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Alaska same-sex marriage ban ruled unconstitutional

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UPDATE: 9:13PM ET: Alaska officials have said they plan to appeal the ruling to the Ninth Circuit Court of Appeals. The district court followed Ninth Circuit precedent, and the Supreme Court recently declined to review marriage cases in other circuits, so it’s extremely doubtful this will go anywhere.

Today, a federal judge ruled that Alaska’s same-sex marriage ban is unconstitutional:

A federal judge ruled Sunday that Alaska’s ban on gay marriage is unconstitutional, paving the way for gay couples to begin marrying in the state for the first time.

“The court finds that Alaska’s ban on same-sex marriage and refusal to recognize same sex marriages lawfully entered in other states is unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution,” U.S. District Court Judge Timothy Burgess wrote in a order in the case Hamby v. Parnell, released Sunday.

The Hamby suit was filed in May by five same-sex couples. It challenged the state’s constitutional amendment limiting marriage to one man and one woman, approved by voters in 1998.

The ruling comes less than a week after the 9th U.S. Circuit Court of Appeals ruled to overturn similar marriage bans in Idaho and Nevada. Same-sex marriage advocates said the 9th Circuit ruling would likely lead to the quick overturn of Alaska’s ban on gay marriage because the bans were similar and Alaska also falls under the jurisdiction of that court.

The ruling can be read here.

The Sunday ruling is unexpected, and EqualityOnTrial will have more on this developing story.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  October 12, 2014 at 4:08 pm

    No Gay=Stay… finally!

    SUNDAY? Alaska has the distinction of being the only ME decision to be released on a weekend! Last Friday (yes, 2 days ago) he did say it would not take him long to issue a ruling…no kidding. I believe 2 days is a record from hearing to decision in a Federal court (there was one faster decision in a CO state court from Judge Andrew Hartman about the Boulder County Clerk)

    This is also the first District Court decision since the SCOTUS cert denials and the first decision since the 9th ruled last Tuesday.

    Please, please there had better not be a stay granted by SCOTUS!

  • 2. LK2013  |  October 12, 2014 at 4:09 pm

    Fantastic news! No, Brandall, no stay!

  • 3. Randolph_Finder  |  October 12, 2014 at 4:12 pm

    Any chance of either a stay from either Burgess or the 9th?

  • 4. brandall  |  October 12, 2014 at 4:18 pm

    AP is saying this was the earliest marriage ban in the county. I can't locate a chronilogical list by date to verify this statement. But, here is the Wiki entry:

    In 1996, the Alaska state legislature passed a ban on same-sex marriage. On May 6, 1996, Governor Tony Knowles did not sign the bill into law, but did not veto it, which allowed the bill to go into effect.In 1998, the Alaska state legislator passed a constitutional ban on same-sex marriage. The constitutional amendment defining marriage was approved in a voter referendum on November 3, 1998.

  • 5. brandall  |  October 12, 2014 at 4:21 pm

    Not by Burgess or the 9th since the decision is following the logic issued by the 9th. But, should it be so inclined, Alaska could go to SCOTUS.

  • 6. ragefirewolf  |  October 12, 2014 at 4:23 pm


    A-wiggle, wiggle…a-wiggle, wiggle, wiggle. Hehehe!

  • 7. LK2013  |  October 12, 2014 at 4:23 pm

    Great ruling –

    On p. 8 – Heightened Scrutiny, 9th Circuit provides guidance just a few days ago (how convenient!)

    On pgs 24-25, a fantastic conclusion:

    This Court finds that Alaska’s same-sex marriage laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment because no state interest provides “exceedingly persuasive justification” for the significant infringement of rights that they inflict upon homosexual individuals.

    Any state interests identified by Defendants are insufficient for Alaska’s same-sex marriage laws to pass constitutional muster under due process or equal protection. Plaintiffs’ Motion for Summary Judgment at Docket 20 is GRANTED.

    With this ruling, the Court hereby DECLARES that Alaska’s same-sex marriage laws are unconstitutional for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

    The Court IMMEDIATELY ENJOINS the state of Alaska, including state officers, personnel, agents, government divisions, and other political entities, from enforcing Alaska Constitution Article 1, Section 25 and Alaska Statute Sections 25.05.011 and 25.05.013 to the extent that the laws prohibit otherwise qualified same-sex couples from marriage and refusing to recognize lawful same-sex marriages entered in other states.


    Dated at Anchorage, Alaska, this 12th day of October, 2014.


  • 8. SPQRobin  |  October 12, 2014 at 4:27 pm

    It was the first constitutional ban along with the special Hawaii one, see

    A GIF used on that page:

  • 9. Ryan K.  |  October 12, 2014 at 4:28 pm

    Alaska being in the 9th, would go to Kennedy, which would just be a repeat of last week with Idaho. I don't even see a gay=temp stay in this one!

    Does this make Alaska #29 since Idaho is still waiting on a mandate?

  • 10. Ryan K.  |  October 12, 2014 at 4:29 pm

    Is this 25 page ruling from the hearing that was held on Thursday from the W appointed judge?

  • 11. brandall  |  October 12, 2014 at 4:31 pm

    Alaska District Court Undermines The Sanctity Of Bristol Palin’s Marriage [Wonkette]

    "On Sunday, District Court Judge Timothy M. Burgess found Alaska’s ban on gay marriage unconstitutional (because it is, duh), and wrote that the Alaska must all-caps bold “IMMEDIATELY” stop enforcing its ban, which is unconstitutional."

