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West Virginia same-sex marriage ban struck down

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A federal judge has ruled in favor of same-sex couples in West Virginia who are seeking the right to marry. (The judgment is here.) West Virginia is in the Fourth Circuit Court of Appeals, so it’s bound by Bostic v. Schaefer. That led the court to rule against the ban:

This Court explicitly acknowledged the likely binding result of the case which arose in this Circuit, discussed in more detail below, and stayed the proceedings here pending its resolution. Now, that binding precedent and the acceptance by key state and county officials of its effect provide a clear blueprint for this Court’s ruling.

The right to marry is a fundamental right, giving every individual the opportunity to exercise choice in this important relationship. As such, the government must not interfere in that choice unless it demonstrates compelling state interests and carefully tailors its restrictions to protect those interests. While some may continue to hold a religious or moral objection to same-sex marriage, governmental restrictions on individual rights must be justified by more than simply strongly, or even widely, held opinions or traditions. Use of government power to prohibit the exercise of the right to marry fails to meet this test.

West Virginia had already been issuing marriage licenses to same-sex couples, beginning after the Bostic decision came down.

Thanks to Equality Case Files for these filings

164 Comments

  • 1. davepCA  |  November 7, 2014 at 1:46 pm

    Excellent!

  • 2. flyerguy77  |  November 7, 2014 at 1:57 pm

    6th Circuit is being smackdown by other courts. Luving it!!!!

  • 3. guitaristbl  |  November 7, 2014 at 2:06 pm

    Good, good ! A decision striking down the ban was needed. You can't count on the good will of officials not to enforce the law, especially in a fast changing electoral landscape in states like West Virginia.

    Every decision in favour of equality counts, especially after the decision from the 6th..!

  • 4. RnL2008  |  November 7, 2014 at 2:08 pm

    Sweet…..did the Judge issue a stay?

  • 5. nfernan130  |  November 7, 2014 at 2:14 pm

    Well same sex marriage is already legal in West Virginia because the attorney general allowed it ever since the Supreme Court declined to review the 4th circuits decision. Therefore, there is no effect from the ruling that can be "stayed".

  • 6. hopalongcassidy  |  November 7, 2014 at 2:14 pm

    Doesn't look like it, http://www.scribd.com/doc/245871863/3-13-cv-24068

  • 7. brandall  |  November 7, 2014 at 2:14 pm

    Nope. "Plaintiff’s Motion and Amended Motion to Lift Stay and Enter Judgment (ECF No. 131, ECF No. 132) are GRANTED"

  • 8. Jaesun100  |  November 7, 2014 at 2:18 pm

    Good way to end the week.

  • 9. franklinsewell  |  November 7, 2014 at 2:23 pm

    OH MAN – Monte Neil Stewart will NOT go away. He just filed a citation of supplemental authority in the doomed request for rehearing en banc on behalf of his clients without standing: the Nevada Coalition for the Protection of Marriage: http://cdn.ca9.uscourts.gov/datastore/general/201

    Governor Sandoval has yet to file his response to the petition for rehearing. By my count he has until November 11. He says he will oppose.

  • 10. DACiowan  |  November 7, 2014 at 2:44 pm

    Meanwhile, Kansas is trying for an en banc hearing: http://www.scribd.com/doc/245876629/14-3246-Kansa

  • 11. guitaristbl  |  November 7, 2014 at 2:45 pm

    I hope the 9th decides on those en banc requests from the coalition, Idaho and Alaska quickly. Now with the ruling from the 6th, we need some finality to those cases, at least as far as the circuit level is concerned, in order to focus on the SCOTUS petitions. Idaho AG is filling one as well (at least he said he would) so lets see how that goes as well. But lets just get out of the circuits now and focus on SCOTUS.

  • 12. franklinsewell  |  November 7, 2014 at 2:48 pm

    Guitarist – The November 11 date is the date for responses to the requests for rehearing en banc in both the Idaho and Nevada cases, if my math is correct.

  • 13. franklinsewell  |  November 7, 2014 at 2:52 pm

    7 Dems, 5 Reps on the 10th. My prediction is: Initial Hearing En Banc, DENIED.

  • 14. netoschultz  |  November 7, 2014 at 2:54 pm

    And one of the republicans has already voted with us in Utah and Oklahoma

  • 15. guitaristbl  |  November 7, 2014 at 2:55 pm

    Well there wasn't much else they could do, same as the Alaska officials in the 9th. If it does not go for initial en banc, it's doomed in a 3 judge panel.

    Just today I appreciated that in a court (the 10th) with a considerable majority of democratic appointees, ME survived a panel with 2 republican appointees.

    I would say chances for en banc are extremely slim.

  • 16. Jaesun100  |  November 7, 2014 at 3:01 pm

    Off topic and not sure if anyone posted on this…….. http://www.lgbtqnation.com/2014/11/hearing-set-fo

  • 17. Ragavendran  |  November 7, 2014 at 3:09 pm

    Yup. This case is on a super-expedited schedule. If the judge rules quickly, there might be enough time to consolidate the resulting appeal with the ones from TX and LA at the Fifth Circuit for oral argument in January. Or at least have the same panel assigned, but hear argument later in January (like Utah and Oklahoma in the Tenth, which were heard by the same panel a week apart). But they'll all surely petition for cert before judgment once SCOTUS grants cert in an ME case.

  • 18. robbyinflorida  |  November 7, 2014 at 3:10 pm

    Sandoval should include Judge Daughtrey dissent in his reply.

  • 19. Zack12  |  November 7, 2014 at 3:12 pm

    The judge had no choice and the ruling in the 6th doesn't change that.
    They are bound by Bostic until SCOTUS says otherwise.

  • 20. Jaesun100  |  November 7, 2014 at 3:25 pm

    I love what the 10th did to Kansas ……No Stay…..and appeal all you want ……
    Federal Court Clears Way For Gay Marriage In Kansas http://www.huffingtonpost.com/2014/11/07/gay-marr

  • 21. Jaesun100  |  November 7, 2014 at 3:30 pm

    Do you think it's a strong case though I mean one that would cover everything it just seems specific to certain things…..I don't want us to get "sloppy" with these cases because were in a rush and us not get the right case to the Supremes ……in these other states we should be using the same formula as the earlier circuit cases and even "buffing" up our case/evidence with every win….I guess just concerned we get too comfortable and forget the importance of getting the right issue and perfect case in front of the Supremes we don't want any loop holes standing etc…..like prop 8…

  • 22. RnL2008  |  November 7, 2014 at 3:32 pm

    Good to know….need to add another Star to my flag!!!

    33 States<3

  • 23. Brad_1  |  November 7, 2014 at 4:02 pm

    Monte Stewart's flying circus.

  • 24. seannynj  |  November 7, 2014 at 5:03 pm

    This should be another win for us. The judge is black and an Obama appointee.

  • 25. flyerguy77  |  November 7, 2014 at 5:12 pm

    Very interesting development of Kansas. No stay means happy married couples. It sounds like 10th Circuit Court knows en banc will be waste of time.

  • 26. davepCA  |  November 7, 2014 at 5:26 pm

    And he would be in charge of the 'Ministry of Silly Filings'.

  • 27. jdw_karasu  |  November 7, 2014 at 5:37 pm

    Yep… it's 8-4 at least thanks to Holmes.

  • 28. jdw_karasu  |  November 7, 2014 at 5:47 pm

    This could be pretty cool. The 5th would have bans struck down in TX and Mississippi while upheld in LA.

