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Plaintiffs challenging Texas’ same-sex marriage ban ask federal court to lift stay

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Texas state sealThe same-sex couples who are challenging Texas’ marriage ban have filed a request in district court, asking the judge to lift the stay and allow marriages to be performed. The stay has been in place since February, when the judge issued a preliminary injunction against enforcing the ban. That injunction is on appeal in the Fifth Circuit Court of Appeals, with arguments set for early January.

The filing cites the Supreme Court’s latest actions in several marriage cases as a basis for lifting the stay:

The Court should immediately lift the stay because the Supreme Court’s actions following entry of the stay no longer support its continuance. The Supreme Court denied certiorari in appeals from the Fourth, Seventh, and Tenth Circuits’ decisions finding that state laws banning same-sex marriage were unconstitutional. The denial of certiorari dissolved the stays in place over those cases. Since then, the Supreme Court denied requests for stays (or actually lifted stays) in other cases. While these cert denials concededly do not have legal significance, the constitutional environment in which the Court initially entered the stay have now changed radically and permanently. Fully two-thirds of citizens of the United States now have an enforceable federal constitutional right to marry the person of their choice, irrespective of gender.

The Fifth Circuit will hear this case along with a similar one from Louisiana on January 9. Plaintiffs in the Louisiana case have also asked the Supreme Court to hear its challenge before the Fifth Circuit makes a decision.

Thanks to Equality Case Files for these filings


  • 1. Wolf of Raging Fires  |  November 24, 2014 at 10:51 am

    "Fully two-thirds of citizens of the United States now have an enforceable federal constitutional right to marry the person of their choice, irrespective of gender."

    I just LOVE the sound of that!

  • 2. DACiowan  |  November 24, 2014 at 11:06 am

    I can't wait until we can drop the first four words.

  • 3. DACiowan  |  November 24, 2014 at 11:06 am

    I can't wait until we can drop the first three words.

  • 4. Wolf of Raging Fires  |  November 24, 2014 at 11:23 am

    Absolutely, same here!

  • 5. RnL2008  |  November 24, 2014 at 11:38 am

    Me too:-)

  • 6. hopalongcassidy  |  November 24, 2014 at 12:05 pm

    YES! And, I don't believe I've ever seen 'conceded' modified into an adverb before…"concededly" is a cool word even if it is still prototypical, I like it. 😀

  • 7. Waxr  |  November 24, 2014 at 12:51 pm

    "Concededly" is listed on as a related form of "concede". Therefore it is recognized, and is more than prototypical.

  • 8. hopalongcassidy  |  November 24, 2014 at 1:14 pm

    Good, now I like it even more!

  • 9. Dr. Z  |  November 24, 2014 at 1:20 pm

    Concedify? It's part of the new nounification.

  • 10. guitaristbl  |  November 24, 2014 at 1:24 pm

    I don't see much chance of success here. If they have timed it better and made the request before the 5th scheduled arguments, adding to the SCOTUS action the fact that things are stalling deliberately seemingly etc. Now it seems unlikely that, even if the district court for some reason grants their request, the 5th or SCOTUS will leave it be after Abbot requests a further stay in light of oral arguments in January. Resolution in Texas will come after SCOTUS rules end of story.

  • 11. wes228  |  November 24, 2014 at 1:27 pm

    On the other hand, if SCOTUS wants there to be as many marriage equality states as possible before they rule, they might overturn the stay if it is granted by the District or Circuit courts.

  • 12. guitaristbl  |  November 24, 2014 at 2:01 pm

    I don't think SCOTUS will go ahead of itself and undermine the authority of a circuit court of appeals tbh.
    There are already less states without ME than there were states without interracial marriage when Loving was decided anyway.

  • 13. Raga  |  November 24, 2014 at 2:24 pm

    I hope they are willing to go all the way to SCOTUS regarding the stay. Whether the district court agrees or refuses to lift the stay, there will be an appeal to the Fifth of that decision, and the Fifth will surely leave the stay in place. When it gets to SCOTUS, it will be the first time they get asked to lift a stay when the appellate court hasn't ruled on the merits yet. I doubt our chances there – I think the recent stay denials post-Sixth-Circuit-split were strongly tied to the corresponding cert denials and are not indicative of how they would respond to this situation. Before that, the Idaho and Alaska stay denials were likely because the Ninth Circuit held marriage bans unconstitutional, falling in line with the 4th, 7th, 10th Circuits whose certs had just been denied. I'd be very surprised if SCOTUS lifts the stay – if they do so, that'll be their strongest indication yet that they'd strike down the bans nationwide if it should come to it.

  • 14. sfbob  |  November 24, 2014 at 2:25 pm

    My assumption is that the court is far more concerned with process than they are with the results. I would have to agree with guitaristbl that the Texas plaintiffs (and the Louisiana plaintiffs seeking to bypass the Fifth Circuit entirely) will not be successful.

  • 15. Dr. Z  |  November 24, 2014 at 3:00 pm

    NOM smackdown at the 9CA on their en banc request for a rehearing in Oregon, ha ha ha…

  • 16. guitaristbl  |  November 24, 2014 at 4:12 pm

    That certainly took them a lot of time to deny given Hollingsworth. But I guess it was not that high on the judges' priority lists to begin with..
    I am eagerly waiting for the CPM smack down in the Nevada case !