    "This will probably make Bristol Palin, self-appointed official spokesidiot for the sanctity of traditional marriage, very sad. But maybe President Obama can explain it to her."

    The Wonkette writer must have been waiting all week to hit the enter button!


  • 12. Scottie Thomaston  |  October 12, 2014 at 4:32 pm

    Yes, GWB appointee.

  • 13. brandall  |  October 12, 2014 at 4:46 pm

    Minor point, the hearing was held at 2pm Friday…a new observation, he can't be a Mormon since they are not allowed to work on Sunday and Burgess must have been writing with his clerks all weekend.

  • 14. flyerguy77  |  October 12, 2014 at 4:53 pm

    holy smokes!!!!!!!! This is great!!!!!!! :-) 20 states to go!!!!!!

  • 15. flyerguy77  |  October 12, 2014 at 4:56 pm

    I thought i would have an uneventful Sunday before next week's unconstitutional ruling lol

  • 16. brandall  |  October 12, 2014 at 4:56 pm

    In terms of marriage being able to take place, yes, you are correct.

  • 17. RemC_Chicago  |  October 12, 2014 at 4:57 pm

    Didn't you say you'd join me in my dance?

  • 18. Ryan K.  |  October 12, 2014 at 4:57 pm

    Apologize for the incorrect day of the week at the hearing.

    Seems that most in here were very weary of Judge Burgess given his appointment of GWB. I honestly thought it would be a much more simple ruling, using the 9th's mandate in Nevada, using boilerplate reasons for when summary judgement should be used, and then slapping it down using the recent ruling in the 9th. I didn't expect a 25 page ruling that sounds like it was written in need to explain why he had to overrule the Alaska constitution and laws.

  • 19. Steve84  |  October 12, 2014 at 4:58 pm

    Nate Silver extrapolated that at this rate same-sex marriage will be legal in 73 states by next week 😉

  • 20. brandall  |  October 12, 2014 at 5:10 pm

    No worries about the day. It's impossible to keep this all in one's head. I'm double-fact checking everything I'm commenting on this week. Luckily, I type searches fast.

    To you excellent point, Burgess was born and raised in San Francisco. So, despite his GWB appointment, it makes me wonder what his personal view is on ME.

  • 21. Steve84  |  October 12, 2014 at 5:12 pm

    A somewhat weak part is the child rearing stuff at the end. It's factually correct, but the argument fails on a far more basic level. It's not necessary to even examine whether same-sex parents make good parents, because their children exist whether they can marry or not. Banning same-sex marriage doesn't cause any less children being born to same-sex couples, or more children being born in opposite-sex couples.

  • 22. brandall  |  October 12, 2014 at 5:13 pm

    Vladmir Putin can now see gay marriage from his house! (credit must go to Chris Johnson for this LMAO line)!

  • 23. brandall  |  October 12, 2014 at 5:14 pm

    I am SO confused after this head-spinning week. What are the additional 23 states?

  • 24. ragefirewolf  |  October 12, 2014 at 5:17 pm

    I did, indeed.

    A-wiggle, wiggle…a-wiggle, wiggle, wiggle!!!

  • 25. Steve84  |  October 12, 2014 at 5:19 pm


    Careful when extrapolating:

  • 26. brandall  |  October 12, 2014 at 5:24 pm

    That gif link is great. It's now bookmarked. Thank you.

  • 27. davepCA  |  October 12, 2014 at 5:40 pm

    This is excellent!!!! And a big thank you to EoT for putting in the overtime to bring us the Sunday article! Thanks you guys!

  • 28. StraightDave  |  October 12, 2014 at 5:44 pm

    I wish that gif had continued thru 2014 so we could watch all that damage unwind.

  • 29. robbyinflorida  |  October 12, 2014 at 5:48 pm

    Thank you Chris Johnson, and now the Palin kids can marry their pet moose.

  • 30. RnL2008  |  October 12, 2014 at 5:48 pm

    Boy, this is GREAT news…..No Stay, the Stay lifted in Idaho……..we have like 31 States now……wonder when the 6th will rule now?

    By the way….glad to be back:-)

  • 31. brandall  |  October 12, 2014 at 5:53 pm

    I believe the Idaho stay is still in effect until sometime Monday. But, it is all awesome nonetheless.

  • 32. StraightDave  |  October 12, 2014 at 6:02 pm

    I thought Bristol broke off her engagement with him.

  • 33. LK2013  |  October 12, 2014 at 6:13 pm

    The Governor is saying he will appeal … the pr$ck …sorry, but I'm sick of these scumbags delaying justice and equality… he will get exactly NOWHERE fast but he will try to put up whatever obstacle remains.

  • 34. flyerguy77  |  October 12, 2014 at 6:18 pm

    HA Alaska governor said, he will appeal.. to who? the Grizzly Bear? I'm betting the 9th Circuit of Appeals will issue a mandate tomorrow or Tuesday. 9TH Circuit will deny the appeal from Alaska.. I see a tempory stay for a day or less from SCOTUS With more denial appeals from SCOTUS it will give other states "we already have lost officially": or they have an idea to keep fighting ha ha Honesty, SCOTUS is telling other Circuit of Appeals they must rule in this way… or there WILL BE A MAJOR SMACKDOWN

  • 35. brandall  |  October 12, 2014 at 6:27 pm

    AK Governor Sean Parnell is up for reelection. He is narrowly losing in the polls. He was Lt. Governor when Palin resigned.

    If they are silly enough to appeal to SCOTUS, it will take 3 days. Day 1 appeal process and request for briefs by 5pm Day 2. Briefs will go to entire court. Day 3 appeal will be denied by the full court with no vote.

