impressed by her ability to so completely change my mind.

  • 143. RnL2008  |  October 7, 2014 at 5:52 pm

    But is the Stay still in effect?

  • 144. franklinsewell  |  October 7, 2014 at 5:52 pm

    IANAL – But I think this mean's that the previously issued stay is lifted.

  • 145. JamesInCA  |  October 7, 2014 at 5:55 pm

    And the issue is likely not the 2014 Senate, but the 2016 Senate, which may end up rather more favorably for the Democrats.

  • 146. TimATLGA  |  October 7, 2014 at 6:00 pm

    The mandate lifts the 9th Circuit's stay, I believe. Idaho can still try to get an emergency stay from SCOTUS.

  • 147. jdw_karasu  |  October 7, 2014 at 6:03 pm

    It also may be a timing issue:

    Reading it the day it was published back in August 2010 was a powerful moment in one's life if this is an issue that is of great importance to you. People now take so much of what Walker wrote for granted, or as a given. But after the guy punch of November 4, 2008, to read so thoughtful, factual words…

    It was a day when one's soul soared. Not just for the conclusion, but how Walker got there.

    I love so many of the rulings, many giving us new favorite moments. Judge Heyburn's for some reason really hit me, perhaps because he was the first GOP judge on our side, and hit hit the marks so well. But there also was the eloquent way his Section IV deals with "sincere questions and concerns", a gentle walk through the issue in a way can win hearts and minds of those not completely set in their anti-ME mindset.

    That's the thing that happens when there are so many good ones. We forget moments that happened only a few short months ago. Take a moment to read his Section IV again:
    http://freemarry.3cdn.net/a451e58ab634d16ae9_gxm6

    It starts on page 18. As much as I like seeing the anti-ME folks get smacked down by judges, and lord knows we've had some good smackings lately, that's a helluva section by Heyburn.

    Like I say… I have no idea what my #2 is. Walker is #2, and there are 5-6 that are fighting for #2. :-)

  • 148. SeattleRobin  |  October 7, 2014 at 6:13 pm

    I just read in an article linked here that there are two Arizona cases. One ready for a decision and the other not briefed yet.

  • 149. franklinsewell  |  October 7, 2014 at 6:15 pm

    Clark County (Las Vegas) will begin issuing marriage licenses at 2 p.m. tomorrow: http://www.reviewjournal.com/politics/government/

  • 150. TomPHL  |  October 7, 2014 at 6:29 pm

    I became aware of this argument back in the late 60's early 70's when the equal rights amendment was proposed, Its opponents argued that if passed it would lead to gay marriage. I remember thinking they were right and was therefore for it. I have wondered why it has been so little used in the marriage equality cases. I was especially interested because although the amendment did not pass nationally it was adopted in the PA constitution. Bruce Hanes did use it in his case but since that never reached the merits it was not considered. Judge Berzon confirmed my opinion that the approach has merit. She convinces me but others are probably right that it was not the path to ultimate victory in the present SCOTUS.

  • 151. Zack12  |  October 7, 2014 at 6:38 pm

    Congrats to all the couples who will marry tommorrow.

  • 152. robbyinflorida  |  October 7, 2014 at 6:39 pm

    So, according to Judge Berzon butch/sissy is no longer and oxymoron.

  • 153. RobW303  |  October 7, 2014 at 7:04 pm

    Are we so sure that these developments are having no substantive effect on Cook? I know that Sutton and Cook are viewed as most likely to rule against us, but I wouldn't be surprised at a ruling in our favor, however tentatively argued, and even a unanimous one.

    Writing badly argued opinions doesn't add shine to a judicial resumé. By the time Sutton would be nominated, marriage equality will have spread to even more states, and the sky wouldn't fall, none of the predicted consequences would have come about and people would have gotten used to it. A dissenting stance on this issue would give Democrats clear ammunition to assail his judgment and likely kill his nomination.

