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BREAKING: Supreme Court declines to stop South Carolina same-sex marriages

LGBT Legal Cases Marriage equality Marriage Equality Trials

The U.S. Supreme Court. Attribution: Jeff Kubina
The U.S. Supreme Court. Attribution: Jeff Kubina
The Supreme Court has just denied a stay request filed by South Carolina’s attorney general. The request would have stopped officials from performing same-sex marriages while the issue is on appeal in the Fourth Circuit Court of Appeals.

According to the order, Justice Antonin Scalia and Justice Clarence Thomas dissented, noting that they would have granted the stay.

141 Comments

  • 1. Jaesun100  |  November 20, 2014 at 7:24 am

    I see a 7-2 ruling coming down in June

  • 2. wes228  |  November 20, 2014 at 7:30 am

    7-2?? Are you on drugs? No way we're getting Alito. Maybe MAYBE Roberts if he's in a good mood and our lawyers make superb arguments and Jupiter is ascending in the House of Thor…but otherwise it's going to be 5-4.

  • 3. A_Jayne  |  November 20, 2014 at 7:31 am

    I wonder if, as each of these cases since Sutton issued his tantrum progresses through the courts, indeed all the way to SCOTUS, Sutton shrinks some in his high chair behind the bench…

  • 4. brandall  |  November 20, 2014 at 7:31 am

    Interesting, Roberts did not request any Response from the Plaintiff's this time. So, one day was eliminated from the now typical 3-day process.

  • 5. brandall  |  November 20, 2014 at 7:33 am

    While it would be amazing to see a 7-2, the vote on issuing a stay and issuing a landmark ruling do not necessarily correlate.

  • 6. guitaristbl  |  November 20, 2014 at 7:36 am

    And I was about to start the count down again, as I did with Alaska. SCOTUS saved me from trouble thankfully !

    Scalia and Thomas can keep jumping up and down, fuming until they are on fire and they eventually explode for all I care. They know how to play tough on other petitions and give the side-eye to marriage cases but they have nothing to say directly when the issue comes before them. Lack of spine, major lack of spine.
    And so that's the 4th denial of stay from SCOTUS, the 2nd after the 6th ruled and the first since petitions for cert were filed. If they also deny a stay to Montana, decided after the 6th and based on a decision from the 9th which has not been denied cert and while Idaho officials still seem determined to seek SCOTUS review, then nobody should bother asking for a stay again I think till the final resolution.
    I hope Wilson and Haley do not pull a Kansas stunt here, it won't help them much I think, quite the opposite.

    Officially…34 ? 35 ? 34 and a half ? 35 and a half (along with Missouri) ? I don't know. But if we look at what's going on same sex couples in Missouri currently have MORE marriage rights than those in Kansas. Missouri at the very least recognizes all valid marriages.

    Congrats to all the couples in South Carolina !

  • 7. A_Jayne  |  November 20, 2014 at 7:37 am

    He knows he's heard it all before, so doesn't need to hear it again…

  • 8. guitaristbl  |  November 20, 2014 at 7:37 am

    Lets not get ahead ourselves here. Alito will never, EVER vote for ME. As for Roberts…I am starting to have some 2nd thoughts as well.

  • 9. wes228  |  November 20, 2014 at 7:40 am

    It's also worth noting that the decision to deny the stay was not necessarily 7-2 either.

  • 10. guitaristbl  |  November 20, 2014 at 7:40 am

    I doubt it. He is a republican hero and that's all that matters to him I think.

  • 11. Zack12  |  November 20, 2014 at 7:41 am

    I'm still thinking the total will be 5-4 with the small chance Roberts will jump on board for a 6-3 ruling.
    I think Alito has come to terms with the fact equality is coming but I don't believe for a minute he will rule in our favor.

  • 12. guitaristbl  |  November 20, 2014 at 7:41 am

    And he did not even put a temporary stay. I don't think the deliberation on this lasted more than a couple of minutes to be honest.

  • 13. ijsnyder  |  November 20, 2014 at 7:46 am

    Interestingly, there was a case not long ago in which the court lifted restrictions on abortions while the case proceeded to make its way through the courts. Alito, Scalia, and Thomas noted that they would have left the restrictions in place.
    I think we will lose all three of these justices, but to me it's an interesting indicator of how SSM has softened as a hot-button issue to the point where Alito doesn't feel the need to register his discontent as he does with abortion.

  • 14. ijsnyder  |  November 20, 2014 at 7:49 am

    If anyone's curious, it's this case: http://www.washingtonpost.com/politics/courts_law

  • 15. A_Jayne  |  November 20, 2014 at 7:51 am

    If he is seen as a hero to anyone over the next several months, it will only be for sending to SCOTUS the case that ends up abolishing marriage discrimination across the entire country.

    Even most Republicans either favor ME or are beginning to understand the blatant discrimination behind the bans simply cannot withstand equal rights challenges. As Harvey Milk said so long ago, visibility matters! We're seeing the effects of it in tidal waves now.

  • 16. nicolas1446  |  November 20, 2014 at 7:51 am

    I agree. I can see Roberts but Alito, never. He wrote far too much in his dissent in Windsor about how states have the right to ban same sex marriage.

  • 17. guitaristbl  |  November 20, 2014 at 7:54 am

    The fact that we have reached the point where we discuss whether Roberts may provide a vote for ME is telling of how far we ve come recently.

