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BREAKING: Federal judge bars enforcement of Kansas same-sex marriage ban

LGBT Legal Cases Marriage equality Marriage Equality Trials

ksA federal judge has just issued a preliminary injunction barring Kansas officials from enforcing the state’s same-sex marriage ban. The order means that the state will be required to marry same-sex couples, at least pending any further stays.

The judge did, however, issue a temporary stay until November 11, so that the state can decide whether they will appeal the order.

From the order:

Because Kansas’ constitution and statutes indeed do what Kitchen forbids, the Court concludes that Kansas’ same-sex marriage ban violates the Fourteenth Amendment to the Constitution. Accordingly, the Court grants plaintiffs’ request for preliminary relief and enters the injunction described at the end of this Order.

Kansas is in the Tenth Circuit Court of Appeals, which struck down bans in Oklahoma and Utah earlier this year.

EqualityOnTrial will have more on this developing story.

UPDATE: Kansas’ attorney general has said that he will ask the full Tenth Circuit Court of Appeals to hear an appeal in the case.

Thanks to Equality Case Files for these filings

156 Comments

  • 1. sfbob  |  November 4, 2014 at 12:54 pm

    BAM!

  • 2. DrPatrick1  |  November 4, 2014 at 12:59 pm

    I would have preferred no temporary stay, but this will certainly be denied by the 10th CA, which will allow marriage on the 11th of November. YAY!!!

  • 3. Zack12  |  November 4, 2014 at 1:09 pm

    They will certainly appeal the order but it will be denied.
    This is the beginning of the end of the footdragging in Kansas.

  • 4. BenG1980  |  November 4, 2014 at 1:11 pm

    Map update, please! lol (And since the South Carolina ban now seems to living on borrowed time with the emergence of Judge Gergel, Montana will likely be the last holdout state with circuit court precedent until another circuit rules.)

  • 5. Jaesun100  |  November 4, 2014 at 1:17 pm

    It should not have taken this long, but kudos for finally ending this injustice in Kansas .

  • 6. guitaristbl  |  November 4, 2014 at 1:17 pm

    Did not expect that on Election Day (btw how's that going, when will we know the senators, governors etc ?) but it may as well be the last nail on the coffin for brownback who seems to face a tough time getting re elected.
    They will appeal of course once the election frenzy settles tomorrow or till Friday or next week but I don't see much if a success. Depends on who is elected governor honestly. Brownback will go for en banc in the 10th. Davis (I think that's his name) may as well stop the whole thing.

    Come on Montana and South Carolina !

  • 7. Jaesun100  |  November 4, 2014 at 1:20 pm

    Won't be long hopefully for SC <a href="http://Chttp://www.lgbtqnation.com/2014/11/judge-could-rule-this-week-in-challenge-to-south-carolina-gay-marriage-ban/” target=”_blank”>Chttp://www.lgbtqnation.com/2014/11/judge-could-rule-this-week-in-challenge-to-south-carolina-gay-marriage-ban/

  • 8. Zack12  |  November 4, 2014 at 1:21 pm

    The precedent has already been decided.
    Kansas is going to get rejected by the 10th circuit and that will be that.

  • 9. ragefirewolf  |  November 4, 2014 at 1:22 pm

    Yay, Kansas!!!!!!!

    Boo, stay!!!!!!

  • 10. RnL2008  |  November 4, 2014 at 1:23 pm

    AWESOME!!!

    It looks like the entire 10th is now onboard the Equality train……woohoo!!!

  • 11. RemC_Chicago  |  November 4, 2014 at 1:31 pm

    As it should have been on or about October 6.

  • 12. RemC_Chicago  |  November 4, 2014 at 1:31 pm

    I will be happy to see Mr. Brownback lose the election.

  • 13. BenjiCA  |  November 4, 2014 at 1:32 pm

    But after being rejected by the 10th circuit, Kansas could still appeal to SCOTUS. And I would predict that the petition would go the way of all those that preceded it: Justice Sotomayor (10th circuit Justice) would refer to full court, and then issue the one-sentence order stating that the petition is denied.

  • 14. hopalongcassidy  |  November 4, 2014 at 1:33 pm

    Always the cynic, I can't help wondering if this is a last minute effort to rally the right wing to vote today…

    Not that it will make any difference on this particular issue in the long run, but I can see the calculus.

  • 15. sfbob  |  November 4, 2014 at 1:44 pm

    I see that the judge here addresses a claim made by the state of Kansas that South Carolina also attempted to make: that states have absolute jurisdiction over marriage law under the Tenth Amendment. This argument is demolished very quickly (see page 18). It's the very same one Lyle Denniston somehow thought was "novel." Only of course it isn't.

    "The domestic relations exception Secretary Moser invokes is a narrow exception to federal court diversity jurisdiction and it “encompasses only cases involving the issuance of a divorce, alimony, or child custody decree… This exception does not apply to cases like this one, where a federal court has jurisdiction over a case because that case presents a 'federal question.'…
    Nor does it apply to constitutional challenges to an underlying statutory scheme."

    As a sort of an aside, or perhaps not, I should like to point out that whereas until recently the bulk of the legal work has consisted of debunking reasons why marriage equality bans can withstand rational basis review, it now appears that the work has shifted to rebutting states' attempts to argue that prior federal court decisions overturning bans in other states somehow don't apply to them.

  • 16. Jaesun100  |  November 4, 2014 at 1:47 pm

    lets get some popcorn and get this election night started …,,,,,

  • 17. MacT89  |  November 4, 2014 at 1:49 pm

    KS polls close at 7pm Central time I believe. Since it is a close race, it could go late. But unlike some other races, I expect it will be decided by tomorrow morning at the latest. I agree with you, the gov is far more likely to be replaced by the Dem candidate, but there is hope for both!

  • 18. davepCA  |  November 4, 2014 at 1:50 pm

    Looks like you have a type at the beginning of that link….

  • 19. montezuma58  |  November 4, 2014 at 1:53 pm

    The 11th is a federal holiday. Will that affect the effective date?