    Probably won't have any impact on how the Circuit rules unless we get an amazing draw in for the panel. Now *that* really would be a hoot if we "win" in the 5th, forcing the Bad Guys to try for an en banc at the same time the 6th is heading to SCOTUS. Too much too root for, but it would be a riot if the 5th struck down bans right before SCOTUS took up the 6th and stayed everything. :)

  • 29. jdw_karasu  |  November 7, 2014 at 5:54 pm

    I think we might be able to move Kansas over into the ME column. There will be no en banc, and SCOTUS isn't going to do anything to the 10th given Kitchen and Bishop.

  • 30. Ragavendran  |  November 7, 2014 at 6:18 pm

    The attorney on our side in this case is Roberta Kaplan, who was Edie Windsor's attorney in the DOMA case. She is very capable. But I don't see this case as the one to be chosen by SCOTUS though – it'll be DeBoer. Just that this case gets prepared and as far ahead as possible before everything comes to a grinding halt, so that when SCOTUS eventually rules, resolutions are quick, instead of being dragged along like we're seeing now in SC/MT.

  • 31. rob2017  |  November 7, 2014 at 6:21 pm

    Ok , may be a dumb question, but my paranoia wont let this go: Since we now have a circuit split after the ruling in the Sixth, are the SCOTUS decisions on Oct 6 in jeopardy if they grant cert on Sutton and Co.? In other words, can I still get married in VA in a few months, without fear that SCOTUS granting cert on the Sixth will somehow void or put a stay on ME in VA? O

  • 32. Fledge01  |  November 7, 2014 at 6:22 pm

    Kitchen and Bishop were before the circuit split. Regarding the split, I still feel that the longer we wait for SCOTUS to address the split the better, more time for more states to have ME and the harder it would be to undo them. Perhaps a the plaintiffs in the 6th might want a delay and request a full 6th court review. By the time the case gets to SCOTUS, perhaps in 2016, the issue won't be about marriage equality as much as it is about states needing to recognize the marriages that have been taking place for over a year in most of the country. I know its not fair and hurts families to wait, but my eye is on the long-term picture.

  • 33. RnL2008  |  November 7, 2014 at 6:34 pm

    No, those Circuits can not be re-appealed as I understand it..

  • 34. Rick55845  |  November 7, 2014 at 6:34 pm

    I understand your reasoning, but delaying things at this point also increases the risk of a change in the composition of SCOTUS that might not work in our favor.

    Also, the harm being done to us in the remaining non-equality states is substantial. That harm also falls on any gay or lesbian married couples from states that permit or recognize their marriages whenever they travel to a non-equality state.

  • 35. RnL2008  |  November 7, 2014 at 6:35 pm

    I disagree……we DON'T want any more delays…….this issue NEEDS to be resolved and sooner rather than later!!!

  • 36. Jen_in_MI  |  November 7, 2014 at 7:09 pm

    Could not disagree more – and all four states have decided to appeal directly to SCOTUS, so obviously their legal teams don't feel going back to the 6th would do anything but cause additional unnecessary delays.

  • 37. Jen_in_MI  |  November 7, 2014 at 7:10 pm

    Denial of cert = DONE.

  • 38. wes228  |  November 7, 2014 at 7:25 pm

    Your marriage would only be in jeopardy if they take the case and then affirm the 6th Circuit (upholding the bans). Given the legal chaos that would ensue…I think it's safe to assume that if they were going to uphold a same-sex marriage ban, they would have done so before these rulings got implemented in all of these states.

  • 39. RnL2008  |  November 7, 2014 at 7:25 pm

    I totally agree with you and the plaintiffs……..we want a ruling this term from SCOTUS……and I think a huge smack down just might be coming….at least I hope so!

  • 40. RnL2008  |  November 7, 2014 at 7:35 pm

    Unless a marriage was falsely entered into…no court can undo it, not even if SCOUTS was to agree with the ruling from the 6th…….and frankly……in my opinion….that's simply NOT going to happen……and we need to STOP using terms like "GAY" or "SAME-SEX" marriage……….all that we are fighting for is the RIGHT to marry the person of our choosing WITHOUT gender restrictions……there has NOT been one "GAY" or "SAME-SEX" marriage license issued from ANY State.

  • 41. wes228  |  November 7, 2014 at 7:41 pm

    It's not a guarantee that same-sex couples would be able to keep their marriages. There are three different outcomes: 1) the marriages are annulled because they were never validly entered into to begin with (the marriage ban was always legal and thus in force all along), 2) the marriages will be considered legal for the time before the SCOTUS's ruling but no longer recognized going forward (same-sex couples won't have to undo things done prior to the SCOTUS ruling), or 3) the same-sex couples who were married keep their marriages but the state will not recognize or perform any new ones.

    I do think #3 would be the most likely outcome but there would be states who would try to do #1 or as a compromise #2. This would set off another round of lawsuits.

    Yes I realize that we're not fighting for "same-sex marriage" but it's just so much more efficient to say than "marriage irrespective of the sex of the parties bablablablablabla."

  • 42. RnL2008  |  November 7, 2014 at 7:52 pm

    I NOT only disagree with your comment…….I seriously doubt SCOTUS would annual marriages that were legal, valid and recognized before they granted cert with regards to the ruling from the 6th, which simply ISN'T going to happen!!!

    Kenneth Starr tried this angle in March of 2009 while arguing that Prop 8 was a proper Amendment…..and the Justices of the CSSC basically tossed that notion right out the window……..if the Courts have allowed Same-Sex couples the right to marry and the couples then exercised that right……..then there is NO way that the marriages can be ruled anything else but LEGAL, valid and MUST remain recognized!!!

    And it DOESN'T matter that you think it is more efficient to say "GAY" or "SAME-SEX" marriage…..by using these terms…idiots like Sutton and other anti-gay proponents try and use these words to imply that we are seeking a NEW and SPECIAL right instead of the same FUNDAMENTAL right that opposite-couples have….and we DON'T need to use those terms, nor in my opinion should we EVER have used those terms.

  • 43. CowboyPhD  |  November 7, 2014 at 8:11 pm

    Couldn't agree more!

  • 44. sfbob  |  November 7, 2014 at 8:13 pm

    Of the 18 states currently without marriage equality; there is potential in only three. I suspect that marriage equality will be coming to KS on Tuesday; South Carolina not long after and Montana sometime later. Other than these three, in the remaining circuits without binding rulings there is zero possibility of any change for the better unless and until there are appeals courts rulings overturning their bans and assuming those rulings don't end up in the Supreme Court.

  • 45. RnL2008  |  November 7, 2014 at 8:15 pm

    :-)

  • 46. RnL2008  |  November 7, 2014 at 8:18 pm

    But that's not necessarily true……Missouri is issuing marriage licenses to Same-Sex couples and could be number 34 before South Carolina and Montana…..but we will have to wait and see possibly.

  • 47. franklinsewell  |  November 7, 2014 at 8:24 pm

    But the plaintiffs are not going to delay and request a full court review; they've already so stated.

  • 48. MichaelGrabow  |  November 7, 2014 at 10:47 pm

    Are you including MO or KS? It's 32+DC right now.

  • 49. RnL2008  |  November 7, 2014 at 10:53 pm

    Well, we didn't have Kansas and now we do, which would give us 33 and Missouri would make 34.

  • 50. RnL2008  |  November 7, 2014 at 10:56 pm

    Stewart should be slapped for that garbage……..he knows that he has NO chance at an en banc hearing and he also knows that SCOTUS is NOT going to grant him a stay or an appeal based on what some moron stated in a ruling that is more than likely going to be tossed!!!

    Stupid CAN'T be fixed and it should really hurt!!!

  • 51. RnL2008  |  November 7, 2014 at 10:59 pm

    Because there was NO circuit split when the 9th made their rulings…….all that these idiots can do is waste the courts time…..I DON'T believe that the 9th will grant the en banc hearing and I DON'T believe SCOTUS is going to entertain those folks either.