  • 154. frigens  |  October 7, 2014 at 7:22 pm

    Federal district court has issued an injunction invalidated Colorado's ban. The plaintiff in that case, with state's consent, filed motion to lift the stay which was granted by the Tenth circuit. so CO is settled.

    in other States, no injunction has been issued against enforcement of the marriage ban. Technically, States like NC, SC, WV, KS etc are not compelled to issue marriage license, for now. Federal district courts in those States have very, very, very, very little choice but to issue such injunction in coming weeks or days.

  • 155. SethInMaryland  |  October 7, 2014 at 7:30 pm

    haha no it's not

  • 156. SethInMaryland  |  October 7, 2014 at 7:34 pm

    i knew Nevada wound't appeal , offically the #26 state , offically we now have a majority of US states liveing under this law, congrats everyone, the hard work is now paying off

  • 157. SethInMaryland  |  October 7, 2014 at 7:38 pm

    NC won't be to much longer, the distic court has asked for briefs with what happen in the 4th to submited within 10 days, so it will be very soon there

  • 158. peterplumber  |  October 7, 2014 at 7:48 pm

    First of all, if a man "procreates" with a woman, chances are very good that he is straight and may stay with that woman. Conversely, if a man is gay, chances are VERY good that he will never lay with a woman, and therefore never father a child.
    If a man continues to procreate with many women, then chances are very good that he is just a deadbeat dad and should have his chances of procreation curtailed…yes, I siad it, He should be neutered.

  • 159. RobW303  |  October 7, 2014 at 7:50 pm

    Am I correct that these cases were not consolidated, only heard together? And despite the joint ruling, the cases are still separate? But if Idaho alone seeks to appeal and gets a stay, will this also affect Nevada, unlike if separate rulings had been issued (particularly, Nevada's first)? Was it done this way to preserve Idaho's opportunity to appeal with the least impact to the entire circuit if they won? Or is it considered as if two separate rulings were issued, so that Nevada may proceed independently, regardless of whether Idaho obtains a stay or is successful in later reversing the precedent?

  • 160. DrPatrick1  |  October 7, 2014 at 7:52 pm

    I believe this was the claim in the Baker case, thus a similar argument could more directly implicate Baker. This is why due process has been included in the legal calculus for how to win marriage equality.

  • 161. Ragavendran  |  October 7, 2014 at 8:05 pm

    I think not. If I remember right, the 9th Circuit stay was a "stay pending appeal" and not "stay until we say otherwise", which means the issuance of the mandate concludes the appeal and automatically lifts the stay.

  • 162. Ragavendran  |  October 7, 2014 at 8:05 pm

    They're jumping the gun, but then, who's to stop them? Technically, they have to wait for the district court to act on remand and issue the injunction – but that's just a formality/paperwork.

  • 163. Ragavendran  |  October 7, 2014 at 8:10 pm

    Here's a nice article that I posted elsewhere in this thread. Dale makes some good points: http://www.scotusblog.com/2014/10/symposium-judge

    Sutton didn't think about his allegiance when he upheld the Obamacare mandate. This could mean that he doesn't care about allegiance but legacy, and so will affirm the lower courts. This could also mean that he could reverse in order to "redeem himself" in the eyes of the Republicans and the next Republican president.

    And arguing to uphold marriage bans, as others have said, has gotten a whole lot harder. Niemeyer and Kelly (both in their 70s and towards the end of their careers) didn't bother spewing dissents that were illogical and at times, crazy/nonsensical. Sutton on the other hand, as you point out, is relatively young (53) and has a career ahead of him, and would think twice before writing contrived "logic" to justify upholding the bans. The only way out for him was Baker and that cop-out just got harder to justify since yesterday.