  • 18. BillinNO  |  November 20, 2014 at 7:55 am

    Do we have any reports yet of marriages in SC?

  • 19. Steve27516  |  November 20, 2014 at 7:57 am

    The existing stay in South Carolina doesn't expire for another hour, at noon Eastern. I hope we hear of plenty of marriages this afternoon.

  • 20. nicolas1446  |  November 20, 2014 at 7:58 am

    I think he is just worried about being remembered badly in history. Which angers me because I think he personally does not care about gay rights he is just worried about his image and legacy.

  • 21. RemC_Chicago  |  November 20, 2014 at 7:58 am

    Yeah, cell phones will have to be around a lot longer before Alito supports ME.

  • 22. BenG1980  |  November 20, 2014 at 7:59 am

    Another reason Roberts might join a 6-3 majority is to hold the power of the pen. If he's afraid Kennedy will write a broad opinion (e.g. heightened scrutiny for classifications based on sexual orientation), Roberts, as the Chief Justice in the majority, could choose to write the majority opinion himself. Otherwise, if Roberts is in the minority on a 5-4 split, then Kennedy, as the most senior Justice in the majority, would get to pick the author.

  • 23. SethInMaryland  |  November 20, 2014 at 7:59 am

    well the message was sent to Montana AG and and Kanas gov/ag

  • 24. Jaesun100  |  November 20, 2014 at 7:59 am

    Right , but we don't know that it wasn't either …..ugggg I hate this not knowing ….;

  • 25. DACiowan  |  November 20, 2014 at 8:00 am

    There were a couple weddings yesterday, but the stay doesn't end for another hour.

  • 26. wes228  |  November 20, 2014 at 8:01 am

    It was in all likelihood a 5-4 decision. Let's be realistic. The Windsor decision showed where everybody stood on this issue.

  • 27. Dann3377  |  November 20, 2014 at 8:01 am

    It's going to be one hell of a PRIDE next June. New York or LA?? Hmm

  • 28. MGinPA  |  November 20, 2014 at 8:02 am

    Exactly, it is delusional to think we would get Alito. There is a very very small chance of Roberts writing a pro marriage concurring opinion based on technicalities.

  • 29. Jaesun100  |  November 20, 2014 at 8:03 am

    Since Windsor set a new precedent they all may see things differently now well except our two dissenters …..

  • 30. wes228  |  November 20, 2014 at 8:03 am

    But in order to speak as the personification of the Supreme Court itself, you need to have at least four other justices sign on to your opinion. Roberts can assign the decision to himself, but if after writing it and after Kennedy writing a concurrence, if the 4 liberals want to sign onto Kennedy's concurrence and NOT Robert's decision, then Kennedy's concurrence actually becomes the Opinion of the Court.

  • 31. LK2013  |  November 20, 2014 at 8:03 am

    Ugh. Don't remind me of that bizarre and ignorant comment.

    I actually have had a cell phone since the mid 1990's …

  • 32. Wolf of Raging Fires  |  November 20, 2014 at 8:04 am

    WHOA! Schweeeeeeet!

    NOW GRANT CERT TO MICHIGAN, damn skippy. LOL.

  • 33. guitaristbl  |  November 20, 2014 at 8:04 am

    Young republicans (those that exist anyway) may favour ME overwhelmingly indeed but the harsh reality, that also tailors the position of the GOP on the issue, is that the still strong majority of republicans overall opposes ME.

  • 34. brandall  |  November 20, 2014 at 8:05 am

    Excellent point. All we know is the two of them wanted to be on the record for their votes. We don't know the actually vote tally which might have been higher in favor of the stay.

  • 35. LK2013  |  November 20, 2014 at 8:05 am

    I don't think they are open to receiving messages they don't want to hear! But I agree with you – a stay denial without even asking to hear more is pretty clear.

  • 36. LK2013  |  November 20, 2014 at 8:06 am

    Very good start to the day! Love every bit of good news! I can't wait for the pictures of marriages in Montana and South Carolina to roll in throughout the day!

  • 37. guitaristbl  |  November 20, 2014 at 8:06 am

    If he votes in favour of ME and make this an even stronger 6-3 opinion hey, I 'll take it whatever the reason personally. His intentions are not worth anything, his vote is.

  • 38. montezuma58  |  November 20, 2014 at 8:06 am

    The state Supreme Court rescinded its order prohibiting judges from granting licenses yesterday. The experation of the federal stay will give some judges that don't wish to comply cover for another hour or so but there's nothing really substantial preventing any judges from going ahead at the moment.

  • 39. jpmassar  |  November 20, 2014 at 8:07 am

    This should be finishing up:

    LITTLE ROCK (KFSM) – The Arkansas Supreme Court is scheduled to hear oral arguments in a case challenging the state’s gay marriage ban on Thursday (Nov. 20), officials say.

    The oral arguments are scheduled to begin at 9 a.m., according to a spokesperson for the Arkansas Supreme Court.
    http://5newsonline.com/2014/11/18/arkansas-suprem

  • 40. guitaristbl  |  November 20, 2014 at 8:09 am

    According to lgbtqnation the Montana AG said that he won't seek a stay while he is appealing. Can't find the source for that though. If that's the case Montana is officially 33rd state, since Kansas neither issues marriages licenses everywhere nor does it recognize these marriages yet (until they are held in contempt of court I suppose). If South Carolina officials respect the decision and the law, it will be the 34th state practically.