  • 17. Raga  |  November 24, 2014 at 5:05 pm

    It would have been a lot quicker if somebody had called for a vote. It takes forever for the time allowed to call for a vote to expire.

  • 18. jpmassar  |  November 24, 2014 at 5:11 pm

    A federal appeals court has denied a request by the National Organization for Marriage that the court reconsider its motion to appeal a federal judge’s ruling that struck down Oregon’s ban on same-sex marriage…

    On Monday, the court denied that request in a brief order stating, “No judge has requested a vote on whether to rehear the matter en banc.”

  • 19. Rick55845  |  November 24, 2014 at 5:47 pm

    Was it the petition filed by Monte Steward for CPM on October 13th? What is the time period allotted for a circuit judge to request a vote?

  • 20. mariothinks  |  November 24, 2014 at 5:54 pm

    Michigan has filed their reply brief!

  • 21. Silvershrimp0  |  November 24, 2014 at 6:04 pm

    Does this mean the court could decide on cert before the end of the year?

  • 22. Jaesun100  |  November 24, 2014 at 6:04 pm

    Does that make it ready for conference?

  • 23. montezuma58  |  November 24, 2014 at 6:07 pm

    Probably not a good word to use in an oral presentation. Sounds pretty close to conceitedly.

  • 24. mariothinks  |  November 24, 2014 at 6:08 pm

    It could! But I honestly think they may wait for all cert petitions and hear them together. But you never know!

  • 25. mariothinks  |  November 24, 2014 at 6:10 pm

    I think so. The plaintiffs can file a reply brief within 14 days but the Court can still hear it for conference without a reply brief. But as I said above, they may wait to hear all the petitions together. But you never know!

  • 26. DACiowan  |  November 24, 2014 at 6:12 pm

    The specific case, yes, although SCOTUS might want to wait for all the petitions to be ready. Then again, maybe not.

  • 27. mariothinks  |  November 24, 2014 at 6:12 pm

  • 28. Wolf of Raging Fires  |  November 24, 2014 at 7:03 pm


  • 29. Mike_Baltimore  |  November 24, 2014 at 7:05 pm

    Off topic:

    There has been discussion (here and elsewhere) of the varying numbers for/against ME. The 'Advocate' has an article about this, based on numbers in a Washington Post article (linked in the 'Advocate' article) based on November 4 election exit polls.
    (… )

    I am of the opinion that how the question is asked and who is asked are the two most important things determining the numbers for/against ME. Even better is consistent polling (including consistency of questions asked and the order of questions), such as Gallup has done since 1996.

  • 30. Raga  |  November 24, 2014 at 7:16 pm

    If Plaintiffs file their reply brief or waive a reply by tomorrow, it would be ready for their December 12 conference.

  • 31. Jaesun100  |  November 24, 2014 at 8:16 pm

    Hopefully they keep it simple and pick the best one and quickly …..the other states would simply just have to wait on the ruling …..
    RBG knows it's time to pounce on it ~(we hope).

  • 32. Zack12  |  November 24, 2014 at 10:07 pm

    I agree with that as well.
    I do understand why they are doing it but they have no shot.

  • 33. Pat_V  |  November 25, 2014 at 1:29 am

    Wow, so fast! They had until mid-December, right?

    What about the other 6th circuit cases? What is the deadline for the state authorities to submit their reply briefs?

  • 34. haydenarwen  |  November 25, 2014 at 3:19 am

    I Figured MI would reply fast! They want it decided too

  • 35. JayJonson  |  November 25, 2014 at 6:15 am

    The answer to the Advocate's question, "Has Support for Marriage Equality Declined?", is no. Of course, exit polls for an election which had the lowest turnout in history, especially of the Democratic base, are not representative. Other recent polls show that support for marriage equality continues to build and opposition continues to fall.

  • 36. Zack12  |  November 25, 2014 at 6:21 am

    Another answer should be that it doesn't matter.
    Civil rights aren't something that should be determined by poll numbers.

  • 37. jcmeiners  |  November 25, 2014 at 6:21 am

    It doesn't take much time to say nothing (new). Reading it, even the authors don't seem to be particularly convinced of their case.

  • 38. F_Young  |  November 25, 2014 at 6:29 am

    "Of course, exit polls for an election which had the lowest turnout in history, especially of the Democratic base, are not representative."

    The fly in the ointment is that. for politicians, the only polls that matter are elections, and exit polls are the best indicator of the opinion of the only people who count to politicians, those who vote.

  • 39. DACiowan  |  November 25, 2014 at 5:58 pm

    As expected, Texas is not happy about this.

  • 40. Rick55845  |  January 1, 2015 at 12:31 am

    Does anyone have any idea WTF this is about?

    sembuh dari kanker payudara berkat means "cured of breast cancer thanks", according to google translate. It's Indonesian. I thought that was a geographical area. I never realized it was a language. Go figure.

    Anyway, I figure this is spam. Reported.

  • 41. DeadHead  |  January 1, 2015 at 3:24 am

    Using Google translate it says "recovering from breast cancer breast cancer thanks to traditional medicine" and smells like spam…

  • 42. Dadan Hermansah  |  October 15, 2017 at 11:15 pm

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