  • 164. Ragavendran  |  October 7, 2014 at 8:18 pm

    I'm confused too. They are separate cases, but today, in addition to the opinion and judgment and mandate and all that, there was another procedural order that is not being mentioned anywhere. In PACER, it reads, "Filed order (STEPHEN R. REINHARDT, RONALD M. GOULD and MARSHA S. BERZON) consolidation of cases. These cases are consolidated for purposes of disposition." I don't know what "consolidation for the purposes of disposition" means.

  • 165. Ragavendran  |  October 7, 2014 at 8:48 pm

    Yay – the mandate has issued already! This is clearly a no-nonsense panel.

  • 166. Ragavendran  |  October 7, 2014 at 8:51 pm

    I don't know about all justices, but Ginsburg, Kagan, and Sotomayor will definitely find Berzon's concurrence of substance, and it might even provide Kennedy with some clarity (remember, during oral arguments last year he wondered aloud if it was a gender discrimination case and that he was struggling with that thought).

  • 167. Ragavendran  |  October 7, 2014 at 9:07 pm

    PACER shows that the Nevada Plaintiffs have just submitted a proposed order to the district court judge, Judge Jones. The Ninth Circuit remanded the case to the district court, ordering Jones to issue an order "promptly". All he has to do is simply sign off on the proposed order, and Nevada's ban will officially fall. So Idaho is #26, Nevada will be #27 if he does so soon (tomorrow?).

  • 168. Ragavendran  |  October 7, 2014 at 9:27 pm

    Utah Governor and AG have asked the Tenth Circuit to dismiss the appeal in Evans v. Utah, the case involving recognition of the marriages performed in Utah between the district court's order and the Supreme Court's stay.

    The Tenth Circuit today granted a similar request in Colorado AG's appeal in Burns, dismissing the appeal procedurally without a decision on the merits. A mandate has also been issued.

  • 169. RnL2008  |  October 7, 2014 at 9:56 pm

    According to the Mandate……..the order goes INTO effect today…..as I understand it.

  • 170. Fledge01  |  October 7, 2014 at 10:26 pm

    judges hate being overruled. It may make him a hero in the conservative party, but professionally it will hurt among his colleagues. Besides, he should know that SCOTUS didn't deny cert yesterday only to rule in his favor later. SCOTUS's actions, though not expressed outright, is something a judge must consider when looking at what the correct action is. If he can justify to himself AND believe his justification, then he can rule as he wishes and being overruled is just part of being a judge. But most legal scholars would say that SCOTUS was sending a message to the 6th saying, "don't make us have to rule on this case. you should just do as all the other judges have done and eventually it will all magically be over some day.

  • 171. Fledge01  |  October 7, 2014 at 10:40 pm

    I think that technically they don't have to wait. Just like the clerks in Boulder did months ago. An injunction is a way to force those who want to not issue licenses to issue licenses. It doesn't give permission to anybody to issue licenses because (depending on the state internal administrative rules) the clerks have always had the legal right to issue licenses because the law was always unconstitutional and void. Its not like its suddenly unconstitutional after the judges rule. Judges can't change laws, they only point out what it has always been.

    The only way clerks may not be allowed to issue licenses is if there happens to be something in their state laws that require them to obey their AG, but thats a different legal issue. In many states, clerks could have always issued licenses if they thought they were following the law. If they should have known it wasn't the law, then that would have made them personally at risk of facing prosecution. A risk few clerks were willing to take. The Wisconsin AG even suggested they could be prosecuted by county prosecutors, even though the AG has no authority to tell the county DAs how to do their jobs.

  • 172. josejoram  |  October 7, 2014 at 11:04 pm

    Veeeery interesting! And illustrative.

  • 173. josejoram  |  October 7, 2014 at 11:07 pm

    Citizens United….huge error.

  • 174. Margo Schulter  |  October 7, 2014 at 11:28 pm

    Judge Berzon’s analysis might seem a bit indirect or complex in a jurisdiction with heightened scrutiny for sexual orientation classifications, but it is absolutely brilliant, and addresses issues raised or alluded to in the 2013 SCOTUS oral arguments by Justices Ginsburg and Kennedy.