  • 52. MichaelGrabow  |  November 7, 2014 at 11:01 pm

    Kansas is stayed until 11/11.

    Edit: …but yes, it does certainly look like they'll be 33.

  • 53. Mike_Baltimore  |  November 7, 2014 at 11:55 pm

    I was reading the 6CA rules on en banc hearings – in short, they are rare in the 6CA and getting more rare.

    From experienced 6CA attorneys who are members of the Association of Corporate Counsel (http://www.lexology.com/library/detail.aspx?g=615593fa-2bbb-4176-b5e5-b3e92da6e7a5):
    ". . . Sixth Circuit Rule 35 (which parallels Federal Appellate Rule 35) emphasizes the extraordinary nature of a petition for rehearing. It specifically provides that an en banc petition is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent. What this means is that error correction (of fact or law) is not a matter for rehearing en banc (though it could be a matter for a panel rehearing, which is governed by Rule 40)."

    In my view, the major precedent-setting error of 6CA is reliance on 'Baker' as precedent, but if appealed directly to SCOTUS, the 'Baker' question can be answered.

    In effect, except for 'Baker', requesting an en banc hearing would mean nothing but a delay in the case. This is something, especially with the results of last Tuesday's elections, that I don't think any attorney 'worth their salt' and for ME would want to risk.

    Besides, SCOTUS can clear up the 'Baker' issue if it wants it cleared up (and as I've stated before, I hope if nothing else besides immediate ME in all the US, SCOTUS makes it exceedingly clear that 'Baker' is NOT precedent anywhere). 'Baker' will be a major point of SCOTUS discussions (even if not included in the SCOTUS ruling) since the 6CA ruling was mainly based on 'Baker'.

  • 54. Mike_Baltimore  |  November 8, 2014 at 12:02 am

    ME is shorter, and says it all – Marriage Equality.

    Marriage is marriage, and we are fighting for Equality in ALL marriages.

  • 55. DavidAZ1  |  November 8, 2014 at 1:25 am

    And lets not forget Arkansas waiting in the wings for a state SC hearing on 11-20-14. #35?

  • 56. Dr. Z  |  November 8, 2014 at 4:16 am

    But so is Childs in SC.

  • 57. Dr. Z  |  November 8, 2014 at 4:33 am

    That's about the size of it, but #3 would raise many more questions that would continue to tie up the courts for years. Let's say SCOTUS upholds the 6th but also says that same sex couples who already married get to remain married. Are they then implicitly saying that those couples are married everywhere, even in places that don't recognize them today? How can SCOTUS split this baby without running squarely into an equal protection contradiction? Married is married. To allow one state to refuse to recognize a valid marriage from another state based on culture-war justifications is to open Pandora's Box.

    #1 is equally unworkable. By allowing the decisions from the 4th, 10th and 9th to stand, those cases were ended. The marriages concluded there were valid based on the law prevailing at the time; it's not like in Utah after Kitchen, when appeals were still pending. So annulment is off the table.

    #2 is the most nightmarish of all, because it would create a precedent for state-mandated divorce. That has never happened before and it would truly put us into legal terra incognita.

  • 58. Sagesse  |  November 8, 2014 at 5:39 am

    I've always thought the California logic was sound, even if it wasn't decided in a federal court. And so far (correct me if I'm wrong), no same-sex marriage that was legal when it was performed (pursuant to a court ruling that had not been stayed) has been undone. The reasoning is that, legally, people need to have certainty that if they do something that is legal and permitted, no change in the law can go back and undo it… the result would be chaos. There was a lot of huffing and puffing about the marriages in Utah, for example, but the only reason to have a stay is to prevent the decision from going into effect. Without a stay the decision stands… with a stay it does not.

    And while we're on the subject of terminology, I consciously use marriage equality, and for the most part it works. I will occasionally use the term 'same sex marriage' to describe… a same sex marriage (as I did in the paragraph above), but the right is marriage equality.

  • 59. wes228  |  November 8, 2014 at 6:00 am

    I agree that the ultimate outcome of a court case would be #3, but if the Supreme Court affirms the 6th Circuit they would not be able to say in the same ruling the fate of the other marriages because that issue would not be before them.

    There might also be a distinction between the Michigan marriages and the other marriages: some couples did get married for a brief period of time in Michigan but before all the appeals were exhausted (unlike in Utah and the other states where those cases came to an ultimate conclusion).

    Then there also exists the possibility that many of these states pass a law transforming these marriages into "separate-but-equal" civil unions. The federal government may still be bound to recognize them as marriages (for federal benefits) but in the eyes of the state they will be referred to as "civil unions." Because this does not complicate the legal nature of their union, it just merely differentiates between same-sex and opposite-sex unions (with same-sex couples arguing that that differentiation casts a stigma on them), cue yet another round of lawsuits…

    As I was saying before…the Supreme Court understood the legal chaos that would ensue if they were to uphold a marriage ban after denying cert. If they were going to uphold a marriage ban they would have done so without letting them go into effect.

  • 60. JayJonson  |  November 8, 2014 at 6:20 am

    Although the West Virginia decision confirms what we already know and simply makes de jure what is already de facto, it is nevertheless worth a read.

    My favorite part of the opinion comes in a footnote where Judge Chambers boldly criticizes the Sixth Circuit opinion. He writes that the approach of the Sixth Circuit majority "fails to recognize the role of courts in the democratic process. It is the duty of the judiciary to examine government action through the lens of the Constitution’s protection of individual freedom. Courts cannot avoid or deny this duty just because it arises during the contentious public debate that often accompanies the evolution of policy making throughout the states. Judges may not simultaneously find a right violated yet defer to an uncertain future remedy voluntarily undertaken by the violators."

    Precisely.

    Judge Chambers did not have to write so pointedly about an Appellate Court decision, so I am impressed that he did so.

  • 61. guitaristbl  |  November 8, 2014 at 6:29 am

    Excellent passage that hits the essence of Sutton's nonsense : while he expressly recognizes the harm done to same sex couples and their children he points to an uncertain and unstable public consensus to grant them their rights. That's just not what the courts are there to do, the 10th circ made that clear. The courts cannot duck legal questions because public opinion is not settled on an issue.
    And as Daughtrey wrote the founding fathers knew the two branches of the government are driven by public opinion and public prejudice many times, that's why the role of the checks and balances of the judiciary is so important.

  • 62. JayJonson  |  November 8, 2014 at 6:31 am

    Re Fledge01's suggestion that we wait before going to the Supreme Court: Absolutely not. Our majority on the Supreme Court is precarious. If anything should cause Kennedy, Ginsburg, Breyer, Sotomayor, or Kagan to step down from the Court, we will not get the ruling we need. The Republican majority in the Senate will not affirm anyone President Obama would nominate to SCOTUS. And a 4-4 tie in an 8-member SCOTUS, which would be likely, would UPHOLD the Sixth Circuit and encourage anti-gay forces to continue to fight against gay rights generally and the right to marry in particular. We need to hope that SCOTUS grants cert to DeBoer as soon as possible and schedule it for this term.

  • 63. guitaristbl  |  November 8, 2014 at 6:31 am

    According to pinknews Kansas is asking SCOTUS to halt marriages in the state. I am very anxious about this one I have to admit. Yes it is settled law in the 10th for now, but will the fresh split influence the result ?

  • 64. RQO  |  November 8, 2014 at 6:31 am

    If you are familiar with Dr. Seuss, perhaps you'll laugh when I say Monte reminds me of Marvin K. Mooney.

  • 65. DACiowan  |  November 8, 2014 at 6:43 am

    I doubt it; the Tenth has ruled and SCOTUS only wants to decide what they absolutely must (the out of step Sixth).

  • 66. RQO  |  November 8, 2014 at 6:45 am

    I appreciate that you think carefully about every which way the weasels can wiggle. Believe me, they may be smoking dope but they're thinking about it too.