  • 41. jpmassar  |  November 20, 2014 at 8:09 am

    And also in Arkansas this afternoon

    at 1:30 p.m. CDT, U.S. District Judge Kristine Baker will hear arguments on motions from both sides in a federal lawsuit challenging the marriage ban, Jernigan v. Crane. Same-sex couples are asking Baker to immediately strike down the ban, while the state is asking her to dismiss the suit.

    http://www.towleroad.com/2014/11/marriage-cases-h

  • 42. jpmassar  |  November 20, 2014 at 8:09 am

    And also in Arkansas this afternoon

    at 1:30 p.m. CDT, U.S. District Judge Kristine Baker will hear arguments on motions from both sides in a federal lawsuit challenging the marriage ban, Jernigan v. Crane. Same-sex couples are asking Baker to immediately strike down the ban, while the state is asking her to dismiss the suit.

    http://www.towleroad.com/2014/11/marriage-cases-h

  • 43. jpmassar  |  November 20, 2014 at 8:09 am

    And also in Arkansas this afternoon

    at 1:30 p.m. CDT, U.S. District Judge Kristine Baker will hear arguments on motions from both sides in a federal lawsuit challenging the marriage ban, Jernigan v. Crane. Same-sex couples are asking Baker to immediately strike down the ban, while the state is asking her to dismiss the suit.

    http://www.towleroad.com/2014/11/marriage-cases-h

  • 44. A_Jayne  |  November 20, 2014 at 8:10 am

    That's changing much faster than is reflected in current MSM coverage. Opponents may still be loudest, but their numbers are rapidly shrinking.

  • 45. brandall  |  November 20, 2014 at 8:11 am

    Arkansas Supreme Court hearing in progress right now. Live video is available, but it appears the site is overwhelmed:
    https://courts.arkansas.gov/courts/supreme-court/

  • 46. brandall  |  November 20, 2014 at 8:11 am

    Arkansas Supreme Court ME hearing in progress right now. Live video is available, but it appears the site is overwhelmed:
    https://courts.arkansas.gov/courts/supreme-court/

  • 47. Jen_in_MI  |  November 20, 2014 at 8:11 am

    Amen my friend! Post-haste even!!

  • 48. Wolf of Raging Fires  |  November 20, 2014 at 8:17 am

    I'd like to be wrong about both of them, but, yeah, there is no chance with either… :(

  • 49. Zack12  |  November 20, 2014 at 8:20 am

    I agree.
    After all, Kennedy is the best champion we've had on the court and I still think he is a far right $$##@ on so many other issues.

  • 50. MichaelGrabow  |  November 20, 2014 at 8:20 am

    Joemygod says it is over already. What was that, an hour??

    South4Marriage tweets: Wagoner holds up list of 4 anti-#marriage court rulings vs. 50+ pro-#marrage rulings.

  • 51. SethInMaryland  |  November 20, 2014 at 8:22 am

    i don't see the live video when i click the link

  • 52. guitaristbl  |  November 20, 2014 at 8:24 am

    Which means we are already an hour and a half in that. Can't wait for the first reports to check the mood of this court on the issue.

  • 53. nicolas1446  |  November 20, 2014 at 8:25 am

    True. A 7-2 is almost a unanimous vote which means that the possibility of it being overruled is very very slim. It would also stop making gay rights a conservative and liberal issue and just an equal rights issue. Therefore, It would be nice to have a 7-2. Not to mention that would mean the 6th circuit was overruled by almost the entire Supreme Court. However, The thing about Alito voting in favor though is that it will be difficult for him to join Kennedy's broad gay praising language. I certainly hope he does not vote in favor of same sex marriage on the condition that the majority opinion tones down the pro gay rights language. But anyhow, I just don't see Alito voting in favor so I'm not going to think about that.

  • 54. DaveM_OH  |  November 20, 2014 at 8:26 am

    Not entirely true. The narrowest opinion is the precedent.

    Though in your hypothetical, Kennedy would write the Opinion of the Court yes, the precedential holdings would be limited to where Kennedy and Roberts agreed if neither of them gets to 5 on their own.

    Also, Justices can sign on to more than one opinion. So you could possibly see the following:
    Kennedy with the majority opinion, joined by Breyer, Roberts, and Kagan; Roberts with a concurrence, joined by Kennedy; Ginsburg with a concurrence in the judgment, joined by Sotomayor and Kagan; Alito with a dissent, joined by Scalia; and Thomas with a dissent.

    In this fractured (4-3-2)-(2-1), i.e. 6-3 in the judgment, case, only the holding(s) common between Kennedy's and Ginsburg's opinions form precedent.

  • 55. RemC_Chicago  |  November 20, 2014 at 8:26 am

    The hypocrisy of Thomas is especially infuriating, given his own interracial marriage. The Golden Rule doesn't come with exceptions.

  • 56. JayJonson  |  November 20, 2014 at 8:28 am

    The ruling is going to be 5-4. Alito and Roberts are never going to be on our side. However, it seems that they have read the tea leaves and know that marriage equality is inevitable. They are signalling that they will not be dead enders.

  • 57. yyyAllenyyy  |  November 20, 2014 at 8:29 am

    That's correct. By my count it's 34 States plus DC plus parts of KS and MO.

  • 58. Wolf of Raging Fires  |  November 20, 2014 at 8:29 am

    Highly doubtful. They were both rather unhappy with the Windsor decision in their respective dissents.