  • 36. Dr. Z  |  October 12, 2014 at 6:29 pm

    Wonderful news, that just leaves AZ and MT left to go in the 9th. I seem to recall AZ was scheduled to have a hearing this week – what about MT?

  • 37. LK2013  |  October 12, 2014 at 6:31 pm

    That would be great. Since AK has a 3-day waiting period, people should quick apply for a license tomorrow, and then by Day 3 when the appeal is denied, they can get married! Problem solved!

  • 38. ragefirewolf  |  October 12, 2014 at 6:35 pm

    OMG, yes. ^ that

  • 39. ebohlman  |  October 12, 2014 at 6:48 pm

    There was a district court decision in NC on Friday.

  • 40. Mike_Baltimore  |  October 12, 2014 at 6:50 pm

    Well, look at this way – it was an almost uneventful weekend on the ME front (I can't say on other fronts, such as sports fronts, and I'd be fairly certain that someone here had a sibling or other relative get married). The uneventfulness of the weekend on the marriage front lasted until late Sunday.

  • 41. ebohlman  |  October 12, 2014 at 6:53 pm

    The 9th can't actually deny an appeal; appeal from district judgment is a matter of right. They can set a super-compressed briefing schedule, decide that oral arguments are unnecessary, and issue a quick perfunctory ruling.

  • 42. brandall  |  October 12, 2014 at 6:54 pm

    Need to edit my last sentence above: Day 3 appeal will be denied by the full court with no vote tally released.

  • 43. Ryan K.  |  October 12, 2014 at 6:55 pm

    Concur, as the mandate originally issued by the 9CA was retracted once Kennedy issued that temporary stay. Even with that stay lifted, there still is no mandate issued for Idaho (whereas Nevada has its mandate). Briefs are due on Monday to the 9CA, and we can expect a mandate shortly thereafter given the SCOTUS decision Friday and the Gov of Idaho indicating that this is over.

  • 44. Christian0811  |  October 12, 2014 at 6:56 pm

    Too bad it doesn't count Prop 22, that always irked me somewhat on the wiki maps of ME.

  • 45. flyerguy77  |  October 12, 2014 at 6:57 pm

    Actually, when 9th Circuit releases the mandate tomorrow or Tuesday it will be law of 9th Circuit… So the appeal will be baseless……. until SCOTUS "oveturns" the decision it will be law no stay== yes to marriages.

  • 46. Scottie Thomaston  |  October 12, 2014 at 7:03 pm

    There's no Ninth Circuit mandate – this wasn't a Ninth Circuit decision, just a district court decision.

  • 47. Ryan K.  |  October 12, 2014 at 7:04 pm

    Why does the already provided mandate in the Nevada case not count in making it the law of the circuit?

  • 48. Mike_Baltimore  |  October 12, 2014 at 7:07 pm

    The case is in Federal court and Federal courts observe Federal holidays. Monday is a Federal holiday (Columbus Day is a Federal holiday and observed on the 2nd Monday of October). If the 9CA rules in 'normal' business (Federal court) time, the earliest the ruling would come is 9:00 AM PDT on Tuesday (noon, Tuesday EDT), or later. After all, the ONLY two courts that can rule on a mandate are the 9CA and/or SCOTUS, both Federal courts, and both courts observe Federal holidays.

    By the way, all stays in the case have been lifted.

    But as we've seen just today with the Federal judge in Alaska, the courts do not necessarily rule when we think they will rule – during 'normal' business hours.

  • 49. SPQRobin  |  October 12, 2014 at 7:08 pm

    It depends on what the map is about. The gif is about state constitutional amendments. Prop 22 was just a statute, so it has nothing to do with the constitutional amendments. The only difference is that it was enacted by referendum rather than by the legislature, so Prop 22 would be relevant for maps about referendums.

  • 50. StraightDave  |  October 12, 2014 at 7:17 pm

    AZ briefs regarding Latta ruling due 10/16:

    Connolly v. Roche
    In a docket-text-only order (reproduced here: Judge Sedwick indicates it appears the 9th Circuit decision in Latta requires a decision in favor of plaintiffs and sets a 10/16 deadline for supplemental briefs.

  • 51. brandall  |  October 12, 2014 at 7:26 pm

    AK Governor Sean Parnell's statement:. "Although the district court today may have been bound by the recent Ninth Circuit panel opinion, the status of that opinion and the law in general in this area is in flux. I will defend our constitution.”

    Reelection spin and certainly not based in any historical judicial facts that we have all witnessed since December, 2013.

  • 52. jpmassar  |  October 12, 2014 at 7:31 pm

    But they can deny a motion for a stay.

  • 53. DrPatrick1  |  October 12, 2014 at 7:37 pm

    I think he meant the mandate in the ID case. Yet, as Ryan K notes below, the mandate in the NV case is already done, thus it is already established law in the 9th

  • 54. franklinsewell  |  October 12, 2014 at 7:57 pm

    Steve – I don't think that the child-rearing stuff is weak. The 7th and the 9th Circuits both talked about the harms that the children of same-sex couples experience when their parents are not married as compared to no harms which accrue to children of opposite sex couples who are married.

  • 55. Waxr  |  October 12, 2014 at 8:05 pm

    I recall when the anti-gay crowds were saying, "It's about the children."

    That argument was turned on its head when Justice Kennedy asked about the thousands of children who were in same-sex families.