  • 67. ragefirewolf  |  November 8, 2014 at 6:53 am

    Twice now, even. It's great.

    It's like an FU SUTTON. Haha.

  • 68. RemC_Chicago  |  November 8, 2014 at 7:12 am

    'Cept that Marvin is smarter and better looking.

  • 69. RemC_Chicago  |  November 8, 2014 at 7:21 am

    I think "marriage equality" does the job nicely.

  • 70. ragefirewolf  |  November 8, 2014 at 7:22 am

    I'm sure that makes you smile :)

  • 71. ragefirewolf  |  November 8, 2014 at 7:45 am

    They may not tip their hand until after the 6CA plaintiffs officially file their petition for cert.

  • 72. RnL2008  |  November 8, 2014 at 8:33 am

    That is correct, if you read Strauss vs Horton(May 2009) the CSSC stated that if they as a court acknowledged the right to marry then how could the couples NOT be married basically. Starr tried to basically say that the marriages that happened prior to the passage of Prop 8(which by the way includes mine) should NOT be nullified, but the State should NOT have to recognize them and he was told that Prop 8 DIDN'T go retroactive, just prevented marriages going forward!!!

    I hope this helps:-)

  • 73. RnL2008  |  November 8, 2014 at 8:39 am

    Sorry, but the marriages that have been already solemnized are legal, valid and MUST be recognized and they can NOT turn them into something else WITHOUT creating a HUGE chaotic mess……now, as it had happened here in California…..if a couple married like in Massachusetts in the same time frame as was allowed here in California(i.e. between June 16,2008 and November 4,2008) then California would recognize that couples marriage as a legal marriage, BUT if they married after the 4th of November, then the marriage would be recognized as a Domestic Partnership…….thankfully that is NO longer the case……..but unless SCOTUS is going to convert ALL legal marriages to Civil Unions……they just CAN'T pick and choose one marriage over another!!!

  • 74. RnL2008  |  November 8, 2014 at 8:42 am

    I totally agree with ya and the other issue is why can this couple from say Colorado get married, but in Michigan they can't…….again, it would create more issues than SCOTUS would want to deal with…….they DON'T want this circuit split now and they hinted hard to the 6th, but now that they have it……they will do what they did in Loving……get it done where they can focus on other issues like making corporations be people!!!

  • 75. RnL2008  |  November 8, 2014 at 8:46 am

    It's more than likely simply NOT going to happen……SCOTUS has ALREADY denied cert in the 4th, 7th and 10th……..and though reading several posts here…..or somewhere else, only those States in the 9th can ask for intervention by SCOTUS because the 9th ruled after SCOTUS did, but there is nothing SCOTUS is going to do with the 10th….Kansas is just playing to their conservative idiots!!!

  • 76. Dann3377  |  November 8, 2014 at 9:19 am

    I just have to say this. I may have a pretty simplistic view on all of this or call me crazy but IMO the Supreme Court is NOT going to take away, undo, nullify, void or whatever you want to call it, lawful marriages that they gave the green light on themselves.

  • 77. StraightDave  |  November 8, 2014 at 9:31 am

    This is the most telling and blunt anti-Sutton quote:
    "While some may continue to hold a religious or moral objection to same-sex marriage, governmental restrictions on individual rights must be justified by more than simply strongly, or even widely, held opinions or traditions. "

    Sutton seems to believe the exact opposite… so un-American.

  • 78. David_Midvale_UT  |  November 8, 2014 at 9:45 am

    "Two Stick" Monte is strongly motivated to continue said garbage in hope of being selected for a leadership position in the Mormon club. No one can be THAT stupid without some motivation for personal gain.

  • 79. David_Midvale_UT  |  November 8, 2014 at 9:54 am

    But. . . But. . . But. . . Equality affirming people here in Utah were so disappointed that Gary Herbert's name would not be associated with the SCOTUS ruling that brings marriage quality to all U.S. citizens. Karma demands some pay back for Hawaii's Future Today, California Prop. 22, etc. One can hope that the history books will pay special attention to the role played by Utah's locally dominant sect in political activity that caused emotional pain and financial harm to children.

  • 80. David_Midvale_UT  |  November 8, 2014 at 10:01 am

    "Marriage equality"

  • 81. RnL2008  |  November 8, 2014 at 10:25 am

    Well, if that's all it takes to get into some club is be as stupid as possible…then he should be a shoo-in…….lol!!!

  • 82. Steve84  |  November 8, 2014 at 10:52 am

    They can prevent new ones though.

  • 83. wes228  |  November 8, 2014 at 11:06 am

    The Supreme Court would not be the one transforming marriages into civil unions. It would be a state, like Utah, passing a law transforming these marriages into civil unions.

    The reason why the courts would rule that the state can't annul the marriages is because the legal complications it would create would be a Due Process Clause violation for the couples, who take actions on the presumption that they are in a valid marriage (such as purchase marital property, such as a house together, adopt children jointly, etc. etc.)

    If the Supreme Court rules that states can legitimately ban same-sex couples from marrying, then they may accept a state taking those marriages and transforming them into civil unions, finding that there is no due process violation because the change in designation does not create any legal complications for the couples.

  • 84. wes228  |  November 8, 2014 at 11:08 am

    A decision by the California Supreme Court is not binding outside of California. I do agree that if this were to happen, that rationale would be the one ultimately adopted by our federal courts. I'm just saying that some of these states are going to try to annul the marriages and the couples will have to initiate another wave of lawsuits to challenge that action.

  • 85. flyerguy77  |  November 8, 2014 at 12:03 pm

    After thinking for the last couple days, I really think SCOTUS will vacate the decision without oral arguments and tell 6th CA to rehear the case again with new facts from other cases like 4th, 10th, 7th, and 9th CA If they accept the case this term 5th CA will hear the appeal in Jan or so.. if we lose at 5th CA can the plantiffs join the appeal at SCOTUS? Is it automatic that all cases are stayed? Seriously, SCOTUS GAVE a major hint on Oct 6th, If they vacate and order 6th to rehear the case it means LISTEN UP CA DO THIS WAY NOW…

  • 86. Ragavendran  |  November 8, 2014 at 12:27 pm

    Nice. Lucero and Bacharach on the motions panel. A lesbian lawyer friend of mine used to clerk for Bacharach before he was appointed to the 10th Circuit, while he was a federal magistrate judge in Oklahoma. She was happy to learn her former boss (partnering with Holmes) thrice denied Utah's emergency stay requests last year. She'll be happy now that now her former boss (now with Lucero) denied Kansas's emergency stay request.

  • 87. Ragavendran  |  November 8, 2014 at 12:35 pm

    Unlikely, IMO. The Sixth Circuit opinion was released nearly a month after the last appeals court before it ruled. The panel had plenty of time to consider those decisions. Indeed, the majority opinion openly cites all these pro-ME opinions (4th, 7th, 9th, 10th) and clearly explains its disagreement with their reasoning, so I doubt SCOTUS will vacate and remand with instructions to reconsider in light of the other circuit opinions.

    They could have vacated and remanded with instructions to rule on the merits if the majority had stopped as soon they concluded Baker controls. But they didn't. So, if SCOTUS acts, they'll most probably have to take up a case for full briefing and argument.

  • 88. SimmieK  |  November 8, 2014 at 12:45 pm

    It would be really hard for them to justify that constitutionally. Either there is a constitutional right to marriage equality, or there isn't. And if there isn't, what's constitutionally to stop states opposed to marriage equality from banning it again, including derecognizing existing marriages? I'm not sure what kind of logic could produce the conclusion, that there is no constitutional right to X, but there is a constitutional right to keep X if you got it on the basis of a court judgement that there was a constitutional right to keep X. I can't see any justification for such a position in existing Supreme Court precedent, or the text of the constitution.