  • 20. SethInMaryland  |  November 4, 2014 at 1:53 pm

    i don't think this will have much of a effect on the election. kanas polling was already showing growing support in fact it was almost 50/50% , and kansas has been trending blue for while , this is liklely sam brownback last day in office and maybie the republican senator too

  • 21. JayJonson  |  November 4, 2014 at 1:55 pm

    Love that Judge Crabtree cited Hobby Lobby in deciding that the public interest weighs in favor of granting the injunction. Maybe that awful ruling may turn out to have an unanticipated utility after all.

  • 22. DACiowan  |  November 4, 2014 at 1:59 pm

    Kansas today, South Carolina tomorrow, and then the Sixth? 😀

  • 23. sfbob  |  November 4, 2014 at 2:01 pm

    If the county clerks offices are open next Tuesday, I don't think it will matter whether it's a federal holiday or not. Also we have seen federal judges issue decisions on Sunday evenings and on holidays. So there isn't any bar in that respect either.

    Since the stay doesn't expire until 5 p.m. CST on Tuesday, my guess is that marriages will begin promptly next Wednesday morning.

  • 24. hopalongcassidy  |  November 4, 2014 at 2:06 pm

    I think this will work http://www.lgbtqnation.com/2014/11/judge-could-ru

  • 25. MichaelGrabow  |  November 4, 2014 at 2:07 pm

    Toto, I've a feeling we're not in Kansas anymore.

  • 26. BillinNO  |  November 4, 2014 at 2:14 pm

    Hooray!

  • 27. davepCA  |  November 4, 2014 at 2:26 pm

    Sure you are! It just changed from drab black & white to Technicolor rainbow hued : )

  • 28. guitaristbl  |  November 4, 2014 at 2:29 pm

    The 6th has not issued opinions in the "published" section (thus important ones with procedural value) two days in a row. I just have this gut feeling that the next published opinions will include at least one marriage case.

  • 29. brandall  |  November 4, 2014 at 2:35 pm

    Concur with everything you said. But, for "work has shifted to rebutting states' attempts to argue that prior federal court decisions overturning bans in other states somehow don't apply to them."….there is an additional new argument in several states over Federal Courts trumping State SC cases in progress….it is the newest stall stance, post cert denials. Over 50% of this decision is devoted to painstakingly explaining why the AC can issue its injunction despite the Kanas SC's stay and pending oral arguments. Excellent reading for understanding at what point a Federal AC can step in.

  • 30. Rik_SD  |  November 4, 2014 at 2:44 pm

    crossed my mind as well…

  • 31. Rik_SD  |  November 4, 2014 at 2:45 pm

    people here seem convinced that they are intentionally waiting out the election so perhaps they are just sitting on them until morning and have been for a couple of days

  • 32. Jaesun100  |  November 4, 2014 at 2:45 pm

    Thanks:)

  • 33. brandall  |  November 4, 2014 at 2:47 pm

    Florida tomorrow (Hinkle), South Carolina Thursday (Plaintiff's final response is due tomorrow)….and then the 6th on Friday. One decision per day Tuesday through Friday will make up for the absence of decisions over the last 2 weeks.

  • 34. RnL2008  |  November 4, 2014 at 2:48 pm

    I would tend to agree with ya!

  • 35. RnL2008  |  November 4, 2014 at 2:52 pm

    OMG….to funny….and I'm sure the Phelps klan is NOT happy campers…..lol!!!

  • 36. Corey_from_MD  |  November 4, 2014 at 2:53 pm

    In your face on election night, NOM!

  • 37. Zack12  |  November 4, 2014 at 3:04 pm

    I think they are as well.
    If nothing else, they are NOT going to be able to drag it out past the due date without it being clear they are stalling.
    I expect a ruling by mid November at the latest.

  • 38. Rik_SD  |  November 4, 2014 at 3:21 pm

    I was not aware there was a due date… what is it?

  • 39. Mike_Baltimore  |  November 4, 2014 at 3:22 pm

    ". . . when will we know the senators, governor, etc.?"

    The US is spread over several time zones (Eastern, Central, Mountain, Pacific, Alaskan and Hawai'ian. In addition, polls close at various times – for instance, at 6:00 PM in parts of Indiana and Kentucky (all in the EST zone), but 9:00 PM in New York state, also in the Eastern time zone. This is typical of all but the Alaskan and Hawai'ian time zones.

    Also complicating is that if you are in line to vote at poll closing, the polls stay open until the last person has voted. After the last person has voted, the results then start to be released, although some precincts don't start counting until after all polls in the state are closed. A few years ago, a federal judge in MD ordered certain polling stations to stay open until 9:00 PM because of various problems earlier in the day.

    In Maryland, the polls are open from 7:00 AM to 8:00 PM; where I formerly lived in Indiana and where my mother and many relatives still live, the polls are open from 6:00 AM to 6:00 PM. Both are in the Eastern time zone.

    In other words, if there are close contests spread over the various time zones, it could be a long time until the winners are determined. Or it could be an 'early night', if there are few close contests in the time zones.

    In 2014, it might be as late as January before we know the final make-up in the Senate – LA and GA require a candidate to receive 50% plus one to win in Nov., or there is a run-off (in Dec. in LA; in January in GA) between the top two vote getters in Nov.

    Because this year there are so many Senate and Governor races that are polling very close or even tied, it is expected that the outcome won't be known until very late tonight, or even later.

  • 40. guitaristbl  |  November 4, 2014 at 3:38 pm

    I am aware that races where no candidate receives more than 50 % go to a run-off later, so the final make up of the senate would take some time. Thanks for the detailed answer though !

  • 41. brandall  |  November 4, 2014 at 3:38 pm

    Kansas AG – We will not go to Oz, we want an en banc panel…. Utah and Oklahoma never requested an en banc hearing.

    Wow…and you expect what to happen? A wizard behind a curtain will grant you your wish to uphold your SCOTUS cert denied marriage ban?

    http://ag.ks.gov/media-center/news-releases/2014/

  • 42. wes228  |  November 4, 2014 at 3:39 pm

    Keep in mind that all these new people likely won't take office until January, so Brownback would still have time to appeal.

  • 43. wes228  |  November 4, 2014 at 3:39 pm

    That is how motions are decided (like a stay). A petition for cert. automatically goes to the whole court and requires 4 (not 5, like a stay) to be granted.