  • 56. Christian0811  |  October 12, 2014 at 8:39 pm

    Government orders to do pointless-things seems to be the forté of the Alaskan government #bridgetonowhere haha

  • 57. debater7474  |  October 12, 2014 at 9:24 pm

    I'm under the impression that Alaska marriages must begin immediately, regardless of whether or not the state chooses to appeal. There's no stay.

  • 58. ragefirewolf  |  October 12, 2014 at 9:54 pm

    The moose?

  • 59. flyerguy77  |  October 12, 2014 at 9:57 pm

    no stay= marriages!!!!!! If they are going to try stop marriages they have to appeal first thing in the morning–

  • 60. ragefirewolf  |  October 12, 2014 at 9:58 pm

    They can take it and then dismiss it right away. Close enough.

  • 61. flyerguy77  |  October 12, 2014 at 10:01 pm

    the mandate, its only for Nevada, is from a District Judge not from an appeal panel..

  • 62. Randolph_Finder  |  October 12, 2014 at 10:13 pm

    And Alaska *doesn't* observe Columbus day, which means that SS couples can walk into any place that you would get a Marriage License from and start the 72 hour process.

  • 63. Mike_Baltimore  |  October 13, 2014 at 12:24 am

    I'm not disputing anything you say, except that the 72 hour process (it's actually three business days) in Alaska *can't* begin until a mandate is in place, which as of right now, doesn't appear to be in place.

    And the only court that can put a mandate in place is the Federal District court in Alaska, or be ordered to put one in place (by the 9CA or SCOTUS [unless SCOTUS rules on national ME, but that can occur only when SCOTUS accepts a case, is briefed on it, etc., but as of now, it hasn't and so can't).

    The mandate MUST be in place before anyone can apply for a license, and even if put in place on Monday, wouldn't allow marriage until Thursday (with Mon., Tues., and Wed., being the three business days required 'waiting time').

    However, the Federal courts in Alaska DO observe the Federal holiday of Columbus Day, and if the District court rules during 'normal court' (business) 'hours', the mandate will be put in place on Tuesday, thus the 'wait time' would expire Friday morning.

    But again, it has been demonstrated several times this past week alone that courts can issue rulings at all hours of day and night, and we might be surprised to wake up on Monday to find that a mandate was issued by the District court while we slept. Then again, the judge might issue the mandate up to 21 days after the ruling, which would be as late as early November, just before the election.

    And Randolph, above I was speaking of the mandate for Idaho, not Alaska. Even so, I still have not heard that the 9CA has issued a mandate for Idaho. The mandate for Alaska must be issued by the District court in Alaska.

  • 64. Mike_Baltimore  |  October 13, 2014 at 12:33 am

    No stay is not the same as mandate in place. ME in Alaska can only begin when the mandate is put in place. Since the judge didn't rule 'from the bench' with a later written ruling, but in writing in which a mandate was NOT included, we have to wait for the mandate.

    Then, unless there is a stay, the marriages can commence.

  • 65. TonyMinasTirith  |  October 13, 2014 at 12:44 am

    The state can appeal all they want. They can even request an emergency stay… that doesn't mean the 9th or SCOTUS is obligated to grant a stay. A stay request and appeal are two different things and the state can appeal even if their stay request is denied at any level. The 9th would grant the apeal and deny the stay request. In short order they would also uphold the district court order. There is a chance Kennedy would grant Alaska a temporary stay, simply out of deference to the government request. As per procedure in these cases, he'd then refer the stay request to the entire court which would then summarily dismiss the request exactly as they did wirh Idaho. Or Kennedy or the full court may be tired of playing games and deny the emergency stay out of hand with no temporary interim stay. The denial of stay requests will send further messages to the 5th, 6th, 8th, and 11th, that there is no will and not enough votes at SCOTUS to uphold a state's right to ban same sex marriage. The justices would obviously prefer the 11 circuits to all come to the same conclusion so they won't be seen as imposing gay marriage nationwide by judicial fiat. However, if a circuit, such as the 5th comes to an opposite and incorrect ruling, I have no doubt they will overrule that circuit either 5-4 or 6-3, thereby acknowledging a fundamental right to marriage by same gender couples… or at least rule that the state bans violate due process and or equal protection of the 14th amendment, possibly the 5th or even freedom of speech of the 1st amendment. The fat lady is getting dressed, putting on her make up, warming up her voice and will be on stage to start her final Aria in short order. I better start looking for a bf if I want a June 2015 wedding hadn't I. I hope Gio Benitez is still available :)

  • 66. Pat_V  |  October 13, 2014 at 1:18 am

    What's the deal with the new Wikipedia map?

    Why is Alaska colored dark blue ("same-sex marriage legal") while Idaho is only light blue ("Same-sex marriage legalization pending, but not yet in effect")?
    I thought we are simply waiting for the mandate to be issued (from 9th circuit) in the Idaho case, and we are also waiting for the mandate to be issued (from district court) in the Alaska case. It seems they are both in a similar situation, aren't they?
    (the only difference is that Alaska will still get appealed, but it's quite unlikely that a stay pending appeal will be granted)
    It seems that ID and AK will be states number 29 and 30 (in terms of when licenses get issued), let's see who wins.

    Updated state-by-state table here:

  • 67. Pat_V  |  October 13, 2014 at 1:51 am

    Yay! so once ID and AK are sorted out, that will be 30 states.
    We will have 60% of all states and just over 59% of the US population covered!

  • 68. Steve84  |  October 13, 2014 at 2:03 am

    The point is that it's irrelevant. Child rearing is independent of marriage these days. The argument shouldn't even be entertained.