    I think this is a good thing. The fact that there is no compromise position – either they effectively annul a lot of marriages, or they find a constitutional right to marriage equality – makes it more likely they (and especially Kennedy) will do the right thing. If there was some kind of plausible "existing marriages can stand, but no new ones" solution, it just might be too tempting to some justices.

  • 89. JayJonson  |  November 8, 2014 at 12:48 pm

    I don't think this is the rationale the CSSC used. IIRC, they based the ruling on the fact that the campaign for Prop 8 did not inform voters that they would be nullifying existing marriages. That at least was what the justices said in oral arguments.

  • 90. Ragavendran  |  November 8, 2014 at 12:50 pm

    Even though I'd like it to, I doubt SCOTUS will say anything more than resolving the precise legal question that is put forth in the cert petition. This means even if they rule that states have a right to ban same-sex couples from marriage, they will not go out of their way to also rule on the status of the marriages that happened in the interim. They might discuss it during oral argument and maybe even mention the issue in their opinion, but I doubt they will say anything clear about their validity, unless that is a clearly stated question in the cert petition. They might even say that it is for lower courts now to consider and decide that issue, and that it could reach them a year or two down the line.

    That said, at the very least, I expect the marriages contracted in the interim to be valid for federal purposes, and in states that continue to recognize out-of-state marriages. In addition, with some resistance (meaning litigation), it would appear likely that the marriages would also have to be valid in the states in which they were contracted, even if new marriages are forbidden. (Like you say, "married is married".) We already have such a ruling from a federal court in Utah, and there is a case underway in Michigan as well.

    With respect to the issue of marriage recognition in other states, some states do not recognize some heterosexual marriages contracted in other states as well (Ohio, for example, as pointed out in the Sixth Circuit). I don't know that those existing recognition bans have ever been challenged under the equal protection clause. For same-sex marriage, the issue will already be before the Supreme Court along with the constitutionality of the in-state marriage bans themselves – they will have to explicitly rule on that question, it won't be left open.

  • 91. Ragavendran  |  November 8, 2014 at 12:59 pm

    I personally prefer to use the term marriage equality as often as possible, and even just "marriage" with no qualifier when it is clear from the context what is being spoken about. I must thank you for regular comments on this, Rose, because now, every time I start typing "same-sex marriage" or "gay marriage", I pause and think now about how to rephrase it so I can avoid using a qualifier like that. I'm still not 100% there yet, but I'm getting there. For example, now I say "ban same-sex couples from marriage" instead of "ban gay marriage".

  • 92. F_Young  |  November 8, 2014 at 1:01 pm

    Ragavendran: "…I doubt SCOTUS will vacate and remand with instructions to reconsider in light of the other circuit opinions."

    I agree. And cert on the 6th or 9th circuit cases will likely be granted before mid-January 2015, at which time the 5th and 8th circuits won't have issued their decisions yet. So, those decisions will be stayed until after SCOTUS' decision in June 2015 and won't influence that decision.

    The stays aren't automatic, but are almost certain to be implemented, so as to avoid wasting resources redeciding the cases based on the post-SCOTUS changes

  • 93. Mike_Baltimore  |  November 8, 2014 at 1:30 pm

    There is a time requirement for plaintiffs or defendants to appeal, but I'm not aware of any time requirement for SCOTUS to respond to any appeal. Thus, SCOTUS could respond to the Kansas request at the end of its current term (or at any time) simply by saying "read our ruling in the XYZ case", or even denying the appeal with no comment.

  • 94. flyerguy77  |  November 8, 2014 at 1:37 pm

    Not in 10th, 7th, and 4th. 9th CA DECISION has not been appealed/ denied yet.. Arizona made a smart move. They know it'd be same decision at SCOTUS..

  • 95. Ragavendran  |  November 8, 2014 at 1:43 pm

    If SCOTUS rules that states can constitutionally ban same-sex couples from marriage, then the states in the 10th, 7th and 4th that still have their bans on the books are completely free to start enforcing their bans again and prevent new marriages – not all states will do so, but they have the freedom to do so if they wish.

  • 96. guitaristbl  |  November 8, 2014 at 1:51 pm

    Can we stop discussing all those nightmareish scenarios for now ?
    We know what will ensure if SCOTUS upholds the bans : legal chaos for a great number of states and waves of litigition about recognition of existing marriages etc.

    I prefer to think positive these days that have not been the best for equality. The chances of SCOTUS going back on that while it can resolve it once and for all are slim at best.

  • 97. flyerguy77  |  November 8, 2014 at 2:02 pm

    That's constitutional crisis!!!!!!!!! Everybody knows on Oct 6th they gave HINTS TO CA TO RULE this way!! 6TH CA ignored SCOTUS' hint big time.. Like I say before I believe they will vacate the decision and tell 6th to rehear the case again. thats a major hint to other CA SCOTUS don't want to hear this cases if they really need to do, I believe if they accept the case they might hold on to it to see what CA decides to rule wrong way. Some says 5th will, but I will give them benefit of doubt for now…

  • 98. hopalongcassidy  |  November 8, 2014 at 2:10 pm

    You mean "ensue", not "ensure", but I think you're right…SC wouldn't even be that goofy…to "undo" thousands of marriages deemed legal by their own former opinions. (I keep telling myself that)

    But seriously, if they were to do that it would like repealing Brown vs Board of Education………….ain't gonna happen, no way no how.

  • 99. hopalongcassidy  |  November 8, 2014 at 2:13 pm

    I can't speak for Rag, but I do not think they "would" rule that way…he is only pointing out the upshot of the very faint POSSIBILITY they could do it. Let's not forget, they do not answer to a higher court……..since there aren't any, no matter what fundies might claim.

  • 100. Ragavendran  |  November 8, 2014 at 3:29 pm

    To clarify (someone commented a reply but I can't find their comment here anymore), even though anything can happen and no one really knows for sure, I think it unlikely that the Court will now go the other way and rule against marriage equality. I will personally take a flight from India to Washington, DC and demand an audience with Anthony Kennedy if that happens. I was just, as hopalongcassidy correctly clarified (though I can't find this comment either – very mysterious), pointing out what could happen if they ruled that way – that states whose circuits have already ruled pro-ME with their mandates issued are not insulated by a future adverse SCOTUS ruling.

    Think about it – the Justices knew the Sixth Circuit heard oral arguments on this issue and that a decision from them was imminent. And they knew that the oral arguments suggested, at best, an uncertain outcome with a swing-vote (i.e., it was definitely not going to be a slam dunk pro-ME outcome like we knew it would be from the 7th and 9th). So, they could have well held on to the cert petitions and sustained the stays for a few more weeks – what was the hurry, when marriages had already been stayed for months? But the Justices skipped over their robes in a hurry to deny cert during the very first conference, despite not all the filings in some of the cert petitions having arrived, effectively allowing marriages to start/continue. If there were five Justices who even remotely thought that they might vote against ME when it came to the merits, certs wouldn't have been denied in such a hurry. (The only hole in this theory is that the Court granted a stay of the Fourth Circuit mandate only weeks before they denied cert anyway, which is puzzling and doesn't make sense, meaning the Court's actions don't always have to make logical sense!)

  • 101. franklinsewell  |  November 8, 2014 at 4:05 pm

    And … Here's this from Kansas: http://www.lgbtqnation.com/2014/11/kansas-to-appe…. They are going to ask Sonia Sotomayor for a stay. Good luck with that!