  • 44. Ragavendran  |  November 4, 2014 at 3:40 pm

    I'm so glad the judge took pains to elaborately discuss the threshold questions, so this can provide assistance for other courts (SC, MT) who will tackle similar challenges. For example, I like how detailed his discussion was on the domestic relations exemption, sovereign immunity, abstention, etc.

    I'm also pleased with the timing. Thursday morning, the Kansas Supreme Court will convene to hear arguments in the Moriarty case. Let's see what they think of this development! If the Justices are indeed Honorable, they will recognize that the federal court has ruled, and that's that, and close the case, performing some clean-up.

  • 45. guitaristbl  |  November 4, 2014 at 3:48 pm

    I doubt en banc will be granted, but the 10th is uncharted territory on that matter. Remains to be seen if he 10th will issue a stay of course.

  • 46. brandall  |  November 4, 2014 at 3:50 pm

    SC – Latest filing from the State

    Page 1 – Plaintiffs have not come forward with any reasons why this Court should not grant judgment for the Defendants. Whether the Defendants’ motion is treated as for judgment on the pleadings or as one for summary judgment, the results are the same. Because of the legal barriers to this suit of federalism, the Eleventh Amendment and lack of standing, the Defendants are entitled to judgment in their favor regardless of the application of Bostic v. Schaefer

    Page 2 all the way to page 9 – Baker v. Nelson. Yup, 7 pages.

    I stopped there.

    This is what desperation looks like in writing. It is also a complete waste of the courts time covering ground long grown over with rose bushes used for ME weddings.

    http://www.scribd.com/doc/245538754/3-13-cv-02351

  • 47. montezuma58  |  November 4, 2014 at 3:59 pm

    Looks like it's a holiday for the state also. http://www.kansastag.gov/AdvHTML_Upload/files/201

  • 48. sfbob  |  November 4, 2014 at 4:15 pm

    So no marriages would be taking place on that date anyway, especially since the stay doesn't expire until C.O.B.

    The state could file an appeal to the Tenth Circuit as late as the 11th, since despite the holiday, the federal courts are always available to receive such requests and to rule on them. Judges are basically on call 24/7; comes with the territory (except in TX where a judge went home so as not to be available to receive a last-minute request to stay an execution). The state will probably either go to the Tenth Circuit immediately or else will wait until the last possible minute just to drag things out. Next week should prove interesting either way.

  • 49. jdw_karasu  |  November 4, 2014 at 4:32 pm

    Really wish he had waited one day. There's a chance to get rid of both Brownback and Roberts, and things are so tight in the Senate that we probably need to Roberts to go down. We don't need anything to get The Base riled up to go vote against the Evil Liberals. :/

  • 50. davepCA  |  November 4, 2014 at 4:32 pm

    Indeed. That section wasn't the most entertaining read, but it can prove to be very important.

  • 51. Mike_Baltimore  |  November 4, 2014 at 4:41 pm

    Not all states go to run-offs. Just some. For instance, in Ohio, Kasich won the governorship in 2010 with about 49% of the vote. Indiana does not have run-offs for any office, nor does Maryland.

  • 52. jdw_karasu  |  November 4, 2014 at 4:59 pm

    Most states don't have run offs. It's a small set that does.

  • 53. jdw_karasu  |  November 4, 2014 at 5:01 pm

    I don't expect that Crabtree would be trying to rally The Base given he's an Obama appointment. My guess is that he's not very politically savvy and didn't see the risk.

  • 54. David_Midvale_UT  |  November 4, 2014 at 5:02 pm

    SCOTUS already declined Cert from Tenth Circuit states. How is irrational prejudice in Kansas any different from government-sanctioned discrimination in Utah or Oklahoma?

    "Our bigotry is more special and more deserving of protection than your bigotry" ? ? ?

  • 55. sfbob  |  November 4, 2014 at 5:03 pm

    Given the opinion was issued mid-day I would suspect that a) most voters won't have heard about it before they vote and b) most aren't giving it all that much consideration in the first place.

  • 56. jdw_karasu  |  November 4, 2014 at 5:05 pm

    Second judge to do that. My recollection was that it was the judge that most people read the last part of his opinion to mean that he didn't really want to rule on our side, but was bound by the Circuit. My reading was that his comments were aimed at the Gov & State, and that his Hobby Lobby trolling earlier in the opinion gave away that he was really on our side all the way.

  • 57. jdw_karasu  |  November 4, 2014 at 5:06 pm

    SC does really feel like Wed or Thu as being when the opinion comes down. Judge seemed clear that he wasn't going to waste time, and also that he was on our side.

  • 58. jdw_karasu  |  November 4, 2014 at 5:16 pm

    7-5 Dem, with one of the GOP (Kelly) voting on our side in Kitchen and Bishop. No way they get an en banc.

    Given Kitchen and Bishop were denied cert by SCOTUS, there seems little chance that the 10th would grant a stay.

    "It's dead, Jim."

  • 59. DrBriCA  |  November 4, 2014 at 5:18 pm

    Agreed. Then it's just up to slowpoke Childs to add in the recognition of out-of-state marriages once she finally gets around to it. (I'm not sure that the current judge can knock out both aspects of the ban, as Conlon & her partner sued specifically to seek the right to marry.)

  • 60. DrBriCA  |  November 4, 2014 at 5:21 pm

    That was the judge for Wyoming, I believe, as he also quoted from the 10th circuit decision on Hobby Lobby. His one-week stay pending appeal is also the model for Judge Crabtree's temporary stay for Kansas.

  • 61. Ryan K (a.k.a. KELL)  |  November 4, 2014 at 5:24 pm

    That's a no-nonsense statement of facts by the judge. With Kansas in the bag, it really does seem like SC will happen shortly. And then there was Montana…

  • 62. DrBriCA  |  November 4, 2014 at 5:29 pm

    7 pages… One page for each word in the phrase "for want of a substantial federal question."

  • 63. DrBriCA  |  November 4, 2014 at 5:34 pm

    I doubt it would issue a stay. The 10th did not want to stay the district rulings in Kitchen or Evans initially. Plus SCOTUS was fairly clear with Idaho and Alaska about no further "gay = stay" for states with Circuit-level rulings, and that was for the 9th, which hasn't appealed to SCOTUS. The 10th already has 2 rulings that went before SCOTUS and got denied cert.