    Don't let the perfect be the enemy of the good.

  • 59. LK2013  |  November 20, 2014 at 8:29 am

    The Arkansas video seems to be working now – try this link :
    https://courts.arkansas.gov/courts/supreme-court/

  • 60. JayJonson  |  November 20, 2014 at 8:30 am

    Precisely. Scalia and Thomas want to wear their bigotry as a badge of honor. Roberts and Alito are equally bigoted, but they don't necessarily want a scarlet letter on their resumes.

  • 61. David_Midvale_UT  |  November 20, 2014 at 8:30 am

    With the December holidays almost upon us, and the endless re-runs of movies that most of us can quote from memory, would someone please arrange for Justices Scalia and Thomas (and undoubtedly Alito) to receive a visit from the Ghost of Bigotry Past. I'm thinking the Rev. Dr. and Mrs. King could share the role.

  • 62. SethInMaryland  |  November 20, 2014 at 8:31 am

    what's the name of the case in Arkansas state court? i don't see the name

  • 63. LK2013  |  November 20, 2014 at 8:33 am

    The Arkansas state attorney is arguing that the SC cannot use the Declaration of Rights enumerated in the Arkansas constitution to strike down Amendment 83 because once an amendment is in the constitution, it basically overrides the constitution (!). The male justice in the middle is incredulous! The lawyer does admit that the US Constitution COULD be used though to override the amendment.

    He is also saying privacy rights do not apply …

  • 64. DaveM_OH  |  November 20, 2014 at 8:33 am

    Nathaniel Smith v. M. Kendall Wright.

  • 65. JayJonson  |  November 20, 2014 at 8:36 am

    He is not going to rule in favor of marriage equality. We know what the ruling will be as long as the composition of the court remains the same. There is absolutely no reason to think the vote will be any different than the Windsor vote was.

    We will have a ruling authored by Kennedy, and joined by Ginsburg, Breyer, Sotomayor, and Kagan. Scalia will write a scathing dissent, which will be joined by Thomas and perhaps Alito. Roberts will write a more temperate dissent in which he parrots Sutton, and may be joined by Alito.

  • 66. nicolas1446  |  November 20, 2014 at 8:39 am

    Well it was live streamed. I watched it but was 20 minutes late so only saw 40 minutes but from what I saw the judges seemed more in favor of same sex marriage than against it,

  • 67. David_Midvale_UT  |  November 20, 2014 at 8:40 am

    I think the emphasis on which state gets to be which official number is cute. . . kind of like the little plastic heart you get to put inside the teddy bear at that make-it-yourself shop in the mall. . . cute. . . but not as important as the happiness of the families who now have Equal Protection of the Laws. 😀

  • 68. DaveM_OH  |  November 20, 2014 at 8:40 am

    It's in the Archived section already. https://courts.arkansas.gov/courts/supreme-court/
    Nathaniel Smith v. M. Kendall Wright

  • 69. LK2013  |  November 20, 2014 at 8:40 am

    He's arguing for rational basis … no suspect class for "homosexuals" …

  • 70. Chuck_in_PA  |  November 20, 2014 at 8:41 am

    I am willing to bet that the Arkansas SC will find for ME based on their State Constitution, as well as on the Federal Constitutional 14th Amendment. If they rule that the Arkansas Constitution is grounds for subsequent laws and amendments prohibiting same-sex marriage being unconstitutional, then their decision will bypass the authority of the 8th Circuit Court of Appeals. Would that not be a kick in the teeth to the 8th Circuit? Here's hoping.
    I was away on vacation in Key West when Sutton's disgraceful decision was issued. A small blot on my vacation happiness, but not as big a downer as the accident that left me with 2 broken ribs (all I could do was eat, swim, and drink). Just like being in my 30s again. I am happy to be home and posting again and joining the celebration for our gay and lesbian brothers and sisters in Montana and South Carolina.

  • 71. SPQRobin  |  November 20, 2014 at 8:42 am

    FWIW, here's a direct link to the video: http://arkansas-sc.granicus.com/MediaPlayer.php?v

  • 72. LK2013  |  November 20, 2014 at 8:43 am

    He's bringing up Baker … now being questioned by female judge (ironically, I think her name is Baker!) about sex discrimination as suspect class – he is trotting out the old "men and women are treated the same here" tripe …

  • 73. MichaelGrabow  |  November 20, 2014 at 8:43 am

    Joemygod was reporting that they adjourned at around 11E/10C.

  • 74. David_Midvale_UT  |  November 20, 2014 at 8:43 am

    Both. . . And don't forget Shelby Friday here in Salt Lake City.

  • 75. LK2013  |  November 20, 2014 at 8:45 am

    He just threw in that they will grant it is sexual orientation discrimination, and they still want to apply rational basis … one of the other female Justices (Goodson?) perked up at that, but he said "oh, I'm running out of time, I better sit down!"

  • 76. guitaristbl  |  November 20, 2014 at 8:45 am

    Arguments are still going in AR Supreme Court ? Will have to check them later I suppose. A spokesperson for the court said a decision will likely come in 4 or 5 weeks, which is almost certainly before SCOTUS grants cert I think.

  • 77. SethInMaryland  |  November 20, 2014 at 8:48 am

    no the it's over , it just a rerun of what happened to day

  • 78. Rick55845  |  November 20, 2014 at 8:48 am

    I can't watch the video right, so if you will, who is the "he" you are referring to? Is that the State's attorney admitting that it is sexual orientation discrimination? Or was that one of the judges?