  • 102. JayJonson  |  November 8, 2014 at 5:01 pm

    I wondered about the assertion in Sutton's opinion that Ohio does not recognize some heterosexual marriages recognized elsewhere. I doubt that it is true, at least insofar as they are marriages recognized in other states (they may not recognize, for example, foreign polygamous marriages, for example). I think he was just accepting some general statement to the effect that Ohio reserves the right not to recognize marriages that are against Ohio public policy. I would like some real examples of legal marriages from other states that they do not recognize before I believe this nonsense.

  • 103. guitaristbl  |  November 8, 2014 at 5:03 pm

    Well in order to avoid "judge fishing" sotomayor will certainly refer it to the full court.

  • 104. Raga  |  November 8, 2014 at 5:22 pm

    Some types of cousin marriages contracted legally in other states is not recognized in certain states, see http://en.wikipedia.org/wiki/Cousin_marriage_law_

  • 105. RnL2008  |  November 8, 2014 at 5:40 pm

    The State CAN'T change them either UNLESS they change ALL marriages into Civil Unions!!!

  • 106. RnL2008  |  November 8, 2014 at 5:41 pm

    The States WILL have one hell of a fight if they try to do ANYTHING to those legal marriages!!!

  • 107. ebohlman  |  November 8, 2014 at 5:43 pm

    I have to assume that they simply didn't want anything to move until they had a chance to hold their conference.

  • 108. Mike_Baltimore  |  November 8, 2014 at 5:55 pm

    The map referenced shows what states do and do not allow 'cousin marriage' to be performed within the state, but says NOTHING about if the 'cousin marriage' is legally entered into in a different jurisdiction.

    Similar to Indiana – the state has not allowed 'common-law marriage' since the mid-1950s. However, if a couple has legally entered into a common-law marriage in another jurisdiction, the state of Indiana recognizes that 'common-law marriage'. In 2005, at my step-father's funeral, I met several couples who had been 'common-law' married in Pennsylvania before such marriages were made illegal to be entered into in Pennsylvania, and the state of Indiana recognized them as married as 'any other' marriage (recognized by the state).

    Ohio may or may not follow the same policy, but the map shows which states do, and which states don't, allow a specific type of marriage to be performed within the state. It doesn't state if such marriages are or are not recognized.

  • 109. Raga  |  November 8, 2014 at 6:07 pm

    Please, look at the table below the map. Specifically, Columns 4 and 5 that concern validity of out-of-state cousin marriages.

  • 110. ebohlman  |  November 8, 2014 at 6:31 pm

    And Ohio recognizes them. Unless I'm suffering from severe memory loss, Judge Black's rationale for striking down Ohio's recognition ban in Obergefell and Henry was that Ohio recognized all out-of-state marriages except same-sex ones, regardless of whether they could be performed in-state.

  • 111. StraightDave  |  November 8, 2014 at 7:17 pm

    That's exactly what I recall, too. It stood out so strongly that, to me, it seemed like a killer fact that undermined any claim OH had about its "public policy". I also recall (slightly less strongly) that this was not just a matter of quietly looking the other way and not bothering to object, but it had come out in other court cases and public statements by OH officials that OH clearly honored all other OOS marriages. It was game over.

  • 112. Raga  |  November 8, 2014 at 7:25 pm

    Yes. All I'm trying to do is validate my claim two or three levels up (in reply to Dr. Z) that "with respect to the issue of marriage recognition in other states, some states do not recognize some heterosexual marriages contracted in other states as well." The example I provided there, Ohio, turns out not to be a real example (as Jay was quick to correctly point out) but a hypothetical one (the Ohio Supreme Court, in Mazzolini, had stated that Ohio need not recognize all marriages performed out-of-state). So, I pointed to the Wikipedia article to show other real examples. That's all. Sorry for the misunderstanding in navigating through the line of replies from my earlier comment.

  • 113. StraightDave  |  November 8, 2014 at 7:27 pm

    In which case the game buzzer goes off on 11/11 and wedding bells ring. Ignoring it would have the same effect as a denial.

  • 114. FredDorner  |  November 8, 2014 at 11:21 pm

    "So, they could have well held on to the cert petitions and sustained the stays for a few more weeks – what was the hurry, when marriages had already been stayed for months?"

    Sounds like they were trying to send the 6th circuit a strong hint, something which Ginsburg reiterated a couple of weeks later when she said:
    "[Ginsburg] said 'there will be some urgency' if [the Sixth Circuit] allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted. She said if the appeals panel falls in line with other rulings there is 'no need for us to rush.'"

  • 115. Margo Schulter  |  November 9, 2014 at 12:17 am

    To hopalongcassidy: As a decidedly nonfundamentalist type of theist, I would nevertheless agree on the level of this world with Justice Robert Jackson: “We are not final because we are infallible, but we are infallible only because we are final.”

  • 116. worldcup26  |  November 9, 2014 at 6:26 am

    and what in God's name would make a Supreme Court Justice "step-down." Let's not be ridiculous here. The composition of the Supreme Court is not going to change before June 2016 and everyone knows that. The more states that have ME when the Supreme Court decides this the better – that cannot be disputed.

  • 117. F_Young  |  November 9, 2014 at 6:45 am

    worldcup26: "Let's not be ridiculous here. The composition of the Supreme Court is not going to change before June 2016 and everyone knows that."

    A SCOTUS justice could step down due to ill health, which would not be surprising given their ages.

  • 118. DACiowan  |  November 9, 2014 at 6:57 am

    The longest serving justice, William O. Douglas, was appointed by FDR in 1939. After Nixon became president, Douglas was still in strong health and expected to simply outlive the Republican tenure in the White House. Then his health broke and he had to step down in 1975, two years before Carter came in. Fortunately Ford picked a similarly moderately liberal judge to replace him — John Paul Stevens — but his is a cautionary tale of justices trying to survive a political swing.

    (It also means one seat saw only two justices from FDR to Obama.)

  • 119. JayJonson  |  November 9, 2014 at 7:02 am

    When some of the justices are in their 80s, it is not beyond the realm of possibility that one of them may die, and, of course, even young people have been known to die. Or suffer ill health. Or for another reason decide to step down.

    Because Justices enjoy a life-tenue does not mean that they either live forever or are forced to stay on the court for the rest of their life.

  • 120. wes228  |  November 9, 2014 at 7:06 am

    If they voluntarily retire, absent a sudden health condition, they will typically do so at the end of the term in June, not in the middle of it.

    Barring any unforeseen circumstances (*knock on wood*), no Justice should be leaving the bench until this summer at the earliest.

  • 121. JayJonson  |  November 9, 2014 at 7:13 am

    Sutton particularly referenced cousin marriages and said they were not relevant. His whole point was that just because Ohio recognizes cousin marriages performed elsewhere even though it does not allow them to be performed in Ohio was not evidence that its refusal to recognize same-sex marriages performed elsewhere is discriminatory. He asserted that there were some (non-cousin) opposite-sex marriages that are legal elsewhere but are not recognized in Ohio, but he did not specify what they were. I think this is just bullshit.

    What opposite-sex marriages legally performed in other U.S. states are not recognized in Ohio (or other states)?

    I doubt that any exists. It may well be that Ohio has the hypothetical right not to recognize certain opposite-sex marriages performed elsewhere, but since they in fact do recognize all opposite-sex marriages performed elsewhere that does not save them from the charge of discriminating against same-sex couples by refusing to recognize ALL same-sex marriages.

  • 122. Raga  |  November 9, 2014 at 7:17 am

    Yes, I recall her comment about the urgency to grant cert. what I didn't get was their urgency in denying cert.

  • 123. Raga  |  November 9, 2014 at 7:20 am

    Jay, see my last reply above: "All I'm trying to do is validate my claim two or three levels up (in reply to Dr. Z) that "with respect to the issue of marriage recognition in other states, some states do not recognize some heterosexual marriages contracted in other states as well." The example I provided there, Ohio, turns out not to be a real example (as Jay was quick to correctly point out) but a hypothetical one (the Ohio Supreme Court, in Mazzolini, had stated that Ohio need not recognize all marriages performed out-of-state). So, I pointed to the Wikipedia article to show other real examples. That's all. Sorry for the misunderstanding in navigating through the line of replies from my earlier comment."

