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EOT will be back tomorrow

Marriage Equality Trials

Just wanted you all to know that Scottie is off today and will be back tomorrow!  In the meantime, here’s a fascinating piece of news: the Mississippi marriage equality case brought by Roberta Kaplan (Edie Windsor’s lawyer who successfully convinced the Supreme Court to invalidate DOMA last year) has been put on a super fast track and will have a hearing in just three weeks.  The news never lets up these days!

101 Comments

  • 1. BillinNO  |  October 23, 2014 at 8:32 am

    I can't get Nina Simone's 'Mississippi Goddamn' out of my head!

  • 2. Corey_from_MD  |  October 23, 2014 at 8:50 am

    Update: Arkansas' state Supreme Court will hear its marriage case on November 20th

  • 3. guitaristbl  |  October 23, 2014 at 8:53 am

    I was just coming to report that ! On the same day as the hearing in the federal court. I wonder if it's a coincidence. If it is, it's a big one.
    And on the same day as the hearing in Montana. It's going to be a busy day Nov.20 !

  • 4. DACiowan  |  October 23, 2014 at 10:16 am

    Or Phil Ochs' "Here's to the State of Mississippi."

  • 5. Ragavendran  |  October 23, 2014 at 11:15 am

    The order notes a dissent from Justice Hart: https://contexte.aoc.arkansas.gov/imaging/IMAGES/

  • 6. Mike_Baltimore  |  October 23, 2014 at 11:55 am

    Off topic:

    From today's 'Washington Post':
    "Transgender federal employee wins historic discrimination case"
    ( http://www.washingtonpost.com/blogs/federal-eye/w… )

    Also, no ruling yet in the ExxonMobil discrimination case in Illinois – the Illinois Department of Human Rights will rule within 90 days (by January 20, 2015).
    ( http://www.advocate.com/business/2014/10/22/will-… )

  • 7. Ragavendran  |  October 23, 2014 at 11:58 am

    The latest South Carolina lawsuit, filed last Wednesday, is moving blazing fast. Orders issued in Condon v. Haley today:

    TEXT ORDER: Plaintiffs have filed a motion for preliminary injunction. The time for Defendants to respond to that motion is hereby shortened to 11/3/14. Any reply from Plaintiffs is due on or before noon on 11/5/14. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 10/23/14.

    TEXT ORDER: When the Court originally scheduled the status conference in this matter for 10/24/13 at 11:00 a.m., the Court anticipated but had not yet received a motion for preliminary injunction. Plaintiffs' motion for a preliminary injunction was filed late yesterday afternoon and the Court earlier today entered an order for a briefing schedule on that motion. The parties should be prepared to address the following issues at the status conference on 10/24/14: (1) Do any of the parties desire to have the Court conduct an evidentiary hearing on the motion for preliminary injunction? (2) Do any of the parties desire oral argument on the motion for preliminary injunction? (3) Various issues the Court would like the parties to address in their responsive briefs on the motion for preliminary injunction. The Court will not expect the parties to participate in any substantive argument on the merits during the 10/24/14 status conference. In light of the press inquiries the Clerk's Office has received regarding the 10/24/14 status conference, the telephone conference will be conducted in a courtroom at the Charleston Federal Courthouse. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 10/23/14.

  • 8. Ragavendran  |  October 23, 2014 at 12:15 pm

    October Calendar:
    October 24: Hearing in Kansas (federal) in Marie v. Moser
    November Calendar:
    November 6: Hearing in Kansas Supreme Court in State v. Moriarty
    November 12: Hearing in Mississippi (federal) in Campaign for Southern Equality v. Bryant
    November 14: Hearing in Kansas (state) in Nelson v. Department of Revenue
    November 20: Hearing in Montana (federal) in Rolando v. Fox
    November 20: Hearing in Arkansas (federal) in Jernigan v. Crane
    November 20: Hearing in Arkansas Supreme Court in Wright v. Arkansas

    In addition, expect a hearing or a direct order in South Carolina's Condon v. Haley sometime in November.

    (Briefing in motions for summary judgment have long been complete in federal challenges in North Dakota and Missouri. Hearings could be scheduled in those cases soon.)

  • 9. guitaristbl  |  October 23, 2014 at 12:19 pm

    Gergel seems willing to move faster than Childs. Good ! The 6th seems to be taking its time, let's get to 35 states before they issue a decision !

  • 10. Ragavendran  |  October 23, 2014 at 1:07 pm

    "Meet Judge Richard Young who struck down Indiana's ban on gay marriage" http://www.indystar.com/story/news/politics/2014/

  • 11. franklinsewell  |  October 23, 2014 at 1:17 pm

    Re: Nevada. I think one of my EoT friends posted a link to the AP story on this on the other feed. When the Governor files his brief, he will oppose the Coalition to Protect Marriage's motion for en banc review. I think our somewhat moderate Governor is really just not in the mood for this anymore. He has an election to win, even though he's basically unopposed.