    Her feminist analysis of the institution of marriage, and of evolving gender (or gender-neutral) roles, connects back in a way to Judge Walker’s courtroom, where Professor Nancy Cott was one of the expert witnesses on the meaning of marriage through time.

    Of course, as a Lesbian feminist I might be biased, but she draws on an interesting opinion of Justice Ginsburg I’ll address in my next comment, which includes a curious use of the term “dyke.”

  • 175. Margo Schulter  |  October 7, 2014 at 11:41 pm

    Judge Berzon’s opinion draws on United States v. Virginia, 518 U.S. 515 (1996), the case ruling that Virginia Military Institute (VMI) must admit women to its very rigorous “adversative training” program famed for its production of great civilian leaders as well as great soldiers.

    In one very relevant portion for the marriage cases, Justice Ginsburg notes, 518 U.S. at 555, that “all gender-based classifications today” warrant “heightened scrutiny.” And as Judge Berzon shows, that includes the marriage bans, which actually discriminate more directly and explicitly on the basis of sex than on the basis of sexual orientation (which is obviously the motivation for the laws, but not directly addressed by them — i.e., no one is asked their sexual orientation in the process of applying). If the law classifies by sex, then the motivation or any intent to treat one gender unequally to the other is not required in order for intermediate scrutiny to be mandated.

    Now for the somewhat humorous side of the VMI ruling — from an LGBT perspective, if not necessarily from the standpoint of the new VMI students enduring their exacting initiation! Rather than immediately being assigned a class status, the newcomers are called “rats,” and assigned a student mentor called, of all things, a “dyke” — from a Southern dialectal form of the word for “deck,” evidently since the dyke may help the rat in decking (getting dressed in uniform, which for some items would be hard or impossible to do without assistance). So one upshot of the VMI ruling was that a rat’s upperclass mentor might actually be a “dyke” in the sense of a Lesbian.

    From another perspective, the VMI case might be a tribute to Judge Ginsburg’s career: having successfully run the “ratline” of constitutional advocacy in the 1970’s as a peerless litigator for gender equality, she became a member of SCOTUS, and so became the ideal person to write the VMI opinion. Judge Berzon’s opinion, in turn, is a brilliant extension of her jurisprudence.

  • 176. Margo Schulter  |  October 7, 2014 at 11:53 pm

    If I were Judge Sutton, I might do basically rational basis plus a bite, a bit like Judge Posner but more subdued and closer to Justice Kennedy’s opinion in Windsor.

    Of course, Judge Daughtrey might also write an opinion more or less in this vein, focusing on the highly speculative and questionable justifications proposed for the bans, and the tangible harm both to the couples and especially to their children (insert Windsor quotes). Show that LGBT people meet the attributes of at least a quasi-suspect class, and that marriage is important, and then, sort of Cleburne-like, suggest that the tenuous justifications (of which “tradition” and “cautious change” can be disregarded) simply don’t provide any credible basis for the invidious discrimination that results.

    If one had to express this test in words, it might be some “significant government interest” — I saw that formula somewhere, I’m not sure where, at it sounds right. But more Kennedyesque might be simply to say that the actual or credible justifications do not provide any substantial basis for the bans.

    This avoids either a ruling on a fundamental right of marriage under the Fourteenth Amendment, or an express finding of heightened scrutiny (although Justice Scalia might kvetch about this being more than classic rational basis, as he did in his Windsor dissent). And the emphasis on no substantial or significant government justification carries a rather deferential tone to state legislatures, a note of comity that the Sixth Circuit is merely enforcing bedrock equal protection, not setting out on some flight of judicial activist fancy. That might be an opinion that Judge Sutton wouldn’t be too unhappy to join.