  • 64. jdw_karasu  |  November 4, 2014 at 5:42 pm

    Polls close at 7pm local. Pretty easy these days to hear things given mobile devices.

  • 65. RnL2008  |  November 4, 2014 at 6:29 pm

    These idiots KNOW that there is NO way the 10th is going to grant an en banc hearing……..they have NOTHING and all they want to do is drag their flipping feet!!!

  • 66. Mike_Baltimore  |  November 4, 2014 at 6:44 pm

    So when someone says "Just some", that means something different than some?

    I stated 'some' because I'm not aware of the voting rules in each state, and in each jurisdiction in each state, and I wasn't going to take the time to research it – how many voting jurisdictions are there in the US?

    In addition, 'guitaristbl' seemingly implied that if a candidate didn't receive 50% plus one votes, that candidate would be in a run-off. I wanted to correct that implication. If I was incorrect in what you stated, 'guitaristbl', and took it as implying something different (or not implying anything at all), my apologies.

  • 67. Elihu_Bystander  |  November 4, 2014 at 7:03 pm

    OMG ROTFLMAO

  • 68. Elihu_Bystander  |  November 4, 2014 at 7:11 pm

    But unlike Dorthy & Toto, you are still in Kansas. The 10th CA mandate probably is precedent in Oz, but it definitely is in Kansas.

  • 69. Ragavendran  |  November 4, 2014 at 7:32 pm

    "one of the GOP (Kelly) voting on our side in Kitchen and Bishop" – you mean Holmes, not Kelly.

  • 70. SethInMaryland  |  November 4, 2014 at 8:04 pm

    damn this election is gettin g bad

  • 71. SethInMaryland  |  November 4, 2014 at 8:33 pm

    expected but bad news the republicans have won control the senate ,shit this going to be bad

  • 72. SethInMaryland  |  November 4, 2014 at 8:38 pm

    the wave is even coming into my state , it's looking more and more like republican Larry Hogan is going to be governor

  • 73. RnL2008  |  November 4, 2014 at 9:14 pm

    Folks, let's have a little hope that the close Senate Races fall our direction…….and if they don't…not much will get done in the next two years………folks want to biotch about how bad President Obama is that they DIDN'T look to see how bad the Republicans have been at holding this Country hostage……let's hope that between the absentee ballots and the close races……we look better than it is right now!!!

  • 74. SethInMaryland  |  November 4, 2014 at 9:37 pm

    they just called it :( ,republican Larry Hogan is now the governor of Maryland -__- i can't b elieve this

  • 75. weshlovrcm  |  November 4, 2014 at 9:49 pm

    Anyone who votes for a Republican gets just what he/she deserves.

  • 76. SethInMaryland  |  November 4, 2014 at 10:18 pm

    Man i thought it was bad in my state, Massachusetts Turns red , Charlie Baker is now the governor

  • 77. ebohlman  |  November 4, 2014 at 10:24 pm

    Interesting question: OK was never specifically ordered to recognize out-of-state marriages (since Barton didn't have standing) although the Kitchen precedent clearly requires it. Fallin, however, doesn't seem to have engaged in any hijinx based on that, though it's possible that no previously-married couple has yet run into a situation where recognition could be disputed.

  • 78. guitaristbl  |  November 4, 2014 at 11:04 pm

    I can't think of many ways this election could be any worse on any level, even when it comes to ME, but anyway.

    At least we know what to expect : Marriage amendment to come up in congress and tough fights from Brownback and Scott/Bodi to keep the bans.

    And it looks like after Alaska is in and the run off takes place in Louisiana that its going to be a plus 9 net change for republicans. Scary, even for a midterm but I do believe the USA will survive till 2016, when I hope the tide will turn.

  • 79. SethInMaryland  |  November 4, 2014 at 11:13 pm

    ikr , the dems got destroyed tonight, it seems president Obama approval really draged down dems in these close races in the last couple days but really i think it was the cowardness of the dem canidates that coast them like grimes

  • 80. DrBriCA  |  November 4, 2014 at 11:17 pm

    I remember scanning the decision and mandate for that. I do believe that while the original Bishop decision focused on just the license ban due to standing and whatnot, the final mandate after the cert denial last month cleared the way for both licensing and recognition by claiming Kitchen as precedent for both aspects.

    It'll also be interesting to see how that plays out for the 6th if Sutton swings our way… Would Ohio and Tennessee (which only brought marriage recognition decisions to the table) be able to start giving marriage licenses to same-sex couples based on a broad decision backed by Michigan and Kentucky, or will those two states still need another lawsuit to quickly tidy up the rest of the matter?

  • 81. RnL2008  |  November 4, 2014 at 11:20 pm

    I don't think the losses had much to do with the President , as much as it had to do with Marriage Equality moving at the rate that it is……scary stuff for those closeted Republicans…….and with a lot of luck the American people will be fed up with the crap this Congress will try to do that 2016….might just go the Democrats way!!

    I've long stated that STUPID should hurt…….and I also now understand why we still need the Electoral College……everyday Americans CAN'T think for themselves and blindly follow those idiots who are walking off a cliff!!!

  • 82. guitaristbl  |  November 4, 2014 at 11:21 pm

    Or it just all comes down to the very basic reason for that : low democratic voter turn out simply. I can't believe even Hagan lost honestly and all of Brownback, Scott and Walker kept their seats.

  • 83. Dr. Z  |  November 4, 2014 at 11:47 pm

    And just to be clear, there is a further distinction between the federal/state jurisdiction argument and all the previous justifications that have been offered for DOMA laws ("responsible procreation", etc.) namely: the difference between having a weak argument and having no argument at all. Responsible procreation didn't pass the laugh test. Jurisdiction does, even if it is ultimately unsupportable.

  • 84. Dr. Z  |  November 5, 2014 at 12:00 am

    A lot of it was just the numbers for this particular election cycle: more Democratic-held Senate seats were up this time, which gave the Republicans an inherent advantage. In 2016 the numbers will be reversed and the Democrats will have a built-in edge.