  • 12. DACiowan  |  October 23, 2014 at 2:15 pm

    South Carolina filed a 45 page brief arguing that Bostic doesn't apply to them. Here is the link.

  • 13. Japrisot  |  October 23, 2014 at 2:34 pm

    I just looked at this briefly. There may be a proper parties problem (I have no idea how SC allocates responsibilities for issuing licenses). But what struck me immediately about the writing is that it was almost certainly put together by an intern or somebody with little briefing experience. The obvious IRAC (Issue Rule Application Conclusion) paragraph structure and unnecessary recitation of facts from each cited case makes this quite clear.

    Then there is the THREE PAGE LONG quotation from the Niemeyer dissent in Bostic. Seriously, if an associate handed this to me as a piece of legal writing, even as a draft, I would have thrown it in the garbage.

  • 14. Mike_Baltimore  |  October 23, 2014 at 2:48 pm

    I grew up in Indiana.

    When Indianapolis expanded (in 1970) to, in effect, take in all of Marion County (except for Beech Grove, Lawrence, Speedway and Southport), the (suspected) reason for the expansion was to retain white rule in the city (the 'reason' was given as 'reducing overlapping expenses' – sound familiar?). Success of keeping R control might be measured by Marion County voting for the Republican Presidential candidate every four years from 1968 until 2000. Only recently has the Democratic Presidential candidate started to win the vote.

  • 15. Zack12  |  October 23, 2014 at 2:53 pm

    Bottom line, the ban in South Carolina is likely to be struck down in a couple of weeks.
    Likely to be one of the only bright spots for us because all signs point to the Democrats losing control of the Senate, the only question is by how much.

  • 16. Zack12  |  October 23, 2014 at 2:54 pm

    I think he and a couple of other moderates are sick of having to kowtow to the Religious Reich each and every time.

  • 17. Zack12  |  October 23, 2014 at 2:55 pm

    They can feel free to try their luck at the 4th Circuit even though we all know it won't get that far.
    One thing for them to keep in mind, the 4th circuit is now one of the more liberal courts in the land and they will have no shot at winning.

  • 18. BaronDrei  |  October 23, 2014 at 3:23 pm

    Breaking: Utah Supreme Court lifts hold on same-sex adoptions http://www.huffingtonpost.com/2014/10/23/utah-sam

  • 19. franklinsewell  |  October 23, 2014 at 3:34 pm

    I think he's going to file it before the election. Our current attorney general is tired of this fight, too.

  • 20. Rik_SD  |  October 23, 2014 at 3:43 pm

    lol.. "We're going to go ahead and comply with the law". Yeah, you do that. Thanks.

  • 21. tornado163  |  October 23, 2014 at 3:54 pm

    You might have spent more time looking at it than they spent writing it. So many typos and logical flaws.

    In their motion paragraph, they left out the word "Amendment" in "Eleventh Amendment Immunity".

    Page 3 spends an entire paragraph on how Judge Posner in 2006 said domestic relations are for state courts, not federal courts. Assuming that's a fair summary, if not even Judge Posner himself currently thinks that logic applies to marriage bans, why should anyone on the 4th Circuit?

    And plenty of grammatical errors. Did the author not even bother to read this out loud to make sure everything sounded okay? That's something people learn in high school, let alone law school.

    Finally, they seem to think that Judge Niemeyer's dissent is the controlling precedent, rather than, oh let's say, the majority panel's decision.

  • 22. jdw_karasu  |  October 23, 2014 at 5:23 pm

    Judge Crabtree is a new Obama appointee. If he wants to, he can point to Kitchen and Bishop at the 10th to be done with this very fast.

    On the other hand…

    We have a critical Senate race in Kansas that is vital for our chances to hold the Senate. We also have the chance of tossing Brownback out of the Gov's mansion.

    I hate to say it, but this is one where I'd just as soon have a ruling come down on Wed/Thu after the election. Striking down the ban is more likely to get the GOP Base batshit riled up and out to vote than simply having the inevitable hanging for two weeks. I it's hard for people to be patient after waiting for so long, but on occassion we need to think big picture and long term battles. Having the Senate lets us get more judges on the courts in the next two years. Not having the Senate means Mitch & Co. will drag it to a halt, and means we'll need to win an extra seat in 2016 for everyone we drop below 50 this time around to retake the Senate. :/

  • 23. montezuma58  |  October 23, 2014 at 5:31 pm

    Crabtree cancels tomorrow's hearing in Kansas.
    http://kansasfirstnews.com/2014/10/23/judge-order

  • 24. Zack12  |  October 23, 2014 at 5:40 pm

    Like South Carolina and Bostic, Kansas is trying to claim they aren't bound by Kitchen.
    https://news.yahoo.com/why-kansas-set-become-focu
    They are dragging their feet, hopefully Judge Crabtree will soon put an end to it.