  • 79. LK2013  |  November 20, 2014 at 8:50 am

    Jason Owens – representing Arkansas county clerks – argues that Amendment 83 does not conflict with the Declaration of Rights such as Equality, Liberty, Freedom ("although we all have different definitions of things") … and the citizens of Arkansas would never NOT have the good will toward other citizens and trample on their Equality, Liberty, Freedom (although clearly they DID!) … now babbling about the fundamental right to marriage – NOT a broad right for all – minors, incompetent folks, close relatives. Trying to distinguish this from Loving. Arguing that interracial marriage was not banned in England or in early US, so there was no tradition of outlawing interracial marriage … appellees are trying to "change the long-held deeply rooted …" – Justice interrupts !!! Didn't we do that when we outlawed Slavery ?!! Bam!!!

  • 80. LK2013  |  November 20, 2014 at 8:51 am

    Justice now asking "aren't you affecting the Equality and Liberty of same-sex couples?" !!

  • 81. LK2013  |  November 20, 2014 at 8:53 am

    Justice Baker now asking about recognition of marriage performed in other states – "we recognize unions from other states that are different from ours, why is this different?" His answer – "this is different because of the vote of the people," then mumbles about polygamous marriages! Justice Corbin now coming back to "isn't the privacy right at least implicated here?"

  • 82. LK2013  |  November 20, 2014 at 8:54 am

    "I don't think the privacy right applies at all! What they are seeking here is purely public recognition … this is, they want public recognition, blatantly public recognition of a union!"

    Justice Danielson … "I don't think you answered the question…"

  • 83. MichaelGrabow  |  November 20, 2014 at 8:59 am

    Oh, great.
    http://joemygod.blogspot.com/2014/11/oregon-hrc-c

  • 84. Rick55845  |  November 20, 2014 at 9:00 am

    Can someone explain what the privacy rights issue is? Why is the AK SC judge asking about that?

  • 85. LK2013  |  November 20, 2014 at 9:03 am

    Now Justice Danielson asks "what is the compelling interest?"

    "Well, the compelling interest, first of all, we would argue that the rational basis standard would apply … but with respect to the compellng interest, the compelling interest has to do with, retaining the traditional definition, the long held definition, the protection of children, and the the link of the children with their biological parentage …"

    Justice: "What about the children of same sex couples, why wouldn't this benefit them, to be in a family unit, and the protection of the laws, what about them?

    Oh, crap, I have to go … will catch up later …. but I'm liking the direction here!

  • 86. Wolf of Raging Fires  |  November 20, 2014 at 9:04 am

    Strike it down, HARD!

  • 87. Rick55845  |  November 20, 2014 at 9:05 am

    Yeah, not good news. I thought all sodomy laws were struck down by Lawrence vs Texas in 2003. Or is this law perhaps valid because a minor was involved?

  • 88. SethInMaryland  |  November 20, 2014 at 9:10 am

    say hello to the 9th most liberal court, haha i'm loving it, ,i can see where the court is going privacy issue , it's very interesting new arguement and one i never thought about before that our side can use to our advantage, these ban infringe upon the privacey of familes which is true these bans hurt these famiilies

  • 89. Wolf of Raging Fires  |  November 20, 2014 at 9:14 am

    No, you're right. Sodomy laws cannot be enforced, but some are still on the books and people try to use them nonetheless as an intimidation tactic. The sodomy charges will not hold up, but the rest will be if he is guilty.

  • 90. netoschultz  |  November 20, 2014 at 9:20 am

    http://www.arktimes.com/ArkansasBlog/archives/201

    This is the best i found about Arkansas hearing

  • 91. TonyMinasTirith  |  November 20, 2014 at 9:22 am

    Awesome! There's no turning back now. This means tons more wedding videos and fabulous flash mob proposals on YouTube to watch! Now if the Hallmark channel will only create a gay Christmas love story.

    Do you think Delilah will quit her sappy love song radio show, when she gets sued for discrimination?

  • 92. netoschultz  |  November 20, 2014 at 9:24 am

    In this article:
    From the questioning, I'd say Justices Corbin, Danielson and McCorkindale sounded favorable to the plaintiffs' arguments. Justice Baker was focused, in a seemingly favorable way, on the question of denying equal treatment to people married in other states. Justice Goodson sounded as if she saw problems in a ruling for the plaintiffs and attempted to get the state to say the court shouldn't consider scientific evidence in amicus briefs on behalf of plaintiffs. She also wanted more information from the state about its argument that the state has an interest in procreation and child welfare as supporting the ban. Hannah wasn't heard from. Nor Justice Jo Hart.

    So, at the worst it would be a 4-3 ruling in our side

  • 93. Pat_V  |  November 20, 2014 at 9:31 am

    But since the South Carolina stay has just expired, isnt actually SC number 33? It seems marriage licenses are not yet being issued statewide in Montana, are they?