  • 69. Ryan K.  |  October 13, 2014 at 3:10 am

    To StraightDave's point, a full end-to-end animated gif showing states turning red with the statues and constitutional amendments starting with Alaska in 1998 (although state DOMA laws started long before that), then starting to see blue with Massachusetts in 2003 with red starting to disappear into blue and now basically a map of 30 blue states and DC against a map of 20 in red. Very powerful, especially given the avalanche of sorts in the map going blue since Windsor.

  • 70. Ryan K.  |  October 13, 2014 at 3:19 am

    The 9CA issued a mandate in Sedvick and Latta, then retracted Sevcik due to SCOTUS temporary stay. The District judge (new one given the original judge recused himself) in Nevada issued an injunction based on the 9CA ruling and mandate to reverse and remand.

    My assumption is that 9CA ruling in Sevcik and Latta, along with subsequent mandate in Sevcik made it the law of the circuit. I didn't think that the mandate in Latta would also need to be done to make the ruling precedent in the 9CA.

  • 71. Ryan K.  |  October 13, 2014 at 3:23 am

    I was curious on this as well, but I had assumed (possibly incorrectly) that since the judges written declaration was both an opinion and an order for a permenant injunction, that this was in essence the mandate. Did the judge in NC do anything different that allowed marriages to take place on Friday?

  • 72. Ryan K.  |  October 13, 2014 at 3:29 am

    Pat – You are correct from my understanding with Idaho being light blue, as the decision was appealed and granted, judgement made, but mandate is pending (first given, then retracted due to SCOTUS temporary stay) from the 9CA. Similar to my current state of FL in that the temporary stay will be lifted in January 2015 unless the judge, 11CA, or SCOTUS puts in place a temp stay or stay pending the appeal (and it has been appealed, yet no additional stay as of yet beyond the 91 days post-denial of cert in the 4CA/10CA cases.

    My understanding is that Alaska is dark blue as a the district court judge ruled and ordered in his opinion that the Alaska ban is unconstitutional, and permenantly enjoined the state from enforcing it and issued no temporary stay pending any appeal. So as of now Alaska has marriage equality, hence the dark blue. Only if the judge, 9CA, or SCOTUS issuing a temporary stay or stay pending appeal would stop the dark blue coloring of the state.

  • 73. Ryan K.  |  October 13, 2014 at 3:53 am

    Can anyone with PACER or other resource access provide the details of the Florida case – Brenner v. Armstrong – currently on appeal to the 11CA? I know the initial briefs from the state of Florida are due this week, Oct 15th I believe. I was wondering if a full briefing schedule was issued and any oral argument date, given the January 5, 2015 date for which the current stay against the injunction dissolves given the 91 days post-denial of cert by SCOTUS in the three cases from the 4CA/10CA. I assume the State of Florida will request a stay pending the appeal as I can't imagine a ruling by 1/5/15.

  • 74. F_Young  |  October 13, 2014 at 4:08 am

    Waxr: "That argument was turned on its head when Justice Kennedy asked about the thousands of children who were in same-sex families. "

    On this point, you may be interested in this article:

    The Smartest Constitutional Argument for Marriage Equality That No One Is Making

  • 75. F_Young  |  October 13, 2014 at 4:08 am

    Waxr: "That argument was turned on its head when Justice Kennedy asked about the thousands of children who were in same-sex families. "

    On this point, you may be interested in this article:

    The Smartest Constitutional Argument for Marriage Equality That No One Is Making

  • 76. F_Young  |  October 13, 2014 at 4:08 am

    Waxr: "That argument was turned on its head when Justice Kennedy asked about the thousands of children who were in same-sex families. "

    On this point, you may be interested in this article:

    The Smartest Constitutional Argument for Marriage Equality That No One Is Making

  • 77. F_Young  |  October 13, 2014 at 4:08 am

    Waxr: "That argument was turned on its head when Justice Kennedy asked about the thousands of children who were in same-sex families. "

    On this point, you may be interested in this article:

    The Smartest Constitutional Argument for Marriage Equality That No One Is Making

  • 78. SteveThomas1  |  October 13, 2014 at 4:10 am

    There seems to be some confusion as to what a mandate it. A mandate, in this context, is the formal act by which an *appellate* court informs the lower court of its disposition of a case on appeal. District courts do not issue mandates when, as here, they are hearing the case on first impression. Thus, the permanent injunction which the Alaska district judge issued in his order on Sunday is the final formal act of the district court. It was binding when issued and doesn't need any further act to make it so. Since the district court did not stay his order pending appeal, the only way in which the state of Alaska can get the order stayed is to make an emergency motion for a stay, with either the 9th Circuit or the Supreme Court. Absent a stay, although the state (as the losing party) has a right to appeal to the 9th Circuit, marriage equality is now and will remain binding law throughout the pendency of the appeal.

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  • 80. Pat_V  |  October 13, 2014 at 4:26 am

    From what was said in earlier comments last week here, I think the Florida officials requested and were granted a 1 month deadline extension to submit their brief. The new deadline is November 11th – conveniently after the election.

  • 81. Pat_V  |  October 13, 2014 at 4:29 am

    ah ok, thanks for the clarification with respect to mandates

  • 82. guitaristbl  |  October 13, 2014 at 5:05 am

    You can't fix stupid. They said they will study the decision. Lets hope that some sane people with basic knowledge of the judicial system will talk this clown out of this. Alaska is not one of the most prosperous state without reason. No Alaskan would appreciate such waste of time and maybe money (if they hire a successful attorney like Eastman).
    Anyway he can do nothing, not even a stay will be issued by anyone.