  • 25. Zack12  |  October 23, 2014 at 5:43 pm

    Looks like the ACLU requested the delay.
    This is so dumb, Kansas should NOT be allowed to drag their feet like this.

  • 26. DACiowan  |  October 23, 2014 at 5:43 pm

    Hopefully he goes for a decision on the briefs alone so we get a quicker ruling.

  • 27. Ragavendran  |  October 23, 2014 at 5:45 pm

    Strange. Nothing on PACER yet.

  • 28. buckybear0310b  |  October 23, 2014 at 5:53 pm

    Judge Young was a personal friend to my deceased husband while we lived in SW Indiana. I wasn't surprised by his ruling, as he leaned Dem for years. I'm just glad he was able to deliver this integral ruling.

  • 29. jdw_karasu  |  October 23, 2014 at 6:27 pm

    Doesn't sound like it's KA, but instead the ACLU as you mention. Can't argue too much with the plaintiffs lawyers if they want more time to be prepared to response to KA's nonsense.

    In addition, it sounds like Crabtree might be willing to just rule on the papers. That reads much more like simply pointing to Kitchen & Bishop to tell KA that they're screwed.

  • 30. Mike_Baltimore  |  October 23, 2014 at 6:32 pm

    Off topic (and I know Scottie reported a couple of days ago that there was a planned appeal), but this gives a bit more detail to the case and that appeal:

    'Lawyers to appeal dismissal of Puerto Rico marriage case'
    ( http://www.washingtonblade.com/2014/10/23/lawyers… )

  • 31. Mike_Baltimore  |  October 23, 2014 at 6:35 pm

    Off topic (and this probably makes NOM's blood boil – VBG):

    From the 'Washington Blade':
    "Mich. LGBT group receives $3 million donation"
    ( http://www.washingtonblade.com/2014/10/22/mich-lg… )

  • 32. franklinsewell  |  October 23, 2014 at 6:38 pm

    I certainly don't think this is off topic.

  • 33. Jen_in_MI  |  October 23, 2014 at 6:39 pm

    Not to be a nudge, but the proper abbreviation for Kansas is KS. :-)

  • 34. franklinsewell  |  October 23, 2014 at 6:40 pm

    This might be off topic, but its still relevant. Equality Michigan is aiding in the fight: https://www.equalitymi.org/marriage

  • 35. BenG1980  |  October 23, 2014 at 7:07 pm

    As jdw_karasu mentioned above, this might be a strategic delay on the part of the plaintiffs. It's in our long-term interest to win this case immediately after Nov. 4, 2014.

  • 36. Zack12  |  October 23, 2014 at 7:19 pm

    Indeed, Brownback is trying to milk this for everything he can.
    In the same breath, if voters in Kansas decide to keep Brownback in due to bigotry on their parts despite the economic damage he has done to their state, they deserve what they get.

  • 37. Mike_Baltimore  |  October 23, 2014 at 7:47 pm

    NOT off topic to the site, but off topic to the discussion.

  • 38. Mike_Baltimore  |  October 23, 2014 at 8:00 pm

    Off topic:

    The 'Washington Blade is reporting a lesbian woman in Texas has filed suit so she may receive Social Security death benefits for the death of her spouse in a state that doesn't recognize ME. Additional details at: http://www.washingtonblade.com/2014/10/23/lawsuit

  • 39. RnL2008  |  October 23, 2014 at 8:12 pm

    So, the ACLU has decided NOT to do anything regarding the Hitching Post as it now is exempt from the anti-discrimination policy in Idaho: http://www.kboi2.com/news/local/ACLU-N-Idaho-chap

  • 40. Zack12  |  October 23, 2014 at 8:26 pm

    http://www.khq.com/story/26879803/hitching-post-l
    Reading this article, the ADF lawyer flat out states they are still a for profit business.
    If that is the case, then the ACLU is wrong in this case.

  • 41. RnL2008  |  October 23, 2014 at 8:30 pm

    It is a little concerning…….but I'm not sure how the florist, Baker, Planner, photographer or others could make themselves be something their not…..we will have to continue to watch this sort of issue.,……but it is strange that the Hitching post ONLY just changed their status on the 6th of October!!!

  • 42. Zack12  |  October 23, 2014 at 8:35 pm

    Not strange at all… ADF planned this as a test case to try and gut anti-discrimination laws.