  • 94. SethInMaryland  |  November 20, 2014 at 9:39 am

    one of the justice lit the state ag up like a hornet during the rebuttal when he said the constitution can't be used to strike down the adm

  • 95. nicolas1446  |  November 20, 2014 at 9:53 am

    Why do people not think Roberts will join? Do you not realize he helped get a favorable decision in Romer v. Evans. He has a lesbian cousin and in his Windsor dissent he did not join part 2 of Scalia's dissent which is where he ranted against same sex marriage. He also did not join Alito's dissent where he said marriage was completely up the states. Not to mention that his Windsor dissent was just like two pages long and he emphasized that the court might later have to decide if states can continue to ban gay marriage but that that question was currently not properly before the court. Another reason that points to Roberts joining is that he has a legacy to think of. I see a 6-3 decision. In fact, I think the reason the court did not grant cert to the past same sex marriage cases is because Roberts sided with the Windsor 5. Therefore there were not the 4 votes needed to grant cert.

  • 96. RemC_Chicago  |  November 20, 2014 at 9:54 am

    I think I'll send a Valentine to Sutton post-June. With a big ol' THANK YOU.

  • 97. brooklyn11217  |  November 20, 2014 at 9:56 am

    Not to put a damper on what will be a great victory, Gay Pride in NYC is set for Sunday, June 28, 2015. Per the SCOTUS calendar, they have a decision day set for Monday, June 29th. So, it is possible that we won't know the outcome during the Pride March here in NYC.

  • 98. RemC_Chicago  |  November 20, 2014 at 10:00 am

    Well, as a former Floridian, I have to say that all you can really do in Key West is eat, swim and drink. Plus sleep. Good thing your accident wasn't more serious.

  • 99. BenG1980  |  November 20, 2014 at 10:02 am

    Maybe they will decide marriage equality earlier and save gutting Obamacare 5-4 for the last decision day of the term. That would give the conservatives some cover, especially Roberts if he sides with the rest of the RATS this time on the ACA and for us in DeBoer.

  • 100. netoschultz  |  November 20, 2014 at 10:04 am

    A county clerk in South Carolina is refusing to issue marriage licenses to same-sex couples
    http://www.wltx.com/story/news/local/2014/11/20/l

  • 101. SethInMaryland  |  November 20, 2014 at 10:05 am

    breaking the law

  • 102. Mike_Baltimore  |  November 20, 2014 at 10:08 am

    That may be so, but the silver lining of a SCOTUS ruling is that except for PR, the territories get ME without having to take a case 'through the courts'.

    As of now, I'm not too worried about PR as I'm firmly of the belief that 1CA will rule in our favor, and SCOTUS almost assuredly won't overturn. DC has had ME for almost 5 years now. That leaves 4 territories that will not have to have a judgement in court (I seriously don't think their legislatures will act) to attain ME.

  • 103. SethInMaryland  |  November 20, 2014 at 10:11 am

    guam might leglize it, that territorie seems to be somewhat liberal

  • 104. LK2013  |  November 20, 2014 at 10:13 am

    Sorry … it was the State's attorney, Colin Jorgensen.

  • 105. jdw_karasu  |  November 20, 2014 at 10:13 am

    I tend to agree with Wes. Our 4 aren't going to sign onto a narrow ruling by Roberts, nor is it likely that Kennedy will. It will be 5-4 unless Roberts is willing to concur with Kennedy's opinion, who no doubt will write the majority opinion. In that case, it would be a straight 6-3.

    The other option for Roberts is a 5-1-3, with Robert concurring in part and dissenting in part. He may not want to go down in history as a bigot, but may want to carve out areas where he dissents to protect business right to discriminate against LGBT's. In other words, if Kennedy again ducks the level of scrutiny in his opinion, Roberts my use his concurrence to point out that the majority opinion isn't heightened/strict scrutiny.

    Also worth reading is dissent in Windsor:
    http://www.supremecourt.gov/opinions/12pdf/12-307

    He goes out of his way to try to contain Windsor to DOMA, a legal theory which a host of District and Circuit Judges have basically told him to piss off about by citing Windsor as one of their reasons for overturning state bans. Hard to see that Roberts is going to be super happy.

    I think this is wishful thinking.

  • 106. jdw_karasu  |  November 20, 2014 at 10:15 am

    He's been this way on all civil rights issues.

  • 107. LK2013  |  November 20, 2014 at 10:17 am

    I guess Kansas and South Carolina are competing to see who can be most dicki$h toward us

  • 108. Mike_Baltimore  |  November 20, 2014 at 10:24 am

    I think an easier method now to determine the number of states recognizing ME is to count the states that do NOT recognize in-state, and out-of-state, and etc., marriages in the entire state, then subtract that number from 50.

    That would be 15 states:
    Florida, Georgia, Alabama, Mississippi, Louisiana, Texas, North and South Dakota, Nebraska, Missouri, Arkansas, Michigan, Ohio, Kentucky and Tennessee. (I place Missouri and Arkansas in this category, since there is NO final court ruling on the subject, and ME is not recognized in the entire state, although if someone presents a strong enough argument, I might be convinced to take them out of the category of non-ME states.)

  • 109. Mike_Baltimore  |  November 20, 2014 at 10:31 am

    I'd say with Roberts, maybe a 30% probability (since he has a relative [cousin?] who is a lesbian), Alito maybe a 10% probability (more like a 5% or less probability), and with Scalia and Thomas, 0%.

    A slight maybe for a 6-3 decision, but most probably a 5-4 decision.

  • 110. davepCA  |  November 20, 2014 at 10:37 am

    Thanks! Watching it now…..

  • 111. guitaristbl  |  November 20, 2014 at 10:37 am

    Legal marriages are recognizes throughout Missouri per Vasterling I think.