    And Sutton did not assert that there were other non-cousin marriages that could realistically be performed in other states that Ohio wouldn't recognize today. I do agree that his point was that "just because Ohio recognizes cousin marriages performed elsewhere even though it does not allow them to be performed in Ohio was not evidence that its refusal to recognize same-sex marriages performed elsewhere is discriminatory," and yes, this point he was trying to make is bullshit.

  • 124. JayJonson  |  November 9, 2014 at 7:26 am

    Yes, now I see what you wrote then.

    But my point is a little different. I think Sutton is either deliberately lying or accepting at face value what Ohio lawyers have stated. The fact that the Ohio Supreme Court has stated that Ohio need not recognize all marriages performed out-of-state is irrelevant, as a matter of federal law; and it does not alter the fact that to recognize all opposite-sex marriages but to recognize no same-sex marriages creates an equal protection issue, as Judge Black correctly pointed out.

  • 125. Ryan K (a.k.a. KELL)  |  November 9, 2014 at 7:27 am

    Are they going to file it at the last second, hoping then that Sotormayor grants a temporary stay (gay = temp stay) while she refers the matter to the full court?

    I hope when the SCOTUS denied cert in the three CAs, they all agreed that any request for a further stay from other states in those CAs can be denied by the circuit Justice without referring to the full court.

  • 126. Raga  |  November 9, 2014 at 8:29 am

    You're so right. Couldn't agree more.

  • 127. guitaristbl  |  November 9, 2014 at 11:24 am

    I don't know tbh, but I am sure in their request for a stay there will be pages upon pages about the 6th, Sutton's quotes etc to the point the judges may think Kansas is in the 6th lol !

    I hope so too but we can't skip the fact that we have a different legal landscape now than when cert was denied and the stays to Idaho and Alaska were also denied.

    The court may not want marriage to spread any longer for now, now that there's a split.

    If they do deny the stay now, we can be sure we will get SC at the very least, if not even MT before SCOTUS takes on a case and everything is halted.

  • 128. Mike_Baltimore  |  November 9, 2014 at 11:29 am

    What would make a SCOTUS Justice step down?

    The Chief Judge of 4CA was feeling fine one morning in 2009, went to the doctor that day, and after the doctor's visit (where she was diagnosed as in the early stages of Alzheimers), she immediately resigned from the court. She was 57 when diagnosed. She died November 2, 2013 (aged 62). http://www.washingtonpost.com/wp-dyn/content/arti

    THAT is one case. I'm not saying it will happen, but it could.

    And remember, most people who have Alzheimers are not diagnosed until several years older, or when an autopsy is performed. We now have several Justices who are more than 75 years old.

  • 129. Zack12  |  November 9, 2014 at 12:13 pm

    Sounds cold but that happening to her worked out for our side.
    She was replaced by Judge Floyd, who ruled in our favor.

  • 130. Ryan K (a.k.a. KELL)  |  November 9, 2014 at 12:20 pm

    ANYTHING can happen… Illness, illness of spouse (e.g. O'Connor), accidental injury or death, etc.

    There honestly should be no question it is in the interest of MARRIAGE EQULAITY to have a case in front of this current composition of the Roberts' court as quickly as possible and get a ruling. Let's get our 5-4 majority opinion written by Justice Kennedy and be done in June 2015. Quickest path to our brothers and sisters in the 6CA, others in the 11CA, 5CA, and 8CA, plus remaining territories. Overule Baker, affirm Judge Friedman in DeBoer, and make it landmark (use as much of Daughtrey's dissent as needed).

  • 131. Zack12  |  November 9, 2014 at 12:28 pm

    O'Connor has admitted since then she might have made a mistake in stepping down.
    I don't think she likes the far right turn the court has taken.

  • 132. Mike_Baltimore  |  November 9, 2014 at 12:48 pm

    guitaristbl,

    It's my understanding that in the 9CA, there is a 3 week delay until the request for an en banc hearing is formally presented to the judges in the Circuit, then the judges have up to 2 weeks to say Yay or Nay. You can bet most of those voting no to en banc will take as little time as possible, while those voting yay to en banc will almost assuredly (especially if they are 'losing' the vote) take as much time as they can.

    The clock starts ticking as soon as the 9CA receives the final documents in a request for en banc, and could last (as I understand it) from a bit more than three weeks to as many as five.

  • 133. Mike_Baltimore  |  November 9, 2014 at 1:18 pm

    Cold, yes, but accurate.

    And remember, until the chief judge of 4CA stepped down, the 4th was considered one of, if not the most, conservative Circuit Courts in the nation. (Part of the turn for the court from being very conservative to middle of the pack [if not being outright liberal] was several other openings on the court, thus allowing President Obama to nominate several judges).

  • 134. Mike_Baltimore  |  November 9, 2014 at 1:53 pm

    For all we know, SCOTUS might have made a decision on the appeal on Friday, November 7 (or over the weekend), and will announce it on Monday, November 10. It is not set in stone that all decisions are announced as soon as SCOTUS makes a decision (example – the decision to deny requests for certs, apparently made in the 'long conference', but not announced until October 6).

    I'm not sure if SCOTUS regards a request for cert. to be equivalent (or near equivalent) to a request for stay, but I've not seen anything differently. The major difference I see is that the decision to accept or deny requests for cert are made in conference, and requests for stays can be decided by one Justice or the entire court (usually done to prevent 'Justice shopping'), but (as far as I know) the decision on stays or declination of stays is usually not discussed in conferences.

  • 135. Zack12  |  November 9, 2014 at 3:12 pm

    Indeed, Obama has been able to make a major impact on that court.
    Such a shame that so many of his nominees are older there, it won't take much for it to lurch back to the right due to that factor.

  • 136. flyerguy77  |  November 9, 2014 at 4:06 pm

    As now legally they can't comment/ decide on 6th decision in their decision because its not on their docket..

  • 137. worldcup26  |  November 9, 2014 at 4:20 pm

    I do question it. There is no rush. The more states that have ME by the time the Supreme Court mandates it on the rest, the better it is for us, and the more accepted that decision will be. There should be no question as to THAT.

  • 138. Ryan K (a.k.a. KELL)  |  November 9, 2014 at 4:51 pm

    Are you referring to the three states left from the cert denials (KS, MT, & SC), or are you just banking on the three from the 11CA (FL, AL, GA)? We aren't getting any federally from the 5CA or 8CA, so by virtue of us losing four (I imagine couples in those four states disagree with your "no rush" comment), it's time to go to the SCOTUS.

    I do not disagree with your premise that the more states that have it, the easier it makes for the Justices to somehow feel better about themselves for instituting justice where it justly belongs. But we're essentially at 2/3s of the states now. And based on the stated concern about the court composition, I would say there IS A RUSH to have this reviewed by the SCOTUS and get a ruling in our favor NOW.

  • 139. Ryan K (a.k.a. KELL)  |  November 9, 2014 at 5:19 pm

    I wonder how long it is going to take the lawyers from DeBoer to file their writ of certiorari to the SCOTUS for their appeal of the 6CA ruling. I would have to think they had to be ready for this given the chances of their case being overruled by Sutton. I want the clock to start ticking on the Michigan Gov/AG to get their brief in so that this can go to conference before Christmas (last conference in 2014 is Friday, December 12th per SCOTUSblog).