  • 43. RLsfba  |  October 23, 2014 at 8:56 pm

    Gee, and I bet that "narrow" Hobby Lobby ruling won't come into play somewhere. Twist and turn they'll do everything they can to preserve their view of reality. We'll be seeing more of this.

  • 44. Rick55845  |  October 23, 2014 at 8:58 pm

    Yep, cuz KA is Kalifornia, right? :) Well, speling was never my strong suit.

  • 45. Ragavendran  |  October 23, 2014 at 9:19 pm

    A call for southern states to secede and form an anti-gay nation called "Reagan":
    http://www.huffingtonpost.com/2014/10/23/douglas-

  • 46. sfbob  |  October 23, 2014 at 9:48 pm

    One thing ACLU does that ADF doesn't do: if they discover they were mistaken they'll do something about it. The suit can always be revived. Announcing you intend to discriminate is one thing, actually doing so and having someone file a complaint is something different.

  • 47. robbyinflorida  |  October 23, 2014 at 9:55 pm

    The photo copied attachments are quite bazaar. What do you make of them?

  • 48. RnL2008  |  October 23, 2014 at 10:44 pm

    My guess is they WON'T have much luck with that!!!

  • 49. Ragavendran  |  October 23, 2014 at 10:56 pm

    As an Indian, I couldn't resist pointing this out:
    http://www.urbandictionary.com/define.php?term=ba

  • 50. DeadHead  |  October 24, 2014 at 4:59 am

    Slavery, inmate chain gang labor, sharecropping, white supremacy, low wages, keeping women barefoot & pregnant and paying no taxes were “traditional values” of the old south bigots and the extreme right of the GOP party today. Some of the right wing extremists of the Republican party making rallying calls for the southern U.S. states to secede from the nation know that is unlikely to happen but it makes them money from selling books and getting speaker fees. The southern states would become very poor without all those federal programs and aid dollars flowing into their coffers.

    We still have the prison labor chain gang here in the south. The ball and chains are gone so are the stripes. The inmate labor in our area cleaning the parks, highways, working on produce farms wear orange jump suits & electronic ankle monitoring bracelets. They earn time off their sentence those working on farmland get a small amount of pay. And when convicts are paroled they now have to go to work via work programs or go back to prison, making low wages part of which are applied to probation/parole fees.

  • 51. Retired_Lawyer  |  October 24, 2014 at 5:55 am

    As long as we are all being pedantic, the correct Yiddish is "noodge."

  • 52. guitaristbl  |  October 24, 2014 at 6:32 am

    The postponement of ME in Kansas is worrying but it may work politically in favour of equality with both the governor's seat and the senate seat being on the verge to be taken away from GOP, a loss that may cost them the senate (still hoping that Grimes can give them another big hit in Kentucky !). So while I understand all those who believe that justice delayed is justice denied, lets be smart and get a final decision after Nov.4 at this point.
    On another note, it's taking quite a lot of time for the judge in South Dakota to issue a decision on the motion to dismiss. If she thought Brunning was controlling outright she would have issued the order by now IMO. So same with the 6th : the longer it takes the more hopeful I become. Lets wait and see if we will have anything today.

  • 53. Dr. Z  |  October 24, 2014 at 6:33 am

    She may have more difficulty with her case than other ME lawsuits. The SS law specifically stipulates that eligibility is based on the state of residence, which is a neutral rule. The SSA isn't acting out of animus; in this case, its hands truly are tied.

    Personally, I think she's suing the wrong party – the harm is being caused by Texas' nonrecognition of her marriage, not by SSA.

    But, IANAL. Edie Windsor did sue the IRS, after all.

  • 54. JayJonson  |  October 24, 2014 at 6:41 am

    More about Henry Messer, who left the gift(s) to MichiganEquality, at glbtq.com.
    http://www.glbtq.com/blogs/the_generosity_of_henr

    I knew him and Carl when my husband and I lived in Michigan in the 1990s.

  • 55. ragefirewolf  |  October 24, 2014 at 7:07 am

    But…but…if they can't hate and spew bile here, where are they gonna go?! :)

  • 56. ragefirewolf  |  October 24, 2014 at 7:10 am

    I have to say, waiting longer and longer doesn't make me hopeful…thanks for the weird optimism though.

    As an aside, didn't you say at one point that you're not in the US? Why so invested in our political process, if I may respectfully ask?

  • 57. RLsfba  |  October 24, 2014 at 7:25 am

    They're trying religious discrimination again in Georgia. Hopefully the legislators have some brains, but….

    “Practices that open the door to discrimination or create the perception that Georgia supports a discriminatory business environment would threaten our competitiveness,” Chamber spokeswoman Joselyn Baker said. “It would likely discourage some investments, and possibly affect our ability to attract the kind of quality workforce that we need for the future.”
    http://politics.blog.ajc.com/2014/10/22/the-georg

  • 58. hopalongcassidy  |  October 24, 2014 at 7:29 am

    bizarre too!