  • 83. guitaristbl  |  October 13, 2014 at 5:16 am

    A ruling on a Sunday evening ? That's a first in this craziness we have been living I have to admit. Quite fast and efficient for a G.W. Bush appointee, I am glad !

    Congrats to the Alaskan couples :-) !

    The (up for re election) governor can go on with his communicational tricks, I doubt the 9th or SCOTUS will issue stays anyway. As judge Coburn said "this is not a political nor a moral issue. It's a LEGAL issue". I hope Parnell gets the message as well.

    30 in, 20 to go !

  • 84. Zack12  |  October 13, 2014 at 5:17 am

    It will be slow going in KS and SC as couples seeking the right to marry in state have just filed lawsuits in federal court seeking to do so.
    KS and SC won't have a legal leg to stand on but they can drag it out and are doing so.
    I know some on our side are upset there weren't plantiffs ready to go but one has to keep in mind that in these states, there are no housing or job protections for same sex couples.
    And even if there were, the process is long, expensive and draining.
    We will win in the end but it's going to take a month or two if not more.

  • 85. wes228  |  October 13, 2014 at 6:13 am

    District Courts do not issue mandates. The injunction has been issued which is sufficient.

  • 86. RQO  |  October 13, 2014 at 6:42 am

    Does Montana have a federal suit? A lot of small states (SD, ND, etc.) were slow to get suits going – few plaintiffs, fewer dollars, no willing in-state attorneys. Even Colorado didn't have a state suit till late Oct., 2013, and the federal suit wasn't filed till July 2014. The latter may have taken the record for speed: the (stayed) decision came down the same month. Also speedy was CO AG Suthers conceding defeat promptly when SCOTUS denied cert and clearing up final paperwork with both state and federal courts for ME within 24 hours.

  • 87. DaveM_OH  |  October 13, 2014 at 6:46 am

    Rolando v. Fox
    The docket hasn't changed since early September, and this is scheduled to be a long case, with discovery until end of February. Though I have a feeling this may change…

    2014-08-21 SCHEDULING ORDER:
    IT IS HEREBY ORDERED that: A Status Conference set for 6/29/2015 at 01:30 PM in Great Falls, MT before Judge Brian Morris. Amended Pleadings due by 10/31/2014. Discovery due by 2/27/2015. Joinder of Parties due by 10/31/2014. Signed by Judge Brian Morris on 8/21/2014. (SLL, ) (Entered: 08/21/2014)

  • 88. Waxr  |  October 13, 2014 at 7:11 am

    Although that article is only 2 weeks old, the above post by franklinsewell points out that the effect that bans had on the children of gay and lesbian parents were pointed out in the decisions of the 7th and 9th Circuits.

    You still hear the argument that gays and lesbians can't have children. I would like to see an explanation for the twins I used to babysit for.

  • 89. Pat_V  |  October 13, 2014 at 7:14 am

    Can't the plaintiff ask for an immediate ruling, summary judgement or the like (sorry, I'm unfamiliar with the legal jargon) in light of the Circuit Court ruling?

  • 90. DaveM_OH  |  October 13, 2014 at 7:24 am

    Sure. They just haven't done it yet.
    Plaintiffs should motion for leave to amend their complaint and file an amended complaint asking for summary judgment. The State will have the opportunity to respond still, then the Judge should be able to rule on the motions. Best WAG is 30-60 days.

  • 91. Fledge01  |  October 13, 2014 at 7:26 am

    These states like ID, KS, SC are dragging their feet because SCOTUS did not rule directly. They are hoping that the justices of SCOTUS are stupid and that they were not aware of the impact of their ruling on the legal framework of ME and that SCOTUS really just denied cert last week only for the simple reason that there wasn't a circuit split yet. These holdout states are afraid that if they issue marriage licenses before SCOTUS eventually rules in favor of state rights, they will be excluded from being in the club of states with bans on ME because once they issue a right, they can't take it away. These states are hoping their will be a split in the circuits soon, before ME is in place in their state, so they can have a permanent stay imposed.

    Now with marriages being forced upon these states, because of SOTUS's deny of cert, the issue SCOTUS would review, if it ever takes a case (which I doubt it ever will), will no longer just be about the issues at hand now. The new issues being created are the reality that rights will be taken away and that need for states to have to recognize other states marriages (now that ME is not an outlier of a few rogue states, but it is now the norm (imposed norm or not).

    I think as soon as the 6th rules in our favor, you will not see any more states dragging their feet after that.

  • 92. guitaristbl  |  October 13, 2014 at 7:28 am

    Things are slowing down gradually, which was to be expected. I just hopes we could have the 35 states before the 6th rules, but it seems unlikely now, doesn't it ? Oh well…

  • 93. JayJonson  |  October 13, 2014 at 7:28 am

    Yes, child rearing is independent of marriage. One does not have to be married to have children and marriage does not require one to be married.

    Still, the question of the impact of marriage on children must be addressed because the opponents of same-sex marriage rely on it. It is necessary to address the issue in order to refute it; as Waxr reminds us, Justice Kennedy turned the entire issue on its head. All these attorneys that say bans on same-sex marriage are necessary to "protect the children" are not only wrong, they have it completely backward. If they want to be "child-centric," as they say, they need to support same-sex marriage. If marriage benefits the children of married parents, it will benefit the children of married same-sex parents no less than married opposite-sex parents.

    Of course, the entire notion that these bans on same-sex marriage had anything to do with protecting children is an ex post facto justification. The bans on same-sex marriage were simply to indicate official disapproval of homosexuals and homosexuality. But it is no longer possible for legislators and attorneys to admit such motivations for to do so would expose the unconstitutional animus that contaminates all these bans.