  • 140. Margo Schulter  |  November 9, 2014 at 6:13 pm

    One interesting development was a statement by Attorney Bill Schuette of Michigan that he has agreed to cooperate the DeBoer plaintiffs in seeking SCOTUS review and a decision as soon as possible, and not to use any procedural options to delay things.

  • 141. F_Young  |  November 9, 2014 at 6:13 pm

    worldcup26: "There is no rush."

    On the contrary, we could lose big time if we delay too long, and it would be at least 2019 before we could undo the damage, in a best case scenario.

    The longer we wait, the more likely one of our supporting Justices will have to step down for health reasons, since three of the five Justices who presumably support marriage equality are over 70 years old and only one of those who oppose it is over 70.

    It would take only one supportive judge to step down to result in a tie, which would mean that each marriage ban that was then before the court would be upheld.

    If we were really unlucky and lost two supportive judges, it would result in a 4-3 binding precedent that could eventually lead to the reversal of all the states so far that got marriage equality due to court decisions but still had bans on the books. (actually, in such a case we would probably abandon the appeal so as to cut our losses)

    In a best case scenario, it would be at least 2016 before the Republican majority in the Senate could be reversed and, assuming a Republican president is not elected, at least 2017 before the supporting Justices that stepped down or died could be replaced with marriage equality supporters.

    And it would then take another couple of years for new marriage challenges to be launched and to reach SCOTUS again; a SCOTUS decision would be expected in June 2019, assuming a best case scenario.

    Which is still better than the multiple decades it would take for popular opinion in deep red states to evolve enough so that their constitutional amendments could be overturned by the voters.

  • 142. Margo Schulter  |  November 9, 2014 at 6:14 pm

    Sorry, Attorney General Bill Schuette of Michigan. With my text-based elinks browser I I don’t see any editing option, nor the famed approval/disapproval symbols and counts.

  • 143. Zack12  |  November 9, 2014 at 6:18 pm

    I imagine they or the councel are ready to go on this one.
    I'll say this, we're going to need heavy hitters for this one and the DeBoer council won't be it.

  • 144. scream4ever  |  November 9, 2014 at 6:58 pm

    At the federal level things will indeed stop, but they will continue at the state court level, which will mean we'll still win Arkansas, Missouri, and Florida.

  • 145. Zack12  |  November 9, 2014 at 6:59 pm

    I'm not holding my breath on the Arkansas Supreme Court.
    The one that just got elected is a LOT different then the one whom struck the adoption ban down.

  • 146. Mike_Baltimore  |  November 9, 2014 at 10:40 pm

    Off topic:

    "A Malaysian court on Nov. 7 issued a landmark ruling that declared unconstitutional a state law banning Muslim men from wearing women’s clothes in public."
    ( http://www.washingtonblade.com/2014/11/09/malaysi… )

  • 147. Mike_Baltimore  |  November 9, 2014 at 11:00 pm

    Off topic (and a follow-up to WBC's request to intervene in the Kansas ME case):

    From the 'Washington Blade':

    'Judge nixes Westboro intervention in Kansas marriage case'
    ( http://www.washingtonblade.com/2014/11/07/judge-n… )

  • 148. davepCA  |  November 9, 2014 at 11:12 pm

    Aw crud. That would have been kinda fun.

  • 149. Mike_Baltimore  |  November 9, 2014 at 11:20 pm

    True, but they are appealing the ruling.

    WBC's hope now lays with the good will of the State Attorney and/or the 8CA. I suspect they will get slapped down again because they want to bring religion into the case, and the courts (state and Federal) really frown on religion being the main basis for intervention.

  • 150. RnL2008  |  November 9, 2014 at 11:33 pm

    Actually I DON'T believe those States could or can…….I mean that would be like Arkansas rejecting interracial couples from marrying because they still had it on their books until like 2000…..even though SCOTUS had already ruled in Loving….sorry, but SCOTUS is simply NOT going to say that some states CAN prevent Gay and Lesbian couples from marry, but these state CAN'T……what a chaotic mess that would be!!!

  • 151. flyerguy77  |  November 10, 2014 at 12:21 am

    that'd be called Constitutional crisis/ disaster…

  • 152. RnL2008  |  November 10, 2014 at 12:27 am

    I agree and it would signal that marriage is NOT a Fundamental right…….and I seriously doubt SCOTUS will change that…….but hey, I've seen dumber things before!!!

  • 153. ragefirewolf  |  November 10, 2014 at 5:32 am

    Kansas is in the 10CA, not the 8CA.

  • 154. jpmassar  |  November 10, 2014 at 7:27 am

    And now a word against our sponsor…

    A number of Christians are expressing outrage after a popular cereal company recently used Tony the Tiger in a print advertisement promoting “gay pride.”

    “Wear your stripes with pride,” an advertisement featuring the Frosted Flakes icon, was reportedly published in the Atlanta, Georgia pride guide last month to coincide with the city’s homosexual pride march and festival. Kellogg had served as one of the sponsors for the event…

    Kellogg and General Mills join a plethora of companies that have actively promoted homosexuality, including Starbucks, Nabisco, Betty Crocker, Campbell’s and Burger King.

    http://christiannews.net/2014/11/10/christians-ou

    It's only a matter of time now before Tony and Toucan Sam tie the knot.

    (snark)

  • 155. ragefirewolf  |  November 10, 2014 at 7:57 am

    I personally prefer Christ-Os for my breakfast cereal.

  • 156. DeadHead  |  November 10, 2014 at 8:02 am

    Eating too many fruit loops must have made me gay
    [youtube pCsEYjyf-9g http://www.youtube.com/watch?v=pCsEYjyf-9g youtube]

  • 157. Elihu_Bystander  |  November 10, 2014 at 8:29 am

    "Aw crud."

    davepCA did you actually use that LDS swear word with a straight face?

  • 158. ragefirewolf  |  November 10, 2014 at 8:46 am

    I love saying the word "crud." Sometimes it describes stuff better, haha.

  • 159. sfbob  |  November 10, 2014 at 9:04 am

    The deBoer counsel already said they were going to file for cert as did all of the others in the 6th Circuit. My guess is that they will collaborate and do so very quickly. There are some heavy hitters involved in the other cases. I would not be surprised if the filings take place before the middle of this week.

  • 160. Mike_Baltimore  |  November 10, 2014 at 9:55 am

    My bad.

    Yes, it is in the 10th. I think I was thinking of Missouri (which IS in the 8CA) when I wrote that.

  • 161. jdw_karasu  |  November 10, 2014 at 10:24 am

    On the split issue, I don't think the judges in 10th who previously found the bans to be unconstitutional care about the split… other than to think Sutton is an idiot. In turn, SCOTUS has already denied certs of two 10th cases. They're not going to worry much about Kansas' trying to appeal: they won't stay a ruling from the District and 10th pending appeal to SCOTUS. More than that, they won't grant cert to Kansas' appeal. Kansas is going to be ME shortly.

    On the cases of the 6th slowing down, I'm with everyone responding earlier: we shouldn't slow down. We need to strike while our 5 judges are in office, and not risk one of them having their health go in the tank. We should all want a ruling ASAP.

    Especially given how horrid the ruling was in the 6th. Perfect bad case to take up.

  • 162. jjcpelayojr  |  November 10, 2014 at 6:15 pm

    New Jersey already did a study on civil unions vs marriages. The public at large do not consider them equal. Therefore, insisting on civil unions would just be promoting the "separate but equal" solution that worked out so well until Brown v. Board of Education.

  • 163. jjcpelayojr  |  November 10, 2014 at 6:18 pm

    Thought problem: If a couple is married when it's legal, and then divorces when new marriages cannot occur, can they get re-married to each other again?

  • 164. jjcpelayojr  |  November 10, 2014 at 6:19 pm

    They can have the lion instead….I heard the lion is a symbol of great pride for them during Roman times…

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