  • 59. guitaristbl  |  October 24, 2014 at 7:35 am

    Someone would ask at somepoint lol !
    Well there are two (two and a half actually) main reasons I am interested in the political and judicials process in the US :
    A) I find it extremely interesting in the way it's conducted. The whole philosophy behind your political system is one of the closest I have witnessed to direct democracy and freedom of speech at least in theory. The whole state sovereignty thing, along with the federal overlooking, the fine lines drawn there and the vastly different way the two main parties conduct themselves. Your election system is also very interesting both on presidential and congressional level. The fine balances of power that have to be achieved between houses and senates with different parties controlling, governors and presidents who have to work with legislatures controlled by the opposing party etc. I don't know I find the whole process intriguing. A possible downside in so much freedom of speech is only that it allows extremism to still hold the mainstage in some states, speech and ideas that in other countries would be fringe at best. But her it has many positives at the same time.
    Your judicial system is also very interesting. The active role it plays into forming public policy (either by obeying the constitution or by satisfying the personal agenda of people like Scalia and Roberts – one of corporate anarchy and limiting the rights of minorities) is something I haven't seen in any other country where the courts take a much more toned down role, rarely being able to stop the enforcement of laws passed by a legislature. In that sense the US judicial system is a credible resort for citizens who feel threatened by the extremist elements I mentioned before thus bringing a weird but somewhat refined balance. Again the state and federal structure of the judicial system and the jurisdiction each has is something that intrigues me. Judges have personalities, they have opinions and they show it, they are not just backdrops of a controlling government, even if they are partisan in the way they conduct their duties. The way opinions are written, the way precedent works, all those are interesting things. Anyway I rumbled a lot.
    B) Let's face it, when something happens in the US, it influences the whole world. So in terms of politics having a republican controlled congress or a republican president makes a vast global difference believe, in many ways, especially at such times of global turmoil. In terms of marriage equality, a clear uniform message of equality from the US also influences those in the sphere of influence of the US.
    C) the final, "half", reason is more personal. I am looking forward into getting a scholarship to an American university for my postgraduate studies and PhD research in the very near future (if I am able to) so while I would look into going to a progressive state that ensures equal treatment of LGBT people with the possibility of settling there, these states tend to have the best and most demanding and competitive universities (plus they are much more expensive to live in in general). So ensuring that wherever I go at the very least ME is a possibility (so that I can make plans for future settlement) is something I keep at the back of my head.

  • 60. Rkchicago  |  October 24, 2014 at 7:45 am

    Question – does the 6th circuit post opinions once daily, and at a set time? Do we only have to check once a day?

  • 61. ragefirewolf  |  October 24, 2014 at 7:48 am

    Very interesting. Here I thought the outside world mostly saw us as fools with too much power. It's nice to see someone genuinely interested in who we are and what we do.

    If you need suggestions on schools for your postgraduate studies, I'd be glad to assist, as I'm currently a student and I know of a few very good schools here in the US and especially NY (the whole state, not just the city).

  • 62. guitaristbl  |  October 24, 2014 at 7:51 am

    Most of the times yes, all decisions in the 6th for a certain day are issued at a set time, around 10:30 AM EST (they are late today though). There might be an order that may come later (like it happened yesterday with an order granting en banc hearing to a case) but opinions come all together, at least from what I ve seen so far.

  • 63. ragefirewolf  |  October 24, 2014 at 7:58 am

    Haha, Raga, you beat me to it.

  • 64. guitaristbl  |  October 24, 2014 at 8:03 am

    Indeed most of the world absolutely detests Americans because to them the typical American is Rick Perry and Michelle Bachmann tbh. Bush and his 8 years in office did not help that perception change either. Obama's administration was what changed my perspective as well. Before that to me the USA where cowboys wearing hats, holding a gun and a bible outside public office and clean cut extreme capitalists who think they have global control and that no other country exists out there. Much of the American politics is still conducted that way of course, especially from the GOP and especially in the red states but I know that not everyone is like that now, I see people fighting for change to something better and actually care for something more than themselves and what happens in their country no matter how it influences the rest of the world.
    I laugh at those in the US calling Obama a Marxist. In Europe Obama would be a right centre politician, probably a bit more on the right and the Democratic Party would be a right center party as well. I won't even go to GOP, it would be a far right party anywhere in europe.The spirit of the American society is so different from the European one in so many aspects. Some of these (as those I listed above in my first argument) are good and some of these, as those the USA are stereotypically known for and are mainly represented by GOP, are bad.
    My field of studies is elementary particle physics, I don't know how much you may know about that in terms of good post graduate programs but I would really appreciate any suggestions thank you very much for offering :-)

  • 65. ragefirewolf  |  October 24, 2014 at 8:07 am

    Keep calm and baryon? :)

    Hold on, I think I know of a couple really good schools for particle physics in NY. Please stand by.