    Aside from that, it was just local factors rather than any national referendum on Obama. The gov race in Maine was a case in point. To the extent that there was a national trend it was probably just the usual anti-incumbent thing.

  • 85. Zack12  |  November 5, 2014 at 1:08 am

    Hagan hurt herself running away from Obama and throwing latinos under the bus, she truly did.

  • 86. Zack12  |  November 5, 2014 at 1:09 am

    Indeed, but make no mistake, a nine seat loss is nothing to sneeze at either.

  • 87. ebohlman  |  November 5, 2014 at 1:33 am

    They could do what WV did, but that relies on everything going right, e.g. no opposing county officials.

    ADDED:
    WV may have been able to do what they did because their ban was statutory rather than constitutional, unlike OH and TN.

  • 88. SeattleRobin  |  November 5, 2014 at 4:11 am

    The key thing is though, the 10th will not grant a longer stay. And since this is already settled law in the 10th, it seems unlikely even SCOTUS will grant a temporary stay, like they have in recent requests while they refer it to the full court. So weddings should proceed as soon as the current temp stay expires, even if the state decides to take every action available to them past that date.

  • 89. SeattleRobin  |  November 5, 2014 at 4:33 am

    Yes, but the truth is most people just don't care about the issue very much. The virulently anti-gay forces and us queers care enough that we have means for being alerted to breaking news. But the average Jane and Joe, whether they are for or against marriage equality, are tired of the subject and don't care about obscure hearings on temporary restraining orders.

    As an example, a longtime online friend of mine is a straight ally who is very much pro marriage equality. Yet she had totally missed the fact that gay people had been marrying in her state of Oregon for a couple months.

  • 90. Dr. Z  |  November 5, 2014 at 5:41 am

    It could have been worse. Merkley (D) in Oregon was reelected, he has turned into our best LGBT advocate in the Senate after Ted Kennedy died. His opponent supported ME, unusual for a Republican, but if Merkley had lost that would have been a bitter blow.

    And the Republicans won't have anywhere close to a filibuster-proof majority in the Senate. So as far as LGBT issues in Congress are concerned nothing much will change: we couldn't pass anything before, and we won't pass anything now.

    So while the news certainly wasn't good, it's not the end of the world. The LGBT community has survived far worse environments in Washington than this in the past.

  • 91. MichaelGrabow  |  November 5, 2014 at 5:47 am

    That is bizarre.

  • 92. JayJonson  |  November 5, 2014 at 5:59 am

    Yes, the election is a disaster. But exit polls report that those voting were in favor of marriage equality (iirc, 51% to 46%). Of course, that is a national result; and we know that there are pockets of intense opposition to marriage equality. It may be that conservatives were helped by that in the deep red states. But the Republicans who won in Massachusetts and Maryland and in the purple states did not campaign against gay rights–indeed, Baker in Mass. made much of the fact that his brother is gay and that he supports marriage equality.

  • 93. JayJonson  |  November 5, 2014 at 6:02 am

    A reply to Dr. Z above, I don't think it was the usual anti-incumbent thing, since almost all the Republican incumbents were re-elected.

    In the South, almost the entire issue was Obama. They used Obama against Hagan, Pryor, Nunn, and Landrieu (who led in last night's results, but will likely lose in the run-off in December). Unfortunately, the Democrats failed to fight back re Obama; they seemed to concede the point that Obama was a horrible president and to assert how independent they were of him. I think that is a very bad strategy because it depresses the turnout of the Obama coalition without challenging the lies the Republicans spread about the President.

  • 94. sfbob  |  November 5, 2014 at 6:05 am

    About the best one can say is that while a marriage ban amendment might come up and might even have majority support, it hasn't got even close to the 2/3 support needed to actually pass in either house.
    Nightmare #2, Obama being impeached, is the same. There may be enough support in the House to pass any nonsense they can think of but it takes a 2/3 vote in the Senate to convict. I doubt that'd happen. In fact there might not even be majority support in the Senate. It could happen, it would be a disgrace, but it won't be successful.

  • 95. JayJonson  |  November 5, 2014 at 6:09 am

    We can also take solace in the fact that the current Democratic gay and lesbian incumbents were reelected. In addition, Maura Healey won in Massachusetts to become the first openly gay state Attorney General. I am sorry to learn that Mike Michaud in Maine lost his bid to become the first openly gay elected governor. (He was defeated by the odious Lepage in a 3-person race. He probably would have won had the spoiler dropped out or had Angus King endorsed Michaud earlier than he did.)

  • 96. DACiowan  |  November 5, 2014 at 6:27 am

    The Iowa state senate stayed in the hands of the Democrats, meaning the proposed marriage referendum here is dead on arrival like the past five years.

  • 97. guitaristbl  |  November 5, 2014 at 7:09 am

    Well, at least SOME good news came out of the disaster that occured yesterday..

    Republicans are off their minds right now really. They are sure, no democrat will be elected president in the next 50 years, no democrats will control the congress again etc.
    The truth is they made big gains in the house and the senate, scary ones.

    American citizens, especially those in minorities should brace themselves because I do not trust those so called "moderates" to control or even oppose the barrage of insanity Cruz and his friends will definately bring.

    At least major issues can be fill bustered in the senate.

  • 98. guitaristbl  |  November 5, 2014 at 7:11 am

    Let's wait and see how judicial nominations will fare in this senate. It will be very tough to get any credible justice there.

    As for those 2016 elections which seats are so vulnerable for republicans that the flip in senate control is certain again ? I can think of Wisconsin and Pennslyvania, and even those are not as blue as some think (Walker was re elected for god's sake !)…

  • 99. josejoram  |  November 5, 2014 at 7:14 am

    Does Hinkle decide today?

  • 100. DACiowan  |  November 5, 2014 at 7:15 am

    Only he knows.

  • 101. ragefirewolf  |  November 5, 2014 at 7:15 am

    Plus the Republicans have no chance now to blame anyone but themselves about how they govern. That will cost them handily in 2016, where Democratic turnout will also be much higher. I am glad Obama is in the White House with a veto pen.

    Call me a weirdo, but I feel like we will end up benefiting somehow from this mess. We'll see though.