  • 112. wes228  |  November 20, 2014 at 10:38 am

    The "narrowest opinion" rule is only applicable when there is no single opinion signed on by at least 5 judges.

    The point is, it's not like Roberts can assign the decision to himself and then rule however he likes. He still needs 4 other Justices to sign onto it. If they end up signing onto a concurring opinion instead (and that concurring opinion gets 5 votes), then that opinion actually becomes the Court's opinion.

  • 113. Wolf of Raging Fires  |  November 20, 2014 at 10:41 am

    If he's on drugs, I want some…must be good shit.

  • 114. jdw_karasu  |  November 20, 2014 at 10:44 am

    As an earlier poster pointed out, it would be a riot of the Arkansas SC struck down the state's ban before the 8th had a chance to uphold it.

    I think we feel pretty good about Judge Kristine Baker in the District Court case: she's an Obama appointment. The timing of her decision may be interesting. She may want to give the State SC time to strike it down on their own. But she also probably would like to send up a second district decision to the 8th along with the Mizzou's Lawson v Kelly decision.

    The 8th remains really bleak for us given the numbers. Pehaps the best would be:

    * Arkansas SC strikes down ban
    * SCOTUS takes up 6th case(s)
    * that puts action in the 8th & 5th on hold

    I would love to see the 11th sneak in a ruling on the Florida case before SCOTUS takes up the 6th case(s), but don't know if they'll have time. That would symbolically bring in the states under the 11th:

    FL = 19,552,860
    GA = 9,992,167
    AL = 4,833,722

    FL would be game over shortly after the ruling, since SCOTUS would deny a stay.

  • 115. micha1976  |  November 20, 2014 at 10:53 am

    But they didnt even grant cert, so there were not even 4 votes against the ME decisions of the 4th, 7th and 10th Circuit. So maybe there is a 6th vote somewhere…

  • 116. Mike_Baltimore  |  November 20, 2014 at 10:53 am

    In other words, the Arkansas attorney has not read Article VI of the US Constitution?

    And that attorney didn't pay attention in law school when the 1869 Supreme Court case of 'Texas v White' was discussed?

    Why did I think Arkansas was more intelligent than they seem to be illustrating today?

  • 117. davepCA  |  November 20, 2014 at 10:58 am

    Watching the oral arguments, the guy arguing for the county clerks says "well, we all have different definitions of what 'equality' means". Um, no, dummy. Equal means equal.

  • 118. davepCA  |  November 20, 2014 at 11:01 am

    …. and "the assumption has to be that the people of Arkansas had the good will not to trample on other citizens' equality, liberty and freedom". Um, no, that's why we have the courts in the first place, dummy. To correct exactly that situation when it happens and overturn unconstitutional and harmful laws that were enacted because people did exactly that.

  • 119. guitaristbl  |  November 20, 2014 at 11:07 am

    Goodson seemed willing to go down the slippery slope. 3 justices are in favour, 1 possibly in favour and 2 we do not know. The worst case scenario is 4-3 against ME here but I think its not likely…The ruling will be something from 4-3 in favour of ME to 6-1 in favour of ME.
    I would like it to be unanimous but a judge that adopts the slippery slope thing of the opponents and wants to disregard scientific evidence submitted by the plaintiffs does not seem likely to vote in favour of ME here.

    A positive hearing all in all, mainly due to the hit and miss way defendants addressed the issues about historical discrimination and even the animus towards LGBT people their rhetoric showed. They do not want in any case this one to be decided solely based on the state constitution as they will have nowhere to go. Any glimpse of federal constitution supporting ME in their decision will let them go to SCOTUS (not much luck there though I suspect especially since SCOTUS does not take up for review decisions from state supreme courts most of the times)

  • 120. guitaristbl  |  November 20, 2014 at 11:10 am

    The assumption ? Seriously ? The assumption ??! That's how an attorney comes to argue in a court ? "We assume they had the best of intentions when they voted for it" ? What's that, the new legal trend and philosophy led by Sutton and Cook ? Meaning making no legal arguments in a court of law but make "assumptions" ? Ugh..You can't fix stupid, never. N-e-v-e-r.

  • 121. StraightDave  |  November 20, 2014 at 11:12 am

    I interpret the lack of 4 votes for cert as avoiding giving the other 5 an opportunity to close down the whole country in one fell swoop. They now believe they will never prevail, so this is their way of postponing the final decision as long as possible (Roberts and Alito, that is). Scalia and Thomas are ready to Thelma-and-Louise the whole thing now. Either that or they're totally deluded.

    But what about the Positive 5, you say? They could do it all on their own if they wanted. I think Ginsberg and Kennedy may have been content to wait until they're boxed in, like now.

  • 122. Rik_SD  |  November 20, 2014 at 11:25 am

    Why even confuse the issue by bringing sodomy into it? He is taking advantage of a child. He should be charged with that and go to jail.

  • 123. StraightDave  |  November 20, 2014 at 11:44 am

    Didn't the SD judge just knock the legs out from under the 8th's ruling in Bruning? It sounded like Bruning was not really a marriage decision, per se, but a denial of access to the political process. The amendment constrained their ability to petition the legislature for redress. PERIOD.
    I think the AR SC is now free to make a federal-based decision, which has a damn good chance of ending with cert denied.