  • 66. ragefirewolf  |  October 24, 2014 at 8:17 am

    Here ya go, Guitar. A few choices:
    http://www.rit.edu/programs/astrophysical-science
    http://www.rpi.edu/dept/phys/research/index.html
    http://www.albany.edu/graduate/nanoscale-science-

  • 67. guitaristbl  |  October 24, 2014 at 8:45 am

    Thank you so so much, I really appreciate it :)

  • 68. CowboyPhD  |  October 24, 2014 at 8:45 am

    I hope you are successful in your goals. This country can use more gifted, intelligent people like you to offset the stupidity and bigotry of others.

  • 69. guitaristbl  |  October 24, 2014 at 9:03 am

    Thank you very much, I truly appreciate your kind words :)

  • 70. Elihu_Bystander  |  October 24, 2014 at 9:03 am

    "Like South Carolina and Bostic, Kansas is trying to claim they aren't bound by Kitchen."

    No matter how silly that may sound, that is the only argument they have left. Once a CA mandate has been issued that is the law of the circuit. The defense of ME bans are no longer argued on the merits, but rather how the present case is dissimilar from the case that is president. The plaintiff's argument is how their case is similar and the mandate applies to their case.

  • 71. StraightDave  |  October 24, 2014 at 9:27 am

    This is really just an echo of Windsor, and should meet the same fate.
    The SSA is disregarding and disrespecting a marriage made lawful by MA. The meaning of Windsor is that once a state says you are married, then you actually are married. That is a status that does not change and the federal gov't must recognize that fact.

    Just because there's a quirk in the law that allows a loophole to use TX law as an excuse doesn't let the US off the Windsor hook. Right now the SSA may feel stuck, but this should be an easy case.

  • 72. ragefirewolf  |  October 24, 2014 at 9:30 am

    My pleasure, sir! Keep me posted, please! I'd love to know if you choose any of these institutions. :)

  • 73. StraightDave  |  October 24, 2014 at 10:00 am

    Here's why KS claims they aren't bound by Kitchen.

    "“The Kansas Supreme Court is constitutionally obligated to follow precedents of the United States Supreme Court, but not decisions of a federal circuit court of appeals…"
    That's literally true, but completely beside the point.

    Either their AG has no comprehension of the law, or thinks he can play a federal judge for a fool. The 10th CA has made a ruling, and that applies to all its states, period. The KS SC isn't involved in that at all. The only partially related concept is that the KS SC is not required to make a ruling in conformance with what the 10th said. But that's not the question before us now.

    KS is trying to claim that a contrary KS SC 2002 ruling is dominant and that the 10th CA cannot now rule otherwise. But it would be insane to say that a state court can tell a federal court how to rule on a federal constitutional issue. The mistake KS makes is to confuse the 10th CA telling the KS SC what to do (which it generally can't) with the 10th telling KS state officials what they have to do to comply with the US Const.

    I generously label this a "mistake", but somehow I believe KS really can be that dumb. Anyway, it will go nowhere, once they actually get into a courtroom.

  • 74. Dr. Z  |  October 24, 2014 at 10:08 am

    To play devil's advocate for a moment: I'm not so sure this will be as easy as you think.

    In Windsor, the IRS was disregarding a marriage that was recognized as valid by her state of residence (NY, in this case.) Part of the Windsor ruling turned on the fact that DOMA was motivated by animus.

    But here, the SSA is bound by a law enacted decades prior to Windsor that governs eligibility based on the state of residence. There is no antigay animus, even if the administration of the law does in actual fact harm SS couples.

    Kennedy has made it plain in all his previous rulings – Romer, Lawrence and Windsor – that he is particularly concerned about antigay animus.

    After the Windsor decision all Federal agencies were directed to extend the maximum permissible legal benefits to same-sex couples. The SSA went thru the same review process but determined that the law tied their hands.

    Thus, I think it is far from certain that the plaintiff here will prevail in her claim against the SSA. The SSA can legitimately claim to be administering the law in a manner that does not exhibit animus, and cite the post-Windsor review as evidence of their good faith effort to offer benefits if they could. Furthermore there is no evidence that the law itself was enacted thru antigay animus.

    In other words, the courts very well may conclude that she's suing the wrong party. She should be suing Texas for not recognizing her marriage and cite the SS benefits as evidence of that harm.

  • 75. StraightDave  |  October 24, 2014 at 10:10 am

    That's my favorite. He totally nailed it. Completely raked every segment of the state over the coals.
    It was from the last civil rights era, but it's shocking to realize how much of it still applies 50 years later.