  • 102. DACiowan  |  November 5, 2014 at 7:16 am

    We still have the veto to stop anything stupid out of Congress, and out presidential electoral blue wall is still there. States like Wisconsin and yes, Iowa, that were red yesterday will be blue in 2016 when young people actually vote.

    The Supreme Court flipping is the main risk IMO, but I don't see Obama appointing anyone anti-equality and there are enough moderate Republicans to get a decent justice through.

  • 103. guitaristbl  |  November 5, 2014 at 7:32 am

    I kind of disagree. If Obama vetoes anything crazy that comes through (and he should) they will once again blame Obama and of course stick his name next to Clinton, the same tactic they used this time around, to get her down.

    I don't see any benefit out of that. Just that a large part of american citizens should brace themselves for the next two years to the very least.

    They will be all out, thirsty for more power, the GOPers. If newly elected WV republican Capito is called "Moderate", I don't want to imagine what they could characterize as extremist.

  • 104. SethInMaryland  |  November 5, 2014 at 7:37 am

    the good thing is that exit polls are showing that voters are not in love with republicans, they more angry over the gridlock that's occured and things like like isis factor in these red states

  • 105. ragefirewolf  |  November 5, 2014 at 7:41 am

    Well, we'll certainly see, won't we? :) I'm hoping for the best.

  • 106. DACiowan  |  November 5, 2014 at 7:42 am

    No decision out of the Sixth. Three more unpublished opinions.

  • 107. Silvershrimp0  |  November 5, 2014 at 7:44 am

    Hopefully we'll get something from them soon. As a TN resident, I'm eager to have this resolved.

  • 108. guitaristbl  |  November 5, 2014 at 7:45 am

    Nothing from the 6th today..Come one rule against ME to close this beautiful week..

    On the other hand I took some wild joy in the fact that Tisei was not elected in Massachussets. De Maio on the other hand is on a very tight race, where recounts will be made probably, but currently leads.

  • 109. F_Young  |  November 5, 2014 at 7:45 am

    What the GOP must do to win in 2016

    "Interestingly, gay rights have become somewhat of a gateway issue for young people. Younger Republicans are increasingly open to gay marriage, presenting the GOP with a generational split. Even if this split remains, the party needs to find points of consensus, such as ending workplace discrimination against gays."

    http://www.washingtonpost.com/opinions/ari-fleisc

    Well, one can always hope.

  • 110. mariothinks  |  November 5, 2014 at 7:48 am

    Two of the unpublished opinions today in the 6th circuit were written by judges in the ME cases (Sutton and Cook) with Daughtrey joining Cook in that case. I had a chance to read the one written by Sutton, where Justice Stranch dissented, and I have to say he was pretty inhumane. Doesn't think a prisoner with an enlarged prostate should be able to use the bathroom during count, even though it lasts about 46 minutes and the guy uses the bathroom up to 4 times in an hour. I don't think we should expect him to be compassionate with us…he was so cold in that opinion.

  • 111. guitaristbl  |  November 5, 2014 at 7:54 am

    Sutton is relentless when he writes. I have not seen one opinion from him or one he is concurring at, in favour of an employee who was fired for whatever reason, in favour of a debt owner who is in a legal dispute with a bank etc. He is truly a republican judge of the "corporations first" kind. Still waiting for him to rule in favour of an individual in a case.

    He won't rule in favour of equality. If anything, last night's results may make him feel emboldened to rule against ME.

  • 112. StraightDave  |  November 5, 2014 at 7:57 am

    MA has a long history of electing R Govs. It's not that big a deal. They tend to be pretty sane and moderate. I've lived in MA for 32 yrs and it's been about 50:50 during that time. This was not any kind of a shock at all.

  • 113. mariothinks  |  November 5, 2014 at 7:57 am

    I couldn't agree more! He would tarnish his reputation of being an a****** by ruling in our favour.

  • 114. LK2013  |  November 5, 2014 at 8:07 am

    Maybe Sutton really is a big enough dic$ that he is just delaying the 6th long enough that SCOTUS can't deal with it until next year.

    Not letting a prisoner with an enlarged prostate use the bathroom when necessary? Wow, I wonder what karma has in store for him. For that kind of cruelty, one should go straight to hell.

  • 115. RemC_Chicago  |  November 5, 2014 at 8:12 am

    From weshlovrcm: "Anyone who votes for a Republican gets just what he/she deserves."

    I said the same thing to my husband last night, thinking especially of the women in Texas who voted for Abbott. What's frustrating and infuriating about this is the sense that most of them don't know (or maybe even care) that they're being screwed, to judge by the re-election of Scott in FL and Brownback in KS. I put it down to a lack of education and awareness, no sense of history or an ability to think beyond sound bites. That, more than the actual results, is what I found the most upsetting and worrisome.

  • 116. guitaristbl  |  November 5, 2014 at 9:01 am

    One thing, Scott and especially Brownback, will fight ME now more viciously than ever. They feel emboldened for sure and now that the election is over they will show their true colours (especially Scott who could not risk appearing too anti-gay in a state with a rapidly growing percentage of population in favour of equality). Now they will go all rogue.

  • 117. Zack12  |  November 5, 2014 at 9:06 am

    Indeed they will.
    I fully expect a George Wallace in the school house door moment.

  • 118. Zack12  |  November 5, 2014 at 9:07 am

    I too think he will rule against us but is simply waiting until it is too late for SCOTUS to take it up this term.

  • 119. Zack12  |  November 5, 2014 at 9:08 am

    We'll know by the end of December if that is the case.

  • 120. ebohlman  |  November 5, 2014 at 9:09 am

    Also, in 2016 a lot of Republican-held Senate seats will be up for election; one of the reasons this year was so bad was a lot of Democrat-held seats were up.

  • 121. ragefirewolf  |  November 5, 2014 at 9:10 am

    I want to know if federal appeals courts have time limits on cases…how long can they hold onto something without acting on it?! Are they, like SCOTUS, able to hold onto cases as long as they want in perpetuity???

  • 122. davepCA  |  November 5, 2014 at 9:16 am

    As Steven Colbert pointed out, the republicans don't like Obama but they sure don't want him impeached. They would just end up with Joe Biden as president…..