  • 94. JamesInCA  |  October 13, 2014 at 7:34 am

    I think you're attributing more legal strategery to ID, KS, and SC than is necessary to explain their actions.

    All three have Republican governors up for election next month. That alone explains everything.

  • 95. Pat_V  |  October 13, 2014 at 7:35 am

    Yeah, same here! I was thinking hey, in 1 week, we got 9 states starting to issue marriage licenses and 2 more (ID, AK) for which it should be starting anytime. So this week, it felt like it would be easy to finish off the remaining 5 states (WY, KS, SC, MT, AZ) before we get occupied with a new circuit ruling.
    Apparently it will just proceed more slowly :(
    Any guess about expected resolution time for these 5 states? Are there are least any lower-hanging fruit that can be easily picked for this week?

  • 96. JayJonson  |  October 13, 2014 at 7:37 am

    According to Alaska Dispatch News, couples can apply for marriage licenses begining at 8:00 a.m. Alaska time Monday morning.

  • 97. Pat_V  |  October 13, 2014 at 7:41 am

    Wow! that's in barely more than 1 hour!
    Has the state already requested an emergency stay pending appeal?

  • 98. JayJonson  |  October 13, 2014 at 7:42 am

    The Alaska Department of Vital Statistics said that same-sex couples can begin applying for marriage licenses this morning. There is a three-day waiting period (though I assume it can be waived, so some marriages may take place today).

  • 99. JayJonson  |  October 13, 2014 at 7:44 am

    Marriage licenses were issued Friday afternoon in Moscow, Idaho. (Don't know about the rest of the state.)

  • 100. Waxr  |  October 13, 2014 at 7:54 am

    Why does the state need one month to prepare their brief?

    They will just copy the same lame arguments the other states are using.

  • 101. Ragavendran  |  October 13, 2014 at 8:00 am

    I would think so, except that the Alaska judge constantly refers to Latta instead of Sevcik. And he notes in a footnote that pendency of a motion for rehearing or finality of the judgment does not by itself take away precedential value from a Ninth Circuit opinion, so it's probably okay anyway.

  • 102. guitaristbl  |  October 13, 2014 at 8:06 am

    On Montana, Dave filled in the gaps I had as well so it will take some time.
    Arizona : On the one case, the one that's further (Connolly v. Brewer), the judge who has the case asked for briefs by October 16 (this Thursday) on how the decision of the 9th in Latta v. Otter effects this case. A ruling could come soon.
    Kansas : There was a state lawsuit before the SCOTUS denial of cert (Nelson v. Kansas Department of Revenue) but a federal lawsuit (needed to apply the 10th Cir. binding precedent) has just been filed :…. So this will take some time as well.
    Wyoming : There is again a case in state court (Courage v. Wyoming – arguments scheduled for Dec. 15) but a federal lawsuit has also been filed, the hearing to decided on summary judgement is on Thursday, October 16. That could move very quickly as well if the judge grants the request.
    South Carolina : There is a federal lawsuit here, long before SCOTUS's denial of cert (Bradacs v. Haley) in which proceedings had bee stayed pending resolution in Bostic. Now the judge has asked for briefing schedule, while a motion for summery judgement has also bee submitted.

    So out of the 5, AZ is the closest, WY then and then SC, with KS and MT probably taking some more time.

  • 103. Ragavendran  |  October 13, 2014 at 8:07 am

    I think it can be faster than that. In NC, the court filed it's own motion for "judgment on the pleading as a matter of law" and issued a short order recognizing the binding precedent of the Fourth Circuit, granting that motion. Summary judgment would take longer. I hope Plaintiffs here can file a similar motion to get it resolved in a matter of days if not weeks. Who's their lawyer?

    Here's Wikipedia's explanation of the difference between judgment on pleadings and summary judgment. They are similar, but the former can be filed before discovery, the latter between discovery and trial. And here's Cornell Law.

  • 104. Ragavendran  |  October 13, 2014 at 8:11 am

    I don't think the mandate has anything to do with ID's status. The Ninth could take an eternity to reissue the mandate if they want. All they got to do is dissolve their own previous stay of the Idaho district court'a injunction, and we're done. Marriages could begin. (A mandate would automatically lifts the stay; if they're hesitant to issue one so soon, they should at least manually lift the stay. Plaintiffs asked late Friday for that, the 9th asked for responses by this evening. Hopefully Idaho can become #30 tomorrow morning.)

  • 105. Ragavendran  |  October 13, 2014 at 8:20 am

    More info on KS: There is a hearing on Nov. 7 at the Kansas Supreme Court. If the federal lawsuit isn't resolved by then, then the KS Supreme Court could conclude on its own to let marriages begin.
    And in WY, it is a motion for a preliminary injunction and TRO, not summary judgment. I am baffled why they're not asking for the latter. Perhaps that would require more briefing and delay? Not sure.

  • 106. guitaristbl  |  October 13, 2014 at 8:23 am

    Can the KS Supreme Court apply 10th Circ. precedent though ?

    For WY : a preliminary injuction practically has the same effect though : couples getting married and having their marriages recognised, so I'll take it.

    Also a correction to my previous comment I cannot edit due to your reply : The motion for summary judgement in Bradacs may be filled, it has not been filled yet.

  • 107. DaveM_OH  |  October 13, 2014 at 8:25 am

    In MT: Jim Taylor, ACLU-MT

  • 108. Ragavendran  |  October 13, 2014 at 8:27 am

    It doesn't have to (not binding), but it can, if it wants to, just like the lower court did.