    I remember all the howling early this year when the plaintiffs were considered insane to bring a state case in AR. Hmmmm…

  • 124. hopalongcassidy  |  November 20, 2014 at 11:50 am

    I always found a few interesting things to do there between drink and sleep. {evilgrin}

  • 125. RobW303  |  November 20, 2014 at 12:08 pm

    It can't be that rapidly: people aren't dying off any quicker. I think the polar icecaps are still melting faster than old guard Republicans are "evolving".

  • 126. RobW303  |  November 20, 2014 at 12:13 pm

    They've unfriended all the federal courts and put them on block.

  • 127. RobW303  |  November 20, 2014 at 12:15 pm

    Any live-streaming?

  • 128. davepCA  |  November 20, 2014 at 12:59 pm

    Yup. Plenty of people still tear apart their own immediate family and throw their own child into the streets because the kid is gay.

  • 129. Mike_Baltimore  |  November 20, 2014 at 1:14 pm

    And that's why I stated with Roberts, there is, IMO, about a 30% probability of him changing his vote (not 100%, or even 50%, but 30%). At least there is a bit of hope with Roberts in my opinion, but much less to none with any of the others.

  • 130. ebohlman  |  November 20, 2014 at 2:49 pm

    The AR SC wouldn't be constrained by Bruning in any case, since Federal appellate courts don't bind state courts on Federal issues.

  • 131. davepCA  |  November 20, 2014 at 3:44 pm

    uuuuh, this guy is trying to argue that the highly personal decision of the individual to marry is actually a 'public' matter because there is a legal certificate involved and it gets mentioned in the local paper? Yeah…. Sooo…. decisions about arranging a funeral for a family member are not highly personal and should be considered 'public' because there is a death certificate involved and it gets mentioned on the obituary page. Right. Got it. Talk about grasping at straws.

  • 132. FredDorner  |  November 20, 2014 at 3:57 pm

    "Didn't the SD judge just knock the legs out from under the 8th's ruling in Bruning?"

    It was actually a state district judge in Missouri who did that first, who was then echoed by a federal judge in Missouri.

  • 133. RobW303  |  November 20, 2014 at 4:17 pm

    Nevertheless, the plaintiffs' counsel in the AR SC hearing did bring up the inapplicability of Bruning; I'm sure the defense made a big thing of Bruning in their briefs.

  • 134. RobW303  |  November 20, 2014 at 4:25 pm

    Yeah, defense seemed to think that the previous cases dealing with privacy only dealt with the "knocking down your bedroom door" aspect. If they leave your bedroom door intact, they're not infringing on your privacy rights. And apparently the only aspect of marriage being denied is the right to walk into a clerk's office and obtain a license—all that other stuff you get from being married, everything else that impacts your private life deeply, is beside the point because it's all about the public act of registering your marriage.

  • 135. andrewofca  |  November 20, 2014 at 5:29 pm

    If Roberts does end up voting for ME, I hope he still lets Kennedy pen the opinion. I can imagine Roberts voting with the majority just so that he can write a very limited, narrow ruling that lacks any substantive language for future precedents.

  • 136. SeattleRobin  |  November 20, 2014 at 8:13 pm

    Yeah, half the time the clerk's attorney's arguments were so illogical and contradictory he sounded like he was on our side. Not to mention his bit about not outlawing interracial marriage until after the Civil War was complete BS. (The first such laws were passed in the 1600s during the Colonial Era.)

    The other attorney for the state who spoke first did a pretty decent job I thought. Though that was at least partly because he wasn't grilled on the rational link between banning same-sex marriage and procreation.

    I loved the part where our first attorney held up a long scroll listing pro-equality decisions in one hand and a little post-it note with the anti-equality decisions in the other as a graphic illustration of where the courts as a whole stand.

    And when the other attorney for our side talked about the 80 year old couple whose main concern is that they be able to claim the body of their loved one when one of them passes on, I was almost undone.

  • 137. SeattleRobin  |  November 20, 2014 at 8:33 pm

    Ugh. This is awful.

    As to the sodomy law, it depends on what the actual law is. Lawrence struck down laws that prohibited sodomy (the definition of which varied drastically from time to time and state to state) between consenting adults. It didn't touch laws concerning rape, sexual abuse, or sex with minors.

    Oregon repealed their sodomy law in 1972 according to Wikipedia. So I'd guess the charge comes under some criminal sodomy law that's still in effect.

  • 138. SeattleRobin  |  November 20, 2014 at 8:46 pm

    The right to privacy is part of constitutionally guaranteed rights.

    I'm a little shaky on how it factors in here, so someone can correct me if I get this wrong. But I believe in previous cases the right to marry has been seen as a part of the right to privacy. In that, who an individual decides to marry is an intensely personal and private choice, a choice that the government has no right to intrude upon, except in certain situations like minors.

    So I think the questioning was in relation to the state constitution. If it guarantees the right to privacy, and marriage is part of that right, then how can the constitution be amended to withdraw that right from a class of citizens.

  • 139. Zack12  |  November 20, 2014 at 8:53 pm

    A victory in the 8th like the 5th is simply not going to happen.
    I think the only state from here on out where we have a chance to see equality will be Arkansas if their state Supreme Court rules in our favor.
    Beyond that, it is up to the Windsor Five.

  • 140. SeattleRobin  |  November 20, 2014 at 8:54 pm

    The article has been updated. The court says they will now issue licenses because there is currently no appeal pending before the Supreme Court.

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