  • 123. RnL2008  |  November 5, 2014 at 9:22 am

    Here's food for thought, even though women have had the right to vote for over 80 years, it WASN'T until roughly 1996 that women ACTUALLY started voting for themselves instead of inline with their husbands and I think we still see such actions going on today…….any woman who is educated and a free thinker KNOWS that voting for misogynistic azzholes will only set woman's rights back, not gain them and we have seen this happen in places like Texas and other States who view women as being barefoot and pregnant per say!!!

    In my opinion, ANYONE who votes for these idiots, thinking that somehow they will do their jobs and focus on the REAL issues at hand is as much an idiot as the politicians themselves are!!!

    We saw the same thing happen in 2010 and we see it now because these folks just keep doing the same thing and they expect different results……guess what folks, POLITICIANS don't care about ANYONE or ANYTHING except themselves…….and until we get away from this draconian 2 party system, this Country will NOT see any real change………hopefully the younger generation sees the writing on the wall…….maybe not, but until that time….we will continue to go in circles and NOTHING will truly get done!!!

  • 124. hopalongcassidy  |  November 5, 2014 at 9:30 am

    It won't matter anyway…McConnell won't be about to let any of Obama's appointments anywhere near a vote.

  • 125. guitaristbl  |  November 5, 2014 at 9:49 am

    Well I am trying the math here but they fail me honestly…What seats are up for re election in 2016 ? In this election there were both seats in Oklahoma and South Carolina, one in Georgia and Louisiana, one in Alabama, one in Kentucky etc…Which seats are democrats hoping to get in 2016 ? One in Wisconsin and one in Pennsylvania for example ? Won't be enough. And the dems do have vulnerable seats in Missouri, North Dakota and Indiana as well, two of those won because the republican nominess were absolute nutjobs…

  • 126. Elihu_Bystander  |  November 5, 2014 at 9:54 am

    “…sure don't want him impeached.”

    I’m sure you used "impeached" in the generic sense, as many people do. However, keep in mind, to impeach means to bring to trial. It does not mean to remove from office. President Clinton was impeached; he was not convicted nor removed from office.

  • 127. wes228  |  November 5, 2014 at 10:20 am

    In 2016 we only have Democratic incumbents in fairly safe blue states, with vulnerable Republicans in Illinois, Iowa, Wisconsin, Ohio, Pennsylvania, Florida, and New Hampshire.

    This year, it was all the Senators who rode in on Obama's 2008 coattails that were up for reelection. In 2016, it will be all the Senators who rode in on the 2010 Tea Party wave that will be up for reelection.
    http://en.wikipedia.org/wiki/United_States_Senate

  • 128. DACiowan  |  November 5, 2014 at 10:22 am

    NH, PA, OH, WI, IL, IA, and runs at FL, AZ, NC, IN, MO are good targets for the Dems in 2016.

  • 129. FredDorner  |  November 5, 2014 at 10:24 am

    LOL…on pg 13 they argue that rational basis review should apply in a circuit which just used strict scrutiny to rule for marriage equality.

  • 130. guitaristbl  |  November 5, 2014 at 10:42 am

    So in the best case scenario that democrats win all these seats it is a plus 7, which means that given that the new senate is 54-44+2 in favour of the GOP(given that the independents continue to caucus with the democrats), that goes to a 51+2-47 in favour of the dems…

    Seems really marginal and I am not sure Portman or Kirk are that vulnerable, they are pretty moderate thus electable in their respective states or Grassley from Iowa for that matter. It will take very good opponents.

    Plus Rubio losing his seat in Florida ? Highly unlikely…

  • 131. guitaristbl  |  November 5, 2014 at 10:50 am

    I don't know if McCain will run again but AZ seems unlikely, same as NC, IN,MO.In a presidential election after 8 years of democratic presidency to expect 4 quite reliably red states to elect democrats is quite unrealistic imo.

  • 132. DACiowan  |  November 5, 2014 at 11:26 am

    If people my age (22) turn out don't write those states off. They may be reddish purple but they are not 60/40 splits like Kansas or Alabama either. Honestly I see this election as a minor and expected set back on the path to a progressive revival in 2016.

  • 133. Zack12  |  November 5, 2014 at 11:47 am

    One more problem for 2016, Democrats are going to need to find candidates that can win state wide and not fall flat on their faces, a tall order.

  • 134. guitaristbl  |  November 5, 2014 at 11:53 am

    When even Maryland elects a republican governor, I tend to be less and less optimistic. One thing is for sure : Tough years are coming and what happened yesterday will most likely affect ME in one way or another.

    P.S. I thought Kansas was supposed to turn kind of purple…That did not work out this time around I am afraid…

    Btw do we know what percentage of voters actually voted yesterday ? I read somewhere something about 20 % or so..

  • 135. Zack12  |  November 5, 2014 at 11:57 am

    Brown ran a flawed campaign in MD and was made to pay for it.
    If Democrats can lick their wounds, there is no reason they can't bounce back in two years.

  • 136. guitaristbl  |  November 5, 2014 at 12:04 pm

    Well in 2 years Obamacare will still rally the GOP base (McConnell won't be able to repeal it anyway till then..) and Clinton will be constantly linked to Obama, throughout the campaign.

    Our best chance is GOP to get drowned in its own internal struggles with the establishment fighting the tea party and things getting bitter. Hopefully these differences will show during these two years as well.

    The one good thing is that the tea party should not be too happy with yesterday's results or the fate they met during the republican primaries.

    IMO though this is a very bad point to start for the democrats. And I doubt they will find the right candidates to take enough seats in order to retake the senate. It will take the GOP picking candidates as bad as those in 2012 imo in certain states.

    But I fear we may see an immediate effect on marriage equality. Let's see how far the federal marriage amendment will get this time around. Cruz will most definately bring it, especially after such victory for the GOP.

  • 137. flyerguy77  |  November 5, 2014 at 12:10 pm

    nowhere……… marriage amendment will not pass

  • 138. guitaristbl  |  November 5, 2014 at 12:13 pm

    They will fillbuster it of course. But even the fact that it may again come to the floor of either chamber, is a sign of how bad yesterday's results were even for LGBT rights, even if they were not on the ballot and were downplayed by republicans significantly..