  • 76. MrBaronB  |  October 24, 2014 at 10:21 am

    I've been curious about that "SS recognition based on the state of residency" thing since I first heard about it last year. I've always heard that the rule has nothing to do with same-sex couples, but who, other than same-sex couples, are married and live in states that don't recognize it? And what was the purpose of such a condition on the law to begin with? Anyone know?

  • 77. sfbob  |  October 24, 2014 at 10:27 am

    The rule goes back to the days of interracial marriage bans. In order to get the support of Congress members who didn't like the idea of federal benefits at all, "place of residence" was used as a bargaining chip to gain their support. If I'm not mistaken, the rule goes all the way back to the time when widows of Revolutionary War and Civil War soldiers were being given survivor benefits. It's an artifact of racism mostly and it needs to be changed.

  • 78. Dr. Z  |  October 24, 2014 at 10:41 am

    There is a case, Flemming vs Nestor (1960) in which SCOTUS declared that SS benefits were not a constitutional right.

    It is interesting that the state of residency rule may have been a Jim Crow law.

    This seems like it will be a complicated case in its own right.

  • 79. sfbob  |  October 24, 2014 at 10:46 am

    Update, courtesy of JMG:

    "Leo Morales of the ACLU of Idaho said the exemption makes sense as long as the Hitching Post primarily performs religious ceremonies. 'However, if they do non-religious ceremonies as well, they would be violating the anti-discrimination ordinance,' Morales said. 'It's the religious activity that's being protected.'"

  • 80. StraightDave  |  October 24, 2014 at 10:52 am

    I'll agree there's no animus here, just an oversight since there was virtually no difference decades ago. But animus is not required to show tangible harm.

    TX can just as easily say they're not responsible for how SSA distributes benefits. As long as their state law is legitimate to maintain, they've done nothing wrong. They're just an inadvertant participant.

    SSA is the one who made a foolish choice, which may have seemed harmless at the time, but under the new circumstances is very harmful. Since the end result is clearly unjustified discrimination, at their hands, they have a duty to clean up the mess now. They have no defense for continued, deliberate, knowledgeable unequal treatment that they can rectify. The laws change all the time. We all have the obligation to adhere to the new ones. It may take a court to impose the change, but I can't see this Justice Dept putting up any kind of fight.

  • 81. guitaristbl  |  October 24, 2014 at 10:55 am

    Almost everyone is attacking ACLU for taking this stance but I believe it is a very smart move personally. ADF is shooting a bullet to a hypothetical target, since these people have never been made to do anything, something Otter lied about in his brief, and ACLU decided to take the target away, thus the shot goes nowhere. If ACLU took the bait here we would have another front developing before ME was the law, one that would definately cause a surge of anti-LGBT legislation in states like Idaho etc (it will still happen but taking the bait would only intensify it). Since there is no case here, let's leave that for now and focus on ME nationwide. Let's fight these things as they come after that.

  • 82. MrBaronB  |  October 24, 2014 at 10:56 am

    I had assumed that it had to be about racism and interracial couples because, again, who else would be married in one state and not in another? But then I read somewhere (I can't remember where now) that the law in question doesn't go that far back–like from the '70s. I've never looked into it very far, obviously, but nothing I hear about it makes any sense, so I thought I'd ask here.

  • 83. sfbob  |  October 24, 2014 at 11:03 am

    The fault doesn't lie with the Social Security Administration but with Congress. The rules for determining eligibility for various sorts of survivor benefits are statutory–that is they are included in the legislation that created the benefit in the first place. The fact is that the "place of residence" rule was a sop to states with anti-miscegenation laws. It just got put into every benefit scheme that originated prior to WWII. It might be possible to win by challenging the rule itself, without regard to which groups it impacts, on the basis that the rule is discriminatory in a more fundamental way, but that is going to take some doing since I strongly suspect the court will find that rational basis applies. And where economic issues are involved they tend to not be terribly strict in applying rational basis.

  • 84. StraightDave  |  October 24, 2014 at 11:19 am

    Since when is signing a civil marriage license a religious act? If all they want to do is conduct religious ceremonies with no civil component, I'm fine with that. But I kind of doubt that's what they have in mind.

  • 85. jdw_karasu  |  October 24, 2014 at 11:26 am

    You're correct. :)

  • 86. sfbob  |  October 24, 2014 at 11:29 am

    It's not the civil marriage part that gets them a pass, it's the fact (or claim) that all of their marriages are performed by clergy as part of a religious ceremony. They very conveniently ceased offering marriages without a religious component to them on October 6th. It is a fig leaf but it's one that would certainly withstand a court challenge.