  • 177. Sagesse  |  October 8, 2014 at 3:51 am

    A reminder, in a wonderful and exhilarating week, that the disparity between the 'haves' and 'have nots' is stark. There is still much work to do.

    Dealt a Victory in Court, Advocates for Gay Rights Focus on a New Frontier [New York Times]
    http://www.nytimes.com/2014/10/08/us/politics/sam

    In Utah, the Same-Sex-Union Battle Shifts to Acceptance [New York Times]
    http://www.nytimes.com/2014/10/08/us/in-utah-the-

  • 178. brooklyn11217  |  October 8, 2014 at 6:28 am

    They have find a brief at the 9th circuit for a stay and to recall the mandate. Good luck with that!

  • 179. JayJonson  |  October 8, 2014 at 6:31 am

    Yes, I think the panel was very strategic. They made the controlling opinion unanimous and one that would be palatable to SCOTUS in order not to risk review and reversal. But they also used the opportunity to put on record two other important points that may in the future have resonance. Rheinhardt cares deeply that marriage is a constitutional right to which same-sex couples should have access as a matter of right; and Berzon believes that underlying the discrimination against same-sex couples and gay people generally is sex and gender discrimination. They both make compelling cases, but they (and Gould?) are aware that making a decision that is too sweeping or controversial may upset the apple cart that is doing fine right now, so they decided to make their points in concurrences that can, as you say, be ignored by SCOTUS.

  • 180. JayJonson  |  October 8, 2014 at 7:06 am

    Justice Kennedy has granted Idaho's petition for an emergency stay. Not sure what that means. He apparently has given both sides until Thursday to file briefs.

  • 181. brooklyn11217  |  October 8, 2014 at 7:09 am

    Yes, just saw that. Very frustrating!!

  • 182. RLsfba  |  October 8, 2014 at 7:10 am

    From Jay's message above, this IS crazy making. Maybe Kennedy is giving them the opportunity to say what they want before he denies it?

  • 183. mariothinks  |  October 8, 2014 at 7:11 am

    Things are happening. Idaho filed an emergency petition to the Supreme Court last night. The Supreme Court stayed the mandate until Kennedy or the full court takes further actions. The lawyers defending the LGBT couples were asked to respond by tomorrow 5 p.m..

  • 184. AndresM11  |  October 8, 2014 at 7:15 am

    Kennedy's order states:

    "IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court."

    Does this affect the Nevada case as well? I think 12-17668 is the Sevcik case.

  • 185. SeattleRobin  |  October 8, 2014 at 9:42 am

    And the decision on the day before Windsor that gutted the Voting Rights Act. And Hobby Lobby. I'm still sick over all three of those.

  • 186. SeattleRobin  |  October 8, 2014 at 10:33 am

    I noticed something odd in that article. It stated that the Nevada AG said county clerks can still seek a stay. Hmmm…now that I read it again I think maybe the reporter was misconstruing a quote from the AG. The quote says parties have fourteen days to seek reconsideration or a stay and county clerks should work with their local DA to decide on the best course of action. I'm guessing she meant on when to start issuing licenses, not seeking a stay like the reporter claimed.

    Because no clerk not a party to the suit could request a stay now, right? (Without being granted intervenor status, which won't happen at this late date.) I was taken aback by an AG suggesting that as a possible action, but I think the reporter just got it wrong.

  • 187. franklinsewell  |  October 8, 2014 at 10:41 am

    SeattleRobin – That is odd. You're right; either the reporter got it wrong or Catherine Cortez Masto, a Democrat, was just exploring possibilities with the reporter.I was reminded today that in Pennsylvania and Oregon, clerks sought stays after decisions were issued and were denied.

  • 188. tushargoyal357  |  October 15, 2014 at 2:47 pm

    One of the best blog to find details related to Happy Diwali 2014 , to find Diwali Rangoli , Happy Diwali 2014 Greetings and Happy Diwali Wallpapers and Images 2014

Having technical problems? Visit our support page to report an issue!