  • 139. wes228  |  November 5, 2014 at 12:23 pm

    I would not necessarily assume that Mitch McConnell will allow it to come to the floor. It's still a toxic issue for the Republicans. This election did not really focus on this issue at all (unlike 2004).

    If it were put to a vote in the Senate, it might not even get a simple majority support, which would be incredibly embarrassing to the party.

    I think for the next two years, the Republicans are going to put on a good face to really show the American people how "good" they are at governing, to prepare for 2016. No more reactionary temper-tantrums. At least I hope not.

  • 140. Zack12  |  November 5, 2014 at 12:24 pm

    I agree, especially if Joe Manchin of WV and Angus King of ME switch parties.

  • 141. tornado163  |  November 5, 2014 at 12:24 pm

    Constitutional amendments can't be filibustered because they require a 2/3 vote in both the House and Senate. So if there's 67 Senate votes for an amendment, there are also 60 votes to break a filibuster. But there certainly aren't 67 votes for the marriage amendment in the Senate.

  • 142. StraightDave  |  November 5, 2014 at 12:25 pm

    A constitutional amendment needs a 2/3 majority vote by both houses. They'll never come close and probably piss off a lot of moderates by even trying.

  • 143. Randolph_Finder  |  November 5, 2014 at 12:37 pm

    Agreed. As long as we have 34 Senators who believe in ME, the amendment isn't even leaving the Congress. And it isn't getting 3/4 (38 states) to pass. The thirteen States that there is *no* way it is passing both houses of the legislature include:
    New England except NH (5), NY, NJ, MD, DE, IL, CA, OR, WA, HI

  • 144. guitaristbl  |  November 5, 2014 at 12:45 pm

    Is that possibility ?

  • 145. wes228  |  November 5, 2014 at 12:48 pm

    I don't see Angus King switching parties. He's pretty liberal.

  • 146. ranjitbahadur0  |  November 5, 2014 at 12:50 pm

    For all those gnashing their teeth and ripping their clothes, lets remember that 2 years (or 4) is a super long time in politics.
    After all it was "only" six years ago when President Obama was elected and the Democratic party held supermajorities in BOTH the House and Senate that everyone was claiming that the Republican party was a relic of the past with a non-existent future.

    Also, people everywhere (and especially on this site) continue to give too much importance to Party affiliation.
    A Republican senator from Massachussetts or California (Stranger things have happened) will STILL be from MA or CA and unlikely to hate on the minorities. Similarly while WV, AR, and LA (after the runoffs) may oust their Democratic Senators, they were hardly ringing champions of gay rights anyway.

  • 147. sfbob  |  November 5, 2014 at 12:51 pm

    I hope you're right and I'm almost willing to bet that both McConnell and Boehner feel the same way. I don't think either one wants a repeat of last year's shutdown, or anything even remotely resembling that. It would cost Republicans dearly. Still, they couldn't keep their more unhinged members in line back then so who's to say for sure what'll happen.

    Right now the government is operating on a continuing resolution that expires on December 12. I hope to hell nobody tries to derail the government before the beginning of next year. I have my own very selfish agenda. I will be retiring from the federal government at the end of December (actually January 2nd) and I don't want that held up.

  • 148. guitaristbl  |  November 5, 2014 at 1:03 pm

    No one said that Landrieu or Pryor were huge supporters of gay rights (at least publicly, because they faced hostily electorate towards these issues). It's about who is controlling the legislative agenda though. And of course there are other issues than marriage equality.

    But you are right to a certain degree. 2010 was a a disaster (probably bigger than this one) for the democrats and they still recovered in 2012. Can the same thing happen in 2016 ? It remains to be seen.

    It should be noted though that state republican parties' platforms in northeast states still oppose same sex marriage, as do the majority of republican representatives in these states, so support should not be taken for granted just because someone comes from a state where the population supports ME, or because one senator like Collins supports LGBT issues. The NH republican senator does not for example.

  • 149. guitaristbl  |  November 5, 2014 at 1:06 pm

    Manchin could be dangerous though…Knowing that he is the least liberal member of the senate and if we realize that WV is turning more red day after day, it's not out of the question..

  • 150. Zack12  |  November 5, 2014 at 1:19 pm

    Indeed she doesn't but if signs on to any anti-gay leglisation in the next two years, it will be a very unwise move for her.
    2014 was an off year and the Democrat in NH won, she would be stupid to do that in a presidential election year.

  • 151. Zack12  |  November 5, 2014 at 2:05 pm

    I fully expect him to switch sooner versus later.

  • 152. Zack12  |  November 5, 2014 at 2:06 pm

    No, at some point the option will have to come out but they can certainly stall for a long time.

  • 153. Zack12  |  November 5, 2014 at 2:16 pm

    http://www.wibw.com/home/headlines/Same-Sex-Marri
    Kansas is appealing its ruling to the 10th circuit. Let's hope they deny the appeal in short order.

  • 154. wes228  |  November 5, 2014 at 3:06 pm

    They can't deny the appeal. Hopefully they will deny the petition for an initial en banc.

  • 155. Margo Schulter  |  November 5, 2014 at 3:18 pm

    RnL2008, your observations on the last 94 years since the Nineteenth Amendment in 1920 established women’s suffrage nationally invite lots of reflections. I think of women like Representative Barbara Jordan from Texas who was a leading figure on the House Judiciary Committee in the near-impeachment of President Nixon (who resigned), a Lesbian as it turns out; or Elaine Noble, elected in that same year of 1974, who served in the Massachusetts Hosue of Representatives the first out Lesbian.

    But the question you raise is when voting independently became a prevailing pattern for women in general, as opposed to those of us who identified as feminists, or more specifically Lesbian feminists. I can think of women in the 1980’s like Representative Pat Schroeder of Colorado or Senator Barbara Mikulski of Maryland who for me very much stand for a strong feminist viewpoint.

    Anyway, a bit of good news is that Senator Mikulski is still in office for us.

  • 156. Ryan K (a.k.a. KELL)  |  November 5, 2014 at 7:52 pm

    Both were reported this evening as remaining either Democrats or caucusing with Democrats.

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