  • 109. DACiowan  |  October 13, 2014 at 8:32 am

    Wiki is waiting on the Idaho mandate; note the footnote at the map template.

  • 110. DACiowan  |  October 13, 2014 at 8:33 am

    Half an hour to the courthouses opening. Come on couples, bury the Governor in an avalanche of smiles.

  • 111. Ragavendran  |  October 13, 2014 at 8:37 am

    Perhaps, but it shouldn't have to. A mandate would be nice, but all that is necessary at this time is a dissolution of the stay.

  • 112. wes228  |  October 13, 2014 at 8:38 am

    Either one will allow them to change Idaho to dark blue. So long as Idaho's ban is technically in effect, they're keeping it in light blue.

  • 113. DACiowan  |  October 13, 2014 at 8:42 am

    Hopefully the Ninth is quick and just issues both right after the Idaho brief comes in today. Since the state is no longer fighting, I wonder if the state itself will ask for the last obstacles to be removed.

  • 114. guitaristbl  |  October 13, 2014 at 8:55 am

    It's the KS Supreme Court so I doubt it would do much to help same sex couples willingly…

  • 115. DACiowan  |  October 13, 2014 at 9:00 am

    iirc Latah County (Moscow) is the only one that has issued.

  • 116. RobW303  |  October 13, 2014 at 9:10 am

    But if the Kansas Supreme Court fails to support the judge's order, doesn't that give the 9th Circuit the power to step in?

  • 117. JreyesA  |  October 13, 2014 at 9:16 am

    What is happening are they giving licenses yet?

  • 118. DACiowan  |  October 13, 2014 at 9:19 am

    Applications, but so far it seems the three day waiting period isn't being waived.

  • 119. RobW303  |  October 13, 2014 at 9:29 am

    Have all the defendants conceded or only the governor? I know his concession is signalling, but AG Suthers pursued the Colorado ban in defiance of the governor (and pretty much everyone else). With the backing of a hate group, I wouldn't be surprised if the Idaho AG did the same, just to delay things in hope of a circuit split.

  • 120. JreyesA  |  October 13, 2014 at 9:31 am

    Just called the Bristol Bay Borough County of Alaska and confirm they are issuing same sex marriage licenses

  • 121. Randolph_Finder  |  October 13, 2014 at 9:32 am

    I thought Alaska had a 3 day waiting period…

  • 122. JayJonson  |  October 13, 2014 at 9:38 am

    It does, but you first apply for the license. When my husband and I married in Massachusetts, which also has a 3-day waiting period, we applied for the license on a Monday, and picked it up on a Thursday, when we were married. I think what Bristol Bay Borough County is doing is accepting applications for marriage licenses, which can be picked up when the 72 hour waiting period expires.

  • 123. JreyesA  |  October 13, 2014 at 9:38 am

    I asked if they were issuing marriage licenses they said yes as of today, no mention of waiting period

  • 124. RobW303  |  October 13, 2014 at 9:40 am

    Inspiration needs incubation. They know they need something fresh and different to win. Like "gay marriage will summon the zombies." (Go ahead, Pam, steal that argument and get the case moving.)

  • 125. JayJonson  |  October 13, 2014 at 9:49 am

    They may have misunderstood the question. In some states with waiting periods, you can pay extra or give some good reason (perhaps including having had to wait for years before your constitutional rights were recognized) and have the waiting period waived. But I suspect that they misunderstood what you were asking. The Department of Vital Statistics was very clear that you must first apply for the license and then wait until the three days expire before you can pick it up.

    Or it may be in Alaska they give you the license when you apply for it, but it doesn't become valid until three days later? The reports I have seen say that the first marriages will begin on Thursday.

    There are pictures of same-sex couples in courthouses in Alaska at Joe.My.God, but they are all applying for licenses. No pictures of married couples yet.

  • 126. Zack12  |  October 13, 2014 at 9:50 am

    Indeed, Brownback in KS especially needs all the turnout he can get.

  • 127. Ryan K.  |  October 13, 2014 at 10:57 am

    Yeah Pam…get a move on. I'd like my first marriage to be recognized in Florida since your currently on your 3rd recognized marriage.

  • 128. RQO  |  October 13, 2014 at 10:58 am

    I'm not sure you can EVER stop the foot dragging from evangelical R's, but no SCOTUS review probable, because I predict no circuit split. Madame Cleo Warning: I also steadfastly predicted an Al Gore victory mid-November, 2000 (just for starters).

  • 129. Ryan K.  |  October 13, 2014 at 10:58 am

    Thought I read that, too. Which is why I was hoping someone with PACER or other access could confirm. I can't find an accurate update on Florida, other than plaintiffs petitioning the district court to end the stay earlier than the 91 day waiting period.

  • 130. Fledge01  |  October 13, 2014 at 11:26 am

    He did win remember, SCOTUS undid that.

  • 131. jjcpelayojr  |  October 13, 2014 at 2:26 pm

    Alright, I give up. I googled and scoured and I can't find the audio for the court hearing of Hamby v Parnell whatsoever (short from requesting it from the site). Anyone know where one can listen to it?


  • 132. tushargoyal357  |  October 15, 2014 at 2:38 pm

    SUNDAY? Alaska has the distinction of being the only ME decision to be released on a weekend! Last Friday (yes, 2 days ago) he did say it would not take him long to issue a ruling…no kidding. I believe 2 days is a record from hearing to decision in a Federal court (there was one faster decision in a CO state court from Judge Andrew Hartman about the Boulder County Clerk)

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