  • 87. Mike_Baltimore  |  October 24, 2014 at 11:47 am

    Cuba? Venezuela? Russia?

    (They'd have to learn a new language, though, in any of those places. After all, are the most vociferous backers of English First [advocates of speaking the language of the country] some of the more CONservative?)

  • 88. sfbob  |  October 24, 2014 at 1:10 pm

    The case involved someone who had been a member of the Communist Party in the 1930s, qualified for Social Security and then was deported and his benefits were stopped. It seems to me that the ruling would be read nowadays as meaning not so much that there is no right to Social Security benefits as that Congress may impose limitations on that right without necessarily violating the Due Process Clause. So a person can be deprived of benefits even after having paid for them, under certain specific conditions. However, I don't know how applicable the case would be to this instance. It's a sort of "you get the benefit unless…" versus "you don't get the benefit unless" kind of thing. It would be easier to make an equal protection argument in attacking the place of residence rule.

  • 89. RnL2008  |  October 24, 2014 at 1:54 pm

    I'd have posted this in the other thread, but there appears to be a glitch…….so, I'm posting this here…….it's a good read about Christians and faith: http://evolequals.com/2014/10/24/a-survival-guide

  • 90. Dr. Z  |  October 24, 2014 at 2:12 pm

    Hm, so I understand you correctly, the state of residence staute, having been enacted by Congress as a condition of SS eligibility, wouldn't automatically be regarded as a Due Process limitation even if it had a discriminatory effect?

    If that's so, the plaintiffs are going to have an uphill battle. :(

  • 91. sfbob  |  October 24, 2014 at 3:00 pm

    That's about the size of it. Congress can pass laws limiting access to benefits even if those benefits have already been paid for.

    I will note on the other hand that much has happened in this area subsequent to that 1960 ruling. It seems likely that it'll be referred to in any litigation but at the same time things have changed and the courts may not take such a sanguine view about Congress' ability to provide benefits to some people while withholding them from others. It could be that the entire "place of residence" scheme could fall on the basis of being arbitrary. But it will certainly be a difficult case to win.

  • 92. Dr. Z  |  October 24, 2014 at 3:27 pm

    Were there interracial couples who challenged this rule?

  • 93. Dr. Z  |  October 24, 2014 at 3:37 pm

    There's an interesting tie-in here to healthcare. During the original 1930s debates to establish Social Security there was an effort to include what we now know as Medicare Part A as part of the package. Congress members from Jim Crow states balked, since that could have meant that hospitals would be forced to desegregate. The 'compromise' (in the same sense that DADT was a 'compromise') was that healthcare was stripped from social security, and if people wanted hospital insurance they could contract with private nonprofits to obtain it. Thus was Blue Cross born. (Blue Shield, the physician counterpart, was created in 1941.)

    Medicare would have to wait until 1964.

  • 94. sfbob  |  October 24, 2014 at 3:59 pm

    I confess I don't have an answer. Meanwhile thank you for your comment above noting the tie-in to healthcare.

  • 95. Elihu_Bystander  |  October 25, 2014 at 6:25 am

    I agree that was a good read. Since I am a gay man and a practicing Christian, I am in particular agreement with the last paragraph.

    "My path with my family and our journey is not something that should cause you harm. My hope is that you stop fearing that it will, that you lay down your stones and pitch forks, and join us for a stroll. We would welcome you."

    I have personally seen this suggested approach to work wonders in my relationships with straight people. Once the fear goes away, a fruitful relationship can form. And it is all good.

  • 96. hopalongcassidy  |  October 25, 2014 at 6:34 am

    Kinda like Colonel Sanders and chickens, huh? It's a mystery to me how anyone with a brain can embrace the insanity of christism or any other religion…much less gay folks who are generally far brighter than average. Some day we will learn whether religion is the cause..or the result…of insanity.

  • 97. hopalongcassidy  |  October 25, 2014 at 6:34 am

    Faith is a piss poor substitute for thought.

  • 98. Concern_troll  |  October 25, 2014 at 6:51 am

    Many of the Veteran's Affairs rules are like that. It really sucks because they tried to change the rules in Congress, but it has been filibustered.

  • 99. Elihu_Bystander  |  October 25, 2014 at 8:13 am

    “Faith is a piss poor substitute for thought.”

    That may be accurate if ones faith is static and fundamentalist/literalist. My faith is dynamic and open to new discernment of truth. In fact, my faith is dependant upon listening to new thought.

  • 100. Ragavendran  |  October 27, 2014 at 8:07 am

    Except Friday :( An additional opinion was released towards the end of the day.

  • 101. Randolph_Finder  |  October 28, 2014 at 8:04 am

    Fun watching the Chamber of Commerce Republicans figure out which side of their bread is